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NATIONAL REPORTER SYSTEM— STATE SERIES 

I 

THE 

ATLANTIC REPORTER 

VOLUME 101 

PERMANENT EDITION 

OOHFBISINO AIX THE BXFOBTED DECIBIONB OF THX 

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



WITH 
KEY-NUMBER ANNOTATIONS 



JULY 19 — NOVEMBER 1, 1917 



^^- 






ST. PAUL 

WEST PUBLISHING CO. 
1917 



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CoPTBiaHT, 1917 

BT 

WEST PUBLISHING OOMPANT 
(101 AtU 



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▲TZiANTIC REPORTER, YOLiUUn 101 



JUDGES 



OF THE COURTS REPORTED DURING THE PERIOD COVERED 

BY THIS VOI.UME 



OOmnBOTIOnT— Supreme Court of Errors. 

aAUUHL O. PRENTICE, CBiBT Jvemom. 

ABBOdATK JDSTICBB. 

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

DEIiAlV ABE— Supreme Court. 

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

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

Court of Chancery. 

CHARLES M. CURTIS, CHANC»IJ/)B. 

MAINE— Supreme Judicial Court. 

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

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

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

ABSOCI^TB JUDOBB. 

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

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

ASBOCIATB JTTBTICBB. 

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

■EW JEBSET— Court of Errors and 
Appeals. 

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



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

JTTBTICBB. 

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

JUDOBS. 

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

Court of Chancery. 
BDWIN ROBERT WALKER, CRANoaiXOB. 

yiCB CHA1ICBI.I.OB8. 

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

Supreme Court. 

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

Prerogative Court. 

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

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

JTTBTICBS. 

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



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



snooeed Joha M. 



597919 



(T) 



• Died June 14, 1917. 

• Appointed Chief Justice June 26, UIT. 

• Appointed June 25, U17. 



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101 ATIiANTIO RSIPOBTBB 



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



VERMOITT— Supreme CourL 
JOHN HENRT WATSON, ChibV JVaiKOk 

AS80CUTB JUSTICSS. 

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



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CASES REPORTED 



Abrams. ISrana MarMe Go. of Baltimore 

City ▼. (Md.) 964 

Acamiiora v. Warner (Cono.) 832 

AdehDan, SoiiHiiers t. (Conn.) 7 

Adleman t. Ocean Accident A Guarantee 

Corp. CMd.) B29 

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

Agricultural Soc. of Montgomery Countar y. 

State (Md.) 139 

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

Ains V. Hayes (Conn.) 570 

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

Allen V. Scheib (Pa.) 102 

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

(Pa.) 969 

AmerKan Colonization Soc., SouUiby y. 

(Md.) 780 

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

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

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

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

American Steriliser Co., >Iayer Bros. Const. 

Co. V. (Pa.) 1002 

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

Anderson y. Nelson (R. I.) 136 

Antliracite Beer Co., Pennsylvania Cent. 

Brewing Co. v. (Pa.) 925 

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

(Del. Ch.) 879 

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

J. Ch.) 172 

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

(N. J.) 203 

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

Ashby y. Butz (Pa.) 318 

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

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

Sup.) 64 

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

Babayan v. Reed (Pa.) 839 

Baer v. Kahn (Md.) 506 

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

J. Ch.) 395 

Baker, Clark v. (Conn.) 9 

Baker y. Roshford (Vt.) 769 

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

Baldwin y. Corbin (Conn.) 834 

Baliman, Gischell v. (Md.) 698 

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

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

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

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

(Me.) 452 

Barre Granite & Quarry Co., Corry y. 

(Vt) 88 

Barrett, Hardie y. (Pa.) 75 

Barton y. Swainson (Md.) 607 

Beacbey v. Heiple (Md.) 653 

Beall y. Kew York & New Jersey Water Co. 

(N. J. Ch.) 676 

Beaver Trust Co., Brookville Title & Trust 

Co. y. (Pla.) 944 

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

B«cker, Seitsinger y. (Pa.) 650 

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

Bensel v. Anderson (N. J.) 262 

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

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

Bergen v. Trimble (Md.) 137 



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

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

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

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

CR. I.) 129 

Bickford, Spofford v. (Me.) 470 

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

Bixler v. Swartz ^a.) 647 

Black v. Eastern Pennsylvania Bys. Co. 

(Pa.) 644 

Bfouin V. Greene (Vt) 443 

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

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

Board of Chosen IVeehoiders of Atlantic 

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

Board of Chosen Freeholders of ESssex Oonn- 

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

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

Board of Com'rs of Margate City, Horner 

v. (N. J. Sup.) 868 

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

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

Board of Education of Bayonne, Scbwarz- 

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

Board of Fire Conors of City of Newark, 

Durkin v. (N. J.) 1053 

Board of Police Com'rs y. McClenehan 

(Md.) 786 

Board of Public Utility Com'rs, New York, 

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

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

Bolden v. Greer (Pa.) 816 

rtonaparte v^ Baltimore (Md.) 694 

Bonee, De Wolf V. (Conn.) 233 

Bookwalter v. Mt Union (Pa.) 953 

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

Sup.) 661 

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

Sup) 427 

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

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

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

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

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

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

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

Go. (Vt.) 1012 

Bougie, Sherburne y. (Me.) 355 

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

Bradford v. Mackenssie (Md.) 774 

Brady v. Baltimore (Md.) 142 

Branigan v. Lederer Realty Corp., two 

cases (B. IJ 122 

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

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

Brennaa, Commonwealth v. (Pa.) 947 

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

(Conn.) 659 

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

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

Brink V. Flannagen (N. J.) 274 

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



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101 ATLANTIO KBPOBTBB 



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

BrookviUe Title & Trust Oo. v. Beaver 

Trust Co. (Pa.) 944 

Brotherhood Accident Ca, Bulkeley y. 

(CkMin.) 92 

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

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

Brown, Kuehne v. (Pa.). 77 

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

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

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

Brunsman t. Crook (Md.) .1019 

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

Bulkeley v. Brotherhood Accident Co. 

(Conn.) 92 

Bupp y. Kleitz (Del. Ch.) 878 

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

Uic a Co. (Pa.) 922 

Burlington County Farmers' Ezch., Stuart 

y. (N. J.) 265 

Bums, Gallon y. (Conn.) 504 

Burr y. Ellis (Conn.) 17 

Butler y. Butler (R. I.) 115 

Butler y. Flint (Conn.) 19 

Butterfield, Woodman v. (Me.) 25 

Butz,Ashby V. (Pa.) 318 

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

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

Camaggio y. Chapman (Md.) 672 

Carpenter y. Carpenter (N. H.) 628 

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

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

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

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

Carson, Wood y. (Pa.) 811 

Carter y. Rowe (Conn.) 491 

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

Carville v. Lane (Me.) 968 

Castelli, State y. (Conn.) 476 

Cavalry Club of Rhode Island, Richards y. 

(R.L) 222 

Caveny v. Curtis (Pa.) 853 

Cecil Hochscbild v. (Md.) 700 

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

(N. J.) 287 

Central R. of New Jersey, Rounsaville v. 

(N. J.) 182 

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

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

(Pa.) 760 

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

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

Chance Marine Const. Co., Cromwell y. 

(Md.) 623 

Chandler, Edmonds y. (Pa.) 459 

Chapman, Carnaggio y. (Md.) 672 

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

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

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

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

Chew y. Philadelphia (Pa.) 915 

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

(N. J.) 372 

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

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

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

City of Baltimore v. Chesapeake & Potomac 

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

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

City of Baltimore y. Scott (Md.) 674 

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

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

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

H.) 6e.<l 

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

City of Erie, Appeal of (Pa.) 996 

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



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

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

City of New Hayen, Town of Hamden y. 

(Conn.) 11 

City of Paterson, Charles Krucben Co. t. 

(N. J.) 254 

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

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

Harmonie v. (N. J.) 254 

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

City of Philadelphia y. Conway (Pa.) 472 

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

City of Wilkea-Barre, Commonwealth y. 

(Pj^\ j^ ^ ^ ^ 929 

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

Clark y. Baker (Conn.) 9 

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

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

Cleaver, Morgan v. (Md.) 610 

Oements, Loeblein y. (Md.) 693 

Clifford, Farnham v. (Me.) 468 

Clinton Iron & Sted Co., Pittsburgh & L. 

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

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

(Conn.) 502 

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

Masons' & Plasterers' Local Union No. 1 

(Conn.) 650 

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

Collins V. Barre (Vt.) 48 

Collins V. Central R. Co. of New Jersey 

(N. J.) 287 

Commercial Casualty Itia. Co. of Newark, 

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

Commissioners of Palisades Interstate Parl^ 

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

Common wealtli, Appeal of (Pa.) 316 

Commonwealth, Appeal of (Pa.) 840 

Commonwealth, Appeal of (Pa.), 1062 

Commonwealth v. Urennan (Pa.) 947 

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

Commonwealth, Jooa v. (Pa.) 464 

Commonwealth v. Keystone Graphite Co. 

(Pa.) 766 

Commonwealth y. Koontz (Pa.) 863 

Commonwealth y. Lapriesta (Pa.) 637 

Commonwealth y. Mamatey (Pa.) 731 

Commonwealth . y. Matter (Pa.) 649 

Commonwealth y. Miller (Pa.) 1006 

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

Commonwealth, Saeger y. (Pa.) 999 

Commonwealth y. Scherr (Pa.) 940 

Commonwealth y. Schwartz (Pa.) 90 

Commonwealth y. Staush (Pa.) 72 

Commonwealth v. Verhovay Aid Ass'n 

(Pa.) 03i 

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

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

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

J. Ch.) 172 

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

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

Connecticut River Power Co. of New 

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

Connell, Edelman v. (Pa.) 658 

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

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

Coombs V. Fessenden (Me.) 466 

Cooney v. Rushmore (N. J.) 1053 

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

Ch.) 870 

Corbin v. Baldwin (Conn.) 834 

Oordano. Appeal of CC?nn.) 85 

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

J. Ch.) 305 

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

nay (Pa.) 816 



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GABBS BSPOBTJUD 



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

V. CPaO 818 

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

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

Crockett, Lemaire v. (Me.) 802 

GromweU t. Chance Marine Omst. Co. 

(Md.) 623 

Crook, BrunBman v. (Md.) 1010 

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

CroBsley, KitcheU v. (N. JO 179 

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

I.) 136 

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

Oillen T. Stoutth (Pa.) 937 

Camberland County Power & Light Co., 

Tnttle V. (Me.) 461 

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

Curtis. Careny y. (Pa.) 853 

Curtis, TibbetU v. (Me.) 1023 

Curtis. Vide y. (Me.) 966 

Curtis- Young Co. y. Crown Garage Co. 

(EL I.) 7. 136 

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

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

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

DaryiUe y. Board of CJhosen Freeholders of 

Essex County (N. J.) 275 

Dashiff, Schwartz y. (ponn.) 680 

Dayenhill, Ewalt V. (Pa.) 756 

Dayis, Mills y. (Cons.) 667 

Dayis, State y. (MeJ 208 

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

J.) 203 

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

y. (Pa.) 933 

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

J.) 618 

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

DelemoR, Mereness y. (Conn.) 8 

De liukacsevics y. De liukacsevlca (N. J. 

Ch.) 407 

Department of Health of New Jersey t. 

Monheit (N. J. Sup.) 413 

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

J. Ch.) 178 

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

De Wolf y. Bonee (Conn.) 233 

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

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

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

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

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

Doberty v. Russell (Me.) 306 

Dolker y. Board of Chosen Freeholders of 

Atlantic County (N. J.) 870 

Donnell, Lembo y. (Me.) 469 

Dooling, Appeal of (Pa.) > 314 

Doremns, Wolcott y. (DeL Oh.) 868 

Donia y. Lyoo (Conn.) 490 

Doten, Smith y. (Me.) 1058 

Dougherty y. Philadelphia Rapid Transit 

Co. (Pa.) 844 

Downs, MeNemey y. (Conn.) 494 

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

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

J.) 871 

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

Du PoBt De Nemours Powder Co. y. Spo- 

ddio (N. J. Sup.) 407 

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

Newark (N; J.) 10B3 

Eastern Peunsylyanta Rya. Co., Black y. 

(Pa.) 644 

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

y. ff'a.) 983 

JEJast Ridgelawn Cemetery, PaRsaic Trust & 

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

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



Pace 

Eckert y. Wc«t Orange (N. J.) 260 

Edelman y. CkvinelllPa.) 663 

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

Edmonds y. Chandler (Pa.) 459 

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

Edwards y. Petry Q?. J.) 105 

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

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

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

Spocidio (N. J. Sup.) 407 

Eiseie y. Raphael (N. J.) 200 

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

EUeford, Handel A Haydeu Building & 

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

EUiott y. Jones (DeL Ch.) 872 

EUiott y. Jones (Del. Ch.) 874 

BUis, Burr y. (Conn.) 17 

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

EJmery, Staples y. (Me.) 721 

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

(Pa.) 998 

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

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

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

(Pa.^ 823 

EispoBito y. Tammaro (Conn.) 23 

Estabrooks y. Estabrooks (Vt.) 584 

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

Eyans Marble Co. ot Baltimore City y. 

Abrams (Md.) 064 

Ewalt y. Dayenhill^a.) 766 

Fague y. Lee (R. L) 7 

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

Sup.) 406 

Fairview Heights Cemetery Ca y. Fay (N. 

J. Sup.) 406 

Ftomers' 4 Miners' Trust Oa, Beynolds- 

yille Water Co. y. (Pa.) 800 

Farnham y. Clifford (Me.) 468 

Famum y, Pennsylyania Ca for Insurance 

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

Farrand, Rankin y. (Me.) 833 

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

SnpO 406 

Fay, Fairview Heights Ometery Ca y. (N. 

J. Sup.) 406 

Federal Baseball Club of Baltimore, Bucher 

V. (Md.) 634 

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

Fessenden, Coombs y. (Me.) 466 

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



(Pa.) 
Mbr - 



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

(Pa.) 760 

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

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

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

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

Fisdier y. Taylor (Pa.) 818 

Fisher, Medoff y. (Pa.) 471 

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

Oh.) 411 

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

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

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

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

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

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

Flint, Butler v. (Conn.) 19 

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

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

Sup.) 1084 

Foote, Massey y. (Conn.) 499 

Ford v. Lehigh & Wilkes-Barre Coal Co. 

(Pa.) 958 

Forte ▼. G. B. Markle Co. (Pa.) 941 

Ft. Orange Barberlng Ca y. New Haven 

Hotel Cd. (Conn.). . . 805 

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

Four Ck)rners Building & Loan Ass'n of 

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



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Facet 
Fox Cihase Bank v. Wayne Jnnction Trust 

Co. (Pa.) 9T9 

Franklin Paper Mills Co., Stratford t. 

(Pa.) 849 

Fraser v. Fraser (N. J.) 58 

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

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

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

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

Ch.) 178 

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

Gaffney t. Illingsworth (N. J.) 243 

Gagne ▼. Massachusetts Bonding ft Insur> 

ance Co. (N. H.) 212 

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

Gallon ▼. Bums (Conn.) 604 

Oamsey ▼. Garnsey (Me.) 447 

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

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

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

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

Geissler v. Lauther (Pa.) ft48 

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

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

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

Getchell, Reddington t. (U. 10 1^ 

Gllroy, Appeal of (Pa.) 632 

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

Gischell v. Ballman (Md.) 698 

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

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

Godfrey y. Board of Chosen Freeholders of 

Atlantic County (N. J.) 67 

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

Goldstein y. Goldstein VN. J.) 249 

Gould, Rosenzwog y. ^d.) 665 

Graham, Harroun y. (Pa.) 985 

Grand Fraternity, Appeal of (Pa.) 1000 

Grandi y. BrunettI fN. J.) 1054 

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

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

Greene, Blouin y. (Vt.) 443 

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

Greer, Bolden y. (Pa.) 816 

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

Gromer y. George (N. J.) 263 

Gross y. Commercial Casualty Ins. Co. of 

Newark (N. J.) 169 

Guarrala y. Metropolitan Life Ins. Co. 

(N. J.) 298 

Guarrala v. Metropolitan Life Ins. Co. 

(N. J.) 300 

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

(^ j\ 332 

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

Hack y. Shoylin (Pa.) 956 

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

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

GUiines, Commonwealth y. (Pa.) 641 

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

J. Ch.) 612 

Hallstead, Appeal of (Pa.) 758 

Halpren, Perkins y. (Pa.) 741 

Hamilton CVtrp. y. Julian (Md.) 558 

Hammond y. Du Bois ()Id.) 012 

Hammond y. Hammond (Pa.)'. 855 

Hancock, Appeal of (Pa.) 934 

Handel & Hayden Building &, Loan Ass'n 

y. EUeford (Pa.) 951 

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

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

Cable Co. y. (Md.) 600 

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



Harper t. FhiladdpUa Bapld Tntiudt Go. 

(Pa.) 1004 

Harroun y. Graham (Pa.) 986 

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

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

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

Heiple, Beachey y. (Md.) 663 

Henderson y. Henderson (Md.) 601 

Henschke y. Moore (Pa.) 308 

Henschke y. Moore (Pa.) 311 

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

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

(Pa ) • 969 

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

HIU y. Keezer (Me.) 856 

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

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

HochschUd y. Cecil (Md.) 700 

Hoen y. KixU (Md.) 782 

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

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

Hogsett y. Thompson (Pa.) 941 

Hogsett y. Thompson (Pa.) 844 

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

(N. J.) 616 

Rome Life Ins. Co. of America, Kingston 

y. (Del. Ch.) 893 

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

Hope y. Kelley (Pa.) 978 

Homer y. Board of Com'rs of Margate Cit7 

(N. J. Sup.) 368 

Hott y. New Haven (Conn.) 498 

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

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

Hubbard v. Hubbard (Md.) 772 

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

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

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

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

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

Hunt, Borough of Haddon Hdghta t. (N. 

J. Sup.)_ 427 

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

Huntingdon Water Supply Ca, Borough ot 

Huntingdon y. (Pa.) 989 

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

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

Illinois Finance Co. y. Interstat* Rural 

Credit Ass'n (Del Ch.) 870 

Improved Building & Loan Ass'n r. LaiUn 

(N. J. Ch.) , 1043 

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

Ch.) 1030 

Inhabitants of City of Trenton, Trsoton & 

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

Sup.) 663 

InhaDitants of Ewlng Tp.< Trenton & 

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

Ch.) ' 1037 

Inhabitants of Town of Leeda^ McCarthy 

v., two cases (Me.) 448 

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

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

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

Jackson v. Myers (Pa.) 841 

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

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

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

Jennings, Metropolitan Life Ins. Co. y. 

(Md.) 608 

Jerolamon y. Belleville (N. JJ 244 

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

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

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

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

J'ob Haines Home for Aged People v. 

Keene (N. J. (Jh.) 612 

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

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



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Fact 

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

(DeL Cb.) 879 

Jones, ElUottT. (Del. Cb.) 872 

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

Joes ▼. Commonwealth (Pa.) 454 

Joseph V. Nnylor (Pa.) 846 

Julian, Hamilton Corp. ▼. (Md.) 658 

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

Kahn, Baer ▼. (KTd.) 596 

Kane, State v. (Del.) 239 

Kane Mfg. Co., Wood ▼. (Pa.) 78 

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

Kazarian Bros. v. Providence-Washington 

Ins. Oo. (R. I.) 221 

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

V. (N. J. Ch.) 612 

Keezer, Hill v. (Me.) 356 

Kelley, Hope t. (Pa.) 978 

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

Kelly T. Board of CSiosen EYeehoIders of 

Essex County (N. J. Sup.) 422 

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

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

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

(Pa.) 766 

Kidd, Hoen v. (Md.) 782 

King V. Brown (N. H.) 627 

King V. Thompson (Me.) 724 

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

Kingston t. Wilson (B. I.) 109 

Kinney, Rice v. (Pa.) 344 

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

KiteheU T. Crosaley (N. J.) 179 

Kleitz, Bupp V. (DeL Ch.) 878 

Klemmer, Frovident life & Trust Co. ▼. 

(Pa.) 351 

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

Koenigsberger y. Mial (N. J.) 184 

Koettegen t. Paterson (N. JJ 253 

Koontz, Commonwealth t. (Pa.) 863 

Konnan v. Trainer (Pa.) 1051 

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

Kaehne ▼. Brown (Pa.) 77 

LacoBS y. Lebanon (N. H.) 864 

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

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

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

Lane, Carville t. (Me.) 968 

Lang T. Wilmer (Md.) 706 

Lansing v. Campbell (R. I.) 1 

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

Lapriesta, Commonwealth v. (Pa.) 637 

Larkin, Improved Building & Loan Ass'n y. 

(N. J. ChO 1043 

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

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

Lauther, Geissler v. (Pa.) 648 

Lawrence ▼. Prosser (N. J. Ch.) 1040 

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

Lebanon Valley ConsoL Water Supply Oo. 

v. Commonwealth Trust Co. (Pa.) 630 

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

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

Lee y. Leitch (Md.) 716 

Lee, Ostman y. (Conn.) 23 

Lehigh Valley Cx>al Ciy., McMennimen t. 

(Pa.) 735 

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

cap V. (N. J.) 187 

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

(P^) .: 958 

Leitch, Lee r. (Md.) 716 

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

Lembd y. Donnell (Me.) 469 



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

Leslie V. Keene (N. H.) 661 

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

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

(Pa.) 988 

Lightcap y. Lehigb Valley B. Co. of New 

Jersey (N. J.) 187 

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

(N: J.) 263 

Lipps Co., Beckery. (Md^ 783 

Lipsitz, Worthington y. (Md.) 626 

Little, Pricey. (Pa.) 645 

Loeblein v. CJlements (Md.) 693 

Long Dock Co. y. State Board of Taxes and 

Assessments, two cases (N. J.) 367 

Long Dock Co. y. State Board of Taxes and 

Assessments, two cases (N. J.) 368 

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

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

Love, Appeal of (Pa.) 827 

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

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

Lung v. Sutton (Pa.) 458 

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

Lyons v. Walsh (Conn.) 488 

McAlpine y. McAlpine (Me.) .1021 

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

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

McCarthy v. Leeds, two cases (MeJ 448 

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

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

McCIenehan, Board of Police Com'rs y. 

(Md.) 786 

McClure, Smith y. (P«l) 347 

McCoach y. Sheehan (Pa.) 829 

McCoy, Appeal of (Pa.) 946 

McDermott v. Woodhouse (N. J.) 375 

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

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

McGee, McLaughlin y. (Md.) 682 

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

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

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

(R. I.) 129 

McHale v. Toole (Pa.) 988 

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

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

McKeuna v. Vernon (Pa.) 919 

Mackenzie, Bradford v. (MdO 774 

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

(Me.) 462 

McTvaughlin y. McGee (Md.) 682 

McMennimen y, Lehigh Valley XToal (3o. 

(Pa.) 735 

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

McNeill y. Frey (R. L) 7 

McNemey v. Downs (CoonA 494 

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

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

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

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

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

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

Mamatey, Commonwealth v.^Pa.) 731 

Manchester Tp. Sup'rs v. Wayne Connty 

Com'rs (Pa.) 736 

Manchester Traction, Light & Power Co., 

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

Mancinf. State V. (Vt.) 681 

Maniatakis' Estate, In re (Pa.) 920 

Mantell y. Echard (Pa.) 1049 

Marandft V. Gaulin (R. I.) 321 

Maikee v. Reybum (Pa.) 003 

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

Marquis, Weil v. (PaO 70 

Marshall, Nazareth Foundry & Machine Co. 

y. (Pa.) 848 

MarshaU, York y. (Pa.) 820 

Martin, Coast & Lakes Contracting Corp. y. 

. (Conn.) 602 

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

Martone, Tiemey T. (Conn.) 407 



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Pag* 

Maseachuaetta Bonding & Insurance Co., 

Betts V. (N. J.), 257 

Massachusetts Bonding & Insurance Co., 

Gagne V. (N. H.) 212 

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

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

Matiser, Appeal of (Pa.) 955 

Matter, Commonwealth v.- (Pa.) 648 

Maxwell v. Edwards (N. J.) 248 

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

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

Mereness v. Delcmos (Conn.) 8 

Merkel v. Merkal (N. J.) 1054 

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

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

Metropolitan Life Ins. Co., Guarraia y. 

(N. J.) 298 

Metropolitan life Ins. Co., Guarraia t. 

(N. 3.) 800 

Metropolitan liife Ins. Co. v. Jennings 

(Md5 608 

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

Michael v. Minchln (N. J.) 283 

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

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

Miller, Commonwealth v. (Pa.) 1006 

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

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

Mills T. Davis (Conn.) 657 

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

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

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

Mitchell, Wilhelm v. (Md.) 785 

Mitton, Wilson v. (Pa.) 316 

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

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

Moore, Appeal of (Pa.) 310 

Moore, Appeal of (Pa.) 818 

Moore, Henschke v. (Pa.) 308 

Moore, Henschke t. (Pa.) 31 1 

Moran t. Tucker (R. I.) 327 

More ▼. Milner (N. J.) 380 

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

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

Morgan v. Cleaver (.NId.) tilO 

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

Mosby, Thoencbe v. (Pa.) 98 

Mountain City Water Co. of Frackville v. 

Harleigh-Brookwood Coal Co. (Pa.) 734 

Mulhem v. Philadelphia Home-Made Bread 

Co. (Pa.). 74 

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

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

Murphy, Susquehanna Transmission Co. of 

Maryland v. (Md.) 791 

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

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

Murray v. Randall (Pa.) 055 

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

Myers, Jackson t. (Pa.) 341 

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

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

Naylor, Joseph v. (Pa.) 846 

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

Nell t; Godstrey (N. J.) 50 

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

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

Yoi-k T. (N. J.) .■ 392 

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

(N. J.) 1064 

New England Casualty Co., Standard Gas 

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

JJew Haven Hotel Co., Ft Orange Barber^ 

ing Co. V. (Conn.) 506 

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



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

(N. J. Ch.) 621 

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

Uc Utility Com'rs (N. J. Sup.) 4» 

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

J- Sup.) 1034 

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

,(N. J.) 1054 

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

v. (N. J. Ch.) 676 

New York & New Jersey Water (Jo. v. 

State Board of Assessors (N. J.) 168 

Nolan v. United Brotherhood of Carpenters 

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

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

Norman v. Prince (R. I.) 126 

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

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

Northwestern Pennsylvania R. (Do., Weil y. 

(Fa.) 1 812 

Ocean Accident & Guarantee Corp., Adle- 

man v. (Md.) 629 

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

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

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

Go. (N. J.) 892 

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

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

Osterhout v. Latham & Crane (Conn.) 494 

Ostman v. Lee (Conn.) 23 

Ott V. Connecticut Co. (CJonn.) 485 

Otto's Estate, In re jfPa.) 316 

Overholt, Power y. (Pa.) 738 

Owen V. Wilmer (Md.) 686 

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

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

Palese y. Palese (Del. Super.) 438 

Parian y. Olsson (R. I.) 106 

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

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

Parkview Building & Loan Ass'n of City 

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

Parmly, Fiedler v. (N. J. Sup.) S»l 

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

Pascucci V. Rossi (Conn.) 22 

Passaic Trust & Safe Deposit Co. y. East 

Ridgelawn Cemetery (N. J. Ch.) 1026 

Patterson v. Baltimore (Md.) 589 

Peck, Rhode Island Hospital Trust Co. r. 

(R. I.) 480 

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

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

(Pa.) 646 

Pennsylvania Co. for Insurance on Lives, 

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

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

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

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

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

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

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

Co. (Pa.) 970 

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

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

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

Perkins v. Bringhurst (Del. Super.) 438 

P°rkins v. Halpren (Pa.) ^ ^,vit ISi 

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

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

Pettis V. Pettis (Conn.) 13 

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

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

Philadelphia Hdme-Made Bread Co., Wein- 

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

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



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Pact 
FliiladelpUa Rapid TVasBit 0«., Donghertr 

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

Philadelphia iEuipid Transit Co!,' Harper V. 

(Pa.) , .....1004 

Philadelphia Rapid Transit Co., Williams v. 

(Pa.) 748 

Philadelphia Trust Coi v. Northnmberland 

County Traction Co. (Pa.) 970 

Philadelphia & Reading Coal & Iron Co., 

Poluskiewicz v. (Pa.) 638 

Philadelphia & Reading Coal & Iron Co., 

Wihner v. (Md.) B38 

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

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

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

Pickett ▼. Ruickoldt (Conn.) 82 

Pierson t. Pierson Engineering & Constrae- 

tion Co. (Conn.) 486 

Pierson Engineering & Construction Co., 

Pierson v. (Conn.) 485 

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

Steel Co. (Pa.) 1048 

Piatt ▼. Johnson (N. J. Ch.) 1035 

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

Poe v. Schlens (Md.) 688 

Poliiskiewicz v. Philadelphia & Reading 

Coal & Iron Co. (Pa.) 638 

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

Postal Telegraph Cable Co. t. Harford 

County Com'rs (Md.) 600 

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

Power v. Overholt (Pa.) 7.S3 

Prantl t. Junk (N. J.) 56 

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

Prendergast v. Walls (Pa.) 826 

Price T. Little (Pa.) 645 

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

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

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

Providence-Washington Ins. Co., Kazarian 

Bros. V. (R. I.) 221 

Provident Life & Trust Co. v. Klemmer 

(Pa.) 351 

Prudential Ins. O. of America, Duff v. 

ffi T ^ 871 

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

Randall, Murray t. (Pa.) 955 

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

Rankin v. Farrand (Me.) 833 

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

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

Beddington v. Getchell (B. I.) 123 

Beed, Babayan v. (Pa.) 339 

Beese, Commonwealth v. (Pa.) 949 

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

Beifly v. Wilkes-Barre (Pa.) 954 

Beybum, Markee v. (Pa.) 993 

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

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

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

(R. I.) 430 

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

Rdce V. Kinney (Pa.) 344 

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

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

Richards v. Shipley (Pa.) 456 

Biverside Turn Verein Harmonie t. Pat- 

erson (N. J.) 254 

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

J.) 263 

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

(N. J. Ch.) 1030 

Bodieeter Distilling Ca t. Geloso (ConnJ 600 



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

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

Bose T. Fitzgerald (N. J.) 202 

Bose, Parkview Building & Loan Ass'n of 

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

Bosenzwog v. Gould (Md.) 665 

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

Ross, Bowell v. (Conn.) 333 

Bossi, Pascucci T. (Conn.) 22 

Bounsaville v. Central R of New Jersey 

„(N. J.) 182 

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

Eowe, Carter v. (Conn.) 491 

Rowell V. Ross (Conn.) 333 

Rowland v. New York Stable Manure Ca 

_(N. J. Ch.) 621 

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

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

Hiiiokoldt, Pickett v. (Conn.) 82 

Rushford, Baker v. (Vt) 769 

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

Russell, Doherty v. (Me.) 305 

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

Saeger v. Commonwealth (Pil) 999 

St. John, South Norwalk Trust Co. t. 

„(Conn.) 961 

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

Sands v. Ruddick (N. J.) 268 

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

Saupp V. Streit (Pa.) 939 

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

(Pa.) ...; : 997 

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

Schellen, Appeal of (Conn.) 81 

Scherr, Commonwealth v. (Pa.) 949 

Schlens v. Poe (Md.) 688 

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

Schmitt V. Carbondale (Pa.) 756 

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

Oh.) 178 

Schuylkill County v. Wiest (Pa.) 761 

Schwartz, Commonwealth t. (Pa.) 99 

Schwartz v. Daahi£E (Conn.) 580 

Schwarzrock v. Board of Education of 

Bayonne (N. J. Sup.) 894 

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

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

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

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

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

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

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

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

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

Seitzinger v. Becker (Pa.) 650 

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

Shannon v. Watt (N. J.) 251 

Shapiro, State v. (Md.). 703 

Sheafer v. Woodside (Pa.) 753 

Sheehan, McCoach v. (Pa.) 829 

Sherburne v. Bougie (Me.) .- 355 

Shipley, Bichards v. (PaJ 456 

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

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

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

Shovlin, Hack v. (Pa.) 956 

SUver,JkIore v.JN. J.) 380 

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

Smith V. Doten (Me.) 1053 

Smith V. McClure (Pa.) 347 

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

Smith V. Smith (N. J.) 254 

Smith V. Tilton (Me.) 722 

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

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

Sommers v. Adelman (0>nn.) 7 

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



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Soulsby T. American CokmUation Soc. 

„(Md.) ...'..TT. 780 

South Norwalk Trust Co. ▼. St John 

(Conn.) 861 

Sp«icer V. Connecticut Biver Power Co, of 

New Hampshire (N. H.) 628 

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

Spofford V. Bickford (Me.) 470 

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

of Rhode Island (R. I.) 215 

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

J.) 518 

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

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

(Pa.) ., 823 

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

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

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

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

Stanton v. PittsburKh (Pa.) 822 

Staples V. Emery (Me.) 721 

State, Agricultural Soa of Montgomery 

County V. (Md.) 139 

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

State V. Castelli (Conn.) 476 

Stole T. Davis (Me.) 208 

State v. Fletcher (N. J.) 181 

State ▼. Hart (N. J.) 278 

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

State T. Jefferson (N. J.) Bfifl 

State ▼. Kane (Del.) 239 

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

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

State V. Mancini (Vt.) 581 

State T. Monetti (N. J.) 206 

State v. Nones (N. J.) 427 

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

State V. Shapiro (Md.) 703 

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

State T. Triplett (Conn.). 486 

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

State V. Vreeland (N. J.) 1055 

State T. Warner (Vt) 149 

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

Co. (Md.) 646 

State V. Weeks (N. H.) 35 

State Board of Assessors, New York & New 

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

State Board of Assessors, Suburban Inv. 

Co. T. (N. J.) 1055 

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

Sup.) 64 

State Board of Taxes and Assessment, 

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

Staush, Commonwealth v. (Pa.) 72 

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

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

Com'rs (Pa.) 731> 

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

Stoner.Norris (R.I.) 428 

Stougb, Cullen v. (Pa.) 937 

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

Streit, Saupp v. (Pa.); 939 

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

Stuart T. Burlington County Farmers' 

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

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

Suburban Water Co., Carter t. (MdJ 771 

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

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

Sunbury & S. R. Co., Pennsylvania Steel 

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

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



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

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

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

Swartz, Bixler v, (Pa.) 647 

Sweeting, Tnthlll ▼. (Pa.)..,. 989 

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

J.) 616 

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

Taber v. TalCott (R. I.) 2 

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

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

Tammaro, Esposito v. (Conn.) 23 

Taub V. Taub (N. J.) 246 

Tax Com'rs of Rhode Island, Spouting 

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

Taylor, Fischer v. (Pa.) 313 

Taylor, White v, (ConnJ 231 

Thayer, Villa v. (Vt.) 1009 

Thoenebe V. Mosby (Pa.) 98 

Thomas v. Thomas (N. J.) 1055 

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

Thompson, Hogsett v. (Pa.) 941 

Thompson, Hogsett v. (Pa.) 944 

Thompson, King v. (Me.) 724 

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

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

Thrasher v. Lawrence (N. H.) tviS 

Tibbetta V. Curtis (Me.) 1023 

Tiemey v. Martone (Conn.) 497 

Tilton, Smith v. (Me.) 723 

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

Title Guaranty & Surety Co. t. Fusco 

Const Co. (N. J.) 248 

Toole, McHale ▼. (Pa.) 988 

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

(Vt.) 1016 

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

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

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

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

Sup.) 417 

Town of West Hoboken. McCarthy v. (N, 

J. Sup.) 41T 

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

(Pa.) 883 

Township of Woodbridge, Middlesex Conn- 

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

Tracey, Appeal of (Pa.) 807 

Trainer, Herman v. (Pa.) 1051 

Trenton & Mercer County Tt'action Coip. 

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

Trenton & Mercer County Traction Corp. 

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

Trimble, Bergen v. (Md.) 137 

Triplett State v. (Conn.) 486 

Trustees of Trinity Union Methodist 

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

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

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

Tuthill y. Sweeting (Pa.) 989 

Tuttle V. Cumberland County Power & 

Light Co. (Me.) 451 

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

Oh.) 411 

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

R. V. (Vt) 1012 

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

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

Valentine, Warfield v. (Md.) 543 

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

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

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

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



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Verbovay Aid Ass'n's Charter, In re (Pa.) 932 
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Vernon, McKenna v. (Pa.) 919 

Viele T. Curtis (Me.) 966 

ViUa T. Thayer (Ytj 1009 

VUlase of Lyons v. Schlens (Md.) 688 

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

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

Wales, Erie Connty Pomona Grange No. 4 

v. (Pa.) 993 

Walla, Prendergast v. (Pa.) 826 

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

Warfield T. Valentine (Md.) 643 

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

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

Warner, State v. (Vt.) 149 

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

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

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

Owens (Md.) 632 

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

V. (Md.) 646 

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

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

Wayne County Com'rs, Manchester Tp. 

Sup'rs V. (P&.) 736 

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

T. (Pa.) 739 

Wayne Junction Trust Co., Fox Chase 

Bank v. (Pa.) 979 

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

J.) 882 

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

W«l T. Marquis (Pa.) 70 

Weil T. Northwestern PennsylTSnia R. Co. 

(Pa.) 312 

Weinschenk ▼. Philadelphia Home-Made 

Bread (3o. (Pa.) 926 

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

Western Nat Bank v. Jenkins (Md.) 667 

West Jersey Trust Co. t. Philadelphia & B. 

R. Co. (N. J.) 1065 

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



Fog* 
West Mahanoy Townshlp^s Contested EOec- 

ticm. In re (Pa.).. 946 

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

Wheeler, Merryman v. (Md.) 651 

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

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

White v. Taylor (Conn.). 231 

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

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

Whitney Co. v. Church (Coua.) 829 

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

Wiest, Schuylkill County ▼. (Pa.) 761 

Wllhelm V. Mitchefl (Md.) 786 

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

(Pa.) 966 

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

Williams v. Beltz (Del. Super.) 905 

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

Co. (Pa.) 748 

Wills V. Fisher (Pa.) 818 

Willis, Wilson ▼, (Md.) 694 

Wilmer, Lang y. (Md.) 706 

Wilmer, Owen v. (Md.) 686 

Wilmer y. Philadelphia & Beading Coal & 

Iron Co. (Md.) 638 

Wilson V. Hilliard (Md.) 603 

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

Wilson v. Mitton (Pa.) 316 

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

Wilson T. WiUis (Md.) 6SW 

Wolcott ▼. Doremus (Del. Ch.) 868 

Wood ▼. Carson (Pa.) 811 

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

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

Woodman v. Butterfield (Me.) 25 

Woodside, Sheafer v. (Pa.) 753 

Worthlngton v. Lipsitz (Md.) 625 

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

Tork T. Marshall (Pa.) 820 

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



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THE 



ATLANTIC REPORTER 

VOLUME 101 



Cl R. I. 847) 

LANSma et aL t. CAMPBELL. 



CNo. 374.) 



(Supreme Court of Rhode Island. June 12, 

1917. On Motion for Rehearing, 

June 28, 1917.) 

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

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

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

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

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

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

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

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



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

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

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



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

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

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

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

On Motion for Rehearing. 

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

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



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

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



(40 R. I. 338) 

(No. 398.) 
June 13, 



TABER V. TALCOTT et aL 

(Supreme Court of Rhode Island. 
1917.) 

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

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

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

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

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

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

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

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



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

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

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

Certified from Superior Coort, Providence 
and Bristol Counties. 

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

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

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

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

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

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

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

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

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



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

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

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

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

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



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

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

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

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

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

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

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



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

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

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

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

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



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TABEB ▼. TALCOTT 



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

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

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

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

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



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

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

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

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

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

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

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

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



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101 ATLANTIC RBPOETBB 



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

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

(40 R. I. 320) 

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

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

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

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

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

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

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

A portion of said copy of application Is as 
follows: 

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

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



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

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

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

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

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

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

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

The motion for reargument is denied. 



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SOMMEBS y. ADBLMAN 



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

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

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

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

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

PER CURIAM. Upon due consideration of 

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

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

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



McNeill t. fret. (No. 341.) 

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

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

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

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

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

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



an C(Hu. sw) 

SOMMERS T. ADELMAN. 

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

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

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

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

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

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

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



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

There is no error. 



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101 ATIiANTIO BEPORTEOt 



(Oona. 



(91 Oonn. tOi 

MESREtJESS T. DETLBMOS et tiz. 

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

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

rENSE. 

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

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

2. Assignments <g=9l04— Eqttities. 

The claim of an assignee is subject to the 

equities it would have been subject to bad tbe 

suit been brought in the name of the assignor. 

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

Cent Dig. $ 183.] 

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

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

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

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

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

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

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

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

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



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

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



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Conn.) 



CLiABK ▼. BAK£R 



9 



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

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

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

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

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



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

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

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

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

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



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

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

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

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

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

Wife's will devisine and bequeathing all her 
estate to her husband, his heirs and a f w ign s. 



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101 ATLANTIC REPORTER 



(Conn. 



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

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

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

EVIDKNCB— BKNKFICIAKT'S IlNDEBSTANDINa. 

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

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

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

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

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

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

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

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



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

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

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

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

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

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

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

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

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

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



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TOWN OF HAMDEN v. CITY OP NEW HAVEN 



11 



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

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

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

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

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

(81 Conn. 589) 

TOWN OP HAMDE:N v. C3ITX OP NEW 

HAVEN. 

(Sapreme Court of Errors of Connecticut 

June 1, 1917.) 

1. Taxatiow «=3217 — Exemption — MoNici- 

PAL PlfOPKUTT— CONSTBHCTION OF STATUTE. 

Gen. St 1002, f 2315, exempting municipal 

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

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

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

WITH POOK FABH. 

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



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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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



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101 ATLiAJnCIC REPOBTEB 



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

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

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

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

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

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



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

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

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

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

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

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



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PETTIS V. PETTIS 



13 



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

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

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

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

t«] G. S. S 2416, provides: 

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

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

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



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

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

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

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

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

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

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

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

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

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

3. DivoBCE €=»826— Matrimonial Domicile. 

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

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

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

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



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101 ATIANXIC aSPORXER 



(Conn. 



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

ITT. 

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

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

STATM— COMITT. 

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

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

Wheeler, J., dissenting. 

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

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

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

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

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

The alleged agreement of separation Is 



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



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

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



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Conn.) 



PBTTIS ▼. PETTIS 



15 



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

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

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



tion as a decree of the court of matrimonial 
domicile. 

Nevertheless the question still remains 
whether It ought to be received here as a 
matter of comity or of public policy. In 
Glldersleeve v. Glldersleeve, 88 Conn. 602, 92 
AU. 684, Ann. Cas. 1916B, 920, we held that 
an ex parte divorce granted In accordance 
with the laws of South Dakota to a plaintiff 
domiciled in that state would be given effect 
In our own courts as against a nonappeartng 
Connecticut defendant. That was a decree 
of absolute divorce which dissolved the mar- 
riage and left the parties free to marry 
again. It affected the marital status, and In 
that respect was something more than a mere 
personal Judgment In most of the states of 
the Union It Is held or assumed that marital 
status Is a thing of which a court may ob- 
tain a species of Jurisdiction quasi in rem by 
obtaining Jurisdiction in personam of one 
only of the spouses domiciled In the forum. 
So that, by virtue of the Jurisdiction thus ao- 
quired over the marital status common to the 
husband and wife. It may proceed to render 
a decree affecting the status of the absent 
defendant over whom it has no Jurisdiction 
in personam. The Supreme Court of the 
United States has recognized this theory and 
limited its application, so far as the constitu- 
tional validity of the decree in other states 
is concerned, to decrees rendered ex parte in 
the courts of the matrimonial domicile. Had- 
dock V. Haddo<^, supra. But, as that opinion 
points out, the courts of most states, includ- 
ing our own, recognize the validity of such 
ex parte divorce decrees when duly granted 
in the plaintiff's donridle, whether that be 
the matrimonial domicile or not. Perhaps 
the best reason commonly given for recog- 
nizing these ex parte decrees In cases where 
the spouses have separate domiciles Is that, 
when panted by a competent court In the 
plaintiff's domldle, according to the local 
law, they are necessarily valid within that 
state, because every state has an undoubted 
right to control the marital status of Its own . 
citizens according to its own laws ; and, that 
being so, It Is better that the state of which 
the other spouse is a dtlzen should waive Its 
sovereign right and recognize the validity of 
the decree in order to avoid the harsh conse- 
quences of a refusal to do so. 

As was said in Glldersleeve v. Glldersleeve, 
supra (88 Conn, on page 698, 92 Atl. on page 
687 [Ann. Cas. 1916B, 920]): 

"It is no light matter, as affecting Individual, 
social, or civic interest and good morals, that, 
through the attitude of the courts in refusing 
recognition of the judicial action of sister states, 
a condition should be created where legitimacy 
becomes dependent upon state lines, where wives 
in one state become concubines when they pass 
into another, where husband or wife living in 
lawful wedlock in one jurisdiction is converted 
into a bigamist by change of location, where 
persons capable of inheritance in one part of 
our country are incapable in another, where 
certainty of status may readily give place to 
uncertainty and property rights be thrown into 
confusion. * * * For the present we may not 



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101 ATLAinriC REPOaXBR 



(Conn, 



have nniform divorce letrislation, but we may 
contribute to a uniform treatment of divorced 
persons and tlieir children, and property anS 
property rights, by obeying the dictates of com- 
ity, and thus avoiding t£e unwholesome and 
harsh consequences which are the natural traits 
of the opirasite course." 

[4] It is apparent from the foregoing that 
the effect to be given to the New York de- 
cree of separation depends upon whether It 
is a Judgment purely in personam, or wheth- 
er it is a Judgment affecting the marital 
status. In the former case, it Is, as against 
the nonresident, nonappearlng husband not 
served with process, wholly void and en- 
titled to no consideration legally or for rea- 
sons of comity or public policy. If, how- 
ever, it affects the marital status, comity and 
consistency would require us to recognize it 
as valid in this state. 

[5] A decree for Judicial separation, when 
issued by a competent court having jurisdic- 
tion in personam over both spouses, is enti- 
tled to full faith and credit in every state, 
and will operate there as a bar to a subse- 
quent action for divorce on the ground of de- 
sertion, brought while the decree for separa- 
tion remains in full force. Harding t. Hard- 
ing, lOS U. S. 317, 25 Sup. Ct. 679, 40 L. Ed. 
1066. 

We are not, however, referred to any au- 
thority as to the extraterritorial effect of a 
decree for Judicial separation in a case where 
the court which granted the decree, not be- 
ing a court of the matrimonial domicile, had 
jurisdiction in personam of one spouse only. 
Hence we examine the question on principle. 

Historically the divorce a mensa et thoro 
was an ancient subject of ecclesiastical juris- 
diction In England, and the divorce a vinculo, 
which the church did not grant at all, was a 
much later remedy granted by act of Parlia- 
ment Xn 1858 the E}piscopal Jurisdiction in 
matrimonial causes was transferred to the 
crown, the name of divorce a mensa et thoro 
was changed to Judicial separation, and the 
^procedure for divorce a vinculo was transfer- 
red from i'arliament to a regular court. 
Westlake, Private International Law (5th 
Ed.) p. 89. ' 

In Le Mesnrier t. Le Mesurier, 1895 Ap- 
peal Cases, p> 617, the House of Lords for- 
mally confirmed the principle that Jurisdic- 
tion to dissolve a marriage was dependent on 
the legal domicile of the parties, and that 
residence abroad, however prolonged, when 
not accompanied by a change of legal domi- 
cile, would not give Jurisdiction to the local 
courts to grant a divorce a vinculo. Speak- 
ing of this case, Westlake says (pages 90, 91): 

"But after a period of uncertainty the opinion 
that divorce a vinculo, which affects the status, 
is so different from the old ecclesiastical divorce 
a mensa et thoro, which was administered for 
the health of the soul and did not affect status, 
that it must be subject to rules of its own, and 
the novelty of the action in England must be 
availed of to establish those rules on the sound- 
est principle, triumphed in Le Mesnrier t. Le 
Mesurier.** 



On the other hand, it was said In Arml- 
tage V. Armitage (1898 Probate, p. 178), that 
Jurisdiction in a suit for judicial separation 
need not be referred to the legal domicile of 
the parties, but that the action might be 
maintained in and a decree of separation 
granted by the courts of the place where the 
parties resided, though that was not their 
legal domicile. Incidentally the question 
whether the decree of separation affects the 
status was discussed. And in speaking of 
the ecclesiastical divorce a mensa et tUoro,. 
the court said: 

"A woman divorced from her husband a mensa 
et thoro and liring separate and apart from her 
husband remained a feme covert. The effect ot 
the sentence was to leave the legal status of the- 
parties unchanged." 

The court then discusses the question of 
whether the act of 1857, which had the fuiv 
ther effect of placing a wife, after a decree 
of Judicial separation. In the position of a 
feme sole in certain respects, had changed 
the situation so that a decree of separation 
did affect status, and reaches the conclusion 
that the decree of separation does not affect 
status in the sense that it can only be grant- 
ed in the courts of the legal domicile. In the 
present case it does not appear that the New 
York sentence of separation produced any 
change at all In the wife's legal capacity or 
property rights, and so, according to the Eng- 
lish view, it stands on the same basis as the 
old ecclesiastical divorce a mensa et thoro, 
and does not affect status. 

In this country there has been some con- 
flict of opinion upon the point; wlilch in Eng- 
land was covered by the act of Parliament, 
as to whether a divorce a mensa et thoro re- 
lieved the wife, temporarily, from the disa- 
bilities of coverture; but, with the possible 
exception of West Virginia, where a peculiar 
force and effect is apparently given to such 
divorces by tlie special provisions of their 
Code, the reported cases seem to agree that 
a decree of separation does not affect the 
marital status. 

"In our mind the Judgment of separation fronk 
bed and board ia not a final proceeding. The re- 
lation of husband and wife still tfdsts. A recon- 
ciliation may put an end to the judgment" 
State V. Ellis, 50 La. Ann. 559, 23 South. 445. 

"Such a divorce does not dissolve the mar- 
riage, though it separates the parties and es- 
tablishes separate interests between them. 
* * * The divorce is only a legal separation 
terminable at the will of the parties, the mar- 
riage continuing in regard to everything not 
necessarily withdrawn from its operation by 
the divorce." Dean v. Bichmond, 22 Moss. 401. 

"The decree of divorce a mensa et thoro be- 
tween the parties did not affect their status of 
marriage; it simply justified their separation." 
Drum V. Drum, 69 N. J. Law. 557, 55 Atl. 8«. 

"The parties still remained husband and wife 
in the eye of the law. • • • An action for 
limited divorce is really an appeal to a court of 
equity by one of the parties to a marriage con- 
tract for a modification of the marriage rela- 
tions, duties and obligations as they exist at 
common law." People v. Cullen, 153 N. Y. 629, 
47 N. E. 894, 44 L. B. A. 420. 



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Conn.) 



BUBK V. XIjUS 



17 



"The relation of Itnaband and wife ia not 
diasolTed. It only andergoes a vei7 inconvenient 
■nspension and which ia intended to operate aa 
a continual invitation to the parties to return 
to their first love." Chancellor Kent, Barrere 
T. Barreiv, 4 Johna. Ch. (N. I.) 187-197. 

Independently of authority, a decree that 
simply creates a terminable abnormal rela- 
tion between husband and wife cannot be said 
to afTect the underlying marital status. At 
any rate, we give to this decree of separation 
all the eiSect the New Tork courts claim for 
it when we treat it as a temporary or at least 
a terminable modification of the personal 
rights and obligations of the parties arising 
out of the marriage contract, without the 
slightest Intention of rescinding the con- 
tract Itself. It leaves the contract and the 
permanent contractual relation untoudied, 
and it excuses one of the parties from the ob- 
ligation of cohabitation, while still holding 
the other party to the performance of his 
other contractual duties. Such a decree must 
rest on the Jurisdiction of a court of equity 
to regulate the conduct of the parties before 
it From the wife's standpoint It Is a per- 
sonal license to refuse to live with her hus- 
band. In theory, a court of equity Inter- 
venes to protect her against the assertion oT 
a legal right on the part of the husband on 
the ground that it is unsafe and Improper to 
require her to submit to cohabitation. From 
the hurf»nd's standpoint, he Is, in efTect, pre- 
vented from exercising his right to cohabita- 
tion, although, as Chancellor Kent says, the 
right of cohabitation Is not destroyed, but Is 
merely suspended; and In theory a court of 
equity assumes the right to control his con- 
duct for the time being for the protection of 
his wife. 

Such being the nature and effect of the de- 
cree when both of the parties are before the 
court, it is difficult to see np<m what theory 
any extraterritorial effect can be claimed for 
the decree as against a nonresident, nonap- 
pearlng defendant not served with process. 

When both parties are before the court, the 
decree Is conclusive as to the Issues of fact 
upon which it Is based. Harding v. Harding, 
supra. But, In so far as it attempts to regu- 
late the future conduct of the parties, an ex 
parte decree for Judicial separation is neces- 
sarily local in its operation on the nonappear- 
Ing defendant. 

The state of New Tork has no right to regu- 
late, and we do not suppose this decree at- 
tempts to regrulate, the manner In which the 
nonresident, nonappearing husband should 
conduct himself toward his wife In Connecti- 
cut Hie decree does not purport to authorize 
or require Mr. and Mrs. Pettis to live In 
0«nnectlcDt In a state of marital celibacy un- 
known to our law. It merely purports to 
afford the wife a local protection against the 
assertion by her husband of his right of co- 
habitation. And, if we assume that in spite 
of its ex parte character it accomplishes that 



purpose, we give it aQ the efCect, ao far as 
Mr. Pettis is concerned, which can be claimed 
for It 

[I] We have thus shown that a decree of 
Judicial s^iaratfon does not affect status; 
that it is not a final decree, but is terminable 
at any time by the reconciliation of the par- 
ties; that It rests upon the Jurisdiction of 
equity to control the conduct of parties be- 
fore it, and that, in so far as It purports ti> 
regulate the conduct of a defendant not with- 
in Its Jurisdiction, It Is necessarily local In 
Its operation. Such a decree has no resem- 
blance to a Judgment In rem. It Is purely per- 
sonal, and therefore, as against a nonresident 
nonappearing defendant, entitled to no extra- 
territorial effect, by way of comity or other- 
wise. 

There Is no error. The other Judges con- 
curred, except WHBELEK, J., who dissented. 



an. Conn. 067) 



BURR V. ELLIS. 



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

1. Contracts *=»305(1)— Builwho Contsact 
—Taking Possession or Housb— Waivek oc 

STIPU1.ATI0N. 

The mere fact that the owner took posacasion 
of a house built for him and made a payment 
for extras did not necessnrily amount to a waiv- 
er of the stipulations of his contract, as a pay- 
ment made on a contract may or may not affect 
the contractual relations of the parties accord- 
ing to the circumstances of the case. 

[Ed. Note.— For other cases, see Contracts, 
Cent Dig. SS 1398-1400, 1467-1475.] 

2. Contracts ^=3304(2)— Bira.DiNO Contbact 

—Acceptance. 
In view of the facts, where a contract for 
the conatmction of a house provided that final 
payment was to be made when the work was 
completed to the owner's satisfaction, the owner's 
act m taking possession of the house and mak- 
ing a payment of $150 for extras was not such 
an acceptance as to relieve the builder from the 
performance of his work in a proper manner 
before he was entitled to payment of the bal- 
ance due him for his extra work. 

[E^. Note.— For other cases, see Contracts, 
Cent. Dig. H 1458-1464.] 

3. Costs «=332(5) — Codkts <8i=3l88(l) — City 
CoOBT— Double Jubisdictior. 

Under the act creatine the City court of Dan- 
bury (10 Sp. Laws, p. MO), the court has not 
two Jurisdictions, a justice and a common pleas 
jurisdiction, though the act provides that the 
court shall have dvil jurisdiction in all cases 
where the demand does not exceed $500, and 
shall have the same powers to proceed to tir, 
etc., and enforce judgment in all cases within its 
jurisdiction as the court of common pleas, and 
shall have concurrent jurisdiction with, and all 
powers by law conferred upon, justices of the 
peace, and that the same fees and costs shall be 
taxed, where the damages alle^red, etc., are $100 
or less, as are taxed by justices of the peace, 
and, where the damajres amount to more than 
$100, the same fees and costs shall be taxed in 
the city court as are taxed and paid in the 
court of common pleas, etc., and in an action for 
loss than $100, where the counterclaim was for 
from $100 to $500, the court properly allowed 



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101 ATLANTIC REPORTER 



(Conn. 



defendant andi costs as are taxed in ooart of 
common pleoa^ 

[Ed. Note.— For other cases, see Costs, Cent 
Dig. i 114.] 

4. Process e=>16&— Waivbb or Objbctiok. 

Where the cause of action and the parties 
were clearly within the jurisdiction of tne city 
court of Danbury, and plaintiff appeared and 
joined issue on defendant's counterclaim, and 
trial was had on the merits of sudi branch of 
the case, any objection that plaintiff might have 
taken to the process was waived. 

[Ed. Note.— For other cases, see Process, Cent 
Dig. g§ 250-255.] 

Appeal from City Court of Danbury ; John 
R. Booth, Judge. 

Action by Stephen M. Burr against John 
Q. Ellis. From a Judgment for plaintiff on 
four counts of the complaint, and for de- 
fendant on his counterclaim, plaintiff ap- 
peals. No error. 

Action upon a building contract and to re- 
cover the reasonable value of extra work and 
materials, brought to the city court of Dan- 
bury and tried by Booth, J. Judgment for 
the plaintiff upon four counts of his com- 
plaint for $11.75, and for the defendant upon 
his counterclaim of $50, awarding the de> 
fendant $38.25 and costs, from which the 
plaintiff appealed. 

Aaron T. Bates, of Danbury, for appellant. 
Robert S. Alexander, of Danbury, for appel- 
lee. 

RORABACK, J. The plaintiff brought his 
action alleging a full performance of his con- 
tract and claimed a balance due of $37.96 
for extra work and materials. The defendant 
in his answer denied full performance upon 
the part of the plaintiff and several of the 
claims for extra work and materials de- 
scribed in the plaintiff's complaint It was 
also averred by the defendant In his answer 
that the plaintiff had failed and neglected 
to perform several Items of work called for 
In his agreement In his counterclaim, filed 
with his answer, the defendant alleged that: 

"During the progress of said work, the plain- 
tiff and defendant agreed that a canvas roofing 
should be placed on the rear balcony roof. The 
plaintiff so negligently and unskiU£ully per- 
formed said work that said roof has always 
leaked." 

An answer to this paragraph of the coun- 
terclaim was filed by the plaintiff which 
stated, among other things, tltat the plaintiff 
on or before October 1, 1911, duly completed 
his contract and delivered the house into the 
possession of the defendant who accepted 
the same and paid the plaintiff in full for 
the original contract. The allegations as to 
the Improper performance of the work con- 
nected with the canvas roof were denied. 
A reply was filed by the defendant which 
denied the acceptance of the house by him. 
These allegations and denials put in issue 
all the facts necessary to raise the question 



of the acceptance of the house by the defend- 
ant Upon this question the trial court found 
for the defendant 

The reasons of appeal impute error to the 
court below upon the question of acceptance 
upon the ground that it was not put in issue 
In the pleadings, and further that the find- 
ing shows that the defendant accepted his 
house and paid the plaintiff for building the 
same and thereby waived any claim for dam- 
njjps which he has set forth in his counter- 
claim. 

[1] In this connection, the record discloses 
that the court below found that when the de- 
fendant paid the balance of the contract 
price on August 5, 1911, he was well aware of 
the omission of the plaintiff to perform his 
work, but nevertheless waived the same and 
accepted his house as then completed, ex- 
cept in so far as a canvas roof hereinafter 
described was concerned. During the prog- 
ress of the work, the plaintiff and the de- 
fendant agreed that a canvass roofing should 
be placed on the rear balcony of the defend- 
ant's house in lien of the tin roof specified 
in the contract This canvas roofing was 
placed on the roof in such an Improper and 
unskillful manner that it has leaked when- 
ever rain has since occurred. The defendant 
was not aware of the defects in this roof at 
the time of final payment on August 5, 1911, 
not having learned of them until afterwards, 
and he did not accept his house In so far as 
this canvas roof was concerned. After the 
defects in this roofing were discovered by 
the defendant and before the payment of $150 
on March 9, 1912, for extras he made several 
requests to the plaintiff to remedy the same ; 
but the plaintiff at all times neglected to do 
so. The mere fact that the defendant took 
possession of his house does not necessarily 
amount to a waiver of the stipulations of 
the plalntifTs contract 9 C. J. 761, and 
cases cited in note 6; 15 A, O. 970, and 
cases cited In notes 972, 973, 974. A payment 
made upon a contract may or may not affect 
the contractual relations of the parties, ac- 
cording to the circumstances of the case. 
Pratt V. Dunlap, 85 Conn. 180, 185, 82 Atl. 
195; Flannery v. Rohrmayer, 46 Conn. 558, 
559, 560, 33 Am. Rep. 36. 

[2] The contract In the present case pro- 
vides that final payment is to be made when 
the woric is completed to the satisfaction of 
the owner. Under the facts disclosed by the 
finding, the action of the defendant In taking 
possession of the house and in making the 
payment of $150 was not such an acceptance 
as to relieve the plaintiff from the perform- 
ance of hia wotlc In a proper manner before 
he was entitled to the payment of the 
balance due to him for his extra work. 

The trial court has found the Issues for 
the defendant upon his counterclaim and that 
there is $50 due thereon. The finding eets 
forth the subordinate facts upon which It 



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BTTTIiER V. FLINT 



19 



bases this condnslon. An examinatiim of 
tbe flndlns shows that this conclnslon Is not 
legally inconsistent with the subordinate 
facts found, and the decision of the court 
below Is not controlled by any erroneous 
view of the law. Therefore we have reached 
the conclusion that there is no error upon 
this branch of the case. 

The plaintiff In the present case alleges 
a cause of action wherein the matter In de- 
mand is less than $100. The counterclaim 
filed by the defendant alleges a cause of ac- 
tion wherein the matter in demand is over 
$100 and less than $500. An act creating the 
dty court of Danbury (10 Sp. Laws, p. 1019, 
i 83) provides that: 

"Said city court shall have civil Jarisdiction, 
in all cases io law and equity where the matter 
in demand does not exceed five hundred dollars, 
* • * and shall have the same powers to pro- 
ceed to try, decide, and enforce judgment and 
execution in all cases within its jurisdiction, as 
the court of common pleas, and said city court 
shall have concurrent jurisdiction with, and all 
the powers now by low conferred upon justices 
of the peace. • • • The same fees and costs 
shall be taxed where the damages alleged, or the 
value of property or matter in controversy are 
one hundred dollars or less, as are taxed by jus- 
tices of the peace, and where sedd damages or 
value amount to more than one hundred dollare. 
the same fees and costs shall be taxed in said 
city court as are taxed and paid in the court of 
common pleas. * * * In the trial of all cases 
before the city court, whertin the matter in dis- 
pute exceeds one hundred dollars, the rules of 
practice in the court of common pleas, so far 
as the same may be applicable, shall govern." 

The court below in the judgment rendered 
alloweia the defendant such costs "as are 
taxed and paid In the court of common 
pleas." In this the plaintiff contends there 
was error. 

[31 The plaintiff claims that this case, 
whpn It was tried, was within the justice of 
the peace jurisdiction of the city court, and 
that the trial court erred In holding that it 
was within tbe common pleas jurisdiction of 
this court and in taxing such costs as are 
taxed and allowed as costs In the court of 
common pleas. The plaintiff's contention, as 
we understand It, Is that the dty court of 
Danbury has two jurisdictions, a justice and 
a common pleas one ; and that the defendant, 
by bis counterclaim, In effect accomplished 
the removal from one jurisdiction to another 
in the same manner as be might have re- 
moved the case to the court of ccHumon 
pleas. In other words, he conceives the city 
court of Danbury as two courts and not one. 
We are not prepared to accept sndi a proposi- 
tion. If we assume, however, that the plain- 
tlft Is right as to tlie dual form of tbe dty 
court of Danbui7, we cannot acquiesce In 
his conclusion as to costs. 

This counterdalm is, in substance, an action 
wherein afflnnatlve relief Is sought by the de- 
fendant against the plaintiff. In effect, it was 
an action brought by the defendant against 
the plaintiff. In thl» connection, our statutes. 



permitting the interposition of counterclaims, 
should be construed In connection with the 
statutes limiting the amount over which our 
different courts have jurisdiction. This limi- 
tation of jurisdiction necessarily applies to 
both of tbe parties to a case. 

[4] In the present case, the cause of action 
and the parties were clearly within the juris- 
diction of the dty cotirt of Danbury. The 
plaintiff appeared and joined Issue with the 
allegations of tbe defendant's counterclaim, 
and the trial was had thereon upon the 
merits of this branch of the case. Any ob- 
jection that might have been taken to tbe 
process or to its service was waived, Hotch- 
klss' Appeal, 32 Conn. 355. It follows there- 
fore that there was no error in holding and 
In taxing the same costs as are allowed In 
the court of common pleas. 

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

(91 Coan. G30> 
BUTLER T. PMNT et ah 
(Supreme Court of Errors of Connecticut 
June 1, 1917.) 

1. WrLUS 9=»47d — CowsTBUOTioN or Wnx 

AND CODIClIi— IKTENTION OF TBSTATOB. 

Where language used in a codicil is ambig- 
uous, construction thereof will depend upon the 
testator's intent, to be gathered from the wiU 
and codicil, read together in the light of circom- 
stances at time of execution. 

[Ed. Note.— For other cases, tee Wills, Cent. 
Diig. { 997.] 

2. Wills «=>538— Co nstbdction— Death of 
Devisee Contiouous— Time off Death. 

Where there is a devise to A., and in case of 
his death to B., the time of death referred to, in 
the absence of qualifying words or indications of 
a contrary intent, is death before testator's 
death. 

[Ed. Note.— For other cases, see Wills, Ctent. 
Dig. H 1162, 1302-1809.] 

3. Wills ®=»538— Con strtjction— Death of 
Devisee Contiguous— Time of Death. 

A codicil making a gift over to testator's 
nephews' in case his wife's niece, a devisee under 
the will, "should die without children or issue 
at the time of her death, held to refer to the 
devisee's death, either before or after testator's 
death, since at the time of the execution of the 
will the devisee was a minor not related by 
blood to testator, and in the event of her death 
before the testator the gift would have lapsed 
as provided in Comp. 1813, tit. 31, c. 1, i 4, 
while, in the event of her death after testator's 
death, the property would have passed by in- 
heritance to her heirs, who were strangers to 
testator's blood, who presumably occupied a dif- 
ferent position in his regard from that occupied 
by his next of kin, all of which were remembered 
in his will. 

[Ed. Note. — For other cases, see Wills, Cent 
Dig. K 1162, 1302-1309.] 

4. Wills <S=476— Corbtkuotiow of CIodicii. 
AND Will. 

A codicil making a gift over to testator's 
nephews, in case of death of his wife's niece, 
"in respect to the property and estate which in 
said will I have given" a devisee, the codicil pro- 
vision referred to all will provisions in favor of 
devisee. 

[Ed. Note.— For other cases, see Wills, Cent 
Dig. i 997.] 



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101 ATLANTIO BJSPOBTER 



(CioniL 



6. Pebfetdities «s>4(7)— LnoTATioir ov lawt 

Estate. 
A gift over to children of testator's broth- 
er, !□ case of a devisee's deatn without issue, 
did not contravene the statute against perpetui- 
ties, where the brother and all of hia children 
were then living, and all survived the testator, 
since the donees were competent to take when- 
ever the contingency might happen, and consid- 
eration of the contingency of devisee dying with- 
out issue was unimportant, since it did not hap- 
pen. 

[EM. Note.— For other cases, see Perpetuities, 
Cent. Dig. S 12.] 

Case Reserved from Superior Court, New 
Haven County; William S. Case, Judge. 

Action by Georgle L. Butler, executrix of 
Sarab V. H. Butler, against Albert F. Flint 
and others, administrators of the estate of 
children of Horace Hotchklss. Plaintiff ap- 
pealed to the superior court In New Haven 
county from orders and decrees of the court 
of probate for district of New Haven deter- 
mining distributees of testamentary funds, 
and directing distribution, and case reserved 
upon agreed statement of facts. Superior 
court advised to afDrm order and decree of 
probate court 

Samuel R. Hotchklss, of New Haven, died 
October 30, 1844, without Issua He was sur- 
vived by his widow, Sarah Hotchklss, and 
his next of kin and heirs at law were his 
brother Horace B. Hotchklss, now deceased, 
and Harriet E. H. Keep, daughter of a de- 
ceased sister. At the time of Samuel's death 
his brother Horace liad four living children, 
Charles S., James B., Emma, and Harriet E. 
No child was subsequently bom to him. 
They are now deceased, and the administra- 
tors of their several estates are the parties 
defendant 

Samuel left real and personal estate and 
a will, duly probated, executed October 19, 
1844, and a codicil thereto executed October 
20, 1844. By th< first paragraph of his 
will he gave $2,000 absolutely and the use of 
all the balance of his property to his widow 
for life or during widowhood. By the stx 
following paragraphs he made various be- 
quests, subject to the Interest of the widow, 
to sundry persons and charitable Institutions. 
By the eighth and tenth paragraphs be gave 
the remainder over in sundry pieces of real 
estate to his niece Harriet E. H. Keep. The 
ninth paragraph reads as follows: 

"I give and devise to Sarah V. H. Butler, the 
niece of my wife, and to her heirs, aQ my right 
and interest in the house and land, where my 
mother now lives; and also the east half of my 

farden lying next west of _ and adjoining said 
ouse, except a small undivided piece of land at 
the northeast corner; and I direct my said ex- 
ecutors to purchase for said Sarah V. H. But- 
ler the remaining rights and interest in said 
house and land, with the property of my estate, 
provided it can be bought at a price which they 
think reasonable, which, when purchased, I de- 
vise to said Sarah V. H. Butler and to her 
heirs; and in case they cannot purchase said 
right as above, then I direct them to purchase or 
build for the said Sarah a suitable and com- 
fortable house and lot of land, for which they are 



to pay from two to three thonsand dollars from 
my estate at their discretion, which last-men- 
tioned house and land I devise to said Sarah V. 
H. Butler and to her heirs; and in that case 
she is not to have my interest in the house and 
land where my mother lives, and said east half 
of my garden, but the same shall belong to the 
residue of my estate hereinafter disposed of." 

The eleventh and final disposing paragraph 
is as follows: 

"All the rest and remainder of my property, 
of every kind and nature, after the above lega- 
cies and devises are fully paid and satisfied, I 
give and devise to the said Harriet E. H. Keep, 
and to the said Sarah V. H. Butler, and to their 
heirs, to be equally divided betwe«i them, share 
and share alike." 

The codicil, after republishing and reaf- 
firming the will except as therein altered, 
provides for the payment to his mother of 
$100 annually during her Ufe, and then pro- 
ceeds as follows: 

"With respect to the property and estate 
which in said will I have given to Harriet E. H. 
Keep and to Sarah V. H. Butler, it is my will 
that In case either of them should die without 
leaving children or issue at the time of their re- 
spective deaths, that then the property and es- 
tate given in said will to the one so dying with- 
out children or issue should go to the children of 
my brother Horace and their heirs, and in such 
case I hereby give and devise the same to the 
children of my brother Horace and to their 
heirs, to be equally divided among them." 

The real estate, which is the subject-mat- 
ter of the prortsions of the ninth paragraph, 
has been sold imder the authority of a reso- 
lution of the General Assembly of 1848. A 
portion of the proceeds of that sale, deter- 
mined upon and set apart by the court of 
probate, forms the fund now in the hands of 
the Union & New Haven Trust Company, as 
trustee, and is one of the two funds now In 
controversy. The other fund in its hands as 
administrator represents one-half of the rest 
and residue given by the eleventh paragraph. 

Sarah Hotchklss died In 1845. Sarab V. 
H. Butler, who was her niece, survived until 
June 11, 1915. Georgle Lu Butler, as execu- 
trix of her will, is the plaintiff herein. She 
claims that the two funds in the bands of 
the trust company form a part of Sarah But- 
ler's estate, which she, in her capacity as ex- 
ecutrix, is entitled to receive. The defend- 
ants, as administrators of the estates of the 
several children of Horace Hotchklss, daim 
to be entitled, to these funds in equal shares 
between them. The court of probate decided 
in favor of the latter contention, and passed 
its order of distribution accordingly. Other 
facts appearing of record are sufficiently 
stated in the opinion. 

George E. Beers, of New Haven, and Noah 
H. Browning, of Hudson, N. T., for plaintiff. 
Albert F. Flint, of Boston, Mass., and Thom- 
as Hooker, Jr., of New Haven, for defendants. 

PRENTICE, O. J. (after stating the facta 
as above). The property now in the bands 
of the trust company, as administrator and 



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trustee, in the form of cash awaiting dis- 
tribution to its' ultimate owners, r^resents 
that given to Barab V. H. Butler by the ninth 
and eleventh paragraphs of the will, and con- 
fessedly is to be distributed as the property 
80 given would have been if it had not been 
converted. 

The gifts made In these paragraphs In 
Sarah Butler's favor are undeniably absolute 
ior in fee, subject to the use of the testator's 
widow, long since terminated by her death. 
Were there no codicil, the two funds now in- 
volved, standing as they do in the place of 
the original property bequeathed and devised 
would belong to her estate, since she srarvived 
him. 

By the codicil provision is made for a dif- 
ferent disposition should Sarah Butler die 
without leaving a diild or issue at the time 
of her death, to wit, to the children of the 
testator's brother Horace and their heirs. 
By force of this provision, and by reason of 
the fact that Sarah Butler died without isi- 
sue, the administrators of Horace's four diU- 
dren, all of whom survived the testator, 
claim to be entitled to the two funds, and the 
court of probate, in passing the order appeal- 
ed from, accepted that view. 

The issues presented by the cfmflicting 
elaims of the parties involve three control- 
ling inquiries: 

(1) Does the language of the codicil, de- 
scriptive of the contingency upon the happen- 
ing of which the gift to the children of Hor- 
ace is made to become operative, refer to the 
death of Sarah Butler at any time or only 
to her death before the testator? 

(2) If Sarah Butler's death at any time is 
the contingency specified in the codicU, is 
the subject-matter of the gift over to the chil- 
dren of Horace comprehensive of that In- 
cluded in the gifts in favor of Sarah Butler 
contained in both paragraphs 9 and 11 or 
only in one of them? 

(3) If the gift to the children of Horace, 
as made, was one to take effect in the contin- 
gency of Sarah Butler's death whenever oc- 
curring, was it a valid or void one, in view 
of the statute against perpetuities in force 
at the time the will was executed? 

It is evident that the testator, when he 
determined to make a codicil to his will, ex- 
ecuted only seven days previously, was in- 
fluenced by some purpose to change bis pro- 
visions in respect to some matter which he 
regarded of sufficient inqwrtanoe to Justify 
him in that act That he intended to make a 
change in his dispositions previously made 
in favor of Harriet Keep and Sarah Butler 
is clear. The only question is as to the na- 
ture and extent of that change. Unfortunate- 
ly the language used by him to express his 
purpose is susceptible of two constructions. 

[1] The question, therefore, like all others 
where the construction of testamentary pro- 
Tisions is concerned, is one whose answer 



is to t>e found In the testator's intent, to be 
gathered as best it can from the will and 
oodicU themselves when read together, and 
in the light of the circumstances surround- 
ing him at the time of their execution. 

[2] Certain artificial rules are found in the 
books designed to aid in the search for tes- 
tamentarj' intent. One of these has had our 
repeated approval, to wit, that where there 
Is a devise to A., and in case of his death to 
B., the time of death referred to, in the ab- 
sence of qualifying words or other indica- 
tion of a contrary intent, is death before the 
testator's. Chesebro v. Palmer, 68 CJonn. 207, 
211, 36 Atl. 42; Webb v. lines, 5T Oonn. 154, 

156. 17 Atl. 90 ; Johnes v. Beers, 67 Conn. 295. 

303. 18 Atl. 100, 14 Am. St Rep. 101. In Law- 
lor v. Holohan, 70 Conn. 87, 90, 38 Atl. 903, 
this rule of presumption was extended so 
a;^ to be inclusive of cases where the devise 
to A., and in the event of his death without 
issue to B., and the statement was made that 
the rule so broadly applied is the well-set- 
tled one of this Jurisdiction. This statement 
of principle is invoked by the plaintiff. An 
examination of the eight cases cited in sup- 
port of the assertion made in Lawlor v. Hol- 
ohan shows scant basis for it Some of them 
are cases of the first class above referred to, 
and no broader rule of presumptive construc- 
tion is either applied or stated than one per- 
tinent to such a situation. Nearly all the 
others were disposed of upon the strength of 
the affirmative evidence of intent disclosed 
by the will, and without appeal to any rule 
of presumption whatsoever. The last one of 
the eight cases is Chesebro v. Palmer, with 
its- strong assertion of a doctrine quite con- 
trary to that of tawlor v. Holohan. In the 
former case the general subject involved Iiad 
a full and exhaustive discussion. The con- 
clusion was reached that cases where the 
gift over is made In the contingency of the 
death of the first devisee without issue are 
to be distinguished from those where the con- 
tingency is the death of the first devisee 
merely; and that the rule of presumption to 
be applied in the former class of cases, in the 
absence of other indication of testamentary 
intent is that the death without issue of the 
first devisee has reference to his death under 
all circumstances. Page 213. The essential 
difference between the two classes of the 
cases, pointed out in Chesebro v. Palmer, 
needs only to be called to one's attention to 
he appreciated, and the difference in the per- 
tinent rule of construction applicable to each 
follows as a logical consequence. 

In the present case, however, we are not 
driven to rely upon a rule of presumption. 
Such rules are helpful when the intent of 
the testator is not otherwise disclosed, but 
shorn of importance when it is. Chesebro v. 
Palmer, 68 Conn. 207, 213, 36 Atl. 42; Law- 
lor V. Holohan, 70 Conn. 87, 90, 38 Atl. 903; 
St. John V. Dann. 66 Conn. 401, 409, 34 Atl. 
110. 



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101 ATLANTIC REPORTER 



(Conn. 



[i3I llie present record Is not as inform- 
ing as it might be of facts pertinent to an 
Inquiry as to tbe testator's Intent, but they 
are by no means wanting. Tbe will was 
executed only eleven days before the testa- 
tor's death, and the codicil four. Whether 
or not Its execution was in anticipation of 
the early death, which so soon followed, we 
have no knowledge save as the facts stated 
may furnish an Indication. Both Sarah But- 
ler and Harriet Keep, whose name is as- 
sociated with hers tn the residuary gift and 
in the codicil pro\'ision, were, at the time the 
will was made, minors neither of them over 
seventeen years of age. Sarah Butler was 
not more than eleven. The latter young 
woman was not related by blood to the testa- 
tor, but was a niece of his wife. Harriet 
Keep was his niece and one of bis two heirs 
at law, the other being Horace Hotchkiss, 
whose children were made beneficiaries of 
the limitation over In the codicil. 

It will be noted that, under the will and 
the statute then In force (Compilation of 1839, 
tit 31, c. 1, { 4), the gifts to Sarah Butler, In 
the event of her decease before the testator, 
would have lapsed, and the property given 
to her have passed to his next of kin as 
Intestate estate. In the event of her death 
after his, the property would have passed 
by inheritance to her heirs, who were stran- 
gers to his blood, and presumably occupied 
a very different position in his regard from 
that occupied by his next of kin, all remem- 
bered in his will. That was a result which 
he might well have desired to avoid. By the 
terms of the codicil interpreted as a provi- 
sion for the contingency of Sarah Butler's 
decease whenever occurring. It would have 
been avoided, and the property given to her 
secured In that event to persons of his 
blood. 

Reading the will and codicil in the Jight 
furnished by these facts, we are unable to es- 
cape the conclusion that the testator's intent 
In the making of his codicil was to provide 
for the contingency of Sarah Butler's death, 
whether before or after his own, and espe- 
cially in the latter event, and that such In- 
tent is sufficiently apparent to call for that 
construction of his language. 

[4] The language of the codldl is too defi- 
nite and distinct to admit of doubt or uncer- 
tainty as to the comprehension of the subject- 
matter of both the gifts in favor of Sarah 
Butler contained In the ninth and ele\'enth 
paragraphs of the will, within the scope and 
operation of the codicil. When the testator 
makes provision "In respect to th? property 
and estate which in said will I have given 
to Sarah V. H. BuUer," there is neither am- 
biguity nor lack of precision in his language, 
and there Is nothing to Indicate that it was 
used to convey any other than its ordinary 
and natural meaning. 

[t] The only gift expressed in that portion 
of the codicil under review is one to the chil- 
dren of the testator's brother Horace. Hor- 



ace was then li\-lng; so were all of his chil- 
dren, and he and they all survived the tes- 
tator. That gift in Itself certainly did not 
contravene the statute against perpetuities. 
Tbe donees were competent to take when- 
ever the time should come. If it ever should, 
when their right to do so had become fixed 
by the happening of the contingency specified. 
In so far as the gift to these children cut 
down or changed the character of those In 
favor of Sarah Butler contained In the will 
so that the will, when read in connection 
with the codicil was made to bestow some- 
thing less than a fee In lands and absolute 
estate in personalty, it appears that any pos- 
sible Invalidity attached to the title thus 
attempted to be bestowed could not reach 
the estate given to Sarah Butler. Whether 
or not the language of the will Is capable of 
a construction by which an alternative gift 
was made to the "heirs" of Horace's children 
In the event that the children should die not 
having taken a vested estate and whether 
or not such gift, if made, would be a valid 
one, are wholly unimportant questions. Hor- 
ace's children, having survived the testator, 
lived to taktf a vested interest, which, upon 
Sarah Butler's death without issue, became 
an Indefeasible absolute estate. 

The superior court Is advised to render 
Judgment affirming the order and decree of 
the court of probate. 

No costs In this court will be taxed in fa- 
vor of any of the parties. 

In this opinion the other Judges concurred. 



(91 Coon. &98) 
PASCUCCI V. ROSSI et al. 

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

Dills and Notes <S=>4SJ>(7>— Pleading and 

Pbook— Vabiance. 
There is no variance between a complaint al- 
leging that defendant made his note payable to 
tbe order of another as attorney and agent of 
plaintiff and proof that the note was made sim- 
ply to such other person, since the words in tho 
complaint "attorney and agent for the plaintifT' 
should be construed as descriptive only. 

[Ed. Note.— For other cases, see Bills and 
Notes, Cent Dig. H 1617-1642.] 

Appeal from City Court of New Haven; 
John R. Booth, Judge. 

Action by Vincenzo Pascucd against An- 
tonio T. Rossi and others on a note. Facts 
found and Judgment rendered for tbe plain- 
tiff for $382.73, and tbe defendant named 
appeals. No error. 

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

RORABACK, J. The plalntlfrs cause of 
action Is described In his complaint as fol- 
lows: 

"On February 1, 1916, tho defendant A. T. 
Rossi made his note dated on that day and 
thereby promised to pay to the order of one 



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OSTMAN ▼. LEB 



Isadore W. Resnlk, attorney aad agent of tho 
plaintiff, the sum of $380, three months after 
date, at the Mechanics' Bank, New Haven." 

Tbe language of tbe note which was In- 
troduced in evidence against the objection of 
•the defendant was that: 
"380.00 New Haven, C<mn., Feb. 1, IMS. 

"Three nonths after date I promise to pay 
to the oi\.cr of Isadore \V. Rcsnik, three hun- 
dred and eighty (?.3»SO.OO) dollars, at the Mechan- 
ics' Bank, New Uavcn, Connecticut. 

"A. T. Bossi." 

The defendant contends that the allega- 
tion of the complaint was that the defendant 
promised to pay to the order of one Isadore 
W. Resnlk, attorney and agent of the plain- 
tiff, the sum of ?380. The proof offered by 
the plaintiff was a note drawn to Isadore 
W. Resuik alone, and indorsed by him to the 
plaintiff, whose name did not appear there- 
on. It is claimed that the allegations in the 
complaint were not supported by the proof, 
and that the variance was fatal. 

The plaintiff's complaint does not purport 
to contain an accurate description of the 
note. The words "attorney and agent for the 
plaintiff" should be construed as descriptive 
of the capacity in wliich Besnik was acting 
for the plaintiff. 

These words fully apprised the defendant 
of the facts upon which the plaintiff under- 
toolc to rely, ^nils was good pleading. 

Acts and contracts may l>e stated ac- 
cording to thdr legal effect, but in so doing 
the pleading should be such as fairly to 
apprise the adverse party of the state of 
facts which It Is Intended to prove. An 
act or pror'se by a principal (other than a 
corporation^ If in fact proceeding from an 
agent known to the pleader, should be so 
stated. See Jacobson v. Hendricks, 8.3 Conn. 
120, 127, 75 Atl. 85; Clark v. Wooster, 79 
Conn. 120, 131, 64 AU. 10. That being so it 
necessarily follows that the plaintiff's cause 
of action was properly stated In his com- 
plaint, and that there was no variance be- 
tween allegation and proof. 

The finding of the court Ijelow fully dis- 
poses of the defendant's claim that the note 
In question was never indorsed by the plain- 
tiff as alleged In the complaint. 

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

(91 Conn. 600) 

ESPOSTTO T. TAMMARO. 

(Supreme Court of Errors of Connecticut. 
June 1, 1017.) 

Appeal and Erbob ©laieO— Resebvation of 
Grounds of Review — Consideration of 
QtiBSTioNS Not Made Below. 
Where the (^nestioas of law attempted to be 

raised in the assignments of error were not made 

in the conrt below, the assignments will not be 

considered. 

[E!d. Note.— For other cases, see Appeal and 
Error, Cent. Dig. $§ 1018-1034.] 



Appeal from Superior Court, New Haven 
County; Joseph P. Tuttle, Judge. 

Action by Vincenzo Esposito against Julia 
Tammaro. From a Judgment for plaintiff, 
defendant appeals. No error. 

Robert J. Woodruff, of New Haven, for ap- 
pellant Charles L. Brooks and Harry L. 
Brooks, both of New Haven, for appellee. 

PER CURIAM. The assignments of error 
do not merit consideration; as it appears 
that the questions of law which are attempt- 
ed to be raised therein were not made in the 
court below. 

There is no error. 



(91 Cionn. 731) 
OSTMAN V. LEB. 

(Supreme Court of Errors of Connecticut. 
June 14, 1917.) 

1. Sales «=>178(3)— Accbptancb— Evidbscb— 

SufTICIENCT. 

Assuming that defendant agreed to store a 
car for plaintiff, and to purchase it, if found 
suitable, within a few months, his retaining: the 
car for over a year without requiring plaintiff 
to remove it, and his advertising it for sale with 
property of his own, constituted in law an ac- 
ceptance, which he could not afterwards with- 
draw. 

[Ed. Note.— For other cases, see Sales, Cent 
Dig. I 453.] 

2. Courts «=>190(2) — Scopb of B«yniw — 
Judgments Appealable. 

11 Sp. Laws 1803, p. 166, establishing a 
court for the town of Stonington, and section 
24 thereof, as to trials and appeals, give a right 
of appeal identical with that existing in the 
case of a decision in a related matter by a judge 
Of the superior court 

Appeal from Town Court of Stonington; 
Lorenzo D. Fairbrotber, Judge. 

Action by Frederick Ostman against Harry 
P. Liee. From an order setting aside a ver- 
dict for defendant, defendant appeals. Ko er- 
ror. 

Benjamin H. Hewitt, of New London, for 
appellant Herbert W. Rathbun, of Mystic, 
for appellee. 

PER CURIAM. Tbe motion to erase the 
appeal because of Its failure to contain a 
prayer for relief is not well taken. We have 
recently passed upon the precise point and 
the reasons there stated are equally applica- 
ble here. Douthwright v. Champlin, 91 Conn. 
524, 100 Atl. 97. The motion to set aside 
the verdict was properly granted. 

The plaintiff offered evidence to prove that 
the defendant, after examination, on May 5, 
1915, agreed to purchase an old automobile 
belonging to him for $150, payable in two 
weeks; that the defendant took the automo- 
bile into his possession on the same after- 
noon, and stiU retains it and has paid no 
l>art of the purchase pricjs. The defendant 



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101 ATIiANTIC REPORTER 



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offered evidence to prove tbat he agreed Trith 
the plalntift to store the aatomobile until 
fall, free of charge, and If, upon examina- 
tion, it was then found to be In good condi- 
tion, and he could use it, he would purchase 
it, and pay for it $150, and that In Novem- 
ber, 1915, he found the automobile was not 
what he could use. If the decision of the 
case depended exclusively upon the weighing 
of these respective claims in the light of the 
probabilities, and of the character and qual- 
ity of the testimony, we should hold that 
these were considerations for the jury, and 
that the trial court was without authority to 
substitute its Judgment for that of the Jury. 
But the defendant's own testimony was that 
he had kQ>t possession of the automobile 
from May 5, 1915, to the trial, January 2, 
1917, and had neither returned it to the 
plaintiff, nor told him to take it away, and 
tliat, although he had frequently i>assed the 
plaintiff's place of business, he had not called 
upon him or told him the automobile was 
unsatisfactory, but had advertised it for sale 
together with other property of his own. 

[1] Assuming that the Jury found the 
agreement of sale as tlie defendant claimed, 
his subsequent conduct in not Informing the 
plaintiff, in the fall of 1915, that the auto- 
mobile was not in good condition, and that 
he could not use it, and in assuming owner- 
ship over it by keeping possession of it down 
to the trial, and by advertising it for sale 
as bis own, constituted in law an acceptance 
of the automobile by the defendant He 
cannot now be permitted to withdraw from 
a sale long since consummated. The ground 
of the decision of the trial court would be 
di£Bcult to Justify; the decision Itself was 
right 

[2] Upon the argument the plaintiff claim- 
ed that the act establishing a town court of 
Stonlngton, ai^roved April 6, 1893 (Special 
Laws, volume 11, p. 166), does not provide 
for an appeal from the decision granting a 
motion to set aside a verdict As we read 
section 24 of this act, we think that it in- 
tended to give and did give a right of ap- 
peal identical with that existing in the case 
of a decision in a related matter by a Judge 
of the superior court 

There is no error. 



(116 He. 97) 

ZOBES T. INTERNATIONAL PAPER (X). 

(Supreme Judicial Court of Maine. June 20, 
1917.) 

1. Masteb awd Servant «=»281(9)— Contrib- 
tJTOBT Nkgugencb— What Constitutes. 
Evidence that a Russian laborer, unable to 
read English, entered an elevator shaft four 
days after entering defendant paper company's 
employment and was crushed by a descending 



elevator, does not sustain a finding of contribn- 
tory negligence, although there was a warning 
sign in English at the shaft's entrance. 

[Ed. Note.— For other cases, see Master and 
Servant Cent Dig. SS 993. 996.1 

2. Masteb and Servant iS=»121(7), 157— Neo- 
LIOENCE OF Masteb— What Constitutes. 

Defendant paper company employing a lar^e 
number of illiterate foreigners held negligent in 
maintaining an unlighted elevator shaft opening 
guarded only by a warning sign in EugUsb, 
which an injured employ^ could not read. 

USA. Note. — For other cases, see Master and 
Servant Cent Dig. U 230, 303.] 

3. Damages <8=»132(1)— Personal Injuries. 

$4,000 damages is not excessive for injuries 
causing a laborer to be confined seven months in 
the hospital, to undergo a serious surgical op- 
eration costing $400 or $500, and for impairment 
of earning ability in the fnture due to practical 
loss of use of both legs. 

[EM. Note.— For other cases, see Damages, 
Cent Dig. i 372.] 

Exceptions from Supreme Judicial (Tourt, 
Oxford County, at Law. 

Action by Tones Zobes against the In- 
ternational Paper Company. E^m an order 
of nonsuit plaintiff excepts. Exceptions 
sustained, and Judgment for plaintiff in the 
sum of $4,000. 

Argued before OOKNISH, BIRD, HALEY, 
HANSON, and MADIQAN, J J. 

William A. Oonneilan and Wilbur a 
Whelden, tK>th of Portland, for plaintiff. 
WllUam H. Gulliver and Arthur L. Robin- 
son, both of Portland, for defendant 



MADIQAN, J. A laborer in the employ of 
the defendant In March, 1915, entered the 
bottom of an open elevator well in the de- 
fendant's mill at Rumford to urinate, and 
was injured by a descending elevator. Com- 
ing to this country from a small rural town 
in Russia, he had worked for eight months 
piling boards in the Pullman yards in Chi- 
cago, after which be worked on a farm until 
entering the defendant's employ, where he 
had been four days at the time of the ac- 
cident; his work with the defendant con- 
sisting in loading and unloading pulp wood 
in the yard and in the mill. He was 25 years 
of age, unable to read English, and speaking 
it very slightly. 

The stoneroom, 80 called, in the basement 
of the mill, contained a number of lockers 
in which employes kept their clothes and 
lunch boxes. While this room tiad four out- 
lets for electric lights, and one before the 
shaft, but one light was in commission at 
the time of the accident The well was seven 
feet wide and thirteen feet long, and opened 
directly into the stoneroom, from which came 
its only light There were no wheels or 
machinery in the lower part of the well, the 
floor of which was clay, covered to a certain 
extent with waste and paper scraps, and 



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WOODMAN T. BUTTEHFIELD 



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some inches lower tban the concrete floor of 
the atoneroom to the level of which the floor 
of the elevator could be brought. This ele- 
vator was little used at nlg<ht and was kept 
locked, so that when needed it was necessary 
to procure the key. 

The plaintiff was working on two consec- 
utive eight-hour shifts, from 3 in the aft- 
ernoon untU 11 at night, and from that hour 
until 7 In the morning. We do not under- 
stand that any special time was set apart for 
meals, but the laborers with whom he work- 
ed were accustomed to take certain time out 
for lunch. Having eaten at 11, at 6 in the 
morning he went to the stoneroom to eat 
again. There were no toilets in the stone- 
room, but in another part of the mill there 
were toilets, or troughs, of the existence of 
which the plaintiff testifies he had no knowl- 
edge. Not having had occasion to do more 
tlian urinate during the four days he had 
been at work, he never had searched or in- 
quired for toilets. Having seen one of his 
fellows go to the well to urinate the day 
before, as It had a soft, stinky bottom, he 
supposed it was not improper for him to do 
likewise. There was no gate or barrier 
across the opening into the well, but above 
the door or on one side of it was a sign 
printed in English, "Elevator, employes not 
allowed to use," signed by the corporate name 
of the defendant Having finished his lunch, 
he entered tlie well for the purpose above 
stated, and the man who ronoved chips, 
needing the elevator, started it downward 
from the floor next above, crushing the plain- 
tiff so seriously as to make necessary a seri- 
ous operation to the spine, and leaving him 
thereafter in such a condition that his legs 
are practically useless for hard labor for 
the balance of his life. 

[1] Under the conditions disclosed by the 
evidence, we do not feel that this foreigner, 
with no knowledge of mills and machinery, 
knowing nothing of the existence of the 
elevator, ignorant of the language In which 
the warning sign was written, fitted by his 
life and training to be a mere hewer of wood 
and drawer of water, was guilty of con- 
tributory negligence. He would not, as sug- 
gested, hear the doors at the various floors 
opening as the elevator descended, since, as 
shown by the testimony of the operator, the 
elevator started from the floor next above, 
so there would be no doors to open ; neither 
does it seem probable that he would retire 
to such a damp, ill-smelling place to slumber. 

[2] The defendant was at fault. For its 
roughest work it employed many illiterate 
laborers, of no high order of intelligence or 
refinement, of all nations and all tongues, 
needing for this work brawn and muscle and 
not brains. Their habits, customs, and train- 
ing should be taken into account, and their 
safety provided for. The shaft opening, 



though containing a serions hidden peril, was 
unguarded and unllghted. Located near the 
stoneroom, which was the only rest room 
of the plaintiff, and in which the plaintiff 
was properly at the time, the well was a 
trap against the danger of which the plain- 
tiff should have been guarded. The plain- 
tiff's exceptions to the order of nonsuit are 
therefore sustained. 

[3] According to the stipulation agreed to 
by the parties, the law court is to assess the 
damages. For seven months in the hospital, 
itt serious surgical operation costing $400 or 
$500, from which he received much benefit, 
and for the impairment of his ability to labor 
in the future because of the loss practically 
of all the use of his legs, we feel that $4,000 
damages are not exq^ssive. 

Exceptions sustained. Judgment for plain- 
tiff. Damages assessed at $4,000. 



(116 Me. 2U) 
WOODMAN V. BUTTERPIEIiD. 

(Supreme Judicial Court of Maine. June 21, 
1917.) 

1. Appeal and Erbob «=»8d5(l)— Scope or 
Review. 

Where the Supreme Court is to direct such 
a decree as the record requires, appellee may 
urge matters presented in the record, I)ut not 
sustained by the decree below. 
. [Ed. Note. — For other cases, see Appeal and 
iBrrw, Cent. Dig. §§ 3645, 3646.] 

2. cobfobations <s=>545(2) — insolvency — 
Pbefebences to Dibectors. 

An insolvent corporation cannot prefer a 
creditor who is also a director. 

[Ed. Note.— For other cases, see Corporatioas, 
Cent Dig. { 2170.] 

3. COBPOBATIONS 4s»342 — DnOiCTORS — LlA- 

BiLixr. 
Defendant's election as a corporation's di- 
rector did not make him sncli until he had no- 
tice, or was chargeable with notice, of that fact 
end until that time he was not liable for pay- 
ments received while the corporation was insol- 
vent. 

[Ed. Note. — For other cases, see Corporations, 
Cent Dig. H 1486-1488.] 

4. COBPOBATIONS <S=>361 — INSOLVENCY— StHT- 

FioiENCY OP Evidence. 
Defendant's testimony that he was notified 
of his election as a corporate director some time 
during February warrants a finding that he was 
so notified at the beginning of February, but 
does not sustain a finding of his notification at 
an earlier date. 

[Eld. Note.— For other cases, see Corporations, 
Cent Dig. { 1506.1 

5. Bankbuptoy <g=» 184(1) — Pbefebences — 
Fbaudulent Conveyances— State Laws. 

In an action by bankruptcy trustee to avoid 
fraudulent corporate transfers under Bankrupt- 
cy Act July 1, 1898^^ c. 541, § 70, cl. e, 30 Stat 
565 (U. S. Comp. St 1916, i 9054), authoris- 
ing him to avoid transfers which any creditor 
might have avoided, whether the transfers were 
fraiKlulent depends, not upon the Bankruptcy 



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101 ATLAMTIO BBPOBTBB 



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Act, bat upon the kws of the Mate where the 
transfers were made. 

[Ed. Note.— For other cases, see Bankruptcy, 
Cent Dig. I 275.] 

6. Insolvknct €=324— Definitioit. 

The term "insolvent," when applied to a 
person or corporation engat^ed in trade, means 
inability to pay debts as they fall due in the 
usual course ol business. 

[Ed. Note.— For other cases, see Insolvency, 
Cent Dig. { 29. 

For other definitions, see Words and Phrases, 
EHrst and Second Series, Insolvency; Inscd- 
voit] 

7. OoHPOBATioNa «=>538 — StmnoiKNOT or 
BviDBNCK— "Insolvency." 

Evidence that a corporation assumed the 
debts of its constituent companies, mortgaged 
the property for a large amount and issued 
bonds under the mortgage, that defendant direc- 
tor loaned it money to meet its pay roll, and 
that its bonds were authorized to be used as 
collateral at a rate not to exceed two for one, 
etc., held to sustain a finding that the corpora- 
tion was insolvent to defendant's knowledge in 
the sense that it could not pay its debts as 
they became due. 

[Ed. Note.— For other cases, see Corporations, 
Cent Dig. | 2161.] 

8. COBPOBATIONS <S=»542(3)— INSOLVBRCT— Dl- 
BECTOa'8 LlABrLlTT. 

A corporate director receiving payments on 
notes executed hjr the corporation to himself 
after the corporation was insolvent to his knowl- 
edge, is liable to the corporation's trustee in 
bankruptcy for the money so received. 

[Ed. Note.— For other cases, see Corporations, 
Cent Dig. { 2156.] 

9. COBPORATIONS «=»542(3)— INSOLTXNOT— Dl- 
BBCTOB'S IiIABIUTT. 

Evidence that an insolvent corporation's 
president offered to give defendant director 
bonds owned by the president individually and 
that the receipt for such bonds was given to the 

President as an individual held to sustain a 
nding that defendant received the bonds from 
the president individually, and not from the cor- 
poration. 

[Ed. Note.-T-For other cases, see Corporations, 
Cent Dig. I 2166.] 

10. cobpohations «=3642@) — irboltenot — 
Dibectob's Liabilitt. 

Evidence held to sustain a finding that bonds 
received by a corporate director after the cor- 
poraticm became insolvent were not merely an 
exchange of bonds, but constituted a payment 
on indebtedness due him by the corporation, 
where such indebtedness would be substantially 
discharged on such a theory, and no satisfactory 
reason for reducing it was given. 

[Ed. Note. — For other cases, see Corporations, 
Cent Dig. i 2156.] 

11. cobporations 4=»642@) — insoltxnct — 
Dibectob's Liabilitt. 

A corporate director is not liable to the cor- 
poration's trustee in bankruptcy for payments 
made by the corporation while insolvent on notes 
on which the director was an indorser, where 
such payments were not procured or urged by 
the director. 

[Ed. Note.— For other cases, see Corporations, 
Cent Dig. { 2156.] 

Appeal from Supreme Judicial Court, Ken- 
nebec Connty, in Equity. 

Bill by Walter I. Woodman, trustee In 
bankruptcy of the National Boat & Engine 
Company, against William W. Butterfleld. 



Decree for plaintiff, and defendant a]H>ealB. 
Affirmed as modified. 

Argued before SAVAGB, C. J, and COB- 
NISH, KINO, BIRD, HALEY, HANSON, 
PHILBROOK, and MADIQAN, JJ. 

Williamson, Burleigh & McLean, of Au- 
gusta, Wm. D. Washburn, of Chicago, 111., 
and William Carjjenter, of Muskegon, Mich., 
for appellant. Woodman & Whitehouse, of 
Portland, for appellee. 

KINO, J. Bill in equity wherein the plain- 
tiff, as trustee in bankruptcy of the National 
Boat & Ekigine Company, seeks to recover of 
the defendant the amount of certain pay- 
ments and the value of certain bonds alleged 
to have been obtained by him for his benefit 
from the corporation while he was a director 
thereof and when it was insolvent. The 
ground for recovery is alleged to be that the 
obtaining and acc^tance of said payments 
and bonds by said defendant or for bis bene- 
fit were In violation of his flduciaiy duty as 
a director of said bankrupt corporation and 
In fraud of the rights of Its creditors and 
stockholders. The case la before us upon 
an appeal by the defendant from the decree 
of the sitting Justice. 

No special finding of facts or summary 
of the issues Involved was filed with the 
decree. The record is voluminous. It om- 
tains many uncontroverted facts and circum- 
stances which are material to a dear un- 
derstanding of the particular Issues between 
the parties and Important to be considered In 
the determination of those issues. We will 
therefore at the outset brlefiy state some of 
those unquestioned facts and circumstances. 

In 1907 the defendant became connected 
with the Racine Boat-Manufacturing Com- 
pany, a corporation doing business at Mus- 
kegon, Mich. He was a large stockholder, 
a director, and the secretary of that company. 
The other directors were Walter J. Reynolds, 
his wife. Rose B. Reynolds, Paul B. Mc- 
Cracken, and Frank A. Wilson. Reynolds 
was Its president The capital stock of the 
company was ultimately $200,000, substan- 
tially all owned by the directors. The de- 
fendant, together with Reynolds and Mc- 
Cracken, indorsed notes of the company to 
a large amount January 8, 1900, that cor- 
poration made and delivered to Butterfleld 
a trust deed or mortgage of its property to 
secure him for his then existing indorsements 
as he should make for it, and for any notes 
given to him by the company. That trust 
deed was never recorded, and it was with- 
held from record for the reason that, U 
recorded, It would Impair the credit of 
the company ; but there was an understand- 
ing between the other directors and Butter- 
fleld that the trust deed was to be recorded 
whenever Butterfleld should determine that 
the company "was on Its last legs." 

In September, 1910, the National Boat & 



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WOODMAN T. BXTTTEBFnSLD 



27 



Bnglne Gompany was organized under the 
laws of Maine for the pvirpose of taking 
over the property and business of the Radne 
Company and of various other companies and 
concerns carrying on a similar business. 
The plan of consolidation was for the new 
corporation to take over all the assets of 
the constituent companies and concerns at 
an appraisal to be made, and to assume all 
the liabilities of each. The difference be- 
tween the assets and liabilities of each oon- 
stitnent was to be paid to it, or to Its stock- 
holders, in the bonds, the preferred stock, 
and the common stock of the new company 
In such proportions as the plan of consoUda- 
tion provided for. 

3. Q. Ross, attorney for the Racine Gom- 
t>any, Reynolds, its presid«it, and H. S. 
Beardsley, of New Tork, appear to have been 
active promoters of the consolidation, and 
Butterfleld was fully tnformed as to the plans 
and purposes of the consolidation from the 
beginning of the negotiations, be says that 
It was agreed at the outset between Ross, 
Beardsley, Reynolds, and himself that no 
mention should be made in carrying out the 
consolidation of the unrecorded trust deed 
which he held of the Racine Company's 
property, and that it was farther understood 
between them that after the new corporation 
had issued Its bonds the trust deed was to 
be exchanged for enough of those bonds, to 
be held In escrow, to cover all his contingent 
liability on notes of the Racine Company 
and all of Its direct liability to him. The 
consolidation was carried out as planned. 
Reynolds became president, Beardsley treas- 
urer, and Ross secretary of the new cor- 
poration, and each was a member of its board 
of directors. All the assets of the Racine 
Company were transferred to the new or 
National Company by conveyances warrant- 
ing the title thereto, and without mention 
of the unrecorded trust deed held by Butter- 
fleld. At the time of the transfer Butterfleld 
was liable as indorser or guarantor of the 
Racine Company's paper to the amount of 
about $100,000, according to his testimony, 
and that company was also Indebted to him 
for about $24,500 on notes given by It to 
him. 

The National CcHnpany authorized an Issue 
of not exceeding $3,000,000 of first mortgage 
bonds, to bear date October 1, 1910, and to 
be secured by a trust mortgage to the Astor 
Trust Company, of New Tork City, as trus- 
tee, covering all its property real and per- 
sonal, present and future. The mortgage was 
executed, and on January 18, 1911, was ac- 
cepted by the trustee. Some of the bonds 
were sold, and others were used as collateral. 

The National Company used the same office 
as the Racine Company, in Muskegon, Mich., 
until December, 1910, or January, 1911, when 
It changed its general office from Muskegon 
to Chicago. At a special meeting of the 
board of directors of the National Compcmy I 



held at the Congress Hotel In Chicago on the 
21st day of December, 1910, Butterfleld was 
elected a director of tlw corporation. He at 
tended the next meeting of the board of di- 
rectors held at Chicago on March 13, 1911. 
At that meeting the business afFalrs and the 
financial status of the corporation were pre- 
sented and discussed, and a resolve was passed 
that, when necessary to borrow money in 
order to obtain funds to meet bills or accounts 
payable, or to extend the time of payment on 
notes payable, the officers of the company 
might use the bonds of the company as col- 
lateral at a rate not to exceed two for one. 

At the time of the consolidation Butterfleld 
held two notes of the Racine Company, one 
for $14,500, dated August 4, 1910, maturing 
February 4, 1911, with interest paid to its 
maturity, and the other for $10,000, dated 
September 6, 1910, maturing December 6, 
1910, with interest paid to its maturity. Va- 
rious payments were made to him and for 
his benefit on account of those notes prior 
to April 6, 1911. On that day Butterfldd re- 
ceived $6,760, at par value of the bonds of the 
National Company. He admits that he re- 
ceived those bonds in full settlement of the 
balance then due on his two notes against the 
company, as then adjusted between him and 
Reynolds, its president And on or about 
the same date he received $3,650 at par value 
of the bonds of the National Company. 

It has already been mentioned that there 
was an understanding between Butterfl^d, 
Reynolds, Ross, and Beardsley that, after 
the consolidation was completed, a sufficient 
amount of the bonds of the new company 
should be exchanged for that unrecorded 
mortgage which Butterfleld held covering the 
Racine Company's property. In furtherance 
of that understanding, and in May, 1911, 
bonds of the National Company to the 
amount of $88,000, were placed in the hands 
of Cross, Vanderwerp, Foote & Ross, as trus- 
tees, to secure Butterfleld on his indorse- 
ments of the notes of the Racine Company, 
then amounting to about $44,000, and whi<di 
indebtedness the National Company had as- 
sumed. 

At a meeting of the board of directors of 
the National Company held August 25, 1911, 
a resolve was passed directing the president 
to admit in writing, for the company and 
in its name, its inability to pay its debts and 
Its willingnesa to be adjudged a bankrupt on 
that ground; and the petition in bankruptx^y 
was filed against it August 28, 1911. 

It appears that Butterfleld, having paid 
the notes of the Racine Company on which 
he was Uable as Indorser or guarantor, 
sought to have the $88,000 of bonds held by 
Cross, Vanderwerp, Poote & Ross proved as 
a claim against the bankrupt estate. The 
claim was disallowed on the ground that the 
trust deed for which the bonds were ex- 
changed, not having been disclosed in the 
consolidation proceedings, was Invalid as 
against the bankrupt corporation, and Its 



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101 ATIiAJ«TIO REPORTBB 



(Me. 



surrender did not constltnte a valid consid- 
eration for the delivery of the bonds in ex- 
change for It, and that such delivery was 
voidable for the farther reason that It coa- 
stituted a fraudulent preference of a director 
at a time when the bankrupt was Insolvent, 
and known to be so by the claimant. Butter- 
field ▼. Woodman (D. C.) 216 Fed. 208, affirm- 
ed as to that part of the decision In Butter- 
fleld y. Woodman, 223 Fed. 956, 139 a C. A. 
436. 

The plaintiff's claims presented by the rec- 
ord may be thus briefly stated: 

First. That Butterfleld became a director 
of the National Boat & Engine Company on 
December 21, 1910, when he was elected to 
that office; that the company was then, and 
thereafter continued to be, insolvent, and 
that he, as a director of the company, should 
have known that fact, and did know It ; that 
between December 21, 1910, and April 6, 
1911, varlons payments were made by the 
company to him directly, or for his benefit. 
In reduction of the two notes which he held 
against the company ; and that the plaintiff 
is entitled to recover of blm tn this action 
those payments, with Interest thereon, upon 
the ground that they were fraudulent tran» 
fers of the company's property to him. 

Second. That the $6,700 of bonds reoMred 
by Butterfleld on April 6, 1911, hi settlement 
of the balance due him on his two notes of 
the company were the property of the com- 
pany, and that the value of those bonds at 
the time they were converted by him, with 
interest thereon, is recoverable of him In 
this action upon the same ground of an un- 
lawful and fraudulent transfer of the com- 
pany's property to him. 

Third. That the $3,660 of bonds received 
by Butterfleld on or about April 6, 1911, be- 
longed to the company, and that their value 
at the time he converted them, with interest, 
is recoverable of him In this action for the 
same reason. 

Fourth. That divers sums of money were 
paid by the National Company after Decem- 
ber 21, 1910, In reduction of the amounts of 
various notes which that company had as- 
sumed and upon which Butterfleld was lia- 
ble as Indorser or guarantor, and that the 
amount of those payments with Interest Is 
recoverable In this action upon the same 
ground that they constituted fraudulent 
transfers of the company's property for the 
benefit of Bntt^-fleld while a director of the 
company, and when It was Insolvent. 

After bearing the sitting Justice decreed: 

(1) The bill Is sustained as to the bonds of 
the National Boat & Engine Company de- 
livered to the defendant of the par value of 
$3,650. 

(2) The bill ia sustained as to $3,600 re- 
ceived by the defendant from the National 
Boat & Engine Company between December, 
1910, and February, 1911, as payments to 
blm on his liability on certain promis80i7 
notes of said company. 



(3) The bill is not sostalned as to the 
bonds of the National Boat & Engine Com- 
pany, delivered to the defendant by Reynolds, 
of the par value of $6,750, these bonds be- 
coming the property of Butterfleld on deliv> 
ery. 

(4) If the bonds specified In Item 1 cannot 
be delivered in specie to the trustee in bank- 
ruptcy, a master may be api>ointed to ascer- 
tain their market value at the time they 
were demanded, for which sum only Butter- 
fleld Is hereby made liable to the trustee. 

[1] The plaintiff now claims, In accordance 
with the principles affirmed In Trask v. 
Chase, 107 Ma 137, 77 Atl. 698, and In Pride 
V. Pride Lumber Co., 109 Me. 452, 457, 84 
AtL 989, that. Inasmuch as all questions pre- 
sented by the record are open for considera- 
tion under the appeal, and such decree Is 
to be directed by this court as the whole rec- 
ord requires, he Is free to urge before this 
court his contention in regard to those claims 
on bis part, which the record pres^its, but 
whidi the decree below did not sustain. We 
think he has that right 

[2] lu support of each and all of his claims 
contended for In this action the plaintiff in- 
vokes the rule, which rests in the soundest 
wisdom and is supported by the great weight 
of authorities, that an insolvent corporation 
is not permitted to prefer a creditor who is 
also a director of the corporation. The rule 
is sustainable upon the principle that it Is 
inequitable for a director, whose position 
gives him an advantage In obtaining Inside 
information of the affairs of the corporation, 
to protect bis own claims against it to the 
detriment of its other creditors. That rule 
Is the settled doctrine of this state where 
this action is pending, and where the bank- 
rupt coriwratlon was created (Symonds v. 
Lewis, 94 Me. 501, 48 Atl. 121, and Pride v. 
Pride Lumber Co., supra), and It is also 
adopted and enforced by the highest court of 
Illinois, the state where the alleged transfers 
were made (Beach v. MlUer, 130 IlL 162, 22 
N. E. 464, 17 Am. St Rep. 291). That rule 
therefore must be applied In this case In 
deciding whether or not the alleged payments 
by the corporation to the defendant consti- 
tuted fraudulent transfer of its property to 
him as one of its creditors, 

We will consider the plaintiff's claims in 
the order in which we have hereinbefore 
stated them. 

1. The alleged payments made on account 
of the two notes which the defendant held 
against the corporation, exclusive of the 
bonds whicli he received In the final settle- 
ment of those notes. 

[3] When did the defendant become a di- 
rector of the National Boat & Engine Com- 
pany? He was elected as such at a meeting 
of the directors held December 21, 1910. He 
admits that he had previously expressed to 
Reynolds his wish to become a director of 
that company, because of his Interest In its 
affalrsi but be claims that he had no knowl- 



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■WOODMAN ▼. BUTTERFIELD 



21> 



edge tbat he had been elected a director until 
some time In February, when Reynolds noti- 
fied him of his election. He said: 

"It vas the first part or the middle of Febru- 
ary. I couldn't remember. • • * Q. Tou 
think it was the first part of February? A. 
Possibly. • • • Q. So that from the early 
part of February on you admit that yoa did 
know it? A. Some time in February I knew 
that I had been elected." 

The mere fact of the election of a person 
as a director of a corporation does not con- 
stitute Mm a director unless he has notice, or 
is chargeable with notice, of that fact In 
addition to the election there must be an ac- 
ceptance of the oflSce, express or Implied. 
Cook on Ciorporatlons (7th Ed.) { 824. 

[4] The sitting justice sustained the plain- 
tiff's bill as to $3,600 received by the de- 
fendant from the National Boat & Engine 
Company "between December, 1910, and Feb- 
ruary, 1911," as payments to him on his 
notes against the company. That decision 
implies that he found that the defendant was 
a director of the corporation from December, 
1900, presumably from the time of his elec- 
tion to that office on the 21st of December. 
His decision as to questions of fact neces- 
sarily involved In the case is not to be re- 
versed unless it clearly appears that such 
dedsion was erroneous. We are unable to 
find any evidence in the case tending to show 
that the defendant had any knowledge prior 
to February, 1911, that he had been elected 
a director of the corporation. He testified 
that he had no Information of that fact until 
some time in February, there was no testi- 
mony to the contrary, and It was not shown 
that he did anything prior to Februaiy from 
which it could be inferred that he considered 
that he was a director of the corporation. 
We are therefore constrained to the conclu- 
sion tliat the sitting Justice erred in finding 
that the defendant was a director of the cor- 
poration prior to February, 1911, and there- 
fore chargeable with those obligations and 
duties which arise out of the fiduciary rela- 
tions which the law regards as existing be- 
tween a director of a corporation and its 
stockholders and creditors. He admits that 
he was informed of his election as director 
8«ne time In February, 1911, and that it 
may have been In the first part of that 
month. We think it may be reasonably held 
that he knew as early as the beginning of 
February, 1911, that he had been elected a 
director, and that fnMn and after that time 
he was chargeable with the duties and obli- 
gations of a director of the corporation. 

[5, 1] Was the corporation Insolvent during 
the time the defendant was a director of it, 
and did he luiow or have reason to know 
that It was insolvent? In. the decision of 
that question as involved in this case we 
are not controlled by the definition of in- 
solvency contained in the bankruptcy Act 
This bill in equity is brought under the pn>- 
visions of clause "e" of section 70 of that 
act. Tliat clause of the Bankruptcy Act cre- 



ates no new right of the trustee to avoid 
transfers of property made by the bank- 
rupt, but merely gives to the trustee authori- 
ty to avoid any fraudulent transfers of his 
property by the bankrupt "which any credi- 
tor" might have avoided; and therefore the 
question whether a particular transfer was 
or was not fraudulent as to creditors does 
not depend upon the Bankruptcy Act, but up- 
on the laws of the state where the alleged 
transfers were made. Holbrook v. Interna- 
tional Trust Co., 220 Mass. 150, 154, 107 N. 
£1 666; In re Mullen (D. C.) 101 Fed. 413; 
Trust Co. V. Trustees of Wm. F. Fisher & 
Co., 67 N. J. Eq. 602, 60 AtL 940, 3 Ann. Gas. 
303. 

The alleged fraudulent payments and 
transfers by the bankrupt to the defendant 
the value of which the trustee here seeks to 
recover, were made In the state of Illinois. 
It follows, therefore, that in deciding wheth- 
er the corporation was Insolvent at the time 
the alleged transfers were made, we must ac- 
cord to the term "insolvent" the meaning 
ascribed to It by the courts of Illinois. And 
to Atwater v. Bank, 162 IlL 606, 88 N. B. 
1017, 1018, that court said: 

" 'Insolvency,' when applied to a person, firm, 
or corporation engaged in trade, means inabil- 
ity to pay debts as they become due, in the usu- 
al course of business." 

And that is the meaning ascribed to the 
term "Insolvent" by common-law courts and 
courts of equity. Clay v. Towle, 78 Me. 86, 
2 Atl. 862; Morey v. MiUlken, 86 Me. 464, 30 
Aai02. 

[7] The history of the National Boat & En- 
gine Company and a consideration of its 
financial condition, as disclosed by the rec- 
ord, shows that from its beginning It was 
practically Insolvent in the sense of that 
term which makes the test the Inability of 
the corporation to meet its existing obliga- 
tions in the usual course of business as they 
become due. According to the report of the 
appraisers, the new company assumed at the 
outset of Its brief existence the combined lia- 
bilities of all the constituent companies and 
concerns amounting to an indebtedness of 
$346,724.22. That indebtedness was immedi- 
ately pressing for payment and naturally so, 
because the holders thereof discovered that 
the property of their principal debtors had 
been transferred. But the new company im< 
mediately conveyed "all Its property, real 
and personal, present and future," to secure 
an issue of bonds many of which were at 
once actually Issued. It seems plain, there- 
fore, that the new corporation tiecame at 
once financially embarrassed. Its immedi- 
ate and pressing obligations were more 
than a third of a million dollars, it had 
no available assets, and it must have been 
without credit. Its condition was helpless 
and hopeless. As early as December, 1910, it 
was in need of funds to meet its pay roll, and 
Butterfield then came to its aid by borrowing 
for It, on his own collateral, $1,000 for that 



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101 ATIiANTIO REPOBTBE 



(Me. 



purpose. We entertain no doubt that tlie 
sitting Justice was amply Justified by the evi- 
-dence In finding that the corporation was in- 
solrent during all the time Butterfield was a 
-director of it But his learned connsel urge 
that he did not know or hare reas<m to know 
its condition. We think otherwise. He was 
perfectly familiar with the whole plan of the 
consolidation. He knew that the new com- 
pany had assumed the debts of the constitu- 
ents, and he knew that all the assets which 
the new company took over were Immediate- 
ly conveyed to secure a $3,000,000 issue of 
bonds, and that many of them were issued at 
once. In December, not long after the corpo- 
ration was organized, he responded to Its 
call for aid In meeting its pay roll. He se- 
cured frequent and material payments in re- 
duction of his two notes which the company 
had assumed, and he requested with urgency, 
culminating in a threat of legal proceedings, 
that his Indirect liability as indorser on pa- 
per which the company had assumed should 
be secured by a deposit of bonds of the com- 
pany as coUateraL He was present and 
took part In the meeting of the directors of 
the company on March 13, 1911, when the re- 
solve was passed "that when necessary to bor- 
row money in order to obtain funds to meet 
bills or accounts payable, or to extend the 
time of payment on notes payable," the offi- 
cers were authorized to use the bonds of the 
company as collateral at a rate not to exceed 
two for one. And on April 6, 1911, he ac- 
cepted at their par value at least $0,750 
worth of the company's bonds In settlement 
of the balance of his notes for which the 
company was liable, and he did so with full 
knowledge that the company had found it 
very difficult to sell its bonds and at much 
less than par. Considering the facts and cir- 
cumstances disclosed, we are of opinion that 
the defendant knew or ought to have known, 
during all the time he was a director of the 
company, that It was insolvent. 

[S] He admits that be received on account 
at his notes a payment of $1,200 on February 
3, 1911, and another payment of $1,500 on 
February 6, 1911. For these, with interest 
thereon from the dates of payment, we think 
he is liable In this action, upon the ground 
that they constituted unlawful transfers of 
the company's property to him as a director 
creditor of the corporation. We do not find 
from the evidenre sufficient proof that he re- 
ceived any other payments thereon between 
February 1, 1911, and April 6, 1911, when a 
final settlement of the balance due on the 
notes was made. 

[I] 2. The transfer to him of the $6,750 of 
bonds on April 6, 1911. 

He claims that these bonds were the prop- 
erty of Mr. Ileynolds from whom he received 
them. We have had considerable doubt as to 
that. But the sitting Justice so found, and 
we think It has not been shown that his find- 
ing is clearly erroneous. On April 4, 1911, 
Reynolds wrote the defendant in reference to 



a settlement of the latter's claim against the 
Kaclne Company, which the National Compa- 
ny had assumed, and in that letter said, "but 
for the sake of good fellowship I am willing 
to sacrifice my own securities for the purpose 
of getting this entire matter adjusted with- 
out litigation," and he therein offered to turn 
over to the defendant $5,000 of his bonds and 
$1,000 of his preferred stock. Butterfield did 
not accept that offer. He testified that on 
April 6, 1911, he and Reynolds reached an 
adjustment of the balance due him. In settle- 
ment of which he received the $6,750 of bonds 
at par, supposing that they were Reynolds' 
bonds. Reynolds did not testify in this case. 
There may be some significance In the lan- 
guage of the receipts which the defendant 
gave on April 6th for both lots of bonds. As 
to the $6,750 worth, the receipt reads, "Re- 
ceived from W. J. Reynolds the f<Hlowing 
National Boat & Engine Company Bonds: 
[describing them]." But as to the $3,650 
worth it reads, "Received of W. J. Reynolds, 
President of the National Boat and B/iigine 
Company, the following securities: [describ- 
ing those bonds]." We therefore think the 
decree as to the bonds of the par value of 
$6,750 should not be reversed. 

[10] 3. The transfer of the $3,650 of bonds 
<H> or about April 6, 1911, as represoited by 
the defendant's receipt of that date. 

When first Inquired of In respect to recriv- 
ing those bonds, the defendant said he had no 
distinct memory about it, but was Inclined 
to think that after the settlement Reynolds 
borrowed that amoimt of bonds of him, and 
that the receipt represented the return of 
them, saying, "Whatever it was. It was on an 
exchange basis, and didn't multiply or In- 
crease the $6,750 bonds." The plaintiff filed 
a petition to reopen the hearing to Introduce 
evidence that the defendant had and retained 
both lots of bonds, and in his affidavit in an- 
swer to that petition, which affidavit is 
made a part of the record, the defendant 
states that he was mistaken in bis testimony 
as to the $3,650 of bonds, but that he is now 
satisfied that the bonds were delivered to 
him as being those to which be was entitled 
on the purchase by the National Company 
of the assets of the Racine Company, ot 
which he was a stockholder. And he further 
says In his affidavit that according to his 
best recollection the $3,650 of bonds was 
"the exact amount" that he received as a 
stockholder of the Racine C<«npany under 
the plan of consolidation. We note in the 
report of the appraisers as to the Racine 
Company that they show the net worth of 
that company, the excess of assets over lia- 
bilities, to be $808,146.42, and they state: 
"Plan of purchase: Bonds, $90,350; pre- 
ferred stock, $361,510; common stock, $356,- 
290— total, $808,150." If that was the plan 
of purchase of the net worth of the Racine 
Company, then it would seem that $3,650 
would not be "the exact amount" of the 



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STBARNB V. OT>OWD 



31 



defendant's ebare of bonds coming fitnn tbe 
consolidation, since It appears from his own 
testimony tliat be owned at least a quarter 
of the capital stock of the Racine Company. 
We strongly suspect, after a careful study 
of the evidence, that both lots of bonds were 
received as payment of the real balance 
found due Butterfleld In the adjustment 
between him and Reynolds on April 6^ 1911. 
According to a statement put Into the case, 
which both parties seem to concede Is sub- 
stantially correct so far as It shows payments 
to Butterfleld on his notes, there was due 
Butterfleld, after the February payments of 
$2,500 were credited, $11,937.89. The de- 
fmdant did not satisfactorily explain how 
that was reduced to $6,750. He said It was 
"a final settlement of give and take of all 
differences to that date," but he could not 
recall any particular items or matters that 
reduced the balance of $11,937.89 to $6,750. 
We find In the record evidence of an entry 
on the books of the company under date of 
January 25, 1911, tending to show a payment 
of $1,600 on "notes payable W. W. B." That 
paymoit was not on the aforesaid statement, 
which was prepared by some official of the 
company and sent to Butterfleld prior to 
the February payments; for he put those 
February payments on the bottom of the 
statement In pencil. The last of the other 
payments listed on the statement Is "1-2(X-11, 
1,000." If that payment of January 25, 1911, 
be deducted from the $11,937.89, there will be 
a balance of $10,437.89, which might be 
changed somewhat by Interest accrued on 
the one side and the other up to AprU 6, 
1911. And the total of the two lots of bonds 
is $10,400, a significant fact in this connec- 
tion, we think. In our opinion, no error Is 
shown In holding the defendant liable for the 
value of the $3,650 of bonds at the time he 
converted them, vrtth Interest thereon. He 
received them from the company, and his ex- 
planation of the transaction Is not convinc- 
ing. 

[11] 4. Such payments as were made by the 
National Boat & Engine Company, while 
the defendant was a director thereof, on 
notes the payment of which the company 
had assumed, and upon which the defendant 
was liable as Indorser or guarantor. 

There Is evidence that some such payments 
were made to the holders of the notes, but 
not to Mr. Butterfleld, and It is not contended 
that the holders of the notes had any knowl- 
edge that the National Company was Insol- 
reot when the payments were made. It Is 
true that those payments reduced the defend- 
ant's contingent liability for debts which 
the company had assumed. But the evidence 
does not show that he procured the payments 
to be made. Neither does It satisfactorily 
appear that he knew when the payments were 
made, or even that they were to be made. 

We think it would be going too ftir to 



hold that a director of a bankrupt corpora- 
tion Is liable to pay to Its receiver, or to Its 
trustee in bankruptcy, an amount equal to the 
payments which the corporation may have 
made in Its usual course of business, al- 
though while it was In fact Insolvent, to 
its outside creditors direct who had no knowl- 
edge of its Insolvency, but upon Indebtedness 
for which the director is secondarily liable 
as Indorser or guarantor, when it does not 
appear that such payments were brought 
about by the procurement of the director, or 
that he knew they were to be made, or when 
they were made, and even though It appears 
that the director ought to have known that 
the corporation was Insolvent during the 
period when fiuch payments were made. 
See Butterfleld v. Woodman, 223 Fed. 956, 
961, 139 O. C. A. 436. And we are therefore 
of opinion in this case that the plaintiff Is 
not entitled to recover the amounts of al- 
leged payments made by the corporation to 
the holders of notes for which the corpora- 
tion was liable and upon which the defend- 
ant was Indorser or guarantor. 

Let the decree below be modified In ac- 
cordance with thlB opinion. 

So ordered. 

tre N. H. 8SS> 
STEARNS V. O'DOWD. 
(Supreme Court of New Hampshire. Hillsbor- 
ough. March 30, 1917.) 

1. Ofpicebs €=s>83— Actions to Thy Titlb— 
Natubx and Form or Rgicedt. 

A proceeding in equity does not lie to deter- 
mine the title to an office, since there is an ade- 
quate remedy at law by quo warranto. 

[Ed. Note.— For other cases, see Officers, Cent. 
Dig. i§ 115-123.] 

2. Quo Wabranto <S=»29— TnxE to Omicb— ■ 
Time fob Bbinoino Action. 

Quo warranto cannot be brought to deter- 
mine title to an office until there has been a 
usiirpation of the office, which cannot take place 
before the commencement of the term of office. 
[Ed. Note. — For other cases, see Quo War- 
ranto, Cent Dig. !S 31-33.] 

3. Elections «=»285(1)— Contests— Fobm or 
Remedy— Statute. 

Under Laws 1893, c. 66, a contest over a 
county office ma^ be determined upon the peti- 
tion or application of any candidate interested 
before the beginning of the term of such office, 
and a pleading filed thereunder is a petition or 
application, although labeled a bill in equity. 

[Ed. Noto.— For other cases, see Elections, 
Cent Dig. Sg 266-268, 276, 276.] 

4. Elections ®=>180(1) — Ballots — SptJi 
Ballots. 

Split or double-marked ballots, being votes 
for both candidates, cannot be counted for ei- 
ther. 

[Ed. Note.— For other cases, see Elections, 
Cent Dig. I 151.] 

6. Constitutionai, IJAW «=»55— Invabiok of 
Judicial Power. 
The fact that the statutory provision giving 
greater weight to the cross in the circle on a 
ballot as the evidence of a voter's intentiou, 
which was repealed after judicial decision that 
split ballots could not be counted for either can- 



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32 



101 ATLANTIC B£FOBTKB 



(N.H. 



didate wu later ra-enacted, cannot affect tbe 
construction heretofore given the provision aa an 
unconstitntional invasion of Uie judicial power. 
[Ed. Note.— For other cases, see Constitution- 
al Law, Cent. Dig. S| 58-68, 71, 80, 81, 83.] 

6l Elections <S=3l8D(4)— Ballots— Mabkiro. 
When a cross is not within the circle on a 
ballot, but near it, it may, in the absence of oth- 
er marks, be interpreted as indicatins an inten- 
ti(Hi to vote a straight ticket. 

[Ed. Mote.— For other cases, see Ejections, 
Cent Dig. 1 154.1 

7. Elbcitonb »=»180(g)— Ballot o M abkiwq. 
Where a ballot contains heavy crosses op- 
posite the names of the candidate for each office 
on the ticket, including one against the plain- 
tiffs name, with none against defendant's name, 
and there is no cross in either circle, but a light 
cross just above the column of defendant's party, 
it was a vote for the plaintiff. 

[Ed. Note.— For other cases, see Elections, 
Cent Dig. g 156.] 

& Elections «=»800— Ballots— Definition. 
A ballot is a written document and the as- 
certainment of its meaning is a judicial func- 
tion and a question for the law court 

[E^. Note. — For other cases, .see EHections, 
Cent Dig. §S 308-313.] 

9. Elections «=>300— Baixots— Qxjestion of 
Fact. 

Whether certain papers offered as ballots 
were actually cast as such is a question of fact 
for the trial court 

[Ed. Note.— For other cases, see Elections, 
Cent Dig. ii 308-313.] 

10. Elections 9=»204— Contests— Evidence 
—Admissibility. 

In an electicm contest evidence, offered be- 
fore a master that many of the ballots marked 
"defective," "canceled," "void," "no good," or 
"spoilt" were actually cast and counted by the 
election officers, was competent and should have 
been considered by the master. 

[Eld. Note.— For other cases, see Elections, 
Gent Dig. St 288-296.] 

11. Appeal and EIrbob 9=»1010(2)— Review- 
Findings. 

The appellate court cannot weigh the evi- 
dence to decide a question of fact, but a finding 
of fact cannot stand if there was no evidence to 
support it 

[E^. Note. — For other cases, see Appeal and 
Error, Cent Dig. { 3982.] 

12. Elections «=>286(1)— Ballots— Mabkinq 

—Statute. 
Under Laws 1897, a 78, ( 18, providing that 
all ballots not counted, in whole or in pan, on 
account of defects, shall be marked "defective" 
on the back thereof by the moderator, and shall 
be sealed with the other ballots cast and re- 
turned to the city or town clerks, the entry "de- 
fective" made on a ballot, instead of authorizing 
the inference that the paper was not cast as a 
ballot in the absence of other evidence con- 
clusively establishes its status as a ballot; 
hence a finding by a master that ballots so mark- 
ed were not cast as ballots was erroneous. 

[Eid. Note. — For other cases, see Ejections, 
Cent Dig. { 207.] 

13. Elections <S=3239— Ballots— Mabkino — 
Statute — Constbdction — "No Good" — 
"Void"— "Spoiled"— "Canceled." 

Under Laws 1897, c. 78, f 10, providing 
that if a voter spoils a ballot he may succes- 
sively receive three others, one at a time, not ex- 
ceeding three in all, upon returning each spoil- 
ed one, and the ballots thus returned shall be 
immediately marked "canceled" by the ballot 
clerk, and, together with those not distributed 



to the voters, shall be preserved, the words "no 
good," "void," "spoiled," may mean "canceled," 
the word the statute required to be placed on 
the snoiled ballots ; hence ballots so marked can- 
not be counted. 

[Ed. Note:— For other cases, see EUecticms, 
Cent Dig. } 218 

For other definitions, see Words and Phrases^ 
First and Second Series, Cancel— Cancellation ; 
Void.] 

Transferred from Superior Court, Hills- 
borough County. 

Proceeding by George Ia Steams against 
John T. O'Dowd to determine a title to oflSce 
of sheriff of Hillsborough county, to which 
defecdant was declared elected. J>idgment 
for defendant subject to exception, and ques- 
tions ralsett by the proceedings reserved and 
transferred. Exceptions sustained. 

Petition under section 1, c. 66, Laws 1898, 
to determine the title to the office of sheriff 
of the county of Hillsborough, to whldi the 
defendant was declared elected. The peti- 
tion alleged that, upon a correct count of 
the ballots cast, the petitioner received a 
plurality of the votes for the office of sheriff 
and was elected. The petition was referred 
to a master, who found oo the ballots cast 
that Steams received 10,025 votes, and 
O'DowU 10,013, and that there was contro- 
versy as to the proper counting of 120 bal- 
lots, which, numbered and fully described, 
were returned as a part of the report Forty- 
nine ballots were marked with a cross In the 
circle of one party and with a cross opposite 
the name of the nominee of the opposing 
party for sheriff, without erasure of the 
name of the candidate in the column und» 
the circle which was marked. The master 
counted these according to the cross In the 
circle— 31 for O'Dowd and 18 for Steams. 
There were 16 ballots marked "defective," 
arid U marked "canceled," "void,- "no good," 
or "spoilt," none of which were Included In 
the master's count Upon the return of the 
master's report, each party claimed election 
and moved for a certificate. Subject to excep- 
tion, the court found the defendant, O'Dowd, 
elected, and ordered a certificate of election 
to be issued to him, March 31, 1917. All 
questions of law raised by the proceeding 
were reserved anU transferred by Branch, J. 

Jones, Warren, Wilson & Manning and 
Harry T. Lord, all of Manchester, for plain- 
tiff. Thomas H. Madigan, Jr., of Manches- 
ter, for defendant 

PARSONS, & J. [1, 11 In the record sent 
to this court the proceeding is labeled "Bill 
in Equity." The defendant objects that a 
bill in equity cannot be maintained to de- 
termine the title to an office. The objection 
is weU taken. A proceeding in equity does 
not lie because there is an adequate remedy 
at law by quo warranto, which, however, can- 
not be brought until there has been a usur- 
pation of the office, which cannot take place 



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STEARNS V. O'DOWD 



83 



before the commencement of the term of the 
office In dispute. Attorney General v. Hegin, 
63 N. H. 378; Osgood v. Jones, 60 N. H. 643; 
Osgood V. Jones, 60 N. H. 282. CJonnty offi- 
cers are diosen biennially on the Taesday 
next following the first Monday in November. 
The returns are canvassed and the result 
declared on the first Tuesday of December, 
but generally, if not In all cases up to the 
present time, the officers-elect do not enter 
upon their offices until the first of the fol- 
lowing April. Until 1893 controversy over an 
election could not be litigated until the term 
of office began, practically six months after 
the election. In that year It was provided 
that a contest over a county office might be 
determined, upon the petition or application 
of any candidate interested, as well before 
the term of such office began as after. Laws 
1893, c. 66. 

[S-6] The present proceeding is a petition, 
or application, under the statute by one of 
the candidates for the office, and in no sense 
a "Bill In Equity." The decision In Murchle 
V. Clifford, 76 N. H. 99, 79 AU. 901, which 
was followed in Dinsmore v. Mayor, 76 N. H. 
187, 81 AtL 683, settles the proper construc- 
tion of the split or double-marked ballots; 
being votes for both candidates, they can be 
counted for neither. The fact that the stat- 
utory provision giving greater weight to the 
cross in the circle as evidence of the voter's 
intention, repealed shortly after the decision 
in Murchle v. OUfforti (Laws 1911, c. 188), 
was later re^nacted (Laws 1915, c. 119), can- 
not affect the construction heretofore given 
the provision as an unconstitutional Invasion 
of judicial power. If it be conceded that the 
Judicial view of the legislation vras in mind 
when the provision was re-enacted. It would 
follow that It was then understood the pro- 
vision would be disregard^ in a Judicial 
interpretation of the ballot. The double- 
marked ballots cannot be counted. One of 
these, however. No. 27, though counted for 
O'Dowd on the ground of a cross in the Dem- 
ocratic circle, was not so marked. 

[I] There are heavy crosses opposite the 
names of a candidate for each office on the 
ticket, including one against Stearns' name, 
with none opposite O'Dowd's. There is no 
cross In either circle, but a light cross Just 
above the Democratic column. When a cross 
is not within the circle, but near it, it may, 
in the absence of other marks, be interpreted 
as an attempt to vote a straight ticket In 
this case the voter, by maxklng every candi- 
date and divfdlng his marking between the 
parties, furnished competent evidence of his 
intention not to vote a straight ticket A 
cross in the circle would have Indicated an 
intention to vote the whole ticket of the par- 
ty to which the circle belonged, and it would 
then be impossible to detennine bis actual 
intent On this ballot the voter clearly ex- 
pressed an Intent to vote a mixed ticket— to 
vote for Steams, and not to vote for O'Dowd. 
lOlA.^-8 



The most that can be satd of the stray cross 
at the top is that it is evidence of an im- 
perfectly executed Intent to vote a straight 
ticket The direction of the statute printed 
ui>on the ballot requires for a straight vote 
a cross in the circle. The voter made no 
cross there, and, in view of the direct evi- 
dence of his purpose elsewhere expressed on 
the ballot, it cannot be found that he Intend- 
ed a cross not in the circle as indicating bis 
preference. If this cross were the only one 
on the ballot, the Interpretation would be aid- 
ed by the presumption that the voter intend- 
c!d the paper prepared by him as a ballot, and 
to prevent loss of his vote his main purpose 
would be carried out by giving to the mark 
nuide by him the only interpretation possible. 

[7] But the vote he attempted to give by 
properly executed crosses cannot be destroy- 
ed by an unexecuted Intention to vote a 
straight ticket The statute, after providing 
that a cross in the circle is a vote for a 
straight ticket continues, "Provided, how- 
ever, that a voter may omit to mark in any 
circle and may vote for one or more candi- 
dates by marking a cross (X) opposite the 
names • • • of the candidates of his 
choice." The voter in this case followed the 
statute; he did not mark In any circle, but 
made a croes opposite Steams' name and 
none against O'Dowd's. The ballot is a vote 
for Steams. Eleven baUota were claimed 
as votes for O'Dowd which contained no 
cross opposite O'Dowd's name and none ta 
any clrela There are on them one or more 
crosses in the space opposite the Democratic 
electors, and not in the square provided for 
voting for the electors by a single cross. It 
cannot be said that marks so situated Indi- 
cate an attempt to mark a cross within the 
circle, the only method by which an intent 
to vote a straight ticket can be expressed by 
a single cross. 

[3,1] "The ballot is a written document, 
and the ascertainment of its meaning is a Ju- 
dicial function." Murchle v. Clifford, 76 N. H. 
99, 104, 79 Atl. 901, 903. And Is a question 
for the law court State v. Ballroad, 70 N. 
H. 421, 434, 48 Atl. 1103. Whether certain 
papers offered as ballots were actually cast 
as such is a question of fact for the trial 
court Murchle v. CUfford, 76 N. H. 99, 101, 
102, 79 Atl. 901. 

[10, 11] Twenty-seven papers, apparently 
ballots, returned with the others, were reject- 
ed by the master upon the ground that they 
were not cast as ballots. Sixteen of these 
were markeld "defective," and eleven either 
"canceled," "void," "no good," or "spoUt" 
The plaintiff offered evidence as to many of 
these that they were ballots actually cast 
and counted by the election officers. The 
master heard and r^orted the evidence, but 
refused to consider it The evidence was 
competent and should have been considered. 
The question of fact so presented cannot be 
here decided. This court cannot weigh the 



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34 



101 ATLANTIC BBPORTBR 



(N.H. 



evidence. The finding of fiLct, however, can- 
not stand U tbere was no evidence to sustain 
it The only evidence relied upon to over- 
turn the presumption from the presence of 
the papers among the returned ballots la 
the entries above recited, found on the pa- 
pers apparently made by the election officers. 
The statute provides, in the directions for 
counting ballots by the election officers : "All 
ballots not counted, In whole or in part, on 
account of defects, shall be marked 'defec- 
tive' on the back thereof by the moderator, 
and shall be sealed with the other ballots 
cast and returned to tlie city or town clerks." 
Laws 1887, c. 78, { 18. Tbere Is no require- 
ment that the particulars in which the bal- 
lot is considered defective should be noted 
on the ballot. 

[12] The entry "defective^' ma'de on a bal- 
lot under this provision, instead of authoriz- 
ing the inference that the paper was not 
cast as a ballot, in the absence of other evi- 
dence oondoslvely establishes its status as a 
ballot. The finding as to these ballots, being 
without evidence to sustain it, is set asidft 

A person wishing to vote Is given one bal- 
lot only, wblcb he takes with blm into the 
voting booth. "If any voter spoils a ballot, 
he may successively receive three otbers, 
one at a time, not exceeding tbree In all, 
uiKm returning each spoiled one. The bal- 
lots thus returned shall be Immediately mark- 
ed 'canceled' by the ballot clerk, and, togeth- 
er with those not distributed to the voters, 
shall be preserved." Laws 1897, a 78, i 16. 

[13] If the statute la foUowed, ballots 
marked "defective" are ballots that have 
been cast and are returned with the others 
cast Ballots marked "canceled" are ballots 
not cast, and are to be preserved with others 
not cast. The words "no good," "void," 
"qpolled," may mean "canceled," the word 
the statute requires to be placed on the spoil- 
ed ballots. There was therefore evidence to 
sustain the finding made as to the eleven. 
Kvidence was offered tending to show that 
two of these, Nos. 30 and 81, were cast as 
ballots, and the marking "no good" placed 
upon than by direction of the moderator 
after they were taken from the ballot box. 
If, npon consideration of the evidence, tbe 
master's conclusion should be reversed, one 
of the ballots, and possibly the other, would 
be counted for Steams. There was no evi- 
dence tending to establish the verity of the 
other "canceled" ballots. None of the eleven 
can now be connted. Of the ballots marked 
"defective," and not connted, two are votes 
for O'Dowd and seven for Steams. 

Objection is made by both parties to the 
conclusion of the master as to many of the 
ballots, but a careful examination of each 
disputed ballot does not disclose other error 
in their interpretation by him which would 
affect the result. As tbe matter now stands, 
without delaying for a finding of fact as to 



the ballots Nos. 80 and 81, O'Dowd has 10,014 
votes and Steams 10,015. 

The master's count gave O'Dowd 10/)43. 
To this should be added the two "defective^* 
ballots, and subtracting from this total tbe 
thirty-one "split ballots" gives the above re- 
salt 

Similarly the correct count for Steams is 
reached by adding to the master's count the 
seven "defective" and ballot "No. 27," eight 
in all, and subtracting the eighteen "splits" 
counted for him. As Steams received, upon 
a correct count of the ballots, a plurality of 
the votes cast he was elected, and is entitl«U 
to a certificate of election. 

Exceptlcm sustained. All concurred. 



BROWNE 



(78 N. H. 387) 
PARK CEMETERY. 



(Supreme Court of New Hampshire. Belknap. 
May 1, 1917.) 

1. BmNENT Domain «=»4a-"PuBuo Ubb"— 

CoNSTrruTioN— Stathtis. 
Laws 1913, c. 311, { 1, providing that all 
proceedings of the Park Cemetery corporation 
In the town of Tilton are ratified and made le- 
gal, and that the cemetery shall have all the 
rigbta and powers, and be subject to all lia- 
bilities, which towns by statute possess concern- 
ing cemeteries by P. S. c. 40, { 4, and section 
6, authorizing towns to take land in invitnm 
for public use, is not violative of Const pt 1, 
art. 12, as authorizing the taking of private 
property In Invitum for a private use, since the 
use of land for the establishment and mainte- 
nance of a cemetery for the burial of the dead 
may be a "public use" justifying its condemna- 
tion. 

[Ed. Note.— For other cases, see Eminent Do- 
main, Cent Dig. { 80. 

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

2. Cemxteries «:3l— Assbbtion or Pttbuc 
RioHT— Duty to Afford Skbvicb. 

Having invoked tbe power of eminent do- 
main to acquire rights in tbe lands of others, 
a cemetery corporation can be compelled, at 
least to the extent of the rights acquired, to 
afford reasonable service to the public, in the 
public business it has undertaken, at reasonable 
rates. 

[Ed. Note.— For other cases, see Cemeteries, 
Cent Dig. f 1.1 

Transferred from Superior Court, Belknap 
County; Elvel, Judge. 

Proceeding for the laying out of land for 
the Park Cemetery by the selectmen of the 
town of Tilton, wherein Belle P. Browne 
objected. From the laying out Browne ap- 
pealed. On transfer without a ruling. Case 
discharged. 

The defendant Is a voluntary corporation 
organized July 8, 1851, for the purposes of 
providing, holding, and keeping in repair 
suitable grounds and other conveniences for 
the burial of the dead, and claims the right 
to take the plaintiffs land under the fol- 
lowing statute passed March 6, 1913: 

"All the acts and procecflings of an association 
called and known as Park Cemetery located in 
the town of Tilton (formerly in Sanbomton), 



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STATE V. WEEKS 



36 



l>p, and fte same are hereby ratified and mnde 
Ipgal, and the said Parlt Cemetery as now organ- 
ized shall have all tlie riiihts and powers, and be 
subject to all the liabilities which towns by 
statute possess concerning cemeteries, by and un- 
der sections 4 and 6 of chapter 40 oi the Public 
Statutes, and shall be called and Icnown as Park 
Cemetery." Laws 1913, c. 811. i 1. 

Stephen S. Jewett, of Laconla, for plalntlfC. 
Charles O. Bogers, of Tllton, Robert Jack- 
sou, of Concord, and Branch & Branch, of 
Manchester, for defendant 

PARSONS, 0. J, [1] By section 6, c. 40, 
P. S., towns are authorized to take land In 
invitum_ for public use. The use of land 
for the establishment and maintenance of a 
cemetery for the burial of the dead may be 
a public use. Rockingham Light dc Power 
Co. T. Hobbs, 72 N. H. 531, 533, 68 Atl. 46, 
60 U R. A. 581; Crowell t. Londonderry, 
83 N. H. 42 ; Evergreen Cemetery Association 
V. New Haven, 43 Conn. 234, 21 Am. Rep. 643. 

"The burial or other safe disposition of thd 
dead is a necessity essential to the preservation or 
the health of the living. The private use of land 
for this purpose by a private corporation may 
be of public conyenlence and necessity, as that 
term is sometimes used, although not strictly a 
public use justifying condemnation of land for 
that purpose. • * • But where land is ap- 
propriated • • • by a town or other munic- 
ipal corporation, or by the owners of the land, 
being a rolnntary association or private corpora- 
tion, and the land so appropriated is open, under 
reasonable regulations, to the use of the public 
for the burial of the dead, it may become a pub- 
lic burial ground and its use a public use, and 
the Legislature may lawfully condemn land for 
that public use." Starr Burying Ground Ass'n 
V. Association, 7T Conn. 83, 58 Atl. 407. 

The plaintiff bases her objection to the 
constitutionality of the statute Invoked by 
the defendant upon the elementary principle 
that private property cannot be taken in 
Invltum for private use. Const, pt. 1, art 
12; Concord Railroad v. Greely, 17 N. H. 
47; L'nderwood v. Bailey, 50 N. H. 480. 
If this were the purpose of the statute, the 
pbjection would be fataL But the power 
conferred upon towns by section 6, c. 40, P. 
S., which the act of 1913 gives the defendant 
is only to take land for a public use. 

As the plaintiffs land can under the stat- 
ute be taken only for a public use, there is no 
constitutional objection to the statute. 
Whatever title the association may have to 
land previously acquired by treaty, all land 
It may acquire under this statute will be af- 
fected by the public use. 

"If the right in the old ground is not pulilic 
in every sense of the term, it will not affect the 
public right in regard to that part of the ground 
which is added to it by this enlargement The 
part added will be public, subject to such regula- 
tions and restrictions as the by-laws of the as- 
sociation may make ; and that is enoujsh to an- 
swer the material part of this claim, viz. its be- 
ing subject to the objection of talting private 
property for private use only." Edwards v. 
Stonington Cemetery Ass'n, 20 Conn. 4G6, 479. 

[2] Having Invoked the power of eminent 
domain for the acquisition of rights in the 
lands of others, the defendant can be com- 



pelled, at least to the extent of the rights ao 
acquired, to afford reasonable service to the 
public in the public business they have un- 
dertaken at reasonable rates. 

"It is in fact a public agent exercising powers 
for the public advantage which are subject to 
legislative control and enforcement." McMillan 
v. Noyes, 75 N. H. 2o8, 203, 72 Atl. 750, 762. 

Case discharged. All concurred. 



(78 N. H. 408) 
STATE V. WEEKS. 

(Supreme Court of New Hampshire. Cheshire, 
May 1, 1917.) 

1. CouNTiKB <e=>139 — Cbhonai. Tbiai. — Hx- 

FENSES. 

. The power of the courts to grant a person 
charged with crime assistance in bis defense at 
public expense is wholly statutory. 

[Ed. Note. — For other cases, see Counties, 
Cent. Dig. §§ 203-207.] 

2. Counties 4=9l39 — Ezpenbxs — Prepaba- 
TION FOB Tbial. 

There is no statutory authority under which 
the public may be charged with expenses incur- 
red by defendant in preparing for trial or in em- 
gloying experts td conduct an examination as to 
is sanity except so far as counsel and those for 
travel and attendance of witnesses are con- 
cerned. 

[Ed. Note.— For other cases, see Counties, 
Cent Dig. §{ 203-207.) 

3. Counties <s=»139 — Expenses — Pbefaba- 
TiON FOB Trial. 

Pub. St 1901, c. 256, { 0, providing that all 
legal costs attending the arrest, examination, 
or conveyance of an offender, except when di- 
rected or approved in writing by tlie counsel of 
the state or county commissioners, shall be paid 
by the complainant is not applicable to a claim 
for the fees of experts incurred in examining a 
defendant as to sanity in preparation for trial 
for murder. 

[Ed. Note.— For other cases, see Counties, 
Cent. Dig. U 203-207.] 

Exceptions from Superior Court Cheshire 
County ; Branch, Judge. 

Eugene A. Weeks was indicted for murder. 
On disallowance of a claim against the coun- 
ty, for fees of experts, defendant excepts. 
Exceptions overruled. 

Indictment for murder. The defense of in- 
sanity was suggested, and bills were present- 
ed by counsel for the defendant for the feea 
of experts employed to examine the defend- 
ant No authority had been given to employ 
them at the expense of the county. At the 
October term, 1916, the superior court dis- 
allowed the claim, allowed the defendant's^ 
exception to the order, and transferred the 
question of authority to allow the bills 
against the county. 

James P. Tnttle, Atty. Gen., Philip H.' 
Faulkner, Co. Sol., of Keene, and James A. 
Moynlhan, of Manchester, fo°r the State. 
Joseph Madden, of Keene, for defendant 

PBASLEB, J. It does not directly appean 
npon what ground the order excepted to was 
made; but as the case states that the ques- 
tion of authority Is transferred, it is assunk. 



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101 ATLANTIC REPORTER 



(Vt. 



ed that allowance of the claim was refused 
upon the ground that the court had no pow- 
er to take such action. 

The case appears to be one of new Impres- 
sion. No precedent has been found for the 
course here orged In behalf of the defend- 
ant The proposition is that the public shall 
pay the expenses incurred by the defendant 
outside of court in the preparation of his de- 
fense. Of course there can be no common- 
law authority for such an order. By that 
law the defendant — 

"was denied compulsory process for his witness- 
es, and when they voluntarily appeared in his 
behalf, he was not permitted to examine them 
on oath, nor to have the aid of counsel in his 
defense, except only as regarded the questions of 
Uw." United States v. Beid, 12 How. 361, 864, 
13 L. Ed. 1023. 

[1] It required legislative action to give 
the defendant the rights he would have in 
a civil cause. 4 Blk. Com. 360. It is mani- 
fest that a right so acquired cannot he ex- 
tended so as to Include a privilege or right 
never known to the common law, and in no 
way created by any statute. The right to 
the state's process to compel the attendance 
of the defendant's viritnesses in certain cases 
(laws 1907, c. 136, } 1) ortglnated in this 
state with the act of 1829. Laws (Ed. 1830) 
p. 149. The changes which have, from time 
to time, been made in the statute show a 
continuing legislative understanding that the 
power of the court to grant a person charg- 
ed with crime assistance In hia defense at the 
public expense is wholly statutory. R. S. 
C. 225, i 3; Laws 1859, c. 2221, H 1. 6: Laws 
1862, a 2608, {» 1, 3; G. S. c. 243, $S 1, 4; 
Laws 1873, c. 47; G. L. c 261, {| 1, 4. See, 
also. State ▼. Arlin, 39 N. H. 179, and State 
y. Archer, 64 N. H. 465, where It seems to 
be assumed that authority to act must be 
found in the statute. 

[2] The statute governing the rights of 
I>erson8 charged with the more serious 
crimes (P. S. c. 254) was revised in 1901 
(Laws 1901, c. 104), and again amended in 
1907. Laws 1907, c 136. By the latest 
amendment the requisites for obtaining state 
process to comi)el the attendance of witnesses 
for the defendant are given in detalL It 
must appear that the defendant is poor and 
nnable to defray the expense, and that in- 
justice may be done if provision therefor la 
not made at the public expense. The sub- 
ject has evidently received careful legislative 
consideration, and there is nothing In any of 
the statutes which have been enacted which 
gives color to the idea that authority has 
been conferred to charge the public with the 
expenses incurred by the defendant in pre- 
paring for trial, except so far as counsel fees 
and those for travel and attendance of wit- 
nesses are concerned. 

[3] It was urged by the state in argument 
^hat the statute, providing that: 

"All legal costs attending the arrest, exam- 
ination, or conveyance of an offender, except 
when directed or approved in writing by the 
counsel of the state, or county commissioners, 



shall be paid by the complainant" (P. 8. c 256, 
I 9) 

— ^was applicable to this claim, and that it 
must be disallowed because its incurrence 
had not been previously authorized by the 
state's counsel. But that statute has no ap- 
plication to the claim here presented. It re- 
lates solely to expenses incurred in prosecu- 
tions for alleged crimes, and has nothing to 
do with the regulation of allowances to or 
on behalf of defendants. 

The state's contention that the court has 
no power to allow this claim is sound. But 
the reason for this result is that no such 
authority has been conferred upon the court, 
and not that the consent of the state's coun- 
ael is essentiaL 
' Exception overruled. Ail concurred. 



(91 vt am 
LAFOUNTAIN & WOOLSON CO. v. BROWN. 

(Supreme Court of Vermont Windsor. May 
1, 1917.) 

1. Fbaudb, Statute of «=»130(6>— ExEcnncD 

AgbEEMBNT — SAIJ& OF.COBPORATB SxOCK. 

The rights of the parties under an uncondi- 
tional contract for the sale and purchase of cor- 
porate stock are determined independently of 
the statute of frauds, where the stock certi0cate 
has been delivered and payment made, though the 
agreement while it remained executory, would 
have been unenforceable because of such statute. 

2. CoRPOBATiONS ®=>155(2) — Tbansfeb or 
Stock— Right to Dividend. 

The dividend on stock sold ordinarily be- 
longs to the one who was the owner thereof 
when the dividend was actually declared. 

[Ed. Note.— For other cases, see Corporations, 
Cent Dig. i 561.] 

3. CospoBATioNs «=>155(3) — Tbansfeb or 

Stock— Undivided Sukplds. 
The surplus of a corporation is a part of 
the stock until separated from the capital by the 
declaration of a dividend, and while undivided 
will pass with the stock In a transfer thereof. 

[Ed. Note.— For other cases, see Corporations, 
Cent. Dig. { 663.] 

4. Corporations *=»119 — Sale of Stock — 
' Equitable Interest of Btjteb. 

The purchaser of corporate stock acqaires 
an equitable interest before completion of the 
transter where the contract of sale is binding 
between the parties,, and .as between them such 
interest will be enforced and protected as a trust 
[Ed. Note. — For other cases, see Corporations, 
Cent Dig. }} 499-603.] 

6. Gobpobationb <&=>116 — Salk of Stocx— < 

Construction or Contract. 
In construing a contract to sell corporate 
stock, it will be presumed that the parties in- 
tended, nothing to the contrary appearing, that 
the shares were to be transferred m their condi- 
tion at the time of the bargain. 

[Ed. Note.— For other cases, see CTorporationa, 
Cent Dig. {i 493, 494, 496.] 

6. Cobpobations is=9l55(3) — Sale of Stock 

—Right to Dividend. 
Where a dividend was declared after the exe- 
cution of a valid contract for the sale of cor- 
porate stock, but before arrival of the time for 
delivery and payment, the buyer, on complying 
with the contract, was entitled to the dividend. 

[Ed. Note.— For other cases, see Corporation^ 
Cent Dig. i 563.] 



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rtA.POUNTAIN <l! WOOIBON CX). v.-BROWK 



37 



Szceptlona from Windsor County Oonrt; 
Iieight<» P. Slack, Presiding Judge. 

Action by the Lafountaln & Woolson Com- 
pany against Walter W. Brown. From a 
judgment toe plaintiff, defendant brings ex- 
ceptions. Affirmed. 

Argued before WATSON, O. J., and HA- 
SBLTON, POWBBS, TAYLOR, and 
MILES, 33. 

Stickney, Sargent & Skeels, of Ludlow, for 
plaintiff. Blanchard Se Tupper, of Spring- 
field, for deftodant. 

TAYLOR, J. The acUon Is contract for 
money had and received. The plaintiff seds 
to recover the amount of a dividend on sto<^ 
purchased by It from the defradant The 
case was tried by the court on an agreed 
statement of facts, and the plaintiff had Judg- 
ment. 

The defendant was the owner of the ma- 
jor part of the capital stock of the Brown 
Hotel Company, a corporation, operating a 
hotel at Springfield, Vt, and one of the three 
directors of the corporation. On March 24, 
1916, he had negotiations with plaintiff's rep- 
resentative regarding the sale of the capital 
stock of the hotel company. Later the same 
day the defendant's agent called plaintiff's 
representative by telephone and told him 
that the defendant would sell his stock to the 
plaintiff at a certain price per share. Plain- 
tiff's representative replied that the plaintiff 
would take the stock at the price named and 
pay for It the following morning, to which 
defendant's agent assented. No part of the 
stock was then delivered nor any part of the 
purchase money paid; ndther was any writ- 
ten memorandum of the bargain made. On 
the following morning the defendant and 
plaintiff's representative met and the trans- 
action was completed by delivery of the cer- 
tificate of stock and payment of the purchase 
I»4ce. During the negotiations nothing was 
said about cash In the treasury of the hotel 
company. 

On Mardi 24, 1916, after the above tele- 
phone conversation, the defendant called a 
meeting of the directors of the hotel com- 
pany, and a dividend of $1.50 per share was 
declared, which was Immediately paid by the 
treasurer of the corporation. The defendant 
received as the dividend on the stock bar- 
gained to the plaintiff $499.50. The plaintiff 
first learned of the dividend when the books 
of the hotel company were turned over after 
the delivery of the stock. Thereupon It made 
demand upon the defendant; and, payment 
being refused, this suit was brought. 

To maintain this action the plaintiff must 
establish that it was entitled to the dividend 
as the purchaser of the defendant's stock; 
and its ri^it to receive the dividend depends 
upon its relatlcm to the stock at the time the 
dividend was declared. It Is held that in 
case of options and sales of stock for future 
delivery the right to dividends depends upon 
ttie question at what time with reference to 



the declaratloa of the dividend the title pass- 
es. 7 R. 0. I* 293. This transaction was 
not an option. It culminated in an uncondi- 
tional agreement for the sale and purchase of 
the stock before the dividend was declared. 
All that remained to be done was the deliv- 
ery of the certificate and the payment there- 
for at the time fixed In the agreement. 

[1] The defendant contends that the agree- 
ment of March 24th was invalid because with- 
in the statute of frauds, so that no rights 
could accrue under It Conceding that, while 
the agreement remained wholly executory, it 
was not enforceable because of the statute, 
the subsequent delivery and payment took 
the transaction out of the statute, leaving the 
rig&ts of the parties to be determined inde- 
pendently of it. Patterson v. Sargent, 83 
Vt 516, 77 AU. 338, 138 Am. St Rep. 1102 ; 
Strong T. Dodds, 47 Vt 348 ? Fay v. Wheel- 
er, 44 Vt 292 ; 2 Cook on Cor. 1045. 

IZ, 3] The defendant claims further that 
title to the stodc did not pass until payment 
and delivery; and so^ as the stock belonged 
to him at the time the dividend was declared, 
the dividend was payable to him. There is 
no disagreement as to the general rule that a 
dividend belongs to the one who was the 
owner of the stodi when the dividend was 
actually declared. See King v. Follett 3 Vt 
S85. It is also well settled that the surplus 
of a corporation is a part of the stodi itself 
until separated from the capital by the dec- 
laration of a dividend. See In re Beaton's 
Estate, 89 Vt 560, 96 AU. 21, L. R. A. 1916D, 
201. Such undivided surplus will pass wltb 
the stock under that name in a transfer 
thereof. The purchaser takes the stock with 
all its Incidents, one of which Ls the right to 
receive its proportionate share of imdlvlded 
profits. Harris v. Stevens, T N. H. 454; 
March v. Eastern Railroad Co., 43 N. H. 620; 
7 R. C. L292; 10 Oye. 556. 

[4] 'The defradant recognizes this fact and 
bases his right to the dividend upon the claim 
of legal title to the stock at the time it was 
declared. But the question does not depend 
alone upon legal title. The principle of eq- 
uitable assignments applies. The purchaser 
of shares of corporate stock is held to acquire 
an equitable interest in the stock before the 
transfer Is completed, if the agreement of 
purchase and sale is binding between the par- 
ties. As between them such Interest will be 
enforced and protected as a trust. 1 Mora- 
witz on Pr. Cor. | 174. 

[6] ' In construing an agreement for the sale 
of shares of stock it will be taken to be the 
intention of the parties, nothing to the con- 
trary appearing, that the shares are to be 
transferred in their condition at the time of 
the bargain. 1 Morawltz on Pr. Cor. f 175. 
Thus the law imputes to the seller an Inten- 
tion to deal fairly with the purchaser, and In 
doing so requires him to deliver only what 
entered into the value and price at which the 
stock was sold. While it permits him to re- 
tain the "fallal fruit," it does not accord to 



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38 



101 AtliANTIC EEPOBTEB 



(Vt 



him the additional privilege o£ "shaking the 
tree" after the bargain Is closed. 

[I] It follows from what we have said that 
If, after a valid contract for the sale of 
shares of stock Is made, but before the time 
for delivery and payment arrives, a dividend 
Is declared, the purchaser Is entitled to the 
dividend on complying with the contract. 
Phlnlzy V. Murray, 83 Ga. 747, 10 S. B. 358, 

6 Ia R, A. 426, 20 Am. St. Rep. 342; Currle 
T. ■RTiIte. 45 N. Y. 822; Harris v. Stevens, 

7 N. H. 454 ; Conant v. Reed, 1 Ohio St. 298 ; 
Beadi T. Hamersham, Ll R. 4 E>x. D. 24 ; 7 
B. G. I/. 293; 2 Addison on Con. ! 661 ; CJook 
on Stocks & Stockholders, { 543 ; 2 Cook on 
Cor. S 539; 1 Morawltz on Pr. Cor. If 174- 
178. 

The result is that under the agreement In 
this case the dividend belongs to the plaintiff. 
Judgment aturmed. 



(n Vt «» 

CORBY et al v. BABRE GBANITB & QUAE- 
BY CO. et al. 

(Supreme Court of Vermont. Washington. 
May 8, 1917.) 

1. CoBPOBATioNs «=»665(3) — Foreign Cobpo- 

RATIONS— INTEBNAL AFFAIRS— JUBISDICTIOW. 

A court of chancery may, where all the nec- 
pssary parties are before it, and where the re- 
lief soufrht is within the jurisdiction of a court 
of chancery, award a stockholder relief against 
a foreign corporation expressly chartered to do 
business in the state and having its property and 
business here, although it involves an interfer- 
ence with its internal affairs. 

[Kd. Note.— For other cases, see Corporations, 
Cent. Dig. {§ 2571, 2573, 2600.] 

2. PtEAMNO ®=5>214(1)— Demtjrbe»— Mattebs 
Admitted — Aujeqations on Infobmation 
AND Belief. 

A demurrer to allegations on information 
and belief admits only the belief and informa- 
tion,, and not the focts pleaded. 

[Ed. Note.— For other cases, see Pleading, 
Cent Dig. §§ 525. 529.] 

3. Corporations ®=»401— Directors— Rionxs. 

The directors of a corporation cannot repre- 
sent it in transactions with another corporation 
in which they are shareholders if their interest 
in the latter company might induce them to 
favor it at the expense of the comi>any whose in- 
terests have been intrusted to their care. 

[Ed. Note.— For other cases, see Corporations, 
Cent Dig. H 1363, 1364, 1595.] 

Appeal in Chancery, Washtngton County; 
Fred M. Butler, Chancellor. 

Action by Frank M. Corry, trustee, and 
another against the Barre Granite & Quarry 
Company and others. From a decree sus- 
taining a demurrer to the complaint, comr 
plalnants appeal. Decree affirmed, and 
cause remanded, with leave to amend. 

Argued before MUNSON, C. J., and WAT- 
SON, HASELTON, POWEBS, and TAY- 
LOB, JJ. 

Edward H. Deavltt, of Montpeller, for ap- 
pellants. Jolm W. Gordon and S. HoUister 
Jackson, both of Barre, for appellees. 



MUNSON, C. jr. This complaint is prose- 
cuted by Frank M. Corry, trustee of the Wet- 
more & Morse Granite Company, against the 
Barre Granite & Quarry Comi>any and cer- 
tain of Its stockholders, in behalf of himself 
as trustee and all stockholders of the Barre 
Company not made parties defendant The 
complaint was demurred to for want of 
equity and on several grounds specially as- 
signed, and was adjudged insufficient and 
dismissed. 

nie Wetmore & Morae Granite Company, 
hereinafter referred to as the Wetmore Com- 
pany, is a corporation organized and existing 
under the laws of this state. The Barre 
Granite & Quarry Company, herein referred 
to as the Barre Company, is a corporation 
organized and doing business under the laws 
of Maine and having its principal offices at 
Portland in tliat state, and at Barre dty in 
this state. It was Incorporated for the pur- 
pose of carrying on the business of quarrying 
granite in the town of Barre In this state. 

The complaint alleges that the capital 
stock of the defendant corporation Is (200,- 
000, divided in 20,000 shares, of the par 
value of $10 eadi ; that the plaintiff trustee 
was, on the 7th day of August, 1916, and 
ever since has been, the owner of 105 shares 
of said sto<^; that ever since that date a 
majority of the stock of the defendant CN- 
poratlon has been owned and controlled by 
defendants Donald Smith, Angus A. Smith, 
U. Nelson Jackson, and S. Hollister Jackson. 

The matters alleged as the ground for re- 
lief are these: On the 10th day of August, 
1916, a special meeting of the stockholders 
of the defendant company was held in Port- 
land pursuant to a notice which specified as 
the business of the meeting the filling of 
vacancies in the board of directors, and to 
see what the corporation would do "to set- 
tle its indebtedness, whether by sale of its 
properties or otherwise; and If by sale, to 
empower an agent to make projier transfers 
end to wind up its affairs." At this meeting, 
the four stockliolders above named were 
elected directors to fill vacancies in the 
board, which as now constituted consists of 
five. The following resolution was then 
offered: 

"That it is the sense of this meeting that it 
will be to the advantage of the stockholders to 
sell all the assets of the corporation, settle the 
outstanding bills and dissolTe the corporation; 
the directors are therefore instructed to en- 
deavor to find a customer or customers for the 
property, and whenever they find a customer or 
customers who are ready and willing to purchase 
the whole or any part of said property at a 
price which in their judgment is advantageous 
to the stockholders, they are authorized to com- 
plete said sale and as agents of said corporation 
to execute and deliver • • • such instru- 
ments of sale as may be necessary. • * • " 

Mr. Deavltt, who was present as proxy 
for the plaintiff and another stockholder 
originally a party plaintiff, offered an am^id- 
ment which provided that any sale should 



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OORRT r. BA.BXB ORANITE * QUARRY CO. 



39 



be at imbllo aoctioit. This amendinent waa 
rejected by a vote of 6,601 diares to 106 
shares, and the resolution was then adopted 
by the same vote. The plaintiff's shares 
were voted In favor of the amendment and 
against the adoption of the reeolutlon. 
Ueavltt orally objected to the voting on these 
questions of the 6,599 shares owned by Don- 
ald Smith and H. Kelson Jackson, on the 
ground that they held the stock in behalf of 
the K L. Smith Company, a corporation or- 
ganized under the laws of Vermont, and 
that it was a fraud on the other stockholders 
to thus vote the stock, the E. L. Smith Com- 
pany being engaged in a business similar to 
that of the Barre Company, and there being 
other quarry companies and Individuals who 
were ready to purchase this property at 
auction. The assets of the Barre Company, 
other than book accounts and bills receivable, 
consist of land in the town of Barre upon 
which are located granite quarries, together 
with buildings, machinery, and personal 
property thereon, and on which the Barre 
Company has been for the past 10 years, and 
now is, engaged iu quarrying granite, having 
no quarrying or other business in any other 
place. Surrounding this land are lands own- 
ed severally by the E. L. Smith Company, 
the Wells-Lampson Quarry Comi>any, and 
the Wetmore & Morse Granite Company, all 
going Vermont corporations, engaged in the 
business of quarrying granite, and eadi bay- 
ing its principal office in this state. The 
land of the Barre Company is particularly 
valuable to these companies because of its 
location. The complaint avers upon Infor- 
mation and belief that the Individual defend- 
ants, being four of the five directors of the 
defendant company, have conspired together 
to operate said corporation and control a 
sale of its assets for their own personal ben- 
efit to the detriment of the plaintiff and 
other minority stockholders, and with Intent 
to deprive the minority stockholders of their 
property are arranging to turn over the as- 
sets of the corporation to the E. L. Smith 
Company, or some person for it, at a sum 
much less than its true value. It Is alleged 
that the plaintiff Corry is the president of 
the Wetmore Company; and that if the real 
and personal property of the defendant cor- 
poration is put up at auction, he will start 
the bidding on account of the Wetmore Com- 
pany at $120,000; and that the property Is 
worth $150,000 or more. 

The defendants invoke the rule that a 
court will not take Jurisdiction of the inter- 
nal affairs of a foreign corporation; and con- 
tend that the relief sought here would be an 
interference with the internal affairs of the 
defendant company. It is doubtless well set- 
tled that the general rule is as above stated ; 
but there Is some disagreement as to what 
constitutes the affairs thus designated, and 
courts have bad difficulty In formulating a 
rule to serve as a test In all cases, as will 



appear from an examination of the ded- 
siona See North Star, etc., Co. v. Field, 
64 Md. 151, 20 AtL 1089 ; Babcock ▼. Farwell, 
245 IU. 14, 91 N. B. 683, 137 Am. St Bep. 
284, 19 Ann. Gas. 74 ; State v. De Groat, 109 
Minn. 168, 123 N. W. 417, 134 Am. St. Rep. 
764; Condon v. Mutual Reserve Asso., 88 
Md. 99, 42 AU. 044, 44 I* R. A. 149, 73 Am. 
St Rep. 100; Madden v. Penn., etc.. Light 
Co., 181 Pa. 617, 37 Atl. 817, 88 L. R. A. 638. 
Except in cases involving the exercise of vls- 
Itorial powers, the question presented by ap- 
plications for relief in cases of this charac- 
ter "is not strictly cme of Jurisdiction, but 
rather of discretion in the exercise of Ju- 
risdiction." The refusal to take Jurisdiction 
is often put upon the ground of policy and 
expediency; on a want of power to enforce 
a decree rather than on a lack of Jurisdic- 
tion to make it Babcock v. Farwell; Ed- 
wards T. SchlUlnger, 245 111. 231, 01 N. EJ. 
1M8, 33 I* R. A. (N. S.) 805, 137 Am. St Rep. 
308; State v. No. Am. Land Co., 106 La. 621, 
31 South. 172, 87 Am. St Rep. 309; Chicago 
TlUe, etc., Co. ▼. Newman, 187 Fed. 673, 109 
O. C. A. 263; Beard ▼. Beard, 66 Or. 612, 
1.33 Pac. 797, 134 Pac. 1196; note, 19 Ann. 
Cas. 84 ; note, Ann. Cas. 1913E, 457. 

Irrespective of the question as to the prop- 
er test to be applied in determining what are 
the "internal affairs" of a corporation, It 
may safely be said that when a corporation 
is nonresident only In that it is the creation 
of another state — ^Its officers, agents, stock- 
holders, business and property all being with- 
in the Jurisdiction of the court — policy and 
expediency do not require the court to deny 
relief in a proper case on the ground that the 
Internal affairs of the corporation will be 
affected. Where the relief sought is within 
the general Jurisdiction of a court of chan- 
cery, and all the parties necessary to the full 
and proi)er aVlJustment of the rights involv- 
ed are before the court, and where the relief 
sought docs not require an exercise of the 
visitorial power of the government, the court 
should determine the controversy, Instead of 
remitting suitors to a foreign Jurisdiction. 
Babcock v. Farwell; Edwards v. SchlUlnger; 
State V. No. Am. Land Ca; Wlnebur^ v. 
U. S. Steam, etc., Co., 173 Mass. 60, 63 N. B. 
145, 73 Am. St Rep. 261; Richardson v. 
ainton, etc., Co., 181 Mass. 680, 64 N. E. 
400; Andrews v. Miner's Corporotlon, 205 
Moss. 123, 91 N. E. 122, 137 Am. St. Rep. 428; 
Travis V. Knox Terpezone Co., 215 N. Y. 250, 
109 N. E. 250, Ij. R. A. 1916A, 542, Ann. Gas. 
1917 A, 387, 12 R. C. L. 33. It was decided 
in Richardson ▼. Clinton, eta, Co., that a 
stockholder's suit brought to obtain relief 
from the fraudulent acts of the corporate 
officers Is in the nature of a suit by the cor- 
poration against wrongdoers, and may be 
brought In the state where the corporate 
officers and prtq^erty are located. See, also, 
Wilson Am. Palace Car Ca, 64 N. J. Eq. 634, 
54 AU. 415. 



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101 ATIANTIC REPORTEB 



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[1] It Is dear that the general subject- corporatloD In which they are shardiolders. 



matter of this complaint Is within the juris- 
diction of the coart of chancery. The de- 
fendant company, although a foreign corpo- 
ration, was chartered expressly for the pur- 
pose of doing business In this stata Four of 
Its five directors. Its business and its proper- 
ty, are within the territorial Jurisdiction of 
the court. The corporation and these direc- 
tors have been duly served and are before the 
court There is no obstacle to prevent the 
court's enforcement of its decree. In these 
circumstances, the classification of the af- 
fairs of the corporation which are involved 
in this proceeding, whether internal or other- 
wise, is of little or no conseqaence^ If the 
case stated in the bill is one which entitles 
the complainant to equitable relief, the relief 
may pr(^)erly be given, even If it Involves an 
interference with the internal affairs of the 
corporation. 

The charge as it stands, upon allegations 
adequately made. Is that the Individual de- 
fendants, who are a majority of the direc- 
tors, and own or control a majority of the 
stock, have conspired to so operate the coi^ 
poratlon as to effect a sale of its assets for 
their own personal benefit and to the detri- 
ment of the minority stockholders; and to 
this end have passed a vote to dispose of the 
property at private sale, and are arranging 
to transfer It to the E. L. Smith C!ompany, 
or some person for it, at a sum much less 
than Its true value, l^ese, and other allega- 
tions before stated, present the case of a cor- 
poration whose property is so located as to 
give It the advantage of competing offers, 
which refuses to sell at public auction, and 
proposes to sell to a certain party for an In- 
adequate consideration. The letter set up 
In the bill, in which the directors of the de- 
fendant company Invite the Wetmore Ck)m- 
pany to send them in writing Its best price 
for the property, does not meet the situation. 

[2] There are several matters stated in the 
bill whldi stand solely on an allegation that 
the complainant is Informed and believes. 
These cannot be considered; for as to these 
the demurrer admits nothing more than that 
the complainant Is so informed and believes. 
Bancroft v. VaU, 90 Vt — , 99 Atl. 1014. If 
one of the allegations thus defectively insert- 
ed was made good by an amendment adding 
the words "and therefore avers," it would 
appear that nearly all the stock of the E. U 
Smith Company, the proposed transferee, is 
owned by the four directors whom the reso- 
lution of the defendant ccnnpany empowers 
to make the sale. Upon the case as thus pre- 
sented there could be no room to doubt The 
directors of the defendant company would, 
in effect be selling the property to them- 
selves. The right to do this is denied to all 
persons acting in a fiduciary capacity. 

[3] The directors of a corporati<m cannot 
represent it In transactions with another 



if their Interest in the latter company might 
InViucc them to favor it at the expense of the 
comimny whose Interests have been Intrusted 
to their care. 1 Mor. Prl. Corp. | 620. 

The defect in the allegations pointed out 
renders the bill demurrable, and so the de- 
murrer was properly sustained. 

Decree afflrmed, and cause remanded, with 
leave to apply. 

(M. Vt tO) 
SANDERSON v. BOSTON & AT. B. B. 

(Supreme Court of Vermont Caledonia. May 
8, 1917.) 

1. Mastteb and Skbvant «=»276(7)— iKJUBiiea 
TO Servant — Safe Pi.aoe to Wobk— Evi- 
dence. 

Where a railroad brakeman testified that he 
was swept from a side car ladder by an unusually 
large car on the adjacent track, and that the 
car was not far enough away from the one upon 
which he was riding, it was unnecesBary that the 
size of the car and its distance from the other be 
determined by exact measurements. 

[Ed. Note. — For other cases, see Master and 
Servant Cent Dig. H 951, 950.] 

2. Master and Servant «=>246(2)— iNJtmiES 
to Servant— Duties or Servant. 

A railroad brakeman, accustomed to cars of 
a certain width, who, while riding on a side 
ladder, saw that his own car was approaching 
a car of unusual size and width, which would 
probably strike bim, and endeavored to escape, 
IS not responsible for the exercise of the coolest 
judgment while in such dangerous situation. 

[Ed. Note.— For other cases, see Master and 
Servant Cent Dig. { 791.1 

3. Evidence €=>20(2)— Judiciai, Notice. 

That consestion in larRe cities requires that 
many railroad tracks be laid close together, and 
that it is therefore not negligence so to lay 
them, is not a matter resting in judicial knowl- 
edge. 

[Ed. Note. — For other cases, see Evidence, 
Cent Dig. { 24.] 

4. Master AND Servant «=>] 12(1)— Duties 01 
Masters— Safe Place to Work. 

It is the dut7 of a railroad to jirovtde such 
tracks and cars, and such supervision of their 
use, as would afford Its servants a reasonably 
safe place in which to work. 

[Ed. Nota— For other casies, see Master and 
Servant Cent Dig. §| 212, 213, 218.] 

5. Master and Servant <S=»103(1)— Neoij- 
OENCE OF Master— LiABrLiTT. 

Negligence of a railroad, in making its 
tracks unnecessarily hazardous, is chargeable to 
it without inquiring as to the officers, agents, or 
servants by whose instructions or conduct the 
dangerous situation is created. 

[Kd. Note.— For other cases, see Master and 
Servant Cent Dig. | 175.] 

8. Master and Servant «=32]3(3)— Injuries 
TO Servant— Assumption of Risk, 
A railroad brakeman does not assume the 
risk of the extraordinary hazard of the pres- 
ence of an unusually large car on the adjacent 
track, which was so placed as to sweep any 
person from the side ladder of another car, un- 
less the risk was so obvious that the servant 
ought to have known of it 

[Ed. Note.— For other cases, see Master and 
Servant Cent Dig. | 661.] 



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SANDERSON y. BOSTON .Si M. B. B. 



41 



7. Mabtes a!»d Seitvant *=>150(8)— DurntB 

OF Master— Wabnino. 
If the master maintains, as to his places of 
work, a risk of which the servants are excusably 
ignorant, it is the master's duty to instruct and 
caution them regarding the danger. 

[Ed. Note.— For other cases, see Master and 
Servant, Cent Dig. S 305.] 

& Masteb and Servant e=»247(l)— Injubies 

TO SEBVANT— CONTRIBCTOBY NEQLiaENCE. 

Where a railroad permitted an unusually 
large car to be hauled, and negligently allowed 
it to stand, so that it would sweep any person 
from the side ladder of a car on an adjacent 
track, a brakcman'e contributory negligence 
would not bar his recovery for injuries, since it 
could not be said to be the sole cause of his in- 
jury. 

(Ed. Note.— For other cases, see Master and 
Servant, Cent Dig. g 795.] 

Exceptions from Caledonia County Court; 
Zed S. Stanton, Judge. 

Action by Percy D. Sanderson against the 
Boston & Maine Railroad. Judgment for 
plaintiff, and defendant excepts. Affirmed. 

Argued before MUNSON, a J., and WAT- 
SON, HASEI/rON, POWERS, and TAY- 
LOR, JJ. 

Porter, Witters & Harvey, of St Johns- 
bury, for plaintiff. George B. Toung and 
Walter H. Cleary, both of Newport, for de- 
tendant. 



MUNSON, 0. J. The plaintiff, a hraiceman 
employed by the defendant, was injured In 
the defoidant's freight yard at Lowell, Mass., 
while upon the upper rounds of the side 
ladder of a moving freight car, by striding 
against the corner of one of several freight 
cars which were standing together on 
another track. The suit is brought under the 
federal Employers' Ldability Act (Act April 
22, 1908, c. 149, 35 Stat 66 [U. S. Comp. St 
1016, {{ 8657-8665]), and seeks to recover on 
account of tlie negligence of the defendant 
as alleged in a declaration and amendment 
thereof containing 17 counts. The only ex- 
ception argued is one taken to the overrul- 
ing of the defendant's motion for a directed 
verdict. The grounds of the motion as there- 
in stated present the claims that there is no 
evidence tending to show negligence on the 
part of the defendant ; that on the evidence 
presented the sole cause of the accident was 
the plaintiff's negligence; that the risk was 
one naturally incident to the plaintiff's em- 
ployment and therefore an assumed risk; 
that the risk was due to a permanent condi- 
tion, of which the plaintiff had or ought to 
have had knowledge, and was therefore as- 
sumed by bis continuing in the work without 
objection. The testimony of the plaintiff is 
all the evidence we have regarding the loca- 
tion of the tracks and the manner in which 
be received his injury. 

The plaintiff had worked for the defendant 
as a brakeman over three years, first ir- 
regularly as a spare hand, and afterwards 



continuously on a regular extra train. His 
runs during this time were on different lines, 
some of which passed through the Lowell 
yards, where there was frequently some 
shifting of cars by the crew. At the time 
of the accident, which occurred Just before 
dark, the plaintiff was the flagman and had 
the care of the lamps, and these he had 
ready for lighting before going to the work 
in which he was injured. He testified that 
he was sometimes called upon to assist the 
conductor, and that It was his duty when 
his own work was done to help get the train 
over the road. On this occasion he had been 
helping the conductor check up some cars, 
and had afterwards gone forward on the top 
of the rear cars letting off some brakes. In 
thus passing up the train he came to the car 
on which he was injured, and started to go 
down the side ladder to set a switch. As he 
was beginning to descend he glanced ahead, 
and saw, some 35 feet away, among the cars 
standing on the next track, one which stood 
out further than the rest, which he thought 
would not dear him. He attempted to get 
back upon the roof of the car, but was hit by 
the projecting car and thrown to the ground. 
The plaintiff testified that no one asked him 
to set this switch, but that there was no one 
else there to do it; that the middle man 
sometimes set the switch; and that he 
thought he was then on that section of the 
train. 

The plaintiff testified that he had occasion- 
ally helped in making shifts in this yard, but 
was not very familiar with the tracks; that 
he had never known of a brakeman being 
knocked off a side ladder by a car on another 
track; that he had never been told or cau- 
tioned regarding such a risk, and had never 
known but what, between tracks, there was 
room enough to ride on the ladder ; that he 
had seen cars that were not set in to clear, 
where a man riding on the side would get 
hit; that the rule was to set cars In far 
enough so that they would clear, and that he 
always supposed that that was the practice, 
but that he did not knbw as he had observed 
enough to know what the practice was ; that 
cars could not be left on a curve, but must 
be on where the track was straight, and that 
all that was necessary was to have them far 
enough on to clear everything on the next 
track ; that where he had testified about 
clearing the cars he meant clearing the car 
and a person on the side of it 

In one place the plaintiff testified that he 
'did not know whether the car he struck 
stood on a cross-over or not ; but he stated 
elsewhere that they had passed cars before 
coming to this one, and that there were cars 
beyond this, and these statements Indicate 
that the car was not on a cross-over. De- 
fendant comments upon the answers which 
the plaintiff gave in stating what he under- 
stood the requirement to be as regards ade- 



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101 ATLANTIC REPORTEB 



(Vt 



quate provision for the "clearing" of the 
cars, and calla attention to the fact that it 
was not until after plaintiff's counsel had had 
an opportunity to confer with him that he 
changed his testimony to include the clearing 
of a person on the car, and Insists that this 
change Is not sufficient to do away with the 
effect of his previous testimony. But It was 
manifestly for the Jury to say what the 
plaintiff Intended by his earlier answers, and 
what fact his evidence on this point as a 
whole tended to establish. 

[1] It is said there was no evidence as 
to the exact distance between the tracks, 
nor as to the distance necessary to make 
them safe, and no evidence as to the size of 
the car which struck the plaintiff, nor that 
it was a large car. It was not necessary 
that these matters should be determined by 
measurement The plaintiff's description of 
the car as he saw it was evidence tending 
to show that it was a large car. Ttds car, 
standing on a parallel track, struck the 
plaintiff while he was on the side ladder of 
a car. This was evidence tending to show 
one of two things — either that the tracks 
were too close to one another, or that the car 
was too wide to be used where cars were 
equipped with side ladders. It is said that 
the plaintiff's injury resulted from a fixed 
and unchanged condition which extended 
throughout bis period of service. But this 
condition, ordinarily safe, was made dan- 
gerous by the introduction of a car not adapt- 
ed to it It is argued that the sole cause 
of the accident was the plaintiff's failure 
to select for his descent a car which had an 
end ladder. There is no evidence that any 
of the cars had such a ladder. It is said 
that the plaintiff was working as a volun- 
teer. The plaintiff testified that after his 
special work was done it was his duty to 
assist in getting the train along; that he was 
then doing the work on the rear end of the 
train; and that he was going down to set a 
switch to enable it to back out on another 
track. l%iB was evidence tending to show 
that his injury was received while In the 
line of his duty. 

[2] It is argued that the risk which the 
plaintiff encountered was open and obvious, 
and must have become known to him during 
his employment The danger arose from 
the unusual width of the car standing on 
the parallel track, in connection with an 
allowance of q^ace between the tracks suffl- 
<dent only for cars of ordinary width. A 
trainman riding on the top of a freight car 
could hardly be expected to Judge accurately 
of the sufficiency of such a space to answer 
an unusual and unexpected requirement 
The plaintiff prudently acted on the supposi- 
tion that the tracks were not far enough 
apart to permit him to clear a car of un- 
usual width, and endeavored to avoid the 
danger, as soon as be discovered it It is 
said, however, that be saw and appreciated 
the danger before he reached the car, and 



that be could have seen and appreciated it 
in time to avoid all risk, If he had looked 
ahead carefully before starting to descend, 
and that In undertaking to escape from the 
danger he did not act with prudence and 
promptnesa But it cannot be said as mat- 
ter of law that be ought to have seen the 
car sooner, and a servant who suddenly finds 
himself In a dangerous situation, for whldi 
he Is not rcsi)onsible, is not held to an exer- 
cise of the coolest Judgment 

[3] It is said that in large freight yards 
in cities it Is absolutely essential that there 
be many tracks close together, and that it 
is not negligence to have them so arranged. 
This statement, as applied to the situation 
presented here, cannot be accepted as assert- 
ing a fact resting in Judicial knowledge. The 
language is evidently based on what was 
said In the opinion In Randall v. B. & O. B. 
R. Co., 109 U. S. 478, 8 Sup. Ct 322, 27 I* 
Ed. 1003, where the plaintiff was struck 
by an engine while standing in an unneces- 
sarily exi)osed position to throw a ground 
switch, which was required, instead of an 
upright one, because of the nearness of the 
tracks. The reference in this connection to 
the necessity of a great number of tracks 
and switches close to one another cannot 
properly be applied to the sections of paral- 
lel trades existing between the diverging and 
approaching sections connected with the 
switches. If there was a necessity for the 
proximity of these tracks which oonld af- 
ford a basis for the claim that the risk of 
such a collision as occurred here was assum- 
ed by the plaintiff, it was a fact for the 
defendant to establish by evidence. 

[4-1] The inquiry is whether the evidence 
shows a case for the plaintiff under the fed- 
eral Employers' Liability Act It was the 
duty of the defendant to provide such tracks 
and cars, and such supervision and regulation 
of their use, as would afford the plaintiff a 
reasonably safe place in which to do bis 
worlc The evidence of the plaintiff discloses 
a negligence in this respect which made his 
place of work unnecessarily hazardous; and 
this negligence is chargeable to the defendant, 
without inquiring as to the officers, agents, 
or servants by whose instructions or conduct 
the dangerous situation was created. The 
situation being due to the defendant's neg- 
ligence, it was not an ordinary, but an ex- 
traordinary, risk, and therefore a risk not as- 
sumed by the plaintiff, unless he knew and 
comprehended it, or unless it was so obvious 
that he ought to have known and compre- 
hended it If It was a risk of which the 
plaintiff was excusably ignorant, it was the 
duty of the defendant to instruct and cau- 
tion him regarding it There was evidence 
tending to show that the risk was not ob- 
vious, and tbat the plaintiff had no knowl- 
edge of It, and that no instruction or cau- 
tion regarding it bad been given. If the 
plaintiff himself was negligent In any par- 
ticalar, this will not bar his recovery, for 



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COUJNS T. CITT OF BABKB 



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It cannot be said that Ms negligence was the 
sole canse of his Injury. 

The claim that there was no evidence tend- 
ing to support the charge of negligence as 
presented in any single count is sufficiently 
met by the views already expressed. See 
generally Lynch t. Central Vt Ey. Co., 89 
Vt 363, 95 Atl. 683; White v. Central Vt 
By. Co., 87 Vt 330, 89 Atl. 618; Central Vt 
Ky. Ca V. White. 238 U. S. 607, 35 Sup. Ct 
865, 59 I.. Ed. 1433, Ann. Cas. 1916B, 252; 
Carleton v. Fairbanks Co., 88 Vt 537, 93 
Atl. 462; Morrlsette v. Canadian Pac. R. 
R. Co., 74 Vt 232, 62 Atl 620; McDuffee v. 
Boston & Maine Rd., 81 Vt 62, 68 Aa 124, 
130 Am. St Rep. 1019. 

Judgment affirmed. 

(91 vt M) 

COLLINS et aL V. CITY OF BARRB. 

(Supreme Court of Vermont Washington. 
May 1, 1917.) 

1. Mttkicipai, Cobpobations «=»292(1), 293(4), 
— Stbeets— Chanoe of Gbadk — Xotick. 

Under P. S. 3878 providing that the road- 
bed of a highway Bhall not be cut down or 
raised more than 3 feet without notice having 
been first given to the owners of the time and 
place of a hearing in respect thereto and sec- 
tion 3879, providing that on determination that 
a roadbed snould be altered by lowering or rais- 
ing the same more than three feet, sucn change 
may be ordered and the damages, if any, to 
the owners, be determined and awarded, street 
oommisaioners were without jurisdiction to act 
on the question of raising a roadbed more than 
3 feet where the petition presented to them 
asked merely for a resurvey and a relocation 
of a portion of the street and the notice pub- 
lished and given to abutting landowners of a 
hearing on the petition did not show that any 
question pertainmg to the raising of the road- 
bed was to be considered and no person interest- 
ed in the property was present on the hearing 
of the petition or consented to the raising of 
the roadbed or waived any rights relating 
diereto. 

[Ed. Note.— For other cases, see Municipal 
Corporations, Cent Dig. g 776.] 

2. Venoob Ann Pubchaseb «=>229(8)— Con- 
STEUCTivB Notice — Change or Gbaoe of 
Stbeet. 

The record of proceedings of street commis- 
Bioner& wherein they changed the grade of a 
street by raising the roadbed more than 3 feet 
was not constructive notice of such action to 
a snbseqnent purchaser, where the commission- 
ers were without jurisdiction in the matter. 

[Sid. Note.— For other cases, see Vendw and 
Purchaser, Cent Dig. | 488.] 

3. MuNiciFAi. Cobpobations «=>404(1) — 
Chanoe of Gbadb— Rioht to Reukf— Ade- 
quate Remedy at Law. 

Where the roadbed of a street is raised by 
the street commissioners without legal authority, 
it cannot be urged against a bill in equity for 
relief that there was au adequate remedy at 
law, 

[Ed. Note.— For other cases, see Mnnidpal 
Corporations, Cent Dig. { 969.] 

4. Equity «=»219— Laches— Dbmubbkb. 

The defense of laches cannot be raised by 
demurrer to a bill in equity. 

[Ed. Note.— For other cases, see Equity, Cent 
Dig. H 496, 498-500.] 



Appeal in Chancery, Washington County; 
B. L. Waterman, Chancellor. 

Snit by Kate L. Collins and others against 
the City of Barra From a pro forma decree 
dismissing the bill for want of equity, plain- 
tiffs appeal. Reversed and remanded. 

The bill In this case was, pro forma, held 
insufficient on demurrer, and dismissed for 
want of equity. The cause is here on plain- 
tiffs' appeal. The facts stated below appear 
from the allegations in the bill. 

The premises in question, being a dwelling 
house and lot situated on Warren street in 
the city of Barre, were conveyed to the 
plaintiff Kate U Collins on March 31, 1908, 
by George F. Lackey and Nettie E. Lackey, 
Yfy their deed of that date, recorded In the 
land records of the dty of Barre. The plain- 
tiff O. R. Collins is the husband of Kate L. 
The plaintiff Capital Savings Bank & Tmst 
Company holds a mortgage on the premises, 
given by Kate L. and her husband, on May 
17, 1909, which Is unpaid. At the time this 
mortgage was given the premises were worth 
$1,500 or $1,600. At the time of the afore- 
mentioned conveyances, the grade of War- 
ren street (which was in front of and the 
only means of access to said premises) was 
about on a level with the bottom of the un- 
derpinning resting on the foundation sup- 
porting the dwelling house. Since those 
conveyances the dty has raised the roadbed 
of Warren street opposite and In front of 
these premises, so that the street as now 
traveled and used is about on a level with 
the eaves of the dwelling house, or about 12 
feet above the street as it was traveled and 
used at the time of the aforementioned con- 
veyances. By reason of this change in the 
grade of the street, the premises have been 
rendered of little value, being worth less 
than $500. 

On the 18th day of July, 1908, when one 
Cora B. Churchill and her husband, C, A. 
Churchill, were the owners of the premises 
in question, and residents of the city of 
Barre, a. petition signed by certain landown- 
ers on Warren street and addressed to the 
board of street commissioners, dty of Barre. 
was presented to the city coundl, requesting 
a resurvey and a relocation of the south- 
easterly end of Warren street for about 
285 feet representing that the public good 
and the convenience and necessity of in- 
dividuals demanded that such resurvey and 
relocatlcm should be made, and waiving all 
claims for damages which the petitioners 
might be, by law, entitled to receive. This 
petition was referred by the dty council to 
the board of street commissioners, with In- 
structions to have said portions of Warren 
street resnrveyed and relocated in accord- 
ance with the petition if the same could be 
done without expense to the dty. On July 
24th the street commissioners Issued a notice, 
stating that such a petition had been pre- 



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101 ATLAMl'IO REPORTER 



(Vt 



aented to them, "asking that the easterly 
end of V\"arren street for about 200 feet 
should be resurveyed and relocated," and 
further stating that the dty council had, by 
vote, decided "that said portions of said 
street should be resurveyed and relocated 
if In the Judgment of said commissioners 
after a public hearing It should appear that 
the pubUc good and convenience and neces- 
sity demand that said resurvey and reloca- 
tion should be made, and if said relocation 
can be made without expense to the said 
city." The notice then stated the time when, 
and the place where, the street commission- 
ers 'would bear "all those interested in said 
resurvey and relocation of said portion of 
Warren street," eta This notice was pub- 
lished in the Barre Daily Times, and a type- 
written copy thereof was served on the dty 
attorney and on Mrs. C. A. C?harchlll and 
Mrs. H. M. Dillingham personally, and on 
O. A. Churchill, James Balgries, and F. N. 
Braley, by leaving copy at residence. The 
record of the report of the proceedings upon 
the petition (set forth in the bill) states that 
the commissioners met at the time and place 
set forth in the notice, "and did hear all 
those who were present, and who were In- 
terested In the resurvey and relocation of 
said portion of said street," and viewed the 
premises; and "thereafter adjudged that 
the public good and the convenience and ne- 
cessity of Individuals did demand that said 
street should be resurveyed and relocated ac- 
cording to plans which accompany the re- 
port and which have been prepared by" the 
dty engineer, bearing date of December 2, 
1903, "now on file in the office of said en- 
gineer." The r^>ort then proceeds as fol- 
lows: 

"We have also established the grade of said 
portion of said street as shown on plans which 
accompany the report, and which bear dote of 
December 8d and which were prepared by aaid 
city engineer." 

The report also states that the commission- 
ers have awarded no one any damages, as 
no one claimed damage, and that In their 
"Judgment all received benefits equal to any 
damage which they received by reason of 
said resurvey and relocation and grade es- 
tablished." This report was dated December 
8, 1903, signed by the street commissioners, 
and received for record in the city clerk's 
office on the same day. 

Neither Cora E. Churchill nor her hus- 
band was present at the hearing ha'd pur- 
suant to the aforementioned notice, and they 
never had any notice from the dty council, 
the street commissioners, or any other dty 
official that any change In the grade of War- 
ren street In front of their said premises 
was contemplated or for consideration. Nei- 
ther the Churchllls nor any other of the 
plaintiffs' predecessors In title were ever 
notified of any time when the dty council or 
any other officials of the city would hear the 
owner or owuen of the premises now owned 



by the plaintUfs, npon the question of mak- 
ing any alteration or diange in the grade of 
Warren street In front of the same and in 
front of the dwelling house thereon, and none 
of them ever attended any hearing upon the 
question of 'damages occasioned by reason of 
any such alteration or change of grade. The 
plaintiffs aver that the action of the dty 
council and street commissioners. In so far 
as It pertained to an alteration or change of 
grade of Warren street In front of the dwel- 
ling house mentioned, was without legal au- 
thority or Justification, and was of no legal 
effect so far as those premises are ctmcemed. 

No change was made in the grade of that 
street in front of the premises In question 
after the proceedings upon the petition In 
1908, until after the plaintiff Kate U Col- 
lins had becmne the owner of said premises; 
but slnoe that time the roadbed of that street 
in front of the dwelling house on the plain- 
tiffs' premises has been raised more than 3 
feet by the dty, there being a continuous de- 
positing of earth and stone there, covering a 
period of 2 or 3 years, which had the effect 
of raising the roadbed at that point about 12 
feet. All this was done by the dty without 
any notice to, or i>ermlsslon of, the plaintiffs, 
and the latter have never been tendered any 
damages caused thereby. The plaintiffs' 
premises have been damaged by this alleged 
unlawful action on the part of the dty to an 
amount exceeding $1,000, the house thereon 
being rendered uninhabitable; and the pres- 
ent condition of Warren street in this respect 
constitutes a continuing Injury to the plain- 
tiffs, and an unwarranted and unlawful act 
by the dty. The plaintiffs further aver that 
the action of the city In raising the roadbed 
In front of their premises in the way and 
manner described was an invasion of their 
constitutional rights, In that It deprived them 
of their property without due process of law. 

Argued before MUNSON, O. J., and WAT- 
SON, HASELTON, POWE3BS, and tTAY- 
LOR, JJ. 

Frank J. Marshall, of Montpeller, for ap> 
pellants. Edward H. Deavltt, of Montpeller, 
for appellant Capital Savings Bank & Trust 
Co. William Wishart, of Barre, for appdlee. 

WATSON, J. [1] Section 3878 of the Pub- 
lic Statutes provides: 

"A selectman or road commissioner shall not 
alter a highway, by cutting down or raising the 
roadbed in front of a dwelling house or other 
building standing upon the line of such high- 
way, more than three feet, without first giving 
notice to the owners thereof, of a time when 
the selectmen will examine the premises, hear 
them upon the question of making such altera- 
tion and damages by reason of such alteration ; 
at which time, the selectmen shall attend and 
hear said owners, if they desire to be heard." 

By section 3879, if it shall be determined 
that the public good, or the necessity or con- 
venience of individuals requires that such 
roadbed be altered by lowering or ralsiug 
the same more than 8 feet, such change may 



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HOWE T. CENTRAL VERMONT RT. CO. 



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be ordered, and tbe damages, If an^, to the 
owners sbaU be determined and awarded. 
The Interpretation of the law of these sec- 
tions was before this court in Fairbanks t« 
Rockingham, 75 Vt 221, R4 AtL 186, and it 
was there held that an alteration In the road- 
bed In the sense of the statute begins when 
the lowering or raising of the roadbed ex- 
ceeds 3 feet; that a change in this respect 
of not more than 3 feet Is regarded by the 
statute as in the nature of ordinary repairs, 
and not as an alteration of tbe highway^ 
So the case before us rests upon the allega- 
tions showing the raising of the roadbed In 
question to the extent of about 9 feet In ex- 
cess of that considered as of ordinary re- 
pairs. Such an alteration was not within the 
scope of the petition to the street commis- 
sioners, asking for a resurvey and a reloca- 
tion of that portion of Warren street, nor 
did the notice published and given to abut- 
ting landowners of a bearing on the petition 
show that any question pertaining to tbe rais- 
ing of the roadbed was inrolved or to be con- 
sidered. The matter of grade is not mention- 
ed In the record of those proceedings until 
that part of the report of the street com- 
missioners which shows tbelr doings and 
condusions reached. No one interested in the 
property here In question was present at the 
bearing had on the petition, nor consented 
to raising the roadbed, nor waived any rights 
relating thereto. On the question of making 
such alteration, as well as on the question 
ot damages, the owner of the property in 
question was entitled to notice and an op- 
portimlty to be heard. This was required by 
tbe statute, and was essential to the Jurisdic- 
tion of the street commissioners of the sub- 
ject-matter of those questions. Without com- 
pliance with the statute in this regard, the 
commissioners were without Jurisdiction to 
act on any question of raising the roadbed 
more than 3 feet, and their actions in this 
respect were void so far as tbe owners of the 
property In question are concerned. La Far- 
rier V. Hardy, 66 Vt. 200, 28 AtL 1030; Lynch 
V. Rutland, 66 Vt 570, 29 Atl. 1015 ; Barber 
T. Vinton. 82 Vt 327, 73 AtL 881 ; Wheeler v. 
St Johnsbury, 87 Vt 46, 87 AtL 349. 

[2] It is urged that at the time of tbe pur- 
chase by Mrs. Collins of the premises In 
question she knew, or should have known, 
that the records of Warren street then on 
file In tbe city clerk's office provided for the 
grade that was subsequently established. No 
notice of this kind in fact is shown; and 
since the action of the street commissioners 
In establishing a grade of more than 3 feet 
raise of the roadbed was without Jurisdic- 
tion of the subject-matter, as against the 
owners of the property in question, the rec- 
ord of the doings of the commissioners In 
this respect was not constructive notice to 
Mrs. Collins when she took the property by 
purchase. 



[S] It is further urged that the plaintiffs 
have an adequate remedy at law, and there- 
fore this bill In equity will not lie. But the 
case of Wheeler v. St Johnsbury, cited above, 
is full authority to the contrary. There, in 
a case sufficiently like the one at bar as to 
equity Jurisdiction to make It controlling 
here, it was held that equity bad Jurisdic- 
tion on two grounds, namely, for want of an 
adequate remedy at law, and the prevention 
of a multiplicity of suits. 

[4] And, finally. It is said that the plain- 
tiffs are guilty of laches even if they were 
ever entitled to damages. But this defense 
cannot be raised by demurrer. Drake v. 
Wild, 65 Vt 611, 27 Atl. 427; Gleason v. 
Carpenter, 74 Vt 899, 62 AU. 966; Wllder's 
Ex'r v. Wilder, 82 Vt 123, 72 AtL 203. 

Pro forma decree reversed, bill adjudged 
sufficient and cause remanded. ' 



(n vt my 

HOWE T. CENTRAL VERMONT RY. CO. 

(Supreme Court of Vermont Windham. May 
24, 1917.) 

1. Railboads €=9314— Cbobsinq Accidents- 
Condition or Right or Wat. 

P. S. 4478, provides that every railroad cor- 
poration in the state shall cause all trees, shrubs, 
and bushes to be cat within tbe surveyed bound- 
aries of their lots for a distance of 80 rods in 
each direction from all public grade crossings. 
Section 4479 provides that on neglect so to do, 
after 60 days notice in writing, tlie selectmen 
of tbe town shall cause the same to be cut each 
year, and the railroad shall be liable for all 
damages occasioned thereby. Held, that no ac- 
tion for personal injuries can be maintained on 
the basis of such failure to clear the right of 
way in the absence of the written notice by the 
selectmen. 

[Ed. Note.— For other cases, see Railroads, 
Cent. Dig. S 965.] 

2. Railroads «=>348(4)— Cbobsino Accidents 

— SlONALS. 

In an action for personal injuries incurred 
in a collision between a locomotive and the au- 
tomobile in which plaintiff was riding at a rail- 
road crossing, evidence held to sustain a finding 
that the locomotive whistle was blown at a dis- 
tance of SO rods from the crossing. 

[Kd. Note.— For other cases, see Railroads, 
Cent. Dig. if 1141, 1142.] 

8. RArLKOADs ®=»350(7) — Raii-soad Cboss- 
ING8— Signals — Question of Fact. 
Under P. S. 4431, requiring signals at a 
crossing, and section 4432, providing for a fine 
for neglect to give required signals, the question 
as to tbe company's liability for an injury caus- 
ed by failure to give signals is for the jury upon 
evidence as to whether the omission to give the 
signal was reasonable and prudent. 

[Ed. Note. — For other cases, see Railroads, 
Cent Dig. { 1161.] 

4. Neouokncb «=>93(3) — Ikputkd Nequ- 

OENCE. 

Where a child about 2% years old was in- 
jured in an automobile driven by her grandpar- 
ents, in a collision on a railroad crossing, the 
contributory negligence of the grandparents 
could not prevent a recovery if defendant rail- 
road company was gnilty of negligence. 

[Ed. Note.— For other cases, see Negligence, 
Cent Dig. g 150.] 



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101 ATLANTIC REPOBTBR 



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5. NsoLiamroB 4s>83(S) — Iupttted Keou- 

OBNCK. 

Where a child taken for a ride by her par- 
ents in an automobile was injured in a collision 
at a railroad crossing, recovery could not be 
denied on the ground that plaintiff was engaged 
in a common enterprise with the others in the 
car, and that their negligence was imputable 
to her. 

[EM. Note.— For other casee, see Negligence, 
Cent Dig. { 160.] 

£>xceptlons from Windham County CoTirt; 
Wlllard W. Miles, Judge. 

Action by Marion Howe against tbe Cen- 
tral Vermont Railway Company. Verdict for 
plaintiff, and defendant excepts. Reversed 
and remanded. 

Argued before MUNSON, C. J., and WAT- 
SON, HASELffON, POWiKS, and TAY- 
LOR, JJ. 

(Herbert G. Barber and F. B. Barber, both 
of Brattleboto, for plaintiff. J. W. Redmond, 
of Newport, and Cliarles F. Black, of St Al- 
bans, for defendant 

WATSON, J. In tUs action the plaintiff 
sues by her next friend to recover for Inju- 
ries received by her on September 10, 1915, 
at the defendant's grade crossing known as 
"Parks Siding," In tbe town of Townshend, 
this state, by reostm of the defendant's loco- 
motive colliding with thel automobile tn 
wlilch she was riding. The automobile came 
upon the crossing from :the east, going 
towards the west. Tbfi plaintiff was then 
two years and seven months of age, and lived 
with her parents In the town of Newfane, 
Hbout two miles from tbe home of her grand- 
oarents, Herbert Q. Howe and his wife, Nora 
L. Howe, who lived In the town of Brookllne. 
On the morning in question, pursuajit to an 
arrangement previously made between the 
grandfather and the plaintiff's parents, the 
plaintiff went with her parents to the house 
of her grandfather to go to the Londonderry 
fair In the tatter's automobile. The party, 
consisting of the grandfather, the grandmoth- 
er, their son, Glen Howe, the plaintiff, her 
father, and her mother, started In the auto- 
mobile at 7 o'clock and 20 minutes for Lon- 
donderry. The grandfather was the driver 
of the car, and with him sat Glen. The 
grandmother was seated on the extreme right 
of the rear seat, holding the plaintiff In her 
lap. The plaintiff's mother and her father sat 
at tbe left of the grandmother. In the order 
named. Seven miles from the place of start- 
ing was the crossing In question, with whl<di 
the plalntifTs grandfather and her father 
were well acquainted, and had often been 
over It In both directions In an automobile. 
They both knew tbe time the morning train 
from Londonderry was due at the crossing, 
and understood it was due to leave West 
Townshend, about 2 miles north of the cross- 
ing, at 7:45 a. m. The accident occurred a 
lltUe before 8 o'clock. The driver threw the 
car Into low gear about opposite the crossing 



signal post which was about 50 or 60 feet 
from the last rail, and kept it in low gear 
thereafter. While the car was In low gear. 
It proceeded at a speed of not more than 4 
to 6 miles an hour, with no attempt to In- 
crease tbe speed before it was struck by the 
locomotive. When the car was almost over 
the crossing. It was struck by the west end 
of the breast beam of the locomotive six 
Inches from the rear of the body of the car, 
throwing the occupants out, iitjuring the 
plaintiff and wrecking the car. 

The declaration states two grounds of neg- 
ligence upon which the action Is founded: (1) 
That the defendant did not give the required 
warning signal when its train was approach- 
ing tbe crossing In question either by ring- 
ing the bell or sounding the whistle ; and (2) 
that defendant allowed trees, shrubs, and 
bushes to grow and remain within the bound- 
aries of Its right of way within a distance of 
80 rods In each direction from said crossing, 
the plaintiffs view, as tbe automobile neared 
tbe crossing, being thereby obstructed. 

At the close of the evidence the defendant 
moved for a directed verdict on several 
grounds which may be condensed and ade- 
quately stated for the purposes of the case, 
as follows: (1) There la no evidence in the 
ease tending to show any negligence on the 
part of the defendant that was the proxi- 
mate cause of the Injury ; (2) on all the evi- 
dence, the proximate cause of the Injury 
complained of was the negligence of the driv- 
er of the automobile, or of the father of the 
plaintiff, or of the mother of the plaintiff, or 
of some or all of them; (3) on all the evi- 
dence, the driver of the automobile and tbe 
father of the plaintiff were jointly or sever- 
ally guilty of contributory negligence, which 
contributory negligence is Imputable to the 
plaintiff; (4) on all tbe evidence, the occu- 
pants of the automobile were engaged in a 
common enterprise, and therefore the con- 
tributory negligence of the driver Is Imputa- 
ble to the plaintiff; and (5) there is no evi- 
dence tending to show any actionable negli- 
gence on the part of the defendant because of 
the growth of shrubbery or trees upon its 
right of way. To the overruling of the mo- 
tion defendant excepted. 

[1 ] The action, aa to the second ground of 
negligence stated above, was treated by the 
court and by counsel on both sides through- 
out the trial below, as based upon section 
4478 of the Public Statutes, which reads: 

"A person or corporation operating a railroad 
in this state shall cause all trees, shrubs and 
bushes to be cut within the surveyed boundaries 
of their lands, for a distance of eighty rods in 
each direction from all public grade crossings." 

By section 4479: 

"If said person or corporation neglects or re- 
fuses to remove the trees, shrubs and bushes^ as 
required by the preceding section, after sixty 
days' notice in writing, given by the selectmen 
of the town in which such trees, shrubs and 
bushes are located, and cause the same to be cut 



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in the month of October each year thereafter, 
said person or corporation shall be liable for all 
damages occasioned thereby." 

The law of these two sections was einacted 
in sections 1 and 2 of No. 93, Acts of 1904, 
and related to the same subject-matter. It Is 
a prerequisite to liability under it that no- 
tice be given as specified In section 4479. 
The evidence did not show, and it Is not 
claimed, that any such notice was ever given 
to the defendant Therefore the action can- 
not be maintained on the basia of such statu- 
tory negligence. Although this Is not deter- 
minative of the motion for a directed verdict, 
there being questions to be considered there- 
on In connection with the other alleged 
ground of defendant's negligence, yet it fol- 
lows that the exceptions to the submission to 
the Jury of the question of defendant's lia- 
bility for failure to keep the shrubbery cut 
within the limits of its roadway must be sus- 
tailed, as must also the exception to the ren- 
dering of Judgment against the defendant on 
the special finding of the Jury that the shrub- 
bery in said roadway was tlie proximate 
cause of the injnry. 

[2] There was the negative testimony of 
several of plaintiff's witnesses to the effect 
that they did not hear any beli ring nor 
whistle blow before the accident; while the 
testimony of other witnesses was that they 
heard the whistle blow baclc some distance 
from the crossing in question, which, fairly 
construed, may be said to warrant a finding 
ttiat the whistle was blown in the vicinity 
of 80 rods bade from the crossing. There 
was no evidence that the bell was rung at 
that place or between there and the crossing. 
For the: purposes of the case on the motion 
for a verdict, we consider the evidence as 
showing that the bell was not rung at all 
when the train was approaching the crossing, 
and that the whistle was blown 80 rods from 
the crossing, but not afterwards and before 
the accident. 

[3] It is said on the part of the defendant 
that thus blowing the whistle was a compli- 
ance with the provisicms of section 4431 of 
the Public Statutes, requiring signals when a 
train Is approaching a public highway cross- 
ing at grade; wliile the plaintlfT contends 
that tills Is not so, for that to constitute a 
compliance with the statute by blowing the 
whistle the blowing must begin back at least 
80 rods from the place <rf the crossing and 
continue until the crossing has been passed. 
The statute reads: 

"A bcU • • • shall be placed on each lo- 
comotive engine, and be rung at the distance of 
at least eighty rods from the place where the 
railroad crosses a road or street at grade, and 
be kept ringing until it has crossed such road 
or street; or the steam whistle may be blown 
instead of ringing such bell." 

The next section (4432) provides that, if 
a person or corporation owning or operating 
a railroad unreasonably neglects or refuses 
to comply with the foregoing provisions, it 
shall be fined, etc. The law of these sections 



was first enacted In 1849, and has hitherto 
remained In force without any change in 
words or substance material to be noticed 
here. Its construction came before this court 
as early as 1864, dn an action on the case 
for damages to horses and harnesses on a 
public highway railroad crossing. It was 
there held, in effect, that the two sections 
should be construed together; that by the 
first section it is required that the bell shall 
be rung or the steam whistle blown at least 
80 rods from the place of the crossing on 
the same grade, and that 'the ringing or 
blowing shall be continued until the engine 
shall have passed such crosaing" ; that, 
though In that section the requirement is af- 
firmative and unconditional, yet by the law 
of the second section, if any railroad cor- 
I)oratlon shall unreasonably neglect or re- 
fuse to comply with such requisitions, they 
shall forfeit, for every such neglect or re- 
fusal, a sum not exceeding, etc.; that the 
fact that the corporation cannot be subject- 
ed to the penalty unless such neglect or re- 
fusal be shown to have been unreasonable 
clearly Implies that in the contemplation of 
the law there may be cases in which such 
neglect or refusal would be reasonable, and, 
if reasonable, the penalty would not be in- 
curred; that the provision of the first sec- 
tion was designed to operate more strin- 
gently than the common law, "and while it 
was not designed to subject the corporation 
to dvU liability, entirely regardless of the 
circumstances and occasion of the omission 
to ring the bell or blow the whistle in all 
cases of injury caused by such omission, still 
it was designed to require, as the general 
rule, that the bell should be rung or the 
whistle blown in all cases, and, in case of 
injury by reason of an omission so to do, 
to Impose the burden on the corporation of 
showing that such omlstdon, la the exercise 
of a sound Judgment by the engineer, in 
view of the condition of things as they ex- 
isted at the time, was reasonable and pru- 
dent; when therefore. In a case like the 
present, the plaintiff should show that the 
alleged injury was caused by such omission, 
it would not be necessary to his right of re- 
covery that he should take the burden of 
showing affirmatively that such omission was 
unreasonable and Imprudent, but it would 
rest upon the defendant, as a matter of de- 
fense, to show that it was reasonable and 
prudent ;" and that "the liability of the cor- 
poration should be left to stand upon this, 
viz., whether, in the Judgment of the Jury, 
upon all the evidence, the omission In the 
given case, in view of the actual condition 
of things, was reasonable and prudent." 
Wakefield v. Conn. & Pass. B. B. B. Co., 37 
Vt 330, 86 Am. Dec. 711. The holdings in 
that case have stood as the law of the sub- 
ject for more than half a century without 
criticism; and upon a careful examination 
of the statute. In view of the arguments of 
counsel In the present case^ we see no rea- 



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101 ATLANTIC REPORTEE 



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son for doubting the aonndness of the oon- 
clusions there reached, or of their control- 
ling effect in the matter before vs. The 
meaning of this statute being by Judicial 
construction thus made clear in the case 
noticed, no subsequent practice inconsistent 
with that meaning can have any ^ect. 
United States v. Alger, 152 U. S. 384, 14 
Sup. Ct 635, 38 I* Ed. 488; Fairbanks v. 
United States, 181 U. S. 283, 21 Sup. Ct 
e48, 45 L. Ed. 862. The above holding Is de- 
terminative of the fact that the case, on the 
question of defendant's negligence In fall- 
ing to give the required warning signal 
nrhen the train was approaching the cross- 
ing at the time in question, was for the Ju- 
ry; and therefrom It is evident that the 
plaintiff's exception to the part of the charge 
pertaining to the blowing of the whistle, on 
the ground that the Jury should have been 
instructed that, if the bell was not rung, the 
whistle should have been blown at Intervals 
and k^t blowing imfail the crossing was 
passed, was well taken. It is not claimed 
that there was any evidence affirmatively 
tending to show that the omission so to do 
In the existing circumstances was reasonable 
and prudent, a question on which, as liefore 
seen, the burden was with the defendant 
Had the Jury been properly instructed In 
this respect, they utight not have fonnd, as 
they did specially, that the defendant's neg- 
lect to blow the whistle or ring the bell was 
not proximate cause of the plaintiff's in- 
jury. 

[4] The question of contributory negligence 
is yet to be considered on the motion for a 
verdict, if it Is in the case. The plaintiff 
vres of such tender years at the time of her 
injury as to be incapable of exercising care. 
But we assume, as counsel for defendant 
argue, that her grandfather (driver of the 
automobile) and her father were guilty of 
negligence contributing to the accident. The 
question then is: Is their negligence im- 
putable to the plaintiff? In Robinson t. 
Cone, 22 Vt 213, 54 Am. Dec. 67, the plain- 
tiff, a child three years and nine months 
old, was severely injured when sliding on 
a sled in a public highway by being caught 
by one of the runners of defendant's loaded 
sleigh drawn by two horses. The plaintiff 
at the time was attending school. The ques- 
tion of contributory negligence by the plain- 
tiff was raised in defense; also the questlcm 
of such negligence by the plaintiff's parents 
in allowing him to attend school at the age 
and in the manner they did. The court said 
It was "satisfied that, although a diild, or 
idiot or lunatic, may, to some extent have 
escaped into the highway through the fault 
or negligence of his keeper, and so be im- 
properly there, yet if he is hurt l>y the neg- 
ligence of the defendant he is not preduded 
from his redress." In Ploof v. Burlington 
Traction Co., 70 Vt 609. 41 Atl. 1017, 43 L. 
R. A. 109, the court said the case of Robin- 



son V. Cone had become a leading case 
against the doctrine of imputed negligence, 
and Its doctrine was quite generally follow- 
ed by courts of last resort and Indorsed by 
eminent writers, and that this court was 
content to abide by the decision of that case 
on the doctrine of imputed negligence. The 
foregoing is the established doctrine in this 
state, and Is known in some other Jurisdic- 
tions as the "Vermont rule" (distinguishing 
It from the contrary doctrine, known as the 
"New York rule"), and It Is supported by 
the great weight of authority. 

[E] Nor did the fact that the p««(His with 
whom the plaintiff was riding in the automo- 
bile were engaged in a common enterprise, 
make any difference in this respect. The 
theory of the law which makes each of per- 
sons engaged in a common purpose at the 
time of an injury suffered by him, by reason 
of the neglect of some outside person, re- 
sponsible for the negligence of any of his as- 
sociates, contributing to the injury, Is that 
each was the agent of the others, and there- 
fore that each was responsible for the con- 
sequences resulting from the acts of the 
others, or any of them. Boyden v. Fitch- 
burg Railroad Co., 72 Vt 89, 47 Atl. 409; 
Wentworth v. Waterbury, 00 Vt 60, 96 Atl. 
334. Both in law and in fact the plaintiff 
was Incapable of entering into any such com- 
mon enterprise. She was in the automolille 
because her father, who by law was the 
custodian of her person, took her with him. 
Yet his status as such custodian was not as 
agent of the diild, but as ag«it of the law; 
and he oonld not surrender or impair any 
property right that was vested In the child, 
nor impose any legal burden upon It . Fergu- 
son V. Phoenix Mut Ufe Ins. Co., 84 Vt 
350, 79 Atl. 997, 36 L. R. A. (N. S.) 844 ; New- 
man V. Phllllpsburgh Horse Car R. Co., 62 
N. J. lAW, 446, 19 Atl. 1102, 8 I* R. A. 842. 
It follows that the relation of common pur- 
pose, as such, of the persons with whom the 
plaintiff WHS riding at the time of her in- 
jury does not affect her rights against the 
defendant. This being so, the question of 
the ImpntablUty of the oontrtbutory negli- 
gence of the driver or of the plaintiff's fa- 
ther is In any aspect of the case reduced to 
the simple form in which it haa been consid- 
ered and ruled above. 

The question of contributory negligence 
therefore Is not in the case, and the only 
question is whether the defendant exercised 
the degree of care required by law. The mo- 
tion for a directed verdict was properly over- 
ruled. This holding shows defendant's excep- 
tions to the failure of the court to charge 
as requested touching the question of con- 
tributory negligence to be without, merit 

Since substantial exceptions of both par- 
ties are sustained, neither party should be 
allowed to recover costs in this court 

Judgment reversed, and cause remanded, 
without costs to either party In this court 



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N. J^ NEW YORK, S. A W. B. OO. y. BOABD OP PUBLIC TTTILITT COM'RS 



49 



(M N. J. lAW, «90) 

IRESON y. OUNNINOHAM. (Ma 2.) 

(Oourt of Errors and Appeals of New Jersey. 
May 8, 1917.) 

1. Mdnioipai. Cobpobationb «=705(4)— Au- 
tomobile Accident — Driving withoxjt 

IjIGHT. 

Where the driver of a wagon waa without a 
light on the wagon more than half an hour after 
■unset, in violation of statute, he could recover 
for injuries received in collision with an auto- 
mobile if the driver of the car could have seen 
him, since if the automobile driver could have 
seen him, his unlawful act in driving without 
a light did not contribute to the accident 

[Ed. Note.— For other cases, see Municipal 
Corporations, Cent Dig. H 1516, 1516.] 

2. Municipal Cobpobationb <s=»706(7)— Au- 
tomobile Accident— Contbibutobt Neou- 
osNCE— Question fob Jubt. 

In an action against an automobile driver 
for injuries to the driver of a horse and wagon, 
where the facts from which contributory neg- 
ligence was to be deduced were in dispute, it was 
a jury question. 

[Ed. Note.— For other cases, see SAinicipal 
Corporati(ui8, Cent Dig. { 1518.] 

Appeal from Circuit Court, Cumberland 
County. 

Suit by 0«orge Ireeon against Oeorge Cun- 
ningham. From a Judgment for plaintiff, 
defendant appeals. Affirmed. 

Henry S. Alvord, of Ylneland, for appellant 
8. Webster Hurd and Royal P. Toller, both 
of Ylneland, for appellee. 

PER CnRIAM. Plaintiff brought suit to 
recover damages for injuries sustained by 
reason of a head-on collision, in a public 
highway, of an automobile driven by the de- 
fendant and a horse and wagon driven by the 
plaintiff. Hie plaintiff was driving his vebi- 
de without a light, and the defendant was 
driving his automobile with lights, the time 
being 7 p. m. of March 19, 1914, on which 
day the sun set at 6:11 p. m. The statute 
required plaintiff to carry a ll^t on his 
wagon from one-half hour after sunset The 
Jury returned a verdict for the plaintiff. The 
Judgment entered on the verdict has been 
brought to this court by appeal. The ques- 
tions presented by the grounds of appeal are 
the propriety of a denial of mbtlons to non- 
suit and to direct a verdict for defendant, 
and also objections to the diarge of the trial 
Judge In certain respects. 

Testimony offered by the plaintiff estab- 
lished that the collision occurred in a road- 
way wide enough for two vehicles to pass, 
and that the plaintiff was as far over on 
the right-hand side as he could get at the 
time he was run into ; that as the automobile 
approached it wobbled or zigzagged In the 
road, and plaintiff shouted to warn the driver 
of his presmee before the horse was struck ; 
that the time was one-of sufficient light to see 
a wagon or a machine several hundred feet 
away; that the horse of the plaintiff had 
to be killed as a result of the injury ; that 



the wagon was somewhat broken; and that 
plaintiff suffered injury. 

The testimony justified the Jury in believ- 
ing that the defendant, in violation of the law 
of the road, failed to turn to the right In or- 
der to allow the plaintiff to pass him when 
they met in the highway. And the Jury was 
Justified in believing it was light enough for 
the defendant to see the plaintiff, and that 
It was his duty to turn out for him; and if, 
on the contrary, it was too dark for him to 
see, they could find that It was hla duty to 
be on the right-band side of the road in the 
direction In which he was going, so as not to 
take the chance of running into any one ap- 
proaching him from the opposite direction. 

[1] Although the plaintiff was driving 
without a Ugbt on his wagon In violation 
of the statute, that fact does not operate to 
prevent his recovery If the defendant could 
see him, and, if he could, the unlawful act 
of the plaintiff In no way contributed to the 
accident. The testimoQy was certainly sus- 
ceptible of the construction that the defend- 
ant either saw, or by the exercise of due care 
could have seen, the plaintiff. 

[2] The defendant urged before the trial 
court, and argues here, that the plaintiff was 
guilty of contributory negligence. If con- 
tributory negligence was present in the case, 
the tacts from which it was to be deduced 
were in dispute, and It was therefore a Jiury, 
and not a court, question. The defendant ex- 
cepted to the charge of the court In several 
respects, but argues them very meagerly and 
without citation of any authority. We have 
examined them, and find they are entirely 
without substance. 

The judgment will be affirmed, with costs. 

(W N. J. Law. 431) 
NEW XORK, S. & W. R. CO. r. BOARD OF 
PUBLIC UTILITZ COM'RS et aL 

(Supreme Court of New Jersey. June 6, 1917.) 

1. Dedication «=»19(1) — Promise to Dedi- 
cate. 

A dedication of a street is not shown by a 
map showing such a street and containing a 
declaration by the owner's husband that, if he 
ever opens the street, the opening will OMiform 
to the map, because it is more promise to dedi- 
cate, not made by tlie owner. 

[Sid. Note.— For other cases, see Dedication, 
Cent Dig. i 37.] 

2. Public Seevioe CoMMissioNa «=>6— Pub- 
uo Utilitt Commissionebs— Jubisdiotion 
OF— Powers. 

The board of public utility commissioners 
has no jurisdiction to determine whether the lo- 
cation of buildings along the lines of a street 
as actually used and the practical use of a street 
ns such justify an inference that continued use 
has accorded it the status of a public highway. 

3. Railroads 9=394(2)— Grade Crossings — 

Public Convenienoe. 

Under tho statute, an order of the board of 
public utility commissioners, compelling a rail- 
road to construct a crossing at grade over its 
right of way, is erroneous, where it would re- 
sult in increasing the hazards of the public in 



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101 ATLANTIC REPORTBR 



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the use of tlie streets In question, and its con' 
vonience can be served b7 slightly changing the 
lines of the streets. 

[Ed. Note.— For other cases, see RaUroada, 
Cent Dig. § 266%.] 

Certiomrl by the New York, Suaqueliaana 
& Western Railroad Company against the 
Board of Public TJtility Commissioners and 
the City of Paterson to review an order of 
the Commissioners relative to a gi^de cross- 
ing. Order vacated. 

Argued l<'ebruary term, 1917, before 
SWAYZE, MINTURN, and EAUSCH, JJ. 

Coliins & Corbln, of Jersey City, for pros- 
ecutor. Lw Edward Hermann, of Jersey 
City, for commissioners. Randal B. Lewis, 
of Paterson, for city of Paterson. 

MINTURN, J. The certiorari In this case 
removes an order made by the board of pub- 
lic utility commissioners, granting permis- 
sion to the city of Paterson to construct a 
crossing at grade over the railroad right of 
way at Seventeenth avenue and Twenty- 
Fourth street, where the two streets come to- 
gether. A crossing is arranged for Seven- 
teenth avenue, but none Is arranged for 
East Twenty-Fourth street, and the proposal 
is to compel such construction by the rail- 
road. 

[1] The railroad contests the right of 
the city to require it, on the ground that the 
street is not in fact a public highway. It 
was never laid out as such, and the city r&- 
lies upon a map made in 1SC8 to evidence the 
dedication. We think the map does not 
show a dedication of the locus in quo. It 
contains a declaration by the husband of the 
then owner that, If he ever opened the 
streets, the opening would conform to the 
map. This lacks the essentials of a legal 
dedication: First, l>ecause It is not made by 
the owner of the locus; and, secondly, be- 
cause at most It is but a promise or agree- 
ment to dedicate in future. 

[2] The buildings along the Unes of the 
street, as actually used, and the actual prac- 
tical use of the street as a dirt or cinder 
road, seems to be shown; and that fact 
' would Justify an Inference that continued 
use has accorded to it the status of a public 
highway. That question, however, is not be- 
fore us for decision, nor was it a subject for 
the determination of the public utility com- 
missioners, under the legislation prescribing 
th^r powers. 

[3] The fact Is quite apparent that in 
opening up these two streets, as proposed, so 
that the railroad may cross them diagonally, 
A crossing involving serious danger to the 
public will be thereby created. The commis- 
sioners seem to have dealt with the situa- 
tion as though it presented a question of 
the construction of appurtenances to the 
railroad. Tlie declared object of the statute 
is to protect the public from the danger Inci- 



dent to grade crossings, and the Inquiry be- 
fore the commissioners was whether such a 
crossing as that in question would result In 
increasing the danger and hazards of the 
public in the use of it, and, if it would In- 
crease the public dangers, then whether, in 
view of the situation thus presented, it was 
stiU necessary and desirable as a public 
crossing; for manifestly a public crossing at 
grade might be highly desirable as a public 
convenience, but If Its existence and contin- 
ued use might serve in actual jH-actlce as a 
standing menace to the lives of the commu- 
nity, it would not comport with a proper ex- 
ercise of wisdom, nor accord with the de- 
clared legislative policy and intent, to au- 
thorize or compel such construction. 

These Important considerations seem not 
to have been discussed or determined by the 
board ; and, as we have intimated, they pre- 
sent the distinctive and vital Inquiry in the 
case. We think it was made quite clear by 
the railroad that the difficulty presented here 
could be obviated by a slight change in the 
lines of the streets, at the comer where Sev- 
enteenth avenue and Twenty-Fourth street in- 
tersect; and if such a change In existing 
conditions can be made to practically serve 
the public use and convenience, the adoptiffli 
of such a plan would seem to present a sat- 
isfactory substitute, and a reasonable solu- 
tion of the situation, rather than a proposed 
construction which is menaced with the very 
difficulties and dangers which it is the avow- 
ed purpose of tills legislation to eliminate^ 

We think the testimony before the board 
was not suffldMit, nor of a <^racter, to war- 
rant or reasonably supjitort the CDnclusl<m 
reached by the board, and for that reason 
we have ccmduded tiiat the permission grant- 
ed should be vacated. Erie R. R. Ca v. 
Board of Utility Commlssionens, dS AtL 13; 
Potter V. Board of Public Utility Com'rs, 
08 AtL 30. 

(to N. J. Law, va) 
NELL et al r. GODSTRBY. (No. 46.) 

(Court of Errors and Appeals of New Jereej. 
. May 8, 1917.) 

1. Caksiers «=»320(S1) — Oaskiaok of Pas- 

SEMOBBS— InJITKIES— JUBT CASE. 

In an action by a tazicab passenger for in- 
juries, where there was evidence tending to 
show that the taxicab belonged to defendant, 
and that the chauffeur was his agent and negli- 
gent, the case was for the jury, though it was 
claimed by defendant that the chauffeur exceed- 
ed his authority in doing what he did. 

2. Appbai, and Erkob Q=»119(>(1)— Dibxction 
OF Vbbdict at Second Tbial. 

Where new trial is granted because the 
verdict is against the weight of the evidence, 
the direction of verdict at second trial on the 
same or similar evidence, where a substantial 
conflict of testimony is present, is not justified ; 
conflicting testimony being always for the jury. 

[Ed. Note.— For other cases, see Appeal and 
Error, Cent. Dig. < 4661.] 



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61 



Appeal from Clicalt Oonrt, Bergen Ooimty. 

Action by Harriet Nell and another a^lnst 
WlUlam O. Godstrey. From, a Judgment for 
defendant, plaintiffs appeal. Reversed, and 
venire de novo awarded. 

Nathaniel Kent, of Paterson, and Gilbert, 
Collins, of Jersey City, for appellants. Wen- 
dell J. Wright, of Hackensack, for appellee. 



PER OURIAH. This case presents an ap- 
peal from a Judgment entered in the Bergen 
county drcnit court, founded upon a verdict 
for the defendant directed by the trial Jndge, 
to which direction exception was duly taken. 

The action was brought by Harriet Nell 
and her husband, John J. Nell, for Injuries al- 
leged to have been sustained by her while a 
pnssenger In a taxlcab said to have been own- 
ed by the defendant and operated and con- 
trolled by his agent. 

The facts relating to the accident, which 
was the subject-matter of the suit, were sub- 
stantially as follows: The plaintiff Mrs. Har- 
riet Nell on Saturday, January 16, 1916, and 
her sister. Miss Josephine McGlntee went 
from Bogota, N. J., where Mrs. Nell lived, to 
Hackensack and thence to New Tork, for 
the purpose of doing some shopping and visit- 
ing the family of one of her husband's em- 
ployes. They left the home of the persons 
■whom they were visiting at about 1:30 Sun- 
day morning to catch the ferry going to Edge- 
water, N. J. They missed the 2 o'clock boat, 
and were compelled to take the next boat at 
2.45 a. m. When they arrived in Edgewater 
they found that there would be no car leav- 
ing until S o'clock. (Mrs. Nell telephoned to 
her husband, and he Instructed her to hire a 
taxicab to take them home. She then asked 
an officer to get her a taxicab, and he said 
he would. Within 10 or IS minutes there- 
after Patrick Dowdell came with a taxicab 
from the Edgewater Garage, and agreed to 
take them to Bogota for $3. The plaintiff 
0nd her sister then entered the taxicab and 
were driven along the river edge for about 16 
minutes until they came to a hill called the 
Ft. Lee Hill. When near the toQ of the hiU 
tbe car stalled and commenced coasting back- 
wards whereupon the chaofleur turned his 
wheel to make the car turn sideways towards 
tbe curb, and thus backed the car up against 
the south curb. After stopping the car he 
turned the fnmt wheels facing down hill, so 
as to aid the gasoline, whidi was low, to run 
into the carbureter, and started to crank the 
machine. This he continued dcdng for about 
10 or 12 minntes when Mrs. Nell opened the 
window and asked him what the trouble was, 
and he said that the gasoline had run low, 
and that the radiator was hot. While trying 
to crank the car it suddenly started down 
bill with no one at tbe wheel, the cdiauffeur 
trying to bold it back with his bands around 
tbe radiator. As it rapidly increased its 
speed, the chauffeur called to the plaintiff 



and her sister to Jump for their lives. After 
tbe car had gone some considerable distance, 
the plaintiff Jumped. Her head struck on 
the street and she was rendered unconscious, 
receiving more or less serious injuries. 

At the conclusion of the whole case a mo- 
tlon was made to direct a verdict for the de- 
fendant upon several grounds, namely, that 
no negligence had been proved on the part 
of tbe defendant ; that the negligence sped- 
fled In the complaint had not been proved; 
that if any neglig^ice at all appeared in tbe 
case, it was not that of the defendant ; that 
Dowdell was not the agent of the defendant; 
that under the evidence, as it apx>eared, Dow- 
dell was acting as the agent of tbe plaintiff v 
and that the defendant, Godstrey, was not 
the owner or operator of the car, or In any 
circumstances, under the evidence, liable for 
the alleged accident. Whereupon the court 
made the following observation: 

"The point tbat has been troubling me bH 
through the case is the question as to whether 
this driver has been acting within the scope of 
bis authority in such a manner as to bind the 
defendant. That is tbe situation as I find it 
now. The burden of proof is upon the plaintiff 
to show by a fair preponderance of tbe evidence 
that the driver was the agent of the defendant, 
and, at the same time, the act performed was 
within the scope of his authority. That burden 
is upon the plaintiff to prove. That is without 
talcing into consideration the other questions in- 
volved, of ownership or negligence. If that is 
disposed of in a manner negative to the plain- 
tiff's case, all the others would fall with it'* 

Then, after argument by counsel for plain- 
tiff, the court said, "The motion to direct a 
verdict will be granted," not putting the de- 
cision upon any particular ground. The 
plaintiff noted an exception. 

[1] We think it unnecessary to review the 
testimony. It is sufficient to say that we are 
of opinion that the case should have been 
submitted to the jury, as there was evidence 
tending to show that the taxicab belonged to 
the defendant, that the chauffeur, Dowdell,. 
was his agent and that he, the chauffeur, was 
negligent. It was claimed on behalf of the 
defendant that Dowdell exceeded his author- 
ity as an employe. If he did, if he violated 
his instructions, bis authority and instruc- 
tions were not known to the plaintiff. He 
was apparently the agent of the defendant 
with authority to drive his taxicab tor hire. 

These observations dispose of the grounds 
upon which the motion for the direction of a 
verdict for the defendant was rested, and the 
point suggested by the trial Judge. 

It ought, i)erhaps, to be stated that in the 
argument on the motion to direct a verdict 
counsel for the plaintiff (citing, but not quot- 
ing literally from, Bennett v. Busch, 75 N. J. 
Law, 240, 67 Atl. 188) said: 

"If there is any evidence in the case niwn 
any proposition upon which reasonable men 
might diifer, or any honest man could have a 
difference of opinion therefrom, then the ele- 
ment must be submitted to the jury." 



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101 ATIAMTIO KEPOR'TER 



(M.J. 



To which the judge replied: 

"I don't think so. If that was the ease, why, 
then, we have nothing in the rale that • verdict 
is against the weight of the evidence." 

[2] It Is obvious that the trial Judge failed 
to perceive the distinction between court 
questions and jury questions arising from 
evidence. In cases where a new trial Is 
granted because the verdict is against the 
weight of the evidence, the direction of a 
verdict at a second trial on the same or sim- 
ilar evidence, where a substantial conflict of 
testimony is present, is not Justified. Con- 
flicting testimony is always for the jury. 
Dickinson v. Erie B. R. Ck>., 85 N. J. Law, 586, 
90 AtL 305. See, also, Tilt<Mi v. Penna. R. 
R. Co., 86 N. J. Law, 709, 94 Atl. 804 ; Keeney 
V. I>., L. & W. R. R. Co., 87 N. J. Law, 505, 94 
AU. 604 ; TonselUto t. N. Y. 0. & H. R. R R, 
Co., 87 N. J. Lew, 651, »4 Atl. 804; McCoi^ 
mack r. WlUlams, 88 N. J. Law, 170, 05 Atl. 
978. 

The judgment under review will be revers- 
ed to the end that a venire de novo may be 
awarded. 

<87 N. J. Elq. 807) 

In re ADRIAN et aL (So. 867S.) 

(Prerogative Court of New Jersey. Mardi 21, 
1917.) 

W^LLB «=»684(3) — CONSTB0CTION — RbSIOUX 

— Income fbom Tbust LBaAcns. 
Testator's will made numerous pecuniary re- 
quests, some outright, and others to his execu- 
tors in trust for various henefidarios. The rest, 
residue, and remainder of his estate he gave to 
the executors, in trust to pay the income to his 
widow during her lifetime, and upon her do- 
cease to pay the income to his children until a 
given time, when the principal was to he dis- 
tributed. Four of the trust legacies, aggregat- 
ing $395,000, were for the benefit of nondepend- 
ents, and consequently not payable for a year 
after the death of testator. The income of the 
estate for the year upon a sum equal to these 
trust funds amounted to over $16,000. Held, 
that the income passed into the residue as prin- 
cipal, and not as income. 

[Ed. Note. — For other cases, see Wills, Cent. 
Dig. SS 1616-1618, 1020.] 

Appeal from Orphans' Court, Somerset 
County. 

In Uie matter of the appeal from the first 
Intermediate account of Jennie R Adrian 
and others, surviving trustees under the will 
of William Rowland, deceased. Decree af- 
firmed. 

August C Streitwolf, of New Brunswick, 
for appellant Hugh K. Gaston, of Somer- 
ville, and John R. Uardlu, of Newark, for 
respondents. 

BACHES, Vice Ordinary. A brief state- 
ment will develop the single question pre- 
sented for decision. William Rowland by 
his will made numerous pecuniary beque^^ 
some outright, and others to his executors in 
trust for various beneficiaries. The rest, 
residue, and remainder of his estate he gave 
to the executors, in trust to pay the income 



to his widow during her lifetime, and upon 
her decease to pay the Income to his children 
until a given time, when the principal was to 
be distributed. Four of the trust legacies, 
aggregating $395,000, were for the b«iefit of 
nondependents, and consequently not payable 
for a year after the death of the testator. 
The Income of the estate for the year, upon 
a sum equal to these trust funds, amounted 
to $16,131.26. This sum the appellant con- 
tends should be treated as income of the resi- 
due, while, -on the other hand, the trustees 
claim and have charged themselves wltb it 
as principal of the residuary estata From 
so much of the decree sustaining the trustees 
in this respect, this appeal was taken. 

Doubtless this precise question has been 
often before our courts, but it seems that the 
decision is not recorded In any of our report- 
ed cases. Elsewhere may be found an abund- 
ance of authorities upholding the course pur- 
sued by the court below. Lewln on Trusts 
(8th Ed.) 8. p. 301, states the estabUshed and 
guiding rule thxa: 

"The tenant tor life of a residue is not en- 
titled to the income accruing during the delay al- 
lowed for the payment of legacies on bo much of 
the testator's property as is subsequently applied 
in paying them. Executors, as between them- 
selves and the persons interested in the residue, 
are at liberiy to have recourse to any funds they 
please for payment of debts and legacies; but, 
in adjusting the accounts between the tenant 
for life and the remaindermBn, they must be 
taken to have paid the debts and legacies not out 
of capital only or out of income only, but with 
such portion of the capital as, together with the 
income of that portion for one year from the 
testator's death, was sufficient for the purpose." 

See, also. Perry on Trusts (6tb Ed.) S 561. 

In Allhusen v. Whittell, L. K. 4 Eq. 295, the 
testator, Whittell, gave his estate, which was 
subject to the payment of legacies, to trus- 
tees to pay the income to bis father for life, 
wltb remainder over in four equal parts. 
Vice Chancellor Wood, in illustrating the 
rule, said that, supposing a testator has a 
large sum, say £50,000 or £60,000, in the 
funds, and has only £10,000 worth of debts, 
the executors will be justified, as between 
themselves and the whole body of persons 
Interested in the estate, in dealing with It as 
they think best in the administration. Bat 
the executors, when they have dealt with the 
estate, will be taken by the court as having 
applied In payment of debts such a portion 
of the fund as, together with the income oC 
that portion for one year, was necessary for 
the payment of the debta Until the debts 
and legacies were paid, there would have been 
no interest from the death of the testator 
which could by possibility have come to the 
tenant for life. What I apprehend to be the 
true principle is that, in the bookkeeping 
which the court enters upon for the purpose 
of adjusting the rights between the parties, 
it is necessary to ascertain .what part, to- 
gether with the income of such part for a 
year, will be wanted for the payment of 



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STATE y. STANFORD 



53 



debts, legacies, and otber cbarges, during tbe 
year; and the proper and necessary fund 
must be ascertained by Including the Income 
for one year which may arise upon the fund 
whicji may be so wanted. It is clear that 
the tenant for life ought not to have the In- 
come arising from what Is wanted for the 
payment of debts, because that never becomes 
residue in any way whatever. In Holgate v. 
Jennings, 24 Beav. 623 (53 Eng. Reprint, 498), 
tbe testator, whose estate consisted of stocks, 
gave £16,000 In legacies, payable within six 
months, and the rest and residue In trust to 
pay tbe annual proceeds to his wife for life. 
On a contest between the life right holder 
and the remainderman, It .was held that div- 
idends accruing within six months after the 
testator's death on stock equal to the amount 
of the legacies formed no part of the Income 
of the residuary estate, but fell Into the resi- 
due and formed a part of the corpus. In 
Lambert v. Ijambert, L. R. 16 Eq. 320, Vice 
Chancellor Bacon followed the principle enun- 
ciated in AUhusen v. Whittell, as did the 
court in In re Whitehead, Peacock v. Lucas, 
1 Caiancery, 678. 

In New York we find the same rule adopted. 
In WlUlamsou v. Williamson, 6 Paige, 298, 
the testator's will contained pecuniary lega- 
cies, and the income on the residuary estate 
be gave to ills wife for life, with the remain- 
der over to his three sons. In determining 
the right as between the life tenant and the 
remainderman to the Income of the estate for 
one year on the amount of the legacies, Chan- 
cellor Wadworth said that It was not the In- 
tention of the testator to give his wife the 
Interest or Income of his whole personal es- 
tate, until the debts and legacies should be 
paid, or for the term of one year, and then 
the Interest upon the residuary estate after 
that time; but it was his intention to give 
her the use or Income of the same residuary 
fund, the capital of .which was to be distrib- 
uted to bis three sons upon her death or re- 
marriage. He dted the ease of Covenhoven 
V. Shuler, 2 Paige, 132, 21 Am. Dec 73, and 
the authorities there referred to, as settling 
tbe principle that where there Is a general be- 
quest of a residue of the testator's personal 
estate for life, with a remainder over after 
thie death of the first taker, the whole resid- 
uary fund is to be invested for the benefit of 
the remainderman, and the tenant for life is 
only entitled to tbe Interest or income of that 
fund, and to ascertain the amount of such 
residuary fund, so as to apportion the capi- 
tal and the inc(Hue properly between the re- 
mainderman and the tenant for life, the ex- 
ecutor, upon settling the estate at the end of 
tbe year, must estimate the whole estate, at 
what is then ascertained to have been Its 
cash value, at the testator's death, after pay- 
ing all debts, legacies, expenses of adminis- 
tration, and otber proi)er charges and com- 
missions. But in making such deduction for 



legacies payable at a future day, and which 
do not draw interest, the whole amount of 
the legacies Is not to be deducted, but only 
such a sum as, if properly Invested, would, at 
the time when tbe legacies become payable, 
have produced the requisite sum exclusive of 
all expenses and risk of loss. To the same 
efCect is Matter of Accounting of Benson, et 
aL. 96 N. Y. 499, 48 Am. Rep. 646. 

It Is therefore quite clear, both upon prin- 
ciple and authority, that the Income on the 
legacies under consideration passed into the 
residue as principal, and not as income there- 
of. A clear distinction, however, is drawn 
between the application of Income on a fund 
applied to the payment of a vested legacy 
and accumulations on tbe principal of an es- 
tate from .which contingent legacies, or those 
payable at an Indeterminate time In tbe fu- 
ture, may be payable. In the latter instances 
the income falls into the residue as Income of 
the residue. The reason for this is the un- 
certainty as to whether tbe estate will ever 
be called upon to pay such legacies, and until 
it is the whole of the principal is "residue 
until wanted," and the Income thereof Is, of 
course. Income of residue. See Sandford v. 
Blake, 45 N. J. EJq. 248, 17 AU. 812, where 
Justice Depue discussed the principle and 
cited the English authorities, including AU- 
husen V. Whittell, supra. 

Counsel for the appellant, upon the argu- 
ment and in his brief, cited Corle v. Monk- 
house, 47 N. J. Eq. 73, 20 Atl. 367, as up- 
holding his contention. That case is authori- 
ty for one of the exceptions to the general 
rule that interest on legacies does -not begin 
to run imtll one year after the death of the 
testator, viz. where a gift Is made of the 
interest or income, either of the whole of the 
residue, or a particular part of it, to one 
person for life, and the principal Is given over 
to others on the death of the life tenant, the 
life tenant Is entitled to Interest from the 
date of the death of the testator. This doc- 
trine has been laid down time and again by 
our courts, and Is not at this day even debata- 
ble, but manifestly it does not Involve the 
point of law raised on this appeal. 

The decree below will be affirmed, with 
costs. 

(90 N. J. Law, 721) 
STATE V. STANFORD (two cases). 
(Nos. 82, 83.) 

(Court of Errors and Appeals of New Jersey. 
May 8, 1017.) 

1. Crimiita.]:. LiAW <S=»(j06(7)— Reception of 

EVIOKNCB— ObJEOTION. 

Where, in a prosecution for keepine disorder- 
ly houses, the testimony given by defendant on 
the trial of an indictment against a third per- 
son was admissible, an application to ezclade 
in toto the testimony given by defendant and 
liis codefendant at such trial was properly re- 
fused; tbe protection which defendant was en- 
titled to have against the previous testimony of 
bis codefendant being an instruction that it 



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54 



101 ATLANTIC BBPORTEB 



(N.X 



should sot b« eonaiderod in passinK on hia gruUt 
or innocence. 

[Ed. Note. — For other cases, see Criminal 
Law, Cent. Dig. | 1843.] 

2. Criminal Law ®=»824(8) — Instbuctionb— 
Fi.II.'DBX TO Reqitest. 

Where accused failed to request an instruc- 
tion that testimony pven by his codefondant at 
a prior trial of a third person could not be con- 
sidered in passing on the guilt or innocence of 
accused, be could not complain, on appeal, of 
the trial court's failure to give such an instruc- 
tion. 

[Ed. Note.— For other cases, see Ciiminal 
Law, Cent. Dig. S 1999.] 

3. Cbiminal Law «=»393(1)— Pekvioub Tebti- 
itoNT— AomssiBrLiTT. 

In a prosecution for keeping disorderly 
houses, it was no objection to the admissicHi of 
testimony, given by defendant at the trial of a 
third person, that the state bad no right to make 
defendant testify against himself, and that it 
had not been first shown that the admissions 
contained in such testimony were voluntary, and 
that defendant was cautioned that what he said 
might be used against him on some other occa- 
sion, where it appeared that the previous testi- 
mony of defendant had been elicited, not by the 
state, but by counsel for the person then on trial. 
[Ed. Note.— For other cases, see Criminal 
Law, Cent Dig. § 871.] 

Error to Supreme Court. 

Albert Stanford was convicted of keeping 
disorderly houses, and brings error. Af- 
firmed. 

Garrison & Voorhees and Isaac H. Nutter, 
all of Atlantic City, for plaintiff In error. 
Charles S. Moore, of Atlantic City, for the 
State. 

PER CURIAM. Albert Stanford and Al- 
bert Jackson were convicted at the Janu- 
ary term, 1916, of the Atlantic county court 
of quarter sessions, each under two separate 
indictments for the common-law crime of 
keeping disorderly houses at two separate 
places In Atlantic City. The four indict- 
ments were tried together, verdicts of guilty 
found, and from separate Judgments in each 
case writs of error were taken to the Su- 
preme Court Thb cases were there argued 
together, and the convictions affirmed by that 
court From the Judgments of affirmance 
entered in the Supreme Court Albert Stan- 
ford took two writs of error, which are now 
before this court The testimony and assign- 
ments being identical, the cases were pre- 
sented and argued together by consent of 
counseL 

The opinion in the four cases In the Su- 
preme Court was rendered In one of the Jack- 
son Cases and is as follows : 

"Per Curiam. The defendant was indicted for, 
and convicted of, the crime of keeping a disorder- 
ly house, the gravamen of the charge being the 
assisting in carrying on a gambling establish- 
ment at Chalfonte avenue, m the City of At- 
lantic City. A similar indictment was found 
against one Albert Stanford, and a conviction 
was had in his case also. The cases were tried 
together in the quarter sessions, and were argued 
together before this court 

[1, 2] "Numerous errors were assigned by each 



defendant but all of them were abandoned on 
the areument, except three. These three are 
each of them directed at an allged error of the 
trial court in permitting the official stenographer 
to read the entire testimony given by Stanf(»d, 
and also that given by Jackson, on a trial there- 
tofore had on an indictment presented against 
one Andrew Terry, who was the proprietor of 
the gambling establishment at which the present 
defendants acted as assistants. The pith of tho 
contention is that the prior testimony given by 
each of them_, and permitted to be read to the 
jury, was evidential only against himself, and 
not against his codefcndant, and that its admis- 
sion was improper for this reason. It is con- 
ceded that Jackson's previous testimony, if vol- 
untarily given, was properly Admitted as evi- 
dential against himself, and that Stanford's also 
was admissible against himself. It foUows, 
therefore, that an application to exclude this evi- 
dence in toto was properly refused. The protec- 
tion whidti each defendant was entitled to have 
against the previous testimony of his codefend- 
ant was an instruction that it should not be con- 
sidered by the jury in passing upon his guilt or 
innocence. Perry v. Levy, 87 N. J. Law, 670, M 
Atl. 569. But as no request for such an instmc- 
tion was proffered, and as the testimony was 
admissible to the extent indicated, the defend- 
ants cannot now complain of the failure of the 
trial court to thus limit the effect of the evi- 
dence. 

[3] Moreover, the objection to the admission 
of tnis testimony was not based upon its lack 
of evidential value, but upon the sole ground 
that it could not be introduced until it was first 
shown that the admissions contained in it were 
voluntary, and that the party making them was 
cautioned that what he said might be used 
against him on some other occasion; and, fur- 
ther, that the state had no right to make a de- 
fendant testify against himself. These grounds 
of objection were, under the circumstances, en- 
tirely without merit and have not been urged 
before us. It is proper to say, however, that 
the previous testimony of these defendants oo 
the trial of the Terry indictment had been elicit- 
ed, not by the state, but by Terry's counsel; 
and, under these conditions, there was, of course, 
no obligation on the part of the prosecutor of 
the pleas to warn the witnesses that what they 
might say could be used against them if it in- 
dicated criminality on their part. The sugges- 
tion that the state, by submitting the previous 
admissions of the defendants, was compelling 
them to testify against themsdves is, of course^ 
entirely without substance. 

"The judgment under review will be affirmed." 

The other Judgments .were affirmed for the 
reasons given In the above opinion, a mem- 
orandum to that effect being filed. 

PER CURIAM. The two Judgments under 
review on the writs of error sued out by 
Stanford In this ooart are affirmed for the 
reasons given In the above opinion of the 
Supreme Court 

(M K. J. Law, sn) 

STATE V. PULUS. 

(Supreme Court of New Jersey. June 6, 1917.) 

1. Indictment and Information <©=al37(2) — 
Motion to Qtjash Indictment— Disquali- 
fication or Obano Jubos. 
That the fweman of the grand jury when a 
candidate for the office of freeholder had stated 
in his canvass that he stood for efficiency and 
economy In county government, and that the 
remedy was in the hands of voters even if war- 



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FREKMAN v. VAN WAQENEN 



55 



ranting tbe inference that tlie members of the 
existing board of which the defendant was one 
were not to be trusted with the management of 
the county government, would not justify quash- 
ing the indictment where no malice or ill will is 
arerred, and the defendant was not even the 
rival of the foreman of the grand iury for the 
office he sought 

[Ed. Note.— For other cases, see Indictment 
and Information, Cent Dig. { 481.] 

2. CoDNTiEs «=>103— Misconduct in OmcB 

—Indictment — Sufficienct. 
In a prosecution of a. freeholder for mis- 
conduct in office, an indictment averring that 
the defendant was an officer of a county having 
been duly elected chosen freeholder by tbe quali- 
fied voters of a township named and having 
taken upon himself the said office was sufficient 
without specifically averring that he took the 
-oath of office. 

[Ed. Note.— For other cases, see Counties, 
Cent Dig. { 160.] 

Read Pnllis was Indicted for an otTense. 
On motion to qnasta indictment Motion de- 
nied. 

Argued February term, 191T, before 
SWATZB, MINTDRN, and KALISOH, JJ. 

Egbert Rosecrans, of Blalrstown, and Har- 
lan BesBon, of Hoboken, for the motion. Wil- 
liam A. Stryker, of Washington, N. J., op- 
posed. 

SWATZE, J. [1] The most Important ob- 
jection to the indictment is that the foreman 
of the grand Jury which found it was at the 
time a candidate for the offlce of freeholder 
and in his canvass had suggested that the 
members of the existing board, of whom tbe 
defendant was one, were not to be trusted 
with the management of the county govern- 
ment. If we draw this Inference from the 
fact that he stated that he stood for efficiency 
and economy in county government, and 
that the remedy was in the hands of the 
voters, ,we think it fails to Justify us in 
quashing tbe Indictment The case differs 
from State v. McCarthy, 76 N. J. Law, 295, 
68 AtL 1075, where the proof showed partial- 
ity on the part of the sheiiflC in selecting the 
grand Jury, as was possible under the law as 
It then stood. The present charge is in the 
nature of a challenge to the favor of a single 
grand Juror, and goes no farther. No mal- 
ice or lU wUl is averred, and tbe present de- 
fendant was not even the rival of the fore- 
man of the grand jury for the offlce be sought 
The case is within the rale of State v. Turn- 
er, 72 N. J. Law. 404, 60 AU. 1112 ; State v. 
nickey, 10 N. J. Law, 83. 

[2] Tbe objection to the form of tbe in- 
dictment Is unsubetantiaL It follows that 
approved by this court in State v. Coding- 
ton, 80 N. J. Law, 496, 78 Atl. 743, afflnned 
82 N. J. Law, 728, 85 AO. 1135. We do not un- 
derstand the suggestion of the brief that tbe 
question was not squarely discussed in the 
opinion in that case. We think it enough to 
aver that the defendant .was an officer of the 
county, having been duly elected- chosen 



freeholder by the qualified electors of the 
township of Blalrstown, and having taken 
upon himself the said office, without specific- 
ally averring that he took the oath of offlce. 
The motion is denied. Let tbe record be 
remitted for trial to the quarter sessions. 



(to N. J. lAW, J58) 

FREEMAN ▼. VAN WAGENEN et aL 
(Supreme Court of New Jersey. June 6, 1917.) 

1. Beokebs <8=»85(1) — Action fob Commis- 
BioN- Evidence— ADMisstBiLiTT. 

In a broker's action for commissions for the 
sale of real estate, evidence for the purpose of 
showing that the defendant sought to vary the 
terms of the written agreement between the par- 
ties by making it applicable only in the case of 
a sale to a railroad was not admissible. 

[Ed. Note.— For other cases, see Brokers, Cent. 
Dig. §§ 106, 108-110, 113, 115.] 

2. Bbokebs @=>88(4) — Action fob Comiis- 
sioNs— Jtjbt Question. 

Whether the written agreement between the 
parties had been given up by the plaintiff so as 
to render it of no effect held for the jury. 

[Ed. Note.— For other cases, see Brokers, Cent 
Dig. ii 128, 129.] 

3. Bbokebs «=>43(3)—Contbact— Statute of 

FbaUDS— SlQNATUBE BY OnE OF TENANTS IN 

Common. 
Under statute of frauds (2 Comp. St 1910, 
p. 2617) i 10, providing that a broker selling 
lands is not entitled to commissions unless em- 
ployed in writing, where a contract for the em- 
ployment of a broker to sell land which com- 
plied with the statute was signed by one of sev- 
eral tenants in common, sudi authority and a 
subsequent agreement for a conveyance by all of 
the cotenants was sufficient, since it was a nec- 
essary inference, either that such cotenant was 
the agent of the others In signing the authority 
to the broker, or that they adopted his act. 

[Ed. Note.— For other cases, see Brokers, Cent 
Dig. { 44.] 

4. Beckers ®=>54 — Contbacts — Constbuc- 
TioN— "Sale"— "Sell." 

Where a broker was employed in writing to 
sell real estate, all that he was bound to do was 
to bring the parties together and get them to 
make a oinding agreement and it was not neces- 
sary that he produce one able to perform the 
contract, since the words "sale" and "sell" in 
agreements between the owners of lauds and real 
estate brokers mean no more than to negotiate a 
sale by finding a purchaser upon satisfactory 
terms. 

[Ed. Note.— For other cases, see Brokers, Cent 
Dig. Si 75-81. 

For other definitions, see Words and Phrases, 
First and Second Series, Sale; Sell.] 

Appeal from Circuit Court, Essex County. 

Action by Bart J. Freeman against George 
A. Van Wagenen and others. Judgment (or 
plaintUF, and defendants appeal. Affirmed. 

William K. Managan, of Newark, for ap- 
pellants. Edwin 0. CaffTey, of Newark, for 
respondent 

SWATZE, J. [1, J] This is an action by a 
broker to recover commissions on a sale of 
real estate. On October 22, 1913, John B. 
Van Wagenen, one of the defendants and ten- 
ants in common signed a written agreement 



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101 ATLANTIC REPORTER 



(N.J. 



to my tbe plaintiff a commission of 2% per 
cent, (or the sale of the property. The de- 
fendants claim that this agreement was 
meant to apply only to a proposed sale to the 
Pennsylvania Railroad Company; that no 
such sale was made ; that thereupon, In De- 
cember, 1913, the agreement for commissions 
was returned by Freeman to Van Wagenen 
and abandoned. In fact the agreement was 
not produced at the trial; tbe plaintiff relied 
on what was said to be a copy which bad 
been retained by his lawyer. The point in 
this respect was that the agreement had been 
abandoned by consent, although there are 
suggestions In the case and in the briefs that 
the defendant sought to vary the terms of 
the agreement by making It applicable only 
In case of a sale to the railroad. The learn- 
ed trial Judge rightly held that the evidence 
was not admissible for that purpose, and put 
to the jury the real question whether the 
written authority was given up by the plain- 
tiff, so as to render it of no ^ect 

[S, 4] Whether the authority was given up 
or not, the plaintiff continued his efforts to 
sell the property. He claims, of course, that 
be was acting under the written authority. 
The defendants claim that he was acting 
only under a verbal authority from John B. 
Van Wagenen, whose agency for all the ten- 
ants in common is not disputed. As a re- 
sult of the plaintiff's efforts, a prospective 
purchaser was procured in the person of 
Cobb. Pending the actual execution of a 
contract for sale with Cobb, the plaintiff pro- 
duced in If arch, 1014, another purchaser, 
Scberer, who offered a higher price. With 
blm tbe defendants made a formal written 
contract on March 14, 1914, for the convey- 
ance of the land, and received $1,000 on ac- 
count of the purchase price. This contract 
did not, however, result la a conveyance. 
Scberer sought to rescind and recover bis 
thousand dollars, but failed. Meantime tbe 
defendants actually conveyed tbe property to 
Cobb for a lower price than that at which 
they bad authorized the plaintiff to sell. The 
claim of tbe plaintiff for commissions on the 
sale and conveyance to Cobb Is not Important 
for the present purposes, since the Jury 
found in favor of the defendants on that is- 
sue and tbe plaintiff does not appeal. Tbe 
question for us Is whether there was any er- 
ror in submitting the case to the Jury as to 
tbe claim for commissions on the sale to 
Scberer. Assuming as we must, in view of 
the Jury's finding la favor of the plaintiff on 
this issue, that the authority of October 22d 
bad not been given up, we think It was right 
to bold, as the Judge did, that tbe authority 
and the subsequent agreement for a convey- 
ance to Scberer by the defendants satisfied 
tbe requirements of the tenth section of our 
statute of frauds (2 Comp. St ISIO, p. 2617). 
There was an agreement signed by one of the 
defendants which complied with the statute. 



From tbe fact that the otber defendants Join- 
ed him In the contract to convey to Scherer, 
It was a necessary Inference, either that he 
was in fact their agent In signing tbe author- 
ity to Freeman, or that they had adopted bis 
act Under either view, actual present agen- 
cy or subsequent adoption, he was entitled to 
recover if he had performed on his part As 
to this, the defendants claim that, although 
tbe plaintiff bad produced a ready and will- 
ing purchaser in the person of Scberer, be 
bad not produced one able to perform tbe 
contract. The Judge charged that all the 
plaintiff was boimd to do was to bring tbe 
parties together and get them to make a 
binding agreement This was a correct state- 
ment of the law. It Is a mistake to think 
that we decided In Hinds v. Henry, 36 N. J. 
Law, 328, that tbe broker could never recov- 
er unless be procured an able and willing 
purchaser. We said that the general rule 
was that when he bad done that, his right 
to commission was complete. We did not 
deny that other facts also might make his 
right complete. A clear distinction is made 
in our cases between a sale and a conveyance 
of land. We agree with what was said la 
Undley et al. v. Kelm et al., 54 N. J. Eq. 
418, at page 423, quoting the opinion of Vice 
Chancellor Pitney, to be found in 34 Atl. 
1073, that the words "sale" and "sell" in 
agreements between the owners of land and 
real estate brokers mean no more than to 
negotiate a sale by finding a purchaser upon 
satisfactory terms. This the plaintiff did, 
the defendants actually accepted Scherer as 
satisfactory, and the only question so far as 
the Scherer transaction is concerned was 
that put by the Judge to the Jury, whether 
tbe written authority had been abandoned by 
the plaintifl as the defendants claimed. 

We find no error; tbe Judgment la affirm- 
ed, with costs. 



m N. J. Law, S87) 
PRANTL T. JUNK. 

(Court of Errors and Appeals of New Jersey. 
May 8, 1917.) 

(Bvllaiiu iv <Ae Court.) 
Apfeai, and Ebbor «=s>428(2) — Noticb of 

Appkai. — Pebitectino Afpxal — Statutes 

ANo Rules or Court. 
Appeals were substituted for writs of error 
by tlie practice act of 1912 (P. L. p. 377, { 
25), and by rule 77 (100 Atl. xxiii) annexed to 
that act, and rule 137 (100 Atl. xxx) of tiie Su- 
preme Court (1913), an appeal may be taken by 
notice served on the adverse party and filed 
within the time limited for bringing writs of er- 
ror (now superseded by appeals in civil suits). 
Such an appeal is perfected, so as to remove the 
cause from the court below to the court above, 
by serving a notice on the adverse party and fil- 
ing the game within the time so limited, which 
is one year in the class of cases in which that 
at bar is one. The provision Is in the conjunc- 
tive, namely, the service and filing of the notice. 
The provision is not that the notice shall be filed 
immediately after the service or within any time 



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GODFBBY V. BOARD OF CHOSEN FREEHOLDERS 



57 



preMribed thereafter, except that limited tor 
the taking of an appeal, so that, after serving a 
notice of appeal at an early date after judgment, 
the appellant may delay perfecting the appeal, 
so far as the notice perfects it, until the last day 
<m which an appeal will lie. 

[Ed. Note.— For other cases, see Appeal and 
Error, Cent Dig. { 2167.] 

Appeal frcMn Supreme Court. 
. Action by Henry Prantl against Daniel J. 
Junk. Judgment for plaintiff, and defendant 
appeals. Motion to dismiss denied. 

Garrison & Voorhees and Clarence Ii. Gold- 
-enberg, all of Atlantic City, for the motion. 
TJlysses Q. Styron, of Atlantic OUj, opposed. 

WALKER, Chancellor. On May 15, 1916, 
tbe plaintiff recovered a judgment against 
the defendant in tbe Supreme Court in a suit 
for malicious prosecution, and on June 14, 
1916) tbe defendant served a notice of appeal 
upon tbe plaintiff. Motion is now made, 
Alanih 6, 1917, to dismiss tbe appeal, for the 
following reasons: (1) Because no reasons for 
reversal were served upon the respondent or 
his attorneys within 30 days from service 
-of notice of appeal ; (2) because no state of 
tbe case has ever been prepared or served; 
(3) because tbe said cause was not noticed for 
argument in tbe Court of Errors and Appeals 
by the appellant at either June or November 
terms, 1916, or the March term, 1917 ; (4) be- 
-cause tbe appellant has not prosecuted bis 
appeal other than serving notice of appeal in 
June, 1916, and has failed to cause bis notice 
«f appeal, then served, to be filed with the 
clerk of this court ; (5) because the appellant 
has heretofore abandoned his appeal. 

Appeals were substituted for writs of error 
by the practice act of 1912 (P. I* p. 377, { 25). 
In rule 77 (zxili) annexed to that act it Is 
provided that appeals shall be taken by no- 
tice, which shall be served on the adverse 
party and filed within the time limited for 
bringing writs of error, which at the time of 
tbe passage of that act was one year in the 
class of cases is which that at bar is one. 
Oomp. Stat p. 2208, f 2. Rule 137 (100 Atl. 
XXX) of the Supreme Court (1913) in its first 
paragraph is a literal transcription of rule 
77 annexed to the practice act of 1912. The 
remaining portion of rule 137 concerns mat- 
ters of practice and procedure not involved 
In this motion. 

It Is to be remembered that the limitation 
of time in which an appeal may be taken is 
one year after the judgment is entered, which 
time has not yet expired in this case. If 
tbe defendant had not appealed, he might 
still do so. An appeal is a matter of ri^t, 
subject to practice regulations, and, in order 
to entitle himself to be heard in this court, 
the defendant is only required to serve Ills 
notice of appeal and file the same within the 
prescribed time. The provision is not that 
he shall file it immediately after service or 



within any pf«seribed time thereafter except 
that limited for taking an appeal, so that, 
having served a notice of api)eal at an early 
date after the judgment, the appellant may, 
if he chooses, delay perfecting the appeal, so 
far as the notice perfects It, until tbe last 
day on which an appeal will lie. The re- 
spondent is not harmed by sudi a procedure, 
for, as we have seen, the combined action 
necessary to remove the cause from the court 
of first instance to the appellate tribunal, 
namely, the serving and filing of the notice, 
may both be done on the last day. That limi- 
tation in this case has not yet been reached. 

In rule 77 annexed to the practice act and 
also rule 137 of the Supreme Court ttiere is 
a provision that the serving and filing of the 
notice of appeal shall be at least 30 days be- 
fore the appeal is argued. This, as yet, has 
no application to the matter sub judice. 

The specific grounds upon which the mo- 
tion to dismiss is based relates to matters 
of practice in the prosecution of the appeal 
after it has been perfected so as to remove 
the cause from the court below to tbe court 
above, except the last one, which is that the 
appellant has abandoned the appeal; but 
this, so far as it purports to be the result • 
of the inaction complained of, Is non sequi- 
tur, and, so far as it involves a statement of 
an extraneous fact, was not proved. 

The motion to dismiss tbe appeal will be 
denied. 

(90 N. J. Law, BIT) 

GODFKBT et al. v. BOARD OF CHOSEN 

FREEHOIiDERS OF ATLANTIC 

COUNTY et aL 

(Court of Errors and Appeals of New Jersey. 
April 27, 1917.) 

HiOHWATs <S=»105(1>— Scope or Aijthority 
TO Rkconstkdot— ''Rkconstruot." 
Laws 1914, p. 203, authorizing the board of 
chosen freeholders of any county to repair or 
"reconstruct" county roads and issue bonds 
therefor, expressly limits the meaning of the 
word "reconstruction" to the "reconstruction con- 
templated tmder tbe provisions of" Laws 1912, 
p. 809, providing for the permanent improve- 
ment and maintenance of public roads; that 
is, a reconstruction that is on the one hand 
closely associated with the idea of repairs, and, 
upon the other, sharply contrasted with the idea 
of construction, and is not a grant of power to 
reconstruct county roads in the broad sense of 
the term "reconstruction." 

[Ed. Note. — For other cases, see Highways, 
Cent Dig. iS 323-327, 329, 330. 

For other definitions, sec Words and Phrases, 
First and Second Series, Reconstruct; Recon- 
struction.] 

Appeal from Supreme Court 

On certiorari to the Supreme Ciourt (99 
Atl. 843) by Carlton Godfrey and another to 
review a resolution of the Board of Chosen 
Freeholders of Atlantic County, Liddle & 
Pfelffer, contractors, being additional re- 
spondents, the resolution was set aside, and 
respondents appeal. Affirmed. 



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101 ATIAMTIO RSPORTER 



OX.X 



Bmenon L, Bidiards, of Atlantic City, 
and Louis Hood and Riker & Rlker, all of 
Newark, for appellanta. Tbeo. W. Scblmi»f 
and C. L. Cole^ both of Atlantic City, for 
appellees. 

GARRISON, J. The facts of this case are 
fully stated in the opinion of Mr. Justice 
Blad(, who set aside the award of a contract 
for the Improvement of certain public roads. 
Godfrey v. Chosen Freeholders, 99 Atl. 843. 

We agree that the contract was not legal- 
ly awarded, but find it unnecessary to lay 
down any rule as to conditional awards gen- 
erally. 

In the present case the conditional award 
made on November 8, 1916, was by its own 
terms rendered void by the election to wblcb 
It referred. There was therefore, on Novem- 
ber 24, 1916, no award and no power to make 
one, since the meeting held on that date was 
not an adjourned meeting or one to which 
the matter had been continued; moreover, 
all bids but one had been rejected, and none 
of the statutory safeguards thrown around 
the awarding of such a contract was or 
could have been complied with. The award 
made at that meeting had not even the 
semblance of legality. Our affirmance of the 
Judgment of the Supreme Court might well 
rest upon this groimd alone, were it not for 
the fact that there Is a more fundamental 
question that lias been fully argued by 
counsel, and that ought, In the Interests of 
the public, to be decided before any further 
action is taken by the board of chosen tree- 
holders under diapter 122 of the Laws of 
1914, which admittedly is the autliorlty upon 
which the right to make the proposed im- 
provement rests. That statute is not a grant 
of power to reconstruct county roads In the 
broad sense of the term "reconstruction," 
nor does It leave it to the courts to give 
such broad meaning to it. The statute itself 
defines the word by limiting It to the "re- 
construction contemplated under the provi- 
sions of an act entitled, 

'An act to provide for the permanent improve- 
ment and maintenance of public roads in this 
state (Revision of 1912),* approved April 15, 
1912." 

We are thrown back therefore upon the 
act of 1912 In order to ascertain the sense 
in which the word "reconstruction" is used 
in that act, and when such sense is ascer^ 
tained such meaning and none other must be 
given to It in the act of 1914. Turning, 
then, to the act of 1912 (P. U 1912, p. 809), 
we find it to be a Revision of the Public 
Roads Act dealing, as Its title imports, with 
the t)ermanent Improvement of public roads 
and their maintenance. The Improvement 
of a public road is described generally by 
the act to be its construction as a macada- 
mized, Telford, stone, gravel, or other sort 
of road; and the maintenance of such an 
Improved road includes a provision for any 



extraordinary repairs or reconstructioa of 
which such road may be in need. 

This is the sort of reconstruction that is 
contemplated by the act of 1912, a recon- 
struction that is, upon the one band, closely 
associated with the idea of repairs, and, up- 
on the other, sharply contrasted with the 
idea of construction. So that upon compar- 
ing the provisions of that act with the provi- 
sions of the present contract, the latter could, 
by no stretch of the Imagination, be brought 
within the provision for reconstruction of 
the act of 1912. 

This being so. It follows ln4)emtiTely that 
such contract provisions cannot be brought 
within the authority to reconstruct granted 
by the act of 1914, which in express terms 
applies to Budi reconstruction only as was 
contemplated by the act of 1912. 

The award of the contract, therefore, was 
not only invalid because not legally made, 
but also because the board of chosen free- 
holders were without authority to make the 
proposed improvement. 

The Judgmmt of the Supreme Court is af- 
firmed. 

(R N. J. Bq. 63S> 
FRASER V. FRASER. 
(Court of Errors and Appeals of New Jersey. 
Maich 20, 1917.) 

(Byllahut (y tke Court.) 

1. DivoRCK «=337(15)— Gkounds — Deskbtiok 
— "Willful Desebtign" — "Obstinate De- 
sertion." 

It is tlie duty of a husband to provide a 
home for his wire, In wliich she is recognized 
by its inmates as the household mistress, and 
I when the husband subjects his wife in the man- 
agement of ber household affairs to the inter- 
i ference of ilia mother, who manifests an enmity 
I towards the wife, and by words and acts as- 
I sails tier conduct and reputation to such an 
I extent that she cannot endure it, and leaves the 
home for that reason, her desertion may be will- 
ful, but it does not become obstinate, so long 
as the husband malccs no effort to induce her 
to return to a home freed from the contentious 
element. 

I [Kd. Note.— For other cases, sea IXvorce, 
Cent. Dig. 1 122. 

I For other definitions, see Words and Phrases, 
] First and Second Series, Willful Desertion ; 
Obstinate Desertion.] 

2. Divorce «=»133(3)— Desebtiow — Wtre's 
Return— Bona Fides. 

A wife left her husband's home, after noti- 
fying him ttiat she would do so unless he pro- 
vided a home apart from his mother, whose con- 
duct she claimed humiliated her, and who had 
charged her witii being a bad, wicked woman. 
I This tiie bu8l>and refused, saying, "That is up 
to you." When she left her husband was pres- 
' ent, made no protest, and did not ask her to 
' stay. 

{ She took with her their only child, three weeks 

; old, and the husband never attempted to see his 

wife or the child, although they lived in the 

same city. After two years the husband decided 

' to move to this state in order to obtain a divorce 

' for desertion. Shortly before coming to this 

! state he wrote a letter to his wife, and the day 

after he moved he wrote her another ; the con- 

i tents of these letters being the only proof of an 



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69 



attempt to Incltie* hta wife to retnm. Neither 
letter contained any request or invitation, but a 
mere statement tliat the liome yraa open for lier 
return under old conditions, including tlie pres^ 
ence of ills mother. Held, that these letters 
were not proof of a bona fide effort to induce the 
wife to return, for there was no promise to re- 
move the real cause of the separabon, which the 
husband recognized when he permitted his wife 
to leave without protest. Nor did they invite 
the wiffe to return, and were evidently written 
as a basis for the intended divorce prooeediugs, 
embodying terms wliich he knew the wife could 
not accept 

[Ed. Note.— For other cases, see Divorce, 
Gent Dig. $ 44a] 

Appeal from Conrt of Chancery. 

Action for divorce by WiUiam J. Fraaer 
against Mary Bf. Fraser. Decree for plain- 
tiff, and defendant anDoals. Reversed, and 
cause remanded to the Court of Chancery, 
so that the petition might be dismissed. 

Edward Maxson, of Jersey City, for appel- 
lant James A. Sullivan, of Passaic, for ap- 
pellee. 

BERGEN, J. From a decree of divorce, 
based upon the petition of the husband, al- 
leging desertion by the wife) she has ap- 
pealed. 

[1] They were married in the city of Brook- 
lyn, N. Y., where both resided, July 10, 1910; 
a <AUd was bom April 24, 1911; the defend- 
ant left petitioner's house with the child May 
13, 1911; and since that date the parties have 
lived in separate homes. The reason which 
the wife gives for leaving her husband's 
house is that the conduct of the husband's 
mother, who was an inmate of the home, 
made her life intolerable by constant quar- 
rels, charged her with l>elng a bad woman, 
estranged her husband's affection, who es- 
poused the cause of the mother, and In many 
ways manifested her 111 will towards the wife 
by acts and speech, so that her position as 
mistress of the home was depredated, and 
she humiliated and deprived of the comfort 
and liapplness she had a right to enjoy. That 
there were many disagreements and quarrels 
between the women is not disputed; the tes- 
timony showing that the husband was aware 
of the condition, and that as early as Novem- 
ber, 1910, his wife complained to him that, 
unless he provided her a home separate from 
his mother, she would have to leave Mm. 
^niere Is no doubt that It was a contentious 
household, for which the mother was at 
least partly to blame, so that. If her conduct 
was not modified, there could be no happi- 
ness; and this the husband did not imder^ 
take to accomplish, for he testified that he 
heard both sides and remained nentral, even 
when told by his wife that his mother had 
written a letter to a fortune teller, In which 
the wife was described as "a Ijad, wicked 
woman." This attitude on the part of the 
husband is not, perhaps, such legal cruelty 
that it would justify a wife In leaving the 
home ; but there is a 8i)ecles of cruelty which 
cuts deeper than a blow or the lasl^ and that 



1b the weakening of a husband's lore end af- 
fection through the disparagement of the 
wife by the hnsband's mother, and when not 
resented by him, but apparently sustained, is 
bound to destroy the happiness of the home. 
Under such circumstances it Is his duty to 
remove the cause, and If he refuses It Is a 
potMit element In the consideration of the 
questions whether he did not consent to the 
separation, and whether he made a bona fide 
effort to Induce his wife to return. The 
animus of the mother Is further manifested 
by the fact that, although an Inmate of the 
bouse when the child was bom, she never 
made any effort to see the ddld, and, bo far 
as the testimony shows, never did. 

This cause UluMrates the futility of at- 
tempting to establish such a home as a hus- 
band Should provide for his wife, when one 
of the component parts Is his mother, who 
up to the time of the Introduction of the wife 
Is Its heaA, and who is not willing to gra- 
ciously accord to the wife her rightful posi- 
tion as mistress, and where the husband, In 
all disagreements between bla mother and 
wife, rither supports the mother or remains 
neutral between the contending forces. It Is 
the duty of the husband to provide a home 
for bis wife, where she Is recognized by its 
Inmates as the household mistress, and when 
the husband subjects his wife in the manage- 
ment of her household affairs to the Inter- 
fer^ice of his mother, who manifests an 
enmity towards the wife, and by words and 
acts assails her conduct and reputation to 
such an extent that she cannot endure it, and 
leaves the home for that reason, her deser- 
tion may be willful ; but it does not become 
obstinate so long as the husband makes no 
effort to induce her to return to a home freed 
from the contentious element Shortly be- 
fore the wife left she again told her hus- 
band that, unless he provided a home apart 
from his mother, she would leave, and he 
admits that his reply was, "That Is up to 
you," and on the day she moved he was pres- 
ent cutting the lawn, but paid no attention to 
the moving, nor did he say a word to her of 
protest, or request her to remain. 

The fair Inference from this record is that 
he tacitly consented to the separation, prefer- 
ring to retain his mother, rather than his 
wife and child. Under these circumstances 
the husband was not without fault, and, as- 
suming that the desertion by the wife was 
willful. It is not obstinate unless, after a 
bona fide effort to effect a reconciliation, the 
wife refused to return, and we must there- 
fore consider and determine whether such an 
effort has been made. It was manifest to the 
husband that no permanent reconciliation 
could be effected If the sume conditions re- 
mained, and the wife required to accept a 
home with his mother, who considered her "a 
bad, wicked woman." This was a huuiilia- 
tlon he knew she would not submit to. in 
our opinion the record falls to show any such 
bona fide effort aa^ the law requires. In Van 



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Wart T. Van Wart, 67 N. J. Bq. 598, 41 Atl. 
966, the husband, when the wife was leaving, 
as In this case, "stood by without asking her 
to stay," and It was held that it was his duty 
to make a bona flde effort to Induce her to 
return. "Desertion cannot) be c»nsldeied as 
obstinate on the part of one, when the sepa- 
ration la acquiesced In by and entirely satis- 
factory to the other, who neither entertains 
nor manifests any desire that the separation, 
nor the causes which brought it about, should 
cease." Ghlpchase v. Chlpchase, 48 N. J. Eq. 
649, 22 Atl. 688, affirmed on opinion below 49 
N. J. Eiq. 594, 26 Atl. 468. 

[2] What has the petitioner done in this 
case to manifest a sincere desire that the 
separation, and the causes which brought it 
about, should cease; the cause being a con- 
tentious mother-in-law unkindly disposed to- 
wards the wife? We have his admisslMi 
that be has never visited his wife or child, 
although th^ lived in the same dty, and he 
tratlfles that he has no affection for the 
diild. He does not daim that he would not 
have been allowed' to see either his wife or 
child, or that he made any effort to do so; 
he sulked in his tent until he wished to ob- 
tain a divorce. In March, 191S, he removed 
to New Jersey for, as he testified, the express 
purpose of obtaining a divorce for desertion, 
and his only effort to Induce his wife to re- 
turn was sending her two letters, one dated 
February 1, 1913, and the other April 1, 1913. 
The first letter was written shortly before he 
moved to this state, and when, presumably, 
he had decided to do so for the purpose of 
obtaining a divorce, and it should be read 
from that viewpoint. He asks whether she 
expects to live in the present manner for the 
rest of her life, whether she intends to return 
to his home, or whether she is going to get a 
divorce, and then adds, "The home is just the 
same as it always was ; I never told you to 
go, or debarred you from returning, and you 
can return under the same ccmdltions as you 
originally came to it," and that, if she wished 
a divorce, "you can have a divorce from me 
at any time without any contest" It is not 
difficult to read between the lines that this 
was not a bona fide attempt to remove the 
cause and end the separation. It ccmtalns no 
word of affection, no request to retnm ; all 
that be offers Is a place to live under the old 
conditions, and It was evidently written to 
lay the basis for a divorce in this state afiter 
removal thereto ; besides this, an offer not to 
contest a divorce suit instituted by her is 
hardly consistent with a bona flde desire to 
Induce a recondllation, but rather an invita- 
tion to join with him in making It permanent 
by a divorce. 

The second letter contains a notification 
that he has removed to New Jersey, and that 
his house was still open to her, "the same as 
prior to the time you left me and your home 
at Brooklyn." Neither letter contains any 



invitation or request to return, and the last 
was written immediately after be moved to 
this state in order that he might secure a di- 
vorce; and It is not credible that the peti- 
tioner, having Just moved to the state with 
the intention of obtaining a divorce, really 
Intended that it should induce his wife to 
accept, and thus prevent the accomplishment 
of the purpose he had In view. He knew 
that so long as the original cause remained 
he was in no danger of acceptance; be does 
not invite, but informs her that she may re- 
turn under old cocditlous; and It was mani- 
festly not his intention to ask her to come, 
for he carefully avoids doing so, bnt at the 
same time notifies her that. If she comes, she 
must do so with the cause of separati<»i still 
present To this lett«r d^endant replied, ex- 
pressing her desire and willingness to return 
If the mother was not a part of the family. 
The petitioner, having, In effect, cons«ited to 
the separation, and failed to show that he has 
made a bona flde attempt to end the separa- 
tion, is not entitled to a decree for divorce for 
desertion. 

The decree appealed from wlU be reversed, 
and the record remanded to the Court of 
Chancery, so that the petition may be dis- 
missed. 

(M N. J. lAW, 481) 
BOSS et nx. v. COMMISSIONERS OP PALI- 
SADES INTERSTATE PARK. 

(Supreme Court of New Jersey. June 6, 1917.) 
(Bytlalut hv the Court.) 

1. APPEAI, and EBBOB l8=a971(2)— EvtDENCK 

®=5546— Ekpebt on VALtJE OF Land — Dis- 

OBEnON OF TBIAI. COtTET— RKVIBW. 

Who is an expert on the value of land under 
our decisions must be left v^ much to the dis- 
cretion of the trial judge. His decision is con- 
clusive, unless clearly shown to be erroneous in 
matter of law. 

[Ed. Note. — For other cases, see Appeal and 
Error, Cent Dig. | 3853; Evidence, Cent Dig. 
§ 2363.] 

2. Evidence «=>543(3)— EixFKBTa— Lakd Vai> 

TJES— QUAtrnCATION. 

The dominant circumstances forming the 
qualification of expert witnesses as to land val- 
ues consist of the fact either that they have 
themselves made sales or purchases of other 
similar lands in the neighborhood of the land in 
question within recent periods, or that they have 
knowledge of such sales by others. 

[Eld. Note.— For other cases, see Evid«ioe, 
Cent Dig. { 2357.] 

8. Evidence iS=3543@) — Ezfebt Witness— 

VAi,tiE OF Land. 
The mere fact that a witness owns the land, 
bnt has no special knowledge of values, does not 
qualify him as an expert, so as to give an opin- 
ion as to the value of the land. 

[Ed. Note.— For other cases, see Evidence, 
Cent Dig. { 2357.] 

4. Eminent Domain ®=>131— Valuation or 
Land — Undeelying Stone. 
Valuing land taken under condemnation un- 
derlaid with stone, the stone should not be 
valued separately and apart from the land, but 
it may be shown to what extent the land is 



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ROSS V. COMMISSIONERS OF PALISADES INTERSTATE PARK 



61 



enhanced In value by the stone. The stme ia a 
component part of the land. 

[Ed. Note.— For other cases, we Ehninent Do- 
main, Cent. Dig. § 353.] 
6. Evidence «=>142(1)— Cokdkmnation Pbo- 

CKEDINQ — VALUK OJ LAND. 

It is not error to admit evidence of prices 

eaid by the condemning party for similar lands 
I the vicinity. 

fBd. Note.— Pot other cases, see Evidence, 
Cent. Dig. Si 418, 417, 423.] 

6. Evidence «=»142(1)— Value of Land. 

The price paid for land in the neighborhood 
of that being condemned, to be evidential, the 
land must be substantially similar. 

[Ed. Note.— For other cases, see BvidenoB, 
Cent. Dig. §1 416, 417, 423.] 

7. Eminent Domain «=»124— Vautation of 
La NH— Time. 

The land is to be valued in the condition 
in which it was on the date of filing the peti- 
tion and order, fixing the time and place for the 
condemnation proceedings. Act March 20, 1900 
(P. L. p. 81) § 6. 

[Ed. Note. — For other cases, see Eminent Do- 
main, Cent. Dig. §S 332-344.] 

Appeal from Circuit Oonrt, Bergen Connty. 

Action by P. Sanford Boss and wife against 
tbe Commissioners of the Palisades Inter- 
state Park. From a verdict of a Jnry in a 
condemnation proceeding, plaintiffs appeal. 
Affirmed. 

Argued before TBENCHABD and BLACK, 
7J. 

Bedle & Kellogg, of Jersey City, and Alonzo 
Chnrcta, of Newark, for appellants. Josiah 
Stryker, of Trenton, and John W. Wescott, 
Atty. Gen., for respondent. 

BLACK, J. This case Is an axipeal fnmi 
the verdict of a ]ury rendered in a cwidem- 
natlon proceeding tried at the Bergen circuit 
The verdict of the Jury was $8,000. The 
award of the commlBsioners was, $6,600. The 
amount of land sought to be taken was 8.6 
acres. 

The land under condemnation is situate in 
the extreme northerly part of the borough 
of Ft. Lee, Bergen county, and lies between 
a line drawn parallel with the Hudson river 
150 feet west of the high-water line of the 
Hudson river and the steep cliffs of the 
Palisades. The tract extends about 980 feet 
along this line, while the distance from the 
line to the cliffs is 170 feet at the northerly 
end and 155 feet at the southerly end. Ac- 
cess to the land on the west is shut off by the 
steep cliffs. The surface of the land is a 
steep slope from the base of the cliffs to the 
easterly boundary. The land Is bounded on 
the east by other lands of the appellant, 
which extend easterly 150 feet to the high- 
water line of the Hudson river and from 
there to the exterior line for solid filling. 

The land In question and the remainder of 
the same tract is wild, unoccupied land, the 
npland being covered with small trees, under- 
brush, and stones, the whole tract being un- 
derlaid with slate and sandstone, and at the 
westerly end, at an elevation of 128 feet. 



with trap rock. There Is no oonummlcatlon 
with the land by railroad, trolley, or wagon 
road, none of the land under the Palisades 
north of the tract has ever been used for In- 
dustrial purposes, and the nearest land un- 
der industrial development Is 2.6 miles south- 
erly in the adjoining borough of Edgewater. 
The grounds of appeal are 38 in number. 
They are argued, however, under eight heads 
In tbe appellants' brief. They all challenge 
the rulings of the trial court and allege trial 
errors as grounds for a reversal of the Judg- 
ment The principal ones, however, relate 
to the court's exclusion of the opinion of ap- 
pellants' experts as to the value of the land 
taken. Tbe witnesses offered by the appel- 
lants for this purpose were Mr. Frederick 
Dunham, civil engineer, Mr. Floyd S. Corbln, 
a real estate broker of water front and dock 
properties in the harbor of New York, Mr. 
John H. Ehrehardt, a consulting engineer, 
Mr. Edlow W. Harrison, a distinguished civil 
and consulting engineer (Mr. Harrison has 
had long and varied experience in valuing 
railroad lands in New Jersey for taxation 
since 1884, particularly as to the value of 
the railroad terminal lands In Hudson coun- 
ty; he has l>een called as an expert on many 
features of the litigation involving the taxa- 
tion of railroad property since the passage of 
the railroad tax act of 1884), Mr. Joseph E. 
Snell,'a dvll engineer of Newark, and Mr. P. 
Sanford Ross, the appellant and owner of the 
property under condemnatlcm, who is an en- 
gineer and contractor. Mr. Dunham testified 
that be had no familiarity with sales of prop- 
erty under the Palisades in the vicinity of 
the Ross property; that he had made no ef- 
fort to keep in touch with sales of land under 
the Palisades in the borough of Ft Lee. Mr. 
Corbin had no familiarity with the sale of 
any water front property in the borough of 
Ft. Lee or with the sale of any property any- 
where which had tbe same physical charac- 
teristics and the same lack of any means of 
communication as the property under con- 
demnation or the tract of land of which it 
formed a part Mr. Ehrehardt had not 
bought or sold property in Bergen county; 
he had no knowledge of any sale of any land 
lying along the Hudson river anywhere In 
Bergen county. Mr. Harrison testified, that 
the nearest property to the Ross tract of 
which he had any knowledge was the Koch 
property, which was located one mUe south 
of the Ross property, his familiarity with this 
proiierty l)elng acquired by appraising It 
He had no familiarity with values of land 
In the borough of Ft. Lee, except this one 
appraisal of the Koch property. He knew of 
no sales of any property similar or like the 
Ross property. Furthermore the record does 
not show any question overruled by tbe trial 
court put to him as to the value, but it does 
show that the trial Judge said he would sus- 
tain tbe objection. Mr. SneU testified that 
he had never purchased or sold any land In 



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lei ATIiAKTIO REPOBTBB 



(N.J. 



the Tldnlty of the tract under condemnation ; 
that he had no familiarity with the sale 
price of any land In that vldnlty. Mr. Koss 
testified that he had no knowledge of sales 
of water front property under the Palisades 
north of the land under condemnation ; that 
he had made no eftort to leam the sale prices 
of such property; he had no knowledge of 
either values or purchase prices of any prop- 
erty In the borough of Ft Lee, except the 
piece under condemnation and the tract of 
whldi it was a part, which he purchased in 
1882. 

[1] Hie primary question In this case for 
solution then Is whether, under our cases, It 
was error to reject the opinion of these wit- 
nesses on the value of the land under con- 
demnation. Who Is an exx>ert under our de- 
cisions must be left very much to the dis- 
cretion of the trial Judge. His decision is 
conclusive, imless clearly shown to be er- 
roneous In the matter of law. Manda v. 
Delaware, Lackawanna & Western R. R. Co., 
89 N. J. Law, 327, »8 AU. 467 ; New Jersey 
Zinc Co. v. Lehigh Zinc Co., 50 N. J. Law, 
194, 35 AU, 915; Elvlns v. Delaware, etc., TeL 
Co., 63 N. J. Law, 247, 43 AU. 903, 76 Am. St. 
Rep. 217; State v. Arthur. 70 N. J. Law, 427, 
57 AU. 156. 

[2] Our Court of Errors and Appeals, 
speaking on this precdse point, said: 

''Evidently, in the view of these autborides, 
the meet material circumstance forming this 
-qualification of expert witnesses as to land val- 
ues consists of the fact either that the; have 
themselves made sales or purchases of other 
similar lands in the neighborhood of the land 
in question within recent periods, or that they 
have knowledge of such sales by others. How 
recent the occurrence of such sales, in point of 
time, and how near in location, and how nearly 
similar in comparison must, of course, vary with 
the circumstances of each case, and it is ther» 
fore impossible to define a general rule applicable 
to all cases." Brown v. New Jersey Short Line 
B. R. Co., 76 N. J. Law, 797, 71 Atl. 271. 

[3] So the court in speaking of a former 
owner of land for six or seven years said: 

"Hence, to say nothing of personal capacity or 
of study or practice, there was shown on his part 
no opportunity to observe, and no actual obser- 
vation, in the locality of the land which fitted 
him to speak of its value. The witness tiad no 
special knowledge of values which, being im- 
parted to the jurors, could aid them in the dis- 
charge of their duty." Walsh v. Board of Edu- 
cation of Newark, 73 N. J. Law, 647, 64 Atl. 
108& 

The witness must have some special knowl- 
edge of the subject about which he Is called 
upon to express an opinion. Crosby v. City of 
Boat Orange, 84 N. J. Law, 708, 710, 87 Atl. 
341; Elvlns t. Delaware, etc., Tel. Ga, 63 
N. J. Lew, 247, 43 Atl. 903, 76 Am. St. Rep. 
217. 

A witness to be an expert must have more 
than a general knowledge of the subject un- 
der Investigation. Authorities from other 
jurisdictions applying a different rule are not 
binding on this court It Is sufficient to say, 
in the language of Mr, Justice Dixon: 

That, if in other states a more liberal rule is 
applied respecting the opinion of witnesses, as to 



the valae of real estate, "the worthlessness of 
such testimony is hardly a stronger reason for 
its rejection than the practically limitless amount 
of it that might be produced." I>aing ▼. United 
New Jersey R. R., etc, Co., 64 N. J. Law, 578, 
25 AU. 409, 33 Am. St. Rep. 682. 

In our reports the rule has been applied In 
the following Illustrative instances to this 
opinion of witnesses on the valuation and 
damage to land: A witness has qualified as 
an expert who has a knowledge of sales of 
lots and portions of lands similar to and In 
the inunedlate neighborhood of the con- 
demned land. The land so sold was within a 
radius of two miles from the land in question 
and within a period of three years from the 
date of the giving of the testimony. Brown 
▼. New Jersey Short Line B. B. Co., 76 N. J. 
Law, 797, 71 Atl. 271. 

A farmer is not an expert as to the dam- 
age done to a farm by the building of a rail- 
road other than for farming purposes. 
Pennsylvania R. R. Co. v. Root, 53 N. J. 
Law, 263, 21 Atl. 285. Real estate agents re- 
siding six miles distaitf from the property 
who had nothing to do with property In the 
Tldutty or anywhere near it are not on the 
question of rents. Haulenbeck v. Cronkright, 
23 N. 3. E}q. 413, affirmed 25 N. J. Eq. 613. 
Ordinary real estate agent is not (is to the 
value of the private title in a strip of land 
lying on a public highway, separated by the 
street from private property, nor as to dam- 
ages done to the owner of the abutting prop- 
erty, by appropriating that strip to railroad 
purposes. Laing v. United N. J. R. R., eta, 
Co., 54 N. J. Law, 676, 25 Atl. 409, 33 Am. St 
Rep. 682. Heal estate agent not an expert to 
give his opinion on difference between value 
of the property either to rent or sell estimat- 
ed with the railroad in the street and the 
value without the railroad cntompson v. 
Pennsylvania B. B. Co., 51 N. J. I^w, 42, 15 
AtL 833), not gbnTfij because witness resided 
on the property or because the witness owned 
and resided upon adjoining property (UUey 
V. Camden, etc., Ry. Co., 70 N. J. Law, 289, 
67 Atl. 445). A real estate agent is not an 
expert as to the amount of depreciation caus- 
ed by the existence of a sanitary sewer run- 
ning through the premises. Morrell v. Prels- 
kel, 74 Atl. 994. Nor is a real estate agent 
an expert who is familiar with prices of 
property in the neighborhood as to the value 
of laud after the construction of a tunnel 
with Its present value. Pennsylvania B. B. 
Co. V. Schworz, 75 N. J. Law, 801, 70 AU. 134. 
The fact that a real estate agent on one 
occasion was able to lease a farm having a 
water supply in preference to one which had 
not affords no basis for an opinion concern- 
ing the difference In rental value between the 
two. Crosby v. City of Eaat Orange, 84 N. 
J. Law, 710, 87 AtL 34L 

Knowledge of real estate values in the 
locality does not qualify witness to testify 
to the diminution in value of property by 
reason of the destructldn of shade trees 



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standing In the hlgbway In tctmt of it (Bar- 
rough V. New Jersey Gas. Co., 88 N. J. Law, 
643, 06 Atl. 885), or such knowledge In a 
township (Van Ness v. New York, etc, TeL 
Co., 78 N. J. Law, 511, 74 AtL 456). Valua- 
tion of adjoining railroad terminals is a bas- 
ts of quallflcatlon of members of Board of 
Assessors making the valuation. Long Dock 
Ck>. r. State Board of Assessors, 89 N. J. Law, 
108, 87 Atl. 800. An experienced real estate 
man of large experience not an expert oa the 
question as to the fair value of the ciHinec- 
tion and use of a sewer condemned. Park 
Land Corporation v. Mayor, etc., of Balti- 
more, 128 Md. 611, 88 AtL 167. A witness 
with some knowledge of real estate is not an 
expert on the value of shade trees. Elvlas 
V. Delaware, etc, Tel. Co., 63 N. J. Law, 243, 
43 AU. 803, 76 Am. St. Rep. 217. 

From the mle thus stated and its ai^li- 
cation made by our courts It was not error 
for the trial conrt to exclude the ofi^nlon of 
these witnesses on the value of the land un- 
der condemnation. 

[4] Nor was it error to admit the opinicxi 
of the witness William O. Allison. He had 
bought and sold property in the borough of 
Ft. liCe of the same peculiar quality. He 
quallfled as an expert under the cases above 
dted. Brown v. New Jersey Short Line R. 
B. Co., 76 N. J. Law, 787, 71 Atl. 271. Nor 
was it error to exclude evidence as to the 
value of the ataae in place, under the case of 
Manda v. Delaware, etc., R. R. Co., 88 N. J. 
I^w, 327, 88 AU. 467. Xhe stone in place is 
a part of the land. It cannot be valued sep- 
arately and apart from the land. To what 
extent, if any, the value of the land is en- 
hanced by the stone may be shown. The 
value of the land as stone land suitable for 
quarrying is a proper subject of considera- 
tion both by the witnesses and the Jury in 
fixing the cmoimt of Just compensation to be 
awarded, but not the value of the stone sep- 
arately and apart from the laud. The value 
of the land is not measured by such facts. 
The stone la a component part of the land. 
Reading, etc., R. R. Ck). v. Balthaser, 110 Pa. 
472, 482. 13 Atl. 294, 126 Pa. 1, 10. 17 Atl. 
518; Norfolk, etc, Ry. Co. v. Davis. 58 W. 
Va. 020, 620. 52 a E. 724; St Louis, etc, Ry. 
Co. V. Cartan Real Estate Co., 204 Ma 665, 
575, 103 S. W. 518; Gardner v. Inhabitants 
of Brookllne, 127 Mass. 358; Trl-State Tel., 
etc., Co. V. Cosgrlflf, 18 N. D. 771, 124 N. W. 
75, 26 L. R. A. (N. S.) 1171; 10 R. C. L. p. 
128, I 112; Lewis on Eminent Domain (3d 
Ed.) pars. 724, 725; 15 Cyc 758. The 
cases cited as supporting a different principle 
are not in point Dewey v. Great Lakes 
Coal Co., 236 Pa. 488, 500, 84 Atl. 813; Cole 
v. EUwood Power Co., 216 Pa. 283, 290, 65 
Atl. 678; Seattle, etc, R. R. Co. v. Roeder, 
30 Wash. 244, 70 Pac 498, 94 Am. St Rep. 
864. Nor was it error to admit the testi- 
mony of Frank Clark whether the stone in 
question would make concrete. 



[t, <] So it was not error to admit in evi- 
dence the prices paid by the condemning par- 
ty for s],mllar lands in the vicinity. Curley 
V. Mayor, etc, Jersey City, 83 N. J. Law, 
760, 85 AU. 197, 43 L. B. A. (N. S.) 985; Had- 
ley V. Freeholders of Passaic 73 N. J. Law, 
187, 62 AO. 1132. So it was not error to ex- 
clude the pordiase price of the Carpenter 
tract It was not substantially similar land 
or of the same peculiar quality. The pur- 
chase price included the quarry, machinery, 
and good will of a quarry plant In operation. 
Manda v. Delaware, etc., R. R. Co., 88 N. J. 
Law, 327, 08 Atl. 467; Brown v. New Jersey 
Short Line R. B. Co., 76 N. J. Iaw, 798. 71 
AU. 271; Manda t. City of EJast Orange, 82 
N. J. Law, 687, 82 Atl 869, Ann. Cas. 1813D. 
581. Nor was it error to admit the opinion 
of Dr. H«iry B. Kuemmel, state geologist of 
New Jersey, with regard to the danger of 
stones falling from the cliffs along the Pali- 
sades at the Robs property. Nor was it error 
on cross-examlnaUon to permit the witness 
Charles W. Stanlsforth to testify as to the 
speciflcattons of the dock department of New 
York City. It was admissible to test his 
knowledge of the various spedflcaUons which 
he said he had prepared. Nor was it error 
to exclude Joseph E. Snell from answering 
the quesUon, "In your opinion does the tak- 
ing of the 3.6 acres from Mr. Ross' property 
injure the remaining?" when the witness was 
permitted to answer the following quesUon: 
"Does the taking of the 3.6 acres render this 
property less available for commercial pur- 
poses?" Under the third ground of appeal 
to the witness Ii^ederlck Dunham this ques- 
tion was asked: "Do you know whether the 
railroad has been laid out further up the 
river?" This was overruled on the ground 
that the best evidence as to whether a rail- 
road had been laid out would be the papers, 
if any, in the secretary of state's office. This 
was not error, but under this bead counsel 
for the appellants argued at some length that 
the trial court excluded relevant evidence 
tending to show the adaptability of the land 
for commercial purposes. It is sufficient to 
say, in answer to this, that the record, so far 
as we have been able to find, does not in 
fact show any sudi evidence excluded by the 
trial court Nor do we find any error iu 
the charge of the court to which error is 
assigned. This is contained in the thirty- 
first to the thirty-eighth grounds of appeal. 
The precise polht of alleged error In the 
charge of the trial court Is not made clear, 
and it hardly needs any extended discussion. 
The charge Is in conformity to the cases in 
our reports on the points excepted to. Pack- 
ard V. Bergen Neck Ry. Co., 54 N. J. Law, 
553, 25 Atl. 506; Manda v. City of Orange, 
82 N. J. Law, 686, 82 Atl. 868, Ann. Cas. 
1813D, 581 ; Manda v. Delaware, etc., B. B. 
Co.. 89 N. J. Law, 327, 88 AU. 467. 

[7) The charge of the court that the Jury 
were obliged to value the land in the condi- 
tion in which it was on the 12th day of Jan- 



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101 ATLANTIC REPORTER 



(N.J. 



uary, 1914, wblch was the date of the flUng 
of the petition and order thereon fixing the 
time and place for commencing the condem- 
nation proceedings was correct, aa required 
by statute (P. L. 1900, p. 81, | 6; 2 C!omp. St 
p. 2184, { 6). Manda r. Delaware, etc., R. R. 
Co.. 89 N. J. Law, 327, 98 Atl. 46T. 

Finding no error in the record, the Judg- 
ment of the Bergen county circuit court is 
afflrmed, with costs. 

(90 N. J. Law, SE3) 

ATLANTIC COAST ELECTRIC RX. CO. v. 
STATE BOARD OF TAXES AND AS- 
SESSMENTS. 
(Supreme (Tourt of New Jersey. June 6, 1917.) 

Taxation <8=>394— Corposation Fbanchisx 

Tax — Statute. 
Acts 1906 (P. L. p. 644) requiring an annual 
franchise tax upon the annual gross receipts of 
any street railway corporation or upon such pro- 
portion of such gross receipts as the length of 
Its line in this state upon any street, etc., bears 
to the length of its whole line, was intended to 
impose a franchise tax upon the total of the 
groes receipts of such companies, including re- 
ceipts from current and power sold, in accord- 
ance with its precise language, and not upon 
gross receipts for transportation, as was the 
rule under P. L. 1903, p. 232, since the act of 
1906 was intended to provide a specitic scheme 
for the taxation of street railway corporations 
and to differentiate such corporations from those 
liable to a franchise tax under the act of 1903. 

[Ed. Note.— For other cases, see Taxation, 
Cent Dig. I 669.] 

Certiorari by the Atlantic Cioast Electrio 
Railway Company against the State Board 
of Taxes and Assessments to review the 
assessment of a franchise tax. Tax affirmed. 

Argued February term, 1917, before 
SWATZB, MINTURN, and KALISCH, JJ. 

Durand, Ivlns & Carton, of Asbury Park, 
for prosecutor. John W. Wescott Atty. Gen., 
for the State. 

SWAYZE, J. The prosecutor was taxed 
under the act of 1906 (P. L. 644) upon gross 
receipts amounting to $363,742.35. Of this 
amount $67,752.55 was receipts from current 
and power delivered to the Atlantic Coast 
Electric Light Ck>mpany. The prosecutor 
claims that this last amount should not be 
Included in the gross receipts upon which the 
franchise tax is to be estimated. The lan- 
guage of the statute plainly requires an an- 
nual franchise tax upon the annual gross 
receipts of any street railway corporation or 
upon such proportion of such gross rec^pts 
as the length of its line in this state upon 
any street highway, road, lane, or other 
public place bears to the length of Its whole 
line. The argument of the prosecutor is that 
although this language is clear, the tax 
should be computed only upon the gross re- 
ceipts for transportation, because this was 
the rule under the act of 1903 (P. L. 232). 
The answer Is that the act of 1906 was in- 
tended to provide a specific scheme for the 



taxation of the street railway corporations 
and to differentiate such corporations from 
corporations liable to the franchise tax under 
the act of 1903. The Legislature had before 
them the latter act and carefully omitted 
the words indicating that the tax should be 
calculated on receipts for transportation. 
No inference can be drawn from this omission 
except that the Legislature meant that the 
tax should be imposed upon the total of the 
gross receipts in accordance with its precise 
language, which cannot be explained away by 
a mere guess at the possible intent to the con- 
trary. This Is borne out by the fact that un- 
der the act of 19(X) (page 602), which was the 
original franchise tax act for corporations of 
this character, a distinction was made be- 
tween oil and pipe line corporations whldi 
were required to report gross receipts for 
transportatlcm of oil and petroleum, and oth- 
er corporations whldi were required only 
to report gross receipts. The act of 1900 
was before this court in Paterson ft Passaic 
Gas Company v. Board of Assessors, 69 N. J. 
Law, 116, 54 Atl. 246, and It was held that 
gross receipts included all gross receipts. 
The tax is affirmed, with coats. 



07 N. 3. Bq. 30}) 
In pe CHRISTIE'S ESTATE. (No. 8679.) 

(Ehrerogative Court of New Jersey. April 30, 
1917.) 

1. Taxation «=>895(6) — iNHKarrANcs Tax — 
Right Taxed— Statute. 

The tax imposed by Transfer of Property 
Tax Act AprU 20, 1909 (P. L. p. 325), is on the 
right of inheritance, on the beneficiary for the 
privilege of succeeding to the property, and is 
measured by the clear market value of the prop- 
erty transferred, ascertained by deducting from 
the gross value of the residue all lawful charges, 
exemptions, and costs of winding up the estate. 
[Ed. Note.— For other cases, see Taxation, 
Cent Dig. { 1719.] 

2. Statutes iS=»226 — Adoption fbom Otheb 
State— Pbesumption. 

Where a statute was copied from the stat- 
ute of another state, it will be presumed that 
the judicial construction given to the statute in 
such other state was adopted by the Legislature 
when it adopted the statute. 

[Ed. Note.— For other cases, see Statutes, 
<3ent Dig. { S07.1 

3. Taxation «=s>895(7) — Inhebitancb and 
Tkansfeb Taxes — Sttkohaboino Assess- 
ment WITH Teustee's Commissions — Stat- 
ute. 

Under Transfer of Property Tax Act f 4, 
providing that whenever a decedent appomta 
executors or trustees and devises property to 
them in lieu of their commissions or allowances 
whidi otherwise would be liable to the tax, or 
appoints them his residuary legatees, and the 
bequest devise, or residuary legacy exceeds what 
would be reasonable compensation for their 
services, the excess shall be liable to the tax, the 
commissions of testamentary trustees diminish 
the inheritance, and are to be taken into con- 
sideration and allowed In fixing the value of the 
succession, and at the proper time the 



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IX RE CHRISTIE'S ESTATS 



65 



ment of the tax maj be surcharged with the 
trustee's commissions. 

[Ed. Note.— For other cases, see Taxation, 
Cent. Dif. { 1719.] 

4. Taxation $=>895(7) — Inrkbitancb and 

TSANBTEB TaXBS — PHACTICK OF CoMPTB01> 
LEB'S DKPAKTIOENT — AlXOWANCK 0¥ COBTB 
OF WlROINQ UF ESTATK8. 

The practice in the comptroUer'a department 
4^ approximating and allowing in the assess- 
ment of inheritance taxes the costs of winding 
up estates is unwarranted in law, it being the 
comptroller's duty to await the final judgment 
of the proper tribunal. 

[Ed. Note.— For other cases, see Taxation, 
Cent. Dig. i 1719.] 

In the matter of tbe estate of Robert 
Christie, deceased. From an appraisement 
of property transferred by decedent's will 
and an assessment thereon of a tax under 
the Transfer of Property Tax Act of 1909, 
an appeal Is taken. Appeal dismissed. 

Herbert M. Lloyd, of New York Caty, for 
api)ellant8. Herbert Boggs, Asst. Atty. Gen., 
for the State. 

BACKBS, Vice Ordinary. Tbls Is an ap- 
peal from an appraisement of property trans- 
ferred by the last will and testament of Rob- 
ert Christie, deceased, and an assessment 
thereon of a tax under the Transfer of Prop- 
erty Tax Act of 1909 (P. li. 326). 

The decedent died May 12, 1915, a resi- 
dent of Montdair, leaving a last will and 
testament, wherein, after pecuniary legacies, 
he bequeathed the rest of his estate to his 
executors in trust, to pay one-third of the net 
Income to bis wife for life, remainder over 
absolutely to his next of kin and heirs at law 
her surviving, and the net income of the re- 
maining two-tblrds to his wife so long as she 
remained his widow, with similar remain- 
der over upon remarriage or death. The 
taxable Interests were appraised at $60,- 
4t9.17, of which $44,386.20 was apportioned 
to the residuary estate. The contention of 
the appellants — the executors and trustees — 
is that the latter sum should be reduced by 
6 per cent, the amount of commission they 
estimate will be allowed to them for their 
services as trustees. 

[1 , 2] The tax imposed by the act is on the 
right of inheritance — on the beneficiary — for 
the privilege of succeeding to the property 
{Sawtcr ▼. Shoenthal, 83 N. J. Law, 499. 83 
Atl. 1004; Carr v. Edwards, 84 N. J. Law, 
667, 87 Atl. 132), and is measured by the 
"dear market value" of the property trans- 
ferred ; ascertained by deducting from tbe 
gross value of the residue all lawful charges, 
exemptions and costs of winding up the es- 
tate. As to remuneration to trustees for ad- 
ministering trusts created by will, inasmuch 
as the office and duties are separate and dis- 
tinct from those of executors, and as statu- 
tory commissions are allowed in each, al- 
though the same x>er8on may have acted in 
both capacities (Pitney v. Everson, 42 N. J. 



Eq. 3«l, 7 AtL 860), if I were to fdlow my 
own opinion, my Judgment would be that 
they were to be paid out of tbe estate for 
whose benefit the services were rendered. 
But the New York courts decided otherwise, 
and have held that the commissions of testa- 
mentary trustees diminish the inheritance, 
and are to be taken into consideration and 
allowed in fixing the value of tbe succession, 
and as our Transfer of Tax Act was copied 
from the statute of that state, it will be pre- 
sumed that the Judicial construction there 
given to the latter was adopted by our Leg- 
islature. De Raismes v. De Raismes, 70 N. 
J. Law, 15, 56 Atl. 170; Oay v. Edwards, 84 
N. J. Law. 221, 86 Atl. 548. In the Matter 
of Gihon, 64 App. Dlv. 504, 68 N. Y. Supp. 
381, 72 N. Y. Supp. 1104, the trust was similar 
to the one in this case, and on an appeal 
from an assessment which included commis- 
sions to which the executors would be en- 
titled as trustees, the surrogate held that: 

"The right to commissions as trustees is statu- 
tory, and cannot be taken away except for mis- 
conduct in office, or as a penalty for relinquish- 
ing office. They are a legal and preferential 
charge against the trust estate. The property 
passes to the beneficiaries subject to their pay- 
ment. Bearing in mind the cardinal principle 
that the transfer tax is to be measured by tbe 
amount the legatee is legally entitled to re- 
ceive, and that the law permits the transfer to 
legatees through the medium of trusts, I can see 
no reason why the rule which permits tlie com- 
missions of executors and administrators to be 
deducted should not apply equally as well to 
commissions of trustees.' 

Tbe Appellate Division of the Supreme 
Court affirmed the Judgment on the opinion 
of tbe surrogate, and on an appeal to the 
Court of Appeals, Judge CuUen, speaking for 
the court, said: 

"There is a distinction that may be made be- 
tween the commissions of executors or adminis- 
trators whose appointment is an absolute essen- 
tial to the lawful liquidation of an estate and 
those of trustees who are appointed solely for 
the protection of the property of the beneficiary, 
and it may be urged that such latter commissions 
should be considered as an expenditure for his 
benefit. Whatever force there may be in this 
view, we think the deduction of the trustees' 
commissions is justified and required by section 
227 of tbe Tax Law itself, which prescribes that 
any legacy or devise to trustees in excess of their 
commissions allowed by law shall be taxable, 
thus necessarily implying that legal commissions 
shall be exempt." Matter of Gihon, 169 N, Y. 
443, 62 N. E. 561. 

Section 227 (Transfer Tax Law [Laws 1896, 
c. 908]) referred to corresponds with section 
4 of our act (4 Comp. St. 1910, p. 5305, i 540). 
See, also, Matter of SllUman, 79 App. Dlv. 
98, 80 N. Y. Supp. 336. The Gihon Case was 
decided In 1902, and construed the act of 
1896. ChrysUe on Inh. Tax. 437. 

The Attorney General argues that this 
presumption should not be indulged, because 
the commissions of testamentary trustees are 
r^ulated in New York by statute, whereas 
in this state they are fixed by the courts. 
Section 2753 of the Code of Civil Procedure 



101A.-6 



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101 ATIiANTIO RBPOBTBB 



(N.J. 



directs that surrogates "on Che settlement 
of the account of any executor, adminis- 
trator, guardian or testamentary trustee, the 
surrogate * ♦ • must allow to such ex- 
ecutor, administrator, guardian or testamen- 
tary trustee for bis services In such official 
capacity • • ♦ for receiving and paying 
out all sums of money • • • " at the rate 
of 5, 2%, and 1 per cent, according to the 
amount. Section 128 of our Orphans' Court 
Act (C. S. 3859) provides that "the allowance 
of commissions to executors, administrators, 
guardians or trustees shall be made with 
reference to their actual pains, trouble and 
risk in settling such estate, rather than In 
respect to the quantum of estate," and In 
the next section limits the rate by a sliding 
scale. As these enactments simply change 
the rule of the common law by allowing a 
reward to executors and trustees (Warbass 
T. Armstrong, 10 N. J. Eq. 263), I am unable 
to perceive how the difference In methods of 
arriving at the amount of compensation can 
Influence In the least the application of the 
established rule of construction that the 
adoption of a statute of a sister state la pre- 
sumed to have been had with reference to the 
previous construction given to such statute 
by the court of such state, or how it, in any 
manner, affects the principle Involved and 
the rule laid down la the cases last dted. 
In the amount of the allowances there is, so 
far as they may reckon In the assessment, as 
much uncertainty In the one Instance as in 
the other. In the one the problem encounter- 
ed is what will be the sums of the corpus 
passing from the executors to the trustees, 
and of the accumulations pending the trust, 
to which the rate applies ; and in the other, 
what amount will the court fix? It must not 
be overlooked that assessments are made un- 
der the respective statutes forthwith after 
probate, and at a time when these items are 
wholly problematical and necessarily must be 
adjusted supplementally. For this, purpose 
New Xork has correctional facilities, as ,we 
have. There the surrogate may modify the 
assessment from time to time, as the occasion 
requires. Matter of Sllllman, supra. Here 
that function is vested in the comptroller by 
section 15. Under section 2 of our act, the 
tax assessed upon remainders is not payable 
until the remainderman becomes entitled to 
the actual possession or enjoyment of the 
property, and under section 15 the comptrol- 
ler may refimd any tax erroneously paid, pro- 
vided that application therefor be made with- 
in two years from the date of payment 
These remedial provisions obviously furnish 
ample opportunity to trustees to have their 
compensation settled, upon accounting, and 
the assessments revised. 

[3] Holding, as I do, that at the proper 
time the assessment may lie surcharged with 
the trustees' commissions, leads to the con- 
clusion that the appellants were premature 



In their demands upon the comptroller, and 
that their appeal must be dismissed. 

[4] A practice prevails In the comptroller's 
department of approximating, and allowing 
in the assessment, the cost of winding up es- 
tates, which coarse the appellants contend 
should have been pursued in this instance. 
All that need be said is that the practice, 
notwithstanding Its merits in accelerating 
settlements, is not warranted in law, and 
resting, as it does, wholly upon conjecture 
and the merest guesswork, must often work 
Inequities to the state or the party assessed. 
Strictly speaking, the department has no 
more the right to anticipate the probate 
court's action than it has to adjust a dalm 
against an estate for nnllquldated damages, 
which I understand it never undertakes to da 
In either event, it is the duty of the comp- 
troller to await the final Judgment of the 
proper tribunal. 

The appeal will be dismissed, with costs. 



(ST N. J. Bq. 2t7) 
In re I>rrrMAN*S EX-RS. (No. 3690.) 

(Prerogative Court of New Jersey. May 10, 
1917.) 

(BvUabu» hv tlie Court.) 

h Taxation «=3900(5)— iNHKarrAWCB Tax— 

Appeai. to Obdinaby. 
The appeal to the ordinary from an nRsess- 
ment of a transfer tax, under the Inheritance 
Transfer Tax Act (Act AprU 20, 1909 [P. L. 
p. 334]) I 18, is an appeal to the Prerogative 
Court, because the ordinary is the judge of that 
court, and the proceedings are in that court 

[Ed. Note. — For other cases, see Taxation, 
Cent Dig. !| 1722, 1723.] 



2. JUDQEs iS=>25(l)— New Jbrset— Jdbisdic- 
TioN OF Vice Okdimaet. 

Although the office of vice ordinary is the 
creature of statute, the jurisdiction of the vice 
ordinaries arises from reference to them of 
matters by the ordinary in virtue of his inher- 
ent powers, and their jurisdiction is complete 
by delegation from him. 

[Ed. Note. — For other cases, see Judges, Cent. 
Dig. !§ 99, 105. 105%, 106.] 

3. Taxation «=»900(5)— iNHEBrrANCE Tax— 
AprEAii TO Obdinaby— Vauditt of Stat- 
ute. 

The giving of an appeal to the ordinary in 
the inheritance transfer tax act is a valid legis- 
lative enactment 

[Ed. Note.— For other coses, see Taxation, 
Cent Dig. H 1722, 1723.] 

4. Appeal and Ebbob «=»1— "Appeax." 

Au "appeal" is a judicial proceeding cogniz- 
able in a court 

[Ed. Note.— For other cases, see Appeal and 
Error, Cent Dig. %% 1-4. 

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

6. Appbai. to Obdinabt. 

Sembie, Tliat the appeal to the ordinary 
provided for in Inheritance Transfer Tax Act, 
§ 18, makes him a statutory tribunal, and that 
an appeal from a decree of the Prerogative 
Court m a case under that act is reviewable by 
certiorari in the Supreme Court instead of by 
appeal to the Court of Errors and Appeals. 



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IN BE DITTMAN'S SX'BS 



67 



Aiipeal by fbe execatora of Henry I. Dltb- 
man, deceased, to review the inheritance tax 
on property passhig nnder the wllL Jmto- 
dlctlonal question detecmlned, and, on ap- 
pUcatUm of counsel, a day to be designated 
for hearing the facts. 

MaxImllUan T. Rosenberg, of Jersey City, 
for appellant Herbert Boggs, Asst Atty. 
Gen., for the State. 

LEWIS, Vice Ordinary. [1] rrom an In- 
heritance transfer tax apon the estate pass- 
ing under the will of the late Henry I. Dltt- 
man, deceased, his executors appeal to the 
ordinary, under section 18 of the Inheritance 
Transfer Tax Act (P. L. 1909, p. 334). That 
section provides that any person or corpo- 
ration dissatisfied with an appraisement or 
assessment under the act may appeal there- 
from to the ordinary. 

The appellants, Dittman's executors, con- 
tend that constltutlonaUy they could not be 
compelled to appeal to the ordinary; that 
they could have recourse to a writ of certio- 
rari to review the assessment of which they 
complain ; that the ordinary is an official to 
whom they are permitted to resort as an 
un^ire by consent of the state. 

The respondent, the comptroller of the 
treasury, contends that on this appeal the 
ordinary does not sit as sndi, exercising the 
powers and Jurisdiction of the ordinary or 
of the Prerogative Court ; that the appeal is 
not to the Prerogative Court, and that the 
petition is Improperly so entitled; and also 
that the ordinary cannot refer the matter to 
a vice ordinary. These contentions are un- 
sound. The ordinary is the Judge of the 
Prerogative Court, and consequently the 
court itself. The Constitution so provides 
(article 6, } 4, par. 2). 

In England in former times the ordinary 
and the Judge of the Prerogative Court were 
different functionaries. In 2 Bl. Com. 609, 
the learned author says: 

"If all the goods of the deceased lie within 
the same jurigdictioD, a probate before the ordi- 
aary, or an administration granted by him, are 
the only proper ones ; but if the deceased had 
bona notabilia, or chattels to the value of a 
hundred Bhilllngs, in two distinct dioceses or 
jurisdictions, then the will must be proved, 
or administration taken out, before the metro- 
politan of the province, by way of special pre- 
rogative, whence the courts where the validity 
of such wills is tried, and the offices where they 
are registered, are called the Prerogative Courts, 
and prerogative offices." 

And in 3 Bl. Oom. 65: 

"The Prerogative Court was established for 
the trial of all testamentary causes, where the 
deceased hath left bona notabilia within two 
different dioceses. In which cases the probate 
of wills belongs, as we have formerly seen, to 
the archbishop of the province, by way of spe- 
cial prerogative. And all the causes relating 
to the wills, administrations, or legacies of such 
persons are originally cognizable herein, before 
a judge appointed by the archbishop, called the 
judge of the Prerogative Court." 

But In our state the ordinary and Judge 
of the Pr^o^tlve Conrt are^ and always 



have been, one and the same, and their pow- 
ers — that Is, their Jurisdictions — have been 
blended also. Tills is expressly stated by 
Mr. Justice Van Syekel in his concurring 
opinion in Harris v. Vanderveer's Ex'r, 21 N. 
J. Eq. 424, at page 447, where he says that: 
"The power of the ordinary and the preroga- 
tive Court, which existed separately under the 
English system, have been blended here." 

The blending of the ordinary and Judge of 
the Prerogative Court into one and the same 
functionary, and also their powers Into one 
Jurisdiction, in our state resulted from the 
fact that such of the ecclesiastical Jurisdic- 
tion In England, which was transmitted to 
the colony, was confided to the Governor, 
whose Jurisdiction was, ef course, state-wide. 
Grift. U B. (N. J.) 1185, where, in note 1, 
the learned author states: 

"The jurisdiction of the governor as the ordi- 
nary of New Jersey, before the Revolution and 
since, extended throughout the state, and a 
will, administration, or guardianship proved 
or granted by himself or a surrogate (and he ap- 
pointed as many as be chose to do) was valid, 
without r^ard to the place where the goods lay. 
Hence he possessed the prerogative powers of 
the ecclesiastical jurisdiction m these particu- 
lars." 

The state, and the colony before It, was 
divided into counties, and the Jurisdiction of 
the ordinary — there never has been but one 
at the same time — did, and does, run through 
all the counties. In colonial times, and later, 
the surrogates were appointed by the ordi- 
nary as his deputies, and they had Jurisdic- 
tion in all cases submitted to them unless 
some special restrictions were Inserted In 
their commissions. As already remarked, the 
doctrine of bona notabilia never bad any 
place here. In re Coursen's Will, 4 N. J. 
Eq. 406, 413. And, although surrogates were 
later made county officers with probate Ju- 
risdiction limited to their respective counties, 
that in no wise affects the Jurisdiction of the 
ordinary. 

The first act of the Legislature concerning 
the ordinary and the Prerogative Court, 
passed December 16, 1784 (Pat. Laws, 59), 
expressly enacted in section 2 that: 

"For the more regular hearing and determin- 
ing of all causes, cognizable before the ordi 
nary, he shall statedly bold a Prerogativi 
Court," etc. 

See the present act, entitled: 

"An act respecting the Prerogative Court aivd 
the power and authority of the ordinary (Revi- 
sion of 1900)." Comp. Stat. p. 1722, i 77 et 
seq. 

The first section defines the authority of 
the ordinary as to granting probate of wills, 
etc., and tbe tenth provides that It shall be 
the duty of the register of the Prerogative 
Court to record all wills, etc. Ttmt the ordi- 
nary holds a court in granting probate is 
beyond question. The function is Judicial, 
and therefore must be exercised In a court. 
Even the surrogate holds a court when pro- 
bating a wiU. Mellor v. Kalghn (Err. & 
App.) 99 Atl. 207. 

[2] The contenti(oa that tha ordinary la 



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101 ATLAHma KSPOBXKB 



(N.J. 



wlthont power to tefer tbe matter at bar to 
a vice ordinary is also unsound. Tbe con- 
tention la tliat because tbe appeal is given 
in terms to the ordinary, and that no power 
to refer it is given in the same statute, the 
right does not exist Ttils is fallacious, for 
by act of 1913 (P. U p. 81) the ordinary Is 
empowered to refer any matter pending in 
the Prerogative Court to a vice ordinary for 
bearing and advloe, but the Jurisdiction 
which the vice ordinaries exercise, upon ref- 
erence to them, is not derived from this stat- 
ute, but by delegation from the ordinary by 
virtue of bis inherent powers. 

In an exhaustive review of the powers of 
the vice chancellors (whose office was like- 
wise created by statute), In Re Thompson, 85 
N. J. Eq. 221, 96 Atl. 102, CSianceUor Walker, 
at page 257, holds that: 

"Their jurisdiction is complete by delegation 
from the cliancellor under the authority inhering 
in his general power derived from the High 
Court of Chancery in England and devolved 
upon our Court of Chancery by the ordinances 
of Lord Combury and Governor Franltlin, and 
ratified by tha Constitutions of 1776 and 1844." 

And at page 261 of 85 N. J. Eq., 96 Atl. 
102, he holds that a perfect analogy exists 
with reference to the Prerogative Court, in 
which the Legislature has authorized the ap- 
pointment of vice ordinaries, the ancient of- 
flce of surrogate, as deputy or assistant to 
the ordinary, being the source of power in 
the vice ordinaries. 

It is to be observed that in the act creat- 
ing the office of vice ordinary (P. L. 1913, p. 
81) the Legislature lias provided that the or- 
dinary may refer to any vice ordinary any 
cause or other matter which at any time may 
be pending in the Prerogative Court, to bear 
the same for the ordinary and report thereon 
to him and advise what order or decree 
should be made therein. Now, if the ordi- 
nary is a functionary apart from himself as 
the judge of the Prerogative Court, It is 
singular that the lawmaking body did not 
bestow the power to refer upon the judge of 
the Prerogative Court, the wily functionary 
Who in such case could constitutionally exer- 
cise It, Instead of casting it upon the ordina- 
ry, who could not lawfully do so. In this 
we have legislative Interpretation to the ef- 
fect that the ordinary and judge of the Pre- 
rogative Court, and likewise their Jurisdic- 
tion, are one and the same. 

Enough has been shown, I think, to demon- 
strate that the act under which this assess- 
ment was made, and which gives an appeal 
to the ordinary, treats the ordinary and the 
Prerogative Court as one and the same — a 
single Judicial entity. 

[3] The giving of an appeal to the ordi- 
nary in the inheritance transfer tax act Is a 
valid legislative enactment 

It may be that certiorari in the Supreme 
Court is a method for the review of an ap- 
praisement or tax made or levied under the 
inheritance transfer tax act, but considering 
that an appeal has been provided to the or- 



dinary, the Supreme Court would probably 
deny the allocatur on such a writ tiefore, or 
even after, the time for appeal to the ordi- 
nary had expired, as the allowance of an al- 
locatur is discretionary. Florenzie v. East 
Orange, 88 N. X Law, 438, 97 Aa 260. 

In Re Prudential Ins. Co. of America, 82 
N. J. Bq. 335, 88 Atl. 970, the Court of Er- 
rors and Appeals held that the statutory 
scheme providing for tbe condemnation of 
the capital stock of a stock lUe insurance 
company for certain purposes mentioned was 
cast by the Legislature upon the chancellor, 
or the Court of Chancery, a distinction which, 
if it exists, was of no practical moment to 
the motion then l>efore the Court of Errors 
and Appeals, and at page 339 that the statu- 
tory proceeding before that court was review- 
able by certiorari only, regardless of the fact 
that one of the agencies that took part in It 
was the "Court of Chancery." 

I hold that the proceeding before me is one 
In the Prerogative Court, and one which the 
ordinary could lawfully refer by virtue of 
the act of 1913 (P. L. p. 81) empowering him 
to refer to any vice ordinary any cause or 
other matter which at any time might be 
pending in the Prerogative Court 

Now, the act of 1909 (P. L. pw 325) pro- 
vides for taxing the transfer of property of 
decedents by devise, descent, etc, and section 
18, as seen, allows any one dissatisfied with 
an a^essment of such taxes to appeal to tbe 
ordinary. The only question raised by such 
an appeal is as to whether or not the assess- 
ment is excessive, and the review of such a 
question may be devolved upon a court of ap- 
peal. Florenzie v. East Orange, 88 N. J. 
Law, 438, 97 Atl. 260. There an appeal from 
an assessment for l>eneflts for a municipal 
improvement was confided to the circuit 
court, and tbe jurisdiction tlms given was 
upheld. Here an appeal from the assess- 
ment of a property transfer tax is confided 
to the ordinary of the Prerogative Court 
The principle is tbe same. The grant of ap- 
pellate jurisdictloa to this court in tax trans- 
fer matters Is as valid as that to the circuit 
courts in assessments for municipal improve- 
ments. 

[4] The reason that legislation establish- 
ing special statutory tribunals for tbe hear- 
ing and determining of appeals theretofore 
cognizable only In the Supreme Court on cer- 
tiorari is valid is because a review of the 
decision of the special tribunal is removable 
into the Supreme Court by certiorari, and 
that court's jurisdiction on certiorari Is there- 
fore not Impaired. Certiorari in such cases 
Is in tbe nature of an appeal, and an appeal 
is a Judicial proceeding cognizable in a court 

[i] It would appear that tbe decree of the 
Prerogative Court on these appeals Is re- 
viewable by certiorari in the 'Supreme Court, 
instead of by appeal to the Court of ESrrors 
and Appeals. In re Prudential Ins. Oo. of 
America, 82 N. J. Eq. 335, 339, 88 AtL 970; 
Florenzie v. East Orange, 88 N. J. Law, 4^ 



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N.J.) 



MATEREA v. ERIE R. CO. 



69 



440, 97 Atl. 200. Thla qnestlon Is suggested 
In the briefs, but Is not l>efore me for deci- 
sion. 

The jurisdictional qnestkm having been de- 
termined, I will, npon application of counsel, 
designate a day tor hearing the facts. 



(to N. J. Law, tfT) 

MATEREA t. ERIE R. CO. 

(Supreme Court of New Jersey. June 0, 
1917.) 

(Sj/lldbiu iv the Court.) 

1. Trux «=»139(1)— Jdbt— Wkioht of Testi- 

VONT. 

It is for the jury to say what weight shall 
be g:iven to the testimony of a witness having 
an opportunity to hear, standing at or near the 
crossing where the accident occurred, and who 
testifies that he did not hear the blowing of a 
whistle or the ringing of a Uell, in a grade cross- 
ing accident case. 

[Ed. Note.— For other cases, see Trial, Cent 
Dig. §1 332, S33, 83S-341.] 

2. Railroads «=»350(1) — Oradk Cbossiwq 
Accident— Neqliobnc* and CoNTmBUTORT 
Neolioencb— Question for Jury. 

It was not error in this case to refuse to 
direct a verdict in favor of the defendant on 
die ground there was no proof of negligence 
on the part of the defendant or because the de- 
cedent was guilty of contributory negligence. 
They were both jury questions. Holmes v. 
Pennsylvania R. R. Co., 74 N. J. Law, 469, 66 
Atl. 412, 12 Ann. Cas. 1031, Weiss v. Central 
R. R. Co., 76 N. J. Law, 348, 69 Atl. 1087, 
and Howe v. Northern R. R. Co., 78 N. J. Law, 
683, 76 Atl. 979, distinguished. 

[Ed. Note.— For other cases, see Railroads, 
Cent Dig. { 1152.] 

Ajipeal from Circuit Court, Hudson County. 

Action by Mary Materka, administratrix, 
etc., against the Brie Railroad Company. 
Judgment for plaintiff, and defendant ap- 
peals. Affirmed. 

Argued November term, 1916, before 
TRHNCHARD and BLACK, JJ. 

Collins & Corbin and George S. Hobart, all 
of Jersey City, for appellant. Alexander 
Simpson, of Jersey City, for respondent 

BLACK, J. This action was brought by 
the plaintiff, as administratrix of Ferdinand 
Materka, to recover damages for the benefit 
of his widow and next of kin, by reason of 
his death, on September 6, 1912, by being 
struck by an east-bound express train, at 
the Park Avenue grade crossing, in the bor- 
ough of East Rutberford and Rutherford, 
Bergen county, while he was crossing the 
tracks on foot At that crossing there were 
four tracks, safety gates, and a watchman. 
A rule to show cause was allowed, reserving 
objections and exceptions noted at the trial. 
The verdict was reduced to the sum of $4,- 
000. The trial court refused to set aside the 
verdict on the ground that it was against the 
weight of evidence. The points argued by 
the appellant for a reversal of the judgment 
are: First, there was no proof of negligence 
on the part of the defendant; second, a ver- 



dict should have been directed for the defend- 
ant because of contributory negligence of the 
decedent, Ferdinand Materka ; third, error in 
the charge of the trial judge, and in the refus- 
al to charge as requested, but this latter point 
involves the same points as are in the first 
two, except as hereinafter noted. This is the 
second trial of the case. The judgment re- 
covered In the first trial was reversed by the 
Supreme Oourt for trial errors. The judg- 
ment of the Supreme Court was affirmed by 
the Court of Errors and Appeals. In the re- 
port of the case the facts are quite fully and 
satisfactorily stated. Materka v. Erie R. R. 
Co., 88 N. J. Law, 372, 95 AU. 612. 

[1,2] The crux of the case is whether 
there was evidence from which the jury 
might find that the decedent attempted to 
make the crossing wtiile the safety gates 
were up and without receiving any warning 
from the flagman; that the train which 
struck the decedent ai^roached the cross- 
ing without giving the statutory signals of 
ringing a bell or sounding a steam whistla 
The record shows the following testimmiy: 
David Harris, a vidtness, testified: 

"Q. Were the gates up when you crossed over? 
A. Ye. * * * I crossed into East Ruth- 
erford, and I saw this gentleman get off this trol- 
ley car and cross the railroad tracks. Q. Were 
the gates up when he crossed? A. The gates 
were up on one — yes. Q. On your side? A. 
The side I crossed the gate was up on, yes. Q. 
That is the side he entered the tracks from? 
A. That is the side he entered the tracks on. 
Q. When he came from the trolley car and went 
on the tracks the gates were up, I understand? 
A. That is right sir. Q. After he got on the 
tracks what occurred? A. Why, that gate on 
the Rutherford side went down. Q. Yes? A 
And the ^ate on the East Rutberford side was 
up. Q. Yes? A. And I passed a remark. Q. 
You cannot tell what yon said, just what you 
saw. You saw this? A. I saw this man cross 
the tracks, and there was a train coming down 
the track, and I said to myself, 'I don't think 
he will get across,' and with that I saw the 
man hit. • * ♦ Q. Did you hear any whistle 
or bell up to the time you saw him hit? A. I 
did not, sir." 

On cross-examination: 

"Q. You did not know It was coming? A. No, 
sir. Q. You were not listening for it? A. No, 
sir. Q. Not paying any attention to it at all? 
A. No, sir. Q. I understand you to say, how- 
ever, that you did see it coming ; is that right, 
you did see the train coming before it strudc 
Mr. Materka? A. Yes. (Witness marks on a 
photograph, ExhiUt P-6, where he was stand- 
ing at that time.)" 

Redirect: 

"Q. Now Mr. Hobart asked you if j^ou were 
listening foi^ the express train. You did not 
know it was coming until you saw it did you? 
A. No, sir. Q. And from the time you started 
across the crossing up to and until the time you 
saw the express train had you heard any whistle 
or bell of any kind? A. No, sir." 

Genevieve Ruth Saxly a witness standing 
at the crossing at the time of the accident, 
did not hear any whistle before the decedent 
was struck. She said she was not listening 
for whistles. 

Under the rule laid down In the cases, In 



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101 ATIiANTIO RBPORTBB 



(Pa. 



the Ck>iirt of Errors and Appeals of this state, 
such as Danskin v. Pennsylvania R. R. Ck>., 
83 N. J. Law, 522, 626, 83 Atl. 1006, Horandt 
V. Central R. R. Co., 81 N. J. Law, 490, 83 
AtL 511, Walbel v. West Jersey, etc., R. B. 
Co., 87 N. J. Law, 573, 94 Atl. 951, and Mc- 
Lean T. Erie R. R. Co., 69 N. J. Law, 57, 60, 
54 Atl. 238, affirmed 70 N. J. Law, 337, 67 
Atl. 1132, this evidenne was for the jury. It 
made a Jury question. The point cannot be 
removed from the domain of the Jury. 

The cases of Holmes t. Pennsylvania B. 
R., 74 N. J. Law, 469, 66 Atl. 412, 12 Ann. 
Gas. 1031, Weiss v. Central R. R. Co., 76 
N. J. Law, 348, 69 AtL 1087, and Howe v. 
Northern R. R. Co., 78 N. J. Law, 683, 76 AU. 
979, distinguished. So contributory negli- 
gence of the decedent was also a Jury ques- 
tion under such cases as Brown v. EMe R. R. 
Co., 87 N. J. Law, 487, 91 AtL 1023, and 
Femetti v. West Jersey, eta, B. B. Co., 87 N. 
J. Law, 268, 93 AtL 676. 

This disposes of the case, except it Is fur^ 
ther urged that there was error in the re- 
fusal of the trial court to diarge each of 
two specific requests in reference to the stat- 
utory signals and the operation of the cross- 
ing gates; each request covers separate 
charges of negligence. The judgment must 
be reversed, so it is argued, because the trial 
judge permitted the jury to base a verdict 
upon either ground, notwithstanding the spe- 
cific requests submitted by the defendant 
with respect to each allegation of negligence. 
The court in the charge to the jury bad 
covered each ground fully, accurately, and 
clearly. The requests refused were, in eftect, 
to take the case from the jury; hence this 
was not error, in view of the cases above 
cited. 

Tlie judgment of the Hudson circuit court 
is affirmed, with costs. 



(2S6 Pb. 60S) 



WEIL T. MARQUIS. 



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

1. exectjtobs and administrators €=>426— 
.''ettino Abide Acts of Decedent— Bene- 
fit OF Creditors. 

An executor or administrator may bring an 
action to set aside the fraudulent transactions of 
the deceased for the benefit of creditors, whose 
trustee he is. 

[Ed. Note. — For other cases, see Executors and 
AdminiBtrators, Cent Dig. $$ 1663, 1665.] 

2. IiXECWTOB« AND Administrators ®=>426— 
Death op Transferoe — Administrator's 
Action for Benefit of Creditors. 

A transfer of property in fraud of creditors 
is a nullity, and, after the transferor's death, an 
action is mnintainable by his administrator as 
trustee to recover so much of the property trans- 
ferred as may be needed to pay just claims of 
creditors. 

[Ed. Note. — For other cases, see Executors and 
Administrators, Cent Dig. §§ 1663, 16C6.] 



3. Insubance «=3o8&—BENEnciABiKB— Vest- 
ed Interest. 

Where the insured took out life insurance 
policies payable to his wife and did not exercise 
his right to change his beneficiary during bis life- 
time, the widow's interest in the poUcies on bis 
death became a vested interest 

[EM. Note.— For other cases, see Insurance, 
Cent Dig. § 1470.] 

4. Insurance «=»590— BENEFictAET— Liabiu- 

TT OF FoiTD for DBBT& 

Act April 15, 1868 (P. L. 103), providing 
that insurance money payable to the wife and 
children of an assured shall be free from the 
claim of creditors, governed where an intestate 
who had taken out life insurance policies pay- 
able to his wife and died without having exer- 
cised the right to change the beneficiary, and 
where the widow collected the insurance money 
amounting to less than his debts, so that she 
was entitled to bold the proceeds as against tlie 
insured's administratrix soing for money had 
and received; Act May 1, 1876 (P. L. 53), Act 
Jnne 1, 1911 (P. L. 581), and Act May 5, 1916 
(P. L. 253), relating to other forms of insur- 
ance and to beneficiaries, not applying. 

[Ed. Note. — For other cases, see Insoranee, 
Cent Dig. U 1479, 1482, 1485.} 

Appeal from Court of Common Pleas, Phil- 
adelphia County. 

Assumpsit for money bad and received by 
Nlta M. Well, administratrix of the estate of 
Abraham Marquis, deceased, against Jeanette 
A. Marquis. From an order discharging a 
rule for judgment for want of a sufficient 
affidavit of defense, plaintiff appeals. Affirm- 
ed. 

The facts' appear in the following opinion 
by Audenrled, P. J., in the court below: 

Abraham Marquis died August 14, 1914, intes- 
tate and insolvent He bad taken out sundry 
policies of insurance upon bis life, each of which 
was made payable to the defendant, his wife, 
subject, however, to the provision that he might 
change the beneficiary thereunder. He died with- 
out having exercised that right, and his widow 
collected the money payable on these policies, 
wtiich amounted to much less than his debts. 
Letters of administration upon the estate of 
Marquis have been granted to the plaintiff, who 
has brought this action against his widow to re- 
cover what tlic latter received from the insure 
ance companies. 

Upon these facts, which are not denied by the 
defendant, the plaintiff asks judgment for cither 
the amount of the proceeds collected on the poli- 
cies or the amount of their surrender value im- 
mediately before the death of the insured ; both 
amounts being ascertainable from the affidavit of 
defense. 

[1,2] As to the first question discussed by 
counsel, we have no doubt. While an executor 
or administrator, as the mere personal repre- 
sentative of a decedent, can take no step to set 
aside for the benefit of heirs, next of kin, lega- 
tees, or devisees, the fraudulent transactions of 
the deceased, his right to do so for the benefit 
of the creditors, whose trustee he is, has long 
been recognized in this state. Chester County 
Trust Co. V. Pugh, 241 Pa. 124, 88 Atl. 319. 50 
U R. A. (N. S.) 320, Ann. Cas. 1915B, 211. 
A transfer of property in fraud of creditors is 
a nullity as against the interests attempted to 
be defrauded ; and, after the death of the trans- 
feror, an action is maintainable by his admin- 
istrator, as their trustee for the recovery of as 
much of the property so transferred as may be 
needed for tlie payment of their just claims. 
Bupbler v. Gloninger, 2 Watts, 226; Stewart v. 



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WEIIi ▼. MARQUIS 



71 



Kearney, 6 Watts, 453, 81 Am. Dec. 482. Whili 
the statement of claim does not allege actual 
fraud in the dealings of the defendant with her 
husband in respect to the policies of insurance 
procured by the latter upon his life, it is argued 
that the facts above mentioned make out a case 
of constructive fraud. We think that, if this 
contention can be sustained, the right of the 
plaintiff to a recovery against the defendant ia 
clear. 

Several acts of assembly have been referred to 
by counsel as bearing on the matter before the 
court, and our next inquirjr, therefore, is wheth- 
er these have any application to the case. 

The most recent legislation on the subject of 
life insurance policies such as those referred to 
in the plaintiff's statement is the Act of May 
6, 1915, P. L. 253. By its terms, this statute 
relates to policies of life insurance "which have 
heretofore or which shall be hereafter taken out 
for the benefit of, or assigned to, the wife or 
children, or any other relative dependent upon" 
the person whose life is insured. Grammatical- 
ly, the use of the perfect tense of the verb in the 
clause "which have heretofore (been) taken out" 
seems to imply that the policies therein referred 
to were existing policies that had not, when the 
act became effective, matured and been paid. 
If this clause were construed to embrace all poli- 
cies that had been issued prior to the passaj^e of 
the act, thus including those with respect to 
whose proceeds rights had already vested, the 
act, to that extent, would violate both section 
17 of article 1 of the Constitution of Pennsyl- 
vania and clause 1 of section 10, art. 1, of the 
Constitution of the United States, since it would 
impair the obligation of contract by depriving 
creditors of their remedy, an impediment, in the 
shape of an exemption which did not exist when 
their debts were contracted, being placed in the 
way of collecting them. Penrose v. Erie Canal 
Co., 58 Pa. 46; Edwards v. Kearzey, 96 U. S. 
505, 24 I<. Ed. 793; Kener v. Le Grange Mills, 
231 U, S. 215, 34 Sup. Ct. 83, 58 U Ed. 189. 
We are of opinion, therefore, that this act doe* 
not affect the case before us. 

Nor does section 25 of the Act of May 1, 1876 
(P. L. 60) apply. The provisions of that sec- 
tion are expressly confined to policies issued by 
companies Incorporated under the act of which 
it forms a part. It does not appear, and the 
court cannot assume, that the insurance compa- 
nies that issued the policies referred to in this 
case were so incorporated. 

Section 27 of the Act of June 1, 1911, P. L. 
581, provides as follows: "A policy of insurance 
issued by any company, heretofore or hereafter 
incorporated, on the life of any person, expressed 
to be for the benefit of any married woman, 
whether procured by herself, her husband, or 
any other person, shall inure to her separate use 
and benefit and that of her children, independ- 
ently of her hasband or his creditors, or the per- 
son effecting the same or his creditors. If the 
premium is paid by any person with intent to de- 
fraud his creditors, an amount equal to the pre- 
mium go paid, with interest thereon, shall inure 
to their benefit" Unless this enactment is held 
to be retrospective in its operation, it does not 
apply to the policies involved in this case. The 
last of these to be issued was taken out more 
than nine months before it became a law. But 
the act is not, in tiiis respect, retroactive. The 
use of the present tense of the verb in the con- 
ditional part of the second sentence of the sec- 
tion quoted plainly indicates that no reference to 
policies previously issued is intended; and, if 
its language were otherwise, no effect could be 
given to it, so far as concerns such policies, for 
the same constitutional reasons that are referred 
to above in discussing the Act of May 5, 1915. 
Moreover, even if it was intended to change the 
law as to the rights of creditors in respect to 
policies of life insurance theretofore issued, no- 
tice of such an intention is wholly lacking in the 
title of the act; and the attempt to make aucb 



a change was therefore futile. Section 3, art. 3, 
Constitution of Pennsylvania. When the subject 
expressed in the title of an act is not broad 
enough to cover all its provisions, such parts of 
the act as are not within the purview of the ti- 
tle are void. Hatfield v. Com., 120 Pa. 395, 14 
Atl. 151 ; Potter County Water Ca v. Austin 
Borough, 206 Pa. 297, 55 AtL 991. 

So far as our examination of the acts of as- 
sembly goes, the only legislation that bears upon 
the question involved in these rules is section 1 
of the Act of April 15, 1868 (P. L. 103). This 
reads as follows: "All policies of life insurance 
or annuities upon the life of any person which 
may hereafter mature, and which have been or 
shall be taken out for the benefit of, or t>ona 
fide assigned to the wife or children or any 
relative dependent upon such person, shall be 
vested in such wife or children or other relative, 
full and clear of all claims of the creditors of 
such person." 

It is conceded by the plaintiff that, if the pol- 
icies in question were within the scope of thia 
act, judgment must be^ntered in favor of the 
defendant. It is contended, however, that they 
do not fall within either of the two classes of 
policies which the statute was intended to pro- 
tect from the creditors of the person who has 
taken them out and paid their premiums. 

From the aUidavit of defense it ie impossible 
to determine how the policies whose proceeds 
are in dispute were originally issued. All that 
appears is that the defendant was, prior to the 
death of her husband, the beneficiary thereun- 
der, and that be had the right to appoint anoth- 
er as beneficiary in her place. 

It is argued on behalf of the plaintiff that, if 
the policies when originally issued were made 
payable to the defendant subject to the condi- 
tion that her husband should not designate some 
other person as payee of their proceeds, they 
were taken out by him for his own benefit and 
not for hers; and that consequently the case 
does not fall within the first of the two cate- 
gories embraced by the act. It is further ar- 
gued that, if the policies were issued in the 
name of tlie insured, they are not within the sec- 
ond class to which the act refers, because the 
• wife took no interest in them under the subse- 
quent assignment thereof to her ; the reserva- 
tion to the insured of the right to change the 
beneficiary securing full control of the policies 
to him and leaving him, therefore, tfieir real 
owner. 

Although the policy of the law, even where 
the rights of creditors may be adversely affected, 
favors the wife to whom her husband has at- 
tempted to secure the benefit of insurance upon 
his life (Kulp v. March. 181 Pa. 627, 37 Atl. 
913, 59 Am. St. Rep. C87), the argument of the 
plaintiff thus summarized is of great weight, 
and, if the creditors had attempted to reach 
the policies during the lifetime of the insured, 
we can see no reason wliy they should not have 
been successful (In re Herr [No. 2 D. C] 182 
Fed. 710; In re Jamison Bros. & Co. [D. C] 
222 Fed. 92; In re Shoemaker [D. C] 225 Fed. 
329). 

[3, 41 Nevertheless, the facts presented by this 
case differ in a very important point from those 
involved in the bankruptcy cases to which refer- 
ence has been made. Here the insured is no 
longer living. He had, it is true, reserved to 
himself under his insurance contracts the option 
of lettinpr them inure to the benefit of his wife 
or appointing some other beneficiary in her 
stead. This he might have exercised whenever 
he saw fit during bis life, but it ended at the 
very instant of his death. It did not survive 
him. See McDonald, EJx'x, v. Columbian Na- 
tional Life Insurance Co., 253 Pa, 239, 97 Atl. 
1086, U R. A. 1916F, 1244. The moment be 
breathed his last, the happening of the condition 
subsequent which might have divested the de- 
fendant's rights in the policies became impos- 
siblfi. U up to that time her interest in the 



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101 ATLANTIC REPOBTBa 



(Pa. 



policies amounted to notbinc more tlian a bare 
expectancy, that expectancy then ripened, and 
her interest in the policies and their proceeds 
immediately became a vested one. 

Thus the air was cleared; and the position 
of the creditors became forthwith what it would 
have been if, when the policies were originally 
issued or subaequentiy assigned to her, no right 
to change their beneSciary had been reserved 
by the insured. Setting aside the question of 
fraud, any right that the creditors of Marquis 
or their representative had to object to the stat- 
ute as a bar to the appropriation of the policies 
of insurance on his life payable to his wife to 
the discharge of their claims against him rested 
solely on the ground that he still held a control 
over them equivalent to ownership. That foun- 
dation has slipped away. As the case now 
stands, the disposition of the proceeds of the pol- 
icies is governed by the Act of April 15, 1868. 

If the defendant's rights as beneficiary re- 
sulted from the assignment of the policies to her 
by her husband, it would, of course, be possible 
to attack them, under the Act of 13 Bliz. C. S., 
<wi the ground of fraud. The Act of 1868 pro- 
tects such assignments only when bona fide. 
Although the assignment in this case, if there 
was an assignment, was made by an Insolvent 
to his wife, with a reservation of power to con- 
trol the disposition of the policies as be pleased, 
the court cannot declare the transaction, how- 
ever suspicious it may be, fraudulent per se. 
The statement of claim raises no question of 
fraud in fact ; but, if fraud were alleged, the 
question of the good faith of the defendant and 
her husband would necessarily take the case to 
the jury, to whose province such questions pecu- 
liarly appertain. Sebring v. Brickley, 7 Pa. 
Super. Ct 108. 

Argued before BROWN, 0. J., and STEW- 
ART, MOSCHZISKER, PRAZER, and WAL- 
LING, JJ. 

Morris Wolf and Horace Stem, both of 
Philadelphia, for appellant. Hampton L. Car- 
son and Joseph Carson, both of Philadelphia, 
for appellee. 

PER CURIAM. This appeal is dismlsaed 
on the opinion of the learned president judge 
of the court below discharging the rules for 
Judgment for want of a sufflcient affidavit 
of defense. 



(266 Pa. 620) 

COMMONWEALTH y. STAUSH. 

(Supreme Court of Pennsylvania. Feb. 20, 
1917.) 

1. Cbiminai, Law «=3980{2) — Plea, of 

Guilty— Sentence — Statute. 
Act March 31, 1860 (P. L. 402) S 74, pro- 
viding that, where a defendant pleads guilty 
to an indictment for murder, the court shall 
proceed by examination of witnesses to determine 
the degree of the crime, must be strictly con- 
strued, and thereunder the examination of wit- 
nesses by the court means the seein;^ and hear- 
ing of the witnesses, and a mere reading of their 
testimony by a judge or judges who did not see 
or hear them is not a compliance with the act 

[Ed. Note. — For other cases, see Criminal 
Law, Cent. Dig. §| 2494, 2495.] 

2. Cbikinai. TjAW €=9 980(2) —Plea or 
GutLTT— Sentence— Statute. 

Under such provision, every member of a 
oonrt passing upon the degree of guilt must 
see and hear the witnesses upon whose testimony 
the degree of homicide is to to he determined, 
and where three of the five judges heard the 



testimony and thereafter the president Jndge 
who was not present during the examination of 
witnesses read the evidence, and joined in the 
deliberations, and wrote the court's opinioa 
fixing the crime as murder in the first degree^ 
the judgment would be reversed, and a proceden- 
do awarded with leave to defendant to renew in 
the court below a motion to withdraw his plea 
of guilty. 

[Ed. Note.— For other cases, sea Criminal 
Lew, Cent. EMg. H 2494, 2495.] 

Appeal from Court of Oyer and Terminer, 
Luzerne County. 

John Staush was convicted of murder lu 
the first degree, and be appeals. Beveraed. 
and procedendo awarded with leave to de- 
fendant to renew In court below his motion 
for leave to withdraw his plea of g^illty. 

Argued before BHOWn, C. J., and MES- 
TREZAT, STEWART, MOSCHZISKER, and 
WALLING. JJ. 

M. J. Torlinskl and George Howortb, both 
of Wllkes-Bnrre, for appellant Frank P. 
Slattery, DUt Atty. of Luzerne C^ounty, and 
Eidwin Shortz, Jr., Asst. Dist Atty., botb of 
Wllkea-Barte, for the Commonwealtb. 

BROWN, O. J. [1] John Staush, the ap- 
pellant, entered a plea of guilty to an in- 
dictment charging him vrith murder, and It 
thereupon became the duty of the court be- 
low, under section 74 of the act of March 
31, 1860 (P. I* 402), to "proceed, by examina- 
tion of witnesses, to determine the degree 
of the crime, and to give sentence accord- 
ingly." Three of the five Judges of that 
court met to perform the duty Imposed up- 
on It, and witnesses were examined before 
them. At the examination the coumou- 
wealth was represented by the district attor- 
ney, and the prisoner, with his counsel, was 
present. The testimony was taken down by 
the court stenographer, whose transcript of 
the same was duly approved by one of the 
Judges and ordered to be filed. After the 
hearing, and before the three judges had 
reached any conclusion as to the degree of 
the prisoner's guilt, they asked the president 
Judge of the court — who had not been pres- 
ent at the examination of the witnesses — 
to Join than In their consideration of the 
testimony taken, for the purpose of fixing 
the degree of the crime. After reading the 
evidence, he took part in their deliberation, 
and found that the prisoner was guilty of 
murder of the first degree. Subsequently 
he wrote the opinion of the court, fixing the 
degree of guilt, and pronounced the judg- 
ment of death. The real error of which the 
appellant complains— and the only one up- 
on which we need iwss — ^is the action of the 
court below In having Its president Judge 
consult with his three colleagues over a 
most solemn question. Involving life, without 
bis having seen or heard the witnesses up- 
on whose testimony it was to be determined. 

A tribunal, specially designated by the 
Legislature, fixes the degree of guilt, upon 



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WOOD T. WILUAM KAMX MFO. CO. 



73 



conviction by coofeBslon, on an indictment 
charging murder. Such a case la no longer 
for a Jury, whose province It Is to fix the de- 
gree of homicide in every case where the 
accosed goes to trial on his plea of not guil- 
ty. The Legislature might have provided 
that, on a plea of guilty, a Jury should hear 
the testimony relating to the crime for the 
sole purpose of fixing the degree of guilt; 
but it has not done so. It has committed 
that duty to the court having jurisdiction 
of the dndictment, and perhaps wisely so, in 
view of human sympathy to which jurors 
not Infrequently yield when called to pass 
upon the life or death of a fellow man. To 
enable it to discharge this duty the court 
must examine witnesses and hear what they 
know and are able to truthfully tell of the 
circumstances attending the admitted feloni- 
ous Wiling. As this statutory provision, re- 
lating to a criminal procedure, must be strict- 
ly construed, the examination of witnesses 
by the conrt means its seeing and hearing 
them, not a mere reading of th^ testimony 
by a Judge or Judges who neither saw nor 
heard them, and it means that every man- 
ber of a conrt passing uiwn the degree of 
guilt in a homicide case must see and hear 
the witnesses upon whose testimony the 
question is to be determined. If it had been 
for a Jury to determine the degree of the 
appellant's guilt, and but eight of the Jurors 
had seem and heard the witnesses, a verdict 
of the twelve condemning him to death 
would be promptly set aside, if the other 
four Jurors had simply read the testimony 
of the witnesses from the stenographer's 
notes; and yet this. In effect, is the situa- 
tion here presented. 

[2] The court below, composed of four of 
its five members, found the prisoner guilty 
of mnrder of the first degree. They were 
his triers; they deliberated together over 
what their verdict should be, and, after so 
deliberating, fixed his crime as the highest 
known to the law; but one of them had 
neither seen nor heard a single witness 
called to sustain the commonwealth In ask- 
ing for a first degree finding, or the plea of 
the prisoner that intoxication had reduced 
the degree of his offense. One of the three 
Judges who heard the witnesses long hes- 
itated in reaching his conclusion, and If 
the fourth, who heard none of them, bad 
heard them all, he might also not only have 
long hesitated, but actually refused to con- 
cur in the finding of first degree murder. 
In findings of fact by a Judge, sitting as a 
chancellor, the credibility of witnesses and 
the weight to be given to their testimony 
are for him, and their credibility is often 
sustained or impaired by their appearance 
on the witness stand and by their manner of 
testifying. If this is true in dvll cases, it 
Is surely true In a proceeding in a criminal 
court in which a human life is at stake. 



We are not to be understood as saying, or 
even intimating, that on the testimony of 
the witnesses seen and heard by the three 
learned Judges of the court below they would 
have erred in adjudging the prisoner guilty 
of murder of the first degree; for that is 
not the question before us. All that we now 
decide is that error was committed In hav- 
ing the president Judge take part, under t*he 
circumstances stated. In a consultation and 
deliberation which resulted in a finding nec- 
essarily followed by the Judgment from 
which we have this appeaL 

Judgment reversed, and procedendo award- 
ed, with leave to the prisoner to renew in 
the court below his motion for leave to with- 
draw his plea of guilty. 

WOOD V. WILLIAM KANE MFG. CO., Inc. 

(Supremo Court of Pennsylvania. March 6, 
1917.) 

1. Mastbb and Sxbvaht 9=»90 — Mastkb's 
Duty — Extjsmt. 

The mere relation of master and servant 
does not imply an obligation on the master to 
take more care of the servant than he may rea- 
sonably be expected to take of himself. 

[Ed. Note.— For other cases, see Master and 
Servant, Cent. Dig. { 130.] 

2. Masisb and Sebtant «=>2e5(12)— Nbou- 

OBNCB— ElCPLOTUENT OF SSBVANTB. 

The presumption is that an employer has 
exercised proper care in the selection of its em- 
ployes, and one charging negligence in the em- 
ployment of men must show it by proi>er evi- 
dence. 

[Ed. Note.— For other cases, see Master and 
Servant, Cent Dig. %% 891, 908.] 

3. Masteb and Sebvant «=>150<6) — AonoN 

FOB lN.n7BT— NeQUOKNCB— EVIOBROB. 

Where plaintiff in charge of riveting boilers 
was suppUed by his employer with helpers, and 
where one of the helpers, not shown to be in- 
competent, and who was not instructed by plain- 
tiff as to his duties, accidentally let go of the 
base of a boiler so that it fell upon plaintiff, 
there was no negligence on the part of defend- 
ant, and the court should have directed a verdict 
for it 

[BA. Note.— For other cases, see Master and 
Servant Cent Dig. {f 302, 307.] 

Appeal from Court of Common Pleas, Phil- 
adelphia County. 

Trespass for damages for personal injury 
by Thomas Wood against the William Kane 
Manufacturing Company, Incorporated. Ver- 
dict for plaintiff for $2,000 and Judgment 
thereon, and defendant appeals. Reversed, 
and Judgment entered for defendant 

Argued before M£}STIREZAT, POTTER, 
STEWART, MOSCHZISKER, and FRA- 
ZER, JJ. 

Frank P. Prichard, of Philadelphia, for ap- 
pellant John J. McDevltt Jr., and Samuel 
O. Stem, both of Philadelphia, for appellee. 

FOTTER, J. This wad an action of tres- 
■pOBB to recover damages for personal Inju- 



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101 ATIaANTIC REFORTEB 



(Pa. 



rles. Plaintiff, who had the management of 
the boiler making shop of the defendant com- 
pany, charged his employer with negligence 
in falling to provide an experienced helper, 
which, as he alleged, resulted in his Injuries. 
He was supplied with helpers, varying In 
number from three to six, who received In- 
structions from him. On the day of the acci- 
dent, plaintiff was engaged in riveting the 
base of an upright boiler. The base was not 
a perfect cylinder, but was smaller at the 
top than at the bottom. It was about 14 
Inches high, and weighed about 250 pounds. 
PlalntlfT suspended It by two hooks from a 
crane, and asked two of the helpers to steady 
It while he applied a pneumatic riveter. In 
order to secure proper contact It was appar- 
ently necessary to tilt the base slightly. The 
pneumatic riveter was applied under some 
pressure to the side of the base, and when It 
was withdrawn, one of the helpers let go of 
the base, and it slipped from the hooks and 
fell, injuring plalntifF's hand. It appears 
from the evidence that Gordon, the helper 
in question, had been employed In the estab- 
lishment about a year, but had never been 
called upon to assist In steadying a base of 
that particular description. It was, as plain- 
tiff said, "something out of the ordinary" 
as to shape, and he bad made but five of them 
during a period of three years. Plaintiff 
gave no instruction to the helper, Gordon, as 
to steadying the base while the riveting was 
being done. The service required was not 
complicated, or difficult to perform. There 
is nothing in the evidence to show that the 
young man was Incapable. He seems to have 
been taken by surprise at the effect upon the 
base of the removal of the pressure, and 
failed to hold on steadily. A word of caution 
in advance from the plaintiff, who was stand- 
ing dose by, would, no doubt, have prevented 
the accident It cannot justly be charged to 
any lack of experience, upon the i>art of the 
helper. In assisting to steady a piece of metal 
of that particular size and shape. It may 
very well be that, for the performance of 
complicated or difficult work Involving dan- 
ger, an employer would be bound to furnish 
not only competent, but experienced, men, 
especially for leadership and supervision. 
But in the present case the plaintiff himself 
was supervising the work, and the part which 
the helper was called upon to perform was of 
the simplest possible character. He was 
asked to hold but little weight, and was mere- 
ly to lay bis hand upon the base to help 
steady it, while supported by the; hooks. 

[1] If any instruction or warning was need- 
ed to aid him In the discharge of this very 
simple duty, the necessity for it arose upon 
the instant, and the Word of cantlon should 
have come from the plaintiff, who was in 
immediate charge of the operation. The 
mere relation of master and servant can nev- 
er imply an obligation upon the part of the 
master to take more care of the servant than 



he may reasonably be expected to take of 
himself. 

(2, 3] The presnmption is that the employer 
has exercised proper care In the selection of 
employ^, and it is Incumbent upon one 
charging negligence, in the employment of 
men, to show it by proper evidence. The 
plaintiff here was acquainted with the help- 
er, and knew he had been working in the 
shop for at least a year. The evidence shows 
no suggestion that any complaint as to incom- 
petence upon the part of the helper was ever 
made by the plaintiff, or any one else. The 
fact that he was employed merely as a helper 
is in itself an Indication that, having prop- 
er capacity, he was expected to gain skiU In 
the work and knowledge of its details, under 
the guidance and Instruction of more ex- 
perienced men, such as plaintiff, with whom 
he was associated. 

We find nothing in this record to Justifj- 
placing the legal responsibility for the re- 
sults of the accident upon the defendant 

The first assignment of error is sustained, 
the judgment is reversed, and is here altered 
for def^idant. 

<KI Pa. 22> 

MTJLHERN et al. v. PHILADEIJPHIA 

HOME-MADE BREAD CO. 

(Supreme Court of Pennsylvania. March 6, 

1017.) 

1. MtmiciPAL OoKPORATioNs «s»705(8>— Use 
OF Stbsbt— Oabe as to Childbkn. 

Special caution on the part of drivers of 
vehicles is required for the ijrotection of chil- 
dren congregating in the vicinity of a sehool- 
hoase. 

(Ed. Note.— For other cases, see Manicipal 
Corporations, Cent. Dig. § 1515.] 

2. MunioiPAi. CoBPOBAnoNS «=»70G(6)— Use 

OF STKEETa— NEOLIOENCE OF DBIVEB OF VB- 

HicLB — Question fob Jubt. 

In an action for damages for personal in- 
jury to a school child from being run over by a 
wagon, held, on the evidence, that whether the 
driver's failure to stop it or turn aside to 
avoid the injury was negligence waa a ques- 
tion for the jury, 

[Ed. Note.— For other cases, sea Municipal 
Corporations, Cent Dig. { 1518.] 

Appeal from Court of Common Pleas, Phil- 
adelphia County. 

Trespass for damages for personal iojaries 
by Anna Mnlhem, by her father and next 
friend, William J. Mulhem, and by WilUam 
J. Mulhem in his own right, against the 
Philadelphia Home-Made Bread Company. 
Verdict for plalntlfl Anna Mulbem for $2,- 
000. and for plaintiff William J. Mulhem for 
$200, aitd judgmrait thereon, and defendant 
appeals. ASLrmed. 

Argued before MESTREZAT, POTTER, 
STEWART, MOSCHZISKER. and FRAZ- 
BR, JJ. 

■William H. Peace, of Philadelphia, for ap- 
pellant. John Martin Doyle and Eugene 
Raymond, both of Philadelphia, for appel- 
lees. 



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HARDIB T. BARRETT 



75 



POTTER, J. Thes» appeals are grounded 
npon the refusal of tbe conrt b&ow to give 
binding Instractions la favor of tbe defend- 
ant, or to enter Judgment non obstante vere- 
dicto. It appears from tbe testimony that 
about noon on February 4, 1900, some school 
children Just released from school were 
walking and sliding upon tbe icy sidewalk 
on tbe south side of Tasker street near EHgtat- 
eentb. Anna Mulbem, a cblld some ten 
years of age, fell or was pushed over tbe 
curb Into tbe edge of tbe driveway of tbe 
street as a wagon driven by an employ^ of 
defendant was approaching, the right-hand 
wheels running near the curb. The horse 
was turned somewhat aside, but the front 
wheel of the wagon ran over tbe little girl's 
leg and broke It The question for determi- 
nation was whether the driver, by tbe exer- 
cise of proper care, should have seen tbe 
Child after it fell and was lying partly in 
tbe street ahead of him in time to stop bis 
wagon, or turn it aside to avoid the accident, 
and whether bis failure to do so was n^ll- 
gence. 

A bystander testified that be saw tbe <^lld 
lying partly in the gutter when the wagon 
was some 30 feet distant, and he said that 
tbe driver was not then looking ahead, but 
was at tbe moment looking backward into 
tbe body of bis wagon. The Jury may well 
have found that the proximity of a number 
of children upon the sidewalk at the side of 
the street upon which he was driving and 
the well-known tendency of children to make 
sudden and heedless dashes should have put 
the driver upon his guard at that particular 
place, at least to tbe extent of keeping bis 
horse well in band. 

[1] It is common knowledge that special 
caution Is required for the protection of chll- 
iiea who congregate in the vicinity of a 
schoolbouse. The plalntUF Anna Mulhern 
testified that after she bad fallen down and 
was lying partly in the gutter she saw tbe 
wagon coming along the street some 30 to 50 
feet away from her. If this was the fact, 
tbe driver could have stopped his wagon or 
turned it aside before reaching her, if be 
was moving at a proper rate of si)eed and 
had bis horse under proper controL 

{2] On the other hand, the evidence upon 
tbe part of defendant tended to show that 
the child came so suddenly and unexitectedly 
from the sidewalk into tbe line of travel in 
tbe street that the accident was unavoidable. 
If this was the case, defendant should not 
have been held responsible. 

Counsel for appellant has contended with 
great earnestness that the trial Judge should 
have held as matter of law that the evidence 
did not Justify an inference of negligence 
upon the part of the driver. But we are un- 
able to agree with his contention in this re- 
spect As we read tbe evidence, tbe question 
was purely one of fa** upon conflicting state- 



ments by the witnesses. It the Jury accept- 
ed as credible tbe evidence otCered by tbe 
plaintiff, they were Justified in inferring neg- 
ligence npon the part of tbe driver. Had 
they accepted as accurate the testimony on 
behalf of the defendant, they must have 
concluded that the driver was not at fault 
in any way, and tbe verdict would have been 
for the defendant We may feel that tbe 
Jury might very properly have reached an- 
other conclusion, but the question of fact In 
dispute was for them to decide. To the 
charge of tbe conrt in submitting the case 
no exception was taken. 
The Judgment is affirmed. 



(2CT Pa. «) 
HARDIE et nx. v. BARRETT, 

(Supreme Court of Pennsylvania. March K, 
1917.) 

1. Highways ®=»175(1)— Hired Autouobilb 

— INJUBT — CONTEIBUTOBY NeGUOENCE. 

When the dangers arising from the negligent 
operation of a hired automobile in which one 
is riding as an invited guest are manifest to 
a passenger having an adequate opportunity to 
control the situation, and he permits himsdf 
without protest to be driven to his injury, he 
is fixed with his own negligence which bars a 
recovery. 

[Ed. Note. — ^Por other cases, see Highways, 
Cent Dig. {{ 461-464.] 

2. Highways <s=»175(1) — Collision — Con - 
tbibctoby negligence. 

Where a husband and wife hired an anto- 
mobile driven by the owner's chauffeur and 
made no effort to have tbe chauffeur drive at 
a proper speed and on the right side of the 
street, they would be guilty of contributory negli- 
gence barring their recovery for injuries from 
a collision. 

[Ed. Note.— For other cases, see Highways, 
Cent Dig. §§ 461-464.] 

3. Highways €=»175(1)— Personal Injuby— 
Neglioenck— Pboximate Cause. 

In an action by a husband and wife for per- 
sonal injuries when the hired automobile in 
which they were riding in New Jersey collided 
with defendant's wagon during a time when the 
New Jersey law required that it display lights, 
the fact that there were no lights on defendant's 
wagon, if not the proximate cause of the acci- 
dent, even though negligence, would not justify 
a recovery. 

CEid. Note.— For other cases, see Highways, 
Cent Dig. Sf 461-164.] 

Appeal from Court of Common Pleas, Phil- 
adelphia County. 

Trespass for damages for personal Injuries 
by James 6. Hardle an'd Olive M. Hardie, 
his wife, and James G. Hardle against Wil- 
liam M. Barrett, as president of the Adams 
Express Company, a Joint-stock association 
under the laws of New York. Verdict for 
defendant and Judgment thereon, and plain- 
tlfCs appeal. Affirmed. 

Argued before BROWN, C. J., and POT- 
TER, MOSCHZISKER, PRAZER, and WAL- 
LING, JJ. 



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101 ATIiANTIO HEPORTEB 



(Pa. 



Sydney Toung, of Ftailadelpbla, for ai»pel- 
iante. John Lewis Evans and Thomas De- 
VTitt Cuyler, both of Phlladelpbla, for ai>- 
pellee. 

MOSCHZISKRK, 3. On the evening of 
August 22, 1913, James G. Hardle, and Olive 
M., his wife, hired an automobile with Its 
driver, one Louis S. Chester, Jr., to convey 
them, with two women guests, from Sea Isle 
City, N. J., to a nearby yacht club. On the 
way a collision occurred between the car In 
which they were riding and a one-horse ex- 
press wagon belonging to the defendant com- 
pany. Both Mr. Hardle and his wife were 
Injured ; they sued for damages, and by ex- 
press agreement of record their cases were 
tried together, the Issues involved were sub- 
mitted to the jury, and In each Instance the 
verdict favored the defendant, judgments 
were entered accordingly, and the plaintiffs 
have appealed. 

The testimony on all the important issnes 
was most conflicting; but, when vleweU in 
the light of the verdicts rendered, the fol- 
lowing facts can be found therefrom: The 
accident happened on a rainy evening, be- 
tween 8 :30 and 9 o'clock. Mr. Hardle occu- 
pied a front seat in the automobile, beside 
the chauffeur, while Mrs. Hardle, her moth- 
er and the other woman were In the tonneau. 
The car was equipped with five lights, "two 
large acetylene gas lamps on the head, two 
on the side, and <me re)d light In the rear." 
The headlights illuminated the road so that 
one In the car "could see 200 feet in front," 
and made the way "bright enough to see dis- 
tinctly the curb." The part of the road upon 
which the accident happened had a curb on 
the west side and a single track trolley line 
on the east, with a space of 22 feet between. 
The automobile was traveling southward, on 
the left-han'd, or wrong, side of the road, at 
an estimated speed of 40 miles an hour. 
The wagon was traveling northward on the 
right-hand, or proper, side of the road, the 
horse going at "a very slow trot." The driv- 
er of the latter vehicle, in an endeavor to 
avoid the collision, bad his horse "nearly 
half way over" the trolley track when the ac- 
cident occurred. The automobile struck the 
wagon on the near front wheel; both ve- 
hicles were badly damaged. 

On the foregoing facts, it may be seen 
that the chauffeur, and not the 'driver of the 
horse and wagon, was the one guilty of the 
negligence which caused the accident ; but 
the plaintiffs complain that the trial judge 
committed substantial error by the manner 
in which he submitted certain issues to the 
jury. In disposing of these complaints, we 
shall first consider together assignments 1 
and 2. 

In brief, the trial Judge Instructed that, if 
the automobile was being driven with "man- 
ifest improper speed," or 12 the chauffeur 



had his car "mantfestly on the wrong place 
in the road," and these faults, or either oC 
them, contributed to the happening of the ac- 
ddoit, if the plaintiffs made no effort to "get 
him to go at a proper rate of speed" or "over 
on the right side of the road," they would 
be guilty of contributory negligence, trat that 
they could not be found so guilty unless the 
before-mentioned alleged faults on the part 
of the chauffeur were "manifest" 

In reviewing these instructions. It must 
I>e kept in mind that the plaintiffs did not 
endeavor to excuse the fact that tlie chauf- 
feur was on the wrong side of the road by 
explaining he was temporarily and justifia- 
bly out of the regular track; on the contrary, 
they called him as their witness, and each 
of them gave testimony to snlMtantlate his 
story tliat, at the time of the accident and 
prior thereto, he had been continually driv- 
ing on the proper side of tlie road, at a speed 
not exceeding 15 miles an hour, wtaidi waa 
much lowered immediately before Uie colli- 
tAon. Both plaintiffs not only stood upon 
but reiterated this account of the manner In 
which the automobile was alleged to have 
been handled ; and, of course, ex necessitate, 
it excluded the possibility of a remonstrance 
on their part having been maVie to the chauf- 
feur, by eliminating aU possible reasons 
therefor. Moreover, the plaintiffs* attitude 
at trial, In a manner, adopted, or set their 
seal of approval upon, the chauffeur's real 
conduct, as the jury found It to be. 

(1] The rule is well established that, when 
possible dangers arising oat of the negligent 
operation of a hired vehicle or a conveyance 
In which one Is riding as an invited guest 
are manifest to a passenger who has any ad- 
equate opportunity to control the situation, 
if he sits by without protest and permits 
himself to be driven on to his injury, this 
Is negligence which will bar recovery. In 
other words, the negligence of the driver is 
not Imputed to the passenger, but the latter 
Is fixed with his own negligence when he 
joins the former in testing manifest dangers. 
For discussion and, in some Instances, ai^- 
plication of this rule, see Tbwnslilp of Cres- 
cent V. Anderson, 114 Pa. 643, 8 Atl. 379, 60 
Am. Rep. 367 ; Dean v. Penna. R. R. Co., 129 
Pa. 514, 18 Atl. 718, 6 L. R. A. 14S, 15 Am. 
St Rep. 733; Winner v. Oakland Township, 
158 Pa. 405, 27 AU. 1110, 1111; Dryden v. 
Penna. R. B. Co., 211 Pa. 620, 61 Atl. 249; 
Thompson v. Penna. R. R. Co., 215 Pa. 113, 
64 Atl. 323, 7 Ann. Cas. 351; Kunkle v. Lan- 
caster County, 219 Pa. 52, 67 Aa 918; Walsh 
V. Altoona & Logan Val. Elec. Ry. Co., 232 
Pa. 479, 81 AtL 551 ; Wachsmith v. Balto. & 
Ohio R. R. Co., 233 Pa. 465, 82 AU. 755, Ann. 
Cas. 1913B, 679 ; Trumbower v. Lehigh Val- 
ley Transit Co., 235 Pa. 397, 84 AU. 403; 
Senft v. Western Maryland Railway Co., 2i6 
Pa. 446, 92 Atl. 553; Dunlap v. Philadel- 
phia Rapid Transit Co., 248 Pa. 130, 03 AtU 
873. 



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[2, 3] Here, tbe dear, strong, prepondM«t- 
Ing evidence sbows that the cbaufTewr was 
seen by numerous disinterested witnesses, 
some three or four blocks north from the 
point of the accident, driving in a reckless 
manner, at an estimated efpeed of 40 miles 
an boor, on the wrong side of the road, aulte 
«Iose to the trolley track; fnrtha-morek the 
a<dmlsslons of the i^intlffs show that they 
both were familiar with automobiles and 
able to appreciate the possible dangers of 
this highly improper coarse of conduct. As 
already indicated, since the story told by the 
plaintiffs, as to tbe management of the mo- 
tor was rejected by- the Jury, the position 
assumed by the former at trial left but one 
conclusion x>osslble; L 6., that they had Join- 
ed the chauffeur in testing the dangers of 
the situation created by the way In which the 
car was in fact being driven. Under tbe dr- 
cumstances, we see uo error In the instruc- 
tions complained of. 

At this point It Is but fair to say that the 
instructions in question were coupler with a 
correct and fair presentaticm of the plain- 
tiffs' side of the case, and the jurors were 
plainly told that, if they believed the tatter's 
testimony, they should render a verdict ac- 
cordingly. 

One other assignment calls for considera- 
tion. There is an act of assembly In New 
Jersey which requires all vehicles to have 
lights displayed thereon during specified 
hours, covering the time when this accident 
happened ; onid the defendant admitted there 
was no light on its wagon. The trial Judge 
directed attention to this state of affairs, and 
Instructed tbe Jurors that, if the absence of 
a light "contributed to the accident, If that 

• * • prevented the plaintiffs' chauffeur 
from seeing the horse and wagon, that may 
be ccmsldered by you as an act of n^llgence 
which caused the accident; • * « and, 

• • • If * • • there was no negli- 
gence on the part of the plaintiffs, the plain- 
tlfTs would be entitled to your verdict" 
^niese instructions were practically the 
last word to the Jury, and we think them 
as favorable to appellants as they had a 
right to expect Had there been a light 
on the wagon, It might have saveid the plain- 
tiffs from the result of their own negli- 
gence in permitting the car occupied by 
them to be driven in the manner In which 
It was operated on the night of the accident; 
but even this Is hardly probable, since the 
plaintiffs said the acetylene gaslights on the 
front of their automobile enabled them to 
see at least 200 feet ahead. On the other 
hand. If the absence of a Ught on the wagon 
was not the proximate cause of the accl'dent, 
even though an act of negligence on the part 
«f the defendant, It would hot Justify recov- 
ery by the plaintiffs (Chrlstner v. Cumber- 
land & Elk Lick Coal Co., 146 Pa. 67, 23 Atl. 



221); and this In effect Is what the trial 
Judge said to the Jury. 

The .assignments of error are overruled, 
and the Judgments affirmed. 

(SBT Pa. 37) 
KUEHNE V. BROWN. 

(Supreme Court of Pennsylvania. March 5, 
1017.) 

1. MxrwicrPAi, Cokpobations c®=»706(6)— Op- 
eration OF AlTTOMOBn-E — NEOLIOENCE — 

Question fob Jcbt. 
In an action for injury from tbe negligent 
operation of an automobfle, where the evidence 
of defendant's failure to blow his horn was only 
negative, and there was no positive evidence 
that he- gave such warning, the weight of tbe 
negative evidence was for the Jury. 

[Ed. Note.— For other cases, see Municipal 
Corporations, Cent. Dig. { 1518.] 

2. MuNicrPAi, CoBposATioNs «=5>705(3)— Op- 

EBATION OF AUTOKOBILB — TSsST — NBOU- 

In action for personal injury to a child 
struck by an automobile while m a highway be- 
tween crossings, the test of defendant's liabilitjr 
was whether in the exercise of due care he 
should have seen the child in time to- have 
avoided injury. 

[Ed. Note. — For other case^ see Municipal 
Corporations, Cent Dig. { 1516.] 

3. Municipal Cobpobations <a=»706(6)— Op- 

EKATION OF AUTOMOBILE— PEBSONAI, INJDBT 

— Question fob Jubt. 
In such action, held, on the evidence, that 
whether defendant was negligent in not seeing 
the child in time to have avoided the injury was 
for the jury. 

[Ed. Note.— For other cases, see Municipal 
Corporations, Cent Dig. { 1618.] 

4. Municipal Cobpobations <&=9706(6)— Op- 

EBATION OF AUT0UOBII2 — NKOLIOKNOE — 

Question fob Juby. 
In a father's action in his own right for 
injury to minor child by defendant's automobile, 
conflicting testimony as to its speed and dis- 
tance required to come to a stop made a ques- 
tion for jury as to defendant's negligence in op- 
erating the car. 

[Ed. Note. — For other cases, see Municipal 
Corporations, Cent Dig. { 1518.] 
6. Pabent and CHitn «=»7(&)— Opkbation of 

Automobile — Injuby to Child — Pabbnt's 

ConTBIBUTOBY NEaUOENCE. 

Where the father of a child, suing jointly 
with him for personal injury from defendant's 
automobile, had permitted the child to cross a 
highway when the automobile was approaching 
only 75 feet away, notwithstanding his state- 
ment that he loolced in both directions and 
saw nothing approaching, he was guilty of con- 
tributory negligence barring a recovery in his 
own right. 

[Ed. Note.— For other cases, see Parent and 
Child. Cent Dig. g 94.] 

Appeal from Court of Common Pleas, 
Philadelphia County. 

Trespass by Paul Kuehne, Jr., by his fa- 
ther and next friend, Paul Kuehne, and by 
Paul Kuehne, In his own right, against 
George H. Brown, to recover for personal In- 
juries to the minor plaintiff. Compulsory 
nonsuit entered as to both plaintiffs, which 
the court subsequently refused to take off. 



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101 ATIiANIIC niDPORTBR 



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and plaintiffs appeal. Affirmed as to one 
plaintiff, and reversed as to the other. 

Argued before BROWN, G. J., and MBS- 
TRBZAT, POTTBR, STEWART, and FRA- 
ZER, JJ. 

W. Horace Hepburn, Jr., of PbUadelphia, 
for appellant. 

FRAZER, J. This Is an action by a father 
and bis minor child to recoyer for injuries to 
the latter sustained by reason of alleged neg- 
ligence of defendant in operating his automo- 
bile. A nonsuit was entered by the court 
below as to both plaintiffs, and from this ac- 
tion they have appealed. 

At the time of the accident, September 6, 
1015, the plaintiff, Paul Kuehne, Jr., was five 
.rears of age. He and his father, the other 
plaintiff, were standing on the west side of 
Rising Sun Lane, near Comly street, in the 
City of PWladelphla, talking with friends. 
This is a suburban section of the city, and 
Rising Sun Lane is about 60 feet in width, 
with trolley tracks on each side of the street, 
and a driveway for vehicles In the center ; the 
driveway being of sufficient width to permit 
three vehicles to stand abreast. The street 
is without sidewalks, but at the place where 
plaintiffs were standing is a platform con- 
structed of planks, and extending across the 
gutter to the car track. The father with 
his two children were standing on the plat- 
form referred to when one of the occupants 
of an automobile, occupied by the child's 
mother and others and standing on the op- 
posite side of the street from the platform 
on which the boy and his father stood, called 
to the child, Paul, that there was room for 
him in the car. The Iray immediately started 
to cross the street, and was about midway 
between the platform and the automobile 
when he was struck by defendant's car, com- 
ing south at a speed estimated by various 
witnesses at from 8 or 10 to 40 miles an hour. 
There is no dispute, however, that the horn 
was not blown, or other warning given of its 
approach. Another car was standing on 
the same side of the street as the car in 
which Mrs. Ku^ne was seated, 100 feet 
down the road in the direction from which 
defendant's automobile approached, and, to 
pass this car, defendant was obliged to turn 
to the left side of the road. There were 
no obstructions in the street and nothing to 
prevent defendant from seeing the persons 
standing on the platform adjoining the rail- 
way tracks, or the boy on the street after 
leaving the platform. The distance from 
the platform to the point at which the child 
was injured was estimated, by the witnesses, 
at from 12 to 20 feet. Witnesses also testified 
that when the child started to cross the street 
defendant's automobile was in the neighbor- 
hood of 75 or 100 feet away, and that the 
brakes were not applied to the ear until with- 
in about 5 feet from the child, and that fol- 
lowing the collision the automobile skidded 



on the gravel road for a distance of more 
than 30 feet. 

The court below concluded the evidence ot 
negligence on the part of defendant was in- 
sufficient to submit to the Jury, so far as the 
rights of the minor were concerned, for the 
reason that the accident did not happen at 
a street crossing; that the evidence of de- 
fendant's failure to give warning of his ap- 
proach was negative only; and that there 
was nothing to impose upon him the duty of 
blowing his horn at the particular spot where 
the accident happened. 

[1-S] In so far as the qnestion of warning 
is concerned, while the evidence of failure 
to blow the horn was negative <wl7, there 
was no positive evidence that defendant 
gave such warning, consequently, the weight 
of the negative evidence was for the Jury. 
Longenecker v. Penna. R, R. CJo., 105 Pa. 328: 
Haverstick v. Penna. R. R. Co., 171 Pa. 101. 
32 Atl. 112a However, to the extent that the 
rights of the child are concerned, whether 
or not warning was given was not a vital 
matter, as there is no question of contribu- 
tory negligence on his part, the sole ques- 
tion in his case being whether defendant, 
in the exercise of due care, should have seen 
the child In time to avoid the accident The 
evidence shows defendant's view of the road, 
and of the child on the platform over the 
gutter and also in the street, was unob- 
structed, nrnking the situation before him 
such as to impose upon him the use of due 
care to avoid injuring those who were right- 
fully using the highway, even though there 
was no crossing at this particular point. 
There is evidence from which the Jury might 
have found that the child did not suddenly 
dart in front of the car at a time too late 
for defendant to avoid the accident, but on 
the contrary that there was ample oppor- 
tunity to stop his car had he been looking 
ahead. If approaching at an extreme rate 
of speed, as testifled to by several witnesses, 
and as Indicated by the skidding of the ma- 
chine upon endeavoring to stop, it cannot 
be said, as matter of law, that defendant 
was performing his full duty toward those 
who were properly using the highway. As- 
suming the car was operated at the mini- 
mum rate of speed, testifled to by other wit- 
nesses, no apparent excuse is shown for de- 
fendant not seeing the child in time to stop 
his car and prevent the accident, in view of 
the testimony as to the distance which he 
traveled from the time the child started to 
cross from the platform to the automobile, 
and the unobstructed condition of the street. 
Consequently, the question whether he had 
notice of the presence of the child in the 
road in time to appreciate the danger and 
avoid a collision was one for the Jury to 
determine, under proper instructions from 
the court Tatarewicz v. United Tmctloii 
Co., 220 Pa. 560, 69 Atl. 995; Bloom v. 
Whelan, 56 Pa. Super. Ct 277. 
[4, E] In so far as the rights of the father 



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are concerned the conflicting' teetlnioqy as to 
the meed of the car, together with the dis- 
tance required to come to a stop, was suffl- 
\Aent to Bnbmlt to the jury on the qnestion 
of defendant's negligence In (aerating the 
car. As to the contributory negligence of 
the father, hla testimony was that before 
permitting the child to start across the street 
to the automobile in which his wife was 
seated he looked in both directions and saw 
no car approaching. Ck>nslderlng there was 
an unobstructed view of the street for 300 
or 400 yards, with the exception of the pres- 
ence of another automobile, which was about 
100 feet distant, and in view ot the testi- 
mony that defendant's car was approximately 
75 feet away when the child was permitted 
to start across the street, it is useless for 
plaintiflT to say he looked and did not see 
the automobile when it must have been In 
plain view at the time ; hence his negligence 
In permitting a child of such tender years 
to cross the street alone is too apparent to 
require submission to the Jury. To the ex- 
tent, therefore, that the father is concerned, 
the nonsuit was proper. Glassey v. Heston- 
vllle, Mantua & Falrmount Pass. Ry. Co., 57 
Pa. 172; Johnson et ux. v. Reading City 
Pass. Ry., 160 Pa. «47, 28 Atl. 1001, 40 Am. 
St Rep. 752; Pollack v. Penna. R. R. Co. 
(No. 2) 210 Pa. 634, 60 Atl. 312, 105 Am. St 
Rep. 846. 

The fourth assignment of error is sus- 
tained, the Judgment is reversed, and the 
record remitted with a new venire. 



<»7 P«. 88) 

In re HUNTER'S ESTATE et al. 

(Supreme 0>urt of Pennsylvania. March 5. 
1917.) 

1. MoRTaAGES <S=>559(3) — Mortgagee's Re- 
lease OF Title— Mobtgagob'b Personai, 
LiABiLrrr. 

Where' a mortgagee has parted with his title 
to the mortgaged premises, his release of part 
thereof without the mortgagor's knowledge or 
consent discharges the mortgagor from personal 
liabiUty for any loss to the mortgagee from a de- 
fldency in the proceeds in a subsequent sale un- 
der foredoaure proceedings, as by such release 
the mortgagee assumes the risk of the nnreleased 
part of the property. 

[Ed. Note. — ^For other cases, see Mortgages, 
Cent Dig. { 1592,] 

2. MoBTOAOKs 4=9559(3)— Penal Bokd— Lia- 
bility. 

In an audit of the account of a substituted 
trustee of an assigned estate, it appeared that 
prior to the assignment the assignor had mort- 
gaged real estate and had given a penal bond to 
further secure the mortgage debt, and that sub- 
sequent to the assignment parts of the realty 
were released from the lien of the mortgage, 
without the mortgagor's knowledge or consent, 
and that the mortgaged premises were after- 
wards sold for a sum insufficient to pay the 
mortgage. Held, that the mortgagor was dis- 
charged of any liability on the bond. 

[Ed. Note. — For other cases, see Mortgages, 
Cent Dig. { 1592.] 



Appeal from Court «f Common Pleas, PhU- 
adelpbla. 

Henry K. Fox, execute of the estate ot 
Elizabedi M. Lassalle, deceased, appeals from 
a decree dismissing exceptions to the report 
of Charles. H. Mathews, auditor, in the mat- 
ter of the estate of James Hunter and John 
Hunter, Individually, -and as copartners. Af- 
firmed. 

Argued before BROWN, O. J., and POT- 
TER, MOSCHZISKER, FRAZER, and WAL- 
LING, JJ. 

F. B. Vogel and Henry K. Fox, both of 
Philadelphia, for appellant. George Sterner 
and Charles R. Maguire, both of Philadelphia, 
for appellees. 

WALLING, J. This is an appeal from a 
decree of distribution of an assigned estate. 
In 1887 John Hunter Individually and the 
firm of James and John Hunter made a gen- 
eral assignment to John Field, for benefit of 
creditors. Prior thereto in 1878 said James 
Hunter and John Hunter, being the owners 
of certain lands, comprising about 32 acres, 
and situate near Fifty-Fifth street and Lan- 
caster avenue, Philadelphia, executed a mort- 
gage thereon and an accompanying bond to 
Wm. C. Houston, administrator, etc., to se- 
cure a loan of $27,000, payable in three years, 
with interest. Some days later John Hunter 
conveyed his interest in the mortgaged prem- 
ises to James Hunter, who thereafter and be- 
fore the assignment executed a second mort- 
gage upon £he same property, by virtue of 
which, subsequent to the assignment, the 
same was sold by the sheriflT and the title 
thereto, subject to the' prior mortgage, be- 
came vested in Margaret D. Hunter, who 
died in May, 1891, intestate. And In Decem- 
ber of .the same year, by partition among 
her heirs, such title became vested In Wm. 
D. Hunter. There then remained unpaid on 
the first loan the sum of $10,000. However, 
such title so vesting in Wm. D. Hunter did 
not include all the lands embraced in the 
orlgloal mortgage, some having been released 
meantime as hereinafter stated. On May 26, 
1801, the administrator entered Judgment 
on the bond accompanying the first mortgage; 
and on November 18, 1892, he assigned the 
bond and mortgage to James M. Connely, the 
father-in-law of Wm. D. Hunter, for the con- 
sideration of ?10,000. 

Between the date of the assignment for 
benefit of creditors and the time of the trans- 
fer of the bond and mortgage to Connely. 
the holder of the first mortgage had released 
from the lien thereof twelve separate pieces 
of land; some of which were released for 
the nominal consideration of $1 -each. And 
it does not appear that the original mort- 
gagors, or their assignee, consented to such 
release or had knowledge thereof. On No- 
vember 23, 1894, at the instence of Connely 
and on the Judgment entered on the bond 



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as aforesaid, all of the nnreleased part of the 
land Included In the first mortgage was sold 
by the sheriff for $2,000, at which sale Con- 
nely became the purchaser, and on the same 
day conveyed a portion of the premises so 
bought by him to James Dunlap for 115,000. 
Two months later Connely assigned the mort- 
gage and judgment entered on the bond to 
his son-in-law, Wm. D. Hunter, for the con- 
sideration of $1; and the latter same day 
reassessed the damages on the Judgment at 
$9,281.66. And on February 7, 1895, Con- 
nely, also for the consideration of $1, made 
a deed to his said son-in-law for the balance 
of the land Included in the sheriff's sale 
"subject to existing Incumbrance." On the 
5th of the following June, Wm. D. Hunter 
sold the land conveyed to him by the said 
last-named deed to James B. Johnson for 
$12,000, "clear of Incumbrance"; by various 
transfers, the first mortgage and judgment 
on the accompanying bond became vested in 
appellant In 1907. Since that date the Judg- 
ment has been twice revived, and on each 
occasion judgment was entered for want of 
an appearance, on two returns of "nihil 
habet." The last of these judgments was 
entered February 20, 1914, at which time 
the damages were assessed at $22,351.22. 
James Hunter died In 1896, John Field in 
1904, and John Hunter in 1910. The assignee 
filed a partial account In 1889 and a final ac- 
count In 1897, both being duly audited and 
confirmed, and no claim being presented on 
account of the first mortgage and bond at 
either of the audits. 

In 1906 Herman H. Wilson was appointed 
substituted trustee In place of John Field, 
then deceased. And in 1911 the substituted 
trustee filed an account showing a balance 
in his bands as the proceeds of a private 
sale of real estate, formerly the property 
of John Hunter. An auditor was appointed 
to pass upon exceptions and report distribu- 
tion of the balance; and before faim appel- 
lant presented his claim on the revived judg- 
ment Other claims amounting to $100,976.07 
were also presented and proven before the 
auditor; and to such other claims the net 
fund for distribution, amounting to $1,790.79, 
was distributed by the auditor and court 
below, to the exclusion of appellant's claim; 
and this appeal was taken from the final 
decree of distribution of the fund. 

[1] We entirely agree with the condnsion 



reached by the court below. Where the 
mortgagor has parted with his title to the 
mortgaged premises, a release of a part there- 
of by the mortgagee, without the knowledge 
or consent of the mortgagor, will discharge 
the latter from personal liability for any 
loss to the mortgagee resulting from a de- 
ficiency In the proceeds of a subsequent sale 
In foreclosure proceedings. Meigs v. Tun- 
nlcllffe, 214 Pa. 495, 63 Atl. 1019, 112 Am. 
St R^. 769, 6 Ann. Cas. 549. See opinion 
by Mr. Justice Stewart. By such release 
the mortgagee assumes the risk of the nn- 
released portion of the property being of 
sufficient value to secure his debt That he 
was not mistaken in this case appears from 
the fact that shortly after the sherUTs sale 
such nnreleased property was resold for more 
than double the amount unpaid on the mort- 
gage. However, in the absence of fraud or 
collusion at the sheriff's sale, the profits 
on such resales would not inure to the ben- 
efit of the original mortgagors. 

[2] The rights of creditors were fixed by 
the assignment; and while the confession of 
judgment thereafter upon the bond would as 
against the mortgaged premises relate back 
to the recording of the mortgage, it would 
not give the obligee In such bond any rights 
superior to those of other creditors as to the 
balance of the assigned estate. The entry of 
such judgment did not create a Hen on land, 
aside from the mortgaged premises, which 
had previously passed from the mortgagors 
by deed of assignment for benefit of credi- 
tors. Cowan, Casey & Hutkoff v. Penna. 
Plate Glass Co., 184 Pa. 1, 38 AtL 1076. TtiO 
act of AprU 2, 1822 (7 Smith's Laws, 551; 
Stewart's Purdon, vol. 1, p. 1185), to which 
our attention was called at bar, authorizes 
the collection of the mortgage debt from the 
nnreleased part of the premises, and provides 
for the protection of the rights of the re- 
spective part owners under such circum- 
stances, bat makes no reference to the per- 
sonal liability of the mortgagor, and Is not 
applicable to this case. As in our opinion the 
release above stated of parts of the mort- 
gaged premises is a complete answer to ap- 
pellant's claim OR the fund for distribution, 
it is not deemed necessary to discuss other 
features of the case. 

The assignments of error are overruled, 
and the decree aflarmed at the costs of the 
appellant 



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Conn.) 



AFFEAIi OF SCHELIiKK 



81 



(91 Conn. 709) 

Appeal of SOHBLLEN. 

(Snprane Court ot Ehrrore of Connecticnt. Jnne 

14, 1917.) 

Municipal Cobpor.\tion8 ®=»514(7)— Publio 

improvemenis — aeskssuents. 
Where the city has constructed a sewer im- 
provement, collected all the assessments there- 
for, and made full payment, it cannot raise an 
amount in excess of the cost by assessing benefits 
to one who has subsequently erected a dwelling 
and made connections with the sewer. 

[Ed. Note.— For other cases, see Municipal 
Corporations, Cent. Dig. { 1211.] 

Appeal from Superior Court, New London 
County ; Milton A. Shumwa.y, Judge. 

In the matter of sewer assessment of the 
borough of Groton. From a judgment con- 
firming an assessment of benefits for sewer 
Improvement, Pierre U Schellen, an abutting 
landowner, appeals. Reversed and remanded. 

The borough of Oroton is empowered by 
Its charter to lay out and construct a sewer 
system, to have Bupervlslcm and control of 
the same, and to assess against persons whose 
property is specially benefited thereby such 
sums as they ought justly and equitably to 
pay therefor to be determined according to 
such rule of assessment based upon frontage 
and area, either or both, as it may adopt as 
being just and reasonable. Pursuant to this 
authority, the borough, in 1913 and 1914, 
laid Di't and consttructed a sewer system, and 
assessed against the several owners of land 
abutting on the streets in which it was built 
the estimated cost of Its construction. This 
assessment was completed in May, 1913. The 
appellant, as the owner of a tract of land 
located at the comer of Broad and Bams- 
dell streets, was one of the persons assessed. 
He and all others against whom the assess- 
ments were made paid the amounts thereof 
to the borough. Preparatory to making these 
assessments, the borough, acting under the 
authority of its charter, adopted a rule for 
the assessment of benefits which provided 
that the estimated cost of the work should be 
assessed on the property specially benefited 
In the proportion of four-tenths to frontage 
and six-tenths to area ; the area to be calcu- 
lated to a line parallel with and not more 
than 100 feet distant from the street front- 
age. The rule provided for a departure from 
Strict adherence to the above provisions 
where such adherence would lead to Injustice 
and for a certain frontage exemption in the 
case of comer lots. It was provided that 
the rate of assessment should be 60 cents per 
lineal foot ot frontage, and 7% mills per 
square foot of area benefited. The assess- 
ments of 1913 were made in conformity to 
this rale. No change in or addition to any 
ot the sewers has been made since their orig- 
inal construction in 1913 and 1914. 

Subsequent to May, 1918, the appellant 
built a house upon his land which was lo- 
cated more than 100 feet from the street 



and connected the same with the sewer, and 
certain others did likewise. A modification 
of the rule of assessment was then made by 
the borough so that it was provided that in all 
cases where a house situated more than 100 
feet from the street should be connected with 
the sewer, a further and additional assess- 
ment should be made against the owner 
on account of the sewer with which connec- 
tion was made, such additional assessment 
to be made at the rate of 7% mills per square 
foot of area upon so much land not thereto- 
fore covered by the existing rule as would be 
included within a circle having a radius of 
50 feet from the center of the house. Fol- 
lowing this modification and pursuant to its 
provisions, an additional assessment was 
made against the appellant amounting to 
$255.16. From that assessment the present 
appeal was taken. 

Other facts not pertinent to the opinion 
need not be stated. 

Jeremiah J. Desmond, of Norwich, and 
Warren B. Burrows, of New London, for 
appellant. Arthur T. Keefe, of New London, 
for appellee. 

PRENTICE, C. J. (after stating the facts as 
above). It is an open question whether the 
borough's power to assess benefits on account 
of this public Improvement was not exhaust- 
ed before the attempted assessment appealed 
from was made In 1916, even though the actu- 
al cost of the work exceeded the estimated 
cost which was originally assessed and scxne 
portion of the actual cost remained undis- 
tributed over the property specially benefited. 
City of Chicago v. People ex rel. Norton, 66 
lU. 327, 332; Meech v. City of Buflfalo, 29 
N. Y. 198, 215. Doubtless authority to make 
a supplemental assessment to cover cost not 
already assessed may be conferred by stat- 
ute; but there appears to be no sudi grant 
of power to the borough of Groton. That 
question, however, is one which we have no 
occasion to answer, since it nowhere appears 
in this record that the actual cost of the 
sewer system constructed exceeded its esti- 
mated cost which, pursuant to the rule adopt- 
ed by the borough, was assessed on the prop- 
erty specially benefited and by the owners 
of that proi)erty wholly paid In. In so far as 
appears, the borough has been fully compen- 
sated for the cost of construction by the prop- 
erty owners q>eclally benefited and assessed. 
It is without authority to raise an amount in 
excess of the cost of a public improvement 
through the medium of an assessment of 
benefits, and that for aught that appears is 
what the borough undertook to do when it 
made the assessment of 1916 against the ap- 
pellant 

There is error; the Judgment is set aside, 
and the cause remanded, with directliMJ to 
vacate the assessment appealed from. The 
other Judges concurred. 



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82 



1(0. ATLANTIC BGPORTEB 



(Conn. 



(91 Conn. <80) 

PICKETT T. BUIOKOLDT. 

(Supreme Court of Errors of Oonnecticnt June 
14, 1917.) 

1. Insane Peksons <S=392— Action bt Con- 

8ERV.\T0R. 

Action to recover property of an incapable 
person would not be defeated because brought 
in his coDservator's own name and not in the 
ward's name, where the complaint alleged the 
conservator brought the action as such conserve 
ator, since be was the proper person to brini; 
the action, and under Ueu. St. 1902, $| 622, 023, 
as to nonjoinder and misjoinder and substi- 
tuting plaintiff, the ward's name might be sub- 
stituted on motion. 

[Ed. Note.— For other cases, see Insane Per- 
sons, Cent. Dig. §{ ICl, 1G2.] 

2. Insane Pebsons «=»44 — Action bt Con- 
servator— Death OF Incapable Person. 

Death of an incapable person docs not abate 
action brought for his benefit by his conserv- 
ator. 

[Ea. Note.— For other cases, see Insane Per- 
sons, Cent Dig. §§ CO, 70.] 

3. Insane Perso.ns €=44— Action by Con- 
servator—Death OF Incapablf, Person- 
Substituted Plaintiff— Admi.vistrator. 

Where conservator of an incapable person 
had sued in his own name for benefit of the 
ward, on the ward's death his administrator had 
a right to be substituted as plaintiff under Gen. 
St. 1902, i 62.3, as to subxtituted plaintiff, and 
Survival Act (Pub. Acts 1903, c. 193) I 1. 

[Ed. Not©.- For other cases, see Insane Per- 
sons, Cent. I>ig. i§ C9, TO.J 

4. Insane Persons €=»44 — Action by Con- 
servator — Death of Incapable Person — 
Survival of Cause of Action— "iUQUT of 
Action." 

I'ndor the Survival Act, I 1, providing that 
"no cauNe or right of action shall be lost or 
destroyed by death, etc., survival of actions is 
the rule and not the exception, and the presump- 
tion is that every cause or right of action sur- 
vives until the contrary is made to appear; the 
phrase "right of action" including the rignt to 
commence and maintain an action and being 
broad enough to include a right to be admitted 
to prosecute a pending action either as a co- 
plaintiff, or substituted plaintiff (citing Words 
^ud Phrases, Right of Action). 

[Ed. Note. — For other cases, see Insane Per- 
sons, Cent Dig. §§ 09, 70.] 

3. Insane Persons <&=>44— Action bt Cok- 
sebvator — Deatu of Incapable Person — 
Sucstitutio.v op Parties — Motion to 
Erase from Docket. 
Under Gen. SL 1902, | 622, providing that 
no action shall be defeated by nonjoinder or mis- 
joinder of parties, where administrator of an 
incapable person after his death entered to 
prosecute nnder Survival Act, § 2, an action 
conunenced for such person in his lifetime by his 
conservator in bis own name, instead of apply- 
ing to be substituted as plaintiff under Gen. St. 
1902, § 623, as to stibstituted plaintiff, defend- 
ant's appropriate remedy was not a motion to 
dismiss and erase from the docket, but a motion 
to strike from the record the entry to prosecute. 
[Ed. Note.— For other cases, see Insane Per- 
sons, Cent Dig. §§ 69, 70.] 

Appeal from Superior Court, New Haven 
County ; Joseph P. Tuttle, Judge. 

Action by Edwin S. Ilckett, Conservator, 
against George W.. Rulckoldt ITrom order 
erasing case from docket, plaintiff appeals. 



Error, and cause remanded, wltb dlrectioii to 
restore it to docket 

Leonard M. Daggett and Robert J. Wood- 
ruff, botb of New Haven, for appellant Phil- 
ip Pond and Louis M. Rosenbluth, both of 
New Haven, for appellee. 

BEACH, J. This action was brought by 
the conservator in his own name to recover 
real and personal pr(^erty alleged to have 
been transferred without consideration by 
the ward to his brother, while under the un- 
due Influence of the transferee. Before any 
answer .was filed the ward died, and the 
Union & New Haven Trust Company, his 
administrator, entered to prosecute. Ten 
months afterward the defendant filed a sug- 
gestion on the record of the termination of 
the conservatorship, and moved that the 
cause be dismissed and erased from the dock- 
et. The motion was granted on the ground 
that the action was originally improperly 
brought In the name of the conservator, and 
not in the name of the ward by the conserva- 
tor acting in his behalf ; that as the action 
never stood In the name of the deceased ward. 
the statute authorizing the administrator of 
a deceased plaintiff to enter and prosecute 
does not Applj ; and that ainoe no motiCHi was 
made to substitute one plaintiff for another, 
the action was without a plaintiff. The old 
rule was that a conservator could not main- 
tain an action to collect the ward's debts In 
his own name as conserrntor. Treat v. Peck, 
5 Conn. 280; Hutchins v. Johnson, 12 Conn. 
376, 30 Am. Dec. '622; Riggs v. Zaleskl, 44 
Conn. 120. Even if the rule still prevails, 
the consequences of a failure to observe it are 
very different now from .what they were 
when Rlggs v. Zaleski was decided in 1876. 

[1] The conservator was the proper per- 
son to bring the action,' and In his complaint 
he alleges thnt he brings it as the conserva- 
tor of Arthur Rulckoldt. Under sections 622 
and 623 of the General Statutes, the action 
could not have been defeated, in Ruickoldt's 
lifetime, because not brought in his name. 
Being on the face of the complaint beneficial- 
ly interested, his name might have been en- 
tered or substituted as a plaintiff, on motion. 
In the meantime, the action, even if brought 
by the wrong plaintiff, was still pending. As 
was said in nowen v. National Life Ass'n, 63 
Conn. 460, 476, 27 Atl. 1009, 1062, the Prac- 
tice Act has "radically changed the old prac- 
tice with reference to joinder, admission and 
dr(H>plng of the parties to a suit, and the 
changes were intentionally and deliberately 
made." 

[2] When Rulckoldt died the action did 
not abate; nor was the. consei-vator dis- 
charged by his ward's death. He still had 
the estate in his hands and must account 
for it to the court of probate. Until he .wus 
discharged the action was not without a 
plaintiff and, subject to possible objection 



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BLUE RIBBON GARAGE v. BALDWIN 



83 



which the defendant did not make, It remain' 
ed pending In court, with the conservator as 
the sole nominal plaintiff, until August 7, 
1915, when the administrator entered to pros- 
ecute. If the administrator then had a right 
to enter, the action remained lu court with 
two plaintiffs, until the final account of the 
conservator was accepted and he was dis- 
charged by the court of probate. The record 
does not show when the couserrator was dis- 
charged, but that fact was not suggested on 
the record until May, 1916, ten months after 
the administrator had entered to prosecute. 

[3] We think the administrator had a right 
to be substituted as plaintiff under section 
623 of the General Statutes. Rulclcoldt was 
the party for .whose benefit the action was 
brought, and his right to be substituted as a 
plaintiff In the action was a substantial right 
which survived to the administrator. 

[4] The broad language of section 1 of the 
Survival Act of 1903 Is that : 

"No cause or right of action shall be lost or de- 
stroyed by the death of any person, but shall 
survive in favor of or against the executor or 
administrator of such deceased person." 

Under this statute the survival of actions 
Is the rule and not the exception, and the 
presumption is that every cause or right of 
action survives until the contrary is made 
to appear by way of exception to the rule. 
The phrase "right of action" includes the 
right to CMnmence and maintain an action. 
Words and Phrases (voL 7) p. 6266. It Is 
broad enough to include a right to be admit- 
ted to prosecute a pending action either as a 
coplaintlff, or substituted plaintiff; and un- 
der section 623 the administrator had a right 
to be sut)stltuted as plaintiff in place of the 
conservator. Nobody would doubt that the 
administrator of a decedent, who ought to 
have been made a defendant, but was omitted 
through mistalce, could be Joined as defendant 
in an action which survived against the es- 
tate, and we see no reason why the admin- 
istrator of a decedent who ought to have 
been joined as a plaintiff, but was omitted 
through mistalce, may not be admitted as a 
coplaintlff, or as substituted plaintiff, if nec- 
essary, in a pending action which survives in 
favor of the estate. 

. [8] Strictly speaking, the right which sur- 
vived to the administrator In this case was 
the very same right .which the decedent had 
in his lifetime ; viz. the right to be substitut- 
ed as plaintiff under section 623 of the Gen- 
eral Statutes. It is therefore true, as the 
memorandum of the superior court suggests, 
that the administrator ought to have made 
application under that statute to be substitut- 
ed as plaintiff. Instead of entering to prose- 
cute under section 2 of the Survival Act. 
Nevertheless he succeeded in making himself 
a party on the record by entering to prose- 
cute, and the defendant's real grievance was 
not that the administrator had no right to 
come into the action, but that be had come in 



through the wrong door. That being so, the 
appropriate remedy was not a motion to dis- 
miss and erase from the docket, but a motion 
to strike from the record the entry to prose- 
cute. Section 622 of the General Statutes 
provides that "no action shall be defeated by 
the nonjoinder or misjoinder of parties"; 
and this must include the lesser proposition 
that no action should be defeated because 
the right party came into it, or attempted to 
come into it, in the wrong way. 

There is error, and the cause is remanded, 
with direction to restore it to the docket. 
The other Judges concurred. 



(n Conn. 674> 
BLUB RIBBON GARAGE, Inc.. r. BALD- 
WIN et aL 

(Supreme Court of Errors of .Connecticut. June 
14, 1917.) 

1. Btixs Airn Notes *=»414— Noticb or Dis- 

EONOE. 

Under Negotiable Instrumeiits Law (Pub. 
Laws 1897, c. 74) as well as the former law 
merchant, a holder for collection of negotiable 
paper, which has been dishonored, performs his 
full duty in respect to notice of its dishonor by 
giving such notice in due form and time to the 
party from whom he receives it 

[Ed. Note.— For other cases, see Bills and 
Notes, Cent. Dig. §§ 1142, 1148-1155.] 

2. Bills and Notes ®=>414 — Notick of Dis- 

HONOB. 

Under Negotiable Instruments Law, as well 
as former law merchant, where negotiable pa- 
per before presentment has passed through sev- 
eral hands, whether of mere holders for collec- 
tion or of parties beneficially interested therein, 
notice given by each holder in turn to the prior 
one from whom, it was received is notice suffi- 
ciently given to fix' the liability of all indorsers 
included in the chain of notice, each holder for 
collection being regarded as a real holder, and 
his relation to the party from whom the paper 
is received being such that the latter is entiued 
to be treated as his immediate principal; and 
it is not necessary that notice of dishonor, to 
be effective in fixing the liability of indorsers, 
should be given by the holder at presentment di- 
rectly to the beneficial owner, disregarding all 
intervening holders for collection only. 

[Ed. Note.— For other cases, see Bills and 
Notes, Cent Dig. §§ 1142, 1148-1155.] 

3. Bnxs AND Notes <g=>539— Action Against 
Indobseb— Findings of Fact. 

In action against indorser of a note which 
had been sent to a trust company for collection, 
a finding that the trust company had never been 
plaintiff's agent for any purpose whatsoever 
might be disregarded as a mere conclusion of 
law ; the facts showing the trust company to be 
a holder for collection and therefore as matter 
of law the owner's agent. 

[Ed. Note.— For other cases, see Bills and 
Notes, Cent Dig. §S 1911-1913, 1934.] 

4. Bills and Notes €=»420— Notice of Dis- 

HONOB. 

Where the holder of a note, receiving notice 
of its dishonor, notified a prior indorser and 
the original payee of the dishonor by telephone 
and personal visit and oral notification respec- 
tively, this was sufficient compliance with the 
Negotiable Instruments Law. 

[Ed. Note.— For other cases, see Bills and 
Notes. Cent Dig. {§ 1138-1140.] 



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84 



101 A.TLANTIO REPORTBB 



(Conii. 



Appeal from Court of Common Pleas, Falr- 
3eld County; John J. Walsh, Acting Judge. 

Action by the Blue Ribbon Garage, Ineor^ 
porated, against R. L. Baldwin and others. 
From Judgment for plaintiff, the named de- 
fendant and others appeaL No error. 

On February 15, 1915, the plaintiff be- 
came the owner of the note in suit in part 
payment for the sale to the defendant Bald- 
win of an automobile. The note was drawn 
by the defendant the State of Maine Lumber 
Company, to the order of the defendant At- 
water, and was made payable at the Con- 
necticut Trust & Safe Deposit Company, of 
Hartford. It bore the indorsements of the 
Ave individuals who were made defendants, 
Including Atwater and Baldwin, against 
whom judgment was rendered. The plain- 
tiff still owns the note, which remains un- 
paid. The date of maturity was Match 2, 
1915. 

February 26, 1915, the plaintiff deposited it 
for collection with the First Bridgeport Na- 
tional Bank of Bridgeport. That bank for- 
warded it in due course of business to their 
agents, the State Bank of Albany, for col- 
lection. The State Bank of Albany in like 
manner forwarded it for collection to Its 
agents, the Hartford National Bank of Hart- 
ford. On or before the morning of March 2, 
1915, the last-named bank delivered it to the 
Connecticut Trust & Safe Deposit Company, 
the place of payment. Payment not having 
been made at the close of business upon that 
day, it was handed by the discount clerk of 
the trust company to Its teller, who demand- 
ed payment, and, no payment having been 
made, wrote across the face of the note: 
"Protested for nonpayment Mar. 2, 1915, 
Harvey W. Corbln, Notary Public." He then 
made a certificate of protest and ten notices 
of protest, one addressed to each of the banks, 
and each party whose name appeared upon 
the note, pinned the certlflcate to the orig- 
inal note and placed the note and certificate 
thus attached, together with the ten copies of 
the notice of protest, in an envelope and mail- 
ed it with Its Inclosures, Including two-cent 
stamps for each notice save one, to the Hart- 
ford National Bank. On the following day, 
the last-named bank mailed the note, certifi- 
cate of protest, and notices, save only the no- 
tice to itself, to the State Bank of Albany. 
On March 5th, the First Bridgeport Nation- 
al Bank received from that bank In the first 
mail the same inclosures less the notice to the 
State Bank of Albany. The Bridgeport bank 
Inmiedlately thereafter renialled them, less 
the notice to it, to the rlai"tW. who received 
them during the forenoon of the same day. 
Upon that day Baldwin was notified by the 
plaintiff's treasurer by telephone of the dis- 
honor. On the following day, Atwater, who 
resided in New Haven, was visited by the 
plaintiff's agent and orally notified. No at- 
tempt was made by the plaintiff to notify the 
other indorsers. 



i George E. Beers, of New Haven, and Dan- 
iel J. Danaher, of Meriden, for appellants 
Baldwin and Atwater. Jotm Smith, oC 
Bridgeport, for appellea 

PRENTICE, O. J. (after stating the facts 
as above). [1,2] The course of condact of 
the notary who made presentment of the note 
In suit and of the several banks through 
whose bands it passed In the collection pro- 
cess conformed strictly, in so far as notice 
of dishonor was concerned, to the require- 
ments of the law merchant formerly control- 
ling and to those of the negotiable instrument 
law now in force. By the overwhelming 
weight of authority under the law merchant, 
a holder for collection of negotiable paper, 
which had been dishonored, performed his full 
duty in respect to notice of its dishonor by 
giving such notice in due form and time to 
the party from whom he received it Where 
the paper before presentment had passed 
through several hands, whether they were 
those of mere holders for collection or of 
parties having a beneficial interest In it, the 
approved rule was that notice given by each 
holder In turn to the prior one from whom 
it was received was notice suflBclently given 
to fix the liability of all indorsers included 
in the chain of notice. United States Bank 
V. Goddard, 5 Mason, 366, 375, Fed. Cas. No. 
917; Eagle Bank v. Hathaway, 5 Mete 
(Mass.) 212, 215; Phlpps v. MlUbury Bank, 
8 Mete. (Mass.) 79, 84; Farmers' Bank v. 
Vail, 21 N. T. 485, 487; Seaton y. Scovlll, 
18 Kan. 433, 438, 21 Am. Rep. 212, note 26 
Am. Rep. 779; Wood v. Callaghan, 61 Mich. 
402, 411, 28 N. W. 162, 1 Am. St Rep. 597; 
Daniel on Negotiable Instruments, 331. Each 
holder for collection was regarded as a real 
holder and his relation to the party from 
whom the paper was received such that the 
latter was entitled to be treated as his im- 
mediate prindpaL Bartlett v. Isbell, 31 
Conn. 296, 299, 88 Am. Dec. 146; Phipps 
V. Millbury Bank, 8 Mete. (Mass.) 79, 84; 
Freeman's Bank v. Perkins, 18 Me. 292, 294; 
Howard v. Ives, 1 Hill (N. T.) 283, 264 ; Ex- 
change Bank v. Sutton Bank, 78 Md. 577, 587, 
28 Atl. 563, 23 L. R. A. 173. 

The Negotiable Instruments Act has not 
changed the law In any of these respects. 
The defendant's broad contention that no- 
tice of dishonor to be effective in fixing the 
liability of Indorsers should be given by the 
holder at presentment directly to the benefi- 
cial owner disregarding all intervening hold- 
ers for collection only Is without foundation 
in the act, and we have so distinctly held. 
Gleason v. Thayer, 87 Conn. 248, 250, 87 Atl. 
790, Ann. Cas. 1915B, 1069. Such a require- 
ment, necessitating, as It would. Inquiries as 
to who was the real owner and what his ad- 
dress, and Involving embarrassment and com- 
plications in accounting as between those 
through whose hands the paper passed in the 
process of collection, would be fruitful of 
such annoyances, difficulties, and hazards of 



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Conn.) 



APPEAL OF CX)RDANO 



85 



miscarriage and loss as to make It an unsat- 
isfactory substitute for the simple, orderly, 
and effective method pursued in this case and 
by us heretofore approved. The case of East 
Haddam Bank v. Scovil, 12 Conn. 303, fur- 
nishes a good example of easily possible con- 
sequences. The law under consideration in 
Gleason v. Thayer was, to be sure, the Ne- 
gotiable Instruments Act as it was enacted 
in Mew York: but Its provisions of present 
pertinence were identical with those of our 
own. 

The defendant's counsel undertake to es- 
cape from the operation of the decision in 
that case by an attempt to distinguish be- 
tween the two cases npon the ground that 
the note in Gleason v. Thayer presumably 
was indorsed by the Whaling Bank to the col- 
lection bank In New Tork, whereas it does not 
appear by the record that the note in this 
case, when presented for payment, bore any 
bank Indorsements. It would doubtless be 
quite In accordance with the fact to assume 
that It did, but that Is not a matter of con- 
trolling Importance. The note, as indorsed 
npon Its delivery to the Bridgeport Bank, 
was transferable by delivery, and the finding 
is that It was sent along through the chain 
of banks for collection. Each bank received 
and transmitted it to its agents for that pur- 
pose, and each receiving bank became Its 
bolder for collection with all the rtgbts, 
powers, and obligations attached to such 
holders. Bast Haddam Bank v. Scovil, 12 
Ck«in. 302, 311. 

[3] Counsel for the defendant attach great 
Importance to one of the paragraphs in the 
finding, and build much of their argument 
upon It The paragraph is to the effect that 
the Connecticut Trust & Safe Deposit Com- 
pany has never been the plaintiff's agent for 
any purpose whatsoever. That finding is 
one of law and not of fact The legal char- 
acter of the relation in whi<di tne trust com- 
pany stood to the owners of the note is to 
be determined as a legal conclusion upon the 
t&cts. The finding, to be sure, does not state 
In so many words that the Hartford Nation- 
al Bank delivered the note to the trust com- 
pany for collection for its account, but there 
is no other reasonable inference from" the 
facts found than that it did so. The conduct 
of the parties throughout so Indicates quite 
unmistakably. As a bolder for collection is, 
as a matter of law, the agent of the owner, 
the finding of the court upon this matter 
mnst be disregarded as not Justified as a 
matter of law by the facts. Gleason v. Thay- 
er, 87 Conn. 248, 250, 87 Atl. 700, Ann. Gas. 
1915B, 1060. 

[4] The action of the plaintiff In giving 
notice to the defendants Baldwin and At- 
water, following its receipt in due course 
from the Bridgeport Bank, of the notice of 
dishonor, complied In all respects with the 
requirements of the law, and no complaint of 



Irregularity in that respect is made by the de- 
fendants. 

Certain evidence tending to prove a bank- 
ing custom In the matter of giving notices of 
dishonor w&a received against objection that 
it was not permissible to show conformity to 
a custom at variance with the provisions of 
statute. The court has found no such cus- 
tom, nor did it decide the case upon the 
strength of one. Its decision was based up- 
on the provisions of statute and compliance 
therewith. 

Two or three objections to the admission 
of testimony, offered to show that the Hart 
ford National Bank mailed the note, certifi- 
cate of protest and notices to the State Bank 
of Albany on March 3, relate to details which, 
In view of other testimony, were unimportant 
The court was amply Justified in finding that 
it did so upon proof that these papers were 
recdved by the Bridgeport Bank by first 
mail on the 5th contained in a letter from 
the State Bank of Albany addressed to It 

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

(tl Oonn. 718) 
Appeal of CORDANO. 
(Supreme Court of Errors of Connecticut June 
14, 1017.) 

1. Intoxicattno Liqtjobs 9=>103-^License8 

"""ASSIQNMETNTS 

Under Pub. Acts 1915, c. 282, prohibiting 
granting ot licenses to sell intoxicating liquor 
within 200 feet of a church, bnt exempting 
transfer applications which are left to the dis- 
cretion of the commissioners, the owner of a 
license, whether or not he lias qualified to sell 
under it, may sell and assign it as a piece of 
property to another who may make applica- 
tion to sell under it as a transferee. 

[Ed. Note. — For other cases, see Intoxicating 
Uquors, Cent Dig. $$ 108-112.] 

2. Intoxicatino Liquobs €=»103— Licenses 
— cuaractebistics. 

Property in a license to sell intoxicating liq- 
uor is recognized by law to the fullest extent as 
property having a recognized pecuniary value 
and the subject of sale, attachment levy, or re- 
plevy. 

[PM. Note.— For other cases, see Intoxicating 
Liquors, Cent Dig. i! 108-11Z] 

3. Intoxicating Liqdobs $s>103 — Licenses 

Pub. Acts i»15, c. 282, prohibits the want 
ing of licenses for places located within 20o feet 
of a church, but exempts transfers from the 
operation of the statute. Chaijter 36 provides 
that a license sold upon execution shall for it& 
unexpired term be as valid in the hands of its 
purchasers as in the bands of the original li 
censee, provided that before the purchaser may 
sell thereunder he shall conyjly with all the re 
quirements relative to the procuring of an origi 
nal license. A license was sold on execution and 
purchased by a brewing company which did not 
qualify as a licensee thereunder, but transferred 
it to one who made application. Subsequent to 
such assignment a chnrch was erected within 
200 feet of the saioon. Held that transfers be- 
ing exempt from the operation of the statute, 
the assignee might qualify to sell under the li- 
cense. 

[Ed. Note.— For other cases, see Intoxicating 
Liquors, Cent Dig. §$ 108-112.] 



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101 ATLANTIC BBPOBTEB 



(OODD. 



4. Intoxicating Liqitobb «=3lO&— Licenses 
—Fraud. 

The assignee of a liqnor license sold upon 
execution and purcliased by a brewing company 
which failed to qualify as a licensee thereunder 
is not guilty of fraud in applying for permis- 
sion to sell under the license as being in no posi- 
tion to claim such rights where Pub. Laws 1915, 
c. 282, expressly exempts transfers from the op- 
eration of the prohibition against licensing 
drinking places within 200 feet of a church. 

[Ed. Note.— For other cases, see Intoxicating 
Liquors, Cent. Dig. §S 108-112.] 

5. Intoxicatino Liquobs 9=>103— Licenses 
— Fkacd. 

The assignee of a liquor license purchased 
by a brewery on execution against the original 
holder is not guilty of fraud in applying for per- 
mission to sell thereunder because of the fact 
that the assignor had not in fact perfected its 
assignment to the applicant at the time he ap- 
plied for permission to sell; the facta being 
known to the county commissioners. 

[Ed. Note.— For other cases, see Intoxicating 
Liquors, Cent Dig. §S lOS-112.] 

Appeal from Superior Court, litcbfleld 
County; William L. Bennett, Judge. 

Remonstrance by Nathaniel Cordano to the 
action of the County Commissioners in grant- 
ing the transfer of a liquor license. Affirmed 
on reservation to superior court, and re- 
monstrant appeals. Affirmed. 

In 1915 the connty commissioners of Litch- 
field county granted to T. J. SulUran a li- 
cense to sell spirituous and intoxicating liq- 
uors at 215 Main street, in Winsted, expiring 
October 31, 1916. In June, 1916, this license 
was sold on execution against Sullivan. The 
Yale Brewing Company was the purchaser. 
That company did not qualify as a licensee 
under the license, but sold the same to one 
Davis, who did apply on July 31, 1916, for a 
transfer of the license to him. 

Subsequent to November, 1915, and the 
date of Davis' application, a church had been 
built and opened for services within 200 feet 
of the saloon. A remonstrance was filed to 
Davis' application upon the ground of the 
proximity of the church to the saloon. Upon 
the hearing before the commissioners no wit- 
nesses were produced to establish the ua- 
suitability of the place, but the facts, as to 
its proximity to the church, were agreed 
upon as the facts upon which the commis- 
sioners' decision was to be rendered. The 
claim was made In behalf of the remon- 
strance that the application was to be regard- 
ed as an original one, and that therefore the 
prohibition of the statute against the grant- 
ing of a license for a place within 200 feet 
from a church edifice was applicable to the 
situation, and forbade the transfer of Sul- 
livan's license to Davis. This claim was 
overruled, and the application granted. From 
this action the appellant, who was one of the 
remonstrants, appealed. 

Davis is a suitable person to receive a li- 
cense. 



Frank B. Mnnn, of Winsted, for remon- 
strating taxpayer. Walter Holcomb, of Tor- 
rington. for applicant for transfer. John T. 
Hubbard, of Litchfield, for county commis- 
sioners. 

PRBNTICB, C. J. (after stating the facts 
as above). The stipulation of counsel npon 
which this reservation was made limits the 
questions, whose answers should determine 
the Judgment to be rendered by the superior 
court under our advice, in substance to two, 
as follows: (1) Was the county commission- 
ers' action in granting Davis's application for 
a transfer to him of Sullivan's license in vio- 
lation of the provisions of statute touching 
licenses for places located within 200 feet of 
a church? and (2) Was Davis's application 
a fraudulent one? 

Any question that might have been made 
in the superior court that the county commis- 
sioners erred in their exercise of discretion 
in granting the application is waived. 

[1] It appears to be conceded by the remon- 
strant appellant that, if Davis had received a 
transfer from Sullivan, his application to the 
commissioners would not have encountered 
the church prohibition. Such certainly would 
have been the casfs since chapter 282 of the 
Public Acts of 1915, which embodies that pro- 
hibition, specially excepts from its operation 
transfer applications, and leaves the decision 
in their case to the discretion of the commis- 
sioners, in view of the circumstances of each 
particular case. 

Davis, however, did not hold an assignment 
to himself from Sullivan, the licensee. His 
right to the license came to him from the 
Yale Brewing Company, who had purchased 
It upon an execution sale, and had never qual- 
ified as a licensee under it. The remon- 
strant's contention is that under such con- 
ditions he did not occupy the position of 
one who .was entitled to a transfer of the 
license within the meaning of our license 
statutes, and therefore could not avail him- 
self of the exceptions provided in chapter 282 
of the Public Acts of 1915 in cases of trans- 
fer. His claim is that the exception made in 
that act in favor of transfers of licenses re- 
fers 'cmly to such as attend the passing of 
the ownership of the license directly from 
the licensee to the applicant for a transfer 
and without the intervention of any other 
person's ownership of the license, and that 
all other persons not so deriving title to the 
license appear before the county commis- 
sioners as original applicants and subject to 
the regulations governing such applicants. 
In support of this position he points to chap- 
ter 148 of the Public Acts of 1916, where it 
is provided that any licensee, or In case of 
his death his administrator or executor, may, 
with the consent of the county commission- 
ers, transfer his license. This, he says. Is 
Inclusive of all transfers which the law rec- 



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Conn.) 



APPEAL OF CORDANO 



87 



ognizes as sncb, and eonfincB the power to 
make assignments, which by the approval of 
the county commlsslonera may become trans- 
fers, to licensees. 

This coDStmction of our statute la exceed- 
ingly narrow and technical, and does not com- 
port with sound reason. It reaches not only 
thoSe who, as here, are iHircfaasers of a license 
at an execution sale, but also those .who bold 
voluntary assignments from the owner of a 
license, provided they have not put them- 
selves in a position to engage In the liquor 
business under its authority. We search in 
vain for a practical reason for the distinction 
thus made between licensed and nonlicensed 
owners of a license in the matter of their 
competency to make an assifniment of the 
license which may be perfected as a transfer 
by the action of the county commissioners. 
Espedally hard is it to find a reasonable basis 
for such dlstinctioD, since ownership by pur- 
chase and assignment does not carry with it 
the right to utilize the license in the conduct 
of the business. In every case one who ac- 
quires an outstanding license is required to 
obtain the approval of the county commis- 
sioners before be can sell under it. As the 
license authorities have reserved to them the 
l)ower to dictate as to .who among assignees 
may exercise the francliise by becoming 
sellers, and are called upon in every case to 
exercise that power, it is difficult to discover 
nvbat abuse can possibly arise from making 
assignees of nonlicensed persons transferees 
of the license which is not to be anticipated in 
the case of assignees of licensed persons. The 
public interest is not concerned with the char- 
acter and suitability for the conduct of the 
lliiuor business of a seller of a license who 
'does not prc^Ktae to operate under it. What 
is Its vital concern is the character and suita- 
bility of the purchaser .who applies for leave 
to sell under the license. 

[2] Our law recognizes to the fullest extent 
the quality of property in a license. It Is 
property having a recognized pecuniary value 
and the subject of sale, attachment, levy, or 
roplev}'. Sayers' Appeal, 89 Conn. 315, 317, 
94 AtL 358 ; Qulnnlpiac Brewing Co. v. Hack- 
barth, 74 Conn. 392, ."^5, 50 AU. 1023. As 
Vtopeity and the subject of sale, the owner 
may prima facie at least sell It and place the 
purchaser in his position as owner. What is 
there to impose restraint upon this power of 
substitution of owners so that only one class 
of them, to wit, those who have qualified as 
licensees under the license, are free to make 
the substitution as fully and completely as 
the law in other resi)ect9 permits It to be 
made? The statutes expressly impose none, 
and none is to be found by way of implication 
unlesi4 the remonstrant's construction of chap- 
ter 148 of the Public Acta of 1915 Is to be 
accepted as correct As we already have had 
occasion to ol>serve, practical reasons in sup- 
port of that construction are not apparent 
On the other hand, it Is easy to discover rea- 
sons and cogent ones In opposition to it. We 



are of the opinion that the owner of the U- 
o«ise, whether or not he has qaolifled to 
sell under it, may sell and assign it as a 
piece of property to another who may make 
application to sell under it as a transferee. 

[3] But the remonstrant is not driven to 
rely upon the broad proposition Just dis- 
cussed. He advances a more narrow one 
based upon that portion of chapter 36 of the 
Public Acts of 1915, which provides that a 
license sold upon execution shall for its 
unexpired term be as valid in the hands of 
Its purchaser as in the hands of the original 
licensee, "provided before such purchaser 
may avail himself of the benefit of such 
license, he shall comply with all the require- 
ments of law relative to the procuring of an 
original license." His claim is that here, 
by Implication at least, is a direction that 
an execution purchaser, and of a necessity 
therefore his assignee, must if he would 
avail himself of any beneficial use of the 
purchnsed license, appear before the county 
commissioners in all respects as an original 
applicant, and be governed by all the statu- 
utory regulations concerning the granting of 
licenses to such applicants. As one of these 
regulations is the prohibition of the issuance 
of a license to sell at a place located within 
200 feet of a church edifice, he says that 
it follows that an execution purchaser appli- 
cant comes within the operation of that pro- 
hibition. 

He is, of course, correct in his statement 
that an assignee of an execution purchaser 
can stand in no better position as an ap- 
plicant for leave to sell than would his as- 
siamor if he were making such application. 
If It be so that the law provides a special 
rule for the case of an execution purchaser 
so that he is made to occupy a different and 
less advantageous position when he seeks to 
utilize his purchase by qualifying as a seller 
from that occupied by voluntary assignees of 
licensed persons, then, without doubt, every 
owner under him of the license stands in no 
better position. The controlling question 
therefore is: Does our law make execution 
purchasers a class apart from all other pur- 
chasers, and subject them, when they seek to 
avail themselves of their purchases, to dif- 
ferent and more stringent regulations than 
those to which all other purchasers are sub- 
jected? 

Tn answering this question the particular 
provision of statute which alone Is relied up- 
on as accomplishing that result should be 
read in connection with the other provisions 
touching the same general subject and such 
construction, consistent with the language 
used, given to it as will make a harmonious 
and consistent whole. In arriving at that 
construction, the evil sought to be avoided 
should be borne in mind. 

The evil which our law governing transfers 
of license privileges seeks to avoid manifest- 
ly is the sale of spirituous and Intoxicating 



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101 ATLANTIC REPORTER 



(Conn. 



liquors by persons whose fitness to do so bas 
not been passed upon and approved by the 
licensing authorities. Our policy in that 
regard Is clearly Indicated by our statutes. 
We Insist that every would-be seller shall 
present bis application for leave to sell to the 
county commissioners, and that they, after a 
formal hearing upon a prescribed notice, pass 
upon his fitness to exercise the desired privi- 
lege. This requirement extends to every 
one whether he be an original applicant or 
one desiring to sell as a substitute licensee. 

When the applicant seeks to exercise the 
right which was originally given to another, 
a transfer of the license becomes necessary. 
That transfer is not accomplished by a pur- 
chase and assignment of the lic^ise. It is 
accomplished when, and only when, the coun- 
ty commissioners have signified their con- 
sent to the substitution of licensee. Chapter 
148, P. A. 1915. Our statutes make it 
clear that the word "transfer," as used in 
them, refers not to the transaction as be- 
tween individuals whereby the property in- 
terest passes, but to the transfer of the right 
to sell which follows the county commis- 
sioners' consent It matters not whether the 
license, as representing an inchoate right to 
sell, was obtained by a third party through 
a voluntary assignment or upon execution 
sale. There is no transfer within the mean- 
ing of our statutes until the county commis- 
sioners have given their consent to the sut>- 
stitutlon of parties, and there is in either 
case one when that consent is given. 

Bearing in mind that fact and also that 
chapter 282, the latest in the order of enact- 
ment of the license statutes, in unrestricted 
language exempts transfers from the opera- 
tion of the prohibition against the grant 
of licenses for a place located within 200 
feet of a church edttice, and also that no 
reasons are apparent for the making of a 
distinction between purchasers of different 
classes, it is reasonably manifest that the 
two statutory provisions should be read the 
one as prescribing the applicant's conrse of 
action, and the other the county commission- 
ers' duty in passing upon his application 
when duly presented. By force of chapter 
.% the applicant must proceed in the matter 
of application in all respects as an original 
applicant Is required to do. By virtue of 
chapter 282 the connty commissioners, in 
passing upon the application when thus pre- 
sented, are to be governed by the regulations 
touching transfers. 

[4, i] The remonstrant's claim that the 
plaintiff's application was fraudulent Is based 
largely upon his assumption of an alleged 
false position In asserting that he desired a 
transfer of Sullivan's license and in asking 
for such transfer when he was in no position 
to claim it. What we have said upon that 
subject disposes of that feature of the charge 
of fraud. The charge is also based in parti 



upon the fact that at the time the application 
was made the Yale Brewing Company had 
not in fact perfected its assignment to the 
applicant, although it was perfected prior 
to the hearing before the commissioners. No- 
where In the application or in the applicant's 
affidavit accompanying It Is it said that the 
assignment had been made. The applica- 
tion was for a transfer of Sullivan's license 
to Davis, and nothing more. We discover no 
mlsrepresentatian of fact by Davis, nor pos- 
sibility of misunderstanding or misconception 
on the part of the commissioners as to any 
material matter involved In their decision. 
It does not appear but that the sltnation 
was fully understood by all, and it is of no 
practical importance whether or not the as- 
signment to Davis was in form executed at 
the time of the application's date. 

The superior court is advised to affirm 
the order of the county commissioners. 

No costs in this court will be taxed in favor 
of either of the parties. The other Judges 
concurred. 

(U Conn. 692} 
TURNER T. OONNECTICUT CO. 

(Supreme Court of Errors of Connecticut 
June 14, 1917.) 

1. Appeal anu Ebror <8=>704(2) — Correc- 
tion or FiNniNG — Memokandhm of Deci- 
sion. 

The memorandum of decision, not being 
made a part of the finding, cannot be corrected 
on appetQ. 

[Ed. Note.— For other cases, see Appeal and 
Error, Cent Dig. i| 2900, 2939, 2941.] 

2. Appeal and Error <S=>536 — Record — 
Agreed Statement of Pacts. 

An agreed statement of facts, not being cer- 
tified to by the trial court and made part of the 
record, has no place therein. 

[Ed. Note.— For other cases, see Appeal and 
Error, Cent Dig. Sg 2402, 2403.] 

3. Appeal and Error «=>656(3)— Correction 
OF Finding. 

Appellant cannot have correction on appoel 
under the method of Gen. St 1902, I 797. of a 
finding of the trial court without having the 
evidence certified and made part of the record. 

4. Carriers $=>12(1) — Power to Rjeoitlatx 
Charges. 

Under Public Service Corporations Act (Pub. 
Acts 1911. c. 128) S 23, it is only after hearing 
on complaint and finding that the rates made by 
a Public Service Corporation are unreasonable 
that the Public Service Commission may disturb 
them, and determine and prescribe just and rea- 
sonable maximum rates and charges. 

[Ed. Note.— For other cases, see Carriers, 
Cent Dig. §§ 7, 16-20.] 

5. Carriers «=>18(2) —Rates— Appeal from 
Order— Review bt Court. 

Under Public Service Corporations Act (Pub. 
Acts lOll, c. 128) f 29, providing for appeal 
from the Commission to the superior court, and 
section 31, as amended by Pub. Acts 1913, c. 
225, providing tliat said court shall hear such 
apposl and examine the question of legality o* 
the order and the propriety and expediency 
thereof in so far as it may properly have cog- 
nizance of the subject the court may determine 
whether the Commission's order fixing maximum 



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TURNER T. CONNECTIOUT CO. 



rates, or declining to dianse the rates fixed by 
the company, is valid, by ascertaining whether 
the rate so fixed or left unchanged was reason- 
able; this being a judicial question. 

[Ekl. Note.— For other cases, see Carriers, 
Cent. EMg. M IB, 16-18, 20, 24.] 

6. PcBUC Service Coumissions «=»7— "Eea- 
BOXABLE Rate." 

The reasonableness of a rate fixed by or for 
a public service corporation is to be determined 
after viewing its effect on the public as well as 
the company; the rate being unreasonable If so 
low as to be destructive of tho company's prop- 
erty or if so high, either intrinsically or because 
discriminatory, as to be an unjust exaction from 
the public. 

[Ed. Note.— For other definiti<»s, see Words 
and Phrases, First and Second Series, Reason- 
able Rate.] 

7. Cabbiebs «=»13(2) — Bates — Discbucira- 
noN. 

In determining whether the rate of a carrier 
is one locality is, in view of its rates in other 
localities, discriminatory, depending on tho lo- 
calities being similarly situated and subject to 
like conditions, the element of distance is not 
necessarily a controlling factor. 

[Ed. Note.— For other cases, see Carriers, 
Cent Dig. il 22, 21] 

& Appeal and Esbob «=»1010(1)— Rbvibw— 

Questions of Fact. 
The facts found not supporting, much less 
requiring, the conclusion that a carrier's rate 
was excessive or discriminatory, the Supreme 
Court cannot disturb the trial court's adjudica- 
tion sustaining the Public Sorvice Commission's 
determination of reasonableness of the rate, 

[Ed. Note. — For other cases, see Appeal and 
Error, Cent. Dig. j|§ 3979-3981, 4024.] 

Appeal from Superior Court, Fairfield 
County; Edwin B. Qager, Judge. 

Petttion by John C. Turner and others 
against the Connecticut Company. From 
Judgment of court, on appeal from Public 
Utilities Commission, petitioner Turner ap- 
peals. Affirmed. 

Petition for a reduction In the rates of 
fare charged by the respondent between cer- 
tain points on one of its lines running from 
Stamford to Norwalk, which rates were al- 
leged to be unreasonable, brought to the Pub- 
lic Utilities Commission, who heard and de- 
nied the petition; and thence by appeal to 
the sui)erior court ; facts found and judgment 
rendered eonflrmlng the action of the Public 
Utilities Commission, from which the peti- 
tioner Turner appealed. 

Tlie Connecticut Company operates seven 
electric street car lines on its Stamford 
division which converge at Atlantic square 
In Stamford. Two of these lines run out- 
side of Stamford, one to Sound Beach and one 
to Noroton, and five terminate at suburban 
points in Stamford. Passengers riding from 
Atlantic square to Noroton bridge, a distance 
of 2.33 miles, pay one flve-cent fare, and an- 
other fare from that point to Noroton village 
and points beyond. Passengers riding from 
Atlantic square to Sound Beach and the five 
suburban lines pay one flve-cent fare, and 
on three of these lines ride less than the 
distance from the square to Noroton bridge, 



while on three they ride a greater distance, 
viz. to Springdale, 3.5 miles ; to Sound Beach, 
3.22 miles, and to Shlppan Point, 2.79 miles. 
The New Xork and Stamford Railway Com- 
pany operates an electric street car line 
which converges at said Atlantic square. 
Passengers riding by this line from the square 
to Cos Cob, another suburb of Stamford, pay 
one five-oent fare and ride 3.8 miles. Passen- 
gers on all of these lines may transfer at the 
square from one of these lines to any of the 
others. The village of Noroton was original- 
ly a part of Stamford, and in all of Its as- 
sociations is closely connected with Stam- 
ford. In point of healthfulness, natural 
beauty, and the character of its population 
it Is a desirable place to live, and is In no 
particular inferior to Springdale or Cos Cob. 
Since the electric street car line was built 
through Noroton two houses have been built 
between the Noroton bridge turnout and St. 
Luke's Cliurch, and 14 houses have been built 
west of and within one quarter of a mile of 
the Noroton bridge. Since the electric street 
car line was built to Springdale and the flve- 
cent fare established between Springdale 
and Stamford, 170 houses have been built 
in Springdale, and Its population has in- 
creased rapidly and largely. 

On February 24, 1915, the appellant, to- 
gether with nine other residents of Darlen, 
petitioned the Public UtlllUes Commisslwi— 
"to order a fare extension or 'lap over' so call- 
ed, operative in both directions between the said 
Noroton river bridge and said St. Luke's Church, 
or to make such other adjustment of fares as 
may be necessary or advisable, so as to give a 
single five-cent rate or charge for each passen- 
ger between Atlantic square and St. Luke's 
Church." 

The term 'lap over" is one used in refer- 
ence to electric street car lines to denote the 
distance which a passenger Is allowed to 
ride beyond a given fare limit before he Is 
required to pay another fare, or upon taking 
a car going in the opposite direction, the 
distance which he may ride before readiing 
a given fare limit at which he wiU be re- 
quired to pay a fare. 

The Stamford division is one of the poorest 
earning divisions in the company's system, 
and the Stamford portion of the Stamford- 
Norwalk line of the Connecticut Company's 
system Is one of the best earning lines in 
this division. The establishment of the pro- 
posed lap over to St Luke's Church would 
extend the first flve-cent limit out of Stam- 
ford, and thereby to some extent decrease the 
net earnings of the Stamford division. 

In December, 1914, by agreement the towns 
of Stamford and Darlen paid $2,500 on ac^ 
count of the cost of widening the said bridge 
over Noroton river and the Connecticut Com- 
pany the balance of said cost, $3,162, and in 
addition $33,000 in making phydcal connec- 
tion between Its lines and Noroton river and 
providing other facilities for through traffic. 



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101 ATLANTIC REPORTER 



(ConD. 



The Connecticut Company thereafter laid Its 
tracks across the bridge aBd thus connected 
Its tracks, and this was the last step to 
'H>niplete a continuous line of electric street 
tracks between New York and Boston. 

The Commission found and held that the 
facts before them did not establish the un- 
reasonableness of the present rate, and there- 
fore denied the petition. The superior court 
adjudged that the action of the Commission 
was reasonable and proper, and confirmed 
It and dismissed the appeal. 

William T. Andrews and Peter Dondllnger, 
both of Stamford, for appellant. Seth W. 
Baldwin, of New Haven, for appellee. 

WHEELER, J. (after stating the facts as 
above). [1-3] The first seven assignments of 
error are assumed by the appellant to relate 
to the correction of the finding. In fact they 
relate to matters which are parts of the 
memorandum of decision. T^at Is not made 
a part of the finding, so that Its correction 
cannot be had. The cause is to be decided 
upon the facts found, not upon those contain, 
ed in the memorandum of decision. Fur- 
ther, the agreed statements of facts which 
the appellant assumes to be a part of the 
record had no place In the record. They 
were not certified to by the trial court and 
made a part of the record. So far as we 
know, they were not necessarily before the 
trial court, and certainly were not necessari- 
ly the only facts in evidence. Counsel for 
the appellee say the appellant petitioner in- 
troduced oral testimony. Whether this is 
accurate or not, the appellant cannot secure 
the correction of the finding under the 
method of General Statutes, § 797, without 
having the evidence certified and made a part 
of the record. The assignments of error, 
aside from those relating to the correction 
of the finding, are varying ways of stating 
the single point that the trial court erred in 
holding that the action of the Commission 
was reasonable in finding and deciding that 
the present rates complained of were not 
unreasonable. The act regulating Public 
Service Corporations (Public Acts of 1911, 
c. 128) in section 23 provides that: 

"Any ten patrons of any such company • • • 
may bring a written petition to the Commission 
alleging that tlie rates or diargcs made by such 
company ♦ ♦ • are unreasonable." 

Thereupon, after hearing had, the Com- 
mission, if it finds such rates and charges 
to be unreasonable, may determine and pre- 
scribe Just and reasonable maximum rates 
and charges to be thereafter made by such 
company, and said company shall not there- 
after demand any rate or charge in excess 
of the maximum rate or charge so prescribed. 

The limitation of rates to what are rea- 
sonable U the enactment in statutory form 
of an ancient rule of the common law. Rari- 
tan River R. Co. v. Traction Co., 70 N. J. 
Law (41 Vroom) 732, 743, 58 Atl. 332; Rea- 
gan v. Farmers' Loan & Trust Co., 154 U. S. 



362, 397, 14 Sup. Ct 1047, 38 L. Ed. 1014; 
LoulsvUle & N. R. Co. v. Garrett, 231 U. 8. 
298, 311, 34 Sup. Ct. 48, 68 L. Ed. 229. 

"To limit the rate of diarge for services ren- 
dered in a public employment, or for the use of 
property in which the public has an interest, is 
only changinj; a regulation which existed be- 
fore. It establishes no new principle in the law. 
but only gives a new effect to an old one." 
Munn V. IlUnois, 94 U. S. 113, 24 L. Ed. 77. 

[4] The remedy for the enforcement of 
reasonable rates provided by our act was 
new in this Jurisdiction. So long as the 
company establishes reasonable rates, these 
cannot be lowered by commission or court. 
When it fails in this duty the PubUc CtUl- 
ties Commission Is authorized to prescribe 
Just and reasonable maximum rates. And its 
authority, under this act, may be Invoked 
whenever the rates as fixed are either so 
high or so low as to be unreasonable. The 
Commission is an administrative one, with 
the delegated legislative function of fixing 
railway rates. 

[5] A court may not be required to fix or 
regulate a tariff of rates for services to be 
rendered by a public service corporation, 
since this Is a legislative function and may 
be conferred by law upon a specially desig- 
nated ministerial body. Reagan v. Farmers' 
Loan & Trust Co., 154 U. S. 362, 397, 14 
Sup. Ct 1047, 88 L. Ed. 1014; Interstate 
Commerce Commission v. Railway Co., 167 
U. S. 479, 499, 17 Sup. Ct, 896, 42 L. Ed. 243; 
Janvrln, Petitioner, 174 Mass. 514, 55 N. E. 
381, 47 L. R. A. 319; Raritan River R. Co. v. 
Traction Co., 70 N. J. Law (41 Vroom) 732, 68 
Atl. 332. 

Section 2d of the act provides for an ap- 
peal to the superior court from any order of 
the Commission. And section 31, as amend- 
ed by chapter 226 of the Public Acts of 1913, 
provides that: 

"Said court shall hoar such appeal and exam- 
ine the question of the legality of the order 
• • • and the propriety and expediency of 
such order • • • in so far as said court may 
properly have cognizance of such subject" 

Under this provision the court may hear 
and determine whether the order of the Com- 
mission fixing maximum rates, or its order 
declining to change the rate flexed by the 
company. Is- valid or not, by ascertaining 
whether the rate so fixed or the rate un- 
changed was reasonable or not. Such a 
question is a Judicial one. 

It has been so held in construing a like or 
similar provision in state and federal stat- 
ute. Janvrln, Petitioner, 174 Mass. 514, 65 
N, B. 381, 47 L. R. A. 319; Raritan River R. 
Co. V. Traction Co., 70 N. J. Law (41 Vroom) 
732, 743, 58 AU. 332; Chicago, M. & St P. 
Co. V. Minnesota, 134 D. S. 418, 458, 10 Sup. 
Ct. 462, 702, 33 L. Ed. 970; Smyth v. Ames, 
169 U. S. 466, 18 Sup. Ct 418, 42 L. Ed. 810 : 
Reagan v. Farmers' Loan & Trust Co., 154 
U. S. 362. 397, 14 Sup. Ct 1047. 38 L. Ed. 
1014; Prentls v. Atlantic Coast Line Co., 211 
D. S. 210, 29 Sup. Ct 67, 63 L. Ed. 150. 

[6] The reasonableness of the rate is to 



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TURNEB V. CONNECTICUT CO. 



91 



lie determined after viewing its effect npon 
the public as well as upon the company. The 
rate may, on the one hand, be so low as. to 
be destructive of the property of the com- 
pany, or it may be so high as to be an un- 
just exaction from the public; either In- 
trinsically so, or because it Is discrimina- 
tory. In either instance the rate Is unrea- 
sonable. What the court does im passing 
upon this question is to decide after hearing 
had in the course of a Judicial proceeding, 
whether the rate complained of Is so high or 
-so low as to be unreasonable. No satisfao- 
tory definition of reasonable, as applied to 
rates, applicable to each case, can be made. 
Each must be decided upon its own facts and 
upon a consideration of many varying ele- 
ments. A passenger rate upon a railway, to 
be reasonable, must be Just to the public as 
well as to the railway. It should be large 
enough to provide for the passenger reason- 
able service and for the railway a reasonable 
return. The rate may be made high enough 
to cover the cost of service, the carrying 
charges, a reasonable sum for depreciation, 
and a fair return upon the investment. Less 
than this will not ^ve the railway a reason- 
able rate. The action of a utilities com- 
mission which reduces a rate below this 
point unduly deprives the owners of their 
property without Just compei^satlon. If a 
rate exceeds this point to an appreciable de- 
gree and the Commission, upon proper ap- 
plication, declines to reduce It, the court 
would, in the absence of other controlling 
facts, reduce it to a reasonable point 

[7] If a rate in one locality Is largely In 
«>xcess of rates in other localities similarly 
situated and subject to like conditions, it is 
an onreasbnnble rate, for this would Instance 
a discrimination against one locality In favor 
•of another, or other localities. A discrimi- 
nating rate of this character would be an mi- 
reasonable rate, since as a general principle 
the service of a public utility should be equal 
to all patrons similarly circumstanced. Bald- 
win, Americaiu Railroad Iiaw, c. 25, (6; 
EUiott on Kallroads, § 1167 ; Union Padflc Ry. 
Ck>. V. Goodridge, 149 U. S. 680, 690. 13 Sup. 
Ct. 970, 37 L. Ed. 896; Western Union Tele- 
graph Co. V. Call Pub. Co., 181 U. S. 92, 99, 
21 Sup. Ct. 661. 45 U Ed. 765 ; Portland Ry., 
L. & P. C. Y. Oregon R. R. Commls^om, 229 
U. S. 397, 411, 33 Sup. Ct 820, 57 L. Ed. 1248. 

When we examine the finding before us we 
see that there are no facts found from which 
it could have, been inferred as matter of fact 
by the trial court, or must be Inferred by 
us as matter of law, that the ten-ceut rate 
between Atlantic Square and Noroton Is ex- 
orbitant or excessive. We have not before us 
the cost of service between these points, nor 
the fair share of the carrying charges and of 
depreciation, or what would be a fair re- 
turn, for this distance. We are not given ei- 
ther the gross or net earnings, or the per car 
hour, or per car mile earnings. Nor are the 
conditions found to be similar. All that the 



finding tells us la that the earnings are less 
on this system than on the defendant's other 
systems. This unrelated fact by Itself, does 
not help in ascertaining what; if any, profits 
there are from this rate, and whether they 
are excessive or exorbitant The petitioner 
does not stand upon the intrinsic unreason- 
ableness of this rate, but upon the claim 
that this rate is a discriminatory one, and 
results and has resulted to the serious disad- 
vantage of the people of the Villago of Noro^ 
ton. 

It would seem, from the facts found, that 
an Inference of fact may have been Justified 
that Sprtngdale had grown greatly and Noro- 
ton had not because of the one community 
having had a five-cent rate to Atlantic square 
and the other not But we cannot so con- 
clude, unless there is a specific finding of 
that fact Many other considerations may 
have operated or largely contributed to this 
result. We may assume that a five-cent rate 
would benefit Noroton and Its public, for 
this Is a self-evident fact. But we do not 
know what Its effect would be upon the re- 
turns to the railway. It may be held to be 
a principle of trafilc that a reduction of 
rates Increases the volume of business, but 
no principle which we are at liberty to re- 
gard tells us in a given case what will be the 
extent of tlie Increase, or what the effect up- 
on the net returns. Chicago, etc., Ry. Co. v. 
Wellman, 143 U. S. 339. 344, 12 Sup. Ct 400, 
36 U Ed. 176. 

In detcnmnlng the reasonableness of a 
rate we cannot leave out of the consideration 
the effect of the change of rate upon the rail- 
way return any more than we can tliat upon 
the public 

The petitioner's case reduces Itself to this: 
That the schedule of rates upon the Stam- 
ford division gives a materially longer ride 
for a single five-cent fare on some of the 
lines converging at Atlantic square than it 
does on the Noroton line. In a similar situa- 
tion the court say: 

"The question presented for consideration is 
not the reasonableness per se of the char^, but 
its reasonableness considered in relation to 
charges made by plaintiff at other localities on 
its system for like and contemporaneous serv- 
ice. • • • The discrimination, without an 
excuse recognized by the law, would be in and 
of itself unjust and unreasonable." Portland 
Ry. L. & P. Co. V. Oregon R. Commission, 229 
U. S. 897, 411, 33 Sup. Ot. 820, 57 L. Ed. 124a 

'i')ie petitioner is accurate in his claim as 
to the lines to Springdale, Sound Beach, and 
Shippan's Point but as to the other tliree 
Unes converging at the square the single five- 
cent fare on the Noroton line gives the longer 
ride. And the distance covered by the sin- 
gle flve-CMit fare on the Noroton line is prac- 
tically the average distance the single fare 
wUl carry a passenger on all the lines of the 
system converging at the square. 

The element of distance may be a controll- 
ing factor in a case of discrimination, but 
not Invariably so. As a rule, other factors 



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92 



101 ATLANTIC REPOnTEB 



(Conil. 



are neopssniily relevant Iwfore the conclusion 
of a discrlmlnntion In rutcs can be made. 
Facts which affect the question of traffic 
profit are factors to be considered. It may 
be that a divergence In rates betvi^een com- 
munities similarly conditioned would be dis- 
criminatory Irrespective of the element of 
traffic profit That situation we leave open 
until it presents itself. And the Identity or 
similarity of cpnditlons are also important 
factors in determining whether a rate is dis- 
criminatory. 

[8] The foundation of the petitioner's claim 
of a discrimination Is that the defendant 
charges "Noroton passragers twice the fare 
that it charges to other passengers similarly 
circumstanced." The finding does not sup- 
port this. The judgment must be controlled 
by the finding. And upon that we cannot 
hold that there was any undue preference or 
advantage In the other rates, or that the 
trial court erred in concluding that the rate 
complained of was not reasonable, for the 
facts found do not sui^ort, much less re- 
quire, the conclusion that this rate is either 
exorbitant, excessive, or discriminatory. 

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



(91 Oonn. 727) 
BULKELEX v, BROTHERHOOD ACCI- 
DENT CO. 

(Supreme Court of Errors of Connecticut. 
June 14, 1917.) 

1. iNstmANCK €=>339 — Accident Insurance 
— Change of Occupation. 

The act of setting off a single firework ia 
not a change of occupation from that of garden- 
er to that of user or handler of fireworks, with- 
in the provision of an accident iK>licy. 

[Ed. Note.— For other cases, see Insurance, 
Cent Dig. { 879.] 

2. Insurance ie=>4ei(l) — Accident Insdb- 

ANCE — VOLUNTABY EXPOSUBE TO DANOEB. 

Evidence that the bombs were ordinarily 
safe, that from one to two minutes usually elaps- 
ed between the lighting of the fuse and the ex- 
plosion of the charge, which threw the bomb 
upwards, and that insured, his employer, and 
members of the family had set off a great many 
of them on other occasions, is enough to show 
that the act of setting off in the usual way a 
bomb, a firework, was not a voluntary exposure 
to unnecessary danger, within the provision of 
an accident policy. 

[Ed. Note.— For other cases, see Insurance, 
Cent Dig. i IISO.] 

8. Evidence €=^126(2)— I>E0i.A]unoN8— Mas- 

HEB OF Accident. 
Relative to the question whether insured, 
fatally injured by explosion of a bomb whidi 
he was setting off, voluntary exposed himself to 
unnecessary danger, within the provision of his 
accident policy, his declarations while on the 
way to the hospital, in answer to the question 
as to what happened, that it went off sooner than 
he expected, and something about a quick-burn- 
ing fuse, all that witness could remember, are 
relevant and admissible, and make it more prob- 
able that the accident occurred because of a 



quick-firing fuse than from attempting to set 
off the bomb in some unusual way. 

[Ed. Note.— For other cases^ see Evidence, 
Cent Dig. § 373.] 

Appeal from Superior CourU Hartford 
County ; Mllt<ni A. Shumway, Judge. 

Action by Morgan O. Bulkeley, administra- 
tor, against the Brotherhood Accident Com- 
pany on a policy of health and accident as- 
surance; From a Judgment for plaintiff, de- 
fendant apiieals. Affirmed. 

The plalntUTs decedent, Oscar L. Johnson, 
a gardener in the plaintiff's employ, was in- 
jured by the explosion of a flreworli called a 
bomb, intended to be fired by placing it 
In a mortar and lighting a fuse. Some of 
these fireworks, left over from the previous 
Fourth of July, were found about the prem- 
ises, and Johnson was seen to take a bomb 
and mortar from plalntitTs garage toward 
an open place near by. Nobody witnessed the 
accident, but an explosion was heard, and 
Johnson was observed rolling on the grass 
trying to extinguish a fire burning in the 
clothing about his neck and chest Two 
days afterwards Johnson died in consequence 
of bums and wounds received from the ex- 
plosion of the bomb. While being taken to 
the hospital Johnson was asked, "What hap- 
pened?'' and said that it went off sooner thaA 
he expected, and something about a quick- 
burning fuse. 

The policy exempts the defendant trom 
liability for injuries caused by "voluntary 
exposure to unnecessary danger," and pro- 
vides that in case of injury after the Insured 
has "changed his occopation to one classified 
by the company aa one more hazardous than 
that herein stated" the company's liability 
shall be only for the amount which the 
premium would have purdiased at the rate 
fixed by the company for such more hazar- 
dous occupation. 

The complaint alleges that the insured 
duly fulfilled all the conditions of the in- 
surance on his part, and that the death was 
not from any cause excepted In the policy. 
The answer leaves the plaintiff to his proof 
as to the facts, denies that the assured tul- 
flUed the conditions of the Insurance, al- 
leges that the Injury was caused by volun- 
tary exposure to unnecessary danger, and, 
as an alternative defense, that the assured 
had changed his occupation, and was en- 
gaged In nslng or handling fireworks when 
injured, whereby the company's liability was 
reduced to $200, In respect of which a tender 
Is pleaded. 

Stewart N. Dunning, of Hartford, for ap- 
pellant Warren B. Johnson, of Hartford, 
for appellee. 

BEACH, J. (after stating the facts aa 

above). [1 , 2] It is too plain for discussion 
that the act of setting off a single firework 



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SCHWEHM V. CHEDTEN TRUST CO. 



»3 



is not a change of occupation from that of 
gardener to that of a user or handler of 
fireworks. 

The other ground of defense, that the 
Injury was caused by voluntary exposure to 
unnecessary danger, rests upon the determi- 
nation of a motion to correct the finding by 
erasing therefrom the finding that the death 
was not from any cause excepted In the 
policy, and by substituting therefor a pro- 
posed finding that the plaintiff offered no 
evidence to show that decedent did not volun- 
tarily exx)ose himself to unnecessary danger. 
It Is, however, unnecessary to follow the de- 
fendant's argument any further, because the 
finding of the trial court Is supported by the 
evidence, and the defense of voluntary ex- 
posure to unnecessary danger Is disposed of 
on the merits in the plaintiff's favor. There 
was evidence tending to show that the bombs 
were ordinarily safe, that from one to two 
minutes usually elapsed between the lighting 
of the fuse and the explosion of the charge 
which threw the bomb upward, and that the 
decedent, his employer, and members of the 
employer's family had set off great numbers 
of them at Independence Day celebrations. 
This was enough to show that the act of set- 
ting off one of these bombs In the usual way 
was not a voluntary exposure to unnecessary 
danger. 

[3] Then the question remained whether 
Johnson attempted to set the bomb off in 
some unusual way, or in some other way 
voluntarily exposed himself to unnecessary 
danger In setting it off. On this point his 
declarations made while being taken to the 
hospital are relevant and admissible, and 
they make it more probable than otherwise 
that the accident occurred because of a de- 
fective quick-firing fuse. Defendant excepted 
to the admission of these declarations, and 
now makes the claim that they were too 
vague and Indefinite to be admitted in evi- 
dence. This, however, was the fault of the 
witness to whom the declarations were made, 
who was obliged to give the substance of 
what was said because he could not remember 
the words. Taking these disconnected phras- 
es as expressing the substance of John- 
son's declarations, there is no difficulty what- 
ever in supporting the finding of the trial 
court that the death was not from any cause 
excepted In the policy. 

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



(267 Pa. TO) 
SOHWEHM V. CHEXiTEN TRUST CO. 

(Supreme Court of Pennsylvania. March 12, 
1917.) 

1. BuiLDiHO AND Loan Associations «=3 
23(4) — AtTTHOMTT of Pkbsident of Loan 

SOCIBTT— MiSAPPBOPBIATION— LlABILIXr. 

The president of a loan society, whom the 
hy-laws made the chief executive officer and ac- 



tive manager, was authorized to accept money 
paid to the society by cash or by check to its 
order, and tiis misappropriation of funds so 
paid was the loss of the society. 

[Ed. Note.— For other cases, see Building and 
Loan Associations, Cent. Dig. | 29.] 

2. Banks and Banking «=»109(2) — Presi- 
dent OF IX>AN SocnSTT — INOOBSEMBNT OF 

Bills oe Notes. 
Where the authority of a bank president 
comes from the directors, he may indorse bills 
or notes payable to it. 

[EM. Note.— For other cases, see Banks and 
Banking, Cent. Dig. $ 259.] 

3. Banks and Banking i8=138— Depostts— 
Payment on Check— Liability to Deposi- 

XOB. 

Where a depositor drew his check upon de- 
fendant bank to the order of a loan society, 
whose president and chief executive officer in- 
dorsed it and misappropriated the proceeds, the 
bank was not liable, as the proceeds were paid 
to the society in accordance with the terms of 
the check. 

[Ed. Note.— For other cases, see Banks and 
Banking, Cent. D'.s. li 398-405.] 

Appeal from Court of Common Pleas, Phil- 
adelphia County. 

Assumpsit for a bank deposit by Harry 
J. Schwehm against the Chelten Trust Com- 
pany. Verdict for plaintiff for $5,294.50, 
and Judgment thereon, and defendant ap- 
peals. Reversed, and judgment entered for 
defendant 

Argued before MESTEEZAT, POTTER, 
STEWART, MOSCHZISKBH, and FRAZ- 
ER, JJ. 

Chas. C. Norrls, Jr., of Philadelphia, for 
appellant. Julius C. Levi and David Mandel, 
Jr., both of Philadelphia, for appellee. 

POTTER, J. The plaintiff In this case, 
who was a depositor with the Chelten Trust 
Company, drew his check upon that insti- 
tution for the sum of $5,002, payable to the 
order of Federal Loan Society. The check 
was Indorsed, "Federal Loan Society, H. W. 
Stoll, President, Jos. R. Friedmaq," and 
was cashed by the Franklin Trust Company, 
and collected by the latter from defendant, 
through the Com Exchange National Bank, 
and charged by defendant against plaintiff's 
deposit account. 

[1] Plaintiff claimed that Stoll, who was 
president of the Federal Loan Society, bad no 
authority to Indorse the check In the name of 
the society, that his Indorsement did not 
transfer title to it, and that defendant's ac- 
tion in paying it, and charging it against his 
account, was not bindlnig upon him. He 
therefore brought this suit to recover the 
amount so charged. At the trial, a request 
for binding instructions In favor of defendant 
was refused, and the Jury were Instructed 
to render a verdict for plaintiff for the full 
amount of the claim. From the judgment 
thereon entered, defendant has appealed. Its 
counsel contend that under the by-laws of the 
Federal Loan Society, the president was con- 
stituted the general manager of the business 



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lUl ATIiANTIO OEPOKTfiB 



(Fu. 



of the corporation, and tbls necessarily gave 
blm tbe power to Indorse Ita commercial 
paper. It appears from the record that the 
by-laws were not silent as to the president's 
authority, but they provided that he should 
be the chief executive officer of the company 
and should "have general and active manage- 
ment of the business of the company," should 
"have general supervision and direction of 
all the other officers of the company," and see 
that their duties were properly performed, 
should make annually to the board of direc- 
tors a report of the operations of the com- 
pany for the fiscal year, and from time to 
time reiKirt to them such matters as the in- 
terests of the company might require to be 
brought to their notice, and should "have 
the general powers and supervision and man- 
agement usually vested in the office of the 
president of a corporation." Broader powers 
in ' the management of the business could 
hardly have been bestowed. The president 
was not only anthorieed to act for the com- 
pany, but was to see that all other officers 
discharged their dntles. Counsel for plain- 
tlflf, however, contend that the power of the 
president was limited by two provisions 
of the by-laws. The first directs the treas- 
urer to "deposit all money and other valu- 
able effects in the name and to the credit of 
the company in such depositories as may be 
designated by the board of directors." This 
provision, however, only relates to the 
duties of the treasurer, who is expressly 
placed under the "general supervision and 
direction" of the president. It puts no limi- 
tation on the iwwers conferred on the presi- 
dent himself. The other provision Is that 
"all checks, drafts or orders for the payment 
shall be signed by the treasurer and counter- 
Migned by the president." This refers only 
to instruments for the payment of monfey 
by the corimration, not to the Indorsement 
or transfer of Instruments of which the 
corporation is not the maker, but the payee. 
It does not limit the power of the president 
aa to the latter. 

[2, 3] Under the by-laws, as noted above, 
the president was made the "chief execu- 
tive officer" and the general and active man- 
ager of the business of the company. He 
had control over every other officer of the 
company, and power to direct the disburse- 
ment of Its funds. This authority was ample 
to authorize him to accept money paid to 
the company, whether in cash or In the form 
of a check payable to the order of the com- 
pany. If he misappropriated funds paid In 
good faith to him as the representative of 
the company, the loss must be that of the 
'■orporation that authorized him to act, and 
held him out to the public as its chief of- 
tlcer and general agent. As the power was 
delegated to the president In the by-laws, 
•■here Is no question here, as to acquiescence, 
by the board of directors. No action upon 
the part of the directors was necessary. But 



even where his authority comes from the 
directors, the president of a bank may in- 
dorse bills or notes payable to it And It 
would seem that he has an implied power to 
Indorse and transfer its negotiable paper. 
1 Daniels, Neg. Inst. $ 3M. 

It should be remembered that in the pres- 
ent case, in so far as the record shows, the 
validity of the indorsement was not ques- 
tioned by the Federal Loan Society, the 
payee of the check. It is the drawer of the 
check who complains. It does not appear 
that the corporation lias denied that it was 
bound by the indorsement of its president, 
or that It has refused to carry out the con- 
tract for which the check constituted the 
consideration. What the transaction was, 
is not very clear, but apparently it was a 
purchase of stock. Plaintiff testified that he 
had not received the stock, but did not say 
that the corporation had refnsed to issue It 
to him, nor did he say that he had made de- 
mand for it. Under the facts shown, we are 
clearly of opinion that payment of the chedt 
to the president of the company was payment 
to the corporation. 

The fifth and sixth assignments of error 
are sustained. The Judgment la reversed, 
and is here entered for defendant. 

'^^'^^ (267 Pa. 17) 

O'MALLBY et al. v. PUBMC LEDGER GO. 

(Supreme Court of Pennsylvania. March 5, 
1917.) 

1. Municipal Corporations «=»70e(4)— Evi- 
dence OF Ownership— Injcbiks on Stbxet. 

In an action for personal injuries wbea 
struck by a motor truck alleged to be the prop- 
erty of defendant company, where it appeared 
that defendant's name was painted upon the 
car containing bundles of newspapers, testimony 
of a policeman that shortly before the accideDt 
be saw a car of such description delivering bun- 
dles of newspapers, and knew it because he had 
often seen it in the neiKhborhood deliverins 
newspapers, and that in the particular case his 
attention had been attracted to the driver's hur- 
ry in tossing papers from the car, was admissi- 
ble. 

[Ed. Note.— For other cases, see Uanidpal 
OorporationB, Cent. Dig. f ISlS.] 

2. Appkai, and Exkob «=3060— Jitbt «s>149 
—Question fob Jubt— Withdrawal of Jd- 

BOB. 

In such action, where plaintiff husband tes- 
tified as to conversation on day "when we 
were awarded the verdict" in former trial, where 
there was no effort to lead him to the objection- 
able remark, and where the jury were instructed 
to disregard it, the refusal of a continuance was 
within trial court's discretion. 

[Ed. Note. — For other cases, see Appeal and 
Error, Cent Dig. {{ 3845^848; Jury. Cent 
Dig. il 635-637.r 

8. Municipal Cobpobations <8=»7(K5<(J)— Use 

OF Stbeet— Personal Isjubt— Question 

fob Jury. 

In action for personal injury when struck by 

a motor truck, alleged to belong to defendant 

newspaper oompnny, held, on the evidence, that 

the ownership of the car and its operation Id 

the company's service was for the jury. 

[Ed. Note. — For other cnsos, see Municipal 
Corporations, Cent Dig. | ir.lS.] 



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O'MALLET V. PUBLIC liEDOER CO. 



95 



Appeal from Court of Common Pleas, Phil- 
adelphia County. 

Trespass for damages for personal Injury 
by Catharine O'Malley and John O'Malley 
against the Public Ledger Company. Ver- 
dict for plaintiff John O'Malley for $750, and 
for Catharine O'Malley for $3,000, reduced 
by the court to $500 and $2,000, respective- 
ly, Ttith Judgment thereon, and defendant 
appeals. Aflftrmed. 

Argued before MESTREZAT, POTTER, 
STEWART, MOSCHZISKER, and FRA- 
ZER, JJ. 

Robert P. Shlck and Wlnfleld W. Craw- 
ford, both of Philadelphia, for appellant 
Bertram D. Rearlck, of Philadelphia, for ap- 
pellees. 

MOSCHZISKER, J. John O'Malley and 
Catharine, his wife, sued to recover for per- 
sonal injuries to the latter; verdicts were 
rendered in their favor, uiwn which judg- 
ments were entered ; the defendant has ap- 
pealed. 

On January 8, 1915, between 6 and 5:30 a. 
m., Mrs. O'Malley was struck by a south- 
ward-hound automobile while crossing Twen- 
tietii street, in the city of Philadelphia, at 
the south side of McClellan street, or about 
150 feet from Moore street, the next thor- 
oughfare to the north. The testimony relied 
uiKjn by the plaintiffs, when viewed in the 
light most favorable to them, is sufflcient to 
sustain the following material findings: 
Just before leaving the sidewalk, Mrs. O'Mal- 
ley looked up and down Twentieth street 
and, seeing no vehicles approaching from ei- 
ther direction, she started slowly to cross 
eastward; in the center of that thoroughfare 
there Is a single car track, and. Just before 
she reached the first rail of this track, she 
was struck by the automobile, which had 
turned southward into Twentieth street from 
Moore street; the machine was being driv- 
en at from 40 to 50 miles an hour, and came 
suddenly upon Mrs. O'Malley, without warn- 
ing of any kind ; she was knocked down, and 
subsequently, as a result of the accident, 
suffered a miscarriage and other injurious 
results; finally, the motor in question was 
owned by the Public Ledger Company and, 
at the time of the injury to Mrs. O'Malley, 
It was being oi^erated in the defendant's 
service. 

Thwe are numerous assignments of er- 
ror; but only a few of them require serious 
consideration. To begin with, we have look- 
ed at the medical testimony with care, and 
feel that It Is sufllcient to connect Mrs. 
O'Malley's impaired physical condition with 
the accident, and to Justify the conclusion 
that her Injuries followed as a result thereof. 

[1] We see no error in the admission of 
the testimony of the policeman, Jordan. He 
recalled the date of the occurrence under 
Investigation ; and the fact that his memory 
In this respect was aided by the drcumstanoe 



that be had held a conversation with anoth- 
er ofllcer concerning the accident, right aft- 
er it happened, would not militate against 
the admissloQ of his testimony. It may be 
well to note, however, that the details of 
this conversation were not allowed In evi- 
dence. Other witnesses who saw the acci- 
dent had already testified that the car which 
Injured Mrs. O'Malley was a small machine 
with the name of the Public Ledger painted 
thereon, containing bundles of newspapers. 
The policeman was permitted to state that, 
very shortly after the time fixed by the for- 
mer witnesses, he saw an automobile of like 
description delivering bundles of newspapers 
about 4% squares from the place of the ac- 
cident; Uiat he knew the car, having seen 
it in the neighborhood morning after morn- 
ing, on a like errand ; and that, on this par- 
ticular occasion, the driver attracted atten- 
tion by his seeming hurry, when he tossed 
out papers upon the comer where the wit- 
ness was standing, without stopping his ma- 
chine. Although this testimony, by itself, 
would have but little weight, yet, in connec- 
tion with other evidence in the case, It was 
draimstantlally relevant to Identify the au- 
tomobile which caused the damage as a ve- 
hicle l)elonging to and, at the time, In the 
service of the defendant Bowling v. Rob- 
erts, 235 Pa. 89, 83 Atl. 600; Hershinger v. 
Penna. R. R. Co., 25 Pa. Super. Ct 147. 

[2] While the trial judge might have with- 
drawn a juror because of the unfortunate 
remark made by Mr. O'Malley when upon 
the stand, to the effect that he had a con- 
versation with another man <mi the day 
"when we were awarded the verdict" (evi- 
dently referring to the verdict In a former 
trial of the same cause), yet we cannot say 
the refusal so to do constitutes reversible 
error. The trial had been on for three days ; 
there was no attempt on the part of coun- 
sel for the plaintiff to obtain an unfair ad- 
vantage by leading on the witness to the oI>- 
jectionable remark. On the contrary. It 
seems to have slipped out without any pre- 
meditated purpose, and, when this occurred, 
the judge at once warned the Jurors entirely 
to disregard the Incident; moreover, at the 
end of his charge, he repeated these Instruc- 
tions. In conclusion, we do not conceive it 
at all probable the remark 4n question had 
any effect prejudicial to the defendant; for 
if the Jurors understood from it that there 
had been a former finding In favor of the 
plaintiffs, it must be assumed they likewise 
realized that this verdict had been set aside 
by the court 

[3] No part of the charge is assigned for 
error, and a careful reading thereof shows 
that all the testimony was properly and cor- 
rectly submitted to the jurors, not only to 
find the relevant facts, but to draw their 
own Inferences therefrom In deterniintng the 
issues Involved. Of course, there was testi- 
mony produced by the defendant militating 
against the evidence depended uiM>n by the 



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101 ATLANTIC BEPOKTER 



(Pa. 



plaintiffs to show the former's ownership of 
the car and that the machine was being op- 
erated in its service at the time of the ac- 
cident ; but this testimony was mostly oral, 
and hence it was for the Jnry to pass upon. 
The assignments of error are all OTermled, 
and the Judgments aflSrmed. 



(257 Pa. 25) 

SCOTT V. AMERICAN EXPRESS CO. 

(Supreme Court of Pennsylvania. March 5, 
1917.) 

1. Witnesses e^STDCT)— Impeachment— Con- 

TSADICTOBT STATEMENTS. 

The credibility of a witness may be im- 
peached by his previous statements inconsistent 
with or contradictory to his testimony, including 
statements made in pleadings, where the omis- 
sion in the inconsistent statement occurred when 
the occasion called upon him for disclosure. 

[Ed. Note.— For other cases, see Witnesses, 
Cent. Dig. § 1251.] 

2. Wn-NESSES <S=»387— iMPEACnjIENT— Incoii- 

SI8TENT STATKMKNT8— Sworn Pleadinos. 
In an action airainst an express company for 
injury to an employ6 from the defective condi- 
tion of the brakes and steering apparntns of its 
motor truck, defended on ground thnt the acci- 
dent was caused by the intoxication of the driv- 
er, a fellow servant, where defendant's super- 
intendent testified that be visite<l the driver aft- 
er the accident, and he then showed si^s of 
having been drinking, his cross-examination as 
to whether he had not sworn to answers in the 
driver's action in another court arising out of 
same accident which said nothing about the 
driver's intoxication, was erroneous, where un- 
der the rules of thnt court the facts constituting 
the defense were not re<iuired to be stated in the 
answer. 

[Ed. Note.— For other cases, see Witnesses, 
Cent. Dig. §| 1228-12:{2.] 

3. Appeal and Rrbor «=3232(2)— Admissibii/- 
ITT OF Evidence— Objection. 

Where the record was not clear as to the 
ground upon which objection to the cross-exami- 
nation of a witness was based, the rule that on 
appeal a party complaining of the admission of 
evidence in the court below will be confined to 
the specific objection there made, was not appli- 
cable. 

[Ed. Note. — For other cases, see Appeal and 
Knot, Cent. Dig. {§ 1430, 1431.] 

4. Appeal and Errob €=>1004(1)— Amount oi" 
Verdict— Review. 

The amount of a verdict will be reviewed by 
the Supreme Court under authority of Act May 
20, 1891 (P. L. lOl), only when so grossly ex- 
cessive as to shock the sense of justice, and to 
show a clear abuse of the lower court's discre- 
tion in refusing to set it aside. 

[Ed. Note.— For other cases, see Appeal and 
Error, Cent Dig. §| 38(50-3876, 3048.] 

5. Death 9=990(3) — Excessive Damages. 

Verdicts of $1,717 awarded the father of in- 
jured minor employ^, and $12,540 awarded the 
estate of the minor, were not excessive, where 
be suffered a compound fracture of both legs 
above the knees, lacerations and bruises of the 
scalp, arms and back, underwent two operations, 
and lived four months after the accident. 

[Ed. Note. — For other cases, see Death, (Tent. 
Dig. §S 125, 126, 128.7 

Appeal from Court of Common Pleas, Phil- 
adelphia County. 
Trespass for damages lor personal In- 



juries by Elizabeth Soott, administratrix of 
the estate of Joseph P. Scott, deceased, and 
Elizabeth Scott, administratrix of the estate 
of Edward A. Scott, deceased, against the 
American Express Omjpany. Verdict for 
plaintiff as administratrix of the estate of 
Edward A. Scott for |1,717, and as adminis- 
tratrix of her deceased son, Joseph P. Soott, 
for $12,540, and Judgment thereon, motion 
for new trial denied, and defendant appeals. 
Reversed with a new venire. 

PlaintiiTs injuries consisted of oomponnd 
fractures of both legs alwve the knees, lacera- 
tions and bmises of the scalp, arms and back. 
Two unsuccessful operations were performed 
to secure unions of the fractures of the legs. 
Plaintiff suffered extreme pain except when 
under the Influence of opiates, and died as 
a result of such Injuries over four months 
after the accident. 

Argued before MESTR13ZAT, POTTER, 
STEWART, MOSOHZISKER, and FRAZBR, 
JJ. 

John Lewis Evans, John G. Johns<», and 
Thomas De Witt Cuyler, all of PhiladelplUa, 
for appellant. Francis M. McAdams and 
William H. Wilson, both of Philadelphia, for 
appellee. 

FRAZER, J. This action was brought by 
Joseph P. Scott, a minor, and Edward A. 
Scott, liis father, to recover damages for 
injuries sustained by the former, as a result 
of alleged negligence of defendant in per- 
mitting the brakes and steering apparatus on 
a motor truck, on which the minor was riding 
in the discharge of his duties, to become out 
of order and remain in a state of disrepair, 
which resulted in the macliine l>ecoming un- 
manageable In descending a street with some 
grade, and striking a telephone pole located 
along tlie highway. Joseph P. Scott died as 
a result of his injuries, and, upon the subse- 
quent death of his father, Eiizalieth Scott 
prosecuted the action to Judgment as admin- 
istratrix of their estates. 

The deceased minor was employed b; de- 
fendant to ride on its trucks and assist 
drivers in handling and guarding express 
packages. The defense was that the accident 
was caused by the negligence of the driver, 
who, according to the evidence, had been 
drinking and was in an intoxicated condi- 
tion at the time; which fact was known to 
Young Scott. The trial Judge submitted the 
case to the Jury, in a charge to which no com- 
plaint is made, and there was a verdict on 
behalf of the father's estate for $1,717, and 
on behalf of the estate of the minor for $12,- 
540. A motion for a new trial was dismissed 
by the court below, and defendant appealed. 

We deem it unnecessary to refer in detail 
to the circumstances of the accident, since 
the only questions argued before this court 
were as to the correctness of the action of 
the court In admitting certain evidence to 



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SCOTT V. AMERICAN EXPRESS CO. 



97 



Impeach the credibility of one of defendant's 
vritnesses, and whether or not the verdict on 
behalf of the minor's estate was ezceeslve. 

[1, 2] Superintendent Juller, of defendant 
company, testified to visiting the hospital 
within two hours after the aeddent, and. In 
reply to a question by his own attorney, 
stated he saw Carey, the driver, at that time 
and his breath smelled as If he had been 
drinking. On cross-examination by plaintlfF's 
counsel he was asked whether he had not 
sworn to and signed answers in actions by 
the driver and another person against de- 
fendant In the municipal court involving the 
same accident. Upon objection being made, 
coonsel for plaintiff stated he wished to test 
the credibility of the witness, whereupon the 
objection was overmled. The witness then 
admitted he had signed and sworn to the 
papers, and that they contained no statement 
to the effect that the driver had been drink- 
ing, or was Intoxicated. Defendant contends 
this testimony was Improperly admitted and 
was extremely prejudicial to it, owing to the 
fact that the Jury as laymen were likely to 
place undue weight on the omisslMi, whereas, 
In fact, such omission was unimportant, and 
the statement unnecessary as a part of the 
pleadings in the case. 

The rule is well settled that the credibility 
of a witness may be impeached by showing 
previously made statements inconsistent with, 
or contradictory to, his present testimony, 
and this includes inconsistent statements 
made in pleadings in the causes. Henry's 
Penna. Trial Evidence, | 65, and eases dted ; 
Floyd v. Kulp Lumber Co., 222 Pa. 257, 71 
AtL 13; 2 Wlgmore on Evidence, § 1066. To 
constltnte grounds for discrediting a witness, 
however, the omission must be made at a 
time when the occasion was such that he was 
called upon to make the disclosure. It is 
only where the witness on a previous occa- 
sion was under some duty to speak the whole 
truth concerning the matter about which he 
now testiSes that Impeachment becomes per- 
missible by showing an omission to state cer- 
tain material facts included in bis testimony. 
Royal Insurance Oo. r. Beatty, 119 Pa. 6, 12 
AtL 607, 4 Am. St Rep. 622; Huston's Es- 
tate, 167 Pa. 217, 31 AtL 553. ConsequenUy, 
in considering the CMnpetency of the evidence 
offered for the purpose of Impeadiing the 
witness, the scope of the answers filed in the 
municipal court of Philadelphia should be 
considered. Eule 7 of that court provides 
that an answer shall contain an admission or 
denial of each fact averred In the statement 
of claim, and that all facts not denied by de- 
fendant, or of which he does not aver him- 
self to be Ignorant, shall be deemed to be 
admitted. This rule does not require defend- 
ant to state the facts constituting his defense, 
but merely to either admit or deny those 
averred In the statement of claim. We have 
no knowledge of the contents of the state- 
ments of claim referred to, as they are not 
printed in either i>aper book, and nowhere In 
101A--7 



the record does it appear that the question 
of intoxication was raised in the aeclaratlon 
in either case. The answers In questiona 
admit the happening of the accident, but 
deny that either the brakes or steering ap- 
paratus were defective or out or order, or 
that the accident was the consequence of the 
failure of these parts of the truck to properly 
work, or of anything else for which defendant 
was responsible. No necessity appears for 
the assertion or denial of the charge that the 
driver had been drinking previous to the hap- 
pening of the accident 

The formal pleadings in a case are drawn 
by attorneys in technical language, and con- 
tain only such averments of facts as in the 
opinion of the attorneys are material to make 
out a prima fade case. They, therefore, do 
not purport to be a complete history or re- 
dtal of all the facts of the transaction, and 
no unfavorable Inference should be drawn 
from the failure to Include details which are 
the natural and usual parts of the proof, 
rather than of the pleadings in the case. For 
these reasons it was error to permit the use 
of the answers, filed in the municipal court 
cases. In attacking the credibility of the wit- 
ness. 

[3] Plaintiff claims the evidence was ob- 
jected to solely on the ground that It should 
have been introduced as a part of plalntifCs 
case; that this objection conceded its rel- 
evancy, and, under the familiar rule that a 
party complaining on appeal of the admission 
of evidence, in the court below, will be con- 
fined to the specific objection there made. 
Morgan v. Gamble, 230 Pa. 165, 79 Atl. 410 ; 
Roebllng's Sons Co. v. American Amusement 
& Construction Co., 231 Pa. 261, 80 Atl. 647. 
An examination of the record falls to con- 
vince us that this rule should be applied in 
the present case. When the papers were 
handed to the witness Juller, defendant's 
counsel made the following objection: "I 
object to any evidence in regard to these 
papers, unless it is introduced as part of 
plaintiff's case." The trial Judge then said: 
"It goes to the credibility of the witness, I 
understand. Is that the purpose?" Plain- 
tiff's counsel repUed: "That la the purpose 
entirely." The court thereupon overruled 
the objection, but no exception was taken to 
the ruling at this point After a preliminary 
examination of the witness the record shows 
the following: 

"Q. In those affidavit* you didn't say a word, 
did you, as to Carey [the driver] being drunk or 
as to having a smell of intoxicating liguor on 
him? (Objected to by counsel for defendant 
Objection overruled; exception to defendant) 
A. No." 

While the objection first made relates to the 
order of the admission of the evidence, the 
comment of the court and counsel for plain- 
tiff clearly indicate the evidence was offered 
for the sole purpose of testing the credibility 
of the witness, and the general objection fol- 
lowing that, upon which the exception was 



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101 ATIiANTIC REPORTEIB 



(Pa. 



founded, may well have been based npon that 
ground. It is sufficient to say that the record 
is not clear or specific on this point, and in 
that case the rule Invoked by appellee will 
not be applied. Kutin v. Ligonier Valley R. 
R. Co., 255 Fa. 445, 100 Atl. 142. It follows 
that the first assignment of error must be 
sustained. 

[4, 5] The other question involved is 
whether or not the damages awarded are 
excessive, or whether the court below abused 
its discretion in refusing to cut down the 
verdict, or allow a new trial. Since the pas- 
sage of Act May 20, 1891 (P. L. 101), giving 
this court power to set aside verdicts deemed 
to be excessive, we have repeatedly said that 
the question of the amount of the verdict 
would be reviewed only in cases where so 
grossly excessive as to shock our sense of 
Justice, and where the impropriety of allow- 
ing a verdict to stand is so manifest as to 
show a clear abuse of discretion on the part 
of the court below in refusing to set it aside. 
Quigley V. Penna. E. R. Co., 210 Pa. 162, 59 
AtL 958; Reed v. Pittsburg, Carnegie & 
Western R. R., 210 Pa. 211, 69 Atl. 1067 ; Dun- 
lap V. Pittsburgh, Harmony, Butler & New 
Castle Ry. Co., 247 Pa. 230, 93 AtL 276. In 
view of the nature of the injury, the pain 
and suffering endured, and all the circum- 
stances of the case, it cannot be said the ver- 
dict in this case is so excessive as to warrant 
our interference upon that ground. 

The judgment is reversed with a new ve- 
nire. 

.(»7 Pa. 1) 

THOENEBE et al v. MOSBY et al. 

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

Nuisance $=33(9)— Dance Haix— Chabactkr 

OF NEIGIIBOanoOD. 
A bill in equity to enjoin dancing in a hall 
in a neighborhood not strictly residential was 
properly dismissed, where it appeared that the 
colored persons attending the dances conducted 
themselves in en orderly manner, and made no 
more noise than was usual on such occasions, 
though after the dancing, which usually closed 
at 12 o'clock, there was considerable noise in 
the street on departing, as that coald be satis- 
factorily controlled by the police. 

[Ed. Note.— For other cases, see Nuisance, 
Cent Dig. {§ 20-22.] 

Appeal from Court of Common Pleas, Phil- 
adelphia County. 

Bill in equity for an injunction by W. Her- 
man Tboenebe and others against Jerome 
Mosby and John Foreman, trading as Mosby 
& Foreman, and Joseph M. Thomas, trading 
as Charles J. Thomas Sons. From a decree 
dismissing the bill, plalntifts appeal. Af- 
firmed. 

Bill in equity for an Injunction. The fact.s 
appear In the following opinion by Bregy, 
P. J., in the court of common pleas: 

This is a bill alleging that the dcfentlants 
are maintaininir a nuisance at the hall, 1512 to 
1620 North Thirteenth street 



(1) The plaintiffs reside on TWrteenth street 
between Jefferson and Oxford streets. 

(2) The defendants Mosby and Foreman are 
lessees of a ball on Thirteenth street between 
Jefferson and Oxford streets, where they have a 
dancing school. The defendant Thomas is the 
owner of the building. 

(3) On Monday, Thursday, and Saturday 
nights Mosby and Foreman, who rent the hall 
on the third floor of the stable building kno*n 
as Thomas' stable, have dancing parties that 
begin at 9 o'clock and CMitinue till 12 o'clock. 
On Wednesday night they teach dancing from 
8 -.30 o'clock to 10 :45 o'clock. On Tuesday and 
Friday nights the hall is not occupied by the 
dancing school in any way, but the lessees sublet 
it (with the consent of the owner, Mr. Thomas) 
for concerts, bells, and so on as they can ob- 
tain a tenant During the 15 months the de- 
fendants have occnpiea the hall they have rent- 
ed It for the above purposes 14 times. 

(4) On Monday, Thursday, and Saturday 
nights, the music for the dancing parties begins 
at 9 o'clock and continues till 11 :50, when It 
stops and the patrons leave — the hall being emp- 
tied by 12 o'clock. On Wednesday night, the 
teaching night, the school begins at 8 :30 and 
closes at 10 :45. On the occasions that the hall 
has been rented out for different entertainments, 
they have occupied the ball till 2 o'clock a. m. 

(5) The music at the dancing parties consists 
of five pieces, viz. : PianOtVioIin, comet, tron>- 
boue, and trap drum. On Wednesday nlshts the 
music is by the piano only. The same five pieces 
play at the balls or entertainments when the 
place is rented. 

(G) When the music continues after 11 o'clock 
it is muffled to subdue its noise, and so con- 
tinues till the audience leaves. 

(7) The hall here alluded to is on the third 
floor of a large public stable building that has 
been so occupieil for over 40 years. During 
the many years of the existence of this stable 
it has been occupied as such, both for the sta- 
bling of private teams and the hiring of horses 
and carriages to the public. The hall on the 
third floor has for over 30 years been rented out 
as a dancing school, for parties, concerts, and 
for different kinds of public meetings, political 
and otherwise. 

(8) The neighborhood is no longer a strictly 
residential one. This one square on Thirteenth 
street between Jefferson and Oxford has in ad- 
dition to the large stable already mentioned quite 
a number of business places. From the north 
side of Jefferson street to the south side of Ox- 
ford street, there is on one side a large furni- 
ture manufactory, a barber shop, a store, a tailor 
shop, a china decoroting store, and an empty 
store at the comer; on the other side there is 
a saloon, tailor shop, a wall paper establishment, 
a butcher shop, and other stores. On the south 
side of Jefferson street at Thirteenth street 
there is a grocery store at one comer and a 
drug store at the other; and on the north side 
of Oxford, a grocery store at one corner and an 
insurance office at the other. 

(9) The persons attending the dances and en- 
tertainments heretofore spoken of have behaved 
themselves in a proper way in the hall, and no 
misbehavior there luts been proved or, in fact, 
alle);ed against them. 

(10) The patrons of the hall are colored peo- 
ple. 

(11) When the audience disperses there is on 
the street the noises of these persons talking to 
each other, sayinR good-bye and the calling to 
a friend to wait, etc. 

(12) At the dancing parties the attendance 
is from 80 to 100 : at the times the hall is rent- 
ed Romotimes there are as many as 400 there. 

(1.'?) The occupants of four houses on Thir- 
teenth street complain that they are annoyed 
by the music in the hall and by the noise in 



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COMMONWEALTH ▼. SOHWAUTZ 



the street when the patrons leave. Teiry many 
more !»7 they are not annoyed and have no com- 
plaint to make. 

(14) Within the ]aat few years the immediate 
neighborhood, but not this street, has become 
tenanted by a large number of colored people. 

Conclusions of Law. 

The plaintilTs seek to have the defendants close 
the hall at about 10 o'clock, complaining that 
the continuation of the music after that hour 
and the dispersal of the audience and its at- 
tendant noise are a nuisance that annoys them. 
The complaint raises the question as to what 
hour a dancing school, party, concert, or ball 
should close its doors. The answer must depend 
upon the neighborhood, and the facts of each 
pariicnlar case, as Vasre can be no general rule 
on the subject. Considering the fact that I have 
found this not to be a strictly residential neigh- 
borliood, but one that has changed into a partly 
business one, I do not consider it unreasonaole 
to keep open the dancing school till 12 o'clock. 
The hours of entertainment are not what they 
used to be. Everything is later, and, as times 
change, we must change oar habits with them. 
Everything has been done by the proprietors of 
the school to lessen the sound of the music 
after 11 o'clock, and I see no reason to interfere 
with the dancing school. 

As to the parties or balls that are held on 
other eveningB, while not very many in number, 
another question presents itself. Considering 
the neighborhood and the admitted fact that on 
an average of once a month an entertainment of 
some kind is given which continues till 2 o'clock 
in the morning, is it proper to issue an injunc- 
tion? This question is not without difficulty. 
That it is an annoyance to the plaintiBEs to have 
their sleep brokra by these gatherings is un- 
doubtedly true. Those who live in cities must 
take what goes with it, however. Those who 
live in business neighborhoods cannot expect or 
demand the quiet of the suburbs. 

As the neighborhood changes they must take 
the consequences. If it changes for the worse 
and personal discomfort follows, that must be 
Kiibmitted to. The running of street cars and 
the noiKe of the automobiles all night long are 
amonf? the few annoyances that all sections of 
the city are now subjected to, but would some 
years ago have been considered a nuisance. Ap- 
plying the principle that an injunction should 
not issue in doubtful cases, I would not issue 
one here. 

There remains only the other question, viz.: 
Can the bill prevail because of the noise in the 
street after the entertainments are dismissed? 
.\s I have found that the defendants' entertain- 
ments bring together an assemblage of respecta- 
ble, well-behaved people, and that the noises in 
the street are not of a kind that are induced 
by or encouraged by the defendants' parties, I 
see no reason for a court of equity to act. This 
is a matter for the police to see to. We would 
not hesitate to enjoin the gathering of disorderly, 
dissolute, drunken, or depraved persons, whose 
coming together must necessarily annoy the resi- 
dents of nearby houses, but the saying of part- 
ing words by respectable people and the calling 
to friends as they leave the hall is a matter for 
the police to regulate, rather than for a court 
to dispose of by injunction. 

The court dismissed tbe bllL Plaintiffs ap- 
[)ealed. Error assigned, Inter alia, was the 
decree of the court. 

Argued before BROWN, O. J., and STEW- 
AUT, MOSCHZISKEB, FRAZER, and WAL- 
LING, JJ. 



Ormond Rambo and Frank H. Warner, 
both of Philadelphia, for appellants. J. H. 
Shoemaker, of Philadelphia, for ai^)ellees. 

PER CURIAM. This bill was filed to en- 
join dancing and music In a certain hall In 
the dty of Philadelphia. That It was prop- 
erly dismissed appears by the facts found 
and legal conclusions reached by the learned 
president Judge of the court below, and, on 
them, the decree Is afSrmed at the costs of 
appellants. 

(257 Pa. IBW 
COMMaNWHAI/TH ex reL BROWN, Atty. 
Gen., V. SCHWARTZ. 

(Supreme Court of Pennsylvania. March 12, 
1917.) 

Quo WaKBAWTO «=5>60-Jin>OM«HT 0» OUSTKB 
— JUSTICK or THE PKAOE. 

A judgment of ouster in qno warranto pro- 
ceedings to test the right of a justice of the 
peace to hold office in a borough was properly 
entered, where it appeared that respondent had 
been defeated at an election under which he 
claimed his right to the office. 

[Ed. Note^— For other cases, see Quo War- 
ranto. Cent. Dig. { 71.] 

Appeal from Court of Common Pleas, Lack- 
awanna County. 

Quo warranto by the Commonwealth, on 
ralation of Francis Shunk Brawn, Attorney 
General, against Frank Berger and Phillip 
Schwartz, to test the right of the last defend- 
ant to act as Justice of the peace of the 
borough of Old Forge. Judgment for defend- 
ant Berger, and writ dismissed as to him, 
and Judgment of ouster against defendant 
Schwartz, and he appeals. Affirmed. 

It appears by the record that an election to 
flu vacancies In the office of Justice of the 
peace of Old Forge borough was held in 
November, 1915, at which time the following 
candidates received the number of votes set 
out after their names: E. J. Garvin, 819 
votes ; Frank Berger, 808 votes ; Fred Roon- 
ey, 806 votes; J. J. Chelland, C91 votes; 
Phillip Schwartz, 641 votes. It appeared also 
that commissions were thereafter issued to 
Frank Berger and Phillip Schwartz as Jus- 
tices of the peace. When the case came to 
trial it was agreed that it should be heard by 
the court without a Jury, and after such hear- 
ing the court found the following facts and 
conclusions of law: 

Pacts. 

(1) The territory constituting the boroagh 
of Old Forge, before the incorporation of (he 
borough, had two justices of the peace. 

(2) The borough was incorporated on May 2, 
1899. 

(3) An attempt was made at the February 
election of 1899 to secure a vote for an increase 
of two justices in the township of Old Forge. 
Notices were posted as required by the act of 
assembly, and there was a vote actually taken 
on the question of increase. There was no re- 
turn of the vote made to the office of the clerk 



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(I'a. 



of the court, nor the executive department of 
Harrisburg. Nor ia there any evidence what- 
ever in this case as to whether the vote was in 
favor or against an increase. The election of 
1899 has no place in the consideration of the 
present controversy. 

(4) Another election was held in the borouKb 
of Old Forge in 1905, at which the question of 
increase in the number of justices was voted 
upon. The public notices posted before the 
election specified an increase of three justices, 
but the return of the vote on file in the clerk's 
ofllce shows an increase of one only. Counsel 
have agreed that the tabulation prepared by 
the clerk is a correct copy of the returns in his 
office. The tabulation is as follows: 

For Increase. Against Increase. 
23 64 



Ist Ward . 
2d Ward , 
3d Ward . 
4th Ward 
oth Ward 
6th Ward . 



- 2 
.... 76 5 For one Justice 
.... 9 Increase one 


This shows that the total vote in the borongh 
against the increase was 71; there were 23 votes 
for increase without designation of any number, 
and there were S4 votes in favor of an increase 
of one. 

Conclusions of Law. 

1. Old Forge township previous to its incor- 
poration was entitled to two justices of the 
peace. 

Counsel for all parties conceded this propo- 
sition. 

2. There was not, in law, an increase in the 
number of justices in Old Forge township by 
the election of 1899. There has been some mis- 
apprehension as to the election of 1S99. Coun- 
sel have tried this case on the supposition that 
the election was a borough election, although, 
as already stated, there was no borough until 
the May following. However, this is of no mo- 
ment. The election was undoubtedly a town- 
ship election, and a township, as such, had the 
right to vote an increase in die number of jus- 
tices. The same misapprehension is to be no- 
ticed in the opinion of the deputy attorney gen- 
eral found in the case of the Old Forge Justices, 
30 Pa. C. C. 164, who supposed the election of 
1899 was a borough election, and, basing his 
opinion on an aOidavit, he states that there was 
an increase of one justice at that election in Old 
Forge in 1899. We have no doubt that if the 
evidence before us was before the Deputy Attor- 
ney General he would not have advised the Gov- 
ernor in 1904 to make an appointment of one 
person to fill the vacancy untU May, 1906. 

3. The number of justices of the peace in Old 
Forge borough was lawfully increased by one 
at the election in 1005. This proposition is so 
plain that it needs no discussion. 

4. Old Forge borough, prior to the election of 
1005, was entitled to two justices of the peace. 
After said election it is entitled to three. 

6. Two vacancies for the office of justice of 
the peace were to be filled at the November elec- 
tion, 1915. E. J. Garvin and Frank Berger 
having received the majority of votes in the bor- 
ongh at said election for said office, are enti- 
tled thereto, having been lawfully elected. We 
note in this connection, that the right of E. J. 
Garvin to office is not in question in this case. 

6. The respondent, Phillip Schwartz, failed 
of election in 1915, and is therefore not entitled 
to the office of justice of the peace of Old Forge 
borough. 

Subsequently exceptions to tbe findings of 
fact and conclusions of law .were dismissed, 
and Judgment was entered In favor of the de- 
fendant Frank Berger, and the writ dismissed 



as to Mm, and as to the defendant Phillip 
Schwartz Judgment was entered in favor of 
the relator, that the said defendant be ousted 
and altogether excluded from tbe office of 
Justice of the peace of Old Forge borough. 
Phillip Schwartz, defendant, appealed. 

Argued before BROWN, C. J., and MES- 
TREZAT, POTTER, FRAZER, and WAL- 
LING, JJ. 

A. A. Vosburg and John Memolo, both of 
Scranton, for appellant John H. Bonner, of 
Scrauton, for appellee. 

PER CURIAM. This case was tried with- 
out a Jury, and the Judgment of ouster 
against appellant Is affirmed on the facts 
found and the l^al conclusions readied by 
the learned trial Judge. 

"■ (JBI Pa. 48) 

MAGUIRB T. PREFERRED REALTY CO. 

(Supreme Court of Pennsylvania. March 6, 
1917.) 

1. ACKROWUBDOHXRT 9=35— DeED»— NECKSBI- 

TY AS Betwken Pabtikb. 
A deed executed and delivered is sufficient to 
pass title between the parties, though not ac- 
knowledged. 

[Ed. Note.— For other cases, see Acknowledg- 
ment, Cent. Dig. K 22-42, 44.] 

2. Pleadino «=>8(15)— Fraud— Au-egations. 

Where a declaration in ejectment contains 
no allegations of fact showing fraud, an amend- 
ment must, in the same degree of certainty, de- 
tail the circumstances pointing to that conclu- 
sion. 

[Ed. Note.— For other cases, see Pleading; 
Cent Dig. | 2S^.] 

8. E.rECTMKNT «=>75— Statembnt o» Claim— 

Demurkeb. 
A statement of claim in ejectment averred 
that plaintiff conveyed tbe realty to defendant 
in consideration of its agreement to give plain- 
tiff certain shares of stock, and that after the 
conveyance defendant bad refused to deliver any 
stock to plaintiff so that the consideration of the 
conveyance bad failed, but did not allege the facts 
indicating fraud in securing the deed. Htld that 
ejectment was not the proper remedy, so that a 
demurrer to the statement of claim was properly 
sustained without prejudice to plaintiff's right 
to assert 'the claim In some other proceeding. 

[Ed. Note.— For other cases, see Ejectment, 
Cent Dig. { 204.] 

Appeal from Court of Couunon Pleas, Phil- 
adelphia County. 

Ejectment by Mary Magulre against the 
Preferred Realty Company for recovery of 
land situate In the dty of Philadelphia. De- 
murrer to plaintiff's statement of claim sus- 
tained. Judgment for defendant, and plain- 
tiff appeals. Affirmed. 

Argued before BROWN, O. J., and POT- 
TER, MOSCHZISKER, FRAZER, and WAL- 
LING, JJ. 

Alex. Simpson, . Jr., of Philadelphia, for 
appellant Graham C. Woodward and Sam- 
uel F. Wheeler, both of Philadelphia, for ap- 
pellee. 



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MAGUIRE V. PREFERRED REALTY CO. 



101 



MOSCHZISKEB, J. This action was in 
ejectment; a declaration and abstract of 
title were filed, to which a demurrer was 
altered; the judgment favored defendant, 
and pladntlff has ai^>ealed. In the course 
of his opinion. Judge Ferguson, of the court 
below, states the material facts thus: 

"The plaintiff avers that she signed a deed 
conveTing the premises in qaestion to the de- 
fendant [corporation], but that she did not ac- 
knowledge the deed in the presence of the no- 
tary public who certified that she had done so. 
She also avers that the deed was signed in th<; 
presence and at the request of Samuel F. Wheel' 
er, 'who was her attorney,' and who the plain' 
tiS believed was the sole manager and counsel 
and owner of all the capital stock of the de- 
fendant corporation ; and that the consideration 
for the deed was a verbal agreement made by 
the defendant, through Wheeler, that all the de- 
fendant's corporate stock should be transferred 
and delivered to her as security for money due 
her for advances made to Wheeler and his wife 
and for money expended in connection with 
the sheriFs sale under which plaintiff obtained 
title. The declaration further sets out that the 
deed was recorded without plaintiff's knowledge 
or consent, and the defendant, through Wheeler, 
refused to surrender the stock [and that "the 
consideration for said conveyance wholly fail- 
ed"]." 

[1] After the foregoing review of the facts 
stated in the declaration demurred to, the 
opinion goes on to say: 

"It will be observed that the plaintiff fails 
to aver anything with relation to the delivery of 
the deed; in fact, a delivery is necessarily im- 
plied from the averment that there was a con- 
sideration which failed. The plaintiff nowhere 
alleges that she demanded a return of the deed. 
What she seeks is a delivery of the stock of the 
defendant corporation, to be held by her as se- 
curity. It is also to be noted that the plain- 
tiff does not aver that the defendant company, 
to whom she made the deedj held the stock or 
was in a position to deliver it as the considera- 
tion, but the stock is alleged to be owned by 
Wheeler, who refuses to deliver it A deed does 
not necessarily have to be acknowledged before 
a notary pubUc to make it a valid instrument 
between parties. Rigler v. Cloud, 14 Pa. 361; 
Cable V. Cable, 146 Pa. 451, 23 Aa 223. Exe- 
cntion and delivery are sufficient to pass the 
title, and there is no averment in the declara- 
tion from which it could be inferred that the 
deed was not delivered." 

Then, after citing several authorities, the 
court below determined that, on the face of 
the plaintiff's pleading, the suit was merely 
an effort to enforce "a verbal agreement, 
made by one not a party to the deed, that 
all the capital stock of the defendant com- 
pany should be transferred and delivered to 
the plaintiff as security," which "agreement 
cannot be enforced by an action in eject- 
ment." 

The plaintiff contends that the learned court 
below misconceived the real purpose of her 
suit, and that the very form of the action — 
ejectment — shows It was to recover the land 
and not to gain the consideration ; but, even 
looking at the case from that viewpoint, it is 
not at all apparent material error was com- 
mitted in Altering the Judgment under re- 
view. In ber first declaration, the plaintiff 
simply avened: 



"On January 17, 1916, plaintiff conveyed said 
premises to the Preferred Realty Company, the 
defendant, by deed of that date, recorded, etc. 
• • • Said conveyance was made in consider- 
ation of an agreement by defendant, through its 
president, to give plaintiff stock of defendant 
in payment therefor- but, since said convey- 
ance was made, defendant, through its president, 
has refused to give to plaintiff any of the stock 
of defendant • • • Wherefore the consider- 
ation for said conveyance has wholly failed," 
etc. 

Subsequently an "amended declaration and 
abstract of title" were filed, containing the 
averments already outlined, and the appel- 
lant contends that these new averments are 
sufficient to show such a case of fraud as 
entirely to avoid plaintUfs deed of convey- 
ance and leave the property in her as though 
that instrument had never been executed. 
If this were so, then it might be that the 
plaintiff could maintain ejectment; but, be- 
ing on demurrer, the Judgment must stand 
or fall up<m a review of the declaration as 
written, and not on the facts of the case as 
they are contended to be in appellant's argu- 
ment. 

[2] The original declaration contains no al- 
legations of fact indicating fraud, and the 
averments in the amendment, while, perhaps, 
suggesting the possiUUty of some fraudu- 
lent purpose on the part of Mr. Wheeler, 
when he secured the deed from the plaintiff, 
do not so charge in terms. "E^ud is never 
to be presumed." Addleman v. Manufac- 
turers' Light & Heat Co., 242 Pa. 587, 690, 
89 Atl. 674, 675. WhMi there is no particu- 
lar averment of a fraudulent purpose, but 
the circumstances detailed are depended up- 
on as showing such to be the case, then the 
facts relied upon must not only be fully and 
unequivocally avferred, but they must point 
with some degree of certainty to the conclu- 
sion contended for; and in such cases the 
intendments are taken most strongly against 
the pleader, for he is presumed to have stat- 
ed all the facts Involved, and to have done so 
as favorably to himself as his conscience 
will permit Baker v. Tustln, 245 Pa. 499, 
501, 91 Atl. 891; LltUe v. Thropp, 245 Pa. 
539, 644, 91 Aa 924. 

[3] Here, as already suggested, the facts 
detailed In plaintiff's declarations do not, 
with any degree of certainty, lead the mind 
to the conclusion that. If they should be 
proved, a Jury would be JusMfled In finding 
the deed, under which the defendant claims, 
to have been fraudulently obtained by it 
We say this, for the averments of the dec- 
laration are vague and inconclusive in many 
material respects. In the first place, it is 
not averred that Mr. Wheeler was plaintlfTs 
counsel or attorney at the time the deed was 
executed by her, or that he acted in such 
capacity in this' particular transacticAi ; next, 
there is no allegation that he was duly au- 
thorized or actually did act on behalf of the 
defendant company in making the alleged 
verbal agreement with the plaintiff; and, 
finally, the averment that Wheeler was the 



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101 ATLANTIC REPOETEE 



(Pa. 



owner of all the corporate stock of the de- 
fendant except a few shares, Is too Indef- 
inite to substitute him In all respects for the 
latter, there being no allegation that he was 
the sole owner. In possession of the stock, 
or In control of the corporation, at the time 
of the occurrences complained of. The fore- 
Koins are only a few of many Insufficiencies 
which. If necessary, might be pointed out; 
bat they are enough to show the inadequacy 
of the declaration. We feel, however, the 
plalntirr should be placed in such position 
that the present Judgment will not be taken 
as precluding her from properly asserting 
her alleged rights in some other action or 
proceeding where both the realty company 
and Mr. Wheeler are Included as defendants. 
The assignments of error are orerruled, 
and the Judgment is affirmed, without prej- 
udice, as above indicated. 



(257 Pa. 8) 

ALLEN T. SCHEIB et aL 

(Supreme C!ourt of Pennsylvania. March 6, 
1»17.) 

1. Easbmbwts «=»61— Use— Extent. 

An easement cannot lawfully be used for a 
purpose different from that for which it was 
dedicated. 

[Ed. Note.— For other cases, see Easements, 
Cent Dig. a 100-112.] 

2. Easements <8=»12(2)— Pkb— "Road"— "Pbi- 
VATE Road." 

Tile term "road," and especially "private 
road," is indicative of an easement rather than 
a fee. 

[Ed. Note.— For other cases, see Easements, 
Cent. Dig. U 36-38. 

For other definitions, see Words and Phrases, 
First and Second Series, Ro(^d ; Private Road.] 

3. Easements «=»C1(0)— Action fob Injunc- 
tion— Burden OF Proof. 

The burden was upon plaintiff to establish 
her ownership to the fee of the land, included in 
a private road in which defendants had a user, 
before Bhe was entitled to construct a gas pipe 
line on the surface. 

[Ed. Note.— lOor other cases, see Easements, 
Cent. Dig. g 143.] 

4. Easements <g=>Cl(0)— Action fob Injunc- 
tion — ^Iktehest^-Evidence. 

Evidence in a suit by the owner of a farm 
to enjoin defendants from obstructing a private 
way giving access to a public road held to show 
that pluiutiff did not have the fee in the road, 
but had only an oasemcut of way. 

[Ed. Note.— For other cases, see Easements, 
Cent Dig. $ 143.] 

5. Easements <S=>51— Wat— Use. 

The owner of an easement in a private right 
of way, in which defendants also bad a right 
of use, was not entitled to maintain a line of 
gas pipe on the surface, as that was not con- 
templated when the easement of way was cre- 
ated. 

[Ed. Note.— For other cases, see Easements, 
Cent. Dig. iS 100-112.] 

6. Injunction ig=»130— Objection to Jubis- 
DicTioN— Statute. 

Though defendant's first objection to the ju- 
risdiction of equity, to enjoin interference with 



easement made in request for findings after the 
evidence was sulxnittod was not in compliance 
with Act June 7, 1907 (P. L. 440) | 1, it did 
not affect the chancellor s duty to dismiss the 
bill if the facts averred were not substantially 
proved at the trial 

[Ed. Note.— For other cases, see Injunction, 
Cent Dig. §$ 288-300.] 

Appeal from 0>art of (Common Pleas, Al- 
legheny County. 

Bill In equity for an injunction by Eleanor 
Walker Allen against John Schelb, St., and 
another. From a decree awarding an in- 
junction, defendants appeal Modified and 
affirmed. 

Argued before BROWN, C J., and POT- 
TER, MOSCHZISKER, FRAZBR, and WAL- 
LING, JJ. 

B. J. McKenna, of Pittsburgh, for appel- 
lants. J. W. (Jolllns, of Pittsburgh, for ap- 
pellee. 

WALLING, J. This equitable action Is to 
determine the rights of the respective parties 
to a certain strip of land situate In Richland 
township, Allegheny county, and used as a 
private road. The Butler plank road extends 
through said township In a northerly direc- 
tion, and the farm of the late John Scott, 
containing 142 acres, is located thereon. He 
died in 1875, and clause 4 of his will pro- 
vides: 

"I give and devise to my grandson, John Scott 
Teacher, 15 acres of my Balserstown farm; to 
my daughter, Catherine Harbison, 10 acres; 
to my granddaughter, Sarah Harbison, 5 acres; 
to my daughter Jaje Harbison, 10 acres, all to 
be divided out of my Bakerstown farm west of 
the planlc road." 

He left other heirs and devisees aside from 
those above mentioned ; and, by some family 
arrangement made shortly after his death, 
the 40 acres mentioned in the clause was set 
aside to the devisees therein named out of 
the northwest corner of the farm, away from 
the public highway. To afford access to the 
40-acre tract it seems to have been a part 
of the agreement that a private road or lane, 
of the .width of 16% feet, should be <H>ened, 
extending eastwardly from the southeast 
comer of the 40-acre tract, about 1,295 feet, 
to the Butler plank road, which lane was 
later fenced and opened, and has been used 
for about 20 years last past by the occupants 
of the 40 acres, the same having been par- 
titioned in 1876, among the devisees above 
named. This is shown by a map made that 
year by Charles Gibson, at the instance of 
one of the devisees. The purparts thereby al- 
lotted were sold from time to time, and the 
deeds therefor include fractional parts of the 
lane, corresponding to the size of the respec- 
tive pun>art8, for example, each deed for 15 
acres includes three-eighths of the lane. In 
1001 the title to the 40-acre tract, together 
with whatever Interest the owners thereof 
had in the lane, became vested in John Scott 
Harbison, who conveyed same to plaintiff in 



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AIJiSN ▼. SCHEIB 



103 



1911. The lane was also used by the owners 
of the balance of the John Scott farm, as 
their necessities required. 

So far as appears the family arrangement 
above stated was not In .writing, and there 
Is no record of any conveyance from the John 
Scott heirs to plaintiff's predecessors for the 
40 acres or the lane. Plaintiff contHids that 
the lane was included in the 40 acres. There 
is a part of the John Scott farm containing 
about 33 acres, some 24 acres of which He be- 
tween the 40 acres and the Butler plank road 
and north of the lane, as to which he seems 
to have died intestate. In 1881, all of the 
heirs of John Scott Joined in a conveyance 
of the 24-acre tract to James D. Harbison, 
wherein the southern boundary is describ- 
ed as: 

"Thence along a certain road or lane between 
the land herein conveyed and tlie land of John 
Stirling." 

Another part of the Scott farm, containing 
about 30 acres, and called the Stirling tract, 
is on the west side of the plank road and 
bounded on the north by the 40-acre tract 
and the lane. 

By sundry conveyances the title to the 24- 
acre and the 30-acre tracts became vested 
in Thomas Morrow, who in 1910 conveyed 
same with other land to defendant, John 
Scheib, Sr., the deed for which In one of the 
courses mentioned, "a point at the comer 
of a private road," and the general descrip- 
tion therein Includes the lane and the land on 
both sides thereof. After Mr. Schelb bought 
this land there was a controversy about the 
use of the lane, between Mr. Harbison and 
plaintiff on one aide, and the defendants, 
"John Scheib, Sr., and John O. Scheib, on 
the other, each side claiming to own the same. 
One of the findings of the court below is : 

"Sixth. That said John Scheib, Sr., by de- 
stroying drains along said private road, taking 
out posts and trees planted by plaintiff and by 
other acta lins repeatedly interfered with plain- 
tiff in the use of said private road." 

The defendants, or those in their employ, 
also drove their stock across this lane, and 
in so doing obstructed It with wires, and re- 
peatedly suffered the same to remain in that 
condition, to the annoyance and damage of 
plaintiff. 

In 1913, plaintiff entered into a contract 
with one Sebastian Mueller, for the constmc- 
tl<Hi and maintenance of a line of gas pipe in 
the lane, which defendants by opposition and 
threats prevented being done; Thereafter 
plaintiff filed her bill in this case, joining 
said Mueller as a defendant, but the bill as 
to him was dismissed. The learned trial 
Judge, sitting as a chancellor, found that 
plaintiff had a good title In fee simple to the 
strip of land herein called the lane, and 
entered a final decree, inter alia, enjoining 
defendants from interfering with the con- 
struction of the gas line, and also from in- 
terfering with plaintiff's free use and main- 



tenance of the private road. Defendants con- 
cede that plaintiff has a right to the use of 
the lane as a passageway ; in fdct that is the 
only means of access to her property. We 
folly agree with the learned chancellor that 
nnder all the facts and circumstances defend- 
ants should be enjoined from Interfering with 
plalntlfTs free use and enjoyment of the said 
private road as such. 

But plaintiff's right to lay or authorize 
another to lay a line of gas pipe therein de- 
pends upon the nature of her ownership. If 
an easement, then she can use it only for the 
purpose for which It was established or dedi- 
cated, and cannot lay a pipe line therein. 
U. S. Pipe Line Co. & Breckenridge v. Del., 
Lack. & Western R. R. Co., 62 N. J. Law, 254, 
41 Atl. 759, 42 L. R. A 672; 14 Cyc. 1207, 
note 98. 

[1] As an easement it cannot lawfully be 
used for a purpose different from that for 
which it was dedicated. Klrkham v. Sharp, 
1 Whart 323, 29 Am. (Dec. 67; Mershon v. 
Fidelity Ins., Trust & Safe Deposit Co., 208 
Pa. 292, 67 Att. 6C9; 14 Cyc. 1215. 

[2-5] As above stated the chancellor finds 
that plaintiff owns the fee. If so, she may. 
of course, constnict the gas line therein ; but 
a careful examination of the record falls to 
disclose any sufficient evidence to support 
that conclusion. As above stated, there is 
no deed or other writing showing any con- 
veyance by the Scott heirs of the so-called 
private road. True, the road Is recognized 
in their deed to James D. Harbison as above 
quoted, "thence along a certain road or lane 
between the land herein conveyed and the 
land of John Stirling"; but that does not 
show that the title to the fee thereof has 
pas.sed from the Scott heirs. The term 
"road," and especially "private road," is In- 
dicative of an easement rather than a fee. 
See Klster v. Recser, 98 Pa. 1, 42 Am. Rep. 
608. Plaintiff relies largely on the evidence 
of her grantor, John S. Harbison, as tending 
to establish a parol partition of the Scott 
farm made in 1876, by which this lane Is al- 
leged to have been allotted to the o;wners of 
the 40-acre tract, and as a part thereof. But 
he does not say that all of the Scott heirs 
were present, and shows they were not when 
he names those who were there. The chan- 
cellor in one part of his exhaustive discus- 
sion says: 

"Respecting plaintiff's light to the uninter- 
rupted use of tne road there is no room for dis- 
pute. Respecting the precise limits of her 
rights, whether she has a fee or a mere ease- 
ment, is a debatable question. • * * Wheth- 
er Mr. Scheib has the fee in the 16%-foot strip 
of land or the mere right to use it in common 
with the plaintiff, or any right in it, he has no 
right to fill up necessary drains, or otherwise 
prevent the free use and proper maintenance of 
the road, and plaintiff is entitle<l to an injunc- 
tion restraining him from Interfering with her 
in the exercise of her lawful rights. 

The John Scott heirs, aside from those 
named in clause 4 of the will, were not par- 



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101 A.TLANTIO KErORTBB 



(ELI. 



ties to the partition of the 40-acre tract, nor 
to the Gibson surrey, nor, so far as the rec- 
ord shows, bound thereby. And certainly 
they were not bound by the recitals in the 
deeds from the owners of the respective pur- 
parts of the 40-acre tract One cannot create 
a fee in land merely by including it in his 
conveyance. And the above-cited reference 
to this road or lane in the deed from the 
Scott heirs to James D. Harbison, and also 
in the deed from Morrow to defendant, arc 
certainly as consistent with an easement as 
with a fee. The mere reference in a con- 
veyance to a private road does not tend to 
show ownership in fee thereof in the party 
for whose use it may have been established. 
Such road, or alley, may, prima facie, be 
used by all abutting owners, and defendants 
as such would have standing to object to au 
additional use being made thereof by the con- 
struction therein of a gas line, especially as 
this is proposed to be constructed on the sur- 
face of the groimd. 

Plaintiff as the owner of the 40-acre tract 
undoubtedly has an easement in the private 
road and a right to the free and uninterrupt- 
ed use thereof as a way for purposes of pas- 
sage over and upon the same; and, so far 
as appears, defendants may lawfully make 
such use thereof as will not Interfere with 
the rights of plaintiff. 

The burden was upon plaintiff to establish 
her ownership to the fee of the land included 
in the road, and therein her proofs fail, and 
the flnding of the court below in her favor as 
to that cannot be sustained; nor can the de- 
cree in so far as It restrains defendants from 
interfering to prevent plaintiff from the con- 
struction of a gas line in the road. 

[8] The defendants, John Scheib, Sr., and 
.Tohn 6. Scheib, did not, by demurrer or an- 
swer, question the Jurisdiction of the court, 
upon the ground that the suit should have 
been brought at law, but filed an answer to 
the merits of the case without asking for an 
Issue as to any questions of fact, and thereby 
the right of trial by Jury seems to have been 
waived, under the provisions of section 1, of 
the act of June 7, 190T (P. U 440 ; 5 Purdon's 
Digest, p. 6001). The defendants first raised 
the question of Jurisdiction in requests for 
findings after the evidence was submitted; 
this was not a compliance with the statute. 
Nanheim v. Smith, 253 Pa. 380, 98 AU. 602. 
However, the proviso to this section is: 

"That this shall not alter or affect the duty 
of the chancellor to dismiss the bill if the facts 
therein averred, as showing or teudiiig to show 
the right to relief, be not substantially proved 
at the trial" 

— and by reason thereof plaintiff is not en- 
titled to relief based on her alleged owner- 
ship of the fee of the land in question; for 
such claim is not substantially proven. 

The final decree entered by tlie court be- 
low is therefore modified by striking out so 
aiuch thereof as restrains defendants, Jolin 



Scheib, Sr., and John O. Sdielb, from inter- 
ferlng with plaintiff in the construction and 
maintenance of a gas line in or upon said 
private road. The costs on this appeal to be 
paid by the appellee. 

°^™"" (« R. I. «J) 

GAONON V. RHODE ISIiAND Ca 
(No. 5022.) 

(Supreme Court of Rhode Island. July 5, 
1917.) 

1. TbIAI. «=9260(1)— R2FDBAI. or IROTBUC- 

noNS Covered. 
The refusal of instructions, which in so far 
as they were correct were covered by those 
given, was not error. 

[Ed. Note.— For other cases, see Trial, Cent 
Dig. I 651.] 

2. Damaobs «=>52 — Pkbsonai. Irjvbikb— 
Mental Suffering. 

Mental suffering of a pregnant woman con- 
sequent upon apprehension and anxiety as to 
the effect of an injury upon the fcetui becomes 
an element of her damage as a natural and 
proximate result of the negligence which caused 
the injury. 

[EVl. Note.— For other cases, see Damages, 
Cent Dig. Sf 100, 255.] 

3. Damages 9=352 — PxbsoraIi Injuries— 

AIeXTAI. SUFrERINO. 

Although a mother should not be given dam- 
ages for her child's misfortune during life re- 
sulting from an injury to the foetus, or for her 
own consequent mental distress during the life- 
time of the child occasioned by its deformity, 
she is entitled to damages for her distress and 
disappointment at the time of the birth because 
through defendant's negligence she has been de- 
prived of the right and satisfaction of bearing 
a sound child, if it be found that the child's de- 
formity is due to the injury received through de- 
fendant's negligence. 

[ICd. Note.— For other cases, see Damages, 
Cent Dig. $$ 100, 255.] 

Exceptions from Superior Court, Provi- 
dence and Bristol (Aunties; Charles F. 
Steams, Judge. 

Action by Eleanore Gagnon against the 
Rhode Island Company. Verdict for plain- 
tiff, new trial denied, and defendant ex- 
cepts. Exceptions overruled, and case re- 
mitted for entry of Judgment 

Archamlmult & Jalbert, of Woonsodcet 
for plaintiff. Clifford Whipple and Alonzo 
R. Williams, both of Fro>'idence, for defend- 
ant 

PER CURIAM. This is an acUon of tres- 
pass on the case brought to recover damages 
for injuries alleged to have l)een suffered by 
the plaintiff through negligence of the de- 
fendant The case was tried before a Jus- 
tice of the superior court sitting with a Jury 
and resulted in a verdict for the plaintiff. 
Defendant's motion for a new trial was de- 
nied by said Justice. The case la before us 
uix)n the defendant's exertion to the de- 
cision of said Justice on the motion for a 
new trial and upon exceptions taken by the 
defendant to certain rulings of said Justice 
made in the course of the triaL 



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PARIAN T. OLSSON 



106 



It appears that the defendant's car track 
on John street near Pleasant street In the 
city of Woonsocket is laid on the westerly 
side of the roadway In John street, the westr 
erly rail of said track being 2 feet and 10 
Inches from the curbstone of the westerly 
sidewalk of John street. Near the corner of 
John and Pleasant streets said track begins 
to curve toward the east and runs Into 
Pleasant street In passing upon and around 
said curve the rear of a double-truck car of 
the defendant begins to overlap the wester- 
ly sidewalk of John street and continues to 
so overlap the sidewalk for a considerable 
distance, the greatest overlapping being 15 
inches at one point On the day of the oc- 
currence complained of, the plaintiff. In com- 
pany with two other women, was walking 
in a southerly direction on the westerly 
sidewalk of John street; the plaintiff being 
the one nearest to the curbstone. There 
was testlraony from which the jury might 
find that the servants of the defendant were 
operating one of the defendant's double-truck 
cars on said John street behind said plain- 
tiff; and, without warning or care for the 
safety of the plaintiff, when the danger to 
the plaintiff must have been apparent to the 
servants of the defendant, they drove said 
car around said curve, whereby the rear of 
said car projected over a portion of the west- 
erly sidewalk of John street struck the 
plaintiff, knocked her down, and inflicted 
serious Injuries upon her. The justice pre- 
siding refused to disturb the verdict In re- 
spect to the flnding of liability or the assess- 
ment of damages. After an examination of 
the transcript of evidence, we find no reason 
for overruling his decision. 

[1] The defendant's exceptions to the re- 
fusal of said justice to charge the jury as 
requested are without merit. Said justice 
carefully instructed the jury as to the duty 
of the plaintiff and of the defendant in the 
premises, and, so far as the charge which 
the defendant requested was a correct state 
ment of the law applicable to the evidence, 
such instruction had been fully given by said 
Justice. 

[2, 3] The plaintiff at the time of the ac- 
cident was pregnant: she was struck and 
felt pain in bar back and side, and she tes- 
tified that at the time of the accident "I 
felt the child pushing toward the right" 
The plaintiff further testified that from the 
time of the accident until the birth of the 
child she entertained fears that the child 
would be bom deformed. The defendant ex- 
cepted to the admission of te8tim(Hiy that 
the head of the child was deformed at birth. 
The defendant then excepted to the admis- 
sion of testimony that when the plaintiff 
saw this deformity she was pained. The 
defendant also excepted to the charge of the 
justice to the jury that in assessing damages 
they might consider any mental suffering, 
which they found that the plaintiff had en- 



dured, due to her apprehension that she 
would give birth to a deformed child; and 
that they might consider her mental suffer- 
ing at the time of the birth caused by her 
disappointment at flnding a deformity in 
the head of the child, if the jury should also 
find that the deformity was a result of the 
accident to the plaintiff. The justice very 
carefully instructed the jury that the plain- 
tiff was not entitled to compensation for the 
Injury to the child or for any disappointment 
and suffering which she as its mother might 
feel during Its life by reason of any deform- 
ity In the child; but that the jury were 
justified in giving compensation to the plain- 
tiff for the mental suffering which the jury 
might find she had endured before the birth 
by reason of her apprehension of the child's 
deformity, and also for her suffering at the 
time of birth caused by disappointment in 
flnding she had not been delivered of a 
sound child, provided they also found that 
the deformity was due to the accident The 
exceptions which we are now considering 
should be overruled. The foetus 1^ a part 
of the person of a pregnant woman, and if, 
by reason of the nature and circumstances 
of an Injury to her person caused by the neg- 
ligence of a defendant, she suffers appre- 
hension and anxiety as to the effect of the 
injury upon the foetus, in accordance with 
the well-recognized rule, such mental suffer- 
ing becomes an element of her damage as a 
natural and proximate result of the neg- 
ligence which caused the injury. Further- 
more, although she should not be given dam- 
ages for the child's misfortune during life, 
resulting from an injury to the foetus, nor 
for her own subsequent mental distress dur- 
ing the lifetime of the child occasioned by 
its deformity, the mother Is entitled to dam- 
ages for her distress and disappointment at 
the time of the birth because through the de- 
fendant's negligence she has been deprived 
of the right and the satisfaction of bearing 
a sound child, If it be found that the child's 
deformity is due to the Injury she received 
through the defendant's negligence. Pres- 
cott V. Robinson, 74 N. H. 460, 69 Atl. 622, 
17 L. R. A. (N. S.) 594, 124 Am. St Rep. 
987; Big Sandy v. Blankenshlp, 183 Ky. 
438, 118 S. W. 316, 23 L. R. A. (N, S.) 345, 
19 Ann. Cas. 264. 

The defendant's exceptions are all over- 
ruled, and the case Is remitted to the su- 
perior court for the entry of judgment on 
the verdict 



PARIAN V. OLSSON et aL (No. 4795.) 

(Supreme Court of Rhode Island. June 26, 
1917.) 

Exceptions. Biix of €=»50(1) — Tbanscbipt 
OF Evidence. 
Where plaintifF filed with his bill of ex- 
ceptions a partial transcript of the testimony, 
consisting only of the cross-examination of the 
plaintiff, and certain rulings of the trial judge 



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106 



101 ATLANTIC ItEPORTEK 



(B.L 



upon granting the nonsuit, and endeayored to 
supplement the partial transcript hy including in 
hia bill of exceptions a summary statement pur- 
porting to show what was proved by the other 
portions of the evidence, in order thereby to 
bring upon the record the purport of the whole 
testimony on behalf of the plaintiff, the action 
ot the trial judge in striking out and disallow- 
ing the summary statement of the testimony and 
allowing the bill of exceptions thus changed and 
in refusing to allow the partial transcript of 
evidence filed with the bill of exceptions on the 
ground that it was insufficient was proper. 

[Ed. Note.— For other cases, see Exceptions, 
Bill of, Cent Dig. §{ 106, lOa] 

Action by Daniel Parian against Magnus 
CHsson and others. On plalntifTs petition to 
establish tbe truth of his exceptions. Peti- 
tion denied and dismissed. 

William J. Brown, of Providence, for plain- 
tiff. Fred L. Owen, of Providence, for de- 
fendants. 

PEE CURIAM. Upon the plalntifTs peti- 
tion to establish the truth of his exceptions 
and the correctness and sufficiency of the 
transcript of testimony. It appears that the 
plaintiff, after suffering a nonsuit in tbe su- 
perior court, having reserved certain excep- 
tions, in due time filed his bill of exceptions, 
and therewith a partial transcript of testi- 
mony consisting only of the cross-examina- 
tion of the plaintiff, and containing also cer- 
tain rulings of the trial judge upon granting 
the nonsuit 

The plaintiff endeavored to supplement the 
partial transcript by including in his bill of 
exceptions a summary statement purporting 
to show what was proved by the other por- 
tions of the evidence^ In order thereby to 
bring upon the record the purport of the 
whole testimony on behalf of the plaintlfT. 
The trial judge struck out and disallowed 
this summary statement with regard to the 
testimony in the case, and allowed the bill of 
exceptions as thus changed. The trial judge 
also refused to allow the partial transcript 
of evidence filed with tbe bill of exceptions 
on the ground that It was insufficient 

Thereupon In due time the plaintiff filed in 
this court his petition to establish the truth 
of his exceptions and the correctness and suf- 
ficiency of the transcript, under rulfe 13 of this 
court (62 Atl. ix). He asks this court to estab- 
lish bis bill of exceptions as originally filed, 
including the summary statement of testimo- 
ny therein, and attempts by his sworn petition 
and by affidavit to show not only the correct- 
ness of the portion of the transcript as filed, 
but also by another summary statement what 
was the purport and substance of all the 
other testimony In the case. 

We think the case Is ruled by the case of 
Beaule v. A«ne Finishing Co., 36 R. I. 74, 
89 ,\tl. 73. In that case a similar attempt 
was made. The plalntiiT filed with his bill of 
exceptions only a portion of tbe transcript, 
containing none of the evidence submitted to 



the jury, but only containing certain rulings 
of the trial' judge. Plaintiff incorporated in 
his bill of exceptions as filed a summary 
statement of the meaning and effect of cer- 
tain evidence alleged to have been Introduced 
at the trial; the trial Judge struck out and 
disallowed this simunary statement and al- 
lowed the rest of the bill of exceptions. Tbe 
trial judge also allowed the partial tran- 
script as sufficient for the consideration of 
certain numbered exceptions, and found It 
not to be sufficient for the consideration of 
certain other numbered exceptions. Plaintiff 
then petitioned this court to establish the 
truth of his exceptions and the sufficiency of 
the transcript, and this court sustained the 
action of the trial judge In striking out the 
summary statement, and also In his mllng 
as to the Insufficiency of the partial tran- 
script for consideration of certain exceptions. 

For the same reasons stated In Beatile v. 
Acme Finishing Co., supra, this court Is im- 
able in the case at bar to find that the trial 
judge erred either In changing the bill of 
e.cceptions by striking out as he did or In his 
disallowance of the transcript as insufficient 
We are unable to accept the plalntUTs state- 
ment in his petition and affidavits In place of 
the testimony which has not been brought 
before us in due course of procedure; and we 
are forced to rely upon the finding of the 
trial judge as to the insufficiency of the par- 
tial transcript 

Therefore the plaintiff's petiOon must be 
denied and dismissed. 



(40 B. I. 4E6) 
MILLER V. TRUSTEE)S OF TRINITY UN- 
ION METHODIST EPISCOPAL 
CHURCH. (No. 364.) 

(Supreme Court of Rhode Island. July 3, 1917.) 

1. Mechanics' Liens <s=»130(1) — Statkhent 
—Separate BtJii-niNds. 

A Sunday school building on the same tract 
of property upon which a church was located 
and connected therewith by a corridor, electric 
wires, and steam pipes is not a building separate 
from the church within the Lien Law (Laws 
1909, c. 257). 

[Ed. Note.— For other cases, see Mechanics' 
Liens, Cent Wg. {{ 178, 180, 181.] 

2. Mechanics' Liens «=»158 — Statbuknt — 
auendment. 

A mechanic's lien claimant can file ao 
amended lien statement at any time before the 
expiration of the period allowed for filing the 
original lien, which amended statement takes tlie 
place of the original statement in all respects. 

[Bid. Note.— For other cases, see Mechanics' 
liens. Cent Dig. K 275-278.] 

Appeal from Superior Court, Providence 
and Bristol Counties; (tester W. Barrows, 
Judge. 

Action by Charles Miller against the Trus- 
tees of Trinity Union Methodist Episcopal 
Church to establish a mechanic's lien. De- 
cree for defendant, and petitioner appeals. 
Reversed and remanded. 



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R.D 



MILLER T. TRUSTEES OP TRINITY XJNION M. R CHURCH 



107 



Charles H. McKenna, of ProTldence, for 
petitioner. Gardner, Plrce & Tbomlay, of 
Providence (Thomas G. Bradshaw, of Prov- 
idence, of counsel), for responldent. 

VINCENT, J. This Is a pctiUon to es- 
tablish a mechanic's lien npon land and build- 
ings belonging to the Trinity Union Metho- 
dist Episcopal Church. The cause comes be- 
fore this court upon the petitioner's appeal 
from a final decree of the superior court de- 
nying and dismissing his petition. The pe- 
titioner's claim is for certain extra work 
and materials furnished by him In the con- 
struction of a certain building owned by the 
respondents. 

It appears that the Thomas V. Collinan 
Company entered Into a written contract 
with the trustees of Trinity Union Metho- 
dist Episcopal Church to erect a certain 
building for Sun'day school purposes upon the 
premises owned by them and located at the 
comer of Brldgham street and Trinity square. 
In the city of Providence; that the contract 
for the painting was sublet by the Culllnan 
Company to Charles Miller, the present pe- 
titioner; that the petitioner delivered cer- 
tain materials and commenced work under 
bis painting contract on May S, 1915, and 
rendered his bill to the Culllnan Company 
for $1,000, which was tlie entire amount of 
the contract price ; that the petitioner on the 
4th and 6th days of October, 1915, performed 
certain extra work and supplied certain ex- 
tra materials amounting to $:i2.86, rendering 
a bill therefor on October 11, 1915; that 
the petitioner performed some work around a 
doorsvay In the church, a building adjoining 
the Sunday school building and standing 
upon a separate and adjoining lot of land; 
that the Sunday school while being erected 
was connected with the church by a corri- 
dor, electric wires, water and steam pipes, 
etc.; that a notice of intention to claim a 
mechanic's lien was served on respondent on 
November 6, 1915, and on the same day a 
copy thereof was placed on record in the 
office of the recorder of deeds in Providence; 
that the petitioner on January 6, 1916, lodged 
his account or demand in the office of safd 
recorder of deeds and filed his notice, setting 
forth the land and to whose interest therein 
the account or demand referred for the pur- 
pose of commencing legal proceedings; tliat 
the petitioner afterwards lodged In the office 
of said recoi'der of deeds three other accounts 
or demands, each of which was followed by 
a notice setting forth the land and to whose 
estate the account or demand referred for 
the purpose of commencing legal proceed- 
ings. These accounts were filed respectively 
on January 31, 1916, February 25, 1916, and 
February 29, 1916; that on March 1, 1916, 
within 20 days after the lodging of the fourth 
account, and the demand an'd notice, the pe- 
titioner filed in the office of the clerk of the 
superior court for Providence coanty bis pe- 



tition to mforce said claim of lien, attaching 
thereto notice of the last account or demand 
filed under date of February 29, 1916; that 
notice of tbe filing of said petition was duly 
given by the clerk of the superior court for 
Providence county. 

All these accounts were filed within the 
statutory period of 6 months from the com- 
mencement of the work and the furnishing 
of the materials which, are the subject of the 
claim, an'd the petition to enforce the Hen 
was filed in the clerk's office of the supe- 
rior court within 20 days after the lodging of 
the fourth account, demand, and notice. 

[1] The respondent claims that the peti- 
tioner is seeking to enforce a J<dnt Mea oa 
two separate buildings; that is, that the 
Sunday school building, although connected 
by means of a corridor, electric wires, water 
and steam pipes, etc, Is, in contemplation of 
the statutory provisions, two separate build- 
ings, and that the petitioner's account lodged 
with the recorder of deeds falls to separate 
and specify which Items apply to the Sunday 
school building and which apply to the church 
building. The respondent also claims that 
the petitioner cannot be permitted to file 
more than one account within the required 
period of 6 months from the commencement 
of the work or, in other words, that the sec- 
ond, third, and fourth accounts filed must 
be regarded as amendatory of the first ac- 
count file'd on January 6, 1916, and, that 
being so, the petition to enforce a lien was 
not filed In the office of the clerk of the 
superior court within 20 days after the com- 
mencement of legal proceedings. 

The respondent, admitting for the purpose 
of argument that the petitioner may abandon 
the first three accoiuts filed by him for the 
purpose of commencing legal process, and 
can rely upon the fourth account filed Feb- 
ruary 29, 1916, contends that such fourth ac- 
count is fatally defective in that it does not 
specify which items are chargeable to the 
Sunday school building and which items are 
chargeable to the church building. 

The estate of the respondent at the comer 
of Brldgham street and Trinity square com- 
prises two adjoining lots of land, one having 
been conveyed to it March 14, 1864, and the 
other November 10, 1909. The church build- 
ing, so called, is situated upon the first-nam- 
ed lot, and the Sunday school building upon 
the other lot These buildings are used by 
the respondent for the purpose of conduct- 
ing and carrying on its usual and customary 
church work, and the two structures are, for 
more convenient use, connected by a passage- 
way providing an easy and unexposed means 
of communication from one to the other. 
Light, heat, and water are supplied to the 
Sunday school building by means of wires, 
steam, and water pipes extended from the 
church building throujth the connecting cor- 
ridor before mentioned. 

The respondent lias cited section 7, c 257, 



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108 



101 ATLANTIC REPORTEB 



(R.I. 



General Laws of 1909, and also several Rhode 
Tsland cases In support of its contention that 
the account Is 'defective In not specifying 
the items chargeable to each building. In 
order to extend to these authorities any ap- 
plicability to the case before as, it would 
be necessary to reach the conclusion that the 
church and Sunday school buildings were 
separate and distinct structures. In Bou- 
ohard v. GuIsU, 22 R. I. 591, 48 AH. 034, the 
notice failed to state that the materials were 
furnished for any building or improvement 
at aU. 

In McElroy v. Kelly, 27 B. I. 64, 80 Atl. 
C79, it was held that the petitioner Should 
have filed a separate notice of his intention 
to claim a lien upon each house and a sep- 
arate account for each house of the material 
famished and used In it. In that case, as 
the court said in its opinion : 

"The houses were exactly alike but were not 
joined together in a block, but separated and 
adapted to be occupied each with a separate 
curtilage." 

In Butler & Co. v. Rivers, 4 R. L 88, the 
petitioner proceeded against two several es- 
tates having distinct owners, and sought to 
charge both estates for the work and ma- 
terials furnished for each, as the court said, 
"in efTect to make one of them chargeable 
with work and materials expended upon the 
other." 

In McDufC Coal & Lumber Co. v. Del Mona- 
co, 32 R. I. 323. 79 Atl. 831, the petitioner 
undertook to proceed upon the theory that, 
inasmuch as tliree houses on separate tracts 
of land were undergoing constrnction at or 
about the same time, they had a general lien 
upon all of them for a general balance due 
on the assumption that probably approxi- 
mately one-third of the materials had been 
used in each house, and that ccmsequently 
they could Include all three claims In one 
proceeding. 

The respondent claims that It appears from 
the foregoing cases to be incumbent upon one 
desiring to establish a mechanic's Hen for 
materials furnished and used in the construc- 
tion of more than one building, whether such 
building be upon the same or adjacent lots 
of land, to describe each lot and building sep- 
arately aad to particularize in his account 
the items chargeable to each. We have no 
controversy with such deduction from the 
cases cited. As before stated, in order to 
make them applicable it must be assumed 
that the church and the Sunday school struc- 
tures are separate and Independent build- 
ings. We cannot so hold. The whole tract 
of land is owned by the respondent; the 
buildings are used for one general purpose; 
they are physically connected, the one being 
dependent upon the other for light, heat, and 
water. We think that under these condi- 
tions the re.spoudent's claim of two separate 
and distinct buildings cannot be accepted. 
In fact, to carry out and establish the con- 
necting corridor work upon both structures 



would be required, and the determination of 
a proper dividing line between the two would 
be difficult, if not impossible. 

[2] The respondent further contends that 
the account lodged with the recorder of deeds 
February 29, 1916, that being the fourth ac- 
count. Is fatally defective, because it is in 
amendment of the first account filed January 
6, 1916, and cites Harris v. Page, 23 R. L 440, 
50, AU. 859. In that case the peUttoner 
sought to amend his account by extending it 
or adding thereto Items not appearing in the 
original statement. The opinion does not 
state specifically whether the application to 
amend was made before or after the expira- 
tion of the time allowed by statute for fil- 
ing an account as the commencement of legal 
process to establish a lien, but it may be rea- 
sonably presumed that It was after; for oth- 
erwise the petitioner might have filed a new 
account and raised the same question which 
we are now discussing. 

The respondent further claims that the 
filing of the first account on January 6, 1916, 
was the commencement of legal process, and 
that within 20 days thereafter the petitioner 
was bound to file his petition in equity in the 
superior court and falling to do so lost his 
lien. The petitioner, on the other hand, 
claims that he is not limited under section 
7 of diapter 257 to the filing of one account, 
but that he can file other accounts, waiving 
and abandoning all former ones, provided the 
last account is filed within the time limited 
for the commencement of legal process and 
his petition to enforce the lien is filed within 
20 days thereafter. 

It is apparent that the first three accounts 
filed by the petitioner, for one reason or an- 
otlier, were defective. The fourth account 
was filed within the required time, and the 
fact that the petitioner proceeded further in 
the establishment of his lien upon the fourth 
account only is evidence of an intention upon 
his part to abandon all accounts previously 
filed. 

To say that the petitioner must stand upon 
the first account filed, however defective it 
may later be discovered to be, and that he 
cannot abandon it and file another account 
within the statutory period, would, in our 
opinion, be inflicting upon a petitioner an un- 
necessary and unwarranted hardship which 
the statute neither requires nor contemplates. 

The respondent argues that after the fll- 
Ing of the first account Innocent parties 
might reasonably infer that the full amount 
of the claim had been disclosed, and thus be 
led into dealing with the estate to their dis- 
advantage should the filing of a later account 
be permitted. We do not see any great force 
In this argument. The statute fixes a period 
within which proceedings may be instituted 
for the establishment of liens, and one who 
deals with the estate before Its explraticn 
must do so at his peril. 

The appeal of the petitioner la sustained, 
the decree of the superior court denying and 



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STATE V. MoAVOT 



109 



dismissing the petition is reversed, and the 
cause is remanded to the superior court, with 
direction to enter a decree establishlns the 
lien of the petitioner upon the estate of the 
respondent described In the petition for the 
sum of $32.6a 



KINGSTON V. WILSON. (No. 6084.) 

{Supreme Court of Rhode Island. July S, 1917.) 

Garnishment *=»56 — Pbopebtt Subject— 
Deposits. 
Wberp it appeared that none of the mmey 
deposited with the garnishee trust company in 
the account of defendnnt as agent belonged to 
him, but was wholly the money of bis prindpal, 
the garnishee was not chargeable. 

[Ed. Note.— For other cases, see Gamislmient, 
Cent. Dig. JS 110, 111.] 

Exceptions from Superior Court, Prov- 
idence and Bristol Counties; Chester W. 
Barrows, Judge. 

Action by James Kingston against Robert 
H. Wilson. Plaintiff's motion to charge the 
garnishee was denied, and he excepts. Ex- 
ception overruled, and case remitted. 

John P. Beagan, of Providence, for plain- 
tiff. Benjamin W. Grim, of Providence, for 
defendant. 

PER CURIAM. This is an action of debt 
on judgment. The case is before us on plain- 
tiff's exception to the ruling of a Justice of 
the superior court denying the plaintiff's 
motion to charge the garnishee. 

According to the affidavit filed by the In- 
dustrial Trust Company, garnishee In the 
-case, it appears that at the time of the at- 
tachment made under the direction contained 
in the writ, there was In the bands and pos- 
session of said garnishee $289.12 standing in 
the name of the defendant as agent ; that the 
defendant had stated to the garnishee that 
he was the agent of Colgate & Co. From the 
uncontradicted evidence given at hearing be- 
fore said justice on the plalntlCTs motion to 
charge the garnishee It apiwared that the 
defendant was the manager "for the district 
here" of Colgate & Co., an'd was charged 
with the duty of directing the worlt of the 
salesmen employed by said Colgate & Co.; 
that there were about 17 men employed by 
Colgate & Co. under the direction of the de- 
fendant; that none of the money deposited 
in said account of "Robert Wilson, Agent," 
belonged to the 'defendant, but was wholly 
the money of Colgate & Co. In view of these 
facts, which said Justice found to be true, 
we are of the opinion that there is no error 
In the action of the superior court denying 
the motion to charge the garnishee. 

Plaintiff's exception is overruled ; the case 
is remitted to the superior court for further 
proceedings. 



(40 R. I. 437) 
STATE V. McAVOT (two cases). 
(Nos. 4948, 4940.) 

(Supreme Court of Rhode Island. July 8, 1917.) 

1. Embezzlement «=>3S— Evidence— Adkis- 
sibilitt. 

In a prosecution for embezzlement by an 
agent in charge of selling and delivering flour, 
evidence as to instructions given defendant by 
his predecessor as to his duties in making re- 
ports, collections, and deposits was admissible. 
[Ed. Note. — For other cases, see Embezzle- 
ment, Cent. Dig. ii 61, 65, 66.] 

2. Cbihinal Law «=»1169(1) — Revikw — 
Habmless Ebrob. 

In a prosecution for embezzlement by an 
agent intrusted with the duty of selling and de- 
livering flour, admission of slips showing deliv- 
eries of flour by the warehouse company and of 
an inventorjr of flour kept therein made by its 
bookkeeper, if error, held harmless. 

[Ed. Note. — For other cases, see Criminal 
Lew, Cent. Dig. U 8180, 3137.] 

8. Embezzixmbnt «=s38— Evidence— Admis- 

sibilitt. 
In a prosecution for embezzlement of the 
proceeds of flour sold and delivered by an agent, 
testimony by the bookkeeper of the warehouse 
wherein the flour was kept as to the numl>er of 
barrels on liand as shown by the report of the 
defendant to the milling company was admissi- 
ble. 

[Ed. Note. — ^For other cases, see Ehnbezzle- 
ment, Cent Dig. S§ 61, 65, 66.] 

4. Embezzlement ^=344(5) — Defenses— Del 
Cbedere. 

In a prosecution for embezzlement, evidence 
held not to tihow that defendant was a del cre- 
dere factor. 

[Ed. Note. — For other cases, see Embezzle- 
ment, Cent. Dig. { 70.] 

5. Embezzlement ^=9l4 — Defenses — Del 
Ckeoebe Factobs. 

That an agent charged with embezzlement 
was a del credere factor of his principal consti- 
tutes no defense ; such relation not changing the 
ordinary one existing between himself and his 
principal within Gen. Laws 1909, c. 345, J 16, 
providing that every officer, agent, Clerk, or serv- 
ant who shall emb^zle property which shall 
have come into his possession by virtue of his 
employment shall be deemed guUty of larceny. 
[Ed. Note.— For other cases, sea Embezzle- 
ment, Cent Dig. |§ 13-15.] 

6. Embezzlement €=>38— Evidencb— Matbbi- 
alitt— Pbivileqed Communications. 

In a prosecution for embezzlement, it was 
not error to exclude as immaterial correspond- 
ence received by the state board of tax commis- 
sioners offered on the question as to whether the 
employer, a company incorporated in another 
state, had been doing business in this state, since 
under Pub. Laws 1912, c. 769, 8 15, such in- 
formation could not be divulged except upon 
order of the court 

[Ed. Note.— For other cases, see Embezzle- 
ment, Cent Dig. §§ 61, 65, 66.] 

7. Embezzlement i8=48(l) — Inbtbuotions — 
Appropbiation of Propebty. 

In a prosecution for embezzlement. It was 
not error to instruct that the ownership of tlie 
flour the proceeds of which were alleged to have 
been embezzled was controlling as to defendant's 
rights thereto. 

[Ed. Note.— For other cases, see Embezzle- 
ment, Cent Dig. {J 72, 75.] 



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101 ATLANTIC UEPOUTEE 



(B.1. 



8. BtHBEZZUaiENT «=»44(1)— EVIDENCK— SUF- 
WCIKNCT. 

In a prosecution for embezzlement, evidence 
held to warrant a finding of guilty. 

[HJ. Note.— For other cases, see Embezzle- 
ment, Cent Dig. {{ 67, 70.] 

Exceptions from Superior Court, Prov- 
idence and Bristol Counties; George T. 
Brown, Judge. 

Harry A. McAvoy was convicts of em- 
bezzlement, and be brings exceptions. Ex- 
ceptions overruled. 

Herbert A. Rice, Atty. Gen. (Claude R. 
Brancb, of Providence, of counsel), for the 
State. Fitzgerald & Higglus and Peter M. 
O'Reilly, all of Providence, for defendant. 

VINCENT, J. In December, 1914, the 
grand Jury for Providence county presented 
two indictments against the defendant for 
embezzlement To each of these indictments 
the defendant plea'ded not guilty and was re- 
leased on bail. The two cases were tried 
together in the sui>erior court. The defend- 
ant moved to be discharged at the conclu- 
sion of the testimony offered on behalf of 
the state. The motion was 'denied. The jury 
returned a verdict of guilty as charged in 
each indictment, each being for the em- 
bezzlement of an amount exceeding $500. 
The d^en'dant filed a motion for a new 
trial, upon the usual grounds, which was 
denied by the trial court 

The case is now before us upon the defend- 
ant's exceptions covering the denial of his 
motion for discharge; to various rulings 
during the trial as to the admissibility of 
evidence; to certain portions of the charge 
of the court; and to the denial of the motion 
for a new trial. The defendant's exceptions 
are 58 in number, but we are advised by 
his brief that he relies only upon exceptions 
numbered 1, 2, 3, 32, 83, 34, 30, 53, 54, 67. 
an'd 58. 

The indictment No. 8269, now before us 
on exceptions No. 4948, charges the defend- 
ant, Harry A. McAvoy, on the 1st day of 
January, 1914, at Providence — 
"b«ng then and there the derk and agent of 
the Bay State Milling Company, a corporation, 
did then and there by virtue of his said employ- 
ment have, receive, and talce into his possession 
money to a large amount to wit, to the amount 
of $1,368.87, and of the value of $1^68.87, of 
the pn^erty and money of the said Bay State 
Milhng Company, a corporation as aforesaid, the 
said Harry A. McAvoy s employer, and the said 
Harry A. McAvoy the said money then and 
there feliwiously did embezzle and fraudulently 
convert to his own use, without the consent of 
the said Bay State Milling Company, a cor- 
poration as aforesaid, the said Harry A, Mc- 
Avoy's said employer, whereby and by force of i 
the statute in such case made and provided the \ 
(■aid Harry A. McAvoy is deemed guilty of 
larceny," etc. | 

The indictment No. 8270, now before us | 
on exceptions No. 4949, is Identical with the | 
one above referred to, with the exception of 
the date of the embezzlement, which is stated I 



on July 1, 1914, and the amount embezzled as 
$2,834.30. 

The defendant, covering the periods of the 
alleged embezzlements, was In the employ of 
the Bay State Milling Company a corporation 
created under the laws of the state of Min- 
nesota an'd having its principal ofllce In the 
city of Boston, Mass. All the dealings of the 
defendant were with this office. The defend- 
ant was hired by the president of the com- 
pany, Bernard J. Rothwell, and his assist- 
ant, Ernest C. Harris, and commenced work 
for said company in April or May, 1913. His 
duties were to sell flour in Providence and 
vicinity and to collect the proceeds of such 
sales. During his earlier employment by the 
milling company he perform^ these duties 
for a stated salary of $70 per month and an 
allowance for expenses, both of which were 
paid by the checks of the milling company. 

Upon assuming his duties the defendant 
was instructed to conduct the business in the 
same manner in which it had been conducted 
by his predecessor. Fay G. Hicks. In com- 
pliance with such Instructions, the defend- 
ant submitted himself to the tutelage of 
Hicks for a period of about a week, receiv- 
ing from him minute directions as to the 
method of conducting the business and being 
introduced by him to various customers. 

The instructions given to the defendant by 
Hicks were that each sale was to be report- 
ed to the milling company by sending to its 
office in Boston a duplicate or carbon copy of 
the invoice slip on the day of the sale, and a 
weekly report, including an account of the 
stock on hand at the warehouse and a list of 
the collections. Tlie milling company fur- 
nished to the defendant a pad of Invoice 
slips, numbered consecutively, there being 
four copies to each number, distinguishable 
from each other by the color or character of 
the paper. The original or white slip was to 
be kept by the defendant ; the blue slip to be 
sent to the customer ; the slip of tissue paper 
was to be forwarded to the olSce of the mill- 
ing company in Boston; and the pink slip 
was not required under the arrangement 
with the defendant Printed blanks for the 
weekly reports were also furnished to the de- 
fendant by the milling company which were 
designed to show, when properly filled out, 
the number of barrels of flour received dur- 
ing the week ; an itemized list of the number 
of barrels delivered to customers from the 
warehouse; the number of barrels remain- 
ing in the warehouse; and an itemized list 
of all amounts collected from customers. As 
soon as the defendant collected the proceeds 
of sales, cither in money or by check, he wsw 
to deposit the same in the Merchants' Na- 
tional Bank in Providence in the name of the 
milling company and report the same by 
sending to the milling company a copy of 
the deposit slip. 

On November 1, 1913, a further arrange- 



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STATE T. MoAVOY 



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ment was mnde between the defendant and 
tbe milling company whereby the defendant 
should thereafter, Instead of receiving a 
L^ed salary, be paid a commission of 35 
cents for every barrel of flour sold by him, he 
paytaig Ills own expenses, the expenses of 
storing and cartln;; the floor in Providence 
and the guaranteeing of all accounts. Ttds 
iirrangemeoit does not appear to have modi- 
fied, or to have been intended to modify, the 
previous instructions given to defendant as 
to reports, collections, and deposits. In car- 
rying out tills additional arrangement tbe de- 
fendant was paid $16 a week in advance on 
account of commissions. The balance due the 
defendant on account of commissions was 
paid to him from time to time by check from 
tbe milling company, and he was not permit- 
ted to deduct such commissions from bis col- 
lections. Later, the milling company becom- 
ing dissatisfied with tbe defendant's dilatori- 
ness in collecting the accounts, a further ar- 
rangement was made between the parties, 
tubing effect In March, 1914, whereby the de- 
fendant was to be ciiarged interest on all ac- 
eomits wlildi were not collected wittiln 45 
days. 

During tbe summer of 1014 there were 
some negotiations between the defendant and 
tbe milling company looking to some arrange- 
ment wbereoy the defendant should buy the 
tiour from tbe milling company and sell it on 
Ids own account, and on October 9, 1914, the 
defendant wrote to the mlUing company that 
by the next month he hoped to "buy the busi- 
ness outright." This arrangement was never 
completed, and the defendant admitted at 
the trial that ttas letter was written merely 
for the purpose of gainlmg time. 

Tbe uiilling company shipped the flour In 
its own name to a warehouse in Providence. 
None of the flour was ever conslgued or 
charged to the defendant, and the defend- 
ant's name did not appear in tbe shipment 
Ml the bills sent by the defendant to pur- 
chasers of flour were in the name of tbe 
milling oompoiny, a notice being stamped 
thereon requesting remittance to "Uarry A, 
McAvoy, Agt" The defradant also ia the 
transaction of the business used stationery 
which was headed "Bay State Milling Com- 
pany." The defendant was given no author- 
ity to make prices on bis own account, and 
letters and bills were sent direct to delin- 
quent customers by the milling company. 

The defendant undertook and purported to 
conduct the business in accordance with 
these arrangements. He sent to the milling 
company duplicate invoice slips and copies 
of deposit slips and a weekly report in tbe 
form heretofore described. 

The evidence shows that the defendant 
made sales and deliveries which he never re- 
ported to the milling company, and that ho 
made collections wliich he did not deposit in 
the Merchants' National Bank or report to 
the milling company, Iwt appropriated the 
same to his own use. There is evidence 



sbovrlng the methods resorted to by tbo de- 
fendant tn concealing from the milling com- 
pany that he was obtaining money which be 
did not report ; tliat he omitted to report to 
the company certain collections which he 
liad made on deliveries reported; that he 
omitted to report certain sales and deliv- 
eries; that he would deliver flour to two 
different customers under invoices of the 
same number and report but one of these 
deliveries to the company, sending the white 
slip to one customer and the blue slip of the 
same number to another customer instead 
of retaining either for himself, and on the 
tissue slip of the same number send to the 
company a report of only one of the sales. 

The defendant admitted that in one in- 
stance he had intentionally concealed from 
the milling company one sale and collection 
amounting to $S5, but he testified that his 
failure to report other collections to the oum- 
ber of a dozen or more was due to forget- 
fuiness. 

The defendant hod been instructed to de- 
posit all coUecticms to tlie accoimt of the mill- 
ing company in the Merchants' National 
Bank and send the milling company a copy 
of each deposit slip; and, according to tbe 
testimony of the otScers of the milling com- 
pany, the defendant had no authority to in- 
dorse any check made out to the onler of the 
milling company or to deal with either money 
or checks received in payment of flour ex- 
cept to deposit the same to the account of the 
milling company in the Merdiants' National 
Bank. The testimony shows, however, that 
several checks made out to the order of the 
milling company were deposited by tbe de- 
fendant to his own account In the Industrial 
Trust Company of Providence, the defendant 
indorsing them "Bay State Milling Company, 
Harry A. McAvoy, Agent," and that the 
amounts represented by such checks wore 
never reported to the milling company as col- 
lections. 

In July, 1914, the milling company wrote 
to the warehouse in Providence in which the 
flour was stored requesting an inventory of 
the flour o[ tbe milling company then In Its 
possession. Tbe defendant, visiting the office 
of the warehouse company and seeing tbe let- 
ter requesting an inventory, told the repre- 
sentatives of tbe warehouse company that he 
would take care of that matter, and accor I- 
Ingly prepared an Inventory on a sheet of 
letter paper headed with the name of the 
warehouse company, which paper had In 
some unexplained manner come into the de- 
fendant's possession. Hie Invraitory thus 
prepared by the defendant was typewritten 
and without signature. There was nothing 
upon it to indicate that it was not compiled 
by employes of tbe warehouse company. The 
amounts given in this inventory correspond- 
ed with those given by the defendant in his 
reports, but exceeded by about 300 barrels 
the amount of flour whidti was actually in 
tbe bands of tbe warehouse company. 



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101 ATLANTIC REPOKTJCR 



(K.I. 



The defendant made some explanation of 
this matter of the inventory to the effect 
that an employe of the warehouse company 
asked him to make out the inventory and 
that he copied the figures from his previous 
reports. Although the milling company later 
wrote to the defendant referring to this re- 
port as the report of the warehouse com- 
pany, the defendant did not advise the mill- 
ing company that such report bad been made 
by himself. 

There was also testimony that on Novem- 
ber 14, 1914, the milling company was noti- 
fied by the Merchants' National Bank that its 
account was overdrawn. This turned out to 
be due to the fact that the defendant had 
deposited in that bank a check against his 
own account in the Industrial Trust Com- 
pany which did not prove to be good. Mr. 
Harris of the milling company came to Provi- 
dence and telephoned the defendant that he 
would like to see him at the Narragansett 
Hotel. Harris testifies that defendant stated 
to him over the telephone that he would be 
at the hotel in a few minutes. The defend- 
ant, however, went to New London, Conn. 
Harris, after waiting for a time, telephoned 
the defendant's father, who in turn tele- 
phoned the defendant at New London, sug- 
gesting to the defendant that he return to 
Providence, and he accordingly came back 
the next day. The defendant, however, testi- 
fies that he told Harris over the telephone 
that he had made arrangements to go to the 
southern part of the state to see prospective 
customers and could not see him that day. 
On cross-examination the defendant admitted 
that he had never before solicited business 
in Westerly, and that he could not remember 
the name of a single person upon whom he 
called. He said that he went to New London 
because there was no decent hotel in Wester- 
ly where he could spend the night. The de- 
fendant further admitted on cross-examina- 
tion that he knew nothing whatever about 
the hotels at Westerly, and had no reason 
whatever for being dissatisfied with them. 
Witnesses for the state testified that the de- 
fendant admitted at the start that he had 
gone to Connecticut because he was afraid to 
face Harris; that be had appropriated money 
collected to the extent of some ?6,000, In- 
cluding about $2,000 of the sales which he 
had not reiwrted to the milling company; 
that he had made out a false Inventory on 
the letter paper of the warehouse company, 
and that he had paid out most of the money 
which be had taken to make up for losses in 
speculating In wheat; that tiie defendant, 
without making any attempt to Justify the 
taking of the money, told the representatives 
of the company that they could put him In 
jail if they wanted to, and when arrested by 
Inspector Magulre he said he had been a 
fool to give up his ledger to the company. 
In October, 1914, in answer to some com- 
plaints of the milling company that he was 
behind in the collection of his accounts, the 



defendant wrote to the milling company that 
In a few weeks an estate in which he was in- 
terested would be settled, and that he would 
then have the money to remit, but he admit- 
ted on cross-examinatlMi that this story was 
a falsehood, and that there was no such estate. 

The only exceptions pressed by the defend- 
ant, as stated in his brief, are those number- 
ed, 1, 2, 3, 32, 33, 34, 36, 63, 64, 57, and 58. 

[1] The defendant's exceptions 1, 2, and 3 
relate to the admission of certain testimony 
of Fay G. Hicks. Hicks was the predecessor 
of the defendant as the Providence agent of 
the milling company. The defendant was 
told to get from Hldu instructions as to the 
method of carrying on the business. The de- 
fendant went to Hicks, and Hicks spent the 
greater part of a week In giving him instruc- 
tions as to making and reporting sales and 
collections and also taking him to Interview 
customers. The defendant objected to the 
testimony of Hicks In reference to the in- 
structions he gave to the defendant on the 
ground that such instructions were given in 
April, 1913; that the contract under which 
he was then employed by the milling com- 
pany ended in November, 1913, previous to 
the embezzlement set forth In the indictment ; 
and that the arrangements from November 1, 
1913, to the conclusion of his dealings with 
that company were very different, and it was 
immaterial what the arrangements were prior 
to 1914, the time laid in the indictment 

We do not think that the contract between 
the defendant and the milling company can 
be said to have ended in November, 1913. 
The contract was added to or modified in 
some respects at that time, but such additions 
or modifications did not relate to the reports, 
collections, and deposits which the defend- 
ant was instructed to make and under which 
instructiimg he undertook to act 

The modifications referred to related to 
the defendant's compensation,' the guarantee- 
ing of accounts, and to the payment of in- 
terest on accounts after the same had been 
overdue for a certain period. The duties of 
the defendant in the matter of reports, collec- 
tions, and deposits were those given to him 
by Hicks at the Instance of the milling com- 
pany, and we think that such testimony was 
properly admitted, and ttiat the defendant's 
exceptions 1, 2, and 3 must be overruled. 

The defendant's exceptions 32, 33, and 34 
relate to the same matter, and may be con- 
sidered together. 

In July, 1914, the milling company wrote to 
the warehouse company for an inventory of 
the flour on hand. This Inventory, as before 
stated, was made up by the defendant, type- 
written upon the letter paper of the ware- 
house company, was without signature, and 
bore no indication that it emanated from the 
defendant. It was sent by the defendant to 
the milling company purporting to be a cor- 
rect statement by the warehouse company of 
the amount of flour on hand. The state, in 
Its endeavor to show the falsity of this state- 



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BTATB V. MoAVOY 



113 



ment and that the amount of flour to the pos- 
session of the milling company was much 
lees than that represented In the report, of- 
fered In evidence an InvMitory of the flour In 
the hands of the warehouse company on July 
30, 1914, made up by the bookkeeper of that 
company. In making such Inventory the 
bookke^)er started with the balance of flour 
as shown by the Inventory of the month pre- 
ceding, and deducted therefrom the deliveries 
during the month as reported to him by the 
teamers. These reports of the teamers were 
made from time to time upon slips used for 
that purpose which were filed In the ottlce of 
the warehouse company. Some of these slips 
were offered in evidence in verification of the 
toventory of the bookkeeper. Another em- 
ploye of the warehouse company testified 
that he actually counted the stock of fiour on 
hand, and found that his figures corresponded 
with the figures of the Inventory made by the 
bookkeeper. Besides this, Mr. Harris of the 
milling company counted the barrels of flour 
on hand In the warehouse and found a short- 
age of 575 barrels. 

[2] The defendant contends that the Intro- 
duction of the slips referred to showing de- 
liveries of flour made by the teamers of the 
warehouse company and the Introduction of 
the toventory of flour made therefrom by 
the bookkeeper of the warehouse company 
amounted to nothing more than the totroduc- 
tloD of hearsay evidence, the admission of 
which was error. The apparent purpose of 
the testimony was to show that the defend- 
ant had deceived the milling company by 
conveying to that company a false report of 
the flour on hand. If we take the view that 
the admission of such testimony was errone- 
ous. It would not constitute reversible error 
to view of the fact that there was other tes- 
timony establishing the falsity of the defend- 
ant's toventory which he did not dispute. 
The defendant's exceptions 32 and 33 must be 
overruled. 

[3] The defendant's exception 34 is to the 
rultog of the court allowing the bookkeeper 
of the warehouse to testify as to the number 
of whole barrels of flour on band as shown 
by the report of the defendant made to 
the milling company. The defendant object- 
ed to the question on the ground that the is- 
sue waa not the embezzlement of flour. We 
see no merit in this exception. The number 
of barrels disposed of and unaccounted for 
by the defendant would naturally form a 
basis for ascertaining the amount of money 
covered by the embezzlement. The defend- 
ant's excepdon 34 Is overruled. 

[4] At the condnslon of the testimony for 
the state the defendant moved that he be 
disdiarged, and his exception 36 is to the 
refusal of the trial court t» grant that motion. 
The basis of this motion was that under the 
facts as presented the defendant was a del 
credere factor, and that the relations between 
himself and the milling company were simply 
those of debtor and creditor. Passing over 
101A.-S 



the contention of the state that the disposi- 
tion of such a motion is within the discretion 
of the court and Is not the subject of excep- 
tion, two questions present themselves for, 
consideration: (1) Was the relation of the 
defendant with the milling company that of 
del credere factor? and (2) if such relation 
listed, could the defendant be found guil- 
ty of embezzlement under the todlctments 
brought against him? 

In determining the first of these questions, 
we must consider the agreement between the 
parties and apply thereto the familiar rules 
of construction, all of which are subordtoate 
to the leading principle that the intention of 
the imrtles must prevail unless toconsistent 
with some rule of law. And such intention 
must be gathered not from a portion or por- 
tions of the contract but from the whole 
taken together. 11 R. O. L. 755; 1 Clark & 
Skyles on Agency, 24. 

In the case at bar the flour was never 
consigned by the milling company to the de- 
fendant It was shipped direct to the ware- 
house In Providence, where It was held as 
the property of and to the name of the mill- 
ing company and was at all times subject to 
Its orders. The defendant, after maktog a 
sale of flour, was permitted by the milling 
company to withdraw from its stock in the 
warehouse a suflldent number of barrels to 
fill the order. A bill was rendered to the 
purchaser in the name of the milling com- 
pany, there being stamped upon such bill a 
notice to pay the amount due thereon to the 
defendant as its agent. Upon the receipt of 
the money the defendant was obligated, un- 
der his contract, to deposit it in full in the 
Merchants' National Bank to the credit of the 
mllltog company without any deduction 
therefrom for salary, commission, or ex- 
I>enses. 

We cannot flnd any intent of the parties, 
either expressed by the contract itself or 
by the methods In which thtir respective 
duties under it were discharged, that would 
warrant us In drawing the conclusion that the 
defendant was acting otherwise than as the 
agent of the milling company. 

The defendant seems to place much reli- 
ance upon the fact that under certain condi- 
tions he was to be held responsible to the 
milling company for Interest upon accounts 
overdue for a certain length of time, and 
to some tostances for the payment of the 
principal sum. The reason for this arrange- 
ment is quite apparent from the record. The 
milling company had expressed its dissatis- 
faction at the seeming todifference of the 
defendant regarding the prompt collection of 
the accounts due and his want of care to the 
selection of responsible customers. The ar- 
rangement was doubtless made for the pur- 
pose of stlmnlattog the defendant to look 
more closely after the collections and to be 
more careful about making sales to irre- 
sponsible parties. It could hardly be Inferred 



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101 ATLANTIO SSPOBTBR 



<N.J. 



wlfhont power to refer tbe matter at bar to 
a vice ordinary la also musonnd. Tbe con- 
tention la that because tbe appeal la given 
In terms to tbe ordinary, and that no power 
to refer It Is given In the same statute, the 
right does not exist This Is falladons, for 
by act of 1918 (P. U p. 81) the ordinary Is 
empowered to refer any matter pending in 
the Prerogative Court to a vice ordinary for 
hearing and advloe, but the jurisdiction 
which the vice ordinaries ezerdse, upon ref- 
erence to them, la not derived from this stat- 
ute, but by delegation from the ordinary by 
virtue of his inherent powers. 

In an eihaustive review of the powers of 
the vice chancellors <whose oflSoe was like- 
wise created by statute), in Re Thompson, 89 
N. J. Eq. 221, 96 Atl. 102, OhanceUor Walker, 
at page 257, holds Uiat: 

"Their jurisdictioQ is complete by delegation 
from the chancellor under the aathonty inhering 
In his general power derived from the High 
Court of Chancery in England and devolved 
upon our Court of Chancery by the ordinances 
or Lord Combury and Governor Franklin, and 
ratified by the ConstitutJons of 1776 and 1844." 

And at page 261 of 85 N. J. Eq., 96 Atl. 
102, he holds that a perfect analogy exists 
with reference to the Prerogative Court, in 
which tbe Lesialature has authorized the ap- 
pointment of vice ordinaries, the ancient of- 
fice of surrogate, as deputy or assistant to 
Uie ordinary, being the source of power in 
the vice ordinaries. 

It is to be observed that in the act creat- 
ing the office of vice ordinary (P. U 1913, p. 
81) the Legislature lias provided that the or- 
dinary may refer to any vice ordinary any 
cause or other matter wUch at any time may 
be pending in the Prerogative Court, to hear 
tbe same for the ordinary and report Uiereon 
to litm and advise what order or decree 
should be made therein. Now, If tlie ordi- 
nary is a functionary apart from himself as 
the Judge of the Prerogative Court, it is 
singular that the lawmaking body did not 
t>estow the power to refer upon the Judge of 
the Prerogative Court, ttie only functiooary 
who in such case could constitutionally exer- 
cise It, instead of casting it upon the ordina- 
ry, who could not lawfully do so. In this 
we have legislative interpretation to the ef- 
fect that the ordinary and Judge of the Pre- 
rogative Court, and likewise ttteir Jurisdic- 
tion, are one and the same. 

Enough has been shown, I tliink, to demon- 
strate that the act imder which tills assess- 
ment was made, and which gives an appeal 
to the ordinary, treats the ordinary and the 
Prerogative Court as one and the same — a 
single Judicial entity. 

[3] The giving of an appeal to the ordi- 
nary in the Inheritance transfer tax act is a 
valid legislative enactment 

It may be that certiorari in tbe Supreme 
Court is a method for the review of an ap- 
praisement or tax made or levied under the 
inheritance transfer tax act, but considering 
that an appeal haa been provided to the or- 



dinary, the Supreme Court would probably 
deny the allocatur on such a writ before, or 
even after, the time for appeal to the ordi- 
nary had expired, as the allowance of an al- 
locatur is discretionary. Florenzie v. East 
Orange, 88 N. X Law, 438, 97 AtL 260. 

In Re Prudential Ins. Co. of America, 82 
K J. ESq. 335, 88 Aa. 970, the Court of Er- 
rors and Appeals held that the statutory 
scheme providing for the condemnation of 
the capital stock of a stock life insurance 
company for certain purposes mentioned was 
cast by tbe Legislature upon the chancellor, 
or the Court of Chancery, a distinction wlilcit, 
if it exists, was of no practical moment to 
the motion then before the Court of E^^^ors 
and Appeals, and at page 339 that the statu- 
tory proceeding before that court was review- 
able by certiorari only, regardless of the fact 
that one of the agencies that took part in it 
was the "Court of Chancery." 

I bold that the proceeding before me is one 
in the Prerogative Court, and one which the 
ordinary could lawfully refer by virtue of 
the act of 1913 (P. L. p. 81) empowering him 
to refer to any vice ordinary any cause or 
other matter which at any time might be 
pending in the Prerogative Court 

Now, the act of 1909 (P. L. p. 325) pro- 
vides for taxing the transfer of property of 
decedents by devise, descent, etc., and section 
18, as seen, allows any one dissatisfied with 
an a^essment of such taxes to appeal to the 
ordinary. The only question raised by such 
an appeal is as to whether or not the assess- 
ment is excessive, and the review of such a 
question may be devolved upon a court of ap- 
peal. Florenzie v. East Orange, 88 N. J. 
Law, 438, 97 Atl. 260. There an appeal from 
an assessment for benefits for a municipal 
improvement was confided to the circuit 
court, and the Jurisdiction thus given was 
upheld. Here an appeal from the assess- 
ment of a property transfer tax is confided 
to the ordinary of the Prerogative Court 
The principle is the same. The grant of ap- 
pellate Jurisdiction to this court in tax trans- 
fer matters is as valid as that to the circuit 
courts in assessments for munidpal improve- 
ments. 

[4] The reason that legislation establish- 
ing special statutory tribunals for the hear- 
ing and determining of appeals theretofore 
cognizable only in the Supreme Court on cer- 
tiorari is valid is because a review of the 
decision of the special tribunal is removable 
into the Supreme Court by certiorari, and 
that court's Jurisdiction on certiorari is there- 
fore not impaired. Certiorari in such cases 
is in the nature of an appeal, and aji appeal 
Is a Judicial proceeding cognizable in a court 

[S] It would appear that the decree of the 
Prerogative Court on these appeals is re- 
viewable by certiorari in the 'Supreme Court, 
Instead of by appeal to the Court of Errors 
and Appeals. In re Prudential Ins. Oo. of 
America, 82 N. J. Eq. 335, 339, 88 Atl. 970; 
Florenzie t. Bast Orange, 88 N. J. Law, 438, 



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M.J.) 



MATEREA v. ERIE! R. CO. 



69 



440, 97 Atl. 260. This qnestlon is snggested 
in the brle£s, but Is not before me for deci- 
sion. 

The jurisdlctioaal qnestfam having been de- 
termhied, I will, upon application of counsel, 
designate a day for hearing the facts. 



(90 N. J. Law. 4ET) 

MATERKA v. ERIE B. 00. 

(Supreme Court of New Jersey. June 6^ 
1917.) 

fSyllabiM by the Court.) 
J. Tbiai. «=s>139(1)— Jury— Wbioht or Tbsti- 

HONT. 
It is for the jury to say what weight shall 
be given to the testimony of a witness having 
an opportunity to hear, standing at or near the 
crossing where the accident occurred, and wfao 
testiiies that he did not hear the blowing of a 
whistle or the ringing of a tfeU, in a grade cross- 
ing acddent case. 

[E:d. Note.— For other cases, see Trial, Cent. 
Dig. H 832, 333, 33Sr^41.] 
2. Railroads *=>350(1) — Grade Crossiwg 

AcciDEUT— Nbgligencz and Conthibutort 

Nbguoence— Question for Jurt. 
It was not error in this case to refuse to 
direct a verdict in favor of the defendant on 
the ground there was no proof of negligence 
on the part of the defendant or because the de- 
cedent was guilty of contributory negligence. 
They were both jury questions. Holmes v. 
Pennsylvania R. R. Co., 74 N. J. Law, 468, 66 
Ati. 412, 12 Ann. Cas. 1031, Weiss v. Central 
R. R. Co., 76 N. J. Law, 348, 69 Atl. 1087, 
and Howe v. Northern R. R. Co., 78 N. J. Law, 
6S3, 76 Atl. 979, distinguished. 

[Kd. Note.— For other cases, see Railroads, 
Cent, Dig. § 1152.] 

Appeal from Circuit Court, Hudson County. 

Action by Mary Materka, administratrix, 
etc., against the Erie Railroad Comx>any. 
Judgment for plaintiff, and defendant ap- 
peals. Affirmed. 

Argued November term, 1916, before 
TREINCHARD and BLACK, JJ. 

Collins ft Corbin and George S. Hobart, all 
of Jersey City, for appellant. Alexander 
Simpson, of Jersey City, for respondent. 

BLACK, J. This action was brought by 
the plaintiff, as administratrix of Ferdinand 
Materka, to recover damages for the benefit 
of his widow and next of kin, by reason of 
his death, on September 6, 1912, by being 
■truck by an east-bound express train, at 
tbe Park Avenue grade crossing, in the bor- 
ough of E2ast Rutherford and Rutherford, 
B«rgen county, «iiile he was crossing the 
tracks on foot At that crossing there were 
four tracks, safety gates, and a watchman. 
A rule to show cause was allowed, reserving 
objections and exceptions noted at the trial. 
The verdict was reduced to the sum of $4,- 
000. The trial court refused to set aside the 
verdict on the ground that it was against the 
weight of evidence. The points argued by 
the appellant for a reversal of the judgment 
are: First, there was no proof of negligence 
on the part of the defendant ; second, a ver- 



dict should have been directed for the defend- 
ant because of contributory negligence of the 
decedent, Ferdinand Materka ; third, error in 
the charge of the trial judge, and In the refus- 
al to charg^e as requested, but tliis latter point 
involves the same points as are in the first 
two, except as hereinafter noted. This is the 
second trial of the case. The judgment re- 
covered in the first trial was reversed by the 
Supreme Court for trial errors. The judg- 
ment of the Supreme Court was affirmed by 
the Oonrt of Errors and Appeals. In the re- 
port of the case the facts are quite fully and 
satisfactorily stated. Materka v. Erie R. R. 
Co., 88 N. J. Law, 372, 95 AU. 612. 

[1,2] The crux of the case la whether 
there was evidence from which the jury 
might find that the decedent attempted to 
make the crossing while the safety gates 
were up and without receiving any warning 
from the flagman; that the train which 
struck the decedent approached the cross- 
ing without giving the statutory signals of 
ringing a bell or sounding a steam whistle. 
The record cdiows the following testimony: 
David Harris, a witness, testified: 

"Q. Were the gates up when you crossed over? 
A. Ye. • • • I crossed into East Ruth- 
erford, and I saw this gentleman get oft this trol- 
ley car and crosa the railroad tracks. Q. Were 
the gates up when he crossed? A. The gates 
were up on one — ^yes. Q. On your side? A. 
The side I crossed the gate was up on, yes. Q. 
That is the side he entered the tracks from? 
A. That is the side he entered the tracks on. 
Q. When he came from the trolley car and went 
on the tracks the gates were up, I understand? 
A. That is right, sir. Q. Aft«r he got on the 
tracks what occurred? A. Why, that gate on 
the Rutherford side went down. Q. Yes? A. 
And the gate on the East Rutherford side was 
up. Q. Yes? A. And I passed a remark. Q. 
You cannot tell what you said, just what you 
saw. You saw this? A. I saw this man cross 
the tracks, and there was a train coming down 
the track, and I said to myself, 'I don't think 
he will get across,' and with that I saw the 
man hit. • * • Q. Did you hear any whistle 
or bell up to the time you saw him hit? A. I 
did not, sir." 

On cross-examination: 

"Q. Ton did not know it was coming? A. No, 



sir. Q. You were not listening for it? A. No, 

sir. Q. Not pa. " _ . 

A. No, sir. Q. I understand you to say, how- 



Not paying any attention to it at all? 



ever, that you did see it coming; is that rij^ht. 
you did see the train coming before it struck 
Mr. Materka? A. Yes. (Witness marks on a 
photograph, Exhibit F-6, where he was stand- 
ing at that time.)" 

Redirect: 

"Q. Now Mr. Hobart asked you if jrpu were 
listening fo^ the express train. You did not 
know it was coming until you saw it, did you? 
A. No, sir. Q. And from the time you started 
across the crossing up to and until the time you 
saw the express train had you heard any whistle 
or bell of any kind? A. No, sir." 

Genevieve Ruth Saxly a witness standing 
at the crossing at the time of the accident, 
did not hear any whistle before the decedent 
was struck. She said she was not listening 
for whistles. 

Under the rule laid down in the cases, in 



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70 



101 ATLAJITIG BEFOR.TBB 



(Pa. 



the CSourt of Errora and Appeals of tbis state, 
such as Danskin r. Pennsylvania R. B. Co., 
83 N. J. Law, 522, 526, 83 Atl. 1006, Horandt 
V. Central R. B. Co., 81 N. J. Lew, 490, 83 
AtL 511, Watbel T. West Jersey, etc., B. R. 
Co., 87 N. J. Law, 573, 94 AtL 951, and Mc- 
Lean T. Krle R. B. Co., 69 N. J. Law, 57, 60, 
54 Ati. 238, affirmed 70 N. J, Law, 337, 67 
Atl. 1132, this evidenne was for the Jury, it 
made a Jury question. The point cannot be 
removed from the domain of the Jury. 

The cases of Holmes v. Pennsylvania B. 
B., 74 N. J. Law, 469, 66 Atl. 412, 12 Ann. 
Oas. 1031, Weiss v. Central B. B. Co., 76 
N. J. Law, 348, 69 AtL 1087, and Howe v. 
Northern B. B. Co., 78 N. J. Law, 683, 76 Atl. 
979, distinguished. So contributory negli- 
gence of the decedent was also a Jury ques- 
tion under sadi cases as Brown v. EMe B. B. 
Co., 87 N. J. Law, 487, 91 Aa 1023, and 
Femettl v. West Jersey, etc., B. B. Co., 87 M. 
J. Law, 268, 93 AU. 578. 

This disposes of the case, except It Is fur- 
ther urged that there was error in the re- 
fusal of the trial court to charge each of 
two specific requests in reference to the stat- 
utory signals and the operation of the cross- 
ing gates; each request covers separate 
charges of negligence. The Judgment must 
be reversed, so it is argued, because the trial 
judge permitted the Jury to base a verdict 
upon either ground, notwithstanding the spe- 
cific requests submitted by the defendant 
with respect to each allegation of negligence. 
The court in the charge to the Jury had 
covered each ground fully, accurately, and 
clearly. The requests refused were, In effect, 
to take the case from the Jury; hence this 
was not error, in view of the cases above 
cited. 

The Judgment of the Hudson circuit court 
is affirmed, with costs. 



(266 Pa. 608) 

WEIL V. MARQUIS. 

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

1. EXECTJTOKS AWD Administbators «=>426— 
."'ETTiNO Aside Acts of Decedent— Bene- 
fit OF Creditors. 

An executor or administrator may bring an 
action to set aside the fraudulent transactions of 
the deceased for the benefit of creditors, whose 
trustee he is. 

rEd. Note. — For other cases, see Executors and 
Administrators, Cent Dig. $S ^^^, 1665.] 

2. Executors and Administrators ®=»426— 
Death of Transferor — Administrator's 
Action for Benefit of Creditors. 

A tronsfer of property in fraud of creditors 
is a nullity, and, after the transferor's death, an 
action is maintainable by his administrator as 
trustee to recover so much of the property trans- 
ferred as may be needed to pay just claims of 
creditors. 

[Ed. Note.— For other cases, see Executors and 
.'V'iministrators, Cent Dig. §§ 1663, 16C5.] 



3. Insurance «s>586—BKMEnciABiXB— Vest- 
ed Interest. 

Where the insured took out life insurance 
policies payable to his wife and did not exercise 
his right to change his beneficiary during his life- 
time, the widow's interest in the policies on bis 
death became a vested interest 

[HM. Note.— For other cases, see Insurance, 
Cent Dig. S 1470.] 

4. Insurance «=»590— Beneficiary— Liabili- 
ty OF FuKD foe Debts. 

Act April 15, 1868 (P. L. 103), providing 
that Insurance money payable to the wife and 
children of an assured shall be free from the 
claim of creditors, governed where an intestate 
who bad taken out life insurance policies pay- 
able to his wife and died without having ezep- 
cised the right to change the beneficiary, and 
where the widow collected the insurance money 
amounting to less than his debts, so that she 
was entiUed to hold the proceeds as against the 
insured's administratrix sning for money had 
and received: Act May 1, 1OT6 (P. L. 53), Act 
June 1, 1011 (P. L. 581), and Act May 5, 1915 
(P. L. 253), relating to other forms of insur- 
ance and to beneficiaries, not applying. 

[Ed. Note.— For other cases, see Insurance, 
Cent Dig. U 1479, 1482, 1485.] 

Appeal from Court of Common Pleas, Phil- 
adelphia County. 

Assumpsit for money had and received by 
Nita M. Weil, administratrix of the estate of 
Abraham Marquis, deceased, against Jeanette 
A. Marquis. From an order discharging a 
rule for Judgment for want of a sufficient 
affidavit of defense, plaintiff appeals. Affirm- 
ed. 

The facts' appear In the following opinion 
by Audenrled, P. J., in the court below: 

Abraham Marquis died August 14, 1914, intes- 
tate and insolvent lie had taken out sundry 
policies of insurance upon his life, each of whidi 
was made payable to the defendant, his wife, 
subject however, to the provision that he might 
change the beneficiary thereunder. He died with- 
out having exercised that right, and his widow 
collected the money payable on these poUdes, 
which amounted to much less than his debts. 
Letters of administration upon the e.state of 
Marquis have been granted to tlie plaintiff, who 
has brought this action against his widow to re- 
cover what tho latter received from the insur- 
ance companies. 

Upon these facts, which are not denied by the 
defendant, the plaintiff asks judgment for either 
tlie amount of the proceeds collected on the poli- 
cies or the amount of their surrender value im- 
mediately before the death of the insured ; both 
amounts being ascertainable from the affidavit of 
defense. 

[1,2] As to the first question discussed by 
counsel, we have no doubt While an executor 
or administrator, as the mere personal repre- 
sentative of a decedent, can take no step to set 
aside for the benefit of heirs, next of kin, lega- 
tees, or devisees, the fraudulent transactions of 
the deceased, his right to do so for the benefit 
of the creditors, whose trustee he is, has long 
been recognized in tbis state. Chester County 
Trust Co. V. Pugh, 241 Pa. 124, 88 Atl. 319. 50 
I... B. A. (N. S.) 320, Ann. Cas. 1915B, 211. 
A transfer of property in fraud of creditors is 
a nullity as against the interests attempted to 
be defrauded^ and, after the death of the trans- 
feror, an acti(m is maintainable by his admin- 
istrator, as their trustee for the recovery of as 
much of the property so transferred as may be 
needed for the payment of their just claims. 
Buchler v. Gloninger, 2 Watts, 226; Stewart v. 



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WEIL ▼. MARQUIS 



71 



Kewney, 6 Watts, 483, 81 Am. Dec. 4SZ. WbUe 
the atatement of claim doea not allege actual 
frand in the dealings of the defendant with her 
husband in tespect to the policies of insnranc* 
procured b; the latter upon his life, it is argued 
that the facts above mentioned make oat a case 
of constructive fraad. We think that, if this 
contention can be sustained, the right of the 
plaintiff to a recovery against the defendant Is 
dear. 

Several acts of assembly have been referred to 
by counsel as bearing on the matter before the 
coart, and our next inquiry, therefore, is wheth- 
er these have any application to the case. 

The most recent legislation on the subject of 
life insurance policies such as those referred to 
in the plaintiff's statement is the Act of May 
5, 1915, P. L. 253. By its terms, this statuts 
relates to policies of life iaaurance "which have 
heretofore or which shall be hereafter taken out 
for the benefit of, or assigned to, the wife or 
children, or any other relative dependent upon" 
the person whose life is insured. Grammatical- 
ly, the use of the perfect tense of the verb ia the 
clause "which have heretofore (been) taken out" 
seems to imply that the policies therein referred 
to were existing policies that had not, when the 
act became effective, matured and been paid. 
If this clause were construed to embrace all poli- 
cies that bad been issued prior to the passage of 
the act, thus including those with respect to 
whose proceeds rights had already vested, the 
act, to that extent, would violate both section 
17 of article 1 of the CSonstitution of Pennsyl- 
vania and clause 1 of section 10, art. 1, of the 
Constitution of the United States, since it would 
impair the obligation of contract by depriving 
creiditors of their remedy, an impediment, in the 
shape of an exemption which did not exist when 
their debts were contracted, being placed in the 
w^ay of collecting them. Penrose v. Erie Canal 
Co., 56 Pa. 46; Edwards v. Kearzey, 96 U. S. 
595, 24 L. Ed. 793; Kener v. Le Grange Mills, 
231 U. S. 215, 34 Sup. Ct. 83. 58 L. Ed. 189. 
We are of opinion therefore, that this act does 
not affect the case before us. 

Nor does section 25 of the Act of May 1, 1876 
(P. L. 60) apply. The provisions of that sec^ 
ticm are expressly confined to policies issued by 
companies incorporated under tlie act of which 
it forma a part. It does not appear, and the 
court cannot assume, that the Insurance compa- 
nies that issued the policies referred to in this 
case were so incorporated. 

Section 27 of the Act of June 1, 1911, P. L. 
•581, provides as follows: "A policy of insurance 
issued by any company, heretofore or hereafter 
incorporated, on the life of any person, expressed 
to be for the benefit of any married woman, 
whether procured by herself, her husband, or 
any other person, shall inure to her separate use 
and benefit and that of her children, independ- 
ently of her husband or his creditors, or the pei^ 
son effecting the same or his creditors. If the 
premium is paid by any person with intent to de- 
fraud his creditors, an amount equal to the pre- 
mium so paid, with interest thereon, shall inure 
to their benefit." Unless this enactment is held 
to be retrospective in its operation, it does not 
apply to the policies involved in this case. The 
last of these to be issued was taken out more 
than nine months before it became a law. But 
the act is not, in this respect, retroactive. The 
use of the present tense of the verb in the con- 
ditional part of the second sentence of the sec- 
tion quoted plainly indicates that no reference to 
policies previously issued is intended; and, if 
its language were otherwise, no effect could be 
given to it, so far as concerns such policies, for 
the saue constitutional reasons that are referred 
to above in discussing the Act of May 5, 1915. 
Moreover, even if it was intended to change the 
law as to the rights of creditors in respect to 
policies of life insurance theretofore issued, no- 
tice of such an intention is wholly lackiug in the 
title of the act; Bad the attempt to make such 



a change was therefore futile. Section 3, art. 3, 
Constitution of Peonsylvama. When the subject 
expressed in the title of an act is not broad 
enough to cover all its provisions, such parts of 
the act as are not within the purview of the ti- 
Ue are void. Hatfield v. Com., 120 Pa. 895. 14 
Atl. 151 ; Potter County Water Ca v. Austin 
Borough, 206 Pa. 297, 65 AtL 991. 

So far as our examination of the acts of as- 
sembly goes, the only legislation that bears upon 
the question involved in these rules is section 1 
of the Act of April 15, 1868 (P. L.. 103). This 
reads as follows: "All policies of life insurance 
or annuities upon the life of any person which 
may hereafter mature, and which have been or 
shall be taken out for the benefit of, or bona 
fide assigned to the wife or children or any 
relative dependent upon such pereon, shall be 
vested in such wife or children or other relative, 
full and clear of all claims of the creditors of 
such person." 

It is conceded by the plaintiff that, if the pol- 
icies in question were within the scope of this 
act, judgment must be^entered in favor of the 
defendant. It is contended, however, that they 
do not fall within either of the two classes of 
policies which the statute was intended to pro- 
tect from the creditors of the person who has 
taken them out and paid their premiums. 

From the affidavit of defense it is impossible 
to determine how the policies whose proceeds 
are in dispute were originally issued. All that 
appears is that the defendant was, prior to the 
death of her husband, the beneficiary thereun- 
der, and that he had the right to appoint anoth- 
er as beneficiary in her place. 

It is argued on behalf of the plaintiff that, if 
the policies when originally issued were made 
payable to the defendant subject to the condi- 
tion that her husband should not designate some 
other person as payee of their proceeds, they 
were taken out by hira for his own benefit and 
not for here; and that consequently the case 
docs not fall within the first of the two cate- 
gories embraced by the act. It is further ar- 
gued that, if the policies were issued in the 
name of the insured, they are not within the sec- 
oud class to which the act refers, because the 
'Wife took no interest in them uuder the subse- 
quent assignment thereof to her ; the reserva- 
tion to the insured of the right to change the 
beneficiary securing full control of the policies 
to him and leaving him, therefore, dBeir real 
owner. 

Although the policy of the law, even where 
the rights of creditors may be adversely affected, 
favors the wife to whom her husband has at- 
tempted to secure the benefit of insurance upon 
his life (Kulp v. March. 181 Pa. 627, 37 Atl. 
913, 59 Am. St. Rep. 687), the argument of the 
plaintiff thus summarized is of great weight, 
and, if the creditors had attempted to reach 
the policies during the lifetime of the insured, 
we can see no reason why they should not have 
been successful (In re Herr [No. 2 D. C] 182 
Fed. 716; In re Jamison Bros. & Co. [D. C] 
222 Fed. 92; In re Shoemaker [D. O.] 225 Fed. 
329). 

[3, 4] Nevertheless, the facts presented by this 
case differ in a very important point from those 
involved in the bankruptcy cases to which refer- 
ence has been made. Here the insured is no 
longer living. He had, it is true, reserved to 
himself under his insurance contracts the option 
of letting them inure to the benefit of his wife 
or appointing some other beneficiary in her 
stead. This he might have exercised whenever 
he saw fit during his life, but it ended at the 
very instant of his death. It did not survive 
him. See McDonald, ISx'x, v. Columbian Na- 
tional Life Insurance Co., 253 Pa. 239, 97 AU. 
1088, U R. A. 1910F, 1244. The moment he 
bt'eathed his last, the happening of the condition 
subsequent whicn might have divested the de- 
fendant's rights in the policies became impos- 
sible. If up to that time her interest in the 



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101 ATIAMTIO REPOaTBB 



(Pa. 



polidea amounted to notbinc more tban a bare 
expectancy, that expectancy them ripened, and 
ber interest in the policies and their proceeds 
immediately became a vested one. 

Thus the air was cleared; and the position 
of the creditors became forthwith what it would 
have been if, when the p<^ciea were originally 
issued or subsequently assigned to ber, no right 
to change their beneficiary bad been reserved 
by the insured. Setting aside the question of 
fraud, any right that the creditors of Marquis 
or their representative had to object to the stat- 
ute as a bar to the appropriation of the policies 
of insurance on his life payable to his wife to 
the discbarge of their claims against him rested 
solely on the ground that he still held a control 
over them equivalent to ownership. That foun- 
dation has slipped away. As the case now 
stands, the disposition of the proceeds of the pol- 
icies is governed by the Act of April 15, 1868. 

If the defendant's rights as beneficiary re- 
sulted from the assignment of the policies to her 
by her husband, it would, of course, be poegible 
to attack them, under the Act of 13 £}liz. C. S., 
on the ground of fraud. The Act of 1868 pro- 
tects such assignments only when bona fide. 
Although the assignment in this case, if there 
was an assignment, was made by an insolvent 
to his vrife, with a reservation of power to con- 
trol the disposition of the policies as he pleased, 
the court cannot declare the transaction, how- 
ever suspicious it may be, fraudulent per se. 
The statement of claim raises no question of 
fraud in fact; but, if fraud were alleged, the 
question of the good faith of the defendant and 
ber husband would necessarily take the case to 
the jury, to whose province such questions pecu- 
liarly appertain. Sebring v. Brickley, 7 Pa, 
Super. Ct. 198. 

Argued before BROWN, 0. J., and STEW- 
ART, MOSCHZISKEB, FRAZEE, and VfAIr 
UNO, JJ. 

Morris Wolf and Horace Stem, both of 
Philadelphia, for appellant. Hampton L. Car- 
son and Joseph Carson, both of Philadelphia, 
for appellee. 

PER CURIAM. This appeal is dismissed 
on the opinion of the learned president Judge 
of the court below discharging the rules for 
Judgment for want of a sufficient affidavit 
of defense. 



(25S P>. SiO) 

COMMONWEALTH T. STAUSH. 

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

1. Cbimiistai, Law <g=»980(2) — Plea of 
Guilty— Sentence— Statute. 

Act March 31, 1860 (P. L. 402) § 74, pro- 
viding that, where a defendant pleads guilty 
to an indictment for murder, the court shaU 
proceed by examination of witnesses to determine 
the degree of the crime, must be strictiy con- 
strued, and thereunder the examination of wit- 
nesses by the court means the seeing and heai^ 
ing of the witnesses, and a mere reading of their 
testimony by a judge or judges who did not see 
or hear them is not a compliance with the act 
[Ed. Note. — For other cases, see Criminal 
Law, Cent. Dig. IS 2494, 2495.] 

2. Cbiminai, Iaaw <S=» 980(2) —Plea of 
GurLTT—SENTENCE— Statute. 

Under such provision, every member of a 
court passing upon the degree of guilt must 
see and hear the witnesBPs upon whose testimony 
the degree of homicide is to to be determined, 
and where three of the five judges heard the 



testimony and thereafter the president judge 
who was not present during the examination of 
witnesses read the evidence, and joined in the 
deliberations, and wrote the court's opinion 
fixing the crime as murder in the first degree 
the judgment would be reversed, and a proceden- 
do awarded with leave to defendant to renew in 
the court below a motion to withdraw his plea 
of guilty. 

[Ed. Note. — For other cases, see Criminal 
Law, Ont Dig. |i 2494, 2495.] 

Appeal from Ck>urt of Oyer and Terminer, 
Luzerne Ciounty. 

John Staush was convicted of murder in 
the first degree, and he appeals. Reversed, 
and procedendo awarded with leave to de- 
fendant to renew in court below his motion 
for leave to withdraw his plea of guilty. 

Argued before BROWN, C. J., and MES- 
TREZAT, STEWART, MOSCHZISKER, and 
WALLING, JJ, 

M. J. Torllnski and George Howorth, both 
of Wllkes-Barre, for appellant. Frank P. 
Slattery, Dlst. Atty. of Luzerne County, and 
Edwin Shortz, Jr., Asst. Dlst Atty., both of 
Wllkes-Barre, for the (Tommonwealth. 

BROWN, 0. J. [1] John Staush, the ap- 
pellant, entered a plea of guilty to an in- 
dictment charging him with murder, and it 
thereupon became the duty of the court be- 
low, under section 74 of the act of March 
31, 1860 (P. Lw 402), to "proceed, by examina- 
tion of witnesses, to determine the degree 
of the crime, and to give sentence accord- 
ingly." Three of the five Judges of that 
court m^ to perform the duty Imposed up- 
on it, and witnesses were examined before 
them. At the examination the common- 
wealth was represented by the district attor- 
ney, and the prisoner, with his counsel, was 
present. The testimony was taken down by 
the court stenographer, whose transcript of 
the same was duly approved by one of the 
Judges and ordered to be filed. After the 
hearing, and before the three Judges had 
reached any conclusion as to tlie degree of 
the prisoner's guilt, they asked the president 
Judge of the court — who had not been pres- 
ent at the examination of the witnesses— 
to Join them in their consideration of the 
testimony taken, for the purpose of fixing 
the degree of the crime. After reading the 
evidence, he took part In their deliberation, 
and found that the prisoner was guilty of 
murder of the first degree. Subsequently 
he wrote the opinion of the court, fixing the 
degree of guilt, and pronounced the Judg- 
ment of death. The real error of which the 
appellant complains — and the only one up- 
on which we need pass — Is the action of the 
court below in having its president Judge 
consult with his three colleagues over a 
most solemn question, involving life, without 
hds having seen or heard the witnesses up- 
on whose testimony it was to be determined. 

A tribunal, specially designated by the 
Legislature, fixes the degree of guilt, xipon 



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WOOD T. WILUAM KANE MFG. CO. 



78 



ccmvlctlon by confession, <mi an indictment 
charging mnrder. Such a case is no longer 
for a Jory, wbose province it is to fix tlie de- 
gree of bmnlcide in every case where the 
Bccnsed goes to trial on his plea ol not guil- 
ty. The Legislature might have provided 
that, on a plea of guilty, a Jury should beer 
the testimony relating to the crime for the 
sole purpose of fixing the degree of guilt; 
bat it has not done so. It has committed 
that duty to the court having Jurisdiction 
of the indictment, and perhaps wisely so, in 
view of homan sympatliy to which Jurors 
not infrequently yield when called to pass 
upon the life or death of a fellow man. To 
enable It to discharge tills duty the court 
must examine witnesses and hear what they 
know and are able to trutlifully tell of the 
circumstances attending the admitted feloni- 
ous killing. As this statutory provision, re- 
lating to a criminal procedure, must be strict- 
ly construed, the examination of witnesses 
by the court means its seeing and hearing 
them, not a mere reading of their testimony 
by a Judge or Judges who neither saw nor 
beard them, and it means that every m&a- 
ber of a court passing upon the degree of 
gnilt in a homicide case must see and hear 
the witnesses upon whose testimony the 
question is to be determined. If it had been 
for a Jury to determine the degree of the 
appellant's guilt, and but eight of the Jurors 
had seen and heard the witnesses, a verdict 
of the twelve condemning him to death 
would be promptly set aside, if the other 
fbur Jurors had simply read the testimony 
of the witnesses from the stenographer's 
notes; and yet this, in efl^ect, la the situa- 
tion here presented. 

[2] The court below, composed of four of 
its five members, found the prisoner guilty 
of mnrder of the first degree^ They were 
his triers; they deliberated together over 
what their verdict should be, and, after so 
deliberating, fixed his crime as the highest 
known to the law; but one of them had 
nether seen nor heard a single witness 
called to sustain the commonwealth in ask- 
ing for a first degree finding, or the plea of 
the prisoner that intoxication had reduced 
the degree of his oITense. One of the three 
Judges who heard the witnesses limg hes- 
itated In reaching his conclusion, and If 
the fourth, who heard none of them, had 
heard them all, he might also not only have 
long hesitated, but actually refused to con- 
cur In the finding of first degree murder. 
In findings of fact by a Judge, sitting as a 
dianodlor, the credibility of witnesses and 
the wel^t to be given to their testimony 
are for him, and their credibility Is often 
sustained or Impaired by their appearance 
on the witness stand and by their manner of 
testifying. If this is true in dvil cases, it 
is snrely true in a proceeding in a criminal 
court in which a human life is at stake. 



We are not to be understood as saying, or 
even intimating, that on the testimony of 
the witnesses seen and heard by the three 
learned Judges of the court below they would 
have erred in adjudging the prisoner guilty 
of murder of the first degree; for that is 
not the question before us. All that we now 
decide is that error was committed in hav- 
ing the president Judge take part, under £be 
drctunstances stated, in a consultation and 
deliberation which resulted in a finding nec- 
essarily followed by the Judgement from 
which we have this appeaL 

Judgment reversed, and procedendo award- 
ed, with leave to the prisoner to renew in 
the court below his motion for leave to with- 
draw his plea of guilty. 

"°°°^~ (ST Pa. IS) 

WOOD V. WILLIAM KANE MTG. CO., Inc. 

(Supremo Court of Pennsylvania. March 6, 
1917.) 

1. Mabtkb ano SsBVAirr «=390 — Mabikb's 
Duty— Extent. 

The mere relation of master and servant 
does not imply an obligation on the master to 
take more care of the servant tlian he may rea- 
sonably be expected to take of himself. 

[Ed. Note. — For other cases, see Master and 
Servant, Cent. Dig. § 139.] 

2. Master and Sekvant «=s>265(12)— Neom- 

QENCB— El(PI.OTI(KNT OF SEBVANTS. 

The presumption is that an employer has 
exercised proper care in the selection of its em- 
ployes, and one charging negligence in the em- 
ployment of men must show it by proper evi- 
dence. 

[Ed. Note. — For other cases, see Master and 
Servant, Cent Dig. H 891, 906.] 

3. Masteb and Sebvant ®=9l60(6) — AonoN 
FOR Injubt—Nequobhcb— Evidence. 

Where plaintiff in charge of rivetuig boilers 
was suppUed by his employer with helpers, and 
where one of the helpers, not shown to be in- 
competent, and who was not instructed by plain- 
tiff as to his duties, accidentally let go of the 
base of a boiler so that it fell upon plaintiff, 
there was no negligence on the part of defend- 
ant, and the court should have directed a verdict 
for it 

[Ed. Note.— For other cases, see Master and 
Servant, Cent Dig. U 302, 307.] 

Appeal from Court of Common Pleas, Phil- 
adelphia County. 

Trespass for damages tor personal injury 
by Thomas Wood against the William BCaue 
Manufacturing Company, Incorporated. Ver- 
dict for plalntiflT for $2,000 and Judgment 
thereon, and defendant appeals. Reversed, 
and Judgment entered for defendant 

Argued before MESTREZAT, POTTER, 
STEWART, MOSCHZISKER, and FRA- 
ZER, JJ. 

Frank P. Pridiard, of Philadelphia, for ap- 
pellant John J. McDevltt, Jr., and Samuel 
G. Stem, both of Philadelphia, for appellee. 

POTTER, J. This was an action of tres- 
ixiss to recover damages for personal inju- 



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74 



101 ATLANTIC RBPORTBB 



(Pa. 



rles. Plaintiff, who had the management of 
the boiler making shop of the defendant com- 
pany, charged his employer with negligence 
in falling to provide an experienced helper, 
which, as he alleged, resulted in his injuries. 
He was supplied with helpers, varying in 
number from three to six, who received In- 
structions from him. On the day of the acci- 
dent, plaintiff was engaged In riveting the 
base of an upright boiler. The base was not 
a perfect cylinder, but was smaller at the 
top than at the bottom. It was about 14 
Inches high, and weighed about 250 pounds. 
PlalntlfT suspended It by two hoolcs from a 
crane, and asked two of the helpers to steady 
It while he applied a pneumatic riveter. In 
order to secure proper contact it was appar- 
ently necessary to tilt the base slightly. The 
pneumatic riveter was applied under some 
pressure to the side of the base, aAd when It 
was withdrawn, one of the helpers let go of 
the base, and it slipped from the hooks and 
fell, injuring plaintiff's hand. It appears 
from the evidence that Gordon, the helper 
in question, had been employed in the estab- 
lishment about a year, but had never been 
called upon to assist in steadying a base of 
that particular description. It was, as plain- 
tiff said, "something out of the ordinary" 
as to shape, and he liad made but five of them 
during a period of three years. Plaintiff 
gave no instruction to the helper, Gordon, as 
to steadying the base while the riveting was 
being done. The service required was not 
complicated, or difficult to perform. There 
is nothing In the evidence to show that the 
young man was Incapable. He seems to have 
been taken by surprise at the effect upon the 
base of the removal of the pressure, and 
faQed to hold on steadily. A word of caution 
in advance from the plaintiff, who was stand- 
ing close by, would, no doubt, have prevented 
the accident It cannot justly be charged to 
any lack of experience, upon the part of the 
helper, in assisting to steady a piece of metal 
of that particular size and shape. It may 
very well be that, for the performance of 
complicated or difficult work involving dan- 
ger, an employer would be bound to furnish 
not only competent, but experienced, men, 
especially for leadership and supervision. 
But in the present case, the plaintiff himself 
was supervising the work, and the part which 
the helper was called upon to perform was of 
the simplest possible character. He was 
asked to hold but little weight, and was mere- 
ly to lay his hand upon the base to help 
steady it, while supported by the hooks. 

II] If any instruction or warning was need- 
ed to aid him in the discharge of this very 
simple duty, the necessity for It arose upon 
the instant, and the word of caution should 
have come from the plaintiff, who was in 
immediate charge of the operation. The 
mere relation of master and servant can nev- 
er imply an obligation upon the part of the 
master to take more care of the servant than 



he may reasonably be e:tpeeted to take of 
himself. 

[2, 3] The presumption is that the employer 
has exercised proper care in the selection of 
employes, and it is incumbent upon one 
charging negligence, in the employment of 
men, to show it by proper evidence. The 
plaintiff here was acquainted with the help- 
er, and knew he had been working in the 
shop for at least a year. The evidence shows 
no suggestion that any complaint as to incom- 
petence upon the part of the helper was ever 
made by the plaintiff, or any one else. The 
fact that he was employed merely as a helper 
is in itself an indication that, having prop- 
er capacity, he was expected to gain skill in 
the work and knowledge of its details, under 
the guidance and instruction of more ex- 
perienced men, such as plalntifl, with whom 
he was associated. 

We find nothing in this record to Justify 
placing the legal responsibility for the re- 
sults of the accident upon the defendant. 

The first assignment of error Is sustained, 
the judgment is reversed, and is here entered 
for defendant. 

(257 Pa. M) 

MUIiHERN et al. v. PHIIADELPHIA 
HOME-MADE BREAD CO. 

(Supreme C!ourt of Pennsylvania. March 5, 
1917.) 

1. MtmiCIPAI, OOBPOBATIONS «=3705(3)— UsK 

or Stbeet— Gabk as to Childrkii. 
Special caution on the part of driven pf 
vehicles is requi/ed for the protection of chil- 
dren congreg:ating in the vicinity of a school- 
house. 

[Ed. Note.— For other cases, see Municipal 
Corporations, Cent. Dig. S 1515.] 

2. MCNIOIPAI, COBPORATIONS €=706(6)— UsE 

OF Streets— Nbqlioenck or Driver or Ve- 

HioiJ! — Question fob Juey. 

In an action for damages for personal in- 
jury to a school child from being ran over by a 
wagon, held, on the evidence, that whether the 
driver's failure to stop it or turn aside to 
avoid the injury was negligence was a qnes- 
tion for the jury. 

[BM. Note.— For other cases, see Municipal 
Corporations, Cent Dig. { 1518.] 

Appeal from Court of Common Pleas, Phil- 
adelphia County. 

Trespass for damages for personal Injuries 
by Anna Mulhem, by her father and next 
friend, WiUiam J. Mulhem, and by WilUam 
J. Mulhem in his own right against the 
Philadelphia Home-Made Bread Cktmpany. 
Verdict for plaintiff Anna Mulhem for $2,- 
000, and for plaintiff William J. Mulhem for 
$200, and judgment thereon, and defendant 
appeals. Affirmed. 

Argued before MESTREZAT. POTTER, 
STEWART, MOSCHZISKER, and FRA2^ 
ER, JJ. 

William H. Peace, of Philadelphia, for ap- 
pellant. John Martin Doyle and Eugene 
Raymond, both of Philadelphia, for appel- 
lees. 



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HARDIB ▼. BARRETT 



76 



POTTEIR, J. These appeals are grounded 
npon the refusal of the conrt below to give 
binding Instructions In fiivor of the defend- 
ant, or to enter Judgment non obstante vere- 
dicto. It appears from the testimony that 
abont noon on February 4, 1909, some school 
children just released from, school were 
walking and sliding upon the ley sidewalk 
on the south side of Tasker street near Eight- 
eenth. Anna Mulhem, a child some ten 
years of age, fell or was pushed over the 
curb Into the edge of the driveway of the 
street as a wagon driven by an employ^ of 
defendant was approaching, the right-band 
wheels running near the curb. The horse 
was turned somewhat aside, but the front 
wheel of the wagon ran over the little girl's 
leg and broke it The question for determi- 
nation was whether the driver, by the exer- 
cise of proper care, should have seen the 
child after It fell and was lying partly in 
the street ahead of him in time to stop his 
wagon, or torn it aside to avoid the accident, 
and whether his failure to do so was negli- 
gence. 

A bystander testified that he saw the child 
lying partly in the gutter when the wagon 
was some 30 feet distant, and he said that 
the driver was not then looking ahead, but 
was at the moment looking backward into 
the body of his wagon. The Jury may well 
have found that the proximity of a number 
of children upon the sidewalk at the side of 
the street upon which he was driving and 
the well-known tendency of children to make 
sudden and heedless dashes should have put 
the driver upon his guard at that particular 
place, at least to the extent of keeping bis 
horse well in hand. 

[1] It is common knowledge that special 
caution is required for the protection of chil- 
dren who congregate in the vicinity of a 
schooUionse. The plalntifiF Anna Mulhem 
testified that after she had fallen down and 
was lying partly in the gutter she saw the 
wagon coming along the street some 30 to 60 
feet away from her. If this was the fact, 
the driver could have stopped his wagon or 
tamed it aside before reaching her, if he 
was moving at a proper rate of speed and 
bad his horse under proper control. 

[2] On the other hand, the evidence upon 
the part of defendant tended to show that 
the child came so suddenly and unexpectedly 
from the sidewalk Into the line of travel In 
the street that the accident was unavoidable. 
If this was the case, defendant should not 
have been held responsible. 

Coimsel for appellant has contended with 
great earnestness that the trial Judge should 
have held as matter of law that the evidence 
did not Justify an inference of negligence 
npon the part of the driver. But we are un- 
able to agree with his contention tn this re- 
spect. As we read the evidence, the question 
was purely one of twA upon conflicting state- i 



menta by the witnesses. If the Jury accept- 
ed as credible the evidence offered by the 
plaintiff, they were Justified in inferring neg- 
ligence ui)on the part of the driver. Bad 
they accepted as accurate the testimony on 
behalf of the defendant, they must have 
concluded that the driver was not at fault 
in any way, and the verdict would have been 
for the defendant. We may feel that the 
Jury might very properly have reached an- 
other conclusion, but the question of fact in 
dispute was for them to decide. To the 
charge of the court in submitting the case 
no exception was taken. 
The Judgment is a£Brmed. 



(2CT Pa. «) 
HARDIE et ux. v. BAHRETT. 

(Supreme Court of Pennsylvania. Uarch 6, 
1917.) 

1. HlOHWATS ®=3l75(l)— HiBED AUTOKOBILB 

— Injury — Contbibutoky Neouoence. 
When, the dangers arising from the negligent 
operation of a hired automobile in which one 
is riding as an invited guest are manifest to 
a passenger having an adequate opportunity to 
control the situation, and he permits himself 
without protest to be driven to his injury, he 
is fixed with his own negligence which bars a 
recovery. 

[Ed. Note.— For other cases, see Highways, 
Cent. Dig. {§ 461-464.] 

2. Highways ®=al75(l) — CotusioN — Con- 

TBIBUTOBY NEOLIGENCE. 

Where a husband and wife hired an auto- 
mobile driven by the owner's chauffeur and 
made no effort to have the chauffeur drive at 
a proper speed and on the right side of the 
street, they would be guilty of contributory negli- 
gence barring their recovery for injuries from 
a collision. 

[Ed. Note.— For other cases, see Highways, 
Cent. Dig. iS 461-464.] 

3. Highways ©=»175(1)— Pebsonai, Ihjubt— 
Neouoence— Pboximate Cause. 

In an action by a husband and wife for per- 
sonal Injuries when the hired automobile in 
which they were riding in New Jersey collided 
with defendant's wagon during a time when the 
New Jersey law required that it display lights, 
the fact that there were no lights on defendant's 
wagon, if not the proximate cause of the acci- 
dent, even though negligence, would not justify 
a recovery. 

[Ed. Note.— For other cases, see Highways, 
Cent. Dig. {( 461-164.] 

Appeal from Court of Common Pleas, Phil- 
adelphia County. 

Trespass for damages for personal injuries 
by James G. Hardie an'd Olive M. Hardie, 
his wife, and James G. Hardie against Wil- 
liam M. Barrett, as president of the Adams 
Express Company, a Joint-stock association 
under the laws of New York. Verdict for 
defendant and Judgment thereon, and plain- 
tiffs appeal. AflSrmed. 

Argued before BROWN, C. J., and POT- 
TER, MOSCHZISKER, FRAZER, and WAI^ 
LING, JJ. 



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101 ATIiANTIC REPORXEB 



(Pa. 



Sydney Toung, of Fblladelplila, tar appel- 
iants. John Lewla Evans and Thomas D&- 
Witt Cuyler, both of Phlladelpbla, for ap- 
pellee. 

MOSCHZISKER, 3. On the evening of 
August 22, 1913, James G. Hardle, and Olive 
M., his wife, hired an automobile with its 
driver, one Louis S. Chester, Jr., to convey 
them, with two women guests, from Sea Isle 
City, N. J., to a nearby yacht club. On the 
way a collision occurred between the car in 
which they were riding and a one-horse ex- 
press wagon belonging to the defendant com- 
pany. Both Mr. Hardle and his wife were 
injured ; they sued for Vlamages, and by ex- 
press agreement of record their cases were 
tried together, the issues Involved were sub- 
mitted to the Jury, and in each Instance the 
verdict favored the defendant, judgments 
were entered accordingly, and the plalntUTs 
have appealed. 

The testimony on all the Important Issues 
was most conflicting; but, when vlewefd In 
the light of the verdicts rendered, the fol- 
lowing facts can be found th«%from: The 
accident happened on a rainy evening, be- 
tween 8:30 and o'clock. Mr. Hardle occu- 
pied a front seat In the automobile, t>eside 
the chauffeur, while Mrs. Hardle, her moth- 
er and the other woman were In the tonneao. 
The car was equipped with five lights, "two 
large acetylene gas lamps on the head, two 
on the side, and one rM light In the rear." 
The headlights Illuminated the road so that 
one In the car "could see 200 feet in front," 
and made the way "bright enough to see dis- 
tinctly the curb." The part of the road upon 
which the accident happened had a curb on 
the west side and a single track trolley line 
on the east, with a space of 22 feet between. 
The automobile was traveling southward, on 
the left-hany, or wrong, side of the road, at 
an estimated speed of 40 miles an hour. 
The wagcm was traveling northward on the 
right-hand, or proper, side of the road, tJie 
horse going at "a very slow trot." The driv- 
er of the latter vehicle. In an endeavor to 
avoid the collision, had his horse "nearly 
half way over" the trolley track when the ac- 
cident occurred. The nutoraobile struck the 
wagon on the near front wheel; both ve- 
hicles were badly damaged. 

On the foregoing facts, It may be seen 
that the chauffeur, and not the 'driver of the 
horse and wagon, was the one guilty of the 
negligence which caused the accident; but 
the plaintiffs complain that the trial judge 
committed substantial error by the manner 
in which he submitted certain Issues to the 
jury. In disposing of these complaints, we 
shall first consider together assignments 1 
and 2. 

In brief, the trial judge Instructed that, if 
the automobile was being driven with "man- 
ifest improper speed," or U the chauffeur 



had his car "manifestly on the wrong place 
in the road," and these faults, or either o£ 
them, contributed to the happening of the ac- 
cident, If the plaintiffs made no effort to "get 
him to go at a proper rate of speed" or "over 
on the right side of the road," they would 
be guilty of contributory negligence, but that 
they could not be found so guilty unless the 
before-mentioned alleged faults on the part 
of the chauffeur were "manifest" 

In reviewing these instructions. It must 
be kept in mind that the plaintiffs did not 
endeavor to excuse the fact that the chauf- 
feur was on the wrong side of the road by 
explaining he was temporarily and justifia- 
bly out of the regular track; on the contrary, 
they called him as their witness, and each 
of them gave testimony to substantiate his 
story that, at the time of the accident and 
prior thereto, he had been continually driv- 
ing on the proper side of the road, at a speed 
not exceeding 15 miles an hour, which was 
much lowered Immediately before the colli- 
don. Both plaintiffs not only stood upon 
but reiterated this account of the manner in 
which the automobile was alleged to have 
been handled ; and, of course, ex necessitate, 
it excluded the possibility of a remonstrance 
on their part having been made to the chauf- 
feur, by eliminating all possible reasons 
therefor. Moreover, the plaintiffs' attitude 
at trial. In a manner, adopted, or set their 
seal of approval upon, the chauffeur's real 
conduct, as the jury found it to be. 

[1] The rule is well established that, when 
p<»slble dangers arising out of the negligent 
operation of a hired vehicle or a conveyance 
In which one Is riding as an invited guest 
are manifest to a passenger who has any ad- 
equate opportunity to control the situation, 
if he sits by without protest and permits 
himself to be driven on to his Injury, this 
is negligence which will bar recovery. In 
other words, the negligence of the driver ia 
not Imputed to the passenger, but the latter 
Is fixed with his own negligence when he 
joins the former In testing manifest dangers. 
For discussion and, in some instances, ap- 
plication of this rule, see Township of Cres- 
cent V. Anderson. 114 Pa. 643, 8 AtL 379, 00 
Am. Rep. 367 ; Dean v. Penna. B. R. Co., 129 
Pa. 614, 18 AU. 718, 6 L. R. A. 143, 15 Am. 
St Rep. 733; Winner v. Oakland Township, 
158 Pa. 405, 27 Att. 1110, 1111; Dryden v. 
Penna. R. B. Co., 211 Pa. 620, 61 Atl. 249; 
Thompson v. Penna. B. R. Co., 215 Pa. 113, 
64 Atl. 323, 7 Ann. Cas. 351; Kunkle v. Lan- 
caster County, 219 Pa. 52, 67 AU. 918; Walsh 
V. Altoona & Logan Val. Elec. Ry. Ca, 232 
Pa. 479, 81 AtL 551 ; Wachsmlth v. Balto. & 
Ohio R. R. Co., 233 Pa. 465, 82 AO. 755, Ann. 
Cas. 1913B, 679 ; Trumbower v. Lehigh Val- 
ley Transit Co., 235 Pa. 397. 84 AtL 403; 
Senft V. Western Marj-land Railway Co., 246 
Pa. 446, 92 Atl. 553; Dunlap v. Philadel- 
phia Rapid Transit Co., 248 Pa. 130, 93 AtL 
873. 



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KinSHNE ▼. BROWIT 



77 



(2, 3] Here, the <deftr, string, preponderat- 
ing eTidence shows that the chauftenr was 
seea by numerous disinterested witnesses, 
fiome three or four blocks north from the 
point of the accident, driving In a reckless 
manner, at an estimated siieed of 40 miles 
an hour, on the wrong side of the road, quite 
close to the trolley track ; furthermore^ the 
aVlmisslons of the plaintiffs show that they 
both were famUlar with automobiles and 
able to appreciate the possible dangers of 
this highly improjier course of conduct. Aa 
already Indicated, since the story told by the 
plaintiffs, as to the management of the mo- 
tor was rejected by the Jury, the position 
assumed by tbe former at trial left but one 
conclusion i>osslble; 1. e., that they had Join- 
ed the chauffeur In testing the dangers of 
the situation created by the way in which the 
car was in fact being driven. Under the cir- 
cnmstances, we see UO error In the instruc- 
tions complained of. 

At this point it is but fair to say that the 
instructions in question were coupleJd with a 
correct and fair presentation of the plain- 
tiffs' side of the case, and the Jurors were 
plainly told that, if they believed the latter's 
testimooy, they should render a verdict ac- 
cordingly. 

One other assignment calls for considera- 
tion. There Is an act of assembly in New 
Jersey which requires all vehicles to have 
lights displayed thereon during specified 
hours, covering the time when this accident 
happened ; and the defendant admitted there 
was no light on its wagon. The trial Judge 
directed attention to this state of affairs, and 
Instructed the Jurors that. If the absence of 
a light "contributed to the accident, If that 

• ♦ ♦ prevented the plaintiffs' chauffeur 
from seeing the horse and wagon, that may 
be considered by you as an act of negligence 
which caused the accident; • * • and, 

• • ♦ llf • • • there was no negli- 
gence on the part of the plaintiffs, the plain- 
tiffs would be entitled to your verdict" 
nieae instructions were practically the 
last word to the Jury, and we tliink them 
as ftvorable to appellants as they had a 
right to expect Had there been a light 
on the wagon, it might have saved the plain- 
tiffs from the result of their own negli- 
gence In permitting the car occupied by 
them to be driven in the manner in which 
it was operated on the night of the accident; 
but even this Is hardly probable, since the 
plaintiffs said the acetylene gaslights on the 
front of their automobile enabled them to 
see at least 200 feet ahead. On the other 
hand, if the absence of a light on the wagon 
was not the proximate cause of the accl'dent, 
even though an act of negligence on the part 
of the defendant, it would not Justify recov- 
ery by the plaintiffs (Christner v. Cumber- 
land & Elk I.lck Coal Co., 146 Pa. 67, 23 AU. 



221); and this In effect is what the trial 
Judge said to the Jury. 

The , assignments of error are- overruled, 
and the Judgments affirmed. 



(26T Pa. 37) 
KUEHNE v. BROWN. 

(Supreme Court of Pennsylvania. March 5, 
1917.) 

1. MtJWiciPAi, CoRPOBAnoNS <S=s>70e(6)— Op- 
kration of automobili — negligence — 
Question for Jury. 

In an action for injury from the negligent 
operation of an automobile, where the evidence 
of defendant's failure to blow his horn was only 
negative, and there was no positive evidence 
that h& gave such warning, the weight of the 
negative evidence was for the jury. 

[Ed. Note. — ^For other cases, see Municipal 
Corporations, Cent. Dig. f 1518.] 

2. MuNicrPAL Corporations <8=>706(3)— Op- 
EKATioN OF Automobile — I^st — Nkou- 

eXNCE. 

In action for personal injury to a child 
struck by an automobile while m a highway be- 
tween crossings, the test of defendant's liability 
was whether in the exercise of due care he 
should have seen the child in time to- have 
avoided injury. 

[Ed. Note. — For other cases, see Municipal 
Corporations, Cent Dig. { 1515.] 

3. MnNiciPAL Corporations <S=>706(e)— Op- 
eration OF Autohobile— Personal Injury 
—Question foe Jubt. 

In such action, held, on the evidence, that 
whether defendant was negligent in not seeiag 
the child in time to have avoided the Injury was 
for the jury. 

[Ed. Note. — For other cases, see Municipal 
Corporations, Cent Dig. { 1618.] 

4. Municipal Corporations i®=9706(6)— Op- 
eration or AUTOUOBILE — Neoligenoe — 
Question fob Jubt. 

In a father's action In his own right for 
injury to minor child by defendant's automobile, 
conflicting testimony as to its speed and dis- 
tance retjuired to come to a stop made a ques- 
tion for jury as to defendant's negligence in op- 
erating the car. 

[Ed. Note.— For other cases, see Municipal 
Corporations, Cent Dig. | 1518.] 

6. Parent and Child «=s>7(9)— Operation of 
Automobile— Injury to Child— Pabhnt's 
Contributory Neoliqence. 
Where the father of a child, suing jointly 
with him for personal injury from defendant's 
automobiie, had permitted the child to cross a 
highway when the automobile was approaching 
only 75 feet away, notwithstanding his state- 
ment that he looked in both directions and 
saw nothing approaching, he was guilty of con- 
tributory negligence barring a recovery in his 
own right 

[Ed. Note.— For other oases, see Parent and 
Child. Cent Dig. § 94.] 

Appeal from Court of Common Pleas, 
Philadelphia Oount?. 

Trespass by Paul Kuehne, Jr., by his fa- 
ther and next friend, Paul Kuehne, and by 
Paul Kuehne, In his own right, against 
George H. Brown, to recover for personal In- 
juries to the minor plaintiff. Compulsory 
nonsuit entered as to both plaintiffs, which 
the court subsequently refused to take off. 



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101 ATLA.OT;IC aEPOBTBR 



(Pa. 



and plaintiffs appeal. AiBrmed as to one 
plaintiff, and reversed as to the other. 

Argued liefore BROWN, O. J., and MES- 
TRBZAT, POTTER, STEWART, and FRA- 
ZER, JJ. 

W. Horace Hepburn, Jr., of Philadelphia, 
for appellant. 

FRAZER, J. This is an action by a father 
and his minor child to recover for injuries to 
the latter sustained by reason of alleged neg- 
ligence of defendEint in operating his automo- 
bile. A nonsuit was entered by tJie court 
below as to both plaintiffs, and from this ac- 
tion they have appealed. 

At the time of the accident, September 6, 
1915, the plaintiff, Paul Kuehne, Jr., was five 
years of age. He and his father, the other 
plaintiff, were standing on the west side of 
Rising Sun Lane, near Comly street, in the 
City of Philadelphia, talking with friends. 
This is a suburban section of the city, and 
Rising Sun Lane is about 60 feet in width, 
with trolley tracks on each side of the street, 
and a driveway for vehicles in the center ; the 
driveway being of sufficient width to permit 
three vehicles to stand abreast. The street 
Is vrithout sidewalks, but at the place where 
plaintiffs were standing is a platform con- 
structed of planks, and extending across the 
gutter to the car track. The father with 
his two children were standing on the plat- 
form referred to when one of the occupants 
of an automobile, occupied by the child's 
mother and others and standing on the op- 
posite side of the street from the platform 
on which the boy and his father stood, called 
to the child, Paul, that there was room for 
lilm in the car. The boy immediately started 
to cross the street, and was about midway 
between the platform and the automobile 
when he was struck by defendant's car, com- 
ing south at a speed estimated by various 
witnesses at from 8 or 10 to 40 miles an hour. 
There is no dispute, however, that the horn 
was not blown, or other warning given of its 
ai^roach. Another car was standing on 
the same side of the street as the car in 
whidi Mrs. Kuehne was seated, 100 feet 
down the road in the direction from which 
defendant's automobile approached, and, to 
pass this car, defendant was obliged to turn 
to the left side of the road. There were 
no obstructions in the street and nothing to 
prevent defendant from seeing the persons 
standing on the platform adjoining the rail- 
way tracks, or the boy on the street after 
leaving the platform. The distance from 
the platform to the point at which the child 
was injured was estimated, by the witnesses, 
at from 12 to 20 feet. Witnesses also testified 
that when the child started to cross the street 
defendant's automobile was in the neighbor- 
hood of 75 or 100 feet away, and that the 
brakes were not applied to the car until with- 
in about 6 feet from the child, and that fol- 
lowing the collision the automobile skidded 



on the gravel road for a distance of more 
than 30 feet. 

The court below condnded the evidence of 
negligence on the part of defendant was in- 
sufficient to submit to the Jury, so far as the 
rights of the minor were concerned, for the 
reason that the accident did not happen at 
a street crossing; that the evidence of de- 
fendant's failure to give warning of his ap- 
proach was negative only; and tliat there 
was nothing to impose upon him the duty of 
blowing his horn at the particular spot where 
the accident happened. 

[1-3] In so far as the question of warning 
Is concerned, while the evidence of failure 
to blow the horn was negative only, there 
was no positive evidence that defendant 
gave such warning, consequently, the weight 
of the negative evidence was for the Jury. 
Longenecker v. Penna. R, B. Co., 106 Pa. 328; 
Haverstlek v. Penna. R. B. Co., 171 Pa. 101, 
32 Atl. 1128. However, to the extent that the 
rights of the child are concerned, whether 
or not warning was given was not a vital 
matter, as there is no question of contribu- 
tory negligence on his part, the sole ques- 
tion in Ills case being whether defendant, 
in the exercise of due care, should have seen 
the child In time to avoid the accident The 
evidence shows defendant's view of the road, 
and of the child on the platform over the 
gutter and also in the street, was unob- 
structed, making the situation before him 
such as to Impose upon him the use of due 
care to avoid injuring those who were right- 
fully using the highway, even though there 
was no crossing at this particular point. 
There is evidence frcHn which the Jury might 
have found that the child did not suddenly 
dart in front of the car at a time too late 
for defendant to avoid the accident, but on 
the contrary that there was ample oppor- 
tunity to stop his car had he been looking 
ahead. If approaching at an extreme rate 
of speed, as testified to by several witnesses, 
and as indicated by the skidding of the ma- 
cbine upon endeavoring to stop, it cannot 
be said, as matter of law, that defendant 
was performing his full duty toward those 
who were properly using the highway. As- 
suming the car was operated at the mini- 
mum rate of speed, testified to by other wit- 
nesses, no apparent excuse is shown for de- 
fendant not seeing the chUd in time to stop 
his car and prevent the accident, in view of 
the testimony as to the distance whi<4i he 
traveled from the time the child started to 
cross from the platform to the autmnoblle, 
and the unobstructed condition of the street 
Consequently, the question whether he had 
notice of the presence of the child in the 
road in time to appreciate the danger and 
avoid a collision was one for the Jury to 
determine, under proper instructions from 
the court Tatarewicz v. United Traction 
Co., 220 Pa. 560, 60 Atl. 995; Bloom v. 
Wbelan, 56 Pa. Super. Ct 277. 
[4, S] In so far as the rights of the fftttaer 



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IN KB HimXBS'S BSXATB 



7» 



are concerned tbe confilctinf testimony as to 
the veed of tbe car, together wltb tbe dis- 
tance required to oome to a atop, was suffl- 
%ient to sobmlt to tbe Jury on tbe qneatlon 
of defendant's negligence in operating tbe 
car. As to tbe contributory negUjience of 
the father, his testimony was that before 
permitting tbe child to start across the street 
to the automobile in which his wife was 
seated he looked in both directions and saw 
no car approaching. Considering there was 
an unobstmcted view of the street for 300 
or 400 yards, with the exception of the pres- 
ence of another automobile, which was about 
lOO feet distant, and In view of tbe tesd- 
mony that defendant's car was approximately 
75 feet away when tbe child was permitted 
to start across the street, It is useless for 
plaintiff to say bo looked and did not see 
tbe antomoblle when It mast have been In 
plain view at tbe time ; hence his negligence 
In permitting a child of such tender years 
to cross the street alone is too apparent to 
require submission to the Jury. To the ex- 
tent, therefore, that the father is concerned, 
the nonsuit was proper. Glassey v. Heston- 
TiUe, Mantua & Falrmount Pass. Ry. Oo., 67 
Pa. 172; Johnson et ux. v. Reading City 
Pass. By., 160 Pa. 647, 28 Atl. 1001, 40 Am. 
St Rep. 752; Pollack v. Penna. R. R. Oo. 
(No. 2) 210 Pa. 634, 80 Atl. 812, 105 Am. St 
Rep. 846. 

Tbe fourth assignment of error is sus- 
tained, the Judgment is reversed, and the 
record remitted wltb a new Tenlre. 



(2S7 Fa. 13) 

In re HUNTER'S ESTATE et al. 

(Supreme (Jourt of Pennsylvania. March 5, 
1917.) 

1. MoBTOAQES <S=»559(3) — Mortgaoee's Rb- 
LBA8E OF Title— Moktoaoob's Peesonal 
LiABiLrrr. 

Where a mortfi^gee has parted with his title 
to tbe mortgaged premises, his release of part 
thereof without the mortgagor's knowledge or 
consent discharges the mortgagor from personal 
liability for any loss to the mortgagee from a de- 
ficiency In the proceeds in a subsequent sale un- 
der foredoBure proceedinc*, as by such release 
the mortgagee assumes the risk of the unreleased 
part of the property. 

[Ed. Note. — For other cases, see Mortgages, 
Cent Dig. i 1592.] 

2. MoBTOAOKS «=>568(3)— Penal Bond— Lia- 

BIUTT. 

In an audit of tbe account of a substituted 
trustee of an assigned estate, it appeared that 
prior to tbe assignment the assignor bad mort- 
gaged real estate and had given a penal bond to 
further secure the mortgage debt, and that sub- 
sequent to the assignment parts of tbe realty 
were released from the lien of the mortgage, 
Tithoat the mortgagor's knowledge or consent, 
and that the mortgaged premises were after- 
wards sold for a sum insufficient to pay the 
mortgage. Held, that the mortgagor was dis- 
charged of any liability on the bond. 

fEd. Note. — For other cases, see Mortgages, 
Cent Dig. J 1592.] 



Appeal from Court of O(nmnon Pleas, Phil- 
adelphia. 

Henry K. Fox, execntM- of the estate of 
Elizabeth M. Lassalle, deceased, appeals from 
a decree dismissing exceptions to the report 
of Charles 'H. Mathews, auditor, in tbe mat- 
ter of tbe estate of James Hunter and John 
Hunter, individually, and as copartners. Af- 
firmed. 

Argued before BROWN, O. J., and POT- 
TER, MOSCHZISKEB, FRAZEB, and WAL- 
LING, JJ. 

F. B. Vogel and Henry K. Fox, both of 
Philadelphia, for appellant. George Sterner 
and Charles R. Magulre, both of Philadelphia, 
for appellees. 

WALLING, J. This is an appeal from a 
decree of distribution of an assigned estate. 
In 1887 John Hunter Individually and tbe 
firm of James and John Hunter made a gen- 
eral assignment to John Field, for benefit of 
creditors. Prior thereto in 1878 said James 
Hunter and John Hunter, being tbe owners 
of certain lands, comprising about 32 acres, 
and situate near Fifty-Fifth street and Lan- 
caster avenue, Philadelphia, executed a mort- 
gage thereon and an accompanying bond to 
Wbl C. Houston, administrator, etc, to se- 
cure a loan of $27,000, payable in three years, 
with Interest. Some days later John Hunter 
conveyed his interest In tbe mortgaged prem- 
ises to James Hunter, who thereafter and be- 
fore the assignment executed a second mort- 
gage upon the same property, by virtue of 
which, subsequent to tbe assignment, the 
same was sold by the sheriff and the title 
thereto, subject to the prior mortgage, be- 
came vested in Margaret D. Hunter, who 
died in May, 1891, Intestate. And In Decem- 
ber of the same year, by partition among 
her heirs, su^b title became vested in Wm. 
D. Hunter. Tbere then remained unpaid on 
the first loan the sum of $10,000. However, 
such title so vesting In Wm. D. Hunter did 
not Include all the lands embraced in tbe 
original mortgage, some having been released 
meantime as hereinafter stated. On May 26, 
1891, tbe administrator entered Judgment 
on the bond accompanying tbe first mortgage; 
and on November 18, 1892, he assigned the 
bond and mortgage to James M. Connely, the 
father-in-law of Wm. D. Hunter, for the coa- 
sideration of $10,000. 

Between the date of the assignment for 
benefit of creditors and the time of tbe trans- 
fer of the bond and mortgage to Connely. 
the holder of the first mortgage bad released 
from the Hen thereof twelve separate pieces 
of land; some of which were released for 
the nominal consideration of $1 each. And 
It does not appear that tbe original mort- 
gagors, or their assignee, consented to such 
release or bad knowledge thereof. On No- 
vember 23, 1894, at tbe Instance of Connely 
and on the Judgment entered on tbe bond 



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101 ATLAigriO REPORTER 



(Pa. 



as aforesaid, all of the nnreleased part of the 
land Included in the first mortgage was sold 
by the sheriff for $2,000, at which sale Con- 
nely became the purchaser, and on the same 
day conveyed a portion of the premises so 
bought by him to James Dnnlap for $15,000. 
Two months later Connely assigned the mort- 
gage and Judgment entered on the bond to 
his son-in-law, Wm. D. Hunter, for the con- 
sideration of |1; and the latter same day 
reassessed the damages on the Judgment at 
$9,281.66. And on February 7, 1895, Con- 
nely, also for the consideration of $1, made 
a deed to his said son-in-law for the balance 
of the land included in the sheriff's sale 
"subject to existing incumbrance." On the 
5th of the following June, Wm. D. Hunter 
sold the land conveyed to him by the said 
last-named deed to James B. Johnson for 
$12,000, "clear of Incumbrance"; by various 
transfers, the first mortgage and judgment 
on the accompanying bond became vested In 
appellant In 1907. Since that date the judg- 
ment has been twice revived, and on each 
occasion judgment was entered for want of 
an appearance, on two returns of "nihil 
habet." The last of these Judgments was 
entered February 20, 1914, at which time 
the damages were assessed at $22,351.22. 
James Hunter died in 1896, John Field In 
1904, and John Hunter In 1910. The assignee 
filed a partial account in 18S9 and a final ac- 
count In 1897, both being duly audited and 
confirmed, and no claim being presented on 
account of the first mortgage and bond at 
either of the audita. 

In 1006 Herman H. Wilson was appointed 
substituted trustee in place of John Field, 
then deceased. And in 1911 the substituted 
trustee filed an account showing a balance 
In his hands as the proceeds of a private 
sale of real estate, formerly the property 
of John Hunter. An auditor was appointed 
to pass upon exceptions and report distribu- 
tion of the balance; and before him appel- 
lant presented his claim on the revived judg- 
ment. Other claims amounting to $100,976.07 
were also presented and proven before the 
auditor; and to such other claims the net 
fund for distribution, amounting to $1,790.79, 
was distributed by the auditor and court 
below, to the exclusion of appellant's claim; 
and this appeal was taken from the final 
decree of distribution of the fund. 

[1] We entirely agree with the conclusion 



readied by the court below. Where the 
mortgagor has parted with his title to the 
mortgaged premises, a release of a part there- 
of by the mortgagee, wltboat the knowledge 
or consent of the mortgagor, will discharge 
the latter from personal liability for any 
loss to the mortgagee resulting from a de- 
ficiency in the proceeds of a subsequent sale 
in foreclosure proceedings. Meigs v. Tun- 
nicliffe, 214 Pa. 495, 63 Atl. 1010, 112 Am. 
St Rep. 769, 6 Ann. Cas. 549. See opinion 
by Mr. Justice Stewart. By such release 
the mortgagee assumes the risk of the un- 
released portion of the property being of 
sufilclent value to secure his debt. That he 
was not mistaken in this case appears from 
the fact that shortly after the sheriff's sale 
such unreleased property was resold for more 
than double the amount unpaid on the mort- 
gage. However, in the absence of fraud or 
collusion at the sheriff's sale, the profits 
on such resales would not Inure to the ben- 
efit of the original mortgagors. 

[2] The rights of creditors were fixed by 
the assignment; and while the confession of 
Judgment thereafter upon the bond would as 
against the mortgaged premises relate back 
to the recording of the mortgage, it would 
not give the obligee in such bond any rights 
superior to those of other creditors as to the 
balance of the assigned estate. The entry of 
such Judgment did not create a lien on land, 
aside from the mortgaged premises, which 
had previously passed from the mortgagors 
by deed of assignment for benefit of credi- 
tors. Cowan, Casey & Hutkoff v. Fenna. 
Plate Glass Co., 184 Pa. 1, 38 AU. 1075. a%e 
act of AprU 2, 1822 (7 Smith's Laws, 551; 
Stewart's Purdon, vol. 1, p. 1185), to which 
our attention was called at bar, authorizes 
the collection of the mortgage debt from the 
unreleased part of the premises, and provides 
for the protection of the rights of the re- 
spective part owners under sndi drcnm- 
stances, but makes no reference to the per- 
sonal liability of the mortgagor, and Is not 
applicable to this case. As In our opinion the 
release above stated of parts of the mort- 
gaged premises Is a complete answer to ap- 
pellant's dalm on the fund for distribution, 
it Is not deemed necessary to discuss other 
features of the case. 

The assignments of error are overruled, 
and the decree affirmed at the costs of the 
appellant. 



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Conn.) 



APPEAI< OF SCH£I<LEN 



81 



m conn. TN) 

Appeal ot SOHBJLLEN. 

(Snpreme Coort of Ehrron of Oonnecttcnt Jane 
14, 1917.) 

Municipal Cobpohations ®=»514(7)— Publio 

Improvements— AssKssuENTS. 
Where the city has constructed a sewer im- 
proTement, collected all the assessments there- 
for, and made full payment, it cannot raise an 
amount in excess of the cost by assessing benefits 
to one who has subsequently erected a dwelling 
and made connections with the sewer. 

[Ed. Note.— For other cases, see Municipal 
Corporations, Cent. Dig. { 1211.] 

Appeal from Superior Court, New London 
County ; Milton A. Shumway, Judge. 

In the matter of sewer assessment of the 
bwough of Groton. From a Judgment con- 
firming an a^essment of benefits for sewer 
Improvement, Pierre Lu Schellen, an abutting 
landowner, appeals. Reversed and remanded. 

The borough of Oroton is empowered by 
Its cbarter to lay out and construct a sewer 
system, to have supervision and control of 
the same, and to assess against persons whose 
property is specially benefited thereby such 
sums as tbey ought Justly and equitably to 
pay therefor to be determined according to 
such rule of assessment based upon frontage 
and area, either or both, as It may adopt as 
being Just and reasonable. Pursuant to this 
authority, tbe borough, In 1913 and 1914, 
laid out and constructed a sewer system, and 
assessed against the several owners of land 
abutting on the streets in which It was built 
the estimated cost of Its construction. This 
assessment was completed in May, 1013. The 
appellant, as the owner of a tract of land 
located at the comer ot Broad and Bams- 
dell streets, was one of tbe persons assessed. 
He and all others against whom the assess- 
ments were made paid tbe amounts thereof 
to the borough. Preparatory to making these 
assessments, the borough, acting under the 
authority of its charter, adopted a rule for 
the assessment ot benefits which provided 
that the estimated cost of the work should be 
assessed on the property specially benefited 
In tbe pr<^>ortioii of four-tenths to frontage 
and six-tenths to area ; the area to be calcu- 
lated to a line parallel with and not more 
than 100 feet distant from tbe street front- 
age. The rule provided for a departure from 
strict adherence to .the above provisions 
where such adherence would lead to injustice 
and for a certain frontage exemption in the 
case of comer lots. It was provided that 
the rate of assessment should be GO cents per 
lineal foot of frcmtage, and 7^ mills per 
square foot of area benefited. The assess- 
ments of 1913 were made in conformity to 
this rule. No change in or addition to any 
of tbe sewers has been made since their orig- 
inal construction In 1913 and 1914. 

Sabsequent to May, 1918, the appellant 
built a house upon his land which was lo- 
cated more than 100 feet from the street 



and connected the same with the sewer, and 
certain others did likewise. A modification 
of the rule of assessment was then made by 
the borough so that It was provided that In all 
cases where a bouse situated more than 100 
feet from tbe street should be connected with 
tbe sewer, a further and additional assess- 
ment should be made against the owner 
on account of the sewer with which connec- 
tion was made, such additional assessment 
to be made at the rate of 7% mills per square 
foot of area upon so much land not thereto- 
fore covered by the existing rule as would be 
Included within a circle having a radius of 
60 feet from the center of the house. Fol- 
lowing this modification and pursuant to its 
IMTOvisions, an additional assessment was 
made against the appellant amounting to 
$255.16. From that assessment the present 
appeal was taken. 

Other facts not pertinent to the opinion 
need not be stated. 

Jeremiah J. Desmond, of Norwich, and 
i Warren B. Burrows, of New London, for 
j appellant Arthur T. Keefe, of New London, 
for appellee. 

PRENTICE, C. J. (after staUng the facts aa, 
above). It Is an open question whether the 
borough's power to assess t)eneflts on account 
of this public improvement was not exhaust- 
ed before the attempted assessment appealed 
from was made In 1916, even though the actu- 
al cost of the work exceeded the estimated 
cost which was originally assessed and some 
portion of the actual cost remained undis- 
tributed over the property specially benefited. 
City of Chicago v. People ex rel. Norton, 56 
111. 327, 332; Meecb v. City of Buffalo, 29 
N. Y. 198, 216. Doubtless authority to make 
a snpplemmtal assessment to cover cost not 
already assessed may be conferred by stat- 
ute; but there appears to be no such grant 
of power to the borough of Groton. That 
question, however, Is one which we have no 
occasion to answer, since It nowhere appears 
in this record that the actual cost of tbe 
sewer system constructed exceeded Its esti- 
mated cost which, pursuant to the rule adopt- 
ed by the borough, was assessed on the prop- 
erty specdally benefited and by the owners 
of that property wholly paid In. In so far as 
appears, the borough has been fully compen- 
sated for the cost of construction by the prop- 
erty owners specially benefited and assessed. 
It Is without authority to raise an amount In 
excess of tbe cost of a public improvement 
through the meditun of an assessment of 
benefits, and that for aught that appears Is 
what the borough undertook to do when It 
made the assessment of 1916 against the ap- 
pellant 

There Is error; the Judgment Is set aside, 
and the cause remanded, with direction tc 
vacate the assessment appealed from. The 
other Judges concurred. 



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Ma ATLANTIC EEPORTEa 



(Conii. 



(91' Conn. 880) 

PICKETT ▼. BUIOKOLDT. 

<Supreme Court of EJrrors of Connecticut. June 
14, 1917.) 

1. Insane Peksons €=>92— Action bt Con- 
servator. 

Action to recover property of an incapable 
person would not be defeated because brought 
in his conserTator's own name and not in the 
ward's name, where the complaint alleged the 
conservator brought the action as such conserv- 
ator, since he was the proper person to brin^ 
the acUon, and under Gen. St. 1902, §§ 622, 023, 
as to nonjoinder and misjoinder and substi- 
tuting plaintiff, the ward's name might be sub- 
stituted on motion. 

[Ed. Note.— For other cases, see Insane Per- 
sons, Cent. Dig. §{ 161, 162.] 

2. Insane Persons «=»44 — Action bt Con- 
servator— Death OF Incapable Person. 

Deatli of an incapable person does not abate 
action brought for his benefit by his conserv- 
ator. 

[Ea. Note.- BH)r other cases, see Insane Per- 
sons, Cent. Dig. §§ C9, 70.] 

3. Insane Persons ®=»44— Action by Con- 
servator-Death OF Incapable Person— 
Substitdted Plaintiff— Administrator. 

Where conservator of an incapable person 
had sued In his own name for benefit of the 
ward, on the ward's death his administrator bad 
a right to be substituted as plaintiff under Gen. 
St 1902, J 62.3, as to substituted plaintiff, and 
Survival Act (Pub. Acts 1903, c. 193) i 1. 

[Ed. Note.— For other cases, see Insane Per- 
sons, Cent. Dig. §§ 69, 70.] 

4. Insane Persons «=>44 — Action by Con- 
servator— Death of Incapable Person — 
Survival of Cause of Action— "Kiout op 
Action." 

Undor the Survival Act, i 1, providing that 
■"no cause or right of action shall be lost or 
destroyed by death, etc, survival of actions is 
the rule and not the exception, and the presump- 
tion is that every cause or right of action sur- 
vives until the contrary is made to appear; the 
phrase "right of action" including the right to 
commence and maintain an action and being 
broad enough to include a right to be admitted 
to prosecute a pending action either as a co- 
plaintiff, or substitnted plaintiff (citing Words 
jind Phrases, Ilight of Action). 

[Ed. Note.— For other cases, see Insane Per- 
sons, Cent. Dig. $i €9, 70.] 

5. Insane Persons «=>44— Action bt Con- 
servator—Death of Incapable Person- 
Substitution OP Parties — Motion to 
Erase from Docket. 

Under Gen. St. 1902, i 822, providing that 
no action shall be defeated oy nonjoinder or mis- 
joinder of pai:ties, where administrator of an 
incapable person after his death entered to 
prosecute nnder Survival Act, § 2, an action 
commenced for such person in his lifetime by his 
conservator in his own na^e, instead of apply- 
ing to be substituted as plaintiff under Gen. St. 
1902, S 623, ns to substituted plaintiff, defend- 
ant's appropriate remedy was not a motion to 
dismiss and erase from the docket, but a motion 
to strike from the record tlic entry to prosecute. 
[Ed. Note.— For other cases, see Insane Per- 
sons, Cent. Dig. §§ 69, 70.] 

Appeal from Superior Court, New Haven 
County ; Joseidi P. Tuttle, Judge. 

Action by Etlvviu S. IHckett, Cionservator, 
against George W.. Rulckoldt From order 
erasing ease from docket, plaintiff appeals. 



Error, and cause remanded, with direction to 
restore it to docket. 

Leonard M. Daggett and Robert J. Wood- 
ruff, both of New Haven, for appellant Phil- 
ip Pond and Louis M. Roaenbluth, both of 
New Haven, for appellee. 

BEACH, J. This action was brought by 
the conservator in his own name to recover 
real and personal property alleged to have 
been transferred without consideration by 
the ward to his brother, while under the un- 
due influence of the transferee. Before any 
answer ,was filed the ward died, and the 
Union & New Haven Trust Company, his 
administrator, entered to prosecute. Ten 
months afterward the defendant filed a sug- 
gestion on the record of the termination of 
the conservatorship, and moved that the 
cause be dismissed and erased from the dock- 
et The motion was granted on the ground 
that the action was originally Improperly 
brought In the name of the conservator, and 
not in the name of the ward by the conserva- 
tor acting in his behalf; that as the action 
never stood in the name of the deceased ward, 
the statute authorizing the administrator of 
a deceased plaintiff to enter and prosecute 
does not avplj ; and that since no motion was 
made to substitute one plaintiff for another, 
the action was without a plaintiff. The old 
rule was that a conservator could not main- 
tain an action to collect the ward's debts in 
his own name ns conservator. Treat v. Peck, 
5 Conn. 280; Hutchlns v. Johnson, 12 Conn. 
376, 30 Am. Dec. '622; Rlggs v. Zaleskl, 44 
Conn. 120. Even If the rule still prevails, 
the consequences of a failure to observe It are 
very different now from .what they were 
when Biggs v. Zaleskl was decided in 1876. 

[1] The conservator was the proper per- 
son to bring the action,: and in his complaint 
he alleges that 'he brings it as the conserva- 
tor of Arthur Rulckoldt. Under sections 62i2 
and 628 of the General Statutes, the action 
could not have been defeated, in Rulckoldt's 
lifetime, because not brought in his name. 
Being on tlte face of the complaint beneficial- 
ly Interested, his name might have been en- 
tered or substituted as a plaintiff, on motion. 
In the meantime, the action, even if brought 
by the wrong plaintiff, was still pending. As 
was said In itowen v. National Life Ass'n, 63 
Conn. 460, 476, 27 Atl. 1059, 1062, the Prac- 
tice Act has "radically changed the old prac- 
tice with reference to joinder, admlsidon and 
dropping of the parties to a suit, and the 
changes were intentiiwaUy and deliberatelj- 
made." 

[2] When Rulckoldt died the action did 
not abate; nor was the conservator dis- 
charged by his ward's death. He still had 
tlie estate in his bands and must account 
for It to the court of probate. Until he .wus 
discharged tlie action was not without u 
plaintiff and, subject to possible objection 



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BLUE RIBBON OARAGK t. BALDWIN 



83 



wblch the defendant did not make, it remain- 
ed i>endliig In court, with the conservator as 
the sole nominal plaintiff, until August 7, 
1015, when the administrator entered to pros- 
ecute. If the administrator then bad a right 
to enter, the action remained iu court with 
two plaintiffs, until the final account of the 
conservator was accepted and he was dis- 
charged by the court of probate. The record 
does not show when the conservator was dis- 
charged, but that fact was not suggested on 
the record until Mar, 1916, ten months after 
the administrator had entered to prosecute. 

[3] We think the administrator had a right 
to be substituted as plaintiff under section 
623 of the General Statutes. Bulckoldt was 
the party for .whose benefit the action was 
brought, and his right to be substituted as a 
plaintiff in the action was a substantial right 
wbldi survived to the administrator. 

[4] The broad language of section 1 of the 
Survival Act of 1903 is that : 

"No cause or right of action shall be lost or de- 
stroyed by the death of any person, but shall 
survive in favor of or against the executor or 
administrator of such deceased person." 

Under this statute the survival of actions 
is the rule and not the exception, and the 
presumption is that every cause or right of 
action survives until the contrary is made 
to appear by way of exception to the rule. 
The phrase "right of action" includes the 
right to commence and maintain an action. 
Words and Phrases (vol 7) p. 6266. It is 
broad enough to include a right to be admit- 
ted to prosecute a pending action either as a 
coplalatlff, or substituted plaintiff; and un- 
der section 623 the administrator had a right 
to be substituted as plaintiff in place of the 
conservator. Nobody would doubt that the 
administrator of a decedent, who ought to 
have been made a defendant, but was omitted 
through mistake, could be joined as defendant 
In an action which survived against the es- 
tate, and we see no reason why the admin- 
istrator of a decedent who ought to have 
been Joined as a plaintiff, but was omitted 
through mistake, may not be admitted as a 
coplaintlff, or as substituted plaintiff, if nec- 
essary. In a pending action which survives In 
favor of the estate. 

[S] Strictly speaking, the right which sur- 
vived to the administrator In this case was 
the very same right .which the decedent bad 
in bis lifetime; vis. the right to be substitut- 
ed as plaintiff under section 623 of the Gen- 
eral Statutes. It is therefore true, as the 
memorandum of the superior court suggests, 
that the administrator ought to have made 
ai^licatlon under that statute to be substitut- 
ed as plaintiff, instead of entering to prose- 
cute under section 2 of the Survival Act. 
Nevertheless he succeeded in making himself 
a party on the record by entering to prose- 
cute, and the defendant's real grievance was 
not that the administrator had no right to 
come into the action, but that be bad come in 



through the wrong door. That being so, the 
appropriate remedy was not a motion to dis- 
miss and erase from the docket, but a motion 
to strike from the record the entry to prose- 
cute. Section 622 of the General Statutes 
provides that "no action shall be defeated by 
the nonjoinder or misjoinder of parties"; 
and this must Include the lesser proposition 
that no action should be defeated because 
the right party came into It, or attempted to 
come into It, in the wrong way. 

There is error, and the cause is remanded, 
with directi<m to restore it to the docket. 
The other Judges concurred. 



(11 Ckmn. <T4) 
BZiUB RIBBON OARAGE, Inc.. ▼. BALD- 
WIN et al. 

(Supreme Court of Errors of Connecticut June 
14, 1917.) 

1. Biixs AND Notes $=»414— Notice or Dis- 

EONOB. 

Under Negotiable Instruments Law (Pub. 
Laws 1897, c. 74) as well as the former law 
merchant, a bolder for collection of negotiable 
paper, which has been dishonored, performs his 
full duty in respect to notice of its dishonor by 
giving such notice in due form and time to the 
party from whom he receives it. 

[Ed. Note.— For other cases, see Bills and 
Notes, Cent Dig. Si 1142, 114&-1155.] 

2. Bills and Notes ^=>414 — Notice op Dib- 

HON<W. 

Under Negotiable Instruments Law, as well 
as former law merchant where negotiable pa- 
per before presentment has passed through sev- 
eral hands, whether of mere holders for collec- 
tion or of parties beneficially interested therein, 
notice given by each holder in turn to the prior 
one from whom, it was received is notice suffi- 
ciently given to fix' the liability of all indorsers 
included in the chain of notice, each holder for 
collection being regarded as a real holder, and 
his relation to the party from whom the paper 
is received being such that the latter is entitled 
to be treated as his immediate principal; and 
it is not necessary that notice of dishonor, to 
be effective in fixing the liability of indorsers, 
should be given by the holder at presentment di- 
rectly to the beneficial owner, disregarding all 
intervening holders for collection only. 

[Ed. Note.— For other cases, see Bills and 
Notes, Cent Dig. {g 1142, 1148-1155.] 

8. Bills and Notes ^ss.'iSO— Action Aoainst 

Indobser— FiNDiNoa of Fact. 
In action against indorser of a note which 
had been sent to a trust company for collection, 
a finding that the trust company had never been 
plaintitTs agent for any purpose whatsoever 
might be disregarded as a mere conclusion of 
law ; the facts showing the trust company to be 
a holder for collection and therefore as matter 
of law the owner's agent 

[Ed. Note.— For other cases, see Bills and 
Notes, Cent Dig. H 1911-1913, 1934.] 

4. Bills and Notes «=»420— Notice of Dis- 

HONOB. 

Where the holder of a note, receiving notice 
of its dishonor, notified a prior indorser and 
the original payee of the dishonor by telephone 
and personal visit and oral notification respec- 
tively, this was sufficient compliance with the 
Negotiable Instruments Law. 

[Ed. Note.— For other cases, see Bills and 
Notes, Cent Dig. U 1138-1140.] 



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84 



101 ATLANTIC REPORTER 



(Conn. 



Appeal from Court of Common Pleas, EWr- 
3eld County ; John J. Walsh, Acting Judge. 

Action by the Blue Ribbon Garage, Incor- 
porated, against R. L. Baldwin and otbers. 
From Judgment for plaintiff, the named de- 
fendant and others appeal No error. 

On February 15, 1915, the plaintiff be- 
came the owner of the note In suit in part 
payment for the sale to the defendant Bald- 
win of an automobile. The note was drawn 
by the defendant the State of Maine Lumber 
Company, to the order of the defendant At- 
water, and was made payable at the Con- 
necticut Trust & Safe Deposit Company, of 
Uartford. It bore the indorsements of the 
five individuals who were made defendants, 
Indudiug Atwater and Baldwin, against 
whom Judgment was rendered. The pladn- 
tiff still owns the note, which remains un- 
paid. The date of maturity was March 2, 
1916. 

February 26, 1916, tie plaintiff deposited it 
for collection with the First Bridgeport Na- 
tional Bank of Bridgeport. l*at bank for- 
warded it in due course of business to tbeir 
agents, the State Bank of Albany, for col- 
lection. The State Bank of Albany in like 
manner forwarded It for collection to Its 
agents, the Hartford National Bank of Hart- 
ford. On or before the morning of March 2, 
1916, the last-named bank delivered it to the 
Connecticut Trust & Safe Deposit Company, 
the place of payment Payment not having 
been made at the close of business upon that 
day, it was handed by the discount clerk of 
the trust company to its teller, who demand- 
ed payment, and, no payment having been 
made, wrote across the face of the note: 
"Protested for nonpayment Mar. 2, 1915, 
Harvey W. Corbin, Notary Public." He then 
made a certificate of protest and ten notices 
of protest, one addressed to each of the banks, 
and each party whose name appeared upon 
the note, pinned the certificate to the orig- 
inal note and placed the note and certificate 
thus attached, together with the ten copies of 
the notice of protest, in an envelope and mail- 
ed It with its inclosures, Including two-cent 
stamps for each notice save one, to the Hart- 
ford National Bank. On the following day, 
the last-named bank mailed the note, certifi- 
cate of protest, and notices, save only the no- 
tice to Itself, to the State Bank of Albany. 
On March 5th, the First Bridgeport Nation- 
al Bank received from that bank in the first 
mail the same inclosures less the notice to the 
State Bank of Albany. The Bridgeport bank 
inintediately thereafter remalled them, less 
the notice to it, to the plaintiff, who received 
them during the forenoon of the same day. 
Upon that day Baldwin was notified by the 
plaintiff's treasurer by telephone of the dis- 
honor. On the following day, Atwater, who 
resided In New Haven, was visited by the 
plalntiflTs agent and orally notified. No at- 
tempt was made by the plaintiff to notify the 
other indorsers. 



George E. Beers, of New Haven, and Dan- 
iel J. Danaher, of Merlden, for appellants 
Baldwin and Atwater. Jolin Smith, of 
Bridgeport, for appellee. 

PRENTICE, O. J. (after stating the facta 
as above). [1,2] The course of conduct of 
the notary who made presentment at the note 
in suit and of the several banks through 
whose hands It passed in the collection pro- 
cess conformed strictly, in so far as notice 
of dishonor was concerned, to the require- 
ments of the law merchant formerly control- 
ling and to those of the negotiable Instrument 
law now in force. By the overwhelming 
weight of authority under the law merchant, 
a holder for collection of negotiable paper, 
which had been dishonored, performed his full 
duty In respect to notice of Its dishonor by 
giving such notice in due form and time to 
the party from whom he received It Where 
the paper before presentment had passed 
through several hands, whether they were 
those of mere holders for collection or of 
parties having a beneficial interest in it the 
approved rule was that notice given by each 
holder In turn to the prior one from whom 
it was received was notice sufficiently given 
to fix the liability of all Indorsers Included 
in the chain of notice. United States Bank 
V. Goddard, 5 Mason, 366, 375, Fed. Cas. No, 
917; Eagle Bank v. Hathaway, 5 Mete 
(Mass.) 212, 215; Phlpps v. Mlllbury Bank. 
8 Mete. (Mass.) 79, 84; Farmers* Bank v. 
Vail, 21 N. Y. 485, 487; Seaton v. Scovin, 
18 Kan. 433, 438, 21 Am. Rep. 212, note 26 
Am. Rep. 779; Wood v. Callaghan, 61 Mich. 
402, 411, 28 N. W. 162, 1 Am. St Rep. 597; 
Daniel on Negotiable Instruments, 331. Each 
holder for collection was regarded as a real 
holder and his relation to the party from 
whom the paper was received such that the 
latter was entitled to be treated as his Im- 
mediate principal. Bartlett v. Isbell, SI 
Conn. 296, 299, 83 Am. Dec. 146; Phlpps 
V. Mlllbury Bank, 8 Mete. (Mass.) T9, 84; 
Freeman's Bank v. Perkins, 18 Me. 292, 294; 
Howard v. Ives, 1 Hill (N. Y.) 263, 264 ; Ex- 
change Bank v. Sutton Bank, 78 Md. 577, 587, 
28 Atl. 563, 23 L. R. A. 173. 

The Negotiable Instruments Act has not 
changed the law in any of these respects. 
The defendant's broad contention that no- 
tice of dishonor to be effective In fixing the 
liability of Indorsers should be given by the 
holder at presentment directly to the benefi- 
cial owner disregarding-all Intervening hold- 
ers for collection only Is without foundation 
in the act, and we have so distinctly held. 
Gleason v. Thayer, 87 Conn. 248, 250, 87 Atl. 
790, Ann. Cas. 1915B, 1069. Such a require- 
ment necessitating, as It would, inquiries as 
to who was the real owner and what his ad- 
dress, and involving embarrassment and com- 
plications In accounting as between those 
through whose hands the paper passed in the 
process of collection, would be fruitful of 
such annoyances, difiScultles, and hazards of 



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Conn.) 



APPEAL 07 OORDANO 



85 



miscarriage and loss as to make It an onsat- 
Isfitctory substitute for the simple, orderly, 
and effective method pursued In this case and 
by us heretofore approved. The case of East 
Haddam Bank v. Scovil, 12 Conn. 303, fur- 
nishes a good example of easily possible con- 
Bequeaces. The law under consideration in 
Oleason v. Thayer was, to be sure, the Ne- 
gotiable Instruments Act as it was enacted 
In New York; but its provisions of present 
pertinence were identical with those of our 
own. 

The defendant's counsel undertake to es- 
cape from the operation of the decision in 
that case by an attempt to distinguish be- 
tween the two cases upon the ground that 
the note in Gleason v. Thayer presumably 
was indorsed by the Whaling Bank, to the col- 
lection bank in New York, whereas it does not 
appear by the record that the note in this 
case, when presented for payment, bore any 
bank indorsements. It would doubtless be 
quite In accordance with ttie fact to assume 
that It did, but that is not a matter of con- 
trolling importance. The note, as Indorsed 
upon its delivery to the Bridgeport Bank, 
was transferable by delivery, and the finding 
is that It was sent along through the chain 
of banks for collection. Each bank received 
and transmitted it to its agents for that pur- 
pose, and each receiving bank became its 
holder for collection with all the rights, 
powers, and obligations attached to such 
holders. ESast Haddam Bank v. Scovil, 12 
Conn. 302, 311. 

[3] Counsel for the defendant attach great 
Importance to one of the paragraphs in the 
finding, and build much of their argument 
upon It The paragraph is to the effect that 
the Connecticnt Trust & Safe Deposit Com- 
pany has never been the plaintiff's agent for 
any purpose whatsoever. Tliat finding is 
one of law and not of fact The legal char- 
acter of tite relation in which tne trust com- 
pany stood to the owners of the note is to 
be determined as a legal conclusion upon the 
facts. The finding, to be sure, does not state 
In so many words that the Hartford Nation- 
al Bank delivered the note to the trust cmu- 
pany for collection for its account, but there 
Is no other reasonable Inference from' the 
facts found than that It did so. The conduct 
of the parties throughout so indicates quite 
unmistakably. As a holder for collection is, 
as a matter of law, the agent of the owner, 
the finding of the court upon this uiatter 
must be disregarded as not Justified as a 
matter of law by the facts. Gleoson v. Thay- 
er, 87 Conn. 248, 250, 87 Atl. 790, Ann. Gas. 
1915B, 1069. 

[4] The action of the plaintiff in giving 
notice to the defendants Baldwin and At- 
water, following its receipt in due course 
from the Bridgeport Bank, of the notice of 
dishonor, complied in all respects with the 
K-qulrements of the law, and no complaint of 



irregularity in that respect Is made by the de- 
fendants. 

Certain evidence tending to prove a bank- 
ing custom in the matter of giving notices of 
dishonor was received against objection that 
it was not permissible to show conformity to 
a custom at variance with the provisions of 
statute. The court has found no such cus- 
tom, nor did It decide the caise upon the 
strength of <me. Its. decision was based up- 
on the provisions of statute and compliance 
therewitli. 

Two or three objections to the admission 
of testimony, offered to show that the Hart 
ford National Bank mailed the note, certifi- 
cate of protest, and notices to the State Bank 
of Albany on March 3, relate to details which, 
in view of other testimony, were unimportant 
The court was amply Justified in finding that 
it did so upon proof that these papers were 
received by the Bridgeport Bank by first 
mail on the 5th contained In a letter from 
the State Bank of Albany addressed to it 

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

(tl Conn. TU) 
Appeal of OORDANO. 
(Supreme Court of Errors of Connecticnt June 
14, 1617.) 

1. Intoxicatino Liquobs 9=>10&-~Licei7ses 

Under Pub. Acts 1915, e. 282, prohibiting 
granting of licenses to sell intoxicating liquor 
witliin 200 feet of a cliurch, but exempting 
transfer applications which are left to the dis- 
cretion of the commissioners, the owner of a 
licpDse, whether or not he has qualified to sell 
under it, may sell and assign it as a piece of 
property to another who may make applica- 
tion to sell under it as a transferee. 

[Ed. Note. — For other cases, see Intoxicating 
liquors. Cent Dig. §§ 108-112.] 

2. Intoxicatino Liquobs «s>103— Licenses 

— Chabacteristics. 
Property in a license to sell intoxicating liq- 
uor is recogmizcd by law to the fullest extent as 
property having a recognized pecuniary value 
and the subject of sale, attachment levy, or re- 
plevy. 

[Ed. Note.— For other cases, see Intoxicating 
Liquors, Cent Dig. §§ 108-112.] 

3. Intoxicating Liquobs <S=»103 — Licenses 

— TH A N SF^RS 

Pub. Acta 1916, c. 282, prohibits the grant 
ing of licenses for places located within 20i0 feei 
of a church, but exempts transfers from the 
operation of the statute. Chapter 36 provides 
that a license sold upon execution shall for its 
unexpired term be as valid in the hands of its 
purchasers as in the bands of the original li 
censee, provided that before the purchaser may 
sell thereunder he shall comply with all the re- 
quirements relative to the procuring of an origi- 
nal license. A license was sold on execution and 
purchased by a brewing company which did not 
qualify as a licensee thereunder, but transferred 
it to one who made application. Subsequent to 
such assignment a church was erected within 
200 feet of the saloon. Held that, transfers be- 
ing exempt from the operation of the statute, 
the assignee might qualify to sell under the li- 
cense. 

[Ed. Note.— For other cases, see Intoxicating 
Liquors, Cent Dig. i§ 108-112.] 



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101 ATLANTIC REPORTER 



(Oonn. 



4. intoxicatimo liquobs «=» 103— licenses 
— Fhacd. 

The assignee of a liquor license sold upon 
execution and purchased by a brewing company 
which failed to qualify as a licensee thereunder 
is not guilty of fraud in applying for permis- 
sion to seil under the license as being in no posi- 
tion to claim such rights where Pub. Laws 1915, 
c. 282, expressly exempts transfers from the op- 
eration of the prohibition against licensing 
drinking places within 200 feet of a church. 

[Ed. Note. — For other cases, see Intoxicating 
Liquors, Gent. Dig. H 108-112.] 

5. iNTOXtCATINO LiQTTOBS ^=9108— LICENSES 

— Fkaud. 
The assignee of a liquor license purchased 
by a brewery on execution against the original 
holder is not guilty of fraud in applying for per- 
mission to sell thereunder because of the fact 
that the assignor had not in fact perfected its 
assignment to the applicant at the time he ap- 
plied for permission to sell ; the facts being 
known to the county commissioners. 

[Ed. Note.— For other cases, see Intoxicating 
Liquors, CJent. Dig. K 108-112.] 

Appeal from Superior Court, litchfleld 
County ; William L. Bennett, Judge. 

Remonstrance by Nathaniel Cordano to the 
action of the County Commissioners in grant- 
ing the transfer of a liquor license. Affirmed 
on reservation to superior court, and re- 
monstrant appeals. Affirmed. 

In 1916 the county commissioners of Litch- 
field county granted to T. J. Sullivan a li- 
cense to sell spirituous and Intoxicating liq- 
uors at 215 Main street. In Wlnsted, expiring 
October 31, 1016. In June, 1910, this license 
was sold on execution against Sullivan. The 
Yale Brewing Company was the purchaser. 
That company did not qualify as a licensee 
under the license, but sold the same to one 
Darls, who did apply on July 31, 1916, for a 
transfer of the license to him. 

Subsequent to November, 1915, and the 
date of Davis' application, a church had been 
built and opened for services within 200 feet 
of the saloon. A remonstrance was filed to 
Davis' application upon the ground of the 
proximity of the church to the saloon. Upon 
the hearing before the commissioners no wit- 
nesses were produced to establish the un- 
sultability of the place, but the facts, as to 
its proximity to the church, were agreed 
upon as the facts upon which the commis- 
sioners' decision was to be rendered. The 
claim was made in behalf of the remon- 
strance that the application was to be regard- 
ed as an original one, and that therefore the 
prohibition of the statute against the grant- 
ing of a license for a place within 200 feet 
from a church edifice was applicable to the 
situation, and forbade the transfer of Sul- 
livan's license to Davis. This claim was 
overruled, and the application granted. From 
this action the appellant, who was one of the 
remonstrants, appealed. 

Davis is a suitable person to receive a li- 
cense. 



Frank B. Munn, of Wlnsted, for remon- 
strating taxpayer. Walter Holcomb, of Tor- 
rlngton, for applicant for transfer. John T. 
Hubbard, of Litdtfleld, for county commis- 
sionera. 

PRENTICH, C. J. (after stating the facts 
as above). The stipulation of counsel upon 
which this reservation was made limits the 
questions, whose answers should determine 
the Judgment to be rendered by the superior 
court under our advice. In substance to two, 
as follows: (1) Was the cotinty commission- 
ers' action In granting Davis's application for 
a transfer to him of Sullivan's license In vio- 
lation of the provisions of statute touching 
licenses for places located within 200 feet of 
a church? and (2) Was Davis's applicatton 
a fraudulent one? 

Any question that might have been made 
In the superior court that the county commis- 
sioners erred In their exercise of discretion 
in granting the application is waived. 

[1] It appears to be conceded by the remon- 
strant appellant that, if Davis had received a 
transfer from Sullivan, his application to the 
commissioners would not have encountered 
the church prohibition. Such certainly would 
have been the case, since chapter 282 of the 
Public Acta of 1915, which embodies that pro- 
hibition, specially excepts from Its operation 
transfer applications, and leaves the decision 
in their case to the discretion of the commis- 
sioners, in view of the circumstances of each 
particular case. 

Davis, however, did not hold an as^gnment 
to himself from Sullivan, the licensee. His 
right to the license came to him from the 
Yale Brewing Company, who had purchased 
It upon an execution sale, and tiad never qual- 
ified as a licensee under it The remon- 
strant's contention is that under such con- 
ditions he did not occupy the position of 
one who .was enUtied to a transfer of the 
license within the meaning of our license 
statutes, and therefore could not avail him- 
self of the exceptions provided in chapter 282 
of the Public Acts of 1915 in cases of trans- 
fer. His claim is that the exception made in 
that act in favor of transfers of licenses re- 
fers 'only to such as attend the passing of 
the ownership of the license directly from 
the licensee to the applicant for a transfer 
and without the intervention of any other 
person's ownership of the license, and that 
all other persons not so deriving title to the 
license appear before the county commis- 
sioners as original applicants and subject to 
the regulations governing such applicants. 
In support of this position he points to chap- 
ter 148 of the Public Acts of 1915, where it 
is provided that any licensee, or in case of 
his death his administrator or executor, may, 
with the consent of the county commission- 
ers, transfer his license. This, he says, is 
inclusive of all transfers which the law rec- 



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Conn.) 



APPEAL OF CORDANO 



87 



ognizes as such, and confines the power to 
make assignments, which by the approval of 
the county commissioners may become trans- 
fers, to licensees. 

This construction of our statute is exceed- 
tni^ly narrow and technical, and does not com- 
port with sound reason. It reaches not only 
those who, as here, are imrchasers of a license 
at an execution sale, but also those who hold 
voluntary assignments from the owner of a 
license, provided they have not put them- 
selves in a position to enji^ge in the liquor 
business under its authority. We search In 
Tain for a practical reason for the distinction 
thus made between licensed and nonlicensed 
owners of a license in the matter of their 
(»mpecency to make an assiRnment of the 
license whidi may be perfected as a transfer 
by the action of the county commissioners, 
lilgpecially hard is it to find a reasonable basis 
for such distinction, since ownership by pur- 
chase and assignment does not carry with it 
the right to utilize the license in the conduct 
of the business. In every case one who ac- 
qnires an outstanding license is required to 
obtain the approval of the county commls- 
fiioners before be can sell under It. As the 
llrense authorities have reserved to them the 
iwwer to dictate as to .who among assignees 
may exercise the franchise by becoming 
filers, and are called upon in every case to 
<>xercise that power, it is difficult to discover 
what abuse can possibly arise from making 
assignees of nonllcensed persons transferees 
of the license which is not to be anticipated in 
the case of assignees of licensed persons. The 
public interest is not concerned with the char- 
acter and suitability for the conduct of the 
liquor business of a seller of a license who 
does not prcvosc to operate under it. What 
is its vital concern Is the character and sulta- 
Mllty of the purchaser who applies for leave 
to sell under the license. 

[IJ Our law recognizes to the fullest extent 
the quality of property in a license. It Is 
property having a recognized pecuniary value 
and the subject of sale, attachment, levy, or 
replevy. Sayers' Appeal, S9 Conn. 315, 317, 
»4 AtL 358 ; Quinnlplac Brewing Co. v. Hack- 
barth, 74 Conn. 392, 395, 50 AU. 1023. As 
PTopertj and the subject of sale, the owner 
may prima facie at least sell it- and place the 
purdiaser in his position as owner. What Is 
there to impose restraint upon this power of 
substitution of owners so that only one class 
of them, to wit, those who hare guallfled as 
licensees under the license, are free to make 
the substitution as fully and completely as 
the law in other respects permits it to be 
made? The statutes expressly Impose none, 
and none is to be found by way of Implication 
iinles.<« the remonstrant's construction of chap- 
ter 148 of the Public Acts of 1915 Is to be 
accepted as correct As we already have had 
occasion to observe, practical reasons in sup- 
port of that construction are not apparent 
On the other hand, it is easy to discover rea- 
sons and cogent ones in opposition to it We 



are of the opinion that the owner of the li- 
cense, whether or not he has qoallfled to 
sell under it, may seU and assign it as a 
piece of property to another who may make 
application to sell under it as a transferee. 

[3] But the remonstrant Is not driven to 
rely np<m the broad proposition Just dis- 
cussed. He advances a more narrow one 
based upon that portion of chapter 36 of the 
Public Acts of 1915, which provides that a 
license sold upon execution shall for its 
unexpired term be as valid In the hands of 
its purchaser as In the hands of the original 
licensee, "provided before such purchaser 
may avail himself of the benefit of such 
license, he shall comply with all the require- 
ments of law relative to the procuring of an 
original license." His claim is that here, 
by implication at least, is a direction that 
an execution purchaser, and of a necessity 
therefore his assignee, must if he would 
avail himself of any beneficial use of the 
purchased license, appear before the county 
commissioners in all respects as an original 
applicant, and be governed by aU the statu- 
utory regulations concerning the granting of 
licenses to such applicants. As one of these 
regulations is the prohibition of the issuance 
of a license to sell at a place located within 
200 feet of a church edifice, he says that 
it follows that an execution purchaser appli- 
cant comes within the operation of that pro- 
hibition. 

He is, of course, correct in his statement 
that an assignee of an execution purchaser 
can stand in no better position as an ap- 
plicant for leave to sell than wotdd his as- 
slitnor If he were making such application. 
If it be so that the law provides a special 
rule for the case of an execution purchaser 
so that he Is made to occupy a different and 
less advantageous position when he seeks to 
utilize his purchase by qualifylhg as a seller 
from that occupied by voluntary assignees of 
licensed persons, then, without doubt, every 
owner under him of the license stands In no 
letter position. The controlling question 
therefore is: Does our law make execution 
purchasers a class apart from all other pur- 
chasers, end subject them, when they seek to 
avail themselves of their purchases, to dif- 
ferent and more stringent regulations than 
those to which all other purchasers are sub- 
jected? 

In answering this question the particular 
provision of statute which alone Is relied up- 
on as accomplishing that result should be 
read in connection with the other provisions 
touching the same g«ieral subject, and such 
construction, consistent with the language 
used, given to It as will make a harmonious 
and consistent whole. In arriving at that 
construction, the evil sought to be avoided 
should be borne in mind. 

The evil which our law governing transfers 
of license privileges seeks to avoid manifest- 
ly Is the sale of spirituous and.iQtoxicatlng' 



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101 ATLANTIC REPORTER 



(Conn. 



liquors by persons whose fitness to do so has 
not been passed upon and approved by the 
licensing authorities. Our policy In that 
regard Is clearly indicated by our statutes. 
We insist that every would-be seller shall 
present his application for leave to sell to the 
county commissioners, and that they, after a 
formal hearing upon a prescribed notice, pass 
upon his fitness to exercise the desired privi- 
lege. This requirement extends to every 
one whether he be an original applicant or 
one desiring to sell as a substitute licensee. 

When the applicant seeks to exercise tbe 
right which was originally given to another, 
a transfer of the license becomes necessary. 
That transfer is not accomplished by a pui> 
chase and assignment of the license. It Is 
accomplished when, and only when, the coun- 
ty commissioners have signified their con- 
sent to the substitution of licensee. Chapter 
148, P. A. 191f5. Our statutes make it 
clear that the word "transfer," as used in 
them, refers not to the transaction as be- 
tween Individuals whereby the property In- 
terest passes, bxit to the transfer of the right 
to sell which follows the county commis- 
sioners' consent. It matters not whether the 
license, as representing an inchoate right to 
sell, was obtained by a third party through 
a voluntary assignment or upon execution 
sale. There is no transfer within the mean- 
ing of our statutes until the county commis- 
sioners have given their consent to the sub- 
stitution of parties, and there is in either 
case one when that consent is given. 

Bearing in mind that fact and also that 
chapter 282, the latest In the order of enact- 
ment of the license statutes, in unrestricted 
language exempts transfers from the opera- 
tion of the prohibition against the grant 
of licenses for a place located within 200 
feet of a church edifice, and also that no 
reasons are apparent for the making of a 
distinction between purchasers of different 
classes, it is reasonably manifest that the 
two statutory provisions should be read the 
one as prescribing the applicant's course of 
action, and the other the county commission- 
ers' duty in passing upon his application 
when duly presented. By force of chapter 
36 the applicant must proceed in the matter 
of application in all respects as an original 
applicant is required to do. By virtue of 
chapter 282 the county commissioners. In 
passing upon the application when thus pre- 
sented, are to be governed by the regulations 
touching transfers. 

[4, {] The remonstrant's claim tluit the 
plaintiff's application was fraudulent is based 
largely upon his assumption of an alleged 
false position in asserting that be desired a 
transfer of Sullivan's license and in asking 
for such transfer when he was in no position 
to claim it. What we have said upon that 
subject disposes of that feature of the charge 
of fraud. The charge is also based in part 



upon the fact that at the time the application 
was made the Yale Brewing Company had 
not in fact perfected its assignment to the 
applicant, although it was perfected prior 
to the hearing before the commissioners. No- 
where in the application or tn the applicant's 
affidavit accompanying it Is it said that the 
assignment had been made. The applica- 
tion was for a transfer of Snllivan's license 
to Davis, and nothing more. We discover no 
misrepresentation of fact by Davis, nor pos- 
sibility of misunderstanding or misconception 
on the part of the commissioners as to any 
material matter Involved in their decision. 
It does not appear but that the situation 
was fully understood by all, and It is of no 
practical Importance whether or not the as- 
signment to Davis was in form executed at 
the time of the application's date. 

The superior court is advised to a£9rm 
the order of the county commissioners. 

No costs in this court will be taxed in favor 
of either of the parties. The other Judges 
concurred. 

01 Conn. 682) 
TURNER V. CONNECTICUT CO. 

(Suprome Court of Errors of Connecticut, 
June 14, 1917.) 

1. Appeai. and Erbor <S=»704(2) — Cobbec- 
TiON OF Finding — Meuorandum of Deci- 
sion. 

The memorandum of decision, not being 
made a part of the finding, cannot be corrected 
on appeu. 

[Ei. Note. — For other cases, see Appeal and 
Error, Cent. Dig. |S 2900, 2939, 2941.] 

2. Appeal and Error iS=>536 — Record — 
Agreed Statement of Facts. 

An agreed statement of facts, not being cer- 
tified to by the trial court and made part of the 
record, has no place therein. 

[Ed. Note. — For other cases, see Appeal and 
Error, Cent Dig. §§ 2402, 2403.] 

3. Appeal and Error «=>656(3)— Correction 
or Finding. 

Appellant cannot have correction on appeal 
under the method of Gen. St, 1902, | 797, of a 
finding of the trial court, without having the 
evidence certified and made part of the record. 

4. Carriers «=>12{1) — Power to REonLAXS 
Charges. , , ,^^ 

Under Public Service Corporations Act (Pub. 
Acts 1911, c. 128) i 23, it is only after hearing 
on complaint and finding that the rates made by 
a Public Service Corporation are unreasonable 
that the Public Service Commission may disturb 
them, and determine and prescribe just and rea- 
sonable maximum rates and charges. 

[Ed. Note.— For other cases, see Carriers, 
Cent. Dig. §{ 7, 15-20.] 

5. Carriers «=9l8(2) —Rates— Appeai. from 
Order— Review by Court. 

Under Public Service Corporations Act (Pub. 
Acts 1911, c. 128) I 29, providing for appeal 
from the Commission to the superior court, and 
section 31, as amended by Pub. Acts 1913, c. 
225, providing that said court shall hear such 
appoeJ and examine the question of legality o' 
the order and the propriety and expediency 
thereof in so far as it may properly have cog- 
nisance of the subject, the court may determine 
whether the Commission's order fixing maximum 



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TURNER ▼. CONNEOTIOUT 00. 



89 



rates, or dedioing to change the rates fixed by 
the company, is valid, by ascertaining whether 
the rate so fixed or left unchanged was reason- 
able; this being a judicial question. 

[Ed. Note.— For other cases, see Carriers, 
Cent. Dig. H IB, 16-18, 20, 24.] 

6. PuBuc Service CoiotissioNS €s»7— "Riu.- 
BOKABI.E Rate." 

The reasonableness of a rate fixed by or for 
a public service corporation is to be determined 
after viewing its effect on the public as well as 
the company; the rate being unreasonable if so 
low as to be destructive of ttio company's prop- 
city or if so high, either intrinsically or because 
discriminatory, aa to be an unjust exaction from 
the pubUc. 

[Kd. Note.— For other definitions, see Words 
and Phrases, First and Second Series, Roason- 
able Rate.] 

7. CABBIKBa «=»13(2) — Ratks — DiBCHauiNA- 

TION. 

In determining whether the rate of a carrier 
in one locality is, in view of its rates in other 
localities, discriminatory, depending on tho lo- 
calities being similarly situated and subject to 
like conditions, the element of distance is not 
necessarily a controlling factor. 

[Ed. Note. — ^For other cases, see OarTicrs, 
Gent Dig. {{ 22, 21.] 

& Appeal and Ebbob <8=s»1010(1)— Rbview— 

Questions of Fact. 
The facts found not supporting, much less 
requiring, the conclusion that a carrier's rate 
was excessive or discriminatory, the Supreme 
Court cannot disturb the trial court's adjudica- 
tion sustaining the Public Service Commission's 
determination of reasonableness of the rate. 

[Ed. Note. — For other cases, see Appeal and 
Error, Cent. Dig. |$ 3979-3981, 4024.] 

Appeal from Superior Court, Fairfield 
County; Edwin B. Gager, Judge. 

Petition by Jcihn C. Turner and others 
against the Connecticut Company. From 
Judgment of court, on appeal from Public 
Utilities Commission, petitioner Turner ap- 
peals. Affirmed. 

Petition for a reduction in the rates of 
fare charged by the respondent between cer- 
tain points on one of its lines running from 
Stamford to Norwalk, which rates were al- 
leged to be unreasonable, brought to the Pub- 
lic Utilities Commission, who heard and de- 
nied the petition; and thence by appeal to 
the superior court ; facts found and Judgment 
rendered conflrmlng the action of the Public 
Utilities Commission, from which the peti- 
tioner Turner appealed. 

•nie Connecticut Company operates seven 
electric street car lines on Its Stamford 
division which converge at Atlantic square 
in Stamford. Two of these lines run out- 
side of Stamford, one to Sound Beach and one 
to Noroton, and five terminate at suburban 
points in Stamford. Passengers riding from 
Atlantic square to Noroton bridge, a distance 
of 2.33 miles, pay one flre-cent fare, and an- 
other fare from that point to Noroton village 
and points beyond. Passengers riding from 
Atlantic square to Sound Beach and the five 
suburban lines pay one five-cent fare, and 
on three of these lines ride less than the 
distance from the square to Noroton bridge, | 



while on three they ride a greater distance, 
viz. to Sprlngdale, 3.5 mUes ; to Sound Beach, 
3.22 miles, and to Shippan Point, 2.79 miles. 
The New York and Stamford Railway Com- 
pany operates an electric street car line 
which converges at said Atlantic square. 
Passengers riding by this line from the square 
to Cos Cob, another suburb of Stamford, pay 
one five-cent fare and ride 3.8 miles. Passen- 
gers on all of these lines may transfer at the 
square from one of these lines to any of the 
others. The village of Noroton was original- 
ly a part of Stamford, and in all of its as- 
sociations is closely connected vtritb Stam- 
ford. In point of healthfulness, natural 
beauty, and the character of its population 
it is a desirable place to live, and is in no 
particular Inferior to Sprlngdale or Cos Cob. 
Since the electric street car line was built 
through Noroton two houses have been built 
between the Noroton bridge turnout and St. 
I>uke's Church, and 14 houses have been built 
west of and within one quarter of a mile of 
the Noroton bridge. Since the electric street 
car line was built to Springdale and the five- 
cent fare established between Sprlngdale 
and Stamford, 170 houses have been built 
in Springdale, and Its population has in- 
creased rapidly and largely. 

On February 24, 1915, the appellant, to- 
gether with nine other residents of Darlen, 
petitioned the Public Utilities Commission— 
"to order a fare extension or 'lap over' so call- 
ed, operative in both directions between the said 
>oroton river bridge and said St Luke's Church, 
or to make such other adjustment of fares as 
may be necessary or advisable, so as to give a 
single five-cent rate or charge for each passen- 
ger between Atlantic square and St. Luke's 
Church." 

The term 'lap over" is one used in refer- 
ence to electric street car lines to denote the 
distance which a passenger Is allowed to 
ride beyond a given fare limit before he Is 
required to pay another fare, or upon taking 
a car going in the opposite direction, the 
distance which he may ride before reaching 
a given fare limit at which he will be re- 
quired to pay a fare. 

The Stamford division is one of the poorest 
earning divisions in the company's system, 
and the Stamford portion of the Stamford- 
Norwalk line of the Connecticut Company's 
system Is one of the best earning lines in 
this division. The establishment of the pro- 
posed lap over to St Luke's Church would 
extend the first five-cent limit out of Stam- 
ford, and thereby to some extent decrease the 
net earnings of the Stamford division. 

In December, 1914, by agreement the towns 
of Stamford and Darien paid $2,500 on ac- 
count of the cost of widening the said bridge 
over Noroton river and the Connecticut Com- 
pany the balance of said cost, $3,162, and in 
addition $33,000 in making physical connec- 
tion between Its lines and Noroton river and 
providing other facilities for through traffic. 



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101 ATIiANTIC RSPORTER 



(Conn. 



The Connecticut Company thereafter laid Its 
tracks across the bridge and thus connected 
Its tracks, and this was the last step to 
complete a continuous line of electric street 
tracks between New York and Boston. 

The Commission found and held that the 
facts before them did not establish the un- 
reasonableness of the present rate, and there- 
fore denied the petition. The superior court 
adjudged that the action of the Commission 
was reasonable and proper, and confirmed 
It and dismissed the appeal. 

WUUam T. Andrews and Peter Dondlinger, 
both of Stamford, for appellant Seth W. 
Baldwin, of New Haven, for appellee. 

WHBELBH, J. (after stating the facts as 
above). [1-3] The first seven assignments of 
error are assumed by the appellant to relate 
to the correction of the finding. In fact they 
relate to matters which are parts of the 
memorandum of decision. That Is not made 
a part of the finding, so that Its correction 
cannot be had. The cause Is to be decided 
upon the facts found, not upon those contain- 
ed In the memorandum of decision. Far- 
ther, the agreed statements of facts which 
the appellant assumes to be a part of the 
record had no place in the record. They 
were not certified to by the trial court and 
made a part of the record. So far as we 
know, they were not necessarily before the 
trial court, and certainly were not necessari- 
ly the only facts In evidence. Counsel for 
the appellee say the appellant petitioner In- 
troduced oral testimony. Whether this is 
accurate or not, the appellant cannot secure 
the correction of the finding under the 
method of General Statutes, { 797, without 
having the evidence certified and made a part 
of the record. The assignments of error, 
aside from those relating to the correction 
of the finding, are varying ways of stating 
the single point tliat the trial court erred in 
holding that the action of the Commission 
was reasonable in finding and deciding that 
the present rates complained of were not 
unreasonable. The act regulating Public 
Service Corporations (Public Acts of 1911, 
c. 128) In section 23 provides tliat: 

"Any ten patrons of any such company • • • 
may bring a written petition to the Commission 
alleging that the rates or charges made by such 
company • • • are unreasonable." 

Thereupon, after bearing had, the Com- 
mission, If It finds such rates and charges 
to be unreasonable, may determine and pre- 
scribe Just and reasonable maximum rates 
and charges to be thereafter made by such 
company, and said compauy shall not there- 
after demand any rate or charge in excess 
of the maximum rate or charge so prescribed. 

The limitation of rates to what are rea- 
sonable is the enactment in statutory form 
of an ancient rule of the common law. Rari- 
tan. River R, O). v. Traction (3o., 70 N. J. 
Law (41 Vroom) 732, 743, 58 Atl. 332; Rea- 
gan V. Farmers' Loan & Trust Co., 154 U. S. 



362, 397, 14 Sup. Ct 1047, 88 L. Ed. 1014; 
LoulsvUle & N. R. (30. v. Garrett, 231 U. S. 
298, 311, 34 Sup. Ct 48, B8 L. Bd. 229. 

"To limit the rate of charge for services ren- 
dered in a public employment, or for the use of 
property in which the public has an interest, is 
only changing a regulation which existed be- 
fore. It establishes no new principle in the law. 
but only giyes a new effect to an old one." 
Munn V. IlUnois, 94 U. 8. 113, 24 L. Ed. 77. 

[4] The remedy for the enforcement of 
reasonable rates provided by our act was 
new in this Jurisdiction. So long as the 
company establishes reasonable rates, these 
cannot be lowered by commission or court. 
When it faUs in this duty the Public Utili- 
ties Commission is authorized to prescribe 
Just and reasonable maximum rates. And its 
authority, under this act may be invoked 
whenever the rates as fixed are either so 
high or so low as to be unreasonable. The 
Commission Is an administrative one, with 
the delegated legislative function of fixing 
railway rates. 

[6] A court may not be required to fix or 
regulate a tariff of rates for services to he 
rendered by a public service corporation, 
since this Is a legislative function and may 
be conferred by law upon a specially desig- 
nated ministerial body. Reagan v. Farmers* 
Loan & Trust Co., 154 U. S. 302, 397, 14 
Sup. Ct 1047, 38 L. Ed. 1014; Interstate 
Commerce Commission y. Railway Co., 167 
U. S. 479, 499, 17 Sup. <3t 896, 42 L. Ed. 248; 
Janvrin, Petitioner, 174 Mass. 614, 55 N. E. 
381, 47 L. R. A. 819; Raritan River R. Co. v. 
Traction <3o., 70 N. J. Law (41 Vroom) 732, 68 
Atl. 332. 

Section 29 of the act provides for an ap- 
peal to the superior court from any order of 
the Commission. And section 31, as amend- 
ed by chapter 225 of the Public AcU of 1913, 
provides that: 

"Said court shall hoar such appeal and exam- 
ine the question of the legality of the order 
• • • and the propriety and expediency of 
such order * * * in so far as said court may 
properly have cognizance of such subject." 

Under this provision the court may hear 
and determine whether the order of the Com- 
mission fixing maximum rates, or its order 
declining to change the rate fixed by the 
company, is - valid or not by ascertaining 
whether the rate so fixed or the rate un- 
changed was reasonable or not Such a 
question Is a Judicial one. 

It has been so held in construing a like or 
similar provision in state and federal stat- 
ute. Janvrin, Petitioner, 174 Mass. 514, 55 
N. B. 381, 47 L. R. A. 319 ; Raritan River R. 
(30. V. Traction Co., 70 N. J. Law (41 Vroom) 
732, 743, 58 Atl. 332; Chicago, M. & St P. 
Co. V. Minnesota, 134 U. S. 418, 458. 10 Sup. 
Ct. 4G2, 702, 33 L. Ed. 970; Smyth v. Ames, 
169 U. S. 466, 18 Sup. Ct 418, 42 L. Ed. 810 ; 
Reagan v. Farmers' Loan & Trust Co., 154 
U. S. 362, 397. 14 Sup. Ct 1047, 38 L. Ed. 
1014; Prentls v. Atlantic CJoast Line Co., 211 
U. S. 210, 29 Sup. Ct 67, 53 L. Bd. 150. 

[6] The reasonableness of the rate is to 



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TUBNEB T. CONNECTICUT CO. 



«1 



1)e determined after viewing its effect upon 
the public as well as upon the company. The 
rate may, on the one hand, be so low as. to 
he destructive of the property of the com- 
pany, or it may be so hi^ as to be an un- 
just exaction from the public; either in- 
trinsically so, or because It is discrimina- 
tory. In either instance the rate is unrea- 
sonable. What the court does iin passing 
upon this question Is to doclde after hearing 
had in the course of a Judicial proceeding, 
whether the rate complained of is so high or 
«o low as to be unreasonable. No satisfac- 
tory definition of reasonable, as applied to 
rates, applicable to each case, can be made. 
Each must be decided upon its own facts and 
upon a consideration of many varying ele- 
ments. A passenger rate upon a railway, to 
be reasonable, must be Just to the public as 
well as to the railway. It should be large 
enough to provide for the passenger reason- 
able service and for the railway a reasonable 
return. The rate may be made high enough 
to cover the cost of service, the carrying 
charges, a reasonable sum for depreciation, 
and a fair return upon the investment. Less 
than this will not give the railway a reason- 
able rate. The action of a utilities com- 
mission which reduces a rate below this 
point unduly deprives the owners of their 
property without Just compensation. If a 
rate exceeds this point to an appreciable de- 
gree and the Commission, upon proper ap- 
plication, declines to reduce it, the court 
would, in the absence of other controlling 
facts, reduce it to a reasonable point. 

[7] If a rate in one locality is largely in 
fxcess of rates in other localities similarly 
sltnated and subject to like conditions, it is 
an imreasonable rate, for this would instance 
a discrimination against one locality in favor 
of another, or other localities. A discrimi- 
nating rate of this character would be an un- 
reasonable rate, since as a general principle 
the service of a public utility should be equal 
to all patrons similarly circumstanced. Bald- 
win, American Railroad Law, c. 26, f 6; 
BUlottonKallroads,§ 1167; Union PadflcRy. 
Co. T. Goodrldge, 149 U. S. 680, 690, 13 Sup. 
Ct. 970, 37 L. Ed. S96; Western Union Tele- 
graph Ca T. Call Pub. Co., 181 U. iS. 92, 99, 
21 Sup. Ct. 561, 45 I* Ed. 765 ; Portland By., 
L. & P. G. ▼. Oregon B. B. Commission, 229 
i;. S. 397, 411, 33 Sup. Ct 820, 57 L. Ed. 1248. 

When we examine the finding before us we 
see that there are no facts found from which 
it could have been inferred as matter of fact 
by the trial court, or must be Inferred by 
us as matter of law, that the ten-cent rate 
between Atlantic Square and Noroton is ex- 
orbitant or excessive. We have not before us 
the cost of service between these points, nor 
the fair share of the carrying charges and of 
depreciation, or what would be a fair re- 
turn, for this distance. We are not given ei- 
ther the gross or net earnings, or the per car 
hour, or per car mile earnings. Nor are the 
conditions found to be similar. All that the 



finding tells us la that the earnings are less 
on this system than on the defendant's other 
systems. This unrelated fact, by itself, does 
not help in ascertaining what, if any, profits 
there are from this rate, and whether they 
are excessive or exorbitant The petitioner 
does not stand upon the Intrinsic unreason- 
ableness of this rate, but upon the claim 
that this rate is a discriminatory one, and 
results and has resulted to the serious disad- 
vantage of the people of the village of Noro- 
ton. 

It would seem, from the facts found, that 
an Inference of fttct may have been Justified 
that Sprtngdale had grown greatly and Noro- 
ton had not, because of the one commimity 
having bad a five-cent rate to Atlantic square 
and the other not But we cannot so con- 
clude, unless there Is a specific finding of 
that fact Many other considerations may 
have operated or largely contributed to this 
result We may assume that a five-cent rate 
would benefit Noroton and its public, for 
this Is a self-evident fact But we do not 
know what its effect would be upon the re- 
turns to the railway. It may be held to be 
a principle of tra£Qc that a reduction of 
rates Increases the volume of business, but 
no principle which we are at liberty to re- 
gard tells us In a given case what will be the 
extent of tlie increase, or what the effect up- 
on the net returns. Chicago, etc.. By. Co. v. 
WeUman, 143 U. S. 339. 344, 12 Sup. Ct 400, 
36 L. Ed. 176. 

In determining the reasonableness of a 
rate we cannot leave out of the consideration 
the effect of the change of rate upon the rail- 
way return any more than we can that upon 
the public. 

The petitioner's case reduces itself to this: 
That the schedule of rates upon the Stam- 
ford division gives a materially longer ride 
for a single five-cent fare on some of the 
lines converging at Atlantic square than It 
does en the Noroton line. In a similar situa- 
tion the court say: 

"The question presented for consideration is 
not the reasonableness per se of the charge, but 
its reasonableness considered in relation to 
charges made by plaintiff at other localities on 
its system for like and contemporaneous serv- 
ice. • • • The discrimination, without an 
excuse recognized by tlie law, would be in and 
of itself unjust and unreasonable." Portland 
By. L. & P. Co. V. Oregon B. Commission, 229 
U. S. 397, 411, 33 Sup. OL 820, 57 L. Ed. 1248. 

The petitioner is accurate In his claim as 
to the lines to Springdale, Sound Beach, and 
Shippan's Point but as to the other tliree 
lines converging at the square the single five- 
cent fare on the Noroton line gives the longer 
ride. And the distance covered by the sin- 
gle five-cent fare en the Noroton line is prac- 
tically the average distance the single fare 
will carry a passenger on all the lines of the 
system converging at the square. 

The element of distance may be a controll- 
ing factor In a case of discrimination, but 
not Invariably so. As a rule, other factors 



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101 ATLANTIC REPOUTEtt 



(Conn. 



are neopssnrlly relevant before the conclusion 
of a (llscrlnilnatlon in rates can be made. 
Facts which affect the question of traffic 
profit are factors to be considered. It may 
be that a divergence In rates between com- 
munities similarly conditioned would be dis- 
criminatory irrespective of the element of 
traffic profit That situation we leave open 
until it presents itself. And the Identity or 
similarity of cpnditions are also important 
factors in determining whether a rate Is dis- 
criminatory. 

18 J Tlie foundation of the petitioner's claim 
of a discrimination is that the defendant 
charges "Noroton passengers twice the fare 
that it charges to other passengers similarly 
circumstanced." The finding does not sup- 
port this. The Judgment must be controlled 
by the finding. And upon that we cannot 
hold that there was any undue preference or 
advantage in the other rates, or that the 
trial court erred in concluding that the rate 
complained of was not reasonable, for the 
facts found do not support, much less re- 
quire, the conclusion that this rate is either 
exorbitant, excessive, or discriminatory. 

There is no error. The other Judges con- 
curred. 



(91 Oonn. 727) 
BUIiKELEX ▼, BROTHERHOOD ACCI- 
DENT CO. 

(Sapreme Court of Errors of Connecticut 
June 14, 1017.) 

1. Insurance €=3339 — Accident Insdkancb 
— Chanok or Occupation. 

The act of setting off a single firework la 
not a change of occupation from that of garden- 
er to that of user or handler of fireworks, with- 
in the provision of an accident policy. 

[Ed. Note.— For other cases, see Insurance, 
Cent. Dig. J 87».] 

2. Insurance €=»461(1) — Accident Insub- 

ANCE — VOLUNTABT EXPOSURE TO DANOEB. 

Evidence that the bombs were ordinarily 
safe, that from one to two minutes usually elaps- 
ed between the lighting of the fuse and the ex- 
plosion of the charge, which threw the bomb 
upwards, and that insured, his employer, and 
members of the family bad set off a great many 
of them on other occasions, is enough to show 
that the act of setting off in the usual way a 
bomb, a firework, was not a voluntary exposure 
to unnecessary danger, within the provision of 
an accident policy. 

[Ed. Note. — Far other cases, see Insurance, 
Cent Dig. f 1180.] 

3. Evidence €=>126(2)— Declarations— Man- 
ner OF Accident. 

Relative to the question whether insured, 
fatally Injured t^ explosion of a bomb which 
he was setting c^, voluntary exposed himself to 
unnecessary danger, within the provision of his 
accident policy, his declarations while mi the 
way to the hospital, in answer to the question 
as to what happened, that it went off sooner than 
he expected, and something about a quick-burn- 
ing fuse, aU that witness could remember, are 
relevant and admissible, and make it more prob- 
able that the accident occurred because of a 



quick-firing fuse than from attempting to set 
off the bomb in some unusual way. 

[Ed. Note.— For other cases, see Evidence, 
Cent Dig. { 373.] 

Appeal from Superior Court* Hartford 
County ; Milton A. Shuniway, Judge. 

Action by Morgan O. Bulkeley, administra- 
tor, against the Brotherhood Accident Com- 
pany on a policy of health and accident as- 
Burancfe From a Judgment for plaiutlfT, de- 
fendant appeals. Affirmed. 

The plaintiff's decedent, Oscar L. Johnson, 
a gardener In the plaintiff's employ, was In- 
jured by the explosion of a firework called a 
bomb. Intended to be fired by placing it 
In a mortar and lighting a fuse. Some of 
these fireworks, left over from the previous 
Fourth of July, were found about the prem- 
ises, and Johnson was seen to take a bomb 
and mortar from plaintiffs garage toward 
an open place near by. Nobody witnessed the 
accident, but an explosion was heard, and 
Johnson was observed rolling on the grass 
trying to extinguish a fire burning In the 
dothlng alxtut his neck and idlest Two 
days afterwards Johnson died in consequence 
of boms and wounds received from the ex- 
plosion of the bomb. While being taken to 
the hospital Johnson was asked, "What hap- 
pened?'' and said that it went off sooner thaJi 
he expected, and something about a quick- 
burning fuse. 

The policy exonpts the defaidant from 
liability for Injuries caused by "voluntary 
exposure to unnecessary danger," and pro- 
vides that in case of injury after the Insured 
has "changed his occupation to one classified 
by the C(»npan7 as one more hazardous than 
that herein stated" the company's liability 
shall be only for the amount which the 
premium would have purchased at the rate 
fixed by the company for such more hazar- 
dous occupation. 

The complaint alleges that the Insured 
duly fulfilled all the conditions of the In- 
surance on his part, and that the death was 
not from any cause excepted In the policy. 
The answer leaves the plaintiff to his proof 
as to the facts, denies that the assured ful- 
filled the conditions of the Insurance, al- 
leges that the Injury was caused by volun- 
tary exposure to unnecessary danger, and, 
as an alternative defense, that the assured 
had changed his occupation, and was en- 
gaged in using or handling fireworks when 
injured, whereby the company's liability was 
reduced to $200, in respect of which a tender 
is pleaded. 

Stewart N. Dunning, of Hartford, for aiH 
pellant Warren B. Johnson, of Hartford, 
for appellee. 

BBACH, J. (after stating the facts as 
above). [1 , 2] It is too plain for discussion 
that the act of setting off a single firework 



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8CHWEHM V. CHBLTEN TBUST CO. 



93 



Is not a change of occupation from that of 
gardener to that of a user or handler of 
fireworks. 

The other ground of defense, that the 
injury was caused by voluntary exposure to 
unnecessary daager, rests upon the determi- 
nation of a motion to correct the finding by 
erasing therefrom the finding that the death 
was not from any cause excepted In the 
policy, and by substituting therefor a pro- 
posed finding that the plaintiff offered no 
evidence to show that decedent did not volun- 
tarily expose himself to unnecessary danger. 
It Is, however, unnecessary to follow the de- 
fendant's argument any further, because the 
finding of the trial court is supported by the 
evidence, and the defense of voluntary ex- 
posure to unnecessary danger Is disposed of 
on the merits in the plaintiff's favor. There 
was evidence tending to show that the bombs 
were ordinarily safe, that from one to two 
minutes usually elapsed between the lighting 
of the fuse and the explosion of the charge 
which threw the bomb upward, and that the 
decedent, his employer, and members of the 
employer's family had set off great numbers 
of than at Independence Day celebrations. 
This was enough to show that the act of set- 
ting off one of these bombs in the usual way 
was not a voluntary exposure to unnecessary 
danger. 

[3] Then the question remained whether 
Johnson attempted to set the bomb off in 
some unusual way, or in some other way 
voluntarily exposed himself to unnecessary 
danger In setting It off. On this point his 
declaratlona made while being taken to the 
hospital are relevant and admissible, and 
they make it more probable than otherwise 
that the accident occurred because of a de- 
fective quick-firing fuse. Defendant excepted 
to the admission of these declarations, and 
now makes the claim that they were too 
vague and indefinite to be admitted in evi- 
dence. This, however, was the fault of the 
witness to whom the declarations were made, 
who was obliged to give the substance of 
what was said because he could not remember 
the words. Taking these disconnected phras- 
es as expressing the snbstance of John- 
son's dedaratlons, there is no difficulty what- 
ever in {rupportlng the finding of the trial 
court that the death was not from any cause 
excepted in the policy. 

There Is no error. The other Judges con- 
curred. 



(JB7 Pa. 78) 
SOHWEHM V. OHELTBN TRUST CO. 

(Supreme Court of Pennsylvania. March 12, 
1917.) 

1. BmLDIICG AND LOAIT AsSOCIATIOITS C=» 

23(4) — AxrrHOMTT or Pbesidewt oip LiOa.n 

SOCIXTT— MlSAPPBOPElATION— LlABrLITT. 

The president of a loan society, whom the 
hy-laws made the chief executive officer and ac- 



tive manager, was authorized to accept money 
paid to the society by cash or by check to its 
order, and his misappropriation of funds so 
paid was the loss of the society. 

[Ed. Note. — For other cases, see Building and 
Loan Associations, Cent. Dig. S 29.] 

2. Banks and Banking *=>109(2) — Piiesi- 

DENT or IXIAN SOOIETT — InDOBSEUSNT OF 

Bills ok Notes. 
Where the authority of a bank president 
comes from the directors, he may indorse bills 
or notes payable to it. 

[Ed. Note.— For other cases, see Banks and 
Banking, Cent. Dig. § 259.] 

3. Banks and Bankino $=>138— Deposits— 
Payment on Check— Liability to Deposi- 
tor. 

Where a depositor drew his check upon de- 
fendant bank to the order of a loan society, 
whose president and chief executive officer in- 
dorsed it and misappropriated the proceeds, the 
bank was not liable, as the proceeds were paid 
to the society in accordance with the terms of 
the check. 

[Ed. Note. — ^For other cases, see Banks and 
Banking, Cent. DIj. U 39S-405.] 

Appeal from Court of Common Pleas, Phil- 
adelphia County. 

Assumpsit for a bank deposit by Harry 
J. Schwehm against the Chelten Trust Com- 
pany. Verdict for plaintiff for $5,294.60, 
and Judgment thereon, and defendant ap- 
peals. Reversed, and judgment entered for 
defendant. 

Argued before MBSTREZAT, POTTER, 
STEWART, MOSCHZISKER, and FRAZ- 
ER, JJ, 

Chas. C. Norris, Jr., of Philadelphia, for 
appellant. Julius C. Levi and David Mandel, 
Jr., both of Philadelphia, for appellee. 

POTTER, J. Tbe plaintiff In this case, 
who was a depositor with the Chelten Trust 
Company, drew his check upon that insti- 
tution for the sum of $5,002, payable to the 
order of Federal Loan Society. The dieck 
was indorsed, "Federal Loan Society, H. W. 
Stoll, President, Jos. R. Friedman" and 
was cashed by the Franklin Trust Company, 
and collected by the latter from defmdan^ 
through the Com Exchange National Bank, 
and charged by defendant against plaintiff's 
deposit account. 

[1] Plaintiff claimed that Stoll, who was 
president of the Federal Loan Society, had no 
authority to Indorse the check in the name of 
the society, that his indorsement did not 
transfer title to it, and that defendant's ac- 
tion In paying It, and charging it against his 
account, was not binding upon him. He 
therefore brought this suit to recover the 
amount so charged. At the trial, a request 
for binding instructions in favor of defendant 
was refused, and the jury were instructed 
to render a verdict for plaintiff for the full 
amount of the claim. From the Judgment 
thereon entered, defendant has appealed. Its 
counsel contend that under the by-laws of the 
Federal Loan Society, the president was con- 
.stltuted the general manager of the business 



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of the corporation, and tbis aecessarily gave 
him the power to Indorse its commercial 
paper. It appears from the record that the 
by-laws were not silent as to the president's 
authority, but they provided that he should 
be the chief executive officer of the company 
and should "have general and active manage- 
ment of the business of the company," should 
"have general supervision and direction of 
all the other offlcers of the company," and see 
that their duties were properly performed, 
should make annually to the board of direc- 
tors a report of the operations of the com- 
pany for the fiscal year, and from time to 
time report to them such matters as the in- 
terests of the company might require to be 
brought to their notice, and should "have 
the general powers and supervision and man- 
agement usually vested in the office of the 
president of a corporation." Broader powers 
!n ' the management of the business could 
hardly have been bestowed. The president 
was not only authorised to act for the com- 
pany, but was to see that all other offlcers 
discharged their duties. Counsel for plain- 
tiff, however, contend that the power of the 
president was limited by two provisions 
of the by-laws. The first directs the treas- 
urer to "deposit all money and other valu- 
able effects in the name and to the credit of 
the company in such depositories as may be 
designated by the board of directors." This 
provision, however, only relates to thei 
duties of the treasurer, who is expressly 
placed under the "general supervision and 
direction" of the president. It puts no limi- 
tation on the powers conferred on the presi- 
dent himself. The other provision is that 
"all checks, drafts or orders for the payment 
shall be signed by the treasurer and counter- 
signed by the president." This refers only 
to instruments for the payment of mon&y 
by the corporation, not to the Indorsement 
or transfer of instruments of which the 
corporation Is not the maker, but the payee. 
It does not limit the power of the president 
as to the latter. 

[2,3] Under the by-laws» as noted above, 
the president was made the "chief execu- 
tive officer" and the general and active man- 
ager of the business of the company. He 
had control over every other officer of the 
company, and power to direct the disburse- 
ment of its funds. This authority was ample 
to authorize him to accept money paid to 
the company, whether in cash or in the form 
of a check payable to the order of the com- 
pany. If be misappropriated funds paid in 
good faith to him as the representative of 
the company, the loss must be that of the 
•.■orporation that authorized him to act, and 
held him out to the public as its chief of- 
ficer and general agent As the power was 
delegated to the president in the by-laws, 
*here is no question here, as to acquiescence, 
hy the board of directors. No action upon 
the part of the directors was noccssnry. But 



even where his authority comes from the 
directors, the president of a bank may in- 
dorse bUls or notes payable to it And It 
would seem that he has an Implied power to 
indorse and transfer its negotiable paper. 
1 Daniels, Neg. Inst i 304. 

It should be remembered that in the pres- 
ent case, in so far as the record shows, the 
validity of the Indorsement was not ques- 
tioned by the Federal Loan Society, the 
payee of the check. It is the drawer of the 
check who complains. It does not appear 
that the corporation has denied that it was 
bound by the indorsement of its president, 
or that it has refused to carry out the con- 
tract for which the check constituted the 
consideration. What the transaction was, 
is not very clear, but apparently it was a 
purchase of stock. Plaintiff testified that he 
had not received the stock, but did not say 
that the corporation had refused to issue it 
to him, nor did he say that he had made de- 
mand for it. Under the facts shown, we are 
clearly of opinion that payment of the check 
to the president of the company was payment 
to the corporation. 

The fifth and sixth assignments of error 
are sustained. The Judgment is reversed, 
and is here entered for defendant. 

^^'"^ (2B7 Pa. 17) 

O'MAIiLEY et aL V. PUBIiIC LEDGER CO. 

(Supreme Court of Pennsylvania. March 5, 
1917.) 

1. MuNiciPAi CoBPORATiows «=»70e(4)— EJvi- 

DENCB OF OWNEBSHIP— InJITBIKS ON STBBET. 

In an action for personal injuries wbeu 
struck by a motor truck alleged to be the prop- 
erty of defendant company, where it appeared 
that defendant's name was painted npon the 
car containing bundles of newspapers, testimony 
of a policeman that shortly before the accident 
he saw a car of such description delivering bun- 
dles of newspapers, and knew it because he bad 
often seen it in the neiKhborhood delivering 
newspapers, and that in the particular case his 
attention had been attracted to the driver's hur- 
ry in tossing papers from the car, was admissi- 
ble. 

[Ed. Note.— For other cases, see Uonicipal 
Corporations, Cent Dig. | 1618.] 

2. Appeal ano Ekbob «5a089— Jubt «=>149 
— QuBSTioN fob Juby— Withdrawai, of Ju- 

BOB. 

In such action, where plaintiff husband tes- 
tified as to conversation on day "when we 
were awarded the verdict" in former trial, where 
there was no effort to lead him to the objection- 
able remark, and where the jury were instructed 
to disregard it, the refusal of a continuance was 
within trial court's discretion. 

[Ed. Note. — For other cases, see Appeal and 
Error, Cent Dig. Jg 3845^848; Jury, Cent 
Dig. iS 635-637.] 

3. municrpal, corpobations «=»706<o— use 
op Stbket — Pebsonal Ivjubt — Qdestion 
FOB Jury. 

In action for personal injury when struck by 
a motor truck, alleged to belong to defendant 
newspaper rompnny. held, on the evidenoe, that 
the ownership of the car and its operation in 
the company's service was tor the jury. 

[Ed. fs^otc.— For other cnsoa, see Municipal 
Corporations, Cent Dig. § 151S.] 



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O'MALLET V. PUBLIC LEDGER CO. 



95 



Appeal from Court of Common Pleas, Phil- 
adelphia County. 

Trespass for damages for personal Injury 
by Catharine O'Malley and John O'Malley 
against the Public Ledger Company. Ver- 
dict for plaintiff John O'Malley for $750, and 
for Catharine O'Malley for $i3,000, reduced 
by the court to $500 and $2,000, respective- 
ly, with judgment thereon, and defendant 
appeals. Affirmed. 

Argued before MESTREZAT, POTTER, 
5?rEWART, MOSCHZISKER, and FRA.- 
ZBB, JJ. 

Robert P. Shlck and Wlnfleld W. Craw- 
ford, both of Philadelphia, for appellant 
Bertram D. Rearlck, of Philadelphia, for ap- 
pellees. 

MOSCHZISKER, J. John O'Malley and 
Catharine, hte wife, sued to recover for per- 
sonal injuries to the latter; verdicts were 
rendered In their favor, upon which judg- 
ments were ent««d ; the defendant has ap- 
pealed. 

On January 8, 1915, between 6 and 6:30 a. 
in., Mrs. O'Malley was struck by a south- 
ward-bound automobile while crossing Twen- 
tieth street. In the city of Philadelphia, at 
the south side of McClellan street, or about 
150 feet from Moore street, the next thor- 
oughfare to the north. The testimony relied 
upon by the plaintiffs, when viewed in the 
light most favorable to them, is sufficient to 
snstaln the following material findings: 
Just before leaving the sidewalk, Mrs. O'Mal- 
ley lotted up and down Twentieth street 
and, seeing no vehicles approaching from ei- 
ther direction, she started slowly to cross 
eastward ; in the center of that thoroughfare 
there is a single car track, and. Just before 
she reached the first rail of this track, she 
was struck by the automobile, which had 
turned southward into Twentieth street from 
Moore street; the machine was being driv- 
en at from 40 to 50 miles an hour, and came 
suddenly upon Mrs. O'Malley, without warn- 
ing of any kind ; she was knocked down, and 
subsequently, as a result of the accident, 
suffered a miscarriage and other Injurious 
results; finally, the motor in question was 
owned by the Public Ledger Company and, 
at the time of the injury to Mrs. O'Malley, 
it was being oi>erated in the defendant's 
service. 

There are numerous assignments of er- 
ror ; but only a few of them require serious 
consideration. To begin with, we have look- 
ed at the medical testimony with care, and 
feel that It is sufficient to connect Mrs. 
CMalley's impaired physical condition with 
the acddent, and to justify the conclusion 
that ber injuries followed as a result thereof. 

[1] We see no error In the admission of 
the testimony of the policeman, Jordan. He 
recalled the date of the oocurrence under 
Investigation ; and the fact that his memory 
In this respect was aided by ttw drcumstanca 



that he had held a conversation with anoth- 
er officer concerning the accident, right aft- 
er It happened, would not militate against 
the admission of his testimony. It may be 
well to note, however, that the details of 
this conversation were not allowed in evi- 
dence. Other witnesses who saw the acci- 
dent had already testified that the car which 
injured Mrs. O'Malley was a small machine 
with the name of the Public Ledger painted 
thereon, containing bundles of newspapers. 
The policeman was permitted to state that. 
very shortly after the time fixed by the for- 
mer witnesses, he saw an automobile of like 
description delivering bundles of newspapers 
about 4% squares from the place of the ac- 
cident; that he knew the car, having seen 
it in the neighborhood morning after morn- 
ing, on a like errand ; and that, on this par- 
ticular occasion, the driver attracted atten- 
tion by his seeming hurry, when he tossed 
out papers upon the comer where the wit- 
ness was standing, without stopping his ma- 
chine. Although this testimony, by It.self, 
would have but little weight, yet, in connec- 
tion with other evidence in the case, it was 
circumstantially relevant to Identify the au- 
tomobile which caused the damage as a ve- 
hicle belonging to and, at the time, in the 
service of the defendant Bowling v. Rob- 
erts, 235 Pa. 89, 83 Atl. 600; Hershlnger v. 
Penna. R. R. Co., 25 Pa. Super. Ct 147. 

[2] WhUe the trial judge might have with- 
drawn a Juror because of the unfortunate 
remark made by Mr. O'Malley when upon 
the stand, to the effect that he had a con- 
versation with another man oa the day 
"when we w«e awarded the verdict" (evi- 
dently referring to the verdict in a former 
trial of the same cause), yet we cannot say 
the refusal so to do constitutes reversible 
error. The trial had been on for three days ; 
there was no attempt on the part of coun- 
sel for the plaintiff to obtain an unfair ad- 
vantage by leading o» the witness to the ob- 
jectionable remark. On the contrary, it 
seems to have slipped out without any pre- 
meditated purpose, and, when this occurred, 
the judge at once warned the jurors entirely 
to disregard the Incident; moreover, at the 
end of his charge, he repeated these Instruc- 
tions. In conclusion, we do not conceive it 
at all probable the remark In question had 
any effect prejudicial to the defendant; for 
if the jurors understood from it that there 
had been a former finding in favor of the 
plaintiffs, it must be assumed they likewise 
realized that this verdict had been set aside 
by the court 

[3] No part of the charge is assigned for 
error, and a careful reading thereof shows 
that all the testimony was properly and cor- 
rectly submitted to the Jurors, not only to 
find the relevant facts, but to draw their 
own Inferences therefrom in determining the 
issues involved. Of course, there was testi- 
mony produced by the defendant militating 
against the evidence depended upon by the 



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101 ATLANTIC REPORTER 



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plaintiffs to show the former's ownership of 
the car and that the machine was being oi>- 
erated in Us serrloe at the time of the ac- 
cident ; but this testimony was mostly oral, 
and hence it was for the jnry to pass upon. 
The assignments of error are all overruled, 
and the judgments affirmed. 



(257 Pa. 25) 

SCOTT T. AMERICAN EXPRESS CO. 

(Supreme Court of Pennsylvania. March 5, 
1917.) 

1. WrTNEssEs iS=»379(7)— Impeachment— CoN- 

TBADICTOBY STATEMENTS. 

The credibility of a witness may be im- 
peached by his previous statements inconsistent 
witli or contradictory to his testimony, including 
statements made in plendinKS. where the omis- 
aion in tlie inconsistent statement occurred when 
the occasion called upon him for disclosure. 

[Ed. Kote. — For other cases, see Witnesses, 
Cent. Dig. J 1251.] 

2. Wn-NESSES €=>387— Impeachment— I Ncoif- 
siSTENT Statements — Swobn Pleadinqs. 

In an action apaiust an express company for 
injury to an employ^ from the defective condi- 
tion of the brakes and steering apparntjis of its 
motor truck, defended on ground that the acci- 
dent was caiiscil by the intoxication of the driv- 
er, a fellow servant, where defendant's super- 
intendent testified that he visited the driver aft- 
er the accident, and he then showed signs of 
liaving been drinking, his cross-examination as 
to whether he had not sworn to answers in the 
driver's action in another court arising out of 
name accident which said nothing about the 
driver's intoxication, was erroneous, where un- 
der the rules of that court the facts constituting 
the defense were not required to be stated in the 
answer. 

[Ed. Note.— For other cases, see Witnesses, 
Cent Dig. » 1228-12;?2.] 

3. Appeal and Erbor ^=>232(2)— AdmissibiI/- 
ITY or Evidence— Objection. 

Where the record was not clear as to the 
ground upon which objection to the cross-exami- 
nation of a witness was based, the rule that on 
appeal a party complaining of the admission of 
evidence in the court below will be confined to 
the specific objection there made, was not appli- 
cable. 

[Ed. Note.— For other cases, see Appeal and 
ElTor, Cent. Dig. {{ 1430, 1431.] 

4. Appeal and Error <S=»1004{1)— Amount oif 
Verdict— Review. 

The amount of a verdict will be reviewed by 
the Supreme Court under authority of Act May 
20, 1S91 (P. L. 101), only when so grossly ex- 
cessive as to shock the sense of justice, and to 
show a clear abuse of the lower court's discre- 
tion in refusing to set it aside. 

[Ed. Note.— For other cases, see Appeal and 
Error, Cent Dig. H 3860-3876, 3948.] 

6. Death «=s>09(3)— Excessive Damages. 

Verdicts of $1,717 awarded the father of in- 
jured minor employ^, and $12,540 awarded the 
estate of the minor, were not excessive, where 
he suffered a compound fracture of both legs 
above the knees, lacerations end bruises of the 
scalp, arms and back, underwent two operations, 
and lived four months after the accident 

[Ed. Note.— For other cases, see Death, Cent 
Dig. §§ 125, 126, 128.J 

Appeal from Court of Common Pleas, Phil- 
adelphia Connty. 
Trespass for damages for personal In- 



juries by Elizabeth Soott, administratrix of 
the estate of Joseph P. Scott, deceased, and 
Elizabeth Scott, administratrix of the estate 
of Edward A. Scott, deceased, against the 
American Express Company. Verdict for 
plaintiff as administratrix of the estate of 
Edward A. Scott for $1,717, and as adminis- 
tratrix of her deceased son, Joseph P. Scott, 
for $12,540, and judgment thereon, motion 
for new trial denied, and defendant appeals. 
Reversed with a new venire. 

PlaintifTs injuries consisted of oompoond 
fractures of both legs above the knees, lacera- 
tions and bruises of the scalp, arms and back. 
Two unsuccessful operations were performed 
to secure unions of the fractures of the legs. 
Plaintiff suffered extr^ne pain except when 
under the influence of opiates, and died as 
a result of such injuries over four months 
after the accident. 

Argued before ilESTREZAT, POTTER, 
STEWART, MOSOHZISKBR, and FRAZER, 
JJ. 

John Lewis Evans, John O. Johnsmt, and 
Thomas De Witt Cuyler, all of Philadelphia, 
for appellant. Frauds M. McAdams and 
William H. Wilson, both of Philadelphia, for 
appellee. 

FUAZER, J. This action was brought by 
Joseph P. Scott, a minor, and Edward A. 
Scott, liis father, to recover damages for 
Injuries sustained by the former, as a result 
of alleged negligence of defendant in per- 
mitting the brakes and steering apparatus on 
a motor truck, on which the minor was riding 
in the discharge of his duties, to become out 
of order and remain in a state of disrepair, 
which resulted in the machine becoming un- 
manageable in descending a street with some 
grade, and striking a telephone pole located 
along the highway. Joseph P. Scott died as 
a result of his injuries, and, upon the subse- 
quent death of his father, Elizabeth Scott 
prosecuted the action to Judgment as admin- 
Istratrix of their estates. 

The deceased minor was employed by de- 
fendant to ride on its trucks and assist 
drivers in handling aod guarding express 
packages. The defense was that the accident 
was caused by the negligence of the driver, 
who, according to the evidence, had been 
drinking and was in an intoxicated condi- 
tion at the time; which fact was known to 
Young Scott. The trial judge submitted the 
case to the jury, in a charge to which no com- 
plaint is made, and there was a verdict on 
behalf of the father's estate for $1,717, and 
on behalf of the estate of the minor for $12,- 
540. A motion for a new trial was dismissed 
by the court below, and defendant appealed. 

We deem It unnecessary to refer In detail 
to the circumstances of the accident, since 
the only questions argued before this court 
were as to the correctness of the action ot 
the court in admitting certain evidence to 



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Impeach the credibility of one of defendant's 
witnesses, and whettier or not the verdict on 
behalf of the minor's estate was excessive. 

[1,2] Superintendent Jailer, of defendant 
company, testified to visittog the hospital 
within two hours after the accident, and, In 
reply to a question by his own attorney, 
stated he saw Carey, the driver, at that time 
and his breath smelled as If he had been 
drinking. On cross-examination by plaintiff's 
counsel he was asked whether he had not 
sworn to and signed answers in actions by 
tlie driver and another person against de- 
fendant in the municipal court involving the 
same accident. Upon objection being made, 
coonsel for plalntlfiF stated he wished to test 
the credibility of the witness, whereupon the 
objection was overruled. The witness then 
admitted he had signed and sworn to the 
papers, and that they contained no statement 
to the effect that the driver had been drink- 
ing, or was intoxicated. Defendant contends 
this testimony was improperly admitted and 
was extremely prejudicial to it, owing to the 
fact that the Jury as laymen were likely to 
place undue weight on the omission, whereas, 
in fact, such omission was unimportant, and 
tbe statement unnecessary as a part of the 
pleadings in the case. 

Hie rule is well settled that the credibility 
of a witness may be impeached by showing 
previously made statements inconsistent with, 
or contradictory to, his present testimony, 
and this includes inconsistent statements 
made in pleadings in the causes. Henry's 
Penna. Trial Evidence, { 65, and cases cited ; 
Floyd V. Kulp Lumber Co., 222 Pa. 257, 71 
AtL 13; 2 Wlgmore on Evidence, § 1066. To 
constitute grounds for discrediting a witness, 
however, the omission must be made at a 
time when the occasion was sudi that he was 
called upon to make the disclosure. It Is 
only where the witness on a previous occa- 
sion was under some duty to speak the whole 
truth concerning the matter about which he 
now testifies that impeachment becomes per- 
missible by showing an omission to state cer- 
tain material facts Included in his testimony. 
Royal Insurance Ck>. v. Beatty, 119 Pa. 6, 12 
AtL 607, 4 Am. St R^. 622; Huston's Es- 
tate, 167 Pa. 217, 31 Atl. 553. ConsequenUy, 
in CMisidering the competency of the evldeace 
offered for the purpose of impeaching the 
witness, the scope of the answers filed In the 
municipal court of Philadelphia should be 
considered. Rule 7 of that court provides 
that an answer shall contain an admission or 
denial of each fact averred in the statement 
of claim, and that all facts not denied by de- 
fendant, or of which he does not aver him- 
self to be ignorant, shall be deemed to be 
admitted. This rule does not require defend- 
ant to state tbe facts constituting his defense, 
but merely to either admit or deny those 
averred In the statement of claim. We have 
no knowledge of the contents of the state- 
ments of claim referred to, as they are not 
printed In either paper book, and nowhere la 
101 A^7 



the record does it appear that tbe question 
of intoxication was raised in the declaration 
In either case. The answers in questions 
admit tbe happening of the accident, but 
deny that either the brakes or steering ap- 
paratus were defective or out or order, or 
that the accident was the consequence of the 
failure of these parts of the truck to properly 
work, or of anything else for which defendant 
was responsible. No necessity appears for 
the assertion or denial of the charge that the 
driver had been drinking previous to the hap- 
pening of the accident 

The formal pleadings in a case are drawn 
by attorneys in technical language, and con- 
tain only such averments of facts as in the 
opinion of the attorneys are material to make 
out a prima fade case. They, therefore, do 
not purport to be a complete history or re- 
dtal of all the facts of the transaction, and 
no unfavorable inference should be drawn 
from the failure to Include details which are 
the natural and usual parts of the proof, 
rather than of the pleadings in the case. For 
these reasons it was error to permit the use 
of the answers, filed in the municipal court 
cases, in attacking the credibility of the wit- 
ness. 

13] Plaintiff claims the evidence was ob- 
jected to solely on the ground that it should 
have been Introduced as a part of plaintiff's 
case; that this objection conceded its rel- 
evancy, and, under the familiar rule that a 
party complaining on appeal of the admission 
of evidence, in the court below, will be con- 
fined to the spedfic objection there made. 
Morgan v. Gamble, 230 Pa. 165, 79 Atl. 410; 
Roebllng's Sons Co. v. American Amusement 
& Construction Co., 231 Pa. 261, 80 Atl. 647. 
An examination of the record falls to con- 
vince us that this rule should be applied in 
the present case. When the papers were 
handed to the witness Juller, defendant's 
counsel made the following objection: "I 
object to any evidence in regard to these 
papers, unless it is Introduced as part of 
plaintiff's case." The trial judge then said: 
"It goes to the credibility of the witness, I 
understand. Is that the purpose?" Plain- 
tiff's counsel replied: "That is the purpose 
entirely." The court thereupon overruled 
the objection, but no exception was taken to 
the ruling at this point After a preliminary 
examination of the witness the record shows 
the following: 

"Q. In those affidavits yon didn't say a word, 
did you, as to Carey [tbe driver] being drunk or 
as to having a smell of intoxicatinK liquor on 
him? (Objected to by counsel for defendant. 
Objection overruled; exception to defendant.) 
A. No." 

While the objection first made relates to the 
order of the admission of the evidence, tbe 
comment of the court and counsel for plain- 
tiff clearly indicate the evidence was offered 
for the sole purpose of testing the credibility 
oi the witness, and the general objection fol- 
lowing that, upon which the exception was 



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101 ATLANTIC EEPOBTBR 



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founded, may well have been based upon tbat 
ground. It is sufficient to say that the record 
is not clear or spedflc on tills point, and in 
that case the rule invoked by appellee will 
not be applied. Kuhn v. ligonler Valley R. 
R. Co., 255 Pa. 445, 100 Atl. 142. It follows 
that the first assignment of error must be 
sustained. 

[4, 5] The other question Involved is 
whether or not the damages awarded are 
excessive, or whether the court below abused 
its discretion in refusing to cut down the 
verdict, or allow a new triaL Since the pas- 
sage of Act May 20, 1891 (P. L. 101), giving 
this court povfer to set aside verdicts deemed 
to be excessive, we have repeatedly said that 
the question of the amount of the verdict 
would be reviewed only in cases where so 
grossly excessive as to shock our sense of 
justice, and where the impropriety of allow- 
iug a verdict to stand is so manifest as to 
show a clear abuse of discretion on the part 
of the court below in refusing to set it aside. 
Qulgley V. Penna. R. R. Co., 210 Pa. 162, 59 
AtL 958; Reed v. Pittsburg, Carnegie & 
Western R. R., 210 Pa. 211, 59 Atl. 1067 ; Dun- 
lap V. Pittsburgh, Harmony, Butler & New 
Castle Ry. Co., 247 Pa. 230, 93 AtL 276. In 
view of the nature of the injury, the pain 
and suffering endured, and all the circum- 
stances of the case, it cannot be said the ver- 
dict in this case Is so excessive as to warrant 
our Interference upon that ground. 

The Judgment is reversed with a new ve- 
nire. 

.CS7 Pa. 1) 

THOENEBB et al. v. MOSBY et al. 

(Supreme Court of Pennsylvania. Feb. 26, 
1917.) 

Nuisance <S=>3(9)— Dance Haix— Chabactxb 

OF NElaUBOBIIOOD. 

A bill in equity to enjoin dancing in a hall 
in a neigliborbood not strictly residential was 
properly dismissed, where it appeared that the 
colored persons attending the dances conducted 
themselves in an orderly manner, and made no 
more noise than was usual on sucU occasions, 
though after the dancing, which usually closed 
at 12 o'clock, Uiere was considerable noise in 
the street on departing, as that could be satis- 
factorily controlled by the police. 

[Ed. Note.— For other cases, see Nuisance, 
Cent Dig. |§ 20-22.] 

Appeal from Court of Common Pleas, Phil- 
adelphia County. 

Bill in equity for an injunction by W. Her- 
man Thoenebe and others against Jerome 
Mosby and John Foreman, trading as Mosby 
& Foreman, and Joseph M. Thomas, trading 
as Charles J. Thomas Sons. From a decree 
dismissing the bill, plain lifts appeal. Af- 
firmed. 

BUI in equity for an injunction. The facts 
appear in the following opinion by Breg}', 
P. J., in the court of common pleas: 

This is a bill alleging that the defendants 
are maintaining a nuisance at the hnll, 1512 to 
1520 North Thirteenth street. 



(1) The plaintiffs reside on Thirteenth street 
between Jeiferson and Oxford streets. 

(2) The defendants Mosby and Foreman are 
lessees of a hall on Thirteenth street between 
Jefferson and Oxford streets, where they have a 
dancing school. The defendant Thomas is the 
owner of the building. 

(3) On Monday. Thursday, and Saturday 
nights Mosby and Foreman, who rent the hall 
on the third floor of the stable building kno\Vn 
as Thomas' stable, have dancing parties that 
begin at 9 o'clock and continue till 12 o'clock. 
On Wednesday night they teach dancing from 
8;30 o'clock to 10:45 o'clock. On Tuesday and 
Friday nights the hall is not occupied by the 
dancing school in any way, but the leasees sublet 
it (with the consent of the owner, Mr. Thomas) 
for concerts, balls, and so on as they can ob- 
tain a tenant During the 15 months the de- 
fendants have occupied the hall they have rent- 
ed it for the above purposes 14 times. 

(4) On Monday, Thursday, and Saturday 
nights, the music tor the dancing parties begins 
at 9 o'clock and continues till 11 :50, when it 
stops and the patrons leave — the hall being emp- 
tied by 12 o'clock. On Wednesday night, the 
teaching night the school begins at 8:30 and 
closes at 10 :45. On the occasions that the hall 
has been rented out for different entertainments, 
they have occupied the hall till 2 o'clock a. m. 

(5) The music at the dancing parties consists 
of five pieces, viz. : Piano^violin, cornet, trom- 
bone, and trap drum. On Wednesday nights the 
music is by the piano only. The same five pieces 
play at the balls or entertainments when the 
place is rented. 

(6) When the music continues after 11 o'clock 
it is muffled to subdue its noise, and so con- 
tinues till the audience leaves. 

(7) The hall here alluded to is on the third 
floor of a large public stable building that has 
been so occupied for over 40 years. During 
the many years of the existence of this stable 
it has been occupied as such, both for the sta- 
bling of private teams and the hiring of horses 
and carnages to the public. The ball on the 
third floor has for over 30 years been rented out 
as a dancing school, for parties, concerts, and 
for different kinds of public meetings, political 
and otherwise. 

(8) The neighborhood is no longer a strictly 
residential one. This one square on Thirteenth 
street between Jefferson and Oxford has in ad- 
dition to the large stable already mentioned quite 
a number of business places. EVom the north 
side of Jefferson street to the south side of Ox- 
ford street, there is on one side a large furni- 
ture manufactory, a barber shop, a store, a tailor 
shop, a china decorating store, and an empty 
store at the comer ; on the other side there is 
a saloon, tailor shop, a wall paper establishment, 
a butcher shop, and other stores. On the south 
side of Jefferson street at Thirteenth street 
there is a grocery store at one comer and a 
drug store at the other ; and on the north side 
of Oxford, a grocery store at one corner and an 
insurance office at the other. 

(9) The persons attending the dances and en- 
tertainments heretofore spoken of have behaved 
themselves in a proper way in the hall, and no 
misbehavior there has been proved or, in fact 
allepred against them. 

(10) The patrons of the hall are colored peo- 
ple. 

(11) When the audience disperses there is on 
the street the noises of these persons talking to 
each other, saying good-bye and the calling to 
ft friend to wait, etc. 

(12) At the dancing parties the attendance 
is from SO to 100 ; at the times the hall is rent- 
ed sometimes there are as many as 400 there. 

(\") The occupants of four hou.ses on Thir- 
teenth street complain that they are annoyed 
by the mnsic to the hall and by the noise in 



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COMMONWEALTH t. SOHWABTZ 



99 



the street when the patrons leave. Very many 
more say they are not annoyed and have no com- 
plaint to make. 

(14) Within the last few years the immediate 
neighborhood, but not this street, has become 
tenanted by a large number of colored people^ 

Conclusions of Law. 

The plaintiffs seek to have the defendants close 
tbe hall at about 10 o'clock, complaining that 
the continuation of the music after that hour 
and the dispersal of the audience and its at- 
tendant noise are a nuisance that annoys them. 
The compliiint raises the question as to what 
hour a dancing school, party, concert, or ball 
should close its doors. The answer must depend 
upon the neighborhood, and the facts of each 
particular case, as there can be no general rule 
on the subject. Considering the fact that I have 
foond this not to be a strictly residential neigh- 
borhood, but one that has changed into a partly 
business one, I do not consider it uureasonaDle 
to keep open the dancing school till 12 o'clock. 
The hours of entertainment are not what they 
used to be. Everything is later, and, as times 
change, we mast change our habits with them. 
Everythins has been done by the proprietors of 
the school to lessen the sound of the music 
after 11 o'clock, and I see no reason to interfere 
with the dancing school. 

At to the parties or balls that are held on 
other evenings, while not very many in number, 
another question presents itself. Considering 
tbe neighborhood and tbe admitted fact that on 
an average of once a month an entertainment of 
eotnt kind is given which continues till 2 o'clock 
in the morning, is It proper to issue an injunc- 
tion? This question is not without difficulty. 
That it is an annoyance to the plaintiffs to have 
their sleep broken by these gatherings is un- 
doubtedly true. Those who live in cities must 
take what goes with it, however. Those who 
live in business neighborhoods cannot expect or 
demand the quiet of the suburbs. 

As the neighborhood changes they must take 
the consequences. If it changes for the worse 
and personal discomfort follows, that must be 
submitted to. The running of street cars and 
tbe noise of the automobiles all night long are 
among the few annoyances that all sections of 
the city are now subjected to, but would some 
years ago have been considered a nuisance. Ap- 
plying the principle that an injunction should 
not issue in doubtful cases, I would not issue 
one here. 

There remains only the other question, viz.: 
Can tibe bill prevail because of the noise in the 
street after the entertainments are dismissed? 
As I have found that the defendants' entertain- 
ments bring together an assemblage of respecta- 
ble, well-behaved people, and that the noises in 
the street are not of a kind that are induced 
by or encouraged by the defendants' parties, I 
see no reason for a court of equity to act. This 
is a matter for the police to see ta We would 
not hesitate to enjoin the gathering of disorderly, 
dissolute, drunken, or depraved persons, whose 
coming t<Hfether must necessarily annoy the resi- 
dents of nearby houses, but the saying of part- 
ing words by respectable people and the calling 
to friends as they leave the hall is a matter for 
the police to regrilnte, rather than for a court 
to dispose of by injunction. 

Tbe court dismissed the bllL Plaintiffs ap- 
pealed. Error assigned, inter alia, was the 
decree of the court. 

Argued before BROWN, O. J., and STEW- 
ART, MOSCHZISKER, FRAZER, and WAL- 
LING, JJ. 



Ormond Rambo and Frank H. Warner, 
both of Philadelphia, for appellants. J. H. 
Shoemaker, of Philadelphia, for appellees. 

PER CnRIAlfL This bill was filed to en- 
Join dancing and moslc in a certain hall In 
the city of Philadelphia. That it was prop- 
erly dismissed appears by tbe facts found 
and legal conclusions reached by the learned 
president Judge of the court below, and, on 
them, the decree Is afiSrmed at tbe costs of 
appellants. 

(267 Pa. 159) 
COMMONWHAlffH ex rd. BROWN, Atty. 
Gen., V. SCHWARTZ. 

(Suprema Oourt of Pennsylvania. March 12, 
1917.) 

Quo Wabbawto «=»60— Judombht o» Oustkb 
—Justice or the Pkacs. 
A judgment of ouster in quo warranto pro- 
ceedings to test the right of a justice of the 
peace to hold office in a borough was properly 
entered, where it appeared that respondent hod 
been defeated at an election under wiiich he 
claimed his right to the office. 

[Ed. Note.— For other cases, see Quo War- 
ranto, Cent Dig. { 71.] 

Appeal from Court of Common Pleas, Lack- 
awanna Coanty. 

Qno warranto by the Commonwealth, on 
ralatlon of Francis Shunk Brawn, Attorney 
General, against Prank Berger and Phillip 
Schwartz, to test the right of the last defend- 
ant to act as Justice of the peace of the 
borough of Old Forge. Judgment for defend- 
ant Berger, and writ dismissed as to him, 
and Judgment of ouster against defendant 
Schwartz, and he appeals. Affirmed. 

It appears by the record that an election t» 
flu vacancies in the office of Justice of the 
peace of Old Forge borough was held in 
November, 1915, at which time the following 
candidates received the number of votes set 
out after their names: E. J. Garvin, 819 
votes ; Frank Berger, 808 votes ; Fred Roon- 
ey, 806 votes; J. J. Chelland, C91 votes; 
Phillip Schwartz, 641 votes. It appeared also 
that commissions were thereafter Issued tn 
Frank Berger and Phillip Schwartz as Jus- 
tices of the peace. When the case came to 
trial It was agreed that It should be heard by 
the court without a Jury, and after such hear- 
ing the court found the following facts and 
conclusions of law : 

Facts. 

(1) The territory constituting the borough 
of Old Forge, before the incorporation of the 
t>orough, had two justices of the peace. 

(2) The borough was incorporated on May 2, 
1809. 

(3) An attempt was made at the February 
election of 1899 to secure a vote for an increase 
of two justices in the township of Old Forge. 
Notices were posted as required by the act of 
assembly, and there was a vote actually taken 
on the question of increase. There was no re- 
turn of the vote made to the office of the clerk 



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101 ATIiANTIG BKPORTBR 



(I*a. 



of tbe court, nor the executive department of 
Harrisburg. Nor is tbere any evidence what- 
ever in this case as to whether the vote was in 
favor or against an increase. Tbe election of 
1899 has no place in the consideration of the 
present controversy. 

(4) Another election was held In the borough 
of Old Forge in 1905, at which the question of 
increase in the number of justices was voted 
upon. The public notices posted before the 
election specified an increase of three justices, 
but the return of the vote on file in the clerk's 
ofiice shows an increase of one only. Counsel 
have agreed that the tabulation prepared by 
the clerk is a correct copy of the returns in his 
ofiice. The tabulation is as follows: 

For Increase. Against Increase. 
23 64 



Ist Ward . 
2d Ward , 
3d Ward . 
4th Ward 
5th Ward 
eth Ward . 



— 2 

.... 75 6 For one Justice 
.... 9 Increase one 


This shows that the total vote in the borough 
against the increase was 71; there were 23 votes 
for increase without designation of any number, 
and there were 84 votes in favor of an increase 
of one. 

Conclusions of Law. 

1. Old Forge township previous to its incor- 
poration was entitled to two justices of the 
peace. 

Counsel for all parties conceded this propo- 
sition. 

2. There was not, in law, an increase in the 
number of justices in Old Forge township by 
the election of 1899. There has been some mis- 
apprehension as to the election of 1899. Coun- 
sel have tried this case on the supposition that 
the election was a borough election, although, 
as already stated, there was no borough until 
the May following. However, this is of no mo- 
ment. The election was undoubtedly a town- 
ship election, and a township, as such, had the 
right to vote an increase in the number of jus- 
tices. The same misapprehension is to be no- 
ticed in the opinion of the deputy attorney gen- 
eral found in the case of the Old Forge Justices, 
30 Pa. 0. C. 164, who supposed the election of 
1899 was a borough election, and, basing his 
opinion on an affidavit, be states that there was 
an increase of one justice at that election in Old 
Forge in 1899. We have no doubt that if the 
evidence before us was before the Deputy Attor- 
ney General he would not have advised the Grov- 
ernor in 1904 to make an appointment of one 
person to fill the vacancy untU May, 1906. 

3. The number of justices of the peace in Old 
Forge borough was lawfully increased by one 
at tjbe election in 1905. This proposition is so 
plain that it needs no discussion. 

4. Old Forge borough, prior to the dection of 
1905, was entitled to two justices of the peace. 
After said election it is entitled to tliree. 

5. Two vacancies for the office of justice of 
the peace were to be filled at the November elec- 
tion, 1915. E. J. Garvin and Frank Berger 
having received the majority of votes in the bor- 
ough at said election for said office, are enti- 
tled thereto, having been lawfully elected. We 
note in this connection, that the right of B. J. 
Garvin to office is not in question in this case. 

6. The respondent, Phillip Schwartz, failed 
of election in 1915, and is therefore not entitled 
to the office of justice of the peace of Old Forge 
borough. 

Subsequently exceptions to the findings of 
fact and conclusions of law .were dismissed, 
and judgment was entered in favor of the de- 
fendant Frank Berger, and the writ dismissed 



as to him, and as to the defendant Phillip 
Schwartz Judgment was entered In favor of 
the relator, that the said defendant be ousted 
and altogether excluded from the oflSce of 
Justice of the peace of Old Forge borough. 
Phillip Schwartz, defendant, appealed. 

Argued before BROWN, C. J., and MES- 
TREZAT, POTTER, FRAZER, and WALr. 
LING, JJ. 

A. A. Vosburg and John Memolo, both of 
Scranton, for appellant John H. Bonner, of 
Scrauton, for appellee. 

PER CURIAM. This case was tried with- 
out a Jury, and the Judgment of ouster 
against appellant is affirmed on the facts 
found and the legal conclusions readied by 
the learned trial Judge. 

"^"^^^^ (JBT Pa. 48) 
MAGUIBB T. PREFERRED REALTY CO. 

(Supreme Court of Pennsylvania. March 6, 
1917.) 

1. ACKITOWLEDOMXNT €=>5— DEKD»— NECBSei- 

XT AS Between Pabtieb. 
A deed executed and delivered is sufficient to 
pass title between the parties, though not «o- 
knowledged. 

[Ed. Note. — For other cases, see Acknowledg- 
ment, Cent Dig. {§ 22-42, 44.] 

2. Pleading ®=3S(15)— Fradd— Allegationb. 

Where a declaration in ejectment contains 
no allegations of fact showing fraud, an amend- 
ment must, in the same degree of certainty, de- 
tail the circumstances pointing to that concla< 
sion. 

[EM. Note.— For other cases, see Pleading 
Cent Dig. § 28^.] 

3. Ejectment «=>75— Statement of Claix— 

DEMtTRKEB. 

A statement of claim in ejectment averred 
that plaintiff conveyed the realty to defendant 
in consideration of its agreement to give plain- 
tifF certain shares of stock, and that after tbe 
conveyance defendant had refused to deliver any 
stock to plaintiff so that the consideration of the 
conveyance had failed, but did not allege the facta 
indicating fraud in securing the deed, field that 
ejectment was not the proper remedy, so that a 
demurrer to the statement of claim was properly 
sustained without prejudice to plaintilTs right 
to assert the claim m some other proceeding. 

[Ed. Note.— For other cases, see Ejectment, 
Cent Dig. { 204.] 

Appeal from Court of Common Pleas, Phil- 
adelphia County. 

Ejectment by Mary Magulre against the 
Preferred Realty Company for recovery of 
land situate in tbe city of Philadelphia. De- 
murrer to plaintUTs statement of claim sus- 
tained, judgment for defendant, and plain- 
tiff appeals. Affirmed. 

Argued before BROWN, C. J., and POT- 
TER, MOSCHZISKEIR, FRAZER, and WAL- 
LING, JJ. 

Alex. Simpson, . Jr., of Philadelphia, for 
appellant Graham C. Woodward and Sam- 
uel F. Wheeler, both of Philadelphia, for ap- 
pellee. 



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MAGUIRE y. PR£F£BR£D REALTY CO. 



101 



MOSCHZISKER, J. This action was In 
ejectment; a declaration and abstract of 
title were filed, to which a demurrer was 
ait»ed; the judgment favored defendant, 
and plaintiff has ai^>ealed. In the course 
of bis opinion. Judge Ferguson, of the court 
below, states the material facts thus: 

"The plaintifl avers that she signed a deed 
conveying the premises in qnestion to the de- 
fendant [corporation], but that she did not ac- 
knowledge the deed in the presence of the no- 
tary public who certified that she had done so. 
She also avers that the deed was signed in the 
presence and at the request <rf Samuel F. Wheel- 
er, 'who was her attorney,' and who the plain- 
tin believed was the sole manager and counsel 
and owner of all the capital stock of the de- 
fendant corporation ; and that the consideration 
for the deed was a verbal agreement made by 
the defendant, through Wheeler, that all the de- 
fendant's corporate stock should be transferred 
and delivered to her as security for money due 
her for advances made to Wheeler and his wife 
and for money expended in connection with 
the sheriff's sale under which plaintiff obtained 
title. The declaration further sets out that the 
deed was recorded without plaiutifTs knowledge 
or consent, and the defendant, through Wheeler, 
refused to surrender the stock [and that "the 
consideration for said conveyance wholly fail- 
ed")." 

[1] After the foregoing review of the facts 
stated in the declaration demurred to, the 
(pinion goes on to say: 

"It will be observed that the plaintiff fails 
to aver anything with relation to the delivery of 
the deed; in fact, a delivery is necessarily im- 
plied from the averment that there was a con- 
sideration which failed. The plaintiff nowhere 
alleges that she demanded a return of the deed. 
What she seeks is a delivery of the stock of the 
defendant corporation, to be held by her as se- 
curity. It is also to be noted that the plain- 
tiff does not aver that the defendant company, 
to whom she made the deed, held the stock or 
was in a position to deliver it as the considera- 
tion, but the stock is alleged to be owned by 
Wheeler, who refuses to deliver it. A deed does 
not necessarily have to be acknowledged before 
a notary pnbUc to make it a valid instrument 
between parties. Rigler v. Cloud, 14 Pa. 361; 
Cable V. Cable, 146 Pa. 451, 23 Ati. 223. Eze- 
ctition and delivery are sufficient to pass the 
title, and there is no averment in the declara- 
tion from which it could be inferred that the 
deed was not delivered." 

nien, after dtlng several authorities, the 
court below determined that, on the fftce of 
the plalnbUfs pleading, the suit was merely 
an effort to enforce "a verbal agreement, 
made by one not a party to the deed, that 
all the capital stock of the defendant com- 
pany should be transferred and delivered to 
the plaintiff as security," which "agreement 
cannot be enforced by an action In eject- 
ment" 

The plaintiff contends that the learned court 
below misconceived the real purpose of her 
suit, and that the very form of the action — 
ejectment — shows It was to recover the land 
and not to gain the consideration ; but, even 
looking at the case from that vlewiwlnt. It la 
not at all apparent material error was com- 
mitted in entering the Judgment under re- 
view. In her first declaration, the plaintiff 
simply aTecred: 



"On January 17, 1916, plaintiff conveyed said 

§ remises to the Preferred Realty Company, the 
efendant, by deed of that date, recorded, etc. 
• • ♦ Said conveyance was made in consider- 
ation of an agreement by defendant, through its 
president, to give plaintiff stock of defendant 
in payment therefor - but, since said convey- 
ance was made, defendant, through its president, 
has refused to give to plaintiff any of the stock 
of defendant. • • * Wherefore the consider- 
ation for said conveyance has wholly failed," 
etc 

Subsequently an "amended declaration and 
abstract of title" were filed, oontalnlng the 
averments already outlined, and the appel- 
lant contends that these new averments are 
sufficient to show such a case of fraud as 
entirely to avoid plalntlfTs deed of convey- 
ance and leave the property In her as though 
that instrument had never been executed. 
If this were so, then It might be that the 
plaintiff could maintain ejectment; but, be- 
ing on demurrer, the Judgment must stand 
or fall uptm a review of the declaration as 
written, and not on the facts of the case as 
they are contended to be in appellant's argu- 
ment. 

[2] The original declaration contains no al- 
legations of fact indicating fraud, and the 
averments in the amendment, while, perhaps, 
suggesting the possibility of some fraudu- 
lent purpose on the part of Mr. Wheeler, 
when he secured the deed from the plaintiff, 
do not so charge in terms. "Fraud is never 
to be presumed." Addleman v. Manufac- 
turers' light & Heat Co., 242 Pa. 687, 690, 
89 Atl. 674, 675. When there Is no particu- 
lar averment of a fraudulent purpose, but 
the circumstances detailed are depended up- 
on as showing such to be the case, then the 
facts relied upon must not only be fully and 
unequivocally avferred, but they must point 
with some degree of certainty to the ccmclu- 
sion contended for; and in such cases the 
intendments are taken most strongly against 
the pleader, for he la presumed to have stat- 
ed all the facts involved, and to have done so 
as favorably to hims^ as his conscience 
win permit Baker v. Tustin, 245 Pa. 490, 
601, 91 Att. 891; Little v. Thropp, 245 Pa. 
639, 644, 91 Aa 924. 

[3] Here, as already suggested, the facts 
detailed in plaintiff's declarations do not, 
with any degree of certainty, lead the mind 
to the conclusion that. If they should be 
proved, a Jury would be Justified In finding 
the deed, under which the defendant claims, 
to have been fraudulently obtained by It 
We say this, for the averments of the dec- 
laration are vague and Inconclusive in many 
material respects. In the first place, it is 
not averred that Mr. Wheeler was plaintiff's 
counsel or attorney at the time the deed was 
executed by her, or that be acted in such 
capacity in this' particular transactlou ; next, 
there is no allegation that he was duly au- 
thorized or actually did act on behalf of the 
defendant company in making the alleged 
verbal agreement with the plaintiff; and, 
finally, the averment that Wheeler was the 



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101 ATLANTIC REPOttTER 



(Pa. 



ownier of all the corporate stock of the de- 
fendant except a few shares, Is too Indef- 
inite to substitute him In all respects for the 
latter, there being no allegation that he was 
the sole owner, In possession of the stock, 
or In control of the coriwratlon, at the time 
of the occurrences complained ot The fore- 
RoinK are only a few of many insufficiencies 
which, If necessary. Blight be pointed out; 
but they are enough to show the inadequacy 
of the declaration. We feel, however, the 
plaintiff should be placed in such position 
that the present Judgment will not be taken 
as precluding her from properly asserting 
her alleged rights in some other action or 
proceeding where both the realty company 
and Mr. Wheeler are Included as defendants. 
The assignments of error are overruled, 
and the Judgment is affirmed, without prej- 
udice, as above Indicated. 



(2ST Pa. 6) 

AliLEN T. SCHEIE et aL 

(Supreme Court of Pennsylvania. March S, 
1917.) 

1. Easbuxnts ®=»51— Use— Extent. 

An easement cannot lawfully be used for a 
purpose different from that for which it was 
dedicated. 

[Ed. Note.— For other cases, see Easements, 
Cent Dig. a 10&-112.) 

2. Easements <8=>12(2)— Feb— "Road"— "Pm- 
VATE Road." 

The term "road," and especially "private 
road," is indicative of an easement rather than 
a fee. 

[Ed. Note.— For other cases, see Easements, 
Cent. Dig. §S 36-38. 

For other definitions, see Words and Phrases, 
First and Second Series, Roi^d; Private Road.] 

3. Easements «=»C1 (9)— Action foe Injunc- 
tion—Burden OF Proof. 

The burden was upon plaintiff to establish 
her ownership to the fee of the land, included in 
a private road in which defendants had a user, 
before she was entitled to construct a gas pipe 
line on the surface. 

[Ed. Note.— For other cases, see Easements, 
Cent Dig. g 143.] 

4. Easements iS=>C1(9)— Action fob Injunc- 
tion— Interest— Evidence. 

Evidence in a suit by tlie owner of a farm 
to enjoin defendants from obstructing a private 
way giving access to a public road held to show 
that plaintifE did not have the fee in the road, 
but had only an easement of way. 

[Ed. Note.— For other cases, see Easements, 
Cent Vie. i 143.] 

5. Easements <©=>51— Wat— Use. 

The owner of an casement in a private right 
of way, in which defendants also had a right 
of use, was not entitled to maintain a line of 
gas pire on the surface, as that was not con- 
templated when the easement of way was cre- 
ated. 

[Ed. Note.— For other cases, see Easements, 
Cent Dig. §S 109-112.] 

6. Injunction <g=>130— Objection to Juris- 
diction — Statute. 

Though defendant's first objection to the ju- 
risdiction of equity, to enjoin interference with 



easement made in request for findings after the 
evidence was submitted was not in compliance 
with Act June 7, 1907 (P. I* 440) S 1, it did 
not affect the chancellors duty to dismiss the 
bill if the facta averred were not substantially 
proved at the triaL 

[EM. Note.— For other cases, see Injunction, 
Cent Dig. a 288-300.] 

Appeal from Court of CSommon Pleas, Al- 
legheny County. 

Bill In equity for an Injunction by Eleanor 
Walker Allen against John Scheib, Sr., and 
another. From a decree awarding an in- 
junction, defendants appeal Modified and 
affirmed. 

Argued before BROWN, a J., and POT- 
TER, MOSCHZISKER, FRAZBR, and WAI/- 
LING, JJ. 

E. J. McKenna, of Pittsbargh, for appel- 
lants. J. W. (Jollins, of Pittsburgh, for ap- 
pellee. 

WALONG, J. This equitable action la to 
determine the rights of the respective parties 
to a certain strip of land situate In Richland 
township, Allegheny county, and used as a 
private road. The Butler plank road extends 
through said township in a northerly direc- 
tion, and the farm of the late John Scott, 
containing 142 acres, is located thereon. He 
died in 1875, and clause 4 of his will pro- 
vides: 

"I give and devise to my grandson, John Scott 
Teacher, 15 acres of my Bakerstown farm ; t» 
my daughter, (jatherine Harbison, 10 acres; 
to my granddaughter, Sarah Harbison, 5 acres; 
to my daughter Jaae Harbison, 10 acres, all to 
be divided out o£ my Bakerstown farm west of 
the plank road." 

He left other heirs and devisees aside from 
those above mentioned ; and, by some family 
arrangement made shortly after his death, 
the 40 acres mentioned in the clause was set 
aside to the devisees therein named out of 
the northwest comer of the farm, away from 
the public highway. To afford access to the 
40-acre tract it seems to have been a part 
of the agreement that a private road or lane, 
of the .width of 16% feet, should be opened, 
extending eastwardly from the southeast 
corner of the 40-acre tract, about 1,295 feet, 
to the Butler plank road, which lane was 
later fenced and opened, and has been used 
for about 20 years last past by the occupants 
of the 40 acres, the same having been par- 
titioned in 1876, among the devisees above 
named. This is shown by a map made that 
year by Charles Gibson, at the Instance of 
one of the devisees. The purparts thereby al- 
lotted were sold from time to time, and the 
deeds therefor include fractional parts of the 
lane, corresponding to the siae of the respec- 
tive purparts, for example, each deed for 15 
acres Includes three-eighths of the lane. In 
1901 the title to the 40-acre tract, together 
with whatever Interest the owners thereof 
had in the lane, became vested in John Scott 
Harbison, who conveyed same to plaintiff in 



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ALLEN ▼. SCHEIB 



103 



ISU. The lane was also used by the owners 
ot the balance of the John Scott fann, as 
their necessities required. 

So far as appears the family arrangement 
above stated was not in writing, and there 
Is no record of any conveyance from the John 
Scott heirs to plaintiff's predecessors for the 
40 acres or the lane. Plaintiff contends that 
tbe lane was included in the 40 acres. There 
la a part of the John Scott farm containing 
about 33 acres, some 24 acres of which He be- 
tween the 40 acres and the Butler plank road 
and north of the lane, as to which he seems 
to have died Intestate. In 1881, all of the 
heirs of John Scott Joined In a conveyance 
of the 24-acre tract to James D. Harbison, 
wherein the southern boundary is describ- 
ed as: 

"Thence along a certain road or lane between 
the land herein conveyed and the land of John 
Stirling." 

Another part of the Scott farm, containing 
about 30 acres, and called the Stirling tract, 
is on the west side of the planli road and 
bonnded on the north by the 40-acre tract 
and the lane. 

By sundry conveyances the title to the 24- 
acre and the 30-acre tracts became vested 
In Thomas Morrow, who in 1910 conveyed 
same with other land to defendant, John 
Scbelb, Sr., the deed for which in one of the 
conrses mentioned, "a point at the corner 
of a private road," and the general descrip- 
tion therein includes the lane and the land ou 
both sides thereof. After Mr. Schelb bought 
this land there was a controversy about the 
use of the lane, between Mr. Harbison and 
plaintiff on one side, and the defendants, 
"John Schelb, Sr., and John O. Schelb, on 
the other, each side claiming to own the same. 
One of the findings of the court below Is : 

"Sixth. That said John Scheib. Sr.. by de- 
stroying drains along said private roacl, taking 
ont posts and trees planted by plaintiff and by 
other acta has repeatedly interfered with plain- 
tiff in the use of said private road." 

The defendants, or those In their employ, 
also drove their stock across this lane, and 
In so doing obstructed It with wires, and re- 
peatedly suffered the same to remain in that 
condition, to the annoyance and damage of 
plahitiff. 

In 191S, plaintiff entered into a contract 
with one Sebastian Mueller, for the constmc- 
tl(m and maintenance of a line of gas pipe in 
the lane, which defendants by opposition and 
threats prevented being done. Thereafter 
plaintiff filed her bill in this case. Joining 
said Mueller as a defendant, but the bill as 
to him was dismissed. The learned trial 
judge, sltrlng as a chancellor, found that 
plaintlfl had a good title In fee simple to the 
strip of land herein called the lane, and 
entered a final decree, Inter alia, enjoining 
defendants from Interfering with the con- 
struction of the gas line, and also from in- 
terfering with plaintiff's free use and main- 



tenance of the private road. Drfendants con- 
cede that plaintiff has a right to the use of 
the lane as a passageway ; in fact that Is the 
only means of access to her property. We 
fully agree with the learned chancellor that 
under all the facts and circumstances defend- 
ants should be enjoined from interfering with 
plalntlfTs free use and enjoyment of the said 
private road as such. 

But plalntlfTs right to lay or authorize 
another to lay a line of gas pipe therein de- 
pends upon the nature of her ownership. If 
an easement, then she can use It only for the 
purpose for which it was established or dedi- 
cated, and cannot lay a pipe line therein. 
U. S. Pipe Line Co. & Breckenrldge v. Del., 
Lack. & Western B. B. Co., 62 N. J. Law, 254, 
41 Atl. 759, 42 L. B. A. 672; 14 Cyc. 1207, 
note 98. 

[1] As an easement It cannot lawfully be 
used for a purpose different from that for 
which It was dedicated. Kirkbam v. Sharp, 
1 Whart. 323, 29 Am. Dec. 57; Mershon v. 
Fidelity Ins., Trust & Safe Deposit Co., 208 
Pa. 292, 67 Afl. 669 ; 14 Cyc. 1215. 

[2-6] As above stated the chancellor finds 
that plaintiff owns the fee. If so, she may. 
of course, construct the gas line therein ; but 
a careful examination of the record falls to 
disclose any sufficient evidence to support 
that conclusion. As above stated, there Is 
no deed or other writing showing any con- 
veyance by the Scott heirs of the so-called 
private road. Tnie, the road Is recognized 
In their deed to James D. Harbison as above 
quoted, "thence along a certain road or lane 
between the land herein conveyed and the 
land of John Stirling*'; but that does not 
show that the title to the fee thereof has 
passed from the Scott heirs. The term 
"road," and especially "private road," Is in- 
dicative of an easement rather than a fee. 
See Klster v. Beeser, 08 Pa. 1, 42 Am. Bop. 
608. Plaintiff relies largely on the evidence 
of her grantor, John S. Harbison, as tending 
to establish a parol partition of the Scott 
farm made in 1876, by which this lane Is al- 
leged to have been allotted to the owners of 
the 40-acre tract, and as a part thereof. But 
he does not say that all of the Scott heirs 
were present, and shows they were not when 
he names those who were there. The chan- 
cellor in one part of his exhaustive discus- 
sion says: 

"Respecting plaintiff's right to the uninter- 
rupted use of tbe road there is no room for dis- 
pute. Respecting the precise limits of her 
rights, whethor she has a fee or a mere ease- 
ment, is a debatable question. • ♦ • Wheth- 
er Mr. Scheib has the fee in the 16^-foot strip 
of land or the mere right to use it in common 
with the plaintiff, or any right in it, he has no 
right to fill up necessary drains, or otherwise 
prevent the free use and proj^er maintenance of 
the road, and plaintiff is entitled to an injunc- 
tion restraining him from interfering with her 
in the exercise of her lawful rights. 

The John Scott heirs, aside from those 
named in Clause 4 of the will, were not par- 



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101 ATLAKTIO REPORTER 



(R.1. 



tlea to the partition of the 40-acTe tract, nor 
to the Gibson survey, nor, so far as the rec- 
ord shows, bound thereby. And certainly 
they were not bound by Qie recitals in the 
deeds from the owners of the respective pur- 
parts of the 40-acre tract One cannot create 
a fee in land merely by including It in his 
conveyance. And the above-cited reference 
to this road or lane in the deed from the 
Scott heirs to James D. Harbison, and also 
In the deed from Morrow to defendant, arc 
certainly as consistent with an easement as 
with a fee. The mere reference in a con- 
veyance to a private road does not teud to 
show ownership in fee thereof in the party 
for whose use it may have l>een established. 
Such road, or alley, may, prima facie, be 
used by all abutting owners, and defendants 
as such would have standing to object to au 
additional use being made thereof by the con- 
struction therein of a gas line, especially as 
this Is proposed to be constructed on the sur- 
face of the ground. 

PlaintlEF as the owner of the 40-acre tract 
undoubtedly has an easement in the private 
road and a right to the free and imintcrrupt- 
ed use thereof as a way for purposes of pas- 
sage over and upon the same; and, so far 
as appears, defendants may lawfully make 
such use thereof as will not interfere with 
the rights of plaintitf. 

The burden was upon plaintiff to establish 
her ownership to the fee of the land included 
in the road, and therein her proofs fail, and 
the finding of the court below in her favor as 
to that cannot be sustained; nor can the de- 
cree In so far as it restrains defendants from 
interfering to prevent plaintiff from the con- 
struction of a gas line in the road. 

[8] The defendants, John Scheib, Sr., and 
John G. Scheib, did not, by demurrer or an- 
swer, question the Jurisdiction of the court, 
upon the ground that the suit should have 
been brought at law, but filed an answer to 
the merits of the case without asking for an 
Issue as to any questions of fact, and thereby 
the right of trial by Jury seems to have been 
waived, under the provisions of section 1, of 
the act of June 7, 1907 (P. L. 440 ; 5 Purdon's 
Digest, p. 6001). The defendants first raised 
the question of Jurisdiction in requests for 
findings after the evidence was submitted; 
this was not a compliance with the statute. 
Nanhelm v. Smith, 253 Pa. 380, 98 AU. 602. 
However, the proviso to this 8e(;tlon is: 

"That this shall not alter or affect the duty 
of the chancellor to dismiss the bill if the facts 
therein averred, as sliowing or teudinR to show 
the right to relief, be not substantially proved 
at the trial" 

— and by reason thereof plaintiff is not en- 
titled to relief based on her alleged owner- 
ship of the fee of the land in question; for 
such claim Is not substantially praven. 

The final decree entered by the court be- 
low is therefore modified by striking out so 
jiuch thereof as restrains defendants, John 



Scheib, Sr., and John O. Scheib, from inter- 
fering with plaintiff in ttie construction and 
maintenance of a gas line in or upon said 
private road. The costs on this appeal to be 
paid by the apx>ellee. 

"°'°°'"" (40 R. I. «S) 

GAGNOX V. HHODB ISIAND Ca 
(No. S022.) 

(Supreme Court of Rhode Island. July 5» 
1917.) 

1. Tbiai, ©=>26(K1)— Rbfdbai. or Ihstbuc- 

HONS COVEBED. 

The refusal of instructions, which in so far 
as they were correct were covered by those 
given, was not error. 

[Ed. Note.— For other cases, see Trial, Cent. 
Dig. f 651.] 

2. Damages €=»52 — PxbsonaIi Irjubies— 

Mental Suvferino. 
Mental suffering of a pregnant woman con- 
sequent upon apprehension and anxiety as to 
the effect of an injury upon the foetus becomes 
an element of her damage as a natural and 
proximate result of the negligence which caused 
the injury. 

[Ed. Note.— For other cases, see Damages, 
Cent Dig. §§ 100, 255.] 

3. Dauages €=>52 — Pebsoral Injubies— 

MlENTAL SUFFEHING. 

Although a mother should not be given dam- 
ages for her child's misfortune during life re- 
sulting from an injury to the foetus, or for her 
own consequent mental distress during the life- 
time of the child occasioned by its deformity, 
she is entitled to damages for her distress and 
disappointment at the time of the birth because 
through defendant's negligence she has been de- 
prived of the right and satisfaction of bearing 
a sound child, if it be found that the child's de- 
formity is due to the injury received through de- 
fendant's negligence. 

[Kd. Note. — For other cases, see Damages, 
Cent Dig. §§ 100, 255.] 

Exceptions from Superior Court, Provi- 
dence and Bristol Ounties; Charles F. 
Stearns, Judge. 

Action by Eleanors Gagnon against the 
Rhode Island Company. Verdict for plain- 
tiff, new trial denied, and defendant ex- 
;-epts. Exceptions overruled, and case re- 
mitted for entry of Judgment 

Archambault & Jalbert, of Woonsocket, 
for plaintiff. Clifford Whipple and Alonzo 
R. Williams, both of Providence, for defend- 
ant 

PER CURIAM. This Is an action of tres- 
pass on the case brought to recover daunages 
for injuries alleged to have been suffered by 
the plaintiff through negligence of the de- 
fendant The case was tried before a Jus- 
tice of the superior court sitting with a Jury 
and resulted in a verdict for the plaintiff. 
Defendant's motion for a new trial was de- 
nied by said Justice. The case Is before us 
upon the defendant's exception to the de- 
cision of said Justice on the motion for a 
new trial and upon exceptions taken by the 
defendant to certain rulings of said Justice 
made in the course of the trial. 



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PARIAIT y. OLSSON 



105 



It appears that the defendant's car track 
(Ht John street near Pleasant street in the 
dty of Woonsocket Is laid on the westerly 
side of the roadway In John street, the west- 
erly rail of said track being 2 feet and 10 
Inches from the curbstone of the westerly 
sidewalk of John street Near the corner of 
John and Pleasant streets said track begins 
to curve toward the east and runs Into 
Pleasant street In passing upon and around 
said curve the rear of a double-truck car of 
the defendant begins to overlap the wester- 
ly sidewalk of John street and continues to 
80 overlap the sidewalk for a considerable 
distance, the greatest overlapping being 15 
Inches at one point On the day of the oc- 
currence complained of, the plaintiff. In com- 
pany with two other women, was walking 
in a southerly direction on the westerly 
sidewalk of John street; the plaintiff being 
the one nearest to the curbstone. There 
was testimony from which the Jury might 
find that the servants of the defendant were 
operating one of the defendant's double-truck 
cars on said John street behind said plain- 
tiff; and, without warning or care for the 
safety of the plaintiff, when the danger to 
the plaintiff must have I>een apparent to the 
servants of the defendant they drove said 
car around said curve, whereby the rear of 
said car projected over a portion of the west- 
erly sidewalk of John street struck the 
plaintiff, knocked her down, and inflicted 
serious injuries upon her. The justice pre- 
siding refused to disturb the verdict in re- 
spect to the finding of liability or the assess- 
ment of damages. After an examination of 
the transcript of evidence, we find no reason 
tor overruling hia decision. 

[1] The defendant's exceptions to the re- 
fusal of said justice to charge the jury as 
requested are without merit. Said justice 
carefully Instructed the jury as to the duty 
of the plaintiff and of the defendant In the 
premises, and, so far as the charge which 
the defendant requested was a correct state 
ment of the law applicable to the evidence, 
such instruction had been fully given by said 
justice. 

[2, 3] The plaintiff at the time of the ac- 
cident was pregnant; she was struck and 
felt pain In bar back and side, and she tes- 
tified that at the time of the accident "I 
felt the child pushing toward the right" 
The plaintiff further testified that from the 
time of the accident until the birth of the 
child she entertained fears that the child 
would be bom deformed. The defendant ex- 
cepted to the admission of testimony that 
the bead of the child was deformed at birth. 
The defendant then excepted to the admis- 
sion of testimony that when the plaintiff 
saw this deformity she was pained. The 
defendant also excepted to the charge of the 
Jnstice to the jury that In assessing damages 
they might consider any mental suffering, 
which they found that the plaintiff had en- 



dured, due to her apprehension that she 
would give birth to a deformed child; and 
that they might consider her mental suffer- 
ing at the time of the bli-tb caused by her 
disappointment at finding a deformity in 
the head of the child, If the jury should also 
find that the deformity was a result of the 
accident to the plaintiff. The justice very 
carefully Instructed the jury that the plain- 
tiff was not entitled to compensation for the 
Injury to the child or for any disappointment 
and suffering which she as Its mother might 
feel during Its life by reason of any deform- 
ity In the child; but that the jury were 
justified in giving compensation to the plain- 
tiff for the mental suffering which the jury 
might find she had endured before the birth 
by reason of her apprehension of the child's 
deformity, and also for her suffering at the 
time of birth caused by disappointment In 
finding she had not been delivered of a 
sound child, provided they also found that 
the deformity was due to the accident The 
exceptions which we are now considering 
should be overruled. The foetus 1^ a part 
of the person of a pregnant woman, and if, 
by reason of the nature and circumstances 
of an Injury to her person caused by the neg- 
ligence of a defendant, she suffers appre- 
hension and anxiety as to the effect of the 
injury upon the foetus, in accordance with 
the well-recognized rule, such mental suffer- 
ing becomes an element of her damage as a 
natural and proximate result of the neg- 
ligence which caused the Injury. Further- 
more, although she should not be given dam- 
ages for the child's misfortune during life, 
resulting from an Injury to the foetus, nor 
for her own subsequent mental distress dur- 
ing the lifetime of the child occasioned by 
Its deformity, the mother Is entitled to dam- 
ages for her distress and disappointment at 
the time of the birth because through the de- 
fendant's negligence she has been deprived 
of the right and the satisfaction of bearing 
a sound child. If it be found that the child's 
deformity Is due to the Injury she reorfved 
through the defendant's negligence. Pres- 
cott y. Robinson, 74 N. H. 460, 69 Atl, 622, 
17 L. R. A. (N. S.) 694, 124 Am. St Rep. 
987; Big Sandy y. Blankenshlp, 188 Kv. 
438, 118 S. W. 316, 28 L. R. A. (N. S.) 845. 
19 Ann. Cas. 264. 

. The defendant's exceptions are all over- 
mled, and the case Is remitted to the su- 
perior court for the entry of judgment on 
the verdict 



PARIAN V. OLSSON et aL (No. 4796.) 

(Supreme Court of Rhode Island. June 26. 
1917.) 

Exceptions, Bill of «=359(1) — Tbanbcbipt 
OF Evidence. 
Where plaintiff filed with his bill of ex- 
ceptions a partial transcript of the testimony, 
consisting only of the cross-examination of the 
plaintiff, and certain rulings of tibe trial judge 



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106 



101 ATLANTIC ttEPORTBR 



(B.I. 



upon granting tlie nonsuit, and endeavored to 
supplement the partial transcript by including in 
hia bill of exceptions a summary statement pur- 
porting to show what was proved b; the other 
portions of the evidence, ija order thereby to 
bring upon the record the purport of the whole 
testimony on behalf of the plaintiff, the action 
of the trial judge in striking out and disallow- 
ing the summary statement of the testimony and 
allowing the bill of exceptions thus changed and 
in refusing to allow the partial transcript of 
evidence filed with the bill of exceptions on the 
ground that it was insufficient was proper. 

[Kd. Note.— For other cases, see Exceptions, 
BUI of. Cent Dig. {{ 106, lOa] 

Action by Daniel Parian against Magnus 
Olsson and others. On plaintiff's petition to 
establish the truth of his exceptions. Peti- 
tion denied and dismissed. 

William J. Brown, of Providence, for plain- 
tiff. Fred L. Owen, of Providence, for de- 
fendants. 

PER CURIAM. Upon the plalntlfTs peti- 
tion to establish the truth of his exceptions 
and the correctness and sufficiency of the 
transcript of testimony. It appears that the 
plaintiff, after suffering a nonsuit In the su- 
perior court, having reserved certain excep- 
tions, In due time filed his bill of exceptions, 
and therewith a partial transcript of testi- 
mony consisting only of the cross-examina- 
tion of the plaintiff, and containing also cer- 
tain rulings of the trial Judge upon granting 
the nonsuit 

The plaintiff endeavored to supplement the 
partial transcript by Including In his bill of 
exceptions a summary statement purporting 
to show what was proved by the other por- 
tions of the evidence, In order thereby to 
bring upon the record the purport of the 
whole testimony oa behalf of the plaintiff. 
The trial judge struck out and disallowed 
this summary statement with regard to the 
testimony In the case, and allowed the bill of 
oxcepUons as thus changed. The trial Judge 
also refused to allow the partial transcript 
of evidence filed with the bill of exceptions 
on the ground that it was insufficient 

Thereupon in due time the plaintiff filed In 
this court his petition to establish the truth 
of his exceptions and the correctness and suf- 
ficiency of the transcript, under rul6 1.3 of this 
court (62 Ati. iz). He asks thla court to estab- 
lish his bill of exceptions as originally filed. 
Including the summary statement of testimo- 
ny therein, and attempts by his sworn petition 
and by affidavit to show not only the correct- 
ness of the portion of the transcript as filed, 
but also by another summary statement what 
was the purport and substance of all the 
other testimony in the case. 

We think the case Is niled by the case of 
Beaule v. .^cnie Finishing Co., 36 R. I. 74, 
8!) .Vtl. 73. In that cnsc a slmiliir attempt 
was made. The plaintifl' filed with his bill of 
exceptions only a portion of the transcript, 
containing none of the evidence submitted to 



the jury, but only containing certain rulings 
of the trial Judge. Plaintiff Incorporated in 
his bill of exceptions as filed a summary 
statement of the meaning and effect of cer- 
tain evidence alleged to have been Introduced 
at the trial; the trial judge struck out and 
disallowed this summary statement and al- 
lowed the rest of the bill of exceptions. The 
trial Judge also allowed the partial tran- 
script as sufficient for the consideration of 
certain numbered exceptions, and found it 
not to be sufficient for the consideration of 
certain other numbered exceptions. Plaintiff 
then petitioned this court to establish the 
truth of his exceptions and the sufficiency of 
the transcript, and this court sustained the 
action of the trial Judge in striking out the 
summary statement, and also in his ruling 
as to the insufficiency of the partial tran- 
script for consideration of certain exceptions. 

For the same reasons stated In Beaule v. 
Acme Finishing Co., supra, this court is un- 
able In the case at bar to find that the trial 
Judge erred either in changing the bill of 
e.^ccptious by striking out as he did or In his 
disallowance of the transcript as insufficient. 
We are unable to accept the plaintiff's state- 
ment in his petition and affidavits in place of 
the testimony which has not been brought 
before us in due course of procedure; and we 
are forced to rely upon the finding of the 
trial Judge as to the insuffldency of the par- 
tial transcript 

Therefore the plaintiff's petition must be 
denied and dismissed. 



(40 a. I. 466) 
MILLER V. TRUSTEED OF TRINITT UN- 
ION METHODIST EPISCOPAL 
CHURCH. (No. 364.) 

(Supreme Court of Rhode Island. July 3, 1917.) 

1. Mechanics' Ltkns <s= 130(1) — SxATFaiENT 
— Separate BuiLDiNfis. 

A Sunday school building on the same tract 
of property upon which a church was located 
and connected therewith by a corridor, electric 
wires, and steam pipes is not a building separate 
from the church within the Lien Law (Laws 
1909, c. 257). 

[Ed. Note.— For other cases, see Mechanics' 
Liens, Cent Dig. {{ 178, 180, ISl.] 

2. Mechanics' Liens €=»158— Statement — 
Amend uENT. 

A mechanic's lien claimant can file an 
amended lien statement at any time before the 
expiration of the period allowed for filing the 
original lien, which amended statement takes the 
place of the original statement in ail respects. 

[Eid. Note.— For other cases, see Mechanics* 
liens, Cent Dig. K 275-278.] 

Appeal from Superior Court, Providence 
and Bristol Counties; Chester W. Barrows, 
Judge. 

Action by Charles Miller against the Trus- 
tees of Trinity Union Mi-thodlst Episcopal 
Church to establish a mechanic's lien. De- 
cree for defendant, and petitioner appeals. 
Reversed and remanded. 



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MILIiEB T. TRUSTEES OP TBINITT UNION M. E. CHURCH 



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Charles H. McKenna, of Providence, for 
petitioner. Gardner, Pirce & Tbomlsy, of 
Providence (Thomas O. Bradsbaw, of PrOT- 
idenoe, of coonsel), for respondent. 

VINCENT, J. This is a petition to es- 
tablish a mechanic's lien upon land and build- 
ings belonging to the Trinity Union Metho- 
dist Episcopal CSiurch. The cause comes be- 
fore this court upon the petitioner's appeal 
from a final decree of the superior court de- 
nying and dismissing Ids petition. The pe- 
titioner's claim is for certain extra work 
and materials famished by him In the con- 
struction of a certain building owned by tbe 
respondents. 

It appears that the Thomas V. Culllnan 
Company entered into a written contract 
with the trustees of Trinity Union Metho- 
dist Episcopal Church to erect a certain 
boilding for Sun'day school purposes upon the 
premises owned by fhem and located at the 
comer of Bridgtaam street and Trinity square, 
in the dty of Providence; that the contract 
for the painting was snblet by the Culllnan 
Company to CSiarles Miller, the present pe- 
titioner; that the petitioner delivered cer- 
tain materials and commenced work under 
bis painting contract on May 3, 1915, and 
rendered bis bill to the Culllnan Company 
for $1,000, which was tlie entire amount of 
the contract price ; that the petitioner on the 
4th and 5th days of October, 1915, performed 
certain extra work and supplied certain ex- 
tra materials amounting to $32.86, rendering 
a bill therefor on October 11, 1915; that 
the petitioner performed some work around a 
doorway in the church, a building adjoining 
the Sunday school building and standing 
upon a separate and adjoining lot of land: 
that the Sunday school while being erected 
was connected with the church by a corri- 
dor, electric wires, water and steam pipes, 
etc.; that a notice of Intention to claim a 
mechanic's lien was served on respondent on 
Xovember 5, 1915, and on the same day a 
copy thereof was placed on record In the 
office of the recorder of deeds la Providence; 
that the petitioner on January 6, 1916, lodged 
his account or demand in the office of said 
recorder of deeds and filed bis notice, setting 
forth the land and to whose Interest therein 
the account or demand referred for the pur- 
pose of commencing legal proceedings; that 
the petltltmer afterwards lodged In the office 
of said recor'der of deeds three other accounts 
or demands, each of which was followed by 
a notice setting forth the land and to whose 
pstate the account or demand referred for 
the purpose of commencing legal proceed- 
ings. These accounts were filed respectively 
on January 81, 1916, February 25, 1916, and 
February 29, 1916; that on March 1, 1916, 
within 20 days after the lodging of the fourth 
account, and the demand and notice, the pe- 
titioner filed In the office of the clerk of the 
superior court for Providence coonty his pe- 



tition to enforce said claim of lien, attaching 
thereto notice of the last account or demand 
filed under date of February 28, 1916; that 
notice of the filing ot said petition was duly 
given by the clerk of the superior court for 
Providence county. 

All these accounts were filed wltliln the 
statutory period of 6 months from the com- 
mencement of the work and the furnishing 
of the materials which, are the subject of the 
claim, an'd the petition to enforce the Hen 
was filed In the derk's office of the supe- 
rior court within 20 days after the lodging of 
the fourth account, demand, and notice. 

[1] The respondent claims that the peti- 
tioner is seeking to enforce a joint lien on 
two separate buildings; that Is, that the 
Sunday school building, although connected 
by means of a corridor, electric wires, water 
and steam pipes, eta. Is, In contemplation of 
the statutory provisions, two separate build- 
ings, and that the petitioner's account lodged 
with the recorder of deeds falls to separate 
and specify which items apply to the Sunday 
school building and which apply to the church 
building. The respondent also claims that 
the petitioner cannot be permitted to file 
more than one account within the required 
period of 6 months from the commencement 
of the work or. In otlier words, that the sec- 
ond, third, and fourth accounts filed must 
be regarded as amendatory of the first ac- 
count flle'd on January 6, 1916, and, that 
being so, the petition to enforce a Ilcn was 
not filed in the oflice of the clerk of the 
superior court within 20 days after the com- 
mencement of legal proceedings. 

The respondent, admitting for the purpose 
of argiuuent that the petitioner may abandon 
the first three accounts filed by him for the 
purpose of commencing legal process, and 
can rely upon the fourth account filed Feb- 
ruary 29, 1916, contends that such fourth ac- 
count Is fatally defective in that it does not 
specify which Items are chargeable to the 
Sunday school building and which items are 
chargeable to the church building. 

The estate of the respondent at the comer 
of Bridgham street and Trinity square com- 
prises two adjoining lots of land, one having 
been conveyed to It March 14, 1864, and the 
other November 10, 1909. The church build- 
ing, so called, Is situated upon the first-nam- 
ed lot, and the Sunday school building upon 
the other lot These buildings are used by 
the respondent for the purpose of conduct- 
ing and carrying on Its usual and customary 
church work, and the two structures are, for 
more convenient use, connected by a passage- 
way providing an easy and unexiwsed means 
of communication from one to the other. 
Light, heat, and water are supplied to the 
Sunday school building by means of wires, 
steam, and water pipes extended from the 
church building through the connecting cor- 
ridor before mentioned. 

The respondent has cited section 7, c 257. 



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General Laws of 1909, and also several Rhode 
(sland cases in support of its contention that 
the account is 'defectire in not specifying 
the items chargeable to each building. In 
order to extend to these authorities any ap- 
plicability to the case before us, It would 
be necessary to reach the conclusion that the 
church and Sunday school buildings were 
separate and distinct structures. In Bou- 
chard ▼. Guistl, 22 R. I. S91, 48 Atl. 934, the 
notice failed to state that the materials were 
furnished for any building or improTement 
at all. 

In McElroy v. Krfly, 27 R. I. 64, 60 Atl. 
G79, It was held that the petitioner should 
bare filed a separate notice of his intention 
to claim a lien upon each house and a sep- 
arate account for each house of the material 
furnished an'd used in it. In that case, aa 
the court said in its opinion : 

"The bouses were exactly alike but were not 
joined together in a block, but separated and 
adapted to be occupied each with a separate 
curtilage." 

In Butler & Ck>. ▼. Rivers, 4 R. I. 88, the 

petitioner proceeded against two several es- 
tates having distinct owners, and sought to 
charge both estates for the work and ma- 
terials furnished for each, as the court said, 
"in effect to make one of them chargeable 
with work and materials expended upon the 
other." 

In McDuff Coal & Lumber Co. v. Del Mona- 
co, 32 R. I. 323, 79 Atl. 831, the petitioner 
undertook to proceed upon the theory that, 
inasmuch as three houses on separate tracts 
of land were undergoing construction at or 
about the snme time, they had a general lien 
upon all of them for a general balance due 
on the assumption that probably approxi- 
mately one-third of the materials bad been 
used in each house, and that consequently 
they could include all three claims in one 
proceeding. 

The respondent claims that it appears from 
the foregoing cases to be incumbent upon one 
desiring to establish a mechanic's lien for 
materials furnished and used in the construc- 
tion of more than one building, whether such 
building be upon the same or adjacent lots 
of land, to describe each lot and building sep- 
arately and to particularize in his account 
the items chargeable to each. We have no 
controversy with such deduction from the 
cases cited. As before stated, in order to 
make them applicable it must be assumed 
that the church and the Sunday school struc- 
tures are separate and independent build- 
ings. We cannot so hold. The whole tract 
of land is owned by the respondent; the 
buildings are used for one general purpose; 
they are physically connected, the one being 
dependent upon the other for light, heat, and 
water. We think that under these condi- 
tions the respondent's claim of two separate 
and distinct buildings cannot be accepted. 
In fact, to carry out and establish the con- 
necting corridor work upon both structures 



would be required, and the determination ot 
a proper dividing line between the two would 
be difficult, if not impossible. 

[2] The respondent farther contends that 
the account lodged with the recorder of deeds 
February 29, 1916, that being the fourth ac- 
count, la fatally defective, because it is In 
amendment of the first account filed January 
6, 1916, and cites Harris v. Page, 23 R. I. 440, 
50, Atl. 859. In that case the petitioner 
sought to amend his account by extending it 
or adding thereto items not appearing in the 
original statement. The opinion does nut 
state specifically whether the application to 
amend was made before or after the expira- 
tion of the time allowed by statute for fil- 
ing an account as the commencement of legal 
process to establish a lien, but it may be rea- 
sonably presumed that it was after; for oth- 
erwise the petitioner might have filed a new 
account and raised the same question which 
we are now discussing. 

The respondent further claims that the 
filing of the first account on January 6, 1916, 
was the commencement of legal process, and 
that within 20 days thereafter the petitioner 
was bound to file his petition in equity in the 
superior court end failing to do so lost his 
lien. The petitioner, on the other hand, 
claims that he is not limited under section 
7 of chapter 257 to the filing of one account, 
but that he can file other accounts, waiviiig 
and abandoning all former ones, provided the 
last account is filed within the time limited 
for the commencement of legal process and 
his petition to enforce the lien is filed within 
20 days thereafter. 

It la apparent that the first three accounts 
filed by the petitioner, for one reason or an- 
other, were defective. The fourth account 
was filed within the required time, and the 
fact that the petitioner proceeded further in 
the establishment of his lien upon the fourth 
account only is evidence of an intention upon 
his part to abandon all accounts previously 
filed. 

To say that the petitioner must stand upon 
the first account filed, however defective it 
may later be discovered to be, and that he 
cannot abandon it and file another account 
within the statutory period, would, in our 
opinion, be Inflicting upon a petitioner an un- 
necessary and unwarranted hardship which 
the statute neither requires nor contemplatt>s. 

The respondent argnes that after the fil- 
ing of the first account innocent parties 
might reasonably Infer that the full amount 
of the claim bad been disclosed, and thus be 
led into dealing with the estate to their dis- 
advantage should the filing of a later account 
be permitted. We do not see any great force 
in this argument The statute fixes a x>eno<l 
within which proceedings may be instituted 
for the establishment of Hens, and one who 
deals with the estate before its expirati>>n 
must do so at his peril. 

The appeal of the petitioner is sustained, 
the decree of the superior court denying and 



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STATE r. MoAVOT 



109 



dUnilssiiig the petition la reversed, and the 
cause is remanded to the superior court, with 
direction to enter a decree establishing the 
Hen of the petitioner upon the estate of the 
respondent described In the petition for the 
sum of $32.68. 



KINGSTON V. WII/SON. (No. 6084.) 
(Supreme Coart of Rhode Island. July 6, 1917.) 

Gart^ishment «=»5e — Pbopebtt Subject— 

Deposits. 
Wherp it appeared that none of the mone; 
deposited with tlie garnishee trust company in 
the account of defendant as agent belonged to 
him, but was wholly the money of liia principal, 
the garnishee was not chargeable. 

[Ed. Note. — For other cases, see Garnishment, 
Cent Dig. {§ 110, 111.] 

Exceptions from Superior Court, Prov- 
idence and Bristol Oounties; CThester W. 
Barrows, Judge. 

Action by James E:ingston against Bobert 
H. Wilson. PlaintifTs motion to charge the 
garnishee was denied, and he excepts. Ex- 
ception overruled, and case remitted. 

John P. Beagan, of Providence, for plain- 
tiff. Benjamin W. Grim, of Providence, for 
defendant. 

PER CURIAM. This is an action of debt 
■on Judgment. The ease is before us on plaln- 
tlfTs exception to the ruling of a Justice of 
the superior court denying the plaintiff's 
motion to charge the garnishee. 

According to the affidavit filed by the In- 
dustrial Trust Company, garnishee in the 
case, it appears that at the time of the at- 
tachment made under the direction contained 
III the writ, there was in the hands and pos- 
session of said garnishee $289.12 standing in 
the name of the defendant as agent ; that the 
defendant had stated to the garnishee that 
he was the agent of Colgate & Co. From the 
uncontradicted evidence given at hearing be- 
fore said Justice on the plaintiff's motion to 
charge the garnishee It appeared that the 
defendant was the manager "for the district 
here" of Colgate & CJo., an'd was charged 
with the duty of directing the work of the 
salesmen employed by said (Colgate & Co.; 
that there were about 17 men employed by 
Colgate & Co. under the direction of the de- 
fendant; that none of the money deposited 
in said account of "Bobert Wilson, Agent," 
belonged to the defendant, but was wholly 
the money of Colgate & Co. In view of these 
facts, which said Justice found to be true, 
we are of the opinion that there is no error 
In the action of the superior court denying 
the motion to charge the garnishee. 

Plaintiff's exception is overruled ; the case 
is remitted to the superior court for further 
proceedings. 



(40 B. I. 437) 
STATE V. McAVOY (two cases). 
(Nos. 4948, 4949.) 

(Supreme (Tourt of Rhode Island. July 8, 1917.) 

L EUBBZZLEUBNT 4=>38— EVIDENCE— ADUIS- 
SIBILITT. 

In a prosecution for embezzlement by an 
agent in charge of selling and delivering flour, 
evidence as to instructions given defendant by 
his predecessor as to his duties in maidng re- 
ports, collections, and deposits was admissible. 
[Ed. Note. — For other cases, aee Embexzle- 
ment, Cent Dig. {i 61, 65, 66.] 

2. Cbiuinal Law «=>1169(1) — Revikw — 
Eabmless Ebbob. 

In a prosecution for embezzlement by an 
agent intrusted with the duty of selling and de- 
livering flour, admission of slips showing deliv- 
eries of flour tnr the warehouse company and of 
an inventorjr oi flour kept therein made by its 
bookkeeper, if error, held harmless. 

[Ed. Note. — For other cases, see Criminal 
Law, Cent Dig. {{ 3180, 3137.] 

3. EvBEZZtxuKNT «=»38— EVIDENCE— Anins- 

BIBILITT. 

In a prosecution for embezzlement of the 
proceeds of flour sold and delivered by an agent 
testimony by the bookkeeper of the warehouse 
wherein the flour was kept as to the number of 
barrels on hand as shown by the report of the 
defendant to the milling company was admissi- 
ble. 

[Eld. Note. — For other cases, see Embezzle- 
ment, Cent Dig. §} 61, 65, 66.] 

4. Embezzlement 9=344(5) — Defenses— Del 
Cbedebe. 

In a prosecution for embezzlement, evidence 
held not to show that defendant was a del cre- 
dere factor. 

[Ed. Note. — For other cases, see Embezzle- 
ment Cent Dig. S 70.] 

5. Embezzlement 4=914 — Defenses — Dn. 

Ckedebe Factobs. 
That an agent charged with eml>ezzlement 
was a del credere factor of his principal consti- 
tutes no defense ; such relation not changing the 
ordinary one existing between himself and his 
principal within Gen. Laws 1900, c. 345, § 16, 
providing tljat every officer, agent, clerk, or serv- 
ant who shall embezzle property which shall 
have come into his possession b^ virtue of his 
employment shall be deemed guilty of larceny. 

[Ed. Note.— For other cases, see Embezzle- 
ment Cent Dig. {§ 13-16.] 

6. Embezzlement 9=33&— Evidencb— Matebi- 
ality— Pbivileqkd Communications. 

In a prosecution for embezzlement, it was 
not error to exclude as immaterial correspond- 
ence received by the state board of tax commis- 
sioners offered on the question as to whether the 
employer, a company incorporated in another 
state, had been doing business in this stnte, since 
under Pub. Laws 1912, c. 769, § 15, such in- 
formation could not be divulged except upon 
order of the court. 

[Ed. Note.— For other cases, see Embezzle- 
ment, Cent. Dig. |S W, 65, 66.] 

7. Embezzlement *5s>48(1) — Instbuotions — 
Appbopkiation of Propebtt. 

In a prosecution for embezzlement, it was 
not error to instruct that the ownership of the 
floor the proceeds of which were alleged to have 
been embezzled was controlling as to defendant's 
rights thereto. 

[EM. Note.— For other cases, see Embezzle- 
ment, Cent Dig. Si 72, 75.] 



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8. Bmbezztbuent «=»44(1)— Evidence— Stnr- 

KCIENCT. 

In a prosecution for embezzlement, evidence 
\eld to warrant a finding of guilty. 

[HJ. Note. — For other cases, see Embezzle- 
ment, Cent Dig. S{ 67, 70.] 

Exceptions from Superior Court, Ptot- 
Idence and Bristol Counties; George T. 
Brown, Judge. 

Harry A. McAvoy was convlcte'd of em- 
bezzlement, and he brings exceptions. Ex- 
ceptions overruled. 

Herbert A. Bice, Atty. Gen. (Claude E. 
Branch, of Providence, of counsel), for the 
State. Fitzgerald & Blggius and Peter M. 
O'Beilly, all of Providence, for defendant. 

VINCENT, J. In December, 1914, the 
grand jury for Providence county presented 
two indictments against the defendant for 
embezzlement. To each of these indictments 
the defendant plea'ded not guilty and was re- 
leased on bail. The two cases were tried 
together in the superior court. The defend- 
ant moved to be discharged at the conclu- 
sion of the testimony offered on behalf of 
the state. The motion was 'denied. The Jury 
returned a verdict of guilty as charged in 
each indictment, each being for the em- 
bezzlement of an amount exceeding $500. 
The defen'dant filed a motion for a new 
trial, upon the usual grounds, which was 
denied by the trial court. 

The case Is now before us upon the defend- 
ant's exceptions covering the denial of his 
motion for discharge; to various rulings 
during the trial as to the admissibility of 
evidence; to certain portions of the charge 
of tlie court; and to the denial of the motion 
for a new trial. The defendant's exceptions 
are 58 In number, but we are advised by 
his brief that he relies only upon exceptions 
numbered 1, 2, 3, 32, 33, 34, 30, 53, 54, 57, 
and 58. 

The indictment No. 8269, now before us 
on exceptions No. 4948, charges the defend- 
ant, Harry A. McAvoy, on the 1st day of 
January, 1914, at Providence — 
"being then and there the clerk and agent of 
the Bay State Milling Company, a corporation, 
did then and there by virtue of his said employ- 
ment have, receive, and take into his possession 
money to a large amount, to wit, to the amount 
of $1,368.87, and of the value of $1^68.87, of 
the property and money of the said Bay State 
Millmg Company, a corporation as aforesaid, the 
said Hiury A. McAvov's employer, and the said 
Harry A. McAvoy tne said money then and 
there feloniously did embezzle and fraudulently 
convert to his own use, without the consent of 
the said Bay State Milling Company, a cor- 
poration as aforesaid, the said Harry A. Mc- 
Avoy's said employer, whereby and by force of 
the statute in such case made and provided the 
5aid Harry A. McAvoy is deemed guilty of 
larceny," etc. 

The Indictment No. 8270, now before us 
on exceptions No. 4949, Is Identical with the 
one above referred to, with the exception of 
the date of the embezzlement, which Is stated 



[ on July 1, 1914, and the amount embezzled as 
! $2,834.30. 

The defendant, covering the periods of the 
alleged embezzlements, was In the employ of 
the Bay State MilUng Company a corporation 
created under the laws of the state of Min- 
nesota an'd having its principal office in the 
city of Boston, Mass. All the dealings of the 
defendant were with this office. The defend- 
ant was hired by the president of the com- 
pany, Bernard J. Rothwell, and his assist- 
ant, Ernest C. Harris, and commenced work 
for said company In April or May, 1913. His 
duties were to sell flour In Providence and 
vicinity and to collect the proceeds of such 
sales. During his earlier employment by the 
milling company he perform^ these duties 
for a stated salary of $70 per month and an 
allowance for expenses, both of which were 
paid by the checks of the milling company. 

Upon assuming his duties the defendant 
was Instructed to conduct the business In the 
same manner in which It had been conducted 
by his predecessor, Pay G. Hicks. In com- 
pliance with such Instructions, the defend- 
ant submitted himself to the tutelage of 
Hicks for a period of about a week, receiv- 
ing from him minute directions as to the 
method of conducting the business and being 
introduced by him to various customers. 

The Instructions given to the defendant by 
Hicks were that each sale was to be report- 
ed to the milling company by sending to Its 
office In Boston a duplicate or carbon copy of 
the invoice slip on the day of the sale, and a 
weekly report, including an account of the 
stock on hand at the warehouse and a list of 
the collections. The milling company fur- 
nished to the defendant a pad of lnv<dce 
slips, numbered consecutively, there bdng 
four copies to each number, distinguishable 
from each other by the color or character of 
the paper. The original or white slip was to 
be kept by tlie defendant; the blue slip to be 
sent to the customer ; the slip of tissue paper 
was to be forwarded to the office of the mill- 
ing company In Boston; and the pink slip 
was not required under the arrangement 
with the defendant Printed blanks for the 
weekly reports were also furnished to the de- 
fendant by the milling company which were 
designed to show, when pr<^;>erly filled out,, 
the number of barrels of fiour received dur- 
ing the week ; an Itemized list of the number 
of barrels delivered to customers from the 
wardiotise; the number of barrels remain- 
ing In the warehouse; and an Itemized list 
of all amounts collected from customers. As 
soon as the defendant collected the proceeds 
of sales, either In money or by check, he was 
to deposit the same In the Merchants' Na- 
tional Bank in Providence In the name of the 
milling company and report the same by 
sending to the milling company a copy of 
the deposit slip. 

On November 1, 1913, a further arrange- 



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nent was made between the defendant and 
the nulling company whereby tbe defendant 
should thereafter, instead of receivlDg a 
fixed salary, be paid a commission of 35 
cents for every barrel of flour sold by him, he 
iMiying bis own expenses, the expenses of 
i>toriug and carting the flour in Providence 
and the guaranteeing of all accounts. This 
iirrangemout does not appear to have modi- 
fied, or to have been intended to modify, the 
previous Instructions given to defendant as 
to r^iorts, collections, and deposits. In car- 
rying out this additional arrangement the de- 
fendant was paid $16 a week in advance on 
account of commissions. The balance due the 
defendant on account of commissions was 
paid to him from time to time by check from 
the milling company, and he was not permit- 
ted to deduct such commissions from his col- 
lections. Later, the milling company becom- 
ing dissatlsfled with the defendant's dilatorl- 
iiess in collecting the accounts, a further ar- 
rangement vras made between the parties, 
tiilktng effect in March, 1914, whereby the de- 
fendant was to be charged interest on all ac- 
counts which were not collected within 45 
days. 

During the sununer of 1014 there were 
some negotiations between the defendant and 
the milling company looking to some arrange- 
ment whereoy the defendant should buy the 
Hour tTom the milling company and sell it on 
Ills own account, and on October 9, 1914, the 
defendant wrote to the milling company that 
by the next month he hoped to "buy the busi- 
ness ootrigbt." This arrangement was never 
completed, and the defendant admitted at 
the trial that this. letter waa written merely 
for the purpose of gaining time. 

The milling company shipped the flour in 
Its own name to a warehouse in Providence. 
None of the flour waa ever consigned or 
charged to the defendant, and the defend- 
ant's name did not appear in the shipment. 
.\11 the bills scut by the defendant to pur- 
chasers of flour were in the name of the 
milling oomi>ain7, a notice being stamped 
thereon requesting remittance to "liarry A. 
McAvoy, Agt" The defendant also in the 
transaction of the business used stationery 
which was headed "Bay State Milling Com- 
pany." The defendant was given no author- 
ity to make prices on his own account, and 
letters and bills were sent direct to delin- 
quent customers by the milling company. 

The defendant undertook and purported to 
randuct the business in .accordance with 
these arrangements. He sent to the milling 
company duplicate invoice slips and copies 
of deposit slips and a weekly report in the 
form heretofore described. 

The evidence shows that the defendant 
made sales and deliveries which he never re- 
ported to the milling company, and that he 
made collections which he did not deposit in 
the Merchants' National Bank or report to 
the milling company, but appropriated the 
same to his own use. There is evidence 



showing the methods resorted to by the de- 
fendant tai concealing from the milling com- 
pany that he was obtaining money which be 
did not report ; that he omitted to report to 
the company certain collections which he 
had made am deliveries reported; that he 
omitted to report certain sales and deliv- 
eries; that he would deliver flour to two 
different ctistomers under invoices of the 
same nimiber and report but one of these 
deliveries to the company, sending the white 
slip to one customer and the blue slip of the 
same number to another customer instead 
of retaining either for himself, and cm the 
tissue slip of the same number send to the 
company a r^>ort of only one of the sales. 

The defendant admitted that in one in- 
stance he iiad intentionaily concealed from 
the mUling company one sale and collection 
auK>unting to $85, but he testified that his 
failure to report other collections to the num- 
ber of a dozen or more was due to forget- 
fulness. 

The defendant Iiad been instructed to de- 
posit all collections to tiie account of the mill- 
ing company in the Merchants' National 
Bank and send the milling company a copy 
of each deposit slip; and, according to the 
testimony of the otflcers of the milliug com- 
pany, the defendant had no authority to in- 
dorse any check made out to the order of the 
milling company or to deal with either money 
or checks received in payment of flour ex- 
cept to deposit the same to the account of the 
milling company in the Merchants' National 
Bank. The testimony shows, however, that 
several checks made out to the order of the 
milling company were deposited by the de- 
fendant to his own account in the Industrial 
Trust Company of Providence, the defendant 
indorsing them "Bay State Milling Company. 
Harry A McAvoy, Agent," and that the 
amounts represented by such checks were 
never reported to the milling company as col- 
lections. 

In July, 1914, the mUling company wrote 
to the warehouse in Providence in which the 
flour was stored requesting an inventory of 
the flour of the milling company then in Its 
possession. The defendant, visiting the otflce 
of the warehouse company and seeing the let- 
ter requesting an inventory, told the repre- 
sentatives of the warehouse company that be 
would take care of that matter, and accor 1- 
Ingly prepared an Inventory on a sheet of 
letter paper headed with the name of the 
warehouse company, which paper had In 
some unexplained manner come into the de- 
fendant's possession. Tbe inventory thus 
prepared by the defendant was typewritten 
and without signature. There was nothing 
upon it to indicate that it was not compiled 
by employ^ of the warehouse company. The 
amounts ^ven in this inventory correspond- 
ed with those given by the defendant in his 
reports, but exceeded by about 300 barrels 
the amount of flour which was actually in 
the bands of the warehouse company. 



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The defendant made some explanation of 
this matter of the Inventory to the effect 
that an employe of the warehouse company 
asked him to make out the Inventory and 
that be copied the fiii^ures from his previous 
reports. Although the milling company later 
wrote to the defendant referring to this re- 
port as the report of the warehouse com- 
pany, the defendant did not advise the mill- 
ing company that such report had beai made 
by himself. 

There was also testimony that on Novem- 
ber 14, 1914, the milling company was noti- 
fied by the Merchants' National Bank that its 
account was overdrawn. Tills turned out to 
be due to the fact that the defendant had 
deposited In that bank a check against his 
own account In the Industrial Trust Com- 
pany which did not prove to be good. Mr. 
Harris of the milling company came to Provi- 
dence and telephoned the defendant that he 
would like to see him at the Narragansett 
Hotel. Harris testifies that defendant stated 
to him over the telephone that he would be 
at the hotel in a few minutes. The defend- 
ant, however, went to New London, Conn. 
Harris, after waiting for a time, telephoned 
the defendant's father, who in turn tele- 
phoned the defendant at New London, sug- 
gesting to the defendant that he return to 
Providence, and he accordingly came back 
the next day. The defendant, however, testi- 
fies that he told Harris over the tele];dione 
that be had made arrangements to go to the 
southern part of the state to see prospective 
customers and could not see him that day. 
On cross-examination the defendant admitted 
that he had never before solicited business 
in Westerly, and that he could not remember 
the name of a single person upon whom he 
called. He said that he went to New London 
because there was no decent hotel In Wester- 
ly where he could spend the night The de- 
fendant further admitted on cross-examina- 
tion that he knew nothing whatever about 
the hotels at Westerly, and bad no reason 
whatever for being dissatisfied with them. 
Witnesses for the state testified that the de- 
fendant admitted at the start that he had 
gone to Connecticut because he was afraid to 
face Harris; that he had appropriated money 
collected to the extent of some $6,000, In- 
cluding about $2,000 of the sales which he 
had not reported to the milling company; 
that he had made out a false inventory on 
the letter paper of the warehouse company, 
and that he bad paid out most of the money 
which he had taken to make up for losses In 
speculating in wheat; that the defendant, 
without making any attempt to Justify the 
taking of the money, told the representatives 
of the company that they could put him in 
Jail if they wanted to, and when arrested by 
Inspector Maguire he said he had been a 
fool to give up his ledger to the company. 
In October, 1914, in answer to some com- 
plaints of the milling company that he was 
behind In the collection of his accounts, the 



defendant wrote to the milling company that 
in a few weeks an estate In which he was in- 
terested would be settled, and that he would 
then have the money to remit, but he admit- 
ted on cross-examinati«i that this story was 
a falsehood, and that there was no such estate. 

The only exceptions pressed by the defend- 
ant, as stated in his brief, are those number- 
ed, 1, 2, 3, 32, 33, 34, 36, 63, 54, 57, and 58. 

[1] The defendant's exceptions 1, 2, and 3 
relate to the admission of certain testimony 
of EViy C Hicks. Hicks was the predecessor 
of the defendant as the Providence agent of 
the milling company. The defendant was 
told to get from Hicks instructions as to the 
method of carrying on the business. The de- 
fendant went to Hicks, and Hicks spent the 
greater part of a week In giving him Instruc- 
tions as to making and reporting sales and 
collections and also taking him to Interview 
customers. The defendant objected to the 
testimony of Hicks in reference to the in- 
structions he gave to the defendant on the 
ground that such instructions were given in 
April, 1913; that the contract under which 
he was then employed by the milling com- 
pany ended in November, 1913, previous to 
the embezzlement set forth in the indictment ; 
and that the arrangements from November 1, 
1013, to the conclusion of his dealings with 
that company were very different, and it was 
immaterial what the arrangements were prior 
to 1914, the time laid in the indictment. 

We do not think that the contract between 
the defendant and the milling company can 
be said to have ended In November, 1913. 
The contract was added to or modified la 
some respects at that time, but such additions 
or modifications did not relate to the reports, 
collections, and deposits which the defend- 
ant was instructed to make and under which 
instructions he undertook to act 

The modifications referred to related to 
the defendant's compensation,' the guarantee- 
ing of accounts, and to the payment of in- 
terest on accounts after the same had been 
overdue for a certain period. The duties of 
the defendant in the matter of reports, collec- 
tions, and deposits were those given to him 
by Hicks at the instance of the milling com- 
pany, and we think that sudi testimony was 
properly admitted, and that the defendant's 
exceptions 1, 2, and 3 must be overruled. 

The defendant's exceptions 32, 38, and 34 
relate to the same matter, and may be con- 
sidered together. 

In July, 1914, the milling company wrote to 
the warehouse company for an Inventory of 
the fiour on hand. This Inventory, as before 
stated, was made up by the defendant type- 
written upon the letter paper of the ware- 
house company, was without signature, and 
bore no indication that it emanated from the 
defendant It was s«it by the defendant to 
the milling company purporting to be a cor- 
rect statement by the warehouse company of 
the amount of flour on hand. The state, in 
its endeavor to show the falsity of this state- 



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ment and that the amount of flonr In the pos- 
«Gsion of the milling company was much 
less than that represented In the report, of- 
ffered In evidence an Inventory of the flour in 
the hands of the warehouse company on July 
30, 1914, made up by the bookkeeper of that 
company. In making such Inventory the 
bookke^ier started with the balance of flour 
as shown by the inventory of the month pre- 
ceding, and deducted therefrom the deliveries 
during the month as reported to him hy the 
teamers. These reports of the teamers were 
made from time to time upon slips used for 
that purpose which were filed in the office of 
the warehouse company. Some of these slips 
were oflfered in evidence in verification of the 
inventory of the bookkeeper. Another em- 
ploye of the warehouse company testified 
that he actually counted the stock of flour on 
hand, and found that his flgures corresponded 
with the flgures of the Inventory made by the 
bookkeeper. Besides this, Mr. Harris of the 
mining company counted the barrels of flour 
on hand in the warehouse and found a short- 
age of 575 barrels. 

[2] The defendant contends that the intro- 
duction of the slips referred to showing de- 
liveries of flonr made by the teamers of the 
warAoose company and the introduction of 
the inventory of flour made therefrom by 
the bookkeeper of the warehouse company 
amounted to nothing more than tiie introduc- 
tion of hearsay evidence, the admission of 
which was error. The apparent purpose of 
the testimony was to show that the defend- 
ant had deceived the milling company by 
conveying to that company a false report of 
the flonr on hand. If we take the view that 
the admission of such testimony was errone- 
ous, it would not constitute reversible error 
in view of the fact that there was other tes- 
timony establishing the falsity of the defend- 
ant's inventory which he did not dispute. 
The defendant's exceptions 82 and 33 must be 
overruled. 

[3] The defendant's exception 84 is to the 
ruling of the court allowing the bookkeeper 
of the warehouse to testify as to the number 
of whole barrels of flour on hand as shown 
by the reirart of the defendant made to 
the milling company. The defendant object- 
ed to the question on the ground that the is- 
sue was not the embezzlement of flour. We 
see no merit in this exception. The number 
of barrels disposed of and unaccounted for 
by the defendant would naturally form a 
basis for ascertaining the amount of money 
covered by the embezzlement The defend- 
ant's esceptlooQ 84 is overruled. 

[4] At the conclusion of the testimony for 
the state the defendant moved that he be 
discbarged, and his exception Sd is to the 
r^asal of the trial court to grant that motion. 
The basis of this motion was that under the 
facts as presented the defendant was a del 
credere fiictor, and that the relations between 
himself and the milling company were simply 
those of debtor and creditor. Passing over 
101A.-8 



the contention of the state that the disposi- 
tion of such a motion is within the discretion 
of the court and is not the subject of excep- 
tion, two questions present themselves for, 
consideration: (1) Was the relation of the 
defendant with the milling company that of 
del credere factor? and (2) if such relation 
existed, could the defendant be found guil- 
ty of embezzlement under the indictments 
brought against him? 

In determining Uie first of these questions, 
we must consider the agreement between the 
parties and apply thereto the familiar rules 
of construction, all of which are subordinate 
to the leading principle that the intention of 
the parties must prevail unless inconsistent 
with some rule of law. And such intention 
must be gathered not from a portion or por- 
tions of the contract but from the whole 
taken together. 11 B. a L. 765; 1 Clark & 
Skyles on Agency, 24. 

In the case at bar the flour was never 
consdgned by the milling company to the de- 
fendant It was shipped direct to the ware- 
house in Providence, where It was held as 
the property of and in the name of the mill- 
ing company and was at all times subject to 
Its orders. The defendant, after making a 
sale of flour, was permitted by the milling 
company to withdraw from Its stock in the 
warehouse a sufficient number of barrels to 
All the order. A bill was rendered to the 
purchaser In the name of the milling com- 
pany, there being stamped upon such bill a 
notice to pay the amount due thereon to the 
defendant as Its agent Upon the receipt of 
the money the defendant was obligated, un- 
der his contract to deposit It In full in the 
Merchants* National Bank to the credit of the 
milling company without any deduction 
therefrom for salary, commission, or ex- 
penses. 

We cannot find any Intent of the xmrties, 
dther expressed by the contract itself or 
by the methods in which their respective 
duties under It were discharged, that would 
warrant us in drawing the conclusion that the 
defendant was acting otherwise than as the 
agent of the milling company. 

The defendant seems to place much reli- 
ance upon the fact that under certain condi- 
tions he was to be held responsible to the 
milling company for interest upon accounts 
overdue for a certain length of time, and 
in some instances for the payment of the 
principal sum. The reason for this arrange- 
ment is quite apparent from the record. The 
milling company had expressed its dissatis- 
faction at the seeming lndlffer«ice of the 
defendant regarding the prompt collection of 
the accounts due and bis want of care In the 
selection of responsible customers. The ar- 
rangement was donbtiess made for the pur- 
pose of stimulating the defendant to look 
more closely after the collections and to be 
more careful about making sales to irre- 
sponsible parties. It could hardly be inferred 



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101 ATLAJNTTIO BEPOBTBB 



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that the milling company waa seeking to se- 
cure Itself against loss through the liabilitr 
of the defendant, who does not appear to 
hare been a person of any financial standing. 

[5] If we assume that the defendant was a 
factor, we do not see how It could help him 
in the pn>sent case. The defendant does not 
deny that be was at all times an agent of the 
company, nor does he claim that he had any 
right to take the money wlilch he appropriat- 
ed to his own use. A factor or any other 
agent does not acquire the right to Iceep and 
appropriate to his own use the money which 
he collects, even if he has guaranteed the 
account. The statute (General I/aws 1909, c. 
;)45, S 16) Is explicit, and provides that: 

"Every officer. ap.pnt, cleric, or servant • • • 
who shall crabpiizle or fraudulently convert 
• • * any money or otlior property which 
shall have come into bis possession or shall he 
under his care or charge by virtue of such em- 
nloymont * • » shall bo deemed guilty of i 
larceny." 

This statute has been interpreted by this 
court In State v. Tabenier, 14 R. I. 272, 276, 
51 Am. Hep. 382, In whlcli case the court 
said: 

"The obvious meaning is that any agent who 
has money in hi.s possession, which has come 
into his possession by virtue of his agency, is 
punishable under the statute if he embezzles or 
fraudulently converts it." 

The defendant argues that he was acting 
under a del credere commission : that the 
relations between himself and the milling 
company were those of debtor and credi- 
tor, and therefore he cannot be prosecuted 
for embczzlemcut. As this court said In 
Balderston v. National Rubber Co., 18 R. I. 
338, 347, 27 Atl. 507, 511 (49 Am. St Rep. 
772): 

"The effect of the commission is not to extin- 
guish the relation between principal and f.ictor, 
bnt applies solely to a guaranty that the pur- 
chaser shall pay." 

In 9 Am. & Eng. Eiicyc. (2d Ed.) 183, the 
law on this subject seems to be well sum- 
marized as follows: 

"The fact that an agent or factor is acting 
under a del credere commiBsion does not affect 
the ordinary relations existing between him and 
his principal. Save for the additional security 
affortled the principal, their reciprocal rights, 
duties, and liabilities remain the same. • • • 
A person who consigns liis goods to a del credere 
agent for sale does not part with his title. He 
remains the owner of such goods nntil sold; and 
when the proceetls of the sale are received by 
the agent or his assignees, they belong specifical- 
ly to the principal, and do not become a part of 
the agent 8 assets, the principal being an ordi- 
nary creditor for the amount." 

In Wallace v. Castle, 14 Hun (N. Y.) 106, 
it was held that the consignment of goods to 
a factor acting under a del credere commis- 
sion does not necessarily destroy the fidu- 
ciary relation existing between himself and 
the consignor, and that when he Is in fact 
paid by the debtor, the money so received Is 
the money of the consignor and not of the 
factor, and for a conversion thereof the lat- 
ter is liable to arrest The court in its opin- 
ion said: 



"The defendant was a factor, and, although 
entitled to del credere commission, his character 
was not changed. His responsibility and his 
compensation were enlarged, hut that was in 
fact and in law the only change accomplished 
by the agreement del credere. He guaranteed 
the payment of the sum for which the goods 
were sold, but his liability did not accrue until 
the purchaser failed to pay. In this case the 
payment was made, and the contract of liability 
therefore occurring through the del credere com- 
mission was not called into existence. The re- 
lation of factor continued with all its obligations 
and burdens. The money received was the plain- 
tiff's money, and not the defendant's. It came 
from the plaintiff's debtor, and should have been 
paid to the plaintiff as his fund. * * » " 

This case goes further than the exigencies 
of the present controversy demand, because 
the consignment was there made to the fac- 
tor, while In the case at bar the consignment 
was made to the warehouse in the name of 
the milling company. See, also, Common- 
wealth V. Smith, 129 Mass. 104 ; Audenried v. 
Betterley, 8 Alien (Mass.) 302, 307 ; Moore v. 
HiUabrand, 37 Hun (N. Y.) 491; Stanwood 
V. Sage, 22 Cal. 516; Thompson v. Perlslns, 
3 Mason, 232, Fed. Cas. No. 13,972. 

The case o£ Leverlclt v. Meigs, 1 Cow. (N. 
Y.) (i45, from which the defendant appears to 
quote in his brief, although the apparent 
quotation is not in the exact language of the 
opinion, seems to us to sustain the principle 
that while a del credere agreement may 
malce the agent liable in the event of the pur- 
chaser's default it will not operate to de- 
prive the principal of his right to insist up- 
on the performance of the agent's duty in 
other respects. The court in its opinion 
said: 

"The only difference between a factor acting 
under a del cre<lere commission or without one 
is as to the sales made. In the former case he 
is absolutely liable, and may correctly he said 
to become the debtor of his principal, bnt it is 
not strictly correct to say he is placed in the 
same situation, as if he had become the purchas- 
er himself; for, ns we have seen, the principal, 
notwithstanding this liability, may exercise a 
control not nllowabie between creditor and debt- 
or. When the principal appears, the right of the 
factor to receive payment ceases. This shows 
that the effect of the commission is not to ex- 
tinguish the relation between principal and 
factor, but applies solely to a g\iaranty that the 
purchaser shall poy." 

The case of Gindre v. Kean, 7 Misc. Rep. 
582, 28 N. Y. Supp, 4, which the defendant 
cites, seems to us to be in line with the au- 
thorities to which we have already referred. 
In the course of its opinion the court spealk- 
ing of the defendant, said: 

"That he was answerable for the purchase 
price under his del credere agreement in the 
event of the purchaser's default in payment did 
not operate to deprive bis principals of the right 
to insist upon performance of his duty as 
factor." 

We think that defendant's exception 36 
must be overruled. 

The defendant's exception 53 does not seem 
to us to possess sufficient merit to warrant 
particular discussion. 

[•] The defendant's exception 54 was taken 
to the ruling of the trial court sustaining ai« 



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BUTIiER V. BUTLER 



116 



objection to the introduction of any corre- 
spondence received by the state board of tax 
commissioners. The objection come from tbe 
Attorney General at the request of the tax 
commissioners, and was based npon the 
groand that all information In possession of 
such commission was confidential, and that 
Its disclosure would impede its workings. 
The puriiose of the particular question was 
to ascertain if there bad been any corre- 
spondence between the Bay State Milling Com- 
|iany and the tax commissioners as to wheth- 
er said company was doing business in Rhode 
Island. 

Under section 15, c 769, of the Public laws 
of 1012, this information could not be di- 
vulged except upon the order of the conrt. 
It would be the duty of the trial court, in 
the exercise of its discretion, to rule out the 
question unless it should appear tliat the in- 
formation sought was material to the de- 
fendant's case. The materiality of the tes- 
timony was not apparent to the trial court, 
and it is not apparent to us. We thinlc it 
was properly excluded. So far as appears, 
it could be of no assistance to the Jury in 
determining whether or not the defendant 
was guilty of eml)ezzling the money of the 
milling company. 

[7] The defendant's exception 57 Is as fol- 
lows: 

"Also will your honor note my exception to the 
charge of the court in which the court stated 
that the ownership of the flour was controlling 
"B to his rights to the proceeds." 

Supposing the exception to t>e a substantial 
statement of what the court said in Its 
charge, it could hardly be claimed to be an 
erroucous statement of the law ai)pllcabie to 
the ease. If the flour was the property of 
the defendant, be could not be guilty of em- 
bezzlement. If, on the other hand, the flour 
was the property of the milling company, 
and the defendant appropriated the pro- 
ceeds to his own purposes, when, under bis 
agreement, he was bound to make deposit 
thereof in the Merchants' National Bank to 
the account of the milling company, then be 
woald be guilty of embezzlement, and in that 
view of the case the ownership of the flour 
might reasonably be said to be controlling. 
An examination of the charge of the court 
satisfies ns that tbe instructions given 
amount to a correct statement of the law. 
For instance, the court said: 

"So you see, gentlemen, that it is necessary, 
in order to establish the crime charged against 
the defendant here of embezzlement, that he 
»hoiUd either have been an officer, an agent, or 
clerk or servant, or a person to whom the money 
was intrusted, of the Bay State Milling Com- 
pany. That is the reason that so much stress 
was laid upon tbe question as to whether or 
not he was the owner of this business and car- 
rying on bnsinesa on his own responsibility, own- 
ing this property, or whether or not be was the 
ai;ent of the Bay State Milling Company, and 
being their agent, having this property given 
into his hands as their agent, or for a specific 
purpose, embezzled their money. If it was his 



own money, he could not embeszle his own mon- 
ey. It must have been the monev tliat came into 
his hands as the agent, etc., of the Bay State 
Milling Company. What the evidence is uiKm 
that point you nave heard, both upon his side 
and upon the side of the prosecution, and you 
will determine for yourselves what the facts 
are." • 

These InstmctioDB were substantially re- 
peated by the court in another portion of the 
charge. We do not find any error in the 
charge, and defendant's exception 57 must 
be overruled. 

[I] The remaining exception 68 is to the 
denial of the defendant's motion for a new 
trial. The jury has found the defendant 
guilty, and the trial justice who saw, beard, 
and observed the witnesses has denied the 
motion for a new trial, and has found that: 

"The evidence fully warrants the finding of 
the jury that tbe defendant is ^ilty of the 
crime ol embezzlement as charged in the indict- 
ment" 

An examination of the whole record con- 
vinces ns that the conclusion of the trial 
court in denying the motion for a new trial 
was correct A detailed discussion of this 
exception would be largely and substantially 
a repetition of wliat has already been stated, 
and would therefore be unnecessary. Excep- 
tion 58 must be overruled. 

All of tbe defendant's exertions are over- 
mled, and tbe case is remitted to the sa- 
perlor court for sentence. 



. (40 R. I. 425) 

BUTLER et al. v. BUTLER et ai (No. 393.) 

(Supreme Court of Rhode Island. July 3, 
1017.) 

L Wills «=>028— Vested Remaindee— Def- 
inition. 
Tbe distinguishing feature of a vested re- 
mainder is that there shall be a person or per- 
sons in being, ascertained and ready to take pos- 
session when the preceding estate may deter- 
mine, and in such case the interest vests at 
once, but enjoyment of it is postponed. 

[Ed. Note.— For other cases, see Wills, Cent 
Dig. I 1460.] 

2. Wills ®=»628— Contingent Reuaindxr— 
definition. 
In the case of a contingent remainder, 
whether or not any estate shall vest in either 
right or possession, or who shall take it, depends 
upon a future contingency, and in such case not 
only the time of enjoyment but the right to en- 
joy is uncertain. 

[Ed. Note.— For other cases, see Wills, (Tent 
Dig. i 1460.] 
8. Wills ^=»62&— Vested Reicaindes. 

The law favors vesting, and will not regard 
a remainder as contingent in the absence of 
very decisive terms of contingency, unless the 
provisions or Implications of the will clearly re- 
quire it and words expressive of future time are 
to be referred to the vesting in possession, if 
they reasonably can, rather than to tbe vesting 
in right. 

[Ed. Note.— For other cases, see Wills, (3ent. 
Dig. SS 1461, 1462.] 

4. Wills «=»C34(18) — Constbcction — Re- 
main debs. 
Provision in a will creating trust to termi- 
nate upon tbe death of testator's wife, and when 



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101 ATLANTIC REPORTEB 



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a son named shall reach the age of 28 years, 
with remainder over to testator's children in 
shares stated, created a vested remainder, since 
any delay between the happening of the two 
events wonld not postpone the vesting, but only 
the enjoyment ; there being persons in being 
at the time of the testator's death ascertained 
and ready to take possession whenever the pre- 
ceding estate should come to an end. 

[Ed. Note.— For other cases, see Wills, Cent 
Dig. { 1507.] 

0. Wills €=»C30 — Combtbuctiok — Rei£ain- 

DEns. 
Where a will created a vested remainder in 
children of the testator and gave a daughter a 
larger share, but provided that if the daughter 
should die before the termination of the trust 
the shares of remaindermen shall be equal and 
her share will go to her children, the daughter 
took a vested remainder subject to being de- 
creased in case she died before the termination 
of the trust, and each son took a vested re- 
mainder subject to being increased in case of 
the death of the daughter. 

[Ed. Note.— For other cases, see Wills, Cent 
Dig. {{ 1514-1518.] 

6. Wills ®=>CS4(7) — Remaindeb — Cumula- 
tion OF Income. 

Where a will created a trust terminating up- 
on the death of the wife and when a named son 
should reach the age of 28 years, upon the death 
of the wife before the son reached the age stated, 
the accumulation of income, which would have 
been payable to the wife, should>be paid as it 
accrues to the vested remaindermen, tne general 
rule being that tlic right to accumulations of 
income directed by will may be vested, and the 
vested right will attach to each new amount as 
fast aa it accumulates, and will, in general, be 
either vested or contingent according as the 
gift of the principal is vested or contingent 

[Kd. Note. — B'or other cases, see Wills. Cent 
Dig. I lC2o.] 

7. Wills «=>634(S)—Constbuction— Remain- 
debs. 

Where a will created a vested remainder in 
two-iifths of the corpus in a daughter, and in 
contemplation of the decease of the daughter on 
termination of the trust provided that the "then 
trustee shall distribute all my estate equally, 
share and share alike, to my children, their 
heirs, administrators and assigns, the share of 
any deceased child to go to the heirs of the body 
of said child, if any, the children of [the daugh- 
ter], if any, to take their mother's share," upon 
the death of the daughter before the termina- 
tion of the trust her children, if any, would 
share equally with three sons and take one- 
fourth of the estate, or upon her death prior 
to the termination of the trust without issue 
the corpus should be divided equally between 
the three sons. 

[Ed. Note.— For other cases, see Wills, Cent 
Dig. § 1496.] 

8. Wills <S=>C86(1)— CoNBTBtronoN— Tbcsts. 

Where a will created a trust to be termi- 
nated upon the death of the testator's wife, and 
when a named son should reach the age of 28 
years, the trust would terminate upon the death 
of the son before reaching the age of 28 years, 
and after the death of the wife, and the corpus 
should be distributed aa of the date of his de- 
cease. 

[Ed. Note.— For other cases, see Wills, Cent. 
Dig. §§ 1631, 1633, 1637.] 

Certified from Superior Court, Providence 
and Bristol Couutlcs. 

Suit by Hayward M. Butler and others, 
trustees under the will of John J. Butler, 
agaln.st D. Forrest Butler and others. On 



certificate from tbe superior court Decree 
authorized in accordance with tbe optnlcm. 

Gardner, Plrce & Thomley, of Providence, 
for complainants