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matters, or, in its discretion, may appoint the case is within the exception to the Act,
an auditor for that purpose." Section 30 as being founded on the fraud or deceit of
declares that, “at the time of receiving his the defendant.
dividend in case of a voluntary assignment, The facts concerning the origin of the in-
each creditor shall sign triplicate releases,'' debtedness are not in dispute. The plaintiff
and that “one of said releases shall be filed was a dealer in cattle, and the defendant,
in court, one shall be retained by the assignee, from time to time, had made purchases
and one shall be delivered to the insolvent.", from him. On October 10, 1911, the de-
Section 33 declares that "nothing in this fendant was indebted to the plaintiff in the
Act shall be taken or understood as dis- sum of $303.00. Thereupon, the latter
charging an insolvent from liability to such and his counsel had a meeting with Hagen,
of his creditors as do not choose to exhibit at the Leopard Hotel in the City of Lan-
their claims, or who, before the schedule of caster, and, under a threat that, unless he
distribution is made or filed, withdraw their paid the indebtedness or signed the judg.
claims; but, with respect to creditors who ment note, suit would be brought, they in-
exhibit their claims before a voluntary as- duced him to put his signature to the judg-
signee, or an auditor appointed in such case, ment note. The plaintiff now alleges that,
and do not withdraw them as aforesaid, they at that time, the defendant stated to him
shall be wholly debarred from maintaining that he had not signed any other notes; and,
afterwards, by suit, action, execution or a matter of fact, this was not true, as he
otherwise, any claim existing at the time of had; about a year before, confessed a judg.
the assignment, whether due or not, unless ment to Frank K. Lefever, for moneys due
he shall aver and prove: (1) That said by him to Lefever. This is the fraud or
action is founded on the actual force, fraud, deceit upon which he seeks to avoid the
malice, or deceit of the insolvent,'' &c. effect of his releaie in the assignment pro-

The admitted facts of this case are these; ceedings. It is not claimed that any money
On October 10, 1911, a judgment was con- or valuable thing was obtained by Hagen
fessed by the defendant to the plaintiff for from Vinnich at the time the judgment
the sum of $303.00, and it was entered in note was executed. It was given solely to
this Court to the above term and number. secure the prior indebtedness, and Minoich
On March 22, 1912, a writ of fi. fa. was parted with no property at that time on the
issued upon it, to April Term, 1912, No. faith of it. The question, therefore, arises
41, Execution Docker. On March 22, whether or not, under such a state of facts,
1912, the defendant made a deed of volun- he has a right to proceed upon his judgment.
tary assignment for the benefit of creditors, We are of the opinion that he has no
under the Act of 1901, to John G. Hom- such right. In Citizens' National Bank v.
sher, Esq., and his property was taken Gass, 29 Sup. 125, it was decided that
possession of by the assignee. The assignee "wage earners and persons engaged chiefly
disposed of it, duly filed an account of his in farming or the tillage of the soil cannot
trust, and the balance for distribution re- be subjected to the provisions of the Federal
maining in his hands was regularly audited Bankrupt Act of July 1, 1898, without their
and distributed among the creditors who consent," and that, as to such persons, the
had conformed to the above Act. In these State Insolvency Act of 1901 is in force.
proceedings, the plaintiff presented and Again, in Miller v. Jackson, 34 Sup. 31, it
proved his claim on the judgment, and was was held that the above Act is not suspend-
awarded a dividend of $70.45, which was ed by the Federal Act as to farmers.
paid to him on October 21, 1913, and he In this case, the defendant was a farmer.
thereupon, in accordance with section 30, The Act of 1901, therefore, applied to him,
executed a release in the form set forth in and it applied in all its parts. As the
the Act of Assembly.

plaintiff elected to participate in the disOn February 26, 1918, the plaintiff issued tribution and presented his judgment bond an alias fi. fa. upon this same judgment, and, for a dividend, he was bound by all the prounder it, the personal property of the de- visions of that Act. fendant was levied upon by the Sheriff. Fraud is a civil wrong or tort, known as On March 2, 1918, the defendant presented deceit, and gives the person injured a right his petition, in which he set forth the assign- of action for damages. The action will lie ment, the distribution and the release.

As against any one who makes a false repreanswer to this, the plaintiff asserts that sentation of fact, with knowledge of its

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asked. HELD, that since these statements were Work Legal Record

made immediately after the occurence of the accident, they are properly admissible, and there

fore, the defendani's motion for judgment non Vol. XXXI THURSDAY, APRIL 25, 1918. No. 50

obstante t'eredicto must be overruled. falsity, and with intent that it shall be acted plaintiff.

Evans, High, Deitra 6 Swartz for upon,' when the person to whom it is made

Larzelere, Wright & Larzelere for deacts upon it, and by so doing suffers injury.

fendant. To entitle a person to relief or redress because of false representation, it is well set- October 22, 1917. Swartz, P. J.-- The tled that it is not enough to show merely plaintiff's car was standing in the driveway that it was material, but that it was known leading into Wenner's Coal Yard from to be false, and that it was made with in- Cresmont Avenue. He was accompanied tent to deceive; and it must be shown that by Mr. Romig, his father-in-law. Cresmont it actually did mislead and deceive, and loss Avenue is forty-four feet wide from curb to was occasioned thereby. It has been said curb line, and two tracks of the defen ant that falsehood and deceit are always subject trolley company are located along the midto moral condemnation, but that it is not dle of this highway. The part of the road appointed to human tribunals to sit in judg-occupied by the trolley tracks is paved with ment upon mere moral delinquencies affect- brick. The Avenue runs nor:h and south. ing only the conscience: that such tribunals The roadways, on the east and west sides of take cognizance only when another has been the street, are not in condition for travel induced to do some act to his own injury.

with vehicles. Automobiles and carriages While in this case it is denied by the de- necessarily use the paved part of the highfendant that, when he signed the note, he way occupied by the trolley tracks, or at stated he had signed no other notes of least a part thereof. The cars run north similar character, yet conceding that the on the east track and south on the west plaintiff in this respect is correct, what harm track. Wenner's Coal Yard is on the west did he suffer thereby? If, as is admitted, side of Cresmont Avenue. he incurred no new obligation and then The plaintiff backed his auto out of the parted with none of his property, how can driveway. He intended to run northward he sustain the position that his obligation on the east side of the street. A trolley car was founded in fraud or deceit? Such a of the defendant company was moving on situation does not show, in our judgment, the east track and was, therefore, going in that defendant was guilty of the fraud or the same northward direction. When the deceit contemplated by the Act of 1901. plaintiff backed his car he says he curved It follows that the release barred plaintiff's toward the south, so as to bring his car on execution.

the east side of the Avenue facing it northFor these reasons, the rule to show cause ward,--the direction in which he intended why the judgment should not be opened to drive. and the defendant let into a defense is made There was a collision between the autoabsolute.

mobile and this trolley car that was moving Rule made absolute.


The witnesses differ seriously, as to the C. P. of

Montgomery Co. point in the street where the accident hap

pened and how it was brought about. Wilson v. Philadelphia Rapid There was a slight snow on the ground, Transit Co.

at the time. Automobile-Street car-Right of Way.

The plaintiff testified, that he backed his

auto out of the driveway, in a southerly dirPlaintiff backed his automobile out of the drive- ection, and crossed over the Avenue in a way across defendant's tracks to run northward diagonal course tiil his car stood in the on the east side of the street. A trolley car moving in the same direction collided with plain

middle of the east trolley track. He detiff's automobile.

clared that when his car stopped he was ten At the trial the motorman's and conductor's or fifteen yards south of the Wenner drivestatements which were made at the time of the way or lane, that he then reversed the accident were admitted. The admission of these motion of his car, started forward on low statements are the only grounds upon which judgment for defendant non obstante venedicto is gear, at three miles an hour, that he had

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trouble in starting because his wheels slipped Mr. Eason describes the accident, in ac-
on the snow, that he went forward fifteen cord with the plaintiff's account, but he
or twenty yards partly on the east trolley adds, that when the automobile stopped
track and was then struck in the rear by the backing it was on the north bound track
trolley car. His auto was pushed to the and that the trolley car, was at Hamilton
west side of the Avenue, a little to the north Avenue—that is more than six hundred feet
of the Wenner driveway entrance. He was distant from the automobile. He turned
thrown from his auto and landed on the around and in two seconds he heard the
west side of the highway. He alleges that crash. The automobile, he says, had moved
the bones of his wrist were displaced, that forward twenty-five feet, was running par-
his ankle was hurt, and that his abdomen allel with the highway, and was struck in
was injured by the fall on the roadway. the rear.
The top of his car was wrecked and the car The motorman and conductor testified to
itself was damaged.

a different state of affairs. According to His car when struck was driven to the their account the plaintiff backed into, or west side of the Avenue and stood at a right right in front of the moving trolley car. angle with the street and trolley tracks. Their evidence is corroborated by witnesses The front of the car faced the west bank of who were passengers in the trolley car and the highway. This point was ten feet by others. They also declared, that the north of the driveway.

speed was moderate and that the motorman The plaintiff declares, that he looked up had his car under control. and down before he entered his car and that We instructed the jury, that if the ache continued to look through the rear glass cident happened as described by the defendof his machine and could see as far south as ant's witnesses the plaintiff could not recover. Hamilton Street, as he backed upon the east We went a step farther and declared, that or north bound track. Hamilton Avenue unless the jury found that he had backed is over six hundred feet south of the Wen- his car on the tracks, had then gone northner driveway. There is a down grade on ward some distance, and was then struck by Cresmont Avenue looking southward from the trolley car, there could be no recovery. the Wenner Cual Yard. This down grade We think it is self evident that if the ends in a hollow a little south of Decatur automobile had passed out of the driveway, Avenue. The distance from the Wenner backed southward upon the north bound driveway to this hollow is about four hun- track, and was at that point when the troldred feet. From the point of this hollow ley car more than six hundred feet there is a steep up grade to the south for a away, that it must then follow that the distance of more than fifteen hundred feet. motorman did not have his car under the The down grade south from the Wenner control that the conditions before his eyes Coal Yard is a moderate grade, but in- demanded. creases as you travel northward from the It required some time for the plaintiff to Coal Yard. Cresmont Avenue is straight cross the highway. It required time to refor nearly one mile, and standing on or verse his engine and to start his car forward along the highway, at the Coal Yard, there in the slipping snow. It required additional is an unobstructed view, to the south, for time to go forward the distance of "fifteen about one-half a mile.

or twenty yards." Especially so if the The movements of the plaintiff's auto- plaintiff was running but “three miles" an mobile, immediatdly before and after the hour. If the trolley car traversed the six collision, as described by him, were con- hundred feet in two seconds, or while the firmed by other witnesses. Mr. Wenner witness Eason turned around, it indicates traced the course of the auto in the snow. reckless speed under the circumstances. Of He says that there were no other tracks at course these expressions of the witness are the time to interfere with his observations, extravagant, but they indicate that to his He testified that the auto backed southward mind the plaintiff had no opportunity to on Cresmont Avenue, about three car lengths, make room for the on-coming trolley car. then started forward with some difficulty The motorman was in duty bound to give because the snow indicated the slipping of the plaintiff sufficient time to move from the wheels, that it moved forward to the the trolley tracks. The employees of a Wenner driveway and landed on the west street railway company are bound to keep side of the highway, as already described. their cars under control and have no right

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to run down the driver of a vehicle when anything of that sort." By the witness,
on their tracks or when in the act of leaving "That is right.”
the tracks. They are bound to use every The plaintiff testified that the motorman
reasonable effort to avoid a collision. The stated, "He was going down the hill so
driver of a vehicle is entitled to a reasonable fast, he could not control the car." "I put
time to get out of the way; Woclfel v. on my brakes and took them off again, and
Railway Co., 183 Pa. 213; Hole v. Penna. put them on again and off again, and then I
R. R. Co., 206 Pa. 356; Davis v. Electrici made up my mind I was going to kill some-
Railway Co., 25 Pa. Superior Ct. 444. body.” There was some further cross-ex-

Special precautions were required by the amination, as to the occurrences immediately motorman in this case because he must have after the accident, but these declarations by known that to get out of the way meant to the conductor and motorman, according to leave one trolley track and enter upon the the evidence, were voluntary statements

, other. We took a careful view of the wade immediately after the accident. This grounds and we fail to see how a fast rail. is certainly true as to the conductor who way line can i with safety make a common uttered his words as he stepped from his car use of this highway with carriages and auto-to the ground. The plaintiff was asked mobiles. The plaintiff did not make use of whether the declarations of the employees Cresmont Avenue from choice, but he was were made after the conductor entered the called to the Wenner Coal Yard in pursuit office and telephoned. The answer was,-of his professional business.

"No, it was immediately after the accident." It is argued that the trolley car was com- Mr. Wenner also says the conductor asked ing up a grade for some distance, just before for a telephone station, but asserts that the the collision, and that this fact gave the above statement wa; made just as the conmotorman control over his car. This would ductor stepped from his car to the ground. necessarily depend upon the speed and mo-i The words used in Hanover Railroad Co. mentum of the car as it reached the foot of v. Coyle, 55 Pa. 402, fit our case, --"The the long and steep hill.

negligence complained of being that of the The distance to the point of the collision engineer himself, we can not say that his from the bottom of the down grade and the declarations, made upon the spot, at the time,

and in view of the effects of his conduct, are moderate up-grade would not quickly check

not evidence against the company, as a part a car beyond control at the foot of the hill.

of the very transaction itself.” The declarations of the employecs, in

To the same effect is the ruling in Conlon charge of the trolley car, and made immedi-lv. Pittsburg Railway Co., 223 Pa. 101. ately after the accident, would justify the The declarations of the employees in charge jury in reaching this conclusion. Mr. Wen. of the operations of the troliey car were adner says, that the conductor, as he stepped missible because they fully meet the tests laid off the back end of his car to the ground, down by the law for their admission, declared, -"I knew damn well we were “They must be made under such circumgoing to hit that car when we were at the

stances as will raise the reasonable presumpfoot of the hill.” This statement was made tion that they are the spontaneous uiterances right after the accident.

of thought created by or springing out of The plaintiff testified that he had a con- the transaction itself and so soon thereafter versation with the motorman and conductor, as to exclude the presumption that they are immediately after the accident. Counsel | the result of premeditation or design.” The for plaintiff then put the question, -"What, motorman and conductor were operating if anything, did they say with reference to the colliding car; they stepped from it; saw the operation of the car?" Counsel for de- the effect of the collision and at once made fendant objected. The court then ruled the declarations without any inquiry ad"You will have to show how long or how dressed to them intimating negligence on soon after the accident it was.”

their part. Counsel for plaintiff, — "I said immedi- These conditions are entirely at variance ately after the accident." By the Court,-- with the facts found in the case of McCul“Then it is competent." Counsel for de- lough v. Phila. Rapid Transit Co., 16 Dist. fendant,—“If it was immediately, then it Rep. 513, cited by counsel for the defendant, was right during the accident before they where the injured party asked the motormoved away, or conditions had changed or iman for his explanation of the accident. In

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Coll v. Easton Transit Co., 180 Pa. 618, S. B. Meisen helder for exceptions.
the motorman assisted in carrying the in- Logan Logan for report.
jured person to a railroad station one and
one-half blocks from the place of the acci-

March 18th, 1918. Ross, J.-In deciddent. He then explained how he came to ing this case, we have nothing to base our run over the body of the deceased. This decision upon but the petition for the apwas two minutes after the occurrence and pointment of viewers, the report of the not at the point where the injury was in- viewers, and the exceptions filed thereto. Alicted. The Court held that the declara- The petition for the appointment of tions were admissible.

viewers was presented and filed and viewers The only specific reason for a new trial were appointed June uith, 1917. The rerelates to the admission of the declarations port of viewers was filed in open court, of the motorman and the conductor. The August 27th, 1917. application for a new trial is refused.

The following exceptions were duly filed From what we have said in relating the thereto: occurrences as given by the plaintiff's wit- The petition for the appointment of nesses and the circumstances surrounding viewers to vacate, is indefinite and insuffithe accident, we are convinced, that the case cient in that it does not set forth in a clear was for the jury to determine whether the and distinct manner the situation and other defendant's car caused the accident through circumstances of such road or highway negligence because those in charge of the car which is proposed to be vacated, sufficient to did not operate the same with reasonable inform the Court of the circumstances care under the circumstances and did not which render the road unnecessary, as prohave the car under proper control. Whether vided by the Act of June 13th, 1836, P. L. the plaintiff was guilty of contributory negli- 558, Section 18, or by the Act of 1860, gence was also for the jury.

commonly known as the York County Road The motion for judgment in favor of the Law. defendant, non obstante veredicto, is over- 2. The report of the viewers does not ruled.

sufficiently set forth the facts and circum

stances surrounding the said vacating or the

situation and other circumstances of the said
road or lighway vacated, as required by the

Act of Assembly, to enable the Court to in-
Road in Carroll Township. telligently pass upon the necessity for the

vacation. Road--L'acation-Report of l'iewers.

"3. The road vacated had not become On petition viewers were appointed to vacate useless, unnecessary and burdensome. The a public road, and reported that the part of the testimony before the viewers of one of the road proposed to be vacated has become useless, inconvenient and burdensome," and "there is no

supervisors was to the effect that in eight occasion for a public road beeween the termini set years he had not spent more than twenty forth in the petition and order of court." Excep- doilars on the road. tions were filed to the report on the ground of the indefiniteness and insufficiency of the petition and

“4. The vacation of this road deprives report

. Held, that the exceptions must be dis- adjoining property owners of a near access missed.

to public schools and other public roads. As the report set forth the holding of a public “5. The petition does not set forth how meeting at which all parties, with their counsel, said road became a public road. were present, and was accompanied by the testimony of witnesses under oath, the report, as a

"6. The proceedings do not set forth whole, was clear and intelligent enough to with that the meeting the viewers was adverstand the exceptions filed thereto.

tised according to law. The petition having set forth that the road is a

7, public road, it is no ground for an exception in

The advertisements of the time and that it is not stated how it became such.

place of notice were not given in the manThe sworn facts in the viewers' report

, without ner prescribed by the Act of Assembly, legal refutation, must be assumed to be true. if it is not such a road as is properly within the of the time and place of the meeting of the

“8. There is no proper legal notice given jurisdiction of this court, it is incumbent on the objector to show that fact.

viewers." No. 6, April Sessions, 1917.

Although the ist, 2nd, and 3rd exceptions

are not explicit, from the exceptant's brief, In re Exceptions to Report of Viewers. and argument at the hearing of exceptant's

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