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 ineach 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 deSection 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 Lantheir 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 judgclaims; but, with respect to creditors who ment note, suit would be brought, they inexhibit their claims before a voluntary as- duced him to put his signature to the judgsignee, 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 as a matter of fact, this was not true, as he otherwise, any claim existing at the time of the assignment, whether due or not, unless he shall aver and prove: (1) That said action is founded on the actual force, fraud, malice, or deceit of the insolvent," &c.

had, about a year before, confessed a judgment to Frank K. Lefever, for moneys due by him to Lefever. This is the fraud or deceit upon which he seeks to avoid the effect of his release in the assignment proThe 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 Minnich 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 Minnich 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 Docket. 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 trust, and the balance for distribution remaining in his hands was regularly audited and distributed among the creditors who had conformed to the above Act. In these proceedings, the plaintiff presented and proved his claim on the judgment, and was awarded a dividend of $70.45, which was paid to him on October 21, 1913, and he thereupon, in accordance with section 30, executed a release in the form set forth in the Act of Assembly.

in farming or the tillage of the soil cannot be subjected to the provisions of the Federal Bankrupt Act of July 1, 1898, without their consent," and that, as to such persons, the State Insolvency Act of 1901 is in force. Again, in Miller v. Jackson, 34 Sup. 31, it was held that the above Act is not suspended by the Federal Act as to farmers.

In this case, the defendant was a farmer. The Act of 1901, therefore, applied to him, and it applied in all its parts. As the plaintiff elected to participate in the distribution and presented his judgment bond for a dividend, he was bound by all the pro

On February 26, 1918, the plaintiff issued an alias fi. fa. upon this same judgment, and, under 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 assignment, the distribution and the release. As an answer to this, the plaintiff asserts that

of action for damages. The action will lie against any one who makes a false representation of fact, with knowledge of its

asked. HELD, that since these statements were made immediately after the occurence of the accident, they are properly admissible, and therefore, the defendant's motion for judgment non obstante veredicto must be overruled.

Evans, High, Dettra Swartz for

Larzelere, Wright & Larzelere for defendant.

falsity, and with intent that it shall be acted plaintiff. upon, when the person to whom it is made acts upon it, and by so doing suffers injury. 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 north 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 parted with none of his property, how can he sustain the position that his obligation was founded in fraud or deceit? Such a situation does not show, in our judgment, that defendant was guilty of the fraud or deceit contemplated by the Act of 1901. It follows that the release barred plaintiff's execution.

Automobile-Street car-Right of Way.

Plaintiff backed his automobile out of the driveway across defendant's tracks to run northward on the east side of the street. A trolley car

tiff's automobile.

The plaintiff backed his auto out of the driveway. He intended to run northward on the east side of the street. A trolley car of the defendant company was moving on the east track and was, therefore, going in the same northward direction. When the plaintiff backed his car he says he curved toward the south, so as to bring his car on the east side of the Avenue facing it northward,--the direction in which he intended to drive.

There was a collision between the automobile and this trolley car that was moving northward.

The witnesses differ seriously, as to the point in the street where the accident happened and how it was brought about.

There was a slight snow on the ground, at the time.

The plaintiff testified, that he backed his auto out of the driveway, in a southerly direction, and crossed over the Avenue in a diagonal course till his car stood in the

moving in the same direction collided with plain- middle of the east trolley track. He declared 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 statements are the only grounds upon which judg-motion of his car, started forward on low ment for defendant non obstante veredicto isgear, at three miles an hour, that he had

accident were admitted. The admission of these

trouble in starting because his wheels slipped Mr. Eason describes the accident, in acon 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 parhis 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 itself was damaged.

His car when struck was driven to the west side of the Avenue and stood at a right angle with the street and trolley tracks. The front of the car faced the west bank of the highway. This point was ten feet north of the driveway.

The motorman and conductor testified to a different state of affairs. According to their account the plaintiff backed into, or right in front of the moving trolley car. Their evidence is corroborated by witnesses who were passengers in the trolley car and by others. They also declared, that the speed was moderate and that the motorman had his car under control.

We instructed the jury, that if the accident happened as described by the defendant's witnesses the plaintiff could not recover. We went a step farther and declared, that unless the jury found that he had backed his car on the tracks, had then gone northward some distance, and was then struck by the trolley car, there could be no recovery.

The plaintiff declares, that he looked up and down before he entered his car and that he continued to look through the rear glass of his machine and could see as far south as Hamilton Street, as he backed upon the east or north bound track. Hamilton Avenue is over six hundred feet south of the Wenner driveway. There is a down grade on Cresmont Avenue looking southward from the Wenner Cual Yard. This down grade ends in a hollow a little south of Decatur Avenue. The distance from the Wenner driveway to this hollow is about four hundred feet. From the point of this hollow there is a steep up grade to the south for a distance of more than fifteen hundred feet. The down grade south from the Wenner 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 for nearly one mile, and standing on or along the highway, at the Coal Yard, there is an unobstructed view, to the south, for about one-half a mile.

We think it is self evident that if the automobile had passed out of the driveway, backed southward upon the north bound track, and was at that point when the trolley car was more than six hundred feet away, that it must then follow that the motorman did not have his car under the control that the conditions before his eyes

cross the highway. It required time to reverse his engine and to start his car forward in the slipping snow. It required additional time to go forward the distance of "fifteen 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

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 time to get out of the way; Woelfel v. Railway Co., 183 Pa. 213; Holt v. Penna. R. R. Co., 206 Pa. 356; Davis v. Electric Railway Co., 25 Pa. Superior Ct. 444.

fast, he could not control the car." "I put on my brakes and took them off again, and put them on again and off again, and then I made up my mind I was going to kill somebody." There was some further cross-exSpecial 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 made 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 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 Cresmont Avenue from choice, but he was called to the Wenner Coal Yard in pursuit of his professional business.

It is argued that the trolley car was coming up a grade for some distance, just before the collision, and that this fact gave the motorman control over his car. This would necessarily depend upon the speed and momentum of the car as it reached the foot of the long and steep hill.

whether the declarations of the employees.
were made after the conductor entered the
office and telephoned. The answer was,-
"No, it was immediately after the accident."
Mr. Wenner also says the conductor asked
for a telephone station, but asserts that the
above statement was made just as the con-
ductor stepped from his car to the ground.

The words used in Hanover Railroad Co. v. Coyle, 55 Pa. 402, fit our case,-"The negligence complained of being that of the engineer himself, we can not say that his declarations, made upon the spot, at the time, and in view of the effects of his conduct, are not evidence against the company, as a part of the very transaction itself.”

The distance to the point of the collision from the bottom of the down grade and the moderate up-grade would not quickly check a car beyond control at the foot of the hill. The declarations of the employees, in charge of the trolley car, and made immedi-v. Pittsburg Railway Co., 223 Pa. 101. To the same effect is the ruling in Conlon 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 trolley car were adner says, that the conductor, as he stepped off the back end of his car to the ground, declared, "I knew damn well we were going to hit that car when we were at the foot of the hill." This statement was made right after the accident..

missible because they fully meet the tests laid down by the law for their admission,"They must be made under such circumstances as will raise the reasonable presumption that they are the spontaneous utterances 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, if anything, did they say with reference to the operation of the car?" Counsel for defendant objected. The court then ruled "You will have to show how long or how soon after the accident it was."

Counsel for plaintiff,-"I said immediately after the accident." By the Court,By the Court, "Then it is competent." Counsel for defendant,-"If it was immediately, then it was right during the accident before they moved away, or conditions had changed or

motorman and conductor were operating the colliding car; they stepped from it; saw the effect of the collision and at once made the declarations without any inquiry addressed to them intimating negligence on their part.

These conditions are entirely at variance with the facts found in the case of McCullough v. Phila. Rapid Transit Co., 16 Dist. Rep. 513, cited by counsel for the defendant, where the injured party asked the motorman for his explanation of the accident. In