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car on which the accident happened, was True as was argued the conductor ornot a part of the train.

dered the deceased on the car, and gave When we remember the character of him no time to try the brake. the duties these employees were engaged

That the conductor ordered him on the to perform, this seems but a narrow con

car is in evidence-but it had not been struction of the rules. They were run- shown, as I remember the facts, that he ning a “mixed train,” and shifting cars at had no sufficient time in which to test the various stations. At this particular sta

brake. But assuming that it is all true as tion they were collecting empty coal cars, alleged, how does it help the plaintiff's for the freight train "coming this way.' In order to get at the empty cars, they

The conductor and brakeman, served a were compelled to "shift" this box car, common master and were engaged in the and in the general scope of their duty it performance of a common duty-I can surely became for the time being a part but think they were fellow servants withof the train, sufficiently so at all events,

in the literal and legal meaning of the to be covered by rules, manifestly intend- term. The rule is well settled, which dised to promote the safety of those engaged charges the master from liability, when

the injury results from negligence of a in this kind of work.

co-employee. But it is contended, that even supposing

Upop the plaintiff's evidence therefore, the rules in question applicable to the facts

we find a case of contributory negligence of this case, that the company defendant cannot relieve itself of liability, by im

on the part of the deceased, even assumposing the duty of inspection upon the ing negligence to be proved on the part conductor and brakeman. If inspection is not sufficient evidence to justify a ver

of the defendant, of which however there means simply ascertaining whether a

dict. We therefore enter judgment of brake is in order before it is used, which

non-suit. may be done, according to the evidence, by either looking at it, or trying it, I can

Lancaster County not agree that such is the law. Surely

Lemon et al. v. Reidel. those who accept this service are something more than automantons. As we be- Municipal Corporation--Ordinances fore said, the defect in this instance was Caption in suit for action in penalty. patent—it was readily seen by several In an action to recover a penalty for violation of muni.

cipal ordinances, the suit must be brought in debt, and persons, and could, according to the evi

where the whole penalty is payable to the municipality,

it must be brought in the name and title of the corpora. dence, have been instantly discovered by tion, and not in the name of the informer. trying it. In addition to this, it is in evi- Penal actions must be construed strictly, and cannot be

so extended as to give authority, in the absence of express dence, that the conductor of this train words, to the peace officer to sue in his own name. told the deceased, “never cut a

The transcript of the alderman must set forth the offense

and ordinances violated with sufficient clearness and preloose without trying the brake.” Had

cision. Every essential ingredient of the offense must be set out by the magistrate. The ordinance, if not in haec

verba, should be desiguated by number, section or date this instruction been obeyed the accident

of passage. would in all probability not have hap- Where these ingredients are omitted, the judgment will

be reversed. pened. Not to obey this order was negligence on the part of the unfortunate man Certiorari upon the proceedings of Alwho was killed, and directly contri- derman A. F. Donnelly. buted to the accident. It can scarcely be

June Term, 1883. No. 53. said that this order did not apply-be- On May 25, 1883, B. F. Lemon, a po cause the car was first attached, and af- | lice officer, brought suit against C. Reidel terwards “cut loose”-it therefore canie for violating the market ordinances of the directly within its terms.

City of Lancaster.

C. P. of


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On May 31st, a hearing was had before tended as to give authority in the absence the alderman, and judgment was entered of express words to the plaintiff or peace against defendant for $10, the amount of officer, as in this case, to sue in his own the penalty, and costs of suit. On the

Coke for use of Commonwealth 6th day of June, the defendant's counsel v. Jacoby, 2 W. N. C. 391. The Courts issued this certiorari of the proceedings have held that a proceeding to recover a to this Court.

fine for the violation of a borough or city November 17, 1883. PATTERSON, A.

ordinance is not a summary proceeding.

It is of a civil nature, and is to be conL. J.-On consulting authorities and in

ducted according to rules applicable to specting the transcript of this suit return

civil cases.

Hence we have said this suit ed by the Alderman, we regret that was properly brought in debt for penalty ; although the motives that impelled the and where the penalty goes to the city or initiation of this action were those pro-borough, the corporate name of such city

or borough should be used as plaintiff; perly influencing a public officer, and and where it goes to the person suing, although the ordinance of the City of the corporate name of the city or borough Lancaster upon which it is based is one for the use of the informer, naming him, of the most salutary and beneficial ordi- must appear as plaintiff. But when the

action is qui tam, a part of the penalty nances to the citizens, yet, nevertheless

going to the informer, and a part to the we are compelled to set aside this judg- city or borough, the informer must be ment. The ordinance which the defend- named as plaintiff, suing for himself as ant is charged with violating, is contained well as for the city or borough. The orin Sections 11 and 12 of the ordinances dinance above quoted gives all the penalty passed March 1oth, 1870, (City Ordi- to the city, and therefore this suit should

. nances, page 110.) With others, it or sington v. Glenat, 1 Phila R. 251, dains, “That no person shall, under any The transcript of the alderman does not pretence whatever, purchase on market set forth the offense and the ordinance days, within market hours, any market- violated with sufficient clearness and preable provisions for the purpose of retail- cision. Every essential ingredient of the

offense must be set out by the magistrate. ing or reselling the same” etc., and Sec The ordinance, if not in haec verba , should tion 12 says, “That any person violating be designated by number, section, or date any of the provisions of the ordinances of passage. And although it is stated, as relating to the markets, shall forfeit and appears on the magistrate's docket, "that

the defendant, on Wednesday, May 23d, pay for the use of the city a fine not ex

1883, did violate Section 11 of the ordiceeding ten dollars."

nance relating to markets of the City of This suit was properly brought as an Lancaster, by purchasing on said Wedaction of debt to recover the penalty, but nesday, being market day, within market it was brought thus : Officer B. F. Le- hours, marketable provisions for the purmon, who sues as well for himself as the pose of reselling the same,” it is not Mayor, alderman and citizens of Lancas- stated that the said market so held, was ter v. C. Reidel, defendant.” It should within the limits of the said City of Lanhave been brought in corporate name of caster. That precision seems necessary,

| the city, which name, since the Act of when the suit is brought to recover a April 4th, 1867, an act entitled "An Act penalty under an ordinance. City of amending the charter of the municipal Phila. v. Mintzer, 2 Phila. R. 43; City v. corporation of the City of Lancaster and Hughes, 4 Phila. R. 148. dividing the same into nine wards," is This latter omission and others menthe "City of Lancaster.” This suit tioned, and the suit not having been should have been brought in the corpor- brought in the corporate name of the City ate name or title of the City of Lancaster. of Lancaster, we are of opinion, are mat

The above ordinance, it will be observ- ters fatal to these proceedings, and the ed, is penal in its character, and provides judgment must be reversed. The princifor recovering a penalty. Hence it must pal above stated sustains the first excepbe construed strictly, and cannot be so ex- tion filed ; and we may add in support of

amount which would become due thereon at his death

the fourth exception, that it should appear ant should be charged with it for the purin the evidence direct, or by evidence pose of distribution to her. The eighth raising a strong legal presumption, that article of the by-laws provides that upon defendant not only did purchase market- the decease of a member entitled to beneable provision as stated, but that he bought fits the secretary shall forward to the perthe same "for the purpose of retailing or son named in the certificate of memberreselling the same."

ship issued to the deceased, or legal heirs, Judgment reversed.

the amount due by reason of said death.

In Hodge's Appeal, 8 W. N. C. 209, the ORPHANS' COURT.

words heirs and legal representatives

used in the by-laws of a beneficial asso0. C. of

Allegheny County ciation, to designate the beneficiaries, are In Re Estate of Henry Meyer, deceased. construed to mean next of kin as ascerWhere it appears from the by-laws of a beneficial asso- tained by the intestate laws, and if they ciation that its object was to perpetuate a fund for the relief of the widows and orphans of its members, the

be so construed here it is clear that the words heirs and legal represeutatives, as used in its by- next of kin of the deceased Mrs. Meyer laws and the certificate of insurauce issued by it, are coustrued to mean children.

are entitled to this fund. But if it be so The Odd Fellows' Endowment Association issued a certificate of life insurance to J., which provided that the

distributed as the decedent survived her

and was of her next of kin, under authorshould be paid to his wife E. or her legal representatives. She having died prior to her hu band, leaving twochild ity of Anderson's Appeal, 85 Pa. St. 202, ren to survive her, and he having remarried and left his

his administrator would take an equal second wife to survive him. HELD, that the children were entitled to the fuud.

share with their children, contrary to the The accountant was also administrator object and purpose of the association. of the estate of the deceased wife of the Such construction, however, should be decedent, who was designated as the bene- given to these words, if possible as would ficiary in a certificate issued by the Odd promote its purpose.

Aud as the object Fellows' Endowment Association. He was to provide for the relief of orphans receipted to the association for the amount of members, as well as widows, it can which became due thereon as adminis- only be done by construing them to mean trator of both estates, but claimed to have children. It seems clear then, having in received it as administrator of her estate. view the designs of the association, they The decedent remarried and left his should be so construed. If this conclusecond wife to survive him.

The ac

sion be correct the certificate then procountant not having charged himself with vides for payment first to the wife of the the amount received on this certificate, decedent named in it, and in the event of she filed exceptions to his account, claim- her death, then to her children. He had ing that he should be charged with it for two children by his first wife who survive the purpose of distributing it to her as the persons designated in the alternative widow of the decedent.

or second class, who are to be benefitted November 14, 1883. OVER, J. The in the event of the death of the person certificate of membershisp issued by the designated in the first. It seems reasonOdd Fellows' Endowment Association to able that substitution of persons not deJohn Henry Meyer, the decedent, provi- signated in the certificate could only be ded for the payment of the amount which made upou failure of designated persons would become due thereon to Ernestina i representing both classes. And therefore Emma Meyer, his wife, or her legal repre- the exceptant, although the widow, cansentatives, and prima facie, the account- not be substituted as beneficiary instead ant as his administrator had no right to of the deceased Mrs. Meyer, and her receive it. It appears from the first ar- children as the alternative beneficiaries ticle of the by-laws of the association that are entitled to the fund. It appears also its object is “the creation and perpetua- | to have been the intention of the decetion of a fund for the relief of the widows, dent that they should receive it as had he and orphans of its members.” And the not so intended, he no doubt would have exceptant contends that she represents surrendered the certificate and had a new the class to be primarily benefited, and one issued desiguating the exceptant as should be substituted for the beneficiary the beneficiary. named in the certificate, and is therefore The exceptions must, therefore, be disentitled to the fund, and that the account- | missed.


No 42.

YORK LEGAL RECORD. Appeal, 33 Id. 294. But the deed being

void as to the defrauded creditors, as reTHURSDAY, DECEMBER 20, 1883.

gards them, it is still their debtor's estate

which is sold in satisfaction of their debts, SUPREME COURT.

and the purchaser obtains the right to contest and avoid the conveyance: Hoff

man's Appeal, 44 Pa. St. 95; Jacoby's Zuver v. Clark.

Appeal, 67 Id. 434. Should a surplus reWhere one who is involved procures a conveyance of land to be made to his wife, she takes a good title against

main after paying the debts it would beeverybody, except persons intended to be defrauded.

long to the grantee, for the grantee's title A sheriff's sale on a judgment obtained against the husband after the delivery of the deed would be subject to only fails so far as it stands in the way leins which existed at and before the delivery of the deed.

of the creditors. A fraudulent grantee takes subject to liens, and a purchaser at sheriff's sale takes upon the same terms; that is, gets all that was conveyed to such fraudulent grantee. At the time Samuel Zuver obtained his

Lien creditors are not included among those who may judgment Nancy Zuver was the apparent be defrauded by the conveyance of the land. A creditor who approves or recommends a conveyance

owner of the land. He was the purto the wife of his debtor, is estopped from denying the validity of such conveyance.

chaser at sheriff's sale made by virtue of A sale of land without inquisition or waiver thereof is a fieri facias issued on his own judgment. unauthorized and void, and such sale is uot confirmed by the distribution of the proceeds amongst the judgment Indorsed on the writ is a waiver of inquicreditors of the debtor.

sition purporting to be signed by Joseph Where there is a pretended waiver parol testimony is admissible to prove that there was in fact no waiver. and Nancy Zuver. It may be conceeded

Where a witness is competent to testify as to matters occuring since the death of a party, but not as to matters

that prima facie the waiver is genuine, occuring before death, a general objection to his competency as a witness will be overruled.

having been taken by the officer and reError to the Court of Common Pleas of turned with his writ. The defendant obLawrence county.

jected that the waiver was a forgery

but the court ruled that she could not set November 12, 1883. TRUNKEY,J.-As

up the want of inquisition, and overruled against everybody, except persons intend

her offer to prove the forgery and that ed to he defrauded, the deed by Mc

there had been no waiver of inquisiCready to Nancy Zuver vested a good tion. That was error.

Whether the title in her for the land in controversy. I grantor, or the grantee, in the alleged Joseph Zuver was as completely divested fraudulent conveyance is the party who of title as if the conveyance had been

can legally waive inquisition, is a quesmade to his wife in good faith for a full tion not raised at present; the cause was consideration in money; and if void as to

tried as if the defendant had no right to creditors, yet the title was changed and a object to the plaintiff's title. sheriff's sale upon a judgment obtained against Joseph Zuver after the delivery It has already been seen that the right of the deed, would be subject to liens to contest Nancy Zuver's title and posseswhich existed at and before the date of sion can only exist in a creditor or purdelivery. A sheriff's deed would pass chaser at sheriff's sale. If that sale was to the purchaser all that was conveyed to

void the purchaser was without footing the frauduleut grantee, and as such gran

to make the contest. A creditor cannot tee took subject to liens, if any, the pur- oust her, or contest her right, save by due

, chaser at sheriff's sale would take upon legal proceeding. Were he to intrude inthe same terms. Lien creditors are not

to possession he could not defend on the included among persons who may be de ground that her deed is void, or voidable. frauded by the conveyance of land, for He must obtain judgment and pursue the they may follow the land irrespective of proper legal means for collection of his all changes in the title, honestor dishonest: debt, and then a fraudulent deed shall not Byrod's Appeal, 31 Pa. St. 241; Fisher's block his way; but he is not able to thrust


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Id. 96.


the deed aside until he meets it with vailid such person ; for instance, a purchaser at process, or with the title founded on a judicial sale, in the collection of a debt valid judicial sale of the property.

due such person, can avoid the conveyA sale of land under a fieri facias with

ance; for only as against such person or out inquisition, or waiver thereof, is un

persons is the deed void under the statute

of fraudulent conveyances. authorized and void. A void sale is not confirmed by a distribution of its proceeds

Judgment reversed and venire facias de

novo awarded.*
amongst the judgment creditors of the
debtor : Gardner v. Lisk, 51 Pa. St. 506;

St. Bartholomew's Church v. Wood, 61
Nothing can be added to the

Q. S. of

Perry Couuty. opinions in these cases in support of the

Commonwealth v. Rhoads. points decided, nor need the other cases

Charge of the Court on indictnient for of like import be cited. In St. Bartholo

In St. Bartholo- riot and riotous assembly against the mew's Church v. Wood there was a pre- above named defendant and six others. tended waiver of inquisition, but it was

November Sessions, 1883. BARNETT, held that testimony was admissible to

P. J.-Gentlemen of the Jury: The deshow that in fact there had been

fendants in this case are charged in an waiver.

indictment containing three counts, first The third specification of error cannot with the offence of riot, in the second be sustained. As printed in the paper count with being guilty of a riotous asbook the objection to the witness, George sembly, and in the third with riotous deE. Zuver, materially differs from the bill struction of a private dwelling. of exception which shows that the objec

Blackstone defines an unlawful assemtion was to his competency to testify. He bly to be "when three or more do assemwas competent with respect to matters ble themselves together to do an unlawful that had occured after the death of his act, as to pull down enclosures, to defather, and if incompetent to prove events

stroy a warren or the game there in-and prior to said death, the objection should

part without doing it, or making any mohave been pointed to that period.

tion towards it." A riot (as defined by The defendant's first and second points him) is where three or more actually do should have been affirmed without the an unlawful act of violence, either with or added qualification. If Samuel Zuver's without a common cause or quarrel ; as if debt was paid; or a satisfactory arrange- they beat a man; or hunt and kill game ment made with him for its payment; or in another's park, chase, warren or liberty; if he approved and recommended the or do any other unlawful act with force conveyance of the property to Nancy and violence; or do a lawful act, as reZuver, he was not a person intended to moving a nuisance in a violent and tumulbe defrauded, and the conveyance was

tuous manner. Violence is defined by valid as against him. If the conveyance Webster to be "physical force, strength was void as to other creditors, and not as of action or motion." Bouvier's Law to himself, that fact could in no way Dictionary says it is the abuse of force," work to his advantage. As well might that force which is employed against comJoseph Zuver have attempted to avoid the mon rights, against the laws, and against conveyance as one of his creditors who public liberty. Holt, C. J., in delivering advised and approved the making of it. the opinion of the court in a certain case, None but a person intended by the parties *See Seiderhofer v. Bange, 1 YORK LEGAL RECORD to the conveyance, to be hindered, delay- 38, where the Court set aside a Sheriff's sale of property

which had been conveyed like the above, on petition of ed or defrauded, or one holding under

the purchaser.


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