what their report shall contain; and, amongst others that they shall state particularly "whether the road desired be necessary for a public or private road."That seems to be the only provision in the Act to determine its character as a public road. That requirement the viewers in this case have complied with. Their report specifically states that they "judge the same necessary for a public road :" 17 S. & R. 388. The report and the draft annexed both make the termini of the proposed road reasonably certain, and seem to be in com pliance with the road law, where roads for public use are petitioned for in every particular. In the opinion of the court the first and 2d exceptions, first above recited, as well as the five remaining exceptions filed, must all be dismissed and which is now accordingly done. for a rule to strike of the judgment for reasons appearing of record—the reasons being that the plaintiff having given notice to choose abitrators had removed the cause out of the jurisdiction of the Court, and by his failure to have the notice stricken off in the prothonotary's office the judgment was irregular and void. The question now is, shall this be granted? Under the 4th rule of Court, when a rule to choose arbitrators has been entered, and the day to choose arbitrators has gone by without a choice, the rule may be stricken off at the instance of either party and at the costs of the party entering the rule. In Camp v. Bank of Oswego, 10 Watts 133, it is decided that after a rule to arbitrate has been entered, a judgment by default can be rendered without striking off the rule. The entry of such a rule does not take the cause out of court nor deprive the court of its jurisdiction. The court say: "If no step has been taken except to enter the rule, and the time has gone by when the arbitrators were to be chosen, there is nothing to prevent either party from treating it as a nullity, as it appears on the record itself, that the attempt to arbitrate has proven abortive. See also Taggart v. Fox, 1 Grant 192— Hoffman v. Locke, 7 Harris 58. By the act of 14 May, 1874, Pamp. Laws, p. 159, the defendant is not permitted to arbitrate until a sufficient affi davit of defence is filed. WALKER, J. On the 1st Oct., 1875, the writ in this case was issued, and a blank notice to choose arbitrators in October was placed in the sheriff's hands, with authority to fill up the blank at the time of the service of the writ upon the defendant. This the sheriff neglected to do. On 17 January, 1876, the plaintiff having first filed an affidavit of his claim and a In the present case the defendant candeclaration, took judgment for $113.79, not complain that he has been mislead by for want of an affidavit of defense. On the action of the plaintiff, in entering the the same day the defendant's counsel ask- rule, for the court gave him one week to ed and obtained from the court one week file his affidavit, which he refused to do. in which to file an affidavit of defense, The judgment is therefore regular and as and, if this was sufficient, the judgment the opening of judgments is discretionary was to be opened. with the court, this rule should be denied as there is no equity in the application. At the expiration of this time the defendant, without filing an affidavit, asked Rule refused. Ottemiller vs. New Era Life Association, No.2. Insurance-Forfeiture of Policy-Nonpayment of Annual Dues. In a suit on a policy of insurance in a mutual company, plaintiff offered to prove, as a reason for the non-payment of annual dues tha he failed to receive notice that such dues were to be paid, that he had been told by the agents of the company that he would receive such notice.and that it was the custom of the company to send such notice. The Court rejected such offer and the plaintiff was nonsuited. On a motion to take off the non-suit. HELD, That such offer was improper and the non-suit must be sustained. The plaintiff knew, or was bound to know, when the annual dues were payable, and the usage of the company, and his reliance of receiving such notice, are no excuse for non-payment. The declarations made by the agents could not add to the original contract a condition to the effect that if he did not get notice he need not pay. A Mutual Life Insurance company is under no obligation to give notice to its members of the time of payment of premiums or annual dues. Rule to take off compulsory non-suit.* On the trial of the case plaintiff offered the policy of insurance in evidence, proved the death of the insured, and offered to prove that one of the conditions of the policy, viz: the payment of annual dues, was not fulfilled, because plaintiff had been told that he would receive notice of the time of payment of such dues, that it was the custom of the defendant company to send such notices, and that he never received the same. The Court rejected the offer and entered a compulsory non-suit. This rule was then taken, on the ground that the evidence offered was sufficient to excuse the non-payment of the annual dues. E.W.Spangler, W.C.Chapman, for rule. Wm. Hay, Wm. Henry Smith, contra. January 22, 1883. GIBSON, A. L. J.The motion to take off the judgment of non-suit in this case is based upon this reason, to wit: that the facts offered to be proved by the plaintiff on the trial to excuse the non-payment of the annual dues falling due August 31, 1879, were sufficient in law, to avoid the forfeiture of the certificate of membership. The plaintiff offered to prove, that at the time the policy was assigned to him, he paid an assessment of twelve dollars and a half then due on the policy, to an agent of the defendant, and also offered to pay *See Ottemiller v. New Era Life Association, 2 YORK LEGAL RECORD 133, where a motion was made for a change of venue in this case. the annual dues of three dollars, payable on the 31st of August thereafter, and that the agent said he could not receive that as it was not yet due, and that the plaintiff would get notice from the company when to pay the annual dues and everything he would have to pay. That shortly afterwards, a general agent of the company, who exhibited his credentials as such, came and delivered to the plaintiff, the policy with the assignment duly approved, and the plaintiff asked this agent, about the payments he would have to make on the policy, who replied that he would get notice from the company when to pay the annual dues and everything he would have to pay. That he relied upon these representations of the agents of the company. That he never got notice to pay the annual dues, and did not know they were due until after the death of the insured, when he was notified that the policy was forfeited by reason of the non-payment of the annual dues. That after the death of the insured and before the commencement of this action, the plaintiff offered to pay to the defendant the annual dues, and the defendant refused to receive them. This was to be followed by evidence, that it has been the custom of the defendant and like companies, to give notice to holders of policies of the time such dues became payable. The certificate of membership or policy, is dated the 31st of August, 1878, that of the assignment, June 19th, 1879, and of the approval of the company, July 1st, 1879. The party insured died on the 17th of October, 1879. The annual dues were not paid or offered to be paid up to the time of his death. I do not think that the declaration of the agents can have any greater effect than the custom to give notice has, on the question. The plaintiff knew, or was bound to know when the annual dues were payable, and the usage of the company, and his reliance upon receiving such notice, are no excuse for non-payment; Thompson v. Insurance Co., 104 U. S. 252. The declarations were evidently made with no view of binding the company. They were made in reply, in the one case, to the plaintiff's offer to pay his dues in advance, and the remark was a natural one on his three months before they were due, and declining to receive the dues then, two or the assignment of the policy not yet approved. In the other case, the declarations were in reply to a question by the The plaintiff, about the payments he would have to make, not, whether he would get notice or not, as stated in the purpose of one of the offers. These inquiries show that the plaintiff knew he had to pay dues on the policy he had purchased. agents could not, by their declarations, add to the original contract, a condition, to the effect, that if he did not get notice he need not pay. The contract of insurance, with all its conditions, had long since been entered into, and the assignment of it to the plaintiff had already been made, and had the approval of the company in the last instance, and the declarations were in no way an inducement to him to buy the policy. There was nothing upon which the plaintiff had a right to rely as a ground that the forfeiture would not be exacted in case of non-payment at the forfeiture, much less that it is a waiver of the condition in the policy, or that he had a just and reasonable ground to infer that the forfeiture would not be exacted. The following provisions, among others, are in the certificate: "Conditions which shall release this association from all liability; any omission or neglect to pay the annual dues on or before the time stipulated in this certificate." The stipulation in the certificate is "that Henry Lentz, Jr., has covenanted and agreed to pay to said association annually the sum of three dollars on the 31st day of August each and every year commencing on the 31st day of August, 1878, and continuing so long as the said Henry Lentz shall live." Rule discharged. Marshall v. Hale. the day. There was no notice required Judgment-Opening of-Evidence of in because of the uncertainty of the amount to be paid, by reason of dividends to be credited on the premium, as in Phoenix Mutual v. Doster, 3 YORK LEGAL RECORD or dividends in the hands of the company as in Girard Ins. Co. v. Mutual Co., 1 Out. 15. But in the policy itself a sum certain and a day of payment were fixed, and there was a condition of forfeiture in case of non-payment. With this duty incumbent upon him, whether the company gave notice or not, and whether the agents said he would receive notice or not, the conduct of the company in failing to give notice and in forfeiting other policies, can have no relevancy to the question of the plaintiff's obligation in this case. And if the practice of the company, had been as intimated in one of the offers, to give notice only to members insured, and not to beneficaries, or their assignees, it accounts for this plaintiff, an assignee not receiving notice; or if the declarations of the general agent to the plaintiff, can be construed to be a misrepresentation to him, still he had no right to rely upon it. It is the custom of these mutual life insurance companies to give notice to their members of the time of payment of premiums or annual dues. But the law is declared to be that they are under no obligation to give such notice; Thompson v. Ins. Co. supra; Girard Mut. v. Mutual, supra. I cannot say that an agent telling a party that he will get such a notice, and the company fails to give it, that the holder of the policy is misled or lulled to sleep, and, that the company is thereby estopped from setting up debtedness. The note with warrant of attorney to confess judgment, and upon which judgment was entered against the defendant, was signed by him when he was in a drunken spree, and on a petition to open such judgment he testified that he had no knowledge of signing such note. The plaintiff was unable to show clearly the defendant's indebtedness to him, to the amount of the judgment. HELD, to be sufficient cause to send the case to a jury. Rule to open judgment, &c. The facts are given in the Court's opinion. W. C. Chapman for rule. January 22, 1883. GIBSON, A. L. J.There appears to be up in this case sufficient ground for the submission to a jury of the question of indebtedness on the part of the defendant to the plaintiff. The defendant denies in his affidavit and deposition, all knowledge of the judgment note on which this judgment is entered, and of his having ever signed such a note. The payee and legal plaintiff, though testifying to the fact of having seen the defendant sign the judgment note, does not give that satisfactory statement as to the indebtedness of the defendant to him, which ought to be required of him, and on allegation, under oath, on the part of the defendant, in a judgment entered on a warrant of attorney, of want of indebtedness. The intercourse between the parties, as shown by the depositions, the unfortunate habits of inebriety shown on the part of the defendant, and all the circumstances which appear surrounding the transaction, require at the hands of the plaintiff a reason for the execution of the judgment note beyond any suspicion of imposition or fraud. It appears that the defendant left home on the day of the date of the judgment note and was about the hotel of the plaintiff on a drunken spree for three or four days, and returned home in a state which resulted in an attack of delirium tremens. Metzgar v. Shetter. Certiorari-Justice's record-Plea of set tlement-Time returnable-Variance. The Justice's summons was "being in plea of settlement shown in the record not being like actions against baliffs, of book account." HELD, That the claims and credits receivers, partners or trustees, the exception to the sum mons must be dismissed. The summons was made returnable at eleven o'clock, instead of between certain hours. HELD, That the Act of 26 April, 1855, while it permitted the justice to make the summons returnable between certain hours did not make it obligatory upon him to do so, and if he did not, it is not fatal to the proceedings. The summons was plea of settlement on book account" and the docket read "summons in debt on plea of settlement on book account." HELD, To be an immaterial va Certiorari to F. R. Prowell, Esq. The grounds upon which the exceptions January 22, 1883. GIBSON, A. L.J.The exceptions to this certiorari are to the summons issued before the justice: First. That "being in plea of settlement of book account, the justice had no jurisdiction therein.' This is based upon the erroneous idea that the suit sound in an action of account render. But a large portion of the jurisdiction of justices of the peace would be ousted, if just such claims and credits as this record shows, were obnoxious to the charge of being like actions against baliffs, receivers, partners or trustees, and subject to the perplexities of account render or a bill in equity. The exception is dismissed. One of the items given by the plaintiff as part consideration for the judgment note, was the price of a watch purchased when they were together, the defendant, being in liquor at the time, and sold afterwards by the plaintiff to the defendant at an exorbitant profit. The circumstance of the present of a gold watch and chain costing fifty dollars, by a man in the defend-riance. ant's apparent position in life, to the plaintiff's wife, accompanied by the reckless and senseless behavior of the defendant on the occasion, indicative of the phrensy of intoxication; the watch purchased having been paid for by the note of the defendant to the jeweler, followed by the subsequent return of the watch by the legal plaintiff and the redemption thereby of the note by him on which he was surety, and suit thereon instituted by the said plaintiff against the defendant, though disavowed as a part of the consideration of the judgment in question, nevertheless gives rise to the suspicion of advantage being taken, at or about the time of the execution of the judgment note, of a man rendered incapable of discretion by being addicted to the use of intoxicating liquors. If there is an actual indebtedness on the part of the defendant to the plaintiff of the amount of the judgment, and such was shown with reasonable certainty by the depositions, the question whether or not the defendant was in such a state of intoxication as to impair his intellect, at the time of signing the judgment note, would be the only ground upon which this application could be based; Noel v. Karper, 3 P. F. S. 97. But where there is an absence of proof, by the ordinary methods of any consideration, and beyond the item above mentioned, only a general statement by the legal plaintiff, that money was loaned by him to the defendant, the aggregate of the sums stated not equalling the amount of the judgment, together with an indifference manifested by him as to books being produced containing charges of the same, which indeed are not positively stated to exist, there is enough appearing in the case to base a presumption unfavorable to the plaintiff's claim, and which requires such an investigation of the facts as only a trial on the merits of the claim will afford. Rule made absolute. Second. "That the proceedings are irregular in making the summons returnable at 11 o'clock instead of between certain hours." The third section of the act of 26 April, 1855, P. L. 304: Bright. Purd. 851, pl. 44, provides "that all summons issued by any alderman or justice of the peace, may designate the hours of the day between which the same shall be returnable; and if either of the parties fail to appear during the time so designated, it shall be lawful for the said alderman or justice of the peace to render judgment, or otherwise determine the same, as is provided by law." In the case of Vought v. Sober, 23 P. F. S. 49, an hour was fixed for the return of the summons, and on adjournment to another day, and an hour fixed. In default of appearance the plaintiff was non-suited by the justice. This was affirmed by the Supreme Court. No objection, however, was made at any stage of the proceedings. In the case of Lindsay v. Sweeny, 6 Phil. 309, the proceedings before the justice were set aside, because of the practice in Philadelphia, that where an alderman enters judgment by default, the hour should be named. But such has not been the practice here. Judge Brewster says in his opinion, in that case, that he should be disposed to sustain the judgment, because a reasonable presumption should be allowed in favor of regularity of the proceedings before magistrates, and that the act of assembly provides. 22 Sec. of Act of March 20, 1810, ¦ Bright. Purd. 412, pl. 23, that the proceedings shall not be set aside for want of formality &c., if it shall appear &c., that judgment was rendered on the day fixed to the precept, "making no allusion to the hour.' The act in question provides that the justice may designate the hours of the day between which the same shall be returnable, and if either of the parties fail to ap: pear within the time so designated it shall be lawful for the justice to render judgment. But it does not make it obligatory upon him to do so. And if he does not I do not think it fatal to the proceedings. Third. That the docket of the justice shows a different cause of action from that mentioned in the summons. On the dock it is "summons in debt on plea of settlement on book account," and the summons leaves out the word "debt." This is immaterial in a suit before a justice. Proceedings affirmed. Shetter v. Metzgar. Certiorari-Former suit between same parties. M. brought suit against S. before a Justice of the Peace and obtained judgment by default. Afterward S. brought suit against M. before another Justice. On the hearing bar to plaintiff's recovery in the present case. The evidence was rejected, and judgment entered against the defendant. 'HELD, on certiorari, that the neglect of the present plaintiff to bring in his claim as set-off in the first suit was a bar to any subsequent action, and the proceedings must be set aside." M. offered in evidence the record of the former suit, as a Certiorari to Wm. E. Patterson, Esq. Metzgar brought suit against Reuben Shetter before Esquire Prowell in a "plea of settlement on book account," and obtained judgment by default, defendant relying on supposed defects in the summons as being sufficient to oust the Justice's jurisdiction. See Metzgar v. Shetter, supra. Afterwards Shetter sued Metzgar before Esquire Patterson, and upon the trial Metzgar offered in evidence the record of the former suit as a bar to the latter. The Justice refused to consider the record as a bar, holding the former Justice's record to be defective, and therefore worthless for the purpose offered, and gave judgment for the plaintiff. This certiorari was taken, based upon the rejection of the above offer. E. W. Spangler, for certiorari. D. K. Trimmer, contra. January 22, 1883. GIBSON, A. L. J.The exceptions on this certiorari are based upon the ground that in a suit between the same parties before F. R. Prowell, Esq., a justice of the peace, of York County, on the 7th of August, 1882, summons was served on the defendant in that suit, who is the plaintiff in this, returnable on the 12th day of August, 1882, and that on the hearing before said justice the defendant did not present his claim as set off according to the provisions of the act of Assembly, and hence was barred from the further prosecution of his claim. The act of 20 March, 1810, Sec. 7 Bright. Purd. 854, pl. 54, provides: "A defendant who shall neglect or refuse in any case to set off his demand, whether founded upon bond note, penal, or single bill, writing obligatory, book account or damages on assumption, against a plain tiff which shall not exceed the sum of one hundred dollars, before a justice of barred from recovering against the party the peace, shall be and is hereby forever plaintiff by any after suit." In the case of Groff v. Ressler, 3 Casey 71, where two suits, under similar circumstances, were carried on without objection, both proceedings were held valid. But here an objection was made at the hearing. A paper was filed on behalf of the defendant, protesting against the justice entertaining the suit, followed, after judgment by a certiorari, on that exception. Judge King in Slyhoof v. Fitcraft, I Ash. 171, explains the principle as applicable to such a case. That where there exists two tribunals possessing concurrent and complete jurisdiction, the jurisdiction of that tribunal is exclusive which has first possession of the subject matter of the controversy. This suit was brought on the 7th of August, for hearing on the 12th of the month, yet a summons was issued before another justice on the 11th of August, pending the return of the first summons, by the defendaut in the first suit. This is precisely the case the act of assembly was passed to remedy. Proceedings set aside. |