Jas. G. Glessner, S. H. Forry and negligent in not maintaining guard rails Stewart, Niles & Neff, contra. at the sides of this bridge. It is imposMarch 26, 1894. LATIMER, P. J.-sible to see how they could have found Plaintiff's husband died from injuries re- otherwise, and the qualification of the deceived in falling over the unguarded end fendant's first point was right. of a bridge on one of the defendant's highways. The facts and circumstances attending the accident were not in the least in dispute, the defendant having adduced no testimony on that branch of the case. When the facts are undisputed, in such a case as this, the question of proximate cause is for the Court, not the jury; W. Mahanoy Twp. vs. Watson, 116 Pa. 334; Railway Co. vs. Frick, 117 Pa. 390; and the Court did not exceed its proper province in its charge on that subject. The defendant's 2d, 3d, 4th, 5th and 6th points could not have been affirmed with plicit instructions on the subject of proximate cause it should have asked for them. The road at the scene of the accident was about thirty feet wide. The bridge was not in the middle of the road but at the left side, as the deceased was travel-out error and if defendant desired more exing. It was about sixteen feet wide, about eight to twelve feet long from one abutment to the other, and about three The case was tried and the jury chargfeet high above the water of a small ed on all the questions of law involved, stream that crossed the road at that point. in accordance with the principles laid The sides of the bridge were entirely des- down in L. Macungie Twp. v. Merkhoftitute of guard rails or any barrier to fer, 71 Pa. 276; Newlin Twp. vs. Davis, prevent persons crossing the bridge from 77 Pa. 317; Hey v. Philadelphia, 81 Pa. falling over. But immediately after the 44; Burrell Twp. v. Wicapher, 117 Pa. accident the defendant supervisors caus- 353; Plymouth Twp. v. Gruver, 125 Pa. ed guard rails to be placed on each side. 24; Herr v. Lebanon, 149 Pa. 222. The The deceased was riding in a close car- language of Mr. Justice Unilliams in the riage, called a rockaway, drawn by one latter case seems to fit precisely the facts horse driven by Jacob Welcomer, and of this case: "If any injury were suffered when they had gotten on the bridge, and by reason of the absence of the barrier, were about two or three feet from the of which such absence was the proximate right hand side of it, a horse and buggy or efficient cause, the municipality would containing a young man named Stam- be liable. If, therefore, in the ordinary baugh and his sister traveling in the same use of the street one had been crowded direction, came upon the bridge behind Worley and Welcomer. Welcomer testified that the front wheel of the buggy struck the front wheel of the rockaway. Stambaugh and his sister thought there was no collision, having observed none. Welcomer's horse scared and shied and The accident which resulted in Edward the rockaway fell and was pushed over Worley's death occurred in the usual the unguarded side of the bridge, turn- and ordinary use of the highway, from ing nearly bottom up. Worley fell on his an ordinary usual cause. which should head and shoulder, fractured one of the have been guarded against. No extracervical vertebræ, and died the next ordinary and unforeseen event produced morning. Welcomer testified, "the young it or concurred with defendant's negliman drove in behind and caught my gence in producing it, as in Jackson Twp. rockaway, the wheel and throwed us v. Wagner, 127 Pa. 185; and in Shaffer right over." And again, "you see the horse scared too when it struck and it went over swift. And in answer to the question, "The horse got off the bridge after your carriage went over?" he said, "yes, the horse was just over the planks, throwed the carriage, fell right in the middle of the stream.' The jury found that the defendant was over the bank by the volume of travel, the sudden shying of his horse, or the accumulation of ice in the roadway, the absence of the barrier might justify a recovery, if the plaintiff was not guilty of contributory negligence." v. Jackson Twp. 150 Pa. 145; and there was no question of contributory negligence, as in Philip v. Chartress Twp. 122 Pa. 601, and Herr v. Lebanon, 149 Pa. 222, and there is nothing laid down in either of those cases to prevent plaintiff's recovery in this. There is no good reason for granting a new trial. The rule for new trial discharged. wife is traced to the husband's hands, the law presumes she loaned it to him. In that case her money had been given to the husband twenty-six years before his death, during which long interval she never claimed either principal or interest. Delaware Co. Yet it was held, reversing the court be ORPHANS' COURT. McGarvey's Estate. Husband and wife-Will. A married woman, having a separate bank account, drew money at various times from her account and deposited it to the credit of herself and husband, "either to draw." After the first advance her husband, by a codicil to his will, acknowledged that the transaction was a loan. HELD, that the presumption is that the subsequent advances, made after the date of the codicil, were also loans and not gifts. The burden is on the husband's heirs to prove that such advances are gifts. Sur exceptions to auditor's report. O. B. Dickinson for the exceptions. low, that it was a loan, and that the burden was on the husband's heirs to prove it was a gift, failing in which the law presumed it was a loan. The probability is that if the husband's will had been inade after the receipt of the balance of the money, he would have provided for its repayment just as he did the one hundred dollars borrowed before the making of the codicil. We are of the opinion the Auditor has fallen into an error in holding the burden was upon the widow. He should have cast the burden on the other side. Exceptions sustained and report recommitted for correction in accordance with this opinion. QUARTER SESSIONS. Commonwealth v. Davis. Chester Co. Criminal law-Rape-Character. The object of the legislature being to protect the innocence of youth, it is evidence of real character, as distinguished from supposed qualities or reputation, which should be admitted to determine whether a woman child was or was not of good repute. December 4, 1893. CLAYTON, P. J.— The Auditor finds that Mrs. McGarvey, the widow of the decedent, at the time of her marriage, September 21, 1882, then Q. S. of late in life, had on deposit five hundred dollars undoubtedly of her own money. She drew a check for one hundred dullars, which her husband, by a codicil to his will admits was a loan to him. He gave her nothing to show for it, and without the acknowledgment in the will she would have had no evidence of the loan. This loan was made about August 17, 1883. The codicil to the will was dated in 1886. She personally drew her money from the bank and deposited it in the name of herself and husband, "either to draw." June 29, 1887, the husband drew by check one hundred dollars. October 25, 1888, fifty dollars; May 9, 1889, fifty dollars; December 1, 1890, fifty dollars. The defendant was indicted for felonious rape, under the Act of May 19, 1887, P. L. 128. It was alleged on the part of the Commonwealth that the "woman child" in question was under sixteen years of age, while on the part of the defendant it was claimed she was not of good repute, and that carnal knowledge was with her consent. No question was made as to the illicit intercourse, and the testimony indicated her consent. Thomas W. Pierce and William S. It will be observed that all of these checks were drawn after the date of the E. D. Bingham, District Attorney, and decedent's will. It would seem reason-Wilmer W. MacElree for Commonwealth. able that if the first one hundred dollars he received of his wife's money was a Harris for defendant. loan, all of it was. The Auditor holds that the presumption is that the money drawn by the decedent was a gift and not a loan, and that the burden is upon her to prove they were loans which, he holds, she has not done to his satisfaction. Wormley's Appeal, 137 Pa. 101, clearly declares that wherever the money of the Rape. October 13, 1893. WADDELL, P. J.— Admitted evidence of the conduct of the prosecutrix with the defendant on the occasion of the alleged rape, and at other times, and of her statements and conversation, as bearing on the question of her good repute. The court also instructed the jury that the word "repute," used in the proviso of the Act of May 19th, 1887, must be understood as meaning character, as distinguished from reputation, saying: The legislature meant to allow the defendant to show what the woman really was. This would establish her character. This character might not be known to the public, and hence her reputation might be one thing and her actual character another. The object of the legislature was to protect the innocence of youth, but if that innocence was already gone, there was no occasion to protect it. made until September 21, 1893. It is argued that the view must be made before the term to which the order is returnable begins, and the cases of Road in East Nottingham, I Ch. Co. Rep. 237, and Road in Newlin, 2 Ch. Co. Rep. 373, are cited in support of this proposition. In Metzler's Road, 62 Pa. 151, Agnew, J., said: "Now it is very clear that when no view has been had on the ground until after the meeting of the court on the return day of the order, and where all persons interested, therefore, had a right to conclude that the order had been abandoned, it furnishes no notice whatever to the persons interested." If the report showed that there was personal notice to the land owner of the view there might be room for argument that the principle upon which these decisions were made would not be applicable. But the report does not show such notice, and in the case of a private road this is essential. "In the recent case of the private road in Plumcreek Township, 110 Pa. 544, we endeavored to point out the distinction between private and public roads; that as Luzerne Co. to the latter there is a taking of private property for private use; that a condemnation of this kind can be justified only on the plea of strict necessity, and that The qualities impressed by nature or habit on a person which distinguish him from others constitute his real character, while the qualities he is supposed to possess constitute his established character or reputation; Anderson's Dict. 165. It was the former qualities the legislature meant should be given in evidence to determine whether the "woman child" was or was not of good repute. Verdict, not guilty. Q. S. of In the case of a private road the court may, at a subsequent term, correct a mistake in fix-personal notice to the owner of the land, ing the width, allowing another term to elapse before confirming the report absolutely. There must be personal notice to the land owners of the view, and it is not sufficient to state in the report that application was made to them for a release of damages. A view made after the beginning of the term to which the order was returnable, without personal notice to the land owner, is bad. Exceptions to report of viewers. T. R. Martin for road. J. P. Hand, contra. over which it is proposed to lay the road, is an imperative requisite without which such taking cannot be permitted. So in like manner, must he have an opportunity of being heard on the assessment of damages, and it is not sufficient to state in the report that application was made to him for a release thereof; Private Road in Redstone, 112 Pa. 183; Harburgh's Road, 8 C. C. 671. (The italics are ours.) In this case the viewers January 8, 1894. RICE, P. J.-It has gave the notice required in views of pubbeen held by this court, in the case of a lic roads, which under the decisions above private road, the court may at a subse-cited, was not sufficient. Under no conquent term, correct a mistake in fixing struction of the law can a view of a prithe width, allowing another term to elapse before confirming the report absolutely. In Re Private Road in Kingston, 5 Kulp 235. This case is exactly like the case cited, in this particular, and if the mistake in fixing the width of the road were the only irregularity in the proceedings we think it might be rectified. The order to view was returnable at September sessions, which began on September 11, 1893, but the view was not vate road, made after the beginning of the term to which the order is returnable, without personal notice to the land owner be sustained. As the viewers followed the direction of the order issued to them in giving notice they had a right to suppose that they had done all the law required. To prevent this mistake in future cases it would be well to change the form of the order. The exceptions are sustained and the report set aside. Abstracts of Recent Decisions. (Cases not otherwise designated are Supreme Court cases.) Affidavit of defence-Sufficiency of. When the statement of claim, in an action by an insurance company to collect the amount of assessments upon certain policies, sets forth in detail the particula1 claims for which the assessments were made, an affidavit of defence which avers that the specified claims for which the assessments were made have been paid, and that at the time the assessments were made there was no such indebtedness by the company, nor is there now, is sufficient.-Hoffman v. Whelan, (Delaware C. P.) 5 Delaware Co. Reports 445. gess in office at the time will hold over. Sharon Hill Election, (Delaware C. P.) 5 Delaware County Reports 433. Execution Individual Partnership debts.-Partnership property can be levied upon and sold under an execution against an individual member of the firm if the execution be for a firm debt. It is competent for a creditor to show that an execution against individuals is for a partnership debt, and that the debtors are members of a partnership. The levy was on a judgment signed by three members of a firm, but not in the firm's name. The second levy was on a judgment against the firm. The property levied was firm property, and both judgments were for debts of the firm. HELD, that the first levy had priority. In re McHose Fund, (Montgomery C. P.) 10 Montgomery Co. Law Reporter 47. process is served outside of the county, the record should show: (1) that the defendant is a foreign insurance company; (2) that the summons issued to a constable of the county in which the justice Commission to take testimony-Wher. improperly returned-Presumption of le- Insolvent law-Negligence of physigality.-A commission to take deposi- cian-Not "actual force."-A physician tions was sent to Illinois, and three who was arrested on a capias on a judg months after they purported to have been ment for damages for the negligent use taken, the depositions were found among of an electric battery on a patient, may the record papers on file. It could not be be discharged under the insolvent law discovered how or when they got there, without undergoing sixty days' imprisonand they were not marked filed or enter- ment.-Drumm v. MacTaggart, (Lancased as filed on the docket. They were ter C. P.) 11 Lancaster Law Review 102. not returned closed up with the seal of Justice of the Peace-Constable's depthe commissioner, as the commission di-uty-Action against foreign life insurrected, and notice was not given of their ance company.-In order to sustain the receipt by the Prothonotary, as required judgment of a justice in a suit against a by the rules of court. HELD, that in the foreign insurance company where the absence of any memoranda of their receipt it would not be presumed that the deposition had been legally returned and received, and they could not be admitted in evidence.-Ulrich v. Getz, (Lancaster C. P.) 11 Lancaster Law Review 142. resides; (3) that such constable depuElection law-Defective marking of tized, by writing endorsed or attached to ballots-The vote for Burgess.-Where the summons, a constable of the county the voter has made his cross at the left of where the state agent of the company rea candidate's name, instead of the right, sides, to serve the process on him; (4) his intention is sufficiently clear and the that the person upon whom the process ballot should be counted, especially if the was served was the duly designated state printed ballot does not show a square at the right of the name as the law requires. agent to receive service of process, and Since the passage of the Act of June 10, this should appear by the return. Where 1893, all election returns must be made special deputation is incomplete in not to the Court of Common Pleas, which showing that it was made by a constable therefore has jurisdiction to correct palp- of the proper county, and the record does able errors or fraud in the election re- not show that he appeared before the justurns for township and borough officers. tice to make his return or identify his ofWhen the returns of an election for Bur- ficial character, the service is irregular, gess show a tie vote, neither candidate and on certiorari, the judgment being by has any right to the office, but the Bur-default, the proceedings will be reversed. Metropolitan Life Insurance Co. v. Cook, 1885, and 4 May, 1889, judgments ob(Luzerne C. P.) 7 Kulp 257. tained before an alderman or justice of Practice Appearance - Unauthorized. A general and unqualified appearance by counsel entered on the proper docket, is a waiver of all defects or irregularities affecting the notice, process or service, necessary to obtain jurisdiction over the defendant. The entry of an appearance for a defendant carries with it a presumption that it was entered by authority. This presumption may be rebutted by clear proof to the contrary. Where a defendant denies the authority tained-When will not be set aside.-H. Transfer of mortgage fraudulently obof counsel to enter an appearance and signed and executed a written transfer plea, he should act promptly in the pre- to D., of a mortgage she held against A. mises, so as to prevent injury to the This transfer had been sent by the attorrights of the plaintiff. This is especially ney who had procured the loan for her true when parties have died, or there has been a loss of evidence or change of cir- to a justice, with instructions to have her execute it. The transfer was entered of cumstances during the interval.-Kemmerer v. Markle & Co., (Luzerne C. P.) the mortgage in good faith to the said atrecord, and D. paid over the amount of 7 Kulp 262. torney, who, however did not turn it over Railroad-Eminent domain-Right to to H. H. never received any consideratake dwelling house.-Any railroad com- tion for the transfer, did not know that pany, chartered by special Act of Assem- she had signed a transfer, and did not bly prior to the Act of February 19, 1849, authorize the said attorney to make any may, if not prohibited by its charter, take transfer or receive any of the money. a dwelling house for the purpose of wid- HELD, that the rule that of two innocent ening and straightening its track, in the parties the one whose act occasioned the exercise of the right of eminent domain loss must suffer applied here, and the given by the Act of March 17, 1869. The transfer would not be set aside.-Himes' Act of 1869 must be treated as supple-Petition, (Lancaster C. P.) 11 Lancaster mental to the charter of such railroad Law Review 135. company, and should be read into it without the limitation imposed by Section 10 Written contract for sale of tobaccoof the Act of 1849. Whether the Act of When modified by subsequent agreement. 1869 confers such power upon a railroad-The defendant bought a lot of tobacco company incorporated after the passage from the plaintiff under a written conof the Act of 1849, not decided, but it tract, but on the day of delivery refused would seem that it does.-Marlor v. P., W. & B. R. R. Co., (Delaware C. P.) 5 Delaware County Reports 425. to pay the contract price, alleging defects in the tobacco, and after a dispute between the parties, offered to give the plaintiff a check for two-thirds of the Real Estate-Partition wall-Right of contract price. The plaintiff, after some use.—A former owner of two adjoining hesitation, told the defendant to make houses conveyed one, retaining the other, out the check, and accepted it without to which he subsequently built an addi- further protest or qualification. HELD, tion, using the wall between the premises. on a suit for the balance of the contract HELD, such use was permissible without compensation, even in the absence of a reservation contained in the deed as to the division wall.-Giess v. Schadt, (Lehigh C. P.) 3 Lackawanna Jurist 217. Transcripts-Alderman - Attachment execution. Under the Acts of 24 June, price, that the offer and acceptance of the check was a mutual rescission of the written contract and the making of a new one, whatever may have been the plaintiff's secret intention and meaning, and a non-suit was properly entered.-Smith v. Cohen & Co., (Lancaster C. P.) II Lancaster Law Review 103. |