are not the books of a party, but are the books of the court accessible to everybody interested in the entries made therein. Union Trust Co. v. Illinois, etc., Co., 117 U. S.

The orator's exception 8 delates to a finding by the master that certain books introduced by the defendant were ancient documents, and that the entries therein were

who signed the income and extension bonds. | Vt. 593, 598, 608, 613. Receivership books Some matters in question he testified to as of his own knowledge, among them the fact that $17,000 of the income and extension honds were pledged to Hoyt & McKinney, and his testimony and the books taken together | 434, 436, 6 Sup. Ct. 809, 29 L. Ed. 963. tended to sustain the findings of the master [14] The rule with regard to the private with regard to the pledging of these bonds, books of a party ought not, to say the least, the payment of the debt for which they were | to be extended (2 Wigmore, Ev. 1531, 1556), pledged as security, and the fact of their non- and certainly, in the case of the books of rereturn notwithstanding such payment. It is ceivers, the absence of an entry ought to be claimed that much of Mr. Smith's testimony given such probative force as from an exwas hearsay and incompetent. But it does amination of the books it appears that it not so appear. His examination and cross- ought to have. Where one is charged with examination do not afford a basis for the a duty of an official character, as to make enclaim now made. It is claimed that the tries of transactions on receiver's books, books received were inadmissible under the there is usually an inference more or less rule that excludes mere memoranda or di- strong that he has done his duty and made aries as independent evidence. But the such entries or performed such things as his books are in their general character account duty required him to make and perform. books. The master seems to have made a proper and discriminating use of the books. Being requested by the orator to state in the report that certain findings were based in whole or in part on testimony introduced sub-made in the due and regular course of busiject to exception by the orator, the master ness by persons now dead. The orator does refused to comply with the request as worded, not dispute that such persons were dead bebut reported that the findings referred to fore the time of the hearing. There was, as were based upon the testimony of Edward we have seen, enough to warrant a finding Curtis Smith and the original entries in the that the entries were made in the due and books of account made in the regular course regular course of the business of the receivof business by persons now dead, and reThe orator does not question the finding ceived in connection with Mr. Smith's testi- that the books were to be regarded as ancient mony. No error appears in the matter of documents. But he says that the doctrine of the use of the books. Bacon v. Vaughan, 34 ancient documents relates only to the auVt. 73; State v. Phair, 48 Vt. 366; Greene thentication of such documents. We assume v. Mill's Estate, 60 Vt. 440, 14 Atl. 5; Gifford this to be so; but it does not appear that the v. Thomas' Estate, 62 Vt. 34, 36, 19 Atl. 1088; | master treated it otherwise, or indeed that Gleason v. Kinney's Adm'r, 65 Vt. 560, 27 | he applied it to that extent. The authenticaAtl. 208; In re Diggin's Estate, 68 Vt. 198, tion seems to have been by the testimony of 34 Atl. 696; Welch v. Ricker, 69 Vt. 239, E. C. Smith, who testified to a knowledge of 242, 39 Atl. 200; Post v. Kenerson, 72 Vt. the handwriting of the men who kept the 341, 47 Atl. 1072, 52 L. R. A. 552, 82 Am. St. books and made the entries, and who further Rep. 948; Coolidge v. Taylor, 85 Vt. 39, 80 testified to the course of business; he having Atl. 1038; Osborne v. Grand Trunk Ry. Co., apparently had sufficient opportunity, inter87 Vt. 104, 88 Atl. 512; Griffin v. Boston & est, and knowledge to enable him to do so. Maine, 87 Vt. 278, 292. 89 Atl. 220.

[13] The orator in his brief says that, as to one of the books, it was relied on not so much for what it contains as for what it does not contain, and claims briefly that it was incompetent for the purpose of showing what it does not contain. The rule that a party's books are not evidence in his favor except as to what they show affirmatively has been in this state cautiously acted upon with a recognition that it has exceptions. Scott v. Bailey, 73 Vt. 49, 51, 50 Atl. 557; Cross v. Willard. 46 Vt. 73; Mattocks v. Lyman, 18 Vt. 78, 46 Am. Dec. 138; Missisquoi Bank v. Evarts, 45 Vt. 293. But the books of a receiver are not the books of a party, for the receiver is the arm or instrument of the court. And the receivers whose books are in question sustained such a character, and it was finally directly decided that their acts were the acts of the court of chancery.

ers.

[15, 16] The orator's tenth exception was to the refusal of the master to comply with four certain requests so far as they were not complied with. The orator's eleventh and last request was for errors, not in any way indicated, manifest on the face of the report. These two exceptions are altogether too vague. The orator does not argue them. He says in his brief that he does not waive any of his exceptions; but he does in fact waive these by not briefing them.

[17] As a part of the final decree the defendants' demurrer was overruled. This had already been done, and, although the benefit of the demurrer was reserved until the final hearing, that action did not formally reinstate the demurrer, but only reserved to the defendant the right thereafter to raise and insist upon all the questions made under the demurrer. In such circumstances the final decree is upon the whole case as finally

we note in the interest of good practice, to BROWN, J. Shortly after 7 o'clock in the consider the demurrer separately and over-evening of September 4, 1912, the appellant, rule it again. See Savings Bank v. Capital Savings Bank, 77 Vt. 123, 59 Atl. 197, 107 Am. St. Rep. 754.

while waiting for a trolley car to go to his home, was sitting on a wooden wing or approach to a public bridge which crossed a canal in Durham township, Bucks county. public road north of the approach runs near

A

The matter of the cross-bill so far as established entitled the complainant therein, the defendant against the original bill, toly parallel to the canal. At the bridge it affirmative relief against the assertion of the claim we have considered; but the prayer goes too far, particularly in asking relief against any and all claims of the orator in the original bill. What other claims he may have we are, of course, unable to tell.

The pro forma decree is reversed, and the cause is remanded, with directions that the orator's bill be dismissed, and that a decree be rendered granting the relief prayed for in the cross-bill so far, and only so far, as the prayer is for relief against the claim herein considered.

turns almost at right angles and crosses the canal. An automobile coming down this road, instead of safely making the turn at the bridge, ran into the frame approach to the same at the point where the appellant was sitting; the mud guard of the machine pinning him against the wing or approach, and scraping the skin and tissue from one of his legs. In this action which he brought against the appellees, alleged to have been operating the automobile, the court ordered a nonsuit, on the ground, as we gather from what was said by the trial judge at the time he directed the judgment to be entered, that there was no evidence that the automobile was being operated at the time of the accident by the defendants, or by any one acting for them. On this appeal two other 1. HIGHWAYS (§ 184*) AUTOMOBILE ACCI- reasons are urged for sustaining the nonDENT NEGLIGENCE QUESTION FOR JURY. suit: (1) The absence of any proof of negliWhere there was evidence that plaintiff,gence in the operation of the automobile; and while waiting for a trolley car, was sitting on an approach to a public bridge, 6% feet from (2) the contributory negligence of the plainthe traveled part of a public road, where it tiff. These reasons will be first considered. turned at right angles to cross the bridge, and that an automobile, while attempting to make the turn at the bridge, ran into the approach, under circumstances warranting the inference that it was being carelessly operated, and injured plaintiff, the questions of negligence and contributory negligence were for the jury.

(244 Pa. 439)

HARING v. CONNELL et al. (Supreme Court of Pennsylvania. March 16,

1914.)

[Ed. Note.-For other cases, see Highways, Cent. Dig. §§ 471-474; Dec. Dig. § 184.*]

SUMPTION.

[1] There was no testimony as to the mile rate of speed at which the automobile came down the road and turned in towards the bridge. The testimony of the plaintiff was, "It was traveling fast; it was coming very fast." Another witness, who did not see the machine coming, but heard it approaching while sitting in his house a short distance

2. HIGHWAYS (§ 184*)-AUTOMOBILE ACCIDENT - POSSESSION OF LICENSE TAG-PRE-away, said it was coming at a rate of speed greater than that of machines as they apIn an action for injuries from an automo-proached the bridge over the canal; and a bile accident, evidence that the automobile bore

a dealers' license tag issued to defendants on a sworn application at a rate lower than the usual rate, under a provision of Act April 21. 1911 (P. L. 74), that it should "not be used for any other purpose than testing or demonstrating a vehicle to a prospective purchaser or in moving same from place to place for the purposes of sale," raised the presumption that the tag was on a car operated by defendants, or by some one for them.

[Ed. Note. For other cases, see Highways,

Cent. Dig. §§ 471-474; Dec. Dig. § 184.*]

Appeal from Court of Common Pleas, Bucks

County.

Trespass by Owen Haring against L. M. Connell and another for personal injuries. From an order refusing to take off nonsuit, plaintiff appeals. Reversed.

Argued before FELL, C. J., and BROWN,

MESTREZAT, STEWART, and MOSCHZIS-
KER, JJ.

third witness, who was in the same house at the time of the collision, testified that he heard it coming at an unusual speed, followed by a crash. Conceding this testimony in itself to be insuflicient to show that the collision resulted from the operation of the automobile at an undue or dangerous rate of speed on the public highway, the jury could fairly have found from all the testimony that it was due to the careless and reckless driving of the machine as it approached the turn at the bridge. Bright front lights were on it, and the driver could see where he was going. If he was looking in front of him, as was his duty, he must have seen the turn in the road before he reached it, and in time to have enabled him to so control the car that it would pass safely around the turn, which was 25 feet in width. Instead of doing so, it crashed into the wooden approach to the bridge, and with such impact that the collision was heard by the persons in the nearby house. A fair inference to be drawn from all the testimony is that the car was being operated in a careless way as it approached

Calvin F. Smith, of Easton, Henry A. James, of Doylestown, and Smith, Paff & Laub, of Easton, for appellant. Harman Yerkes, of Philadelphia, and Thomas & George Ross, of Doylestown, for appellees.

the turn towards the bridge, and that the color by some one for them, for the purpose of lision was due to such operation. As to the demonstrating it to a prospective purchaser, alleged contributory negligence of the appel- or in taking it to some place for the purpose lant, it need only be said that, when he took a seat on top of the guard or wing to wait for a trolley car, he was 6% feet distant from the traveled part of the turn in the road, and it cannot, therefore, be said, as a matter of law, that when he saw the automobile coming towards him, he ought to have anticipated that it would leave that part of the road and run into him. Prinz v. Lucas, 210 Pa. 620, 60 Atl. 309.

tain the chancellor's findings of fact. But the appellant contends that, even though these findings be accepted as true, it should be decided as a matter of law that the plaintiff could not maintain her action, for two reasons: (1) Because under the law she was not entitled to sue her husband; (2) because the findings show a departure from the allegations of the bill.

take possession for fear of personal violence | convinced of an insufficiency of proofs to susat his hands; that she had demanded that he vacate, but he had refused to do so. The plaintiff prayed that the defendant be ordered to surrender possession to her, that he be enjoined from in any way interfering with her enjoyment of the property, and that he be decreed to pay a just compensation for use and occupation since October 14, 1910. The defendant filed an answer, in which he averred that the property had been purchased solely with his own money; that he conveyed it to his wife for a mere nominal consideration "to secure its use as a home"; that she had left voluntarily and without cause; that he had not been guilty of any treatment that would justify her withdrawal. He further alleged, in detail, improper conduct and ill treatment by the plaintiff, and prayed that the bill be dismissed. The case was heard on bill and answer, and a decree was entered that the defendant should vacate and surrender possession to the plaintiff, and not interfere with her management and control of the property in the future. The costs were placed upon the defendant, but he was not charged with any rent during the time of his separate occupancy. The defendant has appealed, and assigns for error several findings of the trial court, and its final decree.

Equity jurisdiction was not disputed in the court below and is not questioned here. The chancellor found that this real estate had been conveyed by the defendant to the plainti in consideration of the fact that she had paid with her own funds a good part of the original cost of the property, and in pursuance of an agreement that she should satisfy certain mortgages thereon out of her separate estate, which she did. He also found, how ever, "that at least a portion of the cost of the property was paid by Howard I. Ireland, and thousands of dollars of improvements thereon were paid by him together with all but two years' taxes and mortgage interest" and that after the conveyance to the plaintiff the parties had "continued to live there as man and wife as an established home." But in connection with this last fact that chancellor found that the plaintiff "lived and resided there in sole and separate ownership thereof, the said defendant, Howard I. Ireland, residing therein as her husband," and further, "that no fraud was practiced by said Bertha D. Ireland upon said Howard I. Ireland in obtaining said conveyance," and that "nothing was said or transpired at the time of said conveyance, in derogation of the absolute fee-simple grant to her." On these findings the court below concluded that the plaintiff was the owner in fee of the premises, that "no trust of any kind was impressed upon the said property at the time of the conveyance thereof to the said Bertha D. Ireland," and that she was entitled to the possession thereof free from any interference on the part of her husband.

[1] It has long been established in Pennsylvania that a married woman may sue her husband in equity to restrain him from unlawfully depriving her of the use and enjoyment of her separate estate, and this notwithstanding the provisions of section 3 of the act of June 8, 1893 (P. L. 344). See McKendry v. McKendry, 131 Pa. 24, 18 Atl. 1078, 6 L. R. A. 506; Heckman v. Heckman, 215 Pa. 203, 64 Atl. 425, 114 Am. St. Rep. 953; Dorsett v. Dorsett, 226 Pa. 334, 75 Atl. 593. These authorities fully dispose of the first of the contentions now before us.

[2] As to the second, although the bill avers that the plaintiff was obliged to leave the property in controversy, "owing to the cruel and barbarous treatment" of her husband, and the chancellor states, "I do not find any evidence that the defendant caused the plaintiff to leave by cruel and barbarous treatment," yet he specifically found, concerning the defendant's personal conduct as a husband, that his wife had been "compelled to withdraw from the said property and remain out of possession thereof for causes which justified her in so doing." The essential part of the averment under consideration is not so much the particularities of the cause of the plaintiff's departure, or the proper name by which the defendant's behavior toward her should be designated, as the fact that she was "compelled to withdraw * * and remain out of possession" owing to the conduct of her husband. Even though the precise cause which led to the plaintiff's withdrawal may not have amounted to "cruel and barbarous treatment" within the technical meaning of that term, and hence the evidence possibly might have fallen short of sustaining the averment to that extent, still it is sufficient that the proofs and the findings upon the subject-matter in hand are in accord with and fully sustain the important part of the averment to which they relate, and, since this is the fact, there was no material variance, or departure, in the case.

Any money which the defendant put into the property before the conveyance to his wife necessarily passed to her, and any subsequent expenditures must be presumed to have been made with the knowledge on his part that the property belonged to the plaintiff, and that, therefore, they might inure to her benefit; but the trial court, no doubt, had these latter items in mind when it refused to charge the defendant for use and

herewith, see the opinion in Ireland v. Ireland, supra, No. 17, January term, 1914, filed this day.

The assignments of error are overruled, and the decree is affirmed, at the cost of the appellant.

(244 Pa. 493)

IRELAND v. IRELAND. (No. 2.) (Supreme Court of Pennsylvania. March 23, 1914.)

TRUSTS (§ 103*)-BILL TO DECLARE TRUST

DISMISSAL.

Where, in a husband's suit to have his wife declared trustee of a house and lot for him, they being separated, and for a conveyance to him of the legal title, the evidence showed that plaintiff voluntarily deeded the property to his wife while they were living together, in consideration of her paying nearly all of the original cost and in order to secure it against his possible future creditors, that no fraud was perpetrated on the husband, and that his conduct compelled her to withdraw from the premises, the bill was properly dismissed. [Ed. Note.-For other cases, see Trusts, Cent. Dig. § 154; Dec. Dig. § 103.*]

Appeal from Court of Common Pleas, Delaware County.

Bill in equity by Howard I. Ireland against Bertha D. Ireland to declare defendant trustee of certain real estate. From decree dis

missing the bill, plaintiff appeals. Affirmed.

Argued before FELL, C. J., and BROWN, MESTREZAT, STEWART, and MOSCHZISKER, JJ.

Alex. Simpson, Jr., and Morton Z. Paul, both of Philadelphia, for appellant. William I. Schaffer, John J. Stetser, and E. Wallace Chadwick, all of Chester, for appellee.

This is a companion case to Ireland v. Ireland, 90 Atl. 911, No. 18, January term, 1914, affirmed in an opinion filed this day, and the material facts are as therein stated. While the chancellor found that the plaintiff and the defendant had "lived in the property in question as a home from the time they were married until October 14, 1910," he refused to find facts that would give rise to a resulting trust, or "that before said conveyance was made there was an express verbal trust agreed upon wherein the said Howard I. Ireland placed the title in Bertha D. Ireland to be retained as a home for both of them as long as the said Howard I. Ireland lived." He also declined to find the defendant guilty of the alleged personal misconduct averred in the bill, or that her husband's treatment "did not make her condition intolerable and life burdensome." Further, he refused to find that she "was not justified in leaving her husband on October 14, 1910." On the request of the defendant, the chancellor found “that no fraud of any any kind was practiced by the said Bertha D. Ireland upon the said

Howard I. Ireland in obtaining the said con

veyance," and, finally, that "the conveyance of said property to said Bertha D. Ireland was not made upon any trust, but was made

to her absolutely and in fee simple.”

After a review of the testimony, we are not convinced that the proofs are insufficient to sustain the findings of the court below. It is to be noticed that the bill does not expressly aver that the property was placed in the defendant's name to maintain it as a "family home," nor does the averment imply that such was the fact. On the contrary, the allegation is that the conveyance was made to protect the premises against possible future creditors of the plaintiff, and to secure to

MOSCHZISKER, J. Howard I. Ireland filed a bill against his wife in which he averred that "after repeated urgings," made by her with a fraudulent purpose, certain | him, individually, a home for the balance of real estate purchased with his money had been placed in her name; that this was done "to protect his property against possible future creditors and insure it as a home for the rest of his life"; that, following various acts of misconduct on his wife's part, she "deliberately left the home of your orator in October, 1910, and never returned." He prayed the court to decree that the defendant held the property in trust for his benefit and to direct her to convey it to him by a deed in fee simple. The defendant answered that she had contributed substantially all the original purchase money and large sums in payment of incumbrances on the property. She denied the personal misconduct imputed to her, and alleged that she had removed from the premises because of the cruel treatment of her husband. Finally, she averred that the property belonged to her absolutely, and prayed that the bill be dismissed. After hearing, the court below entered a decree dismissing the bill, and the plaintiff has appealed.

his life; but the plaintiff did not assert or prove any express undertaking that, should he and his wife separate, he would be allowed to occupy the property alone, and in the absence of such an agreement by her there was nothing shown to the satisfaction of the chancellor which would establish his right so to do. The court found that the plaintiff had voluntarily deeded the property to his wife, principally because most of the money represented in the investment had come from her separate estate, and, next, in order to secure it against his possible future creditors. The court further found that no fraud was perpetrated upon the husband at the time of the transfer of the title, and that his conduct compelled and fully justified the defendant's withdrawal from the premises. On this state of facts, the rule obtaining in some jurisdictions, and urged by the appellant as governing in the present instance to the effect that, where a woman by fraudulent means procures a transfer to her name of property belonging to her husband, or where a man

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes