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by the defendant, Robert W. Harvey, on appeal from a decree of the Common Pleas of the county of Butler to the Supreme Court, the other two defendants being the sureties. The bond is in the sum of $22,000, recited therein to be double the amount of the order or decree, appealed from and all costs accured and likely to accrue, and the condition of the obligation is that provided by the act of assembly relating to appeals, that the appellant "will prosecute this appeal with effect and will pay all costs and damages awarded by the appellate court."

From the affidavits of claim and defense it appears that the defendant, Harvey, was defendant in an action of assumpsit in the Common Pleas of Butler county, in which John Young was plaintiff, wherein Young claimed of him $22,128 for the purchase money of land. The cause was tried without a jury and judgment was entered for the plaintiff for the amount claimed by him, which, on appeal to the Supreme Court, was affirmed January 4, 1904. This suit was brought February 18, 1904.

The affidavit of defense consists of four paragraphs. The first alleges that the proceedings in the Common Pleas of Butler county were an amicable action for the purpose of testing title, and that by reason thereof the stipulations of the original agreement were waived between the parties as far as the dates of payment and of delivery of the deed were concerned, and that the agreement was that when the question of title was settled by the Supreme Court, the carrying into effect of the agreement upon reasonable terms was to be immediately agreed upon, and that the defendants have not yet had a reasonable time to carry out the modified agreement, and that in justice and equity the defendant ought not to be required to pay any part of the purchase money before the date fixed for the last payment, towit, September 21, 1904. The second paragraph alleges that plaintiff has not yet tendered a deed for the property. The third, that the plaintiff is still in possession of the real estate in question, and the fourth is that the bond sued upon was only intended to cover the costs of the appeal and any "incidental damages" that might occur to the use of plaintiff by reason of the procedure, and

that the bond does not provide for the payment of any other sum than the costs. As to the alleged agreement for postponement of the payments which was made before the entry of the judgment in the Common Pleas, and in fact before the proceedings were instituted, it does not seem to us that the arrangement alleged in the affidavit of defense is sufficiently definite to affect the rights of the parties, even if it could be deemed to have effected them after the entry of the judgment. And besides, the time elapsed from the affirmance of the judgment to the bringing of this suit appears to us to have been more than sufficient to enable the defendant to make his first payment according to the original contract. As to the tender of the deed it does not seem to us that such a tender is a necessary pre-requisite to the bringing of a suit on the bond in question, the whole amount of the bond not being equal to the whole of the purchase money. It will be the duty of the court to control the execution on the judgment so as to preserve the rights of the parties. The principal contention of the defendant, however, as we understand it, is that the condition of the bond does not require them to pay more than the costs incurred by the appeal, and that the word "damages" in the condition of the bond does not include the amount of the judgment appealed from. The recital in the bond that the amount of it is double the amount of the order, judgment or decree sufficiently shows that the bond was intended to operate as a supersedeas, although it was not in fact in double the amount of the judgment appealed from. Having given bond in a less sum than double the amount of the judgment appealed from, asserting it to be double the amount and having had the benefit of the bond as a supersedeas, it does not lie in the mouth of the defendant Harvey, or his sureties, to say that what their bond alleges was not true. The phraseology of the act of May 19, 1897, P. L. 68, is different from that of the acts theretofore in force which speak of the "debt, damages and costs." But it cannot be doubted that the word "damages” in the condition of the prescribed bond includes the debt, and every other liquidated sum of money which by the judgment or decree of

the Supreme Court is awarded against the appellant. If the interpretation were to be put on strictly technical grounds it might be observed that the action in which the appeal was taken is an action of assumpsit, in which the recovery always has been and still is a recovery of damages and not of a debt, and when the Supreme Court affirmed the judgment of the Common Pleas it hereby awarded the appellee damages in the amount. of the judgment which was affirmed, and

costs.

We are, therefore, of opinion that the affidavit of defense is insufficient, and the rule for judgment for want of sufficient affidavit of defense is made absolute.

For plaintiffs, James S. Campbell and T. C. Campbell.

For defendants, Langfitt & McIntosh.

(Common Pleas No. 2, Allegheny Co.)

MORGAN v. RUSSO.

ing her lifetime by A. H. Calvert, executor, by deed dated August 20, 1894, and recorded in deed book Vol. 885, page 312. Pauline Morgan never owned any other real estate whatever.

After making some minor bequests to relatives, Mrs. Morgan's will, which is dated the 24th day of November, 1897, contains the following provision:

"As to my real estate, consisting of a house and lot on Penn Street in the Borough of Sharpsburg, I hereby give and bequeath to my husband, Charles L. Morgan, for him to have and to hold to his use and benefit absolutely, giving him the right to dispose of the same by gift, sale or otherwise, as he may find or deem proper."

The will contains no residuary devise, nor is mention made in part thereof of property situate on High street. Mrs. Morgan left neither children nor grandchildren surving her. Her next of kin being Charles F. Morgan, her husband, and four brothers, namely, John Muller, Philip Muller, Mark Muller and Joseph Muller, and one sister, Mary

Wills-Wrong description of real estate- Boeller.
Evidence.

Testatrix devised her real estate consisting of a

house and lot on Penn street in S. borough to her husband. She owned no real estate on Penn street, but did own property on High street, which was all she had. Held, that her husband had a clear title under the will to the property on High street.

No. 734 April T., 1904.

Upon probating the will of Mrs. Morgan, her husband, Charles F. Morgan, as devisee entered into possession of the property on High street, and is now and has been since that time in sole possession thereof. By articles of agreement dated November 30, 1903, plaintiff covenanted and agreed to convey the High street property to defendant for the consideration of $800, $25 thereof being paid at the time of the execution of

Opinion by FRAZER, P. J. Filed by May the agreement between the parties. Since

11, 1904.

From the facts agreed upon in the case stated, it appears that Pauline Morgan, wife of plaintiff, died seized of a lot of ground situate in the borough of Sharpsburg. bounded and described as follows:

Beginning on High street at the southeast corner of Joseph Hart's lot; thence extending northwest by and along said line to the road leading to the Kittanning road along the breast of the stone; thence eastward by said road forty feet to a post; thence southward and parallel with Hart's line to High street; thence along High street, forty feet to the place of beginning. Upon which is erected a frame dwelling house, the same having been conveyed to Mrs. Morgan dur

the execution of the agreement defendant has refused to carry out its provisions, alleging plaintiff's inability to convey a good and sufficient title to the property because of the same being described in the will of Mrs. Morgan as located upon "Penn street," instead of "High street." It was further agreed, if the court should be of opinion that plaintiff has the fee simple title to the High street lot, then judgment to be entered for plaintiff in the sum of $775. If not, judgment to be entered in favor of defendant for costs.

It seems clear to us the intention of testatrix was to devise to her husband all her real estate, which at the time of making her will, and also at the time of her death, con

sisted of a house and lot located on High on the question of fraud the court ought not street in the borough of Sharpsburg.

The fact that she erroneously designated the property as being situate on Penn street does not in our opinion affect the devise. Had she owned real estate on Penn street, or had the will contained a residuary devise, there would be some force in defendant's contention; but as her property was confined to the High street premises and no attempt was made by her in her will to devise property situate on High street, we can reach no other conclusion than that the use of the words "Penn street," as descriptive of the property, was a clerical error and does not affect plaintiff's title thereto. Being clearly of the opinion that the house and lot situate on High street, and above described, vested absolutely in plaintiff under the will of his wife, Pauline Morgan, it is ordered that judgment be entered in favor of plaintiff and against defendant for the sum of $775 and costs of suit.

For plaintiff, T. J. Ford.

For defendent, Harrison Bock.

to quash the attachment. The relation of
husband and wife is such that their business
transactions are always closely scanned; and
the letter of the defendant directing the
transfer of the stock, and the wife's different
statement as to the amount she paid, are
enough to cause a court to refuse to make
the rule absolute.
Rule discharged.

For plaintiff, Reed, Smith, Shaw & Beal.
For defendant, Charles A. Woods.

The Alabama Franchise Case.

Much attention has been attracted by the decision in the United States Supreme Court of the case of the negroes who applied for relief from what they claimed was the unconstitutionality of the recent Alabama franchise provisions. Giles v. Harris, 189 U. S. 475. The case is rather inadequately reported, and as a consequence there has been some hesitation as to the exact scope of the decision. The Alabama constitution provides for the registration of all electors, upon

Court of Common Pleas No. 3. qualification according to certain require

ALLEGHENY COUNTY.

STEVENSON v. SPILLER.

Attachment under act of 1869-Rule to dissolve
Attachment-Evidence of fraud-Refusal of

rule.

ments. An examination of the record from the circuit court discloses that the plaintiff, for himself and five thousand other negroes of the same county Alabama, brought a bill for equitable relief against the defendants, the county registrars. The plaintiff alleged that he and his fellows were qualified under the requirements of the franchise provisions, but that the defendants denied them the right to register; further, that the constitutional franchise provisions are in contravention of the fourteenth and fifteenth amendRule to dissolve ments of the federal Constitution; wherefore he asked a decree placing his name on the registration list and declaring the whole regOpinion by EVANS, J. Filed February istration scheme unconstitutional. 23, 1904.

A rule to show cause why an attachment under the act of March 17, 1869, should not be dissolved will be refused if there is sufficient evidence of fraud. The question of fraud is one for the jury and not the court.

No. 457 Feb. T., 1903. attachment under act of 1869.

This suit was begun by attachment under the act of March 17, 1869, P. L. 8, and the allegation pressed is that defendant is disposing of his property for the purpose of defrauding his creditors.

I do not understand that the court passes finally on the question of fraud on a rule to quash. If there is evidence to go to a jury

A demurrer by the defendants was sustained on two grounds; first, that there was no federal jurisdiction; second, that the facts alleged do not come within the cognizance of equity. The plaintiff appealed to the Supreme Court of the United States under the statute, 26 St. c. 517, § 5, p. 827, 828, which allows certain questions to be brought before that court on direct appeal, among these questions

being federal jurisdiction, and the constitu- this case does not turn upon a question of tionality of a state constitution. The ques- constitutional law. Harvard Law Review, tion of federal jurisdiction only was certified

ing in Suicide.

which the defendant had negligently inflicted. The disease had destroyed the power of the deceased to discriminate between right and wrong, but he was still able to know what he wished to do, and to act towards that end. The court, following Scheffer v. Washington, etc., R. R. Co., 105 U. S. 249, where the facts seem identical,. held that the defendant was not liable for the testator's death, since it was caused by the testator's own act and not by the defendant's negilgence; Daniels v. New York, etc., R. R. Co., 67 N. E. Rep. 424 (Mass.).

to the Supreme Court. The court however Liability for Negligent Injury Resultdecided that it could consider the case on both grounds of appeal. There were therefore only two questions before the court: The development of the modern law of (1) Does this bill present a case for federal negligence has given rise to many interesting jurisdiction? (2) Do the facts alleged call decisions. A late Massachusetts oase furfor equitable relief on the ground of the un-nishes an example of this class. The plainconstitutionality of the franchise provisions? tiff's testator committed suicide while sufferThe first ground in the plaintiff's bill-that ing from insanity induced by an injury he was denied registration although qualified according to the terms of the franchise law -not being within the statute allowing direct appeals was not before the court. With regard to federal jurisdiction, the court decided that, although there was no allegation in the bill that the matter involved at least $2,000, 25 St. c. 866, § 1, p. 434, since that fact was not taken advantage of in the court below, it could not be raised on appeal. It was then expressly assumed without decision that the case was in other respects, U. S. Comp. St. 1901, § 1979, within the federal jurisdiction. The secord question then remained. It was answered in the negative on the following three ground: (1) With out discussion, that equity will not interfere to enforce a political right; (2) that precedent to granting the plaintiff's petition, the court would be obliged to declare unconstitutional the very franchise, provisions under which the plaintiff asks to be registered; (3) that equity could not enforce its decree without policing the state to secure undiscriminating registration, which it cannot undertake to do.

While the first and third grounds for the court's decision are probably sound, Green v. Mills, 69 Fed. Rep. 852, the second, on which the case was chiefly rested, is undoubtedly conclusive against the plaintiff. Under the statutory limitations of this appeal the court could only give relief by deciding that the registration scheme was unconstitutional. If, however, the provisions were unconstitutional, no one would have a right of registration. This plaintiff, therefore, would haue no cause of action for the denial of registration, since there had been a violation of no right. On analysis, therefore, contrary to what might be thought,

There should be no difficulty in sustaining the plaintiff's suit on grounds of legal cause. A man is liable for the probable results of his negligence; Milwaukee, etc., R. R. Co. v. Kellogg, 94 U. S. 469. Insanity would seem sufficiently probable as a result of severe shock and bodily injury; and suicide is such a sufficiently common result of insanity like that in the present case, that it may be justly urged that where the latter is probable, the former is. Nor does the fact that the deceased's death is the immediate result of an act other than the defendant's break casual connection if it is admitted to be a probable result; Lane v. Atlantic Works, 111 Mass. 136. But if it can be shown that the deceased was himself at fault, then, although the defendant's negligence caused his death, the plaintiff cannot recover; Locker v. Damon, 17 Pick., Mass. 284; Nashua, etc., Co. v. Worcester, etc., R. R. Co., 62 N. H. 159. It would seem, then, that the decision of the principal case must rest upon the ground that the plaintiff was at fault when he killed himself.

It is difficult, however, to show any fault on the part of the deceased. A man is generally responsible for his acts, that is, for

illiterate and ill-informed is always considered the standard of a first-class lawyer.

The judge has ascended the bench, and the hearing of applications for warrants is in progress. His honor, with a good-natured

those things which he chooses to do. But where a man whose mind is so crippled by loss of moral judgment that he cannot distinguish between right and wrong chooses that which in his normal state he never would have chosen, it is unjust to hold him | Hibernian accent, remarks, "What is the responsible, in the sense that he is at fault, merely because a normal man would have been at fault had he so chosen. This is supported by the criminal decisions, which make knowledge of right and wrong the test of fault; United States v. Young, 25 Fed. Rep. 710.

This reasoning may seem at variance with the rule that an insane person is liable for his torts, (McIntyre v. Sholty, 121 Ill. 660) for it might seem to follow from that rule that an insane person in doing intentional damage is always at fault. But the cases which established that rule went upon the theory that he who is damaged ought to be recompensed; Holmes on Com. Law, 84. An insane defendant was held liable, though the mere instrument of damage, because there was no better person to hold. Therefore these cases furnish no inference of fault to controvert the argument of the preceding paragraph. Their theory is rather in support of the present plaintiff. Thus, if A causes B to become insane, and B, because of his insanity, damages C, then A is a better person to hold liable than B, since B is the mere instrument, while A is at fault. In the principal case the defendant is A, and the plaintiff stands in the position of both B and C, for the testator was used as an instrument to damage himself. It does not seem just to make the testator's bare instrumentality a bar to the action, and the plaintiff should therefore recover. —Harvard Law

view.

A Police Court of New Erin.

throuble today, Officer McGrath? "Your honor. I've arrested a man for having four wives." "Ah, let me see what we shall charge him with," remarks his honor.

"Hould, I have it. The first marriage is called in the law 'matrimony,' the second 'bigamy, the third 'polygamy,' and the fourth ignominy.' We shall complain of him for ignominy. Poor fellow, I may sind to the Grand Jury a recommendation for mercy. | It wasn't his fault that there were any old maids in the country.'

"Officer Duffy, what can the court do for you this mornin'?" "Your honor, some boys set off fire-crackers which were tied to the tail of Paddy O'Rourke's coat." "Let me see. This question is a perplexing one. Ah, I have it! Let me look into a book which I am told contains the law on all subjects. It is called 'Every man his own lawyer, or the practice of law made aisy.' It contains 200,000 statements of the law, and 430,000 offences against the law and their remedies. Let me look under Tinaments and Hereditaments. These boys must be complained of for malicious injury to Paddy O'Rourke's tinaments. A tinament is something that adjoins, and as his coat was adjoining his person, it is clearly a tinament according to my judgment."

"Officer Gillespie, what can the court do for you this mornin'?" "This woman, your honor, wants her husband arrested for non

support." "Well, madam, what did your Re-husband do?" "He forgot to give me his

pay envelope Saturday night. "But this is only Monday," remarked his honor. "It's the beginning of a bad habit," replied the woman. "Well," replied his honor in a The Police Court has always had a pecu- sympathetic tone. "Perhaps your husband liar facination for loafers. At nine o'clock had a bad memory; it may be pure forgetin the morning you can fulness on his part." "Bad luck to him, see the corridor shark, the police court attorney, and the un- your honor, he remembers the day he first fortunate client, all engaged in earnest con- our wedding, my birthday, and the age of met me, the day he proposed, the day of versation. The Police Court shyster is in- the baby when he cut his first tooth. Do variably a shabby genteel individual who you call that a bad mimory?" His honor knows everything but law, but he is pos- acknowledged defeat and granted the warrant. sessed of a very loud voice, which by the―The Green Bag.

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