Procuring a woman's consent to sexual intercourse by means of a sham marriage is held in Lee v. State (Tex. Crim. App.) 61 L. R. A. 904, to constitute rape, under statutes defining rape as carnal knowledge of a woman without her consent, obtained by force or fraud. The constitutional requirements of equal door as a warnin' to thim dirty neighbors and the sheriff, too, that I'm an honest loidy and know how to 'consilt' a lawyer whin my good name is set upon by sich as thim." So it was "put in writing," and for weeks afterwards Mrs. Mulligan's front door was decorated with my "opinion" which had been tacked thereto, after the aforesaid lady had ornamented my letterhead with heiroglyphics of her own, intended to spell theity and uniformity of taxation are held, in word "warning." Some daring miscreant upon a certain night, so I have been told, removed this "opinion" of mine from the door in question (it is the only one of all my "opinions" that has ever been published exactly as written) but Mrs. Mulligan has more than trimphed over her "vinimous" neighbors, and I have heard no more of either her domestic, or foreign, affaires de coeur, or of the crime of "hogamy" for which she at one time so feared "arrist.". The Green Bay. A marriage contract procured by fraudu lent representations by the woman that during the man's absence from the state she had given birth to a child of which he was the father and which she purports to exhibit to him, no such child ever having been born, is held, in Di Lorenzo v. Di Lorenzo (N. Y.) 63 L. R. A. 92, to be properly annulled by the court, where the law regards marriage as a civil contract, and the statute provides that it may be annulled when the consent of one of the parties is procured by fraud State ex rel. Lewis v. Smith (Ind.) 63 L. R. A. 116, not to be infringed by a statute permitting mortgage indebtedness to the extent of $700 to be deducted from the assessed value of real estate. The holder of a steamboat ticket is held in Hughson v. Winthrop Steamboat Co. (Mass.) 58 L. R. A. 432, to have no right to recover damages because the boat leaves before the advertised time and before he is aboard, if, before it leaves, the government inspector has refused to permit any more persons to go aboard because the number permitted by its license has been reached. Under a policy of insurance against injury caused solely by external, violent and accidental means, which provides that it shall not cover injury resulting from any poison, or from anything accidentally or otherwise. taken, administered, absorbed, or inhaled, it is held, in Preferred Acci. Ins. Co. v. Robinson (Fla.) 61 L. R. A. 145, that no recovery can be had for injury resulting from inflammation of the eyes in consequence of accidentally coming in contact with poison ivy whereby the irritating poison was absorbed into the eye. The effect of a mortgage clause in an insurance policy on mortgaged property, making the loss, if any payable to the mortgagee as his interest may appear, is held, in Delaware Ins. Co. v. Greer (C. C. A. 8th C.) 61 L. R. A. 137, to make to mortgagee the simple appointee of the mortgagor, to receive the proceeds of the amount of his interest, and to place his indemnity at the risk of every act and omission of the mortgagor that would avoid, terminate, or affect the insurance of the latter's interest under the terms of the policy. Pittsburgh Legal Journal put a gate across the alley. There was no ESTABLISHED 1853. EDWARD B. VAILL, EDITORS. THOMAS EWING, N. S. Vol. XXXIV.} 0. S. Vol. LI. PITTSBURGH, PA., JULY 6, 1904. No. 51. opening from the corner lot into the alley. Third. On October 1st, 1874, Mrs. Patterson conveyed this property to L. C. Wynkoop, who conveyed the lot farthest from Preble avenue in 1876 to Robert Fairman, and in 1882 conveyed the lot adjoining Preble avenue to James R. Redman, the alley being in open and notorious and exclusive use of Fairman from and immediately Court of Common Pleas No. 2, after the purchase by him without interfer ALLEGHENY COUNTY. WATSON v. HEYL, et al. ence by Wynkoop. The deed of Wynkoop to Redman contains after the description of the property the words, "reserving four-foot alley," there not being at the time any alley Equity—Obstruction of alley-Testimony as to open or connected with the lot in any way rights-Jurisdiction. In a bill in equity to restrain the obstruction of an alley plaintiff's rights were evidenced by clear, convincing testimony. Held, that equity had jurisdiction to restrain the closing of the alley without requiring plaintiff to first establish his rights at law. No. 39 April T., 1903. except the alley above mentioned. Fourth. Redman conveyed the lot adjoining Preble avenue on May 20, 1891, to John Glacken, the deed made to Glacken containing the same reservation as that contained in the deed to Redman. Fifth. The lot farthest from Preble avenue, by conveyances from Fairman and others, Opinion by SHAFER, J. Filed June 22, dated April 25, 1895. The corner lot frontbecame the property of the plaintiff by deed 1904. The bill is for an injunction to preventing 25 feet on Greenwood avenue by sundry the defendants from obstructing a private vested in Heyl & Patterson, the defendants, mean conveyances from Glacken became right of way, claimed by the plaintiff across by deed dated February 21, 1902. the land of the defendants. FINDINGS OF FACT. First. About the year 1866 Elizabeth Y. Patterson was the owner of a lot of ground fronting fifty feet on Greenwood avenue in the city of Allegheny and running back along Preble avenue at right angles to Greenwood avenue 90 feet to the property of one Ellis. She built thereon a double brick house, or two brick houses with a common dividing wall, fronting on Greenwood avenue, the dividing wall of the houses being 25 feet from Preble avenue. For the use of the house not adjoining Preble avenue she laid out an alleyway four feet wide along the Ellis line across the rear of the 25 feet occupied by the house next to Preble avenue, and erected a high and well-built board fence across the rear of the lot next to Preble avenue, 86 feet from Greenwood avenue, leaving a four-foot alley between this fence and the partition fence at the Ellis line at Preble avenue, where she Sixth. The fence dividing the alley from the rest of the lot now owned by Heyl & Patterson remained upon the ground until something in or about the summer of 1901, and the alley was used by the owners and occupiers of the plaintiff's lot from 1876 up to that time without interruption, and this use by them was notorious, visible, adverse and continuous. And of this there is no suggestion of any denial on the part of the defendants. Seventh. In the year 1901, and before, the defendants were the owners of the adjoining land fronting on Preble avenue, being that which is above mentioned as belonging to Ellis. One Klein was the agent of the plaintiff, who lived out of the city, for the collection of rents, and was also the agent of the plaintiff and of the defendant's grantor in endeavoring to effect a sale of the two lots to the defendants. Who took down the fence and closed up the alley does not appear from the evidence. But it appears that sometime, perhaps in the early part of 1901, the fence was taken down by someone, and the fence extended across the mouth of the alley at Preble avenue; and Klein says a fence was put by him across the alley on the line between the two lots as he understands it. But as nobody else on either side of the case ever saw a fence in that place or any other obstruction to the alley except an ash pile we believe Klein to be mistaken in this respect. Klein says he did not know anything about the existence of an alley until after the sale to Heyl & Patterson. The corner lot was purchased by Heyl & Patterson by articles of agreement in November, 1901, at the execution of which they paid $100 on account of the purchase money of $4,000. The deed was dated February 21, 1902. Mr. Heyl, who was the only one of defendants who testified, at first insisted that the deed was delivered on that day and that the money was paid at that time. He admitted that he received from the plaintiff's attorney a notice in regard to the alley in March, 1901, but insisted that all the purchase money was paid before that time. He subsequently admitted that none of the purchase money except the hundred dollars which had been paid at first was paid until the 30th of April, 1901, and that $625 of the purchase money was placed in the hands of trustee, presumably to be paid over to his vendor when the alley should be gotten rid of, the exact terms of the trust not being disclosed by the evidence. In November, 1901, when the defendants negotiated for the property there was no alley to be seen on the ground, the fence and gate having been removed by someone before that time. Eighth. L. C. Wynkoop died before November, 1901. There is no evidence of the death of James R. Redman. CONCLUSIONS OF LAW. 1. The plaintiff, and those whose estate he has, acquired by prescription a right of way four feet in width over the rear of the defendant's lot, and this was never extinguished or abandoned by the plaintiff. 2. The words "reserving four-foot alley" in the deed of Wynkoop and Redman do not constitute a technical reservation, but are to be deemed an exception. At the time these deeds were made the four-foot alley across the land now owned by the defendant was open and visible, and had been in existence for a long time, and the words were not intended to create in the grantor a right or interest existence as such, but only to take out of the operation of the grant the right of way enjoyed by the plaintiff, or his predecessors in title, so that the land would pass subject to their right. Words of inheritance were, therefore, not necessary. 3. The plaintiff's right to the alley being found to exist, and the defendants having had notice of its existence before the conveyance to them, both by the matter of record contained in the chain of title, and by actual notice, the plaintiff is entitled to relief, if he is entitled to relief in equity under the circumstances. 4. The defendants claim that the plaintiff should be required to make out his case at law before proceeding in equity for an injunction, and the question of jurisdiction thus raised seems to be the principal question in this case. That obstructions or nuisances to a right of way may be enjoined in equity connot be doubted. It is equally certain that this remedy cannot be applied where the defendant would be denied trial by jury as to his legal rights. This rule or exception has been variously stated. It has been said "that the right should be clear,” and that if it be doubtful the chancellor will pause until it be established by law; King v. McCauley, 38 Pa. 76; approved in Hacke's Appeal, 101 Pa. 249. It has been said "where rights which are legal are asseted on one side and denied on the other the remedies are at law;" Washburn's Appeal, 105 Pa. 482. In the case just cited the statement of Mr. Justice WOODWARD in Rhea v. Forsythe, 1st Wright, 503, is cited with approval, that "where the plaintiff's right has not been established at law, or is not clear, but is questioned on every ground on which he puts it, not only by the answer of the defendant but by proofs in the cause, he is not entitled to remedy by injunction." In Ferguson's Appeal, 117 Pa. 450, it is said that when the rights of the parties have been determined at law "or when they are admitted in the pleadings or otherwise clearly appear, a decree for equitable relief · may be made," and many other statements of the rule more or less variant from those ing of the existence of the alley at the time. above given might be cited. A verdict for the defendant upon this evidence certainly could not be allowed to stand. 5. From some of these expressions it might be concluded that a mere denial of the plaintiff's right in the answer would oust the jurisdiction in equity, but an inspection of the cases actually decided will show that this is not the rule. In the case of Manbeck v. Jones, 190 Pa. 171, which was a bill for an injunction to restain interference with a right of way, the answer denied the existence of the road, but the court having found that if the testimony had been submitted to a jury the verdict must be in favor of its existence, and that no other could be conscientiously sustained, granted the injunction, and the decree as well as the reasons given for it were approved by the Supreme Court. We conclude, therefore, that if the plaintiff in such a bill establishes his right so clearly that a verdict against it ought not to be allowed to stand, he is entitled to relief in equity, and the defendant is not deprived of any legal or constitutional right to a jury trial. 8. That the plaintiff has no adequate. remedy at law in any action for the obstruction of his right of way in such a case ar this has been frequently decided, among other cases by that of Hacke's Appeal, supra. 9. We are, therefore, of opinion that the plaintiff, having made out a clear and prac tically undisputed right to the alley in question as against the defendants, that the same is obstructed by the defendants, and that he has no adequate remedy at law, is entitled to an injunction as prayed for restraining the defendants from further obstructing the alley, and that the defendants should pay the costs. Let a decree be drawn accordingly. For plaintiff, S. W. Cunningham and S. B. Smith. For defendants, Shiras & Dickey and Patterson, Sterrett & Acheson. (Common Pleas No. 2, Allegheny Co.) TOMER, et al. v. MCFARLAND, et al. Ejectment-Judgment for want of appearance— ejectment, judgment for want of appearance must be taken during the term in which default Opinion by SHAFER, J. Filed June 9, 1904. 6. In the present case the denial of the plaintiff's right in the answer is very vague and formal. As to the existence of the right of way they say they have no knowledge, and leave the plaintiff to make proof of it, and that he may do so "upon advice" they deny that the alley was laid out or used, and the other statements as to the In right of way are to much the same effect. From the proofs the existence of the right of way by prescription was shown by clear and convincing testimony covering the whole time, and not a breath of evidence was offered against it. The notice to the defendants of the existence of the right of way was contained in the deeds upon which they admittedly rely for their title, and in the admissions of one of the defendants in his own testimony. In fact, there is not throughout the whole testimony any conflicting evidence, and there appear no disputed facts except the testimony of Klein referred to in the findings of fact as to his building the fence across the alley, which is entirely immaterial and could have no effect as an abandonment of the alley by the plaintiff's agent, if for no other reason than because admittedly the plaintiff's agent knew noth A plea A writ of ejectment was issued in this case on July 18, 1899, against a number of defendants, four of whom were returned served. For Adolph E. Seidel and James Hanna, two of the defendants who were served, no appearance was entered. of "not guilty" was entered by the counsel who appeared for the other two defendants. served signed, by him as attorney for defendants. A jury was sworm against the two defendants who appeared and a verdict was rendered for the defendants. A motion for a new trial was made in December, 1901, and was not disposed of until April 23, On Opinion by HAWKINS, P. J. Filed April 19, 1904. 1904, when a new trial was refused. April 25, 1904, plaintiff gave to the prothonotary a praecipe for judgment against Seidel and Hanna in default of an appearance, and the judgment in default was entered against them. The present proceeding is to strike off that judgment. The defendants claim that the judgment is void because not taken in open court upon an affidavit of the sheriff as to the service and because not taken at the term at which default was made. The plaintiffs' claim is that the provisions of the act of 1807 do not apply to those who are named as defendants in the writ, but only to those served by the sheriff as being found in possession of the property, and the phraseology of the act does seem to lend some countenance to this suggestion. In the case, however, of Michew v. McCoy, 3 W. & S. 501, the judgment taken against a defendant named in the writ was set aside because not taken on the affidavit of the sheriff. If the act of 1807 does not apply in this case no other act has been pointed out which authorizes a judgment by default, and statutory authority is necessary, as a judgment by default is unknown to the common law. That the judgment must be taken, if at all, during the term in which default is made, was decided by Drayer v. Bowman, 3 P. & W. 70. The judgment is therefor void and must be stricken off. The question raised by this petition, briefly stated, is whether or not a guardian may be authorized by court to accept in distribution the stocks of a private corporation which the administrator holds. The 14th Sec. of the act of March 29, 1832, and its various supplements, points out specifically in what securities trustees may invest, and implies that outside these investments will be at the trustee's risk. Its purpose, said the court in Twaddell's Appeal, 5 Pa. 17, was to point out a course free from risk-not to interdict other investments. "It may now be considered as settled law,” said Mr. Justice KNOX in Worrell's Appeal, 23 Pa. 44, "that in Pennsylvania an investment by a guardian, or other trustee, unless authorized by the will or deed of trust in the stocks of an incorporate company, whether a bank, railroad, canal, manufacturing or mining corporation, cannot be made at the risk of a ward or other cestui que trust. . . . In England and in this country the adoption of this rule has been found essentially necessary for the protection of those who could not protect themselves. It will not do to say that because prudent men sometimes invest their own money in such stocks, guardians may legally invest the estate of their ward in like manner." "A prudent man," said Mr. Justice DEAN in Hart's Estate, 203 Pa. 485, "may calculate the For plaintiff, L. K. & S. G. Porter and probabilities of success or failure. But with L. C. Barton. a trustee the case is different; he has all the For defendant, C. S. Crawford and Watter- knowledge, foresight and judgment of the son & Reid. Orphans' Court, business man; but the money to invest is not his own-it belongs to others; and it is his plain duty, if he would safely keep it, to minimize risks. He is not bound to have more prudence than the other; but he must In re Estate of R. C. SCHLEGEL, who owes no duty is free to take." utilize his in avoiding risks which another ALLEGHENY COUNTY. Minor. It was upon this principle that a trustee was charged with loss from depreciation in Schuyskill Navigation Company's stock in Worrell's Appeal, supra, with loss from depreciation in bank stock in Hemphill's Appeal, 18 Pa. 303; and with loss resulting from a time deposit of trust funds; Baer's Appeal, 127 Id. 360. "It has never been doubted anywhere," said Chief Justice BLACK in Hemp |