author: Per Curiam,

text:
    Commonwealth v. Ferruchi, Appellant.

      Criminal law — Murder—Evidence.
    On the trial of an indictment for murder it appeared that the prisoner shot the deceased five times with a pistol. He claimed that the shooting was in self-defense. There were no eyewitnesses. Immediately after the shooting the deceased was seen fleeing from the deceased’s house, and was captured by a policeman while still in flight. The prisoner testified that the deceased attacked him with blows, and that he shot in self-defense. He did not state, however, that he made an outcry, or that he warned the deceased that he was armed and would shoot him if the assault continued. The defendant’s hat was found beside the body of the deceased. Held, that the evidence was sufficient to sustain a verdict of murder of the first degree.
    Argued Oct. 15, 1907.
    Appeal, No. 258, Jan. T., 1907, by defendant, from judgment of O. & T. Phila. Co., Dec. T., 1906, No. 366, on verdict of guilty of murder of the first degree in case of Commonwealth v. Luigi Ferruchi.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Indictment for murder.
    Before Carr, J.
    The court charged in part as follows :
    The question for you to decide in this case is whether the commonwealth has made out its charge against this defendant. It has brought before you several witnesses regarding that. There is Dr. Wadsworth, the coroner’s physician, who testifies before you to the finding of the five bullet holes in this man’s body in vital parts; there is the testimony of the widow, who says she raised the window and saw the defendant fleeing from the house; there is the testimony of her sister, who heard the shrieks of the widow as she came down the stairs; there is the testimony of the saloon keeper, who came to the door after the shots had been heard, but he saw only the gathering of the people after the body was drawn from the alley upon the pavement outside; there is the testimony of the son of the saloon keeper, who says as he came to the door he saw this man, the prisoner, running, and he followed him and gave notice to the policeman, the prisoner having passed by the spot where the policeman was at the call box, and the prisoner was arrested as he reached Marshall and Bainbridge streets, and brought back; there is the testimony also of Antonio, who had been drinking with them, and who described to you that the last man seen with the dead man when Antonio was leaving was the prisoner, and that the two men were together and Antonio left them at the entrance to this house, No. 707 Kater street; there is also the testimony of the man who lives in the house opposite, 712 Kater street, who describes how he saw a certain man running from this house! Again, you have the testimony of officer Davis, who described the arrest of the defendant, and as Davis put his hand in the defendant’s pocket Davis drew from it his right hand, and in it was a revolver that was still hot, with the five shots discharged. There is also the testimony of the deputy coroner, Bainbridge, as well as Buckley and Lockhart, who tell you where the hat was found, and they trace it. Then you have the testimony of four other men connected with the police department as to the taking of the statement. [You will bear in mind that the prisoner was then charged and knew that the officers would make use of this statement for or against him. "What he said to them he now. admits before you was not the truth, and to my mind it tends to bear out what the commonwealth charges, that this was the act of a coward when he imbedded the five buliets in the body of his friend. For you will use your knowledge of human, nature and consider if the first thing a coward does is not to lie as one of the means to use to escape from the consequences of his act, and this statement, according to the testimony of the prisoner himself, was an untruth when he knew he was to be charged with having killed this man.] [8]
    Therefore, we return to the scene of this incident. You will recall that it is a small house of six rooms, and the entrance is by a door on Kater street, and then you enter a hallway, and on the left is one room, and as you walk back through the. hallway or entry there are stairs which run between the two rooms and the hallway still continued back into the yard. This to my mind becomes important, because you must bear in mind that the defense is that the dead man made an unprovoked assault upon the defendant, that the prisoner had no means of escape, and in order to save his life, being at the time under the mortal fear and dread of great bodily harm, or loss of life, that thereby it became compulsory on him to shoot. Now, if under the evidence you do not believe these facts, and if you believe the prisoner could have escaped, even though attacked ; if you believe he could have fled from the place and could have saved his life without the use of the pistol, then his defense falls to the ground, and you should consider the testimony on the part of the prosecution that it was a deliberate and willful murder. Now, therefore, you will keep in mind what his story is. Having admitted that the first story he told was not the truth, then he tells a second story, that as he stood there, having relieved himself and buttoning his trousers, his friend attacked him, and proceeded to rain the blows upon him, so many as thirty. Now, what would a man have dono, and I say you must weigh the credibility of his story. He says he had a moment before found the front door open and had passed through it. What would a man have done? You must consider that. It is for you to say, not for me. It is for you to weigh the probability and likelihood of his story. He had a revolver; he knew that he was armed. He knew he had a deadly weapon and he did not want to use it on his friend, as you will remember. What would he have done under those circumstances ? He would have gone out, possibly you will think, the way that he came, because he did not know at that time there was a gate that was bolted, as he claimed it was bolted. You must consider whether he Would have taken his chances in finding a bolted gate to stop his way, or whether he would have made an outcry, possibly you will think, but still he says he did not. He did not warn or caution his friend, continuing to beat him, that he was armed and would kill him. He says he did not do that. That is a fact for you to weigh on the credibility of his story. When it came to the point that there was the necessity to shoot, he does not tell you that he warned his friend that he would shoot, and he said he had not made an outcry at the moment he was going to shoot, as he says, to protect his life. That it was to protect his life is a fact for you to find, and if it is not in the evidence or in your belief from Ms evidence, then you must find against his plea of self-defense. After he drew the deadly weapon how did he fire ? Now, it is for you to consider, weighing the value of his testimony. You will consider what a man would do under such circumstances. Would he have fired to kill or have fired to alarm his assailant, his friend ? What would he do % It is for you to say. You are men of the world, and you have been in contact with men before. It is a point for you to decide. You must weigh that and decide where the truth is, because if you believe the commonwealth’s contention, it was a cruel and deliberate murder, and you should not hesitate to find it so. On the other hand, if you believe what the defendant says, that at the moment when he fired the first shot, or just after he fired it, his life was in danger, of course that would be self-defense, and you could acquit him, for that would be justifiable. Not only that, but you will consider, weighing the' further testimony upon this point, that he did not fire but once, but continued to put bullet after bullet into the man until after the fifth bullet was sent into vital parts, when he dropped. That is what the prisoner says. Then what did the prisoner do % This point is not denied by the prisoner. It is admittód that he ran. That is always a material point for juries to consider after the commission of a crime, if it is a crime. What was the action of the accused ? You will bear in mind that his claim before you is that he was absolutely innocent and took this means of saving himself. Now, that is what he wants you to believe here. Therefore, you should consider what his conduct was. Now, you will remember he was in a locality in which his language was spoken. It is an Italian quarter. He said nothing as he ran, but ran by the door of the saloon from which he had just come, where the son of the proprietor was standing. He did not accost the boy, but went on, trotting down Seventh street until he came to Bainbridge, where Policeman Davis was at the box; nor did he tell him about this, but turned and ran east and finally stopped where he was caught by the policeman, being about at a walk when the policeman took him. Is that the conduct and course of a man who is innocent, and who has killed another, as he claims, in self-defense ? If you believe it is, of course it should not weigh in your minds as against the truth, of his story. But I say what he did then, or failed to do, is for you to consider as bearing upon the value and truth of his story, and as to whether what he says was the fact.
    Defendant presented these points:
    2. The defendant having retreated until his means of escape were cut off, and only used the pistol to defend himself when he apprehended immediate danger and possible loss of life, the shooting was justified and your verdict should be not guilty. Answer: That point is refused, as it omits to refer to other facts in evidence necessary to be found by the jury to justify the shooting, and also requests the court to find facts within the province of the jury under the evidence. [4]
    3. The finding of defendant’s hat under the circumstances you have heard should be taken as a corroboration of defendant’s story. Answer: That point is refused, as finding the hat tends as much to confirm the contention of the commonwealth. [5]
    4. The condition of the gate should be taken by you as corroboration of defendant’s story. Answer : That point is refused for the same reason. [6]
    7. Defendant’s testimony is uncontradicted and should be accepted as true, and, if you find that this is so, your verdict should be not guilty. Answer: That point is refused. [7]
    Yerdict of guilty of murder of the first degree, upon which judgment of sentence was passed.

      Errors assigned were (4, 7) above instructions, quoting them.

      D. Howard Conrade, with him D. J. McBride, for appellant.

      Samuel P. Rotan, district attorney, and Wm. Findlay Brown, assistant district attorney, for appellee.
    November 4, 1907:
   Per Curiam,

The answers of the learned judge below to the points submitted to him sufficiently explain and vindicate themselves. There is nothing in the case which justifies bringing it here.

The judgment is affirmed and the record remitted to the court of Oyer and Terminer of Philadelphia for purpose of execution.


source: Caselaw Access Project

license: Public Domain

text:
    Ferner v. Byers, Appellant.

      Will — Issue devisavit vel non — Undue influence — Evidence.
    On the trial of an issue devisavit vel non there was evidence that the will was dictated by testator t'o counsel, written out by the latter in testator’s presence, read over to him and approved, no one else being present during this time, unless the person named as executor may have passed in and out of the room, but there was no testimony that he took any part in the matter. Testator did not sign it at once, but after dinner, at which nothing was said about the will, witnesses who had been sent for came in, and the will was signed in their presence. The principal beneficiary was not present, and was not shown to have had anything to do with the making of the will, or even any knowledge of its provisions. The testator lived two years- and a hah afterwards, driving about alone, and visiting his other relatives, with ample opportunity to alter his will if not satisfied with it. Testator lived with the beneficiary, and there were some meager allegations that the latter had kept other relatives away from testator, had endeavored to persuade him that an attempt had been made to poison him, and that he should have a revolver to protect himself from injury. Held, that the court committed no error in taking from the jury the question of undue influence.
    Argued Oct. 16, 1907.
    Appeal, No. 147, Oct. T., 1907, by defendants, from judgment of C. P. Westmoreland Co., May T., 1907, No. 136, on verdict for plaintiff in case of C. R. Ferner, Executor of the last will and testament of Jacob Byers, deceased, v. W. R. Byers et al.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Issue devisavit vel non.
    Before Doty, P. J.
    The opinion of the Supreme Court states the case.

      Error assigned was in taking from the jury the question of undue influence.

      Edward E. Robbins, with him Paul H. Gaither, Charles E. Whitten and John E. Kunkle, for appellants.

      James S. Moorhead, with him James S. Beacom, C. E. Heller and Robert W. Smith, for appellee.

      November 4, 1907:
   Per Curiam,

The will was dictated, by the testator to counsel, written out by the latter in testator’s presence, read over to him and approved, no one else being present during this time, unless the person named as executor may have passed in and out of the room, as to which there was some difference of recollection between the witnesses, but no testimony that he took any part or made any comment in the matter. The parties then went to dinner where other members of the family were present, but nothing was said about the will. After dinner the witnesses who had been sent for came in, and the will was signed by the testator in their presence. This is the practically undisputed testimony on the subject.

The principal beneficiary was not present, and was not shown to have had anything to do with the making of the will or even any knowledge of its provisions.

The testator lived two years and a half after the signing of his will, driving about alone and visiting his other relatives, with ample opportunity to alter his will if not satisfied with it.

A case thus affirmatively made out would require a very strong array of conflicting evidence to justify a jury in disregarding it. Instead of such evidence, however, there were only a few meager allegations that the beneficiary with whom the testator lived had kept the other relatives away from him, had endeavored to persuade him that an attempt had been made to poison him, and that he should have a revolver to protect himself from injury. Of those matters the learned judge said in his charge admitting all these facts and fair inferences from the facts, we are persuaded that there is no evidence to establish that the will was procured by undue influence; there is no evidence of any fraud a,t any time or force of any kind ; there is no evidence of constraint. ” He therefore took the question of undue influence from the jury, and was fully justified in so doing.

Judgment affirmed.


text:
    Osterman, Appellant, v. Patterson.

      Equity — Finding of fact — Evidence—Deed—Undue influence.

    A finding of fact by the court below in an equity case that a deed was not procured by coercion or undue influence will not be reversed by the Supreme Court where there is sufficient evidence to sustain the finding, and the record discloses no manifest error.
    Argued Oct. 17, 1907.
    Appeal, No. 110, Oct. T., 1907, by plaintiffs, from decree of C. P. Armstrong Co., June T., 1905, No. 80, dismissing bill in equity in case of Sarah Osterman, by her Guardian, W. A. McAdoo, v. Lucy R. Patterson et al.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity to set aside a deed made by Mrs. Sarah Osterman to the defendants, her three daughters, on October 5, 1904.
    The complainant alleged that the deed was procured by coercion and undue influence.
    The court in an opinion by Patton, P. J., found as a fact that there was no coercion or undue influence, and dismissed the bill.

      Error assigned was decree dismissing the bill.

      J. W. King and H. L. Golden and W. A. McAdoo, for appellant.

      Geo. M. Hill, W. J. Christy and R. A. McCullough, for appellees, were not heard.
    November 4, 1907:
   Per Curiam,

The learned judge below after a careful review and summary of the evidence concludes “ In our opinion the deed in dispute was voluntarily made, without coercion or undue influence, by a person fully conscious of what she was doing.” In this we concur.

Decree affirmed.


text:
    Fuller v. Fuller, Appellant.

      Statute of frauds — Parol agreement to devise land — Evidence—Ejectment.
    In an action of ejectment it appeared that the plaintiff claimed title by a deed from a grantee of her deceased husband. The defendant had no paper title but relied upon a parol agreement of the plaintiff’s husband to devise the land in question to him if the defendant would remain and make his home with the promisor until he should be of age. The defendant, who was a nephew of the promisor, remained on the land until the latter’s death when the defendant was more than twenty-one years old. The uncle made a will by which he left the land in question to the defendant’s father for life subject to the widow’s rights with remainder to the defendant. The uncle prior to his death becoming financially embarrassed conveyed the land to a third person. The latter after the uncle’s death conveyed the land to plaintiff. Defendant did not establish an independent possession in himself, but his possession was under the plaintiff. Held, that the defendant’s claim was barred by the statute of frauds.
    Argued Oct. 18, 1907.
    Appeal, No. 64, Oct. T., 1907, by defendant, from judgment of C. P. Jefferson Co., Aug. T., 1906, No. 91, on verdict for plaintiff in case of Mary J. Puller v. Elmer Puller.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Ejectment for land in Pinecreek township.
    Before Ormerod, P. J.
    At the trial it appeared that the land in question was at one time owned by Sidney Puller, the plaintiff’s husband and the defendant’s uncle. On February 25,1895, Sidney Fuller made a will by which he devised the land in question to David Fuller, defendant’s father, for life, with remainder to defendant, subject to widow’s rights. On March 16, 1895, Sidney, being financially embarrassed, conveyed the land to J. P. Taylor, a brother of plaintiff. Sidney Fuller died on August 31, 1898, and his will was duly probated. On September 8, 1898, J. P. Taylor conveyed the land to the plaintiff. After the death of Sidney Fuller defendant worked for a time for his aunt, and subsequently went into possession of the land apparently under a lease from her. The defendant claimed the land under an oral agreement with, his uncle by which the latter was to devise the land to the defendant if he would remain and make his home with the promisor until he should be of age. The defendant carried out his part of this agreement.
    The court directed a verdict for plaintiff.
    Yerdict and judgment for plaintiff. Defendant appealed.

      Error assigned among others was (14) above instructions, quoting them.

      Edward A. Carmalt, with him N. L. Strong, W. C. Pentz, W. L. Calkins and Raymond E. Brown, for appellant,
    cited as to the statute of frauds: Shroyer v. Smith, 204 Pa. 310; Johnson v. McCue, 34 Pa. 180; Fritz v. Menges, 179 Pa. 122; McFarson’s App., 11 Pa. 503; Brinker v. Brinker, 7 Pa. 53; Hitchcock v. Hitchcock, 35 Pa. 393.

      A. L. Cole, with him George D. Jenks, for appellee.
    November 4, 1907:
   Per Curiam,

The plaintiff showed a clear paper title from the common source, Sidney Fuller. The defendant showed no title by deed, but relied on a parol agreement of Sidney Fuller to devise the farm to defendant if the latter would remain and make his home with the promisor until he should be of age. The defendant, a nephew of Sidney, was then a boy between eleven and twelve years of age. He carried out the contract on his part by remaining and working for his uncle until the latter’s death, when defendant was more than twenty-one. He did not, however, succeed in showing possession. On the contrary, it appeared that after the death of Sidney Fuller, his widow, the present plaintiff, held the legal title and defendant at the time of this trial was in possession under her. It is true the defendant disputed the lease, but he did not establish an independent possession in himself. Sidney Fuller conveyed the property during his lifetime, and even if the grantee held in trust only, the will of the grantor did not coincide with the contract so as to fortify defendant’s title as a memorandum in writing. There were some other and subordinate facts in the case that strengthened the defendant’s manifest equity, but the learned judge was of opinion that they did not take the title out of the ban of the statute of frauds, and we are obliged to concur in the same view.

Judgment affirmed.


text:
    Beardslee, Appellant, v. Shickler.

      Corporations — Capital stock — Indebtedness—Subsequent creditor.

    Where a corporation, in dealing with its stockholders and creditors in good faith, reduces its liabilities $27,500 at a cost of less than $5,000 in reduction of real estate which is not needed in the operation of its plant, a subsequent creditor cannot complain that the transaction involved a reduction or impairment of capital stock which affected his rights.
    Argued Oct. 19, 1907.
    Appeal, No. 189, Oct. T., 1907, by plaintiff, from decree of C. P. Jefferson Co., Aug. T., 1907, No. 3, dismissing bill in equity in case of C. A. Beardslee, Trustee in Bankruptcy of the Brookville Woolen Mills, v. George H. Shickler et al. and Emmet Queen, Guardian for Ruth and Bessie Q. Heidrick.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity to cancel a mortgage.
    From the record it appeared that the mortgage in question was given by the Brookville Woolen Mills to the defendants, and was for the sum of $25,000. Prior to the creation of the mortgage the corporation was largely in debt. By an arrangement among the stockholders this debt was paid off, and in the transaction some real estate which was not needed in the operation of the plant was conveyed to other parties. The court below found as a fact that there was no fraud in the transaction, and that, at the time, the corporation did not contemplate contracting any debts to the complainant or others. About a year after the execution of the mortgage the corporation became insolvent and was put into bankruptcy.
    The court in an opinion by Reed, P. J., dismissed the bill.

      Error assigned was decree dismissing the bill.

      S. Leo Ruslander, of Weil & Thorp, and Edward A. Carmalt, with them N. L. Strong and W. N. Conrad, for appellant.

      Charles Corbet, with him Wm. M. Hall, O. P. Metcalf, C. Z. Gordon and A. L. Cole, for appellee.
    November 4, 1907:
   Per Curiam,

The learned judge below summed up his findings of facts and law in these words : “ There was no reduction or impairment of capital stock by reason of the transactions sought to be called in question. It would be a new application of equitable principles that would condemn, upon the suggestion of subsequent creditors, those transactions of a corporation which had for their object, and which in fact did improve the financial condition of the corporation by reducing its liabilities $27,500 at a cost of less than $5,000, in reduction of real estate which was not needed in the operation of its plant. No elaboration of this statement of the facts can add to its potency in passing upon the merits of the case, and the legal effect of it is to entirely sweep away the equitable grounds on which the plaintiff bases his right to relief.”

On this finding the decree is affirmed.


text:
    Brock Railroad Company, Appellant, v. Brookville & Mahoning Railroad Company.

      Railroads — Grade crossings — Equity.
    A court of equity will not continue a preliminary injunction in a suit brought by one railroad company against another railroad company to enjoin a grade crossing, where the court finds as a fact, that the plaintiff company’s .road was used only for carrying cars from a certain mine, and that this coal would be exhausted and the railroad discontinued before or about the time the defendant’s road will be built, and also that the plaintiff had leased its road to another railroad company which had agreed with the defendant company that a grade crossing should be constructed.

      Argued Oct. 19, 1907.
    Appeal, No. 191, Oct. T., 1907, by plaintiff, from decree of C. P. Jefferson Co., Aug. T., 1907, No. 4, dissolving preliminary injunction in case of Brock Railroad Company v. Brookville & Mahoning Railroad Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity for an injunction.
    Before Reed, P. J.
    In addition to the facts stated in the opinion of the Supreme Court it appeared that the plaintiff’s road was used exclusively for transporting coal from the Brock mines, and was only occasionally operated for that purpose, not more than one trip being made daily.
    The court entered a decree dissolving the preliminary injunction.

      Error assigned was the decree of the court.

      Fred H. Ely, with him Wm. T. Darr, for appellant.

      Edwin W. Smith, with him Edwin E. Tait, Charles Corbet, Edward A. Carmalt, N. L. Strong and C. C. Benscoter, for appellee.
    November 4, 1907:
   Per Curiam,

The learned judge below found as facts, inter alia, “ That the coal now being mined and transported over the plaintiff’s road will be exhausted within the next two years, when said railroad will be abandoned. There is some evidence about a lower stratum or vein of coal, but it never has been worked in that locality, and the evidence is not persuasive that it ever will be. If, as it now appears, the maintenance of the plaintiff’s railroad is dependent upon the shipment of coal from the Brock mines, it will be abandoned by the time, or very shortly after, the defendant’s road is completed and ready for operation.” And, farther, that the plaintiff has leased to the Erie Railroad Company its railroad, with all its appurtenances and equipment, for a term of four years, which, according to the testimony now before the court, covers the time said railroad will continue to exist, and the said Erie Railroad Company, so far as it has the power and so far as its rights are involved, has granted the defendant company, upon certain conditions and restrictions, the right to cross said leased road at grade.”

It thus appears that the complainant, having no present interest which is injured, is not now in position to sustain this action. Grade crossings are, however, opposed to the policy of the law, and the bill should therefore be retained for further proceedings should the situation be changed. In the meantime the order dissolving the injunction is affirmed.


text:
    Hatfield v. Clovis, Appellant.

      Contract — Mines and mining — Coal option — Time.
    Where a coal option provides that “the party of the second part shall have until the tenth day of July, 1905, to accept the coal herein described,” and that on failure to give notice of acceptance “by the said date” the contract shall be void, the party of the second part has until the tenth day of July in which to accept the option.
    Argued Oct 21, 1907.
    Appeal, No. 154, Oct. T., 1907, by defendant, from decree of C. P. Greene Co., No. 105, in equity, on bill in equity in case of William K. Hatfield v. L. B. Clovis.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity for specific performance.
    Before Taylor, J., specially presiding.
    From the record it appeared that on May 19, 1905, L. B. Clovis executed an option in writing to H. J. Price for certain coal lands.
    The option contained the following provision:
    “For and in consideration of the sum of $1.00, the receipt whereof is hereby acknowledged, the party of the first part agree that the party of the second part shall have until July 10, 1905, to accept the coal herein described, as the same may be determined by the engineers of the party of the first part (the party of the first part to furnish a complete abstract of title). And if the party of the second part does not give notice of such acceptance by the said date, this contract shall be void and of no further effect.”
    The option subsequently came into the ownership of William K. Hatfield, the plaintiff, by mesne assignments from Price.
    The court found, inter alia, the following facts:
    4. That on July 8, 1905, J. A. Phillips for H. J. Price and Smith Hood, Jr., gave notice to said L. B. Clovis of their acceptance and election to purchase said coal and mining rights on the terms set forth in said contract, and tendered the $100 to pay the expenses of surveying, making abstract, etc., as stipulated in said contract, which was refused by the said L. B. Clovis; and that again on July 10, 1905, H. J. Price and Joseph Phillips gave notice thereof, to the said L. B. Clovis, of the acceptance of said contract and at the same time tendered him the sum of $100, to pay the expenses of surveying, making abstract, etc., which said money so tendered the said L. B. Clovis refused to accept.
    The court entered a decree of specific performance.

      Error assigned was the decree of the court.

      J. W. Ray, with him D. S. Walton and J. B. Donley & Son, for appellant.
    The word “ until ” may have either an exclusive or an inclusive meaning, according to the subject to which it is applied, the nature of the transaction which it specifies, and the connection in which it is used. Considering the word as it appears in the contract in suit, in relation to the subject-matter of the contract, the nature of the transaction and the connection in which it is used, the defendant contends that its meaning is exclusive. Especially does he so contend when it is considered in connection with the word “ by ” as it stands in the second clause above quoted, from the contract in suit. Primarily the word “ until ” is one of exclusion: Rex v. Stevens, 5 East, 243; Webster v. French, 12 Ill. 302; Corbin v. Ketcham, 87 Ind. 138; Bemis v. Leonard, 118 Mass. 502; People v. Walker, 17 N. Y. 502; People v. Crissey, 91 N. Y. 616; State v. Perkins, 139 Mo. 106 (40 S. W. Repr. 650); Eshelman v. Snyder, 82 Ind. 498.

      "When a contract calls for performance “ by ” a certain date the contract must be performed before that date: Rankin v. Woodworth, 3 P. & W. 48.

      James J. Purman, for appellee.
    The word “ until ” included July 10: Thomson v. Life Ins. Co., 4 Pa. Dist. Rep. 382; Kendall v. Kingsley, 120 Mass. 94; Bunce v. Reed, 16 Barb. (N. Y.) 347; Dakins v. Wagner, 3 Dowling’s Prac. Rep. 535; Weld v. Barker, 153 Pa. 465; Browne v. Browne, 3 S. & R. 496.
    November 4, 1907:
   Per Curiam,

The learned judge below found as a fact that the option was accepted on July 8, by the proper parties, and that the renewed acceptance and tender of money on July 10 were for greater caution only.

Either notice of acceptance was sufficient. It was not required to be in writing and the manifest meaning and understanding of the parties in the words “ the party of the second part shall have until the 10th day of July to accept” were that they should have that day. The findings of the judge were upon sufficient evidence and his conclusions therefrom were correct.

Decree affirmed.


text:
    Thompson v. Willard, Appellant.
    . Contract — Option—Mines and mining — Notice of acceptance — Husband and wife.

    Where a husband and wife give an option for coal lands, and a written notice of the acceptance of the option is read to both of them in the presence of each other, and it is orally stated to them that the notice is for. both, the husband cannot avoid the contract because the written notice was addressed to the wife alone.
    Argued Oct. 21, 1907.
    Appeal, No. 167, Oct. T., 1907, by defendant, from decree of C. P. Greene Co., No. 81, in equity, on bill in equity in case of Josiah V. Thompson v. Emma R. Willard, J. T. Willard, W. S. Throckmorton and J. W. Boileau.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity for specific performance.
    Before Taylor, J., specially presiding.
    From the record it appeared that on July 8, 1889, Emma R. Willard and J. T. Willard executed a coal option to W. S. Throckmorton.
    The facts relating to the notice of the acceptance of the option were found by the court to be as follows :
    4. That on June 28, 1900, and within the option period, Josiah V. Thompson caused notice in writing of his election to purchase the coal to be served personally on Emma R. Willard and J. T. Willard, although the written notice was addressed to Emma R. Willard only, in words and figures as follows, to wit:
    “ Lniohtowh, Pa., June 20, 1900.
    “ To Emma B. Willard : You are hereby notified that I elect to purchase the coal, mining rights, etc., in the option given by you to W. S: Throckmorton, dated July 5, 1899, and assigned by him to me, for sale of your coal, etc.”
    The court filed an opinion which was in part as follows :
    It is very clear to us that the Willards never intended to perform this contract if they could escape from complying with its terms. By an act of assembly which requires that a contract of a married woman for the sale of her separate real estate shall not be binding unless acknowledged by her she escapes performance, her husband, J. T. Willard, being called upon by the other party to the contract to perform his part thereof. When once the option is accepted within the optionary period, which is not denied, a party is bound to perform his written contract unless he could show some failure on the part of the other party to the contract that would release him. The only point raised by him for which he claimed he should be released from performing this contract is that the written notice, served upon him and his wife, dated June 28, 1900, is addressed alone “to Emma R. Willard;” but this notice Throckmorton, the party who served it, testifies was read to the husband and wife, and a copy left with them at their residence on the date mentioned. It referred to “ the option given by you to W. S. Throckmorton, dated July 8, 1899, and assigned by him to me for the sale of your coal, etc.,” and further stipulated that he, Thompson, would have survey made and “ will make abstract of title and prepare a deed as promptly as possible, you to furnish me your title papers, plots, etc., at once or send same to my attorney at Waynesburg, Pa.,” verbally informing them of the name of the attorney. Here was a written notice within the time of the acceptance of the coal embraced in the option in which the husband and wife had joined. The purpose of the notice in writing to purchase was clearly made known to the parties to this option, and was such a notice under the contract as would hold Thompson to a specific performance of his contract as to the entire acreage embraced in said option. The said W. S. Throckmorton, who served said notice upon the date it purports to be served, testified that when he served the notice upon the Willards, both husband and wife, that when asked why Emma R. Willard’s name alone appeared in said notice, replied that said notice was intended for both of them. This the Willards deny in their answer and deny on the stand, but the weight of the evidence is in favor of the contention on that point by Throckmorton. There was admittedly a copy of this notice left at the house of the Willards, the original being brought away by Throckmorton, and this explains the son of the Willards saying he found the notice lying upon the table after his departure.
    On the whole case we are clearly of the opinion that the plaintiff in the bill is entitled to specific performance of this contract on the part of J. T. Willard.

      Error assigned was decree of specific performance.

      A. H. Sayers, with him Joseph Patton, for appellant,
    cited: Ledwith v. Reichard, 203 Pa. 277; Neill v. Hitchman, 201 Pa. 207; Smith v. Brinser, 1 Pa. Dist. Rep. 396; Marshal v. Sonneman, 216 Pa. 65.

      James J. Purman, with him Thomas S. Crago, for appellee,
    cited: Green v. Rick, 22 W. N. C. 318; Stevens’s App., 29 W. N. C. 453; Peabody Bldg. Assn. v. Houseman, 7 W. N. C. 193; Savings Bank’s App., 10 W. N. C. 265; McConnell v. Lloyd, 9 Pa. Superior Ct. 25; Bradford v. Watkins, 7 East, 551; Pittsburg v. Fay, 8 Pa. Superior Ct. 269; Morgan v. Church, 3 Camp. 71; Glenn v. Thompson, 75 Pa. 389.
    November 4, 1907:
   Per Curiam,

The facts which are decisive of this case appear in the opinion of the learned judge below and upon it the decree is affirmed.


text:
    Commonwealth v. Jung Jow, Appellant.

      Criminal law — Murder—New trial — Discretion of court.

    Where three men have been tried together and convicted of murder, it is not an abuse of discretion in the court to grant a new trial for one of the prisoners, and to refuse it for the others; and this is especially so where it appears that the two were arrested on the spot of the killing with the weapons still in their hands, while the other was not taken until thirty or forty minutes afterwards, and then unarmed, at a house several blocks away.
    Argued Oct. 28, 1907.
    Appeals, Nos. 221 and 222, Jan. T., 1907, by defendant, from judgment of O. & T. Phila. Co., Aug. Term, 1906, No. 303, on verdict of guilty of murder in the first degree in case of Commonwealth v. Jung Jow and Commonwealth v. Mock Kung.
    Before Mitchell, C. J., Fell, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Indictment for murder.
    Before Barratt, J.
    The assignment of error was in the following form:
    The error of the learned court consisted in its refusal to grant a new trial, such refusal constituting a clear abuse of its discretion.

      Harvey K. Zollinger, with him David J. Smyth, for appellants.

      William Findlay Brown, with him Samuel P. Rotan, district attorney, and Morris Wolf, assistant district attorney, for appellee.
    November 4, 1907:
   Per Curiam,

Appellants seek to escape from the rule that a refusal to grant a new trial is not assignable for error, by calling the refusal an abuse of discretion. The assignment of error does not show any ground upon which such charge of abuse is predicated and ought therefore to be dismissed without further comment. But looking at the argument we find that the abuse is charged to consist in granting a new trial to one of three prisoners tried together, and refusing it to the other two. It would be hard to find in the books a more inconsequent and frivolous argument. There is nothing to indicate in any way that if any error at all was made by the court below, it was not in granting the new trial to the one rather than in refusing it to the others.' But no error appears anywhere.

It is asserted that the evidence was the same as to all three prisoners who were tried together, and therefore the discrimination in treatment must have been arbitrary. But it is not the fact that the evidence was the same. The two appellants were arrested on the spot of the shooting with the weapons still in their hands, the other was not taken until thirty or forty minutes afterwards and then' unarmed at a house several blocks away. His defense was an alibi and the jury might well have acquitted him while convicting the others. What the first jury might have done the court might well permit another jury to do.

Judgment affirmed and record remitted to the court below for purpose of execution.


text:
    Commonwealth v. Johnson, Appellant.

      Criminal law — Murder—Manslaughter.
    On the trial of an indictment for murder, a conviction of murder of the first degree will be sustained where there is evidence tending to show that the prisoner went to the room of a man with whom he had a quarrel about fifteen minutes to half an hour before, and deliberately discharged a pistol at this man, but in doing so shot and killed another person. In such a case it would be manifest error for the court to direct a verdict of manslaughter.
    The court comments on disregard of the rules as to assignments of error.
    Argued Oct. 21, 1907.
    Appeal, No. 328, Jan. T., 1907, by defendant, from judgment of O. & T. Phila. Co., Nov. T., 1906, No. 624, on verdict of guilty of murder of the first degree in case of Commonwealth v. William H. Johnson.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Indictment for murder.
    Before Ralston, J.
    At the trial it appeared that on October 20, 1906, the prisoner had a quarrel with a man named John Pritchett. About a quarter of an hour to half an hour afterward the prisoner went to Pritchett’s room and discharged a pistol at him, but shot and killed Rebecca Johnson. The prisoner claimed that he shot at Pritchett because the latter ivas about to shoot at him.
    The court submitted the case to the jury defining the various degrees of homicide, including manslaughter.
    Verdict of guilty. The defendant was sentenced to death.

      Errors assigned were in the following form :
    1. That the learned court erred in refusing to give the jury instructions for manslaughter.
    2. That the court erred in declining the instructions asked for by tho defendant.
    3. That the court erred in overruling the defendant’s motion for a new trial.
    4. That the court erred in permitting hearsay testimony set out in the bill of exceptions.

      Hugh Roberts, for appellant.

      Joseph H. Taulane, assistant district attorney, and Samuel P. Rotan, district attorney, for appellee, were not heard.
    November 4, 1907:
   Per Curiam,

The assignments of error are in such manifest violation of the rules of court that they ought strictly to be disregarded. Counsel should understand by this time that rules of court are made for the certainty and facilitation of business, and compliance with them is the first requisite to entitle parties to a hearing even in a case of homicide.

But even if properly assigned the complaints of error here are totally devoid of merit. The first, that the judge refused to give the jury instructions for manslaughter,” is not correct in fact unless it is meant that he should have directed a verdict of manslaughter which would, have been manifest error.

That the shot which killed the deceased was aimed at another person does not in any way vary the nature and degree of the crime.

Judgment is affirmed and record remitted to the court below for execution.


text:
    Regan’s Estate.

      Auditor — Findings of fact — Executors and administrators — Fraud— Sale.

    A finding of fact by an auditor approved by the court that an administratrix was guilty of gross negligence and fraud in conducting a sale of decedent’s personal property, and buying at her own sale, will not be reversed by the Supreme Court where there is evidence to support the finding, and there is no manifest error.
    Argued Oct. 24, 1907.
    Appeal, No. 25, Oct. T., 1907, by Elsie E. Regan, Administratrix, from decree of O. C. Somerset Co., No. 41, 1903, dismissing exceptions to auditor’s report in Estate of Thomas F. Regan, deceased.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Exceptions to report of H. L. Baer, Esq., auditor.
    The auditor’s report was in part as follows:
    Not having the care in assuming the responsibilities that her trust as administratrix cast upon her, she permitted the personal property of the decedent to be sacrificed. Property that was appraised by good and true men at $2,161.51 she sold for 1292.55, not acting judiciously in the sale, in that she permitted the auctioneer to sell nine barrels of whisky in bulk at and for the sum of $15.00, when, in fact, each barrel would have brought twice that sum if she had given proper attention to the sale. In this manner the creditors were deprived of their share of the assets which of right they were entitled to. And the next morning after the sale, Eichards, the purchaser of all the personal property set forth in the appraisement, excepting the pig, turned the property over to the administratrix without having removed any of it from the place where it was sold or paying any money over to the administratrix, and without receiving any profit from the transaction. Eichards, who was present at the audit, was not called to explain this transaction. The auditor is of opinion that it was the duty of the administratrix to call him as a witness to explain his connection with this sale, and her failure to do so, in connection with the other testimony, satisfies the auditor that there was an agreement between them by which he was to purchase the property for her.
    Under the circumstances the auditor deems it right and proper to surcharge the administratrix with the total amount of the appraisement, to wit: $2,161.51. This same property, which was turned over to her by William Eichards, the administratrix sold during the next ten months and realized therefor the sum of $3,000.

      Error assigned was in dismissing exceptions to auditor’s report.

      J. A. Berkey, for appellant.

      John R. Scott, W. H. Ruppel, W. H. Koontz, J. G. Ogle, George R. Scull, Joseph Levy, Fred. W. Biesecker, Harvey M. Berkley, J. E. Gasteiger, J. H. Uhl, J. C. Lowry, Ernest O. Kooser, Valentine Hay, A. L. G. Hay, A. C. Holbert, Charles F. Uhl, Jr., for appellees.
    November 11, 1907:
   Per Curiam,

All the assignments of error are to findings of fact, the principal one being to the surcharge on the ground that the sale of the decedent’s goods was grossly negligent if not legally fraudulent against creditors as a sale to the administratrix herself. The circumstances of the sale were such that the auditor drew the inference that it was in violation of the rule that a trustee may not buy at his own sale. There was evidence to sustain this view and the finding having been approved by the court we can only disturb it for clear error, which has not been shown.

Decree affirmed.


text:
    Davidson, Appellant, v. McCaslin.

      Deed — Gift to church — Will—Evidence.
    On. a bill in equity by the heirs of a decedent to cancel a deed made by the decedent in his lifetime to a clergyman in trust for a church, it appeared that thirteen years after the deed was made, although the decedent had forgotten the fact of its being made, he was still desirous of doing practically the same thing. There was no power of revocation in the deed, and it was made without advice of counsel. There was no evidence that it had been executed under any undue influence. It reserved a life estate to the grantor. Shortly before his death he made a will leaving the land covered by the deed to another charity. Shortly afterwards, however, he destroyed this will after he had been informed of the deed which he had made many years before. Held, that there was no error in dismissing the bill. i
    Argued Oct. 28, 1907.
    Appeal, No. 62, Oct. T., 1906, by plaintiff, from decree of C. P. No. 2, Allegheny Co., April T., 1901, No. 789, dismissing bill in equity in case of Martha Davidson v. Rev. Charles McCaslin et al.
    Before Mitchell, C. J., Fell, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity to cancel a deed.
    Before Shafer, J.
    The court found the facts to be as follows :
    At the time this deed was executed Hugh Davidson was about sixty-eight years old. The paper was executed in the city of Pittsburg at the office of the Methodist Society, two of whose officers are witnesses to the deed. The deed contains no clause of revocation, and was made without legal advice on the part of Davidson. No undue influence was used by Mc-Caslin or any beneficiary under the deed to procure its execution. The deed was given to McCaslin, who put it on record February 18, 1890. Within a year or two after the making of this deed McCaslin ceased to be the pastor of that church, and has had no communication with Davidson so far as appears, and is now located in the west.
    Some time after the time of this deed, as we remember the evidence, Davidson cut timber partly off each of the pieces described in the deed to the value of about $400 and sold the same and applied the proceeds to payment for the parsonage building, and on April 15, 1890, he made a deed in fee to the trustees of the two Methodist Episcopal Churches above mentioned for about eight acres of the land, being the part on which the parsonage building was erected. This deed contained no reservation of a life estate, and was recorded January 21, 1905. Davidson appears, however, to have occupied the whole tract, including the parsonage, up to the time of his death, and at the time of his death the old house in which he had formerly lived upon the place was occupied by a tenant whose lease did not expire until some ti me after Davidson’s death. Davidson himself lived with his sister, Martha Davidson, one of the plaintiffs, in the parsonage building.
    There is evidence of two or three witnesses that within a couple of years of his death he used expressions which would indicate that he did not know or remember that he had made any deed for his property. About a year before his death, being then about eighty-one years old, he sent for a justice of the peace of the neighborhood to write a will for him, and, in accordance with his instructions, a will was drawn up in which he directed his executors to sell his real estate consisting of 120 acres, more or less, and gave all the proceeds to the Board of Church Extension of the Methodist Episcopal Church to be used as a loan fund by said Board of Church Extension. The justice thereupon went out to procure witnesses to the will and heard among the neighbors a report that Mr. Davidson had made a deed of his property to the church in some way. He told Mr. Davidson of what he had heard, and Davidson did not seem to recall that he had made such a deed, but employed the justice to go to Pittsburg to the recorder’s office to see if such a deed was on record. The justice came to the recorder’s office and took a copy of the deed which is in question in this case, and returned and showed it to Mr. Davidson, who expressed some dissatisfaction with its terms, but what he said in regal’d to it the justice could not remember. Davidson thereupon destroyed the will which had been executed a day or two before.

      Error assigned was decree dismissing the bill.

      J. McF. Carpenter, with him Geo. N. Chalfant and W. M. McJunkin, for appellants.

      Harvey Henderson, for appellees.
    November 11, 1907:
   Per Curiam,

The learned judge below in his conclusions found: “ The real question in the present case is whether or not the deed itself is void as made without consideration, and under such circumstances as to throw the burden of proving its validity upon the defendants. We have no hesitation in saying that if Davidson himself had in his lifetime attacked the deed for the reason that it contained no power of revocation, and was made without counsel or advice, he would have presented a very strong case. Put the uncontradicted evidence is that thirteen years after the deed was made, although he had forgotten the fact of its being made, he was still desirous of doing practically the same thing. ... We consider the fact that the grantor in the deed carried in his mind up to shortly before his death the intention of giving the bulk of his property to the Church Extension Society, and all of it which was not given to the local church for parsonage purposes, long after he ceased to have any communication with Mr. McOaslin, the trustee, his pastor, to be cogent evidence that the deed at the time it was made was not made under any undue influence on the part of McOaslin, but was the free and voluntary act of the grantor, and was calculated to carry out his actual intention ; that after the lapse of thirteen years, and after having made a deed in fee without the reservation of a life estate to the church for a parsonage, he should then have desired to give all the remainder of his farm to the Church Extension Society instead of the ninety-five acres described in the deed, does not affect his general purpose.”

On this convincing summary of the case the decree is affirmed.


text:
    Walker’s Estate.

      Wills — Devise—Legacy.
    Where a testator devises land to one person with a direction that if the devisee shall at any time sell the land for an amount in excess of a sum named, the overplus should be paid to another person, and the devisee dies without having sold the land, whatever interest the other person had under the will, comes to an end.
    Argued Oct. 28, 1907.
    Appeal, No. 16, Oct. T., 1907, by Oliver F. Bostwick, from decree of O. C. Allegheny Co., May T., 1905, No. 189, dismissing petition for citation in Estate of Edward G. Walker, deceased.
    Before Mitchell, C. J., Fell, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Petition for citation.
    The petition prayed the court to award a citation to Charles Marthens, Mrs. Samuel Aldrich, Charles Marthens, Jr., William Marthens, Walker Marthens, Lida Marthens and Louis Kabel and Charles Marthens, executor of Edward G. Walker, to appear and show cause why the amount of a legacy to Mrs. Mary E. Bostwick should not be ascertained and payment made to petitioner, and in default of payment to show cause why certain property should not be sold and said legacy paid, and for such other relief as the court may deem proper and just.
    The facts appear by the opinion of the Supreme Court.
    The court in an opinion by Hawkins, P. J., dismissed the petition.

      Error assigned was the decree of the court.

      Morton Hunter, for appellant.

      J. McF. Carpenter, with him Geo. N. Chalfant, J. E. McKelvy and J. Merrill Wright, for appellees.
    November 11, 1907:
   Per Curiam,

The testator devised a house to Mrs. Marthens “ with the provision that if she should at any time sell the said property for over $5,000 the overplus to be paid over and given to Mrs. M. E. Bostwick.” This is a perfectly plain and simple devise of the house to Mrs. Marthens, with a pecuniary legacy to Mrs. Bostwick, contingent on the sale of the house by the devisee for more than the sum named. The legacy did not impair or incumber the fee given to the devisee and a sale by her would have carried a good title to the purchaser without regard to the amount of the purchase money. All the discussion about powers or trusts, the value of the house, etc., is outside of the case. The testator imposed no obligation on his devisee to sell, and no court had authority to do so for him, either directly or indirectly, by an inquiry into the value of the house and a demand on the devisee to account for the estimated surplus upon a supposititious sale. The devisee in her lifetime could not have been called upon either to sell or to account on the basis of a sale, and when she died without having sold, all possibility of the happening of the contingency passed and the interest of Mrs. Bostwick came to an end.

Decree affirmed.


text:
    Johnson v. Royal Insurance Company of Liverpool, Appellant.

      Judgment — Opening judgment — Judgment by default — Discretion of court.

    On an application to open a judgment entered for want of a plea, where it appears that the same issue had already been tried in several previous suits, and the defendant puts in evidence a record of such suits, and very little additional evidence, the court does not abuse its discretion in refusing to open the judgment.
    Argued Oct. 28, 1907.
    Appeal, No. 305, Jan. T., 1907, by defendant, from order of C. P. Fayette Co., Dec. T., 1906, No. 325, discharging rule to open judgment in case of Daniel J. Johnson and Charles H. Gorley v. Royal Insurance Company of Liverpool.
    Before Mitchell, C. J., Fell, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Rule to open judgment.
    Before Umbel, J.
    The opinion of the Supreme Court states the case.

      Error assigned was the order of the court.

      W. K. Jennings, with him Dale C. Jennings and Jones & Henderson, for appellant.

      W. J. Sturgis, of Howell, Sturgis & Morrow, for appellee.
    November 11, 1907:
   Per Curiam,

The judgment appearing to be entirely regular according to the rules of court in Fayette county, the application to open it was addressed solely to the equitable discretion of the court.

The only contest in the case was upon a question of fact, the amount of damages to the plaintiff by the fire. This same issue had already been tried in several previous suits on other policies covering the same risk. The evidence in those cases ivas conflicting, but in regard to it the learned judge said: “ If the verdicts of the jury had been for the full amount of the policies instead of only about ninety-three per cent, under the evidence ive would have hesitated to disturb them. For taking into consideration the experience of the men who testified on both sides, their opportunities for acquainting themselves with the facts regarding which they testified, the times — with reference to the date of the fire — at which they made their examinations, the condition of the building at these several times and the manner and character of the examinations, convince us that the weight of the credible testimony was witli the contention of the plaintiffs, and it was ample to have justified us in sustaining a verdict of 100 cents on the dollar if such had been returned by the jury.” On the hearing of this rule the appellants put in evidence the record of the previous suits and very little additional evidence on the amount of the loss. The learned judge having before him the verdicts in those suits and being satisfied with them, naturally refused to open this judgment to reach what would in all probability be the same result.

Order affirmed.


text:
    Johnson v. St. Paul Fire & Marine Insurance Company. Johnson v. Northern Insurance Company. Johnson v. Agricultural Insurance Company. Johnson v. Providence Washington Company. Johnson v. Citizens Insurance Company. Johnson v. Aachen & Munich Insurance Company.
    November 11, 1907:
   Per Curiam,

These cases all involve the same question as Johnson v. Royal Insurance Company, opinion filed herewith, ante, p. 182, and for the reason given therein the orders are affirmed.


text:
    Knight v. Church, Appellant.

      Will — Devise—Power of sale — Application of purchase money.

    Land devised to a wife in trust and if she “desires she can sell said farm and invest the money in other farm land,” creates a present power of sale in the wife, and if she exercises the power and sells the land, the purchaser is under no obligation to see to the application of the purchase money.
    Argued Oct. 21, 1907.
    Appeal, No. 68, Oct. T., 1907, by defendant, from judgment of C. P. Greene Co., May T., 1906, No. 92, for plaintiff on case stated in suit of Ori L. Knight, Executrix of last will and testament of John R. Knight, deceased, v. Rinehart B. Church.
    Before Mitchell, C. J., Fell, Browen, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Case stated to determine marketable title to land.
    Ingraham, P. J., filed the following opinion:
    The second clause of the will of John R. Knight, deceased, provides as follows:

      “My farm situated in Center twp. ... I direct that my wife shall have control of said farm, renting farm, paying taxes, & etc. and paying Wayne his share of income until W ayne becomes of age, or if my wife desires she can sell said farm and invest the money in other farming land.
    “ Should she sell said farm she shall not give bond for the money received from farm until she invests in other land.”
    The questions for determination here are :
    1. Does the will of John R. Knight create a present power to sell?
    2. Is the power to sell, if one presently exists, sufficient for sale of part of the land only, i. e., the surface, reserving the coal ?
    3. Is Rinehart B. Church, the purchaser, required to look to the application of the proceeds of sale ?
    As John R. Knight, the testator, has in express words given his wife the right, if she so desires, to sell his farm, and to invest the proceeds in other farming land, it will not be seriously questioned that the will does create a present power to sell, and as there is nothing in the will fixing either the time or manner of sale, we are of opinion that the widow would have the right to sell the farm at such times as she might think best, and either as a whole, or in parcels, as she might deem best for the best interest of the whole estate.
    While the third question, “ Is Rinehart B. Church, the purchaser, required to look to the application of the proceeds of sale ? ” is not new, still it is one that has not often been before the courts for consideration.
    In trusts of certain nature, as, for instance, if it be for the payment of legacies, which are scheduled or specified, the purchaser is bound to see that the purchase money is properly applied.
    “ But he is not bound to see the money applied, where the trust is for the payment of debts generally and also for the payment of .legacies; and where the trust is for the payment of debts generally, the purchaser is not bound to see to the application of the purchase money, although he has notice of the debts; for a purchaser cannot be expected to see to the observance of a trust so unlimited and undefined: ” Grant v. Hook, 13 Sergeant & Rawle, 259.

      In this case the language of the will is, “ or if my wife desires she can sell said farm and invest the money in other farming land.”
    Prom this it will be seen that the sale of the land and the reinvestment of the proceeds of the sale are both left to the sound discretion of the trustee; she may sell or not, as she may determine after the exercise of due deliberation and discretion : and if she does sell she is required to reinvest the proceeds of the sale in such other farming land as she, after due deliberation and in the exercise of sound discretion, may select.
    “ Whenever a trustee empowered to sell, is at the same time authorized and required to reinvest the avails of the trust property, under the same trusts with which the original estate was clothed, the purchaser is discharged from all obligation to see to the proper application of the purchase money paid by him to the trustee. And it is difficult to perceive how it could practically be otherwise. Reinvestments are eminently matters for the exercise of sound discretion. The failure of a due exercise of such discretion may involve the trustee in direct personal liability for a breach of trust. To coerce precipitate action by the trustee may be most deleterious to the trust fund; while to keep the purchaser in a state of suspended liability, until such reinvestment is properly made and duly secured according to the terms of the trust, would embarrass, if not totally nullify the whole power to sell: ” Dalzell v. Crawford, 1 Parsons, 37, 60.
    Under the circumstances of this case, we are of opinion that the purchaser is not bound to see to the application of the purchase money.
    Judgment for the plaintiff.

      Error assigned was the judgment of the court.

      James J. Purman, for appellant.

      John L. Wood, for appellee, was not heard.
    November 14, 1907:
   Per Curiam,

The judgment is affirmed on the opinion of the court below.


text:
    Emerick, Appellant, v. Emerick.

      Will — Devise—Life estate — Fee simple estate — Rule in Shelley’s case.

    A devise of land to testator’s two sons “ in trust to make their living, and to their children after them,” creates an estate for life in the sons with a remainder in fee to their children.
    Submitted Oct. 22, 1907.
    Appeal, No. 195, Oct. T., 1907, by plaintiff, from judgment of C. P. Indiana Co., Dec. T., 1906, No. 156, for defendant on case stated in suit of George Emerick v. Harvey Emerick.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Case stated to determine marketable title to real estate.
    Telford, P. J., filed the following opinion :
    On June 13, 1906, a contract was executed between these parties, whereby George Emerick agreed to convey to Harvey Emerick an undivided one-half interest in a certain tract of land in Canoe township, containing forty-seven and one-half acres, which was formerly the property of John Emerick, deceased, for the consideration therein named, and the said Harvey Emerick agreed to pay said consideration to the said George Emerick, if he had a fee simple interest in the undivided one-half interest which he proposed to convey. This conveyance depends upon the construction of the will of John Emerick, who died March 28, 1891, and whose will was admitted to probate on June 8, 1891. The clauses of the will to be construed are as follows:
    “ I give and bequeath, my land or farm, and all my personal property of whatever kind to my two sons Harvey Emerick, and George Emerick in trust to make their living and to their children after them on condition here specified or described.
    “ First. That they the said II. Emerick & G. Emerick be-Guardian over my Grandchildren by my son J. Emerick Junior Deceased and see to it that these children get their training and education until of proper age and for that purpose I give and bequeath to them Six Hundred Dollars if needed without selling their Real Estate. Second. I give and bequeath to my daughter Kate (Collket) ten dollars. Third that that the said H. Emerick & G. Emerick to pay my debts and funeral expenses and ackt and be apointed Executors, of this my will.”
    In arriving at a proper construction, we must first ascertain the intention of the. testator and, in finding this intention, we. must be governed by the language of the will. The language of devise is “ I give and bequeath my land or farm to my two sons Harvey Emerick and George Emerick, in trust to make their living and to their children after them.” The word “ children ” is a word of purchase and not of limitation and must be so construed, since it is not clear that the grantor used it as intending to use it in the sense of heirs.
    We have searched this will to ascertain whether testator by any expression therein, indicated any intention, other than that expressed by literal words used, and find nothing to aid us.
    We must therefore accept the word “ children ” as expressing the intent of testator and hence decide that the donees in remainder take as purchasers and not by inheritance, and that the rule in Shelley’s case does not apply. Judgment is therefore directed to be entered for the defendant upon the case stated.

      Error assigned was the judgment of the court.

      J. N. Banks, for appellant.

      D. H. Tomb, for appellee, filed no printed brief.
    November 14, 1907:
   Per Curiam,

The judgment is affirmed on the opinion of the court below.


text:
    Wyss-Thalman v. Beaver Valley Brewing Company, Appellant.

      Corporation — Minutes—Proof of minutes — Evidence.
    Ordinarily tlie minutes of a corporation are proven by the identification of the minute book by the secretary of the company at the time of the trial, but where it is shown that the book was never in the possession of the person who was secretary at the time of the trial and an explanation is given as to why the book was not brought into court in the regular way, the book may be admitted in evidence with proper cautionary instructions to the jury in relation to it.

      Corporations — Minutes—Meetings—Contract.
    Where a person relying upon the minutes of a corporation enters into a contract with the company, and renders services and makes expenditures under the contract, the company cannot relieve itself from liability because the meeting of the directors at which the resolution was passed had not been legally called, if it appears that the party making the contract had no knowledge of the illegality of the meeting.
    Argued Oct. 28, 1907.
    Appeal, No. 87, Oct. T., 1907, by defendant, from judgment of C. P. Beaver Co., Dec. T., 1905, No. 378, on verdict for plaintiff in case of F. L. Wyss-Thalman v. Beaver Valley Brewing Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Assumpsit for services.
    At the trial the jury returned a verdict for plaintiff for $1,695.89. Defendant appealed.
    The court entered judgment on the verdict, Holt, P. J., filing the following opinion :
    Upon the argument of the motion, counsel for the defendant took two positions why the motion should prevail, one that the minute book offered in evidence by the plaintiff should not have been received in evidence, on the ground that the same was not brought into court and identified by the person who was secretary of the defendant company at the time of the trial, and, second, for the reason that P. J. Huth, who was a member of the board of directors and secretary of the company at the time the resolution upon which the plaintiff relies was passed, was not present at the meeting when said resolution purports to have been adopted, and that he had no prior notice of such meeting.
    From the testimony taken upon the trial, it appears that P. J. Iiuth was elected secretary of the defendant company at the first meeting of the board of directors, on August 17, 1902, and that he continued at least the nominal secretary up until March 3, 1903, when he was succeeded as secretary by L. Thumm.
    From the testimony it appears that P. J. Huth as secretary and member of the board of directors, according to his own evidence, attended but two meetings of the board, one when the board was organized, and the other in the year 1903, when the capital stock of the company was increased to $100,000, and that at the meetings he attended he kept the minutes on slips of paper, which he turned over to the president of the board immediately thereafter, and the same were transcribed into the minute book which the plaintiff has brought into court by L. Thumm, who signed the same “ P. J. Huth, per Th.”; that at all the meetings of the board, save the two meetings last above mentioned, L. Thumm acted as secretary pro. tern, until he was elected the regular secretary of the board, and kept and recorded all of the minutes except those of one meeting, which, in 'his absence, were kept by Thomas C. Fry. After L. Thumm was elected secretary of the company, according to his testimony, and it seems to be undisputed, he continued to keep the minutes of the meetings of the board of directors in the same minute book, being the one offered by the plaintiff in this action. This book, according to the testimony, contains, among other matters, the minutes relative to the increase of the capital stock of the defendant company to $100,000, and it likewise contains the minutes of the meeting held on November 18, 1902, at which time a contract for the erection of the brewery was authorized and let, at the contract price of $281,350. L. Thumm continued to act as secretary of the company until some time in the month of October, 1901, when his successor was elected. From the evidence it appears that there were two rival factions in the brewing company, and that those who received the greater number of votes at the October election, 1904, were not recognized by one of the factions, and that since that time litigation has been in progress for the purpose of requiring the former officers, including the said L. Thumm, to turn over the minute book and other books and papers of the corporation to their successors in office, and which said litigation at the time of the trial in this case was yet pending. L. Thumm has testified that in the month of October, 1904, he turned the minute book in question over to the corresponding secretary, the plaintiff in this action; that during the time he acted as secretary pro. tem. and as secretary of the company, he kept the said minute book at the office of the defendant company in Pittsburg, in the company’s safe.
    Fannie L. Wyss-Thalman, the plaintiff in this suit, has testified to the fact that the minute book was turned over to her by L. Thumm in October, 1904, and that she placed the same in the safe of the company, in the company’s office in the city of Pittsburg, where it has been kept ever since, the key of the safe remaining in her possession. L. Thumm has testified that he recorded the minutes correctly, and that they are all in his handwriting save the minutes of one meeting, which were kept by Thomas C. Fry ; that he has examined the book, and identifies it as the book in which he kept the minutes, and says that no alterations or changes, whatsoever, have been made in the minutes since the same were written by him. The plaintiff has testified that the minute book and the minutes therein remaining are the same as they ivere when the book was turned over to her in October, 1904.
    Ordinarily the minutes of a corporation are proven by the identification of the minute book by the secretary of the company at the time of the trial. The book in question was never in the possession of the person who was the secretary of the defendant company at the time of the trial. The plaintiff has offered evidence to show the reason why the book did not come into court in the regular way, to wit: that there was a dispute as to who was the lawful custodian of the minute book, and that there was litigation pending concerning such matter. The defendant has not denied the fact of the existence of such dispute, and no officer or stockholder of the company has denied the fact that the said book is the minute book of the defendant company.

      At the trial we were of the opinion that under the evidence in the case it was our duty to submit the question to the jury; and we instructed them that the minute book came before them under circumstances of suspicion, the book not having been produced and identified by the person who was the secretary of the company at the time of the trial, and that the burden rested upon the plaintiff to prove by clear and satisfactory evidence that this book was, in fact, the minute book of the defendant company, and that the minute upon which the plaintiff relied for recovery was the minute of the board of directors of said company.
    The resolution upon which the plaintiff relies for a recovery of the greater part of her claim is as follows: “November 18, 1902. In accordance with the previous resolution the board of directors of the Beaver Valley Brewing Company met this Tuesday, November 18, 1902, in their office, in the Bissell Block, at 5:30 p. m., all directors being present except P. J. Huth, V. Wyss-Thalman presiding. The minutes of the previous meeting, held November 11, 1902, were read and approved. Motion made and duly seconded that Miss Fannie L. Wyss-Thalman be engaged as corresponding secretary at fifteen dollars per week, commencing from date, November 18, 1902. Carried.” This resolution appears to have been passed at the same meeting when the contract for the erection of the brewery of the defendant company was authorized.
    The plaintiff’s claim is for $1,496.37, being for $22.07 for moneys alleged to have been expended for receipt books, stationery, postage stamps, etc., for the defendant company, and for ninety-eight weeks and two days’ services, which she alleges she performed in pursuance of the resolution aforesaid, amounting to $1,474.30.
    In view of the testimony, the jury evidently found that the book produced and offered in evidence by the plaintiff was, in fact, the minute book of the defendant company, and that the resolution upon which the plaintiff relied was passed by its board of directors, and that the expenditures were made and the services rendered as contended for by the plaintiff.
    It is the law that action taken by any number of the members of the board of directors of a corporation, except at regular stated meetings, is not binding unless absent members have had reasonable notice beforehand of such meeting, and if it be a meeting for a special matter, also notice of the purpose of the meeting. And one with knowledge or notice of the fact that a meeting of the board of directors was held without authority of law, cannot recover in a case where he has to depend for his recovery upon the action taken at such meeting. A corporation, however, will be estopped from denying the validity of its minutes, where one without notice or knowledge of the irregularity has entered into a contract with the corporation on faith of the minutes of its board of directors, and in good faith parted with his property, or rendered services of which the corporation received the benefit. In the case of Manhattan Hardware Co. v. Roland, 128 Pa. 119, Mr. Justice McCoixtim, in delivering the opinion of the Supreme Court, among other things, said: “In February, 1886, Roland, in good faith, loaned to the Manhattan Hardware Company $15,000 upon bond and mortgage. The mortgage was duly executed under the seal of the corporation, and was promptly recorded. It recites a resolution which appears upon the minutes of the corporation, authorizing it. The money secured by it was received by the company and used for its benefit. It is not alleged that any stockholder was ignorant of these transactions, or protested against them. The corporation cannot deny the accuracy of its own minutes as against a party who loaned it money on the faith of them.”
    In the present case the evidence shows that P. J. Iluth, one of the directors, was not at the meeting of the board of directors when the resolution upon which the plaintiff relies was passed, and that he did not have any prior notice of such meeting. There is no evidence that prior to the time of the passage of the resolution in question, the plaintiff in this action was in the employ of the defendant company in any capacity, or that it was her business to give notice to members of the board of directors, or to any stockholder or officer of the company in relation to any matter whatsoever. There is no evidence upon the record that the plaintiff had any knowledge or notice of the fact that P. J. Iluth did not have sufficient and proper notice of the meeting of the board of directors at which the resolution upon which she relies was passed. Under the law, we do not think that it was her duty to make an investigation, before entering upon the performance of her duties, to ascertain whether or not everything had been done by the officers of the defendant company to constitute a lawful directors’ meeting. Prior to the time of entering upon her employment she could have no concern with the minutes of the board of directors, and even after her employment the minutes of the meetings of the board of directors were such matters as were not under her control. She was justified in relying upon the validity of the resolution, without investigation. In the case of Manhattan Hardware Co. v. Phalen, 128 Pa. 110, it was held that where the mortgage of a manufacturing corporation, executed under the corporate seal, reciting a resolution of the directors that it was unanimously authorized by the stockholders, the affidavit of defense to a scire facias thereon, averring that the mortgage was not authorized by the stockholders, and that no stockholders’ meeting had been called upon the subject, was insufficient to prevent summary judgment.
    In the last mentioned case it was held that Phalen was not bound to inquire into the regularity of the proceedings leading up to the making of the mortgage, and that inasmuch as the company received Phalen’s money and got the benefit of it, the hardware company was estopped from denying the validity of the mortgage. In the present case, the jury evidently found that the plaintiff rendered the services for which she brought her suit; and as she was not required to look beyond the resolution employing her, we are of the opinion that the fact that P. J. Huth did not attend the meeting, and had no notice thereof, will not avail the defendant by way of defense to this action.

      Error assigned was in not entering judgment for defendant non obstante veredicto.

      Wm. A. McConnel, with him James H. Cunningham and Wm. H. Cox, for appellant.

      J. F. Reed, for appellee, was not heard.
    November 14, 1907:
   Per Curiam,

The judgment is affirmed on the opinion of the court below.


text:
    Purvis, Appellant, v. Buffalo, Rochester & Pittsburg Railroad Company.

      Negligence — Railroads—Alighting ¡rom moving train — Contributory negligence — N onsuit.

    It is negligence per se to get off a moving car or train and to exempt a passenger from this rule on the ground that he was told to get off by an employee of the railroad, it must appear that the direction was in the exercise of some authority or compulsion. Mere advice or direction in the passenger’s carrying out of his own purpose is not enough.
    Where a person, not a passenger, goes on a train standing at a station with the permission of the trainmen, to locate his wife and daughter in a sleeping car, and as he starts to leave the car, the train moves and the brakeman says to him “hurry up and get off” and in alighting he is thrown under the moving train and injured, he is guilty of contributory negligence, and cannot hold the railroad company liable for his injuries.
    Argued Oct. 23, 1907.
    Appeal, No. 150, Oct. T., 1907, by plaintiff, from order of C. P. Butler Co., Dec. T., 1905, No. 55, refusing to take off nonsuit in case of L. O. Purvis v. Buffalo, Rochester & Pittsburg Railroad Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries.
    The court entered a compulsory nonsuit which it subsequently refused to take off, Galbreath, P. J., filing the following opinion:
    A careful re-examination of this case on the pending motion has not convinced us that error was committed in directing a compulsory nonsuit. On the night of July 11,1905, near midnight, at Butler, plaintiff entered a Pullman coach comprising part of a train which runs from Pittsburg, Pa., to Buffalo, H. Y., over defendant’s road.
    The train is known as “the flyer” and has the reputation of being a fast train, which was known to the plaintiff. He entered the coach with his wife and daughter, whose destination was a point in Canada. He had secured a stateroom for them, and, by reason of the condition of his wife’s health, was anxious to know that the quarters engaged were such as he had stipulated for and were suited to her condition. In order to be assured of this, as well as to assist his wife and daughter with their baggage, he entered the train with them, informing the brakeman as he was about to enter that he himself was not going away, but only his wife and daughter. Quite a number of others boarded the train at the Butler station. The plaintiff, his wife and daughter, entered the coach at the rear end and walked the length of the car, about seventy-six feet, to the stateroom, which was located at the front end of the coach. After seeing his wife and daughter safely located in their room the suggestion was made to him by someone that the train was starting or about to start, and that he had better get off, which he proceeded to do. The plaintiff testifies as follows: “ Well, Mrs. Purvis, when I said that I guessed everything is all right, she says, ‘ Mow hurry and get offand Mr. Haworth says, ‘Yes, I guess the train is in motion and the conductor was standing right alongside of me.”
    The aisle of the car was impeded by others who had entered with their baggage, and who were in the act of getting located in their berths, which necessarily retarded somewhat the plaintiff’s progress to the rear of the car, where he had entered. On his way down the aisle someone suggested to him that he had better hurry, as the train was moving.
    As he approached the rear entrance the brakeman opened the outside door of the coach and said to him, “ Hurry and get off.” The night was wet and dark, with little light on the platform. The plaintiff stepped to the platform, facing the direction in which the train was moving.
    As he jumped, a distance of about twenty inches, to the platform, the train, in quickening its motion, gave a lurch, the plaintiff alighted on the platform, but his feet struck against something and he slipped and fell under the car and was injured in the way testified to by him.
    The point on the platform where he alighted was about 145 feet from the point where he had entered, which was therefore the distance the train had already moved when plaintiff jumped from it.
    The plaintiff not being a passenger on defendant’s train, ordinary care was the measure of defendant’s duty toward him: Lucas v. New Bedford, etc., R. R. Co., 72 Mass. 64.

      It would be difficult to say, we think, under the evidence, that the defendant company in any respect failed in the exercise of that measure of care toward him. The compulsory nonsuit was not, however, put upon that ground, but was directed because, under the evidence and the law applicable thereto, the plaintiff was deemed guilty of contributory negligence.
    The rule of law governing cases of this kind has been stated in many cases. As a general proposition it is negligence in a passenger to jump from a moving train, but to this general rule there are rare exceptions, as when the passenger is placed in peril by the default or negligence of the company, or when he leaves the train while it is in motion, by direction of the company’s agents, it is for the jury to say, upon the evidence, whether the act was negligent or not: Penna. R. R. Co. v. Lyons, 129 Pa. 113.
    A more recent statement of the general rule, which indicates that its strictness has not been in any degree relaxed, is found in Boulfrois v. Traction Co., 210 Pa. 263, wherein it is said “ that to get on or off a moving car, whether propelled by steam or electricity, is negligence per se in him who attempts it.”
    On part of plaintiff it is contended that his case comes within one of the exceptions to the rule, by reason of the language of the brakeman who said to him, when he was about to get off the train, “ Hurry up and get off,” which, it is urged, was equivalent to a direction to him to get off. As tending to indicate what is regarded by the courts of our state as such a direction by the agents of the company as will take a case out of the general rule, two cases may be cited.
    The first of these is Deery v. R. R. Co., 163 Pa. 403, where a passenger, riding in a combination car, got off through the side door, with the help of the conductor standing on the ground outside, who extended his hand to help her alight, at the same time saying, “ Step lively, madam, step lively.” In so getting off she was injured, and, in a suit against the company for damages, was nonsuited. The action of the court was, on writ of error, affirmed, and while the act of the plaintiff, in alighting from the train at the side door, was a prominent feature of the case, yet the Supreme Court, in its opinion, says: “Neither the language of the conductor while she stood in the side door, nor the assistance he gave her in alighting, nor both combined, charged the company with responsibility for the consequences of her careless act. ... In such case something more is required to render the company liable than its employee’s consent to the passenger’s negligent act.”
    In the case of Rothstein v. R. R. Co., 171 Pa. 620, the plaintiff, at Altoona, Pennsylvania, wishing to go to New York, by mistake boarded a train for Pittsburg. On discovering his mistake he said to an employee on the train, “ Stop, please, and let me off; I want to go to New York,” and received the reply, “We cannot stop this train, step over on your left side and jump off; we are going slow.” He jumped off, and in doing so was injured and, having brought suit against the company, a compulsory nonsuit was entered. On appeal to the Supreme Court the action of the court below in refusing to take off the nonsuit was affirmed. The court says : “ The sole attempted extenuation of the act lies in the conversation with the person called by the plaintiff a trainman, but whether the person was the conductor of the train, a brakeman or a Pullman car porter does not appear. It does appear, however, that he did not order the plaintiff to jump from the car, and that what he said amounted at most to a suggestion or expression of opinion that he might do so.”
    In the first of these cases the plaintiff was acting on her own initiative in alighting at the side door of the car, but was helped by the conductor and by him was bidden to make haste in the thing which she was about to do. This, however, did not relieve her of responsibility for her own voluntary act.
    In the case of Rothstein v. R. R. Co., the suggestion that he jump from the moving train did not originate with the plaintiff, but came from an employee of the defendant company. But neither the language of the conductor, in the one case, bidding the passenger to make haste, nor the suggestion of the trainman in the other, amounted to a direction to the passenger which would, take the case out of the operation of the general rule.
    From these cases we may draw the conclusion that the direction which will excuse the act of a passenger in alighting from a moving train must be such as amounts to or is accompanied by a degree of constraint or compulsion. In the case at bar the plaintiff alighted from the moving train because it was his fixed purpose to do so. When asked the question on cross-examination, “You intended to get off?” he answered, “ Certainly, that was what I was there for.” That he realized the danger of doing so is evident from his further testimony wherein he says: “ Y es, I remember when 1 was running down the aisle of thinking, now, I must be careful and get off towards the engine, and that is the way I jumped.” The language of the brakeman, “ Hurry up and get off,” did not impel the plaintiff to do so against his will. It did not even suggest to him that he jump off, but simply hastened him in doing that which he purposed doing in any event. It amounted to no more than an expression of opinion on part of the brakeman that he could get off the moving train if he did so quickly. Ho constraint was put upon plaintiff. He was not impelled to do that which he would not otherwise have done. The very fact, as testified to by plaintiff, that his own purpose was to alight from the train, negatives the idea of any outside constraint or direction. The language of the brakeman at most but suggested haste in that which plaintiff already purposed doing. But, as said in Deery v. Railroad Co., 163 Ba. 403, “ In such case something more is required to render the company liable than its employee’s consent to the passenger’s negligent act.” The brakeman’s language wras not responsible for the plaintiff’s initiative, nor did it excuse the exercise of his own judgment.
    The motion to take off the compulsory nonsuit is therefore refused, February 25, 1907.

      Error assigned was the order of the court refusing to take off nonsuit.

      T. C. Campbell, for appellant.
    The plaintiff being on the train for a proper purpose, it w’as the plain duty of the defendant to hold the train for a sufficient time to enable the plaintiff to assist his wife to the drawing-room of the car, to see that she had the accommodation which he had purchased for her, and which was necessary for her, and then safely to get off. Failure in the performance of this duty was negligence on the part of the defendant company: Little Rock, etc., Ry. Co. v. Lawton, 55 Ark. 428 (18 S. W. Repr. 543); Berry v. Louisville, etc., R. R Co., 22 Ry. L. Rep. 1410 (60 S. W. Repr. 699); Morrow v. Atlanta, etc., R. R. Co., 134 No. Car. 92 (46 S. E. Repr. 12); Louisville, etc., R. R. Co. v. Crunk, 119 Ind. 542 (21 N. E. Repr. 31); Doss v. Missouri, etc., R. R. Co., 59 Mo. 27; Johnson v. Southern Ry. Co., 53 So. Car. 303 (31 S. E. Repr. 212).
    Negligence of defendant company was in not stopping the train to let plaintiff off, after it had started, and in directing him to jump off the moving train, followed by a jerk as he did jump off: Louisville, etc., R. R. Co. v. Ray, 101 Tenn. 1 (46 S. W. Repr. 554); Pennsylvania Co. v. Roy, 102 U. S. 451; Cleveland, etc., R. R. Co. v. Walrath, 38 Ohio St. 461; Thorpe v. New York Central, etc., R. R. Co., 76 N. Y. 402; Evansville, etc., R. R. Co. v. Athon, 6 Ind. App. 295; Jones v. Chicago, etc., Ry. Co., 42 Minn. 183 (43 N. W. Repr. 1114); Gulf, etc., R. R. Co. v. Shelton, 30 Tex. Civ. App. 82 (69 S. W. Repr. 653); Eddy v. Wallace, 49 Fed. Repr. 801.
    The facts in this case clearly show that it comes within an exception to the general rule as to contributory negligence: Johnson v. West Chester, etc., R. R. Co., 70 Pa. 357; Powelson v. Traction Co., 204 Pa. 474.
    In support of the proposition that to get on, or jump off, a moving train in response to the suggestion, advice or direction of’ a train officer, is not negligence for a passenger unless so dangerous that an ordinarily prudent person would not attempt it, the following cases are cited: Lambeth v. North Carolina R. R. Co., 66 No. Car. 494; Georgia R. R., etc., Co. v. McCurdy, 45 Ga. 288; Chicago, etc., R. R. Co. v. Randolph, 53 Ill. 510; Filer v. N. Y. Central R. R. Co., 49 N. Y. 47; St. Louis, etc., Ry. Co. v. Person, 49 Ark. 182 (4 S. W. Repr. 755); Jones v. Chicago, etc., Ry. Co., 42 Minn. 183 (43 N. W. Repr. 1114); McCaslin v. Lake Shore, etc., Ry. Co., 93 Mich. 553 (33 N. W. Repr. 724); Eddy v. Wallace, 49 Fed. Repr. 801; East Tennessee, etc., R. R. Co. v. Hughes, 92 Ga. 388 (17 S. E. Repr. 949); Texas, etc., Ry. Co. v. Bingham, 2 Tex. Civ. App. 278 (21 S. W. Repr. 569); St. Louis, etc., R. R. Co. v. Rosenberry, 11 S. W. Repr. 212.

      C. H. McCauley, F. J. Forquer and Lev. McQuistion, for appellee, were not heard.
    November 14, 1907:
   Per Curiam,

This is a hard case and appellant’s counsel has presented a very able argument to take it out of the general rule that to get on or off a moving train is negligence per se. We have re-examined the authorities to see if it can be brought within the exceptions, but it cannot consistently be done. The rule is founded on solid considerations of public policy for the safety of the traveling community, the exceptions are few in number and the cases must come very clearly within them. The learned judge below has discussed the law and the facts very fully and accurately and, on his opinion, the judgment is affirmed.