author: Mr. Justice Dean,

text:
    Donithen, Appellant, v. Independent Order of Foresters.

      Beneficial association—Beneficiaries—Brother—Widow.

    Where the charter of a beneficial association declares as one of the objects of the corporation the payment to the “widow, orphans, dependents or other beneficiary ” whom the member has designated as objects of the beneficiary fund, and the constitution states one of the objects of the order to be the payment “ to the member, or his wife, or his affianced wife, or-his children, or his blood relations, or to persons dependent upon the member whom he may have designated,” a brother may be designated as beneficiary, but if it appears that the brother’s name was inserted without his knowledge as a trustee for the member’s wife, who was at the time a minor, the trust will be enforced and after the wife’s majority the fund will .be paid to her.
    Argued April 19, 1904.
    Appeal, No. 6, Jan. T., 1904, by plaintiff, from judgment of Superior Court, Oct. T., 1902, No. 127, affirming judgment of C. P. Blair Co., Equity Docket B, No. 800, dismissing bill in equity in case of Ella Donithen v. Independent Order of Foresters and Lloyd Donithen.
    Before Mitchell, C. J., Dean, Brown, Potter and Thompson, JJ.
    Reversed.
    Appeal from the Superior Court.
    See 23 Pa. Superior Ct. 442.
    The facts appear by the opinion of the Supreme Court.

      Error assigned was the judgment of the Superior Court.

      Thomas K. Grreevy and A. S. Fisher, for appellant.

      J. Banks Kurtz, with him J. S. Leisenring, for appellee.
    May 9, 1904:
   Opinion by

Mr. Justice Dean,

Frederick Donithen was a brakeman in the employ of the Pennsylvania Railroad, was about twenty-five years of age, had a wife, Ella Donithen, this appellant, to whom he had been married between three and four years, she at the time of marriage being only about eighteen years old. They had no children, lived together and kept house in Altoona up to September, 1898, when while in the service of the railroad company he was killed in an accident. After his marriage he became the owner, for the consideration of $1,200, of the dwelling in which they lived. Of this but $300 had been paid, and the balance, $900, was secured by a mortgage on the property. He also owned the household furniture in their home, of no great value. About six months before his death, he had become a member of the Ordes of' Foresters, one of the defendants, a beneficial society and received a certificate of $1,000, which according to the charter was payable at his death to his widow, children or others dependent on the member or to blood relations as might be designated by the member in the certificate. At the time the certificate was issued the member, Frederick Donithen, designated in it as beneficiary Lloyd Donithen, an older brother and one of these defendants. He claims, as absolute^ his, the $1,000; the widow claims that he was named merely as trustee for her and that she is entitled to the money. The beneficial order takes no part in the dispute and paid the money into court to abide its order. On hearing the court of common pleas awarded the money to the brother, the Superior Court affirmed that decree, and we have this appeal by the widow.

On the argument both in the common pleas and Superior Court as well as in this court counsel for the widow claimed, that by the constitution and by-laws of the association, the purpose of the association was to provide a benefit fund for, first, the widow and orphans, then for dependents and then for blood relations; that the naming of a brother not dependent on him, to the exclusion of a widow who was, is in direct contravention of the purpose as disclosed by the charter and by-laws, and therefore the widow’s right to claim is not defeated.

While we concede that such was the general and main purpose of the order, it was settled by this court in the well considered case of Maneely v. Knights of Birmingham, 115 Pa. 305, that the general purpose is not violated by a designation of one not in the order named in the general purpose ; so in that case the money was awarded to a sister of the deceased member, who was named in the certificate as beneficiary, to the exclusion of the widow and orphans. It is true, in the Maneely case, there was a weighty equitable reason why the money should be decreed to the nominated beneficiary in preference to the widow and orphans; she was his sister and had loaned the brother money on the promise by him she should be repaid at his death out of the money realized from the certificate. But the court did not base its decision on the equity of the sister, but on this ground quoted from the opinion, “ There is no prohibitory or restrictive language, excluding from the powers of the corporation, the right to contract specially with a member for the payment of benefits to other persons than the widow and orphans.”

The same ruling has been followed by this court since in analogous cases; it was followed by both the lower courts in this case and we see no reason to even doubt its soundness. Therefore appellant’s first assignment of error is not sustained.

As to the second, that the court erred in not on the testimony declaring Lloyd Donithen a trustee for his brother’s widow during her minority, presents a much graver question. Of course this involves a question of fact to be found from the evidence, and even if doubtful, it is to be resolved in favor of the correctness of the decision of the common pleas court, which is immediately next the.parties and witnesses, with all the advantages such proximity gives a court in arriving at the truth from oral evidence. But a most careful consideration of this testimony impels us to a directly opposite finding from that of the learned judge of the common pleas.

Take first, the situation of the parties, their surroundings and the motives which prompt and control the conduct of people situated as they were. The deceased brother, probably industrious and thrifty, had just begun to save some money; he had recently been married, had gone to housekeeping with a young wife, had furnished the house to accord with his means, had paid one fourth the purchase money on the house and owed three fourths; in case of his sudden taking off she would be in dire pecuniary straits; this $1,000 if appropriated to her benefit would more than relieve her home from threatening debt. He also had a brother, Lloyd Donithen, who lived in another state. The deceased, although he had not seen this brother for years, and rarely communicated with him by letter, nevertheless knew he was well-to-do and prosperous, had fixed habits and was several years older than himself. Was it probable that the thoughts of this young husband, engaged in a hazardous employment, would turn to making a money provision for this brother, would prompt him to take upon himself the annual burden of payment of dues on a $1,000 certificate the remainder of his life for the sole benefit of this brother who was not necessitous, to the exclusion of his young wife, who he knew in case of his death would be ? He does not even inform the brother that he had named him as beneficiary in the certificate; Lloyd Donithen did not know this fact until after his brother’s death. Thus far the facts are wholly undisputed. Such was the condition of the parties and their surroundings when on the evening of March. 17, 1898, the husband became a member of the association and took out his certificate for $1,000 in which he named his brother as beneficiary. Is he, or rather was he, a trustee for the wife of this money during her minority ?

To establish the truth it was not necessary that Frederick should have communicated with his brother Lloyd and obtained his consent to act before naming him in the certificate. When the latter, after his brother’s death, learned the fact, he could have declined to accept the duties of trustee; but on learning the intent of his brother in naming him, he was bound in common honesty, to say nothing about fraternal duty, to faithfully carry out the intention of his dead brother. According to the evidence, when he first learned that he was the nominee in the certificate and his brother’s purpose in having him so named, he resolved to carry out his brother’s wishes, but with a few day’s reflection his avarice seems to have got the better of his conscience and he set up a claim to the money as his own.

As the fund is personal property the trust can be proven by clear and convincing parol evidence, which shows the intention of the donor. If Frederick Donithen had on his deathbed handed $1,000 to his brother to be paid over to his wife at his death, he, Lloyd, would have had no personal right thereto, but while he held it, would have been a mere trustee for the wido'w, and he could have been sued in a civil court and probably prosecuted in a criminal one for violation of the trust. Or if the beneficial, association had paid to him this money it could have been recovered by her in action at law on showing that her husband had impressed upon it a trust in her favor. Here, the association will pay to neither until the court establishes or negatives the trust. It is conceded that no consideration passed from the nominal beneficiary to the dead brother for the money now claimed by him; it is also conceded that if the evidence clearly shows the intention of Frederick Donithen that this money should go to the benefit of his widow then Lloyd Donithen can have no claim thereto. What does the evidence show, keeping in view the situation and surroundings of the parties as we have adverted to them ? Before joining the association he had several conversations with James P. Delozier, a locomotive engineer on whose train he was a brakeman, as to the desirability of insurance, and the merits of insuranee in the P. R. R. Relief Association and Beneficial Association ; that Donithen expressed a preference for the Order of Foresters; that after he had taken out his certificate he told him that he “ had got it fixed and Ella (meaning his wife) would be all right; ” that he spoke of his debts and that if anything happened to him the property would be paid for. These conversations were many and all to the same effect. They were just such conversations as men in the same employment would have and they disclose a clearly fixed belief on his part that his wife would be entitled to the benefit of the certificate and that she could appropriate it in payment of the mortgage on the house. He had conversations with Alice Judge and told her he had taken out the certificate for his wife as it would enable her to settle up everything. He told his wife the night he joined the order that he had taken out a certificate for $1,000 for her benefit, so that if anything happened to him she could live in the house. He showed her the paper but did not read it; it was kept in the house in the bureau until after his death and she did not know it was in Lloyd Donithen’s name; he repeatedly told her the certificate was for her benefit. After her husband’s death Lloyd Donithen came to the house and she gave him the certificate and he told her he was acting wholly in her interest, that he intended to pay off the debts and would not keep one penny.

This witness was subjected to a most prolonged and searching cross-examination; her statement is consistent throughout and bears the impress of probability. William M. Calvert, recording secretary of the order, testifies, that he went to the house of deceased the morning after his death for the purpose of getting the policy; that up to that time he had the belief the wife was the beneficiary named in it; that he met there Lloyd Donithen; that Lloyd and the widow brought the policy to him; that Lloyd said to him he was acting solely in the interest of Ella, the widow. Charles W. Smith, a witness who partly reared Frederick Donithen, testified that the latter told him he was carrying a policy of $1,000 so that if anything happened to him his wife could pay the debt on the house. Several of these witnesses have not the remotest interest in the subject of the controversy; if they be believed they establish clearly the trust. The question arises, why did Frederick, when he intended the money to go to his wife, put in the name of his brother as nominal beneficiary? As we have before noticed, the brother was older than he, was of good reputation as a business man; he, Frederick, as shown by the evidence lacked confidence in his wife’s mother; the wife was a minor; he thought thus to protect the wife against imposition and mistakes from inexperience by putting it in trust at least during her minority, so it could be applied to the debts which would otherwise take her home. This motive for making the brother trustee plainly appears from the testimony.

There is nothing in the evidence which detracts from the credibility of these witnesses. Lloyd Donithen testifies that he did not know he was named beneficiary until after his brother’s death, so of course he did not know his brother’s intention with regard to the disposition of the money. He does not contradict the testimony of the widow and Calvert in which, in conversation he in effect disclaimed any right to the money; he only says he does not remember such conversations. As to the attempt to show that the deceased suspected his wife’s chastity and therefore had a motive for excluding her from any benefit in his estate, the attempt wholly failed;' the weight of the evidence shows the contrary.

The learned judge of the common pleas was of the opinion that the evidence was not of that clear and convincing character, which the law holds necessary to establish a trust; we think it was of that character. No parol evidence can, under the circumstances of this case, be clearer; it might not, perhaps ought not, to prevail against the beneficial order, if it had chosen to act upon the certificate alone; but it is not contesting the widow’s claim; it has paid the money into court and withdraws from the contest. The widow does not contradict the writing, but only explains its intention.

The Superior Court does not go into a consideration of the evidence to establish the trust, but contents itself with saying it is too vague and shadowy to establish it.

The decrees of the Superior Court and court of common pleas are reversed, and it is directed that the money in court be paid out to the widow, Ella Donithen, as she is now of age, in accordance with this opinion ; it is further directed that appellee, Lloyd Donithen, pay the costs.


source: Caselaw Access Project

author: Mb. Justice Dean,

license: Public Domain

text:
    Jones, Appellant, v. Scott.

      Judgment—Opening judgment—Restitution—Equitable power—Assignment of leasehold.

    On a rule to open a judgment and for restitution of land, it appeared that plaintiffs had assigned to defendant their interest in a leasehold for the consideration of $20,000. Of this sum $14,000 consisted of seven deferred monthly payments, each in the sum of $2,000 with interest. The assignment authorized an attorney for plaintiffs on default of defendant to confess judgment in ejectment against defendant for the leasehold interest and also judgment for all the monthly installments unpaid at the date of the confession. Defendant defaulted on the fifth installment, whereupon judgment was entered against him for the possession and for the unpaid installments. Plaintiffs issued an hab. fa. possessionem and took possession. Defendant testified that the default had occurred through the inadvertence of a clerk during his, defendant’s, absence in another state, that he had provided money for the payment, that the judgment had been entered without notice to him within three days after the installment became absolutely payable, and that within four days the sheriff delivered possession to plaintiffs. Held, that the court below committed no error in opening the judgment and ordering restitution of the premises on payment to plaintiffs of the entire sum due and unpaid with interest, together with attorneys’ fees and costs.
    Argued April 19, 1904.
    Appeal, No. 52, Jan. T., 1904, by plaintiff, from order of C. P. Huntingdon Co., Dec. T., 1903, No. 2, making absolute rule to open judgment and for restitution in case of Edwin G. Jones and George W. Tappan v. Charles H. Scott.
    Before Mitchell, C. J., Dean, Brown, Potter and Thompson, JJ.
    Affirmed.
    Rule to open judgment and for restitution.
    The facts appear by the opinion of the Supreme Court.

      Error assigned was the order of the court.

      Roswell H. Patterson and Thomas E. Bailey, with them Ralph W. Rymer, for appellant.
    It was not necessary that the plaintiff in ejectment in this case serve notice on the defendant before the issuing of the writ of hab. fa. poss.: Harris v. Ligget, 1 W. & S. 301; Lauman v. Young, 31 Pa. 306.

      The court erred in holding that the proceeding by which the plaintiffs obtained judgment in ejectment and upon which the writ of habere facias possessionem was issued, is equivalent to an equitable action of ejectment: Lanning v. Davies, 3 Kulp, 319.
    There was no sufficient reason alleged or proven to move the chancellor to open the judgment: Von Storch v. Phelps, 2 Kulp, 112; Saunders’s App., 19 W. N. C. 507; Seltzer v. Moser, 1 Woodward, 475 ; Malone v. Phila. & Reading R. R. Co., 1 Clark, 380.
    We contend that the court, by its decree, made a new contract between the parties which, in the absence of fraud, accident or mistake was error: Seltzer v. Moser, 1 Woodward, 475.
    If this motion to open a judgment be treated as a bill in equity for an injunction restraining execution thereon, and for general relief, we submit that the decree is still error: Goddard & Draper’s App., 1 Walker, 97.
    The writ of habere facias possessionem should not have been set aside : Catlin v. Robinson, 2 Watts, 373.

      A. 0. Furst, of Furst Dorris, with him Arthur 6r. Dickson, for appellee.
    Any enforcement of the agreement, either by an action at law or a proceeding under a warrant of attorney, must assimilate it to an equitable action of ejectment: Goddard’s App., 1 Walker, 97 ; Shaw v. Bayard, 4 Pa. 257 ; Connolly v. Miller, 95 Pa. 513 ; Jones v. Backus, 114 Pa. 120; Oil Creek R. R. Co. v. Atlantic, etc., R. R. Co., 57 Pa. 65.
    May 9, 1904:
   Opinion by

Mb. Justice Dean,

Charles A. Scott, defendant, with Jones and Tappan, plaintiffs, were tenants in common of a coal lease on certain coal land in Carbon township, Huntingdon county. Scott alleging he was also a partner with Jones and Tappan in operating the lease, on February 11, 1903, filed a bill in equity for an account and appointment of a receiver for the partnership. On hearing the court below declined to find that a partnership existed and dismissed plaintiff’s bill. Thereupon, the parties compromised all matters in dispute between them, by which agreement, dated March 16, 1903, Jones and Tappan assigned all their interest in the lease to Scott for the consideration of $20,000. Of this sum, $14,000 consisted of seven deferred monthly payments each in sum of $2,000 with interest, to be made on the 15th day of each month following, commencing with the month of April; and further providing that if default were made in any payment for a period of thirty days after it became due Scott would surrender possession of the assigned lease to Jones and Tappan; and further, authorized any attorney for Jones and Tappan on default of Scott, to confess judgment in ejectment against him, Scott, for the leasehold interest and also judgment for all the monthly installments unpaid at the date of the confession of judgment. Scott defaulted on the fifth monthly payment, that of the 15th of August; whereupon judgment on the power of attorney was confessed against him for the' possession under the lease, and also for the unpaid installments. On this judgment plaintiffs issued hab. fa. possessionem and took possession of the property. Thereupon, Scott presented his petition to the court below, setting out that the default on the 15th of August had occurred through the inadvertence of a clerk during his, Scott’s, absence in another state; that he had provided money for the payment; that the judgment had been entered without notice to him, within three days after the installment became absolutely payable, and that within four days the sheriff delivered possession to the plaintiffs. He further set forth, that the transfer by Jones and Tappan to him was only of a half interest in the lease ; that after the transfer he had purchased from third parties the other outstanding half interest, so that, when the judgment for the unpaid money was entered it became a lien upon, not only the half that Jones and Tappan had transferred to him, but upon the whole land, the subject of the lease ; that thereby the judgment was amply secured upon property worth double that embraced in the original transfer to him by Jones and Tappan. Pie therefore prayed that the judgment be opened and that possession of the premises be restored to him. The court below ordered restitution of the premises on payment to plaintiffs of the entire sum due and unpaid with interest ; also $850 attorney’s fees, $200 compensation, as well as all costs and other liabilities incurred by plaintiffs.

From this decree, Tappan, one of plaintiffs, brings this appeal, assigning for error, that the decree is based on the fact, that notice by plaintiffs to Scott of his default, and their intention to claim a forfeiture of his possession, was not given, and that this was such an irregularity as avoids the proceedings ; and further, that the court erred in holding that the proceeding was equivalent to an equitable action of ejectment.

We do not think formal notice to Scott was necessary as a preliminary to the entry of a valid judgment on the power of attorney; the parties made their own contract and in it made no provision for such notice. Doubtless, if plaintiffs had given such notice and it had not been heeded by Scott, he would then have been effectually barred from a favorable decree in the court below, for he would have had no equity to move a court. Plaintiffs however took the risk of the subsequent interposition of a court of equity, when they relied on the strict wording of the writing and entered the judgment. But this did not oust the jurisdiction of equity on a proper case shown.

The obvious intent of this agreement must be noted in reaching an equitable decree. Scott was to pay $20,000 ; before executing the writing he paid $6,000; then he gave the written obligation to pay $14,000 more. To secure this last obligation he executed a power of attorney, authorizing a confession of a personal judgment for the unpaid purchase money at date of any monthly default and also a judgment in ejectment for the land. Clearly, 'the object both parties had in view was security for the payment of the money; the reclamation of the land by the vendors was only incidental and secondary to the main purpose of securing payment of their money.

They had two strings to their bow, a power to take judgment for the money which they could enforce against any property Scott owned, a special power to confess judgment by which they could repossess themselves of the land. The plaintiffs on default in payment of the fifth installment confessed judgment in ejectment and took possession of the land. Concede, that the adoption of this method followed literally the law of the written contract, yet it was an attempt to enforce against Scott a right to appropriate his land in payment of a money obligation, by a proceeding in which he was not heard and which in its nature was a forfeiture, a method in the eyes of a court of equity, always odious. This at once gave to him a right to invoke the interpretation of equity to determine what, if any equities he had under his contract. In the absence of the power of attorney to confess judgment, plaintiffs, to get the land, would have been forced to an equitable ejectment and the case would have come to trial before a court and jury. The court would have interpreted the instrument as one to secure the purchase money of the land by, in substance, authorizing the vendors to repossess themselves of the land in default of payment; the jury would have been instructed to find for plaintiff the land, to be released on payment of the unpaid installments within such time as in. equity the contract and circumstances required, say one, two, four or six months. But the object of the agreement being only to secure the payment of the purchase money, in no view of it would the court have permitted it to be used by the plaintiffs to get, practically, both land and money; for be it noticed, that at the date of the default plaintiffs had received the whole consideration mone3r, $20,000, except the last three monthly payments amounting to a balance of $6,000. Appending the power of attorne3r to confess judgment for the land in.no way ousted the jurisdiction of equity over the contract or prevented it from administering the equities of the parties. And this is all the learned judge of the court below did when' appealed to, by his decree. We are not sure that if we were exercising original jurisdiction, that we would have made such libsi’al decree for compensation and attorneys’ fees to plaintiffs as he awarded them. But that question is not before us and we pass no opinion thereon.

It is clear to us, there is no error in the decree, therefore it is affirmed on the long line of cases from Youst v. Martin, 3 S. & R. 423, down to Jones v. Backus, 114 Pa. 120.

Decree affirmed.


author: Mb. Justice Mestbezat,

text:
    Englehaupt v. Erie Railroad Company, Appellant.

      Negligence—Railroads—Alighting from train—Stopping of train on bridge —Notice to passenger.

    It is the duty of the carrier of passengers not only to exercise the strictest' vigilance in receiving and conveying a passenger to his destination, but also to set him down safely at a station at the termination of his journey. It is likewise the duty of the carrier to announce the name of the station on the approach of a train, and to afford passengers sufficient time to alight in safety. If after this announcement the train for any cause makes its next stop short of, or beyond, the station, the conductor or brakeman should announce the fact before the passenger attempts to leave the train, and their neglect to do so will be a violation of duty for which the carrier is responsible.
    In an action by a passenger against a railroad company to recover damages for personal injuries, the case is for the jury, and a verdict and judgment for plaintiff will be sustained where the evidence for the plaintiff, although in all essentials contradicted by the witnesses for the defendant, tended to show that the plaintiff on a dark night in alighting at what he thought was a station stepped onto a bridge and fell into a river; that from some words which he had with the conductor before the stop, he was given to believe that the next stop would be at the station ; and that the conductor was on the platform, saw him descend and gave him no warning of his perilous position.
    Argued May 2, 1904.
    Appeal, No. 76, Jan. T., 1904, by defendant, from judgment of C. P. McKean Co., Feb. T., 1903, No, 119, on verdict for plaintiff in case of John Englehaupt, v. Erie Railroad Company.
    Before Mitchell, C. J., Brown, Mestrezat, Potter and Thompson, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Bouton, P. J.
    At the trial it appeared that on November 22, 1892, at about 8 : 30 in the evening plaintiff fell through a bridge in alighting from a train near the station of Riverside. The evidence relating to the accident is given in detail in the opinion of the Supreme Court.
    The court refused binding instructions for defendant, and submitted the case to the jury.
    Verdict for plaintiff for 14,460 on which judgment was entered for $2,000, all above that sum having been remitted. Defendant appealed.

      Error assigned amongst others was in refusing binding instructions for defendant.

      George L. Roberts, of Roberts £ Garter, with him R. IT. Jack, for appellant.
    The evidence was insufficient to justify the court in submitting the question of the negligence of the defendant to the jury: Mooney v. Penna. R. R. Co., 203 Pa. 222; Lonzer v. Lehigh Valley R. R. Co., 196 Pa. 610 ; Rothchild v. R. R. Co., 163 Pa. 49; Howard Express Co. v. Wile, 64 Pa. 201; Corcoran v. Penna. R. R. Co., 203 Pa. 380 ; Knox v. P. & R. Ry. Co., 202 Pa. 504 ; Bornscheuer v. Consolidated Traction Co., 198 Pa. 332; Boehmer v. Traction Co., 194 Pa. 313 ; Kurfess v. Harris, 195 Pa. 385 ; Muscarro v. R. R. Co., 192 Pa. 8 ; Robb v. Connellsville Boro., 137 Pa. 42; Watkins v. Union Traction Co., 194 Pa. 564; Penna. R. R. Co. v. Aspell, 23 Pa. 147; Graham v. Penna. R. R. Co., 139 Pa. 149; McCracken v. Traction Co., 201 Pa. 378.

      J. R. Mullin, of Mullin Mullin, for appellee.
    The ease in question is almost a parallel case to that of Philadelphia, W. & B. R. R. Co. v. McCormick, 124 Pa. 427. See also Bard v. Phila. & Reading Ry. Co., 199 Pa. 94, and Blauvelt v. Del., Lack. & W. R. R. Co., 206 Pa. 141.
    May 9, 1904:
   Opinion by

Mb. Justice Mestbezat,

We entirely agree with the learned counsel of the defendant company that under the evidence in this case and the charge of the court, the jury would have been justified in returning a verdict for their client. Pour or five of their witnesses testified that the train carrying the plaintiff stopped at Riverside station; and that he alighted there and after doing so, they saw him on the ground at the station. The learned trial judge instructed the jury that “ if he got off on the ground as testified to by the four witnesses at Riverside (station) safely and then went ahead and walked into the river, this company would not be liable for any damage which he sustained.” It was claimed by the defendant that the train made three stops in the vicinity of Riverside station; the first at the Pennsylvania Railroad junction, next at Riverside station, and again a few feet beyond the station for the purpose of putting off the plaintiff’s dog which was in the baggage car. The theory of the defense, amply sustained by abundant testimony if believed by the jury, was that the plaintiff got off the train at Riverside station to which his ticket entitled him to'be carried, and that after leaving the train and it had again started, he followed it to look after his dog which was still on the train and in doing so he fell through the bridge and into the river.

The case, however, as presented by the plaintiff, is that the train stopped but once near Riverside station and that was just beyond the station, the smoking car, in which he was riding standing on the bridge over Allegheny river. He testified that he was sitting in the front of the car which was immediately in the rear of the baggage car; that when the whistle blew for the junction he thought it was for Riverside station and arose from his seat and was told by the conductor that the platform was farther down ; that he then resumed his seat for a moment until the train stopped, the conductor in the meantime telling the brakeman to open the door of the baggage car and let the plaintiff get his dog; that he untied the dog and with' his coat on his arm and a gun iii his hand walked down the steps of the front platform of the smoking car while the conductor was standing on that platform; that when he left the steps he stepped on something he thought was the station platform, “ stooped around to see if the dog was coming,” and fell into the river. The accident occurred about eight thirty o’clock of the evening of November 22, 1902, and the testimony shows that at that hour it was very dark. Frank Holton, a passenger who sat near the plaintiff in the car, testified that he thought the train made but one stop at Riverside station; that after the car had stopped he went-to the front platform, found that the car was on the bridge, and that it was so dark he “ could not see anything.” William Davis, another passenger who sat four or five seats in the rear of Englehaupt in the car, testified that the train stopped but once and that was on the bridge near the station; that as it neared the Pennsylvania Railroad junction the conductor said something to the plaintiff who then sat down ; that the train next “ pulled into the bridge at Riverside ” and the plaintiff got up and went out the front door of the coach, the front end of which was ten or fifteen feet on the bridge ; that the car window was up and in a minute or less he heard him fall into the river; that the conductor was on the platform when the plaintiff went out the car door and remained there until he fell into the river; that the night was very dark and the plaintiff could not see without a light.

Such is the story told by the plaintiff and his witnesses on which he relies to convict the defendant’s employees in charge of the train of a failure of duty in carrying him to the destination named in his ticket. It is wholly irreconcilable with the direct and positive testimony of four or five of the defendant’s witnesses. As observed above, those witnesses testified that the train stopped three times in the vicinity of Riverside station and that the plaintiff alighted at the station in safety. If the plaintiff and his witnesses be believed, there was but one stop made by the train and that was not at the station, but on the bridge beyond, which concededly was an improper and unsafe place to discharge passengers. Believing from the suggestion of the conductor that it was at Riverside station, the plaintiff alighted when the train stopped, and did so with the conductor’s consent and while he was standing on the car platform from which the plaintiff descended from the train. These facts, taken in connection with the further fact that at the time the plaintiff left the train it was very dark, disclosed a plain violation of duty on the part of the defendant company, assumed by its contract, to exercise the utmost degree of diligence and care in carrying the plaintiff as a passenger from Bradford to Riverside-station.

It is the duty of a carrier of passengers not only to exercise the strictest vigilance in receiving and conveying a passenger to his destination, but also to set him down safely at a station at the termination of his journey. It is likewise the duty of the carrier to announce the name of the station on the approach of the train and to afford passengers sufficient time to alight with safety. If after this announcement the train for any cause makes its next stop short of, or beyond, the station, the conductor or brakesman should announce the fact before the passengers attempt to leave the train, and a neglect to do so will be a violation of duty for which the carrier is responsible. In Weller v. London, Brighton, & South Coast Railway Company, L. R. 9 C. P. 126, Bbett, J., says : “Merely overshooting the platform is not negligence. But, if the porter has called out the name of the station, and the engine driver has overshot the station, and the train has come to a standstill, the company’s servants are guilty of negligence if they do not warn passengers not to alight. At all events, the jury may from these facts infer negligence. If the name of the station has been called out, and the train has come to a standstill, ■ no warning being given to the contrary, the jury may very properly say that a passenger is guilty of no want of reasonable care in getting out. He has a right to suppose that the train has reached the spot where it is intended that he shall get out.” In Central Railroad Company v. Van Horn, 38 N. J. L. 133, Chief Justice Beasley speaking for the court said: “ The court would not be warranted in saying that it is not negligence to give notice of the approach to a station, and then stop the •train short of such station, in the night-time. Such a course would naturally tend to jeopard passengers, for it would induce them to believe that they had arrived at the station designated, and they would, in the ordinary course, go to the car platform. At night, this must be the inevitable result .... When a station is called, the passengers have the right to infer that the first stop of the train will be at such station.” Philadelphia, Wilmington & Baltimore Railroad Company v. McCormick, 124 Pa. 427, is a case very similar in many of its facts to the one in hand. There the conductor, on a dark night, announced the approach to a station where the passengers were to change cars, and afterwards stopped the train on a bridge without giving notice that the station had not been reached. A passenger arose from his seat, descended from the steps, fell over the bridge and was drowned.’ It was held that under the circumstances the passenger had the right to suppose that the train had reached the station; and that proper attention to the safety of the passengers required some notice or warning to them to retain their seats. Chief Justice Paxson delivering the opinion of the court said: “ The deceased had a right to suppose that the train had reached the station. Having stopped at a place of peril for passengers to alight, at a time when they had a right to suppose from the notice previously given that the train had reached the station, proper attention to the safety of the passengers would have required some notice or warning to them to retain their seats. . . . This (unexpected stoppage of the train) may happen from various causes connected with the safety of the passengers, but where it occurs in a place of danger, and under circumstances which justify passengers in the belief that it has reached a station, some notice ought to be given. This is especially so on a dark night when passengers are exposed to more than usual peril in getting off the train.”

The defendant’s negligence was clearly a question for the jury under the conflicting evidence in the case and was properly submitted by the trial court. Whether the plaintiff exercised the care required of him under the circumstances when alighting from the car was, we think, also for the jury. If there was a reasonable doubt as to the facts or the inferences to be drawn from them as to the plaintiff’s contributory negligence, the question could not be withdrawn from the jury. A verdict either way on the testimony presented here could be sustained. The plaintiff had reason to believe from the action of the conductor, if we credit his testimony, that the train had stopped at the station and that in leaving the car he was alighting on the platform at the station. It was so dark that he could not see where he was stepping when he descended from the car platform. This was done in the presence of the conductor who gave him no warning of his perilous position. By reason of the darkness the plaintiff saw no danger in attempting to alight, and the silence of the conductor who saw him as he descended the steps was a tacit invitation to him to leave the car in the way he did.

The judgment is affirmed.


author: Per Curiam,

text:
    Marshall, Appellant, v. DeHaven.

      Action—Cause of—Change of will.

    The statement averred that plaintiff was the sole heir of an uncle now deceásed who had made a will in which the defendant was a large beneficiary ; that between the execution of the will and the testator’s death, testator had “ expressed a wish and desire to change his will in favor of his niece ; ” that defendant induced another person to talk to and influence testator and induce him to permit the will to remain as it was, and that defendant had paid such person for his services the sum of 13,000. There was no averment that any fraud, misrepresentation or any undue influence was used upon the testator, nor was there any averment that but for defendant the testator would have changed his will, or that if testator had done so what he would have given to plaintiff. Held, that a demurrer to the statement was properly sustained.
    Argued Feb. 11, 1904.
    Appeal, No. 266, Jan. T., 1908, by-plaintiff, from order of C. P. Chester Co., Oct. T., 1902, No. 13, sustaining demurrer to statement in case of Joseph N. Marshall and Hannah A. Marshall, His Wife, v. William DeHaven.
    Before Mitchell, C. J., Dean, Fell, Mestbezat and Thompson, JJ.
    Affirmed.
    Demurrer to statement in trespass.
    Plaintiff’s statement was as follows :
    The plaintiff is the sole heir at law (being his niece) of William McCorkle, late of East Fallowñeld township, Chester county, deceased, who died August 17,1895, having first made his last will, dated June 29, 1894, wherein and whereby the whole estate of said decedent was devised to strangers in blood, and the plaintiff was cut off (with the exception of a $5.00 legacy) from any share in an estate of $250,000. Between the time of the execution of said will in June, 1894, and his death, in 1895, William McCorkle expressed a wish and desire to change his will in favor of his niece. The defendant above named was a residuary legatee and any such change in said will would be a loss to him. Whereupon he induced George J. Faddis to talk to and influence William McCorkle and induce him to permit the will to remain as it was, for which conduct upon the part of Faddis he, the said William DeHaven, the said defendant, paid said Faddis $3,000. That said conduct on defendant’s part was unknown to plaintiff within six years. Wherefore she has been damaged in the sum of $100,000 to recover which she brings this suit.
    The court sustained the demurrer.

      Error assigned was the judgment of the court.

      Charles R. Pennypaclcer, for appellant.

      Alfred P. Reid, for appellee.

      May 16, 1904 :
   Per Curiam,

The learned judge below' was quite correct in holding that the plaintiff’s statement sets out no cause of action.

The fact that the plaintiff was heir or next of kin to the testator gave her no legal interest in his estate during his life, nor after his death, leaving a will disposing of his estate to others. What interest then does she aver ? That between the making of his will and his death the testator “ expressed a wish and. desire to change his will in favor of ” plaintiff. An unexecuted wish or desire to change his will gave plaintiff no more right nor legal interest than she had before. The wrongful act complained of is that defendant “ was a residuary legatee and any such change in said will would be a loss to him. Whereupon he induced George J. Faddis to talk to and influence William McCorkle and induce him to permit the will to remain as it was, for which conduct upon the part of Faddis he, the said William DeHaven, the said defendant, paid said Faddis $3,000.”

There is here no averment that Faddis was to, or did, use any fraud, misrepresentation or undue influence ; that he was successful in preventing any change ; that but for him the testator would have changed his will, or that if the testator had done so what he would have given to the plaintiff. It may have been very unhandsome conduct on the part of defendant, but the statement wholly fails to show any tort redressible at law.

Judgment affirmed.


text:
    Johnson, Appellant, v. Chester Traction Company.

      Negligence—■Street railways—Contributory negligence—Nonsuit.

    In an action against a street railway company to recover damages for personal injuries, a nonsuit is properly entered where the evidence shows that the plaintiff being drunk and disorderly was put off a car, that he fell but arose at once, ran after the car and was still running when the car got beyond sight of him ; and that the car on the return trip ran against him while he was lying on the track in the dark, about 600 feet from the point where he had been ejected.

      Argued Feb. 11, 1904.
    Appeal, No. 290, Jan. T., 1903, by plaintiff, from order of C. P. Del. Co., Sept. T., 1900, No. 26, refusing to take off nonsuit in case of James E. Johnson v. Chester Traction Company.
    Before Mitchell, C. J., Dean, Fell, Mestrezat and Thompson, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Johnson, P. J.
    The court entered a compulsory nonsuit which-it subsequently refused to take off.

      Error assigned was refusal to take off nonsuit.

      James Watts Mercar and V. Q-il/pin Robinson, for appellant.

      W. B. Broomall, for appellee.
    May 16, 1904:
   Per Curiam,

The court below entered a nonsuit on the ground of the contributory negligence of the plaintiff. Such negligence was plain.

But in addition to this there was no evidence on which the jury could have been permitted to find negligence of the defendant that caused the accident. The plaintiff being drunk and disorderly was put off the car, fell but arose at once and ran after the car. When the car got beyond sight of him he was still running. The proximate cause of the accident therefore was not his ejection from the car, and the case must be treated without regard to 'that feature. After plaintiff was ejected the car had continued its journey to the station a mile or more away, and on the return trip ran against him while he was lying on the track in the dark, and about 600 feet from the point where he had been ejected.

Plaintiff endeavored to. prove negligence of the company by showing the schedule time allowed for the car trip, and also the distance at which the headlight would enable the motorman to see an object on the track ahead of him. The offers were general and none of them was sufficiently connected by circumstances stated, to make it evidence of negligence.

Judgment affirmed.


author: Pee, Cubiam,

text:
    Banes, Appellant, v. Finney.

      Decedent’s estates—Intestate law—'Half blood—Act of April 8, 1833, sec. 9.
    Where an intestate has a half-brother by a common mother, and it appears that the fathers of the intestate and her half-brother were brothers, and the intestate inherits land from her father, the half-brother is entitled to take the land to exclusion of the intestate’s paternal uncles and aunts.
    Argued Feb. 12, 1904.
    Appeal, No. 19, Jan. T., 1904, by plaintiff, from judgment of C. P. Bucks Co., Jan. T., 1904, No. 11, on case stated in suit of Elizabeth E. Banes, Samuel Vanartsdalen, Almeda Lewis, Thomas Beans and Sarah E. Cornell v. William H. Finney.
    Before Mitchell, C. J., Dean, Fell, Mestrezat and Thompson, JJ.
    Affirmed.
    Case stated to determine title to real estate.
    Stout, P. J., filed the following opinion :
    Jesse Finney acquired the real estate in question by purchase and a deed of conveyance to him dated April 2, 1827. He is the perquisitor, or first purchaser, through whom the inheritable blood must come.
    Jesse Finney died in 1854, testate, leaving to survive him children as follows, to wit: John, James C., Samuel, Ann Eliza, Hannah and Sarah E.
    The said Jesse Finney, by his last will and testament, devised the said real estate to his son John, his heirs and assigns, subject to the payment of $1,700 to his son James, and $700 to his daughter Ann Eliza.
    Under the said will the said John Finney took the said real estate devised to him as if by descent and not as a purchaser, notwithstanding the payments to the other heirs charged upon it by the testator: Kinney v. Glasgow, 53 Pa. 141.
    The said John Finney died in 1864, seized of the said real estate, and intestate, leaving to survive him a widow, Mary, and one child, Elizabeth, as his sole heir. The said Elizabeth was the daughter of the said Mary, and took the said real estate under the intestate laws, subject to the dower of her mother therein.

      The said Mary Finney, widow, afterwards married James C. Finney, a brother of her former husband, John Finney, deceased. By this marriage the said Mary had one child, William H. Finney, the defendant in this case.
    The said William H. Finney and Elizabeth Finney were brother and sister of the half blood through their common mother, Mary Finney.
    The said Elizabeth Finney died June 4, 1871, seized of the said real estate, intestate, and without issue and without brothers or sisters of the whole blood or their descendants; but she left surviving her, her mother, the said Mary Finney (who had none of the blood <?f Jesse Finney, the perquisitor, in her. veins), and a brother of the half blood, the said William H. Finney, the defendant.
    The said Elizabeth Finney also left surviving her uncles and aunts, to wit: James C. (the father of William H. Finney, her brother of the half blood), Samuel, Ann Eliza Vanartsdalen, Hannah Beans and Sarah E. Praul, being the brothers and sisters of her father.
    The case stated raises the single question : Whether upon the death of Elizabeth Finney the real estate whereof she died seized as aforesaid passed under the intestate laws of this commonwealth to William H. Finney, her brother of the half blood, or whether the same passed to her uncles and aunts, the above-named brothers and sisters of her father, John Finney, deceased.
    Section 6 of the act relating to the descent and distribution of the estates of intestates, approved April 8, 1833, provides : “ In default of issue, and brothers and sisters of the whole blood and their descendants, and also father and mother, competent by this act to take an estate of inheritance therein, the real estate of such intestate, subject to the life estates herein-before given, if any, shall descend to and be vested in the brothers and sisters of the half blood of the intestate, and their issue, in like manner, respectively, as is hereinbefore provided for the case of brothers and sisters of the whole blood and their issue.”
    This section clearly vested the said real estate in William H. Finney, the only brother of the half blood of the intestate, unless he was incapable of taking by reason of the provisions contained in section 9 of the same act, which provides as follows : “ That no person who is not of the blood of the ancestors or other relations from whom any real estate descended, or by whom it was given or devised to the intestate, shall, in any of the cases before mentioned, take any estate of inheritance therein, but such real estate, subject to such life estate as may be in existence by virtue of this act, shall pass to and vest in such other persons as would be entitled by this act, if the persons not of the blood of such ancestor or other relation had never existed, or were dead at the decease of the intestate.”
    Is William H. Finney of the blood of the ancestor from whom the said real estate descended or was devised ? That is, is he of the blood of Jesse Finney, the perquisitor?
    William H. Finney is the son of James C. Finney, who was the son of Jesse Finney, the perquisitor.
    Elizabeth Finney, the intestate, was the daughter of John Finney, deceased, who was the son of Jesse Finney, the perquisitor.
    It will thus be seen that Elizabeth Finney and William H. Finney, her brother of the half blood, had a common grandfather, Jesse Finney, the perquisitor, from whom they derived the same inheritable blood, and in the same degree. In the case of Elizabeth it was transmitted through her father, John Finney, and in the case of William H. Finney it was transmitted through his father, James C. Finney.
    The question of next of kin to the intestate does not enter into this case. Section 6 of said act casts the inheritance directly from the intestate to the brother of the half blood, who has in him the blood of the perquisitor. Section 7 of the said act by which the real estate of the intestate descends to the next of kin, by its own terms operates only in default of all persons before described in said act, that is, in default of brothers and sisters of the half blood of the intestate and their issue, as provided for in section 6 of said act.
    The principles laid down in Baker v. Chalfant, 5 Wharton, 477, and Hart’s Appeal, 8 Pa. 32, rule this case.
    The court is. of the opinion that upon the death of Elizabeth Finney, the said real estate descended to her brother of the half blood, William H. Finney, the defendant, under the intestate laws of the commonwealth, subject to the life estate of the said Mary Finney, his mother, therein. The said Mary Finney having since died, the defendant has now vested in him the whole of the real estate described in the.case stated.
    Let judgment be entered for the defendant.

      Error assigned was the judgment of the court.

      Thomas Boss, with him Hugh B. Easthurn and George Boss, for appellant.
    The estate descended to the intestate is ancestral and paternal: Kinney v. Glasgow, 53 Pa. 141.
    In and through the blood of the perquisitor, the uncles and aunts, through whom appellants claim per stirpes, were entitled to inherit: Sturgeon v. Hustead, 196 Pa. 148.
    Section 6 of the act of 1833, P. L. 315, is to be strictly construed and the proviso, section 9, is to be liberally construed. Therefore, the search for the half blood capable of inheriting is to be made as nearly in the common-law manner as possible.
    Kinship and inheritable blood must be traced through the same channel: 2 Bl. Comm. 223; Ranck’s App., 113 Pa. 98; Lewis v. Gorman, 5 Pa. 164; Roberts’s App., 39 Pa. 417; Perot’s App., 102 Pa. 235.

      William Stueleert, with him Win. B. Stuekert, for appellee,
    cited : Baker v. Chalfant, 5 Wharton, 477 ; Hart’s App., 8 Pa. 32; Gardner v. Collins, 27 U. S. 58 ; Emes v. Brown, 1 American Law Reg. 634; Parr v. Bankhart, 22 Pa. 291.
    May 16, 1904 :
   Pee, Cubiam,

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


author: Per Curiám,

text:
    Slater, Appellant, v. Slater.

      Appeals—Assignments of error—Practice, Supreme Court—History of the case—Paper-book.

    A history of the case in appellant’s paper-book, twenty-three pages long, filled with irrelevant and frivolous details, and with argumentative statements, is in plain contravention of the rules of court.
    Counsel materially weaken the presentation of their case by filing one hundred and twenty-four assignments of error, mostly made of up of trivial details.

      Will—Issue devisavit vel non—Undue influence—Change of purpose— Evidence.

    A mere change of purpose by a testatrix by which she makes one person instead of another the beneficiary under her will, is not of itself evidence of undue influence.
    Evidence which is merely corroborative is of no avail unless there is a basis of evidence of the fundamental fact to be corroborated.
    On the trial of an issue devisavit vel non it appeared that the relations between testatrix and her son, the principal beneficiary under her will, had for a period of some years been estranged and unfriendly, and that in several wills made during that period she had left him little or nothing. Subsequently to these wills her husband had died, and the son returned home to live with his mother, and his relations with her became friendly and dutiful. A grandson who had been her principal beneficiary in the previous wills had misconducted himself by stealing her deposit box with her watch and valuable papers, including the will in his favor. The will by which the son benefited was drafted by a justice of the peace on instructions from the testatrix, and duly executed by her in the presence of the attesting witnesses, and in the absence of the beneficiary. There was no evidence of undue influence. Testatrix continued to live with her son until her death, three years after the making of the will, and had expressed herself as satisfied with the will. Held, that a verdict and judgment for the will should be sustained.
    Argued Feb. 15, 1904.
    Appeal, No. 125, Jan. T., 1904, by plaintiff, from judgment of C. P. Schuylkill Co., Nov. T., 1899, No. 216, on verdict for defendant in case of Bessie Slater v. Harry P. Slater.
    Before Mitchell, C. J., Fell, Brown, Potter and Thompson, JJ.
    Affirmed.
    Issued devisavit vel non. Before Marr, J.
    • The opinion of the Supreme Court states the case.
    Verdict and judgment for defendant, the proponent. Plaintiff appealed.

      Errors assigned were (1-124) various instructions and rulings on evidence.

      A. W. Schalck, with him 0. N. Brwmm, for appellant.

      John F. Whalen, for appellee.
    May 16, 1904:
   Per Curiám,

This case is strongly suggestive of a reminder to counsel that the length of the trial and the amount of conflicting evidence given on disputed matters of fact are no criterion whatever of the legal importance of the case, or of the questions open to examination here. The verdict of the jury settles all such matters whether the trial be long or short.

The paper-book is open to serious objection. The history of the case is twenty-three vpages long, filled with irrelevant and even frivolous details and with argumentative statements, in plain contravention of the rules of court.

The assignments of error are one hundred and twenty-four in number and most of them made up of the same kind of trivial details as the history of the case. Counsel should understand that this mode of presentation weakens instead of strengthening a case, and tends materially to defeat its own end. The present is such a glaring -instance that we are-impelled to call special attention to the disadvantage of such practice.

The case appears to have been tried below as it was argued here, mainly on collateral and merely corroborative matters. The burden of appellant’s contest against the will was that it was procured by undue influence, and a number of matters were presented in evidence which might have tended to corroborate the inference had there been any basis of fact to corroborate. But there was not a scintilla of evidence that tended directly and explicitly to establish the fundamental fact.

It was shown that the relations between the appellee and his mother, the testatrix, had been strained and unfriendly for some years, and that in several wills made during that period, she had left him little or nothing, while in the will in question, she had practically left him everything. Had there been evidence of undue influence, the change of purpose might have had a strong corroborative bearing. But the change is not of itself evidence of undue influence. A change of mind is the right of every testator and by itself is not evidence of anything. It is only when a basis of evidence of undue influence is laid that the injury as to the change becomes relevant. In this case there was no such basis. The will was drafted by a justice of the peace on instructions from the testatrix and duly executed by her in the presence of the attesting witnesses, and in the absence of the beneficiary. On the surface everything was regular and proper, and the jury have found that it was so in fact.

But beyond this the change in the testatrix’s purpose was •folly and naturally accounted for. Subsequently to the previous wills the circumstances of the testatrix had materially changed. Her husband had died, and the estranged son had returned home to live with his mother. The jury have found that his relations with her were friendly and dutiful, while the grandson who had been her principal beneficiary in the previous wills had misconducted himself to the extent of stealing and carrying away her deposit box with her watch and valuable papers including the will in his favor. Finally the testatrix continued to live with her son till her death, three years after making the will, and had expressed herself as satisfied with the will. Under these circumstances no jury could be expected or even permitted to find that the change of testamentary disposition was evidence of undue influence.

As the charge of the learned judge is an elaborate review of the evidence and the law, filling sixty-five printed pages, in addition to forty pages of points and answers, an exception to it as inadequate can hardly be sustained unless some important omission be shown. This has not been done. We have gone though the numerous assignments of error, without finding any which called for further notice. They are all overruled.

Judgment affirmed.


author: Mb. Chief Justice Mitchell,

text:
    Wadlinger to use v. First National Bank of Minersville.

      Bailment—Pledge of stock—Action—Parties—Payment.

    The holder of a certificate of stock with a power of attorney from the owner named in the certificate, has prima facie a good title and may enforce a transfer to him by the corporation issuing the certificate.
    But if it appears that he claims not as owner but as pledgee for a debt and the statute of limitations has apparently run against such debt, the assignor or his legal representatives are necessary parties to a bill to enforce a transfer.
    Where a pledgee of stock for a debt has an irrevocable power of attorney from the owner to transfer it, and for six years after the pledge, the owner collects the dividends on the stock, and two years thereafter the pledgee takes judgment against the owner, and five years after entry of judgment a sci. fa. to revivéis issued, but no judgment entered upon it, and thereafter until nearly thirty years have expired from the pledge of the stock, neither party does anything, and the owner has in the meantime died, the pledgee cannot in an equity suit against the corporation issuing the stock to compel a transfer, proceed without making the representatives of the deceased owner a party thereto.
    Argued Feb. 16, 1904.
    Appeal, No. 252, Jan. T., 1903, by-defendants, from decree of C. P. Schuylkill Co., May T., 1903, No. 4, on bill in equity in case of John Wadlinger to use of the Pottsville Bank v. The First National Bank of Minersville.
    Before Mitchell, C. J., Fell, Beown, Pottee and Thompson, JJ.
    Reversed.
    Bill in equity to compel a transfer of stock.
    Make, J., reported the facts to be as follows:
    1. That John Wadlinger, on April 10, 1872, executed an irrevocable power of attorney to Henry Saylor, president of the plaintiff bank, for the transfer of ten shares of the capital stock of the defendant bank, and delivered the same with the certificate of stock attached, to the complainant in this proceeding.
    2. That this certificate of stock was to be held by the plaintiff as collateral security for the indebtedness of Wadlinger to the bank.
    3. That in 1880, July 14, a judgment by agreement for $6,500 was entered in favor of the bank and against Wadlinger, and in 1885 a sci. fa. was issued to revive same when service of the writ was accepted. No affidavit of defense was filed, but no judgment of revival was entered.
    4. That the plaintiff bank discontinued business in 1878, and Nicholas Heblich, now deceased, was chosen secretary by its board of directors, and its safe, books and papers were placed in his possession for safe-keeping and collection, and after his decease the certificate of stock and power of attorney were '''found in a wallet in the safe belonging to the bank and in Heblich’s office.
    5. That John Wadlinger died four or five years ago, and at no time after 1878 did he, or any person for him or in his behalf, make any claim to said bank stock or to the dividends declared upon same, although the stock remained upon the books of the bank in his name.

      6. That at the present time all the dividends declared upon said stock since 1878 remained in defendant bank and have not been claimed by any party or person except the complainant in this bill.
    7. That no question as to the rights of third parties arise in this case, and that the defendant bank is simply a stakeholder or trustee.
    8. That there is no evidence showing payment of judgment against Wadlinger or his indebtedness to the plaintiff bank.
    CONCLUSIONS OF LAW.
    1. That the delivery of a certificate of stock 'accompanied with an irrevocable power of attorney to transfer same, duly executed, carries a good title to the stock.
    2. That the holder of a certificate of stock with an irrevocable power of attorney annexed to same for its transfer, has a right to demand the transfer of the stock and can claim the dividends belonging to same declared after the execution of the power of attorney and the delivery of same with the certificate of stock, unless said dividends have been paid to the party in whose name the stock stands upon the books of the company.
    3. That the doctrine of laches and the statute of limitations do not apply to a trustee or stockholder when their liability or the rights of third parties are not involved.
    The court entered a decree directing the transfer of stock and an accounting for dividends.

      Error assigned was the decree of the court.

      George M. Roads, for appellant.
    It is held that a corporation is guilty of negligence if it fails to make inquiry, if a power of attorney presented thirteen years after the date of the transfer has been revoked, and may be held liable therefor: Penna. R. R. Co.’s App., 86 Pa. 80; Willis v. Phila., etc., R. R. Co., 6 W. N. C. 461.
    A dividend declared by a corporation becomes the individual property of the stockholder. It may be demanded by the stockholder, and if the payment is refused, he may bring an action against the compare for money had and received to his use: King v. R. R. Co., 29 N. J. Law, 82; 1 Morawetz on Corporations, sec. 445; 1 Spelling on Corporations, sec. 446.

      W. L. Kramer and II. 0. Bechtel, for appellee.
    May 16, 1904 :
   Opinion by

Mb. Chief Justice Mitchell,

This decree must be reversed for want of parties necessary to sustain it. The learned judge below was clearly right on the general principle of law that the holder of a certificate of stock, with an irrevocable power of attorney from the owner to transfer it, has the indicia of property and has and may convey a good title by transfer: Lightner’s Appeal, 82 Pa. 301; Shattuck v. American Cement Co., 205 Pa. 197; Cochran v. Fox Chase Bank, 209 Pa. 34. But in the present ease the complainant bank does not claim as owner, but as pledgee for a debt of the legal plaintiff Wadlinger. The original debt for which the stock was pledged was long ago admittedly barred by the statute of limitations, and even the judgment entered in 1880, if for the same debt which may be implied but is not specifically found, was presumably paid before the filing of this bill in 1903, for although a scire facias was issued in 1885 no judgment of revival was ever had upon it. The running of the statute on the debt would not necessarily bar a recovery on the collateral, but it is a circumstance to be considered. John Wadlinger, the pledgor, certainly continued to assert his title to the stock down to about 1878 by drawing the dividends. After that neither party did anything. The plaintiff bank went out of business in 1878, and though it got a judgment against Wadlinger in 1880 and issued a scire facias to revive in 1885 it proceeded no further, made no levy or other effort to get possession of the stock, or even notified the defendant bank of its title as pledgee until 1903.

On the other hand Wadlinger did nothing to assert his title by collecting dividends or otherwise after 1878 down to his death stated as “ five years ago.”

On this evidence the court below found that Wadlinger had abandoned his ownership. But it is clear that his estate cannot be deprived of an apparent asset without a(hearing. If he were alive he would be a necessary party to this foreclosure of his pledge, and now that it appears that he is dead his representatives are entitled to their day in court. Had the plaintiff bank presented the certificate and warrant of attorney and secured a transfer in Wadlinger’s lifetime it would thus have completed its legal title and put the burden of proof on him to show the contrary, but when after his death the bank made claim admittedly as pledgee, his representatives became a necessary party. Whether he did abandon his property in the stock, or whether the debt was not enforced because it was otherwise paid are questions in which his representatives are directly interested, and on which they may be expected to have the evidence if after this lapse of time there is any.

The dividends presumably were due when they were declared, and the right to them apparently remained in Wadlinger under the terms of the pledge, for he collected them without objection down to 1878. The burden of proof as to his abandonment of his right to them was upon complainant, and on this as on the other questions in the case his representatives were necessary parties.

Decree reversed.


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    Commonwealth v. Gabor, Appellant.

      Appeals—New trial—Interlocutory order—Hearing on merits—Criminal law.

    An appeal in a criminal case from an order of the court below for a new trial, although based upon an interlocutory order, will be heard by the appellate court on its merits, where the appellant claims to be entitled on the record to an absolute discharge.

      Criminal law—New trial—Right of court to grant a new trial on its own motion—Twice in jeopardy.

    The right of a court to order a new trial of its own motion is indisputable. It is one of the essential functions of a judge sitting with a jury.
    A prisoner was indicted for murder, regularly tried, and a verdict rendered of guilty of manslaughter. By inadvertence this verdict was received, and the jury discharged in the absence of the prisoner. On being brought in subsequently for sentence, the prisoner moved for arrest of judgment, and a discharge from custody. The court refused the motion, but set aside the verdict, and ordered a new trial. Held, that the order for a new trial should be affirmed.
    Such an order does not violate article 1, section 2, of the constitution which provides that “ no person shall for the same offense be twice put in jeopardy of life or limb.”

      Criminal law—Absence of prisoner—Verdict.

    The absence of a prisoner at the rendition of the verdict on the trial of an indictment for murder is fatal error.

      Criminal law—Practice, 0. & T.—Arrest of judgment—Setting aside verdict —New trial.

    In a criminal case an order directing “ that the verdict be set aside and a new trial granted,” is a sufficient disposition of amotion in arrest of judgment, and for a discharge of the prisoner; no other formal order is necessary.
    Argued Feb. 16, 1904.
    Appeal, No. 296, Jan. T., 1908, by-defendant, from order bf O. & T. Schuylkill Co., Sept; T., 1903, No. 544, directing a new trial in case of Commonwealth v. Michael Gabor.
    Before Mitchell, C. J., Fell, Brown, Potter and Thompson, JJ.
    Affirmed.
    Indictment for murder. Before Bechtel, P. J.
    From the record it appeared that when the verdict for manslaughter was taken and the jury discharged, the prisoner was not in court.
    Subsequently when the prisoner was brought in for sentence he moved for arrest of judgment and a discharge from custody. Upon this motion the court made the following order:
    And now, December 7, 1903, upon the case as now presented to the court, it is now hereby directed that the verdict be set aside, a new trial be granted—the court reserving the right to file a written opinion if deemed necessary hereafter.

      Errors assigned were in the following form :
    1. The court erred in denying the prisoner’s request to be discharged from the premises in the verdict specified.
    2. The'court erred in refusing to discharge the prisoner from the premises in the indictment specified.
    3. The court erred in setting the verdict aside.
    4. The court erred in making the following order:
    “ And now, December 7, 1903, upon the case as now presented to the court, it is now hereby directed that the verdict be set aside and new trial be granted.”
    5. The court erred in granting the prisoner a new trial.

      It. H. Koch, with him F. P. Krebs, for appellant.
    A prisoner must be present when the verdict is returned or rendered; Dunn v. Com., 6 Pa. 384; Hamilton v. Com., 16 Pa. 129; Prine v. Com., 18 Pa. 103; Dougherty v. Com., 69 Pa. 286.
    The constitution provides that “no person shall for the same offense be twice put in jeopardy of life or limb: ” art. 1, sec. 10. And yet the court below “ directed that the verdict be set aside and new trial granted,” thus attempting “ for the same offense to twice put in jeopardy of life or limb ” the defendant in this case, and this, not only without the defendant’s request, but against his objection and emphatic protest. This language of the constitution is a sufficient reason why the order of the court below should be rendered nugatory by this court and the prisoner, who has now been in jail for many months since his trial, should be discharged.,

      O. E. Berger, district attorney, with him, J. JET. Bothstein, for appellee.
    May 16, 1904 :
   Opinion by

Mb. Chief Justice Mitchell,

The commonwealth moves to quash this appeal as it is from an order of the court below for a new trial, and there is therefore no final judgment. Ordinarily this would be so beyond question, but as the appellant claims to be entitled on the record to an absolute discharge, the order for another trial is so far in the nature of a final judgment that we think it best to consider and determine the appeal upon its merits.

The facts lie within a very narrow compass. The appellant was indicted for murder, regularly tried, and a verdict rendered of guilty of manslaughter. By inadvertence this verdict was received, and the jury discharged in the absence of the prisoner. On being brought in subsequently for sentence, the prisoner moved for arrest of judgment and a discharge from custody. The court refused the motion but set aside the verdict and ordered a new trial. This action is the ground of the appeal.

The appeal is purely’ technical and entirely without substantial merit. It belongs to the class referred to by the late Chief Justice Stebbbtt as “ subtile distinctions that mark no substantial differences, and do not affect the merits of a controversy unless it may be to obscure or to defeat them (and) should not be allowed to thwart justice in the interests of disorder and crime : ” Com. v. Jongrass, 181 Pa. 172. And to the same effect it was said in Com. v. Kaiser, 184 Pa. 493, the safeguards which the law has placed around the innocent “ will not be allowed to be perverted into devices to defeat justice, and this court has set its face resolutely against trifling objections that raise no point of any real bearing on the fact of guilt or innocence.”

The objection that the appellant’s motion in arrest of judgment and for a discharge was not formally passed upon and overruled is sufficiently answered by a reference to the case of Weaver v. Com., 29 Pa. 445, where it was held that passing sentence was a sufficient overruling and disposition of such a motion.

The right of a court to order a new trial of its own motion is indisputable. It is one of the essential functions of a judge sitting with a jury.

In Rex v. Gough, 2 Douglas, 791, the court suggested that a new trial would be proper and on counsel saying they would have moved for it but thought it too late, Lord Mansfield declared that the court if enough appeared could grant a new trial.

In Rex v. Atkinson, 5 Term Rep. 437, note (1783), Lord Mansfield is quoted as saying that no motion could be made for a new trial, after four days, “ but if it came out incidentally by the report that it was proper, the court might grant one,” and further, “ if the court conceive a doubt that justice is not done it is never too late to grant a new trial, but not on the application of the party.” In King v. Holt, 5 Term Rep. 436, Lord Kenyon said he well remembered the case of King v. Gough “ where the objection to the verdict was taken by the court themselves,” and in the same case Bullen, J., concurred that after four days the party could not be heard on motion for new trial, but only in arrest of judgment, but “if in the course of that address it incidentally appear that justice has not been done the court will interpose of themselves.” And see Tidd’s Practice, 912.

There is no reason why a court, finding that it has committed an error, should not be able to correct it by an order for a new trial rather than be compelled to wait to reach the same result by a reversal upon writ of error. The right to do so was stated by Bnacicennidge, J., arguendo in Ewing v. Tees, 1 Binn. 450, 457, and was distinctly asserted in Graham v. Graham, 1 S. & R. 330, where Chief Justice Tilghman said, “this authority is incident to the trial by jury by the principles of the common law.” So far as we are advised it has not been questioned in Pennsylvania since.

The English precedents above cited were made in criminal cases, and the only essential difference in the exerpise of this power in civil and in criminal cases, is that in the latter the court may not put an additional burden on the prisoner. If the trial has resulted in an acquittal, error or no error, the prisoner is free of that charge. In the present case the indictment was for murder, but the verdict was guilty of manslaughter. Under the decisions in this state the verdict of manslaughter was so far an acquittal of murder that the appellant cannot now be found guilty on that indictment of any higher grade than manslaughter. He has therefore everything to gain and nothing to lose by another trial, and the constitutional prohibition against putting twice in jeopardy for the same offense has no applicability here. As said in Com. v. Fitzpatrick, 121 Pa. 109, 117, “ The justice of sustaining a plea of former acquittal or conviction is unquestioned and unquestionable, but a plea of ‘ once in jeopardy ’ stands on narrower, more technical, and less substantial ground. It alleges only that there might have been a conviction or an acquittal, if the judge trying the cause had not made a mistake in law which prevented a verdict. It is of no consequence how many mistakes he makes, if the trial results in a conviction. The mistake can be corrected on a writ of error and the defendant tried over again.” And as already said if it can be done by an appellate court on review, it can be done by the court itself when convinced of its own error.

Appellant cites Hamilton v. Com., 16 Pa. 129, as authority for the demand that he shall be discharged. In that case the prisoner was convicted of murder of the first degree and sentenced but the record failed to show that he had been asked what he had to say why sentence should not be pronounced against him, and it did not affirmatively appear even that he was present in court when sentence was passed. This court discharged him, but it appears expressly in the report (p. 134) that the discharge was upon habeas corpus after the attorney general had appeared and stated that it was not the intention of the commonwealth to prosecute the case any further. Without this feature the absence of the opportunity to state objections to sentence would only have led to a reversal for the purpose of a new and regular sentence: Com. v. Preston, 188 Pa. 429. In Dougherty v. Com., 69 Pa. 286, there was a mistrial by a confusion of the records of the quarter sessions and oyer and terminer, and this court reversed the conviction but sent the prisoner back for trial in the oyer and terminer. And in Com. v. Lutz, 200 Pa. 226, a plea of twice in jeopardy was overruled and a second conviction affirmed.

We find no error in this record and the order for new trial is affirmed.


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    Vito, Appellant, v. Birkel.

      Evidence—Parol evidence—Preliminary negotiations—Contract.

    As a general rule all preliminary negotiations to a contract are merged and terminated by the execution of the written instrument.

      Vendor and. vendee—Payments—Time as essence of contract—Forfeiture.

    Where articles of agreement for the purchase of land provide for the payment of installments of purchase money on dates specified, and further provide that if the vendee “ fails to make the payments, or any one of them herein as above agreed upon, he shall forfeit as liquidated damages the amount of money already paid on account of this agreement, and the contract shall be rescinded, and the vendor shall be immediately entitled to possession,” time is of the essence of the contract, and if any one of the installments is not paid at the time specified, the contract is forthwith rescinded and the vendor is entitled to possession without further notice or any affirmative act on his part.
    Argued March 7, 1904.
    Appeal, No. 160, Jan. T., 1908, by plaintiff, from judgment of C. P. Northampton Co., Feh. T., 1902, No. 41, on verdict for defendant in case of Charles Vito v. Benedict H. Birkel.
    Before Mitchell, C. J., Fell, Brown, Mestrezat and Potter, JJ.
    Affirmed.
    Petition of Charles Vito for a rule for an issue to quiet title under act of June 10, 1893.
    At the trial of the issue, Schuyler, P. J., charged as follows :

      [On May 22, 1900, the plaintiff and the defendant entered into a written contract for the purchase of an undivided half interest in a tract of land in South Bethlehem containing seven acres.] [7] By the terms of the agreement the plaintiff was to pay the sum of $1,793.24 in the following manner, viz: $89.74 upon the execution of this agreement, $200 on December 3, 1900, $253.50 on May 3, 1901, and the balance, $1,250, upon the execution and delivery of a deed of conveyance aforesaid. The agreement contains the following clause: “ All amounts of money unpaid shall draw interest at the rate of six per cent from May 3, 1900. And it is further agreed by the parties hereto that if the said Charles Yito fails to make the payments or any one of them herein as above agreed upon, he shall forfeit as liquidated damages the amount of money already paid on account of this agreement and the contract shall be rescinded and in such case the said Benedict H. Birkel shall be immediately entitled to possession of the said premises and the said Charles Vito hereby agreed to remove from the said premises at once.”
    It may strike you that this is a very hard agreement so far as the plaintiff is concerned, but this is a free country and people are at liberty to make their own agreements, and if they see fit to make a hard agreement it is presumed they are to get corresponding advantages from it and there is no relief, there is no way by which a party who enters into an agreement whether it is favorable to himself or whether it is unfavorable can escape from the consequences of the agreement unless there are some equitable circumstances entering into the making of the agreement that is avoided, in equity. There are no such circumstances here. ...
    [Then comes in this stipulation in the agreement that if there is a failure to pay any one of the installments the agreement shall become null and void. I say to you as the law in this case that the mere fact of the nonpayment of either one of these installments at the time they became due worked a forfeiture of the agreement, so far as the plaintiff is concerned, without any notice whatever, and that by such forfeiture he lost all interest in the premises for which he now seeks to recover a verdict at your hands.] [5]
    [The plaintiff alleges that whilst there may have been a forfeiture of all his rights under this agreement that the defendant by his subsequent conduct waived that forfeiture. That is the theory of the plaintiff. Now, the law upon that subject is this, as I understand it to be : Before the plaintiff can set up a waiver of the forfeiture he must offer evidence tending to show that there was a new contract between the parties that the forfeiture should be waived, or that the defendant was guilty of such conduct upon his part as would amount to an estoppel, that is, as would prevent his setting up the forfeiture as a part of this agreement. There is no evidence in this case of a new contract waiving the forfeiture, nor is there any evidence in the case from which the jury would be justified in finding that he was estopped from setting up the forfeiture.] [6]
    [Further I say to jmu under the law and the evidence in the case it is my duty to say to you that your verdict shall be a verdict in favor of the defendant for the premises involved in this controversy as set forth in the fifth issue submitted.] [4]
    Verdict and judgment for defendant. Plaintiff appealed.

      Errors assigned were (1-3) various rulings on evidence; (4-7) above instructions, quoting them.
    TPI S. Kirhpatrich, of Kirhpatrich Maxwell, with him Harry C. Cope, for appellant.

      Russell C. Stewart, with him Harry A. Cyphers, for appellee.
    May 16, 1904:
   Per Curiam,

The offers of evidence, the rejection of which is the subject of the first three assignments of error, were offers to prove matters that took place before the signing of the writing on which the plaintiff sues. Nothing was shown to take them out of the general rule that all preliminary negotiations are merged and terminated by the execution of the written contract. The burden of showing ground for allowing exceptions to this rule was upon plaintiff and failing to do so his offers were properly excluded.

In regard to the payments to be made by plaintiff there is no room for dispute as to the law. The dates and amounts were fixed and the provision of the contract was express “ that if the said Charles Vito fails to make payments or any one of them herein as above agreed upon, he shall forfeit as liquidated damages'the amount of money already paid on account of this agreement and the contract shall be rescinded.” Time was thus made of the essence of the contract and being so, a failure to perform on the day agreed, ipso facto involved the stipulated forfeiture, without the necessity of any affirmative act of the vendor. The cases in regard to leases, cited by appellant, do not sustain any repugnant doctrine. In Wills v. Manufacturers’ Nat. Gas Co., 130 Pa. 222, Westmoreland, etc. Nat. Gas Co. v. DeWitt, 130 Pa. 235, and others down to English v. Yates, 205 Pa. 106, the leases contained a clause that they should become void on failure of the lessee to pay the agreed rent, and the gist of the decisions is that as this clause was for benefit of the lessor it was not self-operating against his will, but only at his option. That is the full extent of the principle declared in those cases. As was said by our late Brother Clark in Wills v. Gas Co., supra (p. 233), “ the Pennsylvania cases are all cases in which the forfeiture was set up by the lessor upon the default of the lessee ; in none of them did the lessee set up his own default as a cause of forfeiture. No case has been called to our attention, in this or any other state, in England or elsewhere, which recognizes the doctrine that a party may take advantage of his own wrong, or set up his own default to work a forfeiture of his own contract.” . And it was said in English v. Yates, supra, “ parties may contract that on a default the lease may become void at the option of either party, yet such intent in the agreement must be so plain as to be unavoidable in order to sustain such a construction.” In the present case the plaintiff, admitting his own default, claimed to recover on the ground that the defendant had not by some affirmative act asserted and enforced the forfeiture. The learned judge rightly held that it was not necessary for him to do so.

No doubt the grafitor or lessor may waive the forfeiture either expressly or by estoppel arising from acts tending to mislead the grantee or lull him into the belief that strict performance will not be exacted. The learned judge below so held but directed the verdict because there was no sufficient evidence to justify the submission of the question of waiver to the jury. In this view we concur.

Judgment affirmed.


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    Price’s Estate.

      Trusts and trustees—Removal of trustee—Differences between trustee and cestui que trust—Act of A-pril 9,1868, P. L. 785.
    Mere difference of opinion or judgment between a trustee and a cestui que trust is not enough to justify the removal of the former.
    The Act of April 9, 1868, P. L. 785, was intended to facilitate the exercise of the power of the court over the removal of trustees, and to. enlarge the influence and authority in that respect of the cestui que trust. But it was not intended to subject the office of trustee and the discretion of the court to a mandatory whim of the cestui que trust. The court still retains the authority to require that a valid and sufficient cause shall be shown for the removal.
    While inharmonious relations between trustee and cestui que trust, not altogether the fault of the former, will not generally be considered a sufficient cause for removal, yet where they have reached so acrimonious a condition as to make any personal intercourse impossible and to hinder the proper transaction of business between the parties, a due regard for the interests of the estate and the rights of the cestui que trust may require a change of trustee.
    It seems that where a trustee makes, in litigation between himself and a cestui que trust, a. woman, a groundless charge that she was the mother of an illegitimate son, such charge may be made the ground for an application for the removal of the trustee.
    Argued March 28, 1904.
    Appeal, No. 64, Jan. T., 1904, by plaintiff, from decree of O. C. Phila. Co., Jan. T., 1896, No. 473, dismissing petition for removal of trustees in estate of Thomas W. Price, deceased.
    Before Mitchell, C. J., Fell, Blown, Mestbezat and Thompson, JJ.
    Affirmed.
    Petition for removal of trustee.
    From the record it appeared that the petition was filed by Mary Kemper, a daughter of testator, and by Austin W. Bennett, guardian of Jesse C. Clagett, a grandson of testator, and a son of Mary Kemper. The petition set forth various proceedings in the orphans’ court wherein the petitioners sought to surcharge the trustees in their third and fourth accounts, and to open the first and second accounts by bills of review. It was averred that in the answers to the bills of review, the trustees charged that J esse C. Clagett was an illegitimate son of Mary Kemper. The petitioners averred that such charge was scandalous and groundless, and that in proceedings before an examiner the trustees were compelled to abandon the charge. The petition further averred that Mary Kemper, and Jesse C. Clagett, through his guardian, had instituted against Thomas JR,. Fort, Jr., civil suits for damages for libel, and that these suits were still pending. The trustees filed an answer responsive to the petition, and the case was heard on bill and answer.
    The court in an opinion by Penrose, J., dismissed the petition.

      Error assigned was in dismissing the petition.

      II. Y. Kauffman, for appellant.

      Henry Budd, for appellees was not heard.
    May 16, 1904:
   Per Curiam,

Mere differences of opinion or judgment between trustee and cestui que'trust are not enough to justify the removal of the former. To deprive the beneficiary of unrestrained control over his estate was the very object of the creation of the trust. The fundamental purpose of the creator of the trust was to protect his beneficiary from some anticipated danger, from creditors, from risks of business, from his or her own improvidence, or other like cause, or to protect ultimate beneficiaries from waste or spoliation of the estate by the immediate one. For this reason he substituted the judgment and control of the trustee for that of the cestui que trust, or of the courts.

The act of 1868 was intended to facilitate the exercise of the powers of the court over the removal of trustees, and to enlarge the influence and authority in that respect of the cestui que trust. But it was not intended to subject the office of trustee and the discretion of the court to a mandatory whim of the cestui que trust. The court still retains the authority to require that a valid and sufficient cause shall be shown for the removal. This was the construction of the act adopted in Stevenson’s Appeal, 68 Pa. 101, and after some departures, more apparent than real, as, said by our Brother Mestrezat in Neafie’s Estate, 199 Pa. 307, finally settled in the case last named.

The petition for removal in the present case is founded on averments of inharmonious relations amounting to hostile litigation, overcharges and bad management on the part of the trustees, and insecurity of the trust funds. The case was argued on petition and answer. The answer being full and responsive, except in one particular that will be noticed, the court would have been warranted in dismissing the petition without more.

One matter only appears to require special notice. While inharmonious relations between trustee and cestui que trüst, not altogether the fault of the former, will not generally be considered a sufficient cause for removal, yet where they have reached so acrimonious a condition as to make any personal intercourse impossible and to hinder the proper transaction of business between the parties, a due regard for the interests of the estate and the rights of the cestui que trust may require a change of trustee. “ If his management of the trust justly subjects him to criticism and to a lack of confidence by the cestui que trust, he should not be continued in control of the estate Neafie’s Est., supra. In the present case when the trustees were cited to file an account they set up in answer that Jesse C. Clagett one of the petitioners (by his guardian) and son of the other petitioner, was not legitimate, and therefore had no interest that entitled him to an account. No attempt was made to sustain this averment, except the statement that it was made upon information and belief and as it was admitted that the son was born in wedlock and bore the name of his mother’s husband and his legitimacy therefore not legally open to question, it is not easy to perceive the relevancy of the averment, or why it should have been made. As this matter is the subject of litigation still pending, we refrain from further comment, but should the litigation show no sufficient justification for the averment of illegitimacy the court below would be well warranted in entertaining a new petition for removal based on the conclusion that the answer was a gratuitous in-suit -warranting an inference that the conduct and management of the estate by the trustees were governed by other motives than a bona fide desire for the best interests of the petitioners.

Decree affirmed.


author: Pee Curiam,

text:
    Michael, Appellant, v. Henry.

      Negligence—Master and servant—Minor—Nonsuit.

    In an action by a boy fourteen years old against his employer, a nonsuit is properly entered where it appears that the plaintiff was employed as a creeler at a spinning machine to put on and take off bobbins and that he had been fully instructed in this work ; that while the machine was in motion, and while he was not engaged in his own particular work, he put on some weights which had fallen off the machine and was injured; and that the duty of putting on the weights was not part of the plaintiff’s work, but was done by men employed for that purpose.
    Argued March 28, 1904.
    Appeal, No. 33, Jan. T., 1904, by plaintiff, from order of C. P. No. 1, Phila. Co., March T., 1903, No. 768, refusing to take off nonsuit in case of Francis J. Michael, by his father and next friend, Francis E. Michael, v. James Henry and William G. Henry, trading as Thomas Henry & Sons.
    Before Mitchell, C. J., Fell, Brown, Mestrezat and Thompson, JJ.
    Affirmed.
    Trespass by a boy fourteen years old against his employer to recover damages for personal injuries. Before Beitler, J.
    At the trial it appeared that on October 10, 1902, plaintiff was employed as a creeler or bobbin boy on a mule or spinning machine in defendant’s factory. While replacing certain weights that had fallen off back of the machine his head was caught between a traveling mule and a post or bumper, and he was severely injured. The court entered a compulsory non-suit sa}dng:
    “ This boy was employed as a creeler, and he was fully instructed how to perform the work for which he was employed and paid. He had nothing at all to do with the machine, further than to put on and take off the bobbins. Twice while the machine was stationary he put on a weight that had fallen off. How frequently weights were in the habit of falling off there is no evidence. He never had been given that to do as a part of his work; in fact, the plaintiff’s case shows that that was part of the duty of one of two other men working upon the machine. It seems to me, therefore, that he was not engaged in anything that was in any sense his work when he was hurt. In the second place, the danger was as apparent to him as to anybody ; that to do that which he did do, with the machine in motion, was likely to result in personal injury.”

      Jfirror assigned was refusal to take off nonsuit.

      Howard A. Davis, with him John T. Murphy, for appellant.

      Qeorge L. Crawford, of Crawford f Loughlin, for appellees.
    May 16, 1904 :
   Pee Curiam,

This judgment is affirmed on the opinion of the court in entering the nonsuit.