text:
    Stahle, Appellant, v. Poth.

      Practice, C. P. — Parties—Partnership—Affidavit as to partnership— Rule of court — Trespass.
    A writ in trespass was issued against A. and B., trading as A. & Son. In the caption of the statement of claim and an amended statement of claim, the names of the defendants corresponded with those in the writ. In the body of the statements the averments were against “the defendants.” A general appearance was entered for the defendants, and their attorney filed a plea of not guilty, naming the defendants in the caption as they were in the writ and in the statements. Four trials followed, all of which were ineffectual. Thereafter the court granted a rule on defendant B., to show cause why plaintiff should not be permitted to proceed against him as the surviving partner of A. & Son, the death of A. having been suggested. On this rule the court made the following order: “ Rule absolute by agreement. See order filed.” Subsequently on the same day the court filed an order that “the death of A. having been suggested, the plaintiff is permitted by the court to enter a nolle prosequi, and discontinue the above suit as to the said A., and to proceed as against the said B.” A nolle prosequi was entered as to A. No affidavit was filed denying the existence of the partnership, as is required by the usual rule of court. At the final trial the court required the plaintiff to prove the partnership. Held, (1) .that the formal order making B., as an individual, the defendant, was a mistake apparent upon the face of the record, and unauthorized by any agreement of the parties; (2) that the-order making the rule absolute, made B. defendant as surviving partner; and (3) that it was error to require the plaintiff to prove the partnership.

      Negligence — Infant—Obstruction of sidewalk.

    In an action against the owner of a brewery to recover damages for personal injuries to a child nine years old, the case is for the jury where the evidence tends to show that the child was injured by falling over a projecting lever attached to a malt box standing on defendants' sidewalk; that for some time prior to the accident malt boxes had been piled up on the sidewalk, leaving a passageway of only about eighteen inches between the pile and the curb; that the opposite pavement was blocked by iron girders and the middle of the street by beer wagons and railroad cars; that the plaintiff and other boys were going along the street while a train was approaching, and while attempting to get through the narrow passage plaintiff tripped on a projecting lever, fell into the gutter, and had his arm crushed by a passing car.
    In such a case the defendants had the right to use temporarily the sidewalk in front of their place of business for the purpose of sending out and. receiving any articles or commodities from their business house, provided, it was done with the care required by all the circumstances; but they had no right to obstruct the pavement for any greater length of time'than was reasonably necessary for the purpose, and if they did so it was negligence. In using the sidewalk, they were required to exercise their right with a due regard to the safety of pedestrians, taking into consideration the physical condition existing at that place at the time.
    Argued Jan. 21, 1908.
    Appeal, No. 329, Jan. T., 1907, by-plaintiff, from judgment of O. P. No. 4, Phila. Co., Sept. T., 1901, No. 386, on verdict for defendants in case of Frederick Stable, in his own right and as father and next friend of William Stahle, his minor son, v. Frederick J. Poth.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Be versed.
    Trespass to recover damages for personal injuries.
    Before Willson, P. J.
    The court gave binding instructions for defendant.
    Verdict and judgment for defendants. Plaintiff appealed.

      Error assigned was in giving binding instructions for defendants.

      Thomas Learning, with him John M. Vandersliee, for appellant.
    Under the rule of court the defendant was precluded from disputing the existence of the partnership after having pleaded and defended four trials covering five years: O’Brien v. Levin, 11 Pa. Dist. Rep. 729 ; Gyger v. R. R. Co., 41 Leg. Int. 4 ; Kraft v. Pennsylvania R. R. Co., 8 W. N. C. 13 ; Brennan’s Est., 66 Pa. 16 ; Schrimpton v. Bertolet, 155 Pa. 638 ; Magill’s App., 59 Pa. 430 ; Reiter v. Fruh, 150 Pa. 623 ; Bank v. Henning, 171 Pa. 399 ; Stamey v. Barkley, 211 Pa. 313 ; Steinbeisser v. Corbion, 9 W. N. C. 528.
    There was ample evidence, necessarily for the jury, of negligence in unlawfully obstructing the public highway in a manner which was the proximate cause of the plaintiff’s injury— he being too young to be charged with contributory negligence : Kreiner v. Straubmuller, 30 Pa. Superior Ct. 609 ; Harrison v. Collins, 86 Pa. 153 ; Brown v. White, 202 Pa. 297 ; Vallo v. U. S. Express Co., 147 Pa. 404 ; Rachmel v. Clark, 205 Pa. 314.

      A. S. L. Shields, for appellees.
    There was no adequate evidence that defendant was the owner or occupant of the premises, or had any right of ownership therein, and therefore there can he no liability attach to the defendant for permissive negligence.
    This construction having been placed on the rule of court by the lower court will not be interfered with in this court, in the absence of manifest error, every court being held the best judge of its own rules: McLane v. Hoffman, 164 Pa. 491 ; Higgins Carpet Co. v. Latimer, 165 Pa. 617 ; Brennan v. Ins. Co., 148 Pa. 199.
    There was no proof that the obstruction in question was placed on the sidewalk by defendant, or his agents, as alleged in both the original and amended statements of claim, this variance of the allegata and probata being alone fatal to plaintiff’s claim: Clark v. Lindsay, 7 Pa. Superior Ct. 43 ; Fritz v. Hathaway, 135 Pa. 274 ; Noonan v. Pardee, 200 Pa. 474 ; Lane v. Sayre Land Co., 211 Pa. 290.
    March 2, 1908:
   Opinion by

Mr. Justice Mestrezat,

This is an action of trespass to recover for injuries to a child caused by the alleged negligence of the defendants.

The writ was issued on September 10, 1901, and the defendants named therein are “ Frederick A. Poth and Frederick J. Poth, trading as F. A. Poth & Son.” A statement and an amended statement were filed and in the caption the names of the defendants correspond with those in the writ. In the body of the statement and amended statement the averments are against “ the defendants.” A general appearance was entered of record for the defendants, and their attorney filed a plea of not guilty, naming the defendants in the caption as they are in the writ and in the statements. Prior to October 10,1905, there had been four trials of the cause in the common pleas, but the verdict was set aside or a juror was withdrawn and, hence, the trials did not result in a final determination of the cause. On that date the plaintiff took a rule on the defendants as follows: “The court grants a rule on the defendant, Frederick J. Poth, to show cause why plaintiff should not be permitted to proceed against him as the surviving partner of the late co-partnership of Frederick A. Poth and Frederick J. Poth, trading as F. A. Poth & Son, the death of Frederick A. Poth having been suggested.” On this rule the court made the following order: “ October 23, 1905. Pule absolute by-agreement. Sée order filed.” Subsequently on 'the same day the court filed an order that “ the death of Frederick A. Poth having been suggested, the plaintiff is permitted by the court to enter a nolle prosequi and discontinue the above suit as to the said Frederick A. Poth and to proceed as against the said Frederick J. Poth.” A nolle prosequi was entered as to Frederick A. Poth.

The court of common pleas No. 4 of Philadelphia county, in which this action was brought and tried, has a rule of court which provides as follows: “In actions by or against persons charged as partners, it shall not be necessary for the plaintiff, on the trial, to. prove the partnership, but the same shall be taken to be admitted as alleged on the record, unless one or more of the defendants, or some person for him or them, by affidavit filed at or before the time of filing his or their plea, shall have denied the existence of the partnership in relation to the subject-matter of the action, and stating, to the best of his or their knowledge and belief, whether there is any such partnership and who are the parties to it.” There was no affidavit filed in this case denying the existence of the partnership.

The case was again called for trial on October 1, 1906, and the jury was sworn as to Frederick J. Poth without naming him as a surviving partner. On the trial the court held that the plaintiff was required to prove the partnership as alleged in the pleadings, and that the plaintiff had not met this requirement. The learned trial judge also held that the plaintiff had failed to show negligence on the part of the defendant, even if the case were being tried against him as the surviving partner. Entertaining these views, the court instructed the jury to render a verdict for the defendant, and these instructions are the subject of complaint in the first and only assignment of error.

The court below should not have required the plaintiff to prove the partnership. That was conclusively established by the pleadings in the case. The writ was issued against the partnership and the statement, though slovenly- and inartifidally drawn, declared that the acts of negligence were committed by the partnership. Counsel appeared for the defendants as partners and- the written plea filed by him was for the partnership, naming Frederick J. Poth as one of the partners. The case was tried four times against the partnership on the plea of the general issue, without any denial by the defendants that they were partners. For five years the record disclosed the fact that the plaintiff’s claim was against the partnership and that his action had been brought to enforce that claim against the partnership, with no denial on record or suggestion on the former trials that Frederick J. Poth was not a member of the firm against whom the claim was made and the action was brought. The court’s own rule plainly forbade the surviving partner setting up a denial of the partnership on the trial of the cause. This rule prevails generally in the courts of common pleas throughout the commonwealth. Its purpose is a proper and necessary one to facilitate the trial of causes and to require the defendants, if they deny the partnership, to state the fact on record when the issue is made by the pleadings. If one of the defendants who is sued is not a member of the partnership he knows it as well when he is summoned to appear to answer the cause of action set up in the statement as he does thereafter on the trial of the cause. If he intends to raise the question on the trial he should file his affidavit with his plea and thereby give the plaintiff an opportunity to establish the disputed fact. As there had been no affidavit filed by either of the alleged partners, it was manifest error and did great injustice to the plaintiff in permitting the defendant on the trial of the cause to raise the issue of the existence of the partnership and require the plaintiff to prove it.

It is probable that the ruling of the learned trial judge that the plaintiff must prove the partnership, was made in view of the fact that the formal order, as filed,'made Frederick J. Poth, as an individual, the defendant in the case. The carelessness exhibited in the preparation of the statement finds its counterpart in the proceedings to amend the record. Presumably, it was the mistake in the formal order entered of record that moved the court to require the plaintiff to prove the partnership. If the order had provided, as it should have done, that the plaintiff should proceed against Frederick J. Poth, surviving partner of F. A. Poth & Son, the court would unquestionably, in obedience to its rule, have declined to require the plaintiff to prove the partnership. The omission to name in the order entered of record the fact that the case should proceed against the surviving partner had a tendency to mislead the trial judge who had not made the order substituting the surviving partner as the defendant in the cause.

Wo do not think that as the record stood at the time' of the trial there was sufficient reason for the court refusing to enforce its rule and compelling the plaintiff to prove the partnership. The rule granted by the court on Frederick J. Poth was to require him to show cause why the case should not proceed “ against him as the surviving partner of the late copartnership of Frederick A. Poth and Frederick J. Poth, trading as F. A. Poth & Son, the death of Frederick A. Poth having been' suggested.” That rule was made absolute by agreement, the effect of which was to make Frederick J. Poth, surviving.partner of the firm, the defendant. The subsequent order filed, omitting to state the fact that the trial was to proceed against the surviving partner, could not have the effect of eliminating Poth as a surviving partner from the case as a defendant. The formal order entered of record was a mistake, apparent upon its face. It was the duty of the court to enter an order conforming to its action in making the rule absolute. The rule was taken to substitute Poth, as the surviving partner, and not as an individual, as the defendant in the case. In making that rule absolute it necessarily followed that Poth, as surviving partner, became the defendant in the suit, and the order entered of record should have conformed to that fact. The rule was made absolute by agreement of the parties, but the record does not show that the formal order entered of record was done by the agreement of parties. Without the consent of the parties the court was without authority to make the formal order which it entered of record. The action having been brought against the partnership it necessarily proceeded against the surviving partner when the other partner died. The claim, as shown by the pleadings, was against the partnership, and not against the individuals composing it, although if they were individually served it could be enforced against them if the partnership failed- to pay a judgment recovered in the case. To substitute Frederick J. Poth as defendant in the action, after the death of his father, would have been to substitute another and different defendant from the one against whom the action was brought. Both parties had the right to object to this substitution, and as the record does not disclose that either of them consented to it, the court was without authority to make it. We must, therefore, regard the case, at the time of the last trial, as pending between the plaintiff and Frederick J. Poth, surviving partner of the late copartnership of F. A. Poth & Son. Hence, in view of the rule of court above referred to, it was error to require the plaintiff on the trial to prove the partnership.

The statement avers that the defendants, at the time of the accident, were the owners or occupants of a large building used in connection with their brewery fronting on Jefferson street; that on said street is a railroad used by the defendants and others so near the sidewalk that freight cars while running upon it extended over the curb upon the sidewalk ; that the defendants had obstructed the sidewalk upon the south side of Jefferson street with machinery and other objects, so that only a narrow passage was left between the end of said objects upon the sidewalk and the curb, and that the plaintiff child, nine years of age, was lawfully passing along the sidewalk and tripped or stumbled over or ran against the obstruction whicli defendants unlawfully placed and permitted to remain upon the sidewalk and was injured thereby.

The testimony in the case tended to sustain .the allegations of the statement. The defendants owned a brewery on the south side of Jefferson street. There were double tracks on the street, and the south one was so close to the curb that the cars projected over the sidewalk several inches. The sidewalk in front of defendants’ premises had been obstructed for some time prior to the accident by a pile of iron malt boxes, which left a narrow space between them and the curb. Movable levers were attached to the malt boxes, and these further narrowed the passageway on the pavement, leaving a passageway of only about eighteen inches between them and the curb. At the time of the accident the pavement on the north side of Jefferson street at that point was blocked by iron girders, and the middle of the street was occupied by beer wagons and railroad cars.

On the day of the accident the plaintiff with two or three other small boys were going west, towards the park, on Jefferson street, to get cherries at Woodside. When they arrived at the corner of Thirty-first and Jefferson streets they found the pavement on the north side of the latter street obstructed, and they crossed to the south side as a train was approaching on the south track. The flagman told them to hurry up, and they attempted to pass over the pavement in front of the defendants’ premises. The other boys succeeded in passing safely, but the plaintiff ran against one of the projecting levers, was tripped, and falling into the gutter his arm was thrown under a car wheel and injured so badly that it had to be amputated at the shoulder.

As the case goes back for another trial, we will not refer to or discuss the testimony. We think there was sufficient evidence submitted on the trial to send the case to the jury on the question of the negligence of the defendants. The defendants ha¡d the right to use temporarily the sidewalk in front of their place of business for the purpose of sending out and-receiving any articles or commodities from their business house, provided, it was done with the care required by all the circumstances. But they had no right to obstruct .the pavement for any greater length of time than was reasonably necessary for the purpose, and if they did so it was negligence. In using the sidewalk, they were required to exercise their right Avith a. due regard to the safety of pedestrians,. taking into consideration the physical conditions existing at that place at the time: Vallo v. United States Express Co., 147 Pa. 404; Brown v. White, 202 Pa. 297. The evidence tended to show that the only passageway along that street either on the sidewalks or in the cartway was the narrow passageway left between the movable levers projecting from the defendants’ iron malt boxes on the south sidewalk and the curb, and that a car Avas passing in front of this sidewalk and so near it that the steps projected over the walk. It would readily appear that-such a place was a place of danger, and the greater the danger the-greater the degree of care required on the part of the defendants in the use of the sidewalk in connection with their business. Whether they exercised the care required of. them on this occasion, we think was for the jury under the evidence in the case.

The assignment of error is sustained, and the judgment is reversed with a new venire.


source: Caselaw Access Project

author: Mr. Justice Fell,

license: Public Domain

text:
    Freeman’s Estate.

      Wills — Gift to wife — Life estate — Personal estate — Intention.
    Where a husband gives, devises and bequeaths all his real and personal estate to his wife “to take and use same, and the net income thereof during all the term of her natural life, without giving security as life tenant thereof,” without limitation over, or intervention of trustee, the wife takes a life estate only in the personalty. If an absolute estate had been intended, the words “without giving security as life tenant thereof,” would be meaningless.
    Argued Jan. 21, 1908.
    Appeal, No. 369, Jan. T., 1901, by Henry Tatnall et al.,.from decree of O. C. Phila. Co., Jan. T., 1901, Ho. 48, dismissing exceptions to adjudication in Estate of Charles D. Freeman, deceased.
    Before Mitchell, C. J., Fell, Bbown, Mesteezat, Potteb, Elkin and Stewabt, JJ.’
    Affirmed.
    Exceptions to adjudication.
    The- opinion of the Supreme Court states the case.

      Errors assigned were in dismissing exceptions to adjudication.

      Robert R. MaxweU and Arthur Q. Ridcson, for appellants.
    The widow took an absolute estate: Merkel’s App., 109 Pa. 235 ; Nat. Live Stock Bank v. Hartman, 8 Pa. Superior Ct. 110 ; Hartman’s Est., 11 Pa. Superior Ct. 35 ; Drennan’s App., 148 Pa. 176 ; Rutter’s Est., 148 Pa. 577 ; Boyle v. Boyle, 152 Pa. 108.

      John L Rogers-, with him J. B. Oolaham,, 3d, for appellees.
    Courts should not attempt to construe that which needs no construction : Reek’s App., 78 Pa. 432 ; Hauer’s Est., 16 Pa. Superior Ct. 257 ; Campbell’s Est., 202 Pa. 459.
    March 2, 1908 :
   Opinion by

Mr. Justice Fell,

The executors of the will of S. Augusta Freeman, in .filing her account as administratrix c. t. a. of the estate of Charles D. Freeman, reported that they found certain certificates of stock in her name as life tenant under the will of her husband, Charles I). Freeman, and submitted the question of the ownership of the shares to the court for determination. The contest was between legatees under the will of Mrs. Freeman, who asserted an absolute ownership of the shares in her, and the widow of an heir of Mr. Freeman, who claimed that Mrs. Freeman’s interest was limited to a life estate.

The fourth and final clause of Mr. Freeman’s will is as follows : “ I give and devise and bequeath all my real and personal estate, also that interest in my father’s estate over which I have power of appointment, to my wife to take and use same and the net income thereof during all the term of her natural life without giving security as life tenant thereof.” There ivas no limitation over after the death of his wife. He owned shares of stocks of the value of over $90,000. Some of the certificates were in his name, some were in the name of Mrs. Freeman, and some were in the name of the broker through whom they had been purchased. At the instance of some of her children, and after a conference on the subject between their counsel and hers, she surrendered all the certificates of stock and had new ones made out in her name as life tenant under the will of Charles D. Freeman, deceased.”

Irrespective of any effect that might be given to the act of Mrs. Freeman in taking out new certificates, either as a recognition by her of her limited estate or as a family settlement, the decree is right. Notwithstanding that the gift was to take and use the corpus of the estate and the net income thereof for life, with no limitation over and without the intervention of a trustee, the manifest intention was that Mrs. Freeman should take only a life estate. That the testator meant this is apparent from the direction that relieved her from giving security to preserve the corpus of the estate. If an absolute estate liad been intended, the words, without giving security as life tenant thereof,” would be meaningless. The intention being clear, there is no room for the application of rules of construction in aid of its discovery. It was said by the present chief justice in Woelpper’s Appeal, 126 Pa. 562 : “ With the' desire to reduce to a minimum the perplexity and uncertainty inseparable from the subject, courts have established certain artificial and arbitrary canons of construction by which certain forms of expression are presumed to have certain meanings, and in doubtful cases these presumptions are held to be decisive. But these canons are subservient to the great rule as to intent, and are made to aid, not to override it. As in all such cases, care is required that tools shall not become fetters, and that the real end shall not be sacrificed to what was intended only as the means of reaching it.”

The decree is affirmed at the cost of the appellant.


author: Per Curiam,

text:
    Hallowell v. Hoey, Appellant.

      Affidavit of defense — Contract—Building contract — Deficiency in quality of materials.

    In an action on a building contract in writing, an affidavit of defense is insufficient which sets up a prior verbal agreement in conflict with the written agreement; which does not state the cost of remedying the alleged defects; or how much less the buildings are worth because of them.
    Submitted Feb. 3, 1908.
    Appeal, No. 74, Jan. T., 1907, by defendant, from order of C. P. Montgomery Co., Oct. T., 1906, Ho. 47, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Richard T. S. Hallowell v. Mary C. Hoey.
    Before Felt., Beown, Mesteezat, Pottee, Elkin and Stewaet, JJ.
    Affirmed.
    Assumpsit on a building contract.
    Rule for judgment for want of a sufficient affidavit of defense.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was order making absolute rule for judgment for want of a sufficient affidavit of defense.

      J. V. Gotwalts and Henry Freedley, for appellant.

      William F. Meyers, for appellee.
    March 2, 1908:
   Per Curiam,

This action was to recover on a written contract to build three houses and for extra work alleged to have been done under a verbal agreement. It was averred in the affidavit of defense that the defendant asked the plaintiff for a proposal to build three houses like a row of houses he had built for her husband, Daniel J. Hoey, except that her houses were to have basement kitchens ; that they were to be built independent of the neighboring properties ; and that no plans entered into the contract; that the plaintiff built foundation walls upon only three sides of the houses, and used old timbers taken from torn down houses in their construction; and that in conseq uence of his default the houses were worth only $1,800. Other parts of the affidavit of defense were held to be sufficient to prevent judgment for the extra work, but judgment was entered for the contract price for the reasons stated in the opinion of the court: “ The written contract attached to the plaintiff’s statement, and the execution of which is admitted by the defendant, makes, no mention of walls or houses of Daniel J. Hoey. The affidavit is insufficient to prevent judgment for this part of the claim for the following reasons : It sets up á verbal agreement prior to the written agreement, which latter is self-explanatory; there is no allegation of fraud, accident or mistake in the execution of the written agreement; it does not claim that the houses were not like the row built for Daniel J. Hoey, nor' does it state the value of the desired wall— what it would cost to construct it or how much less the houses are worth without it; and does not give the depreciation because of the use of old materials, etc. An analogous case is found in Taylor v. Murphy, 148 Pa. 337, where it was held that affidavit of defense to a scire facias on a mechanic’s lien which set forth that the materials furnished were not such as the contract required, and in consequence of its defective character the house was worth one hundred and twenty-five dollars less than it otherwise would have been, and claimed a defense to that amount’ was too general to prevent judgment.”

The judgment is affirmed.


text:
    Vaughn, Appellant, v. Longmead Iron Works.

      Negligence — Master and servant — Tools and implements — Defect through use.

    There is no ground for an inference of negligence against an employer where tools and machinery have become defective through use, and the defects are apparent to those using them, and have not been brought to the employer’s knowledge.
    Argued Feb. 3, 1908.
    Appeal, No. 275, Jan. T., 1907, by plaintiff, from judgment of C. P. Montgomery Co., March T., 1905, No. 112, for defendant non obstante veredicto in case of Benjamin F. Yaughn, Administrator of Elbridge E. Vaughn, deceased, v. Longmead Iron Works.
    Before Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries.
    Before Weand, J.
    The opinion of the Supreme Court states the case.
    Yerdict for plaintiff for $4,186, upon which judgment was subsequently entered for defendant non obstante veredicto.

      Error assigned was in entering judgment for defendant non obstante veredicto.

      Montgomery Evans, with him John M. Dett/ra, for appellant.

      1V. H. Larzelere, with him Ercmhlin L. Wright, for appellee.
    March 2, 1908 :
   Per Curiam,

The allegation of negligence the defendant was called on to answer was that it furnished its employee with an unsafe truck with which to move iron plates from one part of its works to another. The proof in support of this allegation was that a nut was off a bolt which held the body of the truck to one of. the axles. Whether the overturning of the truck was due to the loss of the nut or to negligence in placing the load on one-side of the truck, was left uncertain by the testimony. But if we assume that the testimony would have warranted a finding that the accident was due to the first of these causes, the case presented was that of an employee who used, without objection, an implement that had become defective by his daily use of it. It is not ground for an inference of negligence against an employer that tools and machinery have become defective through use, where the defects are apparent to those using them and have not been brought to the employer’s knowledge: Baker v. Railroad Co., 95 Pa. 211.

The judgment is affirmed.


text:
    Duke to use v. North Penn Gas Company, Appellant.

      Practice, C. P. — Findings of fact — Review—Evidence—Appeals.
    While the appellate court will give to the findings of fact by the court below in a case tried without a jury the same effect that is given to the verdict of the jury, it will examine the record as in the case of a nonsuit, or the refusal to direct a verdict for the defendant, to determine whether there is any testimony which, if believed, will sustain the findings.
    Argued Feb. 4, 1908.
    Appeal, No. 337, Jan. T., 1907, by defendant, from judgment of C. P. Montgomery Co., Oct. T., 1906, No. 104, on case tried by the court without a jury in suit of Ií. T. Duke to use of the Norristown Trust Company v. North Penn Gas Company.
    Before Pell, Brown, Mestrezat, Potter and Stewart, JJ.
    Affirmed.
    Assumpsit on a written contract.
    The case was tried by the court without a jury under the act of April 22, 1874.
    The court in an opinion by Swartz, P. J., found in favor of the plaintiff and against the defendant for $1,789.49.

      Errors assigned were in dismissing exceptions to various findings of fact and conclusions of law.

      Louis M. Childs, with, him John C. Bell, for appellant.

      Montgomery Evans, with him N. LL. Lcwzelere, for appellee.
    March 2, 1908:
   Per Curiam,

This was an action on a written contract to furnish and lay gas pipe for the defendant at a stipulated price, and was tried by the court without a jury. It is conceded that the use plaintiff was entitled to recover the amount of money it advanced the contractor on the faith of statements contained in a letter written by the defendant’s president, which he knew was to be used for the purpose of obtaining advances. The right to recover the contract price was resisted on the ground that the work had not been properly done. We are asked to set aside the finding that there was a substantial compliance with the contract and that tests afterwards made disclosed only such defects as were to be expected in work of this kind, on the ground that there was no testimony sufficient to sustain it. While we give to the findings of fact by the court in such a case the same effect that is given to the verdict of a jury, we will, however, examine the record, as in the case of nonsuit or the refusal to direct a verdict for the defendant, to determine whether there was any testimony which, if believed, will sustain the findings. For this purpose we have examined the testimony and find that the conclusion of the court that there had been a substantial compliance with the terms of the contract is not without support.

The judgment is affirmed.


text:
    Vincent v. Lehigh Valley Transit Company, Appellant.

      Negligence — Street railways — Side-on collision between car and wagon— “Stop, look and listen” — Evidence—Presumption—Case for jury.

    In an action against an electric railway company to recover damages for the death of plaintiff's husband in a collision between a car and wagon the case is for the jury, and a verdict and judgment for plaintiff will be sustained, where the evidence for the plaintiff tends to show that defendant's tracks were on a public road within eight or ten feet of the deceased's property line; that at the time of the accident the deceased drove in a large covered wagon out of a lane leading from his premises at right angles with a public road; that between the house and the.end of the lane there was no point where an unobstructed view of a car approaching from the south could be had; that at the end of the lane the difficulty in seeing was increased by the deflection of the track towards the side of the road, and by drooping branches of trees so that a car could not be seen at a greater distance than 100 or 150 feet; that until the middle of the space between the fence and the track was reached no extended view could be had by a driver; that no signal was given, and that no witnesses actually saw the accident.
    In such a case it is for the jury to determine whether the motorman or the deceased failed in the performance of a duty to which the circumstances gave rise.
    Argued Feb. 4, 1908.
    Appeal, No. 341, Jan. T., 1907, by defendant, from judgment of O. P. Montgomery Co., Deo. T., 1906, No. 85, on verdict for plaintiff in case of Julia Frances Vincent v. Lehigh Valley Transit Company.
    Before Fell, Brown, Mestrezat, Potter and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for death of plaintiff’s husband.
    Before Weand, J.
    The circumstances of the accident are stated in the opinion of the Supreme Court.
    Verdict and judgment for plaintiff for $6,650. Defendant appealed.

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

      H. H. Larzelere, with him Frcmklin L. Wright, for appellant.
    The motorman was not negligent as regards the speed of the car, as he was on a country road, and the lane was a private one not frequently used : Harman v. Traction Co., 200 Pa. 311 ; Houston Bros. Co. v. Traction Co., 28 Pa. Superior Ct. 374.
    If the decisions governing right-angled crossings apply, the case should have ended fatally to appellee : Ehrisman v. East Harrisburg City Pass. Ry. Co., 150 Pa. 180 ; Omslaer v. Pittsburg, etc., Traction Co., 168 Pa. 519 ; Burke v. Union Traction Co., 198 Pa. 497 ; Tyson v. Union Traction Co., 199 Pa. 264 ; Pieper v. Union Traction Co., 202 Pa. 100 ; Mease v. United Traction Co., 208 Pa. 434 ; March v. Traction Co., 209 Pa. 46 ; Timler v. Phila. Rapid Transit Co., 214 Pa. 475.
    It was the duty of the deceased to look : Griffith v. West Chester St. Ry. Co., 214 Pa. 293 ; Burke v. Traction Co., 198 Pa. 497 ; Mease v. United Traction Co., 208 Pa. 434.
    There can be no presumption of a fact which is negatived b^y all the evidence in the case: Goodman v. Sanger, 85 Pa. 37 ; Kinter v. Penna. R. R. Co., 204 Pa. 497 ; Hanna v. Phila. & Reading Ry. Co., 213 Pa. 157 ; Coppuck v. R. R. Co., 191 Pa. 172 ; Gangawer v. R. R. Co., 168 Pa. 265.

      Montgomery Evans, with him John M. Dettra and Ilenry M. Brownbaelc, for appellees.
    March 2, 1908 :
   Opinion by

Mr. Justice Fell,

This action was to recover damages for the death of the plaintiff’s husband who was killed in a collision between a car of the defendant company and a wagon in which he was riding. The track of the electric railway was laid at the side of the road nearest his dwelling house and within eight or ten feet of the fence of the front yard. A lane eighty feet in length extended from the dwelling to the road, into which it opened at right angles. At the end of the lane, south, in the direction from which the car came, there was a descending grade of the road for 300 feet to the foot of a hill 1,200 feet long with an elevation of twenty-nine feet. Between the lane and the foot of the hill the track was deflected slightly towards the road fence. At the end of the lane the view south was obstructed by trees and bushes then in leaf, but to what extent was disputed at the trial. The deceased was riding out the lane in a large covered wagon, sitting in front with his feet out on the foot board. His horse had crossed the track and the wagon was struck at, or immediately behind, the front wheels.

None of the plaintiff’s witnesses saw the accident. Her case rested on the presumption that her husband had exercised due care before driving on the track, and upon proof that the car was running at an unusual and very rapid speed and that no signal of its approach was givqn. The car was scheduled to run at this place at the rate of twenty-five or thirty miles an hour. Her witnesses testified that the car was behind time and was running faster than usual; and one of them, who claimed to be able to judge of the subject, fixed the speed at fifty miles an hour. Ho signal vas given near the lane until the horse was on the track and the car was 100 or 150 feet from it. "Whether a signal had been given at a public crossing, 1,500 feet south, was disputed. But the testimony as to the absence of any signal was more than merely negative. One of the witnesses, whose house was between the lane and the public crossing, was watching for the car and heard it coming but heard no gong or whistle.

The closest question at the trial was whether the case presented by the plaintiff was within the rule established by Carroll v. Penna. Railroad Co., 12 W. N. C. 348, and since followed in a long line of cases, that a person who goes in front of a moving car -which he saw or could have seen by the exercise of the reasonable care which the law requires, and is instantly struck, will be conclusively presumed to have been negligent. Her testimony tended to show that between the house and the end of the lane there was no point where an unobstructed view of a car approaching from the south could be had; that at the end of the lane the difficulty in seeing was increased by the deflection of the track towards tlie side of the road, and that the view was so obstructed by the drooping branches of trees, especially of a large willow tree that overhung the track, that a car could not be seen at a greater distance than 100 or 150 feet; that until the middle of the narrow space of eight or ten feet between the fence and the track was reached, no extended view could be had by a driver. His horse would then be on the track. The danger of the situation would be like that which results from a car suddenly-emerging from a tunnel or coming around a curve in the road from a point where it had been hidden from view. This danger was known to the deceased and to the motorman, and it imposed duties on each. Whether either failed in the performance of a duty to which the circumstances gave rise was a question for the jury. The rule in Carroll v. Railroad Co., 12 W. N. C. 348, is applicable only in clear cases where there is no reasonable doubt as to the facts or the inferences to be drawn from them: McNeal v. Railroad Co., 131 Pa. 184; Doyle v. Chester Traction Co., 214 Pa. 382.\ Where there is uncertainty as to either, the case is necessarily for the jury.

The judgment is affirmed.


text:
    Gillingham’s Estate.

      Will — Legacy—Charge of debt against legatee — Books of account— Statute of limitation — Evidence.
    Where a testator directs that a debt due to him by his brother shall be charged against a legacy given to the brother, books of account of the testator are admissible in evidence to show the amount of the debt due by the brother, where the testator’s private secretary who produces the books testifies that the decedent had directed that the account against his brother should be carried over from year to year as an indebtedness, and that it remained unpaid at the time of the decedent’s death. In such a case the brother cannot plead the statute of limitation, inasmuch as he is a mere volunteer, and must take the bounty of the testator upon the terms upon which it was bestowed.
    Argued Feb. 4, 1908.
    Appeal, No. 342, Jan. T., 1907, by Frank C. Gillingham, from decree of O. C. Montgomery Co., Dec. T., 1906, No. 17, dismissing exceptions to adjudication in Estate of Joseph E. Gillingham, deceased.
    Before Fell, Brown, Mestrezat, Potter and Stewart, JJ.
    Affirmed.
    Exceptions to adjudication.
    Solly, P. J., filed the following opinion :
    The thirtieth paragraph of the will of the decedent provides as follows : “ I will and direct that all indebtedness which at the time of my decease may be due to me by my brother, Frank O. Gillingham, shall be charged only against the share of income of my said brother in my residuary estate. I direct that no interest shall be charged on said indebtedness.” Harrison L. Newhall, the private secretary of the decedent for many years, and who was conversant with all his property and affairs, according to the decedent’s statement in the forty-sixth paragraph of the will, produced the books and accounts of the decedent, and they showed an open account against Frank O. Gillingham, which Mr. Hewhall declared the decedent directed to be carried over from year to year as an indebtedness of' the brother, and that it remained unpaid at the time of the decedent’s death. The amount of the indebtedness thus shown is $9,037.60.
    The brother denied the indebtedness, but no competent evidence showing payment was offered. He also contended that the account and books produced were not legal evidence of indebtedness, but if so, then recovery was barred by the statute of limitations. ¥e held that the uncontradicted evidence showed that the decedent regarded the account as the evidence of the indebtedness of his brother, and intended it should be charged against his share of the estate, otherwise the thirtieth paragraph of the will is meaningless. We also held that inasmuch as the estate was not attempting to recover a debt more than six years old, the statute of limitations had no application. We directed the indebtedness of the brother to be charged against his share of the income of the residuary estate. This conclusion was based upon the evidence produced, the fact that the indebtedness was a matter'within the personal knowledge of the testator when he made his will, and hiS right to direct the deduction of the indebtedness from the share of the brother, “ a volunteer who the law declares must take the bounty of the testator upon the terms in which it is bestowed.”
    The sole exception relates to the finding and conclusion of the court in this matter. The exceptant earnestly contends that because the testator did not refer in his will to his books of account as showing the indebtedness of his brother, it was incompetent, therefore, to admit the books as evidence. The evidence of Mr. Mewhall, however, rendered them admissible for the purpose of showing that the testator considered the charge therein shown as the evidence of theindebtedness of the brother. There was no other indebtedness of the brother when the will was made. The testator, of course, could have stated the amount, but his intention to charge the brother is none the less clear because he did not do so.
    It is argued that because the testator expressly directed such indebtedness which at the time of his decease might be due by the brother to be deducted from his share, it must be assumed in law that only the indebtedness that is deraanclable and collectible by process of law can be deducted. A debt may be due, that is justly and honestly owing, and yet the creditor be without remedy to enforce payment because of the plea of the statute of limitations. Still the debt is due, it is owing. The word “ due ” is used by judges, legislators and lexicographers as synonymous with “ owing : ” Eulweiler v. Hughes, 17 Pa. 440. “ Due ” means “ owed,” “ owing : ” Century Dictionary. It is defined, “ owed, owing, owing and unpaid, remaining unpaid, an indebtedness : ” 14 Cyc. 1107.
    To the testator the word “ due ” had doubtless the same meaning as owing. The indebtedness referred to by him was what his brother owed him, what remained unpaid at the time of his death. As was said in Keiser v. Keiser, 199 Pa. 77, so here, the testator has in his will indicated his intention as to the indebtedness in question, and by positive direction indicated his wishes in this respect. He has, in plain words, required not its collection, but its deduction from the share of his brother.
    And now, July 10, 1907, the exception is dismissed, and the adjudication finally confirmed.

      Error assigned was in dismissing exceptions to adjudication.

      Joseph Hill Brinton, with him Theodore Lane Bean and Algernon B. Roberts, for appellant.
    Mo proper evidence of the indebtedness was shown: Curren v. Crawford, 4 S. & R. 3 ; Bulkley v. Wood & Co., 4 Pa. Superior Ct. 391 ; Huston’s Est., 167 Pa. 217 ; Callaway v. McMillian, 11 Heiskell (Tenn.), 557 ; Hess’s App., 112 Pa. 168 ; Linn’s Est., 2 Pearson, 487 ; Saam v. Saam, 4 Watts, 432 ; Hudson v. Hudson, 21 Pa. Superior Ct. 92 ; Hoe v. Seitz, 1 W. N. C. 429; Mertz’s Appeal, 7 Atl. Repr. 187 ; Ahl v. Ahl, 176 Pa. 466 ; Verrier v. Guillou, 97 Pa. 63.
    The claim, if any, was barred by the statute of limitations : Milne’s App., 99 Pa. 483 ; Light’s Estate, 136 Pa. 211 ; Reck’s App., 78 Pa. 432 ; Hastings v. Engle, 217 Pa. 419 ; Fulweiler v. Hughes, 17 Pa. 440 ; Hancock’s App., 112 Pa. 532 ; Byers’s Est., 186 Pa. 404 ; Allshouse’s Est., 23 Pa. Superior Ct. 146.

      Jas. Aybward Develin, with him Neville D. Tyson, for appellee.
    There was sufficient proof of the indebtedness: Wright’s App., 93 Pa. 82 ; Keiser v. Keiser, 199 Pa. 77.
    The statute of limitations is a bar to the remedy only and does not discharge the debt; so that when waived by a new promise the action proceeds upon the original contract and not upon the new promise: Yaw v. Kerr, 47 Pa. 333 ; Bolton v. King, 105 Pa. 78 ; Hengst’s Est., 6 Watts, 86 ; Wright’s App., 89 Pa. 67 ; Oller v. Bonebrake, 65 Pa. 338 ; Kener’s Est., 19 Lanc. L. R. 313 ; Keiser v. Keiser, 199 Pa. 77 ; Falk’s Est., 22 Lanc. L. R. 331.
    The law is well settled that, when a person accepts a legacy it is an election to stand by the provision of the will: Fulton v. Moore, 25 Pa. 468 ; Pennsylvania Co. v. Stokes, 61 Pa. 136.
    March 2, 1908:
   Per Curiam,

The decree of the court is affirmed on the opinion of the learned judge of the orphans’ court, dismissing exceptions to the adjudication.


text:
    Moyer’s Estate.

      Wills — Probate—Issue devisavit vel non — Refusal of issue — Testamentary capacity — Undue influence — Evidence.

    On an application for an issue devisavit vel non it appeared that the testatrix was a widow without children, and that her nearest of kin were two brothers and a sister. To one brother, the contestant, with whom her relations were not cordial,, she left a small legacy; and she divided the rest of her estate equally between the other brother, with whom she lived, and her sister. The will was written by a justice of the peace foy whom she had sent. He saw her in her room, with no other person present, and she gave him directions as to the disposition she wished to make of her property, and stated her reasons for not leaving more to the contestant. The justice wrote the will before leaving the room, and it was signed in the presence of witnesses not connected with any of the parties in interest. He took it away with him, and retained possession of it until her death four months later. Neither the brother nor the sister mainly benefited saw the will, or knew of its provisions until it was offered for probate. There was no evidence of lack of testamentary capacity nor of solicitation nor importunity. Held, that an issue was properly refused.
    Argued Feb. 4, 1908.
    Appeal, No. 365, Jan. T., 1907, by-Peter A. Shuler, from decree of O. C. Lehigh Co., Sept. T., 1906, No. 13, refusing an issue devisavit vel non in estate of Mary A. Moyer, deceased.
    Before Fell, Brown, Mestrezat, Potter and Stewart, JJ.
    Affirmed.
    Appeal from register of wills.
    Before Trexler, P. J.
    The opinion of the Supreme Court states the case.

      Error assigned was decree refusing issue devisavit vel non.

      Milton O. Henninger, with him Q-eorge M. Late, for appellant.

      James L. Sehaadt, with him Olías. W. Ka&pfel, for appellees.
    March 2, 1908 :
   Per Curiam,

This appeal is from an order refusing an issue devisavit vel non asked for on the ground of mental incapacity and of undue influence. There was no evidence of either. The testatrix was a widow without children and her nearest kin were two brothers and a sister. To one brother, the contestant, with whom her relations were not cordial, she left a small legacy ; and she divided the rest of her estate equally between the other brother, with whom she lived, and her sister. There was not a word of testimony that raised a doubt as to her testamentary capacity. Nor was there any proof of solicitation or importunity. The will was written by a justice of the peace for whom she had sent. ITe saw her.in her room with no other person present and she gave him directions as to the disposi-. tion she wished to make of her property and stated her reasons for not leaving more to the contestant. The justice of the peace wrote the will before leaving the room and it was signed in the presence of witnesses not connected with any of the parties in interest. He took it away with him and retained possession of it until her death four months after. Neither the brother nor the sister mainly benefited saw the will or knew of its provisions until it was offered for probate. There was no testimony that would sustain a verdict against the will and the issue was properly refused. The decree is affirmed at the cost of the appellant.


text:
    Clark v. Kurtz, Appellant.

      Vendor and vendee — Option—Fraud—Absence of trust relation.

    In an action of assumpsit it appeared that the plaintiff obtained from the defendant an option to purchase within ninety days a farm for $23,000. Before the option had expired plaintiff effected a sale of the farm for $24,000, but represented to the defendant that he could not obtain a purchaser who would pay more than $23,000, and by this representation he induced the defendant to reduce the price to $22,000, and the price named in the written option was changed to this amount. With knowledge of the deception practiced on him, and after he had received a part of the purchase money from the plaintiff, the defendant carried out the arrangement that plaintiff had made with the purchaser to whom he had assigned the option, made the conveyance to the purchaser, and received from him $24,000. Held, that as there was no trust or confidential relation between plaintiff and defendant, plaintiff was entitled to recover the difference between the price at which the defendant agreed to sell to the plaintiff, and the amount received by the defendant from the purchaser to whom the plaintiff had assigned the option.
    Argued Feb. 5, 1908.
    Appeal, No. 9, Jan. T., 1908, by defendant, from judgment of C. P. Lehigh Co., Jan. T., 1907, No. 65, on verdict for plaintiff in case of William B. Clark v. II riah Kurtz.
    Before Fell, B rown, Mestrezat, Potter and Stewart, JJ.

    Affirmed.
    Assumpsit to recover for money had and received.
    Before Trexler, P. J.
    The opinion of the Supreme Court states the case.
    The court gave binding instructions for plaintiff.
    Yerdict and judgment for plaintiff for $1,590. Defendant appealed.

      Error assigned was in giving binding instructions for plaintiff.

      Preston K. Erdman and Thos. F. Piefenderrfer, with them John Gr. Piefenderfer, for appellant.

      Edward Ilarvey, with him A. H. TJlrieh, for appellee.
    March 2, 1908 :
   Per Curiam,

The plaintiff obtained from the defendant an option to purchase within ninety days a farm for $23,000. Before the option had expired, he effected a sale of the farm for $21,000, but represented to the defendant that he could not obtain a purchaser who would pay more than $23,000 and by this representation he induced the defendant to reduce the price to $22,000 and the price named in the written option was changed to this amount. With knowledge of the deception practiced on him and after he had received a part of the purchase money from the plaintiff, the defendant carried out the arrangement the plaintiff had made with the purchaser to whom he had assigned the option, made the conveyance to the purchaser and received from him $21,000. This action was to recover the difference between the price at which the defendant agreed to sell to the plaintiff and the amount received by the defendant from the purchaser to whom the plaintiff had assigned the option. A verdict was directed for this difference less a deduction for deficiency in acreage, as to which there was no dispute.

It is only by regarding the relation between the defendant and the plaintiff as that of principal and agent that the former can obtain redress for the deception practiced. This relation did not exist. The parties were dealing at arm’s length as vendor and vendee and there was no relation of trust or confidence established between them. The defendant was induced by means of an untrue representation to reduce the price at which he had agreed to sell the farm to the plaintiff or his assigns. With full knowledge that he had been deceived, he confirmed and ratified the contract and made the conveyance on the terms fixed by agreement between the plaintiff and the purchaser to whom the option had been assigned.

The judgment is affirmed.


author: Mr. Justice Elkin,

text:
    National Bank of Chester County v. Thomas, Appellant.

      Guaranty — Principal and guarantor — Continuing guaranty — Intention —Evidence.

    Whether a contract of guaranty is a continuing undertaking, is a question of intention which must be gathered from the instrument itself, or from the course of dealings between the parties, or from both. If it appears that a future course of dealing for an indefinite time, or a succession of credits to be given is contemplated by the parties, the contract will be construed to be a continuing guaranty.
    Where a father obligates himself in writing to guarantee a bank against any loss on any personal loans made to his son, or on account of any business paper discounted, to amounts respectively designated, and it appears that at the time of the execution of the guarantee, the bank had already made personal loans to the son and discounted paper for him less in each instance than the amount stated in the guarantee, and where the course of dealing so indicates, the court will construe the guaranty as a continuing one, covering not only past but future transactions.
    Where it appears a principal debtor is insolvent so that a legal proceeding against him would be fruitless, it is not necessary for a creditor to institute such a proceeding in order to hold a guarantor liable.
    Where in an action upon a guaranty no question is raised in the court below as to whether the creditor had used due diligence in pursuing the debtor, such question cannot be considered for the first time on appeal.

      Argued Feb. 10, 1908.
    Appeal, No. 198, Jan. T., 1907, by defendant, from judgment of O. P. Chester Co., Jan. T., 1907, No. 32, on verdict for plaintiff in case of The National Bank of Chester County v. Elizabeth O. Thomas and Francis G. Thomas, Executors of I. Preston Thomas, deceased.
    Before Mitchell, C. J., Brown, Mestrezat, Elkin and Stewart, JJ.
    Affirmed.
    Assumpsit on a guaranty.
    Before Hemphill, P. J.
    The opinion of the Supreme Court states the facts.
    Yerdict and judgment for plaintiff for $18,176.46. Defendant appealed.

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

      A. M. Holding, with him Joseph Hill Brinton, for appellant.
    The guaranty sued upon is retrospective and not prospective : Kellogg v. Stockton & Fuller, 29 Pa. 460 ; Unangst v. Hibler, 26 Pa. 150 ; Petriken v. Baldy, 7 W. & S. 429 ; People v. Lee, 104 N. Y. 441 (10 N. E. Repr. 884); Denniston v. Schaal, 5 Pa. Superior Ct. 632 ; Boston & Sandwich Glass Co. v. Moore, 119 Mass. 435.
    The guaranty was not a continuing one, and, therefore, when personal loans to the amount of $2,500 had been made to Francis G. Thomas, and business paper had been discounted for him to the amount of $1,000, the liability of I. Preston Thomas ended, except as to any losses upon the same : Cutler v. Ballou, 136 Mass. 337 ; Boston & Sandwich Glass Co. v. Moore, 119 Mass. 435 ; Sherman v. Mulloy, 174 Mass. 41 (54 N. E. Repr. 345); Busier v. Chew, 5 Phila. Rep. 70 ; Illinois Roofing & Supply Co. v. Gorton, 6 Pa. Dist. Rep. 407 ; McGough v. Birmingham, 29 Pitts. Leg. Jour. 178 ; Wilde v. Haycraft, 2 Duvall (Ky.), 309 ; Gerson v. Hamilton, 30 La. Ann. 737 ; Morgan v. Boyer, 39 Ohio, 324 ; Denniston v. Schaal, 5 Pa. Superior Ct. 632 ; Aldricks v. Higgins, 16 S. & R. 212 ; Bonney v. Robertson, 6 Col. App. 485 (41 Pac. Repr. 842).
    This action cannot be maintained against the estate of I. Preston Thomas, deceased, the guarantor, because no such preliminary course was adopted towards Francis G. Thomas, or the makers of his business paper, as entitled the bank to proceed upon the guaranty : Hoffman v. Bechtel, 52 Pa. 190 ; Rudy v. Wolf, 16 S. & R. 79 ; Johnston v. Chapman, 3 Penrose & Watts, 18.
    The contingent liability of the guarantor becomes absolute only after due and unsuccessful effort to obtain satisfaction from the principal, or by circumstances that excuse diligence: Gilbert v. Henck, 30 Pa. 205 ; Hartman v. First National Bank of Lancaster, 103 Pa. 581 ; Mizner v. Spier, 96 Pa. 533.
    Due diligence must be shown, unless it appear that all diligence would have been hopeless : Ritchie v. Walter, 166 Pa. 604 ; Campbell v. Baker, 16 Pa. 243 ; Nat. Loan & Building Assn. v. Lichtenwalner, 100 Pa. 100.

      Robert 8. Waddell and R. T. Cornwell, for appellee.
    It is the intention which determines the question of a continuing or noncontinuing guaranty: Denniston v. Schaal, 5 Pa. Superior Ct. 632 ; Melendy v. Capen, 120 Mass. 222 ; Louisville Mfg. Co. v. Welch, 10 How. (U. S.) 461 ; Nat. Exchange Bank v. Gay, 57 Conn. 224 (17 Atl. Repr. 555); Gay v. Ward, 67 Conn. 147 (34 Atl. Repr. 1025); Merchants’ Nat. Bank of Whitehall v. Hall, 83 N. Y. 338 ; White’s Bank v. Myles, 73 N. Y. 335 ; Rindge v. Judson, 24 N. Y. 64 ; Mayer v. Isaac, 6 M. & W. 605 ; Merle v. Wells, 2 Camp. 413 ; Bastow v. Bennett, 3 Camp. 220 ; City Nat. Bank v. Phelps, 86 N. Y. 484.
    The contract was an original undertaking: Hassinger v. Ammon, 160 Pa. 245 ; Watson v. Porzel, 158 Pa. 513 ; Owen v. Yeter, 4 Northampton, 111.
    The word “ guaranty ” is used in the contract before us in its popular and not in its technical sense, as the courts have so often had occasion to observe: American Radiator Co. v. Hoffman, 26 Pa. Superior Ct. 177 ; Sherman v. Roberts, 1 Grant, 261 ; Campbell v. Baker, 46 Pa. 243 ; Reigart v. White, 52 Pa. 438 ; Woods v. Sherman et al., 71 Pa. 100 ; Riddle v. Thompson, 104 Pa. 330.
    March 2, 1908 :
   Opinion by

Mr. Justice Elkin,

The controlling question in this case is whether the written instrument upon which suit is brought is a continuing guaranty. It is in the following language : “ For value received I hereby guarantee the National Bank of Chester County against any loss on any personal loans made by the said Bank to my said son, Francis G. Thomas, to the amount of $2,500 ; also against any loss on business paper of his discounted by said Bank, not exceeding the sum of $1,000.” It was executed by the father and intended to assist in maintaining the credit of the son. The father obligated himself to guarantee the bank against any loss on any personal loans made to the son or on account of any business paper discounted to the amounts respectively designated. It is now contended for appellant, first, that the guaranty sued on is retrospective and not prospective; second, that it is not a continuing guaranty; third, that there can be no recovery because the notes sued on are renewals of former notes, and consent of guarantor was not shown; and fourth, that the action cannot be maintained against the estate of the guarantor because the evidence produced at the trial was not sufficient to show due diligence on the part of the bank to obtain payment from the persons primarily liable. The first three positions depend upon the scope and character of the contract of guaranty entered into between the parties. If it was a continuing guaranty the suit can be maintained and the judgment of the court below was properly entered. Whether a contract of guaranty is a continuing undertaking is a question of intention which must be gathered from the instrument itself, or from the course of dealings between the parties or from both. If it appears that a future course of dealing for an indefinite time, or a succession of credits to be given, was contemplated by the parties, the contract will be construed to be a continuing guaranty. Contracts of this character, as a rule hastily drawn by persons without technical knowledge of the import and legal effect of the words used, vary so much that it is difficult to state definite rules which should control in their construction. In every case, however, it is a question of intention to be determined as above indicated. What was the intention of the parties in the case at bar ? Did the father intend to limit his liability to the indebtedness existing when the contract of guaranty was entered into, or did he, having a paternal solicitude for the business success of his son, undertake to secure the bank against loss for a line of credit to be extended by the bank from time to time and within the limitations as to amounts fixed ? The learned court below construed the contract to be a continuing guaranty, and directed a verdict for the plaintiff. In the opinion of the trial judge refusing a new trial it is stated that at the time of the execution of the paper the bank had already made personal loans to the son aggregating $2,300, and had discounted business paper amounting to $826.90. Under these facts it does not seem reasonable to say that the father only intended to protect the bank for personal loans already made to the son and for business paper then discounted, because the personal loans made and business paper discounted were less in each instance than the amount he undertook to guarantee to the bank. If he intended to limit his liability to loans then in existence it would have been an easy matter to do so, and not having done so, raises a strong presumption against the contention now made in behalf of his estate. Indeed, as we view the case, the paper itself, the situation of the parties at the time it was executed and the course of dealing between them show that it was the intention of the father to aid his son in securing a line of credit from the bank to assist him in his business undertakings, indefinite in time as to the making of the personal loans or the discounting of business paper, but with-a fixed limitation of liabilityin each class of loans. The words “made” and “ discounted” used in the contract are relied on by counsel for appellant to support their contention that the guaranty applied only to the loans and discounts existing at the time of its execution. It may be conceded that these words as ordinarily used apply to completed transactions, but not necessarily so. ¥e quite agree with the suggestion made by counsel for appellee that these words are used in the participial sense, without relation to time, and may apply as well to future as to past transactions. The guarantor undertook to protect the bank “ against any loss on any personal loans made ” or “ on business paper of his discounted.” The use of the words “ any loss ” on “ any personal loans ” is inconsistent with the contention that the guaranty only applied to particular loans already made. There can be no reasonable doubt that the father, the guarantor, in order to induce the bank to extend a line of credit to his son, undertook to protect it against any loss on any personal loans made to the son in the past or to be made to him in the future. The contract, when considered as a whole in connection with the course of dealing between the parties, is not susceptible of any other reasonable interpretation.

It is further contended for appellant that there can be no recovery in this case because a contract of guaranty is collateral and secondary, and that before the creditor can proceed against the guarantor he must show diligent effort to recover payment from the original debtor. It is true that the guarantor has a right to insist upon an honest intelligent effort on the part of the creditor to obtain payment from the person primarily liable. It is not always necessary to institute legal proceedings to enforce payment from the debtor, although when such proceedings are instituted and pressed the presumption of due diligence arises. But if it clearly appears that the principal debtor is insolvent so that pursuit would be fruitless, it is not necessary to institute legal proceedings. There might be some doubt in this case whether the evidence was sufficient to show due diligence, but this question has not been raised by any assignment of error and does not seem to have been pressed in the court below. The learned trial judge in the charge to the jury evidently took it for granted that no such question was in the case. He stated that no matters of fact were in dispute, that the amount of the loans made and interest thereon were all conceded, and that the only question to be determined was the liability of the guarantor under the written instrument. If the question of due diligence in pursuing the original debtor was in the case it should have been raised in a proper manner in the court below so that an erroneous ruling thereon might be assigned for error here. The record does not show that the question was so raised, and it is too late to consider it now.

Judgment affirmed.


text:
    Ault v. Karch, Appellant.

      Wills — Estate in fee — Life estate — Devise.
    A devise of a fee simple absolute in the first instance will not be reduced to an estate for life unless the intention to do so is clear.
    Where there is a plain devise of a fee simple to take effect immediately in possession, a devise over in case of the death of the first taker does not mean death generally, whenever it may happen, but death in the lifetime of the testator.
    Testatrix devised her real estate to her three daughters with the proviso that none should alien without the written consent of the others. In the final clause of her will she provided that “in the event of any of my said daughters dying without issue to survive her or them, then and in that case, I give and devise the share or shares” of the one so'dying to the others or their heirs in equal shares as tenants in common, subject to the same proviso as to alienation. Held, that the daughters took an estate in fee simple.
    Submitted Feb. 18, 1908.
    Appeal, No. 27, Jan. T., 1908, by-defendant, from judgment of O. P. Lebanon Co., Dec. T., 1907, Ho. 92, on case stated in suit of Emma L. Ault, Clara C. Haumañ and her husband, Harry A. Hauman, and Minnie E. Karch and her husband, William S. Karch, v. Ralph Karch.
    Before Mitchell, C. J., Fell, Mestbezat, Potteb and Elkin, JJ.
    Affirmed.
    Case stated to determine the marketable title to real estate.
    Before Ehbgood, P. J.
    The opinion of the Supreme Court states the case.

      Error assigned was in entering judgment for plaintiff' on case stated.

      Eugene D. Siegrist, for appellant.

      Chas. M. Zerbe, for appellees.
    March 2, 1908:
   Opinion by

Mr. Justice Fell,

The testatrix devised her real estate to her three daughters with the proviso that none should alien without the written consent of the others. In the final clause of her will she provided that: In the event of any of my said daughters dying without issue to survive her or them, then and in that case I give and devise the share or shares ” of the one so dying to the others or their heirs in equal shares as tenants in common, subject to the same proviso as to alienation. The effect of the restraint on the power of alienation need not be considered, since all the daughters have joined in the deed to the defendant. The only question is whether they took a fee simple under the will.

There is nothing in the general scheme of the will or in the words used that indicates an intention to cut down, the estate given to a life estate, and to take it out of the rule that a devise of a fee simple absolute in the first instance will not be reduced to an estate for life unless the intention to do so is clear, and that, where there is a plain devise of a fee simple to take effect immediately in possession, a devise over in case of the death of the first taker does not mean death generally whenever it may happen, but death in the lifetime of the testator : Biddle’s Estate, 28 Pa. 59 ; Mickley’s Appeal, 92 Pa. 514 ; Stevenson v. Fox, 125 Pa. 568 ; Mitchell v. Railway Co., 165 Pa. 645 ; Richards v. Bentz, 212 Pa. 93.

The judgment is affirmed.


text:
    Strause v. Berger, Appellant.

      Equity — Equity practice — Findings of fact — Specific performance.

    Findings of fact in an equity proceeding based upon sufficient evidence will not be set aside, except for manifest error.
    A decree for the specific performance of an oral contract for the sale of standing timber will be sustained on findings of fact based on sufficient evidence that a sale of timber had been made; that the parties contemplated the immediate severance and removal of the timber from the land; that the timber was purchased by the plaintiff for use in carrying on his business, and that it had a special value to him because of its character, and because of the scarcity of timber of the kind in the section where-his business was conducted.

      Timber — Contract—Severance—Specific performance — Equity.
    Where an oral contract for the sale of standing timber provides that the cutting of the timber should commence at once, and be completed within a reasonable time, the timber is to be regarded as personal property, and not as an interest in land.
    Specific performance of such a contract will be enforced where it appears that the timber has a special value to the purchaser for the use for which he bought it, because of its quality, and because of the difficulty of procuring such timber in the locality in which his business is conducted.
    Argued Feb. 18, 1908.
    Appeal, No. 351, Jan. T., 1907, by defendants, from decree of C. P. Schuylkill Co., May T., 1907, No. 1, on bill in equity in case of Samuel Strause v. Elias Berger, William II. Berger and Mahlon II. Boyer.
    Before Mitchell, C. J., Fell, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Bill in equity for specific performance.
    Before Mare, J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was decree awarding specific performance.

      J. W. Moyer and li. II. Kook, with them F. V. Filbert, for appellants.
    An interest in lands cannot be conveyed or transmitted by anything less than a written instrument: Pattison’s Appeal, 61 Pa. 294 ; Bowers v. Bowers, 95 Pa. 477 ; Miller v. Zufall, 113 Pa. 317 ; Hart v. Carroll, 85 Pa. 508 ; Hess v. Calendar, 120 Pa. 138.
    Complainant has a full, adequate and complete remedy at law : Glasse v. Stewart, 32 Pa. Superior Ct. 385 ; Bowser v. Cessna, 62 Pa. 148; Rineer v. Collins, 156 Pa. 342.

      James B. Reilly, with him J. L. Stauffer and I. A. Reed, for appellee.
    The findings of fact of a judge of the court of common pleas, sitting as a chancellor, based upon sufficient evidence, will not be reversed by the Supreme Court, except for manifest error : Byers v. Byers, 208 Pa. 23 ; Com. v. Stevens, 178 Pa. 543 ; Wolf v. Augustine, 197 Pa. 367.
    Under the doctrine laid down in numerous decisions, and under the facts of this case as disclosed by the evidence, we respectfully submit it is one that justifies and calls for equitable intervention on the part of the court: McGowin v. Remington, 12 Pa. 56 ; Vail v. Osburn, 174 Pa. 580 ; Northern Cent. Ry. Co. v. Walworth, 193 Pa. 207 ; Meason v. Kaine, 67 Pa. 126 ; Goodwin’s Co.’s Appeal, 117 Pa. 514.
    Equitable jurisdiction does not depend on the want of a common-law remedy, but may be sustained on the ground that it is the most convenient remedy : Johnston v. Price, 172 Pa. 427 ; Northern Cent. Ry. Co. v. Walworth, 193 Pa. 207 ; Herdic’s Appeal, 58 Pa. 211 ; Hawk v. Greensweig, 2 Pa. 295.
    March 2, 1908 :
   Opinion by

Mr. Justice Fell,

This was a proceeding in equity for the specific performance of an oral contract for the sale of a tract of 250 acres of standing timber. The grounds of defense were that no definite contract had been made; that the contract set out in the bill was for an interest in land and void under the statute of frauds; and that there was no jurisdiction in equity because of an adequate remedy at law. The decree in favor of the plaintiff is based on the findings of fact by the court that a sale of the timber was made; that the parties contemplated the immediate severance and removal of the timber from the land; that the timber was purchased by the plaintiff for use in carrying on his business and that it had a special value to him because of its character and because of the scarcity of timber of the kind in the section where his business was conducted.

The findings of fact by a judge in an equity proceeding will not be set aside except for manifest error: Com. ex rel. v. Stevens, 178 Pa. 543 ; Steinmeyer v. Siebert, 190 Pa. 471 ; Byers v. Byers, 208 Pa. 23. In the last of these cases it was said by our Brother Mestbezat : “ To justify us in reversing the finding of a chancellor on a question of fact, as we have often said, clear and plain error must be pointed out. It is not sufficient that our conclusions would be different oji the testimony brought up on the record.” Because the correctness of the findings has been challenged, we have examined the testimony as we should in the case of a nonsuit or the refusal to direct a verdict for the defendant, to determine whether there was testimony which, if believed, sustains them. We find them amply supported.

The timber is to be regarded as personal property and not as an interest in land because of the intention of the parties to the agreement that the cutting of it should commence at once and be completed within a reasonable time. The rule on the subject stated in McClintock’s Appeal, 71 Pa. 365, and followed in the recent case of Robbins v. Farwell, 193 Pa. 37, is that whether growing timber is to be regarded as personal property or as an interest in real estate in an agreement for its reservation or sale depends on the nature of the contract and the intent of the parties; that if the agreement does not contemplate the immediate severance of the timber, it is a contract for the sale or reservation of an interest in land; but that where the agreement is made with a view to an immediate severance, the timber is to be regarded as personal property.

On the question of jurisdiction the case is near the border line. The general rule undoubtedly is that the specific performance of contracts for the sale of personal property will not be enforced for the reason that ordinarily compensation for the breach of the contract may be had by way of damages. A well-recognized exception to the rule is where the thing contracted for cannot be purchased in the market and, because of its nature or the circumstances, the delivery of the thing itself and not mere pecuniary compensation is the redress practically required: McGowin v. Remington, 12 Pa. 56. “The general rule is not to entertaip jurisdiction to decree a specific performance respecting goods, chattels, stocks, choses in action and other things of a merely personal nature; but the rule is qualified, and is limited to cases where the compensation in damages would furnish a complete and satisfactory remedy: ” Rotes to Cuddee v. Rutter, 1 Leading Cases in Eq. 1099. Ordinarily a complete remedy may be had in an action at law for the breach of such a contract as that.under consideration, but in this case we have the finding that the timber had a special value to the plaintiff for the use for which he bought it because of its quality and because of the difficulty of procuring such timber in the locality in which his business was conducted. The case does not differ in principle from that of Vail v. Osburn, 174 Pa. 580, where a contract to cut and deliver bark to a tannery from trees in proximity to it was enforced.

The decree is affirmed at the cost of the appellant.


author: Mr. Chief Justice Mitchell,

text:
    Commonwealth v. Paese, Appellant.

      Criminal law — Murder—Manslaughter—Provocation—Attach on friend —Province of court and jury.

    To reduce an intentional blow, stroke or wounding, resulting in death, to voluntary manslaughter, there must be sufficient cause of provocation and a state of rage or passion without time to cool, placing the prisoner beyond the control of his reason, and suddenly impelling him to the deed. If any of these be wanting, if there be provocation without passion, or passion without a sufficient cause of provocation, or there be time to cool, and reason has resumed its sway, the killing will be murder. Where the facts are undisputed or clearly established, the sufficiency of the provocation is for the court.
    On the trial of an indictment for murder the trial judge was right in refusing to affirm a point as follows: “If the jury believe that the deceased had just made an attack and committed a violent assault and battery upon A, who was much the inferior of the deceased in size and weight, and that this was done in the presence of the defendant, who was the friend and companion of A, and they also find that this attack so excited the passion of the defendant as to destroy all self-control, and that in this condition of ungovernable rage and without sufficient cooling time he shot and killed the person so attacking, the grade of the homicide is clearly but manslaughter.”
    In general, serious injury immediately inflicted or. threatened to wife or husband, child or servant, will on account of the relationship of the parties reduce the killing to manslaughter, as if the injury had been to self; but this does not apply to a case of a friend or companion.
    On the trial of an indictment for murder it is correct to charge: Voluntary manslaughter is never attended by legal malice or depravity of heart, that condition or frame of mind before spoken of, exhibiting wickedness of disposition, recklessness of consequences or cruelty. Being sometimes a willful act, as the term “voluntary” denotes, it is necessary that the circumstances should take away every evidence of cool depravity of heart or wanton cruelty.
    Argued Jan. 6, 1908.
    Appeal, No. 7, May T., 1907, by defendant, from judgment of O. & T. Dauphin Co., on verdict of guilty of murder in the first degree in case of Commonwealth v. Frank Paese.
    Before Mitchell, C. J., Fell, Beown, Mesteezat, Pottee, Elkih and Stewabt, JJ.
    Affirmed.
    Indictment for murder.
    Before Capp, J.
    The facts are stated in the opinion of the Supreme Court.

      Errors assigned were (1, 2) the instructions, quoted in the opinion of the Supreme Court.

      John Li. Geyer, with him John E. Fox and O. G. Wicker-sham, for appellant.

      John Fox Weiss, district attorney, with him W. H. Musser and Leroy J. Wolfe, for appellee.
    March 2, 1908 :
   Opinion by

Mr. Chief Justice Mitchell,

Briefly stated the substance of the case was that three Italians, who had been drinking (but to what extent they were affected by it became a question for the jury) got into an altercation about fares with the conductor and motorman of a car; a fight ensued between one of them, not the appellant, and the motorman, in which the latter, alleged to be much the larger and heavier man, beat the other severely. He then started back to his post at the front of the car when the appellant drew a revolver and fired five shots, stepping forward as he fired each shot. Appellant was tried and convicted of murder of the first degree.

The first assignment of error is that the court refused to affirm the following point: “ If the jury believe that the deceased had just made an attack and committed a violent assault and battery upon George Paese who was much the inferior of the deceased in size and weight, and that this was done in the presence of the defendant, who was the friend and companion of George Paese, and they also find that this attack so excited the passion of the defendant as to destroy all self-control, and that in this condition of ungovernable rage and without sufficient cooling time he shot and killed the person so attacking, the grade of the homicide is clearly but manslaughter.”

Before taking up the exact question raised by this point it may be well to dispose of two smaller matters that were claimed at the argument to be in the case. It was claimed that the deceased kicked the appellant in the stomach as he passed him just before the shooting. The jury found there was no such kicking. It was further claimed that the disparity in size and apparent strength of the two men in the fight might make the appellant justly apprehensive for the life or grievous injury of his friend and he might, therefore, intervene to prevent a felony. But the evidence is practically undisputed that the fight was over and the deceased was retiring from the scene when the appellant drew his revolver.

The single question, therefore, remains whether conceding the beating to have been such as if inflicted upon the appellant himself would have permitted the jury to reduce the killing to manslaughter, it can have that effect when made upon another merely a friend.

To reduce an intentional blow, stroke or wounding, resulting in death, to voluntary manslaughter, there must be sufficient cause of provocation and a state of rage or passion, without time to cool, placing the prisoner beyond the control of his reason, and suddenly impelling him to the deed. If any of these be wanting — if there be provocation without passion, or passion without a sufficient cause of provocation, or there be time to cool, and reason has- resumed its sway, the killing will be murder : Com. v. Drum, 58 Pa. 9 (17).

What is sufficient provocation for this purpose has not been exactly defined, and is probably incapable of exact definition, for it must vary with the myriad shifting circumstances of men’s temper and quarrels. It is a concession to the infirmity of human nature, not an excuse for undue or abnormal irascibility, and, therefore, to be considered in view of all the circumstances. It is usually said that the sufficiency of the provocation is for the court. And such is the general rule, but it must not be taken too broadly, but applied to cases where the facts are undisputed or clearly established. Thus, for example, in a case put by Sir- Matthew Hale (1 Hale, Pleas of the Crown, 455) and much cited by writers on the subject of provocation, “ If A. be passing on the street and B. meeting him (there being convenient distance between A. and the wall) takes the wall of A. and thereupon A. kills him, this is murder ; but if B. had jostled A. this jostling had been a provocation and would have made it manslaughter.” But even of this case, assuming the question of sufficiency to be for the court, Russell says, it “ probably supposes considerable violence and insult in the jostling : ” 1 Russell on Crimes, 714. In Hale’s time when the streets even of London were rarely paved, “ to take the wall ” of another meant practically to force the other into the middle of the street with its attendant inconveniences dirt, etc., and perhaps danger from vehicles and horses. Hence “ to take the wall ” of a woman or a man of superior rank was a serious insult, likely in the days when all gentlemen habitually went armed to be promptly followed by the invitation to “ draw.” The view of it as an insult has its survival to the present day in the canons of politeness in passing a lady on the street, and there were in my younger days and perhaps even yet circumstances and parts of the country where the discourtesy of taking the wall of a lady would provoke resentment and perhaps a breach of the peace from her escort. In the case put by Hale, there might as indicated by the comment of Bussell, be considerable discrepancy and doubt upon the evidence as to the exact facts of the jostling and these of course would have to be passed upon by the jury necessarily involving their sufficiency as provocation. While, therefore, the sufficiency of the provocation is in general for the court, it may in some cases be so combined with questions of fact as to be for the jury. In the present case there being no disputed facts, the appellant’s own point stating them as he claimed them to be, the learned judge was right in ruling upon them as a matter of law.

The next question is whether his ruling was correct. Though the sufficiency of the provocation has not been exactly defined, there are some points in regard to it which are well settled. Thus, no words nor mere gestures, however false, foul or insulting, will free a party killing from the guilt of murder: Russell, 714. Nor will slight or trivial injuries, though they amount in law to an assault, nor in all cases even a blow: Russell, 715. Chief Justice Aghtew, in Com. v. Drum, 58 Pa. 9 (17), classes the two offenses together, and says : “ Insulting or scandalous words are not sufficient cause of provocation ; nor are actual indignities to the person of a light and trivial kind.” But in the case before him the alleged provocation was the threat of serious injury and the weapon used in the killing was a knife, and in the sentence quoted he was not dealing with details which the case did not call for, but merely rounding out for the information of the jury his general discussion of the subject. He certainly did not mean to depart from the accepted law, which is thus stated by Foster: “ Words of reproach, how grievous soever, are not a provocation sufficient to free the party killing from the guilt of murder. Nor are indecent provoking actions or gestures expressive of contempt or reproach, without an assault upon the person.

“ This rule will, I conceive, govern every case where the party killing upon such provocation maketh use of a deadly weapon, or otherwise manifesteth an intention to kill, or do some great bodily harm. But if he had given the other a box on the ear, or had struck him with a stick or other weapon not likely to kill, and had unluckily and against his intention killed, it had been but manslaughter.

“ The difference between the cases is plainly this: In the former the malitia, the wicked vindictive disposition already mentioned, evidently appeareth; in the latter it is as evidently wanting; the party in the first transport of his passion intended to chastise for a piece of insolence which few spirits can bear. In this case the benignity of the law interposeth in favor of human frailty; in the other its justice regardeth and punisheth the apparent malignity of the heart: ” Foster, Crown Law, ch. Y, of Homicide.

On the other hand, certain circumstances have been held to be sufficient provocation. Thus, in general serious injury immediately inflicted or threatened, to wife (or husband) child or servant will, on account of the relationship of the parties, reduce the killing to manslaughter in similar cases as if the injury had been to self. The appellant claims that the same rule should be held in the case of a more distant relation, and even of a friend or companion; and his counsel have presented a brief of unusual learning and diligence on this point. The fullest discussion to be found is in Pennsylvania v. Bell, Add. 156, tried in 1793, where Judge Addisost, after the manner of the time, delivered an elaborate charge, discussing the law in detail and referring to cases. In the course of it he says: “ An attack on the person and safety of a friend is á provocation sufficient to extenuate to manslaughter a sudden killing in the peril and defense of this friend.” This was said obiter, as there was nothing in the case to which it could apply, but the same view has been stated from time to time by writers of considerable standing. Three cases are constantly cited and reiterated as authority for the doctrine, the Case of Manslaughter, 12 Coke, 87; Huggett’s Case, Hale, Pleas of the Crown, 465 ; s. c., Kel. 59, and The Queen v. Tooley, 2 Ld. Raymond, 1296. Critically examined they afford the doctrine very doubtful support. The Case of Manslaughter, 12 Coke, 87, is reported in six lines thus : Divers men playing at bowls two of them fell out and quarreled, the one with another, and the third man who had not any quarrel, in revenge of his friend struck the other with a bowl of which blow he died; this was held manslaughter for this, that it happened upon a sudden motion in revenge of his friend.” The absence of report as to the circumstances and extent of the quarrel, the fact that the fatal blow was struck with an instrument not usually classed as a deadly weapon, etc., make this case of uncertain applicability, and yet it is perhaps the strongest authority for the point it appears to decide.

Huggett’s Case is still more uncertain as to the facts. Hale says a press master with an assistant undertook to press a man for the army, and, a stranger interfering, a quarrel took place in which the stranger killed the assistant, and it was held manslaughter only. Iielyng in a fuller report, apparently based on the record of a special verdict, says the’ assumed press master and his assistant acted without warrant, and on the stranger interfering and requiring to see the warrant they were shown a paper which they declared to be no warrant, and drew their swords and a fight ensued, in which the pretended press master was killed. The judges divided, eight against four, holding it to be manslaughter only.

The Queen v. Tooley, 2 Ld. Raymond, 1296, was an arrest of a woman on suspicion of a misdemeanor by a constable not in his own parish and without a warrant. The prisoners assaulted the constable for the purpose of rescue, but on being shown his staff desisted, and the woman was taken to the roundhouse. Shortly after the prisoners again drew their swords and assaulted the constable, and on one Dent coming to his aid one of the prisoners killed Dent. It was held by seven judges against five that it was manslaughter only.

Both Huggett’s and Tooley’s case involved the elements of personal liberty in the right to resist an illegal arrest, and are discussed by Eussell and by Wharton under that head: Russell on Crimes, Book III, sec. 3, p. 732; Wharton on Homicide, ch. 8 see. 29c. Both were decided by a divided court, and are severely commented on by Foster who says they have “ carried the law in favor of private persons officiously interposing farther than sound reason founded in the principles of true policy will warrant, ” and “ the doctrine advanced utterly inconsistent with the known rules of law touching a sudden provocation in the case of homicide: ” Crown Law, Homicide, sec. 10 et seq. Mr. Wharton says, “By this high. authority Tooley’s case was greatly shaken, and it may now be considered as entirely overruled: ” Homicide, sec. 296. And that it had been overruled was flatly said by Alderson, J., in Rex v. Warner, 1 Moody’s C. C. 380, and by Pollock, C. B., in Reg. v. Davis, Leigh and Cave’s C. C. 64.

On this very insufficient foundation the commentators have gone on reiterating the same doctrine, but the most diligent search through Hale, Hawkins, East, Plowden, Russell and "Wharton fails to discover any real adjudication to support it, or any other decision than the three already discussed that can be said to really bear upon it.

The American reports, furnish but one additional case, and that so clearly against all the precedents as to be of no authority. Moore v. State, 26 Texas App. 322 was a case of an affray at a saloon with some drunken negroes. Deceased, one of the negroes, got into an altercation and when one apparently his friend attempted to persuade him to go home he went out to his horse and got his gun,' warning the others not to approach. While sitting on his horse with the gun lying across his lap, one McAdoo attempted to take the gun and in the struggle it was discharged and McAdoo killed. The others then fired on deceased and killed him. This was held to be manslaughter, but as the deceased was acting on the defensive and in no way the aggressor at the time the gun was discharged, this ruling cannot be sustained even under the old English authorities, unless the affray be held to have continued as one transaction until the killing of deceased, a view that the report perhaps permits but does not clearly sustain.

In State v. Gut, 13 Minn. 341, the defendant, indicted as one of a lynching party who killed an Indian while in jail, sought to justify on the ground that the Indian had killed his friend, but was held guilty of murder, the court saying: “ Had the defendant been present when his friend was killed and under the excitement of the moment and in the heat of passion taken the life of the slayer it might perhaps be different.”

In Reese v. State, 90 Ala. 624, the defense was that the deceased had killed the defendant’s cousin an hour before, but the court said that “ did not tend in the slightest degree to mitigate the offense ” and a verdict of murder in the first degree was sustained.

These are all the additional cases that the editors of the Am. & Eng. Ency. of Law have been able to present: 2 ed., vol. 21, p. 126.

Courts do not sanction the increase of excuses for taking life, already too numerous, except under compulsion of weighty authority. Such authority has not been found in favor of the doctrine that a mere bystander may interfere to the extent of killing with a deadly weapon in a stranger’s quarrel, without being guilty of more than manslaughter. On the contrary, the fact that the annual thousands of homicides in the United States have produced no case in its favor, is strongly persuasive that the doctrine beyond the recognized cases of husband and wife, parent and child or master and servant, has no proper place in American jurisprudence. For the protection of the weak and( unfortunate and the assertion of the duties of humanity reliance must be had on the ancient and settled right to interfere to prevent a felony, with its well guarded limitations that the injury to be prevented must be serious, must be imminent and not past, the quarrel in actual progress, and the necessity for the use of a deadly weapon clear of doubt: Hale, Pleas of the Crown, 484; Kilpatrick v. Commonwealth, 31 Pa. 198. Cases of killing without the use of a deadly weapon and apparenlty lacking the element of presumed intent to kill, will be governed by the passage from Foster already cited.

The second assignment of error is to the portion of the charge defining manslaughter, in which it was said “Voluntary manslaughter is never attended by legal malice or depravity of heart, that condition or frame of mind before spoken of, exhibiting wickedness of disposition, recklessness of consequences or cruelty. Peing sometimes a willful act, as the term voluntary’ denotes, it is necessary that the circumstances should take away every evidence of cool depravity of heart or wanton cruelty.” As stated by the learned judge below in refusing a new trial, “ It is contended that the vice in this definition of voluntary manslaughter is contained in the statement that it is necessary that the circumstances should take away every evidence of cool depravity of heart or wanton cruelty, ’ and that this statement of the law puts too great a burden upon the defendant.”

That portion of the charge is exactly in the language of Agnew, J., in Com. v. Drum, 58 Pa. 9. That charge, as is well known, was prepared by Judge Agnew with great care, and before delivery was submitted to the careful review of Chief Justice Thompson and other justices of this court. Though its language in places partakes of the sentimental style of the older books, it was based largely on Russell on Crimes, the most authoritative modern book on criminal law, and its substantial accuracy has never been challenged. On the contrary, it was intended as a precedent and guide in similar cases and as such has been frequently approved by this court. The very passage now complained of was quoted to the jury by Sterrett, J., when presiding in the oyer and terminer of Allegheny, and was affirmed by this court: Lynch v. Com., 77 Pa. 205. It is too late now to subject it to mere verbal criticism.

The judgment is affirmed and the record remitted to the court below for the purpose of execution.