U. S. Rep.1

UNITED STATES REPORTS.

DISTRICT COURT, PHILADELPHIA,

MAHONEY V. RAILROAD.

The negligence of a person having a child in charge, but without authority of its parents, is not a defence to an action by the child.

New trial.

Opinion by Sharswood, P. J.

We think there was evidence of negligence in the servants of the defendants sufficient to justify the verlict. It is not necessary here to say whether a mere scintilla is enough. On that point the finding of the jury is approved by the judge before whom the trial was bad.

The question then reserved is simply this, assuming negligence on the part of th defendants, whether the negligence of a person who, without express authority from the parents, but as an act of kindness, takes charge of an infant child, contributing to the injury, is any defence in an action by the child? In this instance the unfortunate woman who laid hold of the child to carry it across the track of the railroad, and who lost her own life in the attempt, was the aunt of the plaintiff. The plaintiff did not reside with the aunt, and no evidence was offered to show any authority in her. If, however this was an action by the father to recover damages for the death of the child, a very different question would be presented It would most probably be held that it was negligence to suffer such an infant to be on the streets without a caretaker, and he could not hold the defendants responsible, whether he had appointed a care taker who was negligent or left the child to roam at large without one. To

a child of plaintiff's years no contributory negligence can be imputed. Neither is the plaintiff precluded from recovery against one joint tort feasor, by showing that others have borne a share in it. All torts by several persons are joint or several at the election of the injured party, but one satisfaction can be recovered, and there is no contribution among tort feasors. Hence springs the right of a plaintiff, who has recovered several verdicts against different defendants, to elect de melioribus damnis. There is nothing in the case to show that plaintiff could not have included her aunt as defendant with the company or their officers, or maintained a separate action against her. The English case cited and relied on by the counsel of defendants, Waite v. North-Eastern Railway Company, 7 W. R. 311, was the case of the negligence of the person in charge of a child, who had taken and paid for his passage with defendants, a railroad company, and while waiting in the depôt to get on board, the child was injured by the approach of another train. of which the defendants had given no notice. The defendants might well have said we would not have received the child as a passenger without a care taker, or if we had we would have put him in charge of a servant, or in a place where no harm could come to him till the train was ready to start. The decisions of the New York and Massachusetts courts are certainly entitled to very high respect, but they are not authority binding on us, and the precise point was not made or met

1. A will was written on one page of a sheet, and the testator's signature was at the end of that page, with the words, "Witness, W. Hatton;" and the names of three persons were written, under a memorandum not testamentary, at the top of the second page. Held, thatfrom the position of the three names, and the circumstances of the case, the names were not placed there for the purpose of attesting the will, and probate was refused.-Goods of Wilson, Law Rep. 1 P. & D. 269.

2. A. made a will in 1837, appointing B. an executor and residuary legatee. In 1851 she delivered the will and her deeds to B. for safe custody, first sending for C., and asking him to witness the delivery. Before the delivery, she wrote her name at the foot of the will, and C. and B. theirs, the latter with the prefix, "executor." A. gave no reason for signing, and said nothing to B. and C. about being witnesses to her will. He'd, that this was not a re-execution of the will, and that the will was entitled to probate by virtue of the original execution. -Dunn v. Dunn, Law Rep. 1 P. & D. 277.

Sub

3. By letters-patent, the barony of B. was conferred on E. for life, remainder to R., E.'s second son, in tail male, remainder to E.'s younger sons in tail male successively. The patent contained a shifting clause, that, in cer tain events, the barony should go over. sequently, a testator gave her freeholds, leaseholds and chattels to trustees on trust, to "con vey, settle and assure" the same "in a course of entail to correspond, as nearly as might be," with the barony, in such manner and form as the trustees should consider proper, or their counsel should advise. Held, that the freeholds ought not to be settled in strict settlement, but must follow the limitations of the barony, so that R. would be tenant, not for life, but in tail male; that the leaseholds and chattels must go with the real estate as far as practicable; and

that the shifting clause in the settlement must follow that in the letters-patent. Viscount Holmesdale v. West, Law Rep. 3 Eq. 474.

4. Testator, after giving all his property on trust for the maintenance of his sons (naming them) and his daughter H., till H., who was the youngest child, should attain twenty-one, devised particular lands to each of his sons in tail male. He then directed, that, if any of his sons should die during the minority of H., as aforesaid; or, if any of them should die without having such issue, as aforesaid, and either before or after their or his share should be divisible according to the will, the share or shares of him or them so dying should go "to my next surviving son, according to the seniority of age," in like manner as the original shares. J., a son, died during H.'s life, leaving children. Held, that J.'s estate tail was divested by his death, and went over; held, further, that as the testator had arranged his sons' names in the descending order of birth, "next surviving" meant 'next younger" son.-Eastwood v. Lockwood, Law Rep. 3 Eq. 487.

66

5. Gift of an annuity, to be equally divided between A. and B. for and during their joint lives, or the life of the survivor or longer liver of them respectively. Held, that A. and B. took as tenants in common, and that the share of one dying went to his representative. — Bryan v. Twigg, Law Rep. 3 Eq. 433.

6. Testator gave property on trust to accumulate till his eldest daughter should attain twenty-one, and then a third to be paid to her; the other two-thirds to continue accumulating till his second daughter should attain twentyone, and then a third to her; the other third to be paid to his youngest daughter on her attaining twenty-one. If one or more of his daughters should die under twenty-one without issue, then the share or shares of such one or more so dying, to be paid to his surviving daughters or daughter. He directed his trustees, when each daughter should attain twentyone, or marry, to convey to her one-third of the property for life, remainder to her children in fee. In default of issue of any one or more of his daughters, he directed the share or shares of such one or more dying without issue to be limited so as to go to her surviving sisters and their issue, in like manner as the original thirds were directed to be conveyed to each of them. And if all the daughters should die without issue in their mother's lifetime, he gave the property to his wife for life, remainder over. He also directed that, in the conveyances to his daughters, all necessary provisions should be

inserted to protect the entail and succession designed to be effected on his daughters, and the issue of them. Held, that the children of a daughter first dying should participate in the share of a daughter afterwards dying under twenty-one without issue, and that "surviving" must be read "other."-Hurry v. Morgan, Law Rep. 3 Eq. 152.

7. One who had bought a leasehold interest which was assigned to him, and afterwards the reversion in fee, which was conveyed to a trustee for himself, subject to the lease, gave to his wife by will "the whole of my personal property, estate and effects, of every and whatsoever kind they may be." Held, that the term passed under the will as a term in gross, and not attendant on the inheritance, but that the reversion did not pass.-Belaney v. Belaney, Law Rep. 2 Ch, 138.

8. Testatrix directed the interest of stock to be paid to D. for life, and at his death to be transferred to his personal representatives. Held, that D. took an absolute interest.-Alger v. Parrott, Law Rep. 3 Eq. 328.

9. A., by a will purporting to dispose of "all his worldly estate and effects in manner following," directed his debts paid out of his personal estate, and that his executors should sell all his stocks and such other part of his personal estate as was in its nature saleable, and collect and get in all money due and owing to him, and all other his estate, and convert the same into money, and hold the proceeds on trust to pay debts, and invest the residue thereof on certain trusts. After making his will, A. bought a house. Held, on a bill for specific performance by A.'s executrix against a purchaser of the house, that she had power under the will to sell the house, and specific performance was decreed.-Hamilton v. Buckmaster, Law Rep. 3 Eq. 323.

10. The presumption that a will which cannot be found was destroyed by the testator with the intention of revoking it, and not with the intention of setting up an earlier will, can be rebutted only by clear and satisfactory evidence.-Eckersley v. Platt, Law Rep. 1 P. & D.

281.

11. A., owning with others rights of pasture over certain lands, by will, before the Wills Act, devised the estate in respect of which these rights of his were held. Afterwards A., joining with his co-owners of these rights, and with the owners of the lands over which they extended, granted the rights and lands to trustees on trust to allot and convey the lands among the grantors, and to make roads, &c.

The trustees reconveyed to A. a portion of the lands, in lieu of his rights, by a deed to which A. was party. A. died before the deed was executed. Held, that the conveyance to the trustees revoked the devise.-Grant v. Bridger, Law Rep. 3 Eq. 347.

12. A testator gave his estates to trustees, to stand possessed of the real estate for the use of his nephew, for life, with remainder to the first and other sons of the nephew in tail, and to stand possessed of the personal estate, on the same trusts as his real estate, "or as near thereto as the rules of law and equity will permit," provided that the personal estate should not vest absolutely in any tenant in tail, unless such person should attain twenty-one. After the testator's death, the nephew died, leaving a son. Held (Lord St, Leonards dissentiente), that the gift of personalty was not void for remoteness as a gift to such tenant in tail as should attain twenty-one, but was a gift to the first tenant in tail of the real estate by purchase; and that, therefore, the son took an absolute interest in the personalty, liable to be divested on his dying before twenty-one.· Christie v. Gosling, Law Rep. 1 H. L. 279.

13. Legacy to trustees, in trust so long as A. should not become bankrupt, to pay him the interest till he should attain twenty-five, so that he might not deprive himself thereof by anticipation, in which events A. should lose all benefit of the provision, "my object being for A.'s personal wants till any of such events should happen, and then for the good of his family." On the happening of any such event, the fund to be in trust for A.'s children; but if A, should then have no children, the fund was to fall into the residue, subject to a power in the trustees to pay A. any sum they may deem fit in their discretion. The fund was to be paid to A. at twenty-five; if he died under twentyfive, leaving children, the fund was to be in trust for them. There was also a power of advancement for A.'s benefit, A. died under twenty-one, unmarried. Held, that A. had a vested interest in the money, subject to be divested in the event of bankruptcy, or alienation, or death without children under twentyfive, and that, as none of these had happened, his estate was absolute.-Pearson v. Dolman, Law Rep. 3 Eq. 315.

14. A testator devised certain land on trust for his son, and then to be divided among such of his daughters as should be living at the son's death, and the children, grandchildren, and issue of such of his daughters as should then be dead; such children, grandchildren

M.,

and issue respectively to take equally among them the shares to which their parents would have been entitled had they been living. one of the daughters, died before the son, having had ten children; six of those had died in her lifetime (five childless, and one leaving children who were alive at the son's death); one other of M.'s children died before the son, leaving a child who also died before the son; three of M.'s children survived the son. Held, that the gift to M.'s children was not substitutional, but original, and that it was not necessary that they should survive the period of distribution in order to take; held, further, that M.'s grandchildren took only the shares to which their parents would have been entitled if living, - In re and not equally with the children. Orton's Trust, Law Rep. 8 Eq. 375.

See ADMINISTRATION; ELECTION; EXECUTOR; FOREIGN COURT; PROBATE PRACTICE; REVOCATION OF WILL; VESTED INTEREST.

WITNESS.

1. An action of ejectment was brought by A.'s son, claiming as A.'s heir, supposing that A. was dead. Another action of ejectment was afterwards brought by A. for the same premises. Held, that there was no privity of estate between A, and his son, and therefore that evidence of what had been said by a witness at the trial of the former action, who had since died, not being admissible against A., was not admissible for him.-Morgan v. Nicholl, Law Rep. 2 C. P. 117.

2. A company resolved that its seal should be affixed to documents only in the presence of two directors, who were to attest it by their signatures. A bill of sale was sealed with the seal of the company, and adjoining the seal were the words, "Seal of the said company affixed in the presence of A. B. and C. D." Held (Byles, J., dubitante), that A. B. and C. D. were not attesting witnesses, within the meaning of 17 & 18 Vic. c. 36, § 1, and therefore their addresses need not be stated in the affidavit accompanying the bill of sale.-Defjell v. White, Law Rep. 2 C. P. 144.

See EQUITY PLEADING AND PRACTICE, 2; WILL, 1, 2.

FOR THE MONTHS OF MAY, JUNE AND JULY, 1867

ACCOUNT.-See INTEREST, 1.
ADEMPTION.-See WILL, 5.
ADMINISTRATION.

1. Administration, with the will annexed, granted to one as creditor for funeral expenses, who had undertaken the funeral at the request of the residuary legatee named in the will.— Newcombe v. Beloe, Law Rep. 1 P. & D. 314.

2. When probate is granted of two papers, as together containing the will of the deceased, it is the practice to make the grant to all the executors named in both papers.-Goods of Morgan, Law Rep. 1 P. & D. 323.

3. Administration duty must be paid on all the intestate's personal estate, including contingent interests; and where such duty was not paid on a contingent interest which afterwards fell into possession, held, that duty must be paid on the present value of the absolute interest, and not on the value of the contingent interest at the date of administration, though, if duty had then been paid on the value of the contingency, nothing further would have been payable on the contingency having subsequently fallen into possession. Lord v. Colvin, Law Rep. 3 Eq. 787.

See EQUITY PLEADING AND PRACTICE, 2; Pro BATE PRACTICE.

ADMIRALTY.

1. In a cause of collision, the plaintiffs need not allege that they kept their course as the sailing rules required, but it lies on the defendants to allege the violation of the rules.-The West of England, Law Rep. 1 Adm, & Ecc. 308. 2. A mortgagee arrested a ship, but failed in his suit. The court condemned him in damages, on the ground that, with adequate knowledge of the circumstances, he had arrested the ship when no money was due him, and had endeavored to make good his claim by bring ing charges of fraud, which were not sustained, against the owner.-The Cathcart, Law Rep. Adm. & Ecc. 314.

See PRODUCTION OF DOCUMENTS, 2. AGENT. See PRINCIPAL AND AGENT. AGREEMENT.-See CONTRACT.

ANNUITY.

A testator directed his trustees to invest the whole of his estate, and with and out of the annual proceeds to levy and raise the annual sum of £100, and to pay the same to S. for life; "and from and after the payment," and "subject thereto," to pay the income of the trust funds to certain persons for life, and to divide the principal among their children. The income did not suffice to pay the annuity in full. Held, that the annuity was not payable out of the corpus, and that the income only must be paid to S. during his life.-Birch v. Sherratt, Law Rep. 4 Eq. 58.

ARBITRATOR.-See AWARD.

ASSAULT.-See AUTREFOIS CONVICT
ATTORNEY.-See SOLICITOR.
AUTREFOIS CONVICT.

A conviction by justices, at A.'s instance, for an assault upon A., and imprisonment thereon,

are not, either at common law or under the 24 & 25 Vic. c. 100, § 45, a bar to an indictment for manslaughter, should A. subsequently die from the effects of the assault (Kelly, C.B., dissentiente).—The Queen v. Morris, Law Rep.

1 C. C. 90.

AWARD.

1. An agreement to submit the affairs of a partnership to arbitration, and that the submission shall be made a rule of a court of common law, cannot be pleaded in bar to a suit in equity, seeking discovery, complaining that the plain tiff is harrassed by actions, and praying for a receiver; though, before the bill was filed, arbitrators were appointed, and, since bill filed. the submission has been made a rule of the court.-Cooke v. Cooke, Law Rep. 4 Eq. 77.

2. In a policy of fire insurance under seal, the insurers covenanted to pay any loss not exceeding a certain amount, “according to the exact tenor of the articles subjoined." One of these was, that the assured should send in particulars of his loss, "which loss, after the same shall be adjusted, shall immediately be paid " by the insurers, with an option to rebuild, provided that any difference touching the loss shall be referred to arbitrators, whose award shall be final; but, if any fraud appears, the assured shall forfeit his claim. To an action on this policy the insurers pleaded this article ; that a difference had arisen; that the plaintiff had not submitted the matter to arbitration; and that the loss had not been adjusted. Held, on demurrer (Bramwell, B., dissentiente), that the covenant was only to pay the adjusted loss, and that no action lay.-Elliott v. Royal Exchange Assurance Co., Law Rep. 2 Ex. 237.

3. By order of court, a cause, and all matters in difference between the parties, were referred to an arbitrator. The award, which professed to be "of and concerning all the matters referred to me in the cause and under the order," after disposing of the issues in the cause, proceeded. "As to the matter concerning two bills of exchange," &c., “I award," &c., and then provided for costs. Held, that the award sufficiently disposed of all the matters in difference, though a claim by the defendants for goods sold to the plaintiff, which had been brought to the arbitrator's notice, was not specifically disposed of―Jewelt v. Christie, Law R. 2 C.P. 296. 4. The omission by arbitrators to give one of the parties to the difference an opportunity to be heard, cannot be pleaded to an action on the award, or replied to a plea relying on the award. Semble, such omission is good ground for a motion to set the award aside or refer it back.-Thorburn v. Barnes, Law R. 2 C. P. 384.

5. A matter was submitted to the award of A. and B., or such third person as they should appoint umpire under their hands, to be indorsed on the submission. A. and B. named each an umpire, and each agreed that the other's nominee was a fit person; but, not being able to agree which should be appointed, they decided by lot, and afterwards, at separate times and places, signed the indorsement of the appointment on the submission. Held (1), that the appointment was valid; and (2) that the indorsement of it, not being a judicial act, need not be done by A. ard B. at the same time.— Re Hopper, Law Rep. 2 Q. B. 367.

6. After the last meeting between arbitrators and an umpire, but before the latter had made his award, the arbitrators, the umpire, and the attorney of W. (one of the parties), an innkeeper, dined with W., at his invitation. The umpire afterwards made his award in favor of W. Held, that, though the proceeding was very improper, there was not sufficient ground for refusing to enforce the award, it not appearing that there had been any intention to corrupt or influence the umpire, or that he had been so influenced.-Ib. Law Rep. 2 Q. B. 367.

7. Two parties agreed that a third might make within a certain time an award on a matter in difference. The award was not made within the time specified; but one of the parties, not knowing that fact, took it up, and paid the charges for it. Held, that his doing so did not amount to a waiver of the condition as to time. Earl of Darnley v. London, Chatham and Dover Railway, Law Rep. 2 H. L. 43. BANKRUPTCY.

1. The lessee of a quarry, who digs rock and works it up into slates for sale, does not thereby become a trader within the meaning of the bankrupt laws, nor yet by selling tools and gunpowder to his workmen, nor by selling to a builder spare iron, to be used in buildings on the quarry.

Dealing in shares in joint-stock companies is not trading under the bankrupt laws.

A trading out of any district will support an adjudication of bankruptcy in the district.— In re Cleland, Law Rep. 2 Ch. 466.

2. A creditor who has acquiesced in the exe. cution of a deed of assignment by the debtor to trustees for the benefit of creditors, and who has benefited by it, by having the property protected from execution, cannot avail himself of it as an act of bankruptcy, though he may not so have assented to it as to be bound by its provisions.-Ex parte Stray, Law Rep. 2 Ch.

374.

3. B. became insolvent in 1827. His mother held a security on a contingent interest of his expectant on her death, which interest would fail if he died in her lifetime. She did not prove in the insolvency, but retained her secu rity, and the assignee sold the equity of redemp. tion. In 1857 B. died, and in 1864 his mother. In 1866, further assets having unexpectedly come in, the representatives of the mother claimed to prove. Held, that the proof was rightly admitted.-Ex parte Peake, Law. Rep. 2 Ch. 453.

4. A creditor's assignee applied for an order to annul an adjudication made on the bankrupt's application, in order that an adjudication by a creditor might be obtained, for the purpose of impeaching certain mortgages of the whole of the assets, as being fraudulent prefer

ences.

The assignee had known of the existence of the mortgages, and that they exceeded the value of the property comprised in them, for more than four months before his applica tion. Held, that this delay was fatal to the application. - Ex parte Davis & Denton, Law Rep. 2 Ch. 363.

The rules of a benefit building society empowered it to advance to its members the amount of their shares, secured by mortgage, repayable by monthly contributions covering principal and interest, and imposed fines for non-payment of the contributions at the rate of 5 per cent. a month. Held, that the fines were reasonable within 6 & 7 Wm. IV. c. 32, § 1; that they were not within the doctrine of equitable relief against penalties, but that they did not carry interest; and that a borrowing member could not redeem his mortgage without paying the fines incurred.--Parker v. Butcher, Law Rep. 3 Eq. 762.

BILL OF LADING.

The defendants owned a ship engaged in the Mediterranean trade. It is the cnstom in that trade for a ship's agent to sign bills of lading instead of the master, and no difference is recognized between the efficacy of his signature and that of the master. The defendants' agents at Genoa signed a bill of lading for manganese, shipped in bulk and not weighed