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- - - tion is that he cannot live happily with Mr. And in Mullin v. The People, 25 Wendell, 104, and Mrs. Moorhead, and that he does not wish it was said that "the right of the father to to be separated from his children. If he cannot the custody of his child is not absolute. Such live happily with them, he has himself alone custody is referrable to its interest and welfare, to blame, as they have treated him with great and is to be selected by the court in the exercise kindness and generosity, which he has returned of a sound judicial discretion irrespective of the with ingratitude. But a conversation which he claims of either parent. * * * A sense of pahad with Mr. Moorhead, in which he stated rental duty ought even to withhold a parent that if Mr. M. did not lease him some property from pressing his or her claims to the custody he would take the children away where neither of a child whenever the true interests of such Mr. Moorhead nor his wife would see them, child forbid it. And whenever this parental raises at least a strong suspicion that one pur- obligation fails to influence the conduct of the pose which he had in view is mercenary. This parent, it is fortunate that the enlightened printhreat certainly shows that the respondent does ciples of our law authorize the courts to internot have a proper conception of the parentalpose in behalf of the child." rights and duties.
This doctrine is certainly very applicable to Then taking into consideration the facts al- this case. ready discussed, in comection with the light The reason must be strong and cogent to justhrown on respondent's character by his own tify a court in depriving a father of the custody testimony, which shows his base ingratitude of his child: Henson v. Watts, 40 Indiana, 172. and extreme selfishness, and the fact that his But as I am of the opinion that such reasons own evidence to a great extent is contradicted exist in this case, my conclusion is that Mrs. by reputable witnesses, I am led to the conclu- | Moorhead should be appointed guardian of the sion that the welfare and best interests of these persons of these minors. children strongly require that they should be And now, to wit, November 15, 1882, this matunder the care of Mrs. Voorhead.
| ter came on to be heard at this term, and the We then have on the one side the welfare and court having inquired into all the circumstances best interests of these children, and on the other and heard the parties, through their counsel, do the respondent, who alleges that he is prompted order, adjudge and decree, first, that Mrs. M. by his great affection for them and desire for K. Moorhead be and is hereby appointed guardtheir wellare to assert his parental right to their ian of the persons of Maxwell K., Marie and Il. custody.
H. Watt, minor children of John W. Watt and But conceding that he has all the affection for of Jennie, his wife, now deceased, and that said them he claims to have, what is to be said of John W. Watt shall have frce access to them that affection which does not prompt the father until further orders. to act for the welfare and best interests of his Second, That the Safe Deposit Company of children? It is certainly very selfish, and not | Pittsburgh be and it is hereby appointed guard. entitled to much consideration.
ian of the estates of said minors. Now, as to the legal principles applicable to
Per Curiam. this case. The text-books and the authorities all agree that the father is entitled to the cus-/ Opinion by HAWKINS, P. J. Filed Novemtody of his minor children, because the law pre- ber 15, 1882. sumes it to be for their interest and benefit that It must be assumed to be the general rule that they should be under his care. The parental a surviving parent is entitled to the custody of right, then, is founded on this presumption, the persons of his children. His right is the and when it is overcome by evidence, which result of a natural, and is recognized by the civil, must be clear and satisfactory, that it is not for law. This much was conceded at the argument the best interest of the infant that it should be of this case. But it is also true that his right in the custody of the father, the parental right grows out of his obligation to maintain and is stricken down. This appears to be the doc- educate his children: Icincman's Appeal, trine of the American cases and some of the PITTSBURGII LEGAL JOU'RSAL., 171; and is a English.
trust for their benefit-not a right to be used for Lord ELDON said, in Lyons v. Blenkins, Ja- | his own selfish purposes: 2 Kent, 20.3; Story's cobs' Rep., 262: “It is always a delicate thing | Eq., Sec. 1343. The preservation of rights growfor the court to interfere against the parental ing out of this relation has given rise to an imauthority, yet we know that the court will do portant and difficult branch of the jurisdiction it in cases where the parent is capriciously in- of this court. There are two acts in force upon terfering in what is clearly for their benefit." I which this jurisdiction is based. The 5th ser
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- - - - tion of the Act of 29th March, 1832, P. L. 191, and proper; and nothing has occurred since, so provides in general terms that “the Orphans' far as Mrs. Moorhead is concerned, which would Court of each county shall have the care of the justify the recision of such an order. It is well minors resident within such county." The ju- settled that a father may emancipate his child risdiction here conferred obviously embraces for its benefit, wholly from his authority; if he minor children of living, as well as of dead may emancipate wholly, he may partially: Corparents. But the reasons for its exercise neces- nell's Appeal, 11 Pa. St., 354; McCloskey v. Cysarily vary with the fact whether or not infants pher, 27 Idl., 22:25. The commitment of the care have a natural guardian of their persons. When of these children to Mrs. Voorhead was in there is a natural guardian jurisdiction can only accordance with their best interests in every be called into action in favor of such guardian aspect. by unjustifiable interference with his right; and At common law a wife's rights were, as a in favor of infants, by such guardian's inability, general rule, subordinated to the husband, but refusal or neglect to perform his duties in ac- even there the contests between them for the cordance with the best interests of such infants: custody of their children of tender years, her Heineman's Appeal, supra; Commonwealth v. superior right was conceded on the ground of Addicks, 5 Bimny, 520; 2 S. & R., 274; Ex parte the childrens' advantage. Crown, 4 Wharton, 11; Smith v. Smith, 6 Green- In Mrs. Moorhead these children will have a leaf. The 3d section of the Act of May 4, 1857, mother's love and care. Why should they be P. L., 435, simply declares, what was law be- deprived of the benefit of these advantages? fore, that a father's custody of his children may John W. Watt can offer no equivalent. That be taken away because of neglect or refusal to care which is prompted by either a litigious provide for them.
spirit or mercenary motives is not worthy of The powers here given are those of a court of a moment's consideration in comparison with equity; and having been invoked in this case, that which Mrs. Moorhead can give. it became a duty to investigate the circum- (2.) John W. Watt has neglected or refused stances and act according to a sound discretion : to provide for his family, and threatened to exHeineman's Appeal, supra. The grant of the tort money through his children, and is therepower to care for the persons of infants carried fore wfit to have their custody. He was a with it every incident necessary to effectuate willing pensioner on the bounty of Mr. Moorthat care.
head from the time of his marriage. It will not The question arising out of the circumstances do for him to impute this bounty as Mr. Moorof this case is whether the custody of the infant head's fault and his own justification. Mr. children of John W. and Jennie Watt shall re- | Moorhead could but respond to the “cries and main with Mrs. M. K. Moorhead, or be trans- teary" of his daughter for help. These “cries ferred wholly to John W. Watt?
and tears" of the daughter to the father would I am of opinion that the best interests of these not have arisen had the husband not previously children require that they shall remain with failed to answer the wife's. Mrs. Moorhead, and for these reasons:
Courts are bound to consider the motives of (1.) They are of tender years and have been those claiming the custody of infants when tenderly nurtured, and therefore require the brought to their notice, and will not permit its tenderest care. This care Mrs. Moorhead can jurisdiction to be made an instrument to progive better than any one else, because of her mote selfish purposes. (Guardianship is a trust irreproachable character, her close relationship to be used for the benefit of the infant-not to them, and her intimate association with, and as a means of extortion for the benefit of the care of, thein from their births. That Mrs. Watt guardian. confided them to her mother's care on her death (3.) The status of John W. Watt as a witness bed is of itself strongly persuasive evidence of in this case would be alone suflicient to justify her peculiar fitness for such costody. Mr. Watt refusal to commit the custody of these children impliedly ratified this choice and recognized to him. He is contradicted by so many witMrs. Moorhead's peculiar fitness by his commit- nesses in so many and essential particulars, and ment of the custody of his children to her on his testimony is so inconsistent with itself that his wife's death, and they are now there because just grounds of suspicion are aroused as to his of his confidence. Had Mrs. Moorhead and Mr. moral responsibility, and therefore of his untitWatt united in asking this court's ratification ness to have the care of his children. There of their arrangement as to the custody of his can be no mistake in trusting their moral trainchildren, there is no apparent reason why it ing to Mrs. Moorhead. should not have been ratified as eminently fit! While, for the foregoing reasons, I am of
opinion that the custody of these children should Appeal. Decree affirmed and appeal dismissed at the remain with Mrs. Moorhead, it must be under- |
costs of the appellants.
Error to C. C. P., No. 1, of Allegheny Co.-Nixon v. Mostood that John W. Watt shall have free accesso
all Dave Free access Creery. Judgment reversed and procedendo awarded. to them. There is no reason so far as he is con Certiorari to ('.C.P., No. 2, of Allegheny ('0.-Tuigg's cerned, unless he has a consciousness of wrongs | Appeal. Appeal quashed. done by him to them, he should not accept Mr.
Error to C.C.P., No. 2, of Allegheny Co.-Tuigg y. Shee
han. Judgment reversed. and Mrs. Moorhead's offer of a home
Certiorari to 0. C. of Allegheny (0.--Bryan's Appeal. For the petition, Messrs. S. Schoyer, Jr., Ken Decree reversed and petition dismissed at costs of the nedy & Doty and Clinton Lloyd.
appellee. For respondent, Messrs. Hampton & Dalzell.
Error to (. ('. P. of Venango Co.-Wright v. Antwerp Pipe Line Company. Judgment reversed.
Error to C. C. P. of Westmoreland Co.-Bovard v. KetSUPREME COURT JUDGMENTS.
tering. Judgment affirmed.
Error to 0. T. of Westmoreland Co.-Gray v. (ommonThe court met in Philadelphia on Monday, I wealth. Judgment affirmed and record remitted, etc. the 20th inst., all the justices present, when the BY TRUNKEY, J.: following judgments were entered :
Certiorari to ('. C. P., No. 2, of Allegheny ('0.-Alexander PER CURIAM:
v. Harris. Decree reversed and bill dismissed, costs to Appeal from C.C.P., No. 1, of Allegheny (0.-Braddock | be paid by appellee. Ferry ('ompany's. Decree affirmed and appeal dismissed | BY STERRETT, J.:. at the costs of the appellant. Robbin's. Decree affirmed Error to ('. ('. P., No. 1, of Allegheny Co.-Metropolitan and appeal dismissed at the costs of the appellant. Neel's. Life Insurance ('o. v. Drach. Judgment affirmed. GopDecree affirmed and appeal dismissed at the costs of the DON, TRUNKEY and GREEN, JJ., dissent. Hartman v. appellants.
Keown. Judgment affirmed. Error to C. ('. P., No. 2, Certiorari to C. C. P., No, 1, of Allegheny (0.-Lacy's Davis v. Erwin et ux. Judgment affirmed. Kroegher Appeal. Decree affirmed and appeal dismissed at costs v. Pitcairn, Judgment reversed. ot appellants.
Error to (.C.P. of Venango Co.-Spencer v. (linefelter, Error to C. C. P., No. 2, of Allegheny Co.-Common- | Judgment reversed. wealth v. Cullen. Judgment affirmed, and appeal dis- | BY GREEN, J.: missed at the costs of the appellants. Murphy v. Kelly. Error to (.C.P., No. 1, of Allegheny ('0.--Carlin & (0. This case is ordered to be reargued. Smith v. McGinty. v. Chappel. Judgment atlirined. The Baltimore & Ohio Judgment affirmed.
Railroad Company v. Schwindling. Judgment reversed. BY SHARSWOOD, C, J.:
Jenny v. Zehnder. Judgment reversed and v. f. d. n. Error to C. C. P., No. 1, of Allegheny Co.-Union Sav- | awarded. Error to ('. (. P., No. 2. Plunket v. Sauer, ings Bank v. Fife. Judgment reversed and v. 1, d. n. Judgment reversed. Plunket v. Ihmsen. Judgment reawarded.
versed. White v. Borough of McKeesport. Judgment Error to 0. T. of Allegheny Co.-Abernethy v. ('om'th. , affirmed. Judgment reversed and record remanded, etc. BY MERCUR, J.:
-In Dagg v. Dagg, 51 L. J. (N. S.), 19, the Error to C. C. P., No. 1, of Allegheny Co.-Borough of plaintiff, a porter, sued a female cook in a by. Beltzhoover v. Gollings. Judgment reversed and v.f. d. I dropathic establishment for dissolution of a n. awarded. Same v. Matthews. Judgment reversed
| marriage founded on the following agreement:
non; and v. f. d. n. awarded. Stewart v. The Allegheny National Bank. Judgment reversed and v.f.d. n. awarded,
“This is to certify that whereas the undersigned Union Insurance ('ompany v. City of Allegheny. Judg. parties do agree that they will marry, and that ment affirmed. SHARSWOOD, C. J., and GORDON and only to save the female of us from shaming her TRUNKEY, JJ., dissent.
friends or telling a lie; and that the said marError to C. C. P., No. 2, of Allegheny Co.-Lupton et al. v. Moore & Riley. Judgment reversed. Barton v. Hunter | riage shall be no more thought of except to Administrator. Judgment affirmed. Darragh v. Baird, | tell her friends that she is married (unless she Judgment affirmed,
should arrive at the following accomplishments, BY GORDON, J.: Error to C. C. P., No. 1, of Allegheny Co.-('ommon
namely, piano, singing, reading, writing, speakwealth v. Getikoh. Judgment affirmed.
ing and deportment); and whereas these said Certiorari to C. C. P., No. 1, of Allegheny Co.-Grier's accomplishments have in no way been sought Appeal. Decree affirmed and appeal dismissed at the
after (much less mastered), therefore the aforecosts of the appellant. SHARSWOOD, C. J., and GREEN,
said marriage shall be and is null and void; and J., dissent. Error to C. C. P., No. 2, of Allegheny Co.-Devlin v.
| whereas we agree that the male of us shall keep Commonwealth. Judgment affirmed.
his harmonium in the aforesaid female's sittingCertiorari to 0. C. of Allegheny Co.-Haberman's Ap- room, and agree that it shall be there no more peal. Appeal dismissed and decree affirmed at costs of
than four months, and that from that time the appellant. Appeal from C. C. P. of Venango Co.-Thompson v.
aforesaid and undersigned shall be free in every Noble. Appeal dismissed and decree affirmed at costs of respect whatsoever of the aforesaid female, as appellant.
witness our hands, etc., Catherine L. H. Jeffries, Error to C. C. P. of Westmoreland Co.-Branthoover v.
William Pritchard Dagg." Not even the “barCook. Judgment reversed and new venire ordered. BY PAXSON, J.:
monium" could reconcile the parties to proCertiorari to C. C. P., No. 1, of Allegheny (0.-Ewing's | longed cohabitation, it seenis.-Alb. L. J.
Action of the Allegheny County Bar on the Death of
On Sunday morning last, at 9 o'clock, Colonel
ROBERT M. GIBSON died at his residence, 81
born at Taylorstown, Washington county, Pa., The members of the Bar of Allegheny county October 9, 1826, and was second in a family of met in room one of the Court of Common Pleas, four boys. The death of his father, when the No. 2, on November 24, 1882, to take action children were quite young, left the family in upon the death of GEORGE P. HAMILTON, Esq. straitened circumstances, and it was the struggle
Thomas M. Marshall called the meeting to of those early years that implanted in his heart order by nominating the following officers: the indomitable pluck and untiring energy that President-Hon. J. W. F. WHITE. Vice-Presi-l characterized bis career in later life and condents—The Judges of the Courts of Allegheny | tributed to his success in his chosen profession. county. Secretaries-Wm. L. Chalfant, S. C. Pre-eminently marking his early life was his McCandless, William M. Watson and John D. | devoted attachment to his mother, and this McKennan.
quality never deserted him when by his abilty The chairman appointed as a committee to and power as a jurist he stood in the front rank, prepare a minute, Thomas M. Marshall, George | respected and honored. Shiras, Jr., S. H. Geyer, C. W. Robb and Hill At the age of 26 years he entered the law office Burgwin. The following minute was presented of Hon. WILLIAM MONTGOMERY, one of the and adopted, and upon motion of W. L. Chal- most noted men at the Washington County Bar, fant it was ordered that it be entered in the where, after a year's work as a student, he was records of the court and a copy of the proceed- admitted to practice in 1853. Shortly after his ings of the meeting transmitted to the family
admission to the Washington County Bar Mr. of Mr. HAMILTON:
| GIBSON was taken into partnership by his preThe Bar of Allegheny county, so recently called upon ceptor, which relationship subsisted until Mr. to mourn the loss of one of its youngest members just
Gibson removed from Washington to this city career, is now assembled to
in 1868. express its sorrow on the occasion of the death of one of its oldest members, whose professional life is finished,
TRIBUTE OF THE ALLEGHENY COUNTY BAR. and with whom promise has become fulfillment.
The members of the Bar of this county, met GEORGE PLUMMER HAMILTON died upon yesterday afternoon in the city of Philadelphia, and although for on Monday afternoon, at 2 o'clock, in room one some time anticipated, and so not unexpected, his death of the Court of Common Pleas, No. 2, to do honor is an event which demands recognition from the mem.
to the memory of their deceased brother. The bers of this Bar with which his whole professional life was identified.
meeting was an unusual large one. Mr. HAMILTON possessed in an eminent degree the On motion, Hon. JOHN M. KIRKPATRICK elements of professional success. To great powers of was chosen President, and the Judges of the analysis and ratiocination were added laboriousness
County Courts Vice-Presidents, and Chas. F. and industry, with a remarakable capability for sustained mental effort. He was of inflexible will, of fear
McKenna, J. Erastus McKelvy, John W. Donless judgment, possessing at all times the courage of his aldson and Joseph S. Cook, Secretaries. convictions. His devotion to his profession and to his Judge KIRKPATICK on taking the chair paid clients was proverbial. His obligations to the Bench
a feeling tribute to the deceased as an advocate were never forgotten, and the highest honor and integrity pervaded every act of his professional life. The and a personal
and a personal friend. result of the whole was a symmetrical and successful On motion, the President appointed the folcareer.
lowing committee on resolutions: W. D. Moore, In submitting the report of the committee Chas. W. Robb, Malcolm Hay, D. F. Patterson Mr. Marshall made a few reniarks. He was and Josiah Cohen. These gentlemen, through
Supreme Court, Penn'a.
their Chairman, W. D. Moore, submitted the how cold our commendations of him whose moving
words will be heard no more, and how powerless all our following minute, which was approved unani
earthly consolations in the presence of that irrevocable mously :
death which has laid its seal of eternal silence on his icy Within one short week the solemn providence of God
lips and will soon hush the sorrowing voices of those
who loved him and are mourning him to-day, Let us has called this Bar together to mourn the loss of the
catch the inspiration of his life and so best honor and reyoung and the old who have given lustre to its annals, and to-day we are again called to stand by the bier of
member him. He is not dead, for though he has ceased
from his labors, his works do follow him, and in many a one who, in the prime of life, and the maturity of his powers, has been summoned to the judgment seat of
long year to come, and in many hearts his memory will God, and the place which knew him once among us will
be cherished and his power be felt for all that is good know him no more forever. The death of ROBERT M.
and great and beautiful among men. GIBSON comes to us as with the shock of a personal
Remarks on the life of Mr. GIBSON, giving. bereavement, for it rarely happens that a member of our
many interesting reminiscences, were made profession actively engaged in its duties and brought into daily collision with his associates has been fortunate
by J. F. Slagle, John N. McClowry, David F. enough to avoid personal enmities and jealousies, and | Patterson, H. A. Collier, Chas. F. McKenna, secure affection as well as admiration, such as we all
Josiah Cohen and W. C. Stillwagon. felt and accorded to him. His personal qualities were such as to win by a magnetism altogether resistless
It was unanimously voted that the Bar furto the hearts of men; a knowledge of human nature nish a delegation to accompany the remains to almost infallible; a tact, address and readiness in deal- the place of interment at Washington, Pa. ing with men of all grades and attainments scarcely
On motion, the President directed a copy of ever equaled, were used by him with a grace of manner and gentleness and sweetness of temper that made
the minute to be spread on the records of the him for the time at least absolute master of all who came | court, and instructed the secretaries to present within the charm of his conversation and companion- ' a copy to the family of the deceased. ship. Add to these a wit the most brilliant, a humor the most tender and gracious, a thorough mastery of all that was beautiful and grand in English literature and a style so quaintly peculiar as to compel attention by the ignorant and cultivated alike, and it will be easy for others to understand and believe what we knew so well-that there was but one GIBSON at the Bar, and in his chosen
PITTSBURGH, VIRGINIA AND CHARLESTON walk unsurpassed and unequaled. By choice and habit he was devoted to the criminal law, although thoroughly
RAILWAY COMPANY V. THE COMMONqualified by diligent and careful study for the conspicu
WEALTH. ously excellent discharge of any duty of his profession. In that chosen sphere he was simply a master. All the The location of a railroad on a public road is an approqualities of which he was possessed shone there with a priation of the latter, and the extension of a city so as brilliancy which drew his fellow-members of the Bar and to include such public road, subsequent to the location all waiting and careless on-lookers alike to the presence but prior to construction, does not so change the charand the spell of that genius which Milton declares to be acter of the road as to withdraw it from the operation the “inspired gift of God.” Passages of such exquisite of the 13th section of the Act of February 19, 1849, rebeauty; of such incisive wit; of such overflowing humor; quiring railroad companies to reconstruct any portion of such moving pathos and of such true grandeur and sub of a turnpike or public road, the site of which they limity, rendered with such originality of manner, with have found it necessary to change. such simplicity and apparent unconsciousness of their When a railroad company, subject to the provisions of magnificence it has rarely been given to man to utter. the above act, fails to comply with the requirements Before the court and jury alike he was for the time resist contained in section 13 of the same, the municipality less, and swept away all obstruction as the mountain tor may reconstruct the road taken and recover the cost rent in its rush to the meadow and the sea. How full he thereof from the railroad company, or may, by manwas of all gentle charities as a father, a husband, a damus, compel the company to reconstruct, but the friend; how tender to error and shortcoming; how helpful failure to reconstruct concerns the public. It is there to the young and struggling members of the Bar; how fore an injury to the Commonwealth, to which belongs unassuming, patient, generous; how pronounced and de the franchise of every high way, and for such general termined in his convictions; how honorable, yet tolerant injury to the public an indictment may be sustained. in his maintenance of them. With what a large and A corporation may be indicted for a breach of duty liberal view and with what a great, good heart he took imposed on it by law, though not for a felony, or for in and loved all phases and conditions of human life. public wrongs involving personal violence, as riots or From his struggling boyhood, through his student life, in assaults. his long partnership with his preceptor, Mr. Montgomery,
Error to the Court of Quarter Sessions of and in his professional life among us for the last sixteen years, he steadily grew in all that goes to make the Washington county. powerful and accomplished advocate, and died in the
Opinion by MERCUR, J. Filed October 16, 1882. hour when we had hoped for long years of usefulness and honor, and when he had attained such professional tri- This indictment is against a railroad corporaumph and acknowledged superiority as are rarely ac- tion subject to the Act of 19th February, 1819. corded to men. Alas, standing by this grave, how true
The indictment contains two counts, the first does it seem that all is vanity and vexation and life, in
| charges a nuisance in a certain street in Monontruth an eternal sadness and disappointment. How vain our words of praise and love to the silent sleeper; / gahela City by the construction of an embank