« AnteriorContinuar »
tion and bastardy, whereupon he agreed to Yardley's Estate often exist where there is no marry her. The marriage took place Septem- marriage, and the courts would naturally look ber 7, 1867, after which the parties separated more closely into the circumstances of the coapparently by mutual agreement. During the habitation, or relation tending to show cohabisix months after the marriage Clauer went to tation, than in a case where the marriage was see his wife some four or eight times, always previously established; and a state of facts that going on Saturday afternoon or evening and would be deemed insufficient to prove a marremaining with her, occupying the same room riage of the parties, would yet be deemed that at night, until the following Monday morning. cohabitation intended by the Act of 1857, to During these visits Clauer frequently spoke of legitimate the child, where the marriage was the child as his, and treated her as his own. At established.” the end of the six months the visits ceased en- The auditor reported distribution accordingly. tirely, and he went to see his wife no more Cyrus Clauer, a son of the decedent, filed exduring his life. In 1872 they were divorced onceptions to this report, which were, however, the petition of his wife, who subsequently mar- dismissed by the court, the report being conried again. There was some dispute as to the firmed. Cyrus Clauer thereupon took this apfact of these visits and their frequency. Mrs. peal, assigning for error the decree of the court. Clauer herself testified, in the first place, before For appellant, Messrs. Kline, Gerber and the auditor that her husband never went to see Marr. her after their separation on their wedding-day, Contra, Messrs. Wadleigh and Wells. and in her deposition in the divorce suit, offered
PER CURIAM. Filed May 1, 1882. in evidence before the auditor, she stated unequivocally that he had never cohabited with her. We think, upon the facts as reported by the since their marriage. She explained, on being
learned auditor in the court below, Franklin recalled before the auditor, that she had not fully Clauer, after his marriage to Mary Fessler, did understood the question in her first examination. sufficiently cohabit with her to legitimate the The auditor reported that the preponderance of appellee under the Act of May 14, 1857, P. L., 507. testimony was enough to establish the fact that
A liberal interpretation should be given to the Clauer went to see his wife several times during act, and we have in this case recognition by the year following the marriage. As to the Clauer of the appellee as his child, which is the question of law involved the auditor reported
| most important circumstance. that he had found no case where the Act of May Decree affirmed and appeal dismissed at the 14, 1857, had been construed. “In Yardley's | costs of the appellant. Estate, 25 P. F. Smith, 211, Chief Justice AGNEW bas defined cohabitation in a case where mar Circuit Court, United States. riage was sought to be established by reputation
Eastern District of Pennsylvania. and cohabitation; and if the same definition be applied to the term as used in the Act of 1857, / In the Matter of M. T. WARNE, Bankrupt. then, probably the child in this case has not been legitimated, and cannot take her father's
The fraud contemplated by the statute as a bar to a
bankrupt's discharge is fraud in fact, involving moral portion of the estate. The case raises a question
turpitude and intentional wrong. not yet decided by the courts, and the auditor | A bankrupt swore falsely, to his own prejudice, it afteris not free from doubt as to how he should de- wards appeared that such false swearing was not "willcide it, notwithstanding the opinion in Yard
ion in Vow | ful," nor intentionally untrue.
Held, that this need not bar bis discharge. ley's Estate, supra, and the rule of law as to the
Appeal from the decree of the District Court interpretation to be given to terms once defined in a decision. The auditor has come to the con
granting a discharge to the bankrupt. clusion that Sarah Jane Clauer has become
Opinion by MCKENNAN, Cir. J. Filed April legitimated by the subsequent marriage and | 29, 1882. acts of her parents, and that she is entitled to The only objections urged against the banktake the interest of her father in the estate of rupt's discharge are: (1) That he was guilty Jacob Clauer, deceased.
of fraud in not delivering to his assignee certain "The auditor's reasons for this conclusion are personal property claimed by and in the possesbriefly as follows: The question decided in sion of his wife and daughter; and (2) That he
Yardley's Estate is different from the question willfully swore falsely touching the keeping of at issue here. There the marriage was to be proper books of account in his business. proved by the cohabitation. Here it is not The first objection is unsustained by evidence questioned. The relations of the parties in which tends to prove fraud within the meaning of that section of the Bankrupt Act upon which wantonness of depravity, he made a false statethe objection is founded.
ment, to his own prejudice, or his statement The property referred to in the objection was, was unintentionally untrue. in part, given by the bankrupt to his daughter, | He had applied for his discharge, and the and in part acquired by his wife by purchase inquiry on which he was examined was as to froin others. But, although the title to the whether he had complied with the law and was property of the apparent owners may be voida- entitled to be discharged. He was bound to ble by the bankrupt's creditors, through the as- | know, and must have known, that his failure signee as their representatives, the transactions to keep the books, about which he was asked, in which it originates do not necessarily involve would necessarily preclude the allowance of his moral turpitude, which must characterize them discharge. Is it within the range of probability to justify the denial of a discharge, even if they | then that he would willfully and falsely deny may be considered as comprehended by the the existence of a fact, within his recollection terms of the objection here: Neal v. Clark, 5 at the time, which he knew would defeat the Otto, 704.
object he was earnestly seeking to accomplish? But as between the bankrupt and his wife Such an assumption is irrational, because it is and daughter, their ownership of the property utterly repugnant to any supposable motive of was unquestionable, and he could not, right- human action. Not only was the bankrupt fully or legally, disturb it. Fraud, therefore, without motive to swear to a falsehood, but he cannot be imputed to him because he did not was drawn by the strongest of motives in the illegally possess himself of property, the owner | other direction. A statement of the simple ship of which he could not claim, and deliver truth was a decisive condition of his success, it to his assignee.
and it would require demonstrative proof to The second objection is more difficult to deal warrant the conclusion that he was laboring with.
to defeat what it was conducive to his own inThat the bankrupt swore falsely is incontesta- terests to promote and accomplish. And this ble. In his examination before the register, on hypothesis is not without support in this, that the 25th of May, 1880, he stated that he had not the books produced are not suggested not to be kept any cash book in his business; that he what they purport to be, proper books of accould not tell by his books what his business count honestly kept. expenses were, nor what he took out of his busi Although then I have some misgivings, I ness for the support of his family, nor whether think the safest and most charitable explana. they would show profit or loss.
tion of the bankrupt's conduct is, that he was Thereupon the register reported against his unintentionally mistaken in his statement of discharge. The bankrupt supposed that the May 25th, and, therefore, that his discharge assignee had taken possession of all his books, ought not to be denied. but, after the register's report, he made further And so it is ordered that a decree for his dissearch and found additional books in the loft charge be entered in the usual form. over the hay scales on the premises occupied by For bankrupt, llon. W. W. Schuyler and him." Upon application to the register the Messrs. Sharp & Alleman, hearing was reopened, and the books thus found For Merchants' Bank, W. D. Luckenbach, produced. They were of such character as, in Esq. the judgment of the register, to supply the de- / ficiency in the bankrupt's accounts, and he changed his report. The bankrupt was also
Washington County. examined before him, and explained his former statement generally thus: That he was in deli- J. D. FOSTER and WIFE v. U. S. HOLMES. cate health and frequently sick; that he was
A justice of the peace is not bound to accept as security greatly disturbed in mind by his embarrass for costs, upon an appeal, a bond executed away from ments, and that, at the time of his examination, his office and out of his presence. his memory had entirely failed as to the exist Petition of the defendant, Mrs. U. S. Holmes, ence of the books afterwards found.
setting forth that the plaintiff's had recovered a Now, was the statement of the bankrupt on judgment against her before D. 0. Lambert, the 25th of May, 1880, willfully false? Unless | Esq., a justice of the peace; that defendant had this satisfactorily appears his discharge cannot through her counsel sent to the said justice a be refused.
written demand for an appeal from said judgThere are but two hypotheses to account for ment, and had afterwards forwarded to him by the bankrupt's conduct. Either, in the very mail a second request for a transcript of the pro
Court of Common Pleas,
Court of Quarter Sessions,
ceedings showing an appeal from said judgment, sureties, and in many cases it would be the duty together with a bond of which the following is of the justice to make such examination. a copy :
Another consideration, leading me to the same J. D. Foster and WIFE,) Before D. 0. Lambert, Justice conculsion, is, that the Act of Assembly eviin right of wise, v. § of the Peace in and for the dently intends that the obligation to be entered
U. S. HOLMES. ) county of Washington.
into by the bail, or surety, in cases of appeal bound unto the plaintiffs in the above case, in the sum from justice's judgments, should be a debt or of one hundred dollars, conditioned for the payment of
obligation of record, thus precluding many disall costs that have accrued or may hereafrer accrue in
putes which might arise upon bonds executed the above stated case. Witness our hands and seals this 24th day of August,
at a distance from the office, and not in the 1882.
presence of the magistrate. [Signed) U. S. HOLMES, (L. S.]
For these and other reasons which might be
JOHN HALL, [L. S.) Witness: L. R. SMITH.
urged, I must refuse the prayer of the petition. That in reply to this communication peti
Ordered accordingly. tioner's counsel had received a postal card from the justice refusing to recognize the appeal, on the ground that the foregoing was not a proper recognizance, and an execution had been issued
Luzerne County. upon the said judgment. The petitioner there
In Re Inquest on the Body of REITLINGER, Dec'd. fore prayed for an order staying said execution and requiring the said justice to deliver to her
1. The jurisdiction of a justice of the peace to hold an a proper transcript of the above stated proceed
inquest super risuin corporis is purely statutory, is conings, showing an appeal by her form said judg fined exclusively to the cases expressly named in the ment and the due entry of security for costs.
act, and should appear on the face of the proceedings.
2. The approval of the court is not required in order to For petitioner, L. R. Smith, Esq.
validate the proceedings, but only as a condition pre
cedent to the payment of the fees to the justice and Opinion by HART, P.J. Filed August 26, 1882. inquest. The question here is, not what the justice of 3. Semble. The finding of the inquest would have full
legal force and effect for every other purpose, as, for the peace who rendered the judgnient may do to
example, to sustain the commitment of a person crimifacilitate appeals from his decisions; but, what |
nated thereby, without such approval; and in such he may be compelled to do in furtherance of the case the court will not permit the jurisdiction to be legal rights of an appellant. And, hence, al
collaterally impeached by evidence that the coroner
was in the county, or was able to attend. though it may be conceded that he might have
4. Nevertheless, on the direct question of approval, the accepted the bond tendered by the defendant,
court is not confined in their adjudication to an inand that such bond would have been valid and spection of the return of inquest, but will receive evi. binding on the surety; yet it does not follow
dence aliunde, and withhold approval if, in fact, the
justice was not authorized to act. that the justice was obliged, as matter of law,
| 5. The acts of an officer de facto are valid so far as the to accept the bond as sufficient bail under the
public and third persons are concerned, but none but Act of 20th March, 1815. On the contrary, I an officer de jure can successfully claim compensation am inclined to the opinion that the bond offered for official services.
6. Tnese proceedings not approved, for the reason that was not a compliance with the terms of the act.
the coroner was not out of the county, was not unable The word “bail” as used in the act must be
to attend, and there were no such diligent search and understood in its technical sense, which implies inquiry made as to raise the presumption of his inthe personal appearance of the surety or sureties
ability to attend.-Luz. Leg. Reg. before the court, magistrate or other officer au
7. See Act 19th April, 1856, P. L., 470, as to Allegheny thorized to take the bail in a given case:
Tr. | & H. Prac., Sec. 298. In appeals from the judg
Rule to show cause why the inquest held by ments of a justice, it is made his duty to satisfy
Jeremiah Rooney, Esq., alderman, acting as himself as to the sufficiency of the sureties: Br.
coroner, shall not be approved. Pur., 860, pl. 88. In order to discharge this Opinion by RICE, P. J. duty properly he may require the sureties to It was decided in February, 1841, in Ex parte appear before him in person, that lie may in- Schultz, 6 Wh., 269, that a justice of the peace quire into their circumstances, and better judge had no right to hold an inquisition super visum as to their legal competency in other respects. corporis, and that a prisoner held upon a warAnd to that end, he may, undoubtedly, examine rant founded upon such inquisition must be the sureties themselves upon their voir dire, discharged. Immediately following this denot only as to their pecuniary condition, but as cision the Act of May 27, 1841, Sec. 15, P. L., to other matters touching their competeucy as 404; P. D., 873, pl. 146, was passed, which made it lawful for them to hold the same in certain inquest which we are asked to approve. This cases, viz: first, where there is no lawfully ap- inquiry involves the legal necessity, and therepointed coroner; second, where the coroner is fore the legal right of the justice to act. While, absent from the county; third, where he is un- therefore, the return of the inquest may be held able to attend; fourtlı, or where his office is valid for some purposes without the approval of held more than ten miles distant from the place the court, and while upon the question of allowwhere the death occurred, or the body found. /ance and payment of the fees there will be, if As the jurisdiction is purely statutory, it is con- it is regular, a prima facie presumption in its fined exclusively to the above cases expressly favor, the court is, nevertheless, authorized, for named in the act, is not to be extended to other the purpose of carrying out the intent of the cases by implication on the ground of necessity proviso to the Act of 1841, to receive other evior public policy, and should appear on the face dence, and to withhold their approval if, in of the return of the justice and inquest.
fact, the certificate of the justice is untrue. On their face these proceedings are regular, This is by no means equivalent to an impeachbut the act contains the proviso, “that no fees ment of the return in a collateral proceeding, or costs shall be allowed or paid the said justice for the reason that there is a well founded disor inquest, until the proceedings are submitted tinction between the validity of the proceedto the Court of Quarter Sessions of the proper ings as affecting the public and third persons, county, and the said court shall adjudge that and as affecting the right of the officer to comthere was reasonable cause for holding said pensation. It is analogous to the distinction inquest, and approve of the same." It will be between an officer de facto and an officer de observed that the approval of the court is not jure. The acts of the former are valid so far as required in order to establish the validity of the the public and third persons are concerned, but proceedings, but only as a condition precedent none but an officer de jure can successfully to the payment of the legal fees to the justice claim compensation for official services: ('omand inquest. We see no reason for supposing monwealth v. Slifer, 1 C., 31; and see especially that the finding of the inquest would not have Carroll v. Commonwealth, 12 Am. L. Reg. (N. full legal force and effect for every other pur- S.), 165; (S. C.) 38 Conn., 449. If the court is pose, as, for example, to sustain the commit- concluded by the mere formality of the return, ment of a person criminated thereby, without then the statute furnishes no method of presuch approval. Where the jurisdiction of the venting the most unseemly conflicts between justice depends on the absence of the coroner the coroner and the justices over the dead from the county, or his inability to attend, the body. We do not think the provisio to the Act decision of these questions of fact, so far as the of 1841 was intended to receive this narrow public and third persons are concerned, must, | construction. of necessity, rest with the justice; and where In the case in hand there is nothing to indithere is no actual conflict between him ard the cate that the alderman did not act in good coroner, the court will not permit his decision faith, but the coroner was not out of the county, and jurisdiction to be collatterally impeached nor was he unable to attend, nor was there by evidence that the coroner was in the county, such diligent search and inquiry made as to or was able to attend. But that is not the raise the presumption of his inability to attend. question here presented. The purpose of the On the contrary, he did attend within a very act was, very plainly, to provide for certain short time after the body was found, and imemergencies shown to be possible by the deci- | mediately proceeded to hold an inquest. The sion in Ex parte Shultz, supra; but in order to result was a conflict of authority between the discourage and prevent, so far as possible, un- coroner and the alderman over the dead body. seemly conflicts and scrambles between officers This might have been avoided by a little baste of equal jurisdiction, and also the useless ex- in summoning the alderman. pense of holding inquests where there was no
The rule is discharged. occasion therefor, the allowance and payment For rue, J. T. Lenahan, Esq. of the fees is made dependent on the approval of
Contra, Gco. B. Kulp. Esq. the court. This evident purpose of the statute
(NOTE.-The Act of 19th April, 1856, P. L., 470, prois inconsistent with the theory that the court in
vides that section 15, Act of May 27, 1841, P. L., 404, their adjudication is confined to an inspection shall not authorize justices in Allegheny county to hold of the return of inquest. The question before inquests “except in cases where it is impracticable to the court is not whether there was reasonable | obtain the personal attendance of the coroner, after
notice given him, or reasonable and proper efforts made cause for holding an inquest, but whether or
mener or to give him notice of the death, and of the necessity of not there was reasonable cause for holding the ' bis official attendance.'']
Pittsburgh Legal Journal.
Supreme Court, Penn'a.
I trial of this case, the said widow discontinued
and settled the suit brought by her, and the E TAHLISIEN 1853.
same was so marked of record. E. Y. BRECK, : : : : Editor.
The defendant requested the court to charge,
| inter alia, as follows: (2) Under the terms of X, S., Vol. XII.
No. 6. the Act of 19,5), the parents of the deceased have 0, S., Vol. XXX
mo right of action if the deceased left a widow PITTSBURGH, PA.. SEPTEMBER 20, 1882.
to survive; the right of action is exclusively in her if there are no children, and in her and the children if there are any. Refused. First assignment of error.)
In the general charge the court said, inter LEHIGH IRON COMPANY V. RUPP. alin: “The defendant assumes the position that
the widow only was entitled to sue, and that all Where a person whose death has been occasioned by the damages which were recoverable belong to negligence leaves him surviving a widow but no chil-her; that in no event could the father or mother dren, and also parents, the right to recover damages
recover or receive any damages for causing the for his death is, by virtue of the provisions of the Act of April 26, 1855, P. L., 309), vested solely in the widow,
death of their son. This position, in the opinion and the parents are entitled to no part of the damages of the court, is not well taken. The court hold which said widow may recover.
| the law to be that the damages which the coml'nder the provisions of said act parents are not only
pany defendant are liable for, if liable at all, entitled to recover damages for the death of a child where the family relation exists at the time of the ac
would go to the widow and surviving father and cident. If the child be free, either by age or emancipa mother in the proportion that these parties would
A be living apart from his parents, and in no be entitled to take the personal estate of the deway contributing to their support, they cannot main
(eased, if he had left any, under the intestate tain such an action. Where a parent brings suit to recover damages for the
laws, viz., the one-halt to the widow, and the death of a minor child occasioned by the negligence of other to the father and mother. * * * Where the defendant, he is only entitled to recover the value
the parties surviving are a widow and parents, of the child's services during minority, in addition to
I there being no children, it seems that the law the expenses caused by the injury and death.
contemplates that the suit shall be brought in Error to the Court of (omnon Pleas of Le
the name of the widow, but in such a suit, if she high county.
recovers, one-half is for the benefit of the survivCase by Daniel Rupp against the Lehigh Iron ing parents. That being the case, the law would Company to recover damages for the death of not permit her to destroy the rights of the parhis minor son by the explosion of a boiler belong-ents by discontinuing the suit. They could reing to defendant, which explosion was alleged cover in that suit what belonged to them. They to have occurred through the negligence of de, could prosecute the case even if she had been fendant's servants.
satisfied, or she for any reason had withdrawn On the trial, before ALBRIGHT, P. J., the fol- from the controversy. Therefore I cannot see lowing facts appeared: Defendant was lessee of any good reason why the father should not rean iron mine, and owned the machinery used cover in a suit brought by him for himself and there, consisting of an engine, boiler, washeries, the mother of the deceased, the damages they etc. Joseph Keifer worked said mine under mar be entitled to, where the widow abandoned contract with defendant, and employed Llewel- the suit brought in her name, and where the lyn Rupp, the son of plaintiff. In July, 1877, father had sued within the year. I instruct as Rupp was preparing to commence work, the you that the plaintiff can recover in this case if boiler exploded, killing him and others. At the it is shown that defendant is liable to respond time of his death he was a minor, nineteen years in damages, and the plaintiff' has shown that he old. He was, however, married, and lived with is in a position, in other respects, to sue for the his wife in a home of his own, separate and dis- / alleged injury. Second assignment of error.) tinct from his parents. There was no evidence that he contributed in any way to his parents' "In computing the damages, if you arrive at support. He died leaving no issue. Within the question of damages, you are to consider the one year after the accident two actions were business of the deceased, his wages, his physical brought to recover damages for the loss sustained condition, lis habits, and the probable duration by the death of said Rupp; one by Isabella , of his life if the explosion had not taken place." Rupp, bis widow, and the other by Daniel (Ninth assignment of error.) Rupp, his father. Subsequently, but before the ! Verdict and judgment for the plaintiff in the