years after he had disposed of all the property, real and personal. The auditor admits that if this were an ordinary case of a claim for the benefit of the exemption under an execution it would be entirely too late. But he considered that the case was governed by the decision of this court in Peterman's Appeal, 26 P. F. Smith, 116, and on the authority of that case he allowed the claim and awarded the fund to the assignor. In this we think he was in error. The facts upon which that decision was based were quite different from those that are found in the pres under his claim for $300 exemption was made up in part of the value of five shares of building and loan association stock, and in part of other moneys of the assigned estate in the hands of the assignee. The building and loan association was owned by the assignor at the time of the assignment, and passed to the assignee by force of the assignment. Payments were made | both by the assignor and the assignee to keep it alive, after the assignment, but those payments were refunded and constitute no part of the present fund. The whole of the fund is therefore the product of portions of the assigned | ent case. There the assignor exercised his right estate as it originally came to the assignee. The assignor reserved generally in the assignment, "three hundred dollars' worth of property of the assignor allowed him by Act of Assembly to be appraised and set apart to him according to law." This was a sufficient reservation to entitle the assignor to retain and have set apart to him any of the assigned property, or money being the proceeds thereof to the amount of three hundred dollars. In point of fact no appraisement of any property or money was ever made, nor was any specific property in any manner set apart to the assignor. The appraisers were not asked to appraise any property or money to the assignor. The latter admits in his testimony that he did not designate the property he wanted set apart. He says: "I never designated to the assignee the property I wanted set apart to me." The evidence clearly proves that the assignor neither made an election nor demand of any property at the appraisement, or at the sale of the personal or real estate, and the auditor has practically so found. The assignor himself testified as follows: "My recollection now is that the first time I demanded it was after the real estate had been sold; I might have demanded it out of the personal property, but I let that go to pay the emergencies and intended to take it out of the real estate when it was sold." In reality no claim was made to take the money out of the proceeds of the real estate as such. It was also found by the auditor and was abundantly proved, that the assignor, at different times and to different persons, after the assignment, did declare that he would not or could not claim the benefit of the $300 exemption, because he had given judgment notes waiving the exemption. The deed of assignment was executed on January 3, 1876. The precise dates of the sales of the real and personal estates are not given in the auditor's report, nor in the printed testimony of the witnesses. But the assignee testified that no demand for the $300 exemption was made to him until 1880, which was three or four of election after the assignment. He selected road, and admitted the fact before a justice of the peace. Held, that a good prima facie case had been made out against such toll-keeper, which could not be rebutted without affirmative proof that the condemned portion of the road had been put in order. Error to the Court of Common Pleas of Luzerne county. both by the assignee and others that the assignor had repeatedly declared that he would not claim the benefit of the exemption, but we do not dwell upon that because the duty of making the claim is an affirmative one, resting upon the assignor, and it must be shown by him in case of dispute that he exercised his right and within a reasonable time. There is no proof that he did this Opinion by STERRETT, J. Filed October 2, 1882. in the present case. The assignee cannot know, The case, as presented in the transcript of the unless he is notified to that effect, what property | justice, is clearly within the jurisdiction conor money he shall set apart or pay to the as-ferred by the Act of March 19, 1804, and there signor, and in the absence of such notice it is appears to be nothing in the record proper, or in his duty to administer and distribute to the the testimony before the court below, that would creditors all the estate that has come to his have justified a reversal of his judgment. hands and is needed for the payment of debts. It is too late for the assignor to make his claim after the property has all been sold and converted into money, a large part of the proceeds paid out in satisfaction of debts of record, and and the assignee is about to file his account. Such was the condition of things when the claim of the assignor was first formally made, and we are very clear that such laches defeats the right to make the claim. There is no statute, and no decided case that permits it in such circumstances. It is true the Act of April 8, 1859, Purd., 638, pl. 26, which gives the right to retain notes, money or other securities, does not fix any time within which the right must be exercised. But neither does the Act of 1851, Purd., 416, pl. 60, and yet we held in Davis' Appeal, 10 Casey, 256, that this act must receive a construction, in this respect, similar to that given to the debtor's exemption Act of 1849, under which it has been held that the claim must be made so as to cause no delay, and before expense has been incurred. We cannot find in the evidence any excuse or justification for the long delay on the part of the assignor in preferring his demand for the benefit of the exemption reserved in the deed, and are therefore of opinion that his claim at the time it was made was barred by his laches. The decree of the court below is reversed, and the record is remitted for further proceedings, the costs of this appeal to be paid by the appellee. FETTERMAN v. ROBBINS. Under the Act of March 19, 1809, incorporating the President, Managers and Company of the Susquehanna and Lehigh Turnpike Road, the Directors were bound to keep the road in repair and good condition; and when not in repair, as found upon the report of viewers appointed to examine the condition of the road, and notice of the same being given to the toll-keepers, they were not to exact any toll until the road was put in good repair, under a penalty for each collection recov erable before a justice of the peace. A toll-keeper exacted toll after being notified of the condition of the The remedy provided by the 14th section of the act for neglect to keep the road "in good and perfect order and repair," appears to have been strictly pursued. An inquisition condemning certain portions of the road was taken, returned and duly served on the plaintiff in error, one of the company's gate-keepers. The legal effect of that preliminary proceeding was to suspend the right of the company to demand or receive tolls on the defective portions of its road, until, in the language of the act, they were put "in good and perfect order and repair." In addition thereto, that clause of the section on which the present action is founded, declares, if any gate-keeper shall take or attempt to exact tolls for such portions of the road as have been condemned, during the time the same shall continue out of repair, "such keeper shall forfeit and pay to the person who shall prosecute for the same the sum of five dollars, to be recovered before any justice of the peace as debts of equal amount are or may be by law recoverable." The language thus employed clearly indicates that the Legislature intended to avoid technicalities by providing a plain civil remedy for the collection of the penalty, as often as it might be incurred. It is to be recovered as a debt of the same amount, in an action before any justice of the peace. The slight discrepancy between the transcript, which shows simply an action of debt, and the summons, in which it is styled "penal debt," is wholly immaterial. Taken as a whole, the record exhibits a good cause of action. The inquisition given in evidence and fully set out in the transcript, together with proof of the service thereof on the defendant below, and his admission before the justice that he thereafter collected toll, all of which are shown by the record, made a clear prima facie case against him, which could not be successfully rebutted without affirmative proof that the condemned portion of the road had been put in good order and repair before he demanded toll. This was not done, and the judgment of the justice was For plaintiffs in error, Messrs. E. S. Osborne and G. M. Harding. Contra, Messrs. G. Hahn and A. R. Brundage. In the Supreme Court of Penn'a, Middle District. May Term, 1883. counties of Erie, Crawford and Fayette shall be the fourth Monday following the first Monday of January. The return day for the county of Somerset shall be the fifth Monday following the first Monday of January. The return day for the county of Lehigh shall be the sixth Monday following the first Monday of January. Seven weeks of the term are assigned for the hearing of cases for the city and county of Philadelphia. The first period shall commence on the first Monday of January and shall continue for four weeks. The second period shall com Supplement to the Order of the Supreme Court Transferring Certain Counties from the Middle and Western Districts to the Eastern District-mence on the eleventh Monday following the Changing the Terms in said District and Estab- first Monday of January and shall continue for lishing Return Days made November 25, 1881. three weeks. So much of the said order made November And now, June 1, 1883, it is ordered by the said court, now sitting at Harrisburg, as follows: 25, 1881, as is hereby altered or supplied, is The following counties shall be and are transferred from the Eastern District to the Middle District, viz: Cumberland and Fulton. The following counties shall be and are transferred from the Eastern District to the Western District, namely: Armstrong, Butler, Cambria, Clarion, Forest, Indiana, Lawrence, Mercer. The term in the Middle District shall continue two weeks. The term in the Western District shall continue seven weeks. The term in the Eastern District shall commence on the first Monday of January and shall continue until the commencement of the term for the Middle District. revoked. The prothonotary of the Eastern District is directed to certify to the prothonotaries of the Middle and Western Districts respectively the record in all cases now pending and undetermined upon writ of error, certiorari or appeal originating in each of the counties hereby transferred from the Eastern to the Middle or Western Districts. This order shall be certified by the prothonotary of the Middle District to the respective prothonotaries of the Eastern and Western Districts. And this order shall be published for four weeks in the PITTSBURGH LEGAL JOURNAL, at the expense of the county of Allegheny; four weeks in the Legal Intelligencer and Weekly Notes of Cases, at the expense of the city and For the Western District the return days shall county of Philadelphia; and once a week for be as follows: four weeks in the Harrisburg Telegraph and Harrisburg Patriot, at the expense of the county of Dauphin. PER CURIAM. ULYSSES MERCUR, Chief Justice. I, William Pearson, Prothonotary of the Supreme Court of Pennslyvania, Middle District, For the third Monday of the term the counties hereby certify that the above is a true and corof Indiana, Washington and Butler. For the fourth Monday of the term the county of Allegheny, and four weeks of the term, if necessary, are assigned for the hearing of cases for the county of Allegheny. In the Eastern District the return day for the rect copy of the order of the said court made June 1, 1883. In testimony whereof, I have hereunto affixed my hand and the seal of the said court, at Harrisburg, this 2d day of June, A. D. 1883. SEAL WILLIAM PEARSON, It is not error to instruct a jury that "if you find that the defendant intentionally fired a pistol ball into the body of the deceased, and thus inflicted a wound which caused death, malice and a design to kill are to be presumed from such use of the weapon." Sobriety and sanity must be regarded as the normal condition of men, and when drunkenness or insanity is set up as an excuse for crime or in mitigation of it, the proof necessary for its establishment must not only be deliberately scrutinized, but also fairly preponderate in form of the proposed hypothesis. Error to the Court of Oyer and Terminer of Allegheny county. Jones was convicted of murder of the first degree. The assignments of error were addressed to the following portions of the charge: 1st. If you find that the defendant intentionally fired a pistol ball into the body of the deceased, and thus inflicted a wound which caused his death, malice and a design to kill are, as we have seen, to be presumed from such use of the weapon. 2d. The defense has offered evidence tending to show that the defendant was in boyhood deficient in memory and weak in intellect, and it is claimed that this mental condition continued and was such as to prevent him on the 4th of April last from forming the deliberate and premeditated intent to take life, and to rebut the presumption arising from the use of a deadly weapon, and thus to at least reduce the grade of his crime to murder in the second degree. Soundness of mind such as renders men responsible for their crimes being the normal condition of men and its absence a defense set up to relieve a defendant, in part or in whole, of such responsibility, the burden rests upon the defendant of proving such unsoundness of mind. The evidence of this need be only satisfactory and the conclusion such as fairly results from the evidence. It need not be beyond doubt, but must flow fairly from a preponderance of the evidence. The creation of a mere doubt in your minds upon the subject will not be enough. whether there is such preponderating evidence and also what degree of mental unsoundness has been shown. *** In the light of this testimony and the other evidence in the case, was the killing, beyond a reasonable doubt, deliberate and premeditated?") 3d. If you shall find from the evidence here that the defendant killed the deceased, and that at the time he was in such a state of intoxication that he did not and could not deliberate and premeditate, you could not find the defendant guilty of more than murder in the second degree, but this you must find from the evidence upon deliberate scrutiny. For plaintiff in error, Geo. Elphinstone, Esq. Contra, John S. Robb, District Attorney, and H. H. McCormick, Esq. PER CURIAM. Filed May 21, 1883. Notwithstanding the able argument of the counsel for the plaintiff in error we have failed to discover any error in the rulings of the court below. It was certainly not a departure from the well settled rules of law to say to the jury that sobriety and sanity must be regarded as the normal condition of men, and that when dunkenness or insanity is set up as an excuse for crime or in mitigation of it, the proof necessary for its establishment must not only be deliberately scrutinized, but also fairly preponderate in favor of the proposed hypothesis. The judgment of the court below is affirmed, and it is ordered that the record be returned for the purposes of execution. DEMSTER v. ADAMS. John Adams by his will devised his real estate to his wife for life and directed that after her death it should be sold and the proceeds divided among his children, and then provided as follows: "It is also my will that no one of the husbands or wives of the aforesaid children shall have any interest in or control over the property hereby bequeathed, but that the shares of my said children shall belong to them separately and exclusively, whose receipts therefor shall be deemed and taken as a full discharge to my executors." At the time of testator's death he had two married daughters. After the death of testator's wife, the children by writing, in which the husbands of the two married daughters joined, agreed to accept the land as real estate, and afterwards partition was made and purparts awarded to each. Held, that under this will the interests of the married daughters were separate use trust, and that upon the death of the mother the interest vested in them under the provisions of the will. While it is true that the married women could not dispose of or incumber their estate because of the trust, yet it does not follow that they may not exercise a power of election which the law recognizes to exist in ordinary legatees to take the land itself instead of its product when sold. Error to the Court of Common Pleas, No. 1, (The charge continued, "you will determine of Allegheny county. This was an action of covenant brought by his share shall be paid by my executors to her, Albert R. Adams against Alexander Dempster, whose receipt therefor shall be a full discharge for the purchase money of a tract of land situated and acquittance in the settlement of their in Wilkins township, Allegheny county, which account." Albert R. Adams, by articles of agreement dated December 10, 1881, agreed to convey in fee-simple, clear of all incumbrances, to Alexander Dempster for the consideration of $6,000, to be paid upon the delivery of the deed. Mr. Dempster refused to accept the deed tendered and pay the consideration agreed upon, for the reason that Mr. Adams could not make a good title to the land. Upon suit being brought, the defendant, A. Dempster, filed an affidavit of defense setting forth the defects in the title and alleging the existence of incumbrances, which affidavit the court below, upon argument, held to be insufficient and entered judgment for the plaintiff below, from which judgment the defendant below has taken this writ of error. The facts of the case as set forth in the affidavits of claim and defense are as follows: In 1872, John Adams, the father of Albert R. Adams, plaintiff below, died seized in fee of a farm in Wilkins township, Allegheny county, of about eighty acres, which included the tract described in the agreement sued upon. At his death he left a widow and seven children, including the plaintiff below. At the date of his death three of his children were married women, two of whom still remain so. By his will, proved December 28, 1872, he devised all his lands in Allegheny county to his wife Eliza during her natural life, and directed that upon her death they should be sold by his executors, and the proceeds should be divided equally among his seven children subject to the conditions thereinafter stated. He then in the seventh, eighth and ninth clauses of his will provided as follows, viz: "Seventh. It is my will that should any one of the children above named die without issue, the share of such child shall go to and be vested in his or her surviving brothers or sisters. It is also my will that no one of the husbands or wives of the aforesaid children shall have any interest in or control over the property hereby bequeathed, but that the shares of my said children shall belong to them separately and exclusively, whose receipts therefor shall be deemed and taken as a full discharge to my executors." "Eighth.-It is my will and desire that the present wife of Albert, or her children born or to be born, shall inherit no part of my property, and should any sale of land be made by my executors under the provisions of this will, during the lifetime of my wife, it is my will that “Ninth.-It is my will that my said wife, in her own discretion, as to payment or non-payment of any money placed in her hands in reference to the share of my son Albert, and in the event of his death it is my will that his share shall go to his brothers and sisters and not to his present wife or her children." None of the decedent's property was sold during the life of his wife, who died in 1875. After his wife's death all of his children, with their husbands and wives, agreed by deed that they would take the property devised to them as land and not as money, and that the executors should not make any sale of the land. After this a partition of the lands was had among the several children and the tract of land described in the agreement sued upon was allotted, inter alia, to Albert R. Adams. After the final decree in partition, in January, 1882, all the brothers and sisters of Albert Adams, with their husbands and wives, executed and delivered to him a deed of quit-claim for all their interest in the lands allotted to him in the partition. Several judgments have been obtained against Albert R. Adams and remain open and unsatisfied liens against him on the records, not, however, equaling in the aggregate the amount of the purchase money agreed to be paid to him by the plaintiff in error. One objection of the plaintiff in error to the title is that by the will of John Adams there was a trust created for the separate use of his married daughters, and that they, either with or without the consent of their husbands, had no power to make an election to change the property devised to them from money to land, and that two of them being married women from the death of the decedent to the present time, and so powerless to elect, the agreement of the other children was void, and the title to the land never vested in them, but remained in the executors to be sold as directed by the will. Another objection is that at most only a lifeestate was given to Albert R. Adams, with remainder to his surviving brothers and sisters, and that a trust for the separate use of his married sisters having been created by the will they were incompetent to surrender or dispose in any way of their reversionary interests, and their quit-claim deed to him was invalid. Upon motion the court entered judgment in favor of the plaintiff for $5,988 for want of a sufficient affidavit of defense. |