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under his claim for $300 exemption was made years after he had disposed of all the property, up in part of the value of five shares of building real and personal. The auditor admits that if and loan association stock, and in part of other this were an ordinary case of a claim for the moneys of the assigned estate in the hands of benefit of the exemption under an execution it the assignee. The building and loan associa- would be entirely too late. But he considered tion was owned by the assignor at the time of that the case was governed by the decision of the assignment, and passed to the assignee by this court in Peterman's Appeal, 26 P. F. Smith, force of the assignment. Payments were made | 116, and on the authority of that case he allowed both by the assignor and the assignee to keep it the claim and awarded the fund to the assignor. alive, after the assignment, but those payments in this we think he was in error. The facts were refunded and constitute no part of the upon which that decision was based were quite present fund. The whole of the fund is there- different from those that are found in the presfore the product of portions of the assigned ent case. There the assignor exercised his right estate as it originally came to the assignee. of election after the assignment. He selected The assignor reserved generally in the assign- certain personal property which was appraised ment, “three hundred dollars' worth of prop- at $99.88, and set apart for his use. He was erty of the assignor allowed him by Act of therefore still entitled to the remainder of the Assembly to be appraised and set apart to him $300. Afterwards he became entitled to a disaccording to law." This was a sufficient reser tributive share of the proceeds of certain real vation to entitle the assignor to retain and have estate of which his mother had died seized. set apart to him any of the assigned property, His own assigned estate had been distributed or money being the proceeds thereof to the to his creditors by his assignee who had fully amount of three hundred dollars. In point of settled his account and made distribution. On fact no appraisement of any property or money the distribution of the proceeds of his mother's was ever made, nor was any specific property estate he made claim to the share coming to in any manner set apart to the assignor. The him to the extent of the balance necessary to appraisers were not asked to appraise any prop- make up his $300 exemption. His assignee erty or money to the assignor. The latter ad-claimed the money in opposition to him. As mits in his testimony that he did not designate this share existed in the form of money in the the property he wanted set apart. He says: hands of the trustee for the sale of his mother's “I never designated to the assignee the prop- real estate, no appraisement of it was necessary. erty I wanted set apart to me." The evidence | His claim was made as soon as he had the right clearly proves that the assignor neither made to demand and receive it, and he was therefore an election nor demand of any property at the not guilty of laches in making the demand. It appraisement, or at the sale of the personal or was for these reasons and on these principles real estate, and the auditor has practically so that this court held he was entitled to the found. The assignor himself testified as fol- money. We certainly did not say or mean to lows: “My recollection now is that the first say, in that case, that a demand was not neces. time I demanded it was after the real estate sary, or that the right to claim the benefit of had been sold; I might have demanded it out the exemption could not be waived by undue of the personal property, but I let that go to pay laches. The decided cases on those subjects the emergencies and intended to take it out of were not overruled or even discussed. On the the real estate when it was sold." In reality contray we recognized the facts that the benefit no claim was made to take the money out of of the exemption was regularly claimed, that the proceeds of the real estate as such. It was personal property was actually selected, apalso found by the auditor and was abundantly praised and set apart to a certain amount, and proved, that the assignor, at different times and that as to the balance of the exemption it was to different persons, after the assignment, did claimed as soon as the right to demand and redeclare that he would not or could not claim ceive it arose. But all these facts are lacking the benefit of the $300 exemption, because he in the present case. While it is true there was had given judgment notes waiving the exemp- a general reservation of the three hundred doltion. The deed of assignment was executed on lars exemption in the assignment there was at January 3, 1876. The precise dates of the sales no time any selection of property or appraise of the real and personal estates are not given in ment made, and no notice of a claim to the the auditor's report, nor in the printed testi- assignee until several years after the real and mony of the witnesses. But the assignee testi- personal property had all been sold and the fied that no demand for the $300 exemption was proceeds of the former had all been paid out in made to him until 1880, which was three or four discharge of liens. It was positively testified both by the assignee and others that the assignor road, and admitted the fact before a justice of the peace. had repeatedly declared that he would not claim

Held, that a good prima facie case had been made out

against such toll-keeper, which could not be rebutted the benefit of the exemption, but we do not dwell

without affirmative proof that the condemned portion upon that because the duty of making the claim of the road had been put in order. is an affirmative one, resting upon the assignor, and it must be shown by him in case of dispute

· Error to the Court of Common Pleas of Luthat he exercised his right and within a reason

zerne county. able 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. The remedy provided by the 14th section of It is too late for the assignor to make his claim the act for neglect to keep the road “in good after the property has all been sold and con- and perfect order and repair," appears to have verted into money, a large part of the proceeds been strictly pursued. An inquisition conpaid out in satisfaction of debts of record, and demning certain portions of the road was taken, and the assignee is about to file his account. | returned and duly served on the plaintiff in Such was the condition of things when the error, one of the company's gate-keepers. The claim of the assignor was first formally made, legal effect of that preliminary proceeding was and we are very clear that such laches defeats to suspend the right of the company to demand the right to make the claim. There is no stat- or receive tolls on the defective portions of its ute, and no decided case that permits it in such road, until, in the language of the act, they circumstances. It is true the Act of April 8, were put "in good and perfect order and re1859, Purd., 638, pl. 26, which gives the right to pair.” In addition thereto, that clause of the retain notes, money or other securities, does not section on which the present action is founded, fix any time within which the right must be declares, if any gate-keeper shall take or attempt exercised. But neither does the Act of 1851, / to exact tolls for such portions of the road as Purd., 416, pl. 60, and yet we held in Davis' Ap- have been condemned, during the time the same peal, 10 Casey, 256, that this act must receive shall continue out of repair, “such keeper shall a construction, in this respect, similar to that forfeit and pay to the person who shall prosegiven to the debtor's exemption Act of 1819, cute for the same the sum of five dollars, to be under wbich it has been held that the claim | recovered before any justice of the peace as debts must be made so as to cause no delay, and before of equal amount are or may be by law recoveraexpense has been incurred.

ble.” The language thus employed clearly inWe cannot find in the evidence any excuse dicates that the Legislature intended to avoid or justification for the long delay on the part of technicalities by providing a plain civil remedy the assignor in preferring his demand for the for the collection of the penalty, as often as it benefit of the exemption reserved in the deed, might be incurred. It is to be recovered as a and are therefore of opinion that his claim at debt of the same amount, in an action before the time it was made was barred by his laches. / any justice of the peace. · The decree of the court below is reversed, and The slight discrepancy between the transcript, the record is remitted for further proceedings, which shows simply an action of debt, and the the costs of this appeal to be paid by the appellee. summons, in which it is styled “penal debt,"

is wholly immaterial. Taken as a whole, the FETTERMAN V. ROBBINS.

record exhibits a good cause of action. The

inquisition given in evidence and fully set out Under the Act of March 19, 1809, incorporating the

in the transcript, together with proof of the President, Managers and Company of the Susquehanna service thereof on the defendant below, and his and Lehigh Turnpike Road, the Directors were bound admission before the justice that be thereafter to keep the road in repair and good condition; and

collected toll, all of which are shown by the when not in repair, as found upon the report of viewers appointed to examine the condition of the road, and record, made a clear prima facie case against notice of the same being given to the toll-keepers, they | him, which could not be successfully rebutted were not to exact any toll until the road was put in

without affirmative proof that the condemned good repair, under a penalty for each collection recoverable before a justice of the peace. A toll-keeper

| portion of the road had been put in good order exacted toll after being notified of the condition of the and repair before he demanded toll. This was

In the Supreme Court of Penn'a,

not done, and the judgment of the justice was counties of Erie, Crawford and Fayette shall therefore in accordance with the evidence be- l be the fourth Monday following the first. Mon. fore him.

Judgment affirmed.

day of January. The return day for the county For plaintiffs in error, Messrs. E. S. Osborne

of Somerset shall be the fifth Monday followand G. M. Harding. Contra, Messrs. G. Hahn and A. R. Brundage.

ing the first Monday of January. The return
day for the county of Lehigh shall be the
sixth Monday following the first Monday of

January
Middle District.

Seven weeks of the term are assigned for the
May Term, 1883.. hearing of cases for the city and county of Phila-

delphia. The first period shall commence on Supplement to the Order of the Supreme Court the first Monday of January and shall continue

Transferring Certain Counties from the Middle for four weeks. The second period shall comand 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

25, 1881, as is hereby altered or supplied, is said court, now sitting at Harrisburg, as follows:

revoked. The following counties shall be and are trans

The prothonotary of the Eastern District is ferred from the Eastern District to the Middle District, viz: Cumberland and Fulton.

directed to certify to the prothonotaries of the

Middle and Western Districts respectively the The following counties shall be and are transferred from the Eastern District to the Western

record in all cases now pending and undeter

mined upon writ of error, certiorari or appeal District, namely: Armstrong, Butler, Cambria,

originating in each of the counties hereby transClarion, Forest, Indiana, Lawrence, Mercer.

ferred from the Eastern to the Middle or Western The term in the Middle District shall continue

Districts. two weeks.

This order shall be certified by the prothonoThe term in the Western District shall con

tary of the Middle District to the respective tinue seven weeks.

prothonotaries of the Eastern and Western Dis. The term in the Eastern District shall com-tricts. And this order sball be published for four mence on the first Monday of January and shall weeks in the PITTSBURGH LEGAL JOURNAL, continue until the commencement of the term

at the expense of the county of Allegheny; four

weeks in the Legal Intelligencer and Weekly for the Middle District.

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 For the first Monday of the term the counties Harrisburg Patriot, at the expense of the county of Beaver, Clarion, Forest, Greene, Jefferson, of Da

of Dauphin.

PER CURIAM. Vepango and Westmoreland.

ULYSSES MERCUR, For the second Monday of the term for the

Chief Justice, counties of Armstrong, Cambria, Lawrence and

I, William Pearson, Prothonotary of the SuMercer.

preme 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.

rect copy of the order of the said court made For the fourth Monday of the term the county

June 1, 1883. of Allegheny, and four weeks of the term, if

In testimony whereof, I have hereunto affixed

my hand and the seal of the said court, at necessary, are assigned for the hearing of cases

Harrisburg, this 2d day of June, A. D. 1883. for the county of Allegheny.

rel

WILLIAM PEARSON, In the Eastern District the return day for the

Prothonotary

SEAL

Pittsburgh Legal Bournal.

Supreme Court, Penn'a.

whether there is such preponderating evidence

and also what degree of mental unsoundness has ESTABLISHED 1853.

been shown. *** In the light of this testiE. Y. BRECK, : : : : Editor. mony and the other evidence in the case, was N. S., Vol. XIII. I

the killing, beyond a reasonable doubt, deliber0, S., Vol. XXX. }

No. 44.

ate and premeditated ?'') PITTSBURGH, PA., JUNE 13, 1883.

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 GEORGE JONES v. COMMONWEALTH.

guilty of more than murder in the second de

gree, but this you must find from the evidence It is not error to instruct a jury that“if you find that the upon deliberate scrutiny. defendant intentionally fired a pistol ball into the body of the deceased, and thus inflicted a wound which

For plaintiff in error, Geo. Elphinstone, Esq. caused death, malice and a design to kill are to be pre

Contra, John S. Robb, District Attorney, and sumed trom such use of the weapon."

H. H. McCormick, Esq. Sobriety and sanity must be regarded as the normal condition of men, and when drunkenness or insanity is set

PER CURIAM. Filed May 21, 1883. up as an excuse for crime or in mitigation of it, the

Notwithstanding the able argument of the proof necessary for its establishment must not only be

counsel for the plaintiff in error we have failed deliberately scrutinized, but also fairly preponderate in form of the proposed hypothesis.

to discover any error in the rulings of the court

below. It was certainly not a departure from Error to the Court of Oyer and Terminer of

the well settled rules of law to say to the jury Allegheny county. Jones was convicted of murder of the first

that sobriety and sanity must be regarded as the

normal condition of men, and that when dunkdegree.

en bess or insanity is set up as an excuse for The assignments of error were addressed to

crime or in mitigation of it, the proof necessary the following portions of the charge: 1st. If you find that the defendant intention

for its establishment must not only be deliberally fired a pistol ball into the body of the de

ately scrutinized, but also fairly preponderate ceased, and thus inflicted a wound which caused

in favor of the proposed hypothesis. his death, malice and a design to kill are, as we

The judgment of the court below is affirmed,

and it is ordered that the record be returned for have seen, to be presumed from such use of the

the purposes of execution. weapon. 2d. The defense has offered evidence tending

DEMSTER v. ADAMS. to show that the defendant was in boyhood deficient in memory and weak in intellect, and

John Adams by his will devised his real estate to his it is claimed that this mental condition con

wife for life and directed that after her death it.should tinued and was such as to prevent him on the

be sold and the proceeds divided among his children, 4th of April last from forming the deliberate and then provided as follows: “It is also my will that and premeditated intent to take life, and to

no one of the husbands or wives of the aforesaid chil

dren shall have any interest in or control over the rebut the presumption arising from the use of a

property hereby bequeathed, but that the shares of deadly weapon, and thus to at least reduce the

my said children shall belong to them separately and grade of his crime to murder in the second de exclusively, whose receipts therefor shall be deemed gree. Soundness of mind such as renders men

and taken as a full discharge to my executors.” At the

time of testator's death he had two married daughters. responsible for their crimes being the normal

After the death of testator's wife, the children by writ. condition of men and its absence a defense set ing, in which the husbands of the two married daughup to relieve a defendant, in part or in whole, ters joined, agreed to accept the land as real estate, and of such responsibility, the burden rests upon

afterwards partition was made and purparts awarded

to each. Held, that under this will the interests of the the defendant of proving such unsoundness of

married daughters were separate use trust, and that mind. The evidence of this need be only satis upon the death of the mother the interest vested in factory and the conclusion such as fairly results them under the provisions of the will. While it is true from the evidence. It need not be beyond

that the married women could not dispose of or incum

ber their estate because of the trust, yet it does not foldoubt, but must flow fairly from a preponder

low that they may not exercise a power of election ance of the evidence. The creation of a mere which the law recognizes to exist in ordinary legatees doubt in your minds upon the subject will not to take the land itself instead of its product when sold. be enough.

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 Ninth.--It is my will that my said wife, in December 10, 1881, agreed to convey in fee-sim- her own discretion, as to payment or non-payple, clear of all incumbrances, to Alexander ment of any money placed in her hands in Dempster for the consideration of $6,000, to be reference to the share of my son Albert, and in paid upon the delivery of the deed. Mr. Demp- the event of his death it is my will that his ster refused to accept the deed tendered and pay share shall go to his brothers and sisters and the consideration agreed upon, for the reason not to his present wife or her children." that Mr. Adams could not make a good title to | None of the decedent's property was sold durthe land.

ing the life of his wife, who died in 1875. After Upon suit being brought, the defendant, A. bis wife's death all of his children, with their Dempster, filed an affidavit of defense setting husbands and wives, agreed by deed that they forth the defects in the title and alleging the would take the property devised to them as land existence of incumbrances, which affidavit the and not as money, and tbat the executors should court below, upon argument, held to be insuffi- not make any sale of the land. After this a parcient and entered judgment for the plaintiff be-tition of the lands was had among the several low, from which judgment the defendant below children and the tract of land described in the has taken this writ of error.

agreement sued upon was allotted, inter alia, to The facts of the case as set forth in the affida- | Albert R. Adams. After the final decree in vits of claim and defense are as follows:

partition, in January, 1882, all the brothers and In 1872, John Adams, the father of Albert R. sisters of Albert Adams, with their husbands Adams, plaintiff below, died seized in fee of a and wives, executed and delivered to him a farm in Wilkins township, Allegheny county, deed of quit-claim for all their interest in the of about eighty acres, which included the tract lands allotted to him in the partition. described in the agreement sued upon. At his Several judgments have been obtained against death he left a widow and seven children, in- | Albert R. Adams and remain open and unsatiscluding the plaintiff below. At the date of fied liens against him on the records, not, howhis death three of his children were married ever, equaling in the aggregate the amount of women, two of whom still remain so. By his the purchase money agreed to be paid to him will, proved December 28, 1872, he devised all by the plaintiff in error. his lands in Allegheny county to his wife Eliza One objection of the plaintiff in error to the during her natural life, and directed that upon title is that by the will of John Adams there her death they should be sold by his executors, I was a trust created for the separate use of his and the proceeds should be divided equally married daughters, and that they, either with among his seven children subject to the con- / or without the consent of their husbands, had ditions thereinafter stated. He then in the no power to make an election to change the seventh, eighth and ninth clauses of his will property devised to them from money to land, provided as follows, viz:

and that two of them being married women "Seventh.-It is my will that should any one from the death of the decedent to the present of the children above named die without issue, time, and so powerless to elect, the agreement the share of such child shall go to and be vested of the other children was void, and the title to in his or her surviving brothers or sisters. It the land never vested in them, but remained is also my will that no one of the husbands or in the executors to be sold as directed by the wives of the aforesaid children shall have any | will. interest in or control over the property hereby! Another objection is that at most only a lifebequeathed, but that the shares of my said chil- l estate was given to Albert R. Adams, with redren shall belong to them separately and exclu- mainder to his surviving brothers and sisters, sively, whose receipts therefor shall be deemed and that a trust for the separate use of his marand taken as a full discharge to my executors." ried sisters having been created by the will

"Eighth.-It is my will and desire that the they were incompetent to surrender or dispose present wife of Albert, or her children born or in any way of their reversionary interests, and to be born, shall inherit no part of my property, their quit-claim deed to him was invalid. and should any sale of land be made by my Upon motion the court entered judgment in executors under the provisions of this will, dur- favor of the plaintiff for $5,988 for want of a ing the lifetime of my wife, it is my will that | sufficient affidavit of defense.

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