SUPREME COURT OF PENNSYLVANIA.

JOHN W. SEAMAN, Defendant Below,

v.

THE COMMONWEALTH OF PENNSYLVANIA.

October 17, 1881.

The owner of a store who permits his clerk to sell for him on the Lord's day, commonly called Sunday, as well as the clerk, is liable to the penalty imposed by the Act of Assembly of April 22, 1794, and its supplements.

Certiorari to the Court of Common Pleas, No. 2, of Allegheny county.

This was a summary conviction had before Alderman John Allen, of the Nineteenth ward, Pittsburgh, under the Act of Assembly of April 22, 1794, and its supplement of April 26, 1855.

The evidence showed that the place of business was open and a clerk was selling. The defendant, Seaman, was present part of the time.

The alderman adjudged the defendant guilty and imposed the penalty provided, thereupon defendant issued a certiorari out of the Court of Common Pleas, No. 2. After argument in that court, Judge White, on March 5, 1881, affirmed the judgment of the alderman, filing the following opinion:

66

We reversed the judgment in No. 260 because there was no evidence that Seaman authorized his clerk to open his store on the Sabbath referred to, in that case, or knew that the store was open. But in this case the evidence was, that he was present in the store on this Sabbath. It is incredible that the clerk was selling on this day without his knowledge and authority; he was there present, when the store was open to the public, thus carrying on his wordly business, besides he had been prosecuted only a few days before that (in No. 260) for selling on Sunday. It is very clear he was there carrying on his business, knowing he was violating the law. The evidence was amply sufficient to prove that he was carrying on a worldly business, prohibited by the law."

On the 23d of March, 1881, Seaman appealed to the supreme court and obtained a writ of certiorari.

On the argument the following cases were cited by appellant's attorneys: Commonwealth v. Nesbit, 10 Casey 403; Johnston v. Commonwealth, 10 Harris, 106; Commonwealth v. Jeandell, 2 Grant 510; Commonwealth ex rel. Barr v. Naylor, 10 Casey 86; Commonwealth v. Cane, 2 Pars. It was argued that Seaman could not be convicted for an act done by his agent, even though done by his knowledge and consent.

The appellee did not furnish a paper-book, but filed a motion to quash the appeal, assigning as a reason therefor that appellant's remedy was by writ of error and not by appeal. In support of this view it was argued that after the proceedings were removed from before the alderman, they were then "according to the course of common law," and the remedy was error: Commonwealth v. Betts, 26 P. F. S., 471, and Same v. Burkhart, 12 Harris 133, and other authorities

were cited in support of this motion and also as bearing upon the case on its merits. No disposition was made of the motion to quash.

PER CURIAM.

The offense is sufficiently charged in the information. The finding of facts by the alderman is clear, full and specific, and brings the case within the statute. The evidence showed the place of business was kept open on Sunday and an employee was selling cigars. The plaintiff in error was present a part of the day and the conclusion is fully justified that the business was carried on with his knowledge and by his authority. The principal, as well as the clerk, was liable under the statute.

Judgment affirmed.

Brokers-Sale-Evidence.-In an action against brokers for a wrongful sale of stocks, where the answer simply sets up a former agreement by which defendant was authorized, in case plaintiff failed to keep his margins good, to sell his stock without notice or demand, and also an instruction by plaintiff to sell when the margin was exhausted, and that it was exhausted at the time of the sale, evidence of unsuccessful efforts to notify plaintiff is inadmissible.

Evidence showing that the lowest price for which this stock sold in the market on the day it was claimed this sale was made was greater than that for which plaintiff's stock was sold would bear on the question of a bona fide sale, and is not so irrelevant as to render its admission

error.

The agreement set forth in the answer was made in 1870, and the transaction in relation to the stock in suit was entered upon in 1873. All prior transactions had been closed. The question whether this transaction was made under that agreement was submitted to the jury, who found for plaintiff. Held, That the verdict established that the agreement of 1870 did not apply to this transaction.

RICH V. HERR. October 11, 1881.

Practice. In an action to cancel a satisfaction of a mortgage, where the answer.alleged that a new mortgage was given for it and that the original mortgage was void for usury, the evidence was conflicting, but defendant's evidence was sufficient, if believed, to sustain the defense. Held, That this court was concluded by the findings of the trial judge in favor of defendant, based upon such evidence.

In re ACCOUNTING OF DEAN, ASSIGNEE. October 11, 1881.

Assignment for Creditors.-An assignee for the benefit of creditors has no right to carry on the business of his assignor, and the trust estate cannot be charged with a loss incurred by him therein.

The assignee is bound to exercise the diligence required of a paid agent or of a provident owner, and is liable for ordinary negligence or the want of that degree of diligence which persons of ordinary prudence are accustomed to use about their own business and affairs.

An assignee is entitled only to commissions on the amount received by him on the sale of the property.

SCHRAUTH V. THE DRY DOCK SAVINGS BANK. October 11, 1881.

Payment. Supplemetary proceedings were instituted on a judgment against plaintiff's husband and an order procured for the examination of defendant's president or treasurer. Orders were also procured for the examination of plaintiff and her husband. No attempt was made to show that plaintiff had in her possession any of her husband's property. On the report of the referee, an order was made requiring defendant to pay to the judgment creditor the amount of a deposit made with it by plaintiff, and such payment was made. In an action to recover the amount of such deposit it did not appear that plaintiff had notice of the application for the order, was heard, or was in any way a party thereto. Held, That defendant was not protected in its pay; ment by the order; that it should have resisted payment or in some way have had plaintiff made a party to the proceeding; that plaintiff had had no day in court, and was not bound by the proceedings, although she had made an unsuccessful motion to set them aside.

track has a right to assume that the company will do its duty and ring a bell, he is not thereby relieved from vigilantly using his senses to avoid danger. The court left to the jury the question whether or not the instinct of self-preservation will prevent a man from attempting to cross a railroad if he sees that an engine is bound to reach the crossing before he can pass. Held, No

error.

HOLSAPPLE. THE ROME, W. & O. R. R. Co. October 11, 1881.

Common Carrier-Stock Release.-A stock release which provides for the release of the carrier from liability originating in the viciousness or weakness of the animals, or from delays, or in corsequence of heat, suffocation or being crowded, or on account of being injured, whether such injury shall be caused by burning of hay, straw or any otherwise, and for any damage occasioned other material used for feeding said animals or thereby, does not release the carrier from the consequences of his own negligence.

SHIPPLY V. THE PEOPLE. October 11, 1881.

Larceny-Sale.-One S. agreed to buy certain goods of one H. and directed them to be sent to him C. O. D., saying he would send an expressman. One R. called and said he was an expressman, and H. delivered the goods to him with a bill and instructions to collect the money. R. returned with a check which proved to be worthless, and S. refused either to pay or return the goods. It appeared that R. was in the employ of S. Held, That there was no sale and that S. was guilty of larceny.

In a prosecution for larceny, evidence of a similar transaction by the accused with other parties at about the same time is admissible upon the question of intent.

POTTS v. MAYER, IMPL'D. October 11, 1881. Evidence.-On the trial of an action on a note made by the firm of H. & M., defendant had read in his behalf the testimony of his deceased partner, M., given on a former trial, in which he stated that the endorser paid nothing for the note, and added that he (H.) paid for it to defendant. Plaintiff then read the cross-examination of H., in which he stated that defendant was indebted to him on a private account, for which the note was given and received. Held, That plaintiff having, in his own behalf, put in evidence important declarations of the deceased, defendant, having asked no question which involved his personal dealings with H., had a right to give evidence contradicting such declarations.

BECKER V. HALLGARTEN ET AL. October 4, 1881. in Berlin

firm

Stoppage in Transitu.-A sold certain goods to another firm and, by direction of the vendees, shipped them to the plaintiff at Bremen. The vendees there

after procured a loan from one G., on security of these goods, and gave him an order on plaintiff therefor. By direction of G. plaintiff shipped these goods to defendants, and took bills of lading in his own name as shipper, one of which he sent to defendants, and the other to the vendees, who sent it to G. The vendors afterwards assigned their claim against the vendees to plaintiff, who demanded the goods of defendants. In an action for conversion it was claimed it was found that plaintiff had, in behalf of the vendors, stopped the goods in transit. Held, Error: that plaintiff was at no time the agent of the vendors; that the transit was over when the goods arrived at Bremen, and that the transaction between the vendees and G. was effectual to pass the property to him, and defeated the vendors' right of stoppage if it otherwise existed.

The German law, which provides that a transfer of the legal title to the goods covered by a bill of lading can only be made by the written endorsement of the consignee, applies only when the bill of lading is taken in the name of the vendee, or of some person through whom the party claiming its benefit must make title.

READ V. THE PEOPLE. October 11. 1881. Lotteries-Indictment.-An indictment under the lottery law which charges that the accused "did unlawfully and knowingly offer to vend and to sell and to barter and to furnish and supply, and to procure and to cause to be furnished and procured to and for" the complainant a lottery ticket, does not charge a sale but an offer to procure and sell, and does not charge two offenses. Such offer is a single act, although it embraces several things, each of which were illegal.

ILLINOIS.

(Supreme Court.)

WILLIAM B. HODGE, JR., v. JOHN LINN.-Opinion by SHELDON, J., reversing and remanding. Filed Sept. 1881.

1. Election-Irregularities in conducting are not fatal.— Mere irregularities in conducting an election and counting the votes not proceeding from any wrongful intent, which deprives no legal voter of his vote, and does not change the result, will not vitiate the election, so as to justify the rejection of the entire poll of the town or precinct.

2. The failure to number the ballots cast at an election, and to count the votes as required by the statute, and to string the ballots on a thread or twine in the order of their reading, and the allowance of persons not judges or clerks of the election to assist in counting the votes, and the presence of persons in the room during the count, not challengers or officers, when nothing appears to show any injurious effect, or that the votes were not truly counted, will not justify the court on a contest of the election to exclude the entire poll and vote of a town as fraudulent and void.

MORRIS KALLENBACH, JR., v. ELIADA DICKINSON.—Opinion by SCHOLFIELD, J., affirming. Filed Sept. 30, 1881.

1. Limitation-Payment by one joint debtor does not remove the bar as to other not assenting.-Payments by the

principal on a promissory note upon the same, within sixteen years before suit brought, not expressly authorized by the surety before being made, nor assented to by him afterwards, do not afford sufficient evidence of a new promise by the surety to remove the bar of the Statute of Limitations as to him.

2. Same-Effect of new promise.-A parol promise reviving a debt barred by the statute, has the same effect as payment under the statute. It revives or renews the debt, so that the period of limitations commences anew, to run from the date of the promise. In the case of a promissory note it operates as a new delivery of it.

3. Same-What necessary to make new promise available. To bind a party in this State to a new promise, there must exist the elements essential to a new contract, express or implied. There must be such circumstances as reasonably authorize an inference of an intention to waive the bar of the statute. A party, to be bound to a new promise by the fact of payment, must have an affirmative intention in making the payment to revive the debt.

4. One joint debtor cannot bind his co-debtor by a payment before the bar of the Statute is complete, so as to remove the bar, any more than by a payment after the debt is barred.

5. Agency-Power of joint debtor to bind all by his admissions.-One joint debtor may affect his co-debtor by making admissions that the debt has not been paid or discharged, but he has no power growing out of his relation to bind the other to a new contract, although it may be in regard to the old debt.

ELI P. WILLIAMS v. ISAAC M. JONES ET UX.-Opinion by DICKEY, J., reversing and remanding. Filed Sept. 1881.

1. Homestead-When debt is for purchase money.Where the assigneo of notes given for a part of the purchase price of land by an arrangement with the principal maker, who was the purchaser of the land, surrenders the notes and takes from him in lieu thereof the note of the purchaser alone, with a trust deed on the land to secure the note, the debt will be unchanged, and will remain a debt incurred for the purchase money.

2. Same-Exception in statute is not confined to vendor's lien.-The object of the limitation of the homestead exemption to debts not incurred for the purchase money is not merely to protect the vendor's lien, and a waiver of the lien will lose the protection of the statute of a liability for the purchase money.

SUPREME COURT OF OHIO.

JANUARY TERM, 1881.

Hon. JOHN W. OKEY, Chief Justice; Hon. WILLIAM WHITE, Hon. W. W. JOHNSON, Hon. GEO. W. McILVAINE, Hon. NICHOLAS LONGWORTH, Judges.

TUESDAY, November 22, 1881.

GENERAL DOCKET.

No. 144. Frederick Bacon v. Titus Daniels. Error to the District Court of Erie County. LONGWORTH, J.

1. Where a contract, not required by the Statute of Frauds to be in writing, has been reduced to writing and signed by one contracting party only, it is error to treat such contract as of no validity for the reason that it is not signed by the party to be charged.

2. An agreement between the parties to a contract and a third person, whereby one party is released from the o'ligations of the contract and the third person substituted in his stead, is a novation, and requires no further consideration than such release and substitution. Judgment reversed and cause remanded.

164. David Wert v. T. H. B. Clutter. Error to the District Court of Crawford County. MOILVAINE, J. Held:

1. Under the Act of May 5, 1868 (65 Ohio L. 146), to

3. It is immateriai whether the services rendered during such period of practice were gratuitous or for compensation.

Judgment affirmed.

Okey, C. J. and White, J., dissented.

137. Mary Fanning v. The Hibernia Insurance Co. Error to the District Court of Cuyahoga County. JOHNSON, J. Held:

1. To entitle a person to become a member of a corporation, which is being organized under "An act to regulate insurance companies" (S. & S. 205), his contract to take shares therein, must be in writing, and be mutually binding on both parties.

2. A verbal promise to take shares, while the stock is being subscribed which is necessary to authorize an organization, does not constitute the promisor a stockholder or member of such corporation, and a promise to pay for such shares is without a sufficient consideration to support it. A recovery on such promise to pay cannot be had, in the absence of facts showing that the promisor is estopped from setting up such want of consideration.

Judgment reversed.

385. Mary Fanning v. The Hibernia Insurance Co. Error to the District Court of Cuyahoga County. JOHNSON, J. Held:

1. The plaintiff may, in reply to new matter set up in the answer by way of defense, allege any new matter, not inconsistent with the petition, which in law constitutes an answer to the new matter relied on by the defendant.

2. If the plaintiff relies on a record of a former adjudication of the same matter set up in an answer, as an estoppel, he should plead such foriner judgment. It is not admissible in evidence under a general or special denial of the new matter contained in the answer. Judgment reversed.

156. Lucinda Francis Piatt v. David Sinton et al. Error to the Superior Court of Cincinnati. WHITE, J. Held:

1. A devise by a testator of all of his property of every description, whether real, personal or mixed, after paying all his just debts, is a devise of the fee, without the aid of a statute declaring such to be the effect of the devise.

2. Where there is a devise in fee, with a provision in the will that in case the devisee should die without leaving any legitimate heirs of her body, then the estate should go over to persons named, the fee taken by the first devisee is determinable only on the contingency of her dying without leaving such heirs living at the time of her death. Niles v. Gray (12 Ohio S. 320), followed. Judgment affirmed.

163. George W. Hamet v. Orlando T. Letcher and othError to the District Court of Williams County. OKEY, C. J.

ers.

H., the owner of chattels, relying on the representations of R. that he was the agent of L., agreed to sell the same to L. on credit, and H., in the belief that R. was such agent, delivered the chattels to him, when in fact he was not such agent, nor had he authority to purchase for L., as he well knew: Held, That the property in the chattels did not pass from H., and that L., who bought the chattels of R. and converted them to his own use, without knowledge of the fraud, was liable to H. for their value; and the fact that R., at the time the chattels were delivered to him, paid H. part of the price agreed on, will make no difference, except as to the amount of recovery against L.

Judgment reversed, and judgment in favor of Hamet for $137.28, with interest from June 11. 1877, and costs.

148. M. T. Hornbuckle and others v. The State of Ohio for the use of Lewis Smith. Error to the District Court of Lawrence County.

BY THE COURT.

A justice of the peace has no jurisdiction of an action on the bond of a constable.

Judgment reversed and cause dismissed.

147. Lyman E. Scovill v. Samuel W. Stage et al. Error to the District Court of Pickaway County. Judgment reversed for error in dismissing the appeal, and cause remanded to the District Court for further proceedings. There will be no further report.

149. John G. Smith v. Steamer, "Young Reindeer." Error to the District Court of Sandusky County. Passed under rule 4 for proof of service of brief and printed record.

152. William Brown v. F. A. Kinery. Error to the District Court of Lawrence County. Cause dismissed for want of preparation.

153. William B. Millikin, administrator &c. v. A. J. B. Welliver, administrator &c. Error to the District Court of Butler County. Dismissed for want of preparation.

155. English, Miller & Co. v. First National Bank of Athens. Error to the District Court of Athens County. Dismissed for want of preparation.

159. George W. Castlen v. Thomas Roberts et al. Error to the District Court of Clermont County. Dismissed for want of preparation.

160. Jonathan Hamilton v. Merrill & Shepherd, administrators et al. Error to the District Court of Gallia County. Passed for proof of service of printed record and plaintiff's printed brief on defendants, according to rule 4.

MOTION DOCKET.

No. 200. David H. Bailey v.. George D. H. Glass, administrator. Motion to dismiss No. 957 on the General Docket for want of printed record. Motion overruled and leave granted to file printed record within 60 days.

201. W. W. Moore Jr. v. John B. Moore. Motion to dismiss No. 1081, on the General Docket, for want of printing &c. Motion granted and counter motion for leave to to fille printed record overruled.

202. James C. Elliott et al. v. S. B. Berry, Auditor &c. Motion to take cause No. 1220, on the General Docket, out of order. Motion granted.

203. Emanuel O. Craighead v. Elizabeth Huston et al. Motion for rehearing of cause No. 115, on the General Docket, in which judgment below was affirmed. Motion overruled. The judgment below was affirmed on the ground that errors committed in the court below were not prejudicial to plaintiff in error.

204. The State ex rel. The State Treasurer v. Luke A. Staley, Treasurer of Hamilton County. Motion for an ålternative writ of mandamus. Motion allowed.

205. J. K. White et al. v. John T. Deweese et al. Motion to dismiss No. 968, on the General Docket, for want of compliance with former order to print. Motion granted.

206. Henry Tilden, executor et al. v. James F. Barker. Mtoion to take cause No. 993, on the General Docket, out of its order. Motion overruled.

207. Sophia P. Ford et al. v. Jesse Hildebrant. Motion in cause No. 1223, on the General Docket, to dispense with printing record. Motion granted, and the case to be heard with the case of Ford et al. v. Johnson, No. 1222 on the General Docket.

SUPREME COURT RECORD.

[New cases filed since our last report, up to Nov. 22, 1881.]

No. 1221. James Mairs v. Jerusha Mairs. Error to the District Court of Harrison County. J. F. Daton for plaintiff.

1222. Sophia P. Ford et al. v. Alfred Johnson et al. Error to the District Court of Clinton County. A. Harris and Slone & Walker for plaintiffs; LeRoy Pope for defendants.

1223. Sophia P. Ford et al. v. Jesse Hildebrant. Error to the District Court of Clinton County. A. Harris and Slone & Walker for plaintiffs; A. D. Diball for defendant.

1224. Ohio ex rel. Joseph Turney Treasurer &c. v. Luke A. Staley Treasurer &c. Mandamus. Hon. George K. Nash for the State.

Ohio Law Journal.

COLUMBUS, OHIO, : :

:

EX-JUDGE BOYNTON of the Supreme Court, we are informed will resume the practice of the law at Cleveland, where he now resides.

A LAWYER by the name of Clendenning has just been arrested at Celina, Ohio, on a charge of blackmail. We trust the accused may be able fully to vindicate himself of such a charge, if not, his name should be forthwith wiped off the roll of attorneys, which it would disgrace.

THE Supreme Court made no report this week. The cases examined into and disposed of last week, will be embodied in the report of next Tuesday. The regular motion day was dispensed with last week, owing to the fact of it coming on Thanksgiving day. Judges White, Johnson, McIlvaine and Longworth, spent that day at their respective homes, leaving Chief Justice Okey, the only representative of the court in the city.

IMPORTANT DIVORCE DECISION.

The Court of Appeals, in the case of Van Voorhis et al., executors, against Brintnell, have just rendered a decision setting at rest the question adversely to the rulings of the General Terms of the Supreme Court in the First and Second Districts, and of the Superior Court in this city, whether a defendant, in a suit for absolute divorce, against whom a judgment has been rendered dissolving the marriage and prohibiting him or her from marrying again during the lifetime of the plaintiff, may, notwithstanding the prohibition, contract a valid marriage while the plaintiff is living, by going into another State for the purpose of entering into a marriage contract. The wife of Barker Van Voorhis obtained a judgment of divorce against him in April, 1872, the decree adjudging that it should not be lawful for him to marry again until the said Elizabeth Van Voorhis shall be actually dead. Subsequently, Elizabeth Van Voorhis still living, Barker Van Voorhis left New York, and in New Haven Conn., was married to Ida Schroeder. A daughter was the issue of this marriage. She was born in the State of New York., On February 27, 1880, Barker Van Voorhis died. The executors of his father's will declined to admit the child of Barker Van Voorhis, whose name was Rose, to a share in the trust allotted to her father, questioning her legitimacy. Judge Barnard, upon the trial, in the Second District, in April, 1880, found that Barker Van Voorhis and Ida Schroeder went to New Haven for the purpose

of

The General Term affirmed the judgment, but the Court of Appeals have directed a reversal and granted a new trial.-The Daily (N. Y.) Register.

SUPREME COURT OF OHIO.

CINCINNATI, SANDUSKY AND CLEVELAND RAILROAD COMPANY

V.

ELIZA COOK.

November 15, 1881.

1. The act of April 20, 1874 (71 Ohio L. 146), giving a penalty of $150.00, to the party aggrieved by a railroad corporation for overcharging for the transportation of passengers or property, is not in contravention of the constitution.

2. A petition under said act against a corporation for demanding and receiving excessive fare in the sale of a passenger ticket to a person desirous of travelling on its road between the points named on the ticket, is not bad, on demurrer, for want of an averment that the purchaser of the ticket was, in fact, transported on the ticket for which excessive fare was exacted.

3. A petition under said act is not bad for want of an averment that the excessive fare was paid by the plaintiff in the due course of business, although judgment was not rendered thereon until after said act was repealed by the act of March 30, 1875 (72 Ohio L. 143), saving only pending actions and causes of action under the repealed statute, where the excessive fare was paid in the due course of business and not for the purpose of obtaining the penalty.

4. Several causes of action for penalties under said act may be united in the same petition.

5. Where such action stands for judgment on the petition, it is not error to refuse to empannel a jury to assess damages.

Error to the District Court of Logan County.

The original action was brought on the 15th of August, 1874, in the Court of Common Pleas of Logan County, by the defendant in error, against the plaintiff in error, for overcharging passenger fare in violation of the Act of April 20, 1874, (71 Ohio Laws 146.)

The petition contained two causes of action. The first count charged that the defendant, on June 10, 1874, had demanded and received from the plaintiff, the sum of thirty-five cents for a passenger ticket on its railroad, from Bellefontaine to New Richland, a distance of 9 9-10 miles, over which portion of the defendant's road the plaintiff desired to be transported. The second count charged that the defendant, on the same day, had collected from plaintiff who was then a passenger on its cars, the sum of thirty-five cents for fare from New Richland to Bellefontaine, a distance of 9 9-10 miles. Prayer for judgment on each count for $150.00.

Defendant demurred to this petition on the ground, among others, that several causes of action were improperly joined, and to each count, that it did not state facts sufficient to constitute a cause of action. These demurrers