FRANK GUNNISON.

A Word of Appreciation by Henry E. Fish, at the Request of the Editor

Honorable Frank Gunnison, President Judge of the courts of this county from January 1, 1887, to January 1, 1897, died on April 23rd, 1919, in the seventy-first year of his age.

He was born, lived and died in this city. His father was one of the earlier leaders of the Bar of this district during the period when the constitution and laws of the state were being formulated and construed, and when precedents were being made, instead of simply followed; when the courts were rendering those great decisions which are "the peaks and promontories, the landmarks and the beacons of the law." Judge Gunnison was born into this higher circle of the profession, and was an heir to its best traditions.

He received his training in the Erie Academy, the University of Michigan, and the Harvard Law School. Upon his admission to the Bar, he began a busy professional career which continued almost to the hour of his death. His career as a lawyer and a judge covered fifty years of continuous work. The results of that half-century of labor, which appear in permanent form upon the records of this and neighboring counties, and of the Federal and Appellate Courts, are a monument to his industry and learning of which his family and his profession may be justly proud.

His methods of work were admirable. He never slighted anything; he never worried; he never appeared to hurry; he never became angry or even impatient. He was the best and longest of listeners. His well-trained mind and strong common sense quickly grasped the essential facts of apparently complicated matters, and accurately applied the rules of law, reaching decisions which were seldom overturned. He commanded the respect of the public and the courts, not only because of the excellence of his work, but because of his high standards of conduct, his refinement of character, his charming personality, and his spirit of helpfulness to all with whom he came in contact. He had an ever present sense of humor which the most formal occasion could not suppress, and which lightened the labors of his associates and of every tribunal over which he presided or before which he appeared.

He always felt the deepest interest in the character and standards of the Bar. When on the Bench he regarded the lawyers as co-workers with the

court in the administration of justice; and to his judicial temper, his patience, his courtesy, his spirit of co-operation, is largely due that cordial relationship, that mutual confidence and respect, which exist between the members of this Bar and between the Bar and the Court, and which distinguish this county in this regard over almost every other in the Commonwealth.

But few of the associates of his youth now survive him, so rapidly does the personnel of the Bar change with the passing of the years; but a generation of practitioners who came to the Bar while he was upon the Bench and since, remember with gratitude his kindness and assistance in their studies for admission and in their first professonal efforts.

He was a wise and safe counsellor; no lawyer was ever truer to the interests of his clients. He combined unusual business judgment and experience with profound knowledge of the law. He was not a lover of litigation and did not hasten to advise it; but when he felt that his client's rights had been violated, he seldom ceased his efforts to obtain redress until after the decision of the Court of last resort.

He was interested in public affairs, in the problems of society and government; a student of legislation and of history; and his wide reading was supplemented by extensive travel in his own country and in foreign lands. He was one of the most loyal of Americans; a large part of his time was given freely to the activities of the war, even when his health was such as to make such efforts inadvisable; and the last hours which he spent at his office before his fatal illness overtook him were devoted to this work.

The Bar has lost many members in recent years whose places seem to us to be yet unfilled; but none whose place will be harder to fill than that of Judge Gunnison.

SZYMANSKI VS. MODZELEWSKI.

Practice Judgments-Breach of Covenants in Bond-Scire Facias necessary before Fieri Facias issues.

Where judgment is entered upon a bond when there has been no default in the payment of money, but there has been a breach of a covenant which brings the whole amount of the bond due and payable forthwith, it is necessary for a Scire Facias to be issued before a Fieri Facias can be issued.

Rule to Open Judgment, No. 323 November Term, 1918, C. P. Erie County.

M. C. Cornell for plaintiff.
Henry Baur for defendant.

ROSSITER, P. J., May 12, 1919.—The defendants petitioned the Court to stay proceedings on a fieri facias issued on a judgment which was entered on a bond containing a power of attorney to confess the same. The principal debt secured by the bond was not due until August 27th, 1923. The bond, however, contained this provision-"provided that if the said obligors shall dissipate and fail to conserve the personal property on the farm described in the accompanying mortgage before the amount secured thereby is paid, then the full amount of this bond shall become due and collectible forthwith without notice, at the option of the obligees." The plaintiff on December 23rd, 1918, entered the judgment on a Narr. in Assumpsit, and set forth in the Narr. that defendants had dissipated and failed to conserve the personal property, etc., and on the same day issued a Fieri Facias which was returned as to personalty "nulla bona," and they now seek to sell the real estate on said Fieri Facias. The contention of the defendant is that while the entry of the judgment was authorized by the warrant of attorney in the bond, that they have a right to their day in Court to be heard as to the proviso, in other words, that before the Fieri Facias could issue, that a Scire Facias was necessary, through which to ascertain whether or not the condition of the covenant as to the conservation of the personal property had been violated, and in this contention we concur.

The rule to show cause granted May 1, 1919, is therefore, now May 12th, 1919, made absolute.

HAND V. PENNA. R. R. CO.

Pleading Affidavit of defence-Not sufficient when material information in possession of defendant is not alleged.

Plaintiff shipped furniture over defendant's road, stating on the bill of lading that the value was not in excess of ten dollars per hundred pounds, which goods were lost in transit. In an action to recover the value of the furniture neither the statement of claim nor the affidavit of defence showed the weight of the goods, it being admitted that the bill of lading was in the possession of defendant. Held, that plaintiff was entitled to recover the value not in excess of ten dollars per hundred pounds, and, the court not being able to determine the weight of the shipment, the affidavit of defence is insufficient.

Rule for judgment for want of a sufficient affidavit of defence. No. 269 May Term, 1918, C. P. Erie County.

C. P. Hewes for plaintiff.

S. Y. Rossiter for defendant.

WHITTELSEY, J., May 5, 1919. The plaintiff's claim is for the value of certain furniture which was shipped by the plaintiff over the lines of the defendant from Philadelphia, Pennsylvania, to Erie, Pennsylvania, of the value of one hundred forty-eight ($148) dollars, which has been lost in transit.

In the affidavit of defence the defendant does not deny his liability for the goods lost in transit. but denies his liability to pay the plaintiff the amount of his claim, and avers "that the articles were shipped under a uniform bill of lading as filed with the Interstate Commerce Commission and the Public Service Commission of Pennsylvania, signed by its shipping agent, at a rate depending and conditioned upon the value of the goods shipped; that the plaintiff by his agent, for the purpose of securing the rate upon which the said goods were shipped, stated on its said bill of lading that the value of this shipment does not exceed ten dollars ($10) per hundred pounds, and is stated for the purpose of enabling the carrier to apply the proper published rates." That defendant shipped said goods by and under said rate, and admits liability to the extent of the valuation therein declared, and denies all liability in excess thereof.

Hand v. Penna R. R. Co.

It is well settled in Pennsylvania that a common carrier may limit the amount of its liability by special contract.

Pennsylvania R. R. vs. Reardon, 119 Pa., page 577.
Fairchild vs. F. W. & B. R. R., 148 Pa., page 527.

U. S. Horseshoe Co. vs. American Exp., 250 Pa., page 527.
Hart vs. Railroad, 112 U. S., page 331.

Neither the plaintiff's statement of claim nor the affidavit of defence show the weight of the goods. We are therefore unable by an examination of the papers to determine whether or not the amount claimed in plaintiff's statement is in excess of the value stated in the bill of lading; nor is the bill of lading attached to the affidavit of defence or plaintiff's statement as required by the Act of Assembly. It is admitted to be in the possession of the defendant, and a copy of it should have been attached to the affidavit of defence.

In our opinion, the plaintiff is entitled to recover the value of the said goods not in excess of ten dollars ($10) per hundred pounds, and as to any value in excess of ten dollars ($10) per hundred pounds, the defendant has a good defence; but we are unable to determine from an examination of the papers what was the weight of the goods shipped, and in our opinion, that information was in the possession of the defendant, and it was incumbent upon him to allege it in his affidavit of defence.

In our opinion the affidavit of defence is not sufficient to prevent judgment.

ORDER.

And now, May 5, 1919, the rule to show cause why judgment should not be entered for want of a sufficient affidavit of defence is made absolute, the amount to be liquidated by the prothonotary.