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somewhat extended business, which required money. To hold, as is claimed, that one who lends a married woman money, by discounting her note or otherwise, must see that she actually applies it to use in her business, would be going back to that state of limited rights of property and contract which it was the object of the married persons' property act of 1887 to put an end to. The auditor reports that her notes were discounted by the bank, and she received the money, but that "there is no evidence which proves directly what she did with the proceeds." It is not necessary that there should be. One who presents a money obligation of a married woman, since the act of 1887, has made out a prima facie case, which can only be defeated by showing that the contract is one of the kinds prohibited by that act. The presumption, even in case of a judgment, is that it is regular and valid. "So general is her power to contract now that her inability is the exception, rather than the rule." Koechling v. Henkel, 144 Pa. St. 215, 22 Atl. Rep. 808. "With the exception of such disabilities as are particularly specified in or contemplated by the provisions of the act, they [married women] are emancipated from their common-law disabilities, and authorized to incur contract liabilities, etc., as if they were femes sole." Adams V. Grey, 154 Pa. St. 258, 26 Atl. Rep. 423. And whether the money is necessary, or the obligation wisely incurred, for the object in view, is solely for her to decide. Milligan v. Phipps, 153 Pa. St. 208, 25 Atl. Rep. 1121.

He

The third assignment of error is to a question of fact, (the allowance of the claim of John Spotts,) and does not really raise the question argued under it, (the competency of Daniel Spotts as a witness.) There was, however, no error in admitting him. was merely surety for John Spotts for the money that was borrowed. He had no direct interest in the result of this litigation. The most that could be said was that in a certain contingency he would become a creditor of John.

That would not make him incompetent, even at common law. Dickson v. McGraw, 151 Pa. St. 98, 24 Atl. Rep. 1043.

Decree reversed, and record remitted for restatement of account in accordance with this opinion.

LOHR et ux. v. BOROUGH OF PHILIPSBURG.

(Supreme Court of Pennsylvania. July 19, 1893.) MUNICIPAL CORPORATIONS - DEFECTS IN STREETNOTICE TO OFFICER-EVIDENCE-INSTRUCTIONS.

1. In an action against a borough for injuries resulting from a defective sidewalk, notice of the defects cannot be brought home to defendant by evidence that the person who was chief burgess at the time of the accident had, before he was elected burgess, called the attention of the chief of police to such defects.

2. An instruction that a sidewalk such as that in question would last only a few years, and that it was the duty of the borough officers "to exercise proper supervision or make proper examination of this pavement, by going upon and testing it, to discover, if by the eye they could do so, whether the pavement was defective or not," holds the borough to too strict a rule of responsibility, and is erroneous.

Appeal from court of common pleas, Centre county; A. O. Furst, Judge.

Trespass by David Lohr and Isabella Lohr, his wife, against the borough of Philipsburg, for personal injuries received by said Isabella Lohr as a result of defects in a sidewalk. From a judgment for plaintiffs, defendant appeals. Reversed.

Daniel S. Keller, John G. Love, William Bryson, and Harry Keller, for appellant.

Orvis, Bower & Orvis and Spangler & Hewes, for appellees.

A municipal corporation is bound to take precautions to ascertain the condition of a sidewalk. City of Philadelphia v. Smith, (Pa. Sup.) 16 Atl. Rep. 493; Bradford City v. Downs, 126 Pa. St. 622, 17 Atl. Rep. 884; Vanderslice v. City of Philadelphia, 103 Pa. St. 102; Kibele v. City of Philadelphia, 105 Pa. St. 41; Rapho Tp. v. Moore, 68 Pa. St 404; City of Aurora v. Hillman, 90 Ill. 61

MITCHELL, J. The first assignment of error we are obliged to sustain. The general effect of Lytle's testimony was that Warfel said he had told the chief of police to notify Mrs. Long about her pavement in the fall of 1889, and yet it is conceded that Warfel was not elected burgess of defendant until 1890. Lytle did not attempt to explain this discrepancy, and the learned judge should either have struck out the testimony, as requested, or at least have called the jury's attention to it, and instructed them distinctly that notice or knowledge imputable to Warfel before he became burgess could not in any way bind the borough. Instead of so doing, however, he said, in refusing the motion to strike out, that such notice or knowledge in the fall of 1889 might "bear upon the question whether or not, as chief burgess, he knew," etc. This is contrary to the settled law. "It is only during the agency that the agent represents and stands in the shoes of the principal. Notice to him is then notice to his principal. Notice to him twenty-four hours before the relation commenced is no more notice than twenty-four hours after it ceased would be. Knowledge can be no better than direct, actual notice." Sharswood, J., in Houseman v. Association, 81 Pa. St. 256. In referring to Lytle's testimony the learned judge, in his charge, did not instruct the jury on this point, and hence they may well have supposed that, if Warfel knew of the defect in 1889, his knowledge would continue, and bind the borough, after he became burgess.

But the most important error in the case is embodied in the fifth assignment. The learned judge, calling the jury's attention to the testimony that a pavement of hemlock boards, such as this was, would not last, ordinarily, over four to six years, said that the chairman of the street committee and the chief of police (whose duty it was, by ordinance, to look after the sidewalks) were presumed to know this fact, and "it was their duty to exercise proper supervision or make proper examination of this pavement, by going upon and testing it, to discover, if by the eye they could do so, whether the pavement was defective or not." This was holding the borough to too stringent a rule of responsibility. It was in fact applying to it the measure of duty laid down for an employer, in not only furnishing safe tools to his workmen, but in knowing their liability to decay, and in replacing them at the proper time. Baker v. Railroad Co., 95 Pa. St. 211. But there is a clear distinction to be taken between the duties in the two cases. That of the master is primary and absolute,-to know and to do,-while that of the borough or of any municipality, as to sidewalks, is secondary and supplemental,-to see that the property owner makes and maintains a safe pavement; and its breach of duty is not in failing to do the work, but in failing to compel the owner to do it. It is entitled, therefore, to notice, actual or implied, of the existence of the defect. This is the settled rule, even as to defects in the street, where the duty to keep in repair is primary and mandatory. The charge of the learned judge would require the borough to know how long every pavement had been laid, and to keep informed of what repairs the owner had made upon it; in short, to seek for defects. The law only requires that it shall be vigilant to observe them when they become observable to an officer exercising reasonable supervision. The difference is not one of mere words, but one of great practical importance, for it is always easy to show after an accident how the defect might have been found if it had been sought for; and to tell a jury that it is the duty of the municipality to seek is to give them opportunity, which few hesitate to take, to make municipalities insurers against accidents of all kinds in the streets. In the recent case of Burns v. City of Bradford, 137 Pa. St. 361, 20 Atl. Rep. 997, our Brother McCollum said: "A municipal corporation is not an insurer against all defects in its highways, but it is answerable for negligence in the performance of its duties in the construction and care of them. For a defect arising in them without its fault or neglect, it is not liable, unless it has express notice, or the defect be so notorious as to be evident to all passers." It was accordingly held in that case that although "it is a fact well known to the inhabitants of all our municipalities that sidewalks are

liable, in the winter, to be thrown out of level by the action of the frost," yet the plaintiff, who was injured, very much in the same manner as the present plaintiff was, by the stringers of a plank walk being raised higher on one side than the other, could not recover without proof that the defect was observable by all passers. So, here, the proper instruction to the jury should be that the borough was bound to keep a reasonable supervision over the condition of its sidewalks, but it was not liable for negligence unless it had actual notice or knowledge of the defect complained of, or it was so plain to observation, and had existed so long a time, that officers exercising a reasonable supervision ought to have observed it. No case has been brought to our attention which holds any stricter rule than this. In Rapho Tp. v. Moore, 68 Pa. St. 404, it was held that when a bridge is old, and has stood as long as the timbers usually last, it is negligence to omit proper precaution to ascertain its true condition. But there the duty to maintain the bridge was primarily and absolutely on the township, and the same element runs through all the other cases cited by appellees. Judgment reversed, and venire de novo awarded.

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TOWN TRUSTEES-LIABILITY FOR NEGLIGENCE.

A town charter gave the town the control of streets in its limits. The trustees having charge of the streets purchased stone from a ledge near a highway, and erected a stone crusher to prepare the stone for use on the highway. Held, that where the horse of plaintiff was frightened by the stone crusher, which was located in part on the highway, and ran away, injuring plaintiff, the trustees were not liable therefor, they being in the exercise of official powers and duties.

Exceptions from Rutland county court; Ross, Chief Judge.

W.

Action on the case by Mary E. Bates for the negligence of the defendants E. Horner and others. Verdict for the defendants. The plaintiff excepts. Affirmed. The opinion states the case.

Geo. E. Lawrence and J. C. Baker, for plaintiff. Butler & Moloney, for defendants.

START, J. The plaintiff's evidence tended to show that, while she was riding in the village of Rutland, her horse became frightened and unmanageable by reason of the appearance and noise caused by the operation of a stone crusher, located partly on the land of one Engram, and partly within the boundaries of the highway, and a little beyond the village limits; that the horse, by reason of becoming so frightened and unmanageable, went down an embankment, overturned the carriage, and severely injured the plaintiff.

The plaintiff's evidence also tended to show that the stone crusher, as erected, located, and operated, was a public nuisance to travelers upon the highway, and that the defendants had to do with its location, erection, and operation on that occasion. The right to maintain and keep in repair the streets and highways in the territory embraced within the limits of the village of Rutland is given to the village by its charter, and the regular officers, elected by the village, having control of such maintenance and repair, are a president and eight trustees. The trustees are authorized by the charter to appoint a street commissioner, and, by the charter, it is made the duty of the street commissioner to superintend the construction and repair of streets, walks, culverts, sewers, and drains, subject to the authority and direction of the trustees. By an ordinance adopted by the village, it is made the duty of the trustees to appoint a street commissioner, who shall have in charge the building and repairing of all streets and sidewalks in the village, the purchasing of material, and procuring of labor, under the direction of the trustees; and it is provided that all highway money shall be expended by orders drawn in favor of the street commissioners. The defendants were, at the time of the injury complained of, trustees, and had been, with one other, appointed by the president, a street committee of the trustees. The trustees purchased stone to be crushed for use upon the streets and highways of the village, taken from the ledge where the crusher was set up and operated. It was conceded in argument that the trustees voted to locate the stone crusher at the ledge. The case of Bates v. Village of Rutland, 62 Vt. 178, 20 Atl. Rep. 278, was an action in which the plaintiff sought a recovery on account of the injury complained of in this case; and in that case it was held that the officers by whom the work was being prosecuted were, for this purpose, public officers, and that the village was not liable. The liability of public officers to individuals for negligence in the exercise of official powers and the performance of official duties is fully discussed in Daniels v. Hathaway, 65 Vt.

26 Atl. Rep. 970, and it is unnecessary to repeat what is there said. That case and the cases there cited are sufficient authority for holding that the defendants are not liable, provided, in the matter complained of, they were in the exercise of strictly official powers and the performance of strictly official duties. In the purchase of the ledge, and advising and voting to there locate the stone crusher, the defendants were in the exercise of strictly official powers and duties; and, if they acted without corruption or malice, they are not accountable to an individual for damages resulting from such acts. In purchasing the ledge, and voting to locate the stone crusher, the trustees were adopting measures and plans for the

improvement and repair of the streets and highways. It was their duty to adopt plans for this purpose. In so doing, they were required to exercise judgment and discretion; and if, by reason of their failure to exercise the highest degree of judgment and discretion, their plans were defective, and could not be executed without creating a public nuisance, or endangering the traveling public, they are not accountable to a private person for damages resulting from the adoption of such plans.

In Robinson v. Rohr, (Wis.) 40 N. W. Rep. 668, it is said that a board of street commissioners, when they determine upon the work, and adopt plans and specifications of it, act as public officers, exercising judicial and legislative powers; and they are not amenable to any one except the public for any error, negligence, or mere misfeasance in matters within their jurisdiction. In Wheeler v. City of Worcester, 10 Allen, 591, it is said that the city, by its properly authorized agents, is charged with the public duty of constructing and maintaining the public streets. It must construct and maintain them in such places and in such manner as the public convenience and necessity require. It must provide for the disposal of the surface water which falls upon them, and, in the discharge of this duty, neither the city nor its agents can be proceeded against in an action of tort for damages sustained by a private citizen. In Urquhart v. City of Odgensburgh, 91 N. Y. 67, it was held that a municipal corporation is not liable for an injury to a traveler upon its streets resulting from the construction of a sidewalk upon an erroneous plan prepared or approved by its common council; that the rule is well settled that, where power is conferred upon public officers of a municipal corporation to make improvements, such as streets and sewers, and keep them in repair, the duty to make them is quasi judicial or discretionary, involving a determination as to their necessity, requisite capacity, and location; and that, for a failure to exercise this power, or an erroneous estimate of the public needs, no civil action can be maintained. In City of Lansing v. Toolan, 37 Mich. 152, Cooley, C. J., in delivering the opinion of the court, said: "In planning public works, a municipal corporation must determine for itself to what extent it will guard against possible accidents. Courts and jurors are not to say it shall be punished in damages for not giving the public more complete protection, for that would be to take the administration of municipal affairs out of the hands to which it has been intrusted by law."

The evidence did not tend to show that the defendants acted corruptly or maliciously, or that they acted in a capacity other than that of public officers, in the exercise of strictly official powers and the performance of official duties; and the jury, by a special

verdict, have found that the action of the defendants on that occasion, and in locating and operating the stone crusher, was taken in their capacity of street committee and trustees, in good faith, according to their best judgment. It is stated in the exceptions that the plaintiff's evidence tended to show that the defendants had to do with the location, erection, and operation of the stone crusher, but it does not appear that they had any more to do with it than other members of the board of trustees. For aught that appears in the exceptions, the acts of the defendants in respect to the location, erection, and operation of the stone crusher were all official acts. It appears that the trustees purchased the ledge, and voted to there locate the stone crusher. By this purchase and vote, it may be said that the defendants had to do with the location, erection, and operation of the stone crusher; but the act of purchasing the ledge and voting to there locate the stone crusher were official acts. It does not appear that there was any testimony tending to show that the defendants went upon the streets, and participated in the execution of the orders of the trustees, or that they aided, assisted, participated in, or superintended the erection or operation of the stone crusher. We cannot presume that they performed other than strictly official acts for the purpose of finding error in the rulings of the court below. Error must affirmatively appear. If there was evidence tending to show that they became laborers, operatives, or superintendents in the matter of setting up and operating the stone crusher, it should be so stated in the exceptions. Unless there was such evidence, the court should have ordered a verdict for the defendants, and the plaintiff has not been harmed by the failure of the court to charge as requested, or by the charge as given. It does not affirmatively appear that there was any testimony tending to show that the defendants were ever at the ledge where the stone crusher was set up and operated. It does appear, from one of the special verdicts, that the stone crusher was being operated by help hired by the street commissioner, in the interest of the village, on the afternoon of July 12, 1888, in the presence of the street commissioner and the defendants, who were present as a street committee of the trustees to observe its operation, and to consult with the street commissioner about its work and other matters connected with the maintenance and repair of the highways, streets, and lanes. There is nothing in this finding that shows that the testimony tended to prove that the defendants participated in the operation of the stone crusher, or that they acted other than in an official capacity. It was their duty to inform themselves in regard to the necessity of repairs upon the streets and the best methods of making them, in order that they might act intelligently as members of

the board of trustees. It is unnecessary to pass upon the rulings of the court upon questions relating to the admission and rejection of evidence. If all the evidence offered by the plaintiff had been admitted, and all evidence objected to by the plaintiff had been excluded, it would still have been the duty of the court to have ordered a verdict for the defendants. Judgment affirmed.

McQUADE v. HATCH.

(Supreme Court of Vermont. Rutland. May 17, 1893.)

MARRIAGE-EVIDENCE-SALE OF INTOXICATING

LIQUORS.

1. The fact of marriage may be proven by the oral evidence of one who was present at the ceremony.

2. In an action under R. L. § 3833, for damages for a husband's death by intoxication on liquors unlawfully sold him by defendant, testimony that the party, in which were wit ness and deceased, drank what was furnished on a call for beer, that what witness drank was ale, that the liquor was sold as a beverage in a room containing a bar with bottles and glasses, goes to show an illegal sale; the possession of a license being matter of defense.

Exceptions from Rutland county court; Taft, Judge.

Action by Bridget McQuade against Henry Hatch, under R. L. § 3833, to recover damages for the death of the plaintiff's husband, resulting from intoxication caused by intoxicating liquor unlawfully furnished him by the defendant. Verdict and judgment for the plaintiff. The defendant excepts. Affirmed.

The evidence of the plaintiff tended to show that her husband and several others went into a room in the village of Rutland on the 16th day of September, 1891; that the room was furnished with a counter or bar, and with bottles and glasses; that the defendant and one other person were behind the bar, serving out drinks as they were called for; that the party of which the husband was a member called several times for beer, and drank what was furnished them by the defendant, and one witness testified that the husband drank ale. At the close of the testimony the defendant moved for a verdict upon the ground that there was no evidence tending to show that the intoxicating liquor was unlawfully furnished. The motion was overruled, and the defendant excepted.

To prove the marriage of the plaintiff the parol testimony of a person who was present at the marriage ceremony was admitted, to which the defendant excepted.

Butler & Moloney, for plaintiff. Geo. E. Lawrence and P. M. Meldon, for defendant.

MUNSON, J. This is an action to recover the damage sustained by the plaintiff through the death of her husband, as the result of intoxication caused by liquor unlawfully fur

nished by the defendant.

2

We find no error in the rulings of the court below. The marriage could be established by the testimony of a witness who was present at the ceremony. Testimony of this character is direct evidence of the fact of marriage. Greenl. Ev. § 461; State v. Hodgkins, 19 Me. 155. See Northfield v. Vershire. 33 Vt. 110. Testimony that the party in which were the witness and the deceased drank what was furnished upon a call for beer, and that what the witness drank was ale, was evidence tending to show that ale was furnished the deceased. Testimony that the liquor was sold as a beverage in a saloon containing a bar provided with bottles and glasses was evidence tending to show that it was unlawfully furnished. It was not necessary for the plaintiff to go further, and show that the defendant had no authority to sell. There could be no lawful sale without a license, and the possession of a license is matter of defense. But if the defendant had shown a license, the testimony referred to would have been evidence tending to establish an unauthorized sale. State v. Nulty, 57 Vt. 543; Graves v. Ranger, 52 Vt. 424; State v. Wooley, 59 Vt. 357, 10 Atl. Rep. 84.

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1. Appellant had lived with her grandfather since she was four years old, and after majority continued in his family, rendering the same services as before. He never paid her any wages, nor promised her any. Two witnesses testified that he had said he intended to pay her, and would see her well paid. Litigation having arisen respecting his estate during his life, she accepted a settlement with the rest of the heirs, but afterwards filed a claim for wages for over nine years. Though her grandfather was still alive, she obtained no indorsement of the claim from him. Held, that she had not overcome the presumption that her services were gratuitous.

2. Where the clerk's affidavit to the transcript certifies that the delay in its transmission was caused by his own inadvertence and omission, the court will not dismiss the appeal on the ground of such delay.

Appeal from circuit court, Carroll county, in equity.

Complaint by Charles T. Reifsnider, as trustee under certain deeds of trust from Joshua Sellman and wife, empowering him to sell described real estate and distribute the proceeds, for the court's aid in making such distribution, and asking for a reference to the auditor, with directions to notify Sellman's creditors to file their claims. His granddaughter Caroline M. Barnes (now Bixler) on April 5, 1887, filed a bill for services rendered during more than nine years, amounting to $1,001.70. A dividend on said

claim was allowed by the auditor in his account, filed October 23, 1890. On this and other grounds, John B. F. Sellman and others, parties in interest, objected to ratification of the audit. On testimony taken before the auditor, the court rejected the claim. From this judgment, Mrs. Bixler and her husband, George A. Bixler, appeal. Affirmed.

The clerk's affidavit accompanying the transcript certifies "that the delay in transmitting this record within the time prescribed by law was caused by the inadvertence and omission of the clerk."

The court below commented on the testimony as follows: "Now, what is the plaintiff's or claimant's proof in this case? The alleged debtor to her was her grandfather, in whose family she went to reside at the early age of four years, and grew up to womanhood as a member of his family. She then continued to reside with him, rendering the identical character of services, and in every respect, as far as appears from the proof, living in the family under the same conditions, and maintaining the same relations to her grandfather and the family, as she had previous to attaining her majority. A part of the services so rendered are those for which payment is here asked. According to the rule of law in such cases no presumption arises in favor of the claimant from proof of the mere fact that the services were rendered, and she must show that there were circumstances in the case from which it is made to appear that at the time the services were rendered there was a mutual expectation or understanding that they were to be paid for as a debt. If we leave out of view the loose declarations of the alleged debtor, which will be presently noticed, the record will be searched in vain for any evidence of such circumstances. It contains nothing from which there appears any intimation or suggestion of any mutual expectation or understanding, at the time the services were rendered, that they were rendered with a view to pecuniary compensation. On the contrary, there are circumstances which tend to show that there was no such expectation or understanding. The services in question extended over a period of eight years, and yet there is not shown that there was ever a demand made for payment on the part of the claimant here, or any part payment for, or any act of recognition whatever of a debt due on account of, these services, on the part of the alleged debtor, and there is not a word of explanation of this offered any where in the evidence. Further than this, the alleged debtor, in the year 1884, made a deed disposing of his whole property, in which no note is taken of any claim that the claimant here had against him. It appears from the proceedings in this case that this deed gave rise to litigation against Joshua Sellman, the alleged debtor, on the part of his children

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