O. C. OPINION AND ADJUDICA- of the Ninth Judicial District, then made | with instructions to act with the Comup of the Counties of Adams, Cumber-mittee on Enlarging the Court House. land and Franklin, as successor of Judge Treasurer McMullen made his report, Hamilton, of Carlisle; but, nevertheless, showing a balance at the last meeting of he retained his residence in Lancaster. $39.28 and expenditures of $12, leaving He served in this position until April 27, a balance at the present time of $27.28. 1820. On April 28, 1820, he was com- The Board of Censors reported that missioned President Judge of the Dis- there had been no complaints entered. trict Court of the City and County of The matter of holding a picnic this Lancaster, and he served as such until year was left in the hands of the comMarch 27, 1824, when the Act of Marchmittee having that affair in charge last 10, 1823, went into effect, and Ebenezer year. G. Bradford was appointed under its provisions to the presidency of that Court. In disgust, he then sold his house. and moved to Baltimore, Maryland. He ultimately returned to Philadelphia, where he died at Belmont on April 18, 1836. His body is interred in the graveyard of the Church of the Epiphany, in Philadelphia. He was appointed by the Legislature to revise the laws of the Commonwealth and to frame a new compilation of the same, and in 1810 there was published by John Bioren, under the authority of the State, four volumes known as "Smith's Laws of Pennsylvania." In 1812, volume 5 was issued, and in 1822, volumes 6 and 7. He also was the author of a treatise called "Land Laws of Pennsylvania." He was married to Mary, daughter of Judge Jasper Yeates, and when he came to Lancaster he purchased a tract of land east of the city, along the Conestoga River, and built "Hardwick," well known to our older citizens. This beautiful country-seat afterwards came into the ownership of Captain James Wiley, and it was conveyed indirectly by him to the Pennsylvania Railroad Company in 1882, when what is now known as the "Cut-off" was constructed to the north of the city. [To be continued.] Bar Meeting. The regular Spring meeting of the Lancaster County Bar Association was held in the large Court Room at 2 o'clock p. m.. Monday, June 8th, 1914, with Vice-President W. F. Bever in the chair in the absence of the President. The Committee on Better Facilities in the Recorder's Office was continued. By JUDGE SMITH: Estate of Charles W. Metzger, deceased. Exceptions to adjudication. Adjudication confirmed absolutely as corrected. Adjudications: David F. Beiler, East Lampeter. Margaret I. McClure, Bart. Mary D. Conrad, Penn. John G. Schurter, Salisbury. Daniel Hartman, City. she must prove her title by evidence LANCASTER LAW REVIEW. which does not admit of a reasonable VOL. XXXI.] FRIDAY, JUNE 19, 1914. [No. 33 Common Pleas--Law Hilton v. The Leibig Mfg. Co. (No. 2). Sheriff's interpleader — Wife's separate estate-Burden of proof-Sufficiency of evidence-Harmless error. In a sheriff's interpleader, where the wife of the defendant in the execution claims the goods which are in the apparent possession of the husband, and alleges the husband's position to have been that of her agent or employee, the law will not presume the existence of her separate estate, but she must prove her title by a preponderance of evidence that is clear, full and unequivocal. Whether the testimony, if believed by the jury, is of such a character as to sustain a married woman's claim and justify its submission to the jury, is a question for the court. The mistake of a trial judge in unqualifiedly affirming a point which is not quite consistent with the general charge, does not amount to reversible error where the verdict shows no injury resulting therefrom. Rule for a new trial. C. P. of Lancaster Co., October Term, 1913, No. 45. B. F. Davis, for plaintiff and rule. Coyle & Keller, John E. Malone and J. W. Johnson, contra. doubt." 66 66 In reviewing a number of the many cases on the subject, Judge Rice, in Taylor v. Paul, 6 Sup., 496, decides that the proof of the wife's title must be clear and satisfactory, clear and full, clear and unequivocal, and must overcome the presumption that it is her husband's property." In our charge to the jury and answers to the other points we adopted this rule, but we departed from it in affirming that portion of the point in question which said that the plaintiff must prove her title by evidence which does not admit of a reasonable doubt." In Spering v. Laughlin, 113 Pa., 209, "In civil cases, a Judge Mercur says: fact need not necessarily be proven beyond a reasonable doubt. It may generally be established by preponderating evidence. So if the plaintiff (a married woman) show by clear and satisfactory preponderating evidence that she purchased the property on the credit of her separate estate, the creditors of her husband had no right to levy on it by virtue. of an execution against him." To the same effect, see Tripner v. Abrahams, 47 Pa., 220; Earl v. Champion, 65 Pa., 191; Heiges v. Pifer, 224 Pa., 628. It is decided in Jackson v. The Railroad, 228 Pa., 566, that the mistake of a trial judge in unqualifiedly affirming a point which is not quite consistent with the general charge does not amount to reversible error where the verdict shows no injury resulting therefrom. If, then, March 28, 1914. Opinion by HASS- our answer to the point did no harm to LER, J. Among the fourteen reasons filed for a new trial in this case is one which points out what is an erroneous instruction to the jury. It is that we erred in affirming defendant's second point, which is as follows: "2. In a sheriff's interpleader, where the wife of the defendant in the execution claims the goods which are in the apparent possession of the husband, and alleges the husband's position to have been that of her agent or employee, the law will not presume the existence of her separate estate, but the plaintiff, it is not a good reason why she should obtain a new trial. Let us examine whether it did. She has claimed personal property levied on as the property of her husband. The jury found that two pair of mules did not belong to her. These mules were bought by her husband, as he testifies, as her agent, from a dealer in this city. One pair was purchased on June 21, 1910, for $375, for which he gave a sixty-day note, and the other on November 7, 1911, for $275, for which he gave another sixty-day note. Both these notes, as they appeared at the trial, were signed by her husband with the word rigid character necessary to sustain the "Agt" after his name, and he testifies that this word was put on the note before he gave it. His testimony in this His testimony in this respect was contradicted, and much testimony was offered to show that the word "Agt" had been added after the notes were paid. Both notes were paid when they came due. Under these circumstances the plaintiff must show by clear and convincing testimony that she had a separate estate, and that the mules were purchased on the credit of her separate estate, or paid for out of it. 66 defendant's claim." The court refused the point, saying, "The question is a question of fact to be determined by you." In reversing the Court below, Judge Williams said: "The question whether the evidence was so clear, full and satisfactory as to justify its submission to the jury was a question of law for the decision of the court. If it did not meet this test, the jury had nothing whatever to do with it. It was not before them. If it did, then the court would submit it to them for consideration with suitable instruction, and they would pass upon it, as upon the other evidence in the case, determining both its credibility and its weight. . . . This (the answer to the point) left to the jury the standard of proof required by law, and the conformity of the evidence in this case to that standard. This was error. Whether the evidence in support of Mrs. Jones's title, which was her own story, uncorroborated in any particular, is so clear, full and satisfactory as to be entitled to submission to the jury, it will be the duty of the Court to declare. If submitted, it should be with careful instructions, calling attention to the circumstances that bear upon her credibility and tend to impeach the good faith of her title.' A married woman claiming property against her husband must show that she has a separate estate, and that it was purchased on the credit, or paid for out of that separate estate, by testimony that is clear and satisfactory, clear and full, clear and unequivocal, and must exclude a reasonable presumption that it is her husband's: Taylor . Paul, 6 Sup., 496. Proof of the fact that she has a separate estate of itself is not sufficient. She must prove that it was paid for out of it: Winter v. Walter, 37 Pa., 155. In Rhinesmith's Case, 25 Sup., 300, Judge Henderson says: In many cases it has been held that the claim of a wife against her husband's creditors must be established by clear and full proof that the property claimed was paid for out of her own separate estate. That she had the means of paying is not sufficient; it must appear that payment was made in fact. The authorities on this subject are reviewed and considered in a clear and convincing opinion by the President of this Court in Taylor v. Paul, 6 Sup., 496, and any further examination of them is rendered unneces-binding instructions to find the same versary." Whether the testimony, if believed by the jury, is of such a character as to sustain a married woman's claim is a question for the Court. If it does not meet this required test in being full, clear and convincing, there is nothing for the Court to submit to the jury. In Poundstone v. Jones, 182 Pa., 574, the court was asked to instruct the jury that the evidence on the part of the defendant was not "of the full, clear and Did the testimony of the plaintiff that she had a separate estate and that the mules were purchased upon the credit of it, or paid for out of it, meet these requirements that is, was it clear and satisfactory, clear and full, and clear and unequivocal? If it was not, we should have so decided and not have submitted it to the jury, but should have given dict which they did find. If we should not have submitted to the jury the testimony of her separate estate and the payment of the goods out of it because it did not meet the required standard, no harm was done the plaintiff in our answer to the point, that she must prove her claim beyond a reasonable doubt, because the verdict would have been against her then, just as it is now. The plaintiff testified that she had inherited $1,000 from an uncle before the The other reasons filed for a new trial do not require any consideration, as they all question the correctness of our submission to the jury of the question of the plaintiff's separate estate, and whether the mules were paid for out of it. And even though other error is pointed out, which is not conceded, it could not avail the plaintiff in obtaining a new trial under our present view of what should have been done. mules were bought, but stated that it | gree of proof than is necessary in such was in the land, so that it was not used cases. She was not entitled to a verdict to pay for the mules. She testified that under the testimony and no harm has she had inherited some money from an been done her. aunt, Margaret Wilson, who died April 9. 1909, before the mules were purchased. She does not say how much she inherited, and says that she cannot say that any of it was used to pay for these mules. She testified that she had leased a farm prior to this and that it was operated in connection with her husband's farm. She cannot say that anything was left out of the farm after the rent, taxes and fertilizers were paid. She says she had earned some money at home. She lived with her husband, and does not say how much she earned, who paid it to her, when, whether it was for duties she was required to perform as a wife, or whether any of it was used to pay for these mules. She does say that the mules were paid for with her money, but cannot tell where she got it. Her husband testified that some of the money inherited from the estate of her aunt was paid to her before the mules were purchased. He does not know how much. She died in April, 1909, and the adjudication of her estate was, filed in the Orphans' Court on April 27, 1911. In a proceeding in that Court a few months ago, long after the mules had been paid for, he permitted his attorney to report to the Court in his hearing, without contradiction, that none of this money had been paid to his wife up to that time. He says his wife borrowed $150 in bank to pay on one of the notes, given for these mules, and further that they were paid for with her own money. He testified that he could not tell when she got the money with which she paid for the mules. Even if it be conceded that the testi mony is clear and full and satisfactory that the plaintiff had a separate estate, it cannot be considered clear, full and satisfactory of the fact that the mules were paid for out of that separate estate. It was our duty to have so instructed the jury, and having failed to do so, it was not error, of which she can complain, that we left it to them to find whether they were so paid for, exacting a higher de Nor does it matter to the plaintiff whether the two pair of mules which the jury found belonged to her were the Kendig mules or included a pair purchased by the plaintiff's mother. No complaint is made of any error in submitting to the jury the question of the ownership of the mules obtained from her mother. We discharge the rule for a new trial. Kray v. Kuhn. Lease-Violation of covenants-Opening of judgment. A judgment in amicable ejectment with writ of possession entered under the terms of a lease for violating its covenants will be opened that the alterations and damages alleged were on rule where the defendant's testimony shows made with the plaintiff's consent or were not permanent injuries. A covenant not to injure or damage the will interfere with its temporary use, but such premises means not such injury or damage as as will impair its value when returned to the lessor. Rule to open judgment and let defendant into a defense. January Term, 1914, No. 27, Ex. Doc. T. Roberts Appel, for rule. March 28, 1914. Opinion by Hass- The plaintiff, on December 29, 1910, that the judgment be opened and he be permitted to make a defense to it, and that the writ of habere facias possessione issued upon it be stayed. Upon this petition this rule was granted to show cause why the prayer of the petition should not be granted. The plaintiff has filed an answer to this petition, denying its allegations. Considerable testimony has been taken by both parties, and from it we find that the defendant has shown by testimony, such as is required in applications to open judgments, that he has not violated any of the covenants of the lease. His sub-letting of a portion of the prop leased to the defendant a certain build- | sented his petition to this Court asking ing, located at the corner of South Duke and Chester streets, in the city of Lancaster, for the term of five years, to begin on January 1, 1911. The lease provides that "The lessee also agrees that he or they will not sub-let the premises without the consent of the lessor, which shall be in writing. The lessee formally agrees he will use the building for the purpose only as here stipulated— moving pictures .. that he will deliver up the premises hereby demised at the end of the term of this lease, or any renewal thereof, in the same good order and condition as they now are, reasonable wear and tear and damage by accidental fire alone excepted." It is fur-erty for a shirt factory was done with ther provided: "Upon the failure or neglect of the lessee to comply with any of the foregoing covenants and agreements, and in case the lessee shall injure or damage the hereby demised premises," the said lessor may enter an amicable action of ejectment, and the lessee empowers any attorney of any court of record to appear for him and confess judgment. the knowledge and permission of the plaintiff, who did the work of installing electrical appliances for the said tenant, and who acquiesced in such sub-letting for more than three months before instituting this proceeding, all of which was a waiver by the plaintiff of his right to require consent to sub-let in writing. The partitions were torn down with the knowledge and permission of the plaintiff, who got and disposed of the materials in them. The injury to the heating plant and the breaking of the windowpanes was not the fault of the defendant, and the use of tin in place of some of the broken panes was done for a purpose and does not injure the building. The other matters mentioned in the plaintiff's testimony are not permanent injuries. nor such as, in the opinion of the Court. will prevent the lessee from delivering the premises up to the lessor at the expiration of the lease in as good condition as they were at the time of the execution of the lease, reasonable wear and tear excepted. Some of them may interfere with the use of the building temporarily, but that is a matter for the lessee. He only covenanted that he will not injure or damage the premises, and this, in our opinion, means not such inAn attorney appeared for the lessee jury or damage as will interfere with his and confessed judgment for him. A temporary use of it, but such injury and writ of habere facias, possessione was damage to it as will interfere with and issued on this judgment to January impair its value when returned to the Term, 1914, No. 27, Execution Docket. lessor at the expiration of the lease. On January 12, 1914, the defendant pre On January 9, 1914, the lessor entered an amicable action of ejectment in this Court to January Term, 1914, No. 54, alleging the following violations of the covenants of the lease by the lessee: that he sub-let the demised premises to Tauber, Rhytterburg & Co. without the consent of the lessor; that he converted the same into a shirt factory, and that he damaged the premises in these ways: first, that he tore down a number of partitions and used them for his own purpose; second, by failure to keep water in the 25-horse-power boiler attached to the heating plant, he has entirely destroyed it; third, that he has broken panes of glass in the windows and substituted pieces of tin for them, and in other ways injured and damaged the property, including the pulling-down of some heating pipes. We think the defendant is entitled to |