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Galwey, the bankrupt, was a livery stable as to his creditors and the plaintiff, an abkeeper. A few weeks before the commence- solute sale. Gen. St. 1902, $$ 4864, 4865; In ment of the bankruptcy proceedings, Douglass re Wilcox & Howe Co., 70 Conn. 220, 39 Atl. agreed to enter into partnership with him 163. in his business, provided the former, after The bankrupt act of 1898, § 67, Act July full investigation of its condition and pros- | 1, 1898, c. 541, 30 Stat. 564 (U. S. Comp. St. pects, became satisfied therewith; he mean- 1901, p. 3449), provides that all transfers of while assisting in the business on wages of $2 property made by a person thereafter ada day, and allowing property of his own to judged a bankrupt, and within four months be used in connection with it, for the result- prior to the commencement of the bankrupt. ing depreciation of which he was to receive cy proceedings, with the intent on his part $100 more, and the absolute title to which to hinder, delay, or defraud his creditors, or he was to retain. While working for Galwey any of them, shall be null and void as against under this agreement, Douglass bought of them, and such property shall remain part him, for $100, which was their fair market of the assets of the estate, and pass as such value, a hack and a pair of horses then in to the trustee in bankruptcy, except as to purthe possession of certain creditors having chasers in good faith, and for a present fair liens upon them. Of this $400, he paid $72 to consideration. Transfers made within such discharge the liens, and the rest, later, to period, which would be voidable by creditors other creditors of Galwey, including $42 due under the laws of the state in which the propto himself for bis wages. On payment of the erty transferred is situated, are likewise void$72, Galwey gave him an absolute bill of able by the trustee in bankruptcy. The plainsale of the hack and horses, reciting the re- tiff, as a receiver in bankruptcy, had (section ceipt of a consideration of $400. At this 2, Act July 1, 1898, c. 541, 30 Stat. 545 (U. S. time Galwey owed the defendant $12, only, Comp. St. 1901, p. 3420]), under the order of for wages; but possession was delivered, and the district court, the right of action thus openly and continuously thereafter retained created for the recovery of assets so wrong. by the defendant. Three days before the bill fully transferred. of sale was given, Douglass bad bought of The facts found by the trial court show Galwey his interest in three carriages under that neither of the transfers to Douglass was a so-called lease from the Henry Killam Com- vòidable by creditors under the laws of this pany, dated in October, 1898. By this lease state. If Galwey had any fraudulent intent, Galwey had agreed to pay a monthly rental it was not known to, nor participated in by, of $60 for 21 months, and, should he do so, Douglass. Partelo v. Harris, 26 Conn, 480. might buy the carriages for $1 within a week Nor were either of them voidable for any froin the date of the last payment. Galwey cause specified in the bankrupt act, since had not made the full payments thus re- Douglass purchased in good faith and for a quired, and owed the company $432 on that full and valuable consideration. What was account. Douglass agreed, as the considera- done and agreed between him, the Henry tion of his purchase, to pay $100 of this sum Killam Company, and the bankrupt, extinto it, provided it would accept him as its guished, by a novation, the latter's obligation debtor in place of Galwey for the balance. to the company, and had the same effect, as To this it consented, on receiving from him respects the plaintiff, as if Galwey had rethe $100, and thereupon Galwey gave him ceived $432 from Douglass, and paid it over a bill of sale of his interest in the carriage to the company. Nor is the fact material for an expressed consideration of “one dollar that the expressed consideration of the bill and other valuable considerations," and he of sale of the back and horses was the retook them openly into his possession, keeping ceipt of $400, although only $84, at most, them till about the time of the bankruptcy, had been in fact paid over at its date. The when they were turned over to the posses- sum named was the true consideration. A sion of the company. The fair cash market bankrupt has the right to sell on credit, as value of the carriages was $432, and, after well as for cash, to a bona fide purchaser. his payment of $100, Douglass paid the com- That possession of the property sold was not pany $80 more on account, to take up notes retained by the bankrupt is settled by the of Galwey which it held for that amount. finding. Both these sales to Douglass were on his It is contended that there is error in the part made in good faith, without any pur- Judgments, because they award damages and pose to defraud Galwey's creditors, and, so costs against the plaintiff as a receiver in far as he knew, the same was true of Gal- bankruptcy. He sought his remedy in a court wey; nor, when they were made, did Doug of this state, and by actions in which it was lass know or believe, or have reasonable cause necessary to give recognizances with surety for knowing or believing, that Galwey was in for the return of the property replevied, and failing circumstances, or. liable to become in- for damages and costs in case he should fail solvent or bankrupt.
to establish his right to retain the possesThe paper under which Galwey derived his sion gained under the writ. Into such a retitle from the Henry Killam Company was, cognizance-a joint and several one-he enin substance, a conditional sale, and, never tered, and he and his surety must abide by having been acknowledged or recorded, was, its terms. It constituted an obligation of resord, voluntarily assumed, which must neces- the defendants filed a notice of appeal from sarily have been contemplated by the district that judgment to this court. The appeal court when it gave him permission to bring was filed and allowed on the 26th day of these actions. It is unnecessary to inquire March, 1903, and the plea in abatement is whether it binds the plaintiff personally. It based upon the claim that the appeal was certainly binds his surety personally, and in not filed within the time allowed by law. order to bind the surety it was necessary that The statute (section 791, Gen. St. 1902) the judgments in question should be rendered provides that, "if no finding of facts or furagainst his principal, and in the capacity in ther action of the judge be necessary to prewhich he sued.
sent properly the questions in the cause, the There is no error in either judgment. The party appealing shall, within ten days from other Judges concurred.
the rendition of the judgment,” file with the clerk an appeal in writing, and give security
for prosecution, as required by law. It fur(75 Conn. 641)
ther provides that the trial judge may, for BURKE V. WRIGHT et al.
cause shown, extend the time for filing and
perfecting the appeal. The plea in abate(Supreme Court of Errors of Connecticut. June 4, 1903.)
ment alleges, in substance: (1) That no
finding of facts or further action of the trial PLEADINGS-DEMURRER-AMENDMENT-WAIVER-APPEAL-NECESSITY OF FINDINGS-PER- judge was necessary to present properly the FECTING APPEAL-TIME EXTENSION - DIS
questions in said cause; (2) that no appeal MISSAL. 1. Where defendant filed an amended answer
in writing from said judgment to this court after a demurrer had been sustained to his
was filed within 10 days from the rendition original answer, error, if any, in sustaining of of said judgment, nor was any such appeal such demurrer, was waived.
filed except the one filed on the 26th day of 2. Where, after the sustaining of a demurrer to defendant's amended answer, no further an
March, 1903; and (3) that the trial judge did swer was filed, whereupon judgment was ren
not extend the time for filing such appeal. dered for plaintiff, and defendants appealed, The answer denied the first and third of the findings of fact were not required in order to review such demurrer on appeal.
above allegations, and then set up the fol3. Gen. St. 1902, § 791, provides that, if no
lowing facts, in substance: That, after final finding of facts or further action of the judge judgment was rendered, the defendants gave be necessary to properly present the questions notice of appeal, and, believing that a findin the cause, the party appealing shals, within 10 days from the judgment, file an appeal in
ing of facts or further action of the judge writing, unless the trial judge shall extend the was necessary to properly present the questime therefor. Held that, where no findings or tions in the cause, they requested the judge other action of the judge were required to ob
in writing for such a finding, and lodged said tain a review of a ruling on demurrer, the fact that after judgment appellant's counsel filed
request with the clerk, with a proposed findproposed findings, which were retained by the ing; "that said judge beld such request and judge until after the 10 days expired, when proposed finding in his possession until they were returned, without action, on the judge's statement that defendants would still
March 20, 1903, when he returned the same have a week in which to perfect their appeal,
to the clerk, and said to the defendants' did not constitute an extension of time so as counsel that he did not think any finding to sustain an appeal subsequently perfected.
necessary, and the defendants then perfectAppeal from Court of Common Pleas, New ed their appeal, to wit, on March 26, 1903." London County; Walter C. Noyes, Judge. To the facts thus set up in the answer the
Action by John H. Burke against Alvin H. plaintiff demurred. Before the argument in Wright and others. From a judgment in this court, the parties, through their counfavor of plaintiff, defendants appeal. Plea sel, agreed in writing that when the proto abate appeal sustained. Appeal dismissed. posed finding was returned to the clerk the Seneca S. Thresher, John H. Barnes, and
judge said to counsel for the defendants, Roderick M. Douglass, for appellants. Frank
"You will now have one week in which to T. Brown and Jeremiah J. Desmond, for ap
perfect your appeal." This was done to pellee.
avoid sending the issue of fact raised by the
answer to the plea in abatement (as to TORRANCE, C. J. The plaintiff in the
whether or not the time for filing the appeal court below brought an action against the
had been extended by the judge) to be tried
under the rule. By voluntarily filing an defendants upon a written lease. To the answer filed in that action the plaintiff de
amended answer after the demurrer to the murred, and the demurrer was sustained.
first answer was sustained, the defendants 'The defendants then voluntarily filed an
waived their right to except to the action amended answer, to which the plaintiff de
of the court in sustaining the demurrer to durred, and that demurrer was also sus
the first answer (Mitchell v. Smith, 74 Conn. tained. No further answer was filed, and
125, 49 Atl. 909), and, if the demurrer to the
amended answer thereupon the court, on the 17th day of
was properly sustained, January, 1903, rendered judgment in favor of
there was no error in the judgment rendered; the plaintiff. On the 24th of January, 1903,
so that the only question which, upon the
record before us, the defendants could possi1. See Pleading, vol. 39, Cent. Dig. $ 1402.
bly raise upon appeal from that judgment, was whether the demurrer to the amended on the 20th of March, 1903, was, in legal answer was properly sustained. Upon this effect, an extension of time for filing the state of facts it is clear that, after judgment appeal. Assuming, without deciding (1) rendered, no finding of facts or further ac- that the judge could then exercise the power tion of the judge was necessary to properly to extend the time, and (2) that the evidence present that single question before this agreed to is admissible upon the question as court. Clearly, then, an appeal in this case to whether he did then exercise it, we think could be taken only within 10 days from that such evidence fails to show that he exthe date of judgment, or within some exten- tended or intended to extend the time for filsion of that time allowed by the judge. As ing an appeal. It does not appear that due the appeal was not taken within 10 days cause existed for such extension. Indeed, from the date of judgment, the question is the record shows that no such cause existed. whether it was taken within an extension of What the judge said does not appear to have that period allowed by the judge, and the been communicated to the clerk or to the opanswer to that question depends upon the posing counsel, nor does it appear that the answer to the controlling question whether judge intended that it should be communithe judge made or allowed any such exten- cated; and no entry of what he so said was sion. No order for any such extension ap- made anywhere by anybody. The words atpears of record anywhere, but the defend- tributed to the judge, read in the light of ants contend that what the judge did and the circumstances under which they were ut. what the judge said, as admitted by the tered, appear to be nothing more than an pleadings and stipulation of counsel, consti- expression of opinion that by law the detuted in legal effect an extension of the time fendants had still one week left in which to for fiiing an appeal. In cases like the one take an appeal; but, whatever other conbetween these parties in the court below struction may be given to them, we think it the statute says that the judge “may, for would be very unreasonable to hold that by due cause shown, extend the time" for filing them the judge extended or intended to exan appeal. This implies that the judge, be- tend the time for filing the appeal. fore he extends the statutory period for ap- The plea in abatement is sustained, and peal, shall find, upon hearing after notice, the appeal is dismissed. The other judges if necessary, that due cause exists for mak- concurred. ing such extension; and that the order extending or refusing to extend the time shall be communicated to the clerk, and be min
(205 Pa, 481) uted by him in writing upon the files or rec
MOSER », UNION TRACTION CO. ords of the case. This certainly is the safe (Supreme Court of Pennsylvania. May 4, and orderly method of procedure in such
1903.) cases. Orders of this kind ougbt not to be
NEGLIGENCE. left in the air, nor committed solely to the
1. Evidence in action against a street railway custody of "slippery memory." Whether in
to recover damages for a collision at a street all cases of this kind, evidence of the making crossing with plaintiff's horse and wagon exor existence of such an order should be con
amined, and held to justify the court in direct
ing a verdict for defendant. fined exclusively to the written memorial
2. The failure to look for an approaching thereof, it is not necessary here to decide; street car is negligence per se, and the duty is for upon the admitted facts and evidence in not performed by looking when first entering this case we think it ought not to be held
on a street, but continues until the track is
reached. that the judge did extend the time for filing the appeal. The fact that the judge took Appeal from Court of Common Pleas, Philathe proposed finding, and kept it till March
delphia County. 20, 1903, cannot of itself be regarded as, in
Action by William C. Moser against the legal effect, an extension of the time for
Union Traction Company. Judgment for defiling an appeal. The request for a finding
fendant, and plaintiff appeals. Affirmed. and the proposed finding were both abso- Argued before MITCHELL, DEAN, FELL, lutely unnecessary to the defendants' right BROWN, MESTREZAT, and POTTER, JJ. to appeal, and court and counsel must, upon Edward A. Anderson and John H. Fow, the record, be charged with knowledge of for appellant. Thomas Leaming and Charles that fact. They both knew that what the | Biddle, for appellee. judge did or might do with these unnecessary papers could not in any way affect the POTTER, J. Upon the trial of this case it defendants' right to appeal, and that the appeared that the plaintiff did not look for an judge was under no duty to act upon the approaching car at the moment when he was proposed. finding, or to inform counsel for about to cross the track, nor did he see that the defendants that the proposed finding or the car which struck him was near until further action of the court was necessary or after the collision occurred. For this reason, unnecessary to their right of appeal.
at the close of the plaintiff's testimony the It is, however, strongly insisted that what learned trial judge entered a judgment of the judge said to counsel for the defendants compulsory nonsuit. He was entirely justiafter he banded the papers back to the clerk fied in so doing. The plaintiff testified that as he came up Thirtieth street, to the south- drove slowly across the space between the ern line of Girard avenue, he stopped his line of the sidewalk and the first track, and horse and wagon at a point about opposite across the first track, and upon the second the building line, and waited for an east- track, without looking again to see where the bound car upon the track on Girard avenue car was. He was not justified in this indifnearest him to take on a passenger. While ference to the approach of the car. It was waiting there he looked up, and saw a west- his plain duty, to look for it and observe its bound car approaching upon the other track position before driving upon the track in at Twenty-Ninth street. He made no move front of it. For his disregard of this duty, until the car going east had passed, and then the trial court held that he could not recover he started his horse and wagon at a slow in this action. walk across Girard avenue, but did not look The judgment is affirmed. again for the approaching west-bound car, nor did he notice its position as he was entering upon the track in front of it, nor did
(205 Pa. 477) he see it until after it struck his wagon.
ACKERMAN v. UNION TRACTION CO. It was apparent that the plaintiff acted in
(Supreme Court of Pennsylvania. May 4, disregard of the simple but effective rule of
1903.) 'safety, which required him to look for the
STREET RAILROADS-INJURY TO BOY-NEGLIcar just before he entered the track. The
GENCE OF MOTORMAN. rule has often been declared by this court, 1. Evidence in action against a street car and is reiterated in Burke v. Union Traction company, causing death of boy riding on the Company, 198 Pa. 497, 48 Atl. 470, as follows:
side steps of a freight car on a track parallel to
the street car, considered, and held to show the "The duty to look for an approaching car is motorman not guilty of negligence. an absolute duty, and failure to do so is neg- 2. Where a motorman is confronted with a ligence per se. This duty is not performed
sudden danger, he is not liable for failure to
follow what might appear on reflection to be by looking when first entering on the street,
the wiser course. but continues until the track is reached. Ehrisman v. East Harrisburg City Passenger
Appeal from Court of Common Pleas, PhilaRailway Company, 150 Pa. 180 (24 Atl. 596,
delphia County. 17 L. R. A. 448]; Omslaer v. Pittsburg, etc.,
Action by Charles W. Ackerman against Traction Company, 168 Pa. 519 (32 Atl. 50, the Union Traction Company. From an or47 Am. St. Rep. 901]; Smith v. Electric Trac- der refusing to take off a nonsuit, plaintiff tion Company, 187 Pa. 110 (40 Atl. 966).”
appeals. Affirmed. The opinion emphasizes the fact that no ques
Argued before MITCHELL, DEAN, FELL, tion arises as to the proper place to look, in
BROWN, MESTREZAT, and POTTER, JJ. the crossing of the tracks of electric roads Bernard Harris, for appellant. Thomas in cities, but that clearly the duty is to look Leaming and Russell Duane, for appellee. just before crossing. The excellence of this rule as a measure of safety is so apparent FELL, J. This action is by a father to rethat it needs no argument in its justification. cover damages for the loss of his son 13 No possibility of collision exists until the en- years of age, who was killed under the foltry upon the line of the track is made. The lowing circumstances: The boy was riding driver of a wagon may stop so close to the on the side steps of a freight car of the Philatrack of a street railway that the nose of his delphia & Reading Railroad Company, which horse may almost touch the passing car, and was running north on Second street. The deyet be safe. But when he undertakes to look fendant's electric car was running south, and for an approaching car while he is yet some the tracks of the two roads were parallel, distance away from the track, he can be and so close that there was a space of only a guided by nothing more than conjecture as few inches between the sides of the cars as to the varying rates of speed with which both they passed. The freight train approached car and wagon are approaching a common Second street on a curve, and turned onto point. Nothing is more commonly erroneous the street a short distance from the place of than the estimate of distance passed over by the accident. The freight car could be seen a continuously moving body in a short space by the motorman when it was 300 feet disof time. In the present case the plaintiff | tant, but the boy could not be seen until the saw the car, which afterwards struck him, freight car reached a position where the while it was yet some distance away. But he tracks were parallel. This was about 150 probably failed to take due note of the fact feet from the spot where the accident occurthat it was steadily nearing, at a rapid gait, red. The boy was on the sixth car of the the point at which he wanted to cross its freight train, and according to the testimony track. When he saw it, his team was stand- the train and the electric car were running ing at a point about opposite the southern as fast as cars usually run between crossbuilding line of Girard avenue, waiting for ings, or, as stated by some of the witnesses, an intervening car to pass out of his way.
much faster than a horse could trot. As When it did so, he started his horse. To do soon as the motorman saw the boy, he callthis, with a slow-moving animal, would take ed to him and made gestures to indicate an appreciable amount of time. He then that he should jump off the step, or climb on law:
the bumper at the end of the car, which was of which was in him, began the construction one foot from the step. This warning was of a hay scale in the strip, which would obdisregarded. The boy attempted to avoid in- struct its use as a wagonway, whereupon jury by straightening his body and keeping plaintiff, claiming an easement of passage close to the side of the car. He was struck through the strip, filed a bill for injunction. on the shoulder, thrown to the narrow space The referee made the following findings of between the tracks, and injured by the wheels of both cars. We find nothing in this situa- “The complainant in this suit seeks to ention from wbich negligence on the part of the join the respondent, Bennett, from building motorman can fairly be inferred. He first a hay scale upon land adjoining said comsaw the boy when the distance between them | plainant's property, and over which said comwas 150 feet, and they were approaching each plainant claims a right of way, granted as other at the rate of at least 15 or 20 miles an appurtenant to his lot by deed. The respondhour. With a clear understanding that the ent does not deny the act complained of, but boy would be injured unless he got out of the defends his conduct on the ground that there way of the electric car, the motorman called exists no right of way over the land referred and motioned to him to jump off or climb on to; that he (the respondent) is the owner in the bumper. Possibly, under the circumstan- fee of the soil thereof; and that in building ces, it would have been better to stop the car, the said structure he is but exercising his and thus lessen the injury, than attempt to proper rights as owner of the soil, and that avert it altogether; but, since he was con- the complainant has no rights therein for fronted by a sudden and unexpected danger, passage, or for any other purpose. There and had but a moment in which to act, the has been no serious effort made by either motorman cannot be held liable for failure to party to establish an adverse possession, or see and follow what might appear on reflec- to set up a prescriptive right as opposed to tion to have been the wiser course. Heston- the records of title and grants. The quesville, etc., R. Co. v. Kelley, 102 Pa. 115; Phil. tion, therefore, is one of real estate law, delips v. People's Pass. Ry. Co., 190 Pa. 222, pending more on the interpretation of record42 Atl. 686.
ed deeds than on the conduct of the various The judgment is affirmed.
holders of the titles, as testified to by the witnesses called. That the right sought to be enforced by the complainant did at one time
Joshua (205 Pa. 470)
exist cannot be seriously doubted. RICHMOND V. BENNETT.
Paxon, owning both the dominant and the
servient tenement, sold his land in two por(Supreme Court of Pennsylvania. May 4,
tions, the one now belonging to the respond1903.)
ent being expressly subjected to a right of SHERIFF'S DEED - INTEREST CONVEYED EASEMENT-NONUSER-REFERENCE-OB
way in favor of the other, now owned by the JECTIONS WAIVED-INJUNCTION.
complainant. As will appear from the deeds 1. A sheriff's deed on a foreclosure affects a themselves, the conclusion is unavoidable that transfer of an easement appurtenant to the land, though no mention of it is made in the
this easement was created as appurtenant to deed.
the lot now owned by plaintiff. It was bind. 2. After a mortgage was executed on certain ing upon Paxon himself, and, by record, noland, a right of way was created in favor of
tice upon his immediate successor, Grau. the land. Held, that a sheriff's deed on fore
"It remains to inquire whether, by any closure passed the easement.
3. Nonuser will not terminate an easement means, the easement once existing has since created by express grant.
been extinguished. In general, an easement 4. Where, by agreement, a case in equity has
created by express grant cannot be destroy. been referred to referee, defendant cannot first raise the question of jurisdiction after the tes
ed by anything short of a new grant of equal timony has been closed.
solemnity or adverse possession constituting 5. Where, in a bill to restrain the obstruction
a prescriptive right. Nonuser, even if estabof an easement; the evidence as to plaintiff's lished, would not terminate it, and I have title is such that a judge in an action at law would direct a verdict, equity will grant re
found that there is no evidence of a release, lief, though there has been no adjudication of and none showing adverse possession. That title at common law.
nonuser is immaterial is shown by McKee Appeal from Court of Common Pleas, v. Perchment, 69 Pa. 342. There the subject Philadelphia County.
of contention was an alley, which was fenced Bill by James Richmond against S. Ben- through the middle, and had stables, coalnett. Decree for plaintiff, and defendant ap- houses, and other buildings upon it, with peals. Affirmed.
trees and bushes, for a period of more than Plaintiff was owner of a lot on Fortieth
twenty-one years. It was held that, as the street, in the city of Philadelphia, running
right to the alley was conveyed by express back to a 10-feet strip of ground extending
grant, and as the obstructions were not northward from Locust street to the prop
shown to have been accompanied by adverse erty of defendant. Defendant, claiming that
possession, the easement must be sustained. the 10-feet strip was a private way, the fee
It was urged, however, that in the present
case there is a lack of continuity in the lino T 3. See Easements, vol. 35, Cent Dig. $ 78. of deeds transferring the easement to the