The following is the opinion filed by Mr. [ standing regarding settlement, and an assurance Justice Bergen in the Supreme Court: The prosecutor, a nonresident corporation, contracted to sell and deliver to the defendant a carload of tomato catsup on or before December 1, 1917, which was not fulfilled for reasons which the prosecutor claims were justifiable, although disputed by the defendant. In 1918, the defendant ordered another carload of catsup, but the prosecutor, before shipping it, wrote the defendant that it wanted a definite understanding that they were released by defendant from any former claim for undelivered catsup, and that defendant would settle for the shipment without any controversy or legal action. To which defendant replied that if the shipment was made it would "pay the same in the usual course of business, and that this shipment has no reference to the contract of January 14, 1917, and that the invoice will be paid in due course of business without any litigation." Thereupon the prosecutor shipped the catsup to defendant at Elizabeth, N. J., where it arrived December 18, 1918, and the next day defendant rejected it for lack of required quality, and the same day presented affidavits to a Supreme Court Commissioner showing a cause of action for the default on the contract of 1917, and procured from him an order for an attachment, which was issued and the carload of catsup attached at the suit of defendant, who subsequently caused it to be taken from the car and put in storage. The prosecutor was allowed by the circuit court a rule to show cause why the writ of attachment should not be quashed, and, after the taking of testimony in support of the rule and argument thereon, the court discharged the rule; which is the legal proceeding this writ seeks to review. This method of review is proper, but is limited to errors of law, and disputed questions of fact will not be considered. McAdam v. Block, 63 N. J. Law, 508, 44 Atl. 208. The rule to show cause allowed in this case related only to a motion to quash the writ, and not why the prosecutor's property should be released from the lien of the attachment, as in Heckscher v. Trotter, 48 N. J. Law, 419, 5 Atl. 581; but there seems to be no reason why a writ of attachment may not be quashed, even after appearance, if the evidence shows beyond dispute that it was prosecuted against a person not subject to the writ. Moore v. Richardson & Baldwin, 65 N. J. Law, 531, 47 Atl. 424. The cases cited all refer to the ordinary case where the damages are liquidated; but the present case is one where the damages are not liquidated, and the proceeding is under sections 84 and 85 of the Practice Act, C. S. vol. 3, p. 4076, which require an order by the court, or Supreme Court Commissioner awarding the writ. I think the order of the commissioner was justified by the facts laid before him, but that defendant suppressed or concealed material facts, not disputed, which destroyed his right to seize the goods taken by his direction under the writ. The fact not disclosed to the commissioner was that defendant had agreed in writing, as a condition for the shipment, to pay for it in the usual course of business, and that it had no reference to the contract of the previous year, but the invoice would be paid without any litigation; this was in reply to a letter of the prosecutor that before that the prosecutor was released from any former claim for undelivered catsup, and that payment would be made without controversy or legal action. This condition the defendant accepted, and the goods were shipped, delivered to the defendant, at once rejected for default in quality, then levied on under the attachment, removed by the defendant from the car, put in storage, and still held; and it does not require an overabundance of astuteness to see that the prosecutor was induced, by a sharp trick, to send its goods into this state so that they might be attached, notwithstanding defendant's contract to pay and not litigate. If the defendant had submitted this undisputed fact to the commissioner, as he was bound to do, that officer, without some explanation, could not have found that the alleged cause of action, which the statute requires, existed, for it was waived as a condition of the shipment. The circuit court had before it this undisputed fact on the rule to show cause, and it clearly appearing, without dispute, that the defendant had waived its former cause of action and agreed to pay without litigation as a condition for the shipment, a cause of action, so far as it related to the former shipment, did not exist, and the circuit court should have so decided as a matter of law, and its discharge of the rule was error. The sending of the goods was on condition that defendant would pay for them without litigation and without any reference to the prior default of the prosecutor in not shipping what it had contracted to ship in 1917, and to this the defendant agreed to induce the shipment of 1918. The right of defendant to refuse acceptance for want of quality contracted for was not waived, but its right to enforce the claim for damages arising out of the contract of 1917 was, and its right under the terms of shipment was limited to a rescission of the latter contract and was not extended to the right to institute a litigation against the goods to recover on the earlier contract. This result renders it unnecessary to determine the other matters raised by the prosecutor, and no opinion thereon is intended to be expressed. The prosecutor is entitled to have the writ quashed, with costs, and it is so ordered. Stamler & Stamler, of Elizabeth, for appellants. Harry Kalisch, of Newark, for respondent. PER CURIAM. [1] We agree that the judgment should be affirmed on the broad ground that the evidence before the Supreme Court showed without dispute that respondents were fraudulently induced to send their property into the state by an express agreement that there should be no litigation of the former dispute. It is not denied that the rule relating to service of process procured by fraud is broad enough to cover cases of attachment. See Reed v. Williams, 29 N. J. Law, 385; Washington Banking Co. v. Peltier, 14 N. J. Law, 391, 398; Nason v. Esten, 2 R. I. 337; Spear v. Hubbard, 4 Pick. (Mass.) (108 A.) SENCE. Where it appears that insured after leaving his wife and home did not at any time take up a permanent residence elsewhere, but went from place to place, the rule as to the requirement of absence for 7 years from the last-known, "settled," or "established" domicile has no rele We think it is immaterial whether the | 4. DEATH 2(1) goods attached were in fact of the quality contracted for. The underlying feature was that prosecutors were unwilling to ship at all unless assured that there would be no litigation under the old claim. Defendants would be entitled to reject the goods if not in fact up to standard, but not to attach them when they had expressly agreed not to litigate. [2] It is claimed that there was an appearance by respondents in the suit wherein the writ issued. We find no general appearance; their attempt to have the writ quashed in the circuit court was no more than a special appearance, and the acknowledgment of a notice of application to the circuit court to sell the goods as perishable was made after the record had been removed to the Supreme Court by certiorari, and objection to the sale seems to have been on this very ground. The writ of certiorari brought up the writ of attachment as well as the order awarding it, and it was clearly within the jurisdiction of that court to quash the writ as well as set aside the order; and naturally, if the order falls, the writ falls with it. For the fundamental reason given, viz., that the writ was sued out in fraud, the judgment of the Supreme Court is affirmed. 2. DEATH 4-EVIDENCE SUFFICIENT. Where insured, who left wife and home while in poor health, with intention of going to Oklahoma to work at his trade as machinist, mailed letters to her from there, and from California during the first 2 years of his absence, after which she received no tidings or commúnication from him for over 7 years, although she made numerous inquiries in machine shops, public offices, and to a labor organization, and advertised, a verdict against the insurer on the issue of death was warranted. 3. DEATH 2(1)-PRESUMPTION APPLICABLE TO INSURED. The common-law rule that in the case of an absent person of whom no tidings are received the presumption of the continuance of life ceases at the end of 7 years, after which he is presumed to be dead, is applicable to an action in the common pleas to recover life insurance. vancy. 5. APPEAL AND ERROR 273(5) MATTERS REVIEWABLE ON GENERAL EXCEPTION TO CHARGE. An appellant whose sole exception to charge was a general one asked and granted after the jury retired, may assign for review only material matters "so inadequately presented as to be calculated to mislead the jury," or "actual errors of law," as the Supreme Court will not review matters not called to attention of trial judge, unless the alleged errors are basic and fundamental. 6. APPEAL AND ERROR 273(5)-SUFFICIEN CY OF INSTRUCTION AS TO PRESUMPTION OF Instructions as to presumption of death 282-EXCEPTION TO REFUSAL OF REQUEST FOR ADDITIONAL INSTRUCTION. If counsel for defendant were dissatisfied with the answer made by the court to their inquiry, which was practically a request for additional instructions, they should have called trial judge's attention to the matter of dissatisfaction, and, if not corrected, should have taken a special exception. 8. STIPULATIONS 14(7)-EFFECT OF AGREEMENT AS TO AFFIDAVIT OF JUROR ON NEW TRIAL. A stipulation of the parties that juror's ex parte affidavit as to proceedings in jury room might be read as if taken on deposition, with reservation as to competency of witness, would not require the affidavit to be considered on motion for new trial; it being conceded that it is against public policy for juror to reveal proceedings in jury room. Appeal from Court of Common Pleas, McKean County. Assumpsit by Katherine Groner against the Supreme Tent of the Knights of the Maccabees of the World, to recover on a life insurance policy. Verdict and judgment for plaintiff for $2,000, and defendant appeals. Affirmed. Argued before BROWN, C. J., and MOSCHZISKER, FRAZER, WALLING, SIMPSON, and KEPHART, JJ. F. D. Gallup, of Smethport, James George, of Bradford, and W. E. Blaney, of Pittsburgh, for appellant. T. F. Mullin, of Bradford, for appellee. MOSCHZISKER, J. July 11, 1917, Katherine Groner sued to recover $2,000 insurance For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes on the life of her husband, Jacob Groner, ten deposition of a witness, one Gilbertson, who she alleged died in the year 1917. The defendant beneficial association claimed there was no sufficient proof of death. Judgment was entered on a verdict in plaintiff's favor, and this appeal followed. Mrs. Groner depended upon evidence of facts justifying the presumption of her husband's death after 7 years' unexplained absence. The testimony produced shows Jacob Groner and his wife lived together for some 12 years in a house which they had built in Bradford City, Pa., where two children were born to them, one, a daughter, still alive. On November 11, 1907, Groner left home with the intention of going to Bartlesville, Okl., to work at his trade of machinist. His wife accompanied him to Salamanoa, and he mailed letters to her "all along his route," sending several from Oklahoma. The shop where Groner was engaged failed, and he wrote home for money, saying he was out of work; thereupon $30 was remitted to him. He was next heard of from Coalinga, Cal., when a check arrived for $50, sent by him to Mary Groner, the daughter, through a man named Frank Thompson. In 1909, Groner wrote "a small little note stating he was in Hanford, Cal., getting his teeth fixed," and from that time on no one received any communication whatever from him. Plaintiff further testified that her husband, so far as she "could find out," had no permanent place of abode in the west, but "seemed to go from one place to another," wherever he could get a job in the "machine shops scattered among the camps where new [oil] wells were coming in"; that she had written every one she knew of from Bradford, "or any one [she] heard of, asking if they could give [her] any information as to [her] husband's whereabouts"; that she communicated with several western oil field men (naming them), in an effort to locate him; that her brother-in-law went on a trip "and tried to find him" for her; that she wrote letters addressed to Jacob Groner, which were not received by him; that, on her request, the mayor of the city wrote the officials of several places in the oil fields "to see if they could not get the police to locate him"; and, finally, that she advertised in the "Machinist's Union Journal," presumably a trade journal of general circulation, and in one of the Bradford papers, offering a reward of $50 for information as to her husband's whereabouts. In addition to the circumstances already recited, it may be noted that Groner had "a pleasant home" in Bradford. His parents, who were much advanced in years, and many friends, lived there. When he left, "his health was poor." In fact, the evidence fails to indicate any reason, other than death, for this man's total disappearance and utter lack of communication with his family who said that he had seen Groner in California, stating, "It might have been in 1913 or 1914-I don't know the exact date;" and the jury were told by the trial judge that, if they believed this testimony, they should find for defendant. It is evident from the verdict, however, the jury did not credit the witness, and that from the evidence produced by plaintiff they concluded Groner must be dead, as alleged by her. [1-3] An examination of the Pennsylvania authorities shows the evidence in this case was ample to sustain the verdict rendered. In Burr v. Sim, 4 Whart. 150, 33 Am. Dec. 50, the person whose death was at issue left his home in 1792 for South America, and was never again heard from. The report does not indicate any special search. We held the English rule "that in the case of an absent, person, of whom no tidings are received, the presumption of the continuance of life ceases at the end of 7 years" to be the law of Pennsylvania. In Bradley v. Bradley, 4 Whart. 173, the trial judge charged, "It was admitted that Francis Bradley had been absent for 16 years and upwards," adding "it is therefore presumed he is dead. The law presumes a man to be dead after 7 years absence, or 7 years from the time that he was last heard of." On appeal, we said the case was "put to the jury with peculiar accuracy," and affirmed a judgment on a verdict in accord with the charge. In Miller v. Beates, 3 Serg. & R. 490, 8 Am. Dec. 658, "it was proved on the part of the plaintiff that John Schlosser went beyond sea, unmarried, many years ago; and the last that was heard of him was by a letter from himself to his father, dated at Bordeaux, November 24, 1802. Pains had been taken to ascertain whether he had died in France; but no evidence of his death could be obtained." The suit was brought in 1817, and the jury found that Schlosser was dead. In affirming, we stated that the statute of 19 Car. 2, c. 6, which enacted, in effect, that persons absent for 7 years, where "no evident proof" was made of "their being alive," shall "be counted as dead," "extends to Pennsylvania"; and that, under the rule thus pronounced, “when a man's being alive is inconsistent with other facts proved in a cause, according to general experience it ought to be presumed that he is not alive." In Whiteside's Appeal, 23 Pa. 114, James Whiteside "had gone to the West or Southwest, and had not been heard of by his relatives in Pennsylvania for above 15 years." This was shown by a witness, not a relative, who further testified that the relatives of the absent man "got a letter from him about 16 years ago"; that "he had heard his relatives frequently speak of him, and they said that letter was the last they heard of him." In affirming a finding of death, we said, "The proof might have been (108 A.) In Esterly's departure of the sons no word was received from either of them. * A witness, who employed Jerry [testified] that the latter indicated an intention of 'going West.'" make out a case prima facie." "The evidence discloses the fact that [the person in question] has been absent, and his absence unaccounted for, for a period far exceeding 7 years." This was held sufficient to justify a finding of death. In Mutual Benefit Co.'s Petition, 174 Pa. 1, 2, 34 Atl. 283, 52 Am. St. Rep. 814, one Schoneman left his home in New York, October 10, 1881, to take a train for Boston, and was not heard of afterwards. "Every inquiry and method of search reasonably possible was adopted by his family and friends to discover his whereabouts." We affirmed a finding that he had died at the end of 7 years from the time of his disappearance. In Francis v. Francis, 180 Pa. 644, 646, 647, 37 Atl. 120, 57 Am. St. Rep. 668, decided in 1897, the person alleged to be dead "had left his home in Scranton, and gone with a colony to settle in Patagonia." He was last heard from in 1876. In passing upon the question as to when he was presumed to have died, we ruled that, when a person departs from his home with a fixed intention of changing his domicile, absence from his last domicile for 7 years must be shown, and the presumption of death "built" thereon. This rule was followed in Morrison's Estate, 183 Pa. 155, 160, 38 Atl. 895, where the person in question re * * These facts were held sufficient to justify standing a contention (258 Pa. 82, 101 Atl. the presumption of their death, notwith914, L. R. A. 1918A, 563) "that an effort to locate the absentees must appear," but, in disposing of this contention, we said: "There was nothing to indicate to the father the possible destination of his sons; had such fact been known to him reasonable search should be required to be made at the place As where the boys were last known to live. matters stood, however, the last-known residence was the home of their father." Again, on page 85, of 258 Pa., on page 915 of 101 Atl., L. R. A. 1918A, 563, we amplified this thought by stating that, if the two boys had "left home with the intention of establishing their permanent residence at another place, absence from such place, unheard of for a period of 7 years, would become necessary to raise the presumption of death." [4] In the case at bar, it appears that plaintiff's husband, after leaving his home in Bradford, did not at any time take up a permanent residence elsewhere. On the contrary he seems to have roved from place to place. Hence the rule referred to, in the three cases cited, as to the requirement of showing absence for 7 years from the last-known, "settled," or "established" domicile has no relevancy. Plaintiff occupied the close relation of wife to insured, and it has been held in other jurisdictions: "A wife who has not been advised of his whereabouts by her absent husband * for the period required to raise the presumption of his death has the right to believe that he is dead, although having made no attempt to find him." 17 Corpus Juris, 1171. In short, the proof required, so far as the obligation to search for the missing one is concerned, depends in a marked degree upon the peculiar facts of each particular case. Here, considering the relation of plaintiff to Groner, his utter failure to advise her of his existence for more than 7 years, together with all the other circumstances in the case, as previously said, the evidence was sufficient to justify the conclusion that he died at moved from his home in this state and "settled" at Ft. Dodge, Kan. Finally, in Maley v. P. R. R. Co., 258 Pa. 73, 101 Atl. 911, L. R. A. 1918A, 563, we held that, notwithstanding the act of June 24, 1885 (P. L. 155) relating to the granting of letters of administration upon the estates of persons presumed to be dead, the common-law rules upon that point are still applicable to cases, arising in the common pleas, involving the question of the presumption of death. After deciding the point just referred to, we state, on page 81, of 258 Pa., 101 Atl. 914, L. R. A. 1918A, 563: versible trial error, in submitting the issues "The remaining question is whether the evi- to the jury, is properly before us for review, dence is sufficient to warrant the jury in find- the judgment for plaintiff must stand; and, ing the fact of death of the two sons. Jerry in this regard, it must be remembered that Maley left home in 1894, when under 20 years the sole exception taken to the charge was of age. Daniel Maley left in 1897, when about the same age. They lived at home with their a general one, asked and granted after the father in the small village of Grover, containing jury retired. Therefore appellant may asabout 150 inhabitants. * * * During the sign for review only material matters "so inlong period of 20 years which elapsed since the adequately presented as to be calculated to the time alleged. [5] As the record stands, unless some re The mislead the jury," or "actual errors of law," I give rise to the presumption that Groner was it being the rule that we "will refuse to re- dead; and this, if, and only if, the jury beview matters not called to the attention of the trial judges unless the alleged errors are basic and fundamental." Sikorski v. P. & R. R. R. Co., 260 Pa. 243, 250, 103 Atl. 618, 620, and Mackowski v. Phila. R. T. Co., 108 Atl. 168, not yet officially reported. [6] After detailing the circumstances of Groner's departure for the west, his absence unheard of, for 7 years, the efforts to locate him, etc., the trial judge immediately charged: "If you find the fact that Katherine Groner has not heard from her husband since 1909, under the circumstances as detailed to you here, the law will raise the presumption that he is dead." Counsel for defendant asked the court, "Did you make clear to the jury that it is not absence of the man for 7 years, but the unexplained absence, that raises the presumption of death?" Whereupon the judge stated: "I intended to so do if I have not; it is not the fact that a man goes away and has been away for 7 years, but it is his unexplained absence which gives rise to the presumption which the law makes that he is dead. If he goes away under normal conditions, as testified to here by Mrs. Groner, and wrote to her afterward, then, for some unexplained reason, ceased to write to her, or to any person, for the period of 7 years, those are circumstances that would give rise to the presumption he was not alive at this time." These instructions are assigned for error. When the parts of the charge complained of are read with their context, particularly the recital of facts depended upon by plaintiff to show the death of her husband, and when the inquiry put by counsel, which called forth the last above quoted instruction, is given due consideration, we are not convinced that any "actual error of law" appears, or that any material matter was "so inadequately presented as to be calculated to mislead the jury." If the charge is taken as a whole, it is quite plain the trial judge, when he said the absent one's failure to write for 7 years "would give rise to the presumption that he was not alive," meant merely that such failure to write, together with the other circumstances in the case, was sufficient to lieved the facts and circumstances detailed to [7] No "basic" or "fundamental" errors appear. If counsel for appellant were dissatisfied with the answer made by the court to their inquiry, which was practically a request for additional instructions, they should have called the attention of the trial judge to the matter of their dissatisfaction, and, if not corrected, taken a special exception. The first two assignments of error are overruled. [8] The remaining assignments complain of the judgment for plaintiff and the refusal to grant defendant a new trial. They rest upon an allegation, based on an ex parte affidavit of a juror named Lindholm, that he and certain of his associates, in reaching their verdict, considered testimony stricken out by the trial judge. Counsel for appellant concede that "what transpired in the jury room cannot be revealed by the testimony y room cannot be revealed by the testimony of any of the jury, as this would be against public policy" (Stull v. Stull, 197 Pa. 243, 248, 253, 254, 47 Atl. 240; Smalley v. Morris, 157 Pa. 349, 351, 358, 27 Atl. 734; also see Wkly. Notes Cas. 185), but contend that a opinion of Thayer, J., in Ring v. Baker, 4 stipulation, entered into between them and counsel for plaintiff, requires the present affidavit to be considered. The court below has this to say upon the point at issue: plaintiff expressly stated that he reserved the We see no error in this ruling. * The assignments are overruled, and the indgment is affirmed. |