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formal revocation of the agreement to submit to arbitrators, and gave notice thereof to the arbitrators and the defendant. The arbitrators subsequently filed an award in favor of the defendant, and we held that the submission was not a bare agreement to refer, but that it was founded on a new consideration, involving the relinquishment of valuable rights, and was irrevocable. In Grimm v. Sarmiento, 18 Phila. 307, our Brother Mitchell, then on the lower court, concisely declared the law when he said: "The rule that a submission to a referee or arbitration is revocable at any time before award has several exceptions. First, it is settled in this state, at least, that, if the submission was upon a consideration, it is no longer a naked authority, but a contract, and is not revocable." Instead of entering judgment on the award, suit was brought upon it. This was McCune's right. He might have had the agreement to submit made a rule of court, and the award a judgment of the court; but that was not his only remedy. He could resort to his remedy at common law, and sue on the award. Morse, Arb. 575. We have not been persuaded that the award was not within the submission, and, no sufficient reason having been given why the appellant should not abide by it, all the assignments of error are overruled, and the judgment entered by the court below is affirmed.

(197 Pa. 212)

LYON v. LYON.

(Supreme Court of Pennsylvania. Oct. 8, 1900.)

HUSBAND AND WIFE ALIENATING HUSBAND'S AFFECTIONS-ACTION FOR DAMAGES-EVIDENCE-RES GESTEÆ.

1. Where, in an action by a wife for damages for the alienation of her husband's affections, the testimony substantiating her claim is relevant, and, if credited by the jury, will entitle her to judgment, the court may properly refuse defendant's points asserting the insufficiency of the evidence to warrant the submission of the cause to the jury.

2. In an action by a wife for damages for alienating her husband's affections, the hus band's statements to a third party respecting his wife after his abandonment of her are not admissible as res gestæ.

3. In an action by a wife for damages for alienation of her husband's affections, the exclusion of the husband's statements that he would never live with his wife again, on the ground that the statements were made to witness as the husband's legal adviser, is error, where the evidence was insufficient to support such contention.

Appeal from court of common pleas, Center county.

Action by Rose Sternberg Lyon against Gustave Lyon. From a judgment for plaintiff, defendant appeals. Reversed.

A. O. Furst and James Scarlet, for appellant. Orvis, Bower & Orvis and E. C. Chambers, for appellee.

MCCOLLUM, J. This is a sult in which the plaintiff charges the defendant with having alienated the affections of her husband, 47 A.-13

and thus accomplished his abandonment of her. The answer of the defendant to the charge is that no word or act of his at any time caused or contributed to the alienation complained of, and that, on discovering the husband's purpose to abandon his wife, he did all in his power to prevent the execution of it. The issue thus made required the jury to determine it upon the relevant and competent testimony in the case. If error appeared in the admission of irrelevant and incompetent testimony, or in the rejection of evidence which was relevant and competent, it was the province and duty of the court, on application of the injured party, to correct it. In the case in hand the defendant alleges error in the admission and rejection of testimony in the answers to the written points he submitted to the court, and in the excerpts from the charge on which the thirteenth, fourteenth, and fifteenth assignments are based. The first, third, fourth, and fifth points submitted to the court by the defendant constitute the basis of the first, second, third, and fourth assignments, and amount to an assertion by him that there was no sufficient evidence to warrant the submission of the case to the jury. The defendant also alleges error in the affirmance by the court of the plaintiff's second point, "as an abstract proposition of law." The testimony introduced by the plaintiff to substantiate her claim against the defendant was relevant to the issue involved, and, if credited by the jury, entitled her to a verdict in accordance with her contention. It follows as a logical sequence that there was no error in the refusal of the court to affirm the defendant's points as stated. As to the plaintiff's second point, which constitutes the basis of the fifth assignment, it is sufficient to say that the answer to it harmonizes with the general charge relating to punitive damages. It may also be said in this connection that the reduction of the verdict in the "opinion and decree refusing a new trial" evinced a purpose on the part of the court to limit the verdict to compensatory damages.

The rulings complained of in the eighth, ninth, tenth, and eleventh assignments may be considered together. They related to the rejection of offers to prove by Pauline Lichten that her brother Moyer had no affection for his wife, and to the rejection of an offer to prove by the defendant that Moyer endeavored "to become reconciled to his wife and resume marital relations." The rejected offers referred to alleged declarations and statements of Moyer to his brother and sister respecting his wife after his abandonment of her. It is clear, therefore, that the declarations and statements alleged to have been made were not admissible as a part of the res gestæ.

We discover no error in the rulings complained of in the twelfth assignment, or in the excerpts from the charge which constitute the basis of the thirteenth, fourteenth, and fifteenth assignments.

The sixth and seventh assignments relate to the exclusion of W. F. Reeder as a witness to testify to declarations and statements made by Moyer on the 29th of December, 1893, to the effect that he would never live with his wife thereafter. The alleged ground of the exclusion was that Reeder, at the time the declarations or statements were made, was the legal adviser of Moyer. The testimony, however, was not sufficient to support this contention. We therefore sustain the sixth and seventh assignments. Judgment reversed, and a new venire facias de novo awarded.

197 Pa. 353)

MILLS v. RITTER. (Supreme Court of Pennsylvania. Oct. 8, 1900.) DOWER-JUDICIAL SALE OF PROPERTY BY ASSIGNEE.

Under Act Feb. 17, 1876 (P. L. 1876, p. 4), authorizing assignees to sell realty under the court's order when the property is so incumbered as to make it difficult to determine whether it can be sold for enough to pay all the liens, an assignee's sale of his assignor's realty, under an order of court, does not pass title free from the contingent dower of assignor's wife, where she did not join in the assignment.

McCollum, C. J., and Mitchell, J., dissenting. Appeal from court of common pleas, Cumberland county.

Action by George Edward Mills, assignee of C. D. Cameron, against Ella N. Ritter, to recover the purchase money of certain realty. From a judgment for defendant, plaintiff appeals. Affirmed.

Geo. Edward Mills and E. M. Biddle, Jr., for appellant.

BROWN, J. The single question raised on this appeal is, does a sale by an assignee of the assignor's real estate, under an order of court awarded in pursuance of the act of February 17, 1876 (P. L. 1876, p. 4), pass a title free from the incipient or contingent dower of the assignor's wife, if she did not join in the deed of assignment? As a reason why this right of the wife passes under a sale so made, it is urged that the sale is a judicial one, and devests everything except the liens preserved by the act. Such a sale is undoubtedly judicial. The very terms of the act make it such, and we have distinctly so held. In re Meyers' Estate, 192 Pa. St. 458, 43 Atl. 998. But the pertinent inquiry is, what does the assignee sell, even if his sale is a judicial one? Certainly nothing more than the assignor passed into his hands for sale. The deed of assignment is the voluntary act of the assignor, conveying nothing to the assignee as a purchaser. The embarrassed or insolvent debtor adopts it for his relief or for the equal distribution of his estate among his creditors. "Perhaps nothing is better settled in this state, by uniform and numerous decisions, than this: That a voluntary assignee is the mere representative of

the debtor, enjoying his rights only and no others, and is bound where he would be bound; that he is not the representative of the creditors, and is not clothed with their power; that he is but a volunteer, and not a bona fide purchaser for value. * ** * He is, in short, but the hand of the assignor in the distribution of his estate among his creditors." In re Fulton's Estate, 51 Pa. St. 204. The assignor passes to the assignee only such estate or property as he himself could sell or dispose of, and, in the case of real estate, only such interest in it as he, if married, could convey without his wife's joining in the deed.

In the case before us, the assignee took the real estate of the assignor for the purpose of selling it and distributing the proceeds among his creditors; but, the wife not having joined in the deed of assignment, her incipient or contingent dower did not pass by it. If the assignee had undertaken to sell, by virtue of the power contained in the deed of assignment, and without any order of court, the real estate so held by him in trust for the creditors of the assignor, it is admitted that the wife's right of dower would not pass to the purchaser. Helfrich v. Obermyer, 15 Pa. St. 113. If the assignee, without an order of court, I could have sold only what passed to him as trustee, how could he sell more under an order? It is true, his sale under the direction of the court was a judicial one, and devested, in the language of the act, "all liens against the real estate so sold." But what was this real estate so sold? It was land of the assignor that he could not have sold discharged of his wife's right of dower without her formal release, and it continued to be impressed with that right in the hands of the assignee under the deed of assignment. The wife had done nothing to affect or impair her right in it. When the assignee asked for an order of sale under the act referred to, he could have asked to sell no more than the assignor had placed in his hands, and the court could not, by its order, have enlarged the assignor's interest in the land. Keeping in mind that the deed of assignment fixed the quantum of the estate that passed to the assignee, and that the act of assembly did not enlarge it, but simply regulated the manner and the effect of the sale of it, the determination of the question before us is free from difficulty. The power of the assignee to sell was limited to the estate that had passed to him from 'the assignor for the purposes of the trust, and the wife's contingent right of dower, not having passed by the deed of her husband, remained in her, to become absolute if she should survive him. Authority for this reasonable conclusion can be found in Lazear v. Porter, 87 Pa. St. 513. In that case, all the real estate of the bankrupt, in adverse proceedings instituted against him by creditors, had vested in his assignee; and on a judicial sale of the same, under an order of court, directing that all liens and incumbrances except a certain mortgage should be

discharged, it was held that the wife's right of dower remained unimpaired. "Nothing," said the late Justice Trunkey, "should be taken to prejudice a wife's estate by mere inference. A statute ought not to be interpreted as authorizing a sale of the husband's lands freed from dower unless such is the clear intendment. Were the meaning of the bankrupt law and the effect of a sale of the bankrupt's land as to dower doubtful, the conclusion must be that the wife's estate is not devested."

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It may be well for us to again say, as was said by our Brother Fell in Re Meyers' Estate, supra, that it is not the purpose of Act Feb. 17, 1876, to take away from judgment creditors the right to proceed by execution to collect their claims, and that this right is not taken away from them at all, except in cases where the estate of the assignor is "incumbered with liens to such an extent as to render it difficult to determine whether the same can be sold for enough to pay all the liens," and then only "when the said court shall deem it for the manifest interest of all parties." In no case is the order of sale a matter of right, but of discretion on the part of the court, when the estate is incumbered, as set forth in the act; and even then an order cannot be made until notice of the intended application for the same shall be given to the lien creditors or their attorneys, that they may be heard touching it. In the exceptional case of a deed of assignment by an assignor whose wife does not unite in it, it would not, in view of what we have said, be for the manifest interest of all parties that an order of sale should issue, and, upon objection by any lien creditor, ought to be withheld. Sale on execution would then give to the lien creditors the proceeds of the real estate sold, discharged of the wife's interest. The judgment of the court below, having been properly entered on the case stated, is now affirmed.

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In an action against a municipal corporation to recover damages for destruction of property by fire alleged to have been communicated to plaintiff's premises from adjacent lots used for the deposit of inflammable matter, the city's liability is for the jury, where the testimony as to the time when and the place where the fire started, and the precautions taken to prevent its spread, is conflicting, and not so preponderating as to warrant the court in charging that the city was not negligent.

Appeal from court of common pleas, Schuylkill county.

Action by Henry Grow against the corporation of the borough of Pottsville. From a

judgment for plaintiff," defendant appeals. Affirmed..

The following extract from the charge of the presiding judge sufficiently presents the question involved (McCLURE, P. J., specially presiding):

"In this case the plaintiff seeks to recover damages from the borough of Pottsville for negligently, as the plaintiff contends, destroying his lot or lots situate on Worman street. It seems the plaintiff is the owner of some land adjoining this new bridge, which you have viewed, some ninety-seven feet in front, separated into two parts by a fortyfoot lot owned by another party. The contention of the plaintiff is that these lots were in good condition, were up level with the street, free from fire, and that the borough, acting through its officers, negligently caused fire to be communicated to his lot or lots, and destroyed them, both by the fire, and by digging in the lots to prevent the fire spreading to other property. The gist of this action is negligence. It is contended that the borough of Pottsville has been careless in the management of the streets in that neighborhood, and that it was by reason of this carelessness that the fire was communicated to the property of the plaintiff. The land in this neighborhood was a cinder dump, according to the testimony of all of the witnesses, extending along the banks of the river. There had been iron mills in operation a number of years ago, and the ashes from the puddling and heating furnaces were hauled out upon this dump, and evidently considerable material containing carbon was in ft. Mr. Grow's lots were composed of the same material. The dump extended on eastward from his property. The plaintiff's contention is that these lots were in good condition; that, by' the negligent act of the borough officers in filling up a part of old Worman street, they allowed ashes and garbage containing about everything that you could name, that could come from the town, to be dumped upon this street, much of it being inflammable matter; that burning material was hauled and dumped there, and covered over by a man leveling the dump, who one of the witnesses characterized as 'the borough man.' It is contended by the plaintiff that this was the cause-the origin of the fire, and that the borough, having knowledge of the material of which this dump was composed, and also of the road which they were making, was negligent, in the first place, in causing the fire, and, in the second place, in allowing it to continue. If you find that the borough started or caused the fire it would be responsible for the result of it If you find that the borough did not start the fire, but it was carelessly and negligently allowed by it to be communicated to the prop erty of the plaintiff, it would be responsible for that, and should respond in damages to whatever amount the plaintiff has sustained.

"The first question, we apprehend, you will have to determine, will be where the fire

started and how. We do not propose to recite to you the testimony of the witnesses. You have heard them all, and we have been issisted by able counsel in this case all the way through. They have thoroughly discussed the matter before you, and, I have no doubt, rendered all the assistance in their power to have you arrive at a proper conclusion as to the origin of the fire; the plaintiff contending that it was caused by this burning material hauled out upon the dump; the defendant contending that was not the cause of the fire at all, but that the fire had been in this dump many years, one witness going back to the fifties, another to 1879, and another placing the fire along the line of the river, further on, and where the dump was made by the borough. You will have to take the testimony of all these witneses, and determine where it was that that fire started, and how. If you find, as we have said, that the fire was started by the borough, then it is responsible. If it was not started by the borough, then you go a step further, and ascertain whether or not the borough was careless and negligent in the handling of it.

"The plaintiff contends that this fire was of small size and known to the officials, as the supervisor was about there, and that, as one witness put it, it could have been put out with a man in a few hours' time. It is necessary for that knowledge to be brought home to the officers of the borough, unless it actually, through its agents, caused the fire. If the officials had knowledge of this fire, did they act as prudent, careful men would unIder the circumstances? That is the rule which guides all people,-borough officials and men in private station. If you seek to hold a man guilty of negligence, you must show that he has not acted as a careful, prudent man would under the circumstances; that is, an ordinarily prudent and careful man. So you will have to take into consideration all the circumstances connected with the fire, the character of the material on the land, the distance from other properties, and the knowledge which an ordinary man would have of putting out a fire of that kind. This was not an ordinary fire, such as we have fire apparatus to combat,-houses, buildings, -but it was a subterranean fire, running along under the surface of the ground. It will be for you to say whether or not this borough council acted as careful, prudent men would under the circumstances, in the extinguishment of the fire. If it did, then the borough is not responsible for the spread of the fire.

"The evidence on the part of the defendant is that when this fire was discovered in 1893 (it was discovered in November, 1892, by the plaintiff's witnesses) operations were commenced with a view to extinguish it by water; that they opened fire plugs in the town, and conducted the water there by hose; that they dug trenches, and ran the water in those, and used means of this kind for months; that they were unsuccessful, and

afterwards tried chemicals; that that also proved unsuccessful, and the fire still continued to work its way westward, and finally came upon the plaintiff's property. If the fire got into the plaintiff's property without any fault of the borough, we would say to you that it had a perfect right to go there and remove his property,-dig it out, haul it away, or do any other thing that was necessary, and that would accomplish the object of putting out the fire and preventing its spread to neighboring properties. The evidence is that there were some twenty-one houses that were endangered by the spread of the fire, direct. Besides, the smells that arose from it constituted an annoyance to the whole neighborhood and a nuisance to the town. The borough would have the right, if free from fault, to go upon the property and do as it did to cut off the fire. You understand the reason for that. Suppose, in a row of houses connected together, the end house should start to burn. When the fire company would come there (that is, the borough acting through a fire company), it would have a perfect right to destroy the second house in order to save the balance of the row. The reason of that is plain. If it was not destroyed by tearing down, it would be destroyed by burning. There it is a matter of public necessity. The building is destroyed, and the owner must suffer the loss, without remedy as against the borough. So, here, Mr. Grow must stand this loss if this fire was in his lot without the negligence of the borough. The great question for you to determine is, did the borough set it on fire? Or, second, did it carelessly and negligently allow it to approach his lot? If it was through its negligence that it got into his lot, the digging of his lot away would not relieve it from responsibility for its acts. The defendant's contention, as we stated, is that the fire did not originate as the plaintiff says; that it had been there for years; that it originated on the Haywood lots, and was communicated from there, through underneath the surface, to the property of the plaintiff; and that the borough exercised all the care and diligence that a reasonably careful and prudent man would under the circumstances. Lastly, the borough claims that, even if the property was burned, the plaintiff has sustained no damage, because his lots are now worth as much, if not more, than they were before.

"If you find that the defendant is responsible for this fire and the destruction of the property, you come then to the last question in the case,-what are his damages? There is evidence on the part of Mr. Grow that the property was worth two thousand five hundred dollars, and that now it is worth nothing. Mr. Wagner testifies it was worth three hundred dollars for a twenty-foot lot; now worth nothing. Mr. Donne said it was worth twenty-five hundred dollars; now worth nothing. Mr. Kershner testifies it was worth fifteen to twenty hundred dollars; now worth

nothing. That is only part of the testimony in the case. We do not pretend to cite it all. We simply cite some of the witnesses, and recail it to your memory. You will remem

ber all that has been testified on that subject. One of the defendant's witnesses, Mr. Helms, stated that the property had no value before, and now it has some value, because the inflammable material was off of the property, burned off, and it is now safe for a man to build a house there, which it was not before. Mr. Snyder thought the property was worth ten dollars a foot, and now it is worth nothing. Mr. Sheafer thought it was worth three hundred dollars, but was worth more afterwards than before the fire. He gave, we believe, as a reason, that a foundation could be secured to build upon the property. Mr. Otterbein thought it was worth from ten to twelve dollars a foot. There is evidence on the part of the defendant that this property could be restored to its former condition without cost to the plaintiff. That is a question you will have to determine. The plaintiff claims it could not be restored at all, and that, even if it were filled up with earth from excavations of cellars, it would require years for it to settle so that a safe foundation could be erected upon it; also, that the fire is there surrounding the property on two sides; that therefore it is not at all desirable for building purposes, and that a man would not, under the circumstances, erect a building upon the property. The burden in all cases rests on the plaintiff to prove to a jury that the defendant is negligent, and also to prove the amount of his damages. In other words, when a man comes into court he should show by the weight of the testimony that his contention is worthy of belief. If you find the plaintiff has sustained damages, and that the defendant is liable for those damages, then you must assess them; and the measure of those damages would be the cost of the restoration of those lots by Mr. Grow, if they can be restored, unless that cost equals or exceeds the depreciation in the value of the property, in which event the depreciation would be the measure of damages. If the lots cannot be restored, then the depreciation or the value of the property destroyed would be the measure, and whether they can or not is a question for you to decide under all the testimony in the case. This fire occurred some years ago, and the testimony of the witnesses was necessarily not consistent. If you go back five or six years, it is very difficult for honest, wellmeaning people to agree on dates and times for the happening of certain events. We have found that illustrated in this case. It is for you to say which of these men have told the truth. Many of them may have supposed they were telling it, but there are discrepancies in the testimony which it is necessary for you to reconcile, or to determine who of them you will believe, and who not. The credibility of the witnesses is always for

the jury, and with that the court has nothing to do."

Guy E. Farquhar and Arthur J. Pilgram, for appellant. George W. Ryon and W. J. Whitehouse, for appellee.

BROWN, J. This case was for the consideration of the jury. The court could not have withdrawn it from them. We have discovered no substantial error in the record, and, substantial justice having been done by the verdict of the jury, the judgment on it is affirmed.

(197 Pa. 347)

MILNES et al. v. VAN GILDER et al. (Supreme Court of Pennsylvania. Oct. 8, 1900.)

ADVERSE POSSESSION-VENDOR AND VENDEE
-HOSTILE CHARACTER OF POSSES-
SION-EVIDENCE.

1. Where a vendor refuses to deliver possession of the premises after demand by the vendee, and the latter delays for over 21 years before proceeding for the recovery of possession, his deed will not prevail against the vendor's adverse possession.

2. Where a vendor, after conveyance, refuses to deliver possession on demand by the vendee, and for more than 21 years before suit for such possession retains the premises, using and enjoying them and paying taxes regularly, such possession is hostile and adverse, precluding the vendee from recovering the premises.

Dean, J., dissenting.

Appeal from court of common pleas, Lycoming county.

Ejectment by William B. Milnes and others against Samuel G. Van Gilder and others. From a judgment for plaintiffs, defendants appeal. Reversed.

Ames & Hammond, for appellants. J. T. Fredericks, for appellees.

BROWN, J. The facts in this case can be very briefly stated. Mary A. Van Gilder, the owner in her own right of the premises in dispute, as devisee of her father, Allan Harvey, conveyed the same, by a deed of general warranty, on July 30, 1870, to William Milnes, the ancestor of the appellees, but did not deliver possession to him. On September 9, 1871, Milnes conveyed them to John R. Hazelet, who, on October 4, 1871, served written notice on Mary A. Van Gilder and Samuel G. Van Gilder, her husband, that he had purchased the property, and demanded possession, which was refused. After so serving notice on the Van Gilders, and their refusal upon demand, so made, to surrender possession of the premises to him, Hazelet, in a conversation with Milnes, was told by the latter that he could not deliver possession. Milnes, having been so unable to deliver possession to Hazelet, paid him $150 or $200, and took a reconveyance of the land by deed dated January 16, 1872. From October 4, 1871, the date of the demand by Hazelet upon the Van Gilders for the surrender of the premises to him and their refusal, they re

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