with by adopting such conclusions of fact of material import as may seem to be supported by a preponderance of the probabilities of their truth. Finding of facts: 1. About midday on the 19th of July, 1879, a collision occurred between the steamer Scots Greys and the steamer Santiago de Cuba, in the Delaware River, a short distance above the Horseshoe buoy, on the western side of the channel, by which considerable injury was caused to both vessels. 2. The Scots Greys was an iron steamer, about three hundred feet in length, was loaded, and drew twenty-one feet of water, and was ascending the river towards the port of Philadelphia. 3. The Santiago de Cuba was a wooden steamer, was light, and drew thirteen and onehalf feet of water, and was descending the river. 4. The tide was flood, and the current, deflected by the Horseshoe shoal, tended strongly to the eastern or New Jersey shore of the river. 5. This shoal is somewhat in the shape of a horseshoe, with its base on the Pennsylvania or western shore, and its apex in the river, leaving a channel about four hundred yards in width between it and the New Jersey shore. Near this apex, on the eastern edge of the shoal, a buoy is anchored to indicate the turn of channel. 6. Both vessels were in sight of each other for such a distance before they met as to involve no danger of collision, if they had been carefully and skilfully navigated. 7. The Scots Greys first reached the buoy, and put her helm to starboard to make the turn of the channel, and when she rounded the buoy, straightened up to proceed on the western side of the channel. 8. At this time the Santiago de Cuba was several hundred yards above the Scots Greys on the western side of the channel, but her course was eastward of that of the Scots Greys and to her starboard. 9. At the Horseshoe shoal, the narrowness and shape of the channel, and the tendency of the tide, impose upon vessels sailing in opposite directions the duty of observing special caution as a necessary condition of their safety in passing each other. 10. In starboarding her wheel to carry her past the buoy, and in straightening up after she rounded it, that she might pursue the western line of the channel, the Scots Greys did what was proper for her under the circumstances. 11. When the vessels were several hundred yards apart, the Santiago de Cuba sounded a signal with her whistle, and put her helm hard a port, indicating an intention to pass the Scots Greys on her port bow, and which gave her a direction across the track of the Scots Greys. 12. Whether this signal was or was not heard on the Scots Greys, it was not answered, but she kept her course up the western side of the channel. 13. The speed of the Santiago de Cuba was not diminished-at least not soon enough. If she had stopped or slowed down when the Scots Greys was rounding the buoy and straightening up, the collision would not have occurred, because the Scots Greys would have passed the place of the collision before the Santiago de Cuba reached it. Nor would it have occurred if the Santiago de Cuba had not hard ported her helm and sought to pass the Scots Greys on her port side. 14. If, in response to the Santiago de Cuba's movement, the Scots Greys had hard ported her helm, the vessels would probably have been brought together head on, with more disastrous consequences. But the impact of the former's bow was upon the starboard side of the latter, about thirty feet from her bow, thus indicating that if she had kept her course the vessels would have passed in safety. Conclusions of law :: Considering the condition of navigation at the locality in question, the size and depth in the water of the Scots Greys, the direction in which she was sailing, and the difficulty of controlling her movements, she was not in fault in adopting a course up the western side of the channel and in pursuing it without deviation. In view of the same considerations, of the size and draft of the Santiago de Cuba, that she was light, that she was descending the river with the tide towards her head, and her movements completely under command, and that the passage of vessels such as the two in question at the Horseshoe buoy is attended with risk of collision, it was incautious in the Santiago de Cuba to pass the Scots Greys at that point, if she could avoid it. It was the duty of the Santiago de Cuba to stop or slow down when she observed the Scots Greys rounding the buoy. Failing to do either, and in porting her helm and attempting to run across the track of the Scots Greys, when the vessels were in such proximity to each other, she was in fault and must be held responsible for the collision. There must, therefore, be a decree dismissing the libel of the Santiago de Cuba with costs, and a decree in favor of the Scots Greys for the amount of damages sustained by her and costs. Opinion by MCKENNAN, CIR. J. C. M. H. WEEKLY NOTES OF CASES. ficate to the respondents, who held the larger number of shares, declaring them elected. The respondents requested the Court to charge as follows: (1) That stockholders of railroad companies VOL. XIV.] THURSDAY, JAN. 24, 1884. [No. 7. chartered for general public use have no legal Error to the Common Pleas of Venango County. right to cumulate their votes at any corporate election held by said stockholders, and if such corporations are included within the provisions of Art. XVI. sec. 4, of the Constitution of Pennsylvania, the Legislature has not passed any law for carrying into effect the provisions of said article so far as relates to such corporations. Refused. (Fourth assignment of error.) (2) That in order to avail themselves of the right of cumulative voting, the stockholders desiring to do so, must claim the right openly; and if the plaintiffs in this case, together with any other persons, concealed from the defendants and those acting with them, their intention to cumulate their votes on less than the whole number of directors to be elected, and thereby misled the said defendants and those acting with them, as to their intentions so to do, it was such a perversion of Art. XVI. sec. 4, aforesaid, and such a fraud upon the defendants and those acting with them, as to forbid the votes of the plaintiffs and those acting with them to be counted cumulatively; and the verdict should be for the defendants. Refused. (Fifth assignment of error.) Verdict in favor of the relators, and judgment of ouster entered thereon against the respondThe respondents thereupon took this the Court to affirm their first and second points. John P.Vincent (J. Ross Thompson and Miller & Gordon with him), for plaintiffs in error. Quo warranto, by the Commonwealth ex rela-ents. tione Wallace Pierce, Jas. B. Pierce, Frank Pierce, writ, assigning for error, inter alia, the refusal of and James L. Deeter, against Jonas J. Pierce, Enoch Filer, B. H. Henderson, Jos. Forker, and John Phillips, commanding them to show by what warrant they exercise the office of directors of the Sharpsville Railroad Company. The respondents filed an answer and an issue was framed, and the cause transferred from the Common Pleas of Mercer County, where the proceeding was begun, to the Common Pleas of Venango County. On the trial, before TAYLOR, P. J., the followlowing facts appeared : Railroads incorporated for general public use are not included within the provisions of Article XVI. section 4, of the Constitution of 1874. Railroads are public corporations; Foster & Co. v. Fowler & Co. (10 Sm. 27), and Art. XVI. should be construed in the light of the definition given in that case. The General Assembly has not passed any law to carry into effect the provisions of this section. The debates in the constitutional convention show that the advocates of the system of cumulative voting never intended that it should place the control of a corporation in the hands of a minority. (4 Debates, 592, et seq.; 5 Id. 761-763, 765.) Cumulative voting is a privilege and must be claimed openly. Courts will not allow one person to obtain an advantage over another by a trick or by the use of a legal privilege in a manner not intended The Sharpsville Railroad Company was incorporated March 6, 1876. A meeting of the stockholders was called for January 8, 1883, to elect a president and a board of directors, and was duly advertised in the papers of Mercer County. At the election, the relators abstained from voting until the respondents had cast their ballots, and then cumulated their votes on four of the six directors, without making known their intention. The relators voted their stock in the usual way-by the law. folded their ballots and indorsed thereon the number of shares held by the individual. The judges of election refused to count the votes as cumulated by the relators, and issued their certi Rex v. Gaborian, 11 E. 77. King v. Commissioners of St. Martins in the Fields, People v. Albany and Susquehanna Railroad, 55 J. H. McCreery (L. Griffith and Jas. A. Jabove cited vested in the relators, as stockholders, Stranahan, with him), for defendants in error. A corporation is called public when it has for its object the government of a portion of a State, and even if the Commonwealth became a stockholder it would not change its character. All the books agree in placing railroads among private corporations. Pierce on Railroads, I. I Redfield on Railways, 62. Rundle v. Del. & L. Canal Co., 1 Wallace, Jr. 275. Article XVI. sec. 4, of the Constitution evidently applies to private corporations. 1 Debates, 52, 110; 4 Ed. 592, 604. City of Reading v. Althouse. 93 Penn. St. 404. Cooley on Constitutional Limitations, 99. the absolute right to vote as they did, and if, as a consequence of the exercise of such right, their candidates had the highest number of votes cast at that election, they are the rightful directors of the corporation. But, it is said, this provision is but directory, and it cannot go into effect without some legislative action directing the manner of its exercise. To this proposition we cannot assent. There is no alteration required in the mode of conducting corporate elections; each company continues to use that method prescribed by its charter, and the constitutional right is one that belongs solely and exclusively to the individual shareholder. He may exercise it or not as to him may seem proper, but whether he does so exercise such right or not, the ordinary manner of conducting the corporate election is in no wise interfered with. Legislative action is, therefore, uncalled for; it would be useless to alter the present mode of election, and with the right itself the General Assembly cannot meddle. Again, it is urged, that from the heading of this section, it is obviously intended to apply only to private corporations, and as a railroad company October 22, 1883. THE COURT. About the is not a private but public corporation, therefore, correctness of the ruling of the learned Judge of it applies not to the case in hand. To the first the Court below, in this case, we have no doubt. part of this proposition we assent, but dissent as It seems to have been admitted, in the outstart of to the second part. Railroad and canal compathis trial, that the election of the 8th of January, nies are private corporations. This we have de1883, was properly called, was held at the proper cided in point twice within the last two years; time, and was conducted in an orderly and regu- once in the case of Timlow v. The Philadelphia lar manner. Nor is there any doubt but that the and Reading Railroad Company (3 Out. 284), relators received the highest number of votes cast and again in the case of the Pittsburgh and Lake for directors at that election. It is said, however, Erie Railroad Company v. Bruce, argued Decemthat this result was brought about by the cumula- ber 7, 1882 [12 WEEKLY NOTES, 554]. If, howtion of the votes of the relators upon four out of ever, these are not enough for the establishment the six candidates proposed for election. But of the point in issue, we may cite Pierce on this they certainly had a right to do, or we fail Railroads, p. 1; Morawetz on Private Corporacorrectly to read the Constitution of 1874. "Intions, sec. 2; and Redfield on the Law of Railall elections for directors or managers of a corporation, each member or shareholder, may cast the whole number of his votes for one candidate, or distribute them upon two or more candidates, as he may prefer." (Art. XVI. sec. 4.) This section to us seems very plain and unambiguous. If there are six directors to be elected, the single shareholder has six votes, and, contrary to the old rule, he may cast six votes for a single one of the candidates, or he may distribute them to two or more of such candidates as he may think proper. He may cast two ballots for each of three of the proposed directors; three for two, or two for one, and one each for four others, or, finally, he may cast one vote for each of the six candidates. Now as this Sharpsville Railroad Company was incorporated since the adoption of the new Constitution, it is necessarily subject thereto, and must be governed by its provisions. But the provision ways, vol. 1, 52-3. The last-named author cites many books for the position assumed, which any one curious about such matters may consult for himself. So in the case of the Trustees of the Presbyterian Society v. The Auburn and Rochester Railroad Company (3 Hill, 367) it is said that a railroad company is not public, nor does it stand in the place of the public; it is but a private corporation over whose rails the public may travel, if they choose to ride in its cars. Indeed we regard it as a misnomer to attach even the name "quasi public corporation" to a railroad company, for it has none of the features of such corporations, if we except its qualified right of eminent domain, and this it has because of the right reserved to the public to use its way for travel and transportation. Its officers are not public officers, and its business transactions are as private as those of a banking house. Its road her husband, had, without cause, wilfully aban- may be called a quasi public highway, but the 163, December Term, 1873, of this Court, Mrs. company itself is a private corporation and noth- Ellen Ritner, wife of the plaintiff, presented her ing more. We have, therefore, no hesitation in petition to the Court, alleging that Henry Ritner, saying that it is embraced by the provisions of the 4th section of Article XVI. of the Constitution. Finally, we have the allegation of fraud in this, that the relators did not give the respondents notice in advance, that they were going to cumulate their votes on four candidates. But as this was simply the exercise of a constitutional right, of which the respondents were presumed to be as well informed as the relators, and as the Constitution placed its exercise entirely within the volition of the individual stockholder, we do not see who has the right to restrain that volition by the imposition of any condition whatever, or to compel the voter to say in advance whether he will or will not use that privilege. Up to the very moment of voting he has the positive right to exercise his own will in this matter, and to us David Aiken; to be followed by evidence that that sounds like a strange allegation which charges David Aiken erected valuable improvements the plaintiffs with fraud upon the ground simply thereon, and that on the 6th day of April, 1875, that they did that only which the supreme law of he sold and conveyed the same property to the State authorized them to do, that is, quietly George W. Moninger, to be followed and according to their own will, distribute their by evidence that the plaintiff deserted his wife in votes upon four candidates instead of six. With 1867, that he left the State and lived in adultery the learned Judge of the Court below, we must with another woman; that the desertion conagree, that in this there has been no wrong com- tinued on down to the date of the death of Ellen mitted upon the respondents. Ritner in 1880; this, for the purpose of showing Judgment affirmed. that the plaintiff has no title to the property in Opinion by GORDON, J. question." Oct. & Nov. '83, 108. D. Q. E. Objected to by plaintiff. Objection sustained. Exception. Verdict for the plaintiff and judgment thereon. October 16, 1883. Defendant thereupon took this writ, assigning for error the action of the Court in sustaining the objection to his offer. Moninger v. Ritner. Where a husband wilfully abandons his wife, and she, having been declared a feme sole trader, sells real estate which she acquired during coverture, the husband's right as tenant by the curtesy is gone. The feme sole trader Act of 1855, allowing a married woman to convey real estate, is constitutional. Error to the Common Pleas of Washington County. Ejectment, by Henry Ritner against George W. Moninger, for a lot of ground situate on West Chestnut Street, in the borough of Washington. The plaintiff claimed title as tenant by the curtesy in the real estate of his deceased wife, of which the property in question was part. On the trial, before HART, P. J., the following facts appeared: Henry Ritner married Ellen Jones, in 1834. Ellen Ritner, the wife, acquired the property in dispute from Martha Pool, by deed dated July 30, 1860. The defendant offered to prove, "That at No. A. W. and M. C. Acheson, for plaintiff in error. The Act of 1855 does not divest Ritner's estate by the curtesy, for his wife did not acquire the property in question until 1860. Young v. McIntyre, 6 WEEKLY NOTES, 252. Cooley on Constitutional Limitations, cited in 10 The curtesy initiate of the plaintiff vested in 1860, and the Legislature had full power to declare by the Act of 1855 that he should take that estate subject to forfeiture if he deserted his wife. Burson's Appeal, 10 Harris, 167. Millinger's Administrator v. Bausman's Trustee, 9 Melizet's Appeal, 5 Harris, 455. Monroe v. Van Meeter et al., 100 Ill. 352. The case of Ayetsky v. Goery (2 Brewster, 302) does not rule the present contention. In Sidney v. Sidney (3 Peere Williams, 277) Lord Chancellor TALBOT said: "The reason of the difference why a wife, in case of an elopement with an adulterer, forfeits her dower, and yet the husband, leaving his wife and living with another woman, does not forfeit his tenancy by | 29th of January, 1874, conveyed the lot in disthe curtesy, is because the Statute of Westminster pute to David Aiken in fee, who afterwards con(2 cap. 34) does, by express words, under these veyed to George W. Moninger, the defendant. circumstances, create a forfeiture of dower, but This offer was refused, and the jury were inthere is no Act inflicting, in the other case, the structed to find for the plaintiff. forfeiture of a tenancy by the curtesy." In Reel v. Elder (12 Smith, 316) this statute is recognized as in force in Pennsylvania. The Act of 1855 corrects this inequality, and places husband and wife on the same plane. If the Court should not protect purchasers the Act would prove a snare to innocent persons who have paid out their money on the faith of a decree which has been held to be conclusive. Foreman Hosler, 13 Norris, 418. Braden & Miller (John M. Braden, with them), for defendant in error. Prior to the Act of 1855 a married woman in Pennsylvania could not convey her separate estate, unless her husband joined in the deed. Thorndell v. Morrison, I Casey, 326. Foreman v. Hosler (13 Norris, 418); Black v. Tricker (9 Smith, 13); and Wilson v. Coursin (22 Smith, 306) do not decide the doctrine contended for by the plaintiff in error. A wife can no more convey her husband's interest than she can that of any other person. Ayetsky v. Goery, 2 Brewster, 302. Husbands on Married Women, p. 129, sec. 148. Curtesy, like dower, exists by virtue of the marriage contract, and in no way depends on the performance of marital duties by the husband, but exists and grows out of said relation. By that relation the husband acquires a vested right to the use of any real estate, during his life, of which the wife was seised at any time during coverture. Crow v. Kightlinger, I Casey, 344. In this interpretation of the law, and disposition of the case, we cannot agree with the Court below. Taking that offer as proved, we cannot see why it should not determine the controversy in favor of the defendant. The Act of 1855 is so plain, positive, and unambiguous in its terms, that no one need, for one moment, hesitate concerning its design and intention. It secures to the deserted wife not merely the rights and privileges of a feme sole trader, under the Act of 1718, but it also confers upon her the absolute and unqualified right to dispose of her own property, real and personal, as to her may seem best, and further provides, that in case she dies intestate, such property shall pass to her next of kin as though her husband were previously dead. About the fact, therefore, that Mrs. Ritner had the right so far as it could be conferred upon her by this statute, to sell the property in question, can be no doubt. Moreover, of her power so to unincumbered by her husband's curtesy, there sell and dispose of this property, the certificate issued to her by the Common Pleas, is, by the sixth section of the Act above recited, made conclusive evidence, and so continues to be until it is revoked by the authority from which it emanated. It follows, that the Court below, in ruling out the offer of the defendant, disregarded a plain and positive injunction of the General Assembly. But the counsel for the plaintiff below interposes the plea that Ritner, having been married Harris v. York Mutual Insurance Co., 14 Wright, 341. to his wife, Ellen, before the passage of the Act Lefever v. Witmer, 10 Barr, 505. November 5, 1883. THE COURT. The plaintiff below claims title to the property in controversy by virtue of his right as tenant by the curtesy in the estate of his deceased wife, Ellen Ritner, who died some time in July 1880. As she was seised of the lot in dispute during her coverture, were there nothing else in the case, his right to have and hold it, during the term of his natural life, could not be successfully controverted. But on the part of the defence there was an offer made to show that, on the petition of Ellen Ritner setting forth the fact that her husband had, without cause, wilfully abandoned her, the Court of Common Pleas of Washington County had, in pursuance of the Act of the 14th of May, 1855, made its decree, on the 21st of October, 1873, constituting her a feme sole trader, and had issued to her a certificate to that effect. That being thus fully empowered to dispose of her property as though she were sole, she on the of 1855, had such a vested right not only in the property which she had, but also in that which she might afterwards acquire during their marriage, that the Act of 1855 was, as to him, unconstitutional and void. In other words such was the inherent power of the marriage contract, that without regard to the performance of that contract on his part, the peculiar rights acquired at its inception could not be abridged, altered or modified by any power short of his own will. But the statement of this proposition is its own refutation. The very premises on which the Act is founded is that the marriage contract has been violated; that the husband has deserted his wife and refuses to support and maintain her. It is, therefore, a curious travesty on the constitutional powers of this Commonwealth to say that the Legislature can make no provision for the support of an abandoned wife, if such provision happens to infringe upon some marital right of the derelict husband. But independently of the arguments which may |