the clause, "and was also thereby forced and obliged to pay, lay out, and expend divers sums of money, to wit, the sum of one hundred dollars, in and about endeavoring to be cured of the sickness, soreness, lameness, disorder, and injuries aforesaid, occasioned as aforesaid," is insufficient, because it lacks an allegation of time, which is necessary in every traversable allegation. But the conjunction "and," connecting this sentence closely to the next preceding sentence, in which there is a proper allegation of time and place, brings that allegation into this clause, as a part of it. Royce v. Maloney, 58 Vt. 437, 5 Atl. Rep. 395. He further contends that there is no allegation that the plaintiff did pay out and expend the sum named. We think the allegation that she was "forced and obliged to pay, lay out, and expend," etc., is equivalent to alleging that she did pay, lay out, and expend. It was the legal duty of the plaintiff carefully to heal and cure the injuries wrongfully inflicted upon her by the defendants. The damages set forth in this clause of the count are the common and ordinary consequences of the injury complained of, recoverable without being specially alleged. Hutchinson v. Granger, 13 Vt. 386. A good cause of action for the recovery of these damages would be contained in this count of declaration, if this clause were treated as surplusage. Wholly immaterial allegations may be ordered stricken out, but are not demurrable. A demurrer properly reaches the substance only, or what is essential to the action. 2 Chit. Pl. *p. 661. These are all the defects in the first count now relied upon under the special demurrer.

4. The second count is denominated a "count in case" for the same cause of action. Trespass and case may be joined. This is authorized by statute. R. L. § 912. This count declares that the plaintiff on the occasion owned a sleigh and horse, and was riding in the sleigh drawn by the horse, on a public highway; that the defendant Merritt E. owned also a horse and sleigh, which were being driven along the same highway by the defendant John Burgess, a son and servant, acting in the business, employment, and under the direction of defendant Merritt E.; and that the defendants, not minding their duty, so negligently and unskillfully managed and behaved themselves, so ignorantly, carelessly, and negligently drove, managed, guided, and governed the sleigh of Merritt E., that, for want of good and sufficient care and management, and by furious driving, it struck against the sleigh of the plaintiff, and caused the damages complained of. This is the substance of what is set forth in the second count. We think this is a count in case for the negligent act of the defendant John, for whose act the defendant Merritt E., by relation,-whether he was in the sleigh with his son at the time of the accident or not,-was also responsible. If the accident and injury were the indirect or consequential result of the neg. ligent act of defendant John, then the action may be maintained against both defendants, but, if the direct and immediate result of his negligent act, the action in this form may be maintainable against

Merritt E. only. That will depend upon the proof. The count declares for the indirect and consequential result of the negligent act of both. It does not declare for the direct and immediate result of the negligent act of John, and also for the indirect and consequential act of Merritt E. It is not double, as contended by demurrants. Taken as a whole, the count is certain to a common intent. We think the language used, taken in its natural sense, imports the meaning we have indicated, and any other meaning must be made out by argument or inference. When this is the case, the natural sense shall prevail, and the count, in this kind of action, will be held sufficient. 1 Chit. Pl. *p. 233. The demurrants' other objections to this count are either the same objections already considered, put in another form of phraseology, or such as have been considered, in regard to the first count.

Judgment affirmed, and cause remanded.

(84 Me. 107)

CHASE V. JONES et al. (Supreme Judicial Court of Maine. Dec. 12, 1891.)

Exceptions from supreme judicial court, Hancock county.

Action by Edward Chase against Charles M. Jones and another on a certain con. tract. Exceptions overruled.

M. S. Holway, for plaintiff. Beane & Beane, for defendants.

FOSTER, J. This case was heard by the presiding justice without the intervention of a jury, with the right of exceptions. He found there was a contract of sale, and that there was no rescission of it. The bill of exceptions states that these findings "are matters of fact, inade upon the

whole evidence.

There was ample evidence tending to prove a sale of the ice to the defendants, and that there was no rescission of the contract.

Upon these questions the finding of the presiding justice is conclusive, and we cannot revise it. This case is governed by the la was laid down in Pettengill v. Shoenbar, (Me.) 24 Atl. Rep. 584, where the question in relation to exceptions to rulings upon questions of fact is fully considered and authorities cited; and by Barrett v. McHugh, 128 Mass. 165, 166. Exceptions overruled.

PETERS, C. J., and WALTON, VIRGIN, EMERY, and HASKELL, JJ., concur.

(84 Me. 107)

KNIGHT V. MCKINNEY. (Supreme Judicial Court of Maine. Dec. 12, 1891.)

MORTGAGES-PRESUMPTION OF PAYMENT FROM LAPSE OF TIME-EVIDENCE.

1. Nothing but payment of the debt or its release will discharge a mortgage.

2. The lapse of 20 years from the maturity of a mortgage raises only a presumption of payment, which may be repelled.

3. Relationship of the parties, as well as the pecuniary circumstances of the parties, has legitimate weight upon this question. (Official.)

Report from supreme judicial court, Waldo county.

Action by Johnson Knight, administra. tor, against Nancy McKinney, to recover land.

J. H. Montgomery, for plaintiff. W. P. Thompson, for defendant.

FOSTER, J. Real action, brought by the administrator of the mortgagee against the defendant, who claims title and right to possession of the demanded premises under a mortgage of earlier date.

The mortgage under which the plaintiff claims title was given by the defendant's husband to Henry Knight, the plaintiff's intestate, October 20, 1879. That under which defendant claims title and possession was given by her husband to Seth L. Milliken, October 1, 1861, and by him as. signed to her February 26, 1863.

The question upon which the rights of these parties depends is whether or not the mortgage under which the defendant claims is a valid subsisting mortgage, or whether it has been paid in fact, or presumptively by lapse of time, so that it has no longer any legal existence.

If the mortgage is still a subsisting lien upon the real estate, the plaintiff cannot maintain this action.

The plaintiff relies upon the presumption of payment raised by the lapse of 20 years.

The uncontradicted evidence satisfies us that the mortgage has never been paid. Nothing but payment of the debt or its release will discharge a mortgage. Bunker v. Barron, 79 Me. 62, 8 Atl. Rep. 253. The lapse of 20 years from the maturity of a mortgage raises only a presumption, which may be repelled in various ways. The defendant purchased the mortgage and note in good faith, with money of her own. The assignment was made to her by the owner of it, and it thereby remained a subsisting lien upon the premises. Her husband, the mortgagor, had gone into the army. He was in posses. sion of the premises up to the time of entering the service, and the defendant continued in possession ever afterwards. died in 1887. Milliken had been unable to collect either principal or interest of the husband. He was virtually insolvent.

He

The plaintiff contends that the mortgage has become barred by the statute of limitations. inasmuch as no steps have been taken to enforce it since it became due in October, 1862.

As bearing upon that question, the relationship of the parties has considerable weight, as well as the pecuniary circumstances of the party owing the debt. Philbrook v. Clark, 77 Me. 176. Thus in the case of Wanmaker v. Van Buskirk, 1 N. J. Eq. 685, presumption of payment of a mortgage 23 years overdue, given by Van Buskirk to Wanmaker, his wife's father, was relied on. The court said: Length of time may be set up to show that nothing is due, as well as to raise a presumption of payment. Still it is but a presumption; and the fact that in this case the parties interested are nearly related, and that the collection of the money might have occasioned distress, and even

v.24A.no.17-47

the payment of interest inconvenience, is sufficient to repel it. In cases where length of time is relied upon as evidence of payment, it may be repelled by showing the fact that the party was a near relation. This presumption may be repelled by a variety of circumstances. The very situation of the parties is of itself sufficient. One ground for a presumption of payment growing out of a lapse of time is that a man is always ready to enjoy bis own. Whatever will repel this will take away the presumption of payment, and for this purpose it has been held sufficient that the party was insolvent or a near relation.

Under an insurance policy providing that the entire policy shall be void if the interest of the insured be not truly stated therein, where one insures property in his own name without informing the company that it belonged to his wife, she cannot recover for a loss, there being no case for reformation for fraud, accident, or mistake.

Appeal from court of common pleas, Lancaster county.

Action by Emma M. Diffenbaugh against the Union Fire Insurance Company of San Francisco, Cal. From a judgment of nonsuit, plaintiff appeals. Affirmed.

H. C. Brubaker and G. C. Kennedy, for appellant. Marriott Brosius, for appellee.

PAXSON, C. J. This was an action in the court below to recover the amount of loss sustained under a fire insurance policy. Upon the trial below the plaintiff offered the policy in evidence, which, upon objection, was excluded by the court. The ground for this ruling was that the policy was in the name of Henry Diffen. baugh, while the suit was brought in the name of Emma M. Diffenbaugh, his wife. In other words, the husband insured the property in his own name, while the insurable interest and title thereto was in his wife. The learned judge also declined to permit the plaintiff to prove by her husband that he was acting as her agent when he made the application for the insurance with the agents of defendant company. There was no offer to show that when the company wrote the policy they were informed of the fact that the property belonged to the wife. The plaintiff relies upon Harris v. Insurance Co., 50 Pa. St. 349, Story on Agency, and some other authorities, to sustain her position that, where an insurance is effected by an agent, he may insure in his own name or in the name and for the benefit of his principal. Story does certainly lay down this doctrine, and

we are not now disputing it. All that Harris v. Insurance Co. decided was that a tenant by the curtesy has an insurable interest in the real estate of his wife. It is true the language of WOODWARD, C. J., is broader than the point decided. In the case in hand, however, the policy contains a clause which takes it out of the line of cases cited by the appellant. The clause is as follows: "This entire policy shall be void * if the interest of the insured be not truly stated herein.” This clause is not without force. Its meaning is apparent. Its object is to enable the insurance company to know who it is insuring. It might be entirely willing to insure the property of A., and yet refuse to insure the property of B. upon any terms. As there was no pretense that when Henry Diffenbaugh insured this property in his own name he informed the company that the property belonged to his wife, we are of opinion the latter cannot recover, and that she was properly nonsuited. It is true that equity will reform a written contract in a case of fraud, accident, or mistake. There was no evidence, how. ever, before the court, by which this contract could have been reformed, nor was there any offer made to reform it. Judgment affirmed.

(150 Pa. St. 274)

DIFFENBAUGH V. NEW HAMPSHIRE FIRE INS. CO OF MANCHESTER.

(Supreme Court of Pennsylvania. July 13, 1892.) Appeal from court of common pleas, Lancaster county.

Action by Emma M. Diffenbaugh against the New Hampshire Fire Insurance Company of Manchester, N. H., on a fire policy. From a judgment of nonsuit, plaintiff appeals. Affirmed.

H. C. Brubaker and G. C. Kennedy, for appellant. Marriott Brosius, for appellee.

PER CURIAM. This case is ruled by Diffenbaugh v. Insurance Co., 24 Atl. Rep. 745, (just decided.) Judgment affirmed.

COOK et al. v. WILLIAMS et al. (Supreme Court of Pennsylvania. July 13, 1892.) MECHANICS' LIENS-RIGHTS OF SUBCONTRACTOR.

The right of a subcontractor to file a lien on a building is not affected by a default on the part of the principal contractor in failing to keep his agreement with the owner, nor by an agreement between the owner and principal contractor subsequent to the one under which he (the subcontractor) began work, and of which he had no notice, wherein the principal contractor undertook to deliver the building to the owner free of all liens. Schroeder v. Galland, 19 Atl. Rep. 632, 134 Pa. St. 277, distinguished. Cook v. Murphy, (Pa.) 24 Atl. Rep. 630, followed.

Appeal from court of common pleas, Philadelphia county.

Seire facias upon mechanic's lien by George H. Cook and Theodore F. Baker, copartners as Cook & Baker, against John C. Williams, owner or reputed owner of a certain building, and Robert Christy, contractor. From a ruling refusing to grant plaintiffs' application for judgment on the ground that the affidavit of defense was insufficient, plaintiffs appeal. Reversed.

Sheldon Potter and Leoni Melick, for ap

pellants. E. Spencer Miller and J. Granville Leach, for appellees.

STERRETT, J. The question in this case is the same, and arises upon substantially the same facts as were presented in Cook v. Murphy, 24 Atl. Rep. 630, (Jan. term, 1892,) in which an opinion has just been filed. For reasons there given we think the affidavit of defense in this case is insufficient, and plaintiffs are therefore entitled to judgment for the amount of their claim, with interest. It is therefore ordered that the record be remitted, with direction to enter judgment against the defendants for the amount claimed by plaintiffs, unless other legal or equitable cause be shown why such judgment should not be entered.

(150 Pa. St. 506)

ZUG V. SEAright.

Appeal of STUART. (Supreme Court of Pennsylvania. July 13, 1892.) JUDGMENT-COLLATERAL ATTACK-CREditors.

A judgment creditor, whose lien was subsequent to that of a judgment taken on a certain mortgage, who failed to allege collusion between the mortgagor and mortgagee in adding to the judgment a certain sum as attorney's fees, but merely alleged that the account so added was excessive, has no standing to dispute the validity of the judgment by petition in the nature of a notice to the sheriff, stating the rise of a controversy as to the appropriation of the funds arising from a sale thereunder.

Appeal from court of common pleas, Cumberland county; W. F. SADLER, Judge.

Ptition by Joseph A. Stuart, in the nature of a notice to the sheriff stating the rise of a controversy as to the appropriation of the funds derived from a sale of the premises of George P. Searight under a levari facias issued on a mortgage given by the said Searight to Lizzie Zug, administratrix of Jacob Zug. The petition and the report of the auditor showed substantially that the estate of the said Searight was insolvent, that petitioner was a subsequent judgment creditor of the said Searight to the extent of over $75,000, and that $800 had been taxed as attorney's commissions by H. M. Zug, the attorney of record in the levari facias. The petition alleged, also, that H. M Zug, as one of the owners of the mortgage, was not entitled to any attorney's commissions thereon; or, if entitled to any, the amount allowed was excessive, and an injury to the petitioner. From a decree as to the distribution of the said funds, petitioner appeals. Affirmed.

The following is the opinion of the court below:

"The facts appear sufficiently in the petitions of Joseph A. Stuart, the exceptant, and in the report of the auditor, to which the exceptions were filed, and his supplemental report overruling the exceptions, and it is therefore not necessary for us to recite them here. The first question which is raised is whether Joseph A. Stuart, the exceptant, who is a subsequent judgment creditor, has any standing to contest the validity of the judgment taken upon the Zug mortgage so far as relates to the eight hundred dollars in- !

cluded therein as the amount to be recov. ered under the 5 per cent. commission clause in the mortgage. It is said in McNaughton's Appeal, 101 Pa. St. 550, that 'the general and well-established rule is that an auditor, in the distribution of money in court, cannot inquire into the validity of a judgment regular on its face; but it is equally well settled that a collusive judgment may be attacked collaterally by judgment or execution creditors who would otherwise be defrauded thereby. Whenever such a judgment, or the execution issued thereon, thus comes in conflict with the claims of creditors, they may avoid its effect by showing that, as to them, it is a nullity. Dougherty's Estate, 9 Watts & S 196; Lewis v. Rodgers, 16 Pa. St. 18; Thompson's Appeal, 57 Pa. St. 175, 178; Second National Bank's Appeal, 85 Pa. St. 528.' See, also, Moore v. Dunn, (Pa. Sup.) 23 Atl. Rep. 596.

"There is no allegation that there was collusion between the plaintiff and defendant, either in the petitions presented on behalf of Joseph A. Stuart, the subsequent judgment creditor, asking the court to open the judgment to let him into a defense as to the eight hundred dollars in question, nor in the petition presented on his behalf, asking that the money be paid into court that it might be distributed by the auditor. The only allegation is, practically, that the amount of $800, included in the judgment, taken on account of commissions, is excessive. Nor has the auditor | found that there was any collusion between the plaintiff and the defendant in the scire facias on the mortgage, which led to the addition of this $800 to the amount of the judgment on the mortgage, and we have not been able to find anything in the evidence which would have warranted the finding that there was collusion. Some evidence was introduced for the purpose of showing that the attorneys of the plaintiff and the defendant had some agreement or understanding with respect to a division or appropriation of this commission, but there was no evidence from which the auditor could find, or did find, that there was any agreement or collusion between the plaintiff and the defendant; and it is well settled that the commission, reserved by a clause such as was contained in this mortgage, belongs, not to the attorney of the plaintiff, but to the plaintiff; and nothing which might be done with respect to it by the plaintiff's attorney could, without her consent, affect her rights. We are, therefore, clearly of the opinion that the addition of this $800 to the amount due upon the mortgage for debt and interest was not a fraud upon the rights of Joseph A. Stuart, the subsequent judgment creditor, and that he has no standing to dispute the validity of the judgment. In this state of the case we do not think the question whether too large a sum was added to the judgment, on account of commissions, is properly before us, or that we are called upon to express any opinion on this subject. The defendant, who only could raise this question, has not seen fit so to do; and as the subsequent judgment creditor, who has attempted to raise it, has, under the facts found by the auditor,

no standing for that purpose, the question is not properly before the court. The exceptions are overruled, and the report of the auditor is confirmed.

Hays, Stuart & Stuart, for appellant. H. M. Zug, E. W. Biddle, and M. C. Herman, for appellee.

PER CURIAM. The only question in this case has been so intelligently discussed by the learned judge who heard it below in his opinion on the exceptions to the auditor's report that we affirm the decree for the reasons there given by him. The decree is affirmed, and the appeal dismissed, at the costs of the appellant.

(150 Pa. St. 386)

MYERS V. BALTIMORE & O. R. Co. (Supreme Court of Pennsylvania. July 13, 1892.) ACCIDENTS AT RAILROAD CROSSING-CONTRIBUTORY NEGLIGENCE-PRESUMPTIONS.

1. Where one approaching a railroad cross ing sees or hears an approaching train, and attempts to cross before it reaches him, he is negligent, as a matter of law.

2. Where one, in attempting to cross a railroad track, is struck by an approaching train, which was plainly visible from the point occupied by him when it became his duty to stop, look, and listen, he will be conclusively presumed to have disregarded the rule requiring him to stop, look, and listen, and to have gone negligently into danger.

Appeal from court of common pleas, Philadelphia county.

Trespass for personal injuries by Har. vey K. Myers against the Baltimore & Ohio Railroad Company. Verdict and judgment for plaintiff. Defendant appeals. Reversed.

J. M. Vanderslice and Thad. L. Vanderslice, for appellant. Samuel Peltz, for appellee.

WILLIAMS, J. The rule is now well settled in this state that one approaching a railroad crossing upon a public highway must stop, look, and listen, at a convenient distance from the railroad track, before venturing to go upon it. This rule is imperative. If one disregards it, and suffers injury in the attempt to cross, the presumption of negligence on his part is a presumption juris et de jure. Having contributed to his own injury, he is remediless. If the traveler complies with the rule, and can see or hear a moving train approaching the crossing, what must be do? It follows logically from the rule now so firmly established that he must wait for the approaching train to pass. If he does not do so, he crosses at his peril. He has notice that the train is coming. He knows-he is bound to knowthat trains are moved at a high rate of speed, reaching, and sometimes exceeding, a mile in a minute. He is without exact knowledge of, the actual rate at which the train he sees or hears is coming, and the only safe thing he can do is to wait. If he does not wait, but risks his safety on his own calculation of the chances that he will be able to cross the track before the train can reach him, he must not complain of the consequences if his calculation fails, and disaster over