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trees on land of plaintiff. Verdict for plain that the facts set forth in the application are tiff. Defendant appeals. Affirmed.

not true. That there is not strict agreement . C. F. Thayer and G. W. Melony, for ap

between the two is not strange, inasmuch as pellant. W. H. Shields and D. G. Perkins,

the object of the application is to have the for appellee.

finding corrected. A discrepancy between the

two affords no excuse for noncompliance with THAYER, J. The complaint alleges that

the rule. Timely notice of the application the defendant by his workmen and servants

having been given, the neglect of the defendentered upon the plaintiff's land and did the

ant's counsel to deny its allegations under cutting complained of. The defendant com

oath indicates that they could not consistentplains of the charge of the court, because it ly do so. Cases may arise where applications fails to explain to the jury that acts of a

of this kind, although no answer is filed, will servant beyond the scope of his employment

be denied by the court, unless further proof are not the acts of the master, and that the

than the affidavit of counsel is furnished. master is not responsible for a trespass or

In the present case we think the applicawrongful act of his servant unless such act

tion should be granted. The appeal, there is done in the execution of the master's or

fore, is rectified in accordance with the apders or with his assent or approbation. He plication. This removes the sole ground upon also complains that the charge fails to ex

which the defendant's objections to the plain the distinction between the relation of

charge are founded. master and servant and the relation of em

The record shows that the defendant cut ployer and contractor. It is true that no in

timber and poles upon one entire tract, withstruction was given upon these questions, and

in which was included the land claimed by the plaintiff claims that there was no occa

the plaintiff. The defendant contended that sion for such instruction, because on the

the land claimed by the plaintiff was part of trial the defendant admitted that the cutting

the adjoining land cut over, known as the was done by his servants by his order; that “Rogers and Burgess Lots,” on which the deno claim was made that he was not liable for

fendant had acquired the right to cut all the their acts, nor any claim in relation to the

timber and poles. He claimed that the plainmaster's liability for the acts of his servant

tiff had failed to show title to the land in beyond the scope of his employment, nor as

dispute, and that, if he had shown title, the to the law or legal distinction between the

defendant's cutting upon it was under the relation of master and servant and that of

honest belief that it was part of the Rogers employer and contractor. It is not clear,

and Burgess land, and therefore that he was from the record sent up, whether the plain- | only liable for the actual value of the trees tiff's claims are correct or not. But he has

cut. The defendant, being a witness in his filed with this court an application to rectify

own behalf, was asked by his counsel the the appeal, under section 801, Gen. St. 1902, following questions: “Now, won't you state which, if allowed, makes it entirely clear that

to the jury what sized trees you cut on the the plaintiff's claim in this respect is cor

Rogers and Burgess lots, and how you paid rect. The application is informal, in that it

the choppers; that is, by what rate?” “Now, is not, strictly speaking, addressed to the

Mr. White, what were your instructions with court, its different statements of fact are not

reference to cutting trees, and especially reparagraphed as they should be to facilitate lating to dimensions ?” On objection these the specific admission or denial of each by questions were excluded, and such exclusion the adverse party, and it does not close with

is assigned as

The first question a request for the specific changes and addi clearly had no relevancy to the issue to be tions to the finding which are sought. It is, determined by the jury. The claimed purhowever, entitled “Application to Rectify pose of the second was to show that only Appeal,” and the additions to the finding trees above a certain size, 10 or 12 inches, sought for sufficiently appear, and no objec

were ordered to be cut, and that the smaller tion to it on the ground of informality is

sticks were therefore cut without authority. made. It has annexed to it the affidavit of It is possible that this evidence would have counsel that all the statements of fact set been admissible upon the question of damforth in the application are true; but no an

ages, had it appeared or been claimed, in conswer, supported by like affidavit, has been nection with the offer, that the cutting of filed by the defendant, as required by sec the smaller stuff was not necessary to the tion 14 of the rules of this court. The pur cutting and removal of the larger timber pose of the rule is to save the expense of

from the tract in dispute. No claim of this taking depositions in support of the applica- | kind was made, however. The defendant, tion, and to obviate, so far as possible, the having set his choppers to work to cut the trying of questions of fact in this court upon larger timber upon the tract in question, depositions. An answer should have been would be responsible, clearly, for the necfiled, unless the defendant was prepared to essary consequences. The evidence, therehave the sworn facts taken as true. His only fore, was properly excluded. excuse for his failure to comply with the There is no error. The other Judges con. rule is that the finding shows, as he claims, curred.

error.

no

(217 Pa. 307)

but 13 when her mother married James In re THEWLIS' ESTATE.

Hirst, in 1869. (Supreme Court of Pennsylvania. April 1,

“The conclusion reached by the auditing 1907.)

judge in favor of the claim of the wife whom MARRIAGE-EVIDENCE-PRESUMPTIONS.

the decedent married in 1868 might well be A married man in 1858 deserted his wife sustained on the ground thus suggested; but in England and came to America, and in 1868 he has placed it upon grounds which are unhe married again by a ceremonial marriage,

answerable and conclusive. If, when the deand his wife in England married again in 1869. The first wife died in 1891, and the man died

cedent contracted the second marriage, he. in 1904, and from 1891 to '1904 the woman to had not been divorced from the woman whom he had been married in 1868 was recog wbom, years before, he had left in England, nized by all persons as his lawful wife, and in 1896 they executed a deed reciting that they

the marriage, although solemnized in church, were husband and wife. Held, that it would

as it was, with due religious ceremony, was be presumed, either that the man had obtained void, in spite of the conceded innocence of a divorce from his first wife before he married

the wife and her ignorance of the existence his second wife, or that the marriage relation was created after the death of the first wife, if

of any obstacle. Nor could it bave acquired no such divorce had been obtained.

validity if the first wife had survived the

husband, no matter how great the lapse of Appeal from Orphans' Court, Philadelphia

tinie, or what the belief in the community County.

in which the parties resided. But the first In the matter of the estate of John W.

wife did not survive. She died in May, 1891, Thewlis, deceased. From a decree dismissing

and the decedent lived until October, 1904. exceptions to adjudication, Eliza Fenton ap. During all this time, a period of more than peals. Affirmed.

13 years, the person to whom he had been The following is the opinion of Penrose, J., formally married in 1868 was recognized by in the court below:

him and by herself and by the community as "In view of the fact that within a few his lawful wife. Naturally there was years after the decedent came to this coun repetition of a marriage ceremony, or any try, in 1858, both he and his wife, whom he formal expression of marriage contract, for left in England, whom he had married in the wife never had knowledge that the one 1854, married again, he in 1868 and she in already entered into was not valid; but each 1869, the conclusion cannot be avoided, with day during these many years that they thus out a disregard of settled principles of the lived together there was an assertion by acts law of presumptions, that there was a legal and conduct which in law are as efficacious dissolution of their marriage. By her mar as words for establishing a contract by imriage in 1869 to James Hirst, the wife be plication. That marriage may be established came the mother of six children, and, he by long-continued cohabitation and reputahaving died, in 1880 she became the wife tion is too well settled to require citation of of Charles Dyson. Thus, if the decedent con authority. See Richard v. Brehm, 73 Pa. 140, tinued to be her husband, they were both 13 Am. Rep. 733. And while there is a preguilty of bigamy, and the children by her sumption of continuance as to a relation ilsecond marriage were all illegitimate. But licit in its inception, under such circumstanthe presumption against crime, and still ces as existed in Hunt's Appeal, 86 Pa. 294, more the presumption in favor of legitimacy, where the interval during which it might forbid such a result; and nothing less than have become lawful was but two months positive, affirmative proof to the contrary can (December 13, 1873, to February 16, 1874), or be accepted as sufficient to overcome such in Grimm's Estate, 131 Pa. 199, 18 Atl. 1061, presumptions, especially in view of the great 6 L. R. A. 717, 17 Am. St. Rep. 796, where lapse of time and of the further fact that it was but one week, the doctrine of those both parties are dead. Every intendment cases is not to be extended to one like the and every inference will be made in favor of present, where in good faith the parties coninnocence and legitimacy. Best on Evidence, tinue to live together as husband and wife, § 346. “So strong is this presumption, it is after the complete removal of the only obsaid in 1 Greenleaf's Evidence, $ 35, 'that, stacle in the way of a valid marriage, and so even when the guilt can only be established for many years continuously proclaim themby proving a negative, the negative must, in selves to the public until the relation ceases such cases, be proved by the party alleging by the husband's death. the guilt, though the general rule of law “The presumption of continuance of an ildevolves the burden of proof on the party licit relation, under such circumstances, gives holding the affirmative.' See, also, Wile's away to the superior presumption in favor Estate, 6 Pa. Dist. Rep. 384; Id., 6 Pa. Su of compliance with the requirements of the per. Ct. 435; Richardson's Estate, 132 Pa. law, of morality, and of common decency. 292, 19 Atl. 82. Upon this point no impor See Greenleaf on Evidence, § 41; Bergdoll's tance whatever can be attached to the testi Estate, 7 Pa. Dist. Rep. 137. In Hantz v. mony of the daughter, who remained with Sealy, 6 Bin. 405, which is supposed by the the wife in England, with regard to the ab exceptant to establish the doctrine that, sence of a divorce. She was but 2 years when the relation was originally illicit, it old when her father came to America, and cannot become lawful without a formal and

express declaration, the woman, who did not PER CURIAJ. There is nothing in this make such declaration, appears to have left case but a question of fact, depending on the the man after his divorce from the wife, accuracy of the witnesses' recollection of and, without asserting a marriage, sued him dates; plaintiff contending that there was a in her unmarried name for a legacy which hole in the pavement at the time which had been left to her by a testator of whose caused the accident, and defendant that it will the defendant was executor; the de had been repaired a week before. The reffense being, inter alia, that the suit could eree "had all these witnesses before him, he not be maintained because the plantiff was noted their manner of testifying and has the wife of the defendant. What was said had the benefit of having heard the live evi. by the court with regard to the marriage dence as it came from the lips of the wit. was said with reference to the facts thus dis nesses, rather than reading their words in closed by the evidence, and has no applica cold type, and he is free to say that the tion to the very different facts of the present testimony of Mr. Lawrence that he re case.

paired the hole on April 8, 1904 did not “But the case does not rest upon the mere impress him in point of accuracy as to date long-continued cohabitation and reputation of repair. The referee is therefore constrainafter the death of the first wife. There was ed to disregard the evidence of repair on not only the introduction of the wife as such April 8, 1904, and to find that from at least to strangers by the husband, but the fact that March 31, 1904, to and including the day of they were husband and wife was solemnly the alleged accident to the plaintiff, a defect recited and declared in a deed, duly executed or hole as described by the witnesses actual. and acknowledged by both, to the city of Phil ly existed in the footway in question." He adelphia, in December, 1896, and in the face therefore found that the accident was due of this deed a finding that there was then no to the city's negligence. This finding was apvalid marriage would be impossible. The proved by the court, and there is nothing to case migiit safely rest on this alone. Nothing justify us in disturbing it. need be added to what has been said by the Judgment affirmed. auditing judge on the subject of commissions. See, also, Mayberry's Appeal, 33 Pa. 258.

(217 Pa. 280) "The exceptions are dismissed, and the ad

BEAVER BOROUGH V. BEAVER VALLEY judication confirmed absolutely."

R. CO.
Argued before MITCHELL, C. J., and
FELL, BROWN, MESTREZAT, POTTER, (Supreme Court of Pennsylvania. April 1,

1907.) ELKIN, and STEWART, JJ.

1. APPEAL-REVIEW-OBJECTIONS NOT Rais-
Joseph H. Taulane, of White, White & ED BELOW.
Taulane, Ernest E. Prevost, and Thomas A borough filed a bill to restrain a rail.
Earle White, for appellant. N. Dubois Mil.

road company from constructing a siding in

the street. It was conceded that the company ler, of Biddle & Ward, and H. Alan Dawson,

had a right to construct its main line in the for appellee.

street. II cld, on appeal from a decree dismiss

ing the bill, that, no assignments of error raisPER CURIAM. Decree affirmed, on the ing the question of such right, it would not be

considered in the Supreme Court. opinion of Judge Penrose, dismissing excep

(Ed. Note.-For cases in point, see Cent. Dig. tions to the adjudication.

vol. 30, Appeal and Error, $ 1074.)

2. RAILROADS_TRACKS ON STREET. (217 Pa. 330)

Where a railroad company has a right to FINDLAY et al. . CITY OF PHILADEL

maintain tracks in a street 100 feet wide, it PHÍA.

may construct a siding thereon if such siding

did not unreasonably obstruct public travel. (Supreme Court of Pennsylvania. April 1, [Ed. Note.-For cases in point, see Cent. Dig. 1907.)

vol. 41, Railroads, $ 199.] APPEAL-REVIEW-FINDING OF REFEREE.

Mitchell, C. J., and Brown and Mestrezat, A finding by a referee, with evidence to

JJ., dissenting. justify it, which has been approved by the court, will not be reversed on appeal.

Appeal from Court of Common Pleas, Beav[Ed. Note.-For cases in point, see Cent. Dig. er County. vol. 3, Appeal and Error, $8 4015-4018.)

Bill by Beaver borough against the Beaver Appeal from Court of Common Pleas, Phila Railroad Company. From a decree dismissdelphia County.

ing the bill, plaintiff appeals. Affirmed. Action by Harry C. Findlay and George

The court below, per Williams, P. J., filed Findlay against the city of Philadelphia.

an opinion which was in part as follows: From an order dismissing exceptions to report of referee, defendant appeals. Affirmed.

"Findings of Fact. Argued before MITCHELL, C. J., and

"(1) That the borough of Beaver is a muFELL, BROWN, MESTREZAT, POTTER,nicipal corporation, duly chartered by an act ELKIN, and STEWART, JJ.

of the General Assembly of the commonHarry T. Kingston, Asst. City Sol., and wealth of Pennsylvania, approved March 29, John L. Kinsey, City Sol., for appellant. 1802, and, by a decree of the court of quarter Arthur F. Schneider, for appellees.

sessions of Beaver county, entered in a pro

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ceeding at No. 2, September sessions, 1866, said railroad being 3.15 miles, and of which became subject to the provisions and entitled 4,368 feet is located on said Fifth street. to the benefits of the act of Assembly ap “(6) That in the operation of said railroad proved April 3, 1851 (P. L. 320), commonly the defendant company has no fixed schedule called the 'general borough act.'

for the running of its trains, nor does it run “(2) That the defendant is a rallroad cor any passenger trains thereon; its business poration organized and existing under the being confined to the carrying of freight and provisions of an act of the General Assembly merchandise, and it has but one locomotive of the commonwealth of Pennsylvania, enti for the movement of its trains. tled, 'An act to authorize the formation and "(7) That said company has no freight deregulation of railroad corporations,' approp pot or other place within said borough for ed April 4, 1869 (P. L. 62), and the several the receipt and discharge of freight and mersupplements thereto, chartered September 5, chandise to and from its cars, but had for 1899, for the construction and operation of a some time prior to and up to the filing of this railroad from a point, the eastern terminus bill in this case been receiving and discharbeing at or near a point where the Beaver ging freight and merchandise at such points and Mercer state road, commonly called along said Fifth street as were most conven'Sharon Road,' crosses the Pittsburg & Lake | ient to said company and its patrons; that Erie Railroad, in Beaver county, Pa., and in pursuance of a bill filed by the plaintiff in the western terminus at or near a point on this case, on November 24, 1905, a prelimithe Ohio river about 500 feet south of the nary injunction was granted enjoining and residence of John Moore, in Borough town restraining the defendant company, its offiship, in said county and state, the length of cers, employés and workmen from allowing said road being 3.15 miles, intersecting the cars to stand on its track, and the loading or Cleveland & Pittsburg Division of the Penn. unloading of freight or merchandise from its sylvania Company's lines, through Borough cars on said track, in, upon, and along Fifth township, the borough of Beaver, and the street, which preliminary injunction was borough of Bridgewater, to a point in the made perpetual by an opinion filed by the borougb last named, and intersecting the court on May 29, 1906, thus permanently enPittsburg & Lake Erie Division of the New joining the defendant company from receivYork Central Lines, all in the county of ing or discharging freight or merchandise to Beaver.

and from its cars at any point along that “(3) That at the time, and for some time part of its railroad located upon Fifth street, prior to the incorporation of the defendant in said borough of Beaver. company, and the location of its railroad on "(8) That Cook & Anderson are residents Fifth street, said street was 100 feet wide be of the said borough of Beaver, and the owntween property lines; that the roadbed of ers of a piece or parcel of land having a said street was 40 feet wide between curb frontage of 260 feet on the southerly side of lines, the space between the said curb lines said Fifth street, the eastern boundary of and the property lines being used partly for which is 100 feet west of the westerly line sidewalks and partly as a grass plot, and the of Elk street, and about 1,730 feet west of the sidewalks, where any were laid, being 8 feet westerly line of Sharon road. wide, laid next the curb, thus leaving 22 feet “(9) That the said firm of Cook & Anderof an intervening grass plot.

son are engaged in the business of general “(4) That on September 15, 1899, the town contracting, and have erected on said land an council of the borough of Beaver passed an

office and other buildings and sheds used in ordinance authorizing the construction of the the prosecution of their business, and handle railroad of the defendant company upon and large quantities of lumber, brick, plaster, along Fifth street, in said borough, in the hardware, and other building materials, center and at the grade thereof, placed cer amounting in the aggregate to something like tain burdens upon said defendant, and pro

100 or 150 car loads per year. vided, inter alia, that cars of said railroad "(10) That some time during the year 1903, company should not be allowed to unneces and again in September of 1904, Fred. H. sarily stand on said track, said ordinance Cook, of the firm of Cook & Anderson, aphaving been approved by the burgess of said peared before the council of the borougb of borough on September 15, 1899, and accept

Beaver and asked for permission to put in a ed by the defendant company on September switch leading from the main line of the de 20, 1899.

fendant's railroad to their place of business “(5) That the defendant company, in pur

located on the south side of Fifth street, suance of its charter and said ordinance, had that the council of said borough laid said relocated, constructed, and was, at the time of quest on the table, and, as far as the testithe filing of the bill in this case, operating mony in this case shows, no further action its railroad along and upon Fifth street, in has been taken thereon. the borough of Beaver, from the western line "(11) That after the granting of the preof Buffalo street to the eastern line of said liminary injunction restraining the defendant borough, at or near Leopard lane, all within company from loading and unloading its cars the borough of Beaver, the total length of upon that part of its track located in and up

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on Fifth street, in said borough, and before STEWART, J. The Beaver Valley Railthe final determination thereof, the defendant road Company, organized under the act of company, on February 26, 1906, by and with April 4, 1868 (P. L. 62), and its several supthe consent of said firm of Cook & Anderson, plements, in the exercise of its corporate began making the necessary excavations pre- rights and privileges, constructed, and has paratory to constructing a switch from its been operating for several year past, a main line to the lot or premises of said firm, line of railroad in the county of Beaver, befor the purpose of enabling the defendant tween three and four miles in length, concompany to receive and deliver freight and necting the Pittsburg & Lake Erie Railroad merchandise from and to said firm.

with the Cleveland & Pittsburg Railroad. "(12) That the switch or turn-out leading with respect to the termini of the road, the from the main line of the defendant's rail. borough of Beaver is intermediate. By and road on Fifth street to the property of Cook with the consent of the municipal authori& Anderson, located on the south side there ties, expressed in an ordinance passed Sep of, is necessary for the proper and conveni tember 15, 1899, the railroad company conent operation of said railroad in the receipt structed its main track upon Fifth street and delivery of freight from and to the in the borough of Beaver longitudinally for said firm, and said business cannot be rea a distance of 4,368 feet. In the early part of sonably handled in any other manner. the present year the company, for greater

"(13) That if said switch is laid at grade convenience in receipt and delivery of freight from the main line of the defendant's rail at that point, began the construction of a road into the property of Cook & Anderson, switch and siding, from its main line on as proposed by the defendant company and said Fifth street, to the warehouse and averred in its answer, it will not be an un yards of Cook Anderson, situate on the reasonable obstruction to public travel along south side of said street. Thereupon the said Fifth street.

borough of Beaver filed its bill, alleging that

the company, in attempting to construct such "Conclusions of Law.

siding, was acting without authority of law, "(1) The letters patent of the Beaver Val and praying that it be restrained. The ap ley Railroad Company, in connection with peal is from the decree dismissing the bill the ordinance passed by the council of the after final hearing. borough of Beaver on September 15, 1899,

The question so earnestly pressed upon and accepted, in writing, by the defendant our attention in the argument, as to the company on September 20, 1899, vested in right of the railroad company under its said company the right to construct, main charter to construct and maintain a track tain, and operate a railroad in, upon, and upon the public street, even with municipal along Fifth street in the borough of Beaver. consent, is not raised by any assignment of

“(2) The right to construct, maintain, and error, nor could it be. Since it was not operate a railroad in, upon and along Fifth brought to the attention of the court below, street in the borough of Beaver, vested in

the settled rules of practice forbid its conthe defendant company by its charter and

sideration here. An exception cannot be said ordinance of the borough of Beaver, car urged in the appellate court on different ried with it the right to construct, maintain, grounds than those taken in the court below. and operate such turn-outs, switches, sidings,

The right of the railroad company to mainand other appendages as are reasonably nec

tain its tracks on Fifth street was conceded essary for the convenient operation of said

in the court below, and for present purrailroad.

poses must be conceded here. The only ques“(3) When permission was granted by the tion, then, before us is:

Has the company borough of Beaver to the defendant com the right to construct the proposed switch pany to lay and construct its railroad in, and siding from its established main line upon, and along Fifth street, by the ordi upon the public street for the purpose indinance approved September 15, 1899, the

cated? The thirteenth finding of fact by right to construct, maintain, and operate

the court below was as follows: "II said such turn-outs and switches as are reasonably

switch is laid at grade from the main line necessary to accommodate the business es

of defendant's railroad, to the property of tablishments along said Fifth street was nec

Cook & Anderson, as proposed by the de essarily implied.

fendant company, and averred in its answer, "(4) That the preliminary injunction here

it will not be an unreasonable obstruction tofore granted should be dissolved and the

to public travel along said Fifth street." bill dismissed at the costs of the plaintiff.” No attempt was made to controvert this Argued before MITCHELL, C. J., and

finding. In view of the fact that Fifth street FELL, BROWN, MESTREZAT, POTTER,

is 100 feet wide, this is not surprising. This ELKIN, and STEWART, JJ.

is not, then, the case of a railroad company

attempting, for its own convenience, and unWilliam A. McConnel and John B. Mc der no compelling condition, to appropriate Clure, for appellant. James L Hogan and with the consent of the borough an entire John M. Buchanan, for appellee.

street, thereby diverting it from its original

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