hereto in writing, otherwise the policy shall be void." The first and econd assignments are not sustained.

Respecting one ground of defense, the jury were instructed that the estimony to establish the fact that John Usaw burned the house must be as strong as would be required to convict him in a criminal court on 1 charge of arson. That we think was error, and for that only must the udgment be reversed. The doctrine that a reasonable doubt of guilt is o work an acquittal does not apply in civil issues. In these, the result hould follow the preponderance of evidence, even though the result imutes a crime. Whart. Ev. § 1246. In reference to the rule thus stated ext-books and adjudications differ, and it would be difficult to ascerain on which side is the greater number. Many of them, for and gainst, are cited by Dr. Wharton, and we are content to refer to them, vithout a profitless review or a reiteration of reasons leading to the conlusion adopted. In a civil issue the life or liberty of the person whose ct is sought to be proved, is not involved. Proof of the act is only pertinent because it is to sustain or defeat a claim for damages, or respecting the right of things. Where the act imputes a crime, the inculatory evidence must be sufficient to overcome the exculpatory evidence and the presumption of innocence; otherwise there is no preponderance o establish the fact. That presumption is due every man in every court, and when it is alleged that he has done a dishonest or criminal act the presumption weighs in his favor. In the civil issue he is not on trial. The judgment is not evidence that he is guilty of crime. The act afirmed is an incident,-a fact,-to be proved like other pertinent facts. For instance, in this case, had the insured changed the tenancy or occupancy of the premises without notice to the assurer, proof of the act would have been competent, and the fact established by preponderance of evidence. If a man, by deceit, fraudulently obtains insurance on a building, by like evidence his act may be established to avoid the polcy. If he burns the insured building, the same rule of evidence ought o apply when it is proposed to prove the act for like purpose.

When considering the motion for a new trial, the learned judge of the ommon pleas became satisfied that he had misinstructed the jury as to he strength of evidence required, and thought the rule in Pennsylvania s indicated in Continental Ins. Co. v. Delpeuch, 82 Pa. St. 225, where it s said: "The mere fact of death in an unknown manner creates no legal resumption of suicide. Upon evenly-balanced testimony the law asumes innocence, rather than crime. Preponderating evidence is necesary to establish the latter." But he held that the error was immaterial or the reason that the evidence would not warrant a finding that John Isaw burned the house. That was not his view of the evidence at the rial, nor of the able counsel for the plaintiffs. A glance at the testinony, without comment, reveals there was no mistake in submitting it to he jury. The house was insured for $2,300, and rented for $60 per anIt was unoccupied, was fired by an incendiary, and the fire was irst observed a little after midnight on Sunday morning. Usaw was hen living at Harrisburg, but came into the neighborhood a few days

um.

before the fire. One witness met and conversed with him near the house, about 9 o'clock on Friday evening, when he said he was going to Morgan's. He did not go there. Some time after the fire he told the same witness that he did not tell the truth that night, and then spoke of the loss of his pocket-book. Two witnesses saw him at the house on Saturday afternoon. One of the two heard some person in the house, and after the fire Usaw tried to persuade him that he had heard no one in the house that afternoon. Between 4 and 5 o'clock on Saturday afternoon he passed the toll-gate, and inquired of the keeper the way to Johnstown, and went the way as directed. The next morning, Sunday, between 7 and 8 o'clock, the keeper of the same toll-gate saw him pass, going in the same direction as he went on the afternoon before, but he did not speak. Concede that the exculpatory evidence was strong, and, if believed, established an alibi, still the question of fact was for the jury. Judgment reversed, and venire facias de novo awarded.

STIRLING, Adm'r, v. HINCKLEY, Adm'r.1

(Supreme Court of Pennsylvania. April 5, 1886.)

ERROR-WEight of EVIDENCE-HABITUAL DRUNKARD.

Plaintiff brought suit against defendant for moneys alleged to have been loaned him; the defense being that they were not loans, but contributions to a partnership between plaintiff and defendant. Upon the trial, the trial judge left the question of the plaintiff's mental capacity, at the time the moneys passed, to the jury; the allegation being that he was at that time an habitual drunkard. This was assigned as error, for the reason, it was said, that no evidence of the alleged drunkenness was offered on the trial. Held, upon a review of the whole record, that there was not sufficient cause for disturbing the judgment entered.

Error to common pleas No. 2, Philadelphia county.

Assumpsit, by Robert H. Hinckley, administrator of William Marcus Patton, deceased, against Joseph Stirling, administrator of Edward Wallace, deceased, to recover certain money loaned defendant's decedent. Edward Wallace, in 1868, was engaged in the liquor business in Philadelphia. William Marcus Patton was at that time engaged in no business, and frequently came to Wallace's place. Wallace had a process of aging whisky, by which he thought he could make money. He spoke of this in Patton's presence, and the latter expressed a desire to go into business with Wallace when he got his inheritance. On December 3, 1868, Patton handed Wallace $1,410, and on January 25, 1869, he handed him $12,980, which amounts were deposited in a bank in the names of Wallace & Patton. Patton, when he returned from the bank, after making these deposits, said to Wallace's book-keeper: "I have went into partnership with Mr. Wallace, and deposited the money in the Union Banking Company." He also drew money out of the money drawer and by check out of the bank. In August, 1869, proceedings in habitual drunkenness were begun by Patton's wife against him, and

1 Edited by Messrs. Hatfield and Cresswell, of the Philadelphia bar.

John O'Byrne was appointed committee of Patton. Mr. O'Byrne went to Wallace's place of business, and saw a quantity of liquor there, which, he was told, was bought with the money furnished by Patton. He issued a replevin, and obtained possession of it. A short time after, this and other liquor bought with Patton's money was seized by the revenue officers for insufficient stamps, and O'Byrne, as committee, claimed it; Wallace signing, and swearing to a disclaimer, in which he stated that the property belonged to Patton. Subsequent to the death of Patton, this action was brought, and upon the trial, before HARE, P. J., Wallace's administrator set up, as a defense, that there was a partnership between Patton and Wallace. The plaintiff offered in evidence the record of the proceedings in habitual drunkenness, which was admitted; and also read, under objection, the testimony of the petitioner's witnesses showing Patton's drinking habits; and, though there was no evidence that his mind was impaired or weakened at the time of the transactions with Wallace other than this, the judge charged the jury that if, by reason of his drinking habits, Patton's mind was weakened or impaired at the time of the alleged partnership arrangement, and he was induced to enter into it by reason of Wallace's exaggerated representations of his process for aging whisky, the money put in by Patton could be recovered. Verdict and judgment for plaintiff for $15,000, whereupon defendant took this writ.

John K. Andre and Francis E. Brewster, for plaintiff in error.

The finding of the inquisition was not retrospective. In re Haviland, 1 Wkly. Notes Cas. 345; Leckey v. Cunningham, 56 Pa. St 370: McGinnis v. Com. 74 Pa. St. 245; Klohs v. Klohs, 61 Pa. St. 245; Titlow v. Titlow, 54 Pa. St. 216; Imhoff v. Witmer, 31 Pa. St. 243. There was no evidence to show that he was addicted to the use of liquor, except the inquisition, which was not proper evidence. It was therefore error to submit that fact to the jury. Stouffer v. Latshaw, 2 Watts, 167; Sypher v. Long, 4 Watts, 253; Newbaker v. Alricks, 5 Watts, 183; McClurg v. Willard, Id. 275; Hannay v. Stewart, 6 Watts, 487; Switland v. Holgate, 8 Watts, 385; Jones v. Mengel, 1 Pa. St. 68; Haines v. Stouffer, 10 Pa. St. 363; Sartwell v. Wilcox, 20 Pa. St. 117; Thomas v. Thomas, 21 Pa. St. 315; Howard Exp. Co. v. Wile, 64 Pa. St. 207; Snyder v. Wilt, 15 Pa. St. 59: Cauffman v. Long, 82 Pa. St. 72; Noel v. Karper, 53 Pa. St. 97. Fraud must be affirmatively shown; it will not be presumed. Pine v. Vanuxem, 3 Yeates, 30; Shoemaker v. Kunkle, 5 Watts, 107; Lutton v. Hesson, 18 Pa. St. 109; Bear's Estate, 60 Pa. St. 430; Com. v. Railroad Co., 74 Pa. St. 94; Morton v. Weaver, 99 Pa. St. 48. If this was a partnership, the amount cannot be recovered until a balance has been struck. Killam v. Preston, 4 Watts & S. 14; Andrews v. Allen, 9 Serg. & R. 243; McFadden v. Hunt, 5 Watts & S. 468; Knerr v. Hoffman, 65 Pa. St. 128; Martin v. Ives, 17 Serg. & R. 365; Smith v. Jack, 2 Watts & S. 101; Goodman v. Losey, 3 Watts & S. 529; Wills v. Kane, 2 Grant, Cas. 63; Cox v. Cox, 26 Pa. St. 375; Baily v. Baily, 44 Pa. St. 276; Aronson v. Railroad Co., 70 Pa. St. 68; Miller v. Springer, Id. 269; Edwards' Appeal, 15 Wkly. Notes Cas. 22; Moore v. Whitney, 7 Luz. Leg. Reg. 159.

George Junkin, for defendant in error.

The inquisition was notice to the world of the fact of habitual drunkenSill v. McKnight, 7 Watts & S. 244; Ludwick v. Com., 18 Pa. St. 172;

ness.

McGinnis v. Com., 74 Pa. St. 247; Klohs v. Klohs, 61 Pa. St. 245. This, together with the other testimony, had a bearing upon the condition of the man at a date anterior to the finding.

PER CURIAM.

An examination of the whole record in this case fails to discover any sufficient cause for disturbing the judgment; therefore judgment affirmed.

RAPE and wife v. SMITH and others.1

(Supreme Court of Pennsylvania. April 26, 1886.)

DEVISE-ACCEPTANCE-CONDITION.

A. had been employed by B. to work the latter's farm, paying him onethird the annual product, and also paying the taxes. This continued for about three years, when B. died, and in his will devised the farm to A., upon condition that he pay the widow of B. one-third the annual product, and upon her death that he pay the heirs of C. the sum of $1,000. The farm, from the time A. first went upon it, was assessed for taxation in the name of A., and so continued for a out seven years after the death of B.; A. paying the taxes, and paying the widow certain moneys, but not all to which she was entitled. The farm was subsequently sold by the sheriff under a judgment against A. Held, that A. had accepted the devise, and that the purchasers at the sheriff's sale had acquired a good title to the farm.

Error to common pleas, Luzerne county.

Ejectment, by Joseph Rape and Henrietta, his wife, in right of the said wife, against John Smith, George Hughes, and Henry Koenig, to recover a certain farm in Luzerne county. In the spring of 1866, Jacob Bilheimer was a well-to-do miller and farmer, living in Luzerne county, with his wife. He was then 70 years of age and childless. He wanted a man to go upon his farm, to take charge of it, and work it for him, and for this purpose made an arrangement with Joseph Rape, the husband of his daughter Henrietta, whereby they were to work the farm, and, as a rental, they were to give Mr. Bilheimer one-third the net annual product and pay the taxes; and, in pursuance of this agreement, they went into possession on April 1, 1866. For the years 1867, 1868, and 1869, the farm was assessed in the name of Joseph Rape. During these years there were dealings, outside of the lease, between Rape and Bilheimer, so that in June, 1869, Rape had sold Bilheimer a mare, had worked on other lands than those covered by his lease, and had done some carpenter work for him, had one of his mares; and Bilheimer had done some mill work for Rape, and sold a mare of his to one Corfman. These items were subjects of book-entries kept, respectively, by the parties. Jacob Bilheimer died June 2, 1869, testate, leaving a widow, but no children. The only portion of his will, material to this case, was as follows:

"I bequeath to Joseph Rape 75 acres of that farm where they now live, and the buildings, on the following conditions: To give to my wife, Mary, the one-third of the produce of all that is raised on said farm during her lifetime, or so long as she keeps my name, and one year after her death pay

1Edited by Messrs. Hatfield and Cresswell, of the Philadelphia bar.

$1,000 to the heirs of Levi Bilheimer; that is, if said Rape doth not bring on an account against said estate for what he done in building or helping me on my land. I calculate I done as much for him as he done for me. The mare he has of mine; but the account there is against him I will balance with the old mare I sold to Corfman. There is 20 or 25 acres along the creek, near the above-mentioned land. Them shall be sold; that thousand-dollar portion for Rosanna Barth, and deliver the one-third part of the farm produce; and, if said farm should not be farmed so as to bring in about $250 worth, then, in such case, this shall be void and of no effect. The one-third shall be delivered to my estate as long as my widow lives and holds my name."

Rape continued to occupy the farm down to July or August, 1876. During this occupancy he paid, at different times, sums of money to the widow, and the taxes upon the land, the same being still assessed in his name. The widow brought suit against him in 1872 to recover the balance of her proportion of the product, which had not been paid to her up to that time, and recovered a judgment, which he paid. The premises were sold at sheriff's sale in April, 1876, under a judgment against Joseph Rape, and purchased by Hughes and Koenig, two of the defendants. On July 18, 1882, the heirs of Jacob Bilheimer made a deed of the land to Henrietta Rape, one of the plaintiffs, and this action of ejectment was then brought by her and her husband against the defendants. Upon the trial, before RICE, P. J., the jury rendered a verdict for defendants, and judgment was entered thereon, whereupon plaintiffs took this writ.

G. L. Halsey and William S. McLean, for plaintiffs in error.

The estate created by the devise was upon condition. There was no devise over. If the condition was not complied with, the devise would be void. 1 Bl. Comm. 156; 2 Washb. Real Prop. 3, 4; Paschall v. Passmore, 15 Pa. St. 295; Warner v. Bennett, 31 Conn. 468; Gray v. Blanchard, 8 Pick. 284. The condition was subsequent. 2 Washb. Real Prop. 5; Finlay v. King's Lessee, 3 Pet. 346; Martin v. Ballou, 13 Barb. 119; Parker v. Nichols, 7 Pick. 111. The estate was subject to be defeated by re-entry for condition broken. Dumpor's Case, 1 Smith, Lead. Cas. 104; 2 Washb. Real Prop. 12, 13, 16; Co. Litt. 201a; Donohue v. McNichol, 61 Pa. St. 73; Moore v. Pitts, 53 N. Y. 85; Scott v. Stipe, 12 Ind. 74; Thomas v. Record, 47 Me. 500; Bartlett v. Jones, 60 Me. 246; Barker v. Cobb, 36 N. H. 344; 1 Sharsw. & B. Lead. Cas. Real Est. 150.

John McGahren, Gustav Hahn, and Garrick M. Harding, for defendants

in error.

Every possession, where there is title, is supposed to be in subordination to it. Clark v. Trindle, 52 Pa. St. 492; Jones v. Bland, 2 Atl. Rep. 541. There was no forfeiture as against these defendants, because there was no demand for performance. McCormick v. Connell, 6 Serg. & R. 151; Merrifield v. Cobleigh, 4 Cush. 178. Conditions subsequent are not favored, and, when relied on to work a forfeiture, must be strictly construed. Hoyt v. Kimball, 49 N. H. 327; Merrifield v. Cobleigh, 4 Cush. 178; Laberee v. Carleton, 53 Me. 211; Hunt v. Beeson, 18 Ind. 380.

PER CURIAM. If the plaintiff accepted the land under the devise, it is an end to this case. The evidence tending to prove he did, was most ample to submit to the jury. He retained the possession thereof for