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tions against it to enforce its debts and the words “railroad crossing, look out liabilities.

for the cars.” He then stopped a little This has recently been so expressly east of the signboard and looked out to decided by the court of appeals in Kin- the cast to see if ihere was anything caid v. Dwinnels, 50 N. Y., 552. crossing, and could then, looking east,

Opinion by Smith, J.; Mullin, P. J. see about 50 rods on the railroad track and Nocon, J. concurring.

but saw no cars approaching, and then

started his horse forward. CONTRIBUTORY NEGLIGENCE. Moving at the rate of about six miles N. Y. SUPREME Court. GENERAL TERM. an hour, (looking west and without FOURTH DEPARTMENT.

looking eastwardly again), and so shut Stockus, respt. v. The N. Y. C. and could not easily look in that direction ;

in by the covering of his buggy that he II. R. R. R. Co., applt.

he traveled from the place where he stopDecided April, 1876.

ped, seemingly unconscious that while Where a person approaches a railroad he was passing the intervening distance crossing it is his duty, before cross to the crossing, a railroad train, advancing, to take the precaution to look ways

to see and ascertain ing at the rate of 30 miles an hour, five whether or not a train is approach times his rate of speed would pass 100 ing, and his failure to do so is neg- rods while he traveled 20 to the point ligence.

of intersection of the highway and the Appeal from judgment at the circuit. railroad track. He was overtaken by

Plaintiff brings this action for dam- an advancing train from the east and in ages resulting from injuries received jured. while crossing defendant's track near Teld, Tha; plaintiff was clearly guil Clyde in this state.

ty of such contributory negligence as Plaintiff approached the defendant's should defeat his recovery in this acrailroad crossing where the accident oc

tion. curred, riding in a top-covered buggy

That a person approaching a railroad wagon and covered also with curtains crossing is bound to take the precaution at the side and back, and those were all to look both ways and see and ascertain buttoned down. In sitting in his seat that a train is not approaching the track he could not see to the right or left before he attempts to cross; he must without bending forward.

use his eyes and ears so far as there is The highway in which he was travel- opportunity. ing ran nearly in the same direction

There is a clear legal duty in one to

thus with the railroad, and gradually ap

eyes
and ears.

Where one proached the track, and for the last ten before crossing a track can, by using rods was nearly parallel with it.

his eyes and ears, readily see or hear an As the plaintiff approached the rail- approaching train, and he fails to take road in the highway (traveling to the this precaution, he is guilty of negliwest), at a distance of about twenty sence clearly contributing to the injury. rods from the crossing he reached a

Judgment reversed, and new trial point where the customary signboard

granted. was erected over the highway, and read and Nocón, J. concurring.

Opinion by Smith, J.; Mullin, P. J.

use his

EVIDENCE. FRAUD. then offered to prove that she had proSUPREME COURT OF PENNSYLVANIA. cured buildings to be erected upon the Stewart v. Fenner.

premises, and had paid for the same Decided March 13, 1876.

subsequent to the delivery of the deeds

from her brother. Objected to; objecThe range of evidence is necessarily tion sustained ; exception. very wide where the issue is fraud;

Defendant offered in evidence certain and the same latitude will be shown whether the testimony tends to estab- judgments against Robert Stewart. lish or rebut the fact.

Objected to; objection overruled; A debtor conveyed all his real estate to exception.

his sister. The bona fides of the Verdict and judgment thereon for transaction being at issue, the sister the defendant. Plaintiff thereupon offered to prove that after the con- took this writ and assigned for erveyance she improved the property at her own expense.

or the above rulings of the court to Held, That the offer should have been which exception had been taken at the admitted.

trial. Error to the District court of Phila

Held, The question at issue in the delphia county.

trial below, was fraud in the converEjectment by Catherine Stewart to

ance of the premises from Robert Stewrecover certain properties in the

art to the plaintiff. The range of evi .

posses. sion of George Fenner. The proper

dence was, therefore, necessarily wide.

For this reason it was competent to ties in question were conveyed to the plaintiff by her brother, Robert Stew. show the debts owing by Robert Stewart, upon the 16th of September, 1868. art as a motive for the conveyance to

his sister. At the time of this conveyance the de

But for the same reasons,

it fendant held Robert Stewart's promis

seems

to us it was error to exclude the evi. sory note, dated November 5th, 1866, for the sum of $500, payable in two

dence of the improvement of the propyears and eight months after date. In erty by Catherine Stewart after her 1870 Fenner obtained judgment upon

purchase.

a circumstance, this note, and, under an execution

though slight, to show bona fides in the upon the judgment, purchased the purchase. People do not often improve premises in question at sheriff's sale,

when they have no confidence in their and received a deed for the same upon

title. The motive of improving was a April 15, 1871. Under this deed Fen- question for the jury and not for the

court. ner subsequently obtained possession of the premises, whereupon Catherine

An honest attempt to improve, and to Stewart instituted this action to recover pay for the same, is not without force in the same. The testimony for the plain-inducing the belief that the prior purtiff, who was a domestic servant, tend- chase was bona fide. The evidence ed to show that she paid a full and val- ought to have gone to the jury for what uable consideration for the property,

it was worth. and that the money paid was derived

Judgment reversed and a venire

facias de novo awarded. from her wages which she had hoarded

Per curiam. in a small box for many years. She

It was

CONTRACT. TENDER. MODIFI-bound to show a performance, or offer CATION.

to perform on their part, at the time N. Y, COURT OF APPEALS.

and place appointed, or that performLevy et al, respts., v. Burgess, applt.

ance had been prevented or waived by Decided March 21, 1876.

defendant (3 Den. 363; 55 N. Y. 480).

It aj'peared upon the trial that at the Where, by the terms of a contract a day, hour appointed defendant went to the

is named for its performance, and the parties subscquently, and before place agreed upon; plaintiff did not the maturity of the contract, agree have the bonds, but informed him they upon a particular hour of the day had not yet received the bonds; that named and a place for its perform- the person from whom they had purchasance, the latter agreement becomes a ed them had tendered bonds which they part of the original contract, and of had refused to accept, on the ground the same effect as if therein contained. Where state bonds are required to be that they were not properly indorsed. endorsed by the state, and the endorse- The bonds in question were to be enment refers to the statute under which dorsed by the state of Alabama, and they were issued, and that the un- those tendered to plaintiffs had been indersigned governor * has here- dorsed by the governor of that state unto set his hand and caused to be affixed hereto the seal of the state," with his own name, without adding his und the seal was affi.ced, the bonds official designation. The instrument of are well executed by the governor indorsement purported to bind the state. signing his name without the addi- It referred to the statute under which tion of his official designation.

the indorsement was authorized, and The terms of a contract requiring the

delivery of bonds signed by Smith, intestimonium clause recited that “the as governor, are not met by a tender undersigned governor of the state of of bonds signed by Smith, although | Alabama has hereto set his hand and the latter bonds may be good. caused to be affixed hereto the seal of

This action was brought to recover the state of Alabama,” &c., and the damages for the non-performance of a seal of the state was affixed. contract, by which plaintiff's agreed to

Defendant testified that he left and deliver certain bonds to defendant on a

returned in a short time, and then inday named, when he was to pay them for the same. After the making of the bonds for him, signed by Smith, as gov.

formed plaintiffs that he could deliver contract and before its maturity the

ernor, to M. & T., brokers, up to 2.15 parties fixed upon an hour and place to P. M., on that day, who would receive meet on the day, the contract matured, and pay for them. Plaintiffs, before to perform it.

that hour, offered M & T. bonds of the Theron G. Strong, for respt. requisite amount, twelve of which were Sidney Smith, for applt.

indorsed by Smith, without the addition Held, 1. That this became a part of of his name of office. M. & T. refused the contract, and had the same effect as to accept them on the ground that deif the particular time and place of per- fendant had not authorized them to acformance had been named in the origin- cept bonds so indorsed. The bonds so al contract (5 Cow.506; 14 Barb. 612); tendered were owned by one K., who aland plaintiffs, in order to recover were lowed plaintiffs to take them to tender

soon

to M. and T., under an agreement with In construing a bequest under a will, plaintiff's that if they were accepted by

the intention of the testator from the M. & T. plaintiffs would accept them as

whole will must govern.

A bequest that executors sell all persona good delivery on a contract they had

al and real estate, convert same into made with K. to deliver them the

money and pay to a person named bonds. Upon the refusal of M. & T. interest on $5,000 of sum realized, is to accept them they were returned to a special legacy, and not demonK., who held them for some days, when

strutive. plaintitfs took and paid for them. Appeal from the decree of the surro

lleld, 2. That the indorsement was gate of Wyoming county. the act and contract of the state, and not The will in controversy, after makof the persons whose name was attached ing several specific bequests, provides: to it, and the addition of his signature

“It is my will, and I do hereby diwas unnecessary; that delivery of bonds“ rect, and authorize, and empower my so endorsed would have been a good de- “ executors hereinafter named, to sell livery under the contract with the de- and dispose of my real and personal fendant; that as plaintiff's neither own." estate not herein devised and beed nor had in their possession the bonds "queathed, and convert the same into called for by the contract at the time money, as as the same can be they were to be delivered, the contract “ doi.e without prejudice to the estate; was broken on their part. It was no "eight thousand dollars to be converted excise that K. had not performed his "into bonds and mortgages, the intercontract with them, or that they had “est of which said sum I give and bedeclined to receive the bonds, under a “queath to my wi e, Helen M. Smith, mistake of law; they were in detault, “ Juring her widowhood, which is inand they could not avail themselves of “tended in lieu of dower.” the subsequent tender to M. & T., when The testator died siezed of certain defendant gave them permission to de estate, in which his wife was entitled to liver bonds on his account to M. & T. her dower,, which constituted the bulk they were bound by the contract then of his estate, she accepted the provision imposed, and a tender o. bonds of a above in lieu of dower, and the real different description was unavailing and personal estate was sold and conthe question whether the bonds tender-verted into money, and after paying ed to M. & T. were such as defendant debts, expenses, &c., left in the hands agreed to accept was one of fact. of the executors only the sum of

Judgment of general term aflirming $5,865.20, for investment in bonds and judgment on verdict directed for plain- mortgages, under the foregoing provistiffs reversed, and new trial granted. ions of the will. Opinion by Andrews, J.

There was a hearing before the surroLEGACY. CONSTRUCTION OF gate, and he decided that the executors WILL.

livest this sum, or so much as remains N. Y. SUPREME Court. GENERAL TERM. after paying expenses, and pay the inFOURTII DEPARTMENT.

terest to the widow annually. Watrous, applt., v. Smith, respt

M. 11. Peck, for applt. Decided April, 1876.

Jas. A. Allen, for respts.

Held, That it is a cardinal rule in A challenge to the array of a grund the construction of all wills to seek the jury on ground that it was not selectintention of the testator, and to carry

ed by the commissioners of jurors

will not be allowed. such intention into effect.

The acts of a de facto officer are valid That this was, and was designed to

as to the public and the validity of be, a specific legacy of the income of his title to office cannot be drawn in securities in bonds and mortgages to question collaterally. the amount of $8,000, if the testator's The plaintiff in error was indicted at estate, after payment of his debts and the General Sessions of the City and other expenses, amounted to that sum, County of New York for the crime of and if not, to the income of all the es- burglary, in the third degree. The tate remaining, during the life or wid- prisoner interposed a challenge to the owhood of the wife. This was the clear array of the grand jury, alleging in subintent of the testator. The fund was stance that the grand jury was not seto be created by the sale of all his real lected by Douglas Taylor, the Comand personal property, for that pur. missioner of Jurors of the County of pose, and was to be in lieu of dower. New York, but was selected by Thomas

Instead of leaving the widow to her Dunlap, who had been appointed by the dower rights in his real and personal es- Mayor of New York such Commissiontate, he thought it best to merge it er of Jurors; that the mayor exercised with his whole real and personal estate a pretended right to appoint Dunlap, and leave it invested in bonds and mort but that the act of the legislature ungages, and give her a specific legacy of der which he appointed him was unthe income of $8,000 from such secu- constitutional. The same challenge was rity, which he doubtless supposed would interposed by the prisoner to the array exceed that sum.

of petit jurors. The district attorney It was the duty of the executor to sell demurred to both challenges, and the and convert the same into money, and demurrers were sustained. invest and pay the widow the income Wm. F. Ilowe, for pltit, in error. on the sum of $8,000, if so much was Benj. K. Phelps, for the defts in errealized. This was her legacy, and the executors could

pay
her
no other

money under the will. The widow was the Held, no errors; that as to the grand primary legatee, and stood in equity vir- jury under the provisions of 2 R. S. 724 tually as a purchaser, by reason of the SS 27, 28, no such challenge could be relinquishment of her dower. She took allowed: as to the petit jury the Commerely the income and forfeited it by missioner of Jurors appointed by the her marriage.

The decree of the surrogate reversed mayor being a de facto officer, his acts and referred back for resettlement. were valid as to the public so long as

Opinion by Smith, J.; Noron, J, he continued to occupy and exercise the concurs; Mullin, P. J., dissents. functions of the office; and then the

validity of his appointment could not be CHALLENGE. DE FACTO OFF- drawn in question in such a collateral

CERS.
N. Y. COURT OF APPEALS.

Judgment of General Term, aflirmJames Carpenter, pltff. in error v. ing judgment of conviction, affirmed. The People, defts. in errror.

Opinion by Rapallo, J. Decided April 4, 1876.

rol'.

manner.

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