Legal Miscellany. Curious Cases. AND THE MOTHER-IN-LAW WAS ALL And so their troth was plighted. It was a moonlight night with the gentle zephyrs and all of the rest of the with that kind of a romantic situation. accessories that are supposed to go along "Yes, Clementine" said Clarence, "we will get married when your mother dies. We don't want any mother-in-law hanging around, so we'll wait until she shuffles off this mortal coil." To all of which the aforesaid Clementine lovingly assented. purposes of necessity, ornament or convenience, partially obstruct a highway in a reasonable manner, so as not to prevent the use of the highway by the public; and the municipal authorities may, by ordinance or otherwise, regulate the manner of this pubile use and ornamentation, with a reasonable discretion, which will depend on circumstances "; that the mere partial obstruction of a part of a street by shade trees, when such obstruction does not interfere with the public use, is not a nuisance per se." Considering these authorities, I do not think that the defendants were properly convicted. They had nothing to do with the placing of the poles in the highway, and only gave their consent thereto. In addition, the poles did not interfere with public travel. Every one knows that many things are placed in the public highway for the convenience of the parties residing along and using it, such as trees, hitching posts, stepping blocks, pavements, and so forth. Surely the supervisors are not liable to indictment on this account. I do not think that Ware had any legal authority, without the permission of the adjacent land owners, to place his poles upon the highway, at all, and, under the above cases, it would seem that the adjacent land owners could peaceably have removed the poles or have proceeded against him either by bill in equity or by indictment. But to place the burden upon the supervisors, who apparently themselves have done no wrong which interfered with any public road, is, in my judgment, not warranted by the law. At best, however, the placing of the poles along the highway was a qualified nuisance, to be submitted to the jury. While it may be that the motion in ar-pressly made performable only after the rest of judgment could be allowed and the defendants discharged without day, I think that, so far as this phase of the case is concerned, the making absolute of the rule for a new trial is the proper course of action; and I, therefore, make the rule for a new trial absolute, and overrule the motion in arrest of judg ment. Rule for a new trial made absolute, and motion in arrest of judgment overruled. Some time later, after the opening scene of our little tale, Clarence with the flickleness too oft characteristic of a man in love, alas, did wed and woo another. And Clementine, with haste that women often display in such circumstances, came to court with her cause of action, and prayed for a money relief for her wounded and outraged feelings. Losing her case in the lower court, and with the hope that the judges of the upper court might prove more chivalrous and sympathetic, her appeal is presented. The decision of the court is appended in part, and is to be found in 4 Cal. App. 520: 'God alone can tell whether the promise to marry upon the death of the third party will become potent as a personal contractual duty during the lifetime of either of the parties to it. He alone can say whether such a promise will restrain or postpone marriage for one or many years. If a promise to marry was ex lapse of ten or twenty years, few courts would be found willing to lend sanction to an agreement so at variance with public policy. And what finite being can say that a promise of the character here under consideration would become performable even within twenty years? Human laws deal only with finite knowledge and finite things. They do not attempt to probe the secrets of the Infinite, nor make the solution of infinite problems a test of human contractual rights. Hence, a promise to assume marital relations with another cannot be made contingent upon the Infinite Will concerning the span of a third life, without creating uncertainty which the finite mind can neither unravel nor dispel. "The defendant did not agree to abstain from matrimony until her mother obligingly stepped from the stage of human action, nor did he promise to abstain from loving and cherishing another during the interval which might elapse before his promise could become a present obligation, for the breach of which he could become mulcted in damages. He might feel the need of wifely counsel and comfort during the years and years which might pass away before the plaintiff might be bereft of her parent. True, inconveniences, many and annoying, might | result from a marriage ad interim. Adult sons and daughters, fruits of his union with another, might tearfully protest against the fulfilment of this ancient trothplight, but if he should be free of hand, faithful of heart, and ready to abide the promise of his virile youth when plaintiff's mother dies, the plaintiff must needs be content. She can only call upon him to perform the promise when the time arrives, and meantime she must forego compensation in ducats for the breach of a promise he has not yet broken. Her mother still lives, and she must await until a daughter's filial love and care no longer avails to stay the hand of the destroyer. If, in the fulness of time, this should happen, during the lifetime of both plaintiff and defendant, she might at least be able to prove a breach of this promise, which, in my opinion, was void ab initio and is void. in toto." -Case and Comment. Recovery for Injury by Automobile Used for Recovery has been sought, states Joseph T. Winslow in the August Case and Comment, against the owner of an automobile for injuries occurring while it was being used by a member of his family, on the ground of respondeat superior. It appears that while the relation of parent and child will not render the par |ent liable for the child's negligent operation of the car, yet that the child may become the parent's servant under certain conditions so that liability will attach to the latter for the negligent operation of the car by his child. It seems that where a child acts as the chauffeur for the family, of a car kept for family purposes, the owner will generally be held liable for injuries resulting from the negligent operation of the car by the child while he is driving it for other members of the owner's family who have permission to use it. It appears, however, that where a child or a member of the owner's family at the time an injury occurs is driving the car for his or her own purposes, the owner will not as a rule be liable, although the Missouri court of appeals in some cases has taken the view that a parent may be held liable under such circumstances if the car was one which was kept for general family use, upon the theory that it was being used by the owner's agent for one of the purposes for which it was kept by him. In case the owner of a car kept for family use furnishes a chauffeur, other than a member of his family, he is ordinarily liable for an injury occurring while the chauffeur is driving the car under orders of some member of the owner's family. Costly. "I always get rattled when I see a woman crossing the street ahead of me," said the first motorist. "So do I," replied the second ditto. They wear such a lot of pins in their hats and hair that if a fellow collides with them he is almost sure to puncture a tire." -Minneapolis Journal. Hidden Dangers. Motorist (to chauffeur)-" Be careful about running over anybody hereabouts. This is a prohibition county, and most everybody has a bottle in his pocket." -Atlanta Constitution. aggregating $943.00 as the same was LANCASTER LAW REVIEW. from the income of the estate and John VOL. XXXII.] FRIDAY, SEPT. 3, 1915. [No. 44 Supreme Court. T. Hill was the only party in interest. On appeal the error assigned was [1-5] the action of the Court below, LANDIS, P. J. in dismissing each of the above exceptions and [6] in entering the following decree: "The exceptions filed are now overruled and the Auditor's report is abso Hill's Estate (Whiteside's Appeal) (No. 2). lutely confirmed. Auditor's report con firmed." Coyle & Keller and B. F. Davis, for Guardian and Ward - Account · Sur- The guardian was entitled to extra compensation for the management of the farm. McElhenny's Appeal, 46 Pa., 348. The credit for interest should have been allowed as the ward's estate would have had to pay interest if it had borrowed the money from another source. Merkel's Estate, 154 Pa., 285. Blank's Appeal, 3 Grant, 192. Whatever faults the accountant may have committed they do not justify the handing over of $2000 of his individual money to his successor when the ward has already received the full interest of this money and the loss of all compensation for ten years. Credits on the payments to the ward running over a period of ten years in small amounts corresponding to the times when a man needed clothing, and not being excessive in amount, are properly allowable to the guardian. Sellech's Appeal, 16 W. N. C., 370. H. Frank Eshleman, for appellee. The appellant failed to show that his services were worth the $400 to Hill specified in the contract. Smith v. Loofman, 145 Pa., 628. Darlington's Estate, 147 Pa., 624. Stepp v. Fraupton, 179 Pa., 284. A faithless trustee can demand compensation. no Berryhill's Appeal, 35 Pa., 245. Hart's Estate, 203 Pa., 496. Greenfield's Estate, 24 Pa., 232. Whiteside's Appeal, 237 Pa., 340. The matter of $781.24 interest was res adjudicata. The payments to the ward were not proved necessary and are attacked by the ward. May 26, 1915. PER CURIAM. This appeal is dismissed at appellant's costs, on the opinion of the learned president judge of the court below dismissing the exceptions to the report of the auditor. Appeal dismissed. dispute, their verdict should be in favor of the plaintiff for the sum of $2,470.70, and thereupon they rendered a verdict for the plaintiff for that amount. In order now to properly pass upon the above rules, it is necessary to first ascertain what that undisputed evidence was, and then to determine whether it was sufficient to support the jury's finding. Henry Keen, being the owner of four contiguous tracts of land, with improvements, located near Bird-in-Hand, in East Lampeter Township, Lancaster County, died on July 8th, 1912, intestate. He left surviving him a widow, Jane P. Keen, and two daughters, Anna L. Myer and Clara L. Keen, both of whom were of legal age. To these daughters, the said land descended under the intestate laws of this Commonwealth, subject to the widow's dower. On September 19th, 1913, these two heirs offered the said land for sale, at public sale, and it was then knocked down to Winfield S. Ramsey, for the sum of $3,637. This sum included the widow's dower. Peter R. Eaby, the above-named defendant, became security for Ramsey for the faithful performance of the condition of sale. The purchase money was to be paid on April 1, 1914, and the deed was on that date to have been delivered to the purchaser. When, however, that time ar A vendee who purchased as a whole at pub-rived, or at the subsequent time agreed lic sale a tract of land, described in the con ditions of sale as containing sixteen acres, can not withhold payment of the purchase money because a railroad had a right of way through it which the vendee knew when he bought it, and it did not contain sixteen acres exclusive of the right of way. Rules for judgment for defendant n. o. v. and for a new trial. C. P. of Lancaster County, August Term 1914, No. 53. upon between the parties, Ramsey refused to accept the deed which was tendered to him and to pay the purchase money. The plaintiffs then brought this suit against his surety for its recovery. The question arises whether or Ramsey was justified in his refusal to take and pay for the land. The conditions of sale contain the following description as to the property which was to be sold: "On the premises in East Lampeter Township, on the road anicsburg, near Bird-in-Hand, a tract of leading from Bird-in-Hand to Mech16 acres, with a two-story frame house, frame bank barn, etc., as property of heirs of Henry Keen, deceased." This property was not sold by the acre, but as a whole. The tracks of the Pennsylvania Railroad run through the farm, that Company having, by virtue of its right of eminent domain, on Mary 14, | Kennedy, J., delivering the opinion of the 1877, entered upon and occupied 2.432 Court said: "This is perhaps the first inacres. It has since the sale been ascer- stance in which it has been claimed that tained that the contents of the farm, as a covenant on the part of the vendor, conmeasured outside of the right of way, tained in articles of agreement for the amount to about 142 acres. When, sale of real estate, to convey the same however, the deed was tendered to clear of all incumbrances, or in a deed Ramsey, the description included the of conveyance, that the real estate thereright of way, and the total amounted to by conveyed was clear of all incumabout 17 acres and I perch. The rea- brances, embraced a public road or highsons advanced by Ramsey for declining way, in being, at the time, and previously, to take the farm are, that there are not laid out, opened, and used, through or in it 16 acres exclusive of the right of over the estate. Believing that it has way, and in addition it is urged that the never entered the minds of the parties, right of way is an encumbrance on the when selling and buying lands in this Keen land, which prevents the plaintiffs State, to conceive that a covenant against from giving a clear title. The evidence incumbrances extended to public roads shows that Ramsey lived, for from ten or highways, as such, and that the unito twelve years, only half a square away versal understanding of both sellers and from the Keen property; that he knew purchasers has been in opposition to it, it, and was familiar with its lines; and I am inclined to believe that every one that he worked upon it for the plaintiffs whose mind has been in any degree confor a year and a half on both sides of versant with the subject would be somethe railroad. It is not disputed that, what amazed, if not perfectly astonished, after Ramsey refused to take and pay to find by a decision of this Court that for the farm, the plaintiffs rented it to he had ever been under such a delusion the tenant that Ramsey himself had in this respect. Every contract or coveagreed to rent to, for the sum of $200, nant is to be construed and carried into money rent. These are all the material effect according to the intention of the facts presented in the case. parties; which is to be ascertained by giving to the terms and language of the contract the same meaning that men generally affix thereto; and the sense in which such terms and language are received and understood by men generally in making such contracts, ought to govern in manifesting the intention of the parties thereto. According to this rule of construction, we are convinced beyond all possible doubt that there is no ground for holding the public highway on the lots in question to be an incumbrance within the meaning of the parties as manifested by the terms of their contract." In Memmert v. McKeen, 112 Pa., 315, Mr. Justice Paxson said: "Incumbrances are of two kinds, viz., I. Such as affect the title; and 2. Those which affect only the physical condition of the property. A mortgage or other lien is a fair illustration of the former; a public road or a right of way, of the latter. Where incumbrances of the former class exist, the covenant referred to, under all the authorities, is broken the I cannot see how the taking of a part of the land of Henry Keen by the Pennsylvania Railroad, under its right of eminent domain, can be considered as such an encumbrance upon the balance of his land as prevents his heirs from making a clear title to what was left. Under the law, the Railroad Company appropriated 2.432 acres for railroad purposes. For such purposes, it is theirs forever. Only if the Company should cease to use it for such purposes would it revert to the adjacent land owners. The position is quite as strong as if it were a public road or street, which, it has been decided, when plainly open to view, cannot be made the basis of such a defense. Often, conveyances cover to the center of a road or street; but no one, I think, would contend that, because of this, the road or street is an encumbrance on the title which would be sufficient to defeat an action for the payment of purchase money for land located along the same. In Patterson v. Arthurs, 9 Watts, 152, |