he being a passenger on said train; that said intestate intentionally and of a purpose, fell, sprang or jumped from said train with the intent of inflicting injury upon himself and as a result thereof he was thrown against the ground on or near said railway track with great violence receiving injuries from which he died four days later. Y. & Y., Attorneys for Defendant. No. 115. Plea that Suit Has Abated by Death of only Beneficiary. [Caption.] Now comes the defendant, the C. & D Railroad Company and for plea to the said declaration filed herein says: That the deceased, E. F., died unmarried, without children, and leaving surviving him as his next of kin his father, G. F., who alone was entitled to recover any damages for the wrongful death of said E. F. Since the bringing of this suit, said father, G. F., has died; thereupon defendant comes and says that this suit abated upon the death of the father, G. F., and can no longer be maintained. And this it is ready to verify. R. Y. and G. Y. come and make oath that they are attorneys for the C. & D. Railroad Company and do say upon oath that the matters and things stated in the foregoing plea are true in substance and in fact. This plea is not interposed for delay. Sworn to and subscribed before me this R. Y. G. Y. day of H. M., Clerk. [Caption.] No. 116. Answer to Suit on Fidelity Bond. Comes the defendant in the above styled cause, and for answer to each count of the complaint filed in said cause, separately, says: 1. It pleads in short by consent the general issue. 4. Defendant alleges that the bond sued on provides that the defendant should not be liable under said bond for any act or thing done or left undone by the principal, E. A. Matthews, in obedience to, or in pursuance of any instruction. or authorization received by him from the assured, the Clanton Bank, or any superior officer, and defendant alleges that the act or thing done or left undone by the said E. A. Matthews, and for which recovery is sought in this suit, was done or left undone by the said E. A. Matthews in obedience to or in pursuance of instruction or authorization received by him from the Clanton Bank or from one of the superior officers of the said E. A. Matthews. 5. Defendant says that the bond sued on provides that the defendant should not be liable for any mere error of judg ment or bona fide mistake or any injudicious exercise of discretion on the part of the said E. A. Matthews in and about all or any matters wherein he shall have been vested with discretion, either by instruction or by the rules and regulations of the Clanton Bank; and defendant says that the acts of the said E. A. Matthews, for which recovery is sought in this suit, consisted of nothing more than errors of judgment or bona fide mistakes or the injudicious exercise of discretion on the part of the said E. A. Matthews in and about the matter of the bank, with which he was vested with discretion. 6. Defendant says that prior to the execution of the bond sued on, the said E. A. Matthews had been, for a number of years, in the employ of the Clanton Bank as its cashier, and that during the time that he was so employed by the Clanton Bank, prior to the date of the execution of the bond sued on, the said E. A. Matthews was guilty of dishonest and fraudulent acts, in pursuance of his duties as cashier, which dishonest or fraudulent acts amounted to larceny or embezzlement and that the said Clanton Bank, at the time that the bond sued on was executed by the defendant, had knowledge of the commission of said acts by the said E. A. Matthews. Defendant further alleges that when said bond was executed by it, the said Clanton Bank concealed from and failed to disclose to the defendant the commission of said acts by the said E. A. Matthews, and thereby perpetrated upon the defendant a fraud in the procurement of the execution by the defendant of the bond sued on. Wherefore, the defendant says that the plaintiff should not recover on said bond. 7. Defendant says that prior to the execution of the bond sued on, the said E. A. Matthews had been, for a number of years, in the employ of the Clanton Bank as its cashier, and that during the time that he was so employed by the Clanton Bank, prior to the date of execution of the bond sued on, he had on numerous occasions done some of the same character of acts and used the funds of the Clanton Bank in the same manner as that for which recovery is sought in this suit; that the Clanton Bank had knowledge of these facts at the time that the bond was executed by the defendant, but concealed from and failed to disclose to the defendant said facts, and defendant alleges that said Clanton Bank thereby perpetrated upon it a fraud in the procurement of the execu tion of said bond, which precludes a recovery upon said bond. 8. Defendant alleges that the bond sued on in this case was issued upon the express condition, which condition is set out in the bond sued on, that on the discovery of any act capable of giving rise to a claim under said bond, the Clanton Bank should, at the earliest practicable moment, give notice thereof to the defendant, and defendant alleges that the Clanton Bank discovered an act or acts capable of giving rise to a claim under said bond, and failed to give notice thereof to the defendant at the earliest practicable moment after the discovery thereof. 9. Defendant alleges that the bond sued on in this case was issued upon the express condition, which condition is set out in the bond sued on, that on the discovery of any act capable of giving rise to a claim under said bond, the Clanton Bank should, at the earliest practicable moment, give notice thereof to the defendant, and defendant alleges that the Clanton Bank discovered an act or acts capable of giving rise to a claim under said bond, and failed to give notice thereof to the defendant within a reasonable time after the discovery of said act or acts. 10. Defendant alleges that the bond sued on in this case was issued upon the express condition, which condition is set out in the bond sued on, that on the discovery of any act capable of giving rise to a claim under said bond, the Clanton Bank should, at the earliest practicable moment, give notice thereof to the defendant, and defendant alleges that the Clanton Bank discovered an act or acts capable of giving rise to a claim under said bond, and for more than five months after making such discovery failed to give notice thereof to the defendant. 11. Defendant alleges that the bond sued on in this cause was issued upon the express condition, which condition is set out in the bond sued on, that on the discovery of any act capable of giving rise to a claim under said bond, the Clanton Bank should, at the earliest practicable moment, give notice thereof to the defendant, and defendant alleges that one or more of the items for which recovery is sought in this case, and of which the defendant had notice in the proof of loss furnished to it by the plaintiff, was discovered by and known. to the Clanton Bank more than five months before any notice thereof was given by the Clanton Bank or by the plaintiff to the defendant. 12. Defendant alleges that the bond sued on in this case was issued upon the express condition, which condition is set out in the bond sued on, that said bond should become void as to any claim for which the defendant would otherwise be liable if the bank should fail to notify the defendant of the occurrence of the act or omission, out of which said claim. might arise, immediately after it came to the knowledge of the bank; and further that the knowledge of a president, vice president, secretary, treasurer, manager, cashier or other like executive officer should be deemed, under said bond, the knowl edge of the bank. And defendant alleges that an act or acts of E. A. Matthews, for which recovery is sought in this case, became known to the bank or to the president, vice president, or to some director of the same Clanton Bank, and said Clanton Bank failed to notify the defendant of the occurrence of said act or omission immediately after it so became known. 13. Defendant alleges that the bond sued on in this case was issued upon the express condition, which condition is set out in the bond sued on, that said bond should become void as to any claim for which the defendant would otherwise be liable if the bank should fail to notify the defendant of the occurrence of the act of omission, out of which said claim. might arise, immediately after it came to the knowledge of the bank; and further, that the knowledge of a president, vice president, director, secretary, treasurer, manager, cashier or other like executive officer should be deemed, under said bond, the knowledge of the bank; and defendant alleges that an act or acts of E. A. Matthews, for which recovery is sought in this case, became known to the bank or to the president, vice president, or to some director of the bank, and said Clanton Bank and said plaintiff failed to notify the defendant within a reasonable time after the knowledge of the occurrence of said act or acts so became known. 14. Defendant alleges that the bond sued on in this case was isued upon the express condition, which condition is set |