September 29, 1914; therefore, he is ordered to pay it. Not only would it seem cruel to deny the petitioner's appeal for tobacco, but the consequences cannot be foreseen, and if he cannot be satisfied in some other way the trustee would not be exceeding his authority if he arranged that a limited quantity of "scraps" or some other inexpensive tobacco be supplied him. The rule is made absolute in so far as the bill of John Parmer for $52.50 is concerned. Costs to be paid out of the trust fund. The Rittenhouse Hotel Case. Negro recovers nominal damages for refusal of accommodations. The following interesting charge was delivered by Judge Sulzberger on December 15, 1914, in C. P. No. 2 of Philadelphia, December Term, 1913, No. 1384, M. J. Geraghty presenting the plaintiff, and Hampton L. Carson and John Kent Kane the defendant, Mr. Duffy, of the Rittenhouse Hotel. It should be noted that this is the residence pro tem. of the Chief Justice and several of the Justices of the Supreme Court. CHARGE OF THE COURT. By SULZBERGER, P. J. Gentlemen of the Jury: The defendant is an innkeeper who, according to the immemorial custom of innkeepers furnishes food and drink to the wayfarer, and lodging for the night if required. It appears that the plaintiff wandered into his place and asked for some refreshment, and was refused by the person in charge upon the ground that he was not of the right color, as his skin was too dark. It appears from the evidence, and also otherwise, that men who have skins of various degrees of whiteness or yellowness or muddiness believe that they are the final sum of the Creator's wisdom, and that anybody whose complexion substantially differs from theirs is an inferior creature. You will therefore know that this barkeeper was perfectly certain that Confucius, the great Chinese philosopher, if he had come along with. his yellow complexion would have been distinctly his inferior and would have been subject to his contempt. So also if the man was a little darker than Confucius, and if he was quite dark like the plaintiff, then he might be wiser than Aristotle, and more beautiful than Venus, and he would have been no good anyhow. I am now giving you the point of view of the barkeeper, and therefore show you that he acted in a perfectly natural manner without malice. It was merely the profound conviction of superiority which God implants in mankind. When there is no superiority in a man, he has a consciousness of superiority which serves instead, and if we did not have that many of us would be dragging along hopelessly in the world, because most of the superiority that most of us have is purely imaginary, and that is this case. The Constitution of the United States has been so amended, and the laws of the United States and the several states have been so altered, that this old idea. that a black man must necessarily be treated as an inferior shall not be officially recognized. Socially it is recognized, and no law is powerful enough to overcome social prejudice, but law is powerful enough to manage public matters. While it would take thousands of years to efface a social prejudice, it does not take that long to impose a legal obligation. This innkeeper wants a privilege from the state of Pennsylvania to keep an inn in certain of its features, and he has got it and holds it on condition that he shall faithfully perform the duties of an innkeeper, and the duties of an innkeeper are not performed when he refuses accommodation. Here, by his agent on the spot, he refused accommodation to the plaintiff, and he is here in your presence and he does not deny the statement of his agent on the spot that those were his orders. You are, therefore, entitled to believe that he gave the order to refuse drink or other accommodation to anybody who was a "nigger." That was what he said. If he did that, he failed in his public duty. He violated the condition under which he holds. license. His license is subject to be re voked, and he is liable in damages for the breach of duty. The only question is, what damages? Our old law is that where a man has not suffered any real damage, we grant nominal damages. I cannot say that there is any evidence that the plaintiff suffered any real damage. Do not forget that this was the Rittenhouse. The Rittenhouse is a place where people dwell who are all superior. Now, you know a superior person is unaware of anything but the physical existence of inferior persons. They are like worms and cats and such things as that. You have to have them around, you do not know why, but there they are, and therefore there are no degrees of social rank for a negro in that restaurant. He is no more to them than a worm when he gets in there, and therefore when the barkeeper treats him that way he does not lose caste one bit with that crowd. He stands just as well afterward as before. His reputation has not been injured. His standing has not been injured. He has been in no wise injured except in law. Legal injury is about six and one-fourth cents usually, and that is about all that I see he suffered. The real penalty is prescribed by the statute of 1887, but it must be pursued in another way and not in this way. I therefore instruct you that on the uncontradicted evidence the plaintiff is entitled to a verdict, but that he is not entitled to a verdict for more than nominal damages, and nominal damages it is within your power to state, but they must be nominal. I have given you six and at quarter cents because that is the old term when we used to have a "fipenny bit," but you may put it anywhere up to $5, as far as I care. The defendant has asked me to say that under all the evidence your verdict should be for the defendant. I decline that point. Counsel for defendant excepts to so much of the charge of the Court as was refusal to affirm the point submitted on behalf of defendant. Verdict for plaintiff, twenty-five cents. C. P. AND Q. S. OPINIONS. Saturday, January 16th, 1915. Union Trust Co. v. Mowrer. Judg ment for plaintiff for $624.89. Woelfer v. Pennsylvania Water and Power Co. Defendant enjoined from increasing height of dam by means of flash-boards. Monday, February 1, 1915. Com. v. Augustine Vitale. Rule for a new trial discharged. Com. v. Tony Vitale. Rule for a new trial discharged. O. C. ADJUDICATIONS. By JUDGE SMITH: Thursday, January 21st, 1915. James Wasson, Fulton. John Geo. Leitenberger, W. Hempfield. William Seiders, Elizabethtown. Thursday, February 4, 1915. Rudolph Nesshyla, Leacock Twp. LANCASTER LAW REVIEW.jurisdiction and confess judgment there &c." Two reasons are urged why this judg VOL. XXXII.] FRIDAY, FEB. 12, 1915. [No. 15 ment should be opened and the defend Common Pleas-- Law Gross v. St. Clair. Landlord and tenant-Rent-Demand- Where no place is mentioned in a lease for payment of rent, it is incumbent on the landlord to show a demand on the premises previous to a forfeiture, although the tenant was in the habit of seeking the landord to pay. ant let into a defense. The first of these is that the judgment was improperly entered for the reason that no demand for the rent was made upon the premises by the plaintiff before commencing this action. The affidavit of the plaintiff was made. on October 12, 1914, and alleges that the defendant is in arrears in rent to the amount of $9. . It does not allege that any demand. was made for its payment prior to the bringing of suit, or that the plaintiff was upon the premises to receive it. In Rea v. Eagle Transfer Co., 201 Pa., 273, it is decided, that where no place is mentioned in a lease for payment of rent, it is incumbent on the landlord to show a demand on the land previous to a declaration of forfeiture. habit between the parties for the tenant Rule to open judgment. C. P. of Lan-relieve the latter from the necessity of to seek the landlord and pay, will not caster Co. November Term, 1914, No. A landlord who accepts, without objection or notice to follow the terms of the lease, payments of rent not in advance as required by the lease, cannot subsequently forfeit the lease because the next rent due was not paid in advance. II. Teufel . Rowan, 179 Pa., 408, distinguished. Coyle & Keller, for rule. John A. Nauman, contra. A. formal and legal demand on the land, if he seeks to make non-payment the basis of a forfeiture. In Bergdoll v. Spalding & Bros., 234 Pa., 588, it is decided that where a judg January 9. 1915. Opinion by HASS- ment in ejectment is entered on such a LER, J. This is an application to open a judgment which was entered in an amicable action in ejectment. The proceedings were had under a lease, which provides that the defendant is to pay the rent monthly in advance, but does not state where such payments are to be made. It is provided, further, that "This demise is upon condition that the covenants of the second party shall be fully kept and performed, and any breach thereof the estate demised shall at the election of the first party cease and determine, and the first party may reënter the demised premises without previous notice or demand. And upon the expiration or other determination of said term, or of any renewal, any attorney may appear for the second party in an amicable action in ejectment for the demised premises in any court having lease as the one involved here, and the landlord has not alleged that a demand for the rent due was made upon the leased premises in an affidavit in the amicable action, the court will, upon petition, strike off the judgment, as the record does not show the plaintiff to have any right to one. The judgment in this case was entered prematurely, as it nowhere appears in the amicable action that the plaintiff made demand upon the premises for the rent due before commencing this suit. The depositions further show that no such demand was made. We cannot, however, strike off the judgment, as the rule is only open to it. If there were nothing else in the case but this, we would be required to make this rule absolute for this reason alone. The other reason is, that as the plaintiff, without objection, accepted other payments of rent from the defendant that were not in advance, and thus led him into believing that he did not intend to insist upon his right to have future payments made in advance, it would be inequitable to permit him to forfeit the lease and enter a judgment against the defendant because he was a few days late in making the last payment. | have enforced these rights will not be allowed to do so where they would be inequitable having regard to the course of dealing between the parties." due, the case would have been different. Equity will not permit a party to take advantage of a contract after a long course of dealing contrary to its terms, without notice that thereafter he intended to enforce his rights." In Cogley v. Browne, II W. N., 224, it is said: "It is not altogether clear that the rent reserved by this lease was payable in advance, but conceding that It appears in the depositions that the fact, the conduct of the lessor in receivrent was paid monthly in advance from ing the rent at any time was sufficient to December 1, 1913, to May, 1914. Then induce the lessee to believe that the right the defendant paid, and plaintiff acin question would not be insisted on. If cepted, the rent for the months of May notice had been given that future payon May 2, for July on July 2, for Augustments must be made on the day when on August 4, and for September on September 5. The plaintiff made no objections to these belated payments, and did not give defendant any notice that thereafter he would insist that payments should be made in advance, as called for in the lease. In this course of dealing he led the defendant into believing that it was not necessary for him to pay in advance to escape forfeiture of the lease. Therefore, in October, 1914, when ill himself, with illness among other members of his family, he waited until the 10th to take the rent to the plaintiff's house. Plaintiff was not at home, and it was offered to a member of his family, a young daughter, who declined to accept it, giving as her reason that her father did not permit her to receive any money. He told her that he would come on Monday night when her father was at home to pay it. She reported to her father, the plaintiff, on the morning of the 11th that the defendant had been there and offered to pay the rent. On the morning of October 12th this proceeding was commenced. In Bispham's Equity, 3rd Edition, Sec. 181, it is said: "For it is the first principle upon which all courts of equity proceed, that if parties who have entered into definite and distinct terms involving certain legal results, certain penalties or legal forfeitures, afterwards by their own act, or with their own consent, enter upon a course of negotiations which has the effect of leading one of the parties to suppose that the strict rights arising under the contract will not be enforced or will be kept in suspense or held in abeyance, a person who otherwise might In Times Co. v. Siebrecht, II W. N., 283, it is said: "Equity will always relieve in a case of this nature (viz., a forfeiture), and will not permit a landlord to entrap his tenant by establishing a course of dealings, and then without notice suddenly enter up a judgment and eject a tenant." In Duffield v. Hue, 129 Pa., 94, Justice Clark says: Whatever right the lessors may have had to insist on the forfeiture of the P. lease by reason of failure to put down the seventh well within a stipulated time, was waived by their acquiescence in the failure to put down two or three or the preceding six wells within the stipulated time. The lessee might well believe, from such acquiescence, that strict performance of the terms of the lease as to the time of putting down the wells would not be insisted on, and that a reasonable notice should be given before a forfeiture could be claimed on account of failure to sink the seventh well." The same principle is recognized in Lynch v. Gas Co., 165 Pa., 518; Rea v. Transfer Co., 201 Pa., 273. In acquiescing in defendant's payment of rent after it was due, according to the terms of the lease, in May, July, August and September, the plaintiff led the defendant to believe that he would not insist on his right to have the payments made in advance thereafter. He did not thus lose any right contained in the lease, In re Petition of John P. Albright (No. 2). -Act of April 16, as it is contended would result if this Rule for ejectment view is accepted, because he could insist that subsequent payments be made in advance by notifying the defendant to that effect, as then he would not be misled by the previous course of dealing between them. Having failed to give this notice, he could not commence proceedings to forfeit the lease. Plaintiff contends that Teufel v. Rowan, 179 Pa., 408, is at variance with these views. We do not think so. In that case the lease provided that upon failure to pay monthly instalments of rent upon specified days the rent for the whole term would become due. The landlord accepted payments of overdue rent. Execution was issued against the tenant, and the landlord claimed the rent for the whole term out of the proceeds of the sheriff's sale. It is held that he could do this, as his acceptance of overdue payments did not amount to a waiver of his rights under the lease. At most, it was only evidence of a willingness to indulge his debtor. It was said to be different from an attempt to enforce a forfeiture of a lease, as it was only enforcing the payment of a debt. Therefore, it was said the cases cited on the subject of forfeiture by the plaintiff did not. apply. In our case it is not contended that the plaintiff by his course of dealings waived any of his rights under the lease. Because he led the defendant into be lieving that the payments in advance would not be insisted upon, he could not enforce a forfeiture of the lease, which is what this action in ejectment does, without giving the defendant reasonable notice of his intention to insist on his full compliance with the terms of the lease. as to time of payment. For both reasons we must open this judgment and let the defendant into a defense. The rule to open the judgment is therefore made absolute. 1903, P. L. 212. A rule to bring ejectment within six months will be allowed where the petitioner is shown of possession and claims the property, although to be in possession, and the respondent is out he avers that the petitioner does not own the property and came into possession bv forcible entry, for which he is under indictment. Rule to bring ejectment within six months. C. P. of Lancaster Co. November Term, 1914, No. II. W. U. Hensel, for petition. January 9, 1915. Opinion by HASS- The This is an application under the Act of 1903, by a party in possession of real estate to compel a party claiming title, but not in possession, to bring an action of ejectment within six months. Act of 16 April, 1903, P. L. 212, Sec. I, is as follows: "Whenever any person, not being in possession thereof, shall claim an interest in or title to real estate, it shall be lawful for any person in possession thereof, claiming title to the same, to make application to the court of common pleas of the proper county, whereupon a rule shall be granted upon said person, not in possession, to bring his or her action of ejectment within six months from service of such rule upon him or her, or show why the same cannot be so brought; which rule may be made returnable to any term or return day of such court, and be served and returned as writs of summons are by law served and returned." The petitioner alleges that he is the owner of and in possession of a certain lot or piece of ground, with a house. erected on it, located in the village of Maytown, this county, which is particularly described; that Jacob Ziegler claims to have an interest in or title to the land, and that he is not in possession. In his answer, Jacob Ziegler alleges that he is the owner of the house and lot in question, and denies that the petitioner is the owner of it; that John P. Albright obtained possession by forcible |