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miles. The aggregate of car mileage is 8.63 miles; but as certain portions of the tracks are common to each, making allowance for the distance traveled on common tracks, the total of track mileage is only 7.08 miles. Inasmuch as one of these lines extends beyond the city, and into Baltimore county, the gross receipts from or on account of that portion of the track which is without the city limits ought not to pay any part of the 9 per centum tax which has been imposed for the privilege accorded by the city to the appellant of using its streets for railway purposes. But it is self-evident that an arbitrary deduction of one-half the gross receipts of all the lines of the appellant to represent the revenues derived from the one-half mile of track outside the city cannot be right. To deduct one-half of the gross earnings before computing the tax to be paid, as representing the revenues derived from that half mile outside the limits, which is only about one-sixteenth of the whole mileage of the appellant, is suggestive of such an enormous amount of work done and money earned by that portion of the road, as compared with the rest of the mileage within the city, as taxes credulity too heavily for acceptance as a fair basis of settlement with the city. Having accepted their privileges on the condition of paying this tax upon the gross receipts, it was the duty of the appellant to furnish an accurate statement of such receipts. Upon a bill for discovery in aid of this suit, the total gross receipts have been given, in response to the demand, as $277,269; but that amount includes the receipts from the county part of the tracks, of which they say they have kept no account separate and apart from the other parts of their lines. their answer to the bill for discovery, and by the testimony of their officers, it is shown that they thought it impracticable, by the methods and agencies used by the company, to keep a separate account of the fares received from that part of the road. Having no separate fare for the part of the road lying outside the city limits, but the five cents paid outside the city entitling the passenger to ride to any part of the city on that line, and, by a free transfer, to any part of the city, traversed by any one of the lines of the appellant, and vice versa for persons getting on in the city and going to the county, it is clear that some method inust be adopted to determine with reasonable accuracy what proportion of the revenues shall be deducted as not liable to tax. The evidence shows that a very small part of the fares received were paid for rides begun and ended on the county part of the track. The five cents paid, therefore, in very much the larger number of instances, represented rides wholly in the city, and those begun in the county and ended in the city, or in the city and ended in the county; and inasmuch as portions of the tracks in the city were traveled by each line of cars, and inasmuch as the system of transfers from one line to another prevailed by which passengers could start on one

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line and end their trip on another, it is plain that any method which might be adopted to ascertain a proper deduction from the total gross receipts to represent the earnings of that part of the Huntington-Avenue line which was outside the city limits must involve a calculation on the basis of the gross receipts from all the lines.

The first five exceptions relate to evidence offered on behalf of the appellant which was rejected. By that evidence it was sought to establish a proper basis of computation, on the ground that the larger part of the passengers on that line got on in the county, and rode into the city, or in the city and rode into the county, than began and ended their rides in the city. Witnesses who rode on that line twice or more a day stated their estimate from casual observation as to the proportion of passengers so doing. That the exclusion of such evidence was no ground of error is apparent from several considerations. If it was impracticable, as the company stated, to keep an accurate account by a record of the passengers riding on the road, when and where they entered, and where they alighted, it is perfectly clear that the testimony of passengers who only observed now and then, and who did not tell and could not tell at what point outside the city the passengers they observed got on, or where they got off in the city, or vice versa, could not supply a safe method of ascertaining what was wanted. It would not only be the merest guess, resulting from only occasional observation, but it gave no possible help towards determining what proportion of the journeys of these passengers was made on the tracks in the city and the track outside the city. Certainly, unless some method of reaching that proportion was supplied by proof in addition to the statements of those witnesses, their statements would not enable a jury to form a reasonably fair basis for the jury to determine what was the real earnings of Baltimore county track.

The sixth exception brings for review the action of the court on the prayers submitted by the respective parties, and as the second prayer on the part of the plaintiff was adopted by the court below, as supplying to the jury the true method of making the ascertainment of proper allowance for the receipts on account of the track outside of the city limits, we will consider that first. The evidence having supplied the means of determining with certainty how many miles each car of the company, or each line, traveled during the period involved in the suit, by proof of how many round trips each car on each line made during the period sued for, and that proof enabling the jury to find with accuracy how many miles were traveled by the cars of the company upon the half mile of track of the Huntington-Avenue line outside the city, and being given the total gross receipts of all the lines, the court gave the jury an instruction for an arithmetical proportion, by which the half mile track's part of the gross receipts

for fares were ascertainable. This instruction, in the absence of a better one, supplied by actual account of each fare paid in the county for a ride begun there and ended there, or begun there and ended in the city, and giving the distance traversed in the county and in the city, and vice versa, seems to us to reach the justice of this case, and to be free from objection. The rule, thus set up, is as follows: "The greatest sum to which the defendant is entitled, as a deduction from its total gross receipts from passenger travel during the period from February 1, 1885, to March 15, 1887, (the period embraced in this suit,) in respect of its passenger travel outside the city limits, is that sum which bears the same proportion to said total gross receipts as the number of miles traveled by said cars outside the city limits bears to the total mileage traveled by said cars; and if the jury shall find that the total mileage traveled by the cars of the defendant on its said three lines from February 1, 1885, to March 15, 1887, was 1,954,156 miles, and that during the same period that portion of said total mileage of 1,954,156 miles which was traveled by the defendant's cars on that portion of their line which was outside the city limits was 126,781 miles, and that the total gross receipts of the said company, from passenger travel on all its said lines during said period was $277,269, then the sum to be deducted from said total gross receipts in respect of its passenger travel outside of the city limits is to be ascertained as follows, that is to say: As 1,954,156: 126,781: $277,269: $17,985,-which said sum of $17,985 is to be deducted from said sum of $277,269, and upon the remainder, to-wit, the sum of $259,284, the plaintiff is to recover 9 per cent., less such amount as the defendant has already paid to the plaintiff on account thereof for the period from February 1, 1885, to March 15, 1887, as shown by the witness Fender." It appears clear that the court thought that, as there was no evidence enabling it or the jury to find how far each passenger who rode on the cars traveled, the only way to approximate a fair basis of settlement was to act on the assumption that each part of each line carries as many as any other part. This seems reasonable, and is the principle the legislature has sanctioned as the mode of ascertaining the taxable gross receipts of steam-railroads whose tracks are partly within and partly without the state of Maryland. 2 Code, art. 81, § 153, p. 1264, makes this provision: "Whenever the road of any railroad company, organized under the laws of this state, shall extend beyond the limits of this state, into any other state or states, and the return of the treasurer or other financial officer of said company, made to the comptroller, shall not show certainly and accurately the precise amount of gross receipts within this state, the comptroller may ascertain said amount by making the gross receipts in this state bear the same proportion to the whole gross receipts of said company as the

number of miles of said road in this state does to the whole number of miles in the length of said road." In State v. Railroad Co., 45 Md. 384, this court said that this rule is "fair and reasonable," and that "it is true the gross receipts on one part of the road may be greater than on another, but perfect equality in the assessment and apportionment of taxes is unattainable," and hence they adopted this rule as right. This court cites Delaware Railroad Tax Case, 18 Wall. 208-231, where this rule was approved by the supreme court of the United States. It was also approved in State Railroad Tax Cases, 92 U. S. 608-611, and Western Union Telegraph Co.'s Case, 125 U. S. 530-552, 8 Sup. Ct. Rep. 961.

There is one difference in the principle adopted in this case and that prescribed in the statute quoted and approved in the cases decided which ought to be noted, and which has already been alluded to. It is that this construction adopts the basis of the full mileage traversed by the cars of the appellant instead of the simple track mileage. The reason for this, and the justice of it, grows out of the fact, that there is a portion of the track common to some of the lines, and as the cars pass over the tracks they are to be presumed to be earning fares by the carriage of passengers. Therefore the actual round trips made by each car represents its full earnings, and the exact distance also it has traversed, and therefore gives a more accurate method of reaching the earnings of that part of the road which is not subjected to tax. ing, as we do, the granting of the plaintiff's second prayer, it follows, as a consequence, that the defendant's first prayer was properly rejected. If any injustice is done the appellant, it results from its neglect to furnish a more accurate method of fixing the half mile track earnings.

Approv

The plaintiff's first prayer, and the second, third, and fourth prayers of the defendant, involve the construction of the ninth section of ordinance No. 150, which imposes the tax, and the admissibility of certain evidence of the appellant which by the first prayer of the appellee is asked to be stricken out, and which was by the court below stricken out. Section 9 of the ordinance No. 150 of 1880 (which granted appellant its privileges and imposed the tax sued for) provides "that whenever the amount of the gross receipts of any passenger railway company, owning or operating any railway tracks in the city of Baltimore, now required to be paid to the city register for the use of the park fund, shall be reduced from 12 per centum to any. less amount, the said reduction shall apply to the railways hereby authorized to be constructed." The appellants offered evidence touching certain settlements of the city with some other railways with which the city was in controversy, in which the city submitted to certain deductions for the purpose of securing a settlement. The appellant claimed the benefit of like deductions, on the conten

tion that it was a reduction of the per centum of tax, under the ninth section of the ordinance above quoted. It is unnecessary to elongate this opinion by the recital of what was done by the city in compromise of litigation with other companies; for it is very clear to us that such acts on the part of the city were not what the ninth section of ordinance No. 150 was providing for and guarantying to this appellant. The acceptance by the city of less than was due, for the purpose of ending suits and controversies over amounts claimed as due, by way of compromise, was certainly not a reduction of the per centum of tax, and was not what was intended by that clause of the ordinance. It only meant that if thereafter any other company should be granted privileges such as was accorded the plaintiff, and a less percentum of tax on the gross receipts of such company should be required of them thau was required of appellant, or if the rate of per centum should be diminished from the tax on companies chartered before the appellant, then such diminution of rate should also inure to the benefit of the appellant. The city authorities might possibly have exceeded their authority, and made illegal settlements, but it is not necessary for us to consider whether they did or not. The appellant is very clearly not entitled to abatement because of those arrangments by way of compromise. Without relying on this view wholly, the appellee contends that since the passage of the act of 1882, c. 229, fixing the park tax at 9 per centum, that ordinance No. 150 of 1880 has become a nullity, because the city has no power to modify, reduce, or repeal the park tax. There is much force in this argument, but we are so clear, in the view we have already expressed, this contention of appellee need not be considered. A proper construction of the ordinance excludes the view urged upon us by appellant's counsel. Finding no error, the judgment must be affirmed.

(65 N. H. 102)

LEAVITT 0. LEAVITT. (Supreme Court of New Hampshire. Rockingham. July 26, 1889.)

ADMINISTRATOR WITH WILL ANNExed. Where the person named in a will as executor does not qualify, and there has been no administration of the estate, an unpaid legatee may have an administrator c. t. a. appointed.

Appeal from probate court, Rockingham county.

John Johnson by will gave Mary Leavitt $100 a year, to be paid to her by his executor during her life, and all the residue of his estate he gave to John J. Leavitt, whom he appointed his executor. The will was proved February 20, 1878, but Leavitt never qualified as executor. Immediately after proving the will Leavitt took possession of the estate, and occupied the whole of it until his death, in 1881. While so in possession he executed a mortgage of a portion of the real estate to secure a debt of his own. After his death

Sarah M. Leavitt was appointed administratrix of his estate, and afterwards, under a license from the probate court, sold all the real estate except the portion mortgaged as aforesaid. During his life-time John J Leavitt paid a part of the legacy to Mary Leavitt in money, and since his death his administratrix has done the same, but there is now a balance due thereon. For the purpose of collecting the amount now due, and securing future payments, Mary caused an administrator to be appointed on the estate of John Johnson, and from that appointment Sarah M. Leavitt appeals.

Marston & Eastman and Mr. Leavitt, for appellant. John Hatch, for appellee.

SMITH, J. In this case there is an unpaid legacy. The person named as executor never qualified, and there has been no administration of the estate. An administrator with the will annexed is necessary for the payment of the defendant's legacy. Whether the legacy is a charge upon land, and what power the administrator may have to recover the real estate mortgaged by Leavitt or sold by his administrator, are questions not necessary to be considered. The appeal should be dismissed, and the decree of the probate court affirmed. Case discharged.

CARPENTER, J., did not sit. concurred.

MELVIN . MELVIN.

The others

(130 Pa. St. 6)

(Supreme Court of Pennsylvania. Oct. 28, 1889.) DIVORCE-GROUNDS—Amendment of PLEADINGS.

1. A divorce a mensa et thoro is properly granted to a wife on the ground of indignities to her person, rendering her condition intolerable and life burdensome, though the evidence shows no specific acts of violence, and no threats, but tends to show that respondent, for several years, seldom spoke to libelant, and when he did it was in anger; that he treated his children, when they came to maturity, in the same way, and forbade them to visit their mother at home; that he applied vile epithets to libelant, and used expressions which, in effect, charged her with infidelity; that he refused her his bed; and that he persistently refused to permit her to visit a daughter, whose marriage he had opposed.

2. The court having charged the jury that they were to "take all the testimony from the beginning to the end of the case, and consider it with all carefulness," appellant cannot complain that the court failed to call special attention to some particular testimony of special value to his case.

3. It was not an abuse of discretion for the court to allow libelant to amend her bill of particulars by adding allegations that respondent had

charged her with infidelity.

Appeal from court of common pleas, Mercer county.

Action for divorce a mensa et thoro by Susan Melvin, by her next friend, against Henry Melvin. The facts which the evidence tended to establish were that respondent had seldom spoken to libelant for 10 years prior to her leaving respondent's house, and at such times as he did speak to her it was only in anger; that he had from time to time, as his children grew to mature years, treated them

spondent's third, fourth, and fifth points for charge. These may be dismissed by saying that, in view of the evidence, the answers complained of, respectively, were entirely proper. The fourth specification alleges error in the portion of the general charge recited therein. We fail to discern any error in that or any other portion of the charge. The complaint in the fifth specification is that the court failed to call attention of the jury to an alleged admission of libelant to the effect that everything necessary for her welfare and the comfort of his family had been provided by her husband, etc. It is not to be expected that the court, in charging a jury, will refer specially to all, or even to any considerable portion of, the evidence; nor is it necessary that it should be done. It may be safely assumed that the jury, who have heard the testimony and admissions of the parties, have not forgotten the same. This case was carefully submitted to the jury on all the evidence. They were instructed "to take all the testimony from the beginning to the end of the case, and consider it with all carefulness," etc. The specification is wholly

in such manner as to compel them to leave his house; that he forbade them to visit their mother, the libelant; that at different times he applied to her vile epithets; that at two different times he charged her to her face that she was "bulling over the county with other men;" that he refused her his bed, saying to her, "Go and sleep where you get your accommodations;" that he said to a neighbor, "Susan has been bulling over the county" with "blackleg," which name he applied to bis son-in-law; that he persistently refused to permit libelant to visit a daughter whose marriage he had opposed; and that he had notified the stores in the town where the parties lived not to sell libelant any goods on his credit. On this point, however, libelant admitted that she had not lacked for the necessaries of life, as the stores notwithstanding the notice had given her goods on respondent's credit. There was no evidence that respondent had ever struck libelant, or of any specific acts of violence on the part of respondent towards libelant. Libelant was permitted to amend her bill of particulars by adding allegations thereto that respondent had charged her with infidelity. The orig-without merit. The sixth and seventh speciinal petition of libelant charged that the respondent had "offered such indignities to her person as to render her condition intolerable and life burdensome." Judgment for libelant, and respondent appeals.

J. G. White and W. H. Cochran, for appellant. Miller & Gordon, for respondent.

fications are not according to rule, and therefore not entitled to further notice. There was no error in permitting the libelant to amend her bill of particulars on the trial. It was a matter within the sound discretion of the court, and it does not appear that the court abused its discretion. The final decree of divorce, as prayed for, was the logical sePER CURIAM. The petition of Mrs. Mel-quence of the facts established by the verdict. vin, on which this proceeding is based, sets forth two grounds for divorce a mensa et thoro, with alimony, viz.: (1). Cruel and barbarous treatment by her husband, endangering her life; (2) such indignities to her person as to render her condition intolerable and life burdensome, and thereby force her to withdraw from his house and family.

As to the first of these grounds, the learned judge rightly instructed the jury that the evidence was insufficient to sustain the charge of cruel and barbarous treatment. The case was therefore submitted to them on all the evidence bearing on the second charge, and the verdict for plaintiff is substantially a finding that the charge is true. It is unnecessary to refer to the evidence tending to prove the charge as set forth in the petition. Some of it is of a character too unsavory for quotation. Suffice it to say there was an abundance of evidence to warrant the jury in finding that appellant offered such indignities to the person of his wife as to render her condition intolerable and life burdensome, and thereby force her to withdraw from his home and family. It therefore follows that the verdict, and decree based thereon, should not be disturbed, unless the result was brought about by error in the rulings of the court below.

The specifications of error are nine in number. The subjects of complaint in the first three specifications are the answers to re

Without disregarding the verdict, and ignoring the charge established by it, the court could not do otherwise than enter the decree complained of by appellant. Decree affirmed; and it is further ordered that appellant pay the costs of this appeal, and also pay to appellee $100 for counsel fees, and expenses connected therewith.

(132 Pa. St. 5) REED'S EX'RS v. WILLARD. (Supreme Court of Pennsylvania. Jan. 6, 1890.) PLEADING-Affidavit of Defense.

In an action for money due on a written contract for the cancellation of a lease, the complaint alleged cancellation, surrender of possession, and that the amount due accrued at date of surrender. A copy of the contract was attached to the complaint. The affidavit of defense did not deny the allegations, but alleged that one of the defendants purchased plaintiff's printing-office in the demised building, and that the purchase money therefor included "payment of any claim that might thereafter accrue to said plaintiff upon which this action is brought." It was not stated whether the purchase was by written or parol contract, but it was alleged to have been made prior to the date when the claim of plaintiff was alleged to have accrued. Held, that judgment for want of sufficient affidavit of defense was properly entered.

ty.

Error to court of common pleas, Erie coun

Action by James R. Willard against Harriet W. Reed, executrix, and Charles M. Reed, executor, of Charles M. Reed, deceased,

to recover money due on an alleged contract for the cancellation of a lease of decedent's building and surrender of the demised premises. For want of sufficient affidavit of defense, judgment was entered for plaintiff, and the defendants bring error.

F. F. Marshall, for plaintiffs in error. E. L. Whittelsey, for defendant in error.

STERRETT, J. The averments contained in the statement of claim, in connection with the contract of June 1, 1883, appended to and made part thereof, present a clear prima facie case in favor of plaintiff below. Neither the averments of fact, nor the contract to which they relate, are traversed or denied by defendant's affidavit, nor does it contain any averment of fact, by way of confession and avoidance, that can be regarded as a substantial defense to the claim or any part thereof. For reasons given in his opinion, the learned president of the common pleas was therefore right in entering judgment for want of a sufficient affidavit of defense. The averment that on August 19, 1883, Charles M. Reed, one of the defendants, purchased the entire interest of the plaintiff "in the Erie Dispatch printing, publishing, binding, and newspaper establishment," including the lease of the building referred to in the contract or agreement of June 1, 1883, and that the sum paid therefor "was in full payment of any claim that might thereafter accrue to said plaintiff under said agreement upon which the suit is brought," is too vague and uncertain. We are not informed whether the alleged contract of purchase was in writing or not. If it was in writing, as presumably an important purchase, involving the payment of nearly $34,000, would be, a copy of the contract or bill of sale should have been appended to the affidavit of defense; if not in writing, the terms of the verbal contract should have been stated with such particularity that the court might have had an opportunity of judging for itself whether the construction claimed by defendants was warranted or not. The averment that the purchase money paid for the printing establishment, etc., was in full payment of any claim that might thereafter accrue to said plaintiff under said agreement upon which this suit is brought," is not supported, as it should be, by a copy of the alleged contract of purchase, or a statement of the terms thereof. The defendants have undertaken to state their own conclusion as to

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the effect of the alleged purchase, without furnishing us with the facts from which that conclusion is drawn. There is nothing else in the affidavit of defense that requires special notice. Judgment affirmed.

(131 Pa. St. 385)

BEDILLION et al. v. HowARD WATCH & CLOCK CO.

(Supreme Court of Pennsylvania. Jan. 6, 1890.) HUSBAND AND WIFE-FRAUDULENT CONVEYANCES.

A judgment confessed by a husband to his wife for an amount in excess of that actually due

her will not be set aside at the instance of creditors of the husband, where it appears that there was an honest mistake on the part of the wife as to the amount due.

Error to court of common pleas, Allegheny county; WHITE, Judge.

Prior to February, 1887, the plaintiffs severally obtained judgments against Thomas P. Bedillion for various sums, for debts contracted by him in the conduct of his business as owner of a jewelry store in the city of Pittsburgh. During the month of February, 1887, execution attachments were issued by each of said creditors upon their judgments, and Hannah Bedillion, the wife of the defendant, and J. U. Rose, were summoned as garnishees. Interrogatories were served on the garnishees, to which they replied that they had no effects of said defendant in their hands, and they went to trial on pleas of nulla bona, in which verdicts were rendered against them in the amount of their respective claims. It appears that the wife of defendant had turned over to him everything that came to her from her father's estate, and intrusted to him the entire management of her estate. Shortly before defendant's failure in business he gave his wife three notes, one for $20,000, and two for $5,000 each, to secure what was supposed to be due her. Upon these notes defendant confessed judgment. J. U. Rose was named in the notes as Mrs. Bedillion's trustee. Plaintiffs impeached the bona fides of the giving of the notes and the confessing of the judgments. From a judgment for plaintiffs, defendants bring error.

Jennings & Wilson, for plaintiffs in error. J. M. Stoner and J. 8. Ferguson, for defendant in error.

GREEN, J. After an attentive reading of all the testimony in this case, we fail to dis. cover the least evidence that Mrs. Bedillion had anything to do with any fraudulent purpose of her husband in the giving or in the accepting of the judgments in question. That she practically turned over to him everything that came to her from her father's estate; that she intrusted to him most implicitly the entire management of her estate; that she kept no accounts whatever, either of the moneys received by him or the moneys disbursed; and that she had nothing to do with the preparation of the $20,000 note,-are entirely uncontroverted facts. After deducting the $10,000 paid for the Smithfield-Street property from the total amount received from all sources, there does not appear to be any material, if any, deficiency to make up the amount of the $20,000 judgment note, which was given in November, 1884. But, however that might be, unless there was some evidence impugning the good faith of the wife in accepting that judgment, we do not think it could be attacked for fraud on her part. The learned court practically so instructed the jury when they charged them in these words: "I have said that even if he

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