Bill by William H. Dilworth and Mollie Dilworth, his wife, against John J. Dilworth and others. Decree for defendants, and plaintiffs appeal. Reversed and remanded.

Argued before BOYD, C. J., and BRISCOE, BURKE, THOMAS, PATTISON, URNER,.

and STOCKBRIDGE, JJ.

Elias B. Hartle (J. E. S. Pryor, of Hagerstown, on the brief), for appellants.

Albert J. Long, of Hagerstown (Jesse O. Snyder, of Hagerstown, on the brief), for appellees.

BRISCOE, J. This appeal is from a decree of the circuit court for Washington county, dismissing a bill filed by the appellants for an injunction to restrain certain proceedings for the sale of the real estate of Stephen C. Dilworth, late of Washington county, deceased, and for a decree declaring that the appellant William H. Dilworth is the true and lawful owner of the property in question, and that the appellees have no right, title, or claim thereto. The record is a voluminous one, but a large part of the testimony is entirely irrelevant, and not material to a proper consideration of the legal questions presented for our determination. The contention on the part of the appellant is that he is the only child and heir at law of Stephen C. Dilworth, who died intestate in October, 1913, and that as such the property descended and vested in him in fee upon the death of his father in 1913, and that he has been in sole possession of the property, as owner, since that date. As opposed to this contention, it is urged on the part of the appellees that the decedent died intestate without lawful children, and that they as brothers and sisters, nephews and nieces, of the deceased, are entitled to his property and

estate.

The material facts bearing upon the case and disclosed by the record are these: Stephen C. Dilworth and Margaret Shepherd were married June 19, 1872. The appellant William H. Dilworth was born October 15, 1865, nearly seven years before their marriage, and consequently born out of lawful wedlock. The proof shows that both before and after the marriage the father acknowledged the appellant as his child, and he was raised and treated in the family as their legitimate offspring.

[1] The appellant's claim to inherit from his father, and his title to the property, is based upon section 29 of article 46 of the Code of Public General Laws, and the controlling question here presented is whether the appellant comes within the terms of the act. This statute provides as follows: That if any man shall have a child or children by any woman whom he shall afterwards marry, such child or children, if acknowledged by

acknowledgment be hereby legitimated and capable in law to inherit and transmit inheritance as if born in wedlock.

The main purpose and intent of the statute, as said by this court in Hawbecker v. Hawbecker, 43 Md. 516, was to remove the, taint and disabilities of bastardy from the unoffending children whenever their parents did marry, without regard to the deepness of guilt, on the part of their parents, in which they were conceived and born. It was further said, in that case, the right of inheritance was given upon the principle that it is unjust to punish the offspring for the crime of the parents. The Legislature has not seen fit to make any exception to its operation. Its terms embrace every case where "any man shall have a child or children by any woman whom he shall afterwards marry." Miller v. Stewart, 8 Gill, 128; Brewer v. Blougher, 14 Pet. 178, 10 L. Ed. 408.

The authorities are clear upon the proposition that the subsequent intermarriage of the parents, and the acknowledgment by the father of the child born out of wedlock as his child, make such child or children legitimate, and capable in law to inherit, as if In Richardson v. Smith, born in wedlock.

80 Md. 97, 30 Atl. 570, this court, in construing section 29, article 46, of the Code, supra, said, if it should appear in evidence that the petitioner was born out of wedlock it would be necessary for her to prove the subsequent intermarriage of her parents, and her acknowledgment by her father as his child. This intermarriage and acknowledgment would establish her legitimacy. Barnum v. Barnum, 42 Md. 251; Jackson v. Jackson, 80 Md. 176, 30 Atl. 752; Bowman v. Little, 101 Md. 273, 61 Atl. 223, 657, 1084.

The policy of the law is to declare children legitimate, and children born before marriage are legitimated under the statute by subsequent marriage and the acknowledgment of the child as his by the father. The evidence in this case is clear and undisputed of the subsequent marriage after the birth of the child, and the recognition and acknowledgment by the father. The father died October 13, 1913, and the mother on the 7th of April, 1912, and from the date of their marriage on June 19, 1872, there was a continued and uninterrupted recognition and acknowledgment of the appellant as their offspring.

In Brock v. Johnson, 85 Ind. 397, the Supreme Court of that state said it is clear that the acknowledgment by the father made the child his heir apparent and removed from it the stain of illegitimacy; it fixed the status of the child, and that cannot be changed by anything the father or mother may do. Having removed the bar, they cannot replace it. Miller v. Pennington, 218 Ill. 220, 75 N. E. 919, 1 L. R. A. (N. S.) 773; Binns

[2] The record of a proceeding under the Bastardy Act, instituted upon the complaint of the mother, wherein another man was charged as the father of the child, and relied upon by the appellees, cannot operate as an estoppel, or be regarded as conclusive evidence, if competent evidence at all, to establish the paternity of the child. Gee v. State, 60 Ohio St. 485, 55 N. E. 48; State v. Slavens, 60 Ohio St. 485, 55 N. E. 48; Riker v. Hooper, 35 Vt. 457, 82 Am. Dec. 646. We have examined the entire record with care, and given full force and effect to the evidence set out therein, and are of opinion that the appellant has brought himself within the letter and spirit of the statute, and is entitled and capable in law to inherit and transmit inheritance, as if born in wedlock.

It follows, as the circuit court of Washington county reached a different conclusion, its decree of the 9th of January, 1919, will be reversed, and the cause remanded, to the end that a decree may be passed in accordance with the views expressed herein. Decree reversed, and cause with costs to the appellants.

(79 N. H. 250)

PLATTS v. AUCLAIR.

remanded,

Transferred from Superior Court, Hills-· borough County; Kivel, Judge.

Bill by Harold J. Platts against Euclid Auclair. Order that bill be taken pro confesso, and defendant brings exceptions. Exceptions overruled.

Bill in equity to foreclose a mortgage, brought August 8, 1917. The mortgage is dated February 3, 1906, and was given by Celina Duclos to Samuel A. Rouleau, who assigned it to George W. Platts, who in turn assigned to F. A. Platts, agent for the plaintiff. The latter assignment was not recorded. George W. Platts is the father of the plaintiff and F. A. Platts. The defendant, on October 3, 1906, purchased of Celina Duclos, through F. A. Platts, the mortgaged premises. At the time of the purchase F. A. Platts represented that he owned the mortgage, and the defendant understood and believed that he did, until a short time before the bringing of this action. The defendant made payments upon the mortgage of interest and principal to F. A. Platts. The buildings upon the mortgaged premises were destroyed by fire in November, 1911, and were not insured. For several years prior to that time F. A. Platts had acted for the defendant in looking after the premises. In February, 1909, it was expressly agreed between the defendant and F. A. Platts that he should act as agent for the defendant in renting and caring for the property, and in keeping the buildings thereon insured. The insurance on the buildings expired August 23, 1911, and F. A. Platts, who was then acting as the defendant's agent, negligently failed to have them

reinsured.

The defendant, in his answer to this bill, claimed that the damages caused to him through the negligence of F. A. Platts should be allowed as a set-off against the amount due on the mortgage. The court denied the defendant's claim of set-off, and the defendant excepted. The plaintiff in proof of his case relied upon the note, mortgage, and assignment which he introduced in evidence, and the defendant excepted.

August 29, 1918, the court ordered that the

TRINE OF RATIFICATION INAPPLICABLE.

Where the principal does not receive any benefit from the wrongful act of his agent and does not ratify it, the doctrine of ratification does not apply.

of foreclosure be entered unless the defendant filed the deposition of the plaintiff by October 10, 1918. To this order the defendant excepted, on the ground that it imposed the burden of proof as to the ownership of

OWNERSHIP.

In suit to foreclose mortgage, plaintiff, by introducing the note, mortgage, and assignment of them, made out a prima facie case, and order of court that bill be taken pro confesso, unless defendant filed deposition, did not impose upon defendant the burden of proof as to the ownership of the note and mortgage.

Argued before MOSCHZISKER, FRASER, WALLING, SIMPSON, and KEPHART, JJ. Gallagher & Barnett, of Philadelphia, for appellants.

ed and broke the lower part, and through the opening the passengers left the car. Whether or not the door was opened by the pulling of the emergency lever, or broken open by the kicking and whether or not the step was lowered when Mrs. Mackowski got off, were

SIMPSON, J. In their statement of claim plaintiffs allege they were passengers on a trolley car of defendant; that owing to the negligence of its employés, the car collided with a wagon; that by reason thereof the passengers became frightened and rushed to the rear of the car in order to pass out through an open door provided for their egress; that the step connected with the door was not in place, and hence Freda Mackowski, the wife, was thrown to the ground and received the injuries of which they complain. Evidence was produced by both parties, the case was submitted to the jury, which rendered a verdict for defendant, and after judgment plaintiffs now appeal.

[1-3] A general exception was allowed to the charge, but no reason was "alleged regarding the same in the hearing of the court," or appears in the record. Because thereof, as stated in Sikorski v. Phila. & Reading Ry. Co., 260 Pa. 243, 103 Atl. 618, we cannot consider complaints as to the charge or the answers to points, "unless for basic and fundamental error imperatively calling for reversal." For that reason all the assignments of error, except the last, must be disregarded, save in so far as they suggest the "basic and fundamental" question hereinafter stated. The last assignment must also be disregarded because, although it alleges error in permitting a physician to testify regarding Mrs. Mackowski's injuries, the testimony given by him is not printed in the assignment as required by rule 28 of the rules of this court, and because also, the verdict being for defendant, the matter becomes unimportant.

[4] At the trial it appeared the trolley car was one whose ordinary places of entrance and exit were at the front, but at the rear was an emergency door, which could be opened by a lever in case of necessity. When the

certain there was no real emergency, she was in no danger, and would not have been hurt had she remained in her seat. As it was she was injured in getting off through the emergency door, she says because she alighted as if the step was there, when in fact it was not. She does not say she looked before she stepped down; perhaps owing to the pushing crowd she could not.

The trial judge charged the jury that if the collision was in any degree due to the negligence of defendant the verdict must be for the plaintiff; that if the jury believed Mrs. Mackowski was injured by reason of the step not being in place, defendant is presumed negligent, and "must show that the accident was not the result of its negligence"; that as she was a passenger all presumptions were to be drawn in her favor; that if she had a "well-grounded fear of imminent danger, she was justified in observing the instinct of self-preservation, and leaving the car by the rear door, and if she was hurt in so acting," or if they believed she "exercised proper care in attempting to alight from the car," then the verdict must be for the plaintiff. The verdict being for defendant, it is thereby conclusively established, for the purpose of this appeal, that defendant was not negligent, and that “plaintiff did not exercise proper care"; and the only basic question in the case is: If a passenger is scared by a collision which was not due to the negligence of the carrier, and, though being in a place of safety, rushes to the rear of the car to get off through an emergency exit, without exercising proper care in so doing is the carrier liable for the resulting injury? To so hold would be to make the carrier an insurer against accidents to its passengers, which from at least since Laing v. Colder, 8 Pa. 479, 49 Am. Dec. 533, we have held it is not.

The judgment of the court below is affirmed.

tion in due form was made to the court for a preliminary injunction, and a hearing on said motion was held on Saturday, November 9, 1918, pursuant to a previous order fixing said date therefor. At this hearing counsel on both sides were heard in support of the contentions of their respective clients.

Complainant contends that by virtue of the act of June 19, 1871 (P. L. 1360), she, as a private individual, about to be injured by said appropriation of her land, has the right to equitable relief and the injunction above referred to. It has been repeatedly held by our appellate courts that under this act the courts have the right of inquiry at the instance of a private party, but that the inquiry is confined or limited to the nature and extent of the franchise, prima facie, conferred by the charter itself.

In the case of Windsor Glass Co. v. Carnegie Co., reported in 204 Pa. 459, 54 Atl. 329, it was said: "This is the plain limit of the language of the act, and if such right or franchise has not been conferred,' etc., and such has been its uniform construction."

the common pleas:

The defendant company is a railroad company, duly authorized under the laws of the state of Pennsylvania, and as such it owns and operates a line of railroad in Butler county, said state. As a regularly incorporated body it possesses the right of eminent domain, and in pursuance of its powers as aforesaid it decided to construct a branch railroad in said county, passing in part through the lands owned by the complainant.

Accordingly, its board of directors, on the 13th day of July, 1918, at a meeting thereof, passed and adopted a resolution to construct such branch railroad, etc., for the purpose, as stated therein, of increasing its business and accommodating the trade and travel of the public.

Being unable to agree with the complainant upon a fair and reasonable compensation, it presented its petition to the court of common pleas of the said county of Butler to No. 48, December term, 1918, for leave to file its bond, etc., in accordance with the law provided in such case. Objections were made thereto by complainant by exceptions filed, and upon hearing thereof the said court, by Hon. Aaron E. Reiber, P. J., made the following order: "And now, November 7, 1918, the approval of the bond is withheld, and it is ordered and directed that a bond in the sum of fifteen thousand dollars ($15,000) under the same terms and conditions and same surety and filed within ten days from this date, is approved." With this order of the court the company is ready and willing to comply.

The plaintiff filed a bill in equity in the said court to No. 5 of December term, 1918, by which she seeks to have it adjudged that the defendant company has no legal right to appropriate her land or a part thereof for its proposed branch railroad, and prays that it be enjoined from so doing.

"If it appears such power exists, the authorquestion of regularity in proceeding under the charter can be raised only by the commonwealth." Williams v. Del., L. & W. R. R. Co., 255 Pa. 133, 99 Atl. 477; Pittsburgh, A. & McKees Rocks Ry. Co. v. Stowe Township, 252 Pa. 149, 97 Atl. 197; Blauch v. Johnstown Water Co., 247 Pa. 71, 93 Atl. 169; Alexander v. Wilkes-Barre, etc., Coal Co., 254 Pa. 1, 98 Atl. 794, L. R. A. 1917B, 310; Croyle v. Johnstown W. Co., 259 Pa. 484, 103 Atl. 303; Rudolph v. Pennsylvania S. V. R. R., 166 Pa. 430, 31 Atl. 131.

In connection with the arguments of counsel, we have examined with the best care possible, in the limited time at our disposal for consideration, the bill and the material averments therein, and have endeavored to test them by the law as held in the authorities cited, and have reached the conclusion that the motion for a preliminary injunction should be denied.

If this corporation is abusing its franchises, if it be acting in bad faith, with a purpose to evade its duties as a public serving corporation, as a common carrier, the commonwealth should be the proper party to complain.

As herein before shown, the authorities are decisive that when the power to do the thing complained of is possessed by the corporation under its charter, the inquiry ends, the authority of the court goes no further.

And, now, November 12, 1918, after hearing and argument of counsel, and after due consideration, it is ordered, adjudged, and decreed that the preliminary injunction be, and the same is now, together with the motion therefor, refused.

Argued before BROWN, C. J., and MOSCHZISKER, FRAZER, WALLING, and SIMPSON, JJ.

A. M. Liveright and A. H. Woodward, both of Clearfield, and J. M. Galbreath, of Butler, for appellant.

Templeton, Whiteman & Rowley, of Greenville, and Wilson & McQuistion, of Butler,