John G. Johnson, showed cause. relief in certain cases against the plain provisions | sented to the creditors, and that it did not include of the statute. When an appeal is made to anything due to either of the sons. They there a chancellor, whether sitting on the equity or the stated that it contained everything that was law side of the Court, to enforce a contract void owing. at law, its equity must be apparent, involved in no doubt, and wanting in no requisite necessary to move the conscience. This is to be judged of by the chancellor, the jury in proper cases acting as an advisory council. The judgment in this case is affirmed. Opinion by WILLIAMS, J. TRUNKEY and STERRETT, JJ., absent. Lennig v. Senior. Fraud-Act of March 17, 1869-What is a faudulent disposition under the Act-Confession of judgment and execution-Attachment. Sur rule to show cause why an attachment under the Act of March 17, 1869, should not be dissolved. The affidavit of Charles F. Lennig, upon which the attachment was obtained, set forth that the defendant was justly indebted to the deponent in a sum exceeding one hundred dollars upon two promissory notes drawn by the defendant to his order, one for $934.40 and the other for $770.68, and that "said James Eglinton Senior, the defendant, is about to dispose of property, to wit, stock of goatskin, morocco, fixtures, and machinery, with the intent to defraud his creditors." The inventory served upon the defendant was as follows: "Schedule of goods and chattels attached. All fixtures, machinery, etc., and all stock, material, etc., and finished and unfinished skins on premises Nos. 3 to 11 Canal Street and elsewhere." The depositions taken on behalf of the plaintiff showed that the defendant had confessed a judgment to his sons, James and Solomon, for $2100. James was about thirty years of age. Solomon lived with his father and was about twenty-two years of age. Solomon's portion of the note was $800. The consideration was alleged to be unpaid wages. Execution was issued on the judgment, but before sale the goods, etc., were attached by Lennig. The confession of judgment was fraudulent. [FINLETTER, P. J. A confessed judgment cannot be presumed to be fraudulent. The validity of the judgment cannot be attacked in this proceeding.] The depositions show that the judgment was confessed for the purpose of fraudulently disposing of the debtor's property, and that the judgment and execution were but the means of accomplishing such fraudulent disposition. [FINLETTER, P. J. The defendant was not disposing of his property. When the attachment issued the law was disposing of it. The words of the Act must be construed strictly. Have you any case in which a judgment and execution have been held to be a fraudulent disposition of property within the Act of 1869? If not, the Court is not disposed so to hold.] Joseph T. Ford, for the rule, citedBiddle v. Black, 3 Out. 380. Adams v. Bailey, 17 WEEKLY NOTES, 399. Stokes v. Schlecht, 14 Id. 328. Eo die. THE COURT. C. P. No. 3. Rule absolute. November 5, 1887. Porter & Coates v. Smythe. Practice-Jury fee paid eight years after verdict -Judgment and execution-Setting aside execution-Laches. Rule to set aside fi. fa. and have judgment satisfied. Verdict was rendered against defendant on March 25, 1879. On October 19, 1887, the jury fee was paid and judgment entered. A fi. fa. was issued on the same day. In an affidavit for the rule the defendant averred that payment had been made in 1885. A. W. Horton, for the rule. The plaintiff should have issued a scire facias. It was the duty of the plaintiff to pay the jury fee immediately. Act of March 29, 1805, § 13 (Purd. Dig. 1697). The Court has the common law power to enter judgment nunc pro tunc, and the plaintiff might have taken a rule to show cause why judgment should not have been entered, as of the time when it ought to have been entered. If either of these measures had been adopted, the defendant would have had his day in Court It was also in evidence that a meeting of the and an opportunity to defend upon a plea of creditors of the defendant was called, at which payment. the defendant and his two sons were present; The Court should set aside the fi. fa. and that a statement of the liabilities was there pre-strike off the judgment, and then make absolute a rule to enter judgment nunc pro tunc, and order an issue to try whether the judgment has actually been paid. Samuel W. Cooper, contra. Before the Act of May 23, 1877, there could have been nothing said on behalf of the defendant. It is only because that Act makes a verdict a lien from the date of entry in case the motion for a new trial is discharged, that he has any standing in equity. The case of Bailey v. Eder (90 Pa. 446) shows clearly that a verdict does not in any way partake of the qualities of a judgment. The verdict must remain, so far as this case is concerned, as it was at common law, and the effect of a judgment cannot be given to it until judgment is entered upon it. November 15, 1887. THE COURT. We think in this case the fi. fa. should be set aside and the plaintiff allowed a rule to show cause why execution should not issue. Fi. fa. set aside. [Cf. Born v. Krips, 19 WEEKLY NOTES, 511; 21 Id. 46.] C P. No. 3. A. B. W. November 12, 1887. Eppelsheimer v. Steel. Party-wall-Claim for use of such wall by defendant-Agreement between plaintiff and defendant in regard to repairs to such wall. Sur rule for judgment for want of sufficient affidavit of defence. This was an action to recover $107.37 with interest, for the moiety of the cost of a party wall, under the Act of April 10, 1849. The affidavit alleged that the condition of the said wall had been unsafe before the making use of it by the defendant; that the foundation was originally built too much upon the side of plaintiff's premises, and that the brick superstructure was built so close upon the edge of said foundation wall toward defendant's premises that, being improperly supported, in settling it came to overhang defendant's premises from an inch and a half to two inches from the plumb line. "That the building inspector had condemned said wall and ordered it to be underpinned before it could be used, and that pursuant to said order plaintiff came upon the premises and conferred with deponent about the necessary repairs to render the same safe and sufficient." "That she then and there agreed with deponent to have said repairs made, and ordered and instructed him to do what was necessary to render said wall safe and sufficient." That the work was accordingly done in pursuance of said agreement with plaintiff at the cost of $90.60. This sum the defendant sought to set off against the amount claimed by the plaintiff. Martin H. Stutzbach (Frank T. Lloyd with him) for the rule. The party making use of the wall must pay for any expense made necessary in adapting it to his purpose. Act of April 10, 1849, Purd. Dig. 1307, pl. 28. He cannot object to paying the value of the wall at the time of making use thereof, on the ground that the original construction was not in accordance with the law. Oakes v. Senneff, 4 WEEKLY NOTES, 413. The whole record shows that whatever was done by defendant to repair the wall was for the purpose of adapting it to his own use. The affidavit does not say that plaintiff promised to pay for the repairs, but "agreed with deponent to have said repairs made, and ordered and instructed him to do what was necessary to render said wall safe and sufficient." The plaintiff was under no legal obligation for the alteration, and there is not one word to show anything more than a voluntary undertaking without consideration, to pay money for which defendant alone was liable. There was no benefit to the plaintiff. [THE COURT. The strengthening of the wall was certainly a benefit which amounted to a consideration.] Even if founded on consideration, this was simply an undertaking jointly with the defendant, and he could only set off one half of said expenses, or $45.30. James H. Wolfe, contra. A party has no right to erect a wall partly on his neighbor's ground, except for mutual support. Wistar v. Society, 2 WEEKLY NOTES, 333. Whitman v. Shoemaker, 2 Pears. 320. Dunlap v. Wallingford, 1 Pitts. 127. The first builder is bound to use suitable materials and build the foundation wall skilfully, for if, upon the excavation for and construction of a house upon the adjoining lot, notwithstanding the use of proper and ordinary care, the first wall should fall in consequence of its defect, it must be regarded as damnum absque injuria. Richart v. Scott, 7 Watts, 460. The affidavit alleges an agreement with defendant on the part of the plaintiff to pay for the underpinning and strengthening of the wall, and claims set-off for the amount paid for her use for this purpose. Sauer v. Monroe, 20 Pa. St. 219. The Acts of Assembly on this subject are in pari materia and should be read together. THE COURT. The defendant is entitled to set off one-half of the expenses incurred in the repairs, and the plaintiff to judgment for the balance. J. W. T. Rule absolute. July '87, 9 & 10. [No. 12. April 10, 1888. U. B. Mutual Aid Society v. O'Hara. Life insurance-Evidence to prove intemperate habits-Meaning of intemperate habits, and how proved. Where an insurance company resists the payment of a policy of life insurance on the ground that the insured has falsely stated that his habits of life were temperate, they may ask a witness whether he had ever seen the insured drunk, for although a habit of life means more than one drink, yet such evidence should not be excluded, for non constat but that it might be followed by sufficient evidence to establish intemperate habits. The words "intemperate habits," as used in an application for a policy of insurance, do not refer to extreme views on either side, but whether the habits of the insured are such or so far intemperate as to increase the risk. When it is alleged that a man is drunk, his behavior becomes material, even to the abuse of his family, as it is his conduct from which the jury must, to a considerable extent, draw their conclusions in regard to his condition. An insurance company cannot prove by a non-expert witness that an insured was afflicted with asthma contrary to a statement in his application, but such witness, if he show sufficient knowledge of the insured, may be asked whether he had ever observed any symptoms of the disease that are visible to the inexpert eye, e. g., shortness of breath. A false answer to an interrogatory in an application for an insurance policy will prevent the beneficiary from recovering upon the same. Writs of error to the Common Pleas of Luzerne County. Debt, by Mary T. O'Hara and John F. O'Hara against the United Brethren Mutual Aid Society upon two policies of insurance issued by defendant company upon the life of Bernard O'Hara, and in favor of the plaintiffs. The two actions were tried together before WOODWARD, J. The defence was that the insured had made false answers to certain interrogatories contained in the application. It was alleged by defendant that in his application O'Hara had stated that his habits were temperate; that he had never been afflicted with |asthma or dropsy, and that he had not had any medical attendance during the year prior to his application. In order to prove the intemperate habits of the insured, defendants offered the following evidence : Q. How often would he come home drunk on an average in the course of a month? A. I could not say exactly whether he was drunk or not; he would come in and have a good deal to say, more talk sometimes than he did at others. I judged at that time he had been drinking a little-taking a drink or two. Q. How often in the course of a month would he come home under the influence of liquor? A. I have noticed this perhaps three or four days after pay-that is perhaps about the way it ran. Q. How would he conduct himself at these times at his own home? (Objected to as not material.) Defendants' Counsel. I propose to show that he came home and behaved uproariously, just as an uproarious drunken man does, and abused his family. (Objected to as not material.) THE COURT: I do not think the manner of his treating his family is direct evidence on the matter of intemperate habits. I hardly think this is fair evidence on this question. Offer overruled. Exception. (Third assignment of error.) Defendants also offered the following evidence : Q. You knew Bernard O'Hara? A. Yes, sir. Q. Tell us as to whether or not he was afflicted with asthma. (Objected that witness has not been shown competent to pass upon that question.) THE COURT. I suppose in a case where the question is about a certain disease, and not about the general health, it would be incompetent for a man who is not an expert on the subject to define the disease. If you want to prove general poor health, or anything of that kind, I suppose you can do it by this witness. Defendants' Counsel. I simply ask this man whether O'Hara was afflicted with shortness of breath, whether he observed that in his daily life? Plaintiffs objected that the witness must state the facts, and not give his conclusions from the facts. THE COURT. I think you may ask him whether he was sick, and how he was affected; but you may not ask him if he had any specific disease. Plaintiffs' counsel made the further objection that the question was leading. THE COURT. It certainly is leading, and will have to be overruled on that ground. We overrule it on that ground and on the other also. Exception. (Fifth assignment of error.) Defendants further offered the following:- meaning of this question. The question is not: Q. Did you ever see Mr. O'Hara under the in-" Do you drink liquor?" Or: "Are you a total fluence of liquor? (Objected to.) abstainer from the use of intoxicating drink?" THE COURT. The habit of life means some-But is it the custom and habit of your life to rething more than one drink. Q. Whether you saw him drink more than one drink? frain from intemperance and intoxication? It is doubtful whether there would be much life insurance business carried on successfully on any conPlaintiffs' counsel objected that the question tract more stringent than the one which we intershould be put in the language of the application. pret this to be. A man who works in the mines Objection sustained. Question excluded. Ex-day after day, promptly and regularly, who supception. (Tenth assignment of error.) ports his family comfortably, and lives an orderly Defendant requested the Court to charge, inter and respectable life in all regards, is not to be alia, as follows: (6) If the jury find that Ber-pronounced an intemperate man or a man of innard O'Hara had had any medical attendance temperate habits, upon evidence that he occasionwithin the year prior to his making said applica- ally has indulged in the use of intoxicating drink.] tion, then the plaintiffs cannot recover. Answer. (Fourth assignment of error.) Qualified as it is by our general charge on that subject, we affirm the point. The Court charged, inter alia, as follows:If the applicant makes a false answer as to having had any one of several diseases specially mentioned, although he does so innocently and from ignorance, he forfeits his right to recover the insurance which has been granted to him upon the faith of such answers, which become warranties, and the falsity of which vitiate the contract contained in the policy. Question 11 in the application in the present case is this: "Have you ever been afflicted with or had any symptoms of the following diseases," mentioning a number of diseases to which it is not necessary to call your attention, but including the two that have become important in the present controversynamely, dropsy and asthma; and to that question the applicant answered as appears from the application : "No." No. 12 of the questions is this: "Have you ever been afflicted with any other disease or complaint not above mentioned? If you have, state the nature and character of the disease or complaint." To this also the answer is: "No." The law applicable to question 12 is this: If there is no wilful misrepresentation in regard to other diseases, the policy is not vitiated necessarily. There is a distinction in the law between the answer made to a question referring specifically to certain diseases, and to the case of a question referring in general terms to other diseases. In the first case an inaccurate or false answer is fatal to the policy, although innocently made and in ignorance of the truth. In the second case there must be shown, in order to vitiate the policy, a wilful misrepresentation. That, as we understand it, is the law in regard to that distinction. [Question 13 is this: "Are your habits of life temperate? If so, have they always been so?" And the reply is: "Yes." Considerable evidence has been introduced on the part of the defendants, and also in rebuttal on the part of the plaintiffs relative to this question. It is our duty to charge you upon this subject, to define the [We call your attention next to interrogatory 8 in the application: "Have you had any medical attendance within the last year prior to this date? If so, for what disease? Give name and address of the doctor in full." In regard to this question we say to you that while there is no fixed absolute rule or canon of construction in the matter, it is to have a rational, reasonable interpretation. You observe that the question is a duplex one. "Have you had any medical attendance within the last year prior to this date? If so, for what disease? This clearly imports that the attendance of a medical man referred to must have reference to some disease, which means some serious illness of any description you choose-something requiring attention from a medical man, a disease. To illustrate what I mean I will refer to a case in which the question was as to whether a party applying for insurance had ever had a hemorrhage, and he answered, "No." The defence was made to the policy that he had had nose-bleed, which in a strict interpretation is a hemorrhage. But the Court said that such an interpretation of that clause in the contract would be absurd and ridiculous, and refused to entertain it as a defence.] (First assignment of error.) Verdict for plaintiffs and judgment thereon. Defendant took this writ, assigning for error, inter alia, the rulings on the questions of evidence, the answer to the point, and the portions of the charge in brackets as above noted. A. Ricketts (S. P. Light with him), for plaintiffs in error. The statements and representations of the applicant, in his application, were warranties, and were a part of the contract, and if untrue avoided the policy. Even though the agent or medical examiner knew the true state of facts, that would not alter or affect the contract. certificate of membership embodies the contract and must speak for itself. Hartman v. Ins. Co., 21 Pa. St. 466. The Where the language of the charge of the Court tends to mislead the jury, it is error and ground for reversal. Stall v. Meek, 70 Pa. St. 181. gued together here, and may be disposed of in one opinion. The questions are alike in each. The actions were debt on policies of insurance. The defence was that the assured had made false answers to certain interrogatories contained in the Where the charge as a whole tends to mislead application. In the policy or certificate of mem the jury, it is error. R. R. Co. v. Berry, 68 Pa. St. 272. bership, it was expressly stipulated that if any answers or representations made by O'Hara, the assured, in his application, should be found in The charge was erroneous in that it tended to any respect untrue, then the certificate should be withdraw the attention of the jury from the con-null and void. It was alleged by the defendant flict of testimony which it was for them to dispose of. Bovard v. Christy, 14 Pa. St. 267. And, also, because it directed the attention of the jury to a point on which there was no evidence. Snyder v. Wilt, 15 Pa. St. 59. There was no evidence in the case warranting the Court in representing to the jury that Bernard O'Hara had lived "an orderly and respectable life in all regards," and therefore that he was not to be pronounced an intemperate man because he "occasionally" indulged in the use of intoxicating drink. Such instruction was also erroneous, in that it was calculated to mislead the jury as to the force and effect of the testimony as to his habits. Connelly v. Walker, 45 Pa. St. 449. John T. Lenahan (John Lynch with him), for defendants in error. Although an insured is held to the exact truth of his warranty, given as a condition of his recovery, yet if the words of the warranty taken literally are inconsistent with the main purpose of the instrument, they may be interpreted, if reasonably susceptible thereof, so as to carry out the intent of the parties and the object in view. Life Asso. v. Gillespie, 14 Out. 65. The charge, as a whole, was such a fair presentation of all the questions at issue that the jury could not be misled. The complaint of plaintiffs in error is, that although the Court called the attention of the jury to the specific facts in issue, it failed in its duty when it narrated a portion of Lee's testimony without giving the whole of it. If, as a whole, the charge is calculated to mislead, there is error in the récord, if not, there is none. R. R. Co. v. Brandtmaier, 3 Amer. 610. Reeves v. R. R. Co., 6 Casey, 460. Ins. Co. v. Foley, 105 U. S. 1055. The instructions of the Court as to what constitutes a man of intemperate habits are amply vindicated by authority.. May on Ins., sec. 299. Swick v. Ins. Co., 2 Dill C. C. Rep. 160. Fox v. Ins. Co., 4 Bigelow, 458. April 30, 1888. THE COURT. These cases were tried together in the Court below, were ar company that in his application O'Hara stated that his habits of life were temperate, and that he had never been afflicted with asthma, or dropsy, or any other disease, and that he had not had any medical attendance during the year prior to his application, and that he had no family physician. The company alleged that these representations were untrue, and took upon itself the burden of establishing their untruth. In the third and tenth assignments complaint is made that the Court below excluded certain evidence offered to prove that the assured was a man of intemperate habits. Referring to the tenth assignment, the witness upon the stand was asked the question: Did you ever see Mr. O'Hara under the influence of liquor? This was objected to, and was ruled out by the Court for the reason that "the habit of life means something more than one drink." The remark of the learned Judge was entirely accurate, but it was not a sufficient reason for excluding the evidence. It was a link in the chain which might or might not have been followed up by sufficient other evidence to establish a habit of intemperance. The defendant was entitled to make a beginning in its proofs, and when its evidence was all in it would be for the jury, under proper instructions from the Court, to say whether it was sufficient to establish a habit. The further question was then asked of the witness whether he ever saw O'Hara drink more than once. This was objected to by plaintiffs' counsel for the reason that the question should be put in the language of the application, and the objection was sustained by the Court. If the witness had stated in the language of the application that O'Hara was a man of intemperate habits, it would have been at best a mere opinion of no possible value unless the jury had the facts before them of which it was predicated. Men may differ widely as to what constitutes intemperate habits. Some persons of extreme views may regard the slightest indulgence as intemperance; others, perhaps, would regard a man as sober as long as he can walk. The provision in the policy has no reference to extreme views on either side. It seeks to ascertain whether the habits of the assured are so far intemperate as to increase the risk. Hence if it be shown as was attempted (see third assignment) that the assured |