Neither is the plaintiff estopped by the war- | against the terre-tenant in this case is in violaranty in the deed. A married woman incurs no liability upon the warranty in a deed of her husband's land, in which she joins.

Chambers v. Spencer, 5 Watts, 406.
Dean v. Shelly, 7 P. F. Smith, 426.

Nor is there an equitable estoppel by matter in pais. Where the facts are within the knowledge of the parties, equity will not afford relief against a mistake as to their legal effect.

McAninch v. Laughlin, 1 Harris, 371.

The mere ground of silence will not, in equity, avail one who is acquainted with his rights or has the means of becoming so.

Crest v. Jack, 3 Watts, 238.
Carr v. Wallace, 7 Watts, 394.
Hill v. Epley, 7 Casey, 333.

These principles hold between parties sui juris.
But even positive acts which will estop one who
is under no legal disabilities, will not estop a
married woman; much less will mere silence.
Glidden v. Strupler, 2 P. F. Smith, 400.
Innis v. Templeton, 14 Norris, 262.

tion of her express covenant, so made by statute, upon which an action would lie by the vendee, and she is thereby estopped to prevent circuity of action.

Shaw v. Galbraith, 7 Barr, 111.

May 7, 1883. THE COURT. John A. Fellbush was the owner of the land. The plaintiff had no interest in it, except as his wife. She joined in the deed to bar her right of dower, but did not thereby incur any liability on the covenant of warranty in case of a failure of title. Nor did she make herself liable on the covenant of " grant, bargain, sell," for that covenant, under the Act of 28th May, 1715, binds the grantor-the owner of the land. Her judgtitle or estate in the land. The record was conment was an incumbrance, and gave her no structive notice to Canfield. There was nothing said of any intention to release the lien. Her silence did not operate as an estoppel. (Glidden

The plaintiff's judgment was of record and. Strupler, 2 Smith, 400.) From all, therefore, notice to Canfield. He seeks no release in the ordinary way, but relies upon his deed. It does not appear that she would have united in the deed at all had she known that her judgment

would not remain a lien."

that is disclosed by the affidavit of defence, we may infer that the only purpose of joining Mrs. Fellbush was to bar her right of dower, and the words in the habendum cannot be construed to operate as a release of her lien. This is not in Wagner's Appeal, 2 Out. 77. conflict with Brown's Appeal (9 WEEKLY NOTES, But it has been decided that the fact of a wife 329), for in that case the agreement was to postjoining with her husband in a deed or mortgage pone the lien of the wife's judgment and give of his land does not operate as an extinguish-precedence to a subsequent judgment. In conment or discharge of a judgment-lien or mort-loaned, and it was held to have priority. But of this agreement the money was gage held thereon by her.

Klein v. Caldwell, 10 Norris, 140.
Wagner's Appeal, supra.

The Act of 28 May, 1715, is to be extended only to "the grantor," John A. Fellbush, the defendant in the plaintiff's judgment, who was the owner of the land. The covenant in the words "grant, bargain, sell," is against "incumbrances done or suffered from the grantor," and not against the incumbrancer, though that be the grantor's wife, who joins in the deed to bar

She

aside from this, I think the case is ruled by Klein
v. Caldwell (10 Norris, 140). A mortgage was
held for a married woman by a trustee.
joined with her husband in a conveyance of the
land, and it was held that the conveyance was
not an extinguishment of the mortgage nor a
discharge of the lien. MERCUR, C. J., said,
"She received no part of the purchase-money.
She executed no writing which released or satis-
fied the mortgage. The whole evidence was
insufficient to divest its lien, and the learned
Judge was right in directing the jury to find a
verdict for the amount of the claim." That
case cannot be distinguished from this, so far as
relates to the effect of the deed. This is a
stronger case for the plaintiff, for no act or de-
clarations on her part, except as contained in the
deed itself, can be urged by way of equitable
estoppel. The deed on its face did not profess
to discharge the lien of the judgment. Nor is it
important that she held the judgment in her own
name, for in Brown's Appeal (supra) she held
the judgment in the name of a trustee, and yet
by her own unacknowledged writing gave prior-
ity to a judgment entered on a bond for money
loaned her husband in consideration of her

To permit the plaintiff to revive her judgment agreement.

I think, therefore, the affidavit is insufficient, intend to charge the plaintiff with the commisand that the plaintiff is entitled to judgment sion of a criminal offence. If the defendant had against the terre-tenant. qualified the first sentence by saying, You did not do it directly, but indirectly, there might be some doubt as to the idea intended to be conveyed.

The words quoted in the first count of the narr. Upon the same day Coyle, the owner, and are not actionable, because there is no such crime known as indirect robbery. A person could not Steele, the builder, executed to the plaintiffs be indicted for, nor convicted of, any such crime. their joint and several bond and warrant of atWords are not actionable per se, unless they im-torney to confess judgment in the sum of $6000, pute an indictable offence of an infamous char- indemnifying the Mutual Benefit Company

On September 17, 1883, judgment was entered against defendants on the said bond by virtue of the warrant of attorney.

The time for filing liens and claims as described in the bond and warrant has expired, and no such liens or claims have been filed.

Henry C. Olmsted, for the rule.

It may be laid down as a general rule that a motion to strike off a judgment must be on the ground of an irregularity on the face of the record; but this rule is often departed from when substantial justice cannot be had in any other

way.

Knox v. Flack, 10 Harris, 337.
Banning v. Taylor, 12 Id. 289.
Hutchinson v. Ledlie, 12 Casey, 113.

Keyser v. Ellis, 13 WEEKLY NOTES, 313.

To open the judgment in this case would not afford the necessary relief, for such a judgment might disable a man from making conveyances in execution of his contracts.

LEWIS, C. J., in Banning v. Taylor, supra.

The present case appeals strongly to the equity of the Court. No liens or claims, such as are described in the bond and warrant, have been, or can now be, filed, and the condition has been thus fulfilled; and if the Court has no power to make this rule absolute, the judgment may remain a lien indefinitely. Sulzberger, contra.

Eo die. THE COURT. Rule discharged.

A. B. W.

Orphans' Court.

October 21, 1884.

Morrow's Estate.

The prayer was for a discharge from the duties of executor, trustee, and guardian; the nature of petitioners' business and frequent absence from home being the reasons alleged. The petition also alleged that the minors were all over the age of fourteen, and that an account of the estate of each had been filed, and suggested the appointment of the Guarantee Trust and Safe Deposit Company as executor and trustee, and guardian of said minor children.

The answer of the widow and minors, by their guardian ad litem, set up that the real estate of the decedent remained unsold, that an appraisement had just been made thereof, and that a discharge of the petitioners would be followed by delay and expense to the estate, before successors could be appointed and the same could be sold.

A replication was filed which denied any disadvantage to the estate and alleged new matter. J. D. Bennett, for the petitioner.

F. S. Christian, for the respondents.

November 1, 1884. THE COURT. We think that the answers disclose no sufficient reason for refusing the application for discharge from the office of executor. The petitioners have filed their second account, which has been confirmed without exceptions to the adjudication. All powers conferred upon them by the will with regard to the division and distribution of the estate, pass, under the Act of March 12, 1800, sec. 3, etc. etc. (3 Sm. 433, Purd. 417), to the administrator with the will annexed; and there can be, therefore, no such danger as that apprehended by the respondents.

But the application for discharge as trustees for one of the children, and as testamentary guardians for the others, cannot be joined with this proceeding. These affect the petitioners in an entirely different capacity, as to which, so far Decedent's estate. Practice. Petition for dis as appears, no accounts have been settled. They charge in capacity of executor, guardian, and must be made the subjects of separate applicatrustee-Separate petitions should be filed- tions, especially in the case of the guardianship, An executor who has filed his account and is as to which the Act of 29th March, 1832, sec. ready to pay any balance found in his hands 11 (Purd. 413), and the Rule of Court (Rule V. has a right to a discharge and the appointment sec. 2) in pursuance of the Act, make special of a successor Special replication-Rule of provision. See Douglas's Appeal (1 Nor. 169). It is proper to say in conclusion that the case

Court.

Sur petition for discharge as executor, trustee, has been presented to us in very irregular shape, and guardian. and in disregard of the equity rule which forbids The petition of George W. Williamson and the filing of a special replication. The affirThomas Morrow represented that they were ap-mative matter set up in the replication should pointed under the will of James Morrow, the have been brought into the petition by amend decedent, executors of his estate, trustees of ment and the respondent thus afforded an opElizabeth Grier, and guardians of three minor portunity of answering. The objection was not hildren. That a second executors' account had made, however, by the respondents, and the fact been filed and adjudicated upon, there being no alleged seems to have been conceded. exceptions thereto, and the balance found by We will enter a decree in accordance with this the Auditing Judge to be in petitioners' hands opinion. remained intact.

Opinion by PENrose, J.

W. L. S.

WEEKLY NOTES OF CASES.

VOL. XV.]

| frightened and caused injury, the defendant cannot set up as a defence the fact that the plaintiff was at the time travelling on the highway for pleasure on Sunday.

In the above case plaintiff having proved that other horses had been frightened by the same object, evidence was held admissible on behalf of defendants to show that

THURSDAY, NOV. 27, 1884. [No. 16. those horses were skittish horses.

Supreme Court.

Jan. '83, 190.

Error to the Common Pleas of Bradford County.

Case, by Alice Simmers against Victor E. Piollet and Joseph E. Piollet to recover damages March 19, 1884. for injuries alleged to have been caused by the negligence of the defendants.

Piollet et al. v. Simmers.

Roads and Highways-Evidence

On the trial, before MORROW, P. J., the followExperts-ing facts appeared: The defendants are the Negligence Object left in road likely to owners of a large tract of real estate situated in frighten horses-Sunday.

An owner of land through whose property a public highway runs, has an absolute right to use a portion of such highway for certain purposes, for a temporary period and in a reasonable manner, and this right may be exercised in derogation of the travelling public.

The mere exercise of this right of obstruction for a lawful purpose imposes no liability to pay for damages resulting therefrom. It must be an unreasonable or negligent exercise of the right to impose liability.

In an action against a person leaving an object on the roadside at which it is alleged that a certain horse taking fright, reared, fell, and died, causing in his fall personal injuries to the plaintiff, witnesses familiar with horses may be called upon to give their opinion based upon facts observed by themselves as to whether the object in question was calculated to frighten horses; whether the mere fall of the horse could have killed him; and whether a horse could have been frightened to death by the object in question.

Wysox, Bradford County, Pa. There are several roads running through their lands along which they had constructed post and board fences, which for over twenty years they had been accustomed to whitewash. In the spring of 1881, they had erected a new fence along one of these roads, on both sides of which they owned the land, and in the months of June and July of that year were engaged in whitewashing the same. The whitewash, a preparation of lime and salt mixed A property owner who has a lawful right to expose an in boiling water, was prepared in a heater in the object on or along a public highway within view of pass-hog-pen of the defendants, a distance from the ing horses, for a temporary purpose, is bound only to take nearest point of the fence to be whitewashed of 130 care that it shall not be calculated to frighten ordinarily rods. To get the whitewash to the fence for use a gentle and well-trained horses. He is not bound to guard against frightening skittish, vicious, timid, and easily keg or barrel, two feet three inches high and fiffrightened horses. teen inches in diameter was placed upon a small four-wheeled the wheels of which were wagon, twelve inches and fourteen inches in diameter. The length of the wagon was three feet, and breadth two and a half feet. In the keg was a shovel, the handle extending above the keg a distance differently stated by the witnesses from a few inches to two or three feet. The outside of the keg was streaked with lime, and it was covered with a piece of canvas or dark carpet. The The owners of property through which a highway ran wagon, thus rigged, was taken to the hog pen, were engaged in whitewashing their fence. In order to the keg filled with the prepared whitewash and do this they used a small barrel mounted on wheels, then drawn to the place of use, and placed by which was full of whitewash, and which was moved along the side of the fence in the road convenient of from time to time as the work progressed. This barrel was left standing, covered over with a cloth, and having a access, and as the work progressed was drawn shovel projecting a short distance above its top all day along the fence. Sunday on one side of the beaten track. In an action against such property owners for an injury alleged to have been occasioned by a horse taking fright at this object : Held, that the jury should have been instructed that unless there was something of an unusual and extraordinary character in the structure and appearance of this apparatus which would naturally tend to frighten horses of ordinary gentleness and training, it was not negligence to use it, and that its reasonable use for no longer a time than was fairly required along the highway in whitewashing the defendants' fences would not subject defendants to liability even though some horses might or did take fright at seeing it.

In an action against a private citizen for leaving an obstacle in the road whereby plaintiff's horse has been

On the afternoon of Saturday, July 9, 1881, this barrel or keg had been filled and taken to a point in this fence 275 rods from the hog-pen where the whitewash was prepared. At the close of the day it was still half full, and as the workman intended to resume work on Monday morning, he covered up the keg, and left it standing in the road. At this place the road is 451% feet wide. On the side next the fence being whitewashed there is a footpath from four to five feet wide, elevated above the road a foot or more. Next is a ditch about four feet wide, and from four to five inches below the travelled track. Then

comes twenty-two to twenty-four feet of level dants, testified that he had been a blacksmith for smooth roadway, while the 132 feet remaining over fifty years, had " always handled horses slope gradually downwards 2 feet to the fence more or less since he was big enough," and had on the other side, a little steeper near the road seen horses frightened in various ways. He also than for the remainder of the distance. The testified that he had seen horses fall and thrown surface of the road and slope is composed of small gravel. There are no banks or dangerous places on this road at this point, or above or below it. The truck and keg were placed in the ditch.

On Sunday, July 10th, Henry Waters and the plaintiff left Towanda at four P. M. for a pleasure drive. After driving about fourteen miles, they came about 8 P. M. to the point in the road above described where the plaintiff alleges the horse, becoming frightened at the defendants' truck and lime keg, became unmanageable, reared up, plunged sideways and a little ahead, fell down and died instantly. The wagon was overturned, and the plaintiff thrown under it with its weight upon her, thereby causing the injuries for which this action was brought. The plaintiff offered to prove by several witnesses that the obstacle above described tended to frighten horses. Objected to by defendant because the question did not embrace the words ordinarily well-broken and road-worthy horses. Objection overruled. Exception. (First and third assignments of error.)

The plaintiff also offered to prove other cases in which horses had been frightened at the same object in the same position. Objected to by defendant. Objection overruled. Exception. (Second assignment of error.)

to the ground frequently. Defendants then proposed to ask witness the question whether the fall of this horse on its side straight out at full length could have killed it upon this piece of ground. Objected to by plaintiff as incompetent. Objection sustained. Exception. (Seventh assignment of error.)

Defendants then asked the same witness this question: "State to us your opinion whether a horse could be frightened to death at this object that was in the road." _Objected to by plaintiff. Objection sustained. Exception. (Eighth assignment of error.)

The defendants also offered rebutting testimony to the effect that the horses that had been frightened by this obstacle were skittish horses. Objected to by plaintiff. Objection sustained. Exception. (Ninth assignment of error.)

The Court charged generally, and in reply to the plaintiff's and defendants' points: That the defendants had the right and dominion over the land on both sides of the road and in the road; that they had the right to whitewash their fences; that for the purpose of building or improving their fences, they had the right to use any part of the road, provided they did not interfere with the rights of travellers; that they had the right to use the road as they did, provided that the obstruction placed therein did not have the tendency to The defendants called J. G. Dougherty as a frighten horses; that in that respect they were witness, who testified that he had had experience bound to leave the road safe, not only for dull, with horses for over twenty years, had owned sluggish, and gentle animals, but for spirited, quite a number, owned five at the time he was timid, and nervous animals as well, though in examined, had seen this horse shortly before his the latter case the driver must be found to have death the same afternoon, and had observed and used proper care in driving; that the plaintiff described his condition, and had seen him imme- had the right to travel in any part of the road, diately after his death. Defendants then asked on the side where the obstruction was, as well him: "In your opinion of what did that horse as on the other side; and, that if the jury bedie ?" Objected to by plaintiff. Objection sus-lieved that this whitewash barrel in this small tained. Exception. (Fourth assignment of cart or wagon was an object likely to frighten error.) horses and render public travel unsafe, it was negligence on the part of the defendants to leave it in the highway, and they were liable for any injury resulting from such negligence. (Tenth to twenty-first assignments of error, both inclu

Defendants then asked the same witness the following question: "In your opinion was that tub calculated, placed upon the road as it was, to frighten an ordinarily well-broken roadworthy horse, or an ordinarily quiet and well-sive.) broken horse?" Objected to by plaintiff because it is not sufficient that the obstacle might not have frightened an ordinarily well-broken horse; but that the plaintiff has the right to the highway in such a condition that even skittish animals may be employed without risk. Objection sustained. Exception. (Fifth and sixth assignments of error.)

Robert Ferguson, another witness for defen

The defendants also requested the Court to charge that if the horse behind which the plaintiff was riding at the time of receiving the alleged injury was skittish, and in the habit of shying at objects in the highway, and was not quiet and well broken, then the plaintiff cannot recover.

Answer. Refused. But if the horse was skittish, and the driver knew of it, he was bound to exercise such care as was necessary under the