# Record and brief — John A. Dushane and John W. Stonebraker, Plaintiffs in Error, vs. Joseph Benedict

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Record and brief
- **Published:** January 1, 1885

## Text

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J. A. DUSHANE AND J. W. STONEBRAKER VS. JOSEPH BENEDICT. 1

1 Among the rolls, records, and judicial proceedings had in
the circuit court of the United States for the western district
of Pennsylvania, wherein Joseph Benedict is plaintiff and The Anti-
eta.n Paper Company ef al. are defencants, entered at No. 45, May
term, 1883, may be found the following words and figures, to wit:

Appearance. Docket Entries.

JOSEPH BENEDICT }
v8.
Joun A. DusHANE and Jonn W. SroneBRAKER, Partners + No. 45.
as The Antietam Paper Company, D. Hostetter, and
George W. Smith, Garnishees.

{On the margin :] Josiah Cohen, A. H. Clarke, W. Macrum.

Record on removal of cause from the common “ener court, number
one, of Allegheny county, Pennsylvania.

April 18, 1882. Foreign attachment in case to first Monday in May,
1882. Affidavit filed and Smith and D. Hostetter surmmoned as
garnishees. Bail required in $1,600. Executed April 18, 1882, on
D. Hostetter and George W. Smith; N. £. J. as to def’ts. May 25,
1882. Affidavit of defence filed. May 31, 1852. Rule on defendant
to plead; co die, plea filed. June 1, 1882. Rule and reasons for

judgment for want of a sufficient affidavit of defence filed.
2 June 17, 1852. Rule on pl'ffs to show cause why rule entered

on 17th June, inst., should not be stricken from record. Sept.
4, 1882. On argument list and rule discharged ; eo die, rule abso-
lute as to rule and reasons for judgment. Sept. 5, 1882. And judg-
ment liquidated at eight hundred and thirty-three 5 dollars.
Sept. 9, 1882. Rule granted to show cause why order of Sth inst.
should not be rescinded and the rule ex parte defendant granted.
June 15, 1882. Made absolute and the judgment entered on the 5th
inst. stricken off, proceedings stayed in [the] meantime. Sept. 16,
1882. On argument list and rule absolute; eo die, rule to plead
stricken off and defendants allowed thirty days to file supplemental
affidavit of defence. Rule for judgment to be seineuaead Oct. 14,
1882. Supplemental affidavit of defence tiled. Nov. 28, 1882. Rule
discharged and same day plea filed. Nov'r 20, 1882. Counter-affi-
davit of claim filed. Dec. 29, 1582. Rule for a commission to issue
to Joseph Kausler to take depositions on part of defendants. Inter-
rogatories filed. February 7, 1883. Cross-interrogatories filed.
March 7, 1883. Petition presented and ordered to be filed and bond
approved.

1883, April 18. Transeript of record from the court of common
pleas, number one, of Allegheny county, Pennsylvania, in the above
case filed. 1583, May 15. Case called for trial and jury sworn, and

case proceeded with. 1883, May 16. Jury render a verdict
3 for the plaintiff for the sum of eight hundred and sixty-six
and §), (8866.51) dollars. 18583, May 17. Motion and reasons
for a new trial filed. 1583, May 21. Motion for a new trial argued,C.
1—345

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2 J. A. DUSHANE AND J. W. STONEBRAKER VS. JOSEPH BENEDICT.

A.V. 1883, May 23. Motion fora new trial overruled. May 23, 1883.
Judgment upon the verdict herein. H. D. Gamble, clerk. 1883,
May 24. Plaintiff’s bill of costs filed. 1883, July 30. Writ of error
to this court, returnable in the U.S. Supreme Court on tlie 2nd Mon-
day of October next, allowed, M. W. Acheson sitting as U.S. circuit
judge; filed same day, citation to plaintiff, returnable on a like day
with the writ of error herein, allowed ; also, on same day, defend-
ants’ bill of exceptions, sealed by M. W. Acheson, J., filed.

4 ' Exemplication of Record.

COMMONWEALTH OF PENNSYLVANIA,
: set :
Allegheny County,

Among the records and proceedings of the court of common pleas,
No. one, in and for the county of Allegheny and State of Pennsyl-
vania, the following may be found as matter of file and of record at
No. 256, June term, 1882, to wit:

Appearance. Docket Entry.

JOSEPH BENEDICT
vs.
Joun A. DusHane and Joun W.STONEBRAKER, Partners +256. Narr.
as the Antietam Paper Company (now residents of
Penna.)

April 15, 1552. Foreign attachment in case to Ist Mon., May, 1882.
Aff’t filed and summon Dr. D. Hostetter and Smith as garnishees.
Bailed required in $1,600. “ Executed April, 18, 1882, on D. Hos-
tetter and George W. Smith, and N. E. J. as to defendants.” May
25th, 1882. Athdavit of defence filed. .May 31, 1882. Rule on def ’ts
to plead see reg ; eo die plea filed. June 7, 1882. Rule and reasons
for judgment for want of a sufficient aff’t of defence filed. June 17,
1882. The court grants a rule on pl'tf to show cause why the rule
entered on the 17th June, inst., should not be stricken off from the

record. Sept. 4, 1852. On argument list and rule discharged ;
5 eo die rule absolute as to rule & reasons for judgment. Sept. 5,

1ss2. And judgment liquidated at eight hundred and thirty-
three yy dollars (3533.03.) Sept. 9, 1882. Rule granted to show
cause why the order entered on the Sth inst. should not be rescinded
and the rule ex parte deft granted. June 15, 1882. Made absvlute
and the judg’t entered on the 5th inst. stricken off as having been
improvidently entered, epee stayed in the meantime. Sept.
16, 1882. On argument list and rule absolute; eo die, it appearing to
the court that the rule to plead was entered without authority of
plaintiff’- att'y by his clerk, the same is now’stricken off by consent
of counsel for both parties, and def’t allowed thirty days to file sup-
plemental aff’t of defence. Rule for judgment to be reinstated. Oct.
14, 1882. Supplemental aff’t of defence filed. Nov. 28, 1882. Rule

discharged. Nov. 28, 1882. Plea filed. Nov. 29, 1882. Counter-

affidavit of claim tiled. Dec. 29, 1882. Rule for a commission to
issue to Joseph Causler to take depositions on part of def’t filed.

aya |

4 SP

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igiy ‘. . > m ay te

J. A. DUSHANE AND J. W. STONEBRAKER VS. JOSEPH BENEDICT. 3

| Interrogatories filed. Feb’y 7, 1883. Cross-interrogatories filed.
March 7, 1883. Petition presented and ordered to be filed, and bond
approved.
6 - Precipe, &e.

ALLEGHENY COUNTY, 383:

Common Pleas Court, No. One, of Aliegheny County, Pennsylvania.

anaes June Term, 1882.
at |

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J. A. DUSHANE AND J. W. STONEBRAKER VS. JOSEPH BENEDICT. 5

And — the sum of eight hundred and thirteen 4; dollars for
the price and value of work then and there done by the plaintiff
for the defendants at their request.

And in the sum of eight hundred and thirteen ,%', dollars for
money then and there lent by the plaintiff to the defendants at their
request. |

And in the sum of eight hundred and thirteen ,5 dollars for
money then and there received by the defendants for the use of the
plaintiff.

And in the sum of eight hundred and thirteen ,%, dollars for
mouey paid, laid out, oad expended by the plaintiffs for the defend-
ants attheir request.

And in the sum of eight hundred and thirteen jes dollars for money

found to be due from the defendants to the plaintiff on an ac-
10 count then and there stated between thein.

And whereas the defendants afterwards, to wit, the day and
year aforesaid, in consideration of the premises, had then and there
promised to pay the said several sums of money, respectively, to the
plaintiff on request; yet they disregarded their promises and have
not paid any of the said moneys, or any part thereof, to damage of
said plaintiff sixteen hundred dollars; and therefore he brings

suit, &e.
JOSIAH COHEN,
Attorney for Plaintiff.

Indorsed: No. 256. June term, 1882.. Joseph Benedict vs. An-
tietam Paper Co. Precipe for for. att. Bail required, $1,600. Narr.
and affidavit. Hostetter and Smith, garnishees. Iss’d Ap’l 18,
1882. Cohen.

1] Foreign Attachments.

ALLEGHENY County, 83 -

Court of Common Pleas, No. One.

The Commonwealth of Pennsylvania to the sheriff of said county,
[couRT sEAL.] Greeting:

We command you that you attach John A. Dushane and John
W. Stonebraker, partners as the Antietam Paper Company, non-
residents of the State of Pennsylvania, and not now being within
the county of Allegheny, late of your county, by all and singular
their goods and chattels, lands, and tenements, in whose hands or
possession soever the same may be, so that they be and appear be-
fore our court of common pleas, No. 1, to be holden at Pittsburgh,
in and for said county, on the first Monday of May next, there to
answer Joseph Benedict.

And you, the said sheriff, are hereby commanded to suminon Dr.
1D). Hostetter and - Smith, partners as Hostetter & Smith, and all
other persons in whose hands or possession the said goods and chat-
tels, lands, and tenements, or any of them, may be attached, so that
they be and appear before our said court on the day and place men-

Gite ets : v ; i 3

Sones my Lee eg ee Site Oe, ee pe —— r aS TP ap * -
SR SR a Gee ee INS EE OLE: Peres GO Ly eR TEN men Oe See :
gas. ‘ % re > e tee

EPH BENEDICT.

tioned in the above writ to answer what shall be objected against

them and abide the judgment of the said court therein; and have
you then and there this writ.

12 Witness the Hon. E. H. Stowe, Esquire, president judge of
our said court, the 18th day of April, anno Domini one thou-

sand eight hundred and eighty-two.
J. O. BROWN, Prothonotary.

Indorsed: No. 256. June term, 1882. Joseph Benedict vs. The

6 J. A. DUSHANE AND J. W. STONEBRAKER VS. JOS

Autietam Paper Company. Foreign attachment in case to first.

Monday, May, 1882. Bail required in $1,600. J. Cohen, plaintiff’s
attorney. Executed April 18th, 1882, by serving a true and attested
copy of this writ at the residence of Dr. D. Hostetter, and same day
by serving a true and attested copy of this writ at the residence of
George W. Smith, with an adult member of each of their families,
and by summuning each of them as garnishees. N. E. I. as to def’ts.
So answers. Wm. McCallin, sheriff. Sheriff, McC., 2.450; M., 1.00.

13 Affidavit of Defence.

ALLEGHENY COUNTY, 88°

In the Court of Common Pleas, No. One, Allegheny County, Penn-
svivania. June Term, 1882.

JOSEPH BENEDICT |
V8. N é 56
Jno. A. DuSHANE and Jno. W. SroNEBRAKER, Partners { ~ 0. 206.
as the Antietam Paper Company. :

Personally appeared John W. Stonebraker, who, being duly
sworn according to law, on oath says that defendants have a just
and legal defence to the whole of plaintiff’s demand, the nature and
character of which is this: that the rags sent from plaintiff to de-
fendant’s mill, at Hagerstown, Md., on or about the 7th day of
February, 1882 (the value of which being plaintiff’s foundation fer
this suit), were infected with smallpox, as deponent is informed and
believes, and expects to be able to prove, the disease, smallpox, being
epidemic at the city of Pittsburgh and Allegheny City at and prior
to the date of shipment. Deponent further says that in about ten
days after the receipt of the rags at the mill, and the handling and
assorting of some of them, smallpox and varioloid attacked several
of the men so employed, and then spread to the town of Hagers-

town, many cases having proved fatal. Deponent at once
14 notified plaintiff that the rags had introduced the smallpox

into the community where the mill is located and that sev-
eral of defendant's employees were attacked, and that the rags were
at his, plaintiff’s, disposal, and plaintiff ordered them shipped
tu C. P. Markee & Son, but that this was imposstble, as the board of
health of Hagerstown would not permit their removal through the
streets.

Deponent further says that he is informed by those who were en-
gaged in assorting these rags that they gave evidence of attempts

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* Py .: yet pay : A a PR 5 eS * Lae ity Khe 8 ; >

J. A. DUSHANE AND J. W. STONEBRAKER VS. JOSEPH BENEDICT. 7

being made to disinfect them, and that he expects to be able to prove
that the breaking out and prevalence of smallpox at defendant’s
mill was wholly owing to the rags, which conveyed it from Pitts-
burgh, the place from which they were gathered and shipped.
Deponent further says that these rags have caused, and are still

causing, defendants great loss and damage, and their presence in the
‘ mill, where a greater portion of them still remains, a terror und
i fright to all in the neighborhood.
hake Jeponent further says that prior to the receipt and opening of the
bags of rags there was no smallpox anywhere neai the mill or
tes Hagerstown, and he is informed and believes, and expects to be able

to prove, that its appearance can be traced immediately to the rags
shipped by plaintiff.

15 —~ pa aha Ry ES ee Ds eS Raa BC be RS gi? cm tea Lot oe BI OE
4 ee Ks * ” q ae . tet ee ay eer Se ee ee eee ea a le bat ia gi tae BS 4a tigi ESO 8 a .
ak mis a hs. pat ee ab ad os lal Te Pag INE Opn, OCT EE eM Ber Pe aR re OE Le A ET tN ae ar a Bel Rs i ee ear ae a ae Sie Ae
tps SPT EE Aes ee Pe UO Ry eg ER a nk ae ERT RR ge ey ODER OCR MNES ME OM OP Se Oy RE Eh eae wots 2 . . Pad :
Foe No. 256.
ANTIETAM PaPreER COMPANY. j
JuNE 15, 1882. -
19 On motion of defendants’ attorney, the court grant a rule 3
on plaintiff toshow cause why the rule entered on the 7 inst. 4
should not be stricken from the record. ‘
re By the eourt. i
Reasons in Support of the Above Rule. 4
1. The plaintiff by calling on defendants to plead has waived his
right to judgment for want of a sufficient affidavit of defenve E
O'Neal vs. Rupp, 10 Harris, 395. :
2. This action, having been begun by foreigh attachment, is not a
within the perview of the rule requiring affidavits of defence. 4
Grant vs. Hickcox, 14 P. F. Smith, 354. 4
Indorsed: No. 256. June T., 1882. Benedict vs. Antietam Paper ‘
Company. Rule ex parte defendants. Filed June 17, 1582.
Precipe for Judgment
ALLEGHENY COUNTY, #8:
Court of Common Pleas, No. One. June T., 1582
JoserH Benepict : 7
ve | os :
: a 2 No. 256.
Jounx A. DvusHaxe and Jou~x W.Stroxnenraker. Partners -
as the Antietam Paper Co
a sib ide alin amcadionstn ouses eed iansia toa shieosncanians

NDS NEE REE FERED, SATE ERIE AOE RIOR ASEH RS NTE 20 OO

$533 O03

2—345

10 J. A. DUSHANE AND J. W. STONEBRAKER VS. JOSEPH BENEDICT.

20 Enter judgment as above liquidated against defendants in
accordance with order of court of Sept. 4, 1882, making rule

for judg’t “ absolute.”
J. COHEN,
| Alt’y for PU.
To J. O. Brown, Esq., pro., Pittsburg, Sept. 5, 1882.

Indorsed: No. 256. June term, 1882. J. Benedict vs. The An-
tietam Paper Co. Precipe for judgment. Filed Sept. 5, 1882.
Cohen.

Appearance of W. Macrum.
ALLEGHENY COUNTY, 838 - re
Court of Common Pleas, No. One. June T., 1882.
BENEDICT
v8. 206.
THE ANTIETAM PAPER Co.
Enter the appearance of W. Macrum, Esgq., att’y for def’ts.

Sept. 9, 1582.
A. H. CLARKE,
: Att’y for Def'ts.
To J. O. Brown, Esq., pro. :
Indorsed: No. 256. June term, 1882. Benedict vs. The Antietam

Paper Co. Precipe for appearance of W. Macrum, Esq. Filed Sept.
9, 1882.

21 Order Amending Record.
ALLEGHENY COUNTY, 88:
Court of Common Pleas, No. One.

BENEDICT vs. ANTIETAM PAPER Co.

Sept. 9, 1882.

On motion of A. H. Clarke, attorney for def’ts, rule to show cause
why the order entered on the 5th inst. should not be rescinded, and
the rule ex parte defendants granted June 15th, 1882, and made ab-
solute, and the judgment entered on the 5th inst. be stricken off as
having been improvidently entered ; proceedings stayed interim.

By the court.

, -~ , ret ' ; / . .
Indorsed : No. 256. June T., 1852. Benedict vs. Antietam Paper
Co. Order amending record. Filed Sept. 9, 1882. A. H. Clarke.

11

J. A. DUSHANE AND J. W. STONEBRAKER V8. JOSEPH BENEDICT.

Supplemental Affidavit of Defence.
ALLEGHENY COUNTY, 88:
Court of Common Pleas, No. One. June Term, 1882.

JOSEPH BENEDICT
v8. » Bob.
JoHn A. DuSHANE and Others. }

STATE OF MARYLAND, ( a
County of Weshington, {°°
22 John W. Stonebraker, one of the defendants in the above

case, having been first duly sworn by me, a notary public in
and for said county, deposes as follows :

I am advised and believe that defendants are not bound to sup-
plement their affidavit filed May 25, 1882, but by leave of court
granted in the order made Sept. 16, 1852, the foregoing facts are
stated as a just defence to the whole of plaintiff’s claim.

Plaintiff is a rag dealer, having his stock in trade in the city of
Pittsburgh. In February, 1882 whe came to see defendants at Hagers-
town, Md., and solicited an order for rags and paper. On behalf of
defendant firm | gave him an order for substantially the quantities
and kinds described in the exhibit attached to his affidavit. Nicely-
assorted print and book rags were designated as the subject-matter
of said contract, but no rags were accepted, inspected, or even seen
bv defendants or any one acting for them. The rags which the
plaintiff shipped from Pittsburgh, professedly in fulfilment of said
contract, were packed in bails, and their character could not be dis-
covered until the bails were unpacked. After some of them had
been unpacked and used nine of defendants’ sorters were stricken
with smallpox and varioloid, and the desease spread rapidly among

the employees and those living near the mill, causing the
23 death of five persons and preventing many others from work-

ing. Others became alarmed. When the reports of the epi-
demic spread customers refused to buy defendants’ paper. They
were unable to hire workmen at the usual rates, and some refused
to work on any terms. By reason of the premises and of the in-
terruption of defendants’ business occasioned thereby, money paid
for the support of those disabled by said disease, injury to defend-
ants’ said business, &c., defendants suffered loss and were put to ex-
pense far exceeding the amount of plaintiff's bill

The said rags were infected with smallpox before plaintiff shipped
them. Iam informed and beheve, and expect to prove, that he well
knew them to be infected before he shipped them. If defendants
had known them to be infected they would have refused to receive
them. The rags they contracted for and were to receive, according
to the clear underst: minding between them and plamstiff, were promod
merchantable rags, free from infection. The infection conveved in
suid rags was the sole cause of the breaking out of said desease in
the manner above described, and they were shipped by plamtill with
intent to deceive, cheat, and defraud the said defendants

FLOR OL pe a a ee

x beh aug ck a aS we
gi ig |

12 J. A. DUSHANE AND J. W. STONEBRAKER VS. JOSEPH BENEDICT.

As soon as practicable after the discovery of said infection, defend-
ants wrote to plaintiff, stating the facts and telling him that all the
rags not consumed before said discovery was made were held sub-

ject to his order, and they were all still so held until defend-
24 ants’ foreman, being compelled to remove the said rags, and

mistaking defendants’ orders to the contrary, turned them
into the rotary bailer without sorting them for the purpose of get-
ting rid of the risk of infection attendant upon their remaining in
the mill.

For the rags so used it is submitted that defendants ought not to
pay the prices charged by plaintiff, but such amount only as they
were reasonably worth, if they were worth anything. *

Defendants will ask for a certificate for the amount of damages
in excess of the true amount to which plaintiff may be entitled.

‘Alterations and interlineations made before signature and affi-

davit.”
JOHN W. STONEBRAKER.
Sworn to and subscribed before me this 30th day of September,
1882. In testimony whereof I have hereunto set my hand and
affixed my notarial seal.
JOS. KAUSLER, [skat.]
Notary Public.

It is agreed that the foregoing aftidavit be filed as it stands with
the following interlineations and erasures, viz: those which

20 are marked in the margin with the figures 1 to 13, inclusive.
The plaintiff’s counsel waives the right to have the affidavit
drafted anew and resworn, and agrees not to take any advantage of
the said erasures and interlineations before the court or before the

jury.

Oct. 13, 1882.

J. COHEN,
Atty for PU.
ALLEGHENY COUNTY, 88:

W. Macrum, being first dulv sworn, says that he is agent in this
behalf of defendant, and that the facts stated in the within affidavit,
as altered by the interlineations and erasures marked one to 13 in-
clusively, are true, as he is informed and believes, and expects to be
able to prove at the trial.

The said erasures and interlineations were made by affiant after
the receipt of letter from defendants explaining and correcting a
mistake in said afidavit as originally drawn, and the counsel for
plaintiff having dispensed with the redrafting and reswearing of the
same.

W. MACRUM.

Sworn and subscribed this 1 ith dav of Oc paren, 1882.

J. O. BROWN, Pro.

Indorsed: No. 256. June term. 1882. sea res. Antietam
Paper Co. Supplemental affidavit of defence. Filed Oct. 14, 1582.
A. H. Clark, W. Macrum. !

J. A. DUSHANE AND J. W. STONEBRAKER VS. JOSEPH BENEDICT. 13

26 Plea.
ALLEGHENY CouNTY, 88:

Court of Common Pleas, No. One.

BENEDICT vs. ANTIETAM PAPER Co.

Nov. 28,’82.
Def’ts plead payment with leave, &c., and the special matter
stated in affidavits of defence, and they claim damages upon
the cause of action stated in said affidavits In the sum of seven thou-
sand dollars in excess of the amount sued for by plaintiff.
A. H. CLARKE,

W. MACRUM.
Alt’'ys for Def'ts.

Indorsed: No. 256. June term, 1882. Benedict vs. Antietam
Paper Co. Filed Nov’r 28,1882. A. H. Clarke. W. Macrum.

Counter-Affidavit of Claim.

ALLEGHENY COUNTY, 88:
Court of Common Pleas, No. One. June Term, 1882.
JOSEPH BEXNEDICT
v8. > No. 256.
Jxo. A. DusHane et al.

27 Joseph Benedict, the above plaintiff, being duly sworn,

says that it is not true,as slieneil in defendants’ affidavit, filed
herein, that the rags in this case sued for were infected with small-
pox before plaintiff shipped them, and that he well knew it. Affiant
avers that said rags were not affected as alleged. and that rags of the
same kind, and obtained from same sourse as those sold to defendants,
were sold to other parties in Pittsburgh and elsewhere, from none of
whom any complaint or charge of infection has ever been received
or heard, nor was there ever expressed by them any dissatisfaction
with the quality of such rags.

Affiant denies that any contract was ever made by affiant with
defendants; that said rags should be free from infection, but, to the
contrary, the subject of infection was never mentioned or spoken of
by plaintiff or defendants at time said goods were purchased.

Affiant denies that the infection alleged to have been contained in
said rags was the cause of the breaking out of said disease, as alleged
by def’ts, and affiant expressly denies that he had any knowledge or
indication of anv infection In said rage by def'ts alleged to ies
been contained thereii. or that he shipped those rage to def’ts

with anv intent of deceiving, cheating, or defrauding them;
28 that def’ts did write to plaintiff stating that said rags were
being held subject to plff’s order,-to which plaintiff replied
requesting them to be shipped to C. P. Markle & Sons, which was
never done by them, nor were they ever returned to pl'ff Affiant

. OP A BE GRE A sae tates

14 J. A. DUSHANE AND J. W. STONEBRAKER VS. JOSEPH BENEDICT.

further denies that defendants suffered any loss consequent upon the

infection of said rags.
All to the best of affiant’s knowledge, information, and belief, and
all of which affiant expects to be enabled to prove on the trial of

this case.
JOSEPH BENEDICT.

Sworn to and subscribed before me this 3lst Oct., 1882.
[SEAL. ] JOSIAH COHEN,
Notary Public.

Indorsed : No. 256. June term, 1882. Joseph Benedict vs. Antie-
tam Paper Co. Counter-aff. of claim. Filed Nov'r 29, 1582.
Cohen.

29) Petition for Removal and Bond.

ALLEGHENY COUNTY, 88:

In the Court of Common Pleas, No. One, of Allegheny Co. June T.,

1882.
JoseEPH BENEDICT !
rR. No. 256.
Tut ANTIETAM PAPER Co. f

To the hon. judges of said court :
The petition of John W. Stonebraker and J. A. Dushane, partners
as the Antietam Paper Co. and defendants in the above
30) action, respectfully represents :

1. That your petitioners are both citizens of the State of.

Maryland, and the plaintiff in said action is a citizen of the State of
Pennsvivania, and the citizenship of said parties was the same as
at present when said action was instituted.

2. That the amount in controversy in said suit exceeds the sum.

of five hundred dollars.

3. That the bond of vour petitioners, with Charles S. Frisbee and
John S. McCullough as sureties, conditioned according to the re-
quirements of the act of Congress on this subject, is annexed to this
petition. |

4. Your petitioners therefore pray that this honorable court pro
ceed no further in said action than te receive and approve said
bond and permit the filing of this petition for the removal of said
action into the circuit court of the United States for the western
dist. of Penna. |

And as in duty bound vour petitioners will ever pray, &c.

JOHN W. STONEBRAKER anp
J. A. DUSHANE,
By A. H. CLARKE axp W. MACRUM,

Their Attorneys.

. toa
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Bes.
AY,
4

J. A. DUSHANE AND J. W. STONEBRAKER Vs. JOSEPH BENEDICT. 15

STATE OF PENNSYLVANIA, } f-
County of Allegheny,
Wm. Macrum, agent in this behalf of above-named peti-
31 tioners, being duly sworn, says that the factsstated in the fore-
going petition are true to the best of his knowledge and belief.
W. MACRUM.

Sworn & subscribed before me this 5th day of March, 1883.
J. O. BROWN, Pro.

Know all men by these presents that we, Jno. A. Stonebraker, J.
A. Dushane (both of the State of Marvland), and Chas. 8. Frisbee
and John S. McCullough, both of Allegheny Co., Pa., are held and
firmly bound unto Joseph Benedict, for his own use and the use of
whomsoever it may concern, in the penal sum of two hundred and
fifty dollars, to be paid to the said Joseph Benedict, his executors,
administrators, certain attorney, or assigns; to which payment, well
and truly to be made, we bind ourselves, our heirs, executors, and
administrators, jointly and severally, firmly by these presents.

Witness our hands and seals this — day of March, A. D. 1583.

The condition of this obligation is such that whereas the said
Stonebraker and Dushane have filed a petition in the court of com-
mon pleas, No. 1, of Allegheny county, Penna., for the removal of
an action there depending (at No. 256, June term, 1582), in which
Jos. Benedict, the above-named obligee, is pl'ff and they are the
def ’ts : |

Now, if the said defendants shall file in the cireuit court of the
United States for the western district of Pennsylvania, within the

time prescribed by the act of Congress in such case, a copy
32 of the record of said action, and shall pay all costs that may
be awarded by said circuit court if said circuit court hold
that said suit was wrongfully or improperly removed thereto, then
this obligation to be void; otherwise, to be in full force.
JOHN W. STONEBRAKER, _ [seat.

J. A. DUSHANE, SEAL.
By their att'y, W. MACRUM. SEAL.
CHARLES 8. FRISBEE. SEAL. |
JOHN 8S. McCULLOUGH SEAL. |

ALLEGHENY County, set:

Charles S. Frisbee and Jno. S. McCullough, sureties in the within
bond, being duly sworn, save that they are severally worth the
amount of the penalty thereof over and above their respective debts
and habilities.

CHAS. S. FRISBEF.
JOHN S. MeCULLOUGH.

Sworn and subscribed before me this 5th day of March, A. D.

1883.
J. O. BROWN, Pro

Indorsed: No. 256. Jiine term, 1882. Joseph Benedict vs. An-
tietam Paper Co. Filed March 7, 1883.

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J. A. DUSHANE AND J. W. STONEBRAKER VS. JOSEPH BENEDICT. 19

and the special matter stated in the affidavits of defense, and they
claim damages for the cause of action stated in said affidavits in the
sum of $7,000 in excess of the amount sued for by plaintiff.
(Signed) A. H. CLARKE,
W. MACRUM,
Attys for Defendants.

40 The said affidavits of defense being as follows:
Original Affidavit of Defense.
ALLEGHENY COUNTY, 88:

In the Court of Common Pleas, No. 1, Allegheny Co., Pennsyl-
vanla. June T., 1882.

JOSEPH BENEDICT |
ie ! No. 256.
as the Antietam Paper Co.

Personally appeared John W. Stonebraker, who, being duly sworn
according to law, on oath says that defendants have a just and legal
defense to the whole of plaintiff’s demand, the nature and character
of which is this: That the rags sent from plaintiff. to defendants’
mill, at Hagerstown, Md., on or about the 7th day of Febauary, 1882
(the value of which being plaintiff’s foundation for this suit), were
infected with smallpox, as deponent is informed and believes, and
expects to be able to prove, the disease smallpox being epidemic at
the city of Pittsburgh and Allegheny City at and prior to the date
of shipment.

Deponent further says that in about 10 days after the receipt of

the rags at the mill and the handling and assorting of some
4] of them smallpox and varioloid attacked several of the men

so employed, and then spread to the town of Hagerstown,
many cases having proved fatal. Deponent at once notified plaintiff
that the rags had introduced smailpox into the community where
the mill is located and that several of defendants’ employees were
attacked, and that the rags were at his, plaintiff's, disposal, and
plaintiff ordered them shipped to C. P. Markle & Son, but that this
was impossible, as the board of health of Hagerstown would not
permit their removal through the streets.

Deponent farther says that he 1s informed by those who were en-
Sse in assorting these rags that they gave evidence of attempts
being made to disinfect them, and that he expects to be able a wa
that the breaking out and prevalence of smallpox at defendants’
mill was whollv owing to the rags, which conveyed it from Pitts
burgh, the place from which they were gathered and shipped.

Deponent further says that these rags have caused and are still
causing defendants great loss and damage, and their presence in the
mill, where a greater portion of them still remains, — a terror and
fright to all in the neighborhood.

Deponent further says that prior to the receipt and opening of

wags ad

‘ » . 4 - ; c es nto aptine 385 8 ¥ Pee Se ne CL ae ee Co eee Boa
> ’ AE, eee NES Se ; ss ee ON Nae wee eT OT Se MeN yr ee eT EST OE De Te ee yy 8 a be pie | ey ee
“ moe Kart = a Pee ab “ ay DAH.
JoHN A. DusHane and Others. |

STATE OF MARYLAND. e: r
County of Washington, ) ~

John W. Stonebraker, one of the defendants in the above case,
having been first duly sworn by me, a notary public in and for said
county, deposes as follows: I am advised and believe that defend-
ants are not bound to supplement their affidavit filed May 25, 1882,
but by leave of court granted in the order made Sept. 16th, 1882,
the following facts are stated as a just defense to the whole of plain-
uff’s claim. Plaintiff is a rag-dealer, having his stock in
trade in the city of Pittsburgh. In February, 1882, he came

3;
Rae as

—

dene m4 ha

iis 7 ; De ee rks Be 25 pan) & Sarees, a TS TE So a Pens atey Meee Ae a
ES ia i I oN ca ies ec rial oi Ee, ge a a ea te ek Se he a ae a i
SEN REI eg EN CoO OE Sag Re TEN ‘ Sa Oe oo One POs a ut Sn ae }

J. A. DUSHANE AND J. W. STONEBRAKER VS. JOSEPH BENEDICT. 21

to see defendants at Hagerstown, Md., and solicited an
44 order for rags and paper. On behalf of defendant firm I gave
him an order for substantially the quantities and kinds de-
scribed in the exhibit attached to his affidavit. Nicely assorted print
and book rags were designated as the subject-matter of said contract,
but no rags were accepted, inspected, or even seen by defendants or
any one acting for them. The rags which the plaintiff shipped from
Pittsburgh, professedly in fulfilment of said contract, were packed in
bales, and their character could not be discovered. until the bales
were unpacked. After some of them had been unpacked and used
nine of defendants’ sorters were stricken with smallpox and = vario-
loid, and the disease spread rapidly among the employees and those
living near the mill, causing the death of five persons and prevent-
ing many others from working; others became alarmed when the
reports of the epidemic spread ; customers refused to buy defend-
ants’ paper; they were unable to hire workmen at the usual rates
and some refused to work on any terms. By reason of the premises
and of the interruption of defendants’ business occasioned thereby,
money paid for the support of those disabled by said disease, injury
to defendants’ said business, ete., defendants suffered loss and
45 were put to expense far exceeding plaintifl’s bill. The said
| rags were infected with smallpox before plaintiff shipped
them. J am informed and. believe, and expect to prove, that he
well knew them to be.infected before he shipped them. If defend-
ants had known them to have been infected they would have re-
fused to receive them. The rags they contracted for and were to
recelve, according to the clear understanding between them and
plaintiff, were good, merchantable rags, free from infection. The
infection conveyed in said rags was the sole cause of the breaking
out of said disease in the manner above described, and they were
shipped by plaintiff with intent to deceive, cheat, and defraud the
said defendants. As soon as practicable, after the discovery of said
infection, defendants wrote to plaintiff stating the facts and telling
him that all the rags not consumed before said discovery was made
were held subject to his order, and they were all still so held until
defendants’ foreman being compelled to remove the said rags, and
mistaking defendants’ orders to the contrary, turned them into the
rotary boiler without sorting them for the purpose of getting rid of

the risk of infection attendant upon their remaining in the mill
For the rags so used it is submitted that. defendants ought not to
pay the price charged by plaintiff. but such amount only as
46 they were reasonably worth, if they were worth anything.
Defendants will ask for a certificate for the amount of damages

in excess of the true amount to which plaintiff may be entitled.
“Alterations and interlineations made before signature and affi-

davit.” piesa :
JOHN W.) STONEBRAKER

Sworn to and subscribed before me this 50th day of September,
1SS2.

Pea:

2 J. A. DUSHANE AND J. W. STONEBRAKER VS. JOSEPH BENEDICT.

ho

In testimony whereof I have liereunto set my hand and affixed
my notarial seal.
JOSEPH KAUSLER, [y. p. sEAt.]
Notary Public. °

And the jury having been duly empanelled and sworn to sustain
the issue on their part defendants adduced the evidence following:

47 Joseph Benedict, the plaintiff, being called by the defend-

ants (as for cross-examination), and being duly sworn, testi-
fied that the rags shipped by him to defendants were collected in
Allegheny City, Pittsburgh, and the country roundabout; that he
was accustomed to buy rags from Moritz Streng, Ignatz Uttenweiler,
H. J. Diehl, B. Hirch, and oce ‘asionally from Jno. Wirth, ete. ; - that
these dealers did business in the 3rd and 7th wards, Allegheny City.
Being asked to name other dealers from whom he had bought, he
said there might be others; he was unable to name them, for he
bought rags from all or any parties who offered him merchantable
rags, not knowing where they were-collected. He further testified
that the rags in question were assorted in his establishment, and
were baled under his special instructions, and that his foreman was
present to tell how it was done. Being asked whether smallpox was
not epidemic in the citie s of Pittsburgh and Allegheny at and before
the time these rags were s hipped, and whether he did not know the
fact at that time, he answered affirmatively; but he testified that
said rags had been baled a year or more before they were shipped
to defendants, and had lain meantime ina store-house he had on
Water street, Pittsburgh, apart from his place of business on Wylie
street. Witness stated that he had been engaged in the business of
dealing in rags in Pittsburgh for about twenty vears. He testified

that immediately before going to Hagerstown and _ offering
4 these rags to de fer ndants he had offered the same raps to

twelve different firms in the city of Philadelphia, adding that
he had actually sold rags to one of these Philide ‘Iphia firms.

On further examination he said that the rags sold to the Phila-
delphia house were not taken from the warehouse where, as he tes-
fied, the rags shipped to defendants were stored. On being asked
to whom he had sold from this warehouse, besides the defendants,
he named ©. P. Markle & Son. Being asked whether he offered
these rags to defendants as elean, nicely assorted print and book
rags, he said: “T think the word ‘clean’ was not used.”

(). So vou thought vou were entitled to send filthy ones?

{ Moje eted to.

A. To the best of my knowledge and behef they were clean.

fjeing asked whether there was s iphur, earbolic acid, or other
disinfectant in the bales shipped. to lof fendants, he answered: ° Mr.
Macrum, to the best of mv knowledge and belief there was nothing
like that in them,” and added that he never used disinfectants.

Witness further stated that in offering these rags to Mr. Stone-
braker (one of defendants) he did tell him he was selling the rags
for less than be had paid for sheen Qu further examination he

Be PEEL LOGE IONE ALLL LOLS OOM ELA ERE IE IHN SS

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SPOT AT E smess

26 J. A. DUSHANE AND J. W. STONEBRAKER VS. JOSEPH BENEDICT.

away from — mill; the other rags assorted at that time were clean
and sweet in comparison with the Pittsburgh rags.

The defendants’ counsel offering to read from the deposition of
Mrs. Missouri Garlock the following answer to “ interrogatory 8th,”
which inquired as to the cause of the breaking out of smallpox in
that vicinity :

[I believe it came from the Pittsburgh rags; they smelled badly
and made me very sick, and, seeing what I believed to be sulphur
in these rags, I think they were the cause of my taking the small-

pox.’ ‘
57 “T never in my experience saw rags as filthy as these
were.” |

The plaintiff’s counsel objected that the belief of the witness,
being a mere opinion, is not evidence, and objected to so much of
the said answer as relates to the witness’ belief, and is enclosed in
brackets, which objection the court sustained, and upon exception
seals this bill at the instance of defendants.

M. W. ACHESON

The said deponent Jackson being asked whether anything pre-
vented the return of the rags to plaintiff, and whether any of them
were used or disposed of without being assorted or unbaled; if so,
under what circumstances. by whose orders, whether with knowl-
edge of defendants; what their orders were (if any) as to these rags,
and whether they were carried out; if not, why, and when did they
first learn that their orders were not obeyed : to whom were they
given, and who was responsible for their pe ee made answer
us follows: “The corporate authorities of Hagerstown refused to
allow rags to be hauled to or from the depot. I, on my own re-
sponsibility, without the knowledge of Mr. Stonebraker (as Mr.
Stonebraker gave orders that no more than the sixteen (16) bales

should be brought into the mill), for the safety of the
58 community, took those rags without having them assorted
and dumped them into the rotary boiler, and boiled them
with lime and soda ash for twelve hours with high-pressure steam,
as I felt by this means I should destroy all possibility of infection.
[ saw boys playing about the stock-house and on these bales, and in
order to prevent the spread of the smallpox I thought it was abso-
lutely necessary that these rags should be got out of the way. I did
not put them into the rotary boiler until from two (2) to three (3)
months after smallpox had broken out. I can’t tell the exact time
when Mr. Stonebraker learned that they had been used, but he was very
much surprised when he did find it out. I was the party to whom
the instructions were given, and [ am the party who was responsible
—I disobe ‘ve “1 the order for the above reason. He further testified :
“We were constantly recetving rags from Norfolk, Va., and from the
country around. Iam unable to say where all the rags came from
that were being assorted.”
Samuel E. Craley, aged forty. -one (41), — “ran the cutter,” ob-
served that rags delivered by plaintiff under contract, said to be

J. A. DUSHANE AND J. W. STONEBRAKER VS. JOSEPH BENEDICT. 27

59 Pittsburgh rags, were very dark-colored and very filthy ; cut

those that were assorted; smelled very much of brimstone;
found some very good pants and vests, too good to be classed as
rags; they were well baled and nothing could be seen until —
bales were cut; as rags passed through — cutter I noticed that some
had blood stains on them ; I picked them up and saw blood stains;
I ent a lot of the Pittsburgh rags without assorting; as three (3) of
my daughters were assorters I volunteered to feed them without
being assorted, as I feared their taking the smallpox, and [took the
risk to save them: I got the bales from the forem: in; when I cut
those which were not assorted I saw a quilt which had a ve ry sick-
ening smell.

Mrs. Lydia Cramer deposed that she assorted some of the rags ;
found clothing too good to be sold as rags—pants and men’s under-
wear; my daughter brought two pairs of ladies’ hose home found
in these rags.

Michael Fouke deposed that he was sixty-eight (68) years
60 old; foreman of rag-room ; sixteen (16) bales of these rags
— assorted from — 10th to — Irth February, 1852; very
dark colors, very filthy, very bad aud sickening odor, so much so
that he had to go out and get fresh air; saw clothing too good to be
sold as rags. Some time after smallpox had broken out the rags
were used at the instance of the foreman. Mr. Stonebraker had told
me no more should be used; do not know why orders were not
obeyed ; usually given to foreman. of mill; foreman of mill was
responsible. It was some time after the rags were used that Mr.
Stonebraker learned that they were used.

Cross-examined :

There were other rags in the mill; can’t say how many or how
long they were at — mill, as we were constantly getting rags from
Norfolk and the surrounding country. I did examine them, and at
the time, having read that smallpox was in Pittsburgh, I remarked
that Mr. Stonebraker ought not to buy rags where smallpox — I
have been foreman of the rag-room thirteen (13) years.

To the question * State precisely what other stocks were assorted
at the time the rags sued for were assorted ” he answered, “ Norfolk
and country rags.”

Alice Koonz - Saw five (5) or Six (49) pars of stockings which
6] were good in the half bale she assertecd.

J. Frank Fouke, paper-maker, testified that the rags came from
the asserters to him: the dust arising from the rags caused him to
cough ; saw overalls, shirts, and underwear which he thought too
good for rags.

Miss Elizabeth M. Craley assorted two and one-half bales; they
smelled betly: gave me headache and very sore throat; found a

cea and four dresses, three of which were aimoat

bh -

=~ " Se
TREO DARE

298 J. A. DUSHANE AND J. W. STONEBRAKER VS. JOSEPH BENEDICT.

as good as new; also coats, pants, and vests. The rags stunk. There
was sulphur in the bale; I also smelled carbofhie acid, and found
little sacks that smelled like carbolic acid. The Pittsburgh rags
that were not assorted were run through the cutter, but I don’t know
who ordered it to be done. I don’t know how many other rags were
on hand; there were a couple of Norfolk bales in the room. I was
very much frightened.

And upon the question of damages the defendants submitted the
following evidence :

62 Mrs. Elizabeth Keyser: “ During my sickness the provisions

used by me were furnished by the Antietam Paper Company
wrthout cost to me.”

Cross-examined:

“All I know is that Mr. Stonebraker was in the habit of sending
provisions to the sick in my neighborhood.”

John W. Stonebraker testified that the defendants furnished, with-
out charge, provisions, coal, and other necessaries to sick hands, and
to their families, to the amount of $200; that the mill did not _
but was short of hands, and that their country supply of rags fell
off, parties being afraid to come to the mill on account of the small-
pox; that the defendants got rags from Norfolk without having

them pass through Hagerstown, which cost them eight (8) cents a_

hundred pounds more than they had been paying for country rags.

James H. Jackson: “Am general foreman at Antietam Paper
Mill. I know that we had a very profitable country trade trading
with us, which left us, and thereby making a considerable loss to the
mill.”

Cross-examined:

“The mill was not stopped, but run short-handed and at
63 a reduced rate of production.”

Geo. W. Crum: “ The goods that were furnished from the store
where I am clerking to those that were down with smallpox were
paid for by Mr. Stonebraker. I think the bill he paid was about
9125.”

Michael Fouke: “IT was foreman of rag-room department; don’t
know the extent of the loss, but know that we lost considerable of
our country trade and loss of time in running by reason of being
short-handed; I think Mr. Stonebraker furnished provisions, coal,
etc., to those that were sick.”

(C‘ross-examined -

“I know nothing except the mill was short-handed and there was
a loss in production.”

oe

J. A. DUSHANE AND J. W. STONEBRAKER Vs. JOSEPH BENEDICT.

James F. Fouke: “1 know that coal and provisions were furnished
to the families of the sick, as I helped to load up the wagons, and |
had orders to take coal from the coal pile.”

64 Miss E. M. Craley: “ Mr. Stonebraker sent supplies to those

who were sick and thingsthat were suitable for thesick, and did
everything that he could to make them feel comfortable, and the
hands told her that Mr. Stonebraker did not charge them for them.”

And the said John W. Stonebraker, one of the defendants, being

on the witness stand and testifying on behalf of the defendants, the

defendants’ counsel proposed to ask him. what he estimated the
amount of defendants’ damages to be.

To which question the plaintiff’s counsel objected that it was not
competent for the witness to give a lumping estimate of the defend-
ants’ damages, but that he should specify the items of damage and
testify to facts, his opinion being inadmissible ; which objection the
court sustained, and thereupon the defendants excepted, and at their
instance this bill of exception- is sealed. |

M. W. ACHESON,

W.H. Daly, M. D., a medical expert, testified that there could be
no more certain mode of spreading smallpox than by means
65 of infected bales of rags, and that the infection might be re- 7
a tained in close bales for a very long time. |

C. Hoch, sworn and examined for defendants, testified that he

was health officer; that both in the year 1881 and inthe year 1882

| smallpox was very prevalent in both the cities of Pittsburgh and

| Allegheny. He testified to the correctness of a tabular statement

forming part of his official reports, showing that in the last-named

city there were two hundred and twenty (220) new cases reported

during the month of December alone, in the year ISS], and five

hundred and six (506) eases during the entire year, and that all the

cases of ISS] happened in the latter part of that year. He also

{ showed that said ge was almost as widespread in the vear 1882

‘ as in the vear LSS] throughout said cities, being more severe in the

cold months. He also swore that an offensive sickening stench was

/ one of the characteristics of a severe type of smallpox This was

7 also testified by R. Ackle, a nurse at pest-boat
ole

66 John Werth, a witness on behalf of the defendants, being

upon the stand, the defendants’ counsel propose to prove by
him that two of his children bad taken the smallpox from playing
with infected rags, to which offer the plaintiff's cousel objected that
the evidence was Incompetent and’ irrelevant, and thereupon the
court sustains the objection ; to which ruling the defendants excepted,
and at their instance a till is sealed

M. W. ACHESON.

& James Harrison testified that he was a rag dealer and farailiar
t with the mode of conducting that business; that it was not the

er
nner

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30 J. A. DUSHANE AND J. W. STONEBRAKER VS. JOSEPH BENEDICT.

practice of American dealers to use disinfectants in packing rags,
and that the only kind of rags he had observed disinfectants 1n
were those imported from Europe—‘ foreign rags.” |

The copy of plaintiff’s book entries given in evidence showed
shipments to defendants as follows:

Feb. 7, 1882. 16 bales mixed book steck, 6,871, @ 24.-.--- $197 54
9 hales white shavings, 3,417, @ 3$-------- 132 41

8 bales colors, 3,838, @ 2.20...........-... 88 27

5 bales blues, 2.410, Bi... 5 ee cee 79-31

"498 58

67 Rates TCI iss kc Sica ho hn aie eee 28 11
$465 42

Feb. 8. 1882. 28 bales colors, 12,882, @ 2.30 .... -..--.- $296 29
> bales blues, 2,477, @ 3} .--...--~. ----- 77 4i1

373 70

hts SPONGE india con dene tebe deka on >> ee

$347 61

The following correspondence was proved and read to the jury
by defendants:

(Exurpit “A.”)

Office of Joseph Benedict, dealer in rags, iron, metal, ete., No. 48
Wylie Ave. P. O. box 799.

PITTSBURGH, Pa., Feb. 7, 1882.
Antietam Paper Co., Hagerstown.

Dear Sir: Please find enclosed invoiceand B. L. for stock shipped
this day,which I had the pleasure of selling to your Mr. Stonebraker.
I was enabled to put in some books and shavings as I thought I
could send, and bought such at a very small margin,as I know you

are anxious to have such; will send balance of colors to-
OS inorrow if weather permits. I may not have quite enough

blues to-morrow, but will send them then in a few days after
that; had no time vet to go to eotton mill, but will attend to it in
a few days,and send you a sample of that waste by mail as promised,
if they have any on hands. Please examine stock soon and report,
especially colors,as | would like to send you a few more car-loads of
them. ) |

Yours truly,

JOSEPH BENEDICT.

J. A. DUSHANE AND J. W. STONEBRAKER VS. JOSEPH BENEDICT. 31

(Exuibit No. OnE.)

. HaGerstown, Mar. 6, 1882.
Mr. Benedict. |
Dear Sir: It is proven beyond a doubt that the rags you sent
us are full of smallpox. Some eight (8) or (10) ten of our hands are
down with it since we handled about this many bales of your rags.
From the very fact that you undertook to disinfect the rags with
sulphur is pretty good evidence that vou knew they were infected.
This is a pretty serious matter. We don’t knew where it may
end. If our mill is stopped it will be a heavy loss to us.
69 The hands refuse to handle any more of your rags and we
would not let them if they would. What shall we do with
the stock? I would not have it as a gift and double the amount
besides.
Yours,

ANTIETAM PAPER COMPANY. é'

(Exuisit “ B.”)

PitrspurGH, March 8, 1882.
Antietam Paper Co., Hagerstown.

| Dear Sir: Your favor of the 6th inst. to hand and noted. While
| I deeply deplore that your employés have taken that dreadful dis-
x ease, smallpox, and although cannot doubt your word, at the same
: time I would most emphatically say that I can prove beyond a
doubt, and in any court of justice, that in half a dozen to a dozen
paper mills to whom I have sold eye stock all along for years not
one of the hands took that dreadful disease, and furthermore that
dozens of my hands who have been working for me, some of them
for the past ten years, not one of them got infected with that dis-
ease, smallpox. Furthermore, you have [had] that stock
} 70 now 30 days, and within that 30 days I offered you twice
stock and book stock, and then bock stock and shavings, and
vou never answered, nor did vou mention anything about that dis-
: ease; also did you get book stock and shavings at the same time,
and you never mentioned whether you have used that stock or not.
The best way I see out of this is what stock you have used you will
please pay for and the balance please return.
Your early answer expected.
Yours truly, JOSEPH RENEDICT.

P.S.—If you want to return any stock and books and shavings
to Dabler, Mudge and Chapman, Baltimore, colors to C. P. Markle
& Son, West Newton, on B. & O. R. R., and blues here to me.

J. B.

Pirrspurncn, March 8, 1882

Dear Sirs: After writing my letter this morning I met Capt. C.
C. Markle, of the firm of C. P. Markle & Sons, and he save that for
25 years they had no case of smallpox in their mill, and for the last

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o2 J. A. DUSHANE AND J. W. STONEBRAKER Vs. JOSEPH BENEDICT.

fifteen years I have sold them rags; sold them some colors this
morning; sold them some in the last 30 days, and previous
71 to that, and no smallpox; sold to Martin & W. H. Nison
blues for the last two years every month, all I made up to
this day; have not heard about smallpox. Please make inquiries
of those parties, as it will not injure my sales any if you do ask of
them.
What have you to say about my rags now?
Yours truly, . JOSEPH BENEDICT.

Also James Peters, of this city, and Latrobe, Pa.
(Exuisit “C.”)
PittsBuRGH, March 20, 1882.

Antietam Paper Co. bought of Joseph Benedict, dealer in rags, iron,
metal, ete. The highest price paid for woolen rags. No. 48
Wylie ave.

1882.
A a i a eae ee re
Feb. 8th. hee OEE REDO ey ALTE DRI IE I ERE CRG ag ee

$815 03

Dear Sirs: Your favor of the 6th inst. was duly answered on the
Sth, and so you neither sent the money -or returned such rags as
you had not used I took the pleasure to-day to draw on you

72 for above amount, three days’ sight, which please protest,
and oblige,
Yours truly, JOSEPH BENEDICT.

(Exarsit “ No. 2.”)

HaGerstown, March 21st, 1882.
Mr. Benedict.

Dear Sir: Your draft will have to go back. I did not answer
your letter because I wanted, in the first place, to get at the bottom
of some reports, namely, that the women that assorted some of your
rags said * we saw the evidence of infected rags, and that sulphur
had been used in them. I believe every woman that had a bale of
your rags took the smallpox. This much we know positively about
it. What the women said comes from the doctor attending them.
Of course I have not been to see them, nor do I intend to go to
see them, but must wait until they get over it to get at the truth, or
at least get their statements direct. If this thing proves as re-
ported you have done us a great injustice, and we don't know where
the thing is going to end. It is just all we can do to keep our mill

going now, and the disease is #till spreading. In the next
73 place, the town council have laid an embargo on us and
won't allow any rags to be hauled to or from Hagerstown; so
we have to let your stock lie just as it is until this embargo is raised,

RE RAT Cie SERENE TS Re

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UNITED STATES.

- October Term, 1885.
| No. 345.

JOHN A. DUSHANE
and JOHN W. STONEBRAKER,

Plaintiffs in Error,

ohne he Sew Mam Rinne 2: een inpeatiatcaslinntyn. “Wy oniiat

A 8 A a BNE gs AE ct

: JOSEPH BENEDICT. |

PITTSBU BGK, PA.
Peacy F. Surra, Paiwren, 65 Virgie Alley.
ee

SUPREME COURT

——-OF THE—

UNITED STATES.

October Term, 1885.

o. 345.

JOHN A, DUSHANE
and JOHN W. STONEBRAKE

Plaintiffs in Error,

ag

JOSEPH BENEDICT.

Fw RAAF

STATEMENT OF THE CASE.

In the court below, this was an action brought by Joseph Benedict,
the defendant in error, against the plaintiffs in error, Jno. A. Dushane

and Jno. W. Stonebraker, partners under the firm of the Antietam °

Paper Company, for the contract price of certain rags they had bought
of him. They counterclaimed for damage sustained by them in their
business from smallpox infection brought into their paper-mill in these
rags. The questions debated in the court below and there decided
against the plaintiffs in error were :

1. Whether there was evidence from which the jury could legally
find that Benedict knew of the infected condition of the rags, or did
not take due care in collecting and shipping the rags to defendants.

2. Whether the damages could be recovered in an action,

3. Whether the evidence upon the subject of damages was sufficient
to submit to the jury.

4. The competency of certain offers made on behalf of the counter-
claimants, to prove the tort and the consequent emmnngge to them in
their business.

The Bill of Exceptions shows that early in February, 1882, Joseph
Benedict, the defendant in error, a Pittsburgh rag dealer, went to the
paper mill of the plaintiffs near Hagerstown, Md., and solicited from
them an order for the rags in question. after having offered them unsuc-
ceasfully to twelve different houses in Philadelphia, where it was well
known that smallpox was epidemic in the cities of Pittsburgh and
Allegheny.

Mr. Benedict represented that the rags he would furnish “were very
nice and clean, of his own packing, and would not require reassorting.”
The paper company were ignorant that smallpox was prevalent in
Pittsburgh, and Mr. Stonebraker was induced by the representations
made by Mr. Benedict, and by the low prices he named, to order “a
. sample lot of clean, nicely assorted” rags, together with certain paper
shavings, &c., of which there was need at the mill, and which Mr.
Benedict offered to supply if the company would take the rags.

The prices at which the rags were sold were considerably below the
rates then current at Pittsburgh. Mr. Benedict on crose-examination
admitted that he assured Mr. Stonebraker he was sellisg them for less
than he had paid for them. He went on to state in his testimony that
‘“*that was not true ; business men say thoee things.”

oo |

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_ STATEMENT OF THE CASE. 3

The rage were delivered at the mill about February 12, 1882, and
sixteen bales of them were immediately distributed among the hands in
the assorting room. These sixteen bales were the only portion of the
consignment that the company ever attempted to have assorted. Wit-
nesses who had tried to work with them testified that they emitted a
stench so sickening and over powering that even these r»g-pickers were
compelled to desist and seek the open air; that there was blood-stained
bed clothing found in them, and many whole garments “as good as
new,” “too good to be classed as rags,” etc.; that the bales contained
disinfectants such as sulphur and carbolic acid in litsle sacks; that the
fumes when the bales were opened caused the assorters to sneeze and
cough; that about twelve days after these bales were opened, smallpox
broke out among those who had worked with the rags, resulting in the
death of six persons and the disabling of so many of the employees that
the output of the mill was reduced almost to nothing while the disease
raged, and until operatives could be induced to re-enter the establish-
ment. It was also in evidence that a sickening odor is characteristic
of a severe type of smallpox, and that there was uo other source of in-
fection about the mill.

Being asked on cross-examination as to the truth of the representa-
tion he bad made to Mr. Stonebraker that the rags were of his own
packing, Mr. Benedict asseverated “that they were assorted in his estab-
lishment and were baled under his special instructions ;” also that he
was accustomed to buy rags from Moritz Streng, Ignatz Uttenweiler,
H. J. Diehl, B. Hirch and John Wirth; that their places of business
were in the 3rd and 7th wards, Allegheny—districts where the epidem-
ic was most prevalent. He was unabie to name any others from whom
he had bought rags, for he bought ‘‘from all or any parties who offered
him merchantable rags, not knowing where they were collected.”

“To the best of his knowledge and belief” there were no disinfectants in
these rags. Being asked whether he did not offer them as clean, nicely
assorted print and book rags, he said “I think the word clean was not
used.”

Q. So you thought you were entitled to send filthy ones? A. “To
the best of my knowledge and belief they were clean.”

He admitted the prevalence of smallpox in the winter of 1882, but
asserted that theeg were part of a stock of rags that had lain a year or
upwards in a warehouse distant from his place of business. Thereupon
we showed that smallpox was more severe and more prevalent in 1880-
81 than io "81-82; that smallpox infection may be retained in bales of

4 | STATEMENT OF THE CASE.

rags much longer than a year, and that there could be no more certain
way of communicating the disease.
We proved also that within the year during which he said this large
quantity of rags lay in store, the market price rose very high and declined.
Being pressed to give an account of the disposition made of the re-
mainder of this stock, Mr. Benedict said they had been sold to C. P.

Markle & Son, a firm who manufactured only coarse paper without as- -

sorting the rags. It was to this firm that he directed the plaintiffs in
error to re-ship the rags after he had been apprised of the mischief
they had wrought at Hagerstown.

With this story that the rags were a year old, compare Benedict’s
declaration ante tem motam in his letter advising the company of the
shipment of some of the rags: “I may not have quite enough blues
to-morrow, but will send them then in a few days.” Compare also his
second letter of March 8, 1882 (Exhibit B): “Sold to Martin & W.
H. Nixon blues for the last two years every month all I made.

The rags were shipped February 7 and 8, 1882, but did not arrive
at the mill until the 12th. There was, of course, the usual period of in-
cubation (twelve days) before the disease declared itself—the first visits
of the physician being made February 25. (Record Marg., p.52.) Mr.
Stonebraker, who had charge of the business at Hagerstown, was fully
occupied while the pestilence was at its height in caring for the sick
and endeavoring to keep the mill in operation as far as possible. On
March 6, 1882, he sat down and wrote Mr. Benedict: ‘‘It is proven
beyond a doubt that the rags you sent us are fuli of smallpox.
“* * * The very fact that you undertook to disinfect the rags with
‘‘sulphur is pretty good evidence that you knew they were infected.
‘*This is a pretty serious matter. Wedon’t know where it may end.
* * * * What shall we do with the stock?” —

To this terse accusation Mr. Benedict ‘‘Would most emphati-
‘‘cally say that I can prove beyond a doubt, in any court of jus-
‘tice, that in half a dozen to a dozen paper mills to whom I have sold
‘‘paper stock all along for years, not one of the hands took that dread-
‘‘ful disease; and furthermore, that dozens of my hands who have
‘‘been working for me, some of them for the past ten years, not one of
‘them got infected with that disease—smallpox.”

By a letter of the same date he enforces this defense, as follows:
‘Captain Markle * * says that for 25 years they had no case of
‘smallpox in their mill and for the last 15 years I have sold them
‘‘eags: sold them some colors this morning ; sold them some in the last

STATEMENT OE THE CASE. 5

‘30 days and previous to that, and no small pox ; sold to Martin & W.

‘*H. Nixon for the last two years, every month, all I made. Up to this

‘‘day. have not heard about smal!pox. Please make inquiries of those

‘‘parties as it will not injure my sales any. What have you to say about

‘‘my rags now? Yours truly, JOSEPH BENEDICT.
‘‘Also James Peters, of this city and Latrobe, Pa.’

March 20, 1882, Mr. Benedict writes: “Your favor of the 6th was
duly answered on the 8th, and as you neither sent the money or re-
turned such rags as you had not used. [ took the pleasure to day to
draw on you for above amount, &c.”

Mr. Stonebraker answered March 21: ‘Your draft will have to go
back. I did not answer your letter because I wanted in the first place
to get at the bottom of some reports that the assorters saw evidence of
infected rags and that sulphur had been used inthem. * * = *

It is just all we can do to keep our mill going now and the disease is
still spreadiag. The town council have laid an embargo on us and

.g won't allow any rags to be hauled to or from Hagerstown, so we have
"to let your stock lie just as it is until this embargo is raised, and then I
don’t know whether they will allow this particular lot of rags to go
through the town.” The remainder of this letter asked directions as
to the infected rags on hand, and cbjected to the direction previously
given to ship them to Markles’ because the railroad company would
not be allowed to receive them, and because the Markles had not signi-
fied their willingness to take infected rags. To this letter there was no
reply. We heard no more from Benedict until we were notified a month
afterwards of the foreign attachment with which this action was begun.

The remainder of the infected rags lay in a stock house attached to
the mill until some months after the suit was brought, when the fore-
man, without the knowledge of his employers, and for the purpose of
abating what he regarded as a public nuisance, had them run through
the cutter, without attempting to assort them, and tien boiled them
with lime and soda ash for 12 hovrs in high pressure steam.

Mr. Stonebraker, the manager of the mill, testified that this disaster
happened at the season when, owing tothe abundant supply of water, the
output of the paper-mill should be the greatest; that the mill was not
entirely stopped while the pestilence prevailed, but that the production
was greatly curtailed ; the shortage being upwards of 60,000 Ilb. of the
finished product; that it cost 8 cents per hundred pounds extra to get
rags delivered at the mill; that extra wages had to be paid to opera-
tives; that customers refused to buy paper ; that expense was incurred

pe iar

6 SPECIFICATION OF ERRORS.

in attending upon, providing for and curing employees stricken with the
disease, and that a very profitable country trade had been lost. The
amount of money expended was fixed by the depositions, but as the
other items of actual damage could, in the nature of the case, only be
approximately estimated, we asked Mr. Stonebraker for such an esti-
mate, but upon objection, the testimony was excluded and an exception
sealed. We insisted in the court below, and we respectfully submit
here, that this is a proper case for vindictive damages.

Assorters who had handled the rags and had the disease expressed
the belief that the rags communicated it. Objection was made that
this, being mere opinion, was not evidence, and the court excluded this
part of the depositions.

A medical expert having testified that there could be no more certain
mode of communicating smallpox than by means of infected bales of
rags, we proposed in corroboration of this opinion, to show particular
instances in which the infection had been so communicated. Offer
overruled ; exception.

SPECIFICATION OF ERRORS.

I.—The Court erred in the following portion of the charge, viz :—
“The evidence would not justify the court in submitting to the jury
the question of bad faith.”

II.—Also in the following portion of the charge: ‘‘I am of the
opinion, and so charge you, that the evidence in the case is not such
as would enable the jury to ascertain the amount of damages, if any,
which the defendant sustained.”

II1.—Also in the following part of the charge: The Court instructs
the jury to find a verdict for the plaintiff for the amount of his claim.

IV.—There was error in rejecting our offer,-after evidence had been
given of the amount of shortage in the output of the mill; extra cost
of supplies for the mill; loss of country trade; refusal of customers
to take paper, and expenditures for disabled employes, to ask John W.
Stonebaker, the manager of the mill, who had testified to these facts,
what he estimated the amount of defendants’ damages to be.

V.—A medical expert having testified that there could be no more
certain mode of spreading small-pox thar by means of infected bales
of rags, there was error iu rejecting the offer to prove in corroboration
of this opinion that the childrer of John Wirth, 2 rag dealer, had
taken the small-pox from playing with infected rags.

-
er a
—_——

ee

_ them, to full proof of the asienter.

ARGUMENT. 7

VI.—There was error in excluding testimony of assorters (who had
handled the Pittsburgh rags and had afterwards bad small-pox, and
who had testified as to the appearance of the rags and their effect upon
the senses) that the witnesses believed they caught the small-pox from
the rags in question.

A. H. CLARKE,
WM. McCRUM,
Counsel for Plaintiffs in Error.

ARGUMENT.

‘‘Torts are infinitely various, not limited or confined; for there is
‘nothing in nature but may he an instrument of mischief.” Pratt
(Lorp Campen)C. J. in Chapman vs. Pickersgill. 2 Wis. 145.

First Question: Were these rags sold and seut by plaintiff to de-
fendants with intent to deceive, cheat and defraud them, as alleged in
our affidavit of counterclaim? (Record marginal p. 45).

It is, of course, obvious that Benedict did not prepare these rags with
the deliberate purpose of murdering any one, but in his greed for illicit
gain, he laid this flattering unction to his soul:—that the disinfection
of the garments would prevent ali disagreeable consequences to him
and to the defendants alike.

When we proved that the rags were packed in his establishment un-
der his personal supervision (Record, marginal p. 47), and adduced
evidence that they were infected and by reason thereof defendants were
injured (Record, marginal pp. 53 eq., 59 sq.), the presumption de bono
was removed, and it was incumbent upon him to prove, if he could,
that he was not culpable.

When a thing which is ordinarily innocuous is found to have done
mischief, there is a presumption that he who prepared, made or bad
control of it is in fault.

Transportation Oo. vs. Donner, 11 Wall. 134.
Rose ve. Trans. Co., 13 Rep’r 421.

Rintoul vs. N. Y. Central, &c., 17 Fed..Rep. 907.
Shearman & Redf. Negl. §71, 72.

Byrne vs. Boadle, 33 L. J. Exch. 13.

See a variety of cases collected and commented upon in 2 Thompson
on Negl., 1220 oq. particularly foot uf pp. 1233 and 1235.

But our case rests on stronger proofs. The evidence of an effort to
fumigate and otherwise disinfect the rags (Record, marg. pp. 54 w 61)
amounted, in connection with Benedict's confession that he packed

* ee ee Te ee ee Nee ee ee ee ee ee ee

ARGUMENT.

In a civil issue there is no legal presumption against the fact of the-

commission of an act from its being a crime.
Lapsley vs. Grierson, 1 H. L. Cas. 498.
There is no genera! presumption of non-peccability in civil issues
Wharton, Evidence, §1245.

It will appear from the tenor of the remarks made in delivering the
instruction to the jury (Record p. 75, marginal), that the enormity of
the crime charged upon Mr. Benedict so shocked the mind of the
learned judge that the evidence did not make the same impression upon
him as it would and did make upon less charitable censors, to whom the
motive, auri sacra fames, seeméd an adequate and probable one to as-

‘sign for the act.

It is submitted that if the criminal character of the act is relevant
at all, it is not to be made a counterweight against positive proofs, in the
decision of the preliminary legal question: whether the evidence would
support a verdict. At most it raises a question of credibility, and this,
of course, is exclusively fr the jury. It has always been held that the
criminality of the act charged in a civil action does not change the rule
that private controversies are to be judged by the preponderance of
evidence.

Wharton Evidence, §1246.

Payne, et al. vz. Solomon, 14 Bank. Reg. pp. 172-3.
Young vs. Makepeace, 103 Mass., 53.

Roberge vs. Burnham, 124 id. 278.

Even if there was no such damning proof of guilt as is afforded by
the confession of the baling of the rags and the use of disinfectants,
there would still be enough in the evidence brought up in the Bill of
Exceptions to carry the question of deceit and fraud to the jury.

‘If a man affirms that to be true within his own knowledge which
‘he does not kuow to be true, this fails within the definition of a legal
‘‘fraud:” Lord Kenyon in : ,

Haycraft vs. Oreasy,2 East 103.
Titchfield vs. Hutchinson, 117 Mass. 195.

Benedict’s not answering Stonebraker’s accusation that he knew the

rags were infected, (Record p. 69), and his attempts subsequently to
fabricate a defense (Record p. 47) are persuasive of his guilt. His
endeavor to have the rags sent to Markles’ after he had been told that
they were infected, shows what his notions of legal and moral duty were.
The Markles and their employees were to be the next victims of his
cupidity, and his first victims were to be his tools.

a

| a

ARGUMENT. 9

The defense which he put forward while he was inops consilii was,
not a denial of the charge, not an indignant vindication of his conduct
and character, but an emphatic assertion that he had never been de-
tected before in his nefarious practices (Record marginal pp. 68-70).

SEcoND: For the sake of argument, let us suppose Benedict igno-
rant that these particular rags were infected; Jet us assume that he
had been able to persuade himself that they were harmless, in spite of
his knowledge of the reckless way in which they had been collected ; it
is stil] submitted that he would have been guilty of culpable negligence
in delivering them under a contract for clean, well assorted rags, with-
out disclosing the fact (of which he must have presumed the vendees to
be ignorant), that en infectious disease, dangerous to Human Life, was
raging in the districts where they were collected.

‘*The common law has a peculiar regard for human life, and for this
‘‘reason exacts a greater degree of care when life is at peril than in
‘‘relation to any mere matter of property.”

Wharton Negl. §24.
Shearman & Redf. Neg]. §54 end.

Ordinary care must be measured by the character and risks and ex-
posures of the business; and the degree required is hig xer when life or °
limb is endangered.

Cayzer vs. Taylor, 10 Gray 274.

Unueual danger calls for unusual precaution.

Klein vs. Jewett, 26 N. J. Eq. 474.

Great precautions are enjoined by all civilized governments against
the extraordinary peril to Human Life and to the Public Health where
malignant epidemics are raging, or when the introduction of them is
apprehended.

The State of Maryland has provided that when the Governor has
‘‘strong grounds to apprehend that there is danger of any malignant
‘‘contagious disease being introduced into this State, * * he may
‘‘compel any veseel to ride quarautine, and may forbid all intercourse
‘‘or communication, either by land or water, between this State and
‘‘the place affected, or lay such intercourse under such regulations, etc.”
Code of 1878, Art. 6, §18, p. 63. And with special reference to small-
pox, it has made vaccination compuleory, imposing penalties upon ps-
rents for neglecting it, and spon physicians for refusiug to perform it,
or for performing it improperly.

Ibidem Art. 25, §§ 10 ag.
The Municipal Corporation Act of Pennsylvania [1874] authorizes

10 ARGUMENT.

local boards to take stringent measures for the isolation of infected per-
sons in pest-housea, the destruction of dangerous substances, and the
prohibition or regulation of dangerous pursuits.

Purdon’s Dig. 1235 pl. 148, 149. :

The general Health Laws for the port of Philadelphia prohibit the
introduction of persons, goods, wares, cl thing, or bedding coming from
places where any malignant or contagious disease prevails, unless under
the regulation and control of the Board of Health. These laws de-
nounce severe penalties, including forfeiture of the goods, etc.

Purdon’s Dig. 1552 pl. 89, 90.

Congress has provided regulations upon this subject, and has recog-

nized and affirmed the validity of the above cited State enactments.
Suppl. to R. 8. 313, 485.

The Sundry Civil Expenses Appropriation Acts of 1882 and 1883,
each authorized the President to expend $100,000. In aid of state and
local boards or otherwise, in preventing and suppressing epidemic dis-
eases. The sum of $50,000 was appropriated for the National Board
of Health, and its duties were confined to cholera, smgll poz, and yellow

fever. The first-mentioned appropriations were continued by the acts

of 1884 and 1885.
22 St. at Large, 315, 413.
23 St. at Large, 207, 496.

In a well considered New York case, defendant was held to be justi-
fied by the common law in destroying a filthy tenement belonging te
plaintiff.

Meeker vs. Van Rennselaer, 15 Wendell 397.
Wood on Nuisances, §736 sq.

The cases of negligent selling, etc. of dangerous goods are collected in

1 Thompson on Neg). 224 sq.

All these cases insist upon a higher degree of care and a more ex-
tended liability (including even remote effects) than where the negli-
gence does not obviously imperil human life.

Adopting the language of Rueaiss, C. J. at page 229, of Thomp-
son’s work, we may say that Benedict’s contract to deliver clean, nicely
assorted rags of his own packing was a guaranty to his vendees that the
rage ‘‘had passed through some process under his hands which would
‘“‘give him personal knowledge of their true quality.”

In Boston & Albany R. R. Co. vs. Shanly, 107 Mass. 568, the respect-
ive shippers of two articles which were dangerous when in eontact with
each other, were both leld liable for damage resulting from the carrier's

ARGUMENT. 11

placing them in contact—the shippers not having given full notice of
the character of the goods.

One of the articles was described by its name, but as it was a new
substance, this was not sufficient notice.

In Wellington vs. Downer Kerosene Co., 104 Mass. 64, the defendant
sold naphtha to a retailer, knowing that it would be ~esold for use in a
house-lamp and that such use was dangerous. He was held iiable both
at common law and under a statute on the subject.

In Minor vs. Sharon, 112 Mass. 477, defendant was held liable for
letting a tenement where small pox had been to plaintiff, without tell-
ing of the danger. See a similar case in 60 N. Y. 229.

In Span vs. Ely, 8 Hun. 256, the defendant, a physician, employed
plaintiff to whitewash a room where they both knew there had been
small pox, but defendant assured the plaintiff it had boeun thoroughly
disinfected. In point of fact the disinfection had been imperfect, and
defendant was held liable because of the assurance he had given plain-
tiff.

The considerations which prevailed against us in the court below
were strongly urged for the defendants in the last-cited casés, viz:
‘‘that the connection between the origin of the disease and the disease
‘‘iteelf is not a matter cognizable by our senses,” and ‘‘the source of the
‘‘contagion and the manner of its communication is too uncertain and
unsusceptible of proof to form the foundation for an action.” They are
well answered by Morton J.

The case in 104 Mass. 64, refers with approval to George ve. Skiv-
ington L. R. 5 Exch. 1, where there was yo acienter, but the defendant,
an apothecary, was held liable for damage caused by a hair-wash which
he represented to be fit and safe. Comparing this case with Langridge
vs. Levy, 2 M. & W. 519 (sale of a gun known to be defective, but war-
ranted to be safe for use of the vendee and his son, the plaintiff ) CLeas-
BY, B. said: ‘‘Substitute the word negligence for fraud and the analogy
is complete.”

The case at bar is stronger than those cited: for Benedict expressly
contracted with the persons injured to furnish clean, nicely assorted
rags that would not require reassorting.

Wharton on Negl. §435, 437.

It Mr. Benedict chose to buy rags in these infected districts ‘‘from
‘‘gll or any persors offering him merchantable rags, not knowing where
‘‘they were collected” (Record marginal p. 47), we think it clear that
he at least owed the duty to his vendees of putting them on their guard
against the fearful risk they incurred.

12 ARGUMENT.

He not only omitted this duty but lulled all ‘possible suspicion by
falsely promising clean, well-assorted rags.

When the representation expressly or impliedly forms part of the
contract—as in our case, where the rags were not only described by the
vendor as clean, but were shipped under an order calling for clean,
nicely assorted rags, and were thereby represented and warranted to be
such—it is not necessary to allege moral fraud: and if alleged, it is
not necessary to prove it. 2Sm. L. Cas. *170.

Natl Exch. Co. vs. Drew, 2 Macq. H. L. 103, 144.

Tuirp: As to the damages. There is abundant and unimpeachable |
testimony to the fact that the rags sold under these specious promises
turned out to be a huddle of whole garments and filthy bed-clothing
reeking with small pox, and that he had endeavored to disinfect them.

In consequence of this false representation, made lucri causa, defend-
ants were involved in heavy pecuniary loss. Their employes were
stricken with the contagion, the operations of their mill were almost
entirely suspended and their good name was compromised ; for this
dreadfyl calamity—although it was the fraud practiced upon them by
Benedict that alone made it possible—was presumed by the public and
by their customers to have been caused by their negligence. Such a
presumption would naturally arise in the mind of any one not informed
of the deception.

And this public reprobation was the more galling aud injurious that
they were compelled to seek redress from the real criminal in a place
so remote that a vindication of their conduct ‘here could scarcely
correct the prejudice his wanton and diabolical act had raised against
them at home.

In Day vs. Woodworth, 13 Howard 371, Mr Justice Grier, in de—-
livering the opinion of this court, says:—‘‘It is a well-established
principle of the Common Law that in all a-:tions on the case for
torts, a jury may inflict what are called exemplary, punitive or vin—
dictive damages upon a defendant, having in view the epormity of
his offence rather than the measure of compensation to the plaintiff.”

‘‘Where the injury is wanton or malicious, a jury may inflict vin-
dictive or exemplary damages, not to recompense the plaintiff, but to
punish the defendant.""—Mr Justice Grier in Seymour v. McCormick
16. How. 489.

Mr. Justice CAMPBELL, speaking fur this court in PAsia. cfc. R. R.
Co. vs. Quigley, 21 How. 214, says, ‘‘The word [malice] implies that
the act complained of was covceived in the spirit of mischief, or of.
criminal indifference to civil obigations.”

ARGUMENT.

These principles are applied in Berry vs. Fletcher, 1 Diil. 71.
Milwaukee & C. R. R. Co. vs. Arms, 1 Otto, 489.

‘A manufacturer who sells his product as an illuminating oil, bearing
“the high and safe fire test of 110°, when in fact he knows that ite fire
“‘seat will not exceed 64 or 65° * * can plead nothing in defense of
“this wilful, terrible wrong done to a confiding community. He bears
“within him a heart regardless of social duty, evidencing malice (in its
“legal sense) in a high degree. |

AGNEw C. J. in Elkins, Bly & Co. v. McKean.. 79 Pa.
St. 493-503.

In this case Judge Agnew intimaies (p. 500) that the question
might properly have been neg/igence in putting the oil on the market.
WiuiaMs J. thought there was evidence of knowledge.

In an action for wilful negligence (recklessness), the jury may take
int» consideration the defendant’s motives, and if the wrong is accom-
panied with contempt of plaintifl’s rights and convenience, they may
give exemplary damages.—Emb/en v. Myers,6 H. & N. 54; 30 L. J.

Exch 71. See American editor’s note.
Bell v. Midland Ry. Co. 10 C.B. N.S. 287.
Field on Damages, §54, 57 id. §70-73; id. 84

In Hawes v. Knowles 114 Mass. 518, Chief Justice Gray says, “In
an action for a wilful injury, the manner and manifest motive of the
wrongful act may be given in evidence as affecting the question of
damages ; for when the mere physical injury is the same it may be
more aggravated in its effects upon the mind, if it is done in wanton
disregard of the rights and feelings of the plaintiff than if it is the
result of mere carelessness.

In Meagher v. Driscoll 99 Mass. 281 (trespass q. cl. fr. againat
superintendent of cemetery), damages were allowed for iujury to
plaintiff's feelings, defendant having proceeded in wilful disregard or
careless ignorance of plaintiff's rights io a burial Jot.

Even in assumpsit fraud may be shown in aggravation, though not
as the cause of action ; and plaintiff may recover when he shows that
the promise declared on was a fraud, and may aver and prove that it
was made deceitfully and fraudulently.

1 Smith’s Lead Cas., 324 * 271.

Contemptuous and iveulting conduct in the breach of a contract may
be shgwa to aggravate the damages.

Coppin v. Braithwaite, 8 Jur. 875.

14 ARGUMENT.

In replevin and trover, exemplary damages may be recovered for

more than ordinary wrong in the taking or detention.
McDonald v. Setf, 11 Pa. St. 386.
Craig v. Kline, 65 id. 399.

Damages were recovered for the wanton and malicious exercise of a
right to the injury of one whose rights were conceded to be subordinate,
in

Cobb v Bennett, 75 Pa. St. 326.
See cases proper for the infliction of punitive damages referred to in
Wood on Nuisances, §868 end.

The court should be liberal in the admission of evidence on the
question of damages in av action in which there is some evidence of
malice, with a view to a proper submission of it after hearing the
whole case.

Douty v. Bird, 60 Pa. St. 48.

In McAfee vs. Crofford, 13 How. 447, the seizing and carrying off
of plaintiff's slaves by defendants prevented their saving wood, a fluod
happening to sweep it away ; and left crops ungarded so that the cattle
of neighbors destroyed them? eavkeugtr plaintiff had nut feuced accord-
ing to law, Mr. Justice McLean, delivering the opinion of the court,
said, “The trespass was of an aggravated nature * * It gives a
high claim to the injured party for exemplary damages,” and in-
structions were approved which submitted the above items of
damage to the jury, and directed them to to consider all the circum-
stances.

In Dayton vs. Pease, 4 Ohio N.S. 80 (a case of mere negligence),
it was ruled that a millowner may recover for partial obstruction of
water power, and for temporary diversion by himself, for the purpose
of removing the obstruction.

The increased difficulty of ascertaining the damage in consequence
of plaintiff’ having be2n able to keep the mill in operation to some
extent, was supposed in the court below to disentitle them to any dam-
ages whatever. But the authorities show that we were bound to do what
was possible to lessen the injury.

Pa. R. R. Co. vs. Titusville, etc., 71 Pa. St. 356.

In Fa. R. R. Co. vs. Dale, 76 Pa. St. 47 (a case of mere negligence)
prospective profits from an established business were recovered.

And see various cases mentioned in Wood on N uisances, §876, $873,
(2d edition).

Fourts: As to the offer to elicit the manager’s opinion of the ag-
gregate loss, we refer to White Deer Cr. Impt. Co. vs. Sassaman, 67 Pa.

ARGUMENT. 15

St. 421, where Anew, J., said: ‘‘There is no error as to the opinion
‘‘of the witness upon the amount or value of the damages. As to un-
‘‘liquidated damages—the result of an injury complicated in its circum-
‘‘stances—a witness acquainted personally with all the facts must be
‘‘permitted to give his opinion. Such matters are difficult of descrip-
‘‘tion, very few men being gifted with that power of description of com-
‘‘plex subjects which can picture them to the minds of others” He
cited several cases to show that the opinions of persons specially in-
formed on the subject are competent. The witness may be cross-exam-
ined on the details. The rule contended for saves time, for the opin-
ion may be satisfactory to the opposite party.

Firta: Beatty vs. Gilmore, 16 Pa. St, 463: A witness who has
examined the thing which caused the injury may give his opinion that
it was dangerous. |

It seems to be proper to elicit the belief of a witness as to the exist-
ence of a fact in issue where his opinion is the result of inductions from
an infinite variety of details that are within the witness’s knowledge
and can not be perfectly described to the jury ; as in questions of sden-
tity, genuineness of writings, insanity, state of the affections, or other men-
tal conditions. *

Taylor on Evidence, $1416.
Best's Pr. of Ev. $517 (Am. Ed. 1883).

Sixt: A recognized exception to the rule which excludes collateral
facts is where the question is a matter of science, and where the facts
tend to illustrate or corroberate or to discredit the opinions of scientific
witnesses: ¢ g. Engineers having given their cpinion as to the effect

of a sea-wall in causing the choking up of a harbor, proof that other
harbors on the same coast, where there were no embankments had be-

gun to be choked up at the aame time was admitted.
Folkes vs. Chadd, 3 Doug. 157.
Best's Pr. of Ev. pp. 487-8, (Am. Editor's note).
Respectfully submitted,
A. H. CLARKE,
W. MACRUM,
Counsel for Plaintiffs in Error.

OF THE UNITED STA

ctober Term, 1886.

ate?

PET AEN NEY SN ES PRR Oe
te eee ee ee

ad

stm

Joum A, DusHANE AND ANOTHER,
Plaintiffs in Error, Defendants below,

Owe

JosrErH BeEenepicr.

LOA AED OR LE OE SSO RELL EIR LS SS LO INE OSE UGE ALN AD MATE se

|
|
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by the fraud and wrong of Foseph Benedict in the
transaction upon which he grounds his
claive,
And a short account of the law and practice in Pennsylvania
| with reference to the

IGHT OF SET-OFF.

of
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H

ee ee
tO

A th OE i A a,

ee oe

amp anne

IN THE

SUPREME COURT OF THE UNITED STATES

No. 937 October Term, 1886.

eee er ree enorme An —eeee

JoHN W. STONEBRAKER AND JNO. A. DuSHANE, .Partners
as the Antietam Paper Company, Plaintiffs in Error,
v8.
JOSEPH BENEDICT.

Writ of Error tothe Circuit Court of the’United States for the
Western District of Pennsylvanta.

ee

ARGUED DEcEMBER 14-15, 1886.

~~ - —_

ADDITIONAL BRIEF EX PARTE PLAINTIFFS IN
ERROR,
handed up by leave of Court,
To prove that the demand of plaintiffs in error for unliquidated
damages, arising out of the transaction upon which is grounded

the claim of Joseph Benedict in his action in the Circuit Court,
may be litigated in said action by way of set-off or counter-claim.

1. In the course of the oral argument, I repeatedly asserted
(and I still maintain) that the subject-matter of our counter-claim

2 Stonebraker & Dushane vs. Benedict.

is substantially a tort. As stated in our brief opposing the motion
to dismiss, it includes the breach of an express warranty embodied
in the executory contract made at Hagerstown; but it also

amounts to a breach of Benedict’s duty to his neighbors, abstracted °

from any merely contractual duty or obligation. In other words,
if we supposed there had been no such express warranty, and sup-
posed further that the evidence of guilty knowledge—or its
equivalent in a private wrong, blind and fraudulent recklessness
of consequences—was sufficient to carry the case before the jury
(and I believe that the Court on perusing our uncontradicted
statement of the case, or the bill of exceptions, will be compelled
to adhere to the latter supposition)—supposing, I say, these two
things: then our cause of action would necessarily be in tort, and if
we were to bring a common law action, its form must be case. But
our present action is founded upon the defalcation acts, and these
statutes do not prescribe any form of action known to the common
law. They confer a right in terms the most general and compre-
hensive, and leave the courts to frame or sanction the appropriate
declaration of the cause of action. The plaint must be made
according to the nature of the grievance, and in conformity with
the substantial rules of good pleading. In this point of view, the
statutes may be regarded as analogous to the Stat. of Westm., the
II, c. 24 (Roberts’ Dig. of British Statutes, 157, 158), which
conferred upon the clerks of the chancery the power (or rather
imposed upon them the duty) of framing writs in consimili casu,
according to the nature of the “ consimilar” case.

In Pennsylvania, beside this statute of Edward I., there is an
Act which is of similar but much wider scope. The Act of June 16,
1836, § 3(Pamph. Laws, 786), makes it “ the duty of the Supreme
Court at their sessions in banc, from time to time to devise and
establish by rule of court such new writs and forms of proceed-
ings as in their opinion shall be necessary or convenient to the full,
direct and uniform execution of the powers and jurisdiction
possessed by common pleas * * courts.” [N. B.—It is the com-
mon pleas courts that have jurisdiction of such controversies as
the claim and counter-claim in this cause. ]

The succeeding section (4) is a proviso “that nothing herein

Eee
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es

Additional Brief. 3

emer on ee oe en ee eee ee ee —

contained shall be deemed to authorize the Supreme Court toenlarge,
abridge or alter the jurisdiction of any of the courts, or to impair
the right of trial by jury, or to dispense with, or to supply the
use of, any form of proceeding which shall be made necessary by
any Act of Assembly.”

‘Section 5. Whenever the said court shall devise and establish
any new writ or form as aforesaid * * * they shall cause notice
thereof to be given to the courts, or to the president judges of the
courts, for which such writ, form or rule shall be made or ap-
pointed, and also to the Governor, for the information of the
Legislature at their next session.”

Section 6 points out the manner of promulgating RULES as
contradistinguished from writs and forms, which are devised as
occasion arises, and therefore do not need to be promulged.

Thus we see a duty prescribed by the supreme power in the
State; and it is to be presumed that the body upon which the duty
is imposed, being a co-ordinate part of the Government, has in all
cases performed it. It must also be presumed-that the practice
of the United States Circuit Court conforms “as near as may be to
the practice, pleadings and forms and modes of procedure in like
Now, it is impossible that the Su-

,

causes in the State courts.’
preme Court of Pennsylvania should undertake to impose any
particular form of procedure on a court not inferior to it; a court
of an independent sovereign; so that the only way in which a
particular form of procedure within this statute can become the
practice in the Circuit Court is by imitation or express adoption ;
either mode being a sufficient compliance with R. 8S. § 914.

On perusing the fifth section of the Act of 1836 supra, it will
be found that the Supreme Court may prescribe different modes
of procedure for the different common pleas courts in the
several counties; the uniformity spoken of in section 3 being an
uniformity in the course of the individual courts to which the
Supreme Court may address its mandates. In this state of affairs
the Circuit Court might elect to conform either to the practice in
Allegheny county or the practice in Philadelphia county, ete., ete.
I presume the learned Justice of the third circuit may be appealed
to upon the question whether the practice of the Circuit Court in

. ag SL eo ee LES COL GENE) IGE ESAS ys e ey ed ee 2? pdms d ‘ » eS ee
rm. 2 Paes a 2 ? dso HG ST» a tie Pris : 7 , hls . ; yen
ssthedudens ide * ‘ , , aR Peay ee oe asian, “ae
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2 i ahs Kc.
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4 Stonebraker & Dushane vs. Benedict.

the Western District of Pennsylvania does not conform substan-
tially to the practice of the Allegheny county courts.

Having then, in the supreme tribunal of the State, a power to.
prescribe, as well as the ordinary power to supervise, procedure,
the presumption is strong that a court of common pleas which
allows to be filed of record by one of its attorneys, as part of the
pleadings in the cause, an affidavit such as we filed October 14,
1882, is not exceeding its jurisdiction. When the adverse party
traverses the allegations of that affidavit and issue is joined, the
presumption is strengthened omnia rite esse acta. And when the
cause is removed into the Federal court and tried on the merits
without objection, we have another great make-weight in the pre-
sumption that that court has adopted the practice of the Allegheny
county or some other court, to which it has been dul y prescribed.

It is supererogatory to inquire whether in point of fact the Su-
preme Court has ever expressly exercised the powers conferred by
the Act. It has the power to correct if what the inferior court
does is erroneous, and the want of correction argues approval.
Here we have a case precisely analogous to the beneficial fiction
whereby the expense and delay of issuing original writs from the
chancery were avoided by proceeding upon the mere supposition
or pretence that that “royal warrant to the justices to proceed
to the determination of the cause” had been issued.

2. In asserting that Benedict’s act amounted, independently
of any contractual relation or duty, to a breach of his duty sic uti
suo ut alienum non laederet, I did not at all intend to admit away
our right to submit the following argument, which is shadowed
forth in both the former briefs: Suppose that what has been said
before fails to convince the Conrt that it is competent in an action
on a contract, to counter-claim for a tortious act connected with
the contract, but not constituting a breach of any of its terms;
still we have the right to take advantage of the technical rule of.
pleading alluded to by Mr. Justice Gray in the course of the argu-
ment, to wit: that in an action for breach of warranty the pleader
has his election (whether the warranty includes a false and
fraudulent representation, as in the case now sub judice, or is merely
a promise of indemnity) to frame his narr. either in assumpsit

Additional Brief.

or in case. His election does not affect the measure of damages ;
that is fixed by the circumstances of the case, not by the mere
form of the action. In an action of assumpsit for breach of
warranty, actual fraud and deceit may be laid and proved in
aggravation of damages, as may willful wrong. or gross fraud, or
outrageous or contemptuous treatment, in assumpsit against a
carrier.

Now, our affidavit of counter-claim is more nearly a declara-
tion in assumpsit than a declaration in case. It states the contract,
and particularly the express warranty that the rags were “ clean,
nicely assorted print and book rags.” It then states the breach ;
and the scienter is averred after the allegations of special damages.
Evidently it is laid merely as aggravation.

[See Record marginal, p. 43.]

3. It is beyond doubt that some of the items of damage alleged
and proved are within the rule of Jaw on this subject of set-off,
even as laid down by the opposite counsel, e. g. the $200 in money
expended for the support of employees disabled by the disease.
[It may here be remarked, that the assumption made by the
learned counsel on page 11 of his brief, that this was “an act of
charity,” ete. is entirely gratis. He is no more warranted in
imputing charitable motives to Mr. Stonebraker, without
evidence, than motives of another kind. The motive of the
act is utterly immaterial, though [ admit that if it had been
a mere private charity of Mr. Stonebraker, the firm could
not include it in the damages. The question is, was it
an act rendered reasonably necessary by Benedict’s wrongfui
conduct? If the enlightened selfishness of these mill-owners told
them that by leaving their emplovees to perish with want, in con-
sequence of a disease with which they were stricken in the mill,
they would probably involve themselves in greater loss, it was
obviously wise policy to spend this moderate sum. The evidence
is, that the money so spent was the firm’s money, and there i« no
evidence that Stonebraker’s partner expressly assented to the ont-
lay, either as a charity or otherwise. On the contrary it was
to the effect that he lived in Baltimore and knew nothing of
the details of the management. Convinced by these consider-
ations the learned Judge finally admitted proof of this item. |

Stonebraker & Dushane vs. Benedict.

We are entitled (it is conceded or proved) to set off at least this
one item of our damages. If we use our right, what becomes of
the other and larger items, and of the one we most insist on, viz.:
some solatium for outraged feelings, some measure of punishment to *
this sordid criminal? If the Court struck out these because of a
merely formal objection not founded on anything in the statutes,
not warranted or countenanced by any decision or dictum, could
we reccver them in a fresh action? ‘That deeply learned and
painstaking Judge, the late George Sharswood, of blessed memory,
said such a thing was not legally possible ; and—in the emphatic lan-
guage employed by him in Hunt vs. Gilmore, 59 Pa. State 450-4—to
drive us to a cross-action, after making us pay the contract price ‘or
rags that were not according to contract, would be “ in the teeth of
the policy of the statute.”

If the rule were that we may use our right to set off any un-
liquidated damages except those which are vindictive, exemplary
or punitive (a position now conceded by our opponents), it would
sanction these anomalies: that when we sued for this item, the
second jury could scarcely avoid taking into consideration the
elements of damage included in the former verdict. However
clear the limits of their duty theoretically, the jury could not in
the concrete (no matter how carefully instructed) draw the line so as
to exclude matters and circumstances covered by the compensatory
verdict. Indeed, it would be a new and embarrassing legal
problem for the Judge to discriminate in his instructions, however
obvious the line of demarcation may seem upon a superficial view.

It will be perceived that I suggest this rather as amicus curiae,
because if the rule were adopted it would tend to put double
damages in my client’s purse.

Should the rule be that we may counter-claim for so much of
our damages as would extinguish the plaintiff's demand, and that
we must bring an action for the surplus? To test this, let us
suppose claim and counter-claim in the original action both for
unliquidated damages. A verdict for the defendant generally
would be recorded in case the counter-claim was made good. But
when the defendant sued for the surplus of his counter-claim, how
could the jury in his action know what were the sums ascertained
on the one side and the other by the first jury? Does not this

Additional Brief.

ooo

give the counter-claimant almost the certainty of collecting double
damages ; or at least does it not involve the necessity of submitting
the subjects adjudicated by the judgment on the first verdict, to a
re-examination and a readjudication ?

The record of the first judgment would leave it uncertain
whether the plaintiff had utterly failed in his action; or had only
been thought entitled to nominal damages; or what the amount of
his substantial damages was.

If it is thought we should forego our right to set off any of the
items of our claim (even those now admitted to be proper subjects
of set off) and go for the whole in a cross-action, this would
involve the legal absurdity of allowing Benedict to enforce pay-
ment for rags we did not agree to buy, in an action oa a contract
which was broken by him the moment it was made. Suppose
him insolvent, he might collect the amount of this judgment,
founded on his own fraud and iniquity, and laugh at our. cross-
demand.

But it may be suggested that a Court of Equity would decree
a set-off and restrain the collection of his judgment, to prevent the
consummation of this fraud. The suggestion tends to support my
contention, for it is well-known that the common law tribunals of
Pennsylvania have from their establishment administered equity
through the forms of common law procedure, and this can only be
done by admitting our equity as a defence to the action. This
power of the courts was not impaired by the statutes which
conferred jurisdiction according to the course of chancery.

But on the true construction of the defalcation acts, suggested
above, our right is legal, and the circuity of an injunction to
restrain the proceeding at law would be, in the language of Judge
Sharswood, “ in the teeth of the policy of the statutes.”

A valid objection to the injunction in the State courts would
be, that the remedy at Jaw is adequate.

As is usual when a false principle of construction is suggested,
it involves a host of absurdities and inconveniences,

No argument can be made against the position for which we
contend except this (which rather makes against the objector), that
no case deciding this question has been reported. Is it not prob-

PAIR. connie > sata est

& Stonebraker & Deikees vs. Benedict.

able that on grounds of convenience the profession and the lower
courts have adopted the suggestions of Judge Sharswood on this
point of practice, and have thought it beneficial to both parties to
have “ one jury pass on the whole case ?” |

Our Pennsylvania defalcation Act is as old as the Province,

William Penn having embodied it, “for avoiding numerous suits,”’
in “the Great Law * * passed at an Assembly held at
Chester, alias Upland, the seventh day of the 10th month, called
December (old style), 1682, c. 41.”

Duke of Yorke’s Lawes, &., p. 118.

In the Act of 1705, Penn’s proviso that “ they be of equal clear-
ness and truth” is omitted ; which, of course, enlarges the purview
of the law. :

One reason why our statutes received a larger construction was,
that after the abolition of Governor Keith’s Chancery, there was
no such thing as a court of equity. There could be no injunction
to set one judgment off against another. In order to protect equit-
able rights the courts were compelled to struggle with, and wrest
from their appropriate use, the common law forms of action and
procedure.

The fair and liberal construction for which we contend falls
very far short of what the courts have done in order to give
suitors a convenient remedy in other cases. 1 TrouspaT &
Haty’s Practice, § 29 sq.

In justification of the remark I made as to the state of knowl-
edge among Pennsylvania lawyers upon the subject of pleadings,
let me refer to Judge Gibson’s strictures upon the pleadings in
Sherk vs. Endress, 3 Watts & Sargeant, 257.

The truth is, we have a dual system, consisting of idiceiliee at .

common Jaw (or blundering attempts at pleadings), and affidavits
of claim and defence which are the real pleadings, though techni-
cally no part of the record. In them the issue is developed, but
on the record the pleadings seldom go beyond the plea properly
so called; and the practitioner who insists on formality is
denounced by his injured confreres as a martinet and a prig.

In support of this account of our practice, let me refer to
1 Troupat & Hatry’s Pract. (5 ed. by Brightly), §§ 399, 595,

Additional Brief.

539 sq. 545 sq.; ANDERSON’s Rules of Court (Allegheny Co.)
p. 49, 2. p. 3.

Rule 127 provides that all substantial as well as formal defects
shall be deemed cured by pleading over without demurrer, and
shall not be taken advantage of in arrest of judgment. The party
may object thereto at the trial—subject to proper terms as to costs
—by praying the Court to charge that the evidence—proving only
the facts averred in the pleading—does not establish a sufficient
claim, p. 53.

Rule 143. If an issue be formed, substantially, by the pleadings,
formal joinder may be entered by the prothonotary or — at
any time, if desired.

Rule 145. If a cause is not struck off for want of an issue whea
the list is first called over, neither party shall afterwards object to
(sic) the want of a formal issue as a ground for continuance ; but
the Court will enter the general issue and the cause shall proceed
to trial on such issue, with leave to add [not to substitute, but only
_ to add] any other plea which justice may require.

I may say that throughout the State, elsewhere than in Phila-
delphia, it is quite common, though not universal practice, for the
plaintiff to begin, and to assume the burden of proving his case,
though the defence as presented in the pleadings and affidavits is
by way of confession and avoidance.

Very commonly too, in such cases, the plaintiff follows this up
by securing the conclusion from an unwary adversary. All this,
of course, results from inattention to formalities.

Rule 84 of the Circuit Court of the United States for the
Western District of Pennsylvania orders, “ that the common
practice hitherto prevailing of putting-in general pleas in a short
and informal manner shall be abolished, and the plea, replication
and all other pleadings shall be put in at large, and- according to
the forms prescribed by approved books of practice.”

This rule which originated, I believe, in Judge Grirr’s time,
has not been observed or enforced of late years. Perhaps it is
regarded as abolished by the Act of Congress introducing the
State practice, which Act contains a non obatantc.

In McFaul va. Ramacy, 20 How. 523, Judge Grier criticises
=

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DT a | EE IIE A ELT RIALTO IES Oe em 7

10 Stonebraker & Dushane vs. Benedict.

with characteristic and incisive rhetoric the * ruthless” abolition ‘

of the venerable common law svstem of actions and pleading,

~~

Perhaps the juste mifiew would be established by adding to or re-

classifving the forms of action, as the Pennsylvania statute seems to

intend, and by requiring the a/legata to be supported by an oath,
more or less positive, according to clreumstances and the tnforma-

tion at the command of the party, This would suppress sham

pleas and groundles- ¢: Gh + &

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Aper_scotus_1885_93%3A0. Public record. Not legal advice.