McKeon et al. v Central Stamping Co.

not apply to motions for a new trial, nor, whatever rule may be prescribed by the statutes of the State upon that subject, does it control or affect the power of the Federal courts under the judiciary act of September 24, 1879, c. 20, s. 17, and under Section 726 of the Revised Statutes, to grant or refuse a new trial at their discretion. Indianapolis & St. L. R. R. v Horst, above cited; Newcomb v Wood, 97 U. S., 581."

As, then, the Federal Statutes did not justify the Court below in conforming to the statute of New Jersey regulating the grant of new trials, the only ground of justification of such course must be the general inherent power of the Court below to grant a new trial of the restricted character ordered in this case. In our view, such restricted form of new trial was one not known to the law of England at the time the Constitution was formed. Such restricted trial, where the whole case is not submitted in toto to a jury of twelve men, in not the trial by jury guaranteed by the seventh amendment of the Federal Constitution, and was therefore beyond the power of the Court below to impose on the defendant. In that conclusion this Court does not stand alone, for in 1897 the late Judge Hammond in Hughey v Sullivan, 80 Fed. Rep., 72, delivered an opinion which in substance covered all the questions here involved, cited the pertinent authorities, and discussed the principles involved, with a clearness and weight that appeals to those who regard the Constitution as the basic law of the Nation, and are mindful of the right and duty of the Federal Courts to assert and preserve against encroachment their power and duty to enforce the Constitution. What Judge Hammond then said may be well here and now re-said: "While the (State) legislature may prescribe any rule of property or any rule of pleading or any rule of practice or any form of procedure, it cannot invade the domain of judgment either of the jury or its presiding judge, and direct what that judgment shall be, in the discharge of the respective or joint functions of either. These must remain under the Federal Constitution, at least, to the government of the common law. It may be inconvenient, and sometimes, possibly, oppressive, that this restriction exists. Originally, the Federal Constitution did not contain it as to civil cases, and it was subsequently inserted by the amendments with other similar restrictions upon legislative power; but, wisely or unwisely, it has fixed the common-law trial by jury as that to which we are bound, and only that."

So holding, the judgment entered below will be reversed and the cause remanded with directions to grant a new trial in accordance with the views herein set forth.

1 "This (challenging) is usually done, till the legal number of twelve be completed; in which patriarchal and apostolic number Sir Edward Coke hath discovered abundance of mystery." 3 Blackstone's Commentaries, p. 305.

* *

"The jury are now ready to hear the merits; and, to fix their attention the closer to the facts which they are empanelled and sworn to try, the pleadings are opened to them by counsel on that side which holds the affirmative of the question in issue The opening counsel briefly informs them what has been transacted in the Court above; the parties, the nature of the action, the declaration, the plea, replication and other proceedings, and, lastly, upon what point the issue is joined, which is there set down to be determined. * nature of the case, and the evidence intended to be produced, are next laid before them by counsel also on the same side; and when their evidence is gone through, the advocate on the other side opens the adverse case, and supports it by evidence: and then the party which began is heard by way of reply." 3 Blackstone's Commentaries, 367.

The

"When the evidence is gone through on both sides, the Judge, in the presence of the parties, the counsel, and all others, sums up the whole to the jury; omitting all superfluous circumstances, observing wherein the main question and principal issue lies, stating what evidence has been given to support it, with such remarks as he thinks necessary for their direction, and giving them his

McKeon et al. v Central Stamping Co.

opinion in matters of law arising upon that evidence." 3 Blackstone's Commentaries, 375.

4 "When they are all unanimously agreed, the jury return back to the bar the only effectual and legal verdict is the public verdict; in which they openly declare to have found for the issue for the plaintiff or for the defendant; and if for the plaintiff, they assess the damages also sustained by the plaintiff in consequence of the injury upon which the action is brought." 3 Blackstone's Commentaries, 376.

53 Blackstone, p. 386: "For these and other reasons of the like kind, it is the practice of the Court to award a new, or second trial," from which it will be seen the new trial is here referred to as a second trial, that is, a trial of the same kind as the first. This is also evident from the rest of the paragraph, viz.: "But if two juries agree in the same or a similar verdict, a third trial is seldom awarded: for the law will not readily suppose that the verdict of any one subsequent jury can countervail the oaths of the two preceding ones."

Divorce

Smith v Smith.

-Desertion-Ten Years' Absence- -Service by Publication.

A decree in divorce was granted on the ground of desertion where the husband disappeared and had not been heard from for a period of ten years, the Master filing a supplemental report in rhyme, recommending a decree.

Divorce. No. 993 October Term, 1918. C. P. Allegheny County.

MASTER'S SUPPLEMENTAL REPORT.

To the Honorable, the Judges of Common Pleas Court;
Your most obedient Master would respectfully report:
That having given notice of the time and place to meet,
And having ample proof thereof, he duly took his seat,
To hear the testimony and decide as he saw fit,
Having due regard to evidence and law that governs it.
He took the statement in the case, as best he could get at 'em,
Verbatim, et punctatim and likewise ad literatum.
The testimony in the case as to Respondent's acts,

Is herewith filed and indicates the undisputed facts.

I.

SCHEDULE.

(a)

The libel was presented in due form in open Court.
A subpoena was awarded, with directions to report.

(b)

The honorable High Sheriff returned this n. e. i.

(c)

He couldn't find Respondent and he gave the reason why.

He searched his last named settlement, the earth and sky above him,
But failed, within his bailiwick, to find a vestage of him.

An alias subpoena was awarded as per dictum;

Again the Sheriff made return, "Respondent est delictum:"

He searched his last known residence, he still could not be found,

So doubtless he was shot, or hanged, or may be he was drowned. (d) The Sheriff was then told to give constructive information,

Smith v Smith.

In Pittsburgh Legal Journal and one other publication. (e) On August tenth, '19, proofs filed of Sheriff's proclamation, And that Respondent had been served by legal publication. (f) William Coleman Esquire representing the libellant

(Dehors the record, we report, his conduct was excellent). Stating that due notice had been given to Respondent, That he was still unheard of, and a cowardly abscondent, And showing record proof thereof, he duly moved the Court To name a Master fitted to hold hearings and report. (h) The Court with rare accumen and appreciative mind,

And with due regard for fitness, promptly named the undersigned. (i) Libellant then paid thirty bucks to the Prothonotary

Which as per recent rule of Court seems to be mandatory. (j) The Master fixed November tenth to sit and hear the case, At W. H. Coleman's office in Frick's Building as the place. (k) Mr. Coleman at the hearing the Libellant's case presented.

Respondent never showed his mug nor was he represented. (1) The evidence of witnesses concerning which he writes you And which the Master certifies, were taken in quo situ.

1.

II.

FINDINGS OF FACT.

It seems from record evidence and also testimony,
These parties were united in the bonds of matrimony.
And that they lived together enchained in maritality,
Enjoying all the blessings of connubiality.

2. They were married in McKeesport, the City of the blest

Where the wicked cease not troubling, and the weary never rest. Where the fires from the flaming forges, light the darkness of the night,

Like the fabled torch of Hesperus on old Olympus' height.

This city erstwhile famous for political divisions,

But now engrossed in rosy, gaseous affluential visions:

Where castled dreams, and airy schemes for getting rich abound, Where the gas is flowing, and the hot air blowing, all around. 3. They resided in Tube City by the rolling Youghiogheny,

About three years, according to the witness' testimony.
4. Respondent proved himself to be so low, so base, so blind,
To all the finer feelings which exalt the human mind,
That severing all the loving ties that wedded life enthrone,
He deserted the Libellant and decamped for parts unknown.

III.

CONCLUSIONS OF LAW.

Now at the risk of dimming his ephemeral eclat

The Master files his findings and suggests to you the law. First. The Court has jurisdiction now to hear and try the case. The proceedings are all regular, sec. legum on their face. Second. The Act of Ass. of Nineteen Fifteen makes it very plain, That Libellant's evidence in esse is germain,

When Respondent fails to answer or otherwise appear,

After due constructive notice, and the proof thereof is clear.

Smith v Smith.

Third. The proceedings are in proper form as by the writs appear,
The libel is sufficient and the testimony clear.

Fourth. Respondent having left his wife without due provocation,
For ten long years, per se, dissolved the marital relation.

IV.

OPINION.

A man who leaves his faithful wife and the love-light of her eyes
To meet a problematic life beneath uncertain skies:

Deserts his little prattling child without a thought or care
As to its future life, its trials, dangers, or welfare,

Is guilty of the grossest wrong and evil unsurpassed;
And has old J. Iscariot most conspicuously outclassed,
His reputation smells as rank wherever he may go,

As the fragrance of a pole cat when the summer sun is low.
Our tentative opinion duly stated c. a. v.,

And hoping that the learned Court may rule the same as we,
Is, that the said Respondent here, and all his ilk as well
Deserves to be committed to a place translated-Hades.
Or if for that no law is found in Code or Statutory,
To send him to a training school entitled Purgatory.
If we were guilty of a crime not half as bad as his'n,
Some cop would tap us with his mace and hail us into prison.
But seriously, the saddest things in life to contemplate
Are broken hearts, deserted homes, and hearth stones desolate:
Where recreant faithless husbands desert their trusting wives,
Break up a happy home and bring distress into their lives.
For happy homes are guide boards upon the sands of time,
To lead us from the wilderness of selfishness and crime.
Who has not felt how sadly sweet the dream of childhood's home
Steals o'er the heart and keeps us true however far we roam?
In human life are days that shine through all the years like stars
Whose subtle fragrance fills the mind like scent of sweetest flowers,
The thoughts of them enchain the brain, their memory grips the

heart

Like strains of far off music, which excel the singer's art.
So scenes of happy home life which we have shared and know
Will strengthen us for duty as the swift years come and go.
Such scenes as these make stronger men to bear the ills of life
And build a fortress on the Rock to shield us from the strife.
Abundant life consisteth not in things that we possess
Nor marriage vows per se, insure domestic happiness.
But love and mutual helpfulness, these make a happy home
"Consensus, non concubitus, ut facit matrimonium."

V.

RECOMMENDATIONS.

Your Master recommends that Court upon the testimony
Should grant a dissolution from the bonds of matrimony.
And that upon more careful and due deliberation,

Without undue verbosity, delay, or dubitation,

(There lingers in the lawyer's mind a sense of crass delictum

Smith v Smith.

When Court, though well advised, sometimes hands out an adverse dictum),

At once should pass upon the case and enter a decree

That Libellant, if she so desires, shall be at Liberty

To marry. (Mindful of the proverb, and there is no doubt on't

"As good fat fish swim in the sea, as ever did come out on't").
And having entered a decree should sign Per Curiam,

To free Libellant from this cuss who isn't worth a

The Master further recommends, for reasons above stated,
That all the ties and obligations heretofore created,
All rights and duties, perquisites, however co-related
Between Libellant and Respondent, should be abrogated,
So that Libellant may enjoy a Christmas, celebrated

Absolved from vows by which in marriage she was obligated:
That happiness of other days may be now reinstated.

And that the chains of marriage ties be cut and relegated

To Limbo in the voiceless Past to rust forever there;

And that for reason Supra, Court should grant Libellant's prayer.

Respectfully submitted,

ANDREW S. MILLER,

Master.

March 11, 1920, Decree granted and respondent to pay costs.

BY THE COURT.

Cassidy et ux. v Scanlon et vir.

Equity Specific Performance-Real Estate-Notice

Delay.

Specific performance of a contract for the sale of real estate was refused where the contract provided that the sale was to be completed "on or before April 15, 1919, or as soon thereafter as the B. & O. R. R. Co. will grant a loan on the same, possession to be given on delivery of deed." The railroad refused to make the loan. A loan association agreed to advance the money, but did not approve the title until May 12 or 15, 1919, when defendant refused to make the conveyance.

In Equity. No. 1776 July Term, 1919. C. P. Allegheny County.

George Y. Meyer, for plaintiff.

James F. Kane, for defendant.

SHAFER, P. J., April 14, 1920.-The bill is by vendees against vendors for specific performance of a contract to convey real estate.

FINDINGS OF FACT.

1. On or before March 6, 1919, the defendant, Julia Scanlon, was the owner of a certain house and lot fronting on Renova Street, in the Fifteenth Ward in the City of Pittsburgh, lot being numbered 19 in the Glenwood Company's Plan of Lots, and being fully described in the bill.

2. On March 6, 1919, the defendants entered into a written agreement, printed with the bill, by which they agreed to sell and convey to the