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PENNSYLVANIA  ^ 

SUPERIOR  COURT  REPORTS. 


VOL.  6. 


CONTAI.NIJJO 


CASES  ADJUGDED 


IN   TlIK 


Superior  Court  of  HJeunagbania. 


WII^ON  C.  KRESS, 

STATE    RBPORTKK, 
AND 

EDWARD  P.  ALLINSON, 

ASSISTANT  8TATK  HKPOUTEU. 


CONTAINING 

CA8E8  DECIDED  AT  NOVKMBKIi  TEKM,   1807,   AND  JANUARY   AND 
FEBBUAKY  TERMS,   1808. 


NEW  YORK  AND   ALBANY: 

BANKS  &  BROTHERS,  LAW  PUBLISHERS. 

1898. 


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't'i 


Copyright,  1898, 

I>y  DAVID  MARTIN,  Secretary  of  the  Commonwealth, 

for  the  State  of  Pennsylvania. 


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Google 


JUDGES 


OF  THE 


SUPERIOR  COURT  OF  PENNSYLVANIA 


DURING  THE  PERIOD  OF  THESE  REPORTS. 


President  Judge,  .        .        .  Charles  E.  Rice. 

Judge,  ....  John  J.  Wickhajvi. 

Judge,  .        .        .  James  A.  Beaver. 

Judge,  ....  Howard  J.  Reeder. 

Judge,  .        .        .  George  B.  Orlady. 

Judge,  ....  Peter  P.  Srhth. 

Judge,  .        .        .  William  W.  Porter. 


ATTORNEY  GENERAL, 
Mr.  Henry  C.  McCormick. 


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JUDGES  OF  THE  COURTS  BELOW 

PUKING  THK   PBKIOD  OP  THKSE    UEPOUTS. 

I>I8T. 

1st — ^Pliilatlelpliia  County. 

ConrU  qf  Common  Pleas, 
No.  1:  Ckaio  Hidi>lk,  P.  J.;  F.  AmAuAk  Batox  and  Abkaham 
M.  Bkitlek,  J  J. 

No.  2:  Samuki.  W.  Pknnypackkr,  P.  .1.;  Matkr  Sulzdbbger  ami 
William  W.  Wiltbank,  JJ. 

No.  3:  Thomas  K.   Fixlkttkii,   P.  J.;  James  Gay  Gordon  and 
Oharlks  B.  McMichakl.  JJ. 

No.  4:  Michael  Arnold,  P.  J.;  Hobkrt  N.  Willson  and  Charles 

T.  AUDENBIEO,  JJ.^ 

Oiyham^  Court, 
William  B.  Hanna,  P.  J.;  William  N.  Ashman,  Clement  15. 
Penrose  and  Joseph  C.  Ferguson,  J  J. 

2d — Lancaster  County. 

John  U.  Livingston,  P.  J. ;  H.  Clay  Brubaker,  J. 
3d — ^Nortlianipton  County. 

W.  W.  Schuyler,  P.  J.;  Henry  W.  Scott,  J. 
4t1i — Tioga  County. 

John  I.  Mitcheli^  P.  J. 
5tli — ^Allegheny  County. 

CourU  qf  Common  Plea9, 
No.  1:  Edwin  H.  Stowe,  P.  J.;  Frederick  H.  Collier  and  Jacob 
F.  Slagle,  JJ. 

No.  2:  Thomas  Ewing,  P.  J.;  John  W.  F.  White  and  Robert 
S.  Frazer,  JJ. 

No.  3:  JobnM.  Kennedy,  P.  J.;  William  D.  Porter  and  Samuel 
A.  McClung,  JJ. 

Orphans'  Court, 
William  G.  Hawkins,  Jr.,  P.  J.;  James  W.  Over,  J. 
Ctb— Erie  County. 

Emory  A.  Walling,  P.  J. 
7th— Bucks  County. 

Harma-n  Yerkes,  p.  j. 
8th — Northumberland  County. 

Clinton  R.  Savidge,  P.  J. 
Otb— Cumberland  ('ounty. 

Edward  W.  Biddle,  P.  J. 
JOth — Westmoreland  County*. 

LuciEN  W.  Doty,  P.  J.;  Alex.  D.  McConnell,  J. 
1  ]  th — Luzerne  County. 

Court  qf  Common  Pleas, 
Stanley  Woodward,  P.  J.;  John  Lynch  and  L.  U,  Bennett,  JJ. 

Orphans'  Court, 
Alfred  Darte,  P.  J. 

(V) 


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Ti  JUDGES  OF  THE  COURTS  BELOW. 

12th — Daupliin  County. 

John  W.  Simonton,  P.  J.;  John  B.  McPhkrsox,  J. 
13th— Greene  County. 

R.  L.  Crawfohd,  p.  J. 
14th — Fayette  County. 

Nathaniel  Ewing,  P.  J.;  S.  L.  Mkstkkzat,  J. 
15th — Chester  County. 

AVilliam  B.  VVahdell,  P.  J.;  Joskph  Hkmphili.,  J. 
16th — Bedford  County  and  Somerset  County. 

J.  H.  LONOKNBCKEK,  P.  J. 

I7th— Union  County  and  Snyder  County. 

Hakold  M.  J^IcClukjc,  P.  J. 
18th — Clarion  County. 

E.  HkATH  Cl.AUK,  P.  J. 
19th— York  County. 

John  W.  Bittenokr,  P.  J.;  W.  P.  Bay  Stkwakt,  J. 
20th— Huntingdon  County  and  Mifflin  County. 

John  M.  Bailky,  P.  J. 
2l8t— Scliuylkill  County. 

Court  of  Common  Pleas, 

Cykub  L.  PEiiSuiNG,  p.  J. ;  Oliveh  p..  Bechtel  and  Mason  Weid- 
MAN,  JJ. 

Orphans^  Court. 
P.  M.  Dunn,  P.  J. 

22d  —  Wayne  County  and  Pike  County. 

Geokgk  S.  Pukdy,  p.  J. 
2Sd  —  Berks  County. 

Court  of  Common  Plecis, 

James  X.  Eumentrout,  P.  J.;  Gustav.  A.  Endlich,  J. 

Orphans^  Court. 

H.  Willis  Bland,  P.  J. 
24th— Blair  County. 

Martin  Bell,  P.  J. 
25th — Clinton  County,  Cameron  County  and  Elk  County. 

Chaiu.es  a.  Mayer,  P.  J. 
2Gth— Columbia  County  and  Montour  County. 

E.  U.  Ikeler,  p.  J. 
27th — AVashlngton  County. 

John  Add.  McIlvaine,  P.  J. ;  Jamks  F.  Tayj.or,  J. 
28th — Venango  County. 

Gkoroe  S.  Criswell,  P.  J. 
29th — Lycoming  County. 

John  J.  Metzger,  P.  J. 
30th— Crawford  County. 

John  J.  Henderson,  P.  J. 
3l8t — Lehigh  County. 

Edwin  Albright,  P.  J. 


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JUDGES  OF  THK  COURTS  BELOW.  vii 

82d  —  DeU%vare  County. 

Thomas  J.  Clayton,  P.  J, 
33d  —  Armstrong  County. 

Calvin  Uaybuhn,  P.  J. 
S4th — Susquehanna  County. 

Danirl  W.  Sraulk,  p.  .J. 
35th — Mercer  County. 

Samuel  II.  MiLLKit,  P.  J. 
36th— Beaver  County. 

Jamks  Sharp  Wilson,  P.  J. 
37th — Warren  County  and  Forest  County. 

ChAULBS  II.  NOYRS,  P.  J. 

38th — ^Montgomery  County. 

Aabon  S.  Swautz,  p.  J.;  Hrnuy  K.  Wrani»,  J. 
39th — Franklin  County. 

John  Stewart,  P.  J. 
40th— Indiana  Coimty. 

Hauuy  Whitr,  p.  J. 
4l8t — Juniata  County  and  Perry  County. 

Jeremiah  Lyons,  P.  J. 
42d  —  Bradford  County. 

Benjamin  M.  Peck,  P.  J. 
43d  —  Carbon  County  and  Monroe  County. 

Allen  Craio,  P.  J. 
44th — Wyoming  County  and  Sullivan  County. 

Edward  M.  Dunham,  P.  J. 
45th — Lackawanna  County. 

lioBEirr  WoDRow  Archrald,  p.  J. :  Frederick  W.  Gunster  and 
Henry  M.  Edwards,  J  J. 

46th— Clearfield  County. 

Cyrus  Gordon,  P.  J. 
47th— Cambria  County. 

A.  V.  Barker,  P.  J. 
48th — McKean  County;  Potter  County  attached. 

Arthur  G.  Olmsted,  P.  J.;  Thomas  A.  Morrison,  J. 
49th— Centre  County. 

John  G.  Love,  P.  J. 
50th— Butler  County. 

John  M.  Greer,  P.  J. 
5l8t  —Adams  County  and  Fulton  County. 

Samuel  McC.  Swope,  P.  J. 
52d  —  Lebanon  County. 

Allen  W.  Ehroood,  P.  J. 
53d  —  Lawrence  County. 

William  D.  Wallace,  P.  J. 
54th — Jefferson  County. 

John  W.  Reed,  P.  J. 


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TABLE 


CASES  REPORTED  IN  THIS  VOLUME. 

Page 

Abeles  &  Co.  v.  Powell, . 

.     Promissoiy  Note, 

.    123 

Ackley,  Newlin  v.  . 

.     Appeals, 

.    337 

Adam  v.  Moll, 

.     Practice,  C.  P., 

.    380 

Addicks,  Cooke  &  Co.  v 

.     Lex  Loci, 

.    115 

Aid  Society,  Phillips  v. 

.     Insurance, 

.    157 

Altliouse  V.  Hunsberger 

»        .     Judgment,     . 

.     160, 163 

Anderson  v.  McMichael 

,         .     Appeals, 

.    114 

Appeal,  Carter  &  Co.'s 

.     Contract, 

.    246 

Class  &  Nachod's 

.     Transfer  of  License,       .     130- 

Commissioners' 

.     Statutes, 

.    464 

Fitter's     • 

.     Decedent's  Estate, 

.    364 

Gibboney's 

.     Liquor  Law, . 

.      26,   323 

King's      . 

.     Will,      . 

.    192 

Lapp's     . 

.     Appeals, 

.     143 

Rump's    . 

.     Evidence, 

.    435 

Wells's    . 

.     Contract, 

.    627 

Wells's    • 

.     Widow's  Exemption,     .     633 

Wolf's     . 

•     WiU,      . 

.    401 

Worthington's 

.     Practice,  0.  C, 

.    484 

Application  for  License, 

.     Liquor  Law,  . 

.      87 

Ascetylene  Co.  v.  Beck, 

.     Practice,  C.  P., 

.    584 

Auer  V.  Mauser, 

•     Malicious  Prosecution,  .     618 

Batterton,  Bogert  v. 

.     Actions, 

.    468 

Baun,  Kelly  v. 

.     Contract, 

.    327 

Beck,  Ascetylene  Co.  v. . 

.     Practice,  C.  P., 

.    584 

Belber  v.  Belber,     . 

.     Execution,     . 

.    861 

Bixler  &  Correll  v.  Lesh, 

.     Contracts, 

.    459 

Bogert  V.  Batterton, 

.     Actions, 

.    468 

Bolster,  Clements  v. 

.    Epistolary  Conti*ac 

ts,     .    411 
(ix) 

Digitized  1: 

.y  Google 

TABLE  OF  CASES  REPORTED. 


Page- 

Boon,  Newbold  v.   . 

.    Banks  and  Banking,      .    511 

Bouve,  Crawford  &  Co., 

Lip- 

per  V 

.    Surrender  of  Lease 

,       .    452 

Brass  Co.,  Reger  v. 

•    Damages, 

.    375 

Brown,  Killen  v.     . 

.    Pi-actice,  C.  P., 

.      15 

Building  Assn.  v.  Wampole,   .    Appeals, 

.    238 

Burlock,  Schultz  v. 

•    Landlord  and  Tenant,    .    673 

Carson  v.  Ford, 

.     Judgment,     . 

.      17 

Carter  &  Co.'s  Appeal,    . 

.     Contract, 

.    246 

Chase,  Skinner  v.    . 

.     Judgments,    . 

.    279 

Chester  v.  McGeoghegan 

,        .     Jurisdiction,  J.  P., 

.    358 

Chester  Ry.  Co.,  Deposit  i 

Co.  V.     Street  Railways,     . 

.    204 

Christman,  McKeone  v.  . 

.    Appeals, 

.    569 

Christman,  Phila.  v. 

.     Amendments, 

.      29 

Clark  V.  Koplin, 

.    Mechanic's  Lien,  etc.,    .    462 

Class  &  Nachod's  Appeal 

,        .     Transfer  of  License,       .     130 

Claster  Bros.  v.  Katz, 

.    Sale, 

.    487 

Clements  v;  Bolster, 

.     Epistolary  Contracts,     •    411 

Cleveland,  Jones  v. 

.     Contract, 

.    640 

Coble  V.  Zook, 

.     Practice,  C.  P., 

.    597 

Collins  V.  Ne^v8  Co., 

.    Libel,     . 

.    330 

Comly  &  Co.  v.  Simpson 

.     Practice,  C.  P.,      . 

.      12 

Commissioners'  Appeal,  , 

.     Statutes, 

.    464 

Commissioners,  Com.  v. 

.     'iaxation. 

.    211 

Com.  V.  Commissioners, 

.     Taxation, 

.     211 

V.  House, 

.     Embezzlement, 

.      92 

y.  Hutchinson, 

.    Criminal  Law,   ■ 

.    405 

V.  I^wis, . 

.     Criminal  Law, 

.    610 

V.  MiUer, 

.     Perjury, 

.      35 

V.  Mitchell, 

.     Criminal  Law, 

.    369 

V.  Nuber, 

.     Criminal  Law, 

.    420 

V.  Page,  . 

.     Criminal  Law, 

.    220 

V.  Roclgers, 

.     Partition, 

.     284 

V.  Spencer, 

.     Criminal  Law, 

.     256 

V.  Yeisley, 

.     Public  Officers, 

.     273 

Cooke  &  Co.  V.  Addicks 

,        .    Lex  Loci, 

.    115 

Cooper  V.  Eyrich,    . 

•    Contract  of  Deced( 

mt,    .    200 

Cridland,  McNeile  v. 

.    Evidence, 

.    428 

Davis,  Griffin  v. 

^    Judgment  ExecutL 

on,    .    481 

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TABLE  OF  CASES  REPORTED. 


•XI 


• 

Page 

Davis  v.  Hamilton, . 

Grant,   .... 

562 

Difltiller's  License,  . 

Liquor  Law,  . 

87 

Downing,  Phila.  Boui-se  v. 

Contract, 

590 

Doyle  V.  Longstreth, 

Landlord  and  Tenant,    . 

475 

Dreibilbis  v.  Esbenshade, 

Charge  of  Court,   . 

182 

Diinlap,  Leader  v.  . 

Appeals, 

243 

Dunleavy,  Gilmore  &  Duify  v. 

Appeals, 

603 

Esbenshade,  Dreibilbis  v. 

Charge  of  Court,    . 

182 

Estate,  Fell's  .... 

Will,     .... 

192 

Fitler's     .... 

Decedent's  Estate, 

364 

Heller's    .        .        .         • 

Contract, 

246 

Lowry's    .... 

Appeals, 

143 

Potter's    .         .         . 

Contracts, 

627 

Potter's    .... 

Widow's  Exemption,     . 

683 

Royer's    .... 

Will 

401 

Wile's      .... 

Evidence, 

435 

Worthington's 

Practice,  0.  C, 

484 

Eyrich,  Cooper  v.    . 

Contract  of  Decedent,    . 

200 

Farrell,  Jackson  v.  . 

Landlord  and  Tenant,    • 

81 

FeU's  Estate,  .... 

Will,     .... 

192 

Ferree  v.  Young,     . 

Practice,  Superior  Ct.,   . 

807 

Fitler's  Estate  and  Appeal,      . 

Decedent's  Estate, 

864 

Ford,  Carson  v.        .        .        . 

Judgment,     . 

17 

Forney  v.  Huntingdon  County, 

Practice,  C.  P.,      . 

897 

Fritehman,  Myers  v. 

Benefit  Associations, 

580 

Gattle  Bros.  v.  Krenip,   . 

Sale,      .... 

514 

'                     Gibboney's  Appeal, 

Liquor  Law,  .         .      26, 

323 

Gill  &  Fisher  v.  O'Rourke,     . 

Evidence, 

605 

Gilmore  &  Duffy  v.  Dunleavy,  . 

Appeals, 

603 

Glass  Works,  Russell  v. . 

Evidence, 

118 

Goodman    v.    Transportation 

Co., 

Contract, 

168 

Gouchenauer,  Trust  Co.  v. 

Execution,     . 

209 

Gray  v.  Hartman,    . 

Evidence, 

195 

Grier  v.  Homestead  Borough, . 

Municipal  Law, 

542 

Griffin  v.  Davis, 

Judgment  Execution,    . 

481 

Gwinn  v.  Lee, 

Partnership,  . 

646 

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TABLE  OF  CASES  REPORTED. 


Pajje 

Hafner,  Ins.  Trust  Co.  v. 

Party  Walls, 

.      48 

Hamilton,  Davis  v.  . 

Grant,   . 

.    562 

Hanthom,  Irwin  v.  . 

Practice,  Superior  Ct., 

.    165 

Harris,  Zineman  &  Co.  v. 

Contract, 

803 

Hartman,  Gray  v.   . 

Evidence, 

.    195 

Haverford  College  v.  Rhoads,  . 

Charity, 

.      71 

Heller's  Estate, 

Contract, 

.    246 

Heyer  v.  Piano  Co., 

Bills  of  Exception, 

.    504 

Hires  &  Co.  v.  Norton,    . 

Appeals, 

.     457 

Hoffman,  Kimbrough  v.  . 

Relief  Association, 

.      60 

Hoffner  v.  Prettyman,     . 

Negligence,    . 

.      20 

Homestead  Borough,  Grier  v.  . 

Municipal  Law, 

.    542 

House,  Com.  v.       .        .         . 

Embezzlement, 

.       92 

Hudson,  Ross  v.      . 

Illegal  Arrest, 

.    552 

Hunsberger,  Althouse  v. 

Judgment,     .         .     16i 

9,  168 

Huntingdon  Count}^  Forney  v. 

Pi-actice,  C.  P., 

.    897 

Hutchinson,  Com.  v. 

Criminal  Law, 

.    405 

Ice  Co.  V.  Pliila.,     . 

Public  Officers,      . 

.    299 

Ice  &  Coal  Co.,  Kleinert  v.      . 

Negligence,    . 

.    594 

Ingram,  Pollock  v.  . 

Public  Officei*s, 

556 

Ins.  Co.,  Shanahan  v. 

Insurance, 

.      65 

Ins.  Co.  V.  Storage  Co.,  . 

Contract, 

288 

Irwin  V.  Hanthom, 

Practice,  Superior  Ct., 

165 

Jackson  v.  Farrell,  , 

Landlord  and  Tenant, 

31 

Jennings,  Yuengling  &  Sons  v. 

Insurance,      . 

614 

Jones  V.  Cleveland, 

Contract, 

640 

Juenet,  Mullen  v.   . 

Taxation, 

1 

Kahn  v.  Maguire,    . 

Practice,  C.  P.,       . 

639 

Kamhuta  v.  Traction  Co., 

Question  for  Jur}% 

319 

Katz,  Claster  Bros.  v. 

Sale,      .        .         .        . 

487 

Keenan  v.  Quigg,    . 

Judgment,     . 

58 

Kelly  V.  Baun, 

Contract, 

827 

Kemper,  Omensetter  v.  . 

Evidence, 

309 

Kennedy  v.  Quigg, 

Mortgage, 

53 

Killen  v.  Brown,     . 

Practice,  C.  P., 

15 

Kimbrough  v.  Hoffman,  . 

Relief  Association, 

60 

King's  Appeal, 

Will,      .         .        .         . 

192 

Kleinert  v.  I^  &  Coal  Co.,      . 

Negligence,    . 

Digitized  by  VjC 

594 
)OQk 

TABLE  OF  CASES  REPORTED. 


Xlll 


Koch  V.  Kuhns, 
Koons  V.  McNaniee, 
Koplin,  Clark  v. 
Kremp,  Gattle  Bros 
Kuhns,  Koch  v. 


V. 


Lake  v,  Weber, 

Lamb  v.  Leader, 

Lapp's  AppeaU 

Leader  v.  Dunlap, 

Leader,  Lamb  v. 

Lee,  Gwinn  v. 

Leah,  Bixler  &  Correll  v. 

Levy,  Young,  Smyth,  Field  & 

Co.  V.  . 
Lewis,  Com.  v. 
License,  Distiller's 
Schellenberg's 
Transfer  of 
Wacker's 
Lichtenwalner,  Matten  v. 
Lipper  v,  Bouv^,  Cmwford  & 

Co., 

Longstreth,  Doyle  v. 
Loose  V.  Scharfif, 
Louchheim  v.  Maguii'e,  . 
Lowry's  Estate, 
Luzerne     Co.,     Wilkes-Barre 

Record  v 

McCargo,  Rohbock  v. 
McGeoghegan,  Chester  v. 
McHenry's  Petition, 
McKay  v.  Pearson, 
McKeone  v.  Christman,  . 
McLaughlin,  Rothschilds  Son's 
Co.  V.  •        •        .        •        • 
McMichael,  Anderson  v. 
McNamee,  Koons  v. 
McNeile  v.  Ciidland, 
Maguire,  Kahn  v.   . 


Paise 

Building  Contract,        •  186 

Easement,      .        .        .  445 

Mechanic's  Lien,   •        .  462 

Sale,      ....  514 

Building  Contract,        .  186 

Misrepi^esentations,        .  42 

Practice,  Superior  CL,   .  50 
Appeals,        .        .        .143 

Appeals,         .        .         .  243 

Practice,  Superior  Ct.,   .  50 

Partnership,  .         .         .  646 

Contracts,      .        .        .  459 

Judgment,     ...  23 
Criminal  law,        .        .610 

Liquor  Law,  ...  87 

Liquor  Law,  ...  26 

Transfer  of  License,       .  130 

Liquor  Law, .         .         .  323 

Mutual  Insurance,         •  575 

Surrender  of  Lease,        .  452 

Landlord  and  Tenant,    .  475 

Landlord  and  Tenant,    .  153 

Practice,  C.  P.,      .        .  635 

Appeals,        .        .         .  143 

Sheriff, .....  600 

Landlord  and  Tenant,    .  134 

Juiisdiction,  J.  P.,         .  358 

Statutes,        •        .        •  464 

Actions,         •        .         .  529 

Appeals,        .        .        .  569 

Question  for  Jury,        .  347 

Appeals,         .        .        .  114 

Easement,      .        .        .  445 

Evidence,       .         .        .  428 

Practice,  C.  P.,      .        .  639 


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XIV 


TABLE  OF  CASES  REPORTED. 


Ptige 

iMaguire,  Louchheim  v. 

.     Practice,  Q.  P.,      . 

.     635 

Matten  v.  Lichtenwalner 

,        .     Mutual  Insurance, 

.    575 

Mauser,  Auer  v. 

.     Malicious  Prosecution 

,  .    618 

Miller,  Com.  v. 

.     Perjuiy, 

.      35 

Mitchell,  Com.  v.    . 

.     Criminal  I^aw, 

.     869 

Moll,  Adam  v. 

.    Practice,  C.  P., 

.    380 

Moore  v.  Phillips,  . 

.     Evidence, 

.    670 

Mullen  V.  Juenet,   . 

.     Taxation, 

1 

Myers  v.  Fritehman, 

.     Benefit  Associations, 

.    580 

My  ton  V.  Wilson,    . 

.     Easement, 

.    293 

Newbold  v.  Boon,   . 

.     Banks  and  Banking, 

.    611 

Newlin  v.  Ackley,  . 

.     Appeals, 

.    337 

News  Co.,  Collins  v. 

.    Libel,    • 

.    330 

North  &  Co.  V.  Torke, 

.     Practice,  C.  P.,      .  . 

.    354 

Norton,  Hires  &  Co.  v. 

.     Appeals, 

.    467 

Nuber,  Com.  v. 

.     Criminal  Law, 

.    420 

Omensetter  v.  Kemper, 

.    Evidence, 

.     309 

O'Rourke,  Gill  &  Fisher 

V.     .     Evidence, 

.    605 

Page,-  Com.  v. 

.     Criminal  Law, 

.     220 

Paul,  Taylor  v. 

.     Sale, 

.    496 

Pearson,  McKay  v. 

.     Actions, 

.    629 

Peck  &  Co.  V.  Stevenson 

,        .     Debtor  and  Creditor, 

.    636 

Penna.  R.  Co.,  Robinson 

V.      .     Eminent  Domain,  . 

.    383 

Penna.  R.  Co.,  S mucker 

v.      .     Riparian  Rights,    . 

.    621 

Petition,  McHenrj^'s 

.     Statutes, 

.    464 

Phila.  V.  Christman, 

.    Amendments, 

.      29 

Ice  Co.  V. 

.     Public  Officers,      .     • 

.     299 

Bourse  v.  Downing, 

.     Contract, 

.    690 

Phillips  V.  Aid  Society, 

.     Insurance, 

.    157 

Phillips,  Moore  v.    . 

.     Evidence, 

.    570 

Piano  Co.,  Heyer  v. 

.     Bills  of  Exception, 

.    504 

Pollock  V.  Ingmm, . 

.     Public  Officers, 

.    656 

Potter's  Estate, 

.     Contracts, 

.    627 

Potter  8  Estate, 

.    Widow's  Exemi)tion, 

.    633 

Powell,  Abeles  &  Co.  v. 

.     Promissory  Note,  . 

.    123 

Prettyman,  Hofifner  v. 

.    Negligence,    . 

.      20 

Quigg,  Keenan  v.    . 

.    Judgment,     . 

.      58 

Q^gg?  Kennedy  v. . 

.    Mortgage, 

.      58 

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TABLE  OF  CASES  REPORTED.  xV 

Page 
Railroad  Co.,  Penna.,  Robin- 
son, v Eminent  Domain,  .        .883 

Railroad  Co.,  Penna.,  Smack- 
er y.    .         ...        .  Riparian  Rights,    .        .  521 

Railway  Co.,  Chester,  Deposit 

Co.  V Street  Railways,    .         .  204 

Reger  v.  Brass  Co.,  .  .  Damages,  .  .  .  375 
Uhoads,  Haverfoxti  College  v.  Charity,  ...  71 
Robin^on  v.  Railroad  Co.,  .  Eminent  Domaui,  .  .  383 
Rodgers,  Cora.  v.  .  .  .  Partition,  ...  284 
Rohbock  V.  McCargo,  •  .  Landlord  and  Tenant,  .  134 
Ross  Y.  Hudson,  •  ,  .  Illegal  Arrest,  .  .  652 
Rothschilds  Son's  Co.  y.  Mc- 
Laughlin,   ....  Question  for  Juiy,         .  847 

RoyerJs  Estate,        ...        .     Will 401 

Ramp's  Appeal,      .        .        .  EYidence,       .        .         .  435 

Russell  Y.  Glass  Works, .        .  EYidence,       .        .         .  118 


Safe  Deposit  Co.  y.  Railway  Co., 

Sattler,  Taylor  y.    . 

Scharff,  Loose  y. 

Schellenberg's  License, 

Schulfez  Y.  Burlock, 

Schuylkill  Traction  Co.,  Kara- 
huta  Y. 

Shanahan  y.  Ins.  Co., 

Simpson,  Comly  &  Co.  v. 

Skinner  y.  Chase,    . 

Smucker  y.  Railroad  Co., 

Snyder  y.  Steinmetz  &  Zear- 
foss,     . 

Spencer,  Com.  y.     . 

Steinmetz  &  Zearfoss,  Sny- 
der Y.  . 

Stevenson,  Peck  &  Co.  y. 

Storage  Co.,  Ins.  Co.  y. 

Strouse,  Yedinskey  y. 


Taylor  y.  Paul, 
Taylor  y.  Sattler, 


Street  Railways,     .   *  .     204 

Practice,  Superior  Ct.,  .     229 

Landlord  and  Tenant,  .    153 

Liquor  Law,  .        .  .      2t> 

Landlord  and  Tenant,  .     678 

Question  for  Jury,  .     319 

Insurance,      .        .  .65 

Practice,  C.  P.,      .  .12 

Judgments,    .        .  .     279 

Riparian  Rights,    .  .     521 

Question  for  Jury,  .    341 

Ci-iminal  Law,        .  .     256 

Question  for  Jury,  .     341 

Debtor  and  Creditor,  .     536 

Contract,        .        .  .288 

Real  Estate  Broker,  .    587 


.    Sale,      •        .        .        .496 
•     Practice,  Superior  Ct.,   .     229 


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xvi  TABLE  OF  CASES  REPORTED. 

Page 

Traction  Co.,  Schuylkill,  Kara- 

huta  V Question  for  Jury,  .  819 

Transportation  Co.,  Good- 
man V Contract,       .        .  .  168 

Trust  Co.  V.  Gouchenauer,      ,  Execution,     .        .  .  209 

Trust  Co.  V.  Hafner,        •         .  Party  Walls,          .  .  48 

Wacker's  License,  .  .  .  Liquor  Law, .  .  .  823 
Wanipole,  Bldg.  Assn.  v.  .  Appeals,  .  .  .  238 
Weber,  Lake  v.  •  .  .  Misrepresentation,  .  42 
Wells's  Appeal,  .  .  .  Contract,  .  .  .  627 
Wells's  Appeal,  .  .  .  Widow's  Exemption,  .  683 
Wile's  Estate,  .  .  .  Evidence,  .  .  .  435 
Wilkes-Barre  Record  v.  Lu- 
zerne Co.,  ....  Sheriff,  ....  600 
Wilson,  Myton  v.  .  .  .  Easement,  .  .  .  293 
Wolf's  Appeal,  .  .  .  Will,  ....  401 
Worthington's  Est.  and  Ap- 
peal,      Practice,  O.  C,      •  .  484 

Yedinskey  v.  Strouse,      .        .  Real  Estate  Broker,  .  587 

Yeisley,  Com.  v.      .         .         .  Public  Officers,      .  .  278 

Yorke,  North  &  Co.  v.    .        .  Pmctice,  C.  P.,      .  .  854 

Young,  Ferree  v.    .        .        .  Practice,  Superior  Ct.,  •  807 
Young,  Smyth,  Field  &  Co.  v. 

Levy, Judgment,     ...  28 

Yuengling  &  Sons  v.  Jennings,  Insurance,      .         .  .  614 

Zineman  &  Co.  v.  Harris,        .  Contract,       .        .  •  803 

Zook,  Coble  v.        .        .        .  Practice,  C.  P.,      .  .  597 


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CASES  CITED 

IN  THR 

OPINIONS  OF  THE  SUPERIOR  COURT. 


Page 

AhPs  Appeal,  129  Pa.  49 653 

Akers  v.  White,  94  Pa.  394 577 

Allentown  v.  Hower,  93  Pa.  332.  31 
Allgeyer  v.  Louisiana,  165  U.  S. 

578 291 

Arnold  v.  Hamel,  9  Exch.  404. .  555 
Ashhurst  v.   Phonograph,   Co., 

166  Pa.  357 456 

Atchison  v.  King,  9  Kan.  550. . .  549 

Auble  V.  Mason,  35  Pa.  261 500 

Auer  V.  Penn,  92  Pa.  444 142 

Auer  V.  Penn,  99  Pa.  370 456 

Aui-and  v.  Schaffer,  43  Pa.  363..  500 

Bach  man  v.  Fenstermacher,  112 

Pa.  331 561 

Backenstoss  v.  Stahler's  Admin- 
istrators, 33  Pa.  251 535 

Bain  v.  Lyle,  68  Pa.  60 378 

Baker  v  King,  18  Pa.  138 528 

Baldwin  v.  Cole,  6  Mod.  212 ... .  532 

Bank  v.  Carter,  38  Pa.  446.  .503,  539 

V.  Earley,  115  Pa.  359 451 

V.  Ellis,  161  Pa.  241 637 

V.  Furman,  4  Pa.  Superior 

Ct.  415 637 

V.  Mix,  51  N.  Y.558 HI 

V.  Seitz  Bros.,  150  Pa.  632..  514 

Battles  V.  Sliney,  126  Pa.  460. . .  549 

Bank  v.  Talbot,  154  Mass.  213. .  118 
Baranowski  v.  Aid  Society,  3  Pa. 

Superior  Ct.  367 65 

Ban-  V.  Boyles,  96  Pa.  31 277 

Beale  v.  Com.,  25  Pa.  11 427 

Beaupland  v.   McKeen,  28  Pa. 

124 479 

Beihofer  v,  Loeffert,  159  Pa.  365.  626 

Bell  V.  McCloskey,  155  Pa.  319. .  520 

Bennett  v.  Williams,  57  Pa.  404.  162 

Benson  v.  Clark,  1  Cow.  258 111 

Berks  Co.  v.  Jones,  21  Pa.  413..  400 

Berwald  v.  Ray,  165  Pa.  192 237 

Best  V.  Baumgardner,  122  Pa.  17 .  463 
Bidwell  V.  Railway  Co.,  114  Pa. 

535 341 

Bigelow  V.  Jones,  27  Mass.  161 . .  527 


Page 
Billingsley  v.  White,  59  Pa.  464.  620 
Billington  v.  Sweeting,  172  Pa. 

161 501 

Blanchard  v.  Lambert,  43  Iowa, 

228 441 

Blaufus  V.  People,  69  N.  Y.  107.  40 
Boards  of  Missiou^s  Appeal,  91 

Pa  507 195 

Boies'  Estate,  177  Pa.  190 195 

Booth  V.  Clive,  10  C.  B.  R.  827. .  555 
Boulden  v.  Mclntire,   119  Ind. 

574 441 

Bower  v.  Fenn,  90  Pa.  359 47 

Bower  v.  Hastings,  36  Pa.  285. . .  518 
Bowes  V.  Shand,  L.  R.  2  App. 

CriS68   455  25^ 

Bi-adleeV.  Whitney,  ios  Pa.  362.  340 
Braunschweiger  v.   Waits,    179 

Pa.  47 47 

Breiden  v.  Paff,  12  S.  &  R.  430. .  441 
Breuckmannv.Twibill,89Pa.58.  456 

Brobst  V.  Ruff,  100  Pa.  91 626 

Brown  v.  Brooks,  25  Pa.  210 419 

V.  Cora.,  73  Pa.  321 104 

V.  Dempsey,  95  Pa.  243 340 

V.  Eccles,  2  Pa.  Superior  Ct. 

192 541,  543 

V.  McKinley,  9  W.  565 318 

V.  Morange,  108  Pa.  69 363 

V.  Scott,  51  Pa.  357 461 

Brownfield  v.  Canon,  25  Pa.  299.  499 
Buckley  v.  Duff,  111  Pa.  223. . . .  451 
Buckley  v.  Duff,  114  Pa.  596. .. .  520 
Bughman  v.  Bank,  159  Pa.  94. . .  492 
Burford  v.  Fergus,  165  Pa.  310. .  282 
Burns  v.  Thornburgh,  3  W.  78. .  283 
Byrne  v.  Hayden,  124  Pa.  170.276, 379 

Cadwalader  v.  App,  81  Pa.  194. .  574 
Cairns  v.  Llewellyn,  2  Pa.  Supe- 
rior Ct  599 139,455 

Calhoun  v.  Hays,  8  W.  &  S.  127.  104 
Campbell  v.  Com.,  8  S.  &  R.  414.  278 

V.  Gilbert,  6  Wh.  72 194 

V.  O'Neill,  64  Pa.  290 451 

Canal  Co.  v.  Dunkel,  101  Pa.  103.  526 

(xvii) 


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XVlll 


TABLE  OF  CASES  CITED. 


Page 
Carlisle  v.  Stitler,  1  P.  &  W.  6. .  529 
Carman  v.  Noble,  9  Pa.  366.  278,  379 
(Jarpenter  v.  Koods,  20  Pa.  222.  479 
CaiToll  V.  Canoll,  20  Tex.  731..  441 

(;arroll  v.  Cora.,  84  Pa.  187 271 

(Jarter  v.  Caldwell,  147  Pa.  370.  30 
(^assidy  v.  Knapp,  167  Pa.  305. .  653 
Cliadwick  v.  Collins,  26  Pa.  1.S8.  689 
Cliarobers  v.  South  Chester,  140 

Pa.  510 650 

Chandler  v.  Ins.  Co.,  88  Pa.  223.  451 
Cliapman  v.  Calder,  14  Pa.  365. .  336 
Charles  v.  Abell,  Biightly  Rep. 

131 624 

Christian  v.  Ice  Co.,  2  Pa.  Supe- 
rior Ct.  320 596 

(Uiristy  v.  Sill,  131  Pa.  492 652 

Church  V.  Clime,  116  Pa.  146.. .  420 

Clark  V.  Smith,  25  Pa.  137 528 

Clement  V.  Phila.,  137  Pa.  328..  282 
Clow  V.  Woods,  5  S.  &  R.  275. . .  519 
Coal  Co.  V.  Jones,  127  111.  379. . .  441 
Coal  Co.  V.  Tosier,  102  Pa.  342. .  363 
Coates  V.  Wallace,  4  Pa.  Supe- 
rior Ct.  253 3.S6 

Collins  V.  State,  33  Ala.  434 Ill 

Com.  V.  Arnold,  161  Pa.  320. .. .  508 

V.  Bell,  166  Pa.  405 107 

V.  Biddle,  139  Pa.  605 291 

V.  Cover,  6  Cent.  Rep.  685. .  107 
V.  Doughty,  139  Pa.  383 ... .   104 

V.  Gerade,  145  Pa.  289 501 

V.  Gillespie,  7  S.  &  R.  469. .  268 

V.  Gorham,  99  Mass.  420 40 

V.  House,  3  Pa.  Superior  Ct. 

304 104 

V.  Improvement  Co.,  163  Pa. 

99 237 

V.  Johnson,  133  Pa.  293 107 

V.  Kelley,  165  Mass.  176 112 

V.  Lentz,  106  Pa.  643 560 

V.  Lockwood,  109  Mass.  323.  40 
V.  McDowell,  86  Pa.  377. .. .  451 

V.  M'Gill,  Add.  21 407 

V.  McHale,  97  Pa.  397 409 

V.  Mayloy,  57  Pa.  291 426 

V.  Mentzer,  162  Pa.  646 612 

V.  Middletown,  3  Dist.  Rep. 

639 218 

V.  Nichols,  114  Mass.  286. . .  108 
V.  Ranxiolph,  146  Pa.  83 . ...  408 

V.  Ross,  6  S.  &  R.  427 41 

V.  Smith,  2  Pa.  Superior  Ct. 

474 69,  549 

V.  Society,  8  W.  &  S.  247. . .  682 
V.  Swayne,  1  Pa.  Superior  Ct. 

547 233 

V.  Tad  rick,  1  Pa.  Superior 

Ct.  555 107 

v.ToUiver,  119  Mass.  312....  108 
V.  Union  League,  135  Pa.  301.  682 
V.  Warfel,  157  Pa.  444.  ..277,  662 


Page 

Com.  v.  Wunch,  167  Pa.  186 218 

v.   Yeisley,  6  Pa.  Superior 

Ct.  273 379,562 

Conmey  v.  Macfarlane,  97  Pa. 

361 672 

Connell  v.  O'Neill,  154  Pa.  682. .  608 

Connery  v.  Brooke,  73  Pa.  80. . .  568 

Conroy  v.  Times,  139  Pa.  334. . .  336 
Contributors  v.   Delaware  Co., 

169  Pa.  305 11 

Cooper  V.  Morris,  48  N.  J.  L.  607.  112 
Copperman  v.  People,  66  N.  Y. 

691 411 

County  V.  Boyd,  113  Pa.  62 624 

County  V.  Holcomb,  36  Pa.  349.  39 

Cover  V.  Manaway,  115  Pa.  338.  346 

Coyle  V.  Com.,  100  Pa.  573 501 

Crab  tree  v.  Hagenbaugh,  23  HI. 

349 Ill 

Crawford  v.  Davis,  99  Pa.  576. .  620 

Cress  V.  Varnev,  17  Pa.  496 667 

Curtis  V.  Ford,  10  L.  R.  A.  629.  379 

Cuthbert  v.  Kuhn,  3  Wh.  357. . .  479 

Davidson  v.  Traction  Co.,  4  Pa. 

Superior  Ct.  86 208 

Davis  V.  State,  14  Ind.  358 112 

Dawson  v.  Condy,  7  S.  &  R.  366.  484 
Dawson  v.  Pittsburgh,  159  Pa. 

317 660 

Dean's  Appeal,  35  Pa.  406 19 

De  Grote  v.  De  Grote,  175  Pa.  60. 

70,433 
Delashman  v.   Berry,  20  Mich. 

292 455 

D.  &  H.  Co.  V.  Loftus,  71  Pa.  418.  484 
Denniston  v.  Phila.  Co.,  1  Pa.  Su- 
perior Ct.  599 69 

Dick  V.  Ireland,  130  Pa.  299 255 

Dickinson  v.  Calahan's  Admrs., 

19  Pa.  227 202 

Diehl  V.  Rodgera,  169  Pa.  316. . .  40 
Dietz  V.  Langfitt,  63  Pa.  234. . . .  624 
Donoghue's  Appeal,  5  Pa.  Su- 
perior Ct.  1 90 

Doster  v.  Zinc  Co.,  140  Pa.  147.  666 

Dougherty  v.  Bash,  167  Pa.  420.  461 

Dowling  V.  Ins.  Co.,  168  Pa.  234.  70 

Downey  v.  Sharp,  63  Pa.  322 613 

Downing  v.  Com.,  21  Pa.  215. . .  277 

Drake  v.  Laooe,  157  Pa.  17 654 

Drhew  v.  Altoona,  121  Pa.  401. .  191 

Driesbaok  v.  Monis,  94  Pa.  23 . .  484 

Duff  V.  Wilson,  69  Pa.  316 243 

Duffield  V.  Hue,  129  Pa.  94 255 

Duncan  v.  Sherman,  121  Pa.  520.  501 
Dunseath  v.  Traction  Co.,  161  Pa. 

124 322 

Earl  V.  Champion,  65  Pa.  191. . .  500 

Edmonson  v.  Nichols,  22  Pa.  74.  451 

Edwards,  58  Iowa,  431 441 


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TABLE  OF  CASES  CITED. 


XIX 


Page 
Ellenberger  v.  Ids.  Co.,  89  Pa. 

464. 70 

EllioU  T.  Wanamaker,  155  Pa.  67.  65 
Hy  V.  Railway  Co.,  158  Pa.  236.  208 
Emery's  Case,  107  Mass.  172 ... .  113 
Emery  v.  Steckel,  126  Pa.  171. . .  511 
Episcopal  Academy  v.  Pbila.,  150 

Pa.  566 86 

ETaDS  V.  Goodwin,  132  Pa.  132..  654 

Evans  ▼.  Hall,  45  Pa.  235 360 

Erans  v.  Scott,  89  Pa.  136 520 

Ex  parte  Lange,  85  U.  S.  163.. . .  113 
Ex  part  Lange,  18  Wall.  163....  427 

Fairman  v.  Fluck,  5  Watts,  516.  35 
Feltonv.  Weyman,  10  Pa.  70...  363 
Ferguson  v.  Wright,  61  Pa.  258.  451 

Ferrigan  v.  Cora.,  44  Pa.  386 107 

Fick  V.  Jackson,  8  Pa.  Superior 

Ct.  378 22 

Filbert  v.  Hawk,  8  W.  443 281 

Fish  V.  Smith,  12  Ind.  563 Ill 

Fisher  v.  Hart,  149  Pa.  232 198 

V.  People,  23  ni  283 Ill 

V.  Phila.,  75  Pa.  392 528 

V.  Worrall,  5  W.  &  S.  478. ..  47 
Titz  V.  Smallbrook,  1  Keble,  134.  40 
Forepau^h  v.  Railroad  Co.,  128 

Pa.  217 118 

Forrest  v.  Nelson,  106  Pa.  481. .  462 

Fobs  v.  Bogan,  92  Pa.  296 484 

Francis  v.  Francis,  180  Pa.  644. .  440 
Fuller  V.  Scranton,  2  Cent.  Rep. 

788 548 

Fulmer  v.  Com.,  97  Pa.  603 106 

Galloway's  Appeal,  5  Pa.  Supe- 
rior Ct  272 152 

Gamber  v.  Gamber,  18  Pa.  363. .  500 

Garret  v.  Rex,  6  W.  14 194 

Garrettson  v.  Hackenburg,   144 

Pa.  107 520 

Gearhart  v.  Dixon,  1  Pa.  224. . .  548 

Geible  v.  Smith,  146  Pa.  276 449 

GilftUen's  Appeal,  170  Pa.  185. .  203 
Gillion  V.  Finley,  22  W.  N.  C. 

124 139,  454 

Gilmore  v.  Reed,  76  Pa.  462 282 

Ginther  v.  Yorkville,  3  Pa.  Supe- 
rior Ct.  403 461 

Glass  Co.  V.  Storms,  125  Pa.  268. 

306  353 
Goddard  v.  Weil,  165  Pa.  419. . !  520 
Godshalk  v.  Metzgar,  23  W.  N. 

C.  541 336 

Goerson  v.  Com.,  99  Pa.  388 107 

Goodman  v.  Transportation  Co., 

3  Pa.  Superior  Ct.  282 180 

Goss  P.  Co.  V.  Jordon,  171  Pa. 

474 521 

^^uld  V.  Ins.  Co.,  134  Pa.  588. . .  616 


Page 
Gk>wan  v.  Glaser,  3  Cent  Rep, 

109 237 

Grace  Church  v.  Dobbins,  153  Pa. 

294 449 

Graham  v.  Houston,  4  Dev.  232.  527 
Grambs  v.  Lynch,  4  Penny.  243.  529 
Grandin  v.  Ins.  Co.,  107  Pa.  20.  255 
Green   v.   Blackwell,  32   N.   J. 

Eq.  768 326 

Green  v.  Kellum,  23  Pa.  254 628 

Green  v.  Sperry,  16  Vt  390 534 

Gi-eensboro  v.  Underbill,  12  Vt 

604 441 

Griffith  V.  Knarr,  1  Pa.  Superior 

Ct  379 235 

Griffith  V.  Sitgreaves,  81*  Pa.  378  241 
Groezinger  v.  Ostheira,  135  Pa. 

g()4 4^ 

Gump  V.  Goodwin,  172  Pa.  276. .  284 

Hagan  v.  Lucas,  10  Peters,  U.  S. 

400 379 

Harbi8<m  v.  Gilliland,  No.  217 

Oct  &  Nov.  T.,  1886,  Pitts- 
burg    134 

Harding  v.  Seeley,  148  Pa.  20. . .  456 
Harris  v.  Traction  Co.,  180  Pa. 

184 508 

Hart  V.  Boiler,  15  S.  &  R.  162. . .  461 

V.  Skinner,  16  Vt  138 534 

V.  Trust  Co.,  118  Pa.  505. . .  513 
Hart,  Lee  &  Co.'s  Appeal,  157 

Pa.  200 601 

Hartley  v.  Decker,  89  Pa.  470. . .  236 
Hartzell  v.  Reiss,  1  Binn.  288. . .  363 
Hastings  v.  Lolough,  7  W.  540. .  363 
Haws  V.  Fire  Assn.,  114  Pa.  431.  255 
Hayes  <&  Black  v.  Mouille  <fe  Co., 

14  Pa.  48 269 

Hazelhui-st  v.  Bayard,  3  Y.  152.  283 
Heath  v.  Brewer,  15   C.  B.  R. 

(N.  S.)803 556 

Heffner  v.  Sharp,  3  Pa.  Superior 

Ct  249 481 

Held  V.  McBride,  3  Pa.  Superior 

Ct.  155 449 

Hengst's  Appeal,  24  Pa.  413 ... .  486 
Henry  v.  Bigley,  5  Pa.  Superior 

Ct  503 129 

Henry  v.  Heilman,  114  Pa.  499. .  451 
Herri  ngton  v.  Guernsey,  177  Pa. 

175 234 

Hershey  v.  Metzgar,  90  Pa.  217.  157 
Herstine  V.  R.  R.  Co.,  151  Pa.  244.  234 

Hill  V.  Egan,  160  Pa.  119 625 

Hill  V.  Egan,  2  Pa.  Superior  Ct. 

590 120 

Hoar  V.  Axe,  22  Pa.  381 600 

Hoberg  v.  State,  3  Minn.  262 111 

Holland  v.  White,  120  Pa.  228. .  604 

Holohan  v.  Mix,  134  Pa.  88 672 

Homer  v.  Com.,  106  Pa.  221. . . .  307 


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TABLE  OF  CASES  CITED. 


Page 

Hooks  V.  Forst,  165  Pa.  238 143 

Horton  v.  MiUer,  44  Pa.  256. . . .  283 

Hewer's  Appeal,  127  Pa.  134 28 

Hubbard  v.  French,  1  Pa.  Supe- 
rior Ct.  218 14 

Hudson  V.  Barrett,  1  Parsons, 

414 654 

Hughes  V.  Large,  2  Pa.  103 513 

Hugus  v.  Robinson,  24  Pa.  9 520 

Hull  V.  Rawls,  27  Miss.  471 441 

Hunter  v.  Hunter,  31  L.  R.  A. 
411 441 

Ingram  v.  Reed,  5  Pa.  Superior 

Ct  550 336 

Ins.  Co.  V.  Confer,  168  Pa.  698. .  306 

V.  Cusick,  109  Pa.  157 70 

V.  Erb,  2  Chest  Co.  537. .. .     71 
V.  Masonheimer,  76  Pa.  138.  578 
Irou  Co.  V.  Morton,  148  Pa.  72. .     57 
Iron  &  Steel  Co.  v.  Selliez,  175 

Pa.  18 587 

Irvin  V.  Kutruff,  152  Pa.  609... .  435 
Iiwin  V.  Wickei-sham,  25  Pa.  316.  451 

Jack  V.  Kintz,  177  Pa.  571 501 

Jacoby  v.  Guier,  6  S.  A  R.  448. .  283 
Jamison  v.  Collins,  83  Pa.  359. .  340 
Jennings  v.  McComb,  112  Pa.  518.  574 
Johnson  v.  Hulings,  103  Pa.  498.  590 

V.  Johnson,  114  111.  611 441 

V.  Railway  Co.,  160  Pa.  647.  322 

Jones*  Estate,  169  Pa.  392 481 

Jones  V.  Hughes,  5  S.  <&  R.  299. 

277,  554 
Joseph  V.  Richardson,  2  Pa.  Su- 
perior Ct  208 418 

Kay  V.  Fredrigal,  3  Pa.  221 276 

Keagy  v.  Com.,  43  Pa.  70 282 

Keene's  Appeal,  64  Pa.  268 194 

Keeney  v.  Good,  21  Pa.  349 600 

Kehler  v.  Schwenk,  144  Pa.  348.  22 

Kelber  v.  Plow  Co.,  146  Pa.  485.  245 

Kelly  V.  Drew,  94  Mass.  107 441 

Kern merer's  Appeal,  102  Pa.  558.  461 

Kepner  v.  Com.,  40  Pa.  124 548 

Kern's  Appeal,  120  Pa.  52:3 6.32 

Kern  v.  Simpson,  126  Pa.  42 47 

Kieffer  v.  Imhoff,  26  Pa.  438 449 

King  V.  Brooks,  72  Pa.  363 126 

King  V.  Steiren,  44  Pa.  99 510 

Kirk  V.  State,  14  Ohio,  511 Ill 

Klein  v.  Landman,  29  Mo.  2.59..  441 
Knights  of  Phythias  v.   Lead- 
beater,  2  Pa.  Superior  Ct  461.  435 
Koons  V.  Tel.  Co.,  102  Pa.  164..  451 
Kramer  v.  Com.,  87  Pa.  299.  107,  411 

Land  Imp.  Co.  v.  Mendinhall,  4 

Pa.  Superior  Ct.  898 47 

Lane  v.  Nelson,  167  Pa.  602.  255,  456 


Page 
Lane  v.  Penn  Glass  Sand  Co., 

172  Pa.  252 639 

Lantz  V.  Lutz,  8  Pa.  406... .  277,  561 
Lantz  V.  Worthington,  4  Pa.  153.  379 
Lauer  v.  Brewing  Co.,  180  Pa. 

593 80 

Lawrence  Co.'s  Appeal,  67  Pa.  87.  28 
Learning  v.  Wise,  73  Pa.  173. .. .  306 

Lee  V.  Dean,  3  Wh.  316 479 

Lee  V.  Gansel,  Cowp.  3 40 

Lee  V.  Keys,  88  Pa.  175 340 

Lerch  v.  Bard,  177  Pa.  197 234 

Levan's  Appeal,  112  Pa.  294. . . .  492 

Linton  v.  Hart,  25  Pa.  193 479 

Long  V.  Rhawn,  75  Pa.  128 513 

Long  V.  Seavei-s,  103  Pa.  617 ... .  156 
Louchheim  v.   Maguire,   6  Pa. 

Superior  Ct  636 640 

Lowe  V.  Wartman,  1  Cent  Rep. 

(N.  J.)437 624 

Lowry  v.  Mehafify,  10  Watts,  357.  574 
Lynch  v.  Com.,  88  Pa.  189 Ill 

McAlees  v.  Order  Iron  Hall,  12 

Cent  Rep.  415 683 

McBride  v.  Rinard,  172  Pa.  548.  292 
McBrier  V.  Marshall,  126  Pa.  390.  139 
McCai-thy  v.  DeArmit,  99  Pa.  63.  566 
McClafferty  v.  Philp,  151  Pa.  86.  624 
McConnelrs  Appeal,  97  Pa.  31. .  346 
McCune  v.  Baker,  1.55  Pa.  603..  195 
McDonough  v.  Jolly  Bros.,  165 

Pa.  542 419 

McGrann  v.  R.  R.,  Ill  Pa.  171. .  48 
McGuire  v.  James,  143  Pa.  521.  620 

Mclnroy  v.  Dyer,  47  Pa.  118 378 

McKibben  v.  Martin,  64  Pa.  352.  620 
McKinney  v.  Fritz,  2  W.  N.  C. 

173 604 

McKnight  v.  Bell,  135  Pa.  358. 

346  352 
McMicken  v.  Com.,  58  Pa.  213. .'  278 
McMurray  v.  Hopper,  43  Pa.  468.     19 

McNeil  V.  State,  47  Ala.  498 Ill 

McNerney  v.  Reading,  150  Pa. 

611 198 

Mackinley  v.  McGregor,  3  Wh. 

369 492 

Malone  v.  Dougherty,  79  Pa.  46.  142 
Marks  v.  Baker,  2  Pa.  Superior 

Ct  167 167 

Marshall  v.  Mayor,  59  Pa.  455 . .  648 
Martin's  Appeal,  2  Pa.  Superior 

Ct  67 479 

Mather  v.  Ministers,  3  S.  <&   R. 

508 528 

Maule  V.  Bucknell,  50  Pa.  39 .3-30 

Maurer  v.  People,  43  N.  Y.  1.. . .  110 
Maynes  v.  Atwater,  88  Pa.  496. .  462 

Meece  v.  Com.,  78  Ky.  586 112 

Menough's  Appeal,  5   W.  <&  S. 

432 242,243 


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TABLE  OF  CASES  CITED. 


XXI 


Page 
Merrill  v.  Nary,  02  Mass.  416...  Ill 
Michael  v.  Pipe  Line  Co.,  159  Pa.. 

99 650 

Miller  v.  Bedfoi-d,  80  Pa.  454.. . .  451 
Miller  v.  Zufall,  113  Pa.  317. . . .  529 
Mitchell  V.  Worden,  20  Barb.  253.  495 
Mollison  V.  Bowman,  3  Clarke, 

283 277,  562 

Montgomery  v.  Commissionei-s, 

76  Ind.  362 455 

Moody  V.  Pomeroy,  4  Den.  115. .  Ill 
Moore  v.  Com.,  6  W.  &  S.  314. . .     41 

V.  Copley,  165  Pa.  294 451 

V.  McMorrow,  5  Pa.  Superior 

Ct559 211 

Morgan  v.  McKee,  77  Pa.  228. . .  306 
Morrison  v.  Henderaon,  126  Pa. 

216 463 

Moyer  v.  Ins.  Co.,  176  Pa.  579. .  617 
Murphy  v.  Flood,  2  Gr.  Ca.  411.  604 
Murphy  v.  Moon,  1  Cent.  Rep. 

92 624 

Murray  v.   McCarthy,   5   Cent 

Rep.  169. 521 

Myers  v.  Bryson,  168  Pa.  246. . .  653 

Ka^gation  Co.  v.  Thobum,  7  S. 

AR.411 393 

Neall  V.  Hart,  115  Pa.  347 556 

Newbold  v.  Pennock,  154  Pa.  591. 

598,  637 
Newhard  v.  Railroad  Co.,  153  Pa. 

417 451 

Nicholas  v.  Chamberlain,  Cro. 

Jac.  121 449 

O'Connor  v.  Guthrie,  11  Iowa, 

80 Ill 

Ormsby  v.  Pinkerton,   159  Pa. 

458 449 

OiT  V.  Gas  Co.,  2  Pa.  Superior 

Ct.  401 551 

Orthwein  v.  Thomas,  127  111.  554.  441 

Osborn  v.  Bank,  154  Pa.  134 276 

Overdeer  v.  Updegraflf,  69  Pa. 

110 449 

Page  V.  McNanghton,  2  Pa.  Su- 
perior Ct.  519 167 

Paine  v.  Kindred,  163  Pa.  638. . .  241 
Palmer  v.  Farrell,  129  Pa.  162. .  525 
Parsons  v.  Hartman,  30  L  R.  A. 

98 379 

Patterson  y.  Dushane,  115   Pa. 

334 346 

Patterson  v.  Pieronnet,  7  W.  337 .  364 
Peale  v.  Addicks,  174  Pa.  549. . .  513 

Peck  V.  Jones,  70  Pa.  83 16 

Peebles'  Est,  157  Pa.  605 632 

Pennell  v.  Grubb,  13  Pa.  552 ....  282 
Pa.  Railroad's  Appeal,  125  Pa. 
189 568 


Page 
Penna.  R,  Co.  v.  Oil  Works,  120 

Pa.  485 269 

People  V.  Bush,  4  Hill,  133 407 

V.  Connors,  50  N.  Y.  240. . .   108 

V.  Maurer,  43  N.  Y.  1 Ill 

Peterson  v.  Haight,  3  Wharton, 

150 35 

PfafiE  V.  Thomas,  3  Pa.  Superior 

Ct  419 246 

Phila.  V.  Christian  Assn.,  125  Pa. 

672 11 

Phila.  V.  Jenkins,  162  Pa.  451. . .  26 
Phila.  V.  Masonic  Home,  160  Pa. 

572 11 

Phila.  V.  Richards,  124  Pa.  303. .  31 
Phila.  &  R.  R.  R.  Co.  v.  Long,  75 

Pa,  257 323 

Phillips  V.  Phillips,  48  Pa.  178..  449 

Picken's  Estate,  163  Pa.  14 442 

Pier  V.  CaiT,  69  Pa.  326 456 

Porter  v.  McGinnis,  1  Pa.  413. . .  528 
Post  V.  Berw ind- White  Co.,  176 

Pa.  297 521 

Potter's  Estate,  6  Pa.  Superior 

Ct  627 634 

Powell's  Appeal,  2  Pa.  Superior 

Ct  618 652 

Pratt  V.  Jewelry  Co.,  69  Pa.  53.  142 
Prell  V.  McDonald,  7  Kan.  426. .  549 

Prine  v.  Com.,  18  Pa.  103 Ill 

Printing  Co.  v.  Rice,  106  Pa.  623.  451 
Prior  V.  Craig,  5  S.  &  R.  44 554 

Railroad  Co.  v.  Conway,  177  Pa. 

364 686 

V.  Graham,  36  Pa.  77 586 

V.  Hill,  10  W.  N.  C.  461 499 

Railway  Co.  v.  Rolling  Mill  Co., 

119  U.  S.  149 419 

Railway  Co.  v.  Vance,  115  Pa. 

325 550 

Ralph  V.  FonDersmith,  3  Pa.  Su- 
perior Ct  618 492 

Ramsey's  Appeal,  2  W.  228 283 

Rand  v.  King,  134  Pa.  641 604 

Raymond  v.  Schoonover,  181  Pa. 

352 69 

Read  v.  Cambridge,   124  Mass. 

567 Ill 

Reed  v.  Ins.  Co.,  113  Pa.  574 286 

Reed  v.  Ward,  22  Pa.  144 479 

Reg.  y.  Dossett,  2  Car.  &  Kir. 

306 411 

Reg.  V.  Quail,  4  F.  <fe  F.  1076. ...  407 
V.  Ransfoi-d,  13  Cox  C.  C.  9.  409 
Reiter  v.  McJunkin,  173  Pa.  82.  318 
Kenninger  v.  Spatz,  128  Pa.  524.  520 
Rex  V.  Ellis,  9  Dowling  &  Row- 
land, 174 411 

Rex  V.  Hickman,  1  Moody,  34. ..  407 

V.  Higgins,  2  East,  5 407 

V.  Phillips,  6  East,  464 408 


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TABLE  OF  CASES  CIXED. 


Page 
Rex  V.   Plumpton,   2  Ld.   Ray- 
mond, 137T 408 

V.  Twyning,  2  B.  &  Aid.  386.  441 
V.  Vaughan,  4  Burr.  2494..  408 

V.  Voke,  1  R.  &R.  531 411 

Rhine  v.  Robinson,  27  Pa.  30. . .  104 
RhoadR  V.  Gordon,  38  Pa.  277. . .  500 
Richards  v.  Willard,  176  Pa.  181.  234 
Rider  v.  Johnson,  20  Pa.  190. ...  232 
Ritter  v.  Ewing,  174  Pa.  342 ....  624 

Robert's  Appeal,  59  Pa.  70 194 

Robinson  v.   Railroad,   161   Pa. 

561 392 

Rohbock  V.  McCargo,  6  Pa.  Supe- 
rior Ct.  184 455 

Rosenberger  v.  Hallowell,  35  Pa. 

369 474 

Rosenthal  v.  Ehrlicher,  154  Pa. 

396 234,508 

Roumfort  v.  McAlamey,  82  Pa. 

193 203 

Rowland  v.  Rowland,  8  Ohio,  40.  628 
Ruffner  v.  Hooks,  2  Pa.  Supe- 
rior Ct.  278 624 

RusselVs  Appeal,  34  Pa.  258. .. .  487 
Russell's  Appeal,  75  Pa.  269. .. .  632 

Sargent  V.  Roberts,  18  Mass.  337.  Ill 

Savil  V.  Roberta,  1  Salk.  13 624 

Scarborough  v.  Thornton,  9  Pa. 

451 278 

Schmisseur  v.  Beatrie,   147  111. 

810 441 

Schuey  v.  Schaeffer,  130  Pa.  23.  654 
Schuylkill  Nav.  Co.  v.  Thoburn, 

7S.  &R.  411 35,  550 

Schwilke's  Appeal,  100  Pa.  628.  404 
Sea  Grove  Assn.  v.  Stockton,  148 

Pa.  146 118 

Seabrook  v.  Meyer,  88  Pa.  417. .  479 
Seanor  v.  McLaughlin,  165  Pa. 

154 357 

Searight  v.  Bank,  162  Pa.  504. . .  654 

Seibert  v.  Levan,  8  Pa.  383 449 

Seltzer  v.  Coleman,  32  Pa.  493. .  401 
Senser  v.  Bower,  1  P.  <fe  W.  450.  442 
Shafer  v.  Senseman,  125  Pa.  310    65 

Shaffner  v.  Com.,  72  Pa.  60 411 

Sharp  V.  Johnson,  22  Ark.  79. . .  441 
Sharpe  v.  Scheible,  162  Pa.  341.  449 
Shaw  V.  Bowman,  91  Pa.  414. . .  534 
Sheaffer  v.  Sensenig,  182  Pa.  634 .  572 
Sheetz  v.  Hanbest's  Exrs.  81  Pa. 

100 363 

Shelly  V.  Dampman,  1  Pa.  Supe- 
rior Ct.  115 336,  451 

Shepherd  v.  People,  25  N.  Y.  406 .  40 
Sherman  v.  Way,  56  Barb.  188. .  533 
Shobcr  V.  Harrison  Bros.  &  Co. 

3  Pa.  Superior  Ct  188 501 

Shock  V.  McChesney,  2  Yeates, 

478 624 


Page 

Skinner  v.  Perrot,  1  Ash.  57 40 

Slag  Works  v.  Krause,  5  Pa.  Su- 
perior Ct,  622 16 

Slaymaker  v.  Irwin,  4  Wharton, 

369 417 

Smith's  Appeal,  23  Pa.  9 194 

Smith  V.  Com.,  14  S.  &  R.  69....     39 

V.  Com.,  54  Pa.  209 408 

V.  Ege,  52  Pa.  419 336 

V.  Ewer,  22  Pa.  116 282 

Y.  Smith,  21  Pa.  367 492 

Society  V.  Vandyke,  2  Wharton, 

809 582 

Southern    Development  Co.   v. 
Silva,  125  U.  S.  247.  ..307,  541,  593 

Sower  V.  Phila.,  35  Pa.  231 548 

Spears  v.  Burton,  31  Miss.  548..  441 
Speers  v.  Knarr,  4  Pa.  Superior 

Ct.  80 462 

Speers  v.  Sterrett,  29  Pa.  192. . .  282 

Stabler  v.  Com.,  95  Pa.  318 408 

Stafiford  v.  Ames,  9  Pa.  343 535 

Stanton  v.  White,  32  Pa.  358 ... .  19 
State  V.  Addy,  14  Vroora,  113. . .  427 

V.  Avery,  7  Conn.  266 407 

V.  Bowers,  15  L.  R.  A.  199..  407 

V.  Ober,  52  N.  H.  459 108 

V.  Pattei-son,  45  Vt.  306 Ill 

V.  Pike,  65  Me.  Ill 112 

V.  Thomas,  98  N.  C.  699. . . .  108 

V.  Watkins,  9  Conn.  47 411 

V.  Witham,  72  Me.  531 108 

Stearns  v.  Merchants'  Bank,  53 

Pa.  490 198 

Steffy's  Appeal,  76  Pa.  94 486 

Stephens  v.  Giflford,  1.37  Pa.  219.  520 
Stewart  v.  Lawsou,  181  Pa.  549.  574 
Stewart  v.  Thompson,  51  Pa.  158.  624 
Struthers  v.  R.  R.  Co.,  174  Pa. 

291 393 

Sullivan  v.  Tinker,  140  Pa.  35 . . .     25 

Sutton's  Est,  4  Kulp,  297 287 

Sutton  v.  Moi-gan,  158  Pa.  204. .     47 

Tasker's  Appeal,  182  Pa.  122 572 

Taylor  v.  Bedford,  13  Johns.  487.  Ill 

Tefft  V.  Sternberg,  5  L.  R.  A.  221.  379 

Teller  v.  Boyle,  132  Pa.  56 456 

Tenant  v.  Tenant,  110  Pa.  478. .  118 
Thiel  College  v.  Mercer  Co.,  101 

Pa.  530 11 

Thomas  v.  Miller,  151  Pa.  482. . .  104 

V.  Miller,  165  Pa.  216 626 

V.  Thomas,  124  Pa.  646 440 

Thompson    v.   Chase,   2    Grant 

Cases,  367 648 

Thorne  v.  Ins.  Co.,  80  Pa.  16. . .  624 

Tietz  V.  Traction  Co.,  169  Pa.  516.  234 

Tripner  v.  Abrahams,  47  Pa.  220.  500 

Turner  v.  Com.,  86  Pa.  54 107 

Uhler  v.  Maulfalr,  23  Pa.  481. . .  540 


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TABLE  OF  CASES  CITKD. 


XXIU 


Page 

Vanatta  V.Anderson,  3  Binn.  417.  127 
Van   Dyke  v.   Barger,  No.    83, 

May  T.  1878 443 

Van   Rensselaer  v.  Bradley,    3 

Den.   135 479 

Van  Rensselaer  v.  Gallup,  6  Den. 

454 4*^9 

Voight  V.  Wallace!  179  Pa!  520.  *  49 
Yoskamp  v.  Conner,  173  Pa.  109.  235 

Wade  V.  State,  12  Ga.  25 Ill 

Walker  v.  Tupper,  152  Pa.  1 461 

Wallace  v.  Walnwright,  87  Pa.  263  502 
Walls  V.  Campbell,  125  Pa.  346.  235 
Walter  v.  Dickson,  175  Pa.  204.     57 
Walton  y.  Caldwell,  5  Pa.  Supe- 
rior Ct.  143 435 

Walworth  v.  Abel,  52  Pa.  370..  868 
Warner  v.    Caulk,  3  Wharton, 

193 35 

Washington  v.  Butler,  25  L.  R.  A. 
434 4Qg 

Waters  v.  Bates,  44  Pa.  473 . ....  129 
Weaver  v.  Craighead,  104  Pa.  288.  346 
Weaver  v.  Roth,  l(te  Pa.  408 ... .  368 

Webb  V.  Lees,  149  Pa.  13 346 

Weber  v.  Rorer,  151  Pa.  487 481 

Wellock  V.  Cowan,  16  S.  &  R.  318.  283 
Wetherill  v.  Stillman,  65  Pa.  105.  276 

Wheeler  v.  Winn,  53  Pa.  122 507 

Whelen's  Appeal,  70  Pa.  410 631 

Whi  taker  v.  Houghton,  86  Pa.  48.  534 


Page 
White's  Exrs.  v.  Com.,  39  Pa. 

167 202 

Wilde  V.  Trainor,  59  Pa.  439... .  451 
Wilkle  V.  Collins,  48  Miss.  496. .  441 
WilUams'  Estate,  141  Pa.  436. . .  632 
Wilmoth  V.  Hensel,  151  Pa.  200.  39 
Wilson  V.  Ott,  173  Pa.  253. ..  57,  632 

V.  Sllkman,  97  Pa.  509 500 

V.  The  Tuscarora,  25  Pa.  317.  451 
Winchester  v.  Bennett,  54  Pa. 

610 451 

Wlnebiddle  v.  Porterfleld,  9  Pa. 

JgY ^ g;:jQ 

Wise  V.  Wilis,  2  Rawle,  208 555 

Woeckner  v.  Electric  Traction 

Co.,  182  Pa.  182 323 

Wolf  V.  Studebaker,  65  Pa.  459.  510 

Wood  V.  Appal,  63  Pa.  210 525 

Woodward  v.  Heist,  180  Pa.  161.  508 
Wright V.  Vickers,  81  Pa.  122...  286 

Yerkes  v.  Richards,  170  Pa.  846.  451 
York  Co.  V.  Dalhousen,  45  Pa. 

372 39 

Yost  V.  Davison,  5  Pa.  Superior 

Ct  469 30,  115 

Zebley  v.  Storey,  117  Pa.  478. . .  624 
Zell  V.  Universalist  Society,  119 

Pa.  390 449 

Ziegler  v.  Handrick,  106  Pa.  87..  520 


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Google 


ACTS  OF  ASSEMBLY  CONSTRUED. 

1 72 1 .  February  24,  2  Sm.  L.  124.     Party  walls.     Trust  Co.  v.  Haf- 

ner,  48. 
1772.  Maich  21, 1  Sm.  L.  365.     Constables.     Com.  v.  Yeisley,  273  ; 

Pollock  V.  Ingi'am,  556. 
1790.  April  5,  2  Sm.  L.  539.     Jail  keepers.     McHenry's  Petition, 

464. 
1810.  March  20,  5  Sm.  L.  161.     Justice  of  the  peace.     Griffin  v. 

Davis,  481. 

1860.  March  31,  P.  L.  427.     Jail  keepers.     McHenry's  Petition, 

464. 

1861.  May  1,  P.  L.  550.     Mechanic's  lien.     Clark  v.  Koplin,  462. 
1868.  April  13,  P.  L.  1017.     Taxation  (local  statute).     Com.  v. 

Commissioners,  211. 

1868.  August  1,P.  L.  1168.     Mechanic's  lien.     Clark  v.  Koplin, 

462. 

1869.  March  17,  P.  L.  8.     Attachment     Taylor  v.  Sattler,  229. 

1870.  March  4,  P.  L.  35.     Sewing  machines.     Bogert  v.  Batterton, 

468. 
1872.  March  21,  1  Sm.  L.  364.     Illegal  arrest     Ross  v.  Hudson, 

552. 
1885.  June  23,  P.  L.  136.     Fraudulent  removal  of  goods.     Com.  v. 

Lewis,  610. 
1885.  June  24,  P.  L.  187.     Taxation.     Com.  v.  Commissioners, 

211. 
1887.  May  13,  P.  L.  108.     Liquor  law.     Schellenbei-g's  License,  26. 
1887.  May  18,  P.  L.  118.     Mechanic's  lien.     Clark  v.  Koplin,  462. 
1887.  May  24,  P.  L.197.     Attachment.     Taylor  v.  Sattler,  229. 
1891.  May  20,  P.  L.  101.     Judgment.     Leader  v.  Dunlap,  243. 
1891.  June  9,  P.  L.  2.57.     Liquor  law.     Distiller's  License,  87. 
1893.  June  6,  P.  L.  633.     Taxation.     Com.  v.  Commissioners,  211. 
1895.  June  26,  P.  L.  392.     Advertisement  of  elections.     Wilkes- 

Barre  Record  v.  Luzerne  Co.,  600. 
1897.  July  14,  P.  L.  271.     Affidavit  on  appeal.     Anderson  v.  Mc- 

Michael,  114. 
Cxxiv) 


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LIST  OF  SUPERIOR  COURT  CASES  IN  WHICH  AL- 
LOCATURS  HAVE  BEEN  ALLOWED  OR  REFUSED, 
AND  THOSE  WHICH  HAVE  BEEN  REVIEWED  BY 
THE  SUPREME  COURT. 


REPORTED  IN  PA.  SUPERIOR  COURT  REPORTS,  VOLS.  1-6. 


ALLOCATURS  REFUSED. 

1  Pa.  S.  C.     4  Eraemer  v.  Safe  Deposit  Co. ;  Philadelphia  county. 

*^    148  Irwin  v.  Hanthom;  Chester  county. 

*'    261  Montgomery  v.  Fibre  Co.,  (Lumber  Co.'s  Appeal); 
Monroe  county. 

**    432  Davidson  v.  Sanders;  Lackawanna  county. 

^'    496  Commonwealth  v.  Stahl;  Cumberland  county. 

**    613  Crumpton  v.  Pittsburg  Council  O.  U.  A.  M;  Alle- 
gheny county. 

**    627  Commonwealth  v.  Brewing  Co. ;  Philadelphia  county. 
Pa.     "      99  Gillmore  v.  Connelsville  Water  Co.;  Fayette  county. 

**    225  Hentz  v.  Boro.  of  Somerset;  Somerset  county. 

*'    373  Duff  V.  McDonough ;  Allegheny  county. 

'*    618  Meadville  Bank  Estate  (Powell's  Appeal);  Crawford 
county. 
Pa.     '*    244  Cobson's  Estate  Appeal;  Philadelphia  county. 

"    304  Commonwealth  v.  House;  Allegheny  county. 

"    398  Hill  V.  Liebig  Manufacturing  Co. ;  Lancaster  county. 

**    452  Mutual  Fire  Ins.  Co.  v.  Slio waiter;  Chester  county. 

"    475  City  of  Philadelphia  v.  Lyster;  Philadelphia  county. 

**    601  Wolf  V.  Erick  (Maurer's  Appeal);  Lancaster  county. 
Pa.     **    106  Mantel  Co.'s  Assigned  Estate;  Lycoming  county. 

**    159  Commonwealth  v.  Tragic;  Northumberland  county. 

"    174  Dunham,  Buckley  &  Co.  v.  Rundle;  Wyoming  county. 

**    243  Mease's  Appeal  (Zehring's  Estate);  Lebanon  county, 

**    279  Boatwright  v.  Railway  Co.;  Delaware  county. 

"    292  Miller  v.  Lash;  Lebanon  county. 

"    443  Weil  Bros.  v.  Cohn;  Clearfield  county. 

**    631  Cominsky  v.  Railway  Co. ;  Fayette  county. 

"    648  Snydei'^s  Appeal;  Cumberland  county. 
Pa.     **        1  Donohugh's  Appeal;  Philadelphia  county. 
*         **    528  City  of  Pittsburg,  for  use,  v.  Daly ,  Allegheny  county. 

(xxv) 


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xxvi  ALLOCATURS  ALLOWED. 

5  Pa.  S.  C.  663  Standard  Plate  Glass  Co.  v.  Water  Co.;  Butler  county. 
**         "    609  Stewaii;  v.  Jermon;  Philadelphia  county. 

6  Pa.     "        1  Mullen  v.  Juenet;  Venango  county. 

*'         '*    168  Goodman  et  al.  v.  Transportation  Co.;  Philadelphia 

county, 
**         "    211  Commonwealth  ex  rel.  Hillegas  v.  Huffman;  Bed- 

foi*d  county. 
"         "    369  Commonwealth  V.  Mitchell;  Somerset  county. 
**         "    401  Royer's  Estate  (Wolf's  Appeal);  Lancaster  county. 
"         "    405  Commonwealth  v.  Hutchinson;  Blair  county. 
"         "    428  McNeile  v.  Cridland;  Philadelphia  county. 
**         "    481  Griffin  v.  Davis;  Lackawanna  county. 
**         ^*    514  Gattle  et  al  v.  Kremp;  Berks  county. 
"         **    266  Commonwealth  v.  Spencer;  Luzerne  county. 

ALLOCATURS   ALLOWED   AND   JUDGMENTS   SUPERIOR 
COURT  AFFIRMED. 

1  Pa.  S.  C.  115  Shelly  v.  Dampman;  Berks  county.     174  Pa.  495. 

**         **    678  Commonwealth  v.  Muir;  Philadelphia  county.    180 
Pa.  47. 

2  Pa.    "      21  Road  in  Otto  Township;  McKean  county.    181  Pa. 

390. 

3  Pa.     **    264  Commonwealth  v.  Zacharias;  Philadelphia  county. 

181  Pa.  126. 
6  Pa.     "    132  City  of  Ene  v.  Griswold;  Erie  county.     184  Pa.  435. 
**         *•    159  Hays  V.  County  of  Cumberland;  Cumberland  county. 

185  Pa.  or  186  Pa. 

"         **    281  Bonner  v.  Pittsburg  Bridge  Co. ;  Allegheny  county. 

183  Pa.  195. 

"         "    304  W.  N.  Y.  <fc  P.  R.  R.  Co.  v.  Venango  county;  Venango 
county.     183  Pa.  618. 

ALLOCATURS   ALLOWED   AND  JUDGMENTS   SUPERIOR 
COURT  REVERSED. 

1  Pa.  S.  C.    63  *In  re  Melon  Sti*eet;  Philadelphia  county.    182  Pa. 

397. 
u         «*    409  *Traction  Co.  v.  Canal  Co. ;  Lackawanna  county.    180 

Pa.  636. 
"         "    587  Ferry  Co.  v.  Bridge  Co. ;  Allegheny  county.    179  Pa. 

466. 

2  Pa.     **    265  Youghiogheny  River  Bridge;  Fayette  county.     182 

Pa.  618. 

3  Pa.     "      14  ^Clements  v.  Philadelphia  Co. ;  Allegheny  county. 

184  Pa.  28. 

"         "    335»Allam  v.  Penna.  R.  R.  Co.;  Philadelphia  county. 
183  Pa.  174. 

4  Pa.     '*    301  ^Commonwealth   y.   Hufnal;  Philadelphia  county. 

186  Pa. 

*In  tills  case  there  was  dissenting  opinion  in  Superior  Court, 


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OASES 


TS  THS 


SUPEEIOK    COURT 


OF 


PEMSYLVMIA. 


The  Right  Reverend  Tobias  Mullen,  Appellant,  v.  Ernest 
Juenet,  Collector  of  the  City,  County  and  Poor  Taxes, 
for  the  First  Ward  of  the  City  of  Franklin,  and  T.  B. 
La  Rue,  Wm.  Brosang  and  James  T.  Wallace,  Commis- 
sioners of  Venango  County. 

Taxtition — Exemption — Public  charily — Church  school. 

A  school,  the  title  to  which  is  in  an  individual,  which  is  under  the  dom- 
ination and  control  of  the  Roman  Catholic  Church,  is  not  a  public  charity 
within  the  meaning  of  the  constitution  so  as  to  be  exempt  from  taxation 
by  virtue  of  the  facts  that  no  tuition  fee  is  charged,  and  that  up  to  the  pres- 
ent time  all  children,  whether  members  of  the  church  or  not,  are  received 
and  taught. 

The  property  cannot  be  said  to  be  regularly  and  permanently  devoted 
to  purely  charitable  purposes. 

Argued  May  18, 1897.  Appeal,  No.  191,  April  T.,  1897,  by 
plaintiff,  from  decree  of  C.  P.  Venango  County,  Jan.  Term, 
1896,  No.  1,  dismissing  bill  for  injunction  to  restrain  collection 
of  taxes  on  exempted  property.  Before  Rice,  P.  J.,  Wick- 
ham,  Beaver,  Reedeb,  and  Oblady,  JJ.    AflBrmed. 

Bill  for  injunction  to  restrain  collection  of  taxes  on  exempted 
property.    Before  Cbiswell,  P.  J. 
The  facts  sufficiently  appear  in  the  opinion  of  the  court  below. 
Vol.  VI— 1  (1) 


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2  MULLEN  v.  JUENET. 

Opinion  of  Court  below.        [6  Pa.  Superior  Ct. 

This  cause  came  on  to  be  heard  upon  bill,  answer,  replication 
and  evidence,  C.  I.  Heydrick,  Esq.,  appearing  for  the  plaintiff, 
and  W.  H.  Forbes,  Esq.,  for  the  defendants ;  after  argument 
and  due  consideration  we  find  the  following  facts : 

1.  That  lots  Nos.  185  and  188,  each  in  size  sixty  by  one 
hundred  and  fifty  feet,  in  the  city  of  Franklin,  said  county,  were, 
on  and  prior  to  October  1, 1879,  owned  in  fee  simple  by  Rev. 
Thomas  Carroll,  then  of  Franklin  Pa.,  who,  by  deed  bearing 
said  date,  conveyed  the  same  to  Tobias  Mullen,  of  the  city  and 
county  of  Erie,  Pa. 

2.  In  the  premises  of  this  deed  the  party  of  the  second  part, 
the  grantee,  is  described  as  follows,  viz :  "  Tobias  Mullen,  of 
the  City  and  County  of  Erie,  and  State  aforesaid,  in  trust  for 
the  members  of  St.  Patrick's  Roman  Catholic  Church,  Frank- 
lin, Pennsylvania,  party  of  the  second  part."  In  the  subse- 
quent parts  of  the  deed  no  trust  is  expressed,  but  there  is  the 
usual  formal  conveyance  of  the  lots,  "  to  the  said  party  of  the 
second  part,  his  heirs  and  assigns,"  with  a  clause  of  general 
warranty. 

3.  That  prior  to  the  month  of  September,  1894,  by  funds  con- 
tributed by  the  members  of  said  St.  Patrick's  Roman  Catholic 
Church  and  others,  there  was  erected  partly  upon  each  of  said 
lots,  a  large  three-story  brick  building,  principally  adapted  and 
designed  for  school  purposes,  containing  four  school  rooms,  a 
hall  for  school  entertainments,  three  small  living  rooms,  a  small 
chapel,  a  dining  room,  kitchen  and  two  small  class  rooms.  On 
the  outside  of  the  building  is  the  name  "  Catholic  School." 

4.  Since  September,  1894,  except  during  the  customary  vaca- 
tion seasons,  there  has  been  maintained  in  this  building  a  school 
in  which  the  usual  common  branches  and  some  others  have  been 
taught,  with  about  two  hundred  pupils  in  attendance,  occupy- 
ing the  four  schoolrooms,  with  four  teachers,  members  of  the 
ecclesiastical  order  known  as  "  Sisters  of  Mercy,"  in  addition  to 
the  resident  priest,  the  Rev.  J.  P.  McCloskey,  who  assists  in 
teaching,  hearing  recitations  in  certain  branches,  the  church  and 
parish  residence  occupied  by  him  being  on  adjoining  lots. 

5.  That  since  the  opening  of  said  school  it  has  been  main- 
tained as  a  free  public  school ;  that  is  to  say,  all  scholars  mak- 
ing application  for  admission  thereto  have  been  admitted,  and 
UD  tmtil  date  of  this  hearing  there  have  been  in  attendance 


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MULLEN  V.  JUENET.  8 

1897.]  Opinion  of  Court  below. 

thereat,  at  different  times  sixteen  scholars  who  were  not  mem- 
bers of  or  adherents  to  the  Catholic  Church,  all  others  being 
members  or  children  of  members  or  adherents  of  said  church. 

6.  No  tuition  is  paid  by  the  pupils,  the  expense  of  mainte- 
nance being  met  by  the  church  congregation  and  voluntary  con- 
tributions. The  school  is  not  maintained  for  profit  in  any 
manner,  but  the  sisters  engaged  in  teaching  have  their  home  in 
the  building,  using  the  three  living  rooms,  the  chapel,  dining 
room  and  kitchen. 

7.  At  the  opening  and  closing  of  the  schools  each  forenoon 
and  afternoon  there  are  certain  religious  exercises,  such  as  re- 
peating the  Lord's  Prayer,  the  Creed  and  the  Ten  Command- 
ments. 

8.  The  said  school  is  under  the  general  direction,  control  and 
management  of  tiie  resident  pastor.  Rev.  McCloskey,  who  re- 
ceives his  instructions  in  relation  thereto  from  the  plaintiff,  who 
it  appears  is  his  ecclesiastical  superior,  being  a  bishop  of  said 
Roman  Catholic  Church,  who  may  change  such  instructions  at 
pleasure. 

9.  That  said  lots  do  not  include  more  land  than  is  reasonably 
necessary  for  said  school  building  and  its  occupancy  for  the  pur- 
pose for  which  it  was  intended  and  is  used. 

10.  The  said  lots  were  regiilarly  assessed  and  returned  for 
taxation  at  a  valuation  of  $5,500  as  the  propeity  of  "  Catholic 
School  H,"  and  county,  poor  and  city  rates  were  levied  and 
assessed  thereon. 

11.  The  defendant,  Ernest  Jennet,  is  the  collector  of  county, 
poor  and  city  taxes  in  the  ward  of  said  city  within  which  the 
said  lots  are  situated,  and  has  for  collection  taxes  duly  and  reg- 
ularly assessed  thereon  as  follows,  viz :  County  taxes,  J22.00, 
poor  taxes,  J5.50,  and  city  taxes,  $68.75,  and  threatens  to  pro- 
ceed by  distress  upon  the  personal  property  on  the  premises  to 
collect  the  said  taxes. 

Upon  these  facts,  the  question  is  presented  :  Is  the  said  school 
property  exempt  from  taxation  under  the  constitution  and  laws 
of  the  commonwealth  ? 

We  must  determine  not  upon  the  equities  involved.  To  the 
extent  that  the  school  accommodates  and  furnishes  instruction 
to  the  youth  of  the  city,  it  relieves  the  burden  of  taxation  upon 
the  general  public  within  the  limits  of  the  city,  which  consti- 


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4  MULLEN  V.  JUENET. 

Opinion  of  Court  below.         [6  Pa.  Saperior  Cl. 

tutes  one  school  district.  The  burden  from  which  the  plaintiff 
now  seeks  to  be  relieyed  is  small  compared  with  the  expense  of 
educating  two  hundred  scholars  for  whom  the  school  district 
would  otherwise  have  to  furnish  school  facilities  and  instructicm. 
The  city  could  therefore  well  afford  to  barter  the  taxes  in  ques- 
tion for  the  relief  and  exemption  which  the  school  affords.  But 
it  \s  not  the  city  alone  which  is  concerned  in  this  controrersy. 
The  defense  is  being  made  by  the  county  commissioners,  in 
behalf  of  the  taxpayers  of  the  county.  If  the  property  be  ex- 
empt, then  to  the  extent  of  their  proportion  of  the  tax  the 
burden  of  those  outside  of  the  city  is  increased.  Other  interests, 
therefore,  than  those  of  the  city  are  at  least  to  this  limited 
extent  involved. 

Nor  are  we  to  dispose  of  the  question  by  what  the  local 
authorities  in  other  localities  may  have  done  or  are  doing  with 
respect  to  taxing  such  property.  Unfortunately,  the  laws  are 
not  uniformly  executed  or  adhered  to.  While  to  a  limited 
extent  the  usage  of  other  localities  and  their  practice  and  under- 
standing of  the  law,  may  furnish  a  guide  to  courts  in  construing 
the  law  in  some  cases,  yet  as  against  the  plain  letter  of  the  law 
and  its  construction  as  determined  by  the  high  court  whose 
duty  it  is  to  construe  it^  we  cannot  take  cognizance  of  local 
usages  and  practices. 

Prior  to  the  adoption  of  the  present  constitution  of  the  state 
there  was  no  prohibition  against  the  exemption  of  property 
from  taxation  by  the  legislature,  and  the  enactment  of  numer- 
ous laws  for  that  purpose,  exempting  all  classes  of  properties, 
was  recognized  as  an  evil  which  should  be  remedied.  To  do 
this  the  people  by  their  constitution  provided  as  follows,  viz  : 
^^  All  taxes  shall  be  uniform  upon  the  same  class  of  subjects 
within  the  territorial  limits  of  the  authority  levying  the  tax, 
and  shall  be  levied  and  collected  under  general  laws,  but  the 
general  assembly  may,  by  general  laws,  exempt  from  taxation 
public  property  used  for  public  purposes,  actual  places  of  reli- 
gious worship,  places  of  burial  not  used  for  private  or  corporate 
profits  and  institutions  of  purely  public  charity." 

It  will  be  observed,  therefore,  that  by  the  terms  of  the  con- 
stitution the  power  of  the  legislature  to  exempt  propei*ty  is 
limited.  They  may  exempt  only  such  as  belongs  to  one  or  the 
other  of  these  four  classes :  (a)  "  Public  property  used  for  pub- 


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MULLEN  V.  JUENET.  5 

1897.]  Opinion  of  Ck>uit  below. 

lie  purpoeee/'  that  is,  property  the  title  to  which  is  in  the  public 
and  which  is  used  for  public  purposes.  (6)  ''  Actual  places  of 
religious  worship,"  such  as  churches,  (c)  "  Places  of  burial 
not  used  for  private  or  corporate  profit."  (d)  "  Institutions  of 
purely  public  charity." 

It  is  clear  that  the  property  in  question  does  not  belong  to 
either  of  the  first  three  classes  indicated.  If  exempt,  therefore, 
it  must  be  as  an  ^^  institution  of  purely  public  charity." 

The  legislature  by  Act  of  May  14,  1874,  P.  L.  168,  desig- 
nated certain  classes  of  institutions  which  should  be  exempt 
under  this  clause  of  the  constitution,  and  in  doing  so  gaye  to 
the  language  quoted  a  very  liberal  interpretation,  by  providing 
that  "All  hospitals,  universities,  colleges,  seminaries,  acade- 
mies, associations  and  institutions  of  learning,  benevolence  or 
charity,  with  the  grounds  thereto  annexed  and  necessary  for  the 
occupancy  and  enjoyment  of  the  same,  founded,  endowed  and 
maintained  by  public  or  private  charity  "  should  be  exempt. 

This  act  has  not  been  held  to  be  unconstitutional,  but  it  has 
always  been  construed  by  the  courts  with  reference  to  the  lan- 
guage of  the  constitution,  so  that  many  of  the  institutions  have 
been  held  to  be  not  exempt,  notwithstanding  they  are  appar- 
ently covered  by  its  general  language.  The  question  as  to 
whether  or  not  they  were  exempt  has  always  turned  upon  the 
question  as  to  whether  or  not  they  came  within  the  limits  de- 
fined by  the  constitution  and  were  in  fact  "institutions  of 
purely  public  charity." 

The  question  as  to  what  institutions  were  purely  public 
charities  has,  upon  given  facts,  been  determined  in  a  number  of 
cases  by  the  Supreme  Court,  and  unfortunately  in  several  of 
them  by  a  divided  court.  The  judgment  of  that  court,  how- 
ever, although  dissented  from  by  some  of  its  members,  is  as 
binding  upon  this  court  as  one  sustained  by  the  unanimous 
opinion  of  its  judges.  In  this  case,  however,  we  do  not  have  to 
rely  upon  decisions  wherein  thei'e  have  been  dissenting  opin- 
ions, as  we  think  the  questions  here  presented  are  ruled  by 
adjudications  from  which  there  has  been  no  dissent. 

It  will  be  observed  that  the  title  to  the  property  is  in  Tobias 
Mullen,  his  heirs  and  assigns,  and  we  do  not  understand  that 
by  the  conveyance  to  him  there  is  raised  any  trust  in  favor  of 
the  members  of  St  Patrick's  Roman  Catholic  Church  of  Frank- 


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e  MULLEN  V.  JUENET. 

Opinion  of  Court  below.         [6  Pa.  Superior  Ct. 

lin.  The  only  use  expressed  in  the  deed  is  in  favor  of  the 
grantee,  "  his  heirs  and  assigns."  So  f ai\  however,  as  this  in- 
quiry is  concerned,  we  deem  it  immaterial  whether  the  plaintiff 
holds  the  title  to  the  lots  for  himself  or  as  trustee  for  the  mem- 
bers of  the  said  church,  as  it  was  no  doubt  intended  that  he  should. 
He  holds  the  legal  title  and  the  equitable  title  is  either  in  him 
or  in  the  membership  of  the  church.  If  it  be  in  him  he  has  the 
legal  right  to  control  its  use.  In  either  case  the  use  is  private 
and  personal  and  there  is  no  evidence  whatever  of  any  dedica- 
tion of  the  property  to  a  public  or  a  different  use.  It  is  true 
that  the  congregation  has  erected  a  building  thereon  which  is 
now  being  used  as  a  school  building,  and  assuming  that  the 
equitable  title  and  legal  use  is  vested  in  them,  yet  they  may  at 
any  time  change  the  use  of  the  property  and  building.  A  way 
may  be  used  by  an  entire  community,  but  if  it  has  an  owner 
who  may  close  it,  it  is  not  a  public  way.  Another  may  be  used 
by  but  few,  yet  if  all  have  the  right  to  use  it,  it  is  a  public  way. 
While  today  a  school  is  being  maintained  in  the  building,  which 
is  open  to  all  comers,  those  having  the  right  to  the  use  of  it  may 
lawfully  say  tomorrow  that  none  but  members  or  adherents  of 
their  particular  church  shall  be  admitted.  The  question  is  not 
will  they  do  so,  but  may  they  do  so.  Should  they  do  so,  would 
those  who  are  excluded  have  any  remedy  or  a  right  to  one? 
By  so  doing  the  members  would  do  only  that  which  they  might 
lawfully  do ;  and  no  one  would  question  the  propriety  of  their 
so  doing.  Such  would  also  be  the  case  if  the  property  be  held 
by  the  plaintiff  in  his  own  right  and  for  his  own  use. 

If  the  Rev.  Thomas  Carroll  had  conveyed  the  lots  in  question 
to  the  plaintiff  upon  an  express  trust  that  they  be  held  and 
used  for  free  school  purposes  to  which  all,  or  those  of  some 
natural  division,  of  those  of  school  age  should  be  entitled  to 
admission  upon  compliance  with  such  reasonable  regulations 
and  requirements  as  might  be  necessary  for  the  proper  conduct  of 
the  school,  or  if  by  some  proper  unequivocal  act  there  had  been 
a  dedication  and  setting  apart  of  the  property  for  a  public  pur- 
pose, subject  to  reasonable  and  general  restrictions  and  require- 
ments, a  different  question  would  have  been  presented. 

The  school  as  maintained  is  undoubtedly  a  charity.  It  is  not 
in  any  way  intended  for  profit,  but  it  is  in  no  sense,  as  we  un- 
derstand it,  within  the  meaning  of  the  provisions  of  the  const!- 


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MULLEN  V.  JUENET.  7 

1897.]  Opinion  of  Court  below. 

tution  a  "purely  public  charily.'*  The  public  has  in  no  Bense 
any  vested  interest  therein  or  control  thereover.  Both  the 
ownership  and  control  are  private. 

In  the  case  of  Miller's  Appeal,  10  W.  N.  C.  168,  two  bills  in 
equity  were  filed,  each  praying  for  an  injunction  to  restrain  the 
collection  of  taxes,  one  by  William  O'Hara,  Roman  Catholic 
Bishop  of  Scranton,  and  the  other  by  a  corporation  known  as 
the  "Society  of  Sisters  of  Christian  Charity."  The  facts  in 
relation  to  the  ownership  and  control  of  the  property  as  assessed 
were  very  similar  to  the  facts  hereinbefore  found  in  this  case. 
A  preliminary  injunction  having  been  granted  by  the  court  be- 
low, the  same  was  by  the  Supreme  Court  on  appeal  dissolved. 
The  order  being  interlocutory  and  not  final,  no  opinion  was  filed 
nor  reasons  given,  as  is  customary  in  such  cases.  In  a  subse- 
quent case,  however,  that  of  Philadelphia  v.  Women's  Christian 
Association,  125  Pa.  572,  Paxson,  C.  J.,  gives  the  reasons. 
Among  others  he  says :  "  Yet  it  did  not  appear  in  that  case, 
upon  the  hearing  upon  the  preliminary  injunction,  however  the 
fact  may  have  been,  that  the  real  estate  taxed  was  stamped 
with  any  public  charity ;  nor  was  there  anything  to  show  that 
the  regulation  of  the  schools  might  not  have  been  changed  at 
any  time  and  converted  into  a  source  of  profit." 

The  same  is  true  of  Thiel  College  (a  Lutheran  denomina- 
tional institution)  v.  County  of  Mercer,  101  Pa.  530.  Of  this 
college  the  same*  judge  says :  "  It  can  convert  the  very  land  it 
seeks  to  exempt  from  taxation  into  money  and  apply  it  to  its 
own  corporate  use ; "  and  in  Philadelphia  v.  Women's  Chris- 
tian Association,  supra,  Paxson,  C.  J.,  says  of  it:  "So  far  as 
appeared  in  the  case  there  was  nothing  in  its  charter  to  stunp 
it  as  a  public  charily  over  any  other  college,  and  whatever  may 
have  been  the  regulations  of  its  management,  there  was  nothing 
to  prevent  these  regulations  from  being  changed  at  any  time." 

Speaking  of  Hunter's  Appeal,  22  W.  N.  C.  361,  and  other 
cases,  the  same  judge  says :  "  Nor  was  its  charitable  chai*acter, 
in  either  of  the  cases,  so  stamped  upon  the  institution  itself, 
upon  its  organic  law,  that  the  mode  of  administering  it  might 
not  have  been  changed  at  any  time." 

One  of  the  most  recent  csuies  upon  the  subject  is  that  of 
Philadelphia  v.  Masonic  Home,  160  Pa.  572,  wherein  the  prop- 
erty was  held  by  a  divided  court  to  be  not  exempt.    This  was 


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8  MQLLEN  v.  JUENET. 

Opinion  of  Court  below — Assignment  of  Errors.     [6  Pa.  Superior  Ct. 

an  incorporated  institution  and  its  charter  provided  that  its 
object  should  be  "  to  provide  for  indigent,  afficted  or  aged  Free 
Masons,  their  widows  and  orphans,  in  the  State  of  Pennsylvania, 
and  for  such  others  as  may  be  placed  in  its  charge."  This  was 
held  to  be  not  a  "  purely  public  charity." 

In  view  of  the  facts  found  and  these  authorities,  we  have 
reached  the  following  conclusion  of  law : 

That  the  property  upon  which  the  taxes  in  question  have 
been  levied  is  not  devoted  to  a  purely  public  charity,  and  that 
the  school  maintained  thereon  is  not  an  institution  of  purely 
public  charity  within  the  meaning  of  the  provisions  of  the  con- 
stitution and  the  act  of  assembly  passed  in  pursuance  thereof 
relating  to  the  exemption  of  property  from  taxation,  and  that 
the  property  mentioned  in  the  plaintiff's  bill  of  complaint  as 
having  been  assessed  and  returned  for  taxation  is  not  exempt 
from  taxation. 

From  this  it  follows  that  the  plaintifiFs  bill  of  complaint  must 
be  dismissed. 

Errors  assigned  were  (1)  In  finding  as  follows :  "  It  will  be 
observed  that  the  title  to  the  property  is  in  Tobias  Mullen,  his 
heirs  and  assigns,  and  we  do  not  understand  that  by  the  con- 
veyance to  him  thei'e  is  raised  any  trust  in  favor  of  the  members 
of  St.  Patrick's  Roman  Catholic  Church  of  Franklin."  (2)  In 
finding  as  follows :  "  In  either  case  the  use  is  private  and  per- 
sonal and  thei'e  is  no  evidence  whatever  of  any  dedication  of 
the  property  to  a  public  or  a  different  use."  (3)  In  finding  as 
follows :  "  While  today  a  school  is  being  maintained  in  the  build- 
ing which  is  open  to  all  comers,  those  having  the  right  to  the 
use  of  it  may  lawfully  say  tomorrow  that  none  but  members  or 
adherents  of  their  particular  church  shall  be  admitted.  The 
question  is  not  will  they  do  so,  but  may  they  do  so?"  (4)  In 
finding  as  follows :  "  By  so  doing  the  members  would  do  only 
that  which  they  might  lawfully  do,  and  no  one  would  question 
the  propriety  of  their  so  doing."  (5)  In  finding  as  follows : 
"  The  public  has  in  no  sense  any  vested  interest  therein  or  con- 
trol thereover.  Both  the  ownership  and  control  are  private." 
(6)  In  finding :  "  That  the  property  upon  which  the  taxes  in 
question  have  been  levied  is  not  devoted  to  a  purely  public 
charity  within  the  meaning  of  the  provisions  of  the  constitution 


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MULLEN  V.  JDENET.  9 

1897.]  Assignment  of  Errors— Arguments. 

and  the  act  of  assembly  passed  in  pursuance  thereof  relating  to 
the  exemption  of  property  from  taxation,  and  that  the  property 
mentioned  in  the  plaintiff's  bill  of  complaint  as  having  been 
assessed  and  returned  for  taxation  is  not  exempt  from  taxation. 
From  this  it  follows  that  the  plaintiff^s  bill  of  complaint  must 
be  dismissed."  (7)  In  the  decree,  to  wit :  "  And  now,  March  22, 
1897,  this  cause  came  on  to  be  heard  and  was  argued  by  counsel, 
whereupon,  upon  consideration  thereof,  it  is  ordered,  adjudged 
and  decreed  as  follow^,  viz :  That  the  preliminary  injunction 
heretofore  granted  in  this  case  be  dissolved ;  that  the  plaintiff's 
bill  of  complaint  herein  be  dismissed,  and  that  the  plaintiff  pay 
the  costs  of  this  suit." 

C  Heydrick^  with  him  Carl  L  Heydrick^  for  appellant. — The 
essential  feature  of  a  public  use  is  that  it  is  not  confined  to  priv- 
ileged individuals,  but  is  open  to  the  indefinite  public.  It  is 
this  indefinite  and  unrestricted  quality  that  gives  it  its  public 
character :  Donohugh's  Appeal,  86  Pa  306 ;  Mullen  v.  Commis- 
sioners, 85  Pa.  288. 

Where  there  are  no  apparent  reasons  to  traverse  it,  the  pre- 
sumption is  that  the  existing  state  of  things  wiU  continue :  Mil- 
ler V.  Henry,  84  Pa.  88. 

The  use  defines  the  exemption,  not  the  mode  of  dedication. 
The  public  use  is  the  only  thing  that  the  exemption  is  condi- 
tioned upon.  The  legislature  has  not  designated  any  mode  of 
dedication  as  a  condition  precedent  to  exemption. 

The  congregation  of  St.  Patrick's  Church,  though  an  unin- 
corporated association,  has  a  quasi-corporate  existence,  and  has 
power  to  hold  the  equitable  title  to  the  land  and  build  appro- 
priate buildings  thereon :  Phipps  v.  Jones,  20  Pa.  260. 

The  objection  that  the  property-may  at  any  time  be  diverted 
from  the  public  charitable  use,  and  lawfully  so,  at  the  will  of 
the  plaintiff,  is  not  well  considered.  The  funds  contributed  for 
the  maintenance  of  the  school  are  bound  to  be  applied  in  fur- 
therance of  that  charily  and  not  otherwise :  Bethlehem  v.  Fire 
Co.,  81  Pa.  446. 

That  the  school  property  is  not  taxable  because  the  school  is 
"denominational,"  was  decided  in  1892:  Episcopal  Academy 
V.  Philadelphia,  160  Pa.  566. 


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10  MULLEN  V.  JDENET. 

Opinion  of  the  Court.  [6  Pa.  Superior  Ct. 

Wm.  H.  Forhe$f  for  appellees. 

Opinion  by  Reedbb,  J.,  July  23, 1897 : 

This  is  a  bill  in  equity  for  an  injunctdon  to  restrain  the  county 
of  Venango  from  assessing  and  collecting  taxes  from  the  plain- 
tiff for  property  of  the  Roman  Catholic  Church,  upon  which  a 
building  is  erected  which  is  used  as  a  schooL 

The  only  question  raised  by  the  assignments  of  error  is :  Is 
this  a  purely  public  charily,  such  as  will,  under  the  statutes  of 
this  state  and  the  provision  in  the  state  constitution,  be  exempt 
from  taxation  ? 

While  it  is  in  evidence,  and  may  be  accepted  by  us  as  a  fact, 
that  the  attendance  upon  this  school  is  not  limited  to  children 
of  members  or  adherents  to  the  Roman  Catholic  Church,  but 
that  children  of  all  sects  are  admitted  and  taught  there,  and  that 
no  tuition  is  paid  by  the  pupils,  the  expense  of  its  maintenance 
being  met  by  voluntary  contributions  principally  from  the  con- 
gregation of  t^e  church,  yet  it  is  under  the  domination  and  con- 
trol of  the  Roman  Catholic  Church,  and  the  property  is  their 
exclusive  property. 

The  property  in  question  is  not  the  property  of  a  corporation. 
Its  use,  control,  management  and  regulation  are  entirely  within 
the  power  of  the  plaintiff.  The  title  is  conveyed  to  him  in  trust 
for  the  members  of  the  congregation.  The  owners  of  the  build- 
ing can  at  any  time  assert  their  right  to  exclusive  benefit  there- 
from. The  conduct  and  management  are  rendered  no  part  of 
the  institution  by  its  organic  law,  but  can  at  any  time,  by  the 
act  of  the  owners  thereof,  be  restricted  entirely,  absolutely  and 
exclusively  to  the  children  of  members  of  the  congregation. 

In  interpreting  the  Act  of  May  14,  1874,  P.  L.  168,  which 
designated  certain  classes  of-  institutions  as  being  exempt  from 
taxation,  and  within  the  letter  of  which  act  this  institution  might 
come,  we  must  read  into  it  the  provision  of  the  constitution  of 
the  state,  which  provides  that  "  the  general  assembly  may  by 
general  laws  exempt  from  taxation  public  property  used  for  pub- 
lic purposes  and  institutions  of  purely  public  charity." 

Therefore,  no  institution  falling  within  the  act  of  1874  can, 
under  it,  be  exempt  from  taxation,  unless  it  also  falls  within 
the  provision  of  the  constitution,  and  is  purely  a  public  charity. 

The  question  as  to  what  are  institutions  of  purely  public  char- 


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MULLEN  V.  JUENET.  11 

1897.]  Opinion  of  the  Court. 

ity  has  been  considered  and  determined  by  the  Supreme  Court 
in  a  very  large  number  of  cases.  For  the  purposes  of  this  case 
it  is  only  necessary  to  cite  a  few  of  tlie  principles  which  have 
the  most  direct  application  to  the  case  before  us.  There  can  be 
no  doubt  that  this  school,  under  the  evidence,  is  a  charity.  It 
is  not  carried  on  for  profit,  and  all  children,  whether  members 
of  the  church  or  not,  are  at  present  received  aud  taught  in  the 
school  without  being  charged  anything  for  tuition.  There  is  no 
obligation  upon  the  owners  of  this  property  to  continue  this 
course,  and,  in  the  nature  of  things,  it  is  but  a  fair  presumption 
that  when  the  children  of  the  members  of  this  congregation  be- 
come numerous  enough  to  require  the  entire  space  contained 
in  the  school  building  for  their  education,  the  tuition  will  be 
restricted  to  the  children  of  the  people  to  whom  the  school  be- 
longs. 

In  Philadelphia  v.  Woman's  Christian  Association,  125  Pa. 
572,  Chief  Justice  Paxson  says :  "  Yet  it  did  not  appear  in  that 
case  upon  the  hearing  of  the  preliminary  injunction,  however 
the  fact  may  have  been,  that  the  real  estate  taxed  was  stamped 
with  any  public  charity  nor  was  there  anything  to  show  that  the 
regulation  of  the  schools  might  not  have  been  changed  at  any 
time  and  converted  into  a  source  of  profit." 

In  Thiel  College  v.  County  of  Mercer,  101  Pa.  530,  the  same 
Chief  Justice  says :  "  It  can  convert  the  very  land  it  seeks  to 
exempt  from  taxation  into  money  and  apply  it  to  its  own  cor- 
porate use." 

In  Philadelphia  v.  Masonic  Home,  160  Pa.  572,  "  the  defend- 
ant was  an  incorporated  institution,  and  its  charter  provided 
Hiat  its  object  should  be  to  provide  for  indigent,  afflicted  or  aged 
free  masons,  their  widows  and  orphans  in  the  state  of  Pennsyl' 
vania,  and  for  such  others  as  may  be  placed  in  its  charge."  Tliis 
was  held  to  be  not  a  public  charily. 

"  The  property  must  be  regularly  and  permanently  devoted 
to  purely  charitable  purposes  to  entitle  it  to  exemption  from 
taxation : "  Contributors  v.  Delaware  Co.,  169  Pa.  305. 

We  can  add  nothing  further  to  the  excellent  opinion  filed  by 
the  court  below  which  will  give  additional  strength  to  what  it 
has  said  in  the  disposition  of  this  case. 

The  exceptions  are  dismissed  and  the  decree  affirmed. 


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12  CX)MLY  &  CX).  V.  SIMPSON. 

SyllabuB— Arguments.  [6  Pa.  Superior  Ct 


Comly,  Flanigan  &  Co.,  Appellants,  v.  William  S.  Simp- 
son. 

Practice,  C,  P. — Affidavit  of  defense — Insuffidency^Running  account. 
An  affidavit  of  defense  is  insufficient  which,  alleging  payments  on  an 
alleged  running  account,  suggests  an  hypothesis  that  if  a  statement  were 
made,  showing  all  credits  and  debits  between  the  parties,  affiant  could 
determine  what  was  due  by  liim  if  anything,  and  fails  to  aver  that  the 
amount  claimed  is  not  correct. 

Practice,  C.  P.— Affidavit  of  defense— Construed  against  defendant. 

An  affidavit  of  defense  is  to  be  taken  most  strongly  against  the  defend- 
ant ;  it  is  to  be  presumed  that  he  has  made  it  as  favorable  to  himself  as 
his  conscience  would  allow. 

Argued  Oct.  21,  1897.  Appeal,  No.  136,  Oct.  T.,  1897,  by 
plaintiffs,  from  judgment  of  C.  P.  No.  2,  Phila.  Co.,  Dec.  T., 
1896,  No.  1180,  for  want  of  a  sufficient  affidavit  of  defense. 
Before  Rice,  P.  J.,  Wiokham,  Bbavee,  Rbedeb,  Oblady  and 
PoETBE,  JJ.    Reversed. 

Assumpsit  for  goods  sold  and  delivered. 
The  facts  sufficiently  appear  in  the  opinion  of  the  court. 
The  court  refused  the  rule  for  judgment  for  want  of  a  suffi- 
cient affidavit  of  defense.    Plaintiffs  appealed. 

Error  assigned  was  discharging  plaintiffs*  rule  for  judgment 
for  want  of  a  sufficient  affidavit  of  defense. 

Cipraino  Andrade,  Jr.,  with  him  Charles  C.  Lister^  for  appel- 
lants.— The  language  of  an  affidavit  of  defense  should  be  taken 
most  strpngly  against  defendant :  Comly  v.  Bryan,  6  Wh.  261. 

The  alleged  pajrments  set  forth  in  the  affidavits  are  quite 
insufficient  to  prevent  judgment,  because  there  is  nowhere  any 
allegation  that  said  payments  were  on  account  of  the  demand 
in  suit :  Selden  v.  Building  Assn.,  2  W.  N.  C.  481. 

Samuel  J.  Taylor,  for  appellee. — Defendant  in  his  affidavits 
fully  and  satisfactorily  accounts  for  his  inability  to  set  forth 
more  clearly  his  defense  to  this  suit :  Brightly  v.  McAleer,  8 
Pa.  Superior  Ct.  442 ;  Hubbard  v.  French,  1  Pa.  Superior  Ct. 
218. 


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COMLY  &  CO.  V.  SIMPSON.  IS 

1897.]  Opinion  of  the  Court. 

Opinion  by  ObLiAdy,  J.,  November  19, 1897 : 
The  plaintifiE  claims  to  recover  "  for  goods,  to  wit,  groceries 
sold  and  delivered  by  the  said  plaintiff  to  the  said  defendant,  at 
the  defendant's  special  instance  and  request,  at  the  times  and  in 
the  amounts  specified  in  the  following  copy  of  plaintiff's  original 
account  with  the  defendant,  taken  from  the  plaintiff's  book  of 
original  entries,"  and  he  appends  to  the  statement  an  account 
beginning  November  9th  and  ending  December  15, 1896,  aggre- 
gating the  sum  of  ^68.19.  In  the  affidavit  of  defense  filed,  it 
is  averred  ^^  that  he  has  purchased  from  the  plaintiff  during  the 
last  two  years  about  $6,000  worth  of  goods  annually ;  that  he 
was  not  furnished  with  any  statements  showing  the  amount  of 
purchase  and  payments,  but  that  he  only  received  bills  for  the 
articles  purchased ;  that  he  made  payments  from  time  to  time, 
generally  by  check,  for  which  no  receipts  were  given;  the 
account  was  what  was  known  in  trade  as  a  running  account, 
and  without  a  statement  of  credits  it  is  impossible  to  say  posi- 
tively whether  credit  had  been  given  for  all  the  payments  made ; 
that  the  statement  does  not  set  forth  all  the  goods  purchased 
since  November  9, 1896,  and  does  not  set  forth  any  paymentB 
made  since  that  date ;  that  seven  cash  payments,  giving  the  date 
and  amount  thereof,  have  been  made  since  November  9, 1896^ 
which  exceed  the  plaintiff's  claim  by  $264.57,"  and  concludes,  **I 
beUeve  and  therefore  aver  that  upon  a  proper  examination  of  the 
books  of  said  firm,  it  will  appear  that  I  am  not  indebted  to  said 
firm  in  the  amount  set  forth  in  the  statement  filed  by  them  in 
this  case,  and  for  that  reason,  and  that  by  reason  of  the  failure 
to  furnish  me  with  statements  from  time  to  time,  and  especially 
to  set  forth  a  statement  of  my  credits  in  the  statement  filed  by 
them  I  am  unable  to  more  clearly  and  definitely  set  forth  my 
defense." 

And  in  a  supplemental  affidavit  he  avers  "  that  many  of  the 
papers,  bills,  receipts  and  checkbooks  and  canceled  checks  were 
in  some  way  lost  or  destroyed,  so  that  they  are  not  in  my  posses- 
sion or  control,  and  I  do  not  know  where  they  are,"  and  con- 
cludes, "  In  view  of  the  fact  that  I  have  not  in  my  possession 
or  control  my  receipts  and  checks  showing  all  of  my  transac- 
tions with  plaintiffs,  and  also  in  view  of  the  fact  that  they  have 
not  furnished  me  with  a  statement  whereby  I  could  see  if  they 
have  given  me  credit  for  the  checks  and  receipts  I  hold,  I  am 


Digitized  by  VjOOQ IC 


14  COMLY  &  CO.  v.  SIMPSON. 

Opinion  of  the  Court.  [6  Pa.  Superior  Ct. 

unable  to  state  whether  their  statement  of  my  indebtedness  to 
them  is  correct,  but  I  do  believe  the  statement  as  filed  is  not 
correct,  but  admit  that  without  the  information  above  referred 
to  I  am  unable  to  state  wherein  the  same  is  not  correct." 

The  affidavits  do  not  aver  that  the  amount  claimed  is  not  cor- 
rect ;  or  that  the  plaintiff  has  been  paid  in  full ;  or  that  the 
defendant  requested  of  the  plaintiff  a  statement  of  their  entire 
business  dealings,  which  had  been  refused ;  or  that  the  cash 
payments  mentioned  should  have  been  credited  on  the  partic- 
ular claim  in  suit.  His  farthest  contention  is  that  "upon  a 
proper  examination  of  the  books  of  said  firm  it  will  appear  that 
I  am  not  indebted  to  said  firm  in  the  amount  set  forth  in  the 
statement  filed."  We  may  admit  all  that  he  alleges,  and  he 
may  have  been  properly  credited  on  another  account  with  what 
he  has  paid  to  the  plaintiff,  and  yet  owe  the  amount  claimed. 
We  cannot  relieve  the  defendant  from  the  effect  of  his  careless- 
ness in  not  preserving  the  original  statements,  or  in  not  secur- 
ing or  trying  to  secure,  one  containing  the  whole  account,  or  in 
his  bad  system  of  doing  business  in  not  taking  receipts. 

This  case  is  not  brought  within  the  ruling  in  Hubbard  v. 
French,  1  Pa.  Superior  Ct.  218,  cited  for  the  appellee. 

The  affidavit  of  defense  is  to  be  taken  most  strongly  against 
the  defendant.  It  is  to  be  presumed  that  he  has  made  it  as 
favorable  to  himself  as  his  conscience  would  allow. 

The  fact  that  he  has  paid  a  sum  in  excess  of  the  one  claimed 
does  not  imply,  under  his  affidavits,  that  the  particular  account 
is  paid  in  full  any  more  than  that  other  dealings  between  the 
parties  may  have  been  properly  credited  with  the  excess. 

We  think  the  affidavits  insufficient,  the  judgment  of  the  court 
below  is  reversed,  and  we  direct  judgment  to  be  entered  against 
the  defendant  for  such  sum  as  to  right  and  justice  may  belong, 
unless  other  legal  or  equitable  cause  be  shown  to  the  court  be- 
low why  such  judgment  should  not  be  so  entered. 


Digitized  by  VjOOQ IC 


KILLEN  V.  BROWN.  15 

1897.]  Syllabus — Argaments. 

Charles  M.  N.  Killen  v.  William  R.  Brown,  Appellant. 

PracUce^  G,  P. — Affidavit  of  defense— Sufficiency ^EssenHcUs, 
An  affidavit  of  defense  should  state  the  facts  specifioally  and  with  suffi- 
cient detail  to  enable  the  court  to  say  whether  they  amount  to  a  defense, 
and  to  what  extent  they  amount  to  a  defense  and  also  to  inform  the  plain- 
tiff, with  some  degree  of  certainty,  what  will  be  interposed  to  defeat  his 
claim. 

Argued  October  21, 1897.  Appeal,  No.  2,  October  T.,  1897,  by 
defendant,  from  judgment  of  C.  P.  No.  8,  Phila.  Co.,  Dec.  T., 
1896,  No.  96,  for  want  of  a  sufficient  affidavit  of  defense.  Before 
RiCB,  P.  J.,  WiCKHAM,  Bbaveb,  Rbbdbb,  Orlady  and  Por- 
ter, JJ.      Affirmed. 

Assumpsit  for  goods  sold  and  delivered. 

The  affidavit  of  defense  was  as  follows : 

"  William  R.  Brown,  being  duly  sworn  according  to  law,  de- 
poses and  says  that  he  is  the  defendant  named  in  the  above  case, 
and  that  he  has  a  just,  true,  full  and  legal  defense  to  the  whole 
of  the  plaintiffs  claim  of  the  following  nature  and  character, 
to  wit: 

"  That  it  is  true  that  the  defendant  employed  the  plaintiff  to 
perform  certain  paper  hanging  in  the  defendant's  premises, 
named  in  the  plaintiff's  statement  of  claim,  and  on  the  terms 
and  conditions  therein  set  forth,  but  that  the  said  work  was 
done  in  an  unworkmanlike  manner,  and  that  the  material  fur- 
nished was  of  an  inferior  quality,  and  not  in  accordance  with 
his  contract  with  the  plaintiff  therefor,  and  that  soon  after  said 
work  was  done,  said  paper  faded  and  became  loosened  from  the 
wall.  By  reason  of  which  the  defendant  has  suffered  damages 
in  an  amount  at  least  equal  to  the  sum  claimed  by  the  plaintiff.'' 

The  court  made  absolute  the  rule  for  judgment  and  damages 
were  assessed  for  $320.58.    Defendant  appealed. 

Srror  assigned  was  entry  of  judgment  for  want  of  a  suffi- 
cient affidavit  of  defense. 

J.  H.  Brintonj  for  appellant. — If  the  averments  of  the  affidavit 
contain  what  in  law  or  equity  amounts  to  a  substantial  defense 
to  the  plaintiff's  claim,  it  follows  that  the  learned  court  erred 


Digitized  by  VjOOQ IC 


16  KILLEN  V.  BROWN. 

Arguments — Opinion  of  the  Court.  [6  Pa.  Superior  Ct. 

in  entering  judgment :  Church  v.  Jones,  182  Pa.  462 ;  Johnson 
V.  Fitzpatrick,  27  W.  N.  C.  250. 

Frank  P.  Prichard^  with  him  Thomas  S.  Oates^  for  appellee. 
— The  vague  and  evasive  averments  of  the  affidavit  are  insuffi- 
cient to  carry  the  case  to  a  jury.  A  reference  to  three  cases  is 
ample  to  justify  this  seemingly  obvious  contention :  Server  v. 
Heppe,  11  Montg.  171,  Bank  v.  Miller,  179  Pa.  412  and  Bonne- 
vUle  V.  Hamilton,  18  C.  C.  Rep.  31. 

Pee  Curiam,  November  19, 1897  : 

This  action  was  brought  to  recover  a  balance  alleged  to  be 
due  for  papering  five  houses.  The  affidavit  of  defense  alleges 
"  that  the  said  work  was  done  in  an  unworkmanlike  manner," 
without  specifying  how,  or  in  what  respect  it  was  unworkman- 
like ;  "  that  the  material  furnished  was  of  an  inferior  quality, 
and  not  in  accordance  with  his  contract,"  without  alleg^g  that 
the  plaintiff  contracted  to  furnish  paper  of  superior  quality  or 
setting  forth  what  the  contract  was ;  and  '^  that  soon  after  said 
work  was  done,  said  paper  faded  and  became  loosened  from  the 
wall,"  without  alleging  that  this  was  in  consequence  of  the 
plaintiff's  unskillful  workmanship  or  of  his  failure  to  use  such 
materials  as  he  was  bound  by  his  contract  to  use. 

Upon  these  allegations  the  defendant  bases  another,  namely, 
that  he  has  "  suffered  damages  in  an  amount  equal  at  least  to 
the  sum  claimed  by  the  plaintiff  "  without  specifying,  otherwise 
than  as  we  have  stated,  how  he  was  damaged.  We  are  of  opinion 
that  the  affidavit  was  wholly  insufficient  to  prevent  judgment 
If  the  paper  faded  and  loosened  from  the  walls  in  consequence 
of  the  plaintiff's  unskillful  workmanship,  or  of  his  use  of  im- 
proper materials,  this  fact  might,  and  should,  have  been  dis- 
tinctly averred  and  not  left  to  mere  inference :  Peck  v.  Jones, 
70  Pa.  83.  The  first  two  averments  are  not  sufficiently  specific. 
We  repeal  in  this  connection  what  we  said  in  Port  Kennedy  Slag 
Works  V.  Krause,  6  Pa.  Superior  Ct.  622  and  what  has  been  said 
in  many  earlier  decisions  of  this  court  and  of  the  Supreme  Court : 
"  An  affidavit  of  defense  should  state  the  facts  specifically  and 
with  sufficient  detail  to  enable  the  court  to  say  whether  they 
amount  to  a  defense,  and  to  what  extent  they  amount  to  a  de- 
fense, and  also  to  inform  the  plaintiff  with  some  degree  of  cer^ 
tainty  what  will  be  interposed  to  defeat  his  claim." 

Judgment  affirmed. 


Digitized  by  VjOOQ IC 


CARSON  V.  FORD.  17 

1897.]  SyllaboB— Statement  of  Facts. 


William  G.  Carson,  Appellant,  v.  Annie  K.  Ford,  de- 
ceased ;  Michael  Ford,  Jr.,  Executor  of  the  last  will 
and  testament  of  Annie  K.  Ford,  deceased;  Michael 
Ford,  Jr.,  Charles  Ford,  Joseph  J.  Ford  and  Mary  M. 
Ford. 

Judgment — RestricUd  lien — OenercU  verdict  on  ad,  fa,  to  revive, 
A  judgment  on  single  bill  specifically  restricted  to  certain  property  des- 
ignated to  the  exclusion  of  all  other  estate,  real  and  personal,  is  not  ex- 
tended by  a  general  verdict  for  the  plaintiff  on  a  scire  facias  to  revive,  and 
judgment  will  be  entered  thereon  so  as  to  conform  to  the  original  proviso 
in  the  bill  single. 

Argued  Oct  7,  1897.  Appeal,  No.  60,  Oct.  T.,  1897,  by 
plaintiff,  from  restricted  judgment  of  C.  P.  No.  2,  Phila.  Co., 
June  Term,  1894,  No.  208,  on  verdict  for  plaintiff.  Before 
Rice,  P.  J.,  Wickham,  Beaver,  Reedeb,  Oblady,  Smith  and 
PORTEB,  JJ.     Affirmed. 

Sci.  fa.  to  revive  judgment     Before  Pennypackeb,  J. 

It  appeared  from  the  evidence  that  one  Michael  Roach  owned 
the  house  1605  South  street  and  William  G.  Carson,  the  plain- 
tiff, had  a  general  judgment  against  Michael  Roach.  Annie  K. 
Ford  also  had  claims  against  Roach  and  agreed  to  loan  him 
more  money  and  take  a  conveyance  of  the  house.  Carson,  the 
plaintiff,  satisfied  his  judgment  and  took  the  judgment  note  of 
Annie  K.  Ford  for  his  debt  and  agreed  to  restrict  the  lien  to  the 
conveyed  premises,  the  proviso  being  as  follows : 

"Provided,  however,  that  said  judgment  when  entered  as 
aforesaid  shall  be  restricted  to  and  binding  only  upon  the  real 
estate  and  premises  No.  1606  South  street,  in  the  city  of  Phil- 
adelphia, now  owned  by  me,  and  not  to  affect  or  bind  any  other 
property  or  estate,  real  or  personal,  now  owned  or  which  may 
hereafter  be  owned  by  me." 

Some  six  months  after  Mrs.  Ford  died  and  a  scire  facias  was 
issued  by  the  plaintiff  to  revive  his  judgment  generally  against 
the  heirs  of  the  decedent,  Mrs.  Ford. 

The  verdict  was  for  the  plaintiff  for  $413.79.  Defendants 
filed  motions  and  reasons  for  a  new  trial.  After  argument  of 
Vol.  VI— 2 


Digitized  by  VjOOQ IC 


18  CARSON  V.  FORD. 

Statement  of  Facts — Opinion  of  the  Court.  [6  Pa.  Superior  Ct. 

the  rule  for  the  new  trial  the  court  discharged  the  rule  and  or- 
dered judgment  to  be  entered  as  foUows : 

"  That  judgment  be  entered  on  the  verdict,  provided,  how- 
ever, that  said  judgment  when  entered  as  aforesaid,  shall  be  re- 
stricted to  and  binding  only  upon  the  interest  of  Annie  K.  Ford, 
deceased,  in  the  real  estate  and  premises  No.  1606  South  Street 
in  the  city  of  Philadelphia,  and  not  to  affect  or  bind  any  other 
property  or  estate,  real  or  personal,  now  owned  or  which  may 
hereafter  be  owned  by  the  estate  of  said  Annie  E.  Ford,  de- 
ceased."   Plaintiff  appealed. 

Errors  amgned  were  (1)  in  attaching  a  restriction  or  proviso 
to  the  judgment  for  plaintiff  entered  on  the  verdict,  reciting 
proviso.  (2)  In  not  entering  a  general  judgment  for  plaintiff, 
without  condition  or  restriction. 

John  Dolman^  for  appellant. — Relied  on  Stanton  v.  White,  82 
Pa.  858,  Dean's  Appeal,  85  Pa.  405,  and  McMurray  v.  Hopper, 
48  Pa.  468. 

Walter  George  Smithy  with  him  William  Rudolph  Smithy  for 
appellees. — The  cases  cited  by  the  appellant  have  no  bearing  on 
the  real  question  at  issue.  In  none  of  the  cases  cited  was  any 
agreement  proved,  as  in  this  case.  The  appellees'  contention 
is  that  their  case  is  brought  clearly  within  the  principles  laid 
down  in  the  case  of  Irwin  v.  Shoemaker,  8  W.  &  S.  75.  See 
ako,  Hoeveler  v.  Mugele,  66  Pa.  348,  and  Sankey  v.  Reed,  12 
Pa.  95. 

Opinion  by  Beavbb,  J.,  November  19, 1897 : 
Judgment  was  originally  entered  in  the  court  below  on  a 
single  bill  with  warrant  of  attorney  to  confess  judgment,  which 
contained  the  following  proviso :  "  Provided,  however,  that  such 
judgment  when  entered  as  aforesaid  shall  be  restricted  to  and 
binding  only  upon  the  real  estate  and  premises  No.  1605  South 
Street  in  the  City  of  Philadelphia,  now  owned  by  me,  and  not 
to  affect  or  bind  any  other  property  or  estate,  real  or  personal, 
now  owned  or  which  may  be  hereafter  owned  by  me."  After 
the  death  of  Annie  K.  Ford,  a  scire  facias  was  ifeued  to  revive 
the  judgment  against  the  heirs  and  personal  representatives  of  the 


Digitized  by  VjOOQ IC 


CARSON  V.  FORD.  19 

1697.]  Opinion  of  the  Couit. 

decedent.  On  the  trial  of  this  scire  facias  a  general  verdict  for 
tiie  plaintiff  was  taken,  but,  upon  a  motion  for  a  new  trial,  the 
rule  granted  tiierein  was,  upon  hearing,  discharged,  and  judg- 
ment was  directed  to  be  entered  upon  the  verdict  in  accordance 
with  the  restrictions  contained  in  the  proviso  which  was  part  of 
the  original  obligation.  From  the  decree  restricting  the  effect 
of  the  judgment  this  appeal  is  taken,  the  only  error  assigned 
being  the  entry  of  the  judgment  with  the  restricting  clause  at- 
tached, instead  of  a  general  judgment,  without  condition  or 
restriction. 

It  is  only  necessary  to  examine  the  bill  single,  upon  which 
the  original  judgment  was  entered,  which  constitutes  the  con- 
tract between  the  parties  to  ascertain  what  their  intention  was. 
That  the  parties  to  a  judgment  can  restrict  the  liability  of  the 
obligor  as  well  as  its  lien  is  recognized  in  all  the  cases.  It  is 
to  be  observed  that  this  is  not  the  case  of  Stanton  v.  White,  82 
Pa.  868,  in  which  the  restriction  was  *'  This  judgment  to  be  a 
lien  only  upon  lands  conveyed  to  me  by  the  said  obligees  by 
deed  of  this  date,  April  16th,  1866 ;  "  nor  is  it  the  case  of  Dean's 
Appeal,  35  Pa.  405,  in  which  it  was  provided  that  "  The  lien  of 
the  judgment  should  be  resti*icted  to  the  real  estate  this  day 
conveyed,"  referring  to  the  date  of  the  bond,  the  judgment  in 
which  case  was  revived  amicably  by  confession  during  the  life- 
time of  the  defendant  without  limitation  or  restriction  as  to  its 
hen ;  nor  is  it  the  case  of  McMurray  v.  Hopper,  43  Pa.  468,  in 
which  it  was  agreed  that  the  original  judgment  "  was  to  be  a 
lien  upon  the  property  sold  and  upon  the  house  and  lot  opposite 
to  it  directly  across  said  road  and  not  to  affect  any  other  part 
of  said  McMurray's  estate  or  property."  In  all  of  these  cases 
there  was  a  simple  restriction  of  the  lien  of  the  judgment  entered 
to  property  specifically  described,  without  in  any  way,  directly 
or  by  implication,  affecting  the  obligation  or  debt  upon  which 
the  judgments  were  based  respectively.  The  proviso  in  this 
ease  is  much  more  comprehensive  and  far  reaching  in  its  terms 
and  consequent  effect  than  any  of  those  referred  to  in  the  cases 
cited.  In  addition  to  the  restriction  of  the  lien  to  the  premises 
No.  1606  South  street  in  the  city  of  Philadelphia,  it  is  expressly 
provided  that  the  judgment  is  "not  to  affect  or  bind  any  other 
property  or  estate,  real  or  personal,  now  owned  or  which  may 
hereafter  be  owned  by  me."    Inasmuch  as  the  judgment  entered 


Digitized  by  VjOOQ IC 


20  CARSON  V.  FORD. 

Opinion  of  the  Court.  [6  Pa.  Superior  Ct 

in  puisuance  of  the  warrant  of  attorney,  to  which  this  proviso 
is  attached,  could  not  in  itself  affect  personal  property  nor, 
until  subsequently  revived,  real  estate  thereafter  acquired,  it  is 
evident  that  the  obligor  intended  not  only  to  limit  the  lien  of 
the  judgment  to  the  premises  described  therein  but  to  limit  the 
obligation  itself  to  the  said  premises,  so  that  no  execution  issued 
upon  the  said  judgment  nor  any  subsequent  revival  thereof 
should  by  any  possibility  affect  or  bind  any  other  property  or 
estate,  real  or  personal,  then  owned  or  which  might  thereafter 
be  acquired  by  her.  That  she  had  the  right  to  so  limit  her  lia- 
bility cannot  be  doubted,  and  that  the  obligee  agreed  to  such 
limitation  by  the  acceptance  of  the  bill  single  with  the  proviso 
is  equally  clear.  The  paper,  proviso  included,  constituted  the 
agreement  between  the  parties  and  by  its  terms  they  are  bound. 
We  are  satisfied  that  the  court  below  gave  practical  effect  to 
what  the  parties  intended  by  restricting  the  effect  of  the  judg- 
ment entered  upon  the  verdict  in  the  scire  facias,  and  this  upon 
a  proper  consideration  of  the  contents  of  the  paper  itself.  The 
parol  testimony  offered  in  the  case  in  no  way  strengthened  or 
enlarged  the  restricting  clause  contained  in  the  paper  upon 
which  the  original  judgment  was  based.  Considering  that  pro- 
viso or  restriction  in  itself,  and  construing  it  without  reference 
to  parol  testimony,  the  court  was  entirely  justified  in  limiting 
the  effect  of  the  judgment  entered  upon  the  verdict  in  accord- 
ance with  the  stipulation  contained  in  the  original  obligation. 
The  assignments  of  error  are,  therefore,  both  overruled,  and  the 
judgment  is  affirmed. 


Frank  V.  Hoffner  v,  Henry  D.  Prettyman  and  Richard  H. 
Parish,  individually  and  trading  as  Prettyman  &  Par- 
ish, Appellants. 

Negligence — Master  and  servant — Question  for  jury. 

Builders  under  contract  to  furnish  the  necessary  scaffolding  for  a  sub^ 
contractor  are  liable  for  injuries  resulting  from  its  negligent  construction. 

The  evidence  being  conflicting  on  the  question  of  negligence,  the  case 
Is  properly  for  the  jury. 


Digitized  by  VjOOQ IC 


HOFFNER  V.  PRETTYMAN.  21 

1897.]  Statement  of  Facts — Arguments. 

Argued  Oct  6,  1897.  Appeal,  No.  89,  Oct.  T.,  1897,  by 
defendants,  from  judgment  of  C.  P.  No.  1,  Phila.  Co.,  June  T., 
1896,  No.  1260,  on  verdict  for  plaintiff.  Before  Rice,  P.  J., 
WiCKHAM,  Bbaveb,  Reedbb,  Oelady,  Smith  and  Pobtkb,  J  J. 
Affirmed. 

Trespass.    Before  Bb£gt,  J. 

It  appeared  from  the  evidence  that  the  defendants  erected  a 
scaffold  to  be  used  by  plaintiff  and  others  while  working  on  a 
building  being  erected  by  defendants,  that  it  was  alleged  that 
it  was  improperly  braced  and  supported,  and  that  defective  and 
insufficient  materials  were  used ;  that  plaintiff  was  in  the  em- 
ploy of  Bohem  &  Bros.,  who  were  under  an  independent  con- 
tract with  defendants  to  do  the  cornice  and  tinwork  of  the 
building,  and  that  while  plaintiff  was  at  work  on  the  scaffold  it 
broke  and  fell  by  reason  of  its  negligent  construction  and  the 
improper  materials  used,  whereby  plaintiff  was  injured. 

There  was  evidence,  although  conflicting,  of  the  alleged  neg- 
ligent construction  of  the  scaffold. 

The  court  refused  to  give  binding  instructions  for  defend- 
ants. 

Verdict  and  judgment  for  plaintiff  for  S500.  Defendants 
appealed. 

Error  assigned  was  refusal  of  binding  instructions  for  defend- 
ants. 

Alex.  Simpson^  Jr.^  with  him  T.  M.  Dalt/^  for  appellants. — 
That  tiie  scaffold  might  have  been  built  stronger,  or  not,  is  not 
the  test :  Fick  v.  Jackson,  3  Pa.  Superior  Ct.  878 ;  Kehler  v. 
Schwenk,  144  Pa.  348. 

That  the  result  shows  it  could  have  been  built  stronger  is  no 
proof  of  negligence :  Sykes  v.  Packer,  99  Pa.  465 ;  Railway  v. 
Husson,  101  Pa.  1. 

It  is  not  the  duty  of  the  employer,  after  having  provided 
material,  ample  in  quantity  and  quality  for  the  work  his  em- 
ployees are  engaged  in,  to  supervise  the  selection  of  the  mate- 
rial from  the  common  stock :  Ross  v.  Walker,  189  Pa.  42.  See 
also  Devlin  v.  Iron  Co.,  182  Pa.  109;  Coal  Co.  v.  McEnery,  91 
Pa.  185. 


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22  HOFFNER  v.  PKETTYMAN. 

Arguments — Opinion  of  the  Coart.   [6  Pa.  Saperior  Ct. 

Thad,  L.  VdndersKcey  with  him  Charles  L.  Smyth  and  Christo- 
pher jff".  Murray^  for  appellee. — Where  there  is  conflicting  testi- 
mony as  to  the  reasonable  saf eness  of  appliances,  etc.,  the  ques- 
tion is  for  the  jury :  Railroad  Co.  y.  Keenan,  108  Pa.  124. 

Binding  instruction  to  the  jury  is  only  proper  where  the  evi- 
dence is  not  conflicting :  Spear  v.  Railroad  Co.,  119  Pa.  61. 

Where  there  is  any  evidence  of  negligence  on  the  part  of  the 
defendant  it  must  be  submitted  to  the  jury :  Murphy  v.  Croesan, 
98  Pa.  495. 

Opinion  by  Pobtbb,  J.,  November  19, 1897 : 

The  defendants  were  engaged  in  a  building  operation.  The 
plaintiff  was  in  the  employ  of  a  firm  who  were  doing  the  metal 
cornice  work  thereon,  under  a  contract  which  required  the  de- 
fendants to  furnish  the  necessary  scaffolding.  While  the  plain- 
tiff was  at  his  work,  a  part  of  this  scaffolding  fell  with  him, 
whereby  he  was  injured.  He  sued  to  recover  damages-  The 
cause  was  submitted  to  the  jury  on  the  question  of  the  negligent 
construction  of  the  scaffold.  The  verdict  was  for  the  plaintiff. 
The  defendants  assign  for  error  the  refusal  of  the  court  below 
to  give  binding  instructions  to  the  jury  to  find  for  the  defend- 
ants. 

The  scaffold  in  question  was  erected  for  a  particular  and  tem- 
porary purpose.  The  plaintiff  had  a  right  to  be  upon  it.  The 
duly  of  the  defendants  was  to  erect  and  maintain  it  in  a  safe 
condition  for  the  purpose  intended. 

In  an  effort  to  bring  the  case  within  the  rule  laid  down  in 
Kehler  v.  Schwenk,  144  Pa.  348,  and  Fick  v.  Jackson,  3  Pa. 
Superior^ Ct.  378,  respecting  the  liability  of  employers  to  furnish 
safe  appliances  for  their  employees,  one  of  the  defendants  offered 
his  own  testimony  and  that  of  some  of  his  employees  to  show 
that  the  scaffold  was  originally  erected  "  in  the  usual  and  ordi- 
nary manner  "  for  such  a  purpose  as  that  intended,  but  no  other 
witness  was  called  by  the  defendants  "  in  the  same  line  of  busi- 
ness "  to  prove  that  the  construction  was  according  to  the  "gen- 
eral, usual  and  ordinary  course."  On  the  other  hand.  Cook,  a 
witness  for  the  plaintiff,  testified :  "  Q.  Can  you  say  from  that 
model  if  this  is  a  proper  way  to  build  a  scaffold?  A.  No,  sir,  I 
do  not  think  it  is.  Q.  Why?  A.  They  usually  have  a  figure 
four  or  a  piece  nailed  down  on  the  window  or  else  upright  on 
this  piece,  that  is  the  piece  that  pulled  out." 


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HOFFNER  c.  PRhrnYMAX.  23 

1897.]  Opinion  of  tiie  Court. 

Havens  (called  as  an  expert  by  the  plaintiff)  testified  that  he 
did  not  consider  the  scaffold  properly  built  or  safe,  and  described 
the  usual  method  of  construction. 

There  was  thus  a  sufficient  conflict  of  testimony  to  require 
the  case  to  be  submitted  to  the  jury  on  the  question  of  the  de* 
fendant's  negligence,  and  the  trial  judge  was  not  warranted  in 
directing  a  verdict  for  the  defendants. 

Judgment  affirmed. 


Isaac  S.  Smyth  and  John  Field,  trading  as  Young,  Smyth, 
Field  &  Co.,  Appellants,  v.  Rosa  Levy. 

Judgment — Execution — Funds  in  sheriff'' b  hands— Standing  of  junior 
judgment  creditor. 

The  proceeds  of  a  sheriffs  sale  of  a  defendant's  personalty  under  an  exe- 
cution in  the  hands  of  the  sheriff  are  bound  by  an  execution  issued  by  a 
bona  fide  creditor,  upon  a  judgment  obtained  after  the  sheriff's  sale ;  such 
judgment  will  bind  such  proceeds  and  give  such  creditor  a  standing  to  con- 
test the  validity  of  the  prior  judgment,  on  the  ground  of  fraud. 

Practice^  C.  P. — Parties  to  record. 

No  man  can  make  himself  a  party  to  pending  litigation  between  others 
by  his  own  act  or  statement  on  the  record :  it  follows,  therefore,  that  a 
senior  judgment  creditor  has  no  standing  to  intervene  by  petition  to  have 
set  aside  a  levy  made  on  a  junior  execution. 

Argued  October  21, 1897.  Appeal,  No.  91,  October  T.,  1897, 
by  plaintiffs,  from  order  of  0.  P.  No.  2,  Phila.  Co.,  Dec.  T.,  1896, 
No.  320,  setting  aside  levy  on  an  execution.  Before  Rice,  P.  J., 
WiCKHAM,  Beavbb,  Rbbdbb,  Oblady  and  Porter,  J  J.  Re- 
versed. 

Attachment  under  act  of  1869. 
The  following  facts  appeared  from  the  record : 
On  the  2d  day  of  December,  1896,  there  was  issued  in  court 
of  common  pleas,  No.  2,  as  of  September  term,  1896,  No.  820, 
a  writ  of  attachment  under  the  act  of  1869,  in  favor  of  Isaac  S. 
Smyth  and  John  Field,  trading  as  Young,  Smyth,  Field  &  Co. 
gainst  Rosa  Levy.  By  virtue  of  this  vmt  of  attachment  the 
sheriff  levied  upon  the  goods  and  chattels  of  the  said  Rosa  Levy, 


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24     YOUNG,  SMYTH,  FIELD  &  CO.  v.   LEVY. 

Statement  of  Facta — Arguments.    [6  Pa.  Superior  Ct. 

which  had  been  previously  levied  upon  by  him  under  five  cer- 
tain writs  of  fi.  fa.,  issued  out  of  court  of  common  pleas.  No.  1, 
as  of  September  term,  1896,  Nos.  1031,  1032,  1057,  1056  and 
1120,  and  also  under  a  writ  of  attachment  under  the  act  of  1869, 
issued  outof  court  of  common  pleas,  No.  2,  as  of  December  term, 

1896,  No.  808.  A  portion  of  the  property  so  levied  upon  was 
claimed,  and  feigned  issues  were  framed  to  determine  its  owner- 
ship. The  remainder  of  said  goods  and  chattels  so  levied  upon, 
were  sold  by  the  sheriff,  on  December  3,  1896,  for  the  sum  of 
$3,314.  On  January  9,  1897,  judgment  for  want  of  an  aflSdavit 
of  defense  was  obtained  by  Isaac  S.  Smyth  and  John  Field, 
trading  as  aforesaid,  in  their  suit  begun  by  this  attachment,  and 
damages  were  assessed  at  1615.25,  and  execution  was  issued 
thereon  upon  the  fund  in  the  hands  of  the  sheriff.   On  March  13, 

1897,  on  defendant's  rule,  the  attachment  of  Young,  Smyth, 
Field  &  Co.  was  dissolved,  and  on  March  15th  the  fi.  fa.  was 
issued.  On  April  10, 1897,  Charles  P.  Wieder  and  Joseph  W. 
Salus,  two  of  the  plaintiffs  in  the  executions  above  indicated, 
took  their  rules  upon  plaintiffs,  Young,  Smyth,  Field  &  Co.,  to 
show  cause  why  the  levy  of  the  sheriff  by  virtue  of  the  fi.  fa. 
issued  on  the  judgment  of  Young,  Smyth,  Field  &  Co.,  on  the 
fund  in  his  hands  under  the  fi.  fas.  issued  In  re  Wieder  v.  Levy, 
and  Salus  v.  Levy,  should  not  be  set  aside.  On  April  15, 1897, 
these  rules  were  made  absolute. 

From  this  decree  of  the  court,  the  plaintiffs,  Young,  Smyth, 
Field  &  Co.,  appeal. 

Error  assigned  was  making  absolute  the  rule  to  show  cause 
why  the  levy  of  the  sheriff  under  and  by  virtue  of  the  fi.  fa. 
issued  in  the  above  case,  should  not  be  set  aside. 

John  Weaver^  with  him  John  Sparhawk^  Jr.^  for  appellants. — 
The  only  question  in  this  case  is  whether  money  in  the  hands 
of  the  sheriff,  realized  on  a  prior  sheriff's  sale  on  a  judgment 
against  the  same  debtor,  is  subject  to  the  levy  of  a  fi.  fa.  That 
such  a  fund  is  liable  to  such  levy,  follows  from  sec.  24,  of  act 
•of  1836,  which  authorizes  a  levy  upon  "  current  gold,  silver  or 
<5opper  coin,  belonging  to  the  defendant :  Sullivan  v.  Tinker, 
140  Pa.  35;  Herron's  Appeal,  29  Pa.  240;  Rudy  v.  Common- 
wealth, 35  Pa.  166. 


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YOUNG,  SMYTH,  FIELD  &  CO.  v.  LEVY.  26 

1897.]  Arguments — Opinion  of  the  Court. 

^.  W.  Kuhlemeier^  with  him  George  S.  Russelly  for  appellee. 
— The  appellants'  proceedmg  is  a  subterfuge  to  evade  the  re- 
quirements of  the  acts  of  1836  and  1846  :  Filbert  v.  Filbert,  9 
C.  C.  149 ;  Moore  v.  Dunn,  147  Pa.  359. 

Money  or  property  in  the  hands  of  a  sheriff,  under  any  pro- 
cess, is  not  the  subject  of  a  subsequent  execution  issuing  out  of 
a  court  of  co-ordinate  jurisdiction :  Metzner  v.  Graham,  57  Mo. 
404;  Bates  Co.  Nat.  Bk.  v.  Owen,  79  Mo.  429;  Patterson  v. 
Mater,  26  Fed.  Rep.  81. 

OmaoN  BY  PoBTER,  J.,  November  19, 1897 : 

This  appeal  is  taken  from  an  order  making  absolute  a  rule  to 
set  aside  the  levy  made  under  the  fieri  facias  issued  in  the  cause. 
The  judgment  as  appears  by  the  record,  was  properly  entered. 
The  fieri  facias  was  regularly  issued  and  delivered  to  the 
sheriff,  in  whose  hands  were  funds  arising  from  the  sale  of 
the  defendant's  property  under  executions  issued  on  confessed 
judgments.  It  cannot  be  doubted  that  under  the  authority  of 
Sullivan  v.  Tinker,  140  Pa.  85,  the  fieri  facias  bound  the  fund 
in  the  sheriff's  hands.  In  that  case  it  is  said :  "  It  is  true  the 
appellee's  judgment  was  not  obtained  until  after  the  sale  of  the 
personal  property  by  the  sheriff,  but  we  are  of  opinion  that  the 
fieri  facias  issued  upon  the  appellee's  judgment  bound  the  fund 
in  the  sheriff's  hands.  It  was  the  money  of  the  defendants  in 
the  execution.  .  .  .  Money  of  a  defendant  not  on  his  person 
may  be  seized  and  taken  in  execution." 

It  is  asserted  that  the  fund  in  the  hands  of  the  sheriff  will 
not  pay  the  preceding  executions  in  full.  If  this  be  so,  they 
will  take  by  their  priority  whatever  fund  there  may  be.  The 
levy  of  the  fieri  facias  in  this  cause  however,  gives  the  plaintiff 
a  standing  to  attack  the  bona  fides  and  validity  of  the  preced- 
ing judgments  upon  which  the  fund  was  raised.  If  this  attack 
be  successfully  made,  all  the  funds  in  the  sheriff's  hands  will  be 
the  funds  of  the  defendant,  subject  to  the  fieri  facias  of  the 
present  appellants.  We  are  of  opinion,  therefore,  that  the  levy 
of  the  writ  should  not  have  been  set  aside. 

The  order  was  made  by  the  court  below  apparently  on  the 
application  of  two  strangers  to  the  record,  who  appeared  by 
petition  and  who  alleged  that  they  held  judgments  prior  to  the 
judgment  in  the  present  cause.    What  rights  these  strangers  to 


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26  YOUNG,  SMYTH,  FIELD  &  CO.  v.  LEVY. 

Opinion  of  the  Court.  [6  Pa.  Superior  Ct. 

the  record  had  in  this  cause  it  is  difficult  to  see.  They  were 
neither  plaintiffs  nor  defendants.  "  No  man  can  make  himself 
a  party  to  pending  litigation  between  others  by  his  own  act  or 
statement  on  the  record : "  Phila.  to  use  v.  Jenkins,  162  Pa. 
451,  Williams,  J. 

The  petitioners  have  no  standing  in  the  present  cause.  Their 
rights  are  limited  to  the  causes  in  which  they  are  parties  liti- 
gant, or  they  may  proceed  against  the  sheriff  to  compel  him 
either  to  distribute  the  money  under  the  executions  which  they 
claim  to  control,  or  to  pay  the  money  into  court  where  the  rights 
of  the  several  execution  creditors  in  the  fund  can  be  determined. 

The  order  of  the  court  below  is,  therefore,  reversed,  and  the 
order  striking  off  the  levy  set  aside. 


Appeal  of  D.  C.  Gibboney  and  as  Secretary  of  The  Law 
and  Order  Society  from  the  order  of  Quarter  Sessions 
of  Philadelphia  County,  granting  a  retail  liquor  license 
to  Otto  Schellenberg. 

Liquor  law— Intervention  of  volunteers  as  appellants— Record, 
Where  the  record  fails  to  show  that,  durioor  the  pendency  of  proceed- 
ings for  the  granting  of  a  liquor  license  by  the  court  below,  any  person 
was  present,  either  in  person  or  by  counsel,  in  accordance  with  the  third 
section  of  the  act  of  May  13,  1887,  no  right  of  appeal  is  lodged,  either  by 
the  provisions  of  the  said  act  or  otherwise  in  a  person  who  voluntarily  in- 
tervenes subsequently  for  the  purpose  of  appealing. 

Argued  Oct.  20, 1897.  Appeal,  No.  116,  Oct.  T.,  1897,  by 
D.  C.  Gibboney,  from  decree  of  Q.  S.  Phila.  County,  March 
Term,  1897,  No.  2415,  granting  a  retail  liquor  license.  Before 
Rice,  P.  J.,  Wickham,  Beaver,  Reeder,  Oblady,  Smith 
and  Porter,  J  J.    Appeal  quashed. 

Application  for  retail  liquor  license. 

The  record  discloses  the  following  abstract  or  brief  of  peti- 
tions, orders  and  reports :  February  4, 1897,  application  of  Otto 
Schellenberg  for  a  retail  liquor  license.  March  26,  1897,  in- 
dorsed on  application :  "  On  motion  of  petitioner  and  after  hear- 


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SCHELLENBERG'S  LICENSE.  GIBBONKY'S  APPEAL.  27 
1897.]  Statement  of  Facts— Opinion  of  the  Court. 

ing  in  open  court,  it  is  ordered  that  the  prayer  of  the  petitioner 
be  refused."  July  10, 1897,  motion  filed  to  open  the  order  of 
March  26,  refusing  the  license  and  to  award  the  said  license. 
July  12, 1897,  indorsement  on  said  motion :  "  Order  opened  and 
license  granted  to  Otto  Schellenberg." 

Urrors  assiffned  were,  (1)  in  granting  on  July  12, 1897,  a  re- 
taU  liquor  license  to  Otto  Schellenberg.  (2)  On  July  12, 1897, 
in  opening  the  decree  of  March  26, 1897,  and  changing  and  re- 
versing the  said  decree.  (8)  In  July  term,  1897,  in  opening, 
changing  and  reversing  their  final  decree  made  in  March  term, 
1897,  in  the  matter  of  the  application  of  Otto  Schellenberg. 

Letais  D,  Vail,  for  appellant. — It  was  error  for  the  court  to 
open  a  judgment  entered  after  a  hearing  or  to  grant  a  new  trial 
after  the  term  at  which  the  judgment  was  entered  has  passed : 
Hill  V.  Egan,  2  Pa.  Superior  Ct  696 ;  Hill  v.  Harder,  3  Pa.  Su- 
perior Ct.  478. 

After  the  term  a  sentence  cannot  be  reconsidered,  amended  or 
changed:  Com.  v.  Mayloy,  67  Pa.  291;  Turnpike  Co.,  97  Pa. 
260. 

In  the  present  case  Mr.  Gibboney  was  notified,  was  present 
at  the  rehearing  and  objected,  giving  the  judges  a  paper-book 
wiih  his  authorities. 

Edward  A.  AnderBon^  with  him  John  H.  Fow  and  Charlen 
Knitted  for  appellee. — The  law  contemplates  that  after  a  term 
of  the  court  another  tribunal  shall  exercise  the  discretion  of  cor- 
recting errors  or  mistakes:  Reed's  Appeal,  114  Pa.  462 ;  Toole's 
Appeal,  90  Pa.  876. 

A  license  court  has  power  where  no  vested  rights  are  affected 
to  reverse  its  decisions  and  correct  its  errors. 

Opinion  by  Bbayeb,  J.,  November  19, 1897 : 
Upon  a  motion  to  quash  this  appeal,  we  determined  to  hear 
arguments  upon  the  merits  of  the  appeal  as  well  as  upon  the 
motion  to  quash,  at  the  same  time,  which  was  done.  A  careful 
examination  of  the  record  of  iiie  case  leads  us  to  the  conclusion 
that  the  appeal  must  be  quashed  and  it  is  unnecessary,  therefore, 
to  consider  the  important  questions  which  are  raised  by  the 
record  in  the  appeal  itself. 


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28  SCHELLENBERG'S  LICENSE.     GIBBONEY'S  APPEAL. 
Opinion  of  the  Court.  [6  Pa.  Superior  Ct. 

Under  the  provisions  of  the  third  section  of  the  act  of  May  13, 
1887,  "the  said  Court  (the  court  of  quarter  sessions)  shall  fix 
by  rule  or  standing  order  a  time  at  which  application  for  said 
licenses  shall  be  heard,  at  which  time  all  persons  applying  or 
making  objections  to  applications  for  licenses  may  be  heard  by 
evidence,  petition,  remonstiunce  or  counsel."  The  record  fails 
to  show  that  on  the  15th  of  March,  1897,  when  the  petition  was 
originally  heard,  and  on  the  26th  of  March  following,  when  the 
case  was  disposed  of,  any  person  was  present,  either  in  person  or 
by  attorney,  desiring  to  be  heard  in  opposition  to  the  applica- 
tion of  the  appellee.  The  same  is  true  of  the  hearing  on  the 
12th  of  July,  1897.  The  failure  of  the  record  to  show  the  fact 
of  the  presence  of  any  one  remonstrating  or  desiring  to  remon- 
strate against  the  granting  of  the  license  is  at  least  negative 
evidence  that  no  such  person  was  present.  We  do  not  under- 
stand the  appellant  to  allege  that  any  one  was  present  at  the 
original  hearing  remonstrating  against  the  granting  of  the  appel- 
lee's application,  although  he  does  allege  that  he  was  present  on 
the  12th  of  July.  This,  however,  in  no  way  appears  upon  the 
record  and  we  are  bound  to  consider  the  case  as  if  no  one  had 
appeared  in  opposition  to  the  appellee's  application.  Tliis 
raises  the  question  as  to  whether  or  not,  after  the  court  of  quar- 
ter sessions  has  made  a  final  disposition  of  an  application  for 
license,  no  person  during  the  pendency  of  the  proceedings  hav- 
ing appeared  to  oppose  the  granting  of  the  same  by  remonstrance 
or  otherwise,  any  one  who  may  feel  himself  aggrieved  thereby 
has  a  legal  right  to  appeal  from  such  decree  to  an  appellate 
court.  This  question,  so  far  as  we  can  discover,  has  not  been 
distinctly  ruled  in  Pennsylvania.  There  is  no  lack  of  cases, 
however,  in  which  questions  strongly  analogous  thereto  have 
been  decided.  In  Lawrence  County's  Appeal,  67  Pa.  87, 
Mr.  Chief  Justice  Thompson  said :  "  It  is  a  rule  without  excep- 
tion, I  believe,  that  persons  having  no  interest  in  judicial  pro- 
ceedings shall  not  be  heard  as  parties  to  impugn  them  for 
irregularity  merely,  and  this  must  be  the  condition  of  this  appel- 
lant, unless  it  be  made  to  appear  to  the  judicial  mind  in  some 
way  that  she  was  entitled  to  consideration  in  the  decree  made." 
Rower's  Appeal,  127  Pa.  134,  where  citizens  of  the  borough  of 
Selinsgrove  sought  to  intervene  in  a  proceeding  by  a  creditor 
in  the  court  of  quarter  sessions  under  the  Act  of  April  22, 1887, 


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SCHELLENBERG'S  LICENSE.    GIBBONEY'S  APPEAL.  29 
1897.]  Opinion  of  the  Ck>uit. 

P.  L.  61,  to  enforce  by  mandamus  the  collection  of  a  special 
tax  sufficient  to  pay  an  alleged  indebtedness,  the  court  of  quar- 
ter sessions  refused  to  permit  them  to  intervene,  and  the  Supreme 
Court,  upon  motion,  quashed  the  appeal  from  that  decree.  We 
do  not  now  determine  what  the  effect  of  a  petition  by  the  appel- 
lant to  the  court  of  quarter  sessions,  to  be  heard  as  late  as  the 
12th  of  July,  might  have  been,  if  the  record  had  shown  that  such 
a  petition  had  been  presented,  but  we  are  clearly  of  the  opinion 
that,  where  a  record  fails  to  show  that  during  the  pendency  of 
proceedings  for  the  granting  of  a  license  in  the  court  below  any 
person  appeared  in  person  or  by  counsel  in  accordance  with  the 
provisions  of  the  third  section  of  the  act  of  1887,  supra,  no  right 
of  appeal  is  lodged,  either  by  the  provisions  of  said  act  or 
otherwise,  in  a  person  who  voluntarily  intervenes  subsequently 
for  the  purpose  of  appealing.  The  record  fails  to  show  also  that 
any  exception  was  taken  to  the  decree  of  the  court  below  at 
any  stage  of  the  proceeding  which  would  seem  to  emphasize 
the  silence  of  the  record  as  to  the  presence  of  any  one  re- 
monstrating in  any  way  against  the  granting  of  the  license. 
For  these  reasons  the  appeal  is  quashed. 


The  City  of  Philadelphia,  to  the  use  of  William  H.  Ach- 
uff,  John  H.  Little,  and  William  P.  Clement,  trading 
as  Achuff  &  Company,  v.  John  W.  Christman,  Owner 
or  Eeputed  Owner,  Appellant. 

AmendmenlsStaitUes  liberaUy  construed. 

The  acts  regulating^  amendments  are  to  be  liberally  construed  and  an 
amendment  will  be  allowed,  the  effect  of  which  simply  is  to  make  clear 
what  was  imperfectly  indicated. 

Appeals — Praclice,  Superior  Court — Amendments— Municipal  lien. 

An  appeal  does  not  lie  from  the  refusal  to  strike  off  a  municipal  lien  for 
the  reason  that  there  is  no  definitiye  decree,  nor  from  an  order  permitting 
an  amendment,  the  action  being  still  pending. 

Argued  Oct  15, 1897.  Appeal,  No.  105,  Oct.  T.,  1897,  by 
defendant,  from  order  of  C.  P.  No.  4,  Phila.  Co.,  Dec.  T.,  1891, 
No.  48,  M.  L.  D.,  making  absolute  a  rule  to  amend  claim. 


Digitized  by  VjOOQ IC 


80  PHILADELPHIA  v.  CHRISTMAN. 

Statement  of  Facts — Opinion  of  the  Court.    [6  Pa.  Superior  Ct. 

Before  RiOE,  P.  J.,  Wiokham,  Beayeb,  Reedeb,  Oblady, 
Smith  and  Pobteb,  JJ.    Appeal  quashed. 

Rule  to  amend  lien. 

The  claim  filed  was  for  vitrified  brick  paving  and  the  essen- 
tial portion  of  the  lien  was  as  follows :  "  For  work  done  and 
material  furnished  within  six  months  last  past  in  paving  the 
cartway  on  Atlantic  Street  in  front  of  said  lot  of  ground  and 
premises  per  bill  and  statement  rendered  as  follows."  A  rule 
was  taken  to  show  cause  why  the  claim  should  not  be  amended 
by  inserting  after  the  words  "  six  months  last  past,"  the  follow- 
ing words,  to  wit :  "  between  the  first  day  of  June,  1891,  and  the 
second  day  of  July,  1891,"  and  also  by  inserting  opposite  the 
charge  in  the  bill  and  statement  rendered  the  date  *'  July  2, 
1897." 

The  court  made  the  rule  absolute.    Defendant  appealed. 

JErrors  assigned  were  (1)  In  making  the  rule  absolute.  (2)  In 
not  striking  off  the  lien. 

A.  E.  Stockwelly  for  appellant. 

John  K.  Andre^  with  him  Henry  F.  Walton^  for  appellees. 

Pbb  Cubiam,  November  19, 1897 : 

The  defendant  obtained  a  rule  to  strike  off  the  municipal  lien 
in  question.  Without  formal  disposition  of  this  rule,  the  court 
permitted  ihe  lien  to  be  amended ;  and  although  a  sci.  fa.  upon 
the  lien  was  and  is  still  pending,  the  defendant  appealed.  An 
appeal  does  not  lie  from  the  refusal  to  strike  off  the  lien  for  the 
reason  that  there  is  no  definitive  decree  or  judgment.  When 
the  court  strikes  off  a  lien  the  case  is  otherwise,  for  its  action 
is  final :  Carter  v.  Caldwell,  147  Pa.  870.  For  the  same  reason 
an  appeal  does  not  lie  from  an  order  permitting  an  amendment ; 
the  action  being  still  pending.  Appeals  should  not  be  resorted 
to  when  the  effect  is  to  bring  cases  into  appellate  courts  by 
instalments;  such  a  practice  is  attended  with  obvious  disad- 
vantages and  unnecessarily  delays  their  final  disposition :  Lauer 
V.  Lauer  Brewing  Co.,  180  Pa.  693 ;  Yost  v.  Davison,  6  Pa. 
Superior  Ct.  469. 


Digitized  by  VjOOQ IC 


PHILADELPHIA  r.  CHRISTMAN.  31 

1897.]  Opinion  of  the  Court. 

But  as  we  have  been  pressed  by  the  appellant  to  decide  the 
questions  raised  by  the  assignments  of  error,  we  will  say,  that, 
even  if  the  claim  was  defective,  (a  point  not  decided)  it  was 
not  incurably  so.  It  avers  that  the  work  was  done  and  the 
materials  were  furnished  within  six  months  last  past;  the  accom- 
panying bill  or  statement  is  dated  July  2, 1891 ;  and  it  contains 
a  charge  of  interest  from  that  date.  The  effect  of  the  amend- 
ment was  simply  to  make  clearer  what,  to  say  the  worst,  was 
only  imperfectly  indicated  before.  There  was  enough  in  the 
claim  and  bill  to  amend  by,  and  the  Act  of  April  21, 1858, 
P.  L.  385,  gave  the  power.  **  Such  acts  as  this  should  be  liber- 
ally construed,  and  while  amendments  are  not  a  matter  of  right, 
they  should  be  allowed  when  it  can  be  done  without  prejudice 
to  intervening  rights : "  Allentown  v.  Hower,  98  Pa.  882 ;  Phila- 
delphia V.  Richards,  124  Pa.  803. 

The  appeal  is  quashed  and  the  appellant  directed  to  pay  the 
costs. 


George  W.  Jackson  v.  James  E.  Farrell,  Appellant. 

LandlorcTa  breach  of  corUr act— Measure  of  damages. 

The  measure  of  damages  where  a  landlord  fails  to  keep  a  covenant  to 
move  or  do  something  to  or  about  a  leased  building  is  the  difference  be- 
tween the  worth  of  the  premises  in  the  condition  in  which  they  remained 
and  that  which  they  would  have  been  in,  had  the  landlord's  covenant  been 
performed ;  or  so  much  less  as  they  would  have  rented  for  without  the 
covenant.  Supposed  loss  of  trade  and  possibly  resulting  profits  are  not 
to  be  considered. 

Practice,  C.  P. — Affidavit  of  defense — Landlord  and  tenant—Breach  of 
landlord's  covenant. 

The  nonperformance  by  the  landlord  of  a  covenant  to  move  a  building 
cannot  be  set  up  as  a  defense  for  nonpayment  of  rent.  The  tenant  could 
have  moved  the  building  and  defalked  the  cost  or  he  could  have  sur- 
rendered possession,  or  if  retaining  possession  he  is  only  entitled  to  deduct 
the  rental  value  of  the  building  unmoved  from  what  it  would  have  been 
if  moved.  An  affidavit  is  defective  which  does  not  allege  such  difference 
of  rental  value  as  the  measure  of  tenant's  damages. 

Argued  Oct.  18,  1897.  Appeal,  No.  94,  Oct.  T.,  1897,  by 
defendant,  from  judgment  of  C.  P.  No.  1,  Phila.  Co.,  Deo.  T., 


Digitized  by  VjOOQ IC 


82  JACKSON  u  FARRELL. 

Statement  of  Facts.  [6  Pa.  Superior  Ct. 

1896,  No.  594,  for  want  of  a  suflScient  affidavit  of  defense. 
Before  Rice,  P.  J.,  Wiokham,  Beaveb,  Oblady,  Smith  and 
POBTBB,  JJ.    Affirmed. 

Assumpsit  for  goods  sold  and  delivered. 

Plaintiff  claimed  on  an  oral  agreement  of  lease  of  a  certain 
store  on  the  boardwalk  at  Atlantic  City,  rented  to  defendant  as 
a  candy  store  for  the  season  of  1896  at  a  rental  of  $800,  of  which 
♦200  was  paid  by  defendant  on  January  18, 1896,  the  balance 
to  be  paid  before  the  expiration  of  the  year  1896 ;  the  defend- 
ant occupied  the  premises  during  the  season  and  still  had  pos- 
session of  the  same  on  the  13th  day  of  January,  1897 ;  and  that 
he,  the  defendant,  refused  to  pay  the  balance  of  $600. 

The  defendant  filed  the  following  affidavit  of  defense : 

James  E.  Farrell,  being  duly  sworn  according  to  law,  deposes 
and  says,  that  he  is  the  defendant  in  the  above  case,  that  he 
has  a  just  and  legal  defense  to  the  entire  claim  of  the  plaintiff 
of  the  following  nature  and  character,  to  wit:  The  plaintiff  in 
his  statement  filed  has  not  set  forth  the  full  and  entire  agree- 
ment between  him  and  the  defendant.  At  and  before  the  time 
when  defendant  agreed  to  rent  the  premises  in  question  the 
plaintiff  expressly  promised  and  agreed  that  said  candy  store 
should  be  on  the  said  boardwalk,  and  if  the  said  boardwalk 
should  be  moved  out  towards  the  ocean,  as  was  then  contem- 
plated, that  he,  the  plaintiff,  would  move  the  said  store  out  to 
the  new  boardwalk ;  that  this  promise  and  agreement  on  the 
part  of  the  plaintiff  was  relied  on  by  the  defendant  and  induced 
him  to  lease  the  premises  in  question ;  that  the  season  for  busi- 
ness at  said  place  is  during  the  months  of  July  and  August ; 
tliat  on  or  about  the day  of  June,  1896,  the  said  board- 
walk was  moved  out  about  one  hundred  and  fifty  feet  from  the 
said  store  of  defendant;  that  the  plaintiff,  though  often  requested, 
neglected  and  refused  to  move  defendant's  store  out  to  said 
boardwalk,  and  even  refused  to  allow  defendant  to  do  so  at  his 
own  expense ;  that  in  consequence  of  the  neglect  of  the  plaintiff 
to  move  said  store  out  to  said  boardwalk  the  defendant's  busi- 
ness was  ruined  and  destroyed,  and  by  reason  thereof  he  lost  in 
his  business  more  than  $1,000. 

Defendant,  relying  on  the  promise  and  agreement  of  the  plain- 
tiff to  move  said  store  out  to  the  new  boardwalk,  if  erected 


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JACKSON  V.  FARRKLL.  83 

1897.]  Statement  of  Facts— Arguments. 

during  the  tenn  of  his  lease,  paid  to  the  plaintiff  the  sum  of 
♦200,  on  account  of  the  said  rent,  on  January  18,  1896,  that 
said  boardwalk  was  moved  put  at  the  season  when  the  business 
of  the  defendant  just  commenced,  and  that  defendant  was  not 
able  to  secure  at  that  time  any  other  store.  That  the  business 
of  said  store  depended  on  its  bei^g  situate  on  the  boardwalk 
solely,  that  after  the  boardwalk  was  moved  out,  and  all  other 
candy  stores  were  moved  out  to  it,  the  defendant's  store  re- 
mained about  150  feet  back  in  its  old  position,  and  was  inacces- 
sible to  the  people  passing  along  the  said  boardwalk,  and  was 
worthless  to  defendant,  who  by  reason  of  the  plaintiff's  neglect 
to  move  said  store  out  to  the  said  boardwalk  as  agreed,  suffered 
damages  to  the  amount  of  f  1,000,  which  he  will  claim  against 
the  plaintiff  at  the  trial,  and  ask  for  a  certificate  in  his  favor. 

S.  Morris  Wain,  being  duly  affirmed,  says  that  he  is  the  at- 
omey  for  defendant  in  the  above  c^e ;  that  defendant  recently 
moved  from  Philadelphia  to  Atlantic  City,  where  he  now  resides ; 
that  deponent  wrote  plaintiffs  attorney  to  wait  a  few  days  until 
he  could  find  defendant's  address  and  to  write  plaintiff,  who 
also  lived  in  Atlantic  City,  for  the  address  of  defendant ;  that 
in  consequence  of  a  letter  from  plaintiff's  attorney,  which  is 
hereto  attached,  deponent  makes  this  affidavit  for  defendant, 
who  is  out  of  the  city ;  that  the  above  affidavit  is  true  to  the 
best  of  his  information  and  belief. 

Error  (assigned  was  making  absolute  the  plaintiff's  rule  for 
judgment  for  want  of  a  sufficient  affidavit  of  defense. 

S.  Morris  Waln^  for  appellant. — The  tenant  may  set  off  the 
landlord's  breach  .of  contract  against  the  landlord's  claim  for 
rent :  Depuy  v.  Silver,  1  Claik,  385 ;  Faiiman  v.  Fluck,  5 
Watte,  616 ;  Peterson  v.  Haight,  3  Wharton,  150 ;  Phillips  v. 
Monges,  4  Wharton,  226-8.  Claims  which  arise  ex  contractu,, 
or  are  capable  of  liquidation  by  a  jury,  are  the  subject  of  set- 
off:  Shoup  V.  Shoup,  15  Pa.  861;  Hunt  v.  Gilmore,  59  Pa* 
450. 

Eugene  C.  Bonniwell^  with  him  S.  Edwin  Megargee^  for  ap- 
pellee.— The  landlord  cannot  do  any  act  which  will  deprive  the 
tenant  of  that  beneficial  enjoyment  of  the  premises  to  which  he 
Vou  VI— 8 


Digitized  by  VjOOQ  IC 


84  JACKSON  V,  FARRELL. 

Arguments— Opinion  of  the  Court.  fiS  Pa.  Superior  Ct. 

is  entitled  under  the  lease.  If  he  does,  the  tenant  may  remove 
and  successfully  defend  against  a  claim  for  rent  accruing  after 
removal.  But  if  he  remains  in  possession  he  must  render  the 
price  thereof,  according  to  his  agreement.  He  cannot  assert 
the  property  is  uninhabitable  and  yet  inhabit  it  unless  he  pays 
the  rent  therefor :  Sutton  v.  Foulke,  44  Leg.  Int.  5 ;  Wilcox 
V.  Pahner,  163  Pa.  109. 

The  affidavit  does  not  state  how  the  damages  claimed  are 
arrived  at.  Certainly  a  sweeping  assertion  that  defendant "  suf- 
fered damages  to  the  extent  of  one  thousand  dollars,"  unsup- 
ported by  any  detail  showing  how  the  amount  is  computed  or 
in  what  manner  it  was  suffered,  is  insufficient :  Mc Brier  v.  Mar- 
shall, 126  Pa.  890;  Hopple  v.  Bunting,  8  W.  N.  C.  472;  Sit- 
greaves  v.  Griffith,  2  W.  N.  C.  705. 

Loss  of  profits  in  business  is  not  a  legal  element  of  damage 
or  a  matter  of  set-off :  Fairman  v.  Fluck,  5  Watts,  516. 

The  facts  being  sworn  to  on  information  and  belief,  there 
should  also  be  added  that  he  expects  to  be  able  to  prove  the 
facts  contained  therein:  Black  v.  Halstead,  89  Pa.  64;  Thomp- 
son V.  Clark,  56  Pa.  83 ;  Hermann  v.  Ramsey,  5  W.  N.  C.  188. 

Opinion  by  Beaver,  J.,  November  19, 1897  : 
The  affidavit  of  defense  in  this  case  is  made  by  the  attorney 
of  the  defendant.  All  the  statements  therein  contained  are,  of 
course,  based  upon  information  and  belief.  Technically  there 
should  have  been  an  averment  of  an  expectation  on  the  part  of 
the  defendant  to  prove  the  facts  thus  stated.  The  affidavit, 
liowever,  is  in  itself  so  faulty  that  it  is  not  necessary  to  rely 
upon  this  technicality  to  affirm  the  judgment  of  the  court  below. 
Admitting,  that  the  covenant  on  the  part  of  the  plaintiff  to 
move  the  building  occupied  by  the  defendant  to  the  board 
walk  thereafter  to  be  erected  was  a  part  of  the  agreement  for 
the  lease  of  the  building,  and  admitting  also  the  failure  of 
the  plaintiff  to  comply  with  his  agreement,  after  notice  and 
i-equest  by  the  defendant,  two  courses  were  open  to  the  de- 
fendant He  could  have  moved  the  building,  in  accordance 
with  the  terms  of  the  agreement,  and  defalked  the  cost  of  mov- 
ing it  from  the  amount  of  the  rent,  or  he  could  have  surrendered 
the  possession,  or  offered  to  surrender  it,  and  have  relieved  him- 
self from  the  payment  of  the  rent,  or  he  could  have  retained  the 


Digitized  by  VjOOQ IC 


JACKSON  V.  FARRRLL.  85 

1897.]  Opinion  of  the  Court. 

poBsessioQ  and  deducted  from  the  rent  the  difference  between 
the  rental  value  of  the  store  room  as  it  would  have  been,  if  the 
stipulations  of  the  agreement  as  alleged  by  him  had  been  com- 
plied with,  and  its  rental  value  as  occupied  by  him :  Peterson 
V.  Haight,  3  Wharton,  150 ;  Warner  v.  Caulk,  3  Wharton,'  193. 

The  allegation  in  the  affidavit  of  the  amount  of  damages  sus- 
tained by  the  defendant  "  by  reason  of  the  plaintiff's  neglect  to 
move  the  store  out  to  the  boardwalk  "  is  vague  and  uncertain. 
This  estimate  of  damages  was  evidently  based  upon  supposed 
loss  of  trade  out  of  which  prospective  profits  were  to  be  realized. 
This  is  not  a  proper  measure  of  damages  in  such  a  case.  The 
rule  laid  down  in  Fairman  v.  Fluck,  5  Watts,  516,  based  upon 
Schuylkill  Navigation  Co.  v.  Thobum,  7  Sergeant  &  Rawle, 
411,  which  \s  a  leading  case,  is  that  the  measure  of  damages  for 
the  breach  of  such  a  covenant  as  this  on  the  part  of  the  landlord 
"  ought  to  be  the  differej;^ce  between  the  worth  of  the  premises 
in  the  condition  in  whicl^^ey  remained  and  that  which  they 
would  have  been  in,  had  the  landlord's  covenant  been  performed ; 
or,  in  other  words,  so  much  less  as  they  would  have  rented  for 
without  the  covenant."  The  defendant  makes  no  effort  to  in- 
form the  court  as  to  the  difference  in  rental  value  between  the 
store  as  it  was  to  be  under  the  covenant  alleged  by  him,  and  the 
store  as  it  was  during  his  tenancy.  The  affidavit  of  defense 
was,  therefore,  insufficient,  and  the  court  was  clearly  justified 
in  making  absolute  the  rule  for  judgment. 

Judgment  affirmed. 


Commonwealth  of  Pennsylvania  v.  Jacob  Miller  and 
Samuel  Harris,  Appellants. 

Criminal  ktw^MisrecUal  of  daU^Indidmenir^Varianee. 

Where  the  crime  charged  in  the  indictment  is  not  based  upon  a  record 
or  other  official  wnting,  a  variance  of  one  day  between  the  indictment  and 
proof  hi  fixing  the  date  of  the  crime  is  not  a  fatal  variance ;  time  not 
being  of  the  essence  of  the  offense. 

Criminal  law— Conviction  defined. 

When  the  law  speaks  of  conviction,  it  means  a  Judgment,  and  not  merely 
a  verdict  which  in  common  parlance  is  called  a  conviction. 


Digitized  by  VjOOQ IC 


M  COMMONWEALTH  r.  MILLKR. 

Syllabus — Assignment  of  Errors.      [0  Pa.  Superior  Ok, 
Criminal  law — Perjury— Evidence — Competency  of  wUnesn, 


A  person  found  guilty  by  a  vei-dict  of  the  jury  of  perjui^  bat  not  i 
tenced,  is  a  competent  witness  in  a  trial  of  others  on  a  charge  of  suboma* 
tion  of  perjury  incident  to  the  same  perjury  for  whidi  the  witness  was 
tried. 

Perjury— Faise  swearing  in  examination  for  bail. 

False  swearing  in  a  matter  before  a  magistrate  touching  the  sufficiency 
of  bail  offered  for  a  man  charged  with  a  criminal  offense,  is  perjury  at 
common  law  and  under  the  statutes.  Whether  the  inquiry  touching  the 
bail  be  made  at  the  examination  of  the  charge  or  afterward  is  immaterial. 

Argued  Oct  19,  1897.  Appeal,  No.  85,  April  T^  1897,  by 
defendants,  from  judgment  of  Q.  S.  Allegheny  Co.,  March  Sess., 
1897,  No.  320,  on  verdict  of  guilty.  Before  Rice,  P.  J.,  Wick- 
ham,  Beaver,  Reeder,  Orlady,  Smith  and  Porter,  JJ. 
Affirmed. 

Indictment  for  subornation  of  p^jury.   Before  Kennedy,  P.  J. 

It  appears  from  the  record  and  eviaence  that  the  defendants 
were  indicted^  tried  and  convicted  on  a  charge  of  subornation  of 
perjury. 

Other  facts  sufficiently  appear  in  the  opinion  of  the  court. 

Verdict  of  guilty  and  sentence  thereon.   Defendants  appealed. 

JEn'ors  assiffned  were,  (1)  In  not  quashing  the  indictment. 
(2)  In  ovemiling  the  defendants'  objection  to  the  admission  of 
the  testimony  of  James  Nolan.  (8)  In  refusing  binding  in- 
structions for  defendants.  (4)  In  charging  the  jury  as  follows : 
**  Now,  as  I  have  said  to  you,  you  have  the  testimony  of  this 
man  Nolan,  stating  substantially  that  the  oath  which  he  took  in 
that  case  was  false,  and  you  have  other  circumstances  in  the 
case  tending  to  show  the  same  thing.  You  have  his  own  testi- 
mony tending  to  show  that  these  defendants  both  knew  that  he 
was  swearing  falsely,  and  that  they  induced  him  to  take  the 
false  oath.  He  states  that  he  met  them  here  on  the  day  in 
question,  somewhere  in  the  vicinity  of  the  courthouse,  that 'he 
was  under  the  influence  of  liquor  at  the  time,  and  that  after 
some  talk  between  them,  or  persuasion  upon  their  part,  he  was 
induced  to  go  before  the  alderman  and  take,  as  he  said,  this 
false  oath.  He  says  that  he  told  them  at  the  time  that  he  had 
no  property,  that  they  knew  without  liis  telling  them  that  he 
had  no  property,  but  they  told  him  that  mattered  not,  that  h^ 


Digitized  by  VjOOQ IC 


COMMONWEALTH  v.  MirXER.  37 

1897.]  Assignment  of  £rror8 — Arguments. 

would  not  get  into  any  serious  trouble  by  it,  and  induced  him 
to  go  and  make  what  he  claims  to  have  been  this  false  oath. 
In  other  words,  they  procured  hint,  as  is  claimed  by  the  com- 
monwealth, or  suborned  him  to  make  the  false  oath,  and  if  you 
are  convinced  of  that  beyond  a  reasonable  doubt,  it  will  be  your 
duty  to  find  a  verdict  of  guilty.''  (5)  In  not  charging  the  jury 
that  in  order  to  convict  the  defendants  the  commonwealth  must 
prove  each  material  part  of  its  case  by  the  testimony  of  two 
witnesses,  or  one  witness  and  corroborating  circumstances,  and 
that  James  Nolan  being  a  particeps  criminis,  his  testimony 
should  not  have  the  weight  of  one  witness  at  any  material  point. 
(6)  In  not  giving  any  instruction  to  the  jury  as  to  what  consti- 
tuted corroboration,  and  as  to  the  parts  of  the  testimony  neces- 
sary to  be  corroborated.  (7)  In  not  instructing  the  Jury  as  to 
what  weight  should  be  given  to  evidence  of  good  character. 
(8)  In  charging  the  jury  as  follows :  "  Perjury,  so  far  as  this 
case  is  concerned,  may  be  defined  to  be  the  wilful  and  corrupt 
false  swearing  in  some  judicial  proceeding  under  an  oath  legally 
administered,  and  by  an  officer  duly  authorized  to  administer  it. 
Subornation  of  perjury  is  the  procuring,  or  suborning,  of  a  per- 
son to  make  this  false  oath.'*  (9)  The  indictment  in  this  case 
is  assigned  as  error  for  the  reason  that  it  is  fatally  defective  in 
the  following  particulars :  (a)  The  indictment  does  not  allege 
that  Nolan  was  duly  or  lawfully  sworn.  (6)  It  does  not  aver 
that  Nolan  was  sworn  or  took  any  oath,  (c)  It  does  not  allege 
what  oath  he  took,  (rf)  It  does  not  allege  that  the  testimony 
of  James  Nolan'  was  necessary  or  material.  (^)  It  does  not 
allege  that  Harris  or  Miller  knew  or  believed  that  Nolan  would 
wilfully  and  corruptly  testify  to  facts  which  he  knew  to  be  false. 
(/)  It  does  not  allege  that  Nolan  became  bail  or  was  accepted 
as  such  for  J.  F.  Latimer,  or  that  Latimer  was  released  from 
custody,  or  that  the  alderman  was  in  any  way  influenced  by  the 
testimony  of  Nolan  in  disposing  of  the  cause  then  and  there 
pending.  Any  testimony  he  may  have  given  was  not  material, 
unless  he  was  so  accepted  as  bail.  (^)  It  was  fatally  defective 
in  that  it  lays  the  crime  as  having  been  committed  on  the  10th 
day  of  November,  whereas  the  evidence  produced  showed  it  to 
have  been  committed  on  the  11th  day  of  November. 

Jo%.  B.  McQttaide^  for  appellants. — As  to  admission  of  ev> 

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38  COMMONWEALTH  v.  MILLER. 

Argfunients— Opinion  of  the  Court.  [6  Pa.  Superior  Ct ' 

dence  of  one  James  Nolan,  defendants  relied  on  Act  of  May  2S, 
1887,  P.  L.  158,  sec.  2. 

The  word  "  convict  '*  means  to  find  guilty  of  a  criminal  offense 
by  verdict  of  a  jury:  Anderson's  Law  Diet.,  256. 

A  man  is  convicted  when  he  is  found  guilty  or  confesses  the 
crime  before  judgment  had :  Shepherd  v.  People,  25  N.  Y.  406. 

In  an  indictment  for  perjury  the  day  on  which  the  perjury 
was  committed  must  be  truly  laid :  U.  S.  v.  McNeal,  1  Gall. 
887 ;  U.  S.  V.  Bowman,  2  Wash.  C.  C.  828 ;  Com.  v.  Monahan, 
9  Gray,  119. 

A  man  convicted  of  perjury  is  not  competent  to  testify: 
People  V.  Evans,  40  N.  Y.  8. 

Cha%,  A.  O^Biien  and  John  C.  Haymaker^  district  attorney, 
for  commonwealth. — There  must  be  a  judgment  on  the  verdict 
in  order  to  constitute  a  conviction:  People  v.  Whipple,  9 
Cowen,  707 ;  1  Phillips  on  Evidence;  18,  note  12 ;  1  Greenleaf 
on  Evidence,  sec.  375 ;  Bishop's  Criminal  Law,  sec.  975. 

As  to  the  alleged  variance  all  the  cases  cited  by  the  appellants 
on  this  point  refer  to  a  record  oath:  Matthews  v.  U.  S.,  161 
U.  S.  500. 

The  law  relating  to  corroboration  in  perjury,  as  adopted  in 
nearly  all  the  states,  is  stated  in  1  Greenleaf  on  Evidence, 
sec.  257. 

Opinion  by  Smith  J.,  November  19, 1897 : 

The  appellants,  Jacob  Miller  and  Samuel  Harris,  were  indicted 
and  convicted  of  subornation  of  perjury.  One  J.  F.  Latimer, 
having  been  arrested  on  a  warrant  issued  by  an  alderman  of  the 
citj'^  of  Pittsburg,  charging  him  with  a  criminal  offense,  in  de- 
fault of  bail  was  committed  for  trial.  Subsequently  James  Nolan, 
accompanied  by  the  appellants,  appeared  before  the  alderman, 
and  offered  himself  as  bail  for  Latimer's  appearance  at  court. 
Being  sworn  and  examined  by  the  alderman  as  to  his  ownership 
of  property,  he  stated  that  he  owned  real  estate  in  Pittsburg 
worth  $2,000,  clear  of  all  incumbrances;  whereupon  he  was 
accepted  as  bail  in  the  sum  of  $500.  Latimer  failed  to  appear 
for  trial,  and  the  recognizance  was  forfeited.  Upon  investiga- 
tion it  was  found  that  Nolan  was  insolvent  at  the  time  of  be- 
coming bail.     He  was  indicted  for  perjury  in  having  thus  sworu 


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COMMONWEALTH  v,  MILLER.  89 

1897.]  OpinioQ  of  the  Couit. 

falsely  as  to  his  ownership  of  property,  and  convicted.  Befoi'e 
he  was  sentenced,  the  appellants  were  put  on  trial  charged  with 
having  suborned  him  to  make  the  false  statement  for  which  he 
had  been  tried,  and  he  was  the  principal  witness  against  them. 

The  indictment  is  sufficient  to  warrant  a  prosecution  and 
sustain  a  judgment.  The  variance  of  one  day  between  the 
indictment  and  the  proof  as  to  the  time  laid  is  not  a  fatal  defect. 
Had  the  assignment  of  perjury  been  based  upon  a  record,  depo- 
sition, affidavit  or  other  official  instrument,  a  misrecital  of  the 
date  might  be  a  serious  error,  because  the  writing,  being  a  very 
material  part  of  the  case,  should  be  accurately  described.  But 
here  the  crime  charged  is  not  based  on  a  record  or  other  official 
writing ;  and,  furthermore,  time  is  not  of  the  essence  of  the 
offense.  The  mistake  as  to  date  could  not  have  misled  or  in- 
jured the  appellants,  and  the  variance  was  immaterial. 

The  competency  of  Nolan  as  a  witness  is  a  principal  feature 
of  the  appellant's  argument.  It  is  contended  that,  having  been 
found  guilty  of  perjury  by  the  verdict  of  a  jury,  he  was  incom- 
petent to  testify,  under  the  act  of  May  23, 1887.  That  act  pro- 
vides that  "  A  person  who  has  been  convicted  in  a  court  of  this 
commonwealth  of  perjury,  which  term  is  hereby  declared  to  in- 
clude subornation  of  perjury,  shall  not  be  a  competent  witness 
for  any  purpose,  although  his  sentence  may  have  been  duly  com- 
plied with,  unless  the  judgment  of  conviction  be  judicially  set 
aside  or  reversed,"  except  in  cases  involving  his  personal  secu- 
rity or  his  right  of  property. 

With  respect  to  some  purposes  and  consequences,  the  words 
"  convicted  "  and  "  conviction,"  when  used  in  a  statute,  mean 
no  more  than  the  judicial  ascertainment  of  guilt  by  verdict  or 
plea.  But  "  no  conviction  is  complete  until  sentence  is  passed 
and  recorded:  "  County  v.  Holcomb,  36  Pa.  349,  Lowrib,  C,  J. 
Therefore,  when  conviction  is  made  the  ground  of  some  disa- 
bility or  special  penalty,  a  final  adjudication  by  judgment  is 
essential.  In  such  cases,  ^^  when  the  law  speaks  of  conviction, 
it  means  a  judgment,  and  not  merely  a  verdict,  which  in  com- 
mon parlance  is  called  a  conviction: "  Smith  v.  Com.,  14  S.  & 
R.  69,  TiLGHMAN,  C.  J.  The  distinction  has  been  discussed 
and  illustrated  in  numerous  cases  in  our  own  and  other  states, 
among  which,  besides  those  already  referred  to,  are  York  County 
V.  Dalhousen,  46  Pa.  372;  Wilmoth  v.  Hensel,  151  Pa.  200; 


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4Q  COMMONWEALTH  v.  MILLER. 

Opinion  of  the  Court.  [6  Pa.  Superior  Ct; 

Shepherd  v.  People,  25  N.  Y.  406 ;  Blauf us  v.  People,  69  N.  Y. 
107 ;  Com.  v.  Gorham,  99  Mass.  420 ;  Com.  v.  Lockwood,  109 
Mass.  323.  Further  consideration,  however,  of  the  basis  of  this 
distmction  is  unnecessary,  since  the  decision  of  the  question  in 
hand  rests  on  grounds  mdependent  of  it. 

Whatever  the  authority  of  Fitz  v.  Smallbrook,  1  Keble,  134, 
it  has  been  uniformly  held,  at  least  since  the  ruling  by  Lord 
Mansfield  in  Lee  v.  Gansel,  Cowp.  3,  that  conviction  of  an 
infamous  crime,  by  verdict  or  plea  of  guilty,  does  not  work  dis- 
qualification as  a  witness  unless  foUowed  by  judgment.  The 
issue  is  not  necessarily  closed  by  such  conviction ;  a  new  trial 
may  be  granted,  or  judgment  may  be  arrested.  In  the  only 
reported  case,  so  far  as  I  have  been  able  to  find,  in  which  the 
question  has  been  raised  in  this  state  (Skinner  v.  Perrot,  1  Ash. 
57),  this  was  recognized  as  the  law.  Nothing  in  the  act  of 
May  23,  1887,  shows  an  intention  to  change  this  well-settled 
principle.  The  purpose  of  that  act  is  not  to  restrict  but  to 
enlarge  the  competency  of  witnesses.  It  makes  no  one  incom- 
petent who  was  previously  competent.  Before  its  passage,  a 
person  against  whom  a  verdict  had  been  given  was  still  compe- 
tent as  a  witness  until  judgment  was  pronounced.  Hence  he 
still  remains  competent  until  judgment.  The  conviction  that 
disqualifies,  under  the  statute,  is  the  conviction  that  had  pre- 
viously disqualified;  the  final  determination  of  the  issue  by  judg- 
ment of  conviction.  This  further  appears  from  the  provision, 
inapplicable  to  a  verdict  only,  that  the  disqualification  shall  con- 
tinue, though  the  judgment  be  carried  into  effect  by  full  com- 
pliance with  the  sentence,  "  unless  the  judgment  of  conviction  be 
judicially  set  aside  or  reversed."  The  evident  purpose  of  the 
act  is  to  restrict  disqualification  by  reason  of  crime  to  convic- 
tion of  perjury  and  subornation  of  perjury,  and  to  preserve  the 
existing  requirement  of  judgment  of  conviction  in  order  to  dis- 
qualify. Under  the  statute,  in  brief,  nothing  creates  the  disa- 
bility but  a  judgment  of  conviction ;  nothing  removes  it  but  the 
judicial  setting  aside  or  reversal  of  this  judgment ;  or  a  pardon: 
Diehl  V.  Rodgere,  169  Pa.  816. 

It  is  the  duty  of  aldermen  and  justices  of  the  peace  to  admit 
to  bail,  "  by  one  or  more  sufficient  sureties,"  accused  persons 
brought  before  them.  They  are  required  to  pass  upon  the  suf- 
ficiency of  the  bail  offered,  and  for  this  purpose  must  make  in* 


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COMMONWEALTH  v.  MILLER.  il 

1897.]  Opinion  of  the  Court. 

quiry  into  the  matter.  When  a  person  is  charged  before  an 
alderman  with  a  criminal  offense,  it  is  the  magistrate's  duty  to 
inquire  into  the  charge,  and  commit  the  prisoner,  hold  him  to 
bail,  or  discharge  him,  as  the  evidence  may  warrant.  If  he  de- 
cides to  hold  the  prisoner  to  bail,  his  duty  to  inquire  into  the 
solvency  of  the  surety  is  no  less  than  to  inquire  into  the  suffi- 
ciency of  the  complaint.  Either  inquiry  involves  the  exercise 
of  judgment  and  discretion,  and  in  both  he  acts  judicially. 
They  are  equally  part  of  a  judicial  proceeding  which  the  alder- 
man has  the  power  to  conduct,  and  in  so  doing  to  examine  under 
oath.  False  swearing  respecting  a  material  question  in  such  a 
proceeding  is  perjur}%  at  common  law  and  under  the  statutes. 
And  whether  the  inquiry  touching  the  bail  be  made  at  the  exam- 
ination of  the  charge  or  after,  is  immaterial :  Moore  v.  Com.,  6 
W.  &  S.  314 ;  Com.  v.  Ross,  6  S.  &  li.  427. 

While  it  would  have  been  proper  to  caution  the  jury  respect- 
ing the  weight  to  be  given  to  the  testimony  of  Nolan,  we  are 
not  convinced  that  the  case  should  be  reversed  because  of  an 
omission  on  this  point.  There  was  other  evidence  cori'oborative 
of  his  testimony  which,  if  believed,  entirely  justified  the  find- 
ing of  the  jury.  The  learned  trial  judge  clearly  and  accurately 
defined  the  nature  of  the  offense,  and  the  evidence  necessary  to 
establish  it,  and  the  jury  were  told  that  they  must  be  convinced 
of  the  defendant's  guilt  beyond  a  reasonable  doubt  before  they 
could  convict.  If  special  instructions  on  particular  phases  of 
the  evidence  were  desired,  the  court  should  have  been  requested 
to  give  them.  It  is  unnecessary  to  notice  the  specifications  of 
error  in  detail,  they  are  all  overruled. 

The  judgment  of  the  court  below  is  affirmed,  and  it  is  now 
ordered  that  Jacob  Miller  and  Samuel  Harris,  the  appellants, 
be  forthwith  remanded  to  the  custody  of  the  keeper  of  the  Alle- 
gheny county  workhouse,  there  to  be  confined  according  to  law 
for  the  terms  of  imprisonment  for  which  they  were  sentenced 
respectively,  and  that  the  record  be  remitted  to  the  said  court 
with  instructions  to  carry  this  order  into  effect. 


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42  LAKE  V.  WEBER. 

Syllabus — Statement  of  Facts.    [6  Pa.  Superior  Ct. 

William  E.  Lake  v.  0.  M.  Weber,  Appellant. 

Fraudulent  misrepresentation— CredulUi/  of  other  party  no  defense. 
However  negligent  a  party  may  have  been  to  whom  an  incon-ect  state- 
ment has  been  made,  yet  that  is  not  ground  upon  which  the  paity  making 
the  incorrect  statement  can  stand.    No  man  can  complain  that  another  has 
relied  too  implicitly  on  the  truth  of  what  he  himself  stated. 

Contract— Assertion  of  untruth — Rescission— Defense. 

To  assert  for  truth  what  one  professes  to  know  and  may  fairly  be  sup- 
posed to  know,  but  does  not  know  it  to  be  so,  is  equivalent  to  the  assertion 
of  a  known  falsehood^  and  may  be  so  ti'eated  in  determining  the  light  of 
the  other  party  to  rescind  the  contract,  or  if  the  falsity  of  the  declai'ation 
be  discovered  too  late  for  that,  to  defend  an  action  upon  it. 

MisrepresefUation  as  defense  to  a  contract. 

A  misrepresentation,  which  possibly  might  not  be  sufficient  gix>und 
of  an  action  for  damages,  may  be  sufi^cient  to  entitle  the  party  deceived 
to  rescind  the  contract  or  to  defeat  or  to  defend  pro  tanto,  an  action 
upon  it. 

Argued  Oct.  7,  1897.  Appeal,  No.  64,  Oct  T.,  1897,  by 
defendant,  from  judgment  of  0.  P.  No.  1,  Phila.  Co.,  March  T., 
1897,  No.  204,  for  want  of  a  sufficient  affidavit  of  defense.  Be- 
fore Rice,  P.  J.,  Wickham,  Beaver,  Reedbr,  Oblady,  Smith 
and  PoBTEB,  J  J.    Reversed. 

Assumpsit  for  services  rendered. 

It  appears  from  the  record  that  the  plaintiff  claimed  $100 
for  services  rendered  the  defendant  in  securing  and  obtaining 
for  him  a  cei*tain  contract  with  one  Joseph  Bird. 

The  defendant  filed  the  following  affidavit  of  defense :  "  O.  M. 
Weber,  being  duly  sworn  according  to  law,  deposes  and  says 
that  he  is  the  defendant  in  the  above  case,  and  that  he  has  a 
just  and  true  defense  to  the  whole  of  plaintiff's  claim  of  the  fol- 
lowing nature  and  character,  to  wit : 

Deponent  says  that  plaintiff's  statement  of  claim  filed  in  above 
case  is  defective,  and  insufficient  to  require  an  affidavit  of  de- 
fense, or  to  base  a  judgment  upon  in  this :  that  said  statement 
does  not  contain  the  name  of  defendant,  and  further,  does  not 
aver  that  any  sum  is  "  justly  due  "  to  the  plaintiff,  wherefore 
defendant  demurs  to  plaintiff's  statement  of  claim. 


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LAKE  V.  WEBER.  48 

1897.]  Statement  of  Facts. 

Deponent  further  sajrs  that  on  or  about  the  latter  part  of 
July,  or  early  part  of  August,  1896,  the  defendant  (who  is  en- 
gaged in  the  making  of  woodwork  for  building  operations)  was 
requested  by  the  plaintiff  to  submit  an  estimate  for  the  purpose 
of  obtaining  the  contract  for  furnishing  the  millwork  for  a  church 
building  to  be  erected  by  Joseph  Bird,  contractor,  and  plaintiff 
thereupon  obtained  the  specifications,  and  defendant  inspected 
them  with  plaintiff  and  commenced  preparing  an  estimate  for 
the  millwork  required  by  said  ispecifications. 

While  defendant  was  engaged  in  going  over  the  specifica- 
tions and  plans  of  said  chuitih  in  company  with  plaintiff,  de- 
fendant came  to  the  louver  fitimes  in  tower  of  said  church  build- 
ing, and  was  proceeding  to  place  an  estimate  for  the  items  of 
louver  frames  when  plaintiff  informed  defendant  that  he  (defend- 
ant) would  not  be  required  to  furnish  said  louver  frames  for  said 
tower,  as  said  louver  frames  were  to  be  copper,  whereupon  de- 
fendant struck  from  his  estimate  said  louver  frames  and  pro- 
ceeded with  said  estimates,  the  same  amounting  to  $2,650  after 
excluding  the  louver  frames,  and  the  estimate  was  then  submitted 
to  said  contractor,  Joseph  Bird,  and  the  contract  for  said  mill- 
work  was  therefore  awarded  to  said  defendant.  After  defend- 
ant entered  upon  the  execution  of  this  contract  with  said  Joseph 
Bird,  he  learned  that  the  said  plaintiff  had  fraudulently  and 
falsely  informed  defendant  in  regard  to  the  louver  frames  not 
being  required  in  the  tower  for  the  purpose  of  getting  defend- 
ant to  make  the  lowest  possible  estimate  on  said  millwork  in 
order  that  it  would  be  accepted  by  said  Joseph  Bird,  and  depo- 
nentwas  required  by  said  Joseph  Bird  to  furnish  the  louver  frames 
which  deponent  had  to  do  at  an  actual  cost  to  defendant  of  1^110. 
Deponent  therefore  avers  that  he  is  not  indebted  to  plaintiff  in 
any  sum  whatever,  but  plaintiff  is  indebted  to  the  defendant, 
and  deponent  will  ask  for  a  certificate  against  plaintiff  in  the 
sum  of  l$10.00  at  the  trial  of  this  case,  that  being  the  amount  of 
loss  which  deponent  suffered  (after  allowing  credit  to  plaintiff 
in  the  sum  of  $100)  by  reason  of  plaintiff  fraudulently  and 
falsely  informing  deponent  as  to  the  requirements  of  said  speci- 
fications and  plans  for  said  church. 

All  of  which  deponent  avers,  believes  and  expects  to  be  able 
to  prove  upon  the  trial  of  this  cause. 

Judgment  for  want  of  a  sufficient  affidavit  of  defense.  De- 
fendant appealed. 


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44  LAKK  V,  WEBKR. 

Arguments — Opinion  of  the  Coai*t.     [6  Pa.  Superior  Ct. 

Error  assigned  was  entry  of  judgment  for  want  of  a  sufficient 
affidavit  of  defense. 

William  M.  Stewart^  Jr.^  with  him  Frederick  S.  Drake  and 
John  Sparhatvk^  Jr,^  for  appellant. — That  in  order  to  defeat  a 
recovery  upon  a  contract,  it  is  sufficient  to  allege  that  there  was 
a  fraudulent  representation  as  to  any  part  of  that  which  induced 
the  defendant  to  enter  into  the  same :  Brown  v.  Eccles,  2  Pa. 
Superior  Ct.  192;  Edelman  v.  Latehaw,  180  Pa.  419;  Land  & 
Improvement  Co.  v.  Mendinhall,  4  Pa.  Superior  Ct.  398. 

A  representation  is  fraudulently  made  when  made  with  a 
knowledge  of  its  untruth ;  or,  if  in  regard  to  a  material  matter, 
when  made  in  ignorance  of  whether  it  is  true  or  not :  Braunsch- 
weiger  V.  Waits,  179  Pa.  47. 

It  is  no  answer  to  Weber's  claim  to  be  relieved  from  his  prom- 
ise that  he  might  have  learned  the  truth  by  inquiry :  Land  & 
River  Imp.  Co.  v.  Mendinhall,  4  Pa.  Superior  Ct.  398 ;  Braunsch- 
weiger  v.  Waits,  179  Pa.  47. 

Charles  H.  Pile^  for  appellee. 

Opinion  by  Rice,  P.  J.,  November  19, 1897 : 
This  is  an  action  upon  the  defendant's  promise  to  pay  the 
plaintiff  $100  in  consideration  of  the  plaintiff  procuring  for  the 
defendant  from  one  Joseph  Bird,  the  builder,  a  contract  whereby 
the  defendant  was  to  furnish  the  necessary  millwork  for  a  cer- 
tain building  and  was  to  receive  the  sum  of  $2,650  therefor. 

It  is  difficult  to  state  the  defense  without  reciting  at  some 
length  the  material  averments  of  the  affidavit  of  defense,  and 
this  we  think  it  important  to  do.  The  affidavit  avers,  that  the 
plaintiff  (having  first  come  to  an  understanding  with  Bird  that 
he,  the  plaintiff,  should  endeavor  to  get  an  estimate  for  a  sum 
not  exceeding  $2,650,  and  receive  a  commission  from  the  per- 
son to  whom  the  contract  might  be  awarded)  brought  the  plans 
and  specifications  of  the  building  to  the  defendant  and  requested 
him  to  make  and  submit  an  estimate  on  the  millwork  required 
therefor ;  that  in  making  his  estimate  he  was  about  to  include 
the  louver  frames  in  the  tower,  and  the  frieze  and  moulding 
under  the  truss,  when  he  was  informed  by  the  plaintiff  that  the 
former  were  to  be  made  of  copper  and  the  latter  of  plaster,  and 


Digitized  by  CiOOQIC 


LAKE  V.  WEBKR.  45 

1897.]  Opinion  of  the  Court* 

hence  were  not  included  in  the  millwork ;  that,  relying  upon 
this  representation,  and  complying  with  the  plaintiff's  express 
request  not  to  include  these  items,  he  omitted  them  from  his 
calculation,  and  submitted  an  offer  to  furnish  the  millwork  for 
♦2,650,  which  included  the  commission  of  $100  to  be  paid  to 
the  plaintiff  if  the  defendant's  bid  was  accepted ;  that  the  gen- 
eral contractor,  Bird,  accepted  the  bid  or  estimate  and  awarded 
to  him  the  contract;  that  after  he  entered  upon  the  execution 
thereof  he  learned  that  the  plaintiff's  representation  was  false 
and  was  made  for  the  express  purpose  of  inducing  him  to  make 
his  estimate  sufficiently  low  to  obtain  the  contract ;  that  had  he 
not  been  induced  by  the  plaintiff's  false  and  fraudulent  state- 
ments to  omit  the  cost  of  these  things  from  his  estimate  lus  bid 
would  have  been  more  than  $2,650,  and  in  that  event  the  con- 
tract would  not  have  been  awarded  to  him— a  fact  which  was 
well  known  to  the  plaintiff ;  and,  finally,  that  the  latter  knew 
the  amount  at  which  the  contract  could  be  obtained  by  the 
defendant,  and  purposely  deceived  him  in  order  that  he,  the 
plaintiff,  might  get  the  commission. 

It  is  argued,  that,  even  admitting  the  truth  of  all  the  defend- 
ant's averments,  he  has  no  defense,  but  must  still  pay  the  com- 
mission ;  and  the  court  below  so  held.  In  this  conclusion  we 
are  unable  to  concur. 

There  are  several  views  which  may  be  taken  of  this  transac- 
tion. One  that  is  well  worthy  of  consideration  is,*  whether  the 
representation  did  not  enter  into  the  terms  of  the  contract  sued 
upon  and  form  a  substantive  part  thereof.  This  position  is 
strengthened  by  the  fact  that  the  representation  was  accom- 
panied by  an  express  request  that  the  defendant  should  omit 
tlie  cost  of  the  louver  fi-ames  and  the  frieze  and  molding  from 
the  calculation.  Taking  this  view,  how  can  the  plaintiff  say 
that  he  procured  for  the  defendant  the  contract  that  he  under- 
took to  procure,  and  which  both  parties  had  in  mind  when  the 
defendant  made  his  promise  ?  It  is  answered  that  the  defend- 
ant's failure  to  obtain  a  contract  to  furnish  the  mill-work,  exclud- 
ing these  things,  for  $2,650,  was  due  to  his  own  negligence  in  not 
having  the  contract  so  drawn.  But  that  position  is  not  ten- 
able ;  for  it  is  distinctly  averred  that  the  contract  would  not 
have  been  awarded  to  him  upon  those  terms.  In  other  words, 
the  plaintiff  did  not  perform,  and  could  not  have  performed, 


Digitized  by  VjOOQ IC 


46  LAKE  V,  WEBER. 

Opinion  of  tlie  Couit.  [6  Pa.  Sapenor  Ct. 

what  he  undertook  to,  even  if  the  defendant  had  been  as  vigi- 
lant as  he  says  he  ought  to  have  been. 

But  assuming  that  the  representation  was  not  a  term  in  the 
contract,  and  treating  it  as  a  representation  merely,  we  fail  to 
see  why  the  affidavit  does  not  present  a  good  defense  to  an  ac- 
tion for  the  commission,  whatever  may  be  said  of  its  sufficiency 
as  a  statement  of  an  independent  cause  of  action  for  deceit. 
The  representation  was  false ;  it  was  of  a  material  fact  of  which 
the  plaintiff  professed  to  have  knowledge  and  the  defendant 
liad  not;  to  say  the  least,  the  plaintiff  had  a  self-seeking  motive 
for  wishing  that  it  should  be  believed  by  the  defendant ;  it  was 
made  with  the  intention,  and  express  request  that  it  should  be 
acted  upon  by  the  defendant ;  it  was  believed  by  him,  and  he 
was  thereby  actually  induced  to  act  upon  it ;  and  in  consequence 
he  was  damaged.  True,  the  affidavit  does  not  distinctly  aver, 
in  so  many  words,  that  the  .plaintiff  knew  that  the  representa- 
tion was  false,  but  it  does  aver  that  it  was  fraudulently  made, 
with  the  purpose  to  deceive  and  that  it  had  that  effect.  In 
determining  the  effect  of  these  facts  upon  the  liability  of  the 
parties  to  the  contract,  it  is  important  to  notice,  that  we  are  not 
dealing  with  an  action  for  damages  based  on  an  alleged  deceit, 
but  with  the  question  of  the  right  of  the  defendant  to  be  re- 
lieved, to  the  extent  that  he  was  injured  by  the  misrepresenta- 
tion, from  liability  on  his  promise.  A  misrepresentation  which, 
possibly,  might  not  be  sufficient  to  ground  an  action  for  dam- 
ages, may  be  sufficient  to  entitle  the  party  deceived  to  rescind 
the  contract  or  to  defeat,  or  defend  pro  tanto,  an  action  upon  it. 
We  shall  not  undertake  to  review  the  law  upon  that  subject.  It 
is  perfectly  safe  to  say,  however,  that  so  far  as  the  right  of  the 
promisor  to  defend  the  action  is  concerned  it  is  immaterial 
whether  the  other  party  knew  that  the  representation  was  false 
or  made  it  without  any  knowledge  upon  the  subject.  In  either 
case,  the  law,  as  well  as  the  common  rules  of  fair  dealing,  for- 
bids that  he  should  make  a  misrepresentation  for  the  purpose  of 
deceiving,  which  does  deceive,  and  profit  thereby  to  the  other's 
injuiy.  There  are  cases  and  this  is  one,  where  to  assert  for 
truth  what  one  professes  to  know,  and  may  fairly  be  supposed 
to  know,  but  does  not  know  to  be  so,  is  equivalent  to  the  asser- 
tion of  a  known  falsehood,  and  may  be  so  treated  in  determin- 
ing the  right  of  the  other  party  to  rescind  the  contract;  or  if 


Digitized  by  VjOOQ IC 


LAKE  V.  WEBER.  47 

1897.]  Opinion  of  the  Court. 

the  falsity  of  the  declaration  be  discovered  too  late  for  that,  to 
defend  an  action  upon  it :  Fisher  v.  Worrall,  5  W.  &  S.  478 ; 
Bower  v.  Fenn,  90  Pa.  859 ;  Braunschweiger  v.  Waits,  179  Pa. 
47 ;  Land  Imp.  Co.  v.  Mendinhall,  4  Pa.  Superior  Ct  898 ; 
Sutton  V.  Morgan,  158  Pa.  204. 

But  it  is  said  that,  before  signing  the  contract,  the  defendant 
should  have  made  inquiry  of  the  builder  as  to  the  millwork  he 
would  be  required  to  furnish,  and  that  he  was  negligent  in  not 
doing  so.  As  between  the  builder  and  the  defendant  this  would 
be  true,  and  for  that  very  reason  the  latter  was  compelled  to 
furnish  the  louver  frames,  notwithstanding  the  fact  that  he  was 
induced  by  the  plaintiff  to  believe  that  they  were  to  be  made  of 
copper,  and  therefore  did  not  come  under  the  head  of  miUwork. 
The  contractor  made  no  representations  whatever ;  therefore  as 
between  him  and  the  defendant  the  latter  could  not  be  heard  to 
say  that  he  was  deceived  as  to  the  requirements  of  the  contract 
he  signed.  It  is  to  such  a  case  that  the  single  decision  cited  by 
the  plaintiff  (Kern  v.  Simpson,  126  Pa.  42)  applies.  But  how 
is  it  as  between  the  parties  to  this  suit?  Can  the  plaintiff  say 
to  the  defendant :  "  You  had  the  plans  and  specifications  before 
you  when  we  contracted,  therefore,  you  ought  not  to  have 
believed  me  when  I  told  you  that  the  louver  frames  were  to  be 
made  of  copper  and  the  frieze  and  moulding  under  the  truss 
were  to  be  made  of  plaster ;  it  is  your  own  fault  if  you  trusted 
me  too  implicitly  and  complied  with  my  express  request." 
Clearly  he  could  not  be  heard  to  say  that,  if  the  plans  and  speci- 
fications left  it  uncertain  as  to  the  materials  of  which  these 
things  were  to  be  made ;  and  even  if  the  specifications  showed 
that  they  were  to  be  made  of  wood  they  were  subject  to  such 
changes  and  modifications  as  the  parties  to  the  principal  con- 
tract might  see  fit  to  make,  and  the  defendant  swears,  in  effect, 
that  he  was  induced  to  believe  that  such  changes  had  been  made. 
Therefore,  in  either  case,  the  representation  was  as  to  a  fact  of 
which  the  plaintiff  professed  to  have  knowledge  and  concerning 
which  the  defendant  had  no  knowledge,  anct  could  acquire  none 
from  an  inspection  of  the  written  plans  and  specifications  alone. 
He  was  obliged  to  rely  on  the  plaintiff's  representation,  or  to 
make  inquiry  elsewhere.  He  was  induced  to  rely  on  the  former, 
and  in  consequence  was  deceived  as  he  alleges,  to  his  injury  in 
a  greater  sum  than  he  promised  to  pay  the  plaintiff.    As  was 


Digitized  by  VjOOQ IC 


48  LAKE  V.  W£BE]L 

Opinion  of  the  Court.  [6  Pa.  Superior  Ct. 

held  in  Sutton  y.  Morgan,  supra,  and  Land  Imp.  Co.  v.  Mendin- 
hall,  supra,  his  neglect,  or  want  of  prudence,  cannot  justify  the 
falsehood  or  fraud  of  one  who  practiced  upon  his  credulity;  the 
doctrine  of  contributory  negligence  cannot  be  invoked  in  such  a 
case.  The  defendant's  failure  to  make  inquiry  of  the  builders 
may  be  a  fact  affecting  the  good  faith  of  his  action,  but  clearly 
it  is  not  the  basis  of  a  positive  conclusion  against  him:  McGrann 
V.  R.  R.,  Ill  Pa.  171. 

In  a  rule  for  judgment  for  want  of  a  suflBcient  affidavit  of 
defense  every  material  averment  of  fact  in  the  latter  must  be 
taken  as  tine.  Observing  this  rule,  we  conclude  without  fur- 
ther discussion  of  the  case  before  trial,  that  the  affidavit  was 
sufficient  to  prevent  judgment. 

Judgment  reversed  and  procedendo  awarded. 


The  Fidelity  Insurance,  Trust  and  Safe  Deposit  Company, 
Trustees,  under  the  will  of  John  Matthew  Hummel, 
deceased,  v.  Frederick  J.  Hafner,  Appellant. 

Parly  waXls-^LiabilUy  of  next  huildeT'-Acl  o/172l. 

Liability  arises  for  use  of  a  party  wall  under  the  Act  of  February  24, 
1721,  2  Sm.  L.  124,  where  ownership  exists  in  the  plaintiff  and  where  the 
defendant,  the  next  builder,  supported  the  roof  of  his  building  on  timbers, 
the  ends  of  which  rest  in  holes  in  said  paity  walls. 

Argued  Oct  11,  1897.  Appeal,  No.  77,  Oct.  T.,  1897,  by 
defendant,  from  judgment  of  C.  P.  No.  4,  Phila.  Co.,  March  T., 
1897,  No.  615,  for  want  of  a  sufficient  affidavit  of  defense. 
Before  Rice,  P.  J.,  Wickham,  Beaver,  Rbbdeb,  Oelady, 
Smith  and  Porter,  J  J.    Affirmed. 

Assumpsit  for  u^e  of  party  wall. 

The  facts  sufficiently  appear  in  the  opinion  of  the  court. 

Judgment  for  plaintiff  for  $116.01.    Defendant  appealed. 

Error  asngned  was,  Entry  of  judgment  for  want  of  a  suffi- 
cient  affidavit  of  defense. 


Digitized  by  VjOOQ  IC 


FroELITY  CO.  V.  HAFNER.  49 

1897.]  Arguments — Opinion  of  the  Court. 

Charles  L,  Smj/tk,  for  appellant. — The  plaintiff's  statement 
does  not  allege  a  complete  cause  of  action :  Bank  v.  Ellis,  161 
Pa.  241. 

The  defendant  shows  by  the  affidavit  of  defense  that  he  is  a 
mere  lessee  of  the  premises  and  is  not  an  owner  thereof  in  fee. 
The  action  should  be  brought  against  the  owner  and  not  against 
the  tenant:  Heiland  v.  Cooper,  38  W.  N.  C.  560. 

William  M.  Stewart^  Jr.^  with  him  John  Marshall  Gesfy  for 
appellee. — The  liability  of  the  defendant  is  clear  under  the  Act 
of  February  24, 1721,  Sm.  L.  124. 

The  question  as  to  the  right  to  recover  for  such  use  of  the 
party  wall  has  been  decided  by  the  Supreme  Court  of  Iowa 
under  a  similar  act  of  assembly :  Deere  v.  Weir-Shugert  Co., 
69  N.  W.  255. 

Opinion  by  Beaver,  J.,  November  19, 1897 : 

The  judgment  in  this  case  was  properly  entered.  The  plain- 
tiffs statement  was  sufficient.  It  distinctly  averred  the  owner- 
ship of  the  premises  upon  which  the  party  wall  was  built ;  that 
the  defendant  wa.s  the  owner  or  lessee  of  the  adjoining  premises, 
and  that  he  was  the  next  builder,  having  erected  and  built  a 
messuage  upon  the  adjoining  premises  and  making  use  of  the 
plaintiffs  party  wall  therefor.  It  avers  that  the  "•  proper  sur- 
veyor  and  regulator  duly  set  the  charge  and  value  of  the  por- 
tion of  the  said  party  wall  so  used  by  the  said  defendant  as- 
aforesaid,  of  which  the  defendant  had  notice,"  and  that  defend- 
ant refused  to  pay. 

Under  the  provisions  of  the  Act  of  February  24, 1721, 1  Sm» 
L.  124,  and  of  the  Act  of  April  10,  1849,  P.  L.  600,  the 
defendant  was  liable  for  the  amount  assessed  by  the  surveyor 
or  regulator  as  compensation  for  the  use  of  the  waU  made  by 
him.    See  Voight  v.  Wallace,  179  Pa.  620. 

The  affidavit  of  defense  is  not  sufficient.  The  defendant 
himself  alleges  that  he  used  the  "porty  wall;  that  the  roof 
erected  by  him  "  is  supported  by  light  pieces  of  scantling,  the 
timbers  or  ends  of  which  rest  in  small  holes  about  two  inches 
in  the  said  party  wall,  extending  along  the  said  party  wall  th& 
length  thereof."  This  is  a  clear  admission  of  such  a  use  of  the 
wall  as  makes  him  liable.  The  act  of  1721  provides  that  ^the 
Vol.  VI— 4 


Digitized  by  VjOOQ IC 


50  FIDELITY  CO.  v.  HAFNKR. 

Opinion  of  the  Court.  [6  Pa.  Saperior  Ct. 

first  builder  shall  be  reimbursed  one  moiety  of  the  charge  of 
such  party  wall  or  for  so  much  thereof  as  the  next  builder  shall 
liave  occasion  to  make  use  of  before  such  next  builder  shall 
anyways  use  or  break  into  the  said  wall."  The  defendant's 
entire  structure  at  least  upon  the  one  side  depended,  upon  his 
own  admission,  entirely  upon  the  party  wall.  Having  used  it, 
he  should  pay  the  amount  assessed  by  the  officer  duly  consti- 
tuted to  assess  the  value  of  the  use  of  said  wall  made  by  him. 
The  judgment  is  affirmed. 


B.  F.  Lamb  v.  E.  J.  M.  Leader,  W.  W.  Leader  and  A.  M. 
Halberstadt,  trading  as  Progressive  Steam  Power  and 
Job  Printing  House,  Appellants. 

Practice,  Superior  Churt^Defective  a»signment^Rule  XVI, 

Where  the  eiTor  assigned  is  to  the  cliarge  of  the  court,  the  part  of  the 

charge  i*eferred  to  must  be  quoted  totidem  verbis,  as  provided  by  Rule  XVI 

of  the  Superior  Court. 

Replevin--  Evidence—  Question  for  Jury. 

The  evidence  being  undisputed  that  the  title  of  an  engine  replevied  by 
plaintiff  was  in  him,  the  court  was  clearly  correct  in  leaving  to  the  jury, 
as  the  only  question  for  their  consideration,  the  value  of  the  property  in 
oonti*oversy. 

Argued  October  21,  1897.  Appeal,  No.  43,  Oct.  T.,  1897, 
by  defendants,  from  judgment  of  C.  P.  No.  1,  Phila.  Co.,  Dec.  T., 
1891,  No.  1296,  on  verdict  for  plaintiff.  Before  Rice,  P.  J., 
WiCKHAM,  Beaybb,  Rbedeb,  Orlady  and  Portbb,  J  J.  Af- 
firmed. 

Replevin  for -boiler  and  eng^e.    Before  Beitleb,  J. 

The  following  facts  appear  from  the  charge  of  the  court  be- 
low: 

Gentlemen  of  the  jury: — According  to  my  views  of  this  case 
there  is  only  one  thing  that  requires  any  action  on  your  part, 
and  that  is  to  determine  ihe  value  of  this  engine  at  the  time  it 
was  claimed  by  the  defendant     On  the  part  of  the  plaintiff 


Digitized  by  VjOOQ IC 


LAMB  V.  LEADP:R.  51 

1897.]  Charge  of  Court— Opinion  of  the  Court. 

tJiere  is  some  testimony  that  it  was  worth  some  $400 ;  on  the 
part  of  the  last  witness  on  the  stand,  that  it  was  worth  $300. 

I  may  be  wrong  in  the  law  as  to  this  case  ;  but  if  I  am  the 
court  in  banc  will  correct  me,  but  Leader  &  Colt  rented  certain 
machinery  embraced  in  the  schedule  attached  to  this  lease,  and 
amongst  other  machinery  was  this  engine.  This  engine,  it  is 
stated,  was  subject  to  an  unpaid  claim  of  the  balance  of  cost, 
#350.  The  lease  does  not  say  that  that  should  be  paid  by 
Mr.  Lamb.  It  does  not  say  that  it  should  be  paid  by  Mr. 
Leader.  But  the  lease  does  provide  that  the  annual  rental  shall 
be  #1,180,  and  that  if  the  lessee  pays  any  obligation  of  the  les- 
sor he  shall  have  credit  for  that  payment.  If  the  lessees  had 
shown  here  that  they  had  paid  $1,180  in  cash  and  also  paid  this 
$350,  or  a  portion  of  this  $350  on  the  engine,  there  might  have 
arisen  a  question  whether  that  $350  ought  to  have  been  paid 
by  Mr.  Lamb  to  the  lessees  ;  but  in  the  absence  of  any  evidence 
as  to  the  pajrment  of  the  $1,180  the  utmost  the  lessees  have  paid, 
if  they  have  paid  the  entire  $350  in  cash,  is  simply  the  $350  on 
account  of  the  rent  if  that  sum  ought  to  have  been  paid  by 
Mr.  Lamb. 

I  therefore  say  to  you  that  under  the  law  in  this  case  your 
verdict  must  be  for  the  plaintiff. 

Verdict  and  judgment  for  plaintiff  for  $435.50.  Defendant 
appealed* 

ErrorB  assigned  were  (1)  In  charging  the  jury  to  find  a  ver- 
dict for  plaintiff.  (2)  In  not  directing  the  jury  to  find  a  ver- 
dict for  the  defendant. 

John  McDonald^  for  appellants. 

J.  S.  Freeman^  for  appellee. 

Opinion  by  Beaver,  J.,  November  19, 1897 : 
The  paper-book  of  the  appellants  violates  two  rules  of  this 
court.  Rule  16  provides  that  "  when  the  error  assigned  is  to 
the  charge  of  the  court  or  to  answers  to  points  or  to  find- 
ings of  fact  or  law,  the  part  of  the  charge  or  the  points  and 
answers  or  findings  referred  to  must  be  quoted  totidem  verbis 
in  the  assignment."  The  observance  of  this  rule  was  all  the 


Digitized  by  VjOOQ IC 


52  LAMB  V.  LEADKR. 

Opinion  of  the  CouLt.  [6  Pa.  SaperiorCl. 

more  important  in  this  case  for  the  reason  that  instead  of  print- 
ing the  charge  of  the  court  immediately  pi-eceding  the  assign- 
ments of  error,  as  required  by  Rule  26,  it  is  printed  in  the 
appendix  after  the  testimony.  The  court  below  charged,  as  a 
matter  of  law,  that  the  plaintiff  was  entitled  to  a  verdict,  leav- 
ing to  the  jury  to  determine  the  value  of  the  property  in  con- 
troversy.   This  is  practically  the  only  error  assigned. 

The  appellants  succeeded  to  the  ownership  of  certain  personal 
property  leased  by  an  agreement  in  writing  by  Lamb,  the  appel- 
lee, to  Leader  &  Colt,  to  which  was  attached  a  schedule  of  the 
personal  property  leased,  including  an  engine  which  is  admit- 
tedly the  property  in  dispute.  This  engine  is  scheduled  as  being 
*'  subject  to  a  payment  of  a  balance  in  cost  $350.00."  The  only 
rental  stipulated  to  be  paid  for  the  use  of  the  articles  in  said 
schedule  mentioned  was  *1,180.  By  the  terms  of  the  agree- 
ment the  lessees  had  the  privilege  of  discharging  obligations 
for  which  the  lessor  was  liable  to  an  amount  not  exceeding 
$500.  There  is  no  allegation,  so  far  as  we  can  find  in  the  testi- 
mony that  the  lessee  paid  any  portion  of  the  rent.  The  posses- 
sion of  the  engine  in  controversy  in  this  case  was  secured  by 
the  appellants  from  Leader  &  Colt  who  secured  the  possession 
thereof  from  the  appellee  by  virtue  of  the  lease  above  referred 
to.  The  appellants  allege,  however,  that  the  engine  was  leased 
from  the  Campbell  Printing  Press  Company  and  held  by  the 
appellee  as  a  bailment  subject  to  certain  unpaid  instalments ; 
that  the  Campbell  Printing  Press  Company  replevied  the  engine 
in  their  possession  and  that  they  purchased  it  from  said  com- 
pany. The  testimony  in  regard  to  this  transaction  was  ex- 
tremely vague  and  unsatisfactory. 

The  agreement,  if  there  were  any,  under  which  the  appellee 
held  the  engine  from  the  Campbell  Printing  Press  Company,  was 
not  offered  in  evidence,  nor  was  there  any  competent  testimony 
as  to  the  terms  of  the  bailment,  if  such  it  was.  It  plainly  ap- 
peal's by  the  testimony  that  the  engine,  when  replevied  by  the 
Campbell  Printing  Press  Company  was  never  actually  delivered 
to  them,  that  it  remained  in  the  possession  of  the  appellants  after 
the  replevin  as  it  was  before,  and  that  the  appellants  paid  the 
balance  due  upon  the  engine  and  had  the  action  of  replevin 
marked  "  discontinued.'*  It  is  quite  evident  that  the  possession 
of  and  whatever  title  to  the  engine  the  appellants  had  prior  to 


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LAMB  V.  LEADER.  53 

1897.]  Opinion  of  the  Ck)urt. 

the  action  of  replevin  was  acquired  throiigh  the  lease  between 
the  appellee  and  Leader  &  Colt  Whatever  title,  therefore,  the 
appellants  secured  from  the  Campbell  Printing  Press  Company 
they  were  bound  to  hold  in  trust  for  the  appellee ;  and,  inasmuch 
as  no  rent  was  ever  paid  by  Leader  &  Colt,  as  distinctly  admit- 
ted by  Mr.  Leader  in  his  testimony,  and  there  was  consequently 
money  in  their  hands  out  of  which  the  balance  due  the  Camp- 
bell Printing  Press  Company  could  have  been  paid,  we  cannot 
see  that  the  appellants  had  any  title,  either  legal  or  equitable,  to 
the  engine  which  was  the  subject  of  this  replevin.  The  view 
taken  by  the  court  below  seems  to  have  been  correct,  so  far  as 
we  can  gather  from  the  facts  as  they  appear  in  the  testimony, 
and  the  judgment  is  therefore  affirmed. 


John  M.  Kennedy,  Jr.,  v.  William  H.  Quigg  and  James 
McLinden^  Appellants. 

Mortgage — Usury^Righl  of  mortgagor  to  defend  when  he  has  sold  prop- 
eriy  with  an  agreement  so  to  do. 

The  act  of  assembly  expressly  gives  a  borrower  the  right  to  defend 
against  a  claim  for  interest  in  excess  of  the  legal  rate,  and  courts  will  not 
permit  a  creditor  to  defeat  this  right  through  a  confusion  of  legal  princi- 
ples. 

A  mortgagor  sold  the  premises  subject  to  a  mortgage  covering  usunous 
interest,  covenanting  with  his  vendee  to  defend  against  the  mortgage  to  the 
extent  of  the  usury.  Held,  that  the  filing  by  the  mortgagee  of  a  wntten 
release  of  the  mortgagor  of  all  personal  liability  and  restricting  the  lien 
of  the  judgment  and  execution  to  the  real  estate  bound  by  the  mortgage 
will  not  defeat  the  mortgagor's  right  to  defend  nor  operate  in  evasion  of 
the  statute. 

Mortgage — Attomey^s  commission — Demand — Usury. 

A  demand  before  the  issuance  of  a  scire  facias  sur  mortgage  is  not  nec- 
essary in  order  to  recover  attorney's  commissions. 

The  fact  that  a  portion  of  the  mortgage  covei's  usurious  interest  does  not 
defeat  the  right  to  recover  attoi-ney's  commissions  on  the  amount  actually 
due.  It  18  not  unlawful  to  contract  for  or  to  receive  more  than  six  per 
cent. 

Argued  Oct.  18,  1897.  Appeal,  No.  99,  Oct.  T.,  1897,  by 
defendants,  from  judgment  of  C.  P.  No.  1,  Phila.  Co.,  June  T., 


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54  KENNEDY  v.  QUIGG. 

Statement  of  Facts— Arguments.    [6  Pa.  Superior  Ct 

1896,  No.  1847,  on  verdict  for  plaintiff.  Before  Rice,  P.  J., 
WicKHAM,  Beaver,  Oblady,  Smith  and  Pobteb,  JJ.  Re- 
versed. 

Sei.  fa.  sur  mortgage.  Motion  for  judgment  non  obstante 
veredicto. 

Motion  for  judgment  non  obstante  veredicto  was  made  on  the 
following  point  reserved: 

"  The  court  instructs  the  jury  to  find  a  verdict  for  the  plain- 
tiff for  $2,231.10,  subject  to  the  point  reserved,  whether  or  not, 
in  view  of  the  releases  filed  of  record,  a  defense  can  be  inter- 
posed to  the  $600  bonus  included  in  said  verdict,  the  defend- 
ants having  sold  the  properties  covered  by  the  mortgage  to  one 
John  Meighan,  agreeing  to  defend  against  the  plaintiff  s  claim 
to  the  extent  of  said  usury.  If  the  court  shall  be  of  opinion 
that  the  sale  of  the  property  and  the  releases  filed  debars  the 
mortgagor  and  terre-tenant  from  setting  up  that  defense,  the 
verdict  to  stand ;  otherwise,  the  verdict  to  be  reduced  to  f  1,200, 
with  interest  from  April  4,  1894;  the  Court  also  to  decide 
whether  or  not,  in  that  event,  plaintiff  is  entitled  to  a  coramis- 
aion  of  five  per  cent  on  that  sum,  demand  for  the  whole  prin- 
cipal having  been  made,  but  no  tender  of  any  kind  having  been 
made  to  plaintiff,  and  to  add  said  amount  of  five  per  cent,  if 
legally  entitled  thereto." 

Verdict  and  judgment  for  $2,231.10.     Defendants  appealed. 

JError  assigned  was  in  dismissing  defendant's  motion  for  judg- 
ment on  the  reserved  point  non  obstante  veredicto,  reciting  same. 

Alex.  Simpson^  Jr.^  for  appellants :  It  is  admitted  that  under 
the  act  of  May  28, 1858,  the  defense  of  usury  is  personal  to  the 
borrower  and  he  only  can  defend  on  that  ground :  Reap  v.  Battle, 
165  Pa.  265 ;  Trust  Co.  v.  Roseberry,  81  Pa.  809. 

But  the  facts  of  this  case  meet  all  the  requirements  laid  down 
in  these  cases  for  the  borrower  sets  up  the  defense ;  the  consid- 
eration of  the  purchase  was  the  agreement  to  defend ;  the  bor- 
rower is  living  up  to  his  agreement. 

While  the  borrower  remains  liable  on  his  bond  or  has  a  pecu- 
niary interest  to  conserve  by  setting  up  the  defense,  he  unques- 
tionably can  do  so :  Parker  v.  Sulouff,  94  Pa.  527 ;  Huchenstein 
T.  Love,  98  Pa.  618 ;  Price's  Appeal,  84  Pa.  141. 


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KKNNKDY  v.  QUIGG.  65 

1897.]  Arguments — Opinion  of  the  Court. 

The  collection  fee  is  not  chargeable  in  this  case :  Titusville 
Bank's  Appeal,  96  Pa-  460 ;  Lindley  v.  Ross,  137  Pa.  629 ;  Wil- 
son  V.  Ott,  173  Pa.  253. 

William  C.  Ferffttson^  for  appellee. — A  terre-tenant  who  pur- 
chases land  incumbered  with  a  mortgage  has  no  standing  in 
court  to  defend  the  suit  on  the  ground  of  usury :  Stay  ton  v.  Rid- 
dle, 114  Pa.  464. 

If  the  mortgagor's  right  to  defend  is  limited  to  the  one  object 
of  protecting  himself  in  his  liability  on  his  bond,  then  it  logic- 
ally follows  that  if  that  liability  be  removed  the  right  to  defend 
ends :  Reap  v.  Battle,  155  Pa.  265. 

The  fact  of  a  vague  promise  to  defend,  which  promise  is  kept, 
do^  not  entitle  the  mortgagor  to  defend,  the  property  having 
been  sold :  Broomell  v.  Anderson,  8  Atl.  Rep.  764. 

There  can  be  no  doubt  as  to  the  plaintiff's  right  to  recover  the 
attorney's  commission.  He  is  guilty  of  no  wrongdoing :  Lind- 
ley V.  Ross,  137  Pa.  629 ;  Iron  Co.  v.  Morton,  348  Pa.  72. 

Opinion  by  Smith,  J.,  November  19, 1897 : 

A  scire  facias  was  issued  on  a  mortgage  which  admittedly 
included  the  sum  of  $600,  as  a  bonus.  The  defendants  had  con- 
veyed the  mortgaged  property  to  John  Meighan,  and  agreed  to 
defend  against  the  plaintiff's  claim  to  the  extent  of  the  usury ; 
but  whether  the  conveyance  was  before  or  after  the  institution 
of  this  suit  does  not  appear.  The  defendants  filed  an  affidavit 
Betting  up  the  defense  of  usury,  and  upon  this  the  issue  was 
joined.  On  the  trial  the  plaintiff  filed  a  written  release  of  the 
defendants  from  all  personal  liability  for  the  debt,  and  restricted 
the  lien  of  the  judgment  to  be  recovered,  and  all  executions 
thereon,  to  the  real  estate  bound  by  the  mortgage.  The  court 
thereupon  directed  a  verdict  for  the  plaintiff  for  $2,231.10,  sub- 
ject to  a  point  reserved  "  whether  or  not  in  view  of  the  releases 
filed  of  record,  a  defense  can  be  interposed  to  the  $600  bonus 
included  in  the  verdict,  the  defendants  having  sold  the  proper- 
ties covered  by  the  mortgage  to  one  John  Meighan,  agreeing  to 
defend  against  the  plaintiff's  claim  to  the  extent  of  the  usury. 
If  the  court  shall  be  of  opinion  that  the  sale  of  the  property 
and  the  releases  filed  debar  the  mortgagors  and  the  terre-tenant 
from  setting  up  that  defense,  the  verdict  to  stand,  otherwise  the 
verdict  to  be  reduced  to  $1,200  with  interest  from  April  4, 1894. 
The  court  also  to  decide  whether  or  not  in  that  event  plaintiff 


Digitized  by  VjOOQ IC 


66  KENNEDY  v.  QUIGG. 

Opinion  of  the  Court.  [6  Pa.  Superior  Ct. 

is  entitled  to  a  commission  of  five  per  cent  on  that  sum,  demand 
for  the  whole  principal  having  been  made  but  no  tender  of  any 
kind  having  been  made  to  the  plaintiff,  and  to  add  said  amount 
of  five  per  cent,  if  legally  entitled  thereto."  A  motion  by 
defendants  that  judgment  be  entered  for  the  plaintiff  non 
obstante  veredicto  for  the  sum  of  11,200,  with  interest  from 
April  4, 1894,  only,  on  the  reserved  point,  was  dismissed,  and 
judgment  was  entered  on  the  verdict. 

Evidently  the  releases  were  filed  for  the  purpose  of  preclud- 
ing the  defense  of  usury,  and  to  evade  the  provisions  of  the  act 
of  May  28,  1858.  It  has  been  held  in  many  cases  that  where  a 
debtor  has  been  wholly  released  from  liability  for  the  debt  in 
suit,  without  fraud  or  mistake,  and  has  no  interest  in  the  action, 
and  will  neither  gain  nor  lose  by  the  judgment,  he  cannot  inter- 
pose a  defense  of  usury,  which  is  purely  personal  to  himself,  to 
the  prejudice  of  third  parties ;  nor  can  the  latter  do  so  to  the 
prejudice  of  either.  But  the  facts  of  this  case  exclude  it  from 
the  doctrine  of  those  decisions.  This  action  is  between  the  orig- 
inal parties  to  the  mortgage,  and  they  alone  can  be  heard.  The 
terre-tenant  has  not  been  joined,  and  could  not  be  heard  as  the 
record  stands.  It  is  clear  from  the  reserved  question  that  the 
teiTe-tenant  may  hold  the  defendants  to  their  contract  notwith- 
standing the  releases  filed,  and  that  if  the  judgment  is  allowed 
to  stand  they  must  reimburse  him  "  to  the  extent  of  the  usury." 
If  the  plaintiff  may  resort  to  the  land  for  the  usurious  interest, 
the  terre-tenant  in  turn  may  have  recourse  to  the  defendants 
for  indemnity.  Practically,  the  interest  of  the  defendants  in 
the  question  at  issue  has  not  been  lessened  or  affected,  and 
unless  they  are  permitted  to  make  defense  here,  their  rights 
under  the  act  of  1858  will  be  swept  away,  while  their  liability 
to  the  terre-tenant  will  remain. 

There  is  no  principle  of  law  that  warrants,  much  less  demands, 
this  result.  The  defendants  had  a  lawful  right  to  sell  the  land 
and  also  preserve  their  right  to  defend  against  the  usury  in- 
cluded in  the  mortgage  in  the  manner  agreed  upon.  Their 
course  involves  neither  fraud  nor  deceit.  Had  it  been  a  judicial 
sale  the  situation  of  the  parties  would  be  substantially  the  same ; 
yet  it  will  hardly  be  contended  that  by  such  event  a  debtor 
loses  his  right  of  defense.  The  act  of  assembly  expressly  gives 
a  borrower  the  right  to  defend  against  a  claim  for  interest  in 
excess  of  the  legal  rate ;  or,  if  paid,  to  recover  it  back  by  action 


Digitized  by  VjOOQ IC 


KENNEDY  v.  QUIGG.  57 

1897.]  Opinion  of  the  Court. 

within  six  months  from  the  date  of  payment.  Courts  will  not 
permit  a  creditor  to  defeat  this  right  through  a  confusion  of 
legal  principles,  in  the  manner  attempted  here.  None  of  the 
cases  cited  on  behalf  of  the  appellee  sustain  his  contention ;  they 
are  all  in  harmony  with  the  views  here  expressed.  This  feat- 
ure of  the  case  needs  no  further  discussion. 

The  claim  to  attorney's  commissions  under  the  provisions  of  the 
mortgage  requires  but  brief  notice.  Accordiog  to  the  reserved 
question,  a  demand  for  the  whole  principal  was  made,  but  there 
was  no  tender  of  any  sum.  If  a  demand  were  necessary  we  are 
unwilling  to  admit  that  the  one  made  in  this  case  was  insuffi- 
cient because  it  included  the  usury  covered  by  the  mortgage.  It 
is  not  unlawful  to  contract  for  or  to  receive  more  than  six  per 
cent.  The  right  to  do  so  is  impliedly  authorized  by  the  act  of 
1858.  There  is  then  no  reason  why  it  should  not  be  embraced 
in  the  demand.  Until  otherwise  informed,  the  creditor  has  a 
right  to  assume  that  the  debtor  vdll  fulfill  his  agreement.  So 
far  as  this  record  shows,  the  fii'st  notice  of  the  defendants'  elec- 
tion not  to  pay  the  bonus  was  about  two  weeks  after  the  pro- 
ceedings were  begun ;  and  no  tender  of  the  sum  lawfully  due 
or  of  a  judgment  therefor,  was  ever  made. 

But  this  question  has  been  settled  by  higher  authority.  In 
Warwick  Iron  Co.  v.  Morton,  148  Pa.  72,  it  was  expressly  held 
that  a  demand  before  the  issuance  of  a  scire  facias  sur  mort- 
gage is  not  necessary  in  order  to  recover  attorney's  commissions  : 
and  this  decision  was  followed  and  the  same  ruling  made  in  the 
later  case  of  Walter  v.  Dickson,  175  Pa.  204.  The  case  of  Wil- 
son V.  Ott,  173  Pa.  253,  upon  which  the  appellant  relies,  is  not 
inconsistent  with  those  i*ef erred  to ;  it  holds  that  as  the  allow- 
ance of  attorney's  commissions  is  **  within  the  control  of  the 
court  in  the  exercise  of  its  equity  powers,"  the  refusal  to  allow 
them  was  not  error,  "  in  view  of  the  nature  of  the  contest  and 
the  special  circumstances  of  the  case." 

The  judgment  of  the  court  of  common  pleas  is  reversed,  and 
judgment  is  now  entered  in  favor  of  the  plaintiff  for  the  sum  of 
fifteen  hundred  sixteen  dollars  and  eighty  cents. 

Principal      .        $1,200.00 
Commissions  60.00 

Interest  to  date         256.80 


«1,516.80 

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58  KEENAN  v.  QUIGG. 

Syllabus — ^Argumeuta.  [6  Pa.  Superior  Gt 

Joseph  J.  Keenan  v.  William  H.  Quigg  and  James  Mc- 
linden^  trading  as  Quigg  and  McLinden^  Appellants. 

Judgnien^Motion  to  strike  off— Laches— Beview, 

Where  the  defendant  took  no  appeal  from  a  judgment  and  failed  to  pro- 
ceed with  a  rule  to  strike  off  same  for  some  eighteen  months,  such  hiches 
is  manifested  that  the  appellate  eoui*t  will  not  disturb  the  action  of  the 
court  below  in  discharging  a  second  rule  to  strike  off  the  judgment  and 
stay  proceedings,  taken  after  execution  had  proceeded  to  a  venditioni 
exponas. 

Argued  Oct.  22,  1897.  Appeal,  No.  25,  Oct.  T.,  1897,  by 
defendants,  from  order  of  C.  P.  No.  3,  Phila.  Co.,  June  T.,  1894, 
No.  1234,  discharging  rule  to  strike  judgment  from  record. 
Before  Rice,  P.  J.,  Wickham,  Beaver,  Reedeb,  Orlady 
and  Porter,  J  J.    Affirmed. 

Rule  to  strike  off  judgment. 

It  appears  from  the  record  that  judgment  was  entered  in  tlie 
above  case  for  want  of  an  affidavit  of  defense,  and  damages 
assessed  for  $264.56. 

The  facts  sufficiently  appear  in  the  opinion  of  the  court. 

The  court  discharged  the  rule  to  strike  the  judgment  from 
the  record.     Defendants  appealed. 

Urror  assigned  was  refusal  to  strike  judgment  from  the  record. 

M.  J.  O'Callaghan^  for  appellants. — Before  the  passage  of  the 
procedure  act  of  1887,  it  was  held  that  a  rule  to  plead,  and  a 
plea  filed  in  response  thereto,  was  a  waiver  of  the  right  to  enter 
judgment  for  want  of  a  sufficient  affidavit  of  defense :  Johnston 
V.  Ballentine,  1  W.  N.  C.  626 ;  Fuoss  v.  Schleines,  15  W.  N.  C. 
192;  O'Neill  v.  Rupp,  22  Pa.  895. 

It  has  been  held  that  the  new  procedure  act  of  1887  did  not 
change  the  rule  of  law  in  this  particular :  Bank  v.  Stadelman, 
153  Pa.  634;  Richards  v.  Mink,  46  L.  I.  138;  Bolt  &  Nut 
Works  V.  Schultz,  6  C.  C.  Rep.  846. 

It  may  be  conceded  that  the  right  to  an  affidavit  of  defense 
may  be  waived :  Homer  v.  Horner,  145  Pa.  258 ;  Richards  v. 
Mink,  46  L.  1. 138. 


Digitized  by  VjOOQ IC 


KEENAN  r.  QUIGG.  59 

1897.]  Arguments — Opinion  of  the  Court. 

Being  for  irregularity  apparent  on  the  face  of  the  proceedings 
it,  a  rule  to  strike  ofE  a  judgment,  is  in  the  nature  of  a  demurrer 
to  the  record,  and  is  not  confined  to  any  particular  kind  of  judg- 
ments, nor  limited  as  to  the  time  it  may  be  taken  advantage  of, 
nor  affected  by  matters  dehors  the  record,  except  so  far  as  de- 
fendant may  have  put  himself  in  position  to  be  estopped  from 
making  the  objection :  Mitchell  on  Motions  and  Rules,  75, 
quoted  in  North  v.  Yorke,  174  Pa.  349 ;  Adams  v.  Grey,  154 
Pa.  258. 

The  court  has  power  to  strike  off  a  judgment  for  want  of  jur- 
isdiction or  other  fatal  irregularity  appearing  on  the  face  of  the 
record :  France  v.  Ruddiman,  126  Pa.  257 ;  North  v.  Yorke,  174 
Pa.  349 ;  Phila.  v.  Jenkins,  162  Pa.  452 ;  Miller  v.  Neidzielska, 
176  Pa.  409. 

J".  L.  Long^  for  appellee. — As  to  the  question  of  laches,  cited 
Littster  v.  Littster,  151  Pa.  474. 

It  has  never  been  decided  that  a  rule  to  plead  and  a  plea  filed 
in  answer  thereto  was  a  waiver  of  the  plaintiff's  right  to  require 
any  sworn  defense  whatever:  Barnitz  v.  Bair,  2  Chest.  Co. 
480 ;  Hoffman  v.  Locke,  19  Pa.  57 ;  Endlich  on  Aff.  Def .  sec. 
650. 

Opinion  by  Porter,  J.,  November  19, 1897 : 
The  record  in  this  case  discloses  an  anomalous  method  of 
procedure.  The  summons  was  returned  served  on  the  first 
Monday  of  August,  1894.  On  December  5,  1894,  a  plea  was 
filed  to  a  statement  and  rule  to  plead  served  on  the  defend- 
ants, but  which  statement  and  rule  seem  not  to  have  been 
filed  of  record  until  January  80, 1895.  On  February  1,  1895, 
an  affidavit  of  service  of  a  copy  of  statement  on  Novem- 
ber 24,  1894,  was  filed.  On  March  18,  1895,  a  judgment  was 
entered  for  want  of  an  affidavit  of  defense,  notwithstanding  the 
fact  that  the  cause  would  seem  to  have  been  at  issue  on  the 
plea.  On  April  18,  1895,  a  rule  appears  to  have  been  entered 
to  strike  off  the  judgment,  but  was  neither  proceeded  with  nor 
disposed  of.  Nearly  eighteen  months  thereafter,  on  October  14, 
1896,  a  writ  of  fieri  facias  was  issued,  and  subsequently,  on 
November  18,  1896,  a  venditioni  exponas.  On  November  19, 
1896,  a  second  rule  was  entered  to  strike  the  judgment  from 


Digitized  by  VjOOQ IC 


60  KEENAN  v.  QUIGG. 

Opinion  of  tlie  Couit.  [6  Pa.  Superior  Ct. 

the  record,  proceedings  to  stay,  sur  petition  of  one  of  the  defend- 
ants. On  January  16, 1897,  the  rule  was  discharged,  and  on 
January  25, 1897,  an  appeal  was  taken  to  this  court  from  that 
order. 

We  do  not  find  it  necessary  in  this  case  to  determine  whether 
a  rule  to  plead  is,  since  the  Procedure  Act  of  1887,  a  waiver  of 
the  right  to  an  affidavit  of  defense. 

The  defendants  took  no  appeal  from  the  original  judgment, 
and  failed  to  proceed  with  the  rule  taken  on  April  18, 1895, 
to  strike  off  the  judgment.  This  was  such  laches  on  their  part  as 
to  prevent  their  successful  appeal  to  tlie  court  for  relief.  We 
are  the  more  reluctant  to  disturb  the  action  of  the  court  below, 
in  view  of  the  fact  that  nowhere  on  the  record  have  the  defend- 
ants attempted  to  set  up  a  substantial  defense  on  the  merits  of 
the  cause. 

Judgment  affirmed. 


Mary  R.  Kimbrough  v.  Walter  Hoffman,  Superintend- 
ent, and  Theodore  Voorhees,  Chairman  of  Advisory 
Committee,  representing  themselves  and  others  who 
are  associated  together  as  the  Philadelphia  and  Read- 
ing Railroad  Relief  Association,  Appellants. 

Railroad  relief  associalion — Contractual  liability — Words  and  phrases — 
Connected  and  associated  or  affiliated  companies. 

Where  the  whole  project  and  intendment  of  a  railroad  relief  association 
is  based  upon  the  control  of  the  business  by  peraons  who  are  interested  in 
the  contributions  and  benefits  and  where  membership  is  limited  to  em- 
ployees of  railroads  connected  and  associated  with  the  Reading  Railroad, 
the  tei*m  *'  connected  and  associated  ^^  is  to  be  construed  as  applicable  to 
milroads  so  recognized  by  representation  in  the  relief  association:  it  can- 
not be  forced  by  strained  constioiction  to  cover  companies  **  affiliated  ^^  with 
the  Reading  Company  in  a  limhed,  special  and  contractual  manner,  the 
employees  of  which  were  never  recognized  as  eligible  to  membership  in 
the  relief  association. 

Practice,  C  P.— Province  of  court  and  Jury— Construction  of  contract. 

The  province  of  the  jury  is  to  settle  disputed  questions  of  fact.  If  no 
disputed  facts  exist  there  is  nothing  for  them  to  do,  and  it  is  for  the  court 
to  determine  the  leo^al  effect  of  tiie  contract. 


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KIMBROUGH  v.  HOFFMAN.  61 

1897.]  Statement  of  Facts— Opinion  of  the  Court. 

Argued  Oct.  15, 1897.  Appeal,  No.  lOT,  Oct.  T.,  189T,  by 
defendants,  from  judgment  of  C.  P.  No.  3,  Phila.  Co.,  June  T., 
1896,  No.  131,  on  verdict  for  plaintiff.  Before  Rice,  P.  J.,  Wick- 
ham,  Beaver,  Reedeb,  Oblady,  Smith  and  Porter,  JJ. 
Reversed. 

Assumpsit  to  recover  benefits.    Before  Gordon,  J. 
The  facts  sufficiently  appear  in  the  opinion  of  the  court. 
Verdict  and  judgment  for  plaintiff  for  $556.50.    Defendant 
appealed. 

Errors  assigned  were  (1)  In  submitting  to  the  jury  as  a 
question  of  fact  the  construction  and  effect  of  the  written  regu- 
lations of  the  Philadelphia  and  Reading  Railroad  Relief  Asso- 
ciation. (2)  In  submittmg  to  the  jury  as  a  question  of  fact 
the  construction  and  effect  of  the  written  contract  l)etween  the 
Atlantic  City  Railroad  Company,  the  Delaware  River  Ferry 
Company  and  the  South  Jersey  Railroad  Company.  (3)  In 
refusing  binding  instructions  for  defendants. 

John  G.  Lamb^  for  appellants. — The  contmcts  should  have 
been  construed  by  the  court :  Palmer  v.  Farrell,  129  Pa.  162 ; 
Duffield  V.  Hue,  129  Pa.  94 ;  Kneedler  v.  Goodman,  47  L.  1. 4 ; 
Elliott  V.  Wanamaker,  9  C.  C.  497 ;  Sun  Fire  Office  v.  Ennen- 
trout,  11  C.  C.  21 ;  Middleton  v.  Stone,  111  Pa.  589 :  Bryant 
V.  Hagerty,  87  Pa.  256 ;  Fisher  v.  Moyer,  17  W.  N.  C.  500 ; 
Foster  v.  Berg,  104  Pa.  324 ;  Dumn  v.  Rothermel,  112  Pa.  272. 

J.  Whttaker  Thompson^  for  appellee. — It  was  not  error  to  sub- 
mit to  the  jury  the  meaning  of  the  word  "  affiliated  "  within  the 
intention  of  the  parties :  Jones  v.  Kroll,  116  Pa.  85. 

An  ambiguity  on  the  face  of  a  written  document  is  for  the 
judge  to  explain,  but  if  it  arises  from  extrinsic  evidence  it  must 
be  solved  by  the  jury :  Beatty  v.  Ins.  Co.,  52  Pa.  456  ;  Iron  and 
Railroad  Co.  v.  Stevens,  87  Pa.  190  ;  Krauser  v.  McCurdy,  174 
Pa.  174. 

Opinion  by  Orlady,  J.,  November  19, 1897 : 
The  defendant  is  an  association  composed  of  the  employees 
of  the  Philadelphia  &  Reading  Railroad  Company,  and  the 
employees  of  its  affiliated,  controlled  and  leased  lines,  the  ob- 


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62  KIMBROUGH  v.  HOFFMAN. 

Opinion  of  the  Court.  [6  Pa.  Superior  Ct. 

ject  of  which,  "  is  the  establishment  and  management  of  an 
association  to  be  known  as  the  *  Relief  Association '  for  the  pay- 
ment of  definite  amounts  to  the  contributors  to  the  fund,  who 
under  the  regulations  shall  be  entitled  thereto,  when  they  are 
disabled  by  accident  or  sickness,  and  in  the  event  of  their  death, 
to  the  relatives  or  other  beneficiaries  specified  in  the  application 
of  such  contributors." 

Oil  July  23, 1894,  the  plaintiff's  husband,  Matthew  A.  Kim- 
brough  was  an  employee  of  the  Philadelphia  &  Reading  Railroad 
Company,  on  what  was  known  as  the  Reading  Division  of  its 
system,  and  on  that  date  he  became  a  member  of  the  defendant 
relief  association.  On  February  2, 1895,  he  withdrew  from  ser- 
vice in  the  Philadelphia  &  Reading  Railroad  Company,  and 
became  an  employee  of  the  South  Jersey  Railroad  Company. 
During  the  next  month,  and  while  in  the  service  of  the  South 
Jersey  Railroad  Company,  he  became  sick  and  went  to  a  hospi- 
tal where  he  remained  under  treatment  until  May  81st,  when 
he  died.  On  February  28, 1895,  in  pursuance  of  the  regula- 
tions governing  the  relief  association,  the  Philadelphia  &  Read- 
ing Railroad  Company  deducted  from  the  wages  due  by  it  to 
Kimbrough  for  February  1st  and  2d  (which  he  had  not  de- 
manded on  retirement  from  service),  his  fixed  contribution  for 
the  relief  association  for  the  mouth  of  March.  The  association 
did  not  then  know  that  Kimbrough  had  resigned  from  the  ser- 
vice of  the  railroad  company  on  February  2d,  and  on  being 
informed  of  that  fact  during  the  month  of  March,  dropped  his 
name  fi'om  the  rolls  of  the  association,  and  issued  a  refunding 
check  for  the  amount  of  his  contribution  for  the  month  of 
March,  which  was  not  delivered  to  him  on  account  of  not  know- 
ing his  whereabouts. 

This  suit  is  brought  by  the  beneficiary,  named  in  his  appli- 
cation, to  recover  from  the  association  the  amount  to  which  she 
would  be  entitled  had  he  remained  in  his  original  employment 
of  the  Philadelphia  &  Reading  Railroad  Company. 

The  learned  trial  judge  left  it  to  the  jury  to  find  as  a  question 
of  fact  whether  the  South  Jersey  Railroad  was  affiliated  with 
the  Philadelphia  &  Reading  Railroad  Company  within  the  mean- 
ing of  the  regulations  of  the  relief  association.  The  facts  were 
not  disputed.  The  interpretation  of  the  regulations  of  the  asso- 
ciation and  the  tripartite  contract  between  the  Atlantic  City 


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KIMBROUGH  r.  HOFFMAN.  68 

1897.]  Opinion  of  the  Court. 

Railroad  Company,  The  Delaware  River  Ferry  Company  and 
Logan  M,  BuUit,  the  performance  of  whose  covenants  was  as- 
sumed by  the  South  Jeraey  Railroad  Company,  and  to  determine 
whether  the  last  named  company  was  afl&liated  with  the  Phila- 
delphia &  Reading  Railroad  Company  were  questions  of  law  for 
the  court,  and  the  construction  of  these  writings  must  be  made 
in  the  light  of  the  plaintiff's  claim  as  the  beneficiaiy  of  her  hus- 
band. 

Her  right  to  recover  for  death  benefits  can  rise  no  higher  than 
his  right,  if  living,  to  recover  for  disablement  benefits. 

It  was  proved,  and  not  disputed  at  the  trial,  that  none  of  the 
employees  of  the  South  Jereey  Railroad  had  ever  become  mem- 
bers of  this  relief  association ;  that  when  an  employee  ceased  to 
be  in  the  employ  of  the  railroads  enumerated  in  the  regulations 
of  the  relief  association,  and  became  an  employee  of  the  South 
Jersey  Railroad,  a  transfer  certificate  continuing  his  member- 
ship in  the  association  was  not  issued  to  him ;  that  the  South 
Jersey  Railroad  was  not  named  in  the  list  of  companies  entitled 
to  representation  on  the  advisoiy  committee  of  the  association, 
though  the  edition  of  the  regulations  in  evidence  was  issued 
the  year  following  the  tripartite  agreement. 

In  the  application  for  membership  in  the  association,  which 
was  signed  by  the  plaintiff's  husband,  it  is  provided,  inter  alia, 
*'  I  do  hereby  further  acknowledge,  consent  and  agree  that .... 
my  resignation  from  the  service  of  the  said  company  (Philadel- 
phia &  Reading)  my  employer,  or  my  being  relieved  from  em- 
ployment and  pay  therein  at  the  pleasure  of  the  company,  or 
its  proper  oflBcers,  shall  forfeit  my  membership  in  the  aforesaid 
relief  association,  and  all  benefits,  rights  or  equities  arising 
therefrom.  .  .  . 

"  The  responsibility  of  the  relief  association  to  any  member 
shall  end  when  he  ceases  to  be  employed  by  the  company,  ex- 
cepting for  benefits  to  the  payment  of  which  he  shall  have 
become  previously  entitled  by  reason  of  accident  or  sickness 
occurring  while  in  the  service." 

By  paragraph  14,  of  the  regulations  it  is  provided :  "  In  refer- 
ring to  the  employee  of  the  company,  the  expressions  'service ' 
and  *  in  the  service,'  will  refer  to  employment  upon  or  in  con- 
nection with  any  of  the  railroads  or  works,  the  employees  of 
which  shall  be  admitted  to  membership  in  this  relief  association, 


Digitized  by  VjOOQ IC 


64  KIMBROUGH  v.  HOFFMAN. 

Opinion  of  the  Court.  [6  Pa.  Superior  Ct. 

and  the  sendee  of  any  employee  shall  be  considered  as  '  continu- 
ous '  from  the  date  from  which  he  has  been  continuously  em- 
ployed, without  interruption,  upon  or  in  connection  with  either 
of  such  railroads  or  works,  or  two  or  more  of  tbem  successively." 

It  was  admitted  by  the  defendant  that  the  majority  of  the 
stock  of  the  Atlantic  City  Railroad  Company  and  of  the  Dela- 
ware River  Ferry  Company  was  owned  by  the  Philadelphia  & 
Reading  Railroad  Company,  and  that  these  companies  were  con- 
trolled lines  within  the  meaning  of  the  regulations  of  the  relief 
association.  It  is  evident,  from  the  regulations  of  this  associa- 
tion, that  only  persons  entitled  to  membership  therein  as  con- 
tributing members  should  be  entitled  to  receive  the  benefits 
provided  for,  and  that  the  membership  should  be  limited  to 
employees  of  i-ailroads  connected  and  associated  with  the  Phila- 
delphia &  Reading  Railroad  Company,  so  as  to  make  each  indi- 
vidual vote  potential  in  the  selection  of  the  officers  who  would 
direct  the  affairs  of  the  association. 

The  whole  project  is  based  upon  the  control  of  the  business 
by  persons  who  are  interested  in  the  contributions  and  benefits. 

This  is  not  a  controversy  between  the  railroad  companies,  and 
its  solution  depends  on  the  status  of  Kimbrough  at  the  time  he 
became  an  employee  of  the  South  Jersey  Railroad,  and  on  his 
relation  to  the  relief  association  at  that  time. 

He  ceased  to  be  an  employee  of  the  Philadelphia  &  Reading 
Railroad  Company  on  Februaiy  2,  1895,  when  by  paragraph  56 
of  the  regulations  the  responsibility  of  the  association  ended  as 
to  him,  if  he  did  not  go  into  the  employ  of  an  affiliated  com- 
pany. Under  the  undisputed  evidence,  the  court  should  have 
held  that  the  South  Jersey  Railroad  Company  was  not  affiliated 
with  the  Philadelphia  and  Reading  within  the  meaning  of  the 
regulations  of  the  relief  association.  If  the  South  Jersey  Rail- 
road is  affiliated  with  the  Philadelphia  &  Reading  Railroad, 
within  the  meaning  of  the  regulations  of  this  association,  by 
reason  of  the  tripartite  agreement,  another  railroad  having  sim- 
ilar relations  with  the  South  Jersey  Railroad  might  well  claim 
to  be  affiliated  with  the  Philadelphia  &  Reading  Railroad  un- 
der the  reasons  urged  by  the  appellee.  It  may  be  conceded 
that  the  South  Jersey  Railroad  is  affiliated  with  the  Philadelphia 
&  Reading  Railroad  in  a  limited,  special  and  contractual  man- 
mer,  but  the  ingenious  argument  of  the  appellee  puts  upon  the 


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KIMBROUGH  v.  HOFFMAN.  65 

1897.]  Opinion  of  the  Court. 

word  a  strained  and  narrow  construction,  repugnant  to  and  in- 
consistent with  the  purpose  and  spirit  of  the  regulations  of  the 
relief  association. 

The  erroneous  detention  of  the  contrib^ttion  for  March  out  of 
the  wages  due  for  February  Ist  and  2d,  does  not  change  the 
result.  This  was  done  without  knowledge  of  the  facts  of  the 
case,  as  Kimbrough  failed  to  give  the  required  notice  of  with- 
drawal, and  failed  to  surrender  his  certificate.  By  leaving  in 
the  hands  of  his  employer  the  two  days'  wages,  he  could  not 
continue  in  force  the  contract  he  had  voluntarily  canceled. 

Taken  as  a  whole,  in  the  light  of  the  admitted  facts  and  cir- 
cumstances under  which  Kimbrough  became  a  member  of  the 
association,  the  construction  of  his  contract  was  a  question  of  law 
with  which  the  jury  had  nothing  to  do.  The  object  of  interpre- 
tation and  construction  is,  if  there  be  any  uncertainty  as  to  the 
meaning  of  a  contract,  to  find  the  intention  of  the  parties.  If 
the  contract  is  clear  and  unambiguous,  there  is  no  room  for  con- 
struction. The  parties,  in  the  absence  of  fraud,  accident  or  mis- 
take, are  bound  according  to  the  plain  words  of  the  contract: 
Shafer  v.  Senseman,  125  Pa.  810. 

The  province  of  the  jury  is  to  settle  disputed  questions  of  fact. 
K  no  disputed  facts  exist  there  is  nothing  for  them  to  do,  and 
it  is  for  the  court  to  determine  the  legal  effect  of  the  contract : 
Elliott  V.  Wannamaker,  155  Pa.  67  ;  Baranowski  v.  Aid  Society, 
3  Pa.  Superior  Ct.  367. 

The  assignments  of  error  are  sustained,  and  the  judgment  is 
reversed. 


M.  C.  Shanahan  v.  The  Agricultural  Insurance  Com- 
pany, Appellant.  M.  C.  Shanahan  v.  The  London  & 
Lancashire  Fire  Lisurance  Company,  Appellant. 

Inaurance^ClericcU  error  in  description — Question  for  Jury. 

Where  by  a  clencal  error  of  the  agent  of  an  insurance  company  the 
description  of  the  propeity  insured  designated  one  stable  instead  of  two, 
and  where  it  was  the  intention  of  the  insured  and  insurer  to  cover  two 
stables  instead  of  one,  such  clerical  error  will  not  enable  the  defendant 
company  to  avoid  the  policy  to  the  injury  of  the  insured.    The  question  as 

Vol.  VI— 5 


Digitized  by  VjOOQ IC 


66  SHANAHAN  v.  INSURANCE  CO. 

Syllabus — Assignment  of  EiTors.    •  [6  Pa.  Superior  Ct. 

to  how  the  eiTor  arose  was  one  purely  of  fact  and  was  properly  for  the 
)ury,  tlie  eridence  being  ample  to  waiTant  a  rerdict  for  the  plaintiff. 

Insurance^Error  in  policy — Act  of  agent — Laches, 

An  erroneous  description  having  been  inserted  in  a  policy  by  the  act  of 
the  agent  of  the  insurance  company,  the  defendant  cannot  be  released  from 
its  contract  because  the  plaintiff,  acting  in  good  faith,  accepted  without 
examination  the  policy  written  by  its  agent. 

Practice,  Superior  Court — Review — Refusal  of  new  trial. 
The  appellate  court  will  not,  except  in  clear  cases  of  abuse  of  discretion, 
review  the  discretion  of  the  ti*ial  couit  in  refusing  a  new  ti'ial. 

Practice,  Superior  Court-- Appeals-- Defective  assignment. 
Assignments  are  defective  under  Rule  XVII.,  which  allege  error  in 
admitting  or  refusing  evidence  but  which  fail  to  quote  the  full  substance 
of  the  bill  of  exceptions  or  to  copy  the  bill  in  immediate  connection  with 
the  assignment. 

Submitted  Oct.  7, 1897.  Appeals,  Nos.  61  and  62,  Oct.  T., 
1897,  by  defendants  from  judgments  of  C.  P.  No.  1,  Phila.  Co., 
June  T.,  1896,  Nos.  284  and  285,  on  verdicts  for  plaintiffs. 
Before  Rice,  P.  J.,  Wickham,  Bbaveb,  Reedbb,  Orlady, 
Smith  and  Porter,  JJ.    Affirmed. 

Assumpsit  on  policy  of  insurance. 

It  appears  from  the  record  that  these  suits  were  brought  to 
recover  from  the  defendant  companies  the  sum  of  $750  eacli, 
claimed  to  be  the  value  of  certain  stable  buildings  which  were 
destroyed  by  fire  owned  by  the  plaintiff  and,  as  contended  by 
him,  covered  by  certain  policies  of  insurance  issued  to  him  by 
the  defendant  insurance  companies. 

The  defendant  denied  the  liability  because  the  buildings 
destroyed  were  not  the  one  described  in  the  policy. 

Verdict  and  judgment  for  plaintiff  in  each  case  in  the  sum  of 
$792.15.    Defendants  appealed. 

Err  or  B  assigned  were,  (1)  In  admitting  the  testimony  of 
M.  C.  Shanahan  and  Joseph  O'Kane,  concerning  the  alleged 
mistake  of  the  latter  in  preparing  the  form  of  insurance  attached 
to  the  policy  upon  which  suit  is  brought  in  this  case,  and  to 
which  exceptions  were  taken  at  the  time  of  the  trial  by  the 
defendant.  (2)  In  refusing  to  allow  the  defendant  to  prove,  by 
Milton  A.  Nobles,  that  as  district  agent  of  the  Agricultural 
Insurance  Company,  the  said  company  would  not  have  issued 


Digitized  by  VjOOQ IC 


SHANAHAN  v,  INSUR.VNCK  CO.  67 

1897.]  Assignment  of  Errors. 

a  policy  in  the  form  such  as  the  one  offered  in  evidence  here 
had  the  word  therein  been  "  buildings  "  instead  of  "  building :  *' 
and  that  also,  as  a  general  insurance  expert,  that  no  insurance 
company  in  the  United  States  would  issue  such  a  policy,  nor, 
in  his  experience,  has  he  ever  known  such  a  policy  being  issued 
by  any  insurance  company.  (3)  In  making  answer  to  the  sec- 
ond point  submitted  by  the  defendants.  Said  point  and  answer 
are  as  follows :  "  In  undertaking  to  determine  the  loss  which 
the  plaintiff  in  this  case  has  sustained,  the  jury  must  take  into 
consideration  the  fact  that  the  conditions  existing  at  the  time 
of  the  fire  had  most  materially  depreciated  the  selling  value  or 
renting  value  of  tiiis  stable  building,  and  the  amount,  if  any- 
thing, which  the  plaintiff,  under  these  circumstances,  would  be 
entitied  to  recover,  must  be  found  by  deducting  the  market 
value  of  the  land  itself  from  the  actual  market  value  of  the 
building  and  land  at  the  time  of  the  fire."  "  As  to  that  point, 
gentlemen,  I  want  to  say  that  the  effect  of  the  testimony  is  not 
for  me  to  say ;  it  is  for  you  to  consider.  Considering  the  cir- 
cumstances which  wei-e  alluded  to  in  that  point,  what  do  you 
believe  was  the  money  value  of  the  building  under  all  the  cir- 
cumstances of  the  situation  and  surroundings  at  the  time  of  the 
fire  ?  And  in  that  connection,  I  call  your  attention  to  the  tes- 
timony of  the  witnesses  as  to  the  value.  The  last  witness  said 
he  put  the  value  at  over  Jl,600,  and  my  memory  of  it  is  that  he 
said  that  that  building  was  worth  that  at  the  time  of  the  fire, 
and  there  is  no  contradiction  of  whatever  he  did  say  on  the 
subject.  Whenever  there  is  a  difference  of  opinion  as  to  what 
the  witness  says  and  what  a  judge  gives  you,  take  your  own 
memory  and  not  mine."  (4)  In  refusing  to  affinn  the  third 
point  submitted  by  the  defendants,  which  was  as  f  ollowB :  "  The 
policies  of  insurance  of  the  defendant  companies  in  this  case  did 
not  cover  the  stable  building  which  was  destroyed  by  the  fire, 
audyour  verdict,  therefore,  must  be  for  the  defendants."  (5)  In 
refusing  to  affirm  the  fourth  point  submitted  by  the  defendants, 
which  was  as  follows :  "  Under  all  the  circumstances,  the  ver- 
dict in  these  cases  must  be  for  the  defendants."  (6)  In  refus- 
ing to  grant  a  new  trial  to  the  defendants,  upon  the  ground  of 
after-discovered  testimony  submitted  to  them.  (7)  In  entering 
judgments  upon  the  verdicts  rendered  in  these  cases. 


Digitized  by  VjOOQ IC 


68  SHANAHAN  v.  INSURANCE  CO. 

Arguments — Opinion  of  the  Court.   [6  Pa.  Superior  Ct; 

JP.  R,  Shattucky  for  appellants. — The  point  here  made,  is,  that 
in  the  present  cases,  the  effort  is  to  make  a  policy  of  insurance 
cover  a  building  not  described  or  referred  to  in  any  way  in  the 
policies,  so  that  no  notice  or  knowledge  concerning  the  charac- 
ter thereof  is  brought  home  to  the  companies  ;  and  this  is  going 
further  and  beyond  any  decision  heretofore  rendered.  To  allow 
this  to  be  done  would  be  a  practice  of  the  most  dangerous  kind 
and  character. 

In  the  case  of  a  building  which  cannot  be  said  to  have  a  mar- 
ket value,  the  amount  which  the  insured  is  entitled  to  recover, 
in  case  of  a  loss,  is  not  what  it  would  cost  to  rebuild,  but  what 
is  shown  to  have  been  the  money  value  of  the  building  under 
all  of  the  circumstances  of  its  situation  and  surroundings,  at  the 
time  of  the  fire  :  Insurance  Co.  v.  Creaton,  98  Pa.  451 ;  Brinley 
V.  Insurance  Co.,  11  Mete.  (Mass.)  195 ;  ^tna  Insurance  Co. 
V.  Johnson,  11  Bush  (Ky.),  586. 

The  after-discovered  testimony  submitted  to  the  court  cer- 
tainly required  that  the  defendants  should  have  been  given  the 
benefit  of  a  new  trial. 

Even  where  the  credibility  of  the  witness  to  testimony  dis- 
covered after  the  trial  is  sti'ongly  attacked,  nevertheless  a  new 
trial  should  be  allowed,  as  the  credibility  of  the  witness  is 
entirely  for  tlie  jury :  Green  v.  Traction  Co.,  6  Dist.  Reps.  284. 

Jacob  Singer  and  Emanuel  Furthy  for  appellee. — As  to  the 
construction  of  the  policy  of  insurance,  cited  Machine  Co.  v. 
Ins.  Co.,  178  Pa.  53  ;  Dowling  v.  Ins.  Co.,  168  Pa.  234 ;  David- 
son V.  Assurance  Co.,  176  Pa.  525. 

Opinion  by  Orlady,  J.,  November  19, 1897 : 
These  two  cases  were  tried  together,  and  one  appeal  is  taken 
by  consent.  The  plaintiff  brought  suit  on  a  policy  of  insui^ance 
against  each  of  these  defendants  to  recover  from  each  the  sum 
of  $750.  The  policies  issued  were  of  the  standard  form  and 
described  the  property  as  follows :  "  $1,500  on  the  frame  stable 
building  and  additions  thereto,  on  the  north  side  of  Jersey  ave- 
nue near  Charles  street,  Gloucester  City,  N.  J.,  other  insurance 
permitted  without  notice  until  required."  The  plaintiff  was 
the  owner  of  two  stables,  of  equal  value,  which  were  used  for  a 
common  purpose  and  which  were  separated  from  each  other  by 
a  distance  of  ten  or  twelve  feet. 


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SHANAHAN  v.  INSURANCE  CX).  69 

1S97.]  Opinion  of  the  Court. 

An  application  was  made  by  the  plaintiff  to  the  local  agent 
of  the  defendant  companies  for  an  insurance  of  $3,000  on  the 
two  stable  buildings.  The  local  agent  examined  the  properties, 
approved  the  risk  and  issued  a  policy  of  insurance  for  #1,500  in 
each  of  the  defendant  companies,  and  in  both  the  property  was 
described  as  before  quoted.  One  of  the  stables  was  totally 
destroyed  by  fire,  and  when  suit  Wiis  brought  to  recover  for  the 
loss,  each  company  made  the  same  defense :  "  That  said  stable 
building  so  insured  is  still  standing  at  said  location,  and  has  not 
been  in  any  way  or  manner  injured  or  damaged  by  any  fii-e  what- 
ever ;  that  the  fire  referred  to  in  said  plaintiff's  statement  was  in 
another  building  altogether  than  the  one  insured  under  said  pol- 
icy, which  other  building  was  in  no  way  or  manner  connected 
with  the  building  insured,  and  was  not  an  addition  thereto,  but 
an  entire,  separate  and  distinct  building,  not  situated  on  the 
north  side  of  New  Jersey  Avenue  near  Charles  street,  Glouces- 
ter City,  N.  J.,  but  was  situated  in  the  rear  of  the  building 
insured  under  said  policy  at  a  considerable  distance  therefrom." 

The  plaintiff  contended  that  the  policies  were  intended  to 
cover  the  two  stables  and  in  this  he  was  supported  on  the  trial 
by  the  direct  testimony  of  the  local  agent  of  the  defendant  com- 
panies, and  this  fact  was  found  by  the  jury  in  favor  of  the  plain- 
tiff. The  description  of  the  property  was  made  on  typewritten 
slips,  in  the  office  of  the  local  agent,  and  these  slips  were  signed 
by  him  in  the  name  of  his  firm,  and  then  affixed  to  the  printed 
policy  in  a  blank  space  provided  for  that  use.  The  verdict  de- 
termines as  a  fact  that  in  the  typewritten  description  the  word 
"building"  instead  of  "buildings  "  was  erroneously  used,  and 
the  whole  controversy  arises  from  this  alleged  error. 

The  first  and  second  assignments  of  error  are  not  considered 
for  the  reason  that  they  are  framed  in  disregard  of  Rule  IT  of 
this  court :  Denniston  v.  Phila.  Co.,  1  Pa.  Superior  Ct.  599 ;  Com. 
V.  Smith,  2  Pa.  Superior  Ct.  474,  and  counsel  violate  this  rule 
at  their  peril  in  this  as  the  similar  rule  in  the  Supreme  Court : 
Raymond  v.  Schoonover.  181  Pa.  852.  The  case  was  fairly 
presented  to  the  jury  by  the  learned  trial  judge :  "  If  you  believe 
that  these  policies  were  made  out  in  the  shape  that  they  are,  by 
accident  and  oversight,  that  it  was  the  intention  of  the  person 
that  applied,  and  the  companies  who  issued  these  policies,  to 
cover  the  two  stables  instead  of  one — then  the  verdict  ought  to 
be  for  the  plaintiff." 


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70  SIIAXAHAN  t\  INSURANCK  CO. 

Opinion  of  the  Court.  [6  l*2i.  Superior  Ct 

It  was  purely  a  question  of  fact,  and  there  was  ample  evi- 
dence to  warrant  the  verdict.  In  Eilenberger  v.  Protective 
Mutual  Fire  Ins.  Co.,  89  Pa.  464,  it  was  held  that  the  fraud  or 
mistake  of  a  knavish  or  blundering  agent,  done  within  the  scope 
of  the  powers  given  him  by  an  insurance  company,  will  not 
enable  the  latter  to  avoid  a  policy  to  the  injury  of  the  insured, 
who  innocently  became  a  party  to  the  contract,  and  in  Insurance 
Co.  V.  Cusick,  109  Pa.  157,  in  referring  to  the  Eilenberger  Case, 
it  is  said :  "  In  the  case  cited  the  agent  committed  a  fraud  by 
setting  down  false  answers  in  the  application ;  in  the  case  in 
hand  the  agent  committed  a  blunder  by  incorrectly  describing 
the  property  insured.  In  neither  was  the  act  complained  of  in 
any  proper  sense  the  act  of  the  insured ;  in  neither  can  the  com- 
pany be  permitted  to  cast  upon  the  insured  the  consequences  of 
the  crime  or  blunder  of  its  own  agent.  The  cases  cannot  be 
distinguished  in  principle."  The  case  now  before  us  is  much 
milder  in  its  facts  than  either  of  the  two  first  cited,  as  the 
insured  and  agent  of  the  companies  agree,  that  both  stables  were 
intended  by  them  to  be  covered  by  the  insurance,  and  that  by 
the  clerical  error  of  a  typewriter  a  letter  was  dropped  so  as  to 
make  the  description  refer  to  a  building  instead  of  buildings. 

There  was  no  written  application  in  this  case ;  the  local  agent 
was  familiar  with  the  premises  and  intended  to  have  the  two 
policies  cover  just  what  the  insured  desired — both  stables.  The 
erroneous  description  was  the  act  of  the  agent  alone,  in  the  face 
of  light  and  knowledge,  and  it  was  unknown  to  the  insured 
until  after  the  loss  occurred.  The  defendant  cannot  be  released 
from  its  contract  because  the  plaintiff,  acting  in  good  faith, 
accepted  without  examination  the  policy  written  by  its  agent : 
Dowling  V.  Merchants  Ins.  Co.,  168  Pa.  234. 

After  the  verdict  was  rendered,  the  defendant  submitted  some 
ex  parte  affidavits  as  ground  for  a  new  trial,  but  the  court  below 
refused  to  be  moved  by  them.  Upon  an  examination  of  these 
affidavits,  and  applying  them  to  the  proof  adduced  on  the  trial 
we  do  not  feel  warranted  in  interfering  with  the  decree  entered ; 
as,  except  in  clear  cases  of  abuse  of  discretion,  refusal  of  the 
court  below  to  grant  a  new  trial  is  not  assignable  for  error,  and 
there  is  nathing  in  this  case  to  make  it  an  exception  to  the  rule : 
De  Grote  v.  De  Grote,  175  Pa.  50. 

It  does  not  necessarily  follow  tliat  the  perjury  of  a  witness 


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SHANAHAN  v.  INSURANCE  CO.  71 

1897.]  Opinion  of  the  Court. 

can  be  made  a  ground  for  equitable  interference  even  though 
not  discovered  until  after  the  trial :  Ins.  Co.  v.  Erb,  2  Chest. 
Co.  587 ;  and  whether  or  not  this  should  be  done,  is  largely  a 
matter  of  discretion  with  the  trial  judge. 

The  assignments  of  error  are  each  overruled  and  the  judgment 
is  affirmed. 


Haverford  College  v.  James  M.  Rhoads  and  John  Lynch, 
Supervisors  of  Roads  and  Collectors  of  Road  Taxes, 
for  the  Township  of  Haverford,  and  the  Township  of 
Haverford,  Appellants. 

Charily—College,  w?ieh  a  public  charily, 

A  college  is  a  charity  if  it  is  conducted  in  a  way  beneficial  to  the  public 
at  large.  Whether  a  particular  college  is  a  public  charity  is  a  question  of 
fact,  and  the  test  is  that  it  is  not  confined  to  privileged  individuals  but  is 
open  to  the  indefinite  public. 

Public  charity— Bevenue  from  beneficiaries  does  not  destroy  status. 
There  may  be  a  revenue,  arising  in  the  operation  of  a  charity,  derived 

from  its  beneficiaries,  to  aid  in  its  maintenance,  without  removing  its  status. 

as  a  public  chanty;  but  this  revenue  must  not  exceed  its  expenses. 

Public  charity — Taxation — Haverford  College  nonsectarian, 
Haverford  College,  being  a  college  open  to  all  i>er8()ns,  educationally 
qualified,  upon  the  same  terms,  its  funds  not  being  diverted  to  the  educa> 
tion  of  the  children  of  any  sect  in  preference  to  others,  is  a  public  charity 
and  as  such  is  exempt  from  taxation. 

The  fact  that  its  board  of  managers  is  controlled  by  members  of  tho- 
S<x;iety  of  Friends  is  immaterial,  as  is  also  the  fact  that  certain  free  scholar^ 
ships  are  restricted  to  Friends,  since  others  are  free  to  all  who  apply. 

Argued  Nov.  17,  1897.  Appeal,  No.  78,  Oct.  T.,  189T,  by 
defendants,  from  decree  of  C.  P.  Delaware  Co.,  June  T.,  1898^ 
No.  2,  in  equity,  restraining  the  collection  of  road  taxes  assessed! 
and  levied  against  the  corporation  plaintiff.  Before  Rice,  P.  J.,. 
WicKHAM,  Bbavbb,  Orlady,  Smith  and  Porter,  JJ.  Af- 
firmed. 

Injunction  to  restrain  the  collection  of  $405  road  taxes  as- 
sessed for  the  year  1892  on  the  college  buildings  and  about  filty 
acres  of  ground.    Before  Clayton,  P.  J. 


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72  HAVERFORD  COLLEGE  v.  RHOADS. 

Statement  of  Facts — ^Master's  Report.  [6  Pa.  Superior  Ct. 

The  bill  claimed  that  the  assessment  was  illegal  ^'  because 
Haverford  College,  the  plaintiff,  is  an  institution  of  learning 
founded,  endowed  and  maintained  by  private  charity,  within  the 
act  of  assembly  approved  the  14th  day  of  May,  1874,  and  is 
therefore,  a  purely  public  charity  within  the  meaning  of  said  act 
and  of  the  first  section.  Art.  IX.  of  the  constitution  of  Penna." 

After  answer  filed  an  injunction  was  awarded  on  May  1, 1893, 
which  was  made  perpetual  by  deci-ee  filed  April  6,  1897,  after 
reference  to  a  master. 

Other  facts  sufficiently  appear  from  the  report  of  the  master, 
which  is  as  follows. 

FINDINGS  OP  FACT. 

The  master  appointed  by  the  said  court  in  the  above  matter, 
as  appears  by  the  certified  copy  of  his  appointment  attached 
hereto,  from  the  testimony  submitted  by  the  examiner  in  the 
above  stated  cause,  finds  the  following  facts : 

1.  That  the  "  Haverford  School  Association ''  was  duly  in- 
corporated by  an  Act  of  the  General  Assembly  approved  April  4, 
1833,  P.  L.  131,  having  a  capital  stock  of  600  shares  of  $100 
each,  for  the  purpose  of  establishing  a  seminary  in  which  young 
men  should  be  instructed  in  the  liberal  arts  and  sciences,  which 
corporation  it  was  provided  should  have  for  its  officers,  a  secre- 
tary, treasurer  and  twenty-four  managers,  to  be  chosen  by  bal- 
lot fi'om  among  its  members ;  by  a  supplement  to  said  act  ap- 
proved Januaiy  25,  1835,  the  said  corporation  was  authorized 
to  increase  its  capital  stock  to  a  sum  not  exceeding  f  100,000. 

2.  That  the  said  association  became  possessed  of  a  tract  of 
land  containing  about  two  hundred  acres,  situate  mainly  in  the 
township  of  Haverford  and  county  of  Delaware  aforesaid,  upon 
a  part  of  which,  situate  in  the  township  of  Haverford,  contain- 
ing about  fifty  acres,  the  founders  erected  a  large  edifice  and 
other  buildings,  and  conducted  a' school  therein  for  many  years 
in  pursuance  of  the  objects  for  wliich  it  was  established.  Upon 
the  remaining  part  of  said  land  they  conducted  farming  to  assist 
in  maintaining  said  school. 

3.  That  the  general  assembly,  by  Act  of  March  15, 1856,  P.  L. 
123,  enacted  "  that  the  Corporation  now  known  by  the  name, 
style  and  title  of  Haverford  School  Association,  be  authorized 


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HAVERFORD  COLLEGE  v.  RHOADS.  73 

1897.]  Master's  Report. 

to  establish  and  maintain  a  college  for  the  education  of  youth 
and  other  persons  in  the  various  branches  of  science,  literature 
and  arts. 

^^  And  the  Board  of  Managers  of  said  Association  shall  have 
power  to  confer  such  degrees  in  the  arts  and  sciences  upon  the 
students  of  the  College  and  others,  when  by  their  proficiency 
in  learning  they  shall  be  entitled  thereto,  as  are  conferred  in 
other  colleges  and  universities  in  the  United  States." 

4.  That  the  said  corporation  thereupon  established  a  college, 
and  has  since  conducted  and  maintained  the  same  in  the  buildr 
ings  and  upon  the  premises  in  and  upon  which  said  school  had 
been  theretofore  maintained,  to  wit: — The  aforesaid  tract  of 
fifty  acres,  which  tract,  with  the  said  buildings,  is  necessary  for 
the  occupancy  and  enjoyment  of  the  said  college. 

5.  That  the  said  court  of  common  pleas  of  said  county,  on 
the  6th  day  of  December,  1875,  decreed  an  amendment  to  the 
charter  of  said  corporation  by  which  the  title  of  said  corporation 
was  changed  from  "  Haverford  School  Association,"  to  "  The 
Corporation  of  Haverford  College,"  and  by  a  further  amend- 
ment decreed  by  said  court  on  September  19, 1878,  it  was  pro- 
vided that  "  The  representation  and  ownership  of  the  property 
and  franchises  of  *  The  Corporation  of  Haverford  College,'  by 
means  of  a  capital  stock  divided  into  shares,  is  hereby  termin- 
ated, but  each  of  the  present  shareholders  shall  remain  a  mem- 
ber of  the  Corporation,"  and  it  was  further  provided  that "  The 
Corporation  shall  have  power  to  enact  by-laws,  providing  for 
the  election  of  new  members  and  prescribing  their  qualifica- 
tions." By  a  further  amendment  decreed  by  the  said  court  on 
the  23d  day  of  June,  1886,  it  was  provided  inter  alia  that  the 
corporation  might  take  and  hold  for  the  purposes  of  its  incor- 
poration, such  amount  of  personal  estate  as  might  be  bequeathed 
or  given  to  it  from  time  to  time,  and  that  no  estate  of  the  cor- 
poration, real  or  personal,  should  ever  be  divided  among  the 
members  thereof. 

6.  That  a  large  proportion  of  the  original  certificates  of  stock 
contained  a  proviso  that  no  profits  should  ever  be  divided  on 
the  stock.  Indeed  the  testimony  of  Mr.  Hartshorne  would  tend 
to  show  that  all  the  certificates  were  so  framed,  but  this  is  not 
very  material  now,  when  we  consider  the  fact  that  the  stock  has 
been  abolished  by  the  consent  of  all  the  stockholders.    The 


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74  HAVERFORD  COLLEGP:  v.  RHOADS. 

Master^s  Report.  [6  Pa.  Superior  Ct. 

master,  however,  finds  as  a  fact  that  the  college  was  founded 
by  the  voluntary  contributions  of  persons  desirous  of  promoting 
its  objects. 

From  the  report  of  the  examiner  the  master  has  thought  it 
well  at  this  stage  of  his  findings  to  give  a  brief  resum^  of  the 
contributions  for  the  founding  and  maintenance  of  the  col- 
lege, including  those  by  the  state  of  Pennsylvania  referred  to 
by  Mr.  Vaux  and  a  statement  of  its  present  endowment  about 
8250,000. 

The  said  college  was  founded  by  the  voluntary  contributions 
of  people  interested  in  the  cause  of  education  and  desirous  of 
promoting  its  objects.  Since  the  time  of  the  founding  and 
during  the  history  of  the  institution,  large  sums  of  money  have 
been  contributed  from  time  to  time  for  relieving  the  deficiency 
in  its  income.  In  the  year  1840,  one  fund  of  f 30,000  was  con- 
tributed to  pay  off  the  debt  of  the  corpomtion,  and  in  1845, 
owing  to  the  pressure  of  financial  difficulty,  the  college  was 
closed  and  was  not  reopened  until  1847,  when  an  additional 
sum  of  $50,000  was  contributed  as  a  permanent  endowment 
fund,  whereby  it  was  able  to  recommence  operations.  This 
fund  has  been  increased  by  contributions  and  legacies  to 
8100,000,  and  is  constantly  being  drawn  upon  to  meet  the  de- 
ficiences  in  the  ordinary  income  of  the  institution.  In  the  year 
1873,  the  sum  of  $18,000  was  raised  for  the  purpose  of  paying 
oflE  accumulated  deficiencies,  and  quite  a  number  of  smaller  sub- 
scriptions have  been  made  at  diflferent  times  for  the  same  pur- 
pose. Barclay  Hall,  a  building  erected  at  a  cost  of  $80,000  for 
the  purpose  of  providing  dormitories  and  study  rooms  for  the 
students  in  1876,  was  built  almost  entirely  by  subscriptions,  as 
the  sum  of  $73,000  was  donated  for  that  purpose. 

During  the  three  years  prior  to  1884,  a  subscription  of  $8,000 
per  year  was  made  and  paid  by  friends  of  the  college  for  the 
purpose  of  increasing  the  efficiency  of  the  college,  to  meet  the 
deficiency  in  the  income,  and  to  reduce  the  debt  of  the  institu- 
tion ;  and  in  that  year  a  sum  of  $50,000  was  subscribed  and 
nearly  all  of  it  paid  as  a  further  contribution  to  liquidate  exist- 
ing debt,  caused  by  deficiencies  in  the  income  of  the  college,  and 
prior  to  1894,  five  friends  agreed  each  to  give  $8,000  a  year  for 
five  years,  to  apply,  firat,  to  all  the  scholarships  that  were  nec- 
essary, and  second,  to  apply  to  other  current  expenses. 


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HAVERFORD  COLLEGE  v.  RHOADS.  75 

1897.]  Master's  Report. 

The  master  also  finds  as  a  fact  that  that  proportion  of  the 
200  acres  devoted  to  farming  has  been  run  at  a  profit  ever  since 
the  college  took  charge  of  it  itself,  about  eight  years  ago,  and 
the  profit  is  credited  to  the  farm  account  and  to  the  general 
expenses  of  the  year.  And  notwithstanding  this,  and  notwith- 
standing the  contributions  of  its  friends,  by  which  the  college 
has  been  at  times  relieved  from  debt,  the  results  of  the  opera- 
tions of  the  college  have  constantly  been  on  the  wrong  side  of 
the  ledger,  and  that  at  the  present  time  the  debt  is  upwards  of 
♦64,000,  of  which  $36,000  was  incurred  in  operating  the  col- 
lege. The  loss  in  operating  the  college  last  year  was  $12,000, 
and  the  cost  of  each  student  was  t670,  the  regular  charge  be- 
ing $500. 

7.  The  master  also  finds  that  the  allegations  of  the  seventh 
paragraph  of  the  plaintiff's  bill  are  facts,  substantially  as  alleged. 
The  college  is  open  to  the  admission  of  all  persons  educationally 
qualified  upon  the  same  terms,  and  the  funds  of  the  corporation 
do  not  go  to  the  education  of  the  children  of  Friends  or  of  any 
other  sect  in  preference  to  othei-s.  The  testimony  upon  this 
point,  which  is  uncontradicted,  is  even  more  emphatic  than  the 
bUl. 

The  objects  of  the  institution  are  very  clearly  set  forth  in  the 
act  of  assembly  creating  the  "  Haverford  School  Association," 
"  approved  April  4, 1838,  and  the  supplement  thereto,  approved 
March  16,  1856,"  and  are  "  For  the  education  of  youth  and 
other  persons  in  the  various  branches  of  science,  literature  and 
the  arts,"  and  for  the  purpose  of  conferring  "  Such  degrees  in 
arts  and  sciences  upon  the  students  of  the  college  and  others, 
when  by  their  proficiency  in  learning  they  shall  be  entitled 
thereto,  as  are  confeiTed  in  other  colleges  and  universities  in 
tlie  United  States,"  and  the  practice  of  the  college  in  canning 
out  these  objects  is  clearly  set  forth  in  the  forcible  and  intelli- 
gent testimony  of  Mr.  Asa  S.  Wing.  There  can  be  no  doubt, 
and  the  master  accordingly  finds  as  a  fact,  that  the  fifty  acres 
of  land  in  question  are  absolutely  necessary  for  the  proper  opera- 
tion of  the  college.  In  1884,  when  Mr.  Wing  became  treas- 
urer of  the  institution,  there  was  a  debt  of  about  $30,000  or 
$40,000.  Just  before  that  time  a  subscription  had  been  raised 
amounting  to  $50,000,  which  enabled  the  college  to  cancel  its 
debt,  so  that  at  the  close  of  the  year  1887,  the  managers  re- 


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76  HAVERFORD  COLLEGE  v.  RHOADS 

Master's  Report.  [6  Pa.  Superior  Ct. 

ported  the  college  free  from  debt.  Since  that  time,  notwith- 
standing large  contributions  in  each  year  to  meet  current 
expenses,  etc.,  the  debt  has  yearly  increased,  until,  at  the  close 
of  the  fiscal  year  in  1893,  the  debt  was  reported  at  $64,000 ; 
♦36,000  of  this  had  been  incurred  for  running  expenses  of  the 
college  over  and  above  current  receipts. 

Seventeen  thousand  dollars  of  it  was  for  the  cost  of  the  double 
dwelling  in  Montgomery  county.  Twenty-five  hundred  dol- 
lar of  it  was  for  stock  on  farm,  and  about  $9,000  of  it  for  the 
purchase  of  two  houses  in  Delaware  county,  occupied  by  Pro- 
fessors Crew  and  Leavenworth  on  the  college  property,  and 
which  the  college  was  bound  to  buy  from  them  on  the  termina- 
tion of  their  services  for  the  college.  The  present  number  of 
scholarships  is  probably  about  half  of  the  whole  attendance 
of  the  college,  either  whole  or  partial  scholarships.  The  aver- 
age number  of  scholars  is  between  ninety  and  one  hundred. 

These  scholarships  are  paid  for  from  tJie  following  sources : 

First :  From  the  income  of  the  I.  V.  Williamson  fund ;  sec- 
ond, from  the  income  of  the  Thomas  P.  Cope  fund ;  third,  from 
the  income  of  the  Edward  Yarnall  fund ;  fourth,  from  the  in- 
come of  the  Richard  T.  Jones  fund ;  and  fifth,  from  the  contri- 
butions made  by  friends  of  the  college  from  year  to  year.  The 
total  amount  credited  for  scholarships  during  the  last  nine  years 
has  been  about  $73,000.  That  is,  the  student  is  charged  with 
the  full  price  for  board  and  tuition  if  he  lives  in  the  college,  or 
for  tuition  only  if  he  lives  at  his  own  home,  and  he  is  credited 
with  whatever  allowance  is  arranged  for  with  him  by  the  presi- 
dent of  the  college  and  the  committee  on  scholarships,  which 
arrangement  is  made  before  the  beginning  of  the  college  term, 
and  he  finds  the  balance  if  there  is  any  balance.  Of  this  $73,000 
about  $32,000  has  been  from  the  income  of  the  funds  of  the 
college,  and  the  balance  from  donations  especially  for  that  pur- 
pose. 

Some  years  ago  the  board  of  managers  passed  a  minute  direct- 
ing that  $1,000  per  year  should  be  appropriated  from  tlie  income 
of  the  general,  or  endowment  fund  of  the  college  for  scholarship 
purposes,  and  that  has  been  done  ever  since,  and  the  amount  is 
included  in  the  above  $32,000.  The  only  distinction  as  to  terms 
is  that  the  scholarship  student  under  the  I.  V.  Williamson  fund 
is  charged  $300  per  year  instead  of  $500  per  year,  and  in  the 


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HAVERFORD  COLLEGE  v.  RHOADS.  77 

1897.]  Master's  Report. 

case  of  the  Richard  T.  Jones  fund,  which  amounts  to  only 
$5,000,  the  board  passed  a  minute  on  receipt  of  this  fund  agree- 
ing to  give  a  full  scholarship  each  year  for  the  income  of  this 
fund  whatever  it  might  be. 

8.  The  master  also  finds  that  the  allegations  of  the  eighth 
paragraph  of  the  plaintiff's  bill  are  facts,  with  the  additional 
fact  that  the  houses  of  the  professors  which  are  located  on  the 
fifty  acres  are  separately  assessed  and  taxed,  and  no  exemption 
is  asked  as  to  them ;  the  premises  to  which  exemption  is  asked 
comprises  the  residue  of  the  fifty  acres,  all  of  which  is  in  the 
immediate  use  of  the  college,  for  its  buildings  or  recreation 
grounds,  and  is  reasonably  necessary  for  that  purpose.  The 
buildings  consist  of  the  original  college  known  as  Founders' 
Hall,  used  for  lecture  and  class  rooms  and  laboratory,  and  also 
for  dining-room,  kitchen,  college  offices  and  quarters  for  the 
help,  with  the  annex  containing  other  of  the  laboratories  and 
the  gymnasium ;  Barclay  Hall,  used  for  dormitories  and  study 
rooms ;  Chase  Hall,  used  for  class  rooms ;  Alumni  Hall  and 
Library,  a  large  house  used  as  a  residence  for  students,  two  ob- 
servatories, a  machine  shop,  laundiy,  pumping  station,  ice  house, 
cricket  shed  and  some  outbuildings. 

SUPPLEMENTARY  FINDINGS  OP  FACT. 

9.  In  addition  to  the  facts  previously  found,  the  master  finds 
it  to  be  a  fact  that  the  services  of  all  the  members  of  the  board 
of  corporatoi-s,  as  well  as  those  of  the  board  of  managers,  are 
rendered  gratuitously  to  the  college,  and  that  none  of  the  offi- 
cers of  either  board  receive  any  compensation  for  their  services. 

In  accordance  with  the  foregoing  facts,  and  after  having  ex- 
amined carefully  all  the  cases  cited  by  counsel  on  either  side,  the 
master  concludes  as  follows : 

Previous  to  the  adoption  of  the  constitution  of  1874,  all  ex- 
emptions from  taxation  were  made  by  meads  of  special  act  of 
the  general  assembly;  but  that  great  charter  restricted  the 
power  of  the  legislature  in  this  respect,  and  provided  (art.  9, 
sec.  1)  that  ^'  all  taxes  shall  be  uniform  upon  the  same  class  of 
subjects  within  the  territorial  limits  of  the  authority  levying 
the  tax,  and  shall  be  levied  and  collected  under  general  laws ; 
but  the  general  assembly  may,  by  general  laws,  exempt  from 
taxation  public  property  used  for  public  purposes,  actual  places 


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78  HAVERFORD  COLLEGE  v.  RHOADS. 

Master's  Report.  [6  Pa.  Superior  Ct. 

of  religious  worship,  places  of  burial  not  used  or  held  for  private 
or  corporate  profit,  and  institutions  of  purely  public  charity." 

And  in  accordance  therewith,  the  legislature  enacted,  Act  of 
May  14, 1874,  sec.  1,  P.  L.  168,  inter  alia,  that  "  all  hospitals, 
universities,  colleges,  seminaries,  academies,  associations  and  in- 
stitutions of  learning,  benevolence  or  charity,  with  the  grounds 
thereto  annexed  and  necessary  for  the  occupancy  and  enjoyment 
of  the  same,  founded,  endowed  and  maintained  by  public  or 
private  charity,  be  and  they  are  hereby  exempted  from  all  and 
every  county,  city,  borough,  bounty,  road,  school  and  poor  tax." 

Upon  this  legislation  must  the  case  be  decided.  To  do  so  it 
will  be  necessary  to  discuss,  first.  Is  the  plaintiff  within  the  act 
of  1874 ;  that  is,  a  college,  founded,  endowed  and  maintained  by 
public  or  private  charity? 

It  was  founded  by  subscriptions  to  capital  stock  which  con- 
tained a  proviso  that  no  profits  should  ever  be  divided  on  tlie 
stock.  In  other  words,  the  subscriptions  were  gifts  of  that 
much  money  to  the  corporation.  This  conclusion  is  made 
stronger  by  the  fact  that  all  the  certificates  of  stock  have  been 
rendered  up  to  the  college,  and  all  stock  has  been  abolished  by 
the  consent  of  all  the  stockholders  without  any  return  for  the 
same.  We  have  found  it  to  be  a  fact  that  it  was  founded  by 
the  voluntary  contributions  of  persons  desirous  of  promoting  its 
objects,  which  objects  were  stated  in  the  charter,  "  to  establish 
and  maintain  a  college  for  the  education  of  youth  and  other  per- 
sons in  the  various  branches  of  science,  literature  and  the  arts." 
It  has  been  heavily  endowed  from  time  to  time  by  contributions 
of  money  from  the  state  as  well  as  from  private  donors,  gifts  of 
buildings,  etc.,  and  has  been  maintained  by  the  income  from 
these  gifts,  by  large  additional  charitable  gifts  from  time  to 
time,  by  a  profit  from  the  farm  it  possesses  and  operates  as  a 
part  of  its  plant,  and  by  a  low  charge  for  the  tuition  and  board- 
ing of  some  of  its  beneficiaries.  As  the  latter  two  items  would 
riot  be  sufiBcient  to  maintain  the  college  at  the  present  low  charge 
for  tuition,  it  therefore  complies  with  the  terms  and  meaning  of 
the  act. 

It  remains  to  be  seen  then,  whether  such  a  college  is  purely 
a  public  charity,  and  falls  within  the  class  of  institutions  the 
legislature  is  allowed  to  exempt  by  the  constitution. 

That  a  college,  an  institution  of  learning,  is  a  charity,  has 


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HAVERFORD  COELEGE  v.  RHOADS.  79 

1897.]  Master's  Report. 

long  been  decided,  if  it  is  conducted  in  a  way  beneficial  to  the 
public  at  large.  The  education  o^  youth  and  the  support  of 
schools  has  been  recognized  as  a  charitable  use  since  before  the 
statute  of  43  Elizabeth,  and  the  doctrine  has  been  uniformly 
held  by  our  courts :  Episcopal  Academy  v.  Philadelphia,  150 
Pa.  665. 

At  this  institution,  by  means  of  charitable  gifts  to  it,  educa- 
tion has  been  furnished  at  rates  considerably  below  the  cost  to 
the  college  and  far  lower  than  was  possible  without  such  gifts, 
while  nearly  one  half  of  the  students,  the  more  needy  ones, 
were  aided  by  means  of  scholarships,  or  credits  of  money,  and 
several  received  tuition  and  board  entirely  without  cost.  That 
such  a  college  is  a  charity  has  been  frequently  decided :  Lafay- 
ette CoL  V.  Co.  of  Northampton,  128  Pa.  132. 

Is  it  a  public  charity?  The  solution  of  this  question  is  one 
of  fact,  and  the  way  has  been  made  clear  to  a  correct  interpre- 
tation of  the  facts  by  the  able  opinion  of  Judge  Mitchell,  then 
of  the  lower  court,  but  now  of  the  Supreme  Bench,  which  was 
approved  by  the  Supreme  Court  in  Donohugh's  Appeal,  86  Pa. 
306. 

"  The  essential  feature  of  a  public  use  is  that  it  is  not  con- 
fined to  privileged  individuals,  but  is  open  to  the  indefinite 
public.  It  is  this  indefinite  or  unrestricted  quality  that  give  it 
its  'public  character.'  The  smallest  ajreet  in  the  smallest  vil- 
lage is  a  public  highway  of  the  commonwealth,  and  none  the 
less  so  because  a  vast  majority  of  the  citizens  will  never  use  it. 
It  is  enough  that  they  may  do  so  if  they  choose.  So  there  is  no 
charity  conceivable  which  will  not,  in  its  practical  operation, 
exclude  a  large  part  of  mankind,  and  there  are  few  which  do 
not  do  so  in  express  terms,  or  by  the  restrictive  force  of  the 
description  of  the  persons  for  whose  benefit  they  are  intended." 

As  it  is  the  right  to  maintain  a  bar  across  it  which  makes  a 
road  private,  so  it  is  the  restrictions  which  are  placed  upon  the 
beneficiaries  of  the  charity  which  makes  it  private.  In  all  prac- 
tical charities  there  must  be  some  restrictions,  as  to  whom  shall 
be  benefited ;  the  courts  have  told  us  which  restrictions  are  per- 
missible, and  which  constitute  the  bar  across  the  road. 

Perhaps  in  the  Burd  Orphan  Asylum  v.  The  Borough  of 
Upper  Darby,  a  divided  court,  when  it  reversed  itself  on  a 
rehearing  of  the  case,  went  the  farthest  in  its  dictum  that  *^  A 


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80  HAVERFORD  COLLEGE  v.  RHOADS. 

Master^s  Report.  [6  Pa.  Superior  Ct. 

home  for  the  support  of  poor  widows  is  a  public  charity ;  why 
should  not  a  home  for  the  support  of  poor  Episcopalians  be  ?  " 
"  The  legal  effect  is  the  same  whether  the  words  used  for  the 
purpose  of  defining  the  beneficiaries  of  the  donor's  bounty  be 
seamen,  Episcopalians,  blind  persons  or  Catholics,"  etc.  But 
in  Philadelphia  v.  The  Masonic  Home,  160  Pa.  572,  Judge 
Dean  discovers  the  true  reasoning  which  distinguishes  a  pub- 
lic from  a  private  charity.  "As  long  as  the  cUissification  is 
determined  by  some  distinction  which  involuntarily  affects  or 
may  affect  any  of  the  people,  although  only  a  small  number  be 
directly  benefited,  it  is  public.  But  when  the  right  to  admis- 
sion depends  on  the  fact  of  voluntary  association  with  some  par- 
ticular society,  then  a  distinction  is  made  which  does  not  concern 
the  public  at  large."  And  his  able  opinion  further  shows  that 
the  restriction  must  be  exclusive. 

For  he  approves  of  the  finding  in  the  Burd  Orphan  Asylum 
case,  although  he  disapproves  some  of  the  dicta,  including  that 
quoted ;  and  the  facts  in  that  case  show  that  the  charity  Wiis 
limited  to  female  orphans  of  a  certain  age,  baptized  into  the 
Episcopal  church,  residing  in  Pennsylvania,  after  whom,  until 
the  capacity  of  the  institution  was  reached,  all  other  female 
orphans  of  that  age  might  be  admitted,  the  orphans  of  Episco- 
pal clergymen  being  always  preferred.  In  other  words,  the 
asylum  was  public  because  the  general  public  was  not  excluded, 
but  might  be  benefited  by  it,  while  in  the  case  of  the  Masonic 
Home,  under  discussion,  every  one  not  a  Mason  was  excluded 
absolutely. 

In  Episcopal  Academy  v.  Philadelphia,  150  Pa.  565,  the  facts 
show  a  purely  denominational  school,  under  the  control  of  the 
Episcopal  church.  Children  of  other  denominations  were  not 
excluded  by  the  charter,  rules  or  practice  of  the  school,  although 
they  were  very  evidently  not  preferred,  for  out  of  sixteen  free 
scholars  a  preference  was  given  to  the  number  of  ten,  and  the 
remainder  were  selected  from  nominations  invited  from  the  vari- 
ous Episcopal  congregations  in  the  city.  But  it  was  held  to  be 
a  public  charity  because  others  than  Episcopalians  might  be 
and  were  admitted. 

The  facts  in  the  present  case  show  that  the  plaintiff  admits 
to  its  benefits  all  persons  educationally  qualified  upon  the  same 
terms  ;  that  there  are  no  restrictions,  no  bars  across  the  road  in 


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HAVERFORD  COLLEGE  v,  RHOADS.  81 

1897.]  Master's  Report. 

eitlier  its  charter  or  practice,  and  that  the  funds  of  the  institu- 
tion do  not  go  to  the  education  of  Friends,  or  any  other  sect  in 
preference  to  others.  That  while  some  of  the  free  scliolarships 
are  reetricted  to  Friends,  others  are  free  to  all  who  apply.  The 
mere  fact  that  many  of  its  patrons  and  donors  are  Friends  has 
no  bearing  on  the  case,  provided  that  its  objects  are  charitable ; 
as  it  is  the  object  accomplished,  not  the  motive,  that  insures  its 
public  charity  :  Fire  Insurance  Patrol  v.  Boyd,  120  Pa.  624. 

From  these  facts  and  the  law  in  the  cases  cited,  the  master 
concludes  that  it  is  a  public  charity.  It  remains  to  be  seen  if 
it  further  complies  with  the  provisions  of  the  constitution,  in 
that  it  is  purely  public  charity ;  and  Judge  Mitchell  in  Dono*- 
hugh's  Appeal,  gives  us  the  test.  "Are  the  objects  of  the 
institution  entirely  for  the  accomplishment  of  the  public  pur- 
pose, or  is  there  some  admixture  of  private  or  individual  gain  ?  '* 

By  the  terms  of  the  plaintiflTs  charter  as  amended,  the  owner- 
ship of  its  property  is  in  the  corporation  for  the  purposes  of  its 
incorporation,  and  no  part  of  that  property  can  ever  be  divided 
among  its  members.  Its  members  have  no  individual  interest, 
for  the  capital  is  not  divided  into  shares  of  stock. 

And  the  oflBcers  of  the  corporation  serve  without  remunera- 
tion ;  there  can  be  no  taint  of  private  gain  here.  In  its  opera- 
tion, however,  a  small  fee  is  chai*ged  some  of  its  students,  which 
fee  is  shown  to  be  less  than  the  actual  cost  to  the  college  not- 
withstanding its  large  endowments  of  real  and  personal  prop- 
erty, and  this  is  applied  to  defraying  its  expenses.  But  it  has 
been  decided  in  many  cases  that  there  may  be  a  revenue  arising 
in  the  operation  of  a  charity,  from  its  beneficiaries,  to  aid  in  its 
maintenance,  without  removing  its  status  as  a  purely  public 
charity ;  this  revenue  must  not,  however,  exceed  the  expenses, 
and  in  our  case  it  falls  far  short  of  equaling  them  :  Philadelphia 
V.  Woman's  Christian  Asso.,  125  Pa.  672 ;  Penna.  Hospital  v. 
Delaware  Co.,  169  Pa.  805  ;  Lafayette  College  v.  Co.  of  North- 
ampton,  supra ;    Episcopal  Academy  v.  Philadelpliia,  supra. 

Thei-e  is  no  element  of  individual  or  corporate  gain,  and  the 
entire  benefit  goes  to  the  public.  It  is  contended  that  there  is 
nothing  to  compel  the  corporation  to  maintain  free  scholarships. 
But  under  the  terms  of  the  trusts  by  which  the  money  is  held, 
free  scholarships  are  compulsory.  That  some  are  restricted  to 
Friends  does  not  make  it  any  the  less  a  public  charity  if  from 
Vol.  VI— 6 


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82  HAVERFORD  COLLEGE  v.  RHOADS. 

Master's  Report — Opinion  of  Court  below.  [6  Pa.  Superior  CL 

others  the  public  are  not  excluded,  but  may  and  do  receive  the 
benefits :  Burd  Orphan  Asylum,  supra. 

It  is  true  that  there  is  nothing  in  the  charter  compelling  the 
admission  of  all  comers,  although  should  it  refuse  it  would  fail 
in  its  express  object,  as  stated  in  the  charter  to  "  furnish  instruc- 
tion to  young  men."  There  is  surely  nothing  prohibiting  it, 
and  it  is  the  prohibitory  clause,  the  bar  across  the  road,  which 
makes  a  private  charity.  All  persons  educationally  qualified 
may  make  use  of  the  benefits  the  college  offers.  It  is  in  theory 
and  practice  purely  public  charity,  founded,  endowed  and  main- 
tained by  both  public  and  private  charity,  and  as  such  the  mas- 
ter concludes  that  it  is  entitled  to  the  exemption  asked. 

The  following  exceptions  were  taken  to  the  report  of  the 
master:  1.  The  learned  master  eiTcd  in  his  finding  of  facts  on 
the  seventh  paragraph  of  the  plaintiff's  bill.  2.  The  learned 
master  erred  in  his  conclusion  of  law  that  the  corporation  plain- 
tiff is  a  purely  public  charity.  8.  The  learned  master  erred  in 
his  conclusion  of  law  that  the  corporation  plaintiff  is  entitled 
to  exemption  from  taxation.  And  were  dismissed  in  the  fol- 
lowing opinion  by  Clayton,  P.  J. 

December  7, 1896.  The  Court.  [Under  the  ruling  of  the 
Supreme  Court  in  the  cases  cited  by  the  master,  it  is  difficult 
to  see  how  he  could  arrive  at  any  other  conclusion  than  the  one 
adopted  by  him.  Whatever  my  own  personal  judgment  may 
be,  as  expressed  in  similar  cases,  we  must  obey  the  superior 
judgment  of  our  court  of  last  resort,  which  seems  to  hold  such 
institutions  of  learning,  as  the  evidence  in  this  case  shows  the 
Haverford  College  to  be,  as  free  from  taxation. 

The  exceptions  to  the  report  of  the  master  are,  therefore,  dis- 
missed and  the  report  confirmed.  Let  a  decree  be  drawn  by 
counsel  and  be  submitted  sec.  reg.]  [4] 

DECREE. 

[Now,  April  5, 1897,  this  cause  came  on  to  be  heard  and  was 
argued  by  counsel,  and  thereupon,  upon  consideration  thereof, 
it  is  ordered,  adjudged  and  decreed  that  the  injunction  formerly 
granted  in  this  cause  be  made  perpetual,  and  it  is  further 
ordered  that  the  said  defendants  pay  the  costs  of  suit.]  [6] 


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HAVERFORD  COLLEGE  v.  RHOADS.  88 

1897.]  Assignment  of  En'ors— Arguments. 

Defendants  appealed. 

Errors  assigned  were  (1-3)  In  ovemiling  defendant's  excep- 
tions, reciting  same.  (4)  In  holding  the  corporation  plaintiff 
free  from  taxation  in  the  opinion  filed,  reciting  same.  (5)  In 
making  the  decree  perpetual  as  to  the  injunction,  reciting  same. 

JET.  H.  HalU  with  him  T.  Speer  Dickson^  for  appellants. — In- 
stead of  Haverford  College  being  in  the  line  of  cases  which  are 
relied  upon  by  the  master  and  affirmed  by  the  court,  it  is  re- 
spectfully submitted  that  it  should  be  decided  by  Miller's  Ap- 
peal, 10  W.  N.  C.  168. 

Upon  the  hearing  it  did  not  appear  that  the  real  estate  taxed 
was  stamped  with  any  public  charity,  nor  that  the  regulations 
might  not  be  changed  into  a  source  of  profit ;  it  was  held  to  be 
taxable:  Thiel  College  v.  Mercer  Co.,  101  Pa.  530. 

The  charter  of  this  college  enables  it  to  receive  charities, 
but  imposes  no  liability  on  it  to  bestow  any  on  the  public. 

The  Episcopal  Academy  case  would  hardly  be  decided  as  it 
was,  with  the  Supreme  Court  constituted  as  it  now  is,  and  with 
the  same  view  as  to  what  constitutes  a  public  charity  as  was 
laid  down  in  the  case  of  Phila.  v.  Masonic  Home,  160  Pa.  672. 

John  (?.  Johnson  and  A.  Lewis  Smithy  for  appellee. — As  con- 
ceded by  the  argument  of  the  appellants  in  this  case,  the  ques- 
tion for  consideration  is  a  narrow  one.  The  very  exhaustive 
report  of  the  master  would  seem  to  leave  no  margin  to  distin- 
guish the  case  of  the  appellee  from  those  in  which  the  Supreme 
Court  has  sustained  a  claim  for  exemption. 

The  assertion  that  the  plaintiff  corporation  is  not  subject  to 
visitation  is  made  in  defiance  of  elementary  principles.  Since 
the  case  of  Philips  v.  Bury,  1  Ld.  Raymond,  6,  this  subject  has 
been  well  understood.  ''To  eleemosynary  corporations  a  visit- 
orial  power  is  attached  as  a  necessary  incident : "  2  Kent's  Com. 
300.  This  power  always  rests  somewhere.  If  in  trustees,  they 
in  England  are  in  turn  subject  to  the  "  general  superintend- 
ing power  of  the  court  of  chancery : "  2  Kent's  Com.  303,  804. 
In  Pennsylvania,  since  the  Act  of  June  16, 1886,  section  13 
P.  L.  784,  the  courts  of  common  pleas  have  the  jurisdiction  and 
powers  of  a  court  of  chancery  ''  in  the  control,  removal  and  dis- 


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84  HAVERFORD  COLLEGE  v.  RHOADS. 

Arguments — Opinion  of  the  Court.   [6  Pa.  Superior  Ct. 

charge  of  trustees,  and  the  appointroent  of  trustees,  and  the 
settlement  of  their  accounts  "  and  in  "the  supervision  and  con- 
trol of  all  corporations  other  than  those  of  a  municipal  charac- 
ter." It  has  been  held  that  this  supervision  and  control  not 
only  extend  to  all  corporations  other  than  those  of  a  municipal 
character,  but  that  under  this  section  "  the  equity  powers  of  the 
court,  though  contracted  as  to  individuals,  ai'e  general  and 
unlimited  over  corporations,  and  are  to  be  exercised  in  the  ordi- 
nary mode  of  a  court  of  chancery : "  Sarver's  Appeal,  81*  Pa. 
183.  This  principle  has  been  asserted  in  many  cases  since. 
See  Girard  v.  Philadelphia,  7  Wallace,  1. 

Opinion  by  Porter,  J.,  December  13, 1897 : 
This  is  an  appeal  by  the  township  of  Haverford  from  the 
decree  of  the  court  of  common  pleas  of  Delaware  county,  re- 
straining the  collection  of  road  taxes,  assessed  and  levied  against 
tike  plaintiff  corporation.  The  cause  was  referred  to  a  master 
whose  report  the  court  below  adopted  without  supplemental 
opinion.  Little  can  be  added  by  us  to  the  report,  which  is  com- 
prehensive and  well  considei'ed.  Some  of  the  findings  of  fact 
have  been  challenged,  but  an  examination  of  the  testimony  has 
not  served  to  convict  the  master  of  error. 

The  "  Haverford  School  Association  '*  an  incorporated  associ- 
ation, was,  by  act  of  assembly  of  March  15,  1856,  ^^  authorized 
to  establish  and  mauitain  a  college  for  the  education  of  youth 
and  other  persons  in  the  various  branches  of  science,  literature 
and  arts "  and  to  confer  degrees.  By  decree  of  the  court  of 
common  pleas  of  Delaware  county  on  December  6,  1875,  an 
amendment  was  made  to  the  charter,  changing  the  name  of  the 
institution  to  "The  Corporation  of  Haverford  College."  A 
further  amendment  was  similarly  made  September  19,  1878,  by 
the  consent  of  all  of  the  stockholders,  providing  that  "  The  rep- 
resentation and  ownership  of  the  property  and  franchises  of 
the  coiporation  of  Haverford  College  by  means  of  capital  stock 
divided  into  shares,  is  hereby  terminated  "  etc.  A  still  further 
amendment  on  June  23,  1886,  provided  that  the  corporation 
might  take  and  hold  for  the  purposes  of  its  incorporation,  such 
amount  of  personal  estate  as  might  be  bequeathed  or  given  to  it 
from  time  to  time,  and  that  no  estate  of  the  corporation,  real  or 
personal,  should  ever  be  divided  among  the  members  thereof. 


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flAVERFORD  COLLEGE  v.  RHOADS.  85 

1897.]  Opinion  of  the  Court. 

The  premises,  upon  which  the  tax  is  levied,  are  the  educational 
plant  of  the  institution.  They  are  occupied  by  buildings  foi- 
lecture  and  class-rooms,  laboratories,  dining-room,  kitchen,  col- 
lege offices,  quartei-s  for  the  employees,  gymnasium,  dormitories, 
study  rooms,  observatories,  etc.  The  remainder  of  the  ground 
sought  to  be  exempted  is  used  for  athletic  purposes,  recreation 
grounds,  lawn,  etc.  We  have  thus  a  college  or  institution  of 
learning  "with  the  grounds  thereto  annexed  and  necessary 
for  the  occupancy  of  tiie  same"  which  if  -"founded,  endowed 
and  maintained  by  public  or  private  charity  "  and  conducted  as 
"  a  purely  public  charity,"  is  exempted  from  taxation  under  the 
act  of  May  14, 1874,  passed  pursuant  to  the  Constitutional  pro- 
vision. We  have  thus  seen  how  the  corporation  was  legjilly 
founded.  Although  the  original  subscriptions  were  represented 
by  certificates  of  stock,  they  were  not  made  with  the  anticipa- 
tion that  there  should  be  a  return  in  profit.  Subsequently  these 
subscriptions  were  changed,  by  amendments  of  the  charter,  into 
donations  and  all  private  interests  in  the  assets  of  the  corpora- 
tion were  (if  any  existed)  swept  away. 

The  original  subscriptions  to  the  college  have  been  supple- 
mented from  time  to  time  by  charitable  gifts  to  maintain  the 
organization  and  extend  its  facilities  until  the  valuable  property 
now  sought  to  be  made  the  subject  of  taxation,  has  been  acquired. 

At  the  stated  annual  meeting  of  "  Haverf ord  School  Associ- 
ation "  held  May  10,  1847,  the  stamp  of  charitable  foundation 
was  set  upon  the  general  fund  of  the  institution  by  the  follow- 
ing resolution:  "Resolved,  That  the  sum  of  $60,000  having 
been  subscribed  by  a  number  of  Friends  for  the  aid  and  sup- 
port of  Haverford  School  by  the  gratuitous  admission  of  young 
men  or  otherwise,  it  being  expressly  understood  that  the  interest 
only  of  the  sum  thus  raised  shall  be  expended,  the  treasurer  is 
hereby  authorized  to  collect  the  sums  of  money  thus  subscribed 
and  under  the  direction  of  the  board  of  managers  securely  to 
invest  the  same,  the  interest  thereof  to  be  applied  to  the  pur- 
poses above  recited,  it  being  expressly  understood  that  when  any 
part  of  the  principal  sum  shall  be  paid  in,  it  shall  as  early  there- 
after as  practicable  be  reinvested  and  in  no  case  shall  the  said 
principal  sum  be  expended  or  diminished."  There  can,  there- 
fore, be  no  doubt  that  the  foundation  and  endowment  have  been 
by  private  charity. 


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86  HAVERFORD  COLLEGE  tf.  RHOADa 

Opinion  of  the  Court.  [6  Pa.  Sajwrior  Cl* 

It  remains  still  to  consider  whether  the  institution  is  main- 
tained by  public  or  private  charity.  The  sources  of  mainte- 
nance are  from  unconditional  gifts,  from  special  gifts  or  legacies 
in  trust  for  specific  purposes,  and  from  the  fees  paid  by  a  part 
of  the  students. 

The  first  is  palpably  charitable  maintenance.  The  second 
equally  charitable  although  charged  with  a  trust  for  certain 
educational  uses  or  for  preferred  students.  The  third  source  of 
maintenance  is  derived  from  full-pay  students  and  the  payments 
made  by  the  holders  of  partial  scholarships.  The  holders  of 
scholarships,  whole  or  partial,  as  found  by  the  master,  constitute, 
probably  about  one  half  of  the  whole  attendance  at  the  college. 

The  fact  that  some  of  the  students  are  so-called  full-pay  stu- 
dents, does  not  depiive  the  institution  of  its  character  as  a  char- 
ity. There  is  no  profit  derived  therefrom.  The  total  receipts 
are  expended  in  the  carrying  out  of  the  charitable  design.  This, 
however,  was  settled  by  the  Episcopal  Academy  v.  Phila.,  150 
Pa.  566.  The  maintenance  of  the  college  is,  therefore,  of  the 
kind  comprehended  by  the  act  of  1874. 

Is  there  anything  in  the  method  of  conducting  the  institution 
to  make  it  other  than  a  public  charity  ?  The  only  complaints 
seem  to  be  that  the  board  of  managers  is  controlled  by  mem- 
bers of  the  Society  of  Friends  and  that  youth  of  that  particular 
sect  are  preferred  as  recipients  of  the  benefits  of  the  college. 
The  first  objection  if  sustained,  might  require  an  inquiry  to 
be  made  as  to  the  denominational  connection  of  every  mem- 
ber of  the  boards  of  all  of  the  great  charitable  institutions, 
lest  perchance  a  majority  might  belong  to  a  particular  sect  or 
denomination.  In  point  of  fact,  if  the  matter  were  carefully 
examined,  it  might  be  found  that  the  management  of  some  of 
the  largest  hospitals,  homes  and  institutions  of  learning  has,  by 
design  or  accident,  fallen  into  the  control  of  those  belonging  to 
a  particular  sect.  So  prevalent  is  this  that  when  the  contrary 
is  true,  the  charity  is  apt  to  announce  the  fact  that  it  is  non- 
sectarian,  as  if  its  case  were  exceptional.  There  is  nothing  in 
the  objection  that  a  majority  of  the  managers  (all  of  whom  serve 
gratuitously)  are  of  a  particular  sect. 

Finally :  Is  there  anything  in  the  assertion  that  the  college 
gives  a  preference  to  students  of  a  particular  sect,  and  thus 
deprives  itself  of  the  claim  to  be  a  "public"  charity?    The 


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HAVEBFORD  COLLEGE  v.  RHOADS.  87 

1897.]  Opinion  of  the  Court. 

decision  above  cited  has  answered  the  question  against  the  de- 
fendant. Further  than  this,  however,  the  master  finds  as  facts : 
"  That  the  plaintiff  admits  to  its  benefits  all  persons  education- 
ally qualified  upon  the  same  terms ;  that  there  are  no  restric- 
tions, no  bars  across  the  road  in  either  its  charter  or  practice, 
and  that  the  funds  of  the  institution  do  not  go  to  the  education 
of  Friends  or  any  other  sect  in  preference  to  others ;  that  while 
some  of  the  free  scholarships  are  restricted  to  Friends,  others 
are  free  to  all  who  apply." 

We  do  not  regard  it  as  necessary  to  retravel  the  path  already 
well  marked  out  by  the  master,  through  the  decisions  of  the  Su- 
preme Court  on  this  general  question.  Counsel  for  the  defend- 
ant has  endeavored  to  show  that  the  master  has  gone  astray, 
but  the  distinctions  drawn  do  not  convince  us  tliat  any  mistake 
has  been  made. 

We  therefore  conclude  that  this  college  (with  its  college 
grounds)  is  founded,  endowed,  and  maintained  by  private  char- 
ity as  required  by  the  act  of  1874 ;  that  its  doors  open  to  the 
public  under  reasonable  restrictions  make  it  a  purely  public 
charity  within  the  meaning  of  the  constitutional  provision,  and 
that  its  property  is  exempt  from  the  tax  sought  to  be  collected. 

The  decree  of  the  court  below  is  affirmed. 


In  the  Matter  of  the  Application  of  the  Doylestown  Dis- 
tilling Company,  Limited,  for  a  Distiller  s  License. 

lAquor  law — PetUionfor  a  license  is  to  (he  discretion  of  the  court, 
A  petition  for  a  license  is  addressed  to  the  judicial  discretion  of  tbe- 
license  coait,  a  discretion  resting  on  reasons  to  be  foand  in  the  line  of 
inquiry  marked  out  by  the  statute  from  which  it  is  derived. 

Liquor  Uxw — Judicial  discretion  not  reviewable,  arbitrary  discretion  %s. 

The  appellate  court  can  inquire  into  nothing  but  the  regulanty  of  the 
proceedings  and  the  character  of  the  discretion  exercised  by  the  license 
court.    The  findings  of  fact  and  conclusions  of  judgment  by  which  the 
discretion  of  the  license  judge  is  to  be  regulated,  when  within  the  field  of , 
investigation  assigned  to  him  by  law,  are  not  subject  to  review. 

When,  however,  the  judge  passes  beyond  this  field  he  quits  the  sphere 
of  judicial  discretion.    The  law  having  fixed  the  standard  by  which  the  ' 
right  of  a  petitioner  for  a  distiller's  license  is  to  be  judged  a  discretioA  nol 


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88  DISTILLER'S  LICENSE. 

Syllabus— Opinion  of  Court  below.    [6  Pa.  Superior  Ct. 

regulated  by  this  standard  but  determined  by  tests  unknown  to  tlie  law, 
is  not  judicial,  but  an  arbitrary  abuse  of  discretion  which  the  appellate 
court  should  review. 

Liquor  law — Abuse  of  discretion^ Review  by  appellate  court. 

The  Act  of  June  9,  1891,  P.  L.  257,  excludes  the  determination  of  the 
question  of  the  necessity  of  a  brewer^s  or  distiller^s  license  from  the  re- 
quirements to  entitle  a  license,  and  where  the  license  court  assigns  the 
absence  of  necessity  for  a  distiller^s  license  as  a  reason  for  refusing  the 
license,  he  not  only  goes  beyond  the  requirements  of  the  statute  in  quest 
of  a  reason  for  refusal,  but  rests  his  decision  on  a  reason  which  the  stat- 
ute expressly  excludes  from  consideration.  Such  a  ruling  therefore  is  a 
marked  instance  of  the  exercise  of  an  arbitrary  discretion,  and  presents 
such  abuse  of  discretion  as  requires  correction  by  the  appellate  couii. 

Argued  Nov.  19, 1897.  Appeal,  No.  143,  Oct  T.,  1897,  by 
the  Doylestown  Distilling  Co.,  Ltd.,  from  decree  of  Q.  S. 
Bucks  Co.,  refusing  distiller's  license.  Before  Rice,  P.  J., 
WiCKHAM,  Beaver,  Reeder,  Orlady,  Smith  and  Por- 
ter, JJ.    Reversed.    Rice,  P.  J.  and  Beaver,  J.,  dissent. 

Application  for  distiller's  license.    Before  Yerkes,  P.  J. 

The  application  for  the  license,  bond  and  other  proceedings 
were  in  regular  form.  The  application  having  been  heard  ac- 
cording to  the  rules  of  court  the  license  was  refused  upon  the 
ground  that  there  was  no  necessity  for  it,  in  an  opinion  by 
Yerkes,  P.  J.,  as  follows : 

This  petition  seems  to  rest  upon  peculiar  grounds.  It  is  not 
stated  that  a  license  is  needed  for  the  accommodation  of  the 
general  public,  but  rather  to  enable  the  applicants  an  oppor- 
tunity to  make  a  market  for  their  peculiar  brand  of  liquors  by 
convincing  the  public  through  experience,  that  their  liquors 
are  alone  beneficial  to  them,  as  a  remedy  for  various  diseases  to 
which  the  human  family  is  subject.  The  principal  testimony 
and  exhibits  laid  before  us  seem  to  establish  that  this  want  is 
felt  in  Wallingford,  Connecticut,  to  a  good  deal  greater  extent 
than  here. 

It  is  true  one  Doylestown  physician  presents  a  rather  guarded 
certificate  of  the  results  of  the  use  of  the  liquor  in  cases  of 
feeble  digestion  and  prostration  which,  with  his  limited  experi- 
ence, encourage  him  to  give  it  further  trial.  It  does  not  appear, 
however,  that  the  stimulating  effect  here  referred  to  is  different 


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DISTILLER'S  LICENSE.  89 

1897.]  Opinion  of  CJourt  below 

from  that  of  the  use  of  other  alcoholic  drinks.  From  time  im- 
memorial the  result  of  the  use  of  such  has  given  encourage- 
ment to  further  trial. 

Another  witness  bases  his  testimony  upon  his  idea  of  the  ben- 
efits which  will  accrue  to  the  community  by  the  use  of  this  kind 
of  intoxicant  from  what  has  been  represented  to  him,  and  the 
character  of  certain  members  of  the  company  to  whose  standing 
he  testifies.  The  basis  for  the  first  reason  is  of  a  somewhat 
beclouded  character,  and  the  second  was  unnecessary,  the  high 
character  of  the  parties  named  being  well  known. 

He  somewhat  damages  the  doctor's  certificate  by  proving 
tliat  "  liquor  is  used  as  medicine  throughout  the  world." 

It  is  also  said  that  the  farmers  will  be  benefited  by  this  house 
being  licensed.    No  farmers  have  so  declared,  however. 

The  usual  number  of  petitioners,  who  always  sign  petitions, 
has  certified  to  the  benefits  to  be  derived  from  this  license. 

None  of  this  testimony  throws  light  upon  the  only  questions 
which,  under  the  law,  are  material  to  the  inquiry  before  us,  viz : 
The  necessity  for  the  license,  and  the  fitness  of  the  place  and 
the  person  who  may  conduct  the  business. 

Doylestown  already  has  two  licensed  wholesale  liquor  stores, 
both  well  located  to  accommodate  public  demands,  and,  so  far 
as  has  been  shown,  they  supply  liquors  in  quantity  and  quality 
sufficient  for  all  purposes.  One  of  these  is  the  house  of 
Mrs.  Huber,  who  appears  to  be  the  second  largest  holder  in 
value  in  the  petitioning  company.  These  licensed  houses  no 
doubt  would  willingly  dispose  of  the  cold  distiUed  spirits  if 
there  be  such  a  crying  demand  for  it,  and  at  reasonable  profit. 

We  have  seen  no  evidence  that  Mrs.  Huber  or  the  other  mem- 
bers of  the  company,  who,  by  their  long  residence  here,  are  well 
acquainted  with  the  necessity  for  tiiis  license,  are  desirous,  par- 
ticularly, that  it  be  granted.  The  place  is  also  unsuitable. 
Mrs.  Huber's  store  is  within  four  doors  from  it  and  is  located  so 
as  not  to  unduly  annoy  private  dwellers.  The  latter  are  en- 
titled to  some  degree  of  protection  from  unpleasant  surroundings. 

To  impose  another  liquor  store  upon  that  immediate  neighbor- 
hood could  only  be  justified  by  the  clearest  necessity. 

We  regard  the  special  plea,  that  only  one  kind  of  whiskey 
will  be  sold,  of  a  superior  medicinal  quality,  as  a  clever  device 
to  obtain  a  valuable  privilege  without  establishing  such  necessity 
as  the  law  requires  for  its  grant. 


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?Q  DISTILLER'S  LICENSE. 

Assignment  of  Errors — Opinion  of  the  Couit.     [6  Fa.  Superior  Ct^ 
The  license  is  refused. 

Errors  assigned  were  (1)  In  refusing  to  grant  distiller's 
license  to  the  Doylestown  Distilling  Co.,  Ltd.,  upon  the  ground 
that  the  same  was  not  necessary.  In  refusing  tlie  license  the 
learned  judge  saying :  "  It  is  not  needed  for  the  acconunodation 
of  the  general  public."  "  That  it  is  a  clever  device  to  obtain  a 
valuable  privilege  without  establishing  such  necessity."  And 
again :  "  None  of  the  testimony  throws  light  on  the  questions 
which,  under  the  law,  are  material,  viz :  Necessity."  (2)  In 
comparing  the  application  with  that  of  Mrs.  Huber  and  H.  P. 
Beerer,  they  holding  wholesale  licenses.  (8)  In  not  approving 
the  bond. 

J*.  2>.  James^  with  him  N,  C.  James^  for  appellant. — The  Act 
of  June  9, 1891,  P.  L.  257,  provides  in  section  4,  Art.  V.  as  fol- 
lows :  "  That  the  place  to  be  licensed  is  necessary  for  the  accom- 
modation of  the  public :  Provided,  that  the  provisions  of  this 
section  as  to  whether  the  place  to  be  licensed  is  necessary  shall 
not  apply  to  a  brewer  or  distiller." 

The  application  of  the  Doylestown  Distilling  Co.,  Ltd.,  comes 
directly  within  the  requirements  of  this  provision,  and  therefore 
the  question  of  necessity  should  not  have  been  considered.  The 
reason  of  record  is  "  No  necessity."  The  reason  assigned  is  not 
a  legal  and  valid  reason :  Gemas'  Appeal,  169  Pa.  43 ;  Dober- 
neck's  Appeal,  1  Pa.  Superior  Ct.  99 ;  Laiick's  Appeal,  2  Pa. 
Superior  Ct.  53. 

No  argument  offered  or  paper-book  filed  for  appellee. 

Opinion  by  Smith,  J.,  December  13, 1897 : 

The  principles  that  must  govern  the  decision  of  this  case  have 
been  settled  by  repeated  and  well  considered  adjudications. 
These  principles,  with  the  authorities  on  which  they  rest,  have 
been  so  recently  reviewed,  in  Donoghue's  Appeal,  5  Pa.  Supe- 
rior Ct.  1,  that  no  extended  discussion  of  them  is  here  necessary. 

A  petition  for  license  is  addressed  to  the  discretion  of  the 
license  court.  This  is  not  an  arbitrary  or  unregulated  discretion, 
but  a  judicial  discretion,  resting  on  reasons  to  be  found  in  the 
line  of  inquiry  marked  out  by  the  statute  from  which  it  is 


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DISTILLER'S  LICENSE.  91 

1897.]  Opinion  of  the  Court. 

derived.  These  reasoDs  relate  in  part  to  matters  of  fact,  sus* 
ceptible  of  direct  proof,  such  as  citizenship,  ownersliip  of  the 
place  to  be  licensed,  interest  in  the  business  to  be  conducted 
there  or  elsewhere,  etc. ;  and  in  part  to  conclusions  of  judgment 
to  be  formed  by  the  court  upon  evidence  or  personal  knowledge, 
respecting  such  matters  as  the  petitioner's  mornl  character,  his 
fitness  to  receive  a  license,  the  necessity  for  the  house,  etc. 
The  discretion  of  the  license  judge  is  to  be  governed  by  the 
facts  ascertained  and  the  conclusions  reached  by  him  respecting 
the  matters  to  which  his  inquiry  is  by  law  directed. 

The  appellate  court  can  inquire  into  nothing  but  the  regularity 
of  the  proceedings  and  the  character  of  the  discretion  exer- 
cised by  the  license  court.  The  findings  of  fact  and  conclu- 
sions of  judgment  by  which  the  discretion  of  the  license  judge 
is  to  be  regulated,  when  within  the  field  of  investigation  as- 
signed to  him  by  law,  are  not  subject  to  review.  When,  how- 
ever, he  passes  beyond  this  field,  he  quits  the  sphere  of  judicial 
discretion.  The  law  having  fixed  the  standard  by  which  the 
right  of  the  petitioner  is  to  be  judged,  a  discretion  not  regulated 
by  this  standard,  but  determined  by  tests  unknown  to  the  law, 
is  not  a  judicial  but  an  arbitrary  discretion.  Such  a  mode  of 
exercise  is  an  abuse  of  the  discretion  committed  to  the  license 
court  Where  no  reasons  are  given  for  the  decision,  the  law 
will  presume  adequate  grounds  for  it.  But  when  reasons  are 
given  which  are  based  on  matters  not  within  the  scope  of  inquiry 
defined  by  law,  but  show  a  clear  departure  from  the  statutory 
tests,  an  abuse  of  discretion  is  manifest,  which  it  becomes  the 
duty  of  the  appellate  court  to  correct. 

So  far  as  the  record  in  the  case  before  us  shows,  there  was  no 
remonstrance  or  other  opposition  to  the  petition.  The  license 
court,  in  an  opinion  accompanying  the  refusal  of  the  license 
applied  for,  based  its  decision  solely  on  the  ground  that  the 
petitioner  sought  the  license  "  without  establishing  such  neces- 
sity as  the  law  requires  for  its  grant."  The  conclusion  of  the 
license  court  (based  on  personal  knowledge),  that  the  necessity 
in  question  had  not  been  established,  must  be  here  accepted,  for 
we  cannot  review  its  judgment  on  this  point.  If  therefore  the 
law  demands  that  such  necessity  be  established  in  this  case,  the 
court  was  right  in  refusing  the  license. 

The  petition  was  for  a  license  as  a  distiller.     The  act  of 


Digitized  by  VjOOQ IC 


92  DISTILLER'S  LICENSE. 

Opinion  of  the  Court.  [6  Pa.  Superior  Ct 

June  9, 1891,  upon  which  the  court  proceeded  in  the  premises, 
while  enumerating  the  requirements  to  be  met  by  the  applicants 
for  certain  licenses,  contains  this  express  exception :  "  Provided, 
That  the  provisions  of  this  section  as  to  whether  the  place  to  be 
licensed  is  necessary  shall  not  apply  to  a  brewer  or  distiller." 

Thus  the  license  court  not  only  went  beyond  the  requirements 
of  the  statute  in  quest  of  a  reason,  but,  in  resting  its  decision 
on  the  absence  of  necessity,  decided  the  case  against  the  peti- 
tioner on  a  ground  which  the  statute  expressly  excludes  from 
consideration.  Upon  the  principles  established  by  the  author- 
ities already  referred  to,  it  is  impossible  to  regard  this  as  the 
exercise  of  a  judicial  discretion.  On  the  contrarj'-,  it  is  a  marked 
instance  of  the  exercise  of  an  arbitrary  discretion,  in  direct  dis- 
regard of  the  enactment  designed  to  regulate  the  discretion  of 
the  court  in  the  case  before  it ;  in  brief,  an  abuse  of  discretion, 
requiring  correction  by  this  court.  But  a  single  reason  having 
been  assigned  for  the  decision,  it  must  be  presumed  that  no 
other  was  found.  That  reason  being  wholly  without  validity, 
there  was  no  ground  for  refusing  the  license,  and  it  should  have 
been  granted. 

The  order  refusing  the  license  is  reversed,  and  it  is  ordered 
that  a  license  be  issued  by  the  court  below,  as  prayed  for,  upon 
payment  of  the  license  fees  fixed  by  law. 

Rice,  P.  J.,  and  Beaver,  J.,  dissent 


Commonwealth  of  Pennsylvania  v.  William  H.  House, 

Appellant. 

Fractice— Criminal  law^AddUional  instructions  in  absence  of  defendant 
— Adjournment. 

It  is  reversible  eiTor  where  the  trial  judge,  after  adjournment  of  court, 
permits  the  juiy  to  come  in  for  additional  instioictions  which  he  gives  in 
the  absence  of  defendant  and  his  counsel  and  without  notice  to  either.  A 
person  under  trial  for  a  crime  has  the  right  to  be  present  during  the  en- 
tire trial ;  he  has  a  right  to  assume  that  no  further  instructions  will  be 
given  during  the  adjouiiiment  of  court  No  waiver  or  consent  can  be  im- 
plied from  his  absence  under  such  circumstances. 

While  the  court  has  the  discretionary  power  to  recall  the  jury  for  far- 


Digitized  by  VjOOQ  IC 


COMMONWEALTH  v.  HOUSE.  n 

1897.]  Syllabus. 

ther  instructions  or  to  withdraw  or  to  c5orrect  erroneous  instructions  such 
instructions  should  be  given  in  open  court. 

Evidence — Criminal  law — Proof  of  independent  crime,  when  admissible. 

Generally  evidence  of  the  defendant's  commission  of  another  distinct 
and  independent  crime  cannot  be  received  for  the  purpose  of  proving  his 
commission  of  the  offense  for  which  he  is  being  tried ;  yet  under  some 
circumstances  such  evidence  may  be  given :  To  establish  identity ;  to  show 
that  the  act  charged  was  intentional  and  wilful,  not  accidental ;  to  prove 
motive ;  to  show  guilty  knowledge  and  purpose,  etc. 

Evidence — Criminal  Uno-^Pertinenl  cross-examination. 

Evidence  being  given  by  defendant,  charged  with  embezzlement  of  pub- 
lic funds,  that  his  alleged  false  repi*esentations  made  to  the  officere  of  the 
city  were  innocently,  if  mistakenly  made,  it  was  competent  for  the  com- 
monwealth to  cross-examine  him  on  this  subject  and  admissions,  made  by 
liim,  that  he  was  receiving  interest  on  tlie  money  in  question  from  banks 
of  deposit,  are  relevant  testimony  as  tending  to  rebut  the  theory  of  mis- 
take set  up  in  his  direct  examination,  and  as  tending  to  show  a  personal 
interest  to  be  served  in  making  the  false  and  misleading  statements  and  in 
withholding  the  money. 

Evidence— Criminal  law — Scope  of  cross-examination  of  defendant. 

Where  defendant  in  a  cnminal  case  goes  upon  the  stand,  admissions 
made  by  him  are  not  inadmissible  because  elicited  under  cross-examination ; 
by  consenting  to  take  the  stand  and  by  sweanng  to  tell  the  truth,  the  whole 
truth,  he  waives  his  constitutional  privilege  and  may  be  cross-examined, 
not  only  the  same  as  any  other  witness,  but  he  cannot  object  to  legitimate 
cross-examination  upon  the  gi*ound  that  his  answers  will  tend  to  crim- 
inate him. 

Evidence — Criminal  law — Testimony  of  defendant  cU  former  trial  admiS' 
sible. 

The  testimony  of  defendant  can  be  used  against  him  on  a  second  trial  of 
the  same  indictment  even  if  he  elects  not  to  go  upon  the  stand.  His  con- 
stitutional privilege  as  far  as  that  testimony  is  oonoehied  has  been  waived, 
and  cannot  be  reclaimed  in  any  subsequent  tnal  of  the  same  indictment. 

Evidence— Testimony  of  former  trial— Method  of  proof— Practice,  C.  P. 
The  proper  method  of  proving  what  was  said  by  a  witness  on  a  former 
tnal  is  by  the  official  stenogi*apher. 

Evidence— Criminai  law — Proof  of  admissions  on  former  trial. 

When  the  commonwealth  desires  simply  to  prove  certain  admissions  of 
a  defendant  made  on  a  former  trial,  it  is  not  necessary  to  put  in  evidence 
his  wholo  testimony;  but  if  anything  is  omitted  which  may  tend  to  ex- 
plain or  qualify  those  admissions  the  defendant  may  call  it  out  upon  cross- 
examination. 

Argued  Oct  18, 189T.  Appeal,  No.  a2,  April  T.,  1898,  by 
defendant,  from  judgment  of  Q.  S.  Allegheny  Co.,  June  Seas., 


Digitized  by  VjOOQ IC 


94  COMMONWEALTH  v.  HOUSE. 

Statement  of  Facts.  [6  Pa.  Superior  Ct. 

1896,  No.  452,  on  verdict  of  guilty.  Before  Rice,  P.  J.,  WiCK« 
HAM,  Beaveb,  Rbedeb,  Oelady,  Smith  and  Poetee,  JJ. 
Reversed. 

Indictment  for  embezzlement  of  $26,652.74.  Before  Ken- 
nedy, P.  J. 

It  appears  from  the  record  that  defendant  was  indicted  in  the 
court  below  on  numerous  counts  charging  him  with  embezzle- 
ment as  a  municipal  ofl&cer,  jointly  with  W.  C.  Moreland,  who 
had  been  for  many  years  city  attorney  of  the  city  of  Pittsburg. 

At  the  trial  of  the  case  all  the  counts  were  abandoned  ex- 
cepting one  charging  that  the  said  defendant  did  embezzle  the 
sum  of  $26,652.74,  in  aiding  and  abetting  and  as  accessory  to 
the  unlawful  conversion  and  embezzlement  of  the  said  sum. 

On  the  trial  of  the  case  the  commonwealth  was  permitted, 
under  objection,  to  examine  L.  W.  Mendenhall,  the  ofl&cial  ste- 
nographer of  the  court,  in  regard  to  the  testimony  of  the  defend- 
ant taken  at  a  previous  trial  (see  former  report  of  the  case,  3 
Pa.  Superior  Court,  304),  the  defendant  having  at  the  second 
trial  declined  to  take  the  stand. 

The  examination  of  the  witness  Mendenhall  was  as  fol- 
lows :  [L.  W.  Mendenhall,  sworn.  Direct  examination  by  Mr. 
Yost :  "  Q.  You  are  the  official  stenographer  of  common  pleas 
No.  3  ?  A.I  am.  Q.  And  by  virtue  of  that  office  you  were 
official  stenographer  at  the  former  trial  of  this  case  ?  A.  Yes, 
sir.  Q.  Did  you  take  notes  of  the  testimony  of  the  case? 
A.  I  did.  Q.  Did  you  take  notes  of  the  testimony  of  William 
H.  House,  the  defendant,  on  the  former  trial  of  this  case? 
A.  I  did.  Q.  Will  you  look  at  your  notes  of  the  testimony  of 
the  defendant.  House,  at  the  fonner  trial,  and  tell  us  what  he 
stated  in  regard  to  the  duties  of  his  office  ?  " 

Mr.  O'Brien :  Objected  to,  on  the  ground  that  if  they  have 
any  right  to  offer  the  testimony,  they  must  offer  the  testimony 
complete ;  they  have  no  right  to  offer  a  part  of  it  in  that  way. 

Mr.  Yost :  I  propose  to  prove  the  admission  of  the  defendant 
as  to  his  duties  during  the  period  covered  by  this  indictment, 
and  his  relations  to  the  principal  and  codefendant,  Moreland. 

Mr.  Patterson :  We  object,  as  the  act  of  assembly,  section  3, 
of  the  act  of  1887,  expressly  provides  the  use  of  the  testimony 
for  another  trial,  and  we  object  to  it  on  the  ground  that  the  only 


Digitized  by  VjOOQ IC 


COMMONWEALTH  v.  HOUSE.  95 

1897.]  Statement  of  Facts. 

knowledge  the  witness  has  upon  the  subject  upon  which  he  is 
interrogated  is  what  he  derived  as  official  stenographer  in  tak- 
ing the  testimony  at  the  former  trial  of  this  defendant  upon 
the  same  charges,  and  that  it  is  not  allowable  on  the  part  of  the 
commonwealth  to  prove  against  the  defendant  on  trial  his  tes- 
timony taken  at  a  former  trial  of  the  same  cause.  2.  That  the 
witness,  being  capable  of  testifying  only  in  his  capacity  as  a 
reporter  in  the  other  case,  should  be  called  upon,  if  at  all,  to 
give  his  entire  version  of  Mr.  House's  complete  testimony  at 
that  time,  if  it  is  competent  to  pix>ve  it  at  all.  It  is  incompe- 
tent and  improper  to  allow  the  representative  of  the  common- 
wealth to  select  particular  parts  of  that  testimony,  which  they 
may  regard  as  incriminating,  and  have  that  detailed  without 
giving  the  entire  testimony. 

By  the  Court:  The  objection  is  overruled. 

To  which  ruling  of  the  court  counsel  for  defendant  request 
an  exception.    Exception  allowed  and  bill  sealed. 

"  A.  The  following  question  was  asked  Mr.  House :  I  wish  you 
would  tell  the  jury,  in  a  general  way,  what  the  line  of  your  duty 
was  there  from  the  time  you  first  went  in  under  Mr.  Bigelow, 
until  you  ceased  in  October,  1895  ?  To  which  he  made  this  re- 
ply :  Why,  to  receive  assessments  on  streets,  grading,  paving 
and  curbing,  sewei-s,  openings,  damages  by  grading,  to  pay  par- 
ties who  were  entitled  to  money,  pay  the  city  treasurer,  grad- 
ing, paving,  curbing  and  sewers,  or  any  other  moneys  that  might 
come  into  my  hands  that  he  was  entitled  to  receive." 

^^  Q.  State  if  he  was  interrogated,  Mr.  Mendenhall,  as  to  his 
method  of  satisfying  liens  in  the  court  house  in  the  prothono- 
tary's  office,  and  what  he  said  upon  that  subject." 

"A.  He  was  asked  the  question:  Then  who  paid  the  costs? 
To  which  he  made  this  reply :  Then  I  would  make  out  a  list 
— I  might  have  one,  or  I  might  have  a. dozen  names — and  I 
would  go  to  the  prothonotary's  office  and  satisfy  these  liens, 
W.  C.  Moreland,  per  House,  and  pay  the  costs;  or  I  might 
have  forty  or  fifty,  and  I  would  go  in  to  the  prothonotary's  office, 
and  I  would  leave  a  list  with  him,  and  tell  him  to  write  up  the 
satisfactions,  and  I  would  go  in  there  the  next  morning,  before 
working  hours — maybe  I  would  be  in  there  before  eight  o'clock, 
and  I  would  sign  my  name,  and  pay  him  the  costs  on  the  whole 
thing." 


Digitized  by  VjOOQ IC 


96  COMMONWEALTH  v.  HOUSE. 

Statement  of  Facts.  [6  Pa.  Supeiior  Ct. 

"  Q.  Was  he  asked  aDything  further  immediately  after  that 
in  regard  to  costs  ?  " 

*'  A.  He  was  asked  this  question :  And  were  the  costs  usually 
paid  in  currency?  To  which  he  made  the  following  answer: 
Yes,  sir,  always,  I  don't  recall  just  now  of  any  ever  having 
been  paid  by  check,  although  there  might  have  been  some  costs, 
but  my  recollection  tells  me  that  I  always  paid  the  costs  in 
money." 

"  Q.  Could  you  state  whether  he  was  asked  how  lie  paid  dam- 
ages, whether  by  check  or  not,  how  they  were  drawn  and  what 
he  said  upon  that  subject  ? 

"  A.  The  following  appears  on  ray  notes :  Now,  when  you  paid 
damages  by  check,  how  were  the  checks  drawn?  To  which 
he  replied:  The  checks  were  signed  by  W.  C.  Moreland. 
Q.  In  blank?  A.  To  the  order  of  W.  H.  House ;  when  I  paid 
those  checks  out  I  would  indorse  them  over  to  the  parties  that 
were  entitled  to  the  money." 

"  Q.  Later  on,  you  may  state  whether  or  not  he  was  interro- 
gated as  to  how  frequently  he  was  at  the  ofl&ce,  and  whether  he 
had  charge  of  Moreland's  bank  book,  and  tell  us  what  he  said 
upon  that  subject.  A.  The  following  appears :  Q.  You  were 
there  every  day  at  the  oflSce,  weren't  you?  A.  I  was  there 
every  day,  as  a  general  thing :  I  might  have  been  away  or  some- 
thing of  that  kind.  Q.  You  had  charge  of  the  bank  books  con- 
taining the  accounts  of  W.  C.  Moreland  with  these  various 
banks  ?  A.  They  were  in  the  oflSce ;  yes,  sir.  Q.  They  were 
not  in  Mr.  Moreland's  private  office,  in  the  St.  Nicholas  build- 
ing, but  in  the  office  you  occupied?  A.  Yes,  sir.  Q.  You 
sent  or  took  these  books  to  banks  as  the  moneys  were  deposited. 
A.  Yes,  sir.  Q.  And  you  had  them  balanced,  did  you  ?  A.  Yes, 
sir.  Q.  And  you  had  full  access  to  them,  so  that  you  could 
see  exactly  what  they  contained?    A.  Yes,  sir." 

"  Q.  State  whether  towards  the  conclusion  of  his  cross- 
examination  he  was  interrogated  as  to  deposits  of  the  moneys 
he  received,  and  as  to  how  he  did  it  and  what  he  said  upon  that 
subject.  A.  I  find  this  in  my  notes.  Q.  Mr.  House,  you  have 
said  that  you  deposited  the  funds  coming  into  the  city  attor- 
ney's office,  under  your  supervision,  and  prepared  the  deposit 
slips  in  the  name  of  W.  C.  Moreland  alone?  A.  Yes,  sir. 
Q.  In  the  First  National  bank  of  Pittsburg,  the  Allegheny 


Digitized  by  VjOOQ IC 


COMMONWEALTH  r.  HOUSE.  91 

1897.]  Statement  of  Facts. 

National  bank,  the  Tradesmen's,  and  the  Freehold  ?  A.  Yes, 
sir.  Q.  In  1893,  is  it  not  a  fact  that  in  the  Tradesmen's,  Alle- 
gheny National,  and  First  National,  at  the  time  you  told  Mr. 
Gourley  that  about  all  tbe  money  you  could  pay  in  was  f  80,000, 
that  there  were  quarterly  balances  there  in  each  bank  of  at  least 
fifty  to  eighty  thousand  dollars  ?  A.  There  might  have  been. 
Q.  That  there  were  quarterly  balances  in  those  banks  to  the 
amount  of  one  hundred  and  fifty  or  two  hundred  thousand  dol- 
lars ?  A.  Well,  I  couldn't  say  as  to  the  amount.  Q.  Well,  it 
would  aggregate  in  that  neighborhood ;  you  had  deposited  the 
greater  portion  of  that  money  in  those  banks  by  the  direction 
of  Major  Moreland?     A.  Yes,  sir." 

"  Q.  In  that  immediate  connection  state  whether  or  not  he  was 
interrogated  as  to  whether  he  drew  interest  upon  these  moneys 
that  were  in  bank,  and  what  he  said  upon  that  subject." 

Mr.  Patterson :  Objected  to,  not  only  upon  the  grounds  al- 
ready stated,  but  that  this  particular  question  now  asked  is 
incompetent  and  irrelevant,  for  the  reason  that  it  seeks  to  draw 
from  the  witness  a  former  statement  of  the  defendant  relating 
to  an  entirely  distinct  and  different  offense  from  that  upon 
which  he  is  upon  trial,  and  an  offense  which  is  shown  by  the 
records  of  this  court  to  be  the  subject-matter  of  three  or  four 
indictments  against  the  defendant  and  W.  C.  Moreland,  only 
one  of  which  has  been  disposed  of,  and  the  other  three  are  still 
pending ;  and  it  is  an  offer  of  matter  not  contained  in  notice 
furnished  the  defendant  by  district  attorney  in  his  bill  of  par- 
ticulars. 

By  the  Court.     Objection  overruled. 

To  which  ruling  of  the  court  counsel  for  defendant  request 
an  exception.     Exception  allowed  and  bill  sealed. 

'*  A.  The  following  question  was  asked  Mr.  House :  Q.  Mr. 
House,  did  you  not  youi-self,  quarterly,  within  the  four  years 
prior  to  the  finding  of  this  bill  of  indictment,  regularly  draw 
interest  on  those  deposits  which  I  have  mentioned?  A.  Not 
all  of  them.  Q.  In  the  Tradesmen's  National  bank,  didn't  you 
draw  interest  down  until  January,  1895,  on  the  deposits  remain- 
ing there  ?  A.  I  don't  know  whether  it  was  that  month  or  not. 
Q.  Well,  about  that  time?  A.  Well,  I  couldn't  say  that;  it 
might  have  been.  Q.  Well,  in  the  fall  of  1894,  the  quarters  for 
drawing  interest  were  January,  April,  July  and  October,  weren't 
Vol.  VI— T 


Digitized  by  VjOOQ IC 


98  COMMONWEALTH  v,  HOUSE. 

Stafcement  of  Facts.  [6  Pa.  Superior  Ct. 

they?  A.  Yes,  I  believe  there  was  interest  drawn.  Q.  Well, 
didn't  you  in  July  and  October,  1894,  and  on  the  first  of  Janu- 
ary, 1895,  draw  three  per  cent  interest,  or  about  three  per  cent 
interest  on  that  balance  deposited  there?  A.  Well,  I  may 
have  done  so.  Q.  Down  to  February,  1895,  do  you  know  the 
fact  that  there  was  a  balance  deposit  of  $40,000  in  the  First 
National  bank,  or  about  that?  A.  There  might  have  been;  I 
don't  recollect.  (Book  shown  witness,  and  he  states) :  Yes,  that 
seems  to  be  correct.  Q.  Didn't  you  draw  the  quarterly  inter- 
est on  that,  both  in  October  of  1894,  and  January  1  of  1895,  or 
about  those  dates  ?  A.  Well,  I  may  have  done  it.  Q.  You 
did  draw  interest  about  that  time  ?  A.  Yes,  I  went  there  and 
got  interest.  Q.  What  per  cent  at  the  First  National?  A.  I 
couldn't  tell  that.  Q.  What  at  the  Tradesmen's.  A.  I  don't 
know  that.  Q.  Do  you  know  what  per  cent  at  the  Allegheny 
National  ?  A.  I  do  not.  Q.  You  drew  the  interest  there  also 
did  you  not,  down  until  about  July  of  1895,  at  the  Allegheny 
National  ?  A.  Well,  I  couldn't  say  that.  Q.  There  was  a 
large  deposit  still  there  on  the  1st  of  July,  1895,  was  there  not? 
A.  There  might  have  been.  Q.  Well,  didn't  you  go  there  and 
dmw  interest  on  whatever  deposit  was  there  down  until  July, 
1895  ?  A.  I  couldn't  say  that  I  did.  Q.  Can  you  say  abso- 
lutely that  you  did  not?  A.  No,  sir,  I  can't.  Q.  There  were 
large  deposits  almost  daily  in  the  Allegheny  National  down  un- 
til September  of  1895,  was  there  not?  A.  Yes,  sir.  Q.  Run- 
ning from  one  thousand  to  three  or  four  thousand  dollars  at  a 
time  ?  A.  Yes,  sir,  just  as  it  is  represented  there.  Q.  Now, 
isn't  it  a  fact  that  down  until  the  July  quarter  for  drawing 
interest,  you  drew  interest  from  the  Allegheny  National? 
A.  Well,  sir,  I  couldn't  say  whether  I  did  or  whether  I  did 
not.  Q.  Well,  you  know  that  you  did  draw  there  in  1894  and 
1895,  don't  you?  A.  Oh,  yes,  there  was  interest  drawn. 
Q.  And  by  you?  A.  Yes,  sir.  Q.  It  was  drawn  regularly  as 
the  quarters  came?    A.  Well,  I  rather  think  it  was."]  [2] 

It  further  appears  from  the  record  that  on  the  afternoon  of 
May  6, 189T,  after  the  court  had  adjourned,  the  following  pro- 
ceedings were  taken,  to  wit :  The  jury  having  been  recalled  in 
response  to  a  message  from  them  that  they  could  not  agree,  the 
court  addressed  them  as  follows : 

[I  have  received  your  communication  stating  that  it  is  im- 


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COMMONWEALTH  v.  HOUSE.  99 

1897.]  Statement  of  Facts. 

possible  for  you  to  agree.  The  case  has  been  tried  twice,  and, 
as  you  know,  at  considerable  expense  to  the  county,  and  I  do 
not  think  I  can  discharge  you  until  you  have  made  further 
effort  to  agree.  It  strikes  me  as  a  case  in  which  you  ought  to 
be  able  to  reach  a  conclusion  without  very  great  difficulty,  and 
I  think  it  is  my  duty  to  say  to  you  that,  while  no  juryman 
should  sacrifice  his  individual  opinion,  yet  it  should  be  a  mat- 
ter of  careful  consideration  with  the  minority,  if  small,  as  to 
whether  or  not  they  may  be  mistaken.  Now,  it  seems  to  me  the 
best  thing  we  can  do  for  you  is  to  give  you  a  little  more  com- 
fortable quarters  than  you  have  now,  and  send  you  back  for 
further  honest  efforta  to  agree,  taking  the  suggestion  I  have 
made  to  you.  I  have  no  idea  how  you  stand ;  it  is  not  proper 
for  me  to  know.  I  only  suggest  that  those  of  you  who  are  in 
the  minority  consider  carefully  whether  or  not  you  are  mistaken. 
I  am  told  your  room  is  not  very  large,  and  there  are  larger  rooms 
in  the  upper  story  of  the  courthouse,  used  by  jurors  in  capital 
cases,  which  are  most  comfortable,  and  where  there  are  cots 
upon  which  you  may  rest.  We  will  send  you  there  for  further 
deliberation  of  the  case. 

-  By  a  juryman.  Q.  What  bearing  has  the  collection  of  inter- 
est on  this  case  ? 

By  the  Court :  It  has  a  bearing  upon  the  motive  of  the  de- 
fendant. This,  I  thought  was  fully  explained  at  the  time  of 
the  admission  of  the  evidence  upon  that  point,  and  subsequently 
in  the  charge.  You  understand  that  you  cannot,  under  this 
indictment,  convict  him  of  the  embezzlement  of  that  interest, 
but  it  has  a  bearing  upon  the  motive  of  the  defendant  and  his 
relation  to  the  principal,  Moreland,  who  has  already  plead  guilty 
to  the  charge.  If  there  are  any  other  questions  which  you  have 
to  ask,  I  will  try  to  answer  them ;  and  I  believe,  if  you  make 
vigorous  efforts,  you  will  be  able  to  agree.  It  is  not  desirable 
to  have  to  try  the  case  over  again.  It  was  very  carefully  and 
ably  tried  upon  both  sides,  and  I  think  as  much  light  shed  upon 
it  as  there  could  ever  be  in  the  future,  and  I  think  it  has  had 
as  good  a  jury  as  we  would  be  able  to  get.  Now,  as  I  have  said 
before,  we  will  find  you  more  comfortable  quarters,  where  you 
will  be  able  to  discuss  the  case  more  calmly  and  comfortably 
together.  The  room  I  have  suggested  in  the  third  stor}%  where 
there  are  cots,  will  be  ready  for  you  in  a  few  moments,  and  we 
will  send  you  there. 


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100  COMMONWEALTH  v,  HOUSE. 

Statement  of  Facts — Assignment  of  Errors.    [6  Pa.  Superior  Ct. 

By  a  juryman :  Q.  Your  honor,  are  we  to  take  into  consider- 
ation only  whether  House  aided  or  abetted  Mr.  Moreland  in 
the  embezzlement  of  that  S26,000? 

By  the  Court :  Yes,  that  amount,  or  any  portion  of  it ;  that 
is,  whether  he  aided  or  abetted  Moreland  in  the  act;  if  be  did, 
he  is  guilty  under  this  indictment.  Now,  gentlemen,  you  may 
retire.]  [8] 

The  foregoing  proceeding  took  place  on  Thursday  afternoon 
May  6, 1897,  after  the  jury  had  been  out  about  twenty-four 
hours  and  after  the  court  had  received  a  note  from  the  jury, 
signed  by  the  foreman,  stating  that  it  was  impossible  for  them 
to  agree,  and  asking  to  be  discharged.  Neither  the  defendant 
nor  his  counsel  were  present. 

I  hereby  certify  the  foregoing  to  be  correct.  John  M.  Ken- 
nedy, P.  J. 

[I  further  hereby  certify,  that  at  the  time  the  foregoing  pro- 
ceeding took  place,  the  court  had  adjourned  for  the  day,  such 
adjournment  having  taken  place  shortly  after  2  o'cock ;  that 
before  the  presiding  judge  had  left  the  courthouse,  and  during 
the  usual  court  hours,  viz :  about  3  o'clock,  he  received  the 
note  referred  to  in  the  foregoing  certificate,  when  he  imme- 
diately ordered  the  jury  to  be  brought  into  the  court  room, 
which  was  still  open,  and  the  foregoing  proceeding  took  place. 
The  district  attorney  and  other  attorneys  and  persons  were 
present;  neither  the  defendant  nor  bis  counsel  were  notified  to 
be  present.  Subsequently,  and  before  4  o'clock,  the  i-egular 
hour  for  adjournment,  the  jury  returned  into  the  court  room, 
with  their  verdict,  and  defendant's  counsel  being  sent  for,  the  ver- 
dict was  taken  in  their  presence.    John  M.  Kennedy,  P.  J.]  [1] 

The  jury  subsequently  found  a  verdict  of  guilty  as  indicted 
on  the  count  of  the  indictment  designated  as  A  on  the  margin 
thereof,  and  recommended  him  to  the  extreme  mercy  of  the 
court. 

On  June  7, 1897,  the  court  sentenced  the  defendant  in  open 
court  to  pay  a  fine  of  $1,000  to  the  commonwealth,  the  costs  of 
prosecution,  and  undergo  imprisonment  in  the  Western  Peni- 
tentiary of  Pennsylvania  for  a  period  of  two  years.  Defendant 
appealed. 

ErrorB  assigned  were  (1)  To  the  proceedings  taken  on  the 


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COMMONWEALTH  v.  HOUSE.  101 

1897.]  Assignment  of  Errors— Arguments. 

afternoon  of  May  6, 1897,  in  the  abetence  of  the  defendant  and 
his  counsel,  and  without  any  notice  to  them,  or  any  of  them, 
after  the  jury  had  been  charged  by  the  court,  and  had  remained 
out,  engaged  in  their  deliberations,  about  twenty-four  houi-s, 
and  the  time  when,  and  the  circumstances  under  which,  they 
were  taken,  are  set  forth  in  the  following  certificate  of  Hon. 
John  M.  Kennedy,  presiding  judge,  before  whom  the  case  was 
tried,  and  the  said  proceedings  were  taken,  to  wit :  reciting  said 
proceedings.  (2)  In  overruling  defendant's  objections  to  the 
testimony  of  L.  W.  Mendenhall,  which  testimony,  in  so  far  as 
it  is  alleged  to  be  injurious  to  the  defendant,  together  with  the 
objections  thereto,  was  as  follows,  to  wit:  reciting  same.  (3)  In 
refusing  to  discharge  the  jury  on  the  afternoon  of  May  6,  1897, 
upon  receiving  their  communication  that  it  was  impossible  for 
them  to  agree,  and  in  what  was  said  to  them  in  connection  with 
said  refusal,  to  wit :  reciting  same.  (4)  In  entering  judgment 
upon  the  verdict,  which  verdict  was  manifestly  secured  by  the 
instructions  hereinbefore  set  forth  and  referred  to  in  the  third 
assignment  of  error. 

Choi.  A.  O'Brien  and  2>.  F.  Patterson^  with  them  Chas.  W. 
Ashley^  for  appellant — A  very  grave  question  is  raised  by  this 
record  as  to  the  constitutional  rights  of  the  defendant,  and  the 
proper  method  of  procedure  in  criminal  trials.  The  decision  of 
this  court  on  the  matters  here  involved  will  certainly  establish 
an  important  precedent  for  the  guidance  of  courts  of  criminal 
jurisdiction  in  their  interpretation  of  the  meaning  of  the  10th 
section  of  the  bill  of  rights,  as  actually  applied  in  the  trial  of 
causes. 

In  Prine  v.  Com.,  18  Pa.  108,  it  was  held  that  a  defendant 
could  not  waive  his  right  to  be  present  at  his  trial  for  felony. 
But  subsequently,  in  the  case  of  Lynch  v.  Com.,  88  Pa.  189,  it 
was  decided  that  a  defendant,  on  trial  for  larceny,  might  waive 
his  right  to  be  present  on  the  taking  of  the  verdict,  by  volun- 
tarily absenting  himself,  being  out  on  bail.  Whatever  distinc- 
tion may  exist  as  to  the  defendant's  right  of  waiver  in  felony 
and  misdemeanor,  there  certainly  is  no  longer  any  doubt  of  the 
defendant's  right  to  be  present  and  to  be  heard  by  himself  and 
his  counsel  at  all  stages  of  his  trial  whether  for  felony  or  mis 
demeiinor :  Stewart  v.  Com.,  117  Pa.  878. 


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102  COMMONWEALTH  v.  HOUSE. 

Arguments.  [6  Pa.  Supedor  Ct. 

The  conduct  of  the  learned  trial  judge  was  a  denial  of  the 
constitutional  right  of  the  defendant,  which  he  had  not  waived, 
but  vigorously  and  consistently  asserted  and  maintained.  There 
is  a  striking  uniformity  of  decision  in  all  the  states,  that  it  is  a 
fatal  error  in  a  criminal  cause  for  the  trial  judge  to  hold  private 
communications  with  the  jury  concerning  the  case  submitted  to 
their  determination :  Wade  v.  The  State,  12  Ga.  25 ;  McNeil  v. 
The  State,  47  Ala.  498 ;  Kirk  v.  The  State,  14  Ohio,  511 ;  Col- 
lins V.  The  State,  33  Ala.  434;  Thompson  and  Merriam  on 
Juries,  sec.  355. 

The  rigid  rule  contended  for  here  extends  not  only  to  crim- 
inal cases,  but  has  been  almost  universally  applied  to  civil  cases 
as  well.  Notable  among  these  is  Sargent  v.  Roberts,  18  Mass. 
337 ;  Plunket  v.  Appleton,  41  N.  Y.  Superior  Ct.  159 ;  O'Brien 
v.  Ins.  Co.,  38  N.  Y.  Superior  Ct.  482;  Merrill  v.  Nary,  92 
Mass.  416 ;  Bunn  v.  Croul,  10  Johns,  239;  Bank  v.  Mix,  51  N. 
Y.  558; "O'Connor  v.  Guthrie,  11  Iowa,  80. 

With  respect  to  the  second  assignment  of  error,  it  seems  clear 
that  the  testimony  of  House  as  taken  at  the  former  trial  could 
not  be  offered  against  him  at  this  trial  under  the  provisions  of 
sec,  3  of  the  Act  of  May  23,  1887,  P.  L.  158. 

The  commonwealth  were  allowed  to  call  the  stenographer  who 
jeported  the  former  trial,  and  were  allowed  to  pix>ve  by  him  that 
House  made  certain  admissions,  at  the  former  trial,  which  be 
reduced  to  writing  at  the  time,  and  he  was  allowed  to  read  to 
the  jury  such  portions  of  the  writing  as  counsel  for  the  prose- 
cution chose  to  select.  This  procedure  amounted  to  the  actual 
introduction  of  selected  portions  of  House's  testimony  at  the 
former  trial,  which  is  even  more  objectionable  than  the  admis^ 
sion  of  his  entire  testimony; 

We  ask  the  court  to  consider  the  point  made  at  the  former 
hearing  of  this  case  (3  Pa.  Superior  Ct.  304),  that  the  testimony 
offered  was  wholly  irrevelaut  to  this  issue  to  prove  that  House 
received  interest  on  the  quarterly  balance  on  Major  Moreland's 
bank  accounts.  Wei  again  urge  upon  the  consideration  of  the 
court  that  such  receipt  of  interest  on  public  funds  improperly 
continued  on  deposit,  does  not  tend  in  the  slightest  degree  to 
establish  the  charge  that  House  aided  Moreland  in  the  embezzle- 
ment of  public  funds ;  and,  moreover,  that  the  admission  of  such 
evidence  renders  him  liable  to  be  convicted  of  two  distinct 
offenses  for  the  same  act. 


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COMMONWEALTH  c.  HOUSE.  108 

1897.]  Argumente. 

John  C.  Haymaker^  distaict  attorney,  with  him  John  S.  Robb^ 
William  Yost  and  C.  A.  Fagan^  for  appellee. — As  to  the  first 
assignment  of  error  the  principle  to  be  deduced  from  the  cases 
seems  to  be  a  sound  one.  If  the  jury,  after  an  adjournment, 
put  a  question,  respecting  the  facts  of  the  case,  to  the  court,  it 
will  be  irregular  to  state  the  evideiice  relating  to  it ;  but  if  they 
desire  instructions  upon  a  mere  question  of  law,  that  may  be 
answered.  It  should  undoubtedly  be  answered  in  such  way  that 
the  parties  may  have  an  opportunity  to  have  it  corrected,  if 
there  is  any  error  in  the  answer,  and  in  this  way  all  the  rights 
of  both  parties  are  secured  as  effectually  as  if  the  answer  was 
given  in  open  court:  Thayer  v.  Van  Vleet,  5  Johns,  111 ;  Bunn 
V.  Croul,  10  Johns,  239 ;  Allen  v.  Aldrich,  29  N.  H.  66 ;  Gold- 
smith V.  Solomons,  2  Strobh.  L.  296 ;  Thompson  &  Merriam  on 
Juries,  423  ;  School  District  v.  Bragdon,  23  N.  H.  516 ;  Shapley 
V.  White,  6  N.  H.  172 ;  Davis  v.  State,  14  Ind.  358 ;  State  v. 
Dudoussat,  47  La.  Ann.  977. 

The  case  of  Lynch  v.  Com.,  88  Pa.  189  settled  the  right  of 
the  court,  in  a  larceny  case,  to  take,  the  verdict  of  the  jury  in 
the  absence  of  the  defendant;  and  also  to  pronounce  judgment 
upon  him,  while  absent. 

On  this  point  the  following  cases  were  also  cited :  Meece  v. 
Com.,  78  Ky.  586 ;  State  v.  Pike,  65  Maine,  111 ;  Gandolfo 
V.  Ohio,  11  0. 114 ;  Com.  v.  Kelley,  165  Mass.  175 ;  Cooper  v. 
Morris,  48  N.  J.  L.  607. 

The  question  embraced  in  the  second  assignment  of  error 
appears  to  be  within  the  limits  of  legitimate  cross-examination 
of  a  party,  as  in(ttcated  in  the  character  of  the  issue:.  Com.  y. 
House,  3  Pa.  Superior  Ct.  304.  The  identical  question  has 
been  ruled  by  the  Supreme  Court  in  Com.  v.  Doughty,  139  Paw 


There  was  no  errpr  in  what  was  said  in  connection  with  the 
refusal  to  discharge  the  jury :  Allen  v*  United  States,  164  U.  S. 
492. 

In  urging  a  jury  to  agree  it  is  not  error  to  comment  on  the 
expense  of  the  trial  and  to  set  forth  that  the  public  interests 
would  be  served  by  an  agreement :  State  v.  Gorham,  31  Atl,. 
845 ;  Johnson  v.  State,  60  Ark.  45 ;  State  v.  Garrett,  57  Kansas, 
132 ;  Jackson  v.  State,  91  Wis.  253,  47  La.  Ann.  977 ;  Cox  v. 
Highley,  100  Pa.  249. 


Digitized  by  VjOOQ IC 


104  COMMONWEALTH  v.  HOUSE. 

Opinion  of  the  Couit.  [6  Pa.  Saperior  Ct 

Opinion  by  Rice,  P.  J.,  December  18, 1897 : 

The  general  proposition  that  the  testimony  of  a  defendant 
cannot  be  used  against  him  on  a  second  trial  of  the  same  indict- 
ment, if  he  elects  not  to  go  upon  the  witness  stand,  is  not 
strongly  urged  in  the  present  case,  and  is  not  well  founded 
upon  principle  or  authority.  He  cannot  be  compelled  to  give 
evidence  against  himself,  but  if  he  gives  it  voluntarily  he  can- 
not object  to  having  it  used  against  him.  His  constitutional 
privilege,  as  far  as  that  testimony  is  concerned,  is  waived,  and 
cannot  be  reclaimed  in  any  subsequent  trial  of  the  same  indict- 
ment. As  was  said  in  Com.  v.  Doughty,  139  Pa.  888,  his  ad- 
missions or  declarati6ns  would  be  evidence  against  him ;  and  if 
so  why  not  his  testimony  under  oath  ? 

Nor,  where  the  commonwealth  desires  simply  to  prove  certain 
admissions  of  a  defendant  made  upon  a  former  trial,  is  it  neces- 
sary to  put  in  evidence  his  whole  testimony ;  but  if  anything  is 
omitted  which  may  tend  to  explain  or  qualify  those  admissions 
the  defendant  may  call  it  out  upon  cross-examination.  See 
Calhoun  v.  Hays,  8  W.  «&  S.  127 ;  Thomas  v.  Miller,  151  Pa.  482. 
This  was  the  course  pursued  in  the  present  case,  and  it  is  not 
claimed  that  the  jury  did  not  have  before  them  all  of  the  testi- 
mony, favorable  to  the  defendant,  which  he  gave  upon  the  for- 
mer trial  concerning  the  subject-matter  of  the  alleged  admissions. 

The  method  of  proving  by  the  official  reporter  what  was  tes- 
tified to  was  proper  and  in  accordance  with  well  settled  practice : 
Wh.  Cr.  Ev.,  sec.  231 ;  and  this  too  although  tlie  stenographer 
did  not  recollect  the  testimony  independently  of  his  notes: 
Rhine  v.  Robinson,  27  Pa.  80;  Brown  v.  Com.,  78  Pa.  821. 

Some  of  the  admissions  put  in  evidence  by  the  commonwealth 
were  elicited  upon  the  cross-examination  of  the  defendant,  and 
it  is  argued  that  proof  of  them  was  not  admissible  upon  the 
present  trial,  (1)  because  they  were  irrelevant;  (2)  because  they 
were  made  in  answer  to  questions  which  were  not  within  the 
legitimate  scope  of  cross-examination,  and  were  objected  to  at 
the  time.  Both  of  these  objections  were  raised  when  the  oase 
was  here  before,  and  were  overruled :  8  Pa.  Superior  Ct.  804. 
At  the  earnest  request  of  the  defendant's  counsel  we  have  care- 
fully reconsidered  the  ruling,  and  see  no  reason  for  coming  to 
a  different  conclusion.  Were  the  facts  testified  to  relevant  to 
the  issue?    Was  the  cross-examination  proper,  or  was  it  an 


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COMMONWEALTH  r.  HOUSE.  105 

1897.]  Opinion  of  tiie  Court. 

infringement  of  the  defendant's  constitutional  privilege  not  to 
give  evidence  against  himself?  In  determining  the  latter  ques- 
tion the  case  must  be  looked  at  as  it  was  presented  when  the 
testimony  was  given.  The  defendant  has  no  right  to  have  that 
question  reconsidered  in  any  other  light.  This  requires  a  brief 
review  of  what  preceded  the  defendant's  cross-examination. 

W.  C.  Moreland  was  city  attorney,  and  the  defendant  was 
his  regularly  appointed  assistant.  It  was  the  defendant's  duty 
to  collect  assessments  for  gi-ading,  paving,  curbing  and  sewei-^ 
ing,  and  assessments  of  benefits  upon  the  opening  of  streets  and 
the  like,  and  to  pay  the  money  so  collected  to  the  city  treasurer, 
or  to  parties  awarded  damages  in  the  proceedings  referred  to. 
The  money  thus  collected,  or  at  least  a  large  portion  of  it,  was 
deposited  by  him  in  four  banks  to  the  credit  of  the  personal 
account  of  Moreland.  As  a  general  rule,  payments  to  the  city 
treasurer  and  other  parties  were  made  by  checks  drawn  by 
Moreland  to  the  order  of  the  defendant  The  defendant  had 
charge  of,  or  access  to,  the  bank  books,  and  at  all  times  had  full 
knowledge  of  the  condition  of  the  accounts.  The  defendant  was 
jointly  indicted  with  Moreland  under  the  65th  section  of  the  Act 
of  March  31, 1860,  P.  L.  400.  Moreland  was  charged  with  having 
converted  over  $26,000  of  the  public  funds  to  his  own  use,  and 
with  being  a  defaulter  as  to  the  same,  and  the  defendant  w.is 
charged  with  aiding  and  abetting  and  being  accessory  to  the  act 
of  Moreland.  Moreland  pleaded  guilty,  and  on  the  first  trial  of 
the  defendant,  as  well  as  upon  his  second  trial  the  commonwealth 
proved,  amongst  other  things,  that  the  defendant  made  fake  rep- 
resentations to  the  city  ofBcers,  and  to  others  entitled  to  receive 
the  money  as  to  the  reception  of  the  money  and  as  to  the  amount 
on  hand  that  could  be  paid  into  the  city  treasury.  Persons  to 
whom  damages  had  been  awarded  in  street  opening  cases  and  the 
like  were  put  off  with  the  false  representation  that  the  benefit 
assessments  had  not  been  paid  in,  and  proof  was  given  of  false 
statements  made  to  the  city  controller  as  to  the  amount  on  hand 
that  could  be  paid  into  the  city  treasuiy.  We  need  not  recite  the 
evidence  upon  this  subject  in  detail.  It  is  sufficient  for  present 
purposes  to  say  that  it  was  ample,  if  unexplained,  to  warrant  an 
inference  of  fraudulent  intent.  On  the  first  trial  the  defendant 
attempted  to  meet  this  evidence  either  by  denial,  or  by  explana- 
tion to  the  effecti  that,  although  he  might  have  made  mistakes, 


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106  COMMONWEALTH  r:  HOUSR. 

Opinion  of  the  Court.  [6  Pa.  Superior  Gt. 

yet,  if  any  of  his  statements  were  untrue,  they  were  not  mad^ 
with  intention  to  mislead  or  deceive.  To  lend  plausibility  to 
this  theory  he  asserted  directly,  and  by  inference,  that  he  was 
a  mere  subordinate,  acting  simply  for  his  superior  officer  i|i 
depositing  and  paying  out  the  money,  and  that  he  had  no  perr 
sonal  interest  or  motive  for  deceiving  any  one  with  regard  t^ 
the  reception  of  the  money,  or  the  amount  on  hand.  There  can 
be  no  question  that  the  representations  made  by  him  were  effi[- 
cient  in  the  consummation  of  the  embezzlement  charged  in  the 
indictment,  and  it  was  of  the  highest  importance  to  him  to  con- 
vince the  jury  that  they  were  innocently  made.  His  assertion 
that  he  had  no  interested  motive  for  making  false  statements^ 
if  believed  by  the  jury,  would  have  been  strongly  corroborative 
of  his  other  assertion  that  he  had  not  intentionally  misreprer 
sented  the  facts.  It,  therefore,  was  competent  for  tiie  district 
attorney  to  cross-examine  him  upon  this  subject.  '  This  elicited 
the  admission,  that,  at  the  time  when  tiie  defendant  was  mak- 
ing these  statements  to  the  city  controller  and  others  as  au 
excuse  for  not  paying  over  these  public  moneys,  he,  personally, 
was  receiving  quarterly  interest  on  the  same,  from  the  banks  in 
which  they  were  deposited.  This  admission  strongly  tended^ 
not  only  to  rebut  the  theory  of  mistake  set  up  in  his  direct 
examination  and  thus  to  discredit  him  as  a  witness,  but  also  to 
show  that  he  had  a  personal  interest  to  be  served  in  making  the 
false  and  misleading  statements,  and  in  withholding  the  money. 
This  was  pertinent  cross-examination :  Fulmei:  v.  Com.,  97  Pa» 
503. 

Incidentally,  the  defendant's  admission  tended  to  show  a  vior 
lation  of  the  63d  section  of  the  act  of  1860  which  prohibits  offi*- 
cers  from  entering  into  any  contract  or  agreement  with  any 
bank  by  which  such  officer  is  to  derive  any  benefit,  gain  or 
advantage  from  the  deposit  with  such  bank  of  any  money  which 
may  be  in  his  possession  or  under  his  control  by  virtue  of  his 
office.  This  is  a  distinct  and  independent  offense,  but  it  does 
not  necessarily  follow  that  proof  of  it  was  inadmissible  on  the 
trial  of  the  indictment  framed  under  the  65th  section.  It  might, 
or  it  might  not  be,  according  to  the  circumstances  of  the  partic- 
ular case  on  trial.  Generally,  evidence  of  the  defendant's  com- 
mission of  another  distinct  and  independent  crime  cannot  be 
received  for  the  purpose  of  proving  his  commission  of  the 


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COMMON WKALTII  v,  HOUSE.  Itf? 

1697.]  Opinion  of  tlie  Court. 

ofifense  for  which  he  is  being  tried.  Yet  under  some  circum- 
stances such  evidence  may  be  given.  **  Thus  it  may  be  to  es- 
tablish identity ;  to  show  the  act  charged  was  intentional  and 
wilful,  not  accidental;  to  prove  motive ;  to  show  guilty  knowl- 
edge and  purpose,  and  to  rebut  any  inference  of  mistake ;  in 
case  of  death  by  poison,  to  prove  the  defendant  knew  the  sub- 
stance administered  to  be  poison ;  to  show  him  to  be  one  of  an 
oi*ganization  banded  together  to  commit  crimes  of  the  kind 
charged ;  and  to  connect  the  other  offense  with  the  one  charged, 
as  part  of  the  same  transaction  : "  Goersen  v.  Com.,  99  Pa.  388  ^ 
Wh.  Cr.  Ev.  sec.  53;  Com.  v.  Johnson,  133  Pa.  293 ;  Com.  v. 
Tadrick,  1  Pa.  Superior  Ct  566;  Com.  v.  Bell,  166  Pa.  405; 
Com.  V.  Cover,  6  Cent.  Rep.  585 ;  Turner  v.  Com.,  86  Pa.  54  ; 
Ferrigan  v.  Com.,  44  Pa.  386 ;  Kramer  v.  Com.,  87  Pa.  299. 
If,  for  example,  one  indicted  for  breaking  and  entering  a  dwelling 
house  with  intent  to  commit  the  felony  of  larceny  should  admit 
the  breaking  but  should  deny  the  intent,  I  take  it  that  upon 
cross-examination  he  could  be  asked  if  he  did  not  commit  the 
larceny.  The  cross-examination  in  the  present  case  was  as  per- 
tinent to  the  matters  testified  to  in  chief  as  would  be  the  cross- 
examination  in  the  case  supposed. 

It  was  earnestly  argued,  when  the  case  was  here  before  that 
the  court  erred  in  refusing  the  request  of  the  defendant's  coun- 
sel to  instruct  him  that  it  was  his  privilege  to  decline  to  answer 
the  questions,  if  his  answers  might  tend  to  criminate  him.  The 
court  committed  no  error  in  refusing  this  request.  The  defend- 
ant is  a  member  of  the  bar,  and  must  be  presumed  to  have 
known  his  rights.  The  privilege  was  not  claimed  by  him  but 
by  his  counsel  for  him.  But  we  do  not  put  our  ruling  upon 
that  ground.  We  are  of  opinion,  that,  even  if  the  defendant 
had  personally  asked  to  be  excused  from  answering  the  ques- 
tions, the  court  would  have  been  justified  in  overruling  hiai 
request.  A  defjgndant  in  a  criminal  case  cannot  be  compelled 
to  testify,  and  under  our  statute  no  inference  can  be  drawn  from, 
nor  comment  be  made  on,  his  failure  to  do  so.  But  by  con-' 
senting  to  take  the  stand,  and  swearing  to  tell  the  truth  and 
the  whole  truth  he  waives  liis  cwwtitutional  privilege,  and  may 
be  cross-examined  in  the  same  manner  as  any  other  witness. 
There  is  this  difference,  however,  between  an  ordinary  witness, 
and  a  defendant  testifying  in  his  own  behalf ;  the  former  goes* 


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108  COMMONWEALTH  v.  HOUSE. 

Optnion  of  the  Court.  [6  Pa.  Superior  Ct 

upon  the  stand  by  compulsion,  the  latter  voluntarily.  Having 
waived  his  constitutional  privilege  to  keep  silent,  he  cannot  give 
testimony  which  makes  in  his  favor,  and  then  object  to  legiti- 
mate cross-examination,  upon  the  ground  that  his  answers  will 
tend  to  criminate  him.  This  doctrine  is  supported  by  the  great 
weight  of  authority :  Wharton's  Cr.  Ev.  sees.  432,  470  ;  State 
V.  Witham,  72  Me.  531 ;  State  v.  Thomas,  98  N.  Carolina,  699 ; 
People  V.  Connors,  50  N.  Y.  240 ;  Com.  v.  Nichols,  114  Mass. 
285 ;  Com.  v.  ToUiver,  119  Mass.  812.  See  also  9  Cr.  L.  Maga- 
zine, 306 ;  State  v.  Ober,  52  N.  H.  459. 

The  power  of  cross-examination  has  been  justly  said  to  be 
one  of  the  principal,  as  it  certainly  is  one  of  the  most  efficacious, 
tests,  which  the  law  has  devised  for  the  discovery  of  truth.  It 
is  not  easy  for  a  witness,  who  is  subjected  to  this  test  to  impose 
on  court  or  jury;  for  however  artful  the  fabrication  of  false- 
hood may  be,  it  cannot  embrace  all  the  circumstances  to  which 
a  cross-examination  may  be  extended:  1  Gr.  Ev.  sec.  446. 
There  is  good  reason  for  not  making  the  test  less  rigid  where 
the  witness  is  a  deeply  intei'ested  party.  The  extent  to  which 
a  defendant  in  a  criminal  case  may  be  subjected  to  this  test  is 
a  question  upon  which  the  authorities  do  not  wholly  agree.  In 
some  of  the  states  of  the  Union  it  is  held  that  he  may  be 
cross-examined  as  to  the  whole  case ;  in  others  that  the  cross- 
examination  should  be  confined  to  facts  and  circumstances  con- 
nected with  matters  stated  in  the  direct^xamination.  In  either 
view  of  the  right  of  cross-examination,  the  court  did  not  trans- 
gress the  rules  of  evidence,  nor  violate  the  defendant's  constitu- 
tional right,  by  holding,  that  the  questions  were  pertinent  to 
the  matters  stated  in  his  direct  examination  and  that  it  was  his 
duty  to  answer  them.  The  facts  admitted  were  pertinent  to 
the  issue,  and  the  admissions  were  not  obtained  by  illegal  com- 
pulsion. 

The  second  assignment  of  error  is  overruled. 

Plainly  stated,  tiie  question  raised  by  the  first  assignment  of 
error  is,  whether  the  defendant  in  an  indictment  for  a  mis- 
demeanor can  be  denied  the  right  to  be  present  when  the  court 
charges  the  jury  in  his  case,  and  the  conviction  be  sustained  ? 
We  use  the  word  "  denied  '*  advisedly,  for  while  the  defendant 
was  not  forcibly  excluded  from  the  court  room,  and  while  there 
is  not  the  slightest  evidence  or  intimation  that  the  learned  and 


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COMMONWEALTH  v.  HOUSE.  109 

1897.]  Opinion  of  the  Court. 

impartial  trial  judge  intended  to  deprive  him  of  any  legal  right, 
3'et  the  practical  effect  of  his  calling  the  jury  into  the  court 
room^  after  the  court  had  regularly  adjourned  for  the  day  and 
then  advising  them  as  to  their  duties  as  jurors,  and  instructing 
them  as  to  the  law  of  the  case,  in  the  absence  of  the  defendant 
and  his  counsel,  and  without  any  effort  to  notify  them  to  be 
present  was  to  deny  him  the  right  to  be  present.  He  was  not 
bound  to  remain  in  the  court  room  after  the  court  had  adjourned 
for  the  day.  He  had  a  right  to  presume  that  no  further  instruc- 
tions would  be  given  to  the  jury,  either  there  or  elsewhere, 
during  the  adjournment.  No  waiver  or  consent  can  be  implied 
from  his  absence  under  the  circumstances  stated  in  the  bill  of 
exceptions.  He  must  be  considered  ^^  as  standing  upon  all  his 
legal  rights  and  waiving  none  of  them ; "  and  one  of  them  was 
the  right  to  be  present  either  in  person  or  by  counsel  when  his 
case  was  being  tried.  We  cannot  conceive  of  a  trial  for  a 
crime  resulting  in  forfeiture  of  the  citizen's  liberty  where  the 
law,  or  the  court  in  the  administration  of  it,  can  deny  him  the 
privilege  of  being  present.  The  right  is  inherent  in  the  very 
nature  of  the  proceeding,  and,  moreover,  is  secured  to  him  in 
the  fundamental  law.  "It  is  his  right  to  have  everybody  know 
for  what  he  \&  tried,  and  why  he  is  condemned,  and  to  witness 
the  tone,  manner,  and  temper  of  his  prosecution,  that  he  may 
be  subjected  to  no  other  influence  than  truth  and  law ;  nor  is 
he  bound  at  all  to  trust  the  court  or  the  judge  in  this  matter. 
It  is  his  great  privilege,  and  no  power  can  impair  it: "  Kirk  v. 
State,  14  Oh.  511.  Although  the  accused  may  waive  the  right 
to  be  present  in  misdemeanors,  yet  the  court  cannot  deprive 
him  of  it.  Nor  can  its  action  in  doing  so  (however  well  intended 
and  however  free  from  arbitrariness)  be  justified  by  balancing 
probabilities  as  to  the  injury  done  to  him  in  the  particular  case. 
''  In  all  criminal  prosecutions,  the  accused  hath  a  right  to  be 
heard  by  himself  and  his  counsel,  to  demand  the  nature  and 
cause  of  the  accusation  agamst  him,  to  meet  the  witnesses  face 
to  face  "  is  the  language  of  our  Declaration  of  Rights,  and  by 
fair  implication  it  secures  the  right  to  be  present,  not  only  when 
the  witnesses  are  testifying,  but  ako  when  the  jury  are  being 
instructed  as  to  their  duties,  and  as  to  the  facts  and  law  of  the 
case.  For,  how  can  he  be  heard,  if  neither  he  nor  his  counsel 
has  an  opportunity  to  be  present?    To  deprive  him  of  this  priv< 


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110  COMMONWEALTH  v,  HOUSE. 

Opinion  of  the  Court.  [6  Pa.  Superior  Ct. 

ilege  is,  of  itself,  error,  if  the  instructions,  although  free  from 
en'or,  might  have  influenced  the  verdict  against  hira.  Such 
error  cannot  be  wholly  cured  by  putting  the  instructions  in 
wi'iting  after  the  rendition  of  verdict  and  allowing  the  defend- 
ant an  exception ;  for,  if  he  or  his  counsel  had  been  present, 
explanatory  instructions  might  have  been  asked  and  given, 
which,  for  aught  we  know,  might  have  produced  a  dififerent 
result.  This  consideration,  alone,  shows  the  importance  of  the 
right  secured  to  the  accused,  if,  indeed,  argument  be  needed 
to  prove  it. 

It  seems  hardly  necessarj'^  to  say,  that  instructions  given  to  a 
jiiry  after  they  have  retired  to  deliberate  upon  their  verdict,  of 
the  character  of  those  embraced  in  the  bill  of  exceptions,  are  as 
much  a  part  of  the  trial  as  the  original  instructions.  The  rea- 
sons why  the  accused  should  have  the  privilege  of  being  present 
are  as  vital  in  the  former  case  as  in  the  latter.  As  was  said  in  a 
New  York  case,  where  this  question  was  considered,  they  may 
"influence  the  verdict  quite  as  much,  if  not  more,  than  the  in- 
structions given  before  the  jury  retired : "  Maurer  v.  People, 
43  N.  Y.  1.  We  may  fairly  assume  that  they  had  an  influence 
upon  the  verdict  in  the  present  case ;  for,  although  the  jury  had 
been  out  for  twenty-four  hours,  they  agreed  upon  a  verdict 
within  an  hour  after  the  additional  instructions  were  given. 
We  are  not  to  be  understood  as  intimating,  even,  that  the  pre- 
siding judge  brought  any  improper  influence  to  bear  upon  the 
jury,  or  that  the  instructions  were  erroneous  in  themselves. 
The  question  does  not  turn  upon  the  legal  correctness  or  in- 
correctness of  the  instructions,  but  upon  the  right  of  the  trial 
judge,  during  the  iidjoumment  of  court,  in  the  absence  of  the 
accused  and  his  counsel,  and  without  attempt  to  notify  either 
of  them  to  be  present,  to  give  any  instiiictions  that  might  in- 
fluence the  juiy  to  bring  in  a  verdict  against  him. 

So  important  to  the  accused  is  this  right  to  be  present  when 
his  case  is  being  tried,  that  it  was  at  one  time  held  that  Beitiier 
he  nor  his  counsel  could  waive  it  in  any  feloi^  case.  "  It  is 
undoubtedly  error,"  said  Chief  Justice  Gibson,  "  to  try  a  per- 
son for  felony  in  his  absence,  even  wifli  his  consent.  It  would 
be  contrary  to  the  dictates  of  bmnanity  to  let  him  waive  the 
advantage  which  a  view  of  bur  sad  plight  might  give  him  by 
inclining  the  hearts  of  the  jurors  to  listen  to  his  defense  with 


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COMMONWEALTH  v.  HOUSE.  Ill 

1S97.]  Opinion  of  the  Court. 

indulgence.  Never  has  there  heretofore  been  a  prisoner  tried 
for  felony  in  his  absence : "  Prine  v.  Com.,  18  Pa.  103.  The 
Supreme  Court  modified  this  ruling,  so  far  as  it  applied  to  the 
felony  of  larceny,  to  the  extent  of  holding  that  *'  voluntary  ab- 
sence when  the  verdict  is  received  is  an  error  of  which  he  can- 
not complain:"  Lynch  v.  Com.,  88  Pa.  189.  Possibly  there 
should  be  the  same  modification  of  the  rule  laid  down  by  Chief 
Justice  Gibson  in  other  felonies  triable  in  the  quarter  sessions. 
Be  that  as  it  may,  in  this  case  the  defendant's  absence  was  not 
voluntary.  He  consented  to  nothing  and  waived  no  right ;  and 
no  Pennsylvania  case  has  held,  or,  as  we  firmly  believe,  ever 
will  hold,  that  a  defendant,  whether  indicted  for  a  felony  or  a 
misdemeanor,  can  be  tried  in  his  absence,  unless  he  has  ex- 
pressly or  impliedly  waived  the  right  to  be  present. 

Unquestionably  the  court  has  discretionary  power,  of  its  own 
motion,  to  recall  the  jury  and  give  them  fuither  instructions,  or 
%vithdraw  or  correct  erroneous  instructions.  As  far  as  we  are 
informed  the  usage  of  the  courts  of  the  commonwealth  has  been 
to  give  such  additional  instructions  only  in  open  court,  and  this 
is  the  safer  and  the  better  practice.  At  all  events  this  much  is 
established  by  the  overwhelming  weight  of  authority  that  it  is 
reversible  error  to  give  them  after  the  adjournment  of  court  in 
the  absence  and  without  the  knowledge  of  the  parties  or  their 
counsel :  McNeil  v.  State,  47  Ala.  498 ;  Collins  v.  State,  38  Ala. 
434 ;  Wade  v.  State,  12  Ga.  25 ;  Fisher  v.  People,  23  111.  283 ; 
Crabtiree  v.  Hagenbaugh,  23  111.  349 ;  Fish  v.  Smith,  12  Ind. 
563 ;  O'Connor  v.  Guthrie,  11  Iowa,  80 ;  Sargent  v.  Roberts,  18 
Mass.  337 ;  Merrill  v.  Nary,  92  Mass.  416 ;  Read  v.  Cambridge, 
124  Mass.  567 ;  Benson  v.  Clark,  1  Cow.  258 ;  Moody  v.  Pome- 
roy,  4  Den.  115 ;  Taylor  v.  Betaford,  13  Johns.  487;  Bank  v. 
Mix,  51  N.  Y.  558 ;  People  v.  Maurer,  43  N.  Y.  1 ;  Hoberg  v. 
State,  3  Minn.  262 ;  Kirk  v.  State,  14  Ohio,  511 ;  State  v.  Pat- 
terson, 45  Vt.  308. 

*•  Against  this  weight  of  authority  "  (quoting  from  the  opin- 
ion of  Mr.  Justice  Gbay  in  Read  v.  Cambridge,  supra),  "  the 
only  cases  brought  to  our  notice  which  countenance  a  different 
rule  are  two  in  New  Hampshire  and  one  in  S.  Carolina,  And 
in  the  latter  the  point  adjudged  related  only  to  insti-uctions  as 
to  the  form  of  the  verdict  given  by  the  judge  to  the  foreman  in 
open  court;  and  the  criticism  upon  the  judgment  of  this  court 


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X12  COMMONWEALTH  v.  HOUSE. 

Opinion  (»f  the  Court.  [6  Pa.  Superior  Ct. 

in  Sargent  v.  Roberts,  (18  Mass.  337,)  was  based  upon  the  sin- 
gular theory  that  the  intercourse  between  the  jury  and  the  bench 
is  so  confidential  that  often  communications  from  the  jury  ought 
not  to  be  disclosed  to  the  bar/'  The  New  Hampshire  decisions 
called  to  our  attention  relate  only  to  the  practice  in  civil  cases 
and  do  not  discuss  the  right  of  the  accused  in  criminal  prosecu- 
tions. Moreover,  if  additional  instructions  are  given  during  the 
recess  the  precaution  is  taken  to  put  them  in  writing,  and  to  re- 
quire the  jury  to  return  them  with  their  verdict ;  so  that  no  ques- 
tion can  ever  arise  as  to  what  the  instructions  were.  In  Meece  v. 
Com.,  78  Ky.  586,  the  additional  instructions  were  given  in  open 
court ;  they  were  beneficial  to  the  defendant ;  and  his  counsel  was 
present.  In  Davis  v.  State,  14  Ind.  358,  the  defendant  had  notice 
that  the  court  would  meet  at  the  ringing  of  the  bell  to  receive  the 
verdict  All  that  was  decided  in  State  v.  Pike,  65  Me.  Ill  was, 
tliat "  there  is  no  rule  of  law  requiring  the  court  to  send  for  coun- 
sel who  choose  to  absent  themselves  while  their  cases  are  being 
considered  by  the  jury,"  To  the  same  eflEect  is  Com.  v.  Kelley, 
165  Ma3S.  175.  ^^  In  contemplation  of  law  the  parties  and  their 
counsel  remain  in  court  until  a  verdict  lias  been  rendered,  or 
the  jury  discharged  from  rendering  one : "  Cooper  v.  Morris, 
48  N.  J.  L.  607.  Let  this  be  gmnted ;  but  surely  it  cannot  be 
contended,  that  it  is  their  duty  to  remain  in  the  court  room,  after 
the  court  has  been  regularly  adjourned  for  the  day.  None  of 
these  cases  sustain  the  contention  of  the  commonwealth  in  the 
present  case. 

The  assignment  of  error  under  consideration  is  not  based  on 
a  ^'  mere  technical  nicety,"  but  raises  a  question  of  substantial 
right,  as  well  as  a  question  of  practice  of  the  highest  importance 
in  the  administration  of  criminal  justice.  If  one  instruction 
may  be  given  in  the  absence  of  the  accused  and  without  his 
knowledge,  there  is  no  good  reason  why  the  whole  of  the  in- 
structions may  not  be  given  in  his  absence  and  without  his 
knowledge.  So  also,  if,  after  the  regular  adjournment  of  the 
court,  in  the  absence,  and  without  the  knowledge,  of  the  ac- 
cused, or  of  his  counsel,  the  trial  judge  may  call  the  jury  into 
the  court  room  and  there  instruct  them  as  to  the  law  of  the 
case,  and  as  to  the  bearing  of  the  evidence,  we  see  no  reason 
why  he  may  not  call  them  to  his  chambers,  or  go  to  their  room 
for  the  same  purpose.     Conceding  that  the  convenience  of 


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COMMONWEALTH  v.  HOUSE.  118 

1897.]  Opinion  of  the  Court. 

jurors  would  sometimes  be  subserved  if  the  trial  judge  had  such 
power,  and  also  that  the  power  would  be  lodged  in  hands  highly- 
responsible  for  the  exercise  of  it,  nevertheless,  it  would  be  liable 
to  abuse.  It  is  better  that  jurors,  in  exceptional  cases,  suffer 
some  slight  inconvenience  than  that  countenance  be  given  to  a 
practice,  which,  followed  to  its  logical  results,  would  destroy 
one  of  the  safeguai-ds  of  the  accused,  which  reason  and  experi- 
ence combine  to  show  is  of  the  highest  value.  It  has  been  well 
said  of  another  constitutional  guaranty  and  may  be  said  as  ap- 
propriately here:  "It  is  the  capability  of  abuse  and  not  the 
probability  of  it,  which  is  regarded  in  judging  of  the  reasons 
which  lie  at  the  foundation,  and  guide  in  the  interpretation  of 
constitutional  restrictions : "  Emery's  Case,  107  Mass.  172. 
"  There  is  no  more  sacred  duty  of  a  court  than,  in  a  case  prop- 
erly before  it,  to  maintain  unimpah'ed  those  securities  for  the 
personal  rights  of  the  individual  which  have  received  for  ages 
the  sanction  of  the  jurist  and  the  statesman ;  and  in  such  cases 
no  narrow  or  illiberal  construction  should  be  given  to  the  words 
of  the  fundamental  law  in  which  they  are  embodied : "  Mr.  Jus- 
tice MiLLEB  in  Ex  parte  Lange,  85  U.  S.  163. 

We  do  not  think  we  have  overestimated  the  importance  of  the 
question ;  for  we  are  firmly  convinced  that  to  hold  the  error 
complained  of  to  be  harmless  would  be,  virtually,  to  deny  the 
right  of  the  accused  to  be  present  at  an  important  part  of  his 
trial,  and  would  establish  a  dangerous  precedent,  contrary  to 
the  just  and  humane  principles  of  the  fundamental  law,  and  in- 
consistent with  orderly  procedure,  and  long  established  usage 
as  shown  by  the  adjudged  cases.  It  is  better  that  this  case 
should  be  tried  a  third  time  than  that  such  a  precedent  should 
be  established. 

The  judgment  is  reversed  and  a  venire  facias  de  novo  awarded. 
Vol.  VI— 8 


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114  ANDERSON  v.  McMICHAEL. 

Syllabus— Arguments.  [6  Pa.  Superior  Ct. 


H.  P.  Anderson,  Appellant, ».  Cecil  McMichael  and  Wil- 
liam Snyder. 

Appeals— Interlocutory  order— Praciice,  Superior  Court. 

No  appeal  lies  from  an  order  of  the  common  pleas  refusing  a  rule  to 
show  cause  why  an  appeal  from  a  magistrate  should  not  be  dismissed, 
appellants  having  failed  to  make  an  affidavit  required  by  the  Act  of  July  14, 
1897,  P.  L.  271,  provided  that  the  proper  affidavit  is  made  within  fifteen 
days.  Such  order  is  interlocutory  and  is  neither  a  final  judgment  nor  an 
order  in  the  nature  thereof,  and  an  independent  appeal  does  not  lie.  Tost 
V.  Davison,  6  Pa.  Superior  Ct.  469,  followed. 

Argued  Nov.  19, 1897.  Appeal,  No.  164,  Oct.  T.,  1897,  by 
plaintiff,  from  order  of  C.  P.  Chester  Co.,  discharging  rale  to 
show  cause  why  an  appeal  from  a  magistrate  should  not  be  dis- 
missed. Before  Rice,  P.  J.,  Wiokham,  Beaver,  Reedeb, 
Orlady,  Smith  and  Porter,  JJ.     Appeal  quashed. 

Appeal  from  judgment  of  magistmte. 

It  appears  from  the  record  that  judgment  was  rendered  by  a 
magistrate  in  favor  of  the  plaintiff  for  $19.75.  On  July  26, 
1897,  appeal  filed  and  entered.  On  September  27, 1897,  a  rule 
was  granted  to  show  cause  why  the  appeal  should  not  be  dis- 
missed for  the  reason  that  defendant  had  failed  to  make  the 
affidavit  required  by  the  Act  of  July  14,  1897,  P.  L.  271.  On 
October  11, 1897,  the  court  dismissed  the  rule  under  considem- 
tion,  provided  the  proper  affidavit  is  made  within  fifteen  days 
from  date.    Plaintiff  appealed. 

Error  asHgned  was  to  the  order  of  the  court,  dismissing  the 
rule  to  show  cause  why  appeal  should  not  be  dismissed,  based 
on  the  admitted  fact  that  the  appellant  did  not  make  the  affi- 
davit required  by  law. 

W.  iS.  ffarris^  for  appellant,  cited  Act  of  July  14,  1897, 
P.  L.  271,  Cressman  v.  Bossing,  9  Atl.  191,  and  Wilson  v.  Kelly, 
81  Pa.  411. 

Thomas  W.  Pierce^  for  appellee. 

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ANDERSON  v,  MoMICHAEL.  115 

1897.]  Opinion  of  Oie  Court. 

Pbr  Cubiam,  December  IS,  1897 : 

The  question  raised  by  the  motion  to  quash  is  ruled  by  our 
decision  in  Yost  v.  Davison,  6  Pa.  Superior  Ct,  469,  and  the 
cases  there  cited,  and  needs  no  discussion.  The  order  appealed 
from  is  neither  a  final  judgment  nor  an  order  in  the  nature  of  a 
final  judgment,  but  is  interlocutory,  and  from  it  an  independent 
appeal  does  not  lie. 

The  appeal  is  quashed  at  the  cost  of  the  appellant  and  the 
i:ecord  remitted  with  a  procedendo. 


James  W.  Cooke  and  Lydia  S.  Cooke,  Trustee,  trading 
as  Cooke  &  Co.,  v.  J.  Edward  Addicks,  Appellant. 

Lex  loci — Lex  fort — Promissory  note — Irregular  itidorsement. 
The  right  to  introduce  proof  dehors  the  instrument  for  the  purpose  of 
showing  what  in  fact  the  contract  was,  is  an  essential  part  of  the  contract 
itself,  and  is  not  a  mere  incident  to  the  remedy.    Such  right  being  secured 
to  a  New  Jersey  conti'act  the  lex  loci  goyems  and  not  the  lex  foil. 

An  irregular  indorsement  of  a  promissory  note  executed  in  New  Jersey 
may  in  a  suit  on  said  note  in  Pennsylvania  be  shown  to  be  a  contract  of 
surety  in  accoi*dance  with  lex  loci. 

Argued  Oct  12, 1897.  Appeal,  No.  89,  Oct.  T.,  1897,  by  de- 
fendant, from  judgment  of  C.  P.  No.  2,  Phila.  Co.,  Sept.  T.,  1895, 
No.  706,  overruling  demurrer  to  statement.  Before  Rice,  P.  J., 
WiCKHAM,  Bbavee,  Rebdbb,  Smith  and  Portee,  JJ.  Af- 
firmed. 

Assumpsit  on  a  promissory  note. 

It  appeared  from  the  record  that  plaintiffs  sued  upon  a  note 
made  by  the  Staten  Island  Terra  Cotta  Lumber  Co.  to  them, 
and  irregularly  indorsed  by  the  defendant,  J.  E.  Addicks,  and 
subsequently  indorsed  by  the  plaintiffs. 

In  the  statement  it  was  alleged  by  the  plaintiffs  that  defend- 
ant did,  in  consideration  of  forbearance  on  their  part,  agree  and 
undertake  to  become  personally  liable  to  them  as  surety  for  said 
note  and  that  in  pursuance  of  this  agreement  and  understand- 
ing the  note  was  executed,  indorsed  by  defendant,  and  deliv- 
ered to  the  plaintiffs  in  the  state  of  New  Jersey,  where  it  was 


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116  COOKE  u,  ADDICKS. 

Statement  of  Facta— Arguments.    [6  Pa.  Superior  Ct. 

to  be  payable,  and  that  the  application  of  the  law  of  the  state  of 
New  Jersey,  under  the  decisions  of  the  courts  thereof  to  the  facts 
as  therein  stated,  made  the  defendant  liable  on  the  note  to  the 
plaintiffs  as  surety. 

There  was  no  evidence  of  any  agreement  on  the  part  of  the 
defendant  by  any  writing  signed  by  him  saving  and  excepting 
the  note. 

Defendant  demurred  on  the  ground  that  the  action  could  not 
be  brought  in  Pennsylvania,  because  of  the  first  section  of  the 
Act  of  AprU  26, 1855,  P.  L.  308. 

Judgment  for  plaintiffs  on  demurrer.  Damages  assessed  at 
9^16.38.    Defendant  appealed. 

jError  asngned  was  overruling  defendant's  demurrer. 

0,  Berkeley  Taylor^  for  appellant. — This  action  cannot  be  sus- 
tained under  the  statute  of  frauds  in  Pennsylvania:  Act  of 
April  26, 1855,  P.  L.  308 ;  Schafer  v.  Bank,  59  Pa.  144. 

It  is  well  settled  that  although  the  lex  loci  contractus  gov- 
erns the  construction  of  a  contract,  the  lex  fori  governs  the 
remedy,  both  as  to  the  bringing  of  a  suit,  and  as  to  the  evidence 
to  be  produced :  Leroux  v.  Brown,  12  Common  Bench,  801. 

Although  this  case  has  been  criticised  it  has  been  followed 
steadily  in  England:  Williams  v.  Wheeler,  8  C.  B.  N.  S.  299; 
(Jibson  V.  Holland,  L.  R.  1,  C.  P.  1.  Finally  in  1879,  in  Bri- 
tain V.  Rossiter,  11  L.  R.  Q.  B.  D.  124 ;  Downer  v.  CheselMX)ugh, 
36  Conn.  39;  Pritchard  v.  Norton,  106  U.  S.  124. 

H.  U.  Oarsed^  for  appellees. — The  plaintiff  submits,  there- 
fore, that  the  promise  of  the  defendant  to  pay  according  to  the 
terms  of  the  note  was  a  contract  made  in  New  Jersey  to  be  per- 
formed in  that  state,  and  of  course  is  governed  by  the  law 
of  New  Jersey,  where  the  rule  established  in  Pennsylvania,  in 
Schafer  v.  Bank,  59  Pa.  144,  not  only  is  not  recognized,  but  di- 
rectly the  opposite  rule  is  established. 

In  the  leading  case  of  Chaddock  v.  Vanness,  35  N.  J.  L.  517, 
where  the  facts  were  identical  with  those  of  the  case  at  bar,  a 
rule  directly  opposite  of  the  Pennsylvania  rule  was  adopted. 

So  far  as  the  statute  of  frauds  is  concerned,  it  is  of  no  conse- 
quence whether  the  defendant  is  regarded  as  an  indorser,  guar- 
antor or  maker. 


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COOKE  V.  ADDICKS.  117 

1897.]  Arguments — Opinion  of  the  Court. 

The  doctrine  of  this  case  was  reasserted  in  Haydon  v.  Wel- 
don,  43  N.  J.  Law,  128,  and  in  Johnson  v.  Ramsey,  48  N.  J. 
Law,  279,  and  again  in  Building,  etc.,  Society  v.  Leeds,  50 
N.  J.  Law,  899,  where  the  court,  by  Mr.  Chief  Justice  Bbas- 
LBr,  said :  "  Over  sixteen  years  ago  this  court,  in  the  case  of 
Chaddock  v.  Vanness,  85  N.  J.  L.  517,  decided  that  the  signar 
ture  of  a  third  person  on  the  back  of  a  negotiable  note,  before 
it  was  put  in  circulation  by  the  maker,  neither  expressed  nor 
implied,  by  its  own  intrinsic  signification,  any  contract  whatever 
on  the  part  of  such  indorsers." 

The  right  of  the  plaintiflE  to  show  the  real  nature  and  exact 
terms  of  the  defendant's  contract  is  not  matter  of  remedy  and 
governed  by  the  law  of  the  forum,  but  is  an  essential  part  of 
the  contract  itself,  and  controlled  by  the  law  of  the  place  where 
the  contract  was  made :  Forepaugh  v.  Railroad  Co.,  128  Pa.  217 ; 
Coup  V.  Railroad  Co.,  56  Mich.  Ill ;  Tenant  v.  Tenant,  110 
Pa.  478 ;  Sea  Grove  Building  Assn.  v.  Stockton,  148  Pa.  146. 

The  precise  question  at  issue  in  the  case  at  bar  was  deter- 
mined in  Baxter  National  Bank  v.  Talbot,  154  Mass.  218,  where 
the  principle  upon  which  reliance  is  here  placed  was  laid  down 
and  the  leading  case  of  Forepaugh  v.  Railroad  Co.,  128  Pa. 
217,  was  relied  upon. 

Opinion  by  Pobteb,  J.,  November  19, 1897 : 
This  is  an  appeal  from  the  order  of  the  court  below  overrul- 
ing a  demurrer  to  the  plaintiflTs  statement  of  claim.  The  prom- 
issory note  set  forth  in  the  statement  was  made  in  New  Jersey, 
by  a  New  Jersey  corporation.  It  was  indorsed  by  the  defend- 
ant in  New  Jersey  and  was  to  be  paid  in  that  state.  Nothing 
is  lacking  to  make  it  a  New  Jersey  contract.  The  defendant 
irregularly  indorsed  the  note  by  placing  his  signature  above  that 
of  the  payee.  In  respect  thereto  the  plaintiffs  aver  in  their 
statement  that  ^  when  the  said  defendant  indorsed  the  note  he 
did  ....  promise  and  agree  to  become  and  did  become  surety 
to  the  plaintiffs  for  the  payment  of  the  said  note,  and  as  evidence 
of  and  in  pursuance  of  said  agreement,  did  so  indorse  the  note." 
By  evidence  dehors  the  writing  the  plaintiffs  thus  propose  to 
prove  that  the  irregular  indorsement  was  in  fact  agreed  to  be  a 
contract  of  suretyship.  This  under  the  law  of  New  Jersey,  is 
clearly  admissible,  and,  under  the  law  of  Pennsylvania,  as  clearly 


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118  COOKE  V.  ADDICKS. 

Opinion  of  the  Couit.  [6  Pa.  Superior  Cfc. 

inadmissible.  The  contract  was  made  in  New  Jersey.  It  is 
sought  to  be  enforced  in  Pennsylvania.  If  lex  loci  contractus 
is  applicable,  the  plaintiffs  are  entitled  to  judgment  on  the 
demurrer.  If  lex  fori  governs,  the  court  below  has  erred.  We 
are  of  opinion  that  the  former  applies  and  hold  that  the  right  to 
introduce  the  proof  dehors  the .  instrument  for  the  purpose  of 
showing  what  in  fact  the  contract  was,  is  an  essential  part  of 
the  contract  itself,  and  is  not  a  mere  incident  to  the  remedy. 
It  was  a  right  given  by  the  law  of  the  place  of  the  making  of 
the  contract,  in  contemplation  of  which  the  parties  must  be  held 
to  have  contracted. 

In  Forepaugh  v.  D.,  L.  &  W.  R.  R.,  128  Pa.  217,  Tenant  v. 
Tenant,  110  Pa.  478,  and  Sea  Grove  Association  v.  Stockton, 
148  Pa.  146,  the  Supreme  Court  has  enforced  the  obligation  of 
contracts  made  in  other  states  containing  provisions  quite  as 
much  at  variance  with  the  policy  of  the  law  of  Pennsylvania  as 
those  in  the  present  case.  These  cases,  while  not  directly  in 
point,  substantially  sustain  the  view  of  the  law  we  take  in  this 
case.  They  are  fortified  by  the  case  of  Baxter  National  Bank  v. 
Talbot,  154  Mass.  213,  wherein  a  similar  question  was  discussed 
at  length  and  determined, — the  case  of  Forepaugh  v.  D.,  L.  & 
W.  R.  R.,  supra,  and  many  other  authorities,  being  cited  as 
authority. 

We  therefore  hold  that  the  plaintiffs  are  entitled  to  the  en- 
forcement of  their  contract  as  set  forth  in  their  statement  of 
claim,  and  that  the  judgment  on  the  demurrer  must  be  sustained. 

Judgment  affirmed. 


Samuel  Russell  v.  The  Spring  City  Glass  Works,  Liniited, 

Appellant. 

JEvidence^WriUen  agreement— Modification  thereof  by  oral  agreement. 

A  written  agreement  may  be  modified  or  set  aside  by  parol  evidence  of 
an  oi*al  promise  or  undertaking,  material  to  the  subject-matter  of  the  con- 
tract, made  by  one  of  the  parties  at  the  time  of  the  writing,  which  induced 
the  other  party  to  put  his  name  to  it ;  but  where  the  parties  met,  discussed 
tlie  contract  and  separated,  with  instructions  to  plaintiff  to  write  out  the< 
agreement  subsequently  made,  and  both  parties  signed  the  agreement 
thus  prepared  without  objection,  no  evidence  of  what  was  said  at  the  fii-st 


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RUSSELL  V.  GLASS  WORKS.  119 

1897.]  Syllabus — Assignment  of  Errors. 

meeting  will  be  admitted.  It  is  not  error  for  the  court  to  exclude  from 
the  consideration  of  the  jury  negotiations  which  the  paities  themselves  ex- 
cluded from  the  contract. 

Argued  Nov.  16, 1897.  Appeal,  No.  49,  Oct.  T.,  1897,  by 
defendant,  from  judgment  of  C.  P.  Chester  Co.,  April  T.,  1896, 
No.  18,  on  verdict  for  plaintiff.  Before  Rice,  P.  J.,  Wickham, 
Beatbb,  Orlady,  Smith  and  Portbb,  JJ.    Afl&rmed. 

Assumpsit  to  recover  f  750  salary  due  under  a  written  con- 
tract.   Before  Waddell,  P.  J. 

The  plaintiff  claimed  a  balance  due  from  the  defendant  as 
salaiy  under  a  written  contract.  The  defense  was  based  on  cer- 
tain parol  evidence  tending  to  vary  the  terms  of  the  written  con- 
tract which  the  defendant  alleged  to  have  been  the  inducement 
or  moving  cause  for  signing  said  written  contract. 

The  court  below  excluded  the  offer  of  the  parol  evidence  from 
the  consideration  of  the  jury  and,  on  motion,  a  new  trial  was  re- 
fused in  an  opinion  by  Waddell,  P.  J.,  reported  in  6  Dist.  Rep. 
458- 

Other  facts  appear  in  the  opinion  of  the  court. 

Verdict  and  judgment  for  plaintiff  for  1830.62.  Defendant 
appealed. 

JErrors  assigned  were,  (1)  in  the  answer  by  the  court  to  the 
plaintiff's  first  point.  The  point  and  answer  are  as  follows: 
^^1.  There  is  nothing  in  the  facts  which  took  place  antecedent 
to  the  mcJdng  of  the  contract  in  writing  or  in  its  procurement 
to  avoid  it  or  to  vary  the  terms  of  it.  Answer :  I  affirm  that 
point.  You  will  understand  from  that,  as  has  already  been  said 
in  your  hearing,  that  we  have  eliminated  from  this  case  all  that 
took  place  prior  to  the  signing  of  this  agreement,  what  was  said 
and  done  prior  to  the  time  the  agreement  was  executed,  to  wit : 
July  7th,  I  think,  and  you  have  nothing  to  say  about  that.  We 
have  said  iha,t  that  does  not  effect  the  solution  of  this  case,  and, 
therefore,  counsel  have  not  turned  their  attention  to  that  in  their 
argument,  because  we  took  occasion  to  say  in  the  early  stage  of 
the  argument  that  ixk  our  judgment  it  has  nothing  to  do  with 
this  case.  Although  we  admitted  it,  in  our  opinion  the  proois 
did  not  come  ujx  to  the  requirements  of  the  law,  and,  therefore, 
it  is  to  be  dis^egaided  by  the  jury.*'  (2)  In  answer  to  plain- 
tiffs secojod  foixAy  which  point  and  answer  are  as  follows: 


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120  RUSSELL  v,  GLASS  WORKS. 

Assignment  of  fhrors— Arguments.  [6  Pa.  Superior  Ct. 

"  2.  If  the  jury  believe  that  the  plaintiff  performed  his  part  of 
the  written  contract  in  good  faith,  and  to  the  best  of  his  ability, 
he  was  illegally  discharged.  Answer :  I  have  already  said  that  to 
you  in  substance  and  I  afiSrm  that  point."  (3)  In  answer  to 
plaintiff's  third  point,  which  point  and  answer  are  as  follows : 
"  3.  Unless  there  was  fraud,  or  bad  faith,  or  gross  inattention 
on  the  part  of  the  plaintiff  in  his  performance  of  the  written 
contract,  he  was  illegally  discharged.  Answer :  I  aflBrm  that 
point.  I  have  already  virtually  so  said  in  ray  charge  to  you." 
(4)  In  answer  to  defendant's  fourth  point,  which  point  and  an- 
swer are  as  follows:  "4.  If  the  jury  find  that  the  contract  in 
suit  was  executed  by  the  defendants  on  the  promise  and  agree- 
ment of  the  plaintiff  that  at  the  time  of  the  execution  of  the 
paper  he  had  a  flint  glass  business  that  netted  him  8600  profit, 
which  profit  the  defendant  would  receive,  that  he  had  an  estal)- 
lished  business  as  a  glass  dealer  amounting  to  from  f40,000  to 
$60,000  a  year,  the  benefit  of  which  the  defendants  would  have 
and  that  he  could  sell  the  entire  product  of  the  defendant's 
factory,  and  if  they  further  find  that  without  these  representa- 
tions the  contract  would  not  have  been  made,  then  the  plaintiff 
cannot  recover  if  these  promises  and  agreements  have  not  been 
.  fulfilled  by  him.  Answer :  I  disaf&rm  that  proposition,  gentle- 
men. I  refuse  to  submit  to  you  those  considerations  that  are 
involved  in  this  point.  If  the  point  liad  said  that  these  repre- 
sentations were  false,  then  I  might  have  afQrmed  it.  But  there 
would  be  no  proof,  in  my  judgment,  in  the  case  which  would 
justify  you  in  concluding  that  they  were  untrue.  So  I  refuse 
the  point  and  submit  the  case  to  you  under  the  suggestions 
which  I  have  already  made." 

J.  Frank  E.  Hause^  for  appellant. — The  court  below  erred  in 
not  submitting  to  the  jury  the  question  of  fact  involved  in  de- 
fendant's point :  Phillips  v.  Meily,  106  Pa.  536 ;  Ferguson  v. 
Rafferty,  128  Pa.  837;  Clinch  Valley  Co.  v.  Willing,  180  Pa. 
165. 

Are  the  falsity  of  the  representations  and  the  fraudulent  in- 
tent of  the  party  making  them,  material  inquiries  ?  Renshaw  v. 
Gans,  7  Pa.  117 ;  Rearich  v,  Swinehart,  11  Pa.  233 ;  Lippin- 
oott  V.  Whitman,  83  Pa.  244 ;  Hoopes  v.  Beale,  90  Pa.  82  ; 
Tliomas  v.  Loose,  114  Pa.  85 ;  Greenawalt  v.  Kohne,  85  Pa.  869. 


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RUSSELL  V.  GLASS  WORKS.  121 

1897.]  Arguments — Opinion  of  the  Court. 

The  testimony  offered  by  the  defendant  met  the  measure  of 
proof  required  in  causes  of  this  character :  Thomas  v.  Loose, 
114  Pa.  35;  Fe^uson  v.  Rafiferty,  128  Pa.  837 ;  Smith  v.  Har- 
vey, 4  Pa.  Superior  Ct  877. 

In  order  that  parol  stipulations  may  be  introduced  in  cases  of 
this  character,  it  is  only  necessary  to  show  that  such  stipula- 
tions continued  from  the  time  they  were  made  up  to  the  time  of 
the  actual  execution  of  the  contract :  McGinity  v.  McGinity, 
63  Pa.  46. 

R.  T.  Comwell  and  Herbert  A.  Drake^  for  appellee. 

Opinion  by  Smith,  J.,  December  13, 1897 : 

The  defendants,  who  were  doing  business  as  copartners,  under 
the  name  of  The  Spring  City  Glass  Works,  Limited,  made  a 
written  conti-act  with  the  plaintiff  by  which  they  engaged  him 
as  salesman  for  the  term  of  three  years  from  July  15,  1893,  at 
$1,800  per  year  and  expenses.  The  plaintiff  entered  upon  his 
duties  under  the  contract  and  continued  to  perform  them  until 
December  1, 1894,  when  he  was  discharged  by  the  defendants. 
In  May,  1895,  he  found  other  employment.  He  subsequently 
brought  this  suit  for  wages  for  the  interval  between  December  1, 
1894,  and  May,  1, 1895,  under  the  agreement,  and  recovered  a 
judgment  for  the  amount  of  his  claim. 

At  the  trial,  the  defendants,  to  justify  their  discharge  of  the 
plaintiff,  alleged  that  he  was  negligent  in  the  performance  of 
his  duties.  On  this  subject  testimony  was  introduced  by  both 
parties.  This  question  was  submitted  to  the  jury  who,  by  their 
verdict,  exonerated  the  plaintiff  from  the  charge.  The  princi- 
pal ground  of  complaint  here,  however,  is  that  the  court  below 
erred  in  withdrawing  from  the  consideration  of  the  jury  the  tes- 
timony as  to  what  took  place  prior  to  the  execution  of  the  agree- 
ment, which,  the  appellants  argue,  induced  them  to  sign  the 
contract.  It  is  alleged  that  at  a  meeting  between  the  directors 
of  the  defendant  company  and  the  plaintiff,  a  few  dajrs  before 
the  writing  was  executed,  he  stated  that  he  had  a  flint  glass 
trade  from  which  he  derived  an  annual  profit  of  WOO ;  that  he 
sold,  as  a  glass  broker  or  jobber,  from  $40,000  to  f60,000  worth 
of  glass  annually,  and  that  all  of  this  together  with  his  Phila- 
delphia office  would  be  turned  over  to  the  advantage  of  the  de- 


Digitized  by  VjOOQ IC 


122  RUSSELL  v.  GLASS  WORKS. 

Opinion  of  the  Court.  [6  Pa.  Superior  Ct. 

fendants,  if  be  engaged  with  them.  But  when  they  asked  him 
to  guarantee  tliat  he  would  make  a  certain  amount  of  sales  for 
them — that  he  would  sell  the  product  of  their  factory — he  posi- 
tively refused  to  do  so ;  and  the  written  agreement,  which  he 
submitted  some  days  afterward,  was  signed  by  the  defendants 
without  other  guaranty  or  assurance  than  is  contained  therein. 

The  representations  of  the  plaintiff  related  to  his  business 
standing  and  experience,  and  may  or  may  not  have  been  true. 
Nothing  was  shown  on  the  trial  which  necessarily  disproved 
them,  unless  the  disappointed  expectations  of  the  defendants  be 
accepted  a^  such  proof.  But  the  vital  point  is  that  they  fonned 
no  part  of  the  contract  made  by  the  parties.  This  appears  by 
the  testimony  of  the  defendants  themselves.  It  may  be  that 
the  defendants,  in  making  the  contract,  were  influenced  by  the 
plaintiff's  representations ;  but  there  is  no  evidence  of  falsehood, 
f  i-aud  or  promise  by  which  they  were  induced  to  close  the  bar- 
gain. At  most  the  alleged  i-epresentations  by  the  plaintiff  were 
designed  to  impress  the  defendants  with  a  belief  in  his  ability 
to  sell  their  product ;  but  he  declined  to  bind  himself  to  do  this, 
and  the  stipulation  that  he  would  do  so  was  excluded  from  the 
writing.  Under  these  circumstances  the  learned  trial  judge 
was  right  in  ruling  that  nothing  was  shown  which  would  jus- 
tify the  jury  in  modifying  the  written  contract ;  and  that  all  the 
preliminary  negotiations  were  presumed  to  be  merged  in  the 
written  agreement.  We  are  now  asked  to  say,  substantially, 
that  the  court  below  erred  in  excluding  from  the  consideration 
of  the  jury  that  which  the  parties  themselves  excluded  from 
their  contract. 

The  appellant's  argument  is  based  on  the  assumption  that 
there  was  a  contemporaneous  parol  agreement  on  the  faith  of 
which  the  writing  was  executed  and  without  which  it  would 
not  have  been  signed,  and  authorities  are  cited  for  the  proposi- 
tion that  "  where  there  has  been  an  attempt  to  make  a  fraudu- 
lent use  of  the  instrument  in  violation  of  a  promise  or  agreement 
made  at  the  time  the  instrument  was  signed  and  without  which 
it  would  not  have  been  executed,"  this  may  fee  shown  by  parol, 
even  if  by  doing  so  the  whole  contract  will  be  set  aside.  This 
is  a  correct  statement  of  the  law.  But  the  difl&culty  with  the 
appellant^s  case  is  that  it  fails  to  show  any  contemporaneous 
agreement,  or  any  agreement,  other  than  that  embodied  in  the 


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RUSSELL  V.  GLASS  WORKS.  128 

1897.]  Opinion  of  the  Court. 

writing ;  and  therefore  there  was  nothing  to  which  this  propo- 
sition could  apply.  There  was  here  no  use  of  the  instrument, 
or  any  attempt  to  use  it,  for  any  other  purpose  than  the  one 
for  which  it  was  intended,  or  in  violation  of  any  condition  or 
representation  upon  which  it  was  procured.  The  representa- 
tions referred  to  did  not  constitute  an  agi'eement,  promise  or 
condition  of  any  kind,  and  were,  therefore,  properly  excluded. 

What  has  been  said  su£Bciently  coyers  the  matters  complained 
of  in  the  first  and  fourth  specifications.  The  second  and  third 
specifications  were  not  pressed  at  the  argument;  they  were 
properly  abandoned. 

The  judgment  is  affirmed. 


S.  Abeles,  trading  as  S.  Abeles   &    Company  v.  Fran- 
cina  D.  Powell,  Appellant. 

Promissory  note— Married  woman  as  guarantor— Affidavit  of  defense. 
In  a  suit  on  a  promissory  note  signed  jointly  by  husband  and  wife  an 
affidavit,  on  behalf  of  the  wife,  is  sufficient,  which  avers  coverture,  no 
indebtedness  to  the  plaintiff,  and  that  the  wife  signed  the  note  upon  which 
suit  is  brought  as  a  guarantor. 

PracUcet  Superior  Court — Appeal — Refusal  to  open  after  term  expired. 
The  court  below  is  without  authority  to  open  a  judgment  after  the  end 
of  the  term  at  which  it  was  rendered,  unless  it  be  a  judgment  by  default 
or  confession,  which  cveiy  court  has  power  to  open  without  limit  of  time, 
in  order  to  give  the  parties  a  hearing  or  trial. 

A  judgment  for  want  of  a  sufficient  affidavit  of  defense  is  not  a  judg- 
ment by  default  or  confession. 

Argued  Oct.  15,  1897.  Appeal,  No.  113,  Oct.  T.,  1897,  by 
Francina  D.  Powell,  one  of  the  defendants,  from  judgment  of 
C.  P.  No.  8,  Phila.  Co.,  Dec.  T.,  1896,  No.  1171  for  want  of  a 
sufficient  affidavit  of  defense,  and  from  order  of  discharging 
rale  to  open  judgment  and  quash  attachment  and  let  defendants' 
into  a  defense,  proceedings  to  stay.  Before  Rice,  P.  J.,  Wick- 
ham,  Beaver,  Reedeb,  Orlady,  Smith  and  Porteb,  JJ. 
Reversed.  ' 

Assumpt  on  promissory  note  signed  by  Francina  D.  Powqll, 
and  Samuel  Powell. 


Digitized  by  VjOOQ IC 


124  ABKLES  v.  POWELL. 

Statement  of  Facts — Assignment  of  Errors.    [6  Pa.  Superior  Ct. 

Suit  was  brought  on  a  promissory  note  signed  by  Fran- 
cina  D.  Powell  and  Samuel  Powell.  Francina  D.  Powell,  one 
of  the  defendants,  filed  an  affidavit  of  defense  as  follows : 

"  Francina  D.  Powell,  one  of  the  defendants  in  the  above 
stated  action,  being  duly  sworn,  says  that  she  has  a  true,  just 
and  legal  defense  to  the  whole  of  the  plaintiffs'  claim  of  the 
following  character,  to  wit :  That  she,  the  deponent,  is  the  wife 
of  Samuel  Powell,  one  of  the  defendants  above-named.  That 
she  is  not  indebted  to  the  said  plaintiffs  in  the  above  suit  in 
any  sum  and  never  was,  but,  that  after  the  making  of  the  said 
promissory  note  by  her  husband,  which  is  the  subject  of  this 
suit,  a  representative  of  the  payees  in  the  said  promissory  note, 
culled  upon  her  at  her  residence,  and  alleged  that  it  was  neces- 
saiy  to  have  deponent  affix  her  name  to  said  note,  thereby  in- 
ducing her  to  sign  as  a  guarantor,  and  as  she  is  advised  by 
counsel  and  verily  believes  is  prohibited  by  the  act  of  general 
assembly,  approved  June  3,  1887.  Deponent  further  avers, 
that  she  is  informed  and  verily  believes  and  expects  to  be  able 
to  prove  on  the  trial  of  the  cause,  that  the  above-named  plain- 
tiffs are  not  the  bona  fide  holders  of  said  promissory  note,  but 
that  the  same  is  in  the  possession  of  the  payees,  as  in  the  said 
obligation  named.     All  of  which  deponent  says  is  true." 

The  court  entei'ed  judgment  for  want  of  a  sufficient  affidavit 
of  defense.  Subsequently,  after  the  expiration  of  the  term  on 
which  the  judgment  was  entered,  a  rule  was  taken  to  open  the 
judgment  and  quash  an  attachment,  and  let  defendants  into  a 
defense,  which  rule  was  discharged  in  an  opinion  by  the  court 
l)elow,  as  follows :  "  After  consideration  of  the  depositions  in 
the  above  case,  the  rule  to  open  the  judgment  is  discharged. 
The  court  is  of  the  opinion  that  under  the  authority  of  Hill  v. 
Egan,  2  Pa.  Superior  Ct.  596,  it  is  too  late  to  open  the  judg- 
ment." 

Damages  were  assessed  under  the  judgment  in  favor  of  the 
plaintiff  for  $398.97.    Defendant,  Francina  D.  Powell,  appealed. 

Errors  amgned  were  (1)  In  entering  judgment  against  Fran- 
cina D.  Powell  for  want  of  a  sufficient  affidavit  of  defense. 
(2)  In  discharging  the  rule  to  open  the  judgment  and  let  de- 
fendant, Francina  D.  Powell,  into  a  defense. 


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ABELKS  V.  POWELL.  125 

1897.]  Arguments — Opinion  of  the  Co  int. 

Wm,  F.  Johnson^  for  appellant. — Prior  to  the  passage  of  the 
Married  Person's  Property  Act  of  June  3,  1887,  P.  L.  332,  a 
joint  promise  by  the  husband  and  wife  was  declared  to  be,  in 
law,  but  the  promise  of  the  husband:  Cummings  y.  Miller,  3 
Grant,  146. 

Whilst  the  act  of  1887  was  expressly  repealed  by  the  Act  of 
June  8, 1893,  P.  L.  844,  the  proviso  that  nothing  therein  con- 
tained shall  enable  a  married  woman  to  become  accommodation 
indorser  or  surety  for  another  was,  practically,  word  for  word, 
retained  in  the  latter  act. 

The  burden  is  on  the  wife  when  she  seeks  to  avoid  her  contract 
to  bring  it  within  one  of  the  few  exceptions  of  the  act :  Patrick 
V.  Smith,  165  Pa.  526.  And  while  it  is  to  be  regretted  that  the 
affidavit  of  defense  was  not  drawn  with  more  care,  its  inarti- 
ficiality  does  not  obscure  its  intent  and  the  facts  relied  upon,  in 
the  language  of  Patrick  v.  Smith,  avoid  the  contract  and  bring 
it  in  within  one  of  the  exceptions. 

Thomas  Learning^  for  appellee. — The  affidavit  of  defense  was 
insufficient.  The  averments  in  the  affidavit  are  simply  (1)  a 
general  denial  of  indebtedness;  (2)  the  statement  that  appel- 
lant signed  the  note  at  the  request  of  payees ;  (3)  averment  of 
the  naked  conclusion  that  she  signed  as  "a  guarantor." 

It  is  fully  apparent  that  such  an  affidavit  is  absolutely  lack- 
ing in  the  essentials  always  required  by  the  courts  of  this  state. 
There  is  no  averment  of  the  particular  facts  and  the  transaction 
upon  which  was  based  defendant's  contention  that  she  signed 
as  "a  guarantor."  And  to  simply  aver  what  is  a  mixed  conclu- 
sion of  law  and  fact  is  never  held  sufficient  in  an  affidavit  of 
defense,  as  is  often  exemplified  in  affidavits  which  aver  "fraud," 
and  do  not  state  the  particular  facts  which  constitute  the  al- 
leged "fi-aud." 

The  wisdom  of  the  principle  compelling  defendants  to  aver 
with  particularity  the  fltcts  on  which  they  rely,  is  exemplified 
by  this  case.  For,  the  facts  brought  out  upon  appellant's  dep- 
ositions show  that  her  case  is  without  a  shadow  of  nierit,  and 
it  is  unnecessary  to  further  argue  the  case  upon  what  was  in- 
tended by  the  affidavit,  when  all  the  facts  are  before  this  court. 

Opinion  by  Smith,  J.,  December  13, 1897 : 

The  appellant,  a  married  woman,  was  sued  jointly  with  her 


Digitized  by  VjOOQ IC 


126  ABKLES  v.  POWELt. 

Opinion  of  the  Court.  [6  Pa.  Superior  Ct. 

husband  on  a  promissory  note  signed  by  both.  Judgment  was 
taken  against  him  for  want  of  an  affidavit  of  defense.  The 
appellant  filed  an  affidavit  of  defense  setting  up  her  coverture, 
and  alleging  that  she  is  not  indebted  to  the  plaintifiF  in  any  sum 
and  never  was,  and  that  she  signed  the  note  as  guarantor.  A 
rule  for  judgment  for  want  of  a  sufficient  affidavit  of  defense 
was  granted,  returnable  February  20, 1897.  This  rule  was  duly 
served  on  appellant's  attorney  of  record  and  on  the  return  day 
it  was  made  absolute,  neither  the  appellant  nor  her  counsel  being 
present.  A  fi.  fa.  was  afterwards  issued  and  returned  nulla 
bona,  and,  subsequently,  an  attachment  execution  was  issued 
returnable  the  first  Monday  of  April,  under  which  funds  of  the 
appellant  were  attached.  On  March  81, 1897,  a  rule  to  open 
the  judgment  and  to  quash  the  attachment  proceedings  was 
granted.  Depositions  in  support  of  the  rule  were  submitted, 
and,  after  argument,  it  was  discharged,  because,  in  the  opinion 
of  the  court,  "  under  the  authority  of  Hill  v.  Egan,  2  Pa.  Supe- 
rior Ct.  596,  it  is  too  late  to  open  tfie  judgment."  Whereupon 
the  present  appeal  was  taken. 

It  is  clear  that  the  court  below  was  without  authority  to  open 
the  judgment  after  the  end  of  the  term  at  which  it  was  rendered, 
unless  it  was  a  judgment  by  default  or  confession.  Every  court 
has  power  to  open  such  judgments,  without  limit  of  time,  in 
order  to  give  the  parties  a  hearing  or  trial.  But  where  judg- 
ments have  been  entered  after  defense  made,  the  reason  for  the 
rule  ceases,  and  it  is  settled  that  judgments  thus  taken  cannot 
be  opened  after  the  expiration  of  the  term  at  which  they  ai^e 
entered :  King  v.  Brooks,  72  Pa.  363.  Hence  the  only  question 
before  us  is  whether  the  judgment  in  the  present  case  was 
entered  upon  a  default  by  the  defendant  or  upon  defense  made. 

A  default  by  the  defendant  is  where,  having  been  duly  sum- 
moned, he  fails  to  appear,  or,  having  appeared,  fails  to  make 
defense  in  the  manner  and  within  the  time  fixed  by  law.  It 
has,  however,  no  relation  to  the  adequacy  of  the  defense  offered ; 
it  arises  only  from  neglect — ^from  the  absence  of  an  appearance 
or  an  offer  of  defense.  At  common  law,  judgment  against  the 
defendant  for  default  of  appearance  was  unknown,  the  penalty 
for  his  contumacy  being  distress  infinite  and  outlawry.  But  if, 
after  appearing,  he  neglected  to  make  defense  by  plea  or  de- 
murrer within  the  time  allowed,  judgment  by  nihil  dicit, — **  he 


Digitized  by  VjOOQ IC 


ABELES  r.  POWELL.  127 

1897.]  Opinion  of  tlie  Couit. 

says  nothing  " — ^might  be  taken  against  him.  In  Pennsylvania, 
provision  for  judgment  for  default  of  appearance  was  made  at  an 
early  day.  By  the  act  of  1725,  on  default  of  appearance,  the 
plaintiff  could  enter  a  common  appearance  for  the  defendant,  and 
in  the  absence  of  a  plea  take  judgment  by  nihil  dicit.  The  entry 
of  a  common  appearance  was  soon  dispensed  with,  and  judgment 
was  entered  by  default  on  the  defendant's  failure  to  appear. 
By  subsequent  legislation,  judgment  for  default  of  appearance 
was  expressly  authorized.  A  third  ground  of  default  was  intro- 
duced in  1795,  by  an  agreement,  signed  by  all  the  attorneys  of 
the  Supreme  Court  except  two,  to  confess  judgment  unless  the 
defendant  made  affidavit  ^^  that  to  the  best  of  his  knowledge  and 
belief  there  was  a  just  cause  of  defense  to  the  action ; "  and  this 
w^  enforced  by  the  court  as  to  the  signatory  parties.  In  1799, 
a  rule  to  the  like  effect  was  adopted  by  the  Supreme  and  Circuit 
Courts.  In  1809,  the  common  pleas  of  Philadelphia  adopted  a 
rule  directing  judgment  of  course  against  the  defendant  unless 
he  made  affidavit  that  there  was  a  just  defense,  to  the  best  of 
his  knowledge  and  belief,  with  a  proviso  respecting  a  partial 
defense;  and  this  iiile  was  sustained  by  the  Supreme  Court: 
Vanatta  v.  Anderson,  3  Binn.  417.  A  similar  rule  was  adopted 
by  the  distiict  court  of  Philadelphia.  The  first  legislation  on 
the  subject  was  the  act  of  1835.  This  authorized  "a  judgment 
by  default "  in  certain  actions  in  the  district  court  of  Philadel- 
phia, unless  the  defendant  ^^  filed  an  affidavit  of  defense,  stating 
therein  the  nature  and  character  of  the  same."  From  this  pro- 
vision, subsequently  extended  to  other  couii»  by  statute,  or 
adopted  by  rule,  arose  the  practice  of  inquiring  into  the  suffi- 
ciency of  the  defense  thus  set  up,  and  of  taking  judgment  for 
want  of  a  sufficient  affidavit  of  defense.  The  act  of  1874  author- 
ized an  appeal  to  the  Supreme  Court  from  a  decision  against  the 
right  to  such  a  judgment.  The  procedure  act  of  1887  directs 
that  in  actions  of  assumpsit  the  declaration  ^^  shall  be  replied  to 
by  affidavit,"  and  provides  for  judgment "  for  want  of  an  affidavit 
of  defense,  or  for  want  of  a  sufficient  affidavit,  for  the  whole  or 
part  of  the  plaintiff's  claim,  as  the  case  may  be,  in  accordance  with 
the  present  practice."  Where  the  defense  is  partial,  the  act  of 
1893  permits  judgment  for  the  amount  admitted  to  be  due; 
while  the  act  of  1897  allows  judgment  to  be  taken  for  the  por- 
tion as  to  which  the  affidavit  shall  be  insufficient ;  with  an  issue 


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128  ABELES  v.  POWELL. 

Opinion  of  the  Court.  [6  Pa.  Superior  Ct. 

as  to  matters  remaining  in  dispute.  And  by  the  act  of  1889, 
the  defaults,  for  which  judgment  is  of  course,  are,  want  of  an 
appearance,  want  of  a  plea,  and  want  of  an  affidavit  of  defense, 
with  judgment  against  the  plaintiff  for  want  of  a  declaration. 

But  a  judgment  for  want  of  a  sufficient  affidavit  of  defense 
has  never,  under  the  existing  practice,  been  regarded  as  a  judg- 
ment by  default.  Nor  is  there  any  ground  on  which  it  can  be 
so  regarded.  With  reference  to  the  result,  indeed,  an  insuffi- 
cient affidavit  of  defense  is  practically  the  same  as  none.  But 
so  also  is  an  insufficient  defense  before  a  jury.  In  either  case 
the  defendant  suffers  judgment,  but  in  neither  is  it  a  judgment 
by  default.  The  filing  of  the  affidavit  is  a  prescribed  step  in 
the  cause,  whereby  the  defense  is  laid  before  the  court.  Default 
in  the  premises  is  only  in  neglecting  to  take  this  step ;  in  omit- 
ting to  make  defense  in  the  prescribed  method.  The  declara- 
tion having  been  replied  to  by  affidavit,  tiie  requirement  of  the 
statute  on  this  point  is  satisfied  and  a  default  avoided.  Should 
the  defense  thus  presented  be  held  insufficient,  its  presentation 
is  not  thereby  turned  into  a  default.  The  affidavit  is  in  the 
nature  of  a  plea,  for  the  insufficiency  of  which  the  plaintiff  may 
have  judgment  on  demurrer,  but  not  by  nihil  dicit  as  for  a 
default.  If  adjudged  insufficient,  it  is  an  adjudication  of  the 
cause  on  its  merits.  Whether  the  defense  be  addressed  to  the 
court  by  affidavit,  or  to  a  jury  by  evidence,  a  judgment  resting 
on  its  insufficiency  is  a  judgment  upon  defense  made,  and  not 
on  a  default. 

The  limitation  on  the  power  of  the  courts  to  open  judgments 
has  not  been  modified  by  legislation,  and  to  modify  it  would  be 
clearly  against  public  policy.  The  Acts  of  May  20, 1891,  P.  L. 
101  and  of  June  24, 1895,  P.  L.  212  (the  Superior  Coui-t  act), 
extend  the  right  of  appeal  to  these  applications,  and  confer  upon 
the  appellate  courts  the  power  to  review  the  decisions  of  the  com- 
mon pleas  thereon.  But  those  statutes  do  not  enlarge  or  affect 
the  power  of  the  lower  courts  in  the  premises. 

Enough  has  been  said  to  show  that  the  learned  judge  correctly 
held  that  he  was  without  power  to  open  the  judgment  in  the 
present  case.  The  judgment  was  duly  entered  after  an  exami- 
nation of  the  defense  as  presented  in  the  affidavit.  The  matter 
in  controversy  had  regularly  passed  to  final  judgment,  and  the 
term  of  the  court  at  which  it  was  rendered  had  ended,  before 


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ABELES  V.  POWELL.  129 

1897.]  Opinion  of  the  Court. 

the  application  to  open  was  made.    It  then  became  res  judicata, 
and  passed  beyond  the  power  of  the  court  to  open. 

However,  the  question  of  the  sufficiency  of  the  affidavit  of 
defense  is  not  beyond  the  reach  of  this  court.  The  appeal  is 
from  the  action  of  the  court  below  in  entering  the  judgment,  as 
well  as  from  the  subsequent  refusal  to  open  it,  and  thus  the  record 
of  the  case  is  brought  before  us.  The  judgment  was  entered 
on  February  20, 1897,  and  the  appeal  to  this  court  was  noted  as 
of  July  28, 1897,  more  than  three  months  after  the  entry  of  judg- 
ment. But  by  section  4  which  went  into  effect  July  1, 1897,  it 
is  provided :  "  That  in  civil  cases  in  which  the  right  of  appeal 
to  the  Superior  Court  has  now  expired,  an  appeal  may  be  taken 
and  perfected  within  three  months  after  this  act  goes  into  effect." 
The  present  case  comes  within  the  express  terms  of  this  proviso, 
and,  as  it  is  a  proper  exercise  of  legislative  power  (Waters  v. 
Bates,  44  Pa.  473.)  the  appeal  is  properly  taken. 

There  can  be  no  reasonable  doubt  about  the  sufficiency  of  the 
affidavit  of  defense.  It  avers  coverture,  no  indebtedness  to  the 
plaintiffs,  and  that  she  signed  the  note  upon  which  suit  is 
brought  as  a  guarantor.  While  it  may  not  exhibit  the  accu- 
racy and  fullness  of  detail  necessary  on  two  of  these  points,  it 
is  sufficient  in  its  terms  to  raise  the  question  of  her  liability 
under  the  averment  of  a  guaranty.  It  states  that  after  her  hus« 
band  signed  the  note  it  was  brought  to  her,  and  upon  the  alle- 
gation that  it  was  necessary  for  her  to  affix  her  name  to  it  she 
was  induced  to  sign  it  as  a  guarantor.  If  it  be  true  that  she 
signed  merely  as  a  guarantor  there  can  be  no  doubt  as  to  her 
nonliability  under  the  express  prohibition  of  the  act  of  June  8, 
1893.  We  have  recently  passed  upon  the  powers  of  a  married 
woman  under  this  statute,  in  Henry  v.  Bigley,  6  Pa.  Superior 
Ct,  503,  and  it  is  unnecessary  to  discuss  the  matter  further  here. 
The  judgment  entered  February  20, 1897,  for  want  of  a  suffi- 
cient affidavit  of  defense,  cannot  stand,  and  the  subsequent  pro- 
ceedings based  thereon  must  fall  with  it. 

The  judgment  is  reversed  and  a  procedendo  awarded. 
Vol.  VI— 9 


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130  TRANSFER  OF  LICENSE. 

Syllabos— Statement  of  Facts.     [6  Pa.  Superior  Ct. 


Appeal  of  Class  &  Nachod  in  the  Matter  of  the  Transfer 
of  License  at  Morton  and  distribution  of  $2,000  paid 
into  court. 

Transfer  of  license — Jurisdiction,  Q.  8.— Payment  of  money  into  court. 

The  court  of  quarter  sessions  has  no  jurisdiction  to  order  the  payment 
into  court  of  the  proceeds  of  a  proposed  sale  of  a  hotel  as  a  condition  to 
the  approval  of  the  transfer  of  the  license,  nor  will  the  consent  of  all  par- 
ties confer  such  jurisdiction. 

Appeals-^  Jurusdiction,  Q,  S. — Payment  of  money  into  court. 

On  an  application  for  transfer  of  license  the  court  made  the  following 
order:  **0n  paying  into  court  $2,000,  the  balance  of  purchase  money  to 
abide  the  further  order  of  court,  the  license  may  be  transfeiTed."  Judg- 
ment creditors  of  the  vendor  united  in  petitioning  for  the  appointment  of 
an  auditor  to  distribute  the  fund.  After  participating  in  the  proceedings 
before  the  auditor  ceiiAin  creditors  appealed,  alleging  want  of  jurisdiction 
in  the  quarter  sessions  to  oixler  the  money  into  couit.  Held^  that  the 
Avhole  proceeding  must  be  regarded  as  a  common  law  reference  and  that 
the  appellate  court  will  not  review  the  decree  of  distribution  made  in  such 
an  anomalous  proceeding,  but  will  quash  an  appeal  taken  by  a  participat- 
ing creditor.  Queried :  Whether  the  vendor  might  not  have  had  the  right 
to  an  appeal. 

Argued  Nov.  17,  1897.  Appeal,  No.  56,  Oct.  T.,  1897,  by 
Class  &  Nachod,  from  the  order  of  Q.  S.  Delaware  Co.,  trans- 
ferring license  upon  the  pajrment  into  court  of  #2,000,  remain- 
der of  purchase  money,  to  abide  the  further  order  of  the  court. 
Before  RiCE,  P.  J.,  Wickham,  Beaver,  Oblady,  Smith  and 
Porter,  JJ.    Appeal  quashed. 

It  appears  from  the  record  of  the  auditor  that  Frank  Schoener 
had  a  licensed  hotel  at  Morton,  Delaware  county,  that  he  became 
involved  financially,  was  unable  to  pay  his  debts  and  confessed 
certain  judgments  on  which  executions  were  issued. 
V  After  levy  was  made  an  agreement  was  entered  into  by  which 
Andrew  Hayes  agreed  to  purchase  from  Schoener  the  good-will, 
fixtures,  furniture  and  license  for  #3,000,  provided  the  court 
would  approve  of  a  transfer  of  the  license ;  $1,000  was  paid 
down,  J2,000  was  paid  into  court,  and  the  transfer  of  the  license 
allowed. 


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TRANSFER  OF  LICENSE.  131 

1897 -]  Statement  of  Facts— Opinion  of  the  CJourt. 

To  this  agreement  execution  creditors  assented  and  stayed 
their  executions. 

The  judgment  creditors,  mcluding  the  appellants,  subsequently 
united  in  a  petition  for  the  appointment  of  an  auditor  for  the 
distribution  of  the  fund  paid  into  court.  The  auditor  in  mak- 
ing such  distribution  exhausted  the  fund  before  reaching  the 
claim  of  the  appellants,  amounting  to  S2,150,  who  filed  ex- 
ceptions to  the  report  of  the  auditor,  which  were  dismissed  by 
the  court. 

JBrrors  assigned  were  to  the  dismissal  of  appellants'  excep- 
tions, reciting  same,  which  assigned  error  in  the  scheme  of  dis- 
tribution reached  by  the  auditor,  and  especially  (14)  The  court 
of  quarter  sessions  has  no  jurisdiction  over  the  fund. 

W.  Roger  Fronefieldy  for  appellants. — ^Want  of  jurisdiction 
may  be  shown  in  the  appellate  court  even  where  the  question 
was  not  raised  in  the  court  below :  Hill  v.  Tionesta  Twp.,  129 
Pa.  625. 

The  balance  of  appellants'  argument  was  directed  to  the 
merits  of  the  case  as  to  the  distribution  reached  by  the  auditor, 
which,  not  being  considered  by  the  Superior  Court,  need  not  be 
set  out  here. 

Wm.  F.  Johnson^  with  him  Charles  H.  Pile^  for  appellees. — 
It  is  not  true  that  the  court  directed  the  money  to  be  paid  into 
the  court  of  quarter  sessions.  It  was  a  suggestion  to  pay  "  into 
court" — "where,  if  there  were  any  disputes  as  to  ownership, 
the  same  could  be  judicially  determined."  As  a  matter  of  fact 
it  was  paid  to  the  prothonotary,  but  was  considered  by  all  the 
parties  as  being  in  the  quarter  sessions.  The  appellants,  being 
the  only  parties  objecting  to  the  transfer,  particularly  and  solely 
invoked  it,  and  there  was  common  consent.  The  court  took 
jurisdiction  by  reason  of  that  invocation  and  common  assent, 
nobody  objected  at  any  stage  of  the  proceedings,  and  it  is  too 
late  now  to  raise  the  question  of  jurisdiction. 

Opinion  by  Wickham,  J.,  December  18, 1897 : 
Frank  Schoener  was  a  licensed  innkeeper  who  owed  moi'e 
than  he  could  pay.     A  number  of  his  creditors,  including  the 


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182  TRANSFER  OF  LICENSE. 

Opinion  of  the  Court.  [6  Pa.  Superior  Ct. 

appellants,  were  pursuing  him  with  executions.  In  this  emer- 
gency, one  Andrew  Hayes  came  forward  and  agi'eed  to  buy 
Schoener*8  lease  of  the  hotel,  together  with  the  personal  prop- 
erty used  in  and  about  the  premises,  agfreeing  to  pay  therefor 
$3,000,  if  a  tmnsfer  of  the  license  could  be  obtained,  otherwise 
the  contract  to  be  void.  One  third  of  the  purchase  money  was 
to  be  paid  in  five  dajrs,  and  a  note  at  three  months  given  for  the 
remainder,  all  moneys  paid  to  be  returned  if  the  agreement  were 
not  consummated. 

When  application  was  made  to  the  court  of  quarter  sessions 
for  the  transfer,  the  appellants  protested  against  its  being 
allowed,  this  evidently  with  the  sole  view  of  securing  some  of 
the  proceeds  of  the  sale  on  their  judgment,  which  stood  at  the 
foot  of  the  list,  but  on  which  they  had  previously  issued  an 
attachment  execution,  to  reach  the  monej-s  in  Hayes's  hands. 
Finally  an  amicable  understanding  seems  to  have  been  reached 
between  all  parties  in  interest,  that  the  objections  to  the  trans- 
fer should  be  disregarded,  and  that  $2,000  of  the  purchase 
money  should  be  paid  into  the  court  of  quarter  sessions.  The 
court  assented  to  this  arrangement,  and  made  the  following 
order,  to  wit :  "  On  paying  into  court  $2,000,  remainder  of  pur- 
chase money,  to  abide  further  order  of  court,  the  license  may  be 
transferred."  It  will  be  observed  that  this  is  not  an  order  spe- 
cifically directing  the  money  to  be  paid  into  court,  but  an  allow- 
ance of  the  transfer  in  case  the  money  were  so  paid. 

On  October  6, 1896,  the  day  after  the  making  of  the  order, 
the  money  was  paid  to  the  clerk,  and  thereupon  the  appellants 
united  with  the  other  judgment  creditors  of  Schoener  in  peti- 
tioning the  court  to  appoint  an  auditor  to  distribute  the  fund, 
which  was  accordingly  done.  The  appellants  made  a  vigorous 
effort  to  secure,  through  the  audit,  a  part  of  the  money,  but  being 
unsuccessful,  took  their  appeal  to  this  court,  and  assigned  for 
error,  inter  alia,  that  the  court  below  had  no  jurisdiction  over 
the  fund.  This  is  quite  true,  but  it  is  a  sword  which  cuts  both 
ways,  and  to  say  the  least,  the  objection  comes  with  an  ill  grace 
from  the  appellants,  particularly  at  this  late  day.  The  quarter 
sessions,  as  such,  of  course  had  no  right  to  order  the  money  into 
court,  nor  could  the  counsel  for  the  parties  interested,  by  any 
agreement  they  might  make,  give  that  tribunal  a  jurisdiction  it 
possessed  neither  at  common  law,  nor  by  statute.     As  well 


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TRANSFER  OP  LICENSE.  133 

1897.]  Opinion  of  the  Court. 

might  they  have  gone  into  the  orphans'  court  to  settle  their  dis- 
putes respecting  the  distribution  of  the  proceeds  of  the  sale  of 
the  hotel,  as  to  attempt  to  use  the  machinery  of  the  court  of 
quarter  sessions  for  the  same  purpose.  It  was  never  contem- 
plated that  the  latter  tribunal  should  be  called  on  to  adjust  such 
controversies,  or  be  employed  to  collect  claims  of  which  the 
common  pleas  only  has  cognizance. 

The  whole  proceeding  must  be  regarded  as  being  in  the  nature 
of  a  common-law  reference.  That  the  learned  judge  of  the 
court  below  shared  somewhat  in  this  view,  is  perhaps  inferable 
from  the  fact  that  he  made  no  absolute  order,  as  said  before,  to 
pay  the  money  in,  and  the  further  fact  mentioned  in  the  testi- 
mony of  one  of  the  counsel,  that  he  suggested  that  all  parties 
in  interest  should  join  in  the  petition  for  the  appointment  of  the 
auditor. 

The  appellants  and  the  other  claimants  to  the  fund  created  a 
court  of  their  own  for  the  settlement  of  their  differences.  Prop- 
erly viewed,  the  auditor,  at  the  most,  was  only  a  common-law 
referee,  deriving  his  powers  entii'ely  from  the  agreement  and 
consent  of  those  who  secured  his  appointment,  and  voluntarily 
submitted  their  claims  to  his  arbitrament. 

Schoener  who,  by  the  way,  is  not  here  complaining,  was  not 
compelled  to  pay  the  money  into  court,  but  he  chose  to  do  so 
at  the  instance  of  the  court  and  his  creditors,  so  as  to  obtain  a 
larger  price  for  his  hotel  property,  by  having  the  license  go  there- 
with. The  appellants  were  not  summoned  or  cited  into  the 
quarter  sessions,  and  were  not  bound  to  take  any  part  in  the 
proceedings  had  there.  They  still  had  their  original  rights  and 
remedies,  whatever  they  were,  on  their  judgment  in  the  com- 
mon pleas,  unless  they  chose  to  renounce  them.  They  took 
their  chances  before  the  auditor,  and  we  cannot  help  them. 

By  way  of  illustration,  let  us  suppose  that  A,  in  consideration 
of  B,  C,  D,  and  E,  his  creditors,  withholding  or  withdrawing 
objections  to  a  decree  for  which  he  is  asking  in  the  orphans' 
court,  at  their  instance  and  on  the  judge's  order,  pajrs  12,000  to 
the  clerk  for  the  benefit  of  the  creditors,  whose  intermeddling 
results  solely  from  their  supposed  discovery  of  a  new  way  to 
collect  old  debts.  The  court  then  at  the  request  of  these  cred- 
itors appoints  an  auditor  to  determine  their  respective  rights  to 
the  money.     It  will  hardly  be  contended  that  this  court  can  or 


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134  TRANSFER  OF  LICENSE. 

Opinion  of  the  Court.  [6  Pa.  Superior  Ct 

should  review  the  decree  of  distribution  made  in  such  an  anom- 
alous and  unauthorized  proceeding.  An  appeal  by  the  party, 
paying  in  the  money,  from  the  order  directing  its  payment,  might 
stand  on  a  better  footing.  In  Harbison  v.  Gilliland,  No.  217, 
October  and  November  term,  1886,  a  case  decided  by  the  Su- 
pi-eme  Court  at  Pittsbui'g,  but  not  reported,  it  appeared  that 
in  a  sheriff's  interpleader  the  parties  in  interest  assented  to  the 
appointment  of  an  auditor,  and  made  their  fight  before  him, 
instead  of  having  an  issue  framed  and  trying  the  case  before 
a  jury,  as  provided  by  statute.  The  court  refused  to  interfere, 
and  quashed  the  writ  of  error.  We  are  constrained  to  pursue 
the  same  course  in  the  case  at  bar. 
Appeal  quashed. 


Mary  H.  Rohbock  v.  Grant  McCargo  and  C.  E.  Dickson, 

Appellants. 

Landlord  and  tenant — Evidence — Degree  of  proof  to  establish  a  sfirrender. 

Where  a  case  turas  on  whether  there  has  been  a  suiTender  by  a  lessee 
of  his  term  and  an  acceptance  thei*eof  by  the  lessor,  the  proof  requisite 
to  establish  such  suiTender  must  establisli  a  clear  and  explicit  agreement, 
and  the  landlord's  acceptance  of  the  sun'ender  also  must  be  established  by 
a  fair  and  full  preponderance  of  evidence.  It  is  error  however,  for  the 
trial  judge  to  instruct  the  jury  that  a  defendant  lessee,  in  order  to  meet 
the  burden  of  proof  cast  upon  him,  must,  to  establish  a  suiTendei*,  prove 
all  the  terms  and  conditions  of  the  alleged  rescission  or  surrender  and 
accepUmce  by  evidence  that  is  "  clear,  precise  and  indubitable.^ 

There  is  no  reason  for  requiring  the  exceptionally  high  measure  of 
proof  necessary  to  take  the  case  out  of  the  statute  of  frauds,  or  to  reform 
a  writing. 

Argued  May  6,  1897.  Appeal,  No.  170,  April  T.,  1897,  by 
defendants,  from  judgment  of  C.  P.  No.  3  Allegheny  Co.,  No- 
vember Term,  1894,  No.  687,  on  verdict  for  plaintiff.  Before 
Rice,  P.  J.,  Willabd,  Wickham,  Beavbr,  Reedbr,  Oblaby 
and  Smith,  JJ.    Reversed. 

Appeal  from  judgment  of  alderman  on  an  action  for  rent  in 
arrears.    Before  Kennedy,  P.  J. 

It  appears  from  the  record  that,  although  the  claim  as  origi- 


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ROHBOCK  V,  McCAHGO.  135 

1897.]  Statement  of  Facts. 

nally  brought  was  for  one  month's  rent  amounting  to  $150,  pend- 
ing the  determination  of  the  case  in  the  court  below,  the  total 
term  of  the  lease  expired. 

By  agreement  of  counsel  the  present  suit  was  designed  to 
cover  all  claims  which  the  plaintiff  might  have  growing  out  of 
said  lease.  The  question  arose  udder  the  terms  of  the  contract 
of  lease,  which  pro^'ided,  inter  alia,  as  follows : 

*'That  the  said  party  of  the  first  part  (Maiy  A.  Rohbock) 
doth  hereby  lease  and  let  unto  the  said  parties  of  the  second 
part  (Grant  McCargo  and  C.  E.  Dickson)  fi-om  the  26th  day 
of  January,  1891,  for  and  during  the  term  of  one  year,  two 
months  and  six  days,  with  the  privilege  of  remaining  in  posses- 
sion until  the  first  day  of  April,  1896,  for  the  annual  rental  of 
§600,  payable  as  follows,  viz  :  $ilOO  on  April  1st,  1891,  and 
thereafter  $150  on  the  first  days  of  July,  October,  January  and 
April  of  each  and  every  year  during  said  term  until  the  whole 
amount  of  said  rent  is  paid ;  the  following  described  premises, 
etc." 

The  defendants  contended  that  xuider  the  terms  of  the  lease 
they  were  merely  tenants  from  year  to  year  after  April  1, 1892, 
and  proof  was  given  of  notice  and  intention  to  vacate  prior  to 
April  1, 1894. 

There  was  also  evidence  tending  to  show  an  understanding 
reached  between  the  plaintiffs  agent,  Armstrong,  and  the  de- 
fendant, McCargo,  by  which  plaintiff  was  to  receive  the  same 
rent  monUily,  and  the  defendants  were  to  occupy  the  premises 
for  a  few  weeks  after  April  1st,  and  until  such  time  as  a  new 
building  erected  for  their  occupancy  was  ready.  The  defendants 
remained  in  the  premises  until  about  June  1, 1894,  when  they 
removed  and  tendered  the  rent  for  April  and  May,  which  was 
refused.  The  court  left  the  question  to  the  juiy  as  to  whether 
there  had  been  a  surrender  and  acceptance  of  the  lease,  charg- 
ing the  jury,  inter  alia,  as  follows  :  ^^  As  I  have  said,  the  lease 
was  perfectly  good  up  to  the  first  of  April,  1896,  unless  its  can- 
cellation and  the  suiTcnder  of  the  premises  was  agi*eed  to,  and 
Mr.  Armstrong  and  Mrs.  Rohbock  say  it  never  was  agreed  to 
by  them.  All  that  Mr.  Armstrong  admits  having  said  was,  that 
he  would  hold  them  liable  for  the  balance  of  the  rent  if  the  lease 
was  good.  I  think  you  understand  the  question  for  your  de- 
termiuation :  Was  this  old  agreement  canceled  and  the  pi*em- 


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136  ROHBOCK  v.  McCARGO. 

Statement  of  Facts— Points.       [6  Pa.  Superior  Ct. 

ises  surrendered  and  accepted  by  Mrs.  Rohbock,  either  by  herself 
or  her  agent,  Mr.  Armstrong?  The  defendants  claim  that  after 
this  1st  of  April,  the  circumstances  show  a  ratification  by  Mrs. 
Rohbock  of  the  surrender  and  acceptance  by  them,  although 
the  transaction,  as  I  have  told  you,  was  entirely  with  Mr.  Arm- 
strong the  agent ;  but  they  say  the  circumstances  show  not  only 
the  positive  acceptance  by  Mr.  Armstrong,  but  its  subsequent 
ratification  by  Mrs.  Rohbock.  All  those  circumstances  are  for 
you.  If  you  find  there  was  a  surrender  of  the  premises,  and  an 
acceptance  by  Mrs.  Rohbock,  then  that  is  a  virtual  cancellation 
of  the  old  lease,  and  the  defendants  would  not  be  liable,  and 
your  verdict  must  be  for  them.  But  if  there  was  no  such  sur- 
render of  the  premises,  and  acceptance  by  Mrs.  Rohbock  or  her 
agent,  then  the  defendants  ai*e  liable  for  the  amount  claimed. 
The  burden  is  upon  the  defendants  to  satisfy  you  by  the  weight 
of  the  testimony  that  there  was  such  a  surrender  of  the  premi- 
ses, and  an  acceptance  by  Mrs.  Rohbock,  as  would  amoiint  to 
the  cancellation  of  the  old  agreement  before  you  can  find  a  ver- 
dict." [5] 

The  plaintiff's  points  and  the  answers  thereto  weteas  follows : 

1.  That  defendants  having  remained  in  possession  after  the 
first  of  January,  1892,  they  elected  to  avail  themselves  of  the 
privilege  granted  in  the  lease,  namely,  of  remaining  in  posses- 
sion until  the  first  of  April,  1896,  and  having  so  elected  they 
were  bound  to  pay  the  rent  provided  for  in  said  lease,  to  wit, 
the  sum  of  f  150  on  the  first  days  of  July,  October,  January  and 
April,  of  each  and  every  year  during  said  term,  until  the  whole 
amount  of  said  rent  is  paid,  unless  said  contract  of  letting  was 
rescinded  by  defendants,  and  the  premises  surrendered  to  and 
accepted  by  plaintiffs.    Answer :  AflSrmed.  [1] 

2.  The  contract  of  letting  or  lease  between  the  plaintiff  and 
defendants  in  this  case  being  for  a  period  or  term  exceeding 
three  years  from  the  making  thereof,  and  being  in  writing,  no 
parol  rescission  or  surrender  would  be  a  defense  against  the  rent 
claimed  by  the  plaintiff,  unless  such  parol  rescission  or  surrender 
were  accompanied  by  a  surrender  of  the  possession  of  the  leased 
premises  by  the  defendants  to  the  plaintiff,  or  her  agent,  and 
his  or  her  acceptance  thereof.     Answer :  Affirmed.  [2] 

3.  The  contract  of  lease  between  plaintiff  and  defendant 
being  in  writing  and  under  seal,  the  burden  of  proving  a  rescis- 


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ROHBOCK  i\  McCARGO.  137 

1897.]  Points— Ai'guments. 

sion  or  surrender  thereof  is  upon  the  defendants  who  allege  it, 
and  all  the  terms  and  conditions  of  the  alleged  rescission  or  sur- 
render must  be  proved  by  evidence  that  is  clear,  precise  and 
indubitable.    Answer:  AjBSrmed.  [3] 

4.  That  under  all  the  evidence  in  the  case  the  verdict  should 
be  for  the  plaintiff  for  the  full  amount  of  her  claim.  Answer : 
Refused. 

Defendant's  points  and  the  answers  thereto  were  as  follows : 

1.  Under  all  the  evidence  the  verdict  should  be  for  the 
defendants.    Answer:  Refused.  [4] 

If  this  point  is  refused,  then 

2.  If  the  jury  believe  that  after  the  defendants  had  notified 
the  plaintiff  of  their  intention  to  vacate  the  demised  premises 
on  April  1, 1894,  the  plaintiff  or  her  agent  expressly  consented, 
or  by  any  course  of  action  in  effect  consented  to  their  remain- 
ing temporarily  thereafter  until  the  new  building  was  ready  for 
their  occupancy,  the  verdict  should  be  for  the  defendants.  An- 
swer:  Affirmed. 

Verdict  and  judgment  for  plaintiff  for  f  818.76.  Defendants 
appealed. 

Errors  assigned  were,  (1-3)  In  affirming  plaintiff's  firat,  sec- 
ond and  third  points,  reciting  points  and  answers  thereto. 
(4)  In  refusing  defendant's  first  point,  reciting  same.  (5)  To 
a  portion  of  the  judge's  charge,  reciting  same. 

H.  O.  TFaMon,  with  him  TF.JT.J^wmn^*,  for  appellants. — The 
court  erred  in  instructing  the  jury  that  the  burden  of  proof  was 
upon  the  defendants  to  establish  a  surrender  and  acceptance  of 
the  lease  by  evidence  that  was  clear,  precise  and  indubitable : 
GiUion  V.  Finley,  22  W.  N.  C.  124. 

We  are  utterly  unable  to  reconcile  the  learned  judge's  affirm- 
ance of  the  plaintiff's  first  point  with  the  affirmance  of  the 
defendant's  second  point.  The  defendant's  second  point  is 
wholly  predicated  upon  the  defendant's  right  to  terminate  the 
lease  on  April  1, 1894.  Under  all  the  evidence,  having  affirmed 
the  second  point  for  the  defendants  we  maintain  that  the  first 
point  ought  also  to  have  been  affirmed. 

The  plaintiff  had  full  cognizance  of  the  arrangement  by  which 
the  defendants  were  to  temporarily  occupy  the  demised  prem- 


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188  ROHBOCK  v.  McCARGO. 

Arguments-— Opinion  of  the  Court.   [G  Pa.  Superior  Ct. 

ises  after  April  1,  1894,  but  even  if  she  had  not  her  agent's 
authority  to  make  it  was  ample.  Such  is  the  ruling  in  Weight- 
man  V.  Harley,  20  W.  N.  C.  470. 

Although  timely  notice  of  the  defendants'  intention  to  vacate 
April  1,  1894,  was  given,  no  act  of  assembly  requires  notice  on 
the  part  of  a  tenant :  Brown  v.  Brightly,  14  W.  N.  C.  497 ; 
Cook  V.  Neilson,  10  Pa.  41. 

•7.  /.  Buchanan  of  Montooth  Bros.  ^  Buchanan^  for  appellee. 
— The  act  of  the  appellants  in  holding  over  or  remaining  in  pos- 
session after  April  1,  1892,  was  an  election  upon  tlieir  part  to 
avail  themselves  of  the  privilege  granted  by  the  lease  to  I'emain 
in  possession  iintil  April  1,  1896.  They  were  not,  therefore, 
merely  tenants  from  year  to  year:  Clarke  v.  Merrill,  51  N.  H. 
416 ;  Delashman  v.  Berry,  20  Mich.  292 ;  Tracy  v.  Exchange 
Co.,  7  N.  Y.  472 ;  Kramer  v.  Cook,  73  Mass.  550 ;  Montgomery 
V.  Board  of  Commissioners,  76  Ind.  362 ;  McBrier  v.  Marshall, 
126  Pa.  390;  Harding  v.  Seeley,  148  Pa.  20. 

A  contract  of  letting  on  lease  between  plaintiff  and  defend- 
ants, being  in  writing,  for  a  period  or  term  exceeding  three 
years,  no  parol  rescission  or  surrender  would  be  a  defense  against 
the  rent  claimed  by  the  plaintiff  unless  such  parol  rescission  or 
surrender  were  accompanied  by  a  surrender  of  the  possession  of 
the  leased  pi-emises  by  the  defendants  to  the  plaintiff,  or  her 
agent,  and  his  or  her  acceptance  thei-eof :  Auerv.  Penn,  92  Pa. 
444 ;  Auer  v.  Penn,  99  Pa.  370 ;  Breuckman  v.  Twibill,  89  Pa. 
58;  MiUing  v.  Becker,  96  Pa.  182  ;  Teller  v.  Boyle,  132  Pa.  56. 

The  defendants  do  not  set  up  a  surrender  by  abandonment  or 
implication,  but  allege  an  express  contract  or  agreement  which 
in  effect  abrogates  and  avoids  the  covenants  of  the  lease  and 
amoiints  to  a  rescission  of  a  writing  under  seal,  and  it  is  cer- 
tainly not  error  to  instruct  the  jury  that  the  burden  of  proving 
such  a  contract  or  agreement  is  upon  the  defendants,  who  allege 
it,  and  that  all  the  terms  and  conditions  of  the  alleged  agree- 
ment must  be  proven  by  evidence  that  is  clear,  precise  and 
indubitable:  Spencer  v.  Colt,  89  Pa.  314;  Hart  v.  Carroll,  85 
Pa.  608 ;  Sacks  v.  Schimmel,  3  Pa.  Superior  Ct.  426. 

Opinion  by  Wiokham,  J.,  July  23, 1897 : 

The  plaintiff  in  this  case  leased  to  the  defendants,  by  a  writ- 


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ROHBOCK  V.  McCARGO.  139 

.  1897.]  Opinion  of  tiie  Court. 

ing,  dated  January  28,  1891,  certain  premises  in  the  city  of 
Pittsburg.  The  following  clause  of  the  lease  gave  rise  to  the 
present  controversy,  to  wit:  "The  said  party  of  the  first  pait 
doth  hereby  lease  and  let,  unto  the  said  parties  of  the  second 
part,  from  the  26th  day  of  January,  1891,  for  and  during  the 
term  of  one  year,  two  montlis  and  six  days,  with  the  privilege 
of  remaining  in  possession  until  the  1st  day  of  April,  1896,  for 
the  annual  rental  of  $600,  payable  as  follows,  viz:  $100  on 
April  1,  1891,  and  thereafter  $160  on  tlie  first  days  of  July, 
October,  January  and  April  of  each  and  every  year  during  said 
term,  until  the  whole  amount  of  said  rent  is  paid." 

There  was  thus  created  a  certain  term,  ending  on  April  1, 
1892,  with  the  option  of  a  renewal,  on  the  part  of  the  lessees  for 
another  term  of  four  yeara,  on  the  same  agreements  and  stipu- 
lations, except  the  covenant  of  renewal :  Cairns  v.  Llewellyn, 
2  Pa.  Superior  Ct.  599.  No  question  of  rescission  or  cancel- 
ation was  raised  by  the  evidence,  the  only  proper  inquiry  being 
whether  or  not  the  lessees  elected  to  renew,  it  being  their  privi- 
lege and  not  the  lessor's  to  decide  this  matter.  Nor  was  the 
case  affected  by  the  principles  which  apply  to  a  technical  sur- 
render, that  is,  a  yielding  up  of  the  demised  premises  and  an 
acceptance  thereof  by  the  lessor.  It  was  a  matter  of  no  moment 
whether  the  lessor  accepted  or  not,  provided  that  the  lessees 
gave  up  possession,  at  the  end  of  the  first  term.  This,  how- 
ever, they  did  not  do,  but  remained  in  possession  until  June  1, 
1892. 

Without  explanation,  their  remaining  over  would  be  con- 
clusive evidence  of  an  election  to  hold  for  four  years  longer : 
McBrier  v.  Marshall,  126  Pa.  390 ;  Cairns  v.  Llewellyn,  supra, 
and  authorities  therein  cited.  It  may  be  remarked  here  that 
the  decision  in  Gillion  v.  Finley,  22  W.  N.  C.  124,  cited  for  the 
appellants  in  support  of  tlie  contrary  view,  is  not  in  harmony 
with  later  decisions  of  our  Supreme  Court  But  the  defend- 
ants allege,  and  this  is  conceded,  that,  before  the  first  term 
ended,  they  notified  the  plaintiff  that  they  would  not  accept  the 
second.  They  further  aver  that  in  March,  1892,  they  made  a 
special  arrangement  with  the  plaintiff's  agent  to  hold  over,  at 
the  same  rent,  until  the  building  they  were  then  erecting  would 
be  ready  for  their  occupancy,  perhaps  two  or  three  months  after 
April  1, 1892,  and  if  this  be  true,  their  retention  of  the  premises 


Digitized  by  VjOOQ IC 


140  ROHBOCK  v.  McCARGO. 

Opinion  of  the  Couit.  [6  Pa.  Superior  Ct. 

would^  of  course,  be  attributable  to  the  new  contract,  instead  of 
to  their  ri^ht  under  the  option. 

The  jury  should  have  been  instructed,  that  if  the  agent 
entered  into  this  agreement,  and  it  wa«  within  the  scope  of  his 
employment,  their  verdict  should  be  for  the  defendants,  other- 
wise the  plaintiff  was  entitled  to  recover.  There  was  nothing 
more  in  the  case.  The  plaintiff^s  first,  second  and  third  points, 
instead  of  being  affirmed,  as  they  were,  should  have  been  re- 
fused. The  first  is  so  framed  as  to  lead  the  jury  to  infer  that, 
unless  there  was  a  rescission  or  surrender,  after  April  1, 1892, 
the  defendants  were  liable.  It  is  at  least  so  doubtful  in  its 
meaning  as  to  be  confusing.  As  said  before,  the  question  of 
rescission  is  not  in  the  case.  It  was  merely  a  matter  of  accept- 
ance or  refusal  of  the  option,  on  the  part  of  the  defendants,  and 
the  words  "rescission,"  "cancelation,"  and  "surrender,"  in  the 
sense  wherein  they  were  used,  were  likely  to  mislead. 

The  second  point  is  open  to  the  same  objections  as  the  first, 
and  to  the  further  one,  that  it  assumes  that  the  lease  was  for  a 
period  exceeding  three  years.  As  we  have  already  indicated, 
the  lease  was  what  it  purported  to  be  on  its  face,  that  is,  for 
one  year,  two  months  and  six  days,  with  a  provision  that  the 
lessees,  at  their  own  pleasure,  might  extend  it  for  a  further 
term  of  four  years. 

The  third  point,  besides  being  liable  to  some  of  the  objec- 
tions that  lie  to  the  first  and  second,  calls  for  too  high  a  degree 
of  proof  in  support  of  the  defense.  It  was  not  necessary  to 
establish  it  by  "  clear,  precise  and  indubitable  evidence,"  a  pre- 
ponderance was  enough.  The  defendants  were  not  seeking  to 
modify,  add  to,  contradict,  or  rescind  the  written  lease.  The 
oral  agreement  set  up  was  independent  of  it,  and  was  made 
after  the  defendants  had  notified  the  plaintiffs,  as  is  admitted, 
of  their  intention  not  to  renew,  the  notice  having  been  given 
and  the  agreement  made,  if  made  at  all,  before  April  1, 1892. 
The  defendants,  even  if  they  had  not  given  the  notice,  were 
still  entirely  free,  so  far  as  accepting  or  refusing  the  option  was 
concerned,  and  the  oral  agreement  would  in  itself  be  a  refusal. 
Of  course,  if  their  story  as  to  this  agreement  were  rejected  by 
the  jury,  their  subsequent  holding  over,  notwithstanding  their 
previous  notice,  impliedly  created  a  new  term. 


Digitized  by  VjOOQ IC 


ROHBOCK  V.  McCARGO.  141 

1897.]  Opinion  of  tlie  Court. 

The  first,  second,  third  and  fifth  specifications  of  error  are 
sustained. 
Judgment  reversed  and  a  venire  facias  de  novo  awarded. 

A  motion  for  reargument  being  duly  allowed,  a  reargument 
was  had  before  the  court  in  Philadelphia,  November  1, 1897. 

-H".  G,  Wa$8<m^  with  him  W.  K.  Jennings^  for  appellants. — 
The  judgment  of  the  lower  court  ought  to  be  reversed  if  for  no 
other  reason  than  because  of  the  error  manifest  in  the  affirm- 
ance of  the  plaintiff's  third  point. 

The  defendants  should  not  have  been  held  to  measure  their 
proofs  by  this  standard :  Spencer  v.  Colt,  89  Pa.  314 ;  Hain  v. 
Kalbach,  14  S.  &  R.  158 ;  Woods  v.  Farmare,  10  Watts,  195  : 
McGinity  v.  McGinity,  63  Pa.  38 ;  Plumer  v.  Guthrie,  76  Pa. 
441 ;  Hart  v.  Carrol,  85  Pa.  508. 

Parol  agreements  of  like  character  do  not  infringe  the  rule 
that  extrinsic  verbal  evidence  is  not  admissible  to  contradict  or 
alter  a  written  instrument,  neither  are  they  in  violation  of  the 
statute  of  frauds,  and  are  supported  by  judicial  authority :  1 
Greenleaf  on  Evidence,  par.  303;  Kiester  v.  Miller,  25  Pa.  481; 
McBrierv.  Marshall,  126  Pa.  390;  McCauley  v.  Keller,  130 
Pa.  53 ;  Harvey  v.  Gunsberg,  148  Pa.  294 ;  McClelland  v.  Rush, 
150  Pa.  67;  Walker  v.  Githens,  156  Pa.  178 ;  Washburn  on  Real 
Property. 

Jl  /.  Buchanan  of  Montooth  Bros.  ^  Buchanan^  for  appellee. 
— The  words  "clear,  precise  and  indubitable,'*  have  often  been 
used  by  the  courts  in  describing  the  kind  of  evidence  necessary 
in  such  cases:  Spencer  v.  Colt,  89  Pa.  314 ;  Hart  v.  Carroll,  85 
Pa.  508 ;  Sacks  v.  Schimmel,  3  Pa.  Superior  Ct  426. 

Opinion  on  Reabgitment  by  Wickham,  J.,  December  18, 
1897: 

Owing  to  a  misapprehension  as  to  dates,  a  portion  of  the 
opinion  heretofore  handed  down  in  this  case,  is  inapplicable 
to  the  facts.  It  appears  that  the  defendants'  notice  of  their 
intention  to  quit  the  leased  premises  was  given,  and  the  alleged 
new  contract  made,  long  after  the  second  term  had  commenced. 
The  learned  judge  of  the  court  below  was,  therefore,  right  in 


Digitized  by  VjOOQ IC 


142  ROHBOCK  v.  McCARGO. 

Opinion  of  the  Court.  [6  Pa.  Superior  Ct. 

holding  that  the  whole  controversy  centered  in  the  surrender 
and  acceptance  set  up  by  the  defendants. 

If  necessary,  the  case  of  Gillion  v.  Finley,  22  W.  N.  C.  124, 
so  strongly  relied  on  by  the  defense,  can  be  distinguished^  in  its 
facts,  from  the  one  in  hand.  In  Gillion  v.  Finley,  the  lease 
was  for  "  the  term  of  one  year  with  the  privilege  of  three  years 
from  first  day  of  April,  A.  D.  1885,  at  the  rent  of  two  hundred 
and  four  dollars  per  year  to  be  paid  in  twelve  monthly  por- 
tions." Nothing  was  said  as  to  the  three  years  constituting  an 
integral  term,  and  it  was  held  that  the  language  used  meant, 
that  the  tenant  had  the  right  to  remain  from  year  to  year,  not 
exceeding  three  years. 

In  the  present  case,  however,  the  lessees  are  given  the  priv- 
ilege of  holding  from  April  1,  1891,  the  end  of  the  definite 
term,  **  until  the  first  day  of  April,  1896,"  and  this  second  period 
was  evidently  in  the  minds  of  the  parties  when  they  use  the 
words  "  during  said  term "  in  the  clause  fixing  the  times  for 
the  payment  of  the  rent.  The  lessees  were  given  the  right  to 
hold  for  and  during  the  continuous  period  of  time  intervening 
between  April  1, 1891,  and  April  1, 1896.  This  is  the  plain 
jind  obvious  meaning  of  the  language  used.  When  they  ac- 
cepted the  option,  they  at  once  took  this  integral  term  and  not 
a  portion  thereof,  nor  a  mere  tenancy  from  year  to  year. 

We  feel  obliged  to  adhere  to  our  original  view  respecting  the 
degree  of  proof  requisite  to  establish  the  surrender.  Of  course 
the  agreement,  as  to  this  matter,  should  be  clear  and  explicit. 
If  it  be  of  that  character,  we  think  that  it  is  enough  that  it,  and 
the  landlord's  acceptance,  be  established  by  a  fair  and  full  pre- 
ponderance of  the  evidence.  This  is  not  an  attempt  to  reform, 
modify  or  contradict  a  written  instrument,  but  an  effort  to  prove 
a  new  and  executed  contract  based  on  a  new  consideration, 
namely,  the  restoring  to  the  landlord,  of  the  leased  premises : 
1  Greenl.  Ev.  303;  Malone  v.  Dougherty,  79  Pa.  46.  Nor 
is  it  an  attempt  to  escape  the  operation  of  the  statute  of  frauds. 
In  the  language  of  Chief  Justice  Thompson  in  Pratt  v.  Rich- 
ards Jewelry  Co.,  69  Pa.  53,  "  I  cannot  see  wherein  the  statute 
of  frauds  had  anything  to  do  with  it."  So  also  in  Auer  v.  Penn, 
92  Pa.  444,  it  was  said:  '*  The  fact  that  a  lease  is  for  a  longer 
term  than  three  years  does  not  prevent  a  rescission  thereof,  by 
agreement  of  the  parties,  when  accompanied  by  a  surrender  of 


Digitized  by  VjOOQ IC 


ROHBOCK  V.  McCARGO.  143 

1897.]  Opinion  of  the  Court. 

the  term  and  possession,  by  the  tenant  to  the  landlord,  and  the 
acceptance  thereof  by  the  latter.  It  is  not  like  a  sale  and  trans- 
fer, to  a  stranger,  of  an  interest  in  land  greater  than  a  term  of 
three  years,  and  therefore  is  not  within  the  statute  of  frauds.  It 
is  a  yielding  up,  to  the  reversioner,  the  limited  estate  derived 
from  him  whereby  the  future  tenancy  is  rescinded.  The  rela- 
tion of  landlord  and  tenant  is  thereby  ended." 

There  is  no  reason,  therefore,  for  requiring  the  exceptionally 
high  measure  of  proof  necessary  to  take  a  caae  out  of  the  stat- 
ute, or  to  reform  a  writing.  The  degree  of  evidence  that  would 
support  an  allegation  of  the  termination  of  the  tenancy,  or  sus- 
pension of  rent  as  the  result  of  forfeiture,  eviction  or  abandon- 
ment, ought,  on  principle,  to  be  sufficient. 

It  is  true,  that  in  Hooks  v.  Forst,  165  Pa.  238,  the  court 
below  told  the  jury  that  the  evidence  of  surrender  must  be 
clear,  precise  and  indubitable.  As  the  defendants,  who  were 
the  parties  likely  to  be  injured  by  this  instruction,  prevailed  at 
the  trial,  they  had  no  occasion  to  complain  of  it  elsewhere.  It 
is  significant,  however,  that  the  Supreme  Court  uses  language  in 
referring  to  the  instruction,  which  contains  some  ground  for  the 
inference  that,  in  the  opinion  of  that  tnbunal,  the  plaintiffs  had 
been,  if  anything,  too  favorably  treated. 

It  is  due  to  the  learned  trial  judge  to  say  that,  in  his  general 
charge,  he  laid  down  the  correct  rule  as  to  the  measure  of  proof 
required  of  the  defendants,  but  unfortunately  this  was  nullified 
by  his  later  (and,  perhaps,  inadvertent)  affirmance  of  the  plain- 
tiiTs  third  point.  Because  of  this  error,  we  are  compelled  to 
allow  our  judgment,  heretofore  rendered,  to  stand. 


Estate  of  Francis  F.  Lowry,  deceased.     Appeal  of  Mary 
E.  Lapp  et  al. 

Appeals — Credit  given  to  findings  of  auditing  judge— Domicil, 
Where  the  principal  question  before  the  orphans^  court  was  one  of  fact, 
namely,  the  domicil  of  the  decedent,  and  the  auditing  judge  found  that  he 
had  not  lost  his  domicil  of  origin  by  residence  abroad,  which  finding  was 
sustained  on  exception  by  the  court  in  banc;  the  appellate  court  will 
not  disturb  the  conclusion  in  the  absence  of  manifest  error,  there  being 
fufficient  evidence  to  sustain  the  finding  and  decree  of  tlie  court  below. 


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144  LOWRY'S  ESTATE. 

Syllabus— Statement  of  FatJts.     [6  Pa.  Superior  Ct. 

Evidence — Depositions  regularly  taken  and  filed. 

Where  depositions  regularly  taken  are  filed  by  order  of  the  court  they 
thereupon  become  proper  evidence  for  either  party. 

Argued  Oct.  4, 1897.  Appeal,  No.  181,  Nov.  T.,  1896,  by 
Mary  E.  Lapp  and  others  from  the  decree  of  O.  C.  Phila.  Co., 
April  T.,  1894,  No.  260,  in  distribution.  Before  Rice,  P.  J., 
WiCKHAM,  Bbaveb,  Reedee,  Orlady,  Smith  and  Pob- 
TEB,  JJ.    Afl&rmed. 

Exceptions  to  adjudication.    Before  Penbosb,  P.  J. 

It  appears  from  the  record  that  the  estate  of  Francis  F.  Lowry 
was  distributed  in  accordance  with  an  agreement  entered  into 
by  all  of  the  distributees  except  to  the  extent  of  §{2,803.46  which, 
in  accordance  with  the  adjudication  of  the  court  and  the  agree- 
ment of  the  parties  should  remain  with  the  accountant  *'to 
answer  the  contest  between  Sophia  L.  Warden  of  the  one  part 
and  Mary  E.  Lapp,  Lewis  C.  Lowry,  Agnes  Hosmer,  Louisa 
Tatem  Fallon,  Anna  Mary  Wilson,  Allen  G.  Oliver  and  Lewis 
Lowry  Allen  of  the  other  part." 

The  subject-matter  of  the  controversy  which  arose  on  distri- 
bution of  the  estate  of  Francis  F.  Lowry  was  whetlier  the  domi- 
cil  of  the  decedent  was  Philadelphia  or  Paris.  Sophia  Warden, 
the  appellee,  contending  that  the  domicil  of  the  decedent  was 
at  Philadelphia,  and  that  the  distribution  should  be  made,  per 
capita,  in  accordance  with  the  laws  of  Pennsylvania,  while 
Mary  E.  Lapp  et  al.  appellants  here  contended  that  the  domi- 
cil was  Paris,  and  that  distribution  should  be  made  in  accord- 
ance with  the  law  of  the  domicil  per  stirpes,  according  to  the 
French  code. 

The  auditing  judge,  Penrose,  J.,  found  as  a  fact  that  the 
domicil  of  the  decedent  was  at  Philadelphia,  and  made  distri- 
bution per  capita  in  accordance  with  Pennsylvania  laws,  as  will 
more  fully  appear  from  his  adjudication,  which  was  as  follows : 

By  the  adjudication  of  the  account  filed  July  8, 1896,  it  was 
ordered  tliat  distribution  of  the  balance  shown  by  the  account 
as  modified  should  be  made  in  accordance  with  the  agreement 
entered  into  by  all  the  distributees  except  to  the  extent  of 
#2,803.46  which  should  remain  with  accountant  "  to  answer  the 
contest  between  Sophia  L.  Warden  of  the  one  part  and  Mary  E. 
Lapp,  Lewis  C.  Lowry,  Agnes  Hosmer,  Louisa  Tatem  FaUon, 


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LOWRY'S  ESTATE-  145 

1897.]  Statement  of  Facts. 

Anna  Mary  Wilson,  Allen  G.  Oliver,  and  Lewis  Lowry  Allen 
of  the  other  part," — Sophia  L.  Warden  not  having  been  a  party 
to  the  agreement  under  which  such  partial  distribution  was 
made. 

Instead  of  making  application  to  the  auditing  judge,  by  peti- 
tion or  otherwise,  to  decide  the  question  as  to  the  disposition 
to  be  made  of  the  portion  of  the  balance  thus  retained,  the 
accountant  has  filed  the  present  account,  debiting  itself  simply 
with  the  sum  mentioned,  )^2,803.46,  as  if  it  were  not  already 
before  the  court.  The  effect  of  this  is  to  subject  the  amount 
to  unnecessary  costs,  to  increase  the  labors  of  the  court,  and  to 
lead  to  confusion ;  but  as  no  objection  has  been  made  by  coun- 
sel for  the  parties  interested,  and  the  account  has  come  for 
adjudication  before  the  same  judge  who  has  the  original  accoimt, 
the  irregularity  may  be  overlooked,  so  far  at  least,  as  no  one  is 
prejudiced  by  it. 

The  matter  is  however  not  one  purely  of  form.  An  applica- 
tion has  been  made  by  Mr.  Divine  to  strike  from  the  record  the 
deposition  of  going  witnesses,  taken  September  3,  1895,  under 
a  rule  entered  for  the  purpose  by  counsel  for  the  widow  of  the 
decedent,  filed  in  the  clerk's  office  October  22,  1895.  There 
were  two  questions  to  be  determined :  marriage  of  the  decedent 
and  his  domicil,  and  the  purpose  of  the  depositions  was  to 
establish  the  facts  as  to  both.  When  they  were  taken,  Mrs. 
Lowiy  was  represented  before  the  examiner  by  Mr.  Gerhard, 
and  Mr.  Maxwell,  Mr.  Divine,  and  Mr.  Fallon  attended  on 
behalf  of  the  distributees,  respectively,  for  whom  they  are  coun- 
sel. The  fact  of  marriage  seems  now  to  be  admitted  by  all  the 
parties,  but  the  question  of  domicil  is  still  an  open  one ;  and 
Mrs.  Sophia  L.  Warden,  whose  rights  are  not  affected,  by  the. 
agreement  of  compromise  entered  into  by  the  othere,  has,  un- 
questionably, the  right  to  use  the  depositions  so  taken,  though 
not  at  her  instance,  for  the  purpose  of  establishing  the  question 
of  domicil  so  far  as  concerned  the  fund  embraced  in  the  ac- 
count then  before  the  court.  Depositions  taken  under  a  rule 
may  be  used  by  either  party  to  the  controversy,  even  if  not  filed 
(Bennett 'v.  Williams,  67  Pa.  404),  a  fortiori  when  they  have 
been  filed. 

The  result  would  probably  have  been  the  same  even  if  the 
question  had  arisen  as  to  a  new  fund — the  witnesses  being  be- 
VOL.  VI— 10 


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146  LOWRY'S  ESTATE. 

Statement  of  Facts.  [6  Pa.  Superior  Ct: 

yond  the  reach  of  the  court  and  the  testimony  haying  been 
reduced  to  writing  after  full  opportunity  to  all  persons  interested 
to  cross-examine :  Evans  v.  Reed,  78  Pa.  415 ;  Speyerer  v.  Ben- 
nett, 79  Pa.  445 ;  Walbridge  v.  Knipper,  96  Pa.  48,  but  here  it 
is  the  very  fund  itself  or  a  portion  of  it,  and  the  deposition  is 
offered  on  one  of  the  points  which  it  was  taken  to  establish. 
Under  the  authorities  referred  to,  it  may  be  used  by  any  of  the 
parties,  and,  of  course,  the  right  cannot  be  taken  away  by  strik- 
ing the  depositions  from  the  record.  The  distinction  between 
the  present  case  and  Pepper's  Est.,  34  W.  N.  65,  cited  by  Mr. 
Divine,  is  very  manifest. 

The  decedent,  as  appeal's  by  the  adjudication  referred  to, 
died  January  24, 1894,  intestate,  without  issue,  father,  mother, 
brother  or  sister,  leaving  a  widow,  Rebecca  L*  Lowry,  and 
nephews  and  nieces  and  great  nephews  and  nieces,  viz :  (1)  Mary 
E.  Lapp,  tlie  only  child  of  Charles  Lowry,  a  deceased  brother ; 
(^2)  Lewis  C.  Lowry,  the  only  child  of  Lewis  Lowry,  a  deceased 
brother ;  (3)  Sophia  D.  Warden ;  (4)  Caroline  L.  Hutchins ; 
(5)  Mildred  T.  Herring ;  (6)  Henrietta  Herring ;  (7)  Howard 
M.  Herring;  (8)  T.  W.  Fletcher  and  J.  Fletcher;  (9)  Mrs. 
A.  S.  Burch,  Malcolm  L.  Herring  and  T.  R.  Herring;  (10)  Ag- 
nes Hosmer;  (11)  Louisa  Tatem  Fallon;  (12)  Anna  M.  Wil- 
son; (13)  Lewis  Lowry  Allen;  and  (14)  Allen  G.  Oliver. 
Nos.  3,  4,  5  and  6  being  children,  and  Nos.  8  and  9  grand- 
children of  Louisa  L.  Herring,  a  deceased  sister — the  parentK 
of  the  grandchildren  being  respectively,  Mary  E.  Fletcher 
and  Malcolm  L.  Herring,  a  daughter  and  son  who  had  died  in 
her  lifetime ;  Nos.  10  and  11  children  of  Mary  L.  Tatem,  a  de- 
ceased sister;  and  Nos.  12,  13  and  14,  children  and  child  of  a 
deceased  daughter  (Amanda  Allen)  of  Elizabeth  L.  Allen,  a 
deceased  sister. 

He  died  in  Paris,  where  he  had  spent  many  years  in  the  lat- 
ter part  of  his  life — the  question  to  be  determined  is  whether 
he  was  domiciled  in  France  or  in  Pennsylvania.  Under  the 
law  of  France,  if  that  be  the  place  of  domicil,  the  widow,  it  is 
said,  is  entitled  to  more  than  one  half  of  the  estate,  and  the 
nephews  and  nieces,  instead  of  each  taking  a  fourteenth  of  the 
other  half,  as  in  Pennsylvania,  take  per  stiipes,  that  is,  Mrs. 
Lapp  and  Lewis  C.  Lowiy  each  take  one  fifth  of  the  portion 
not  going  to  the  widow,  Mrs.  Hosmer  and  Mrs.  Fallon  one 


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LOWRY'S  ESTATE.  147 

1897.]  Statement  of  Facts. 

fifth,  Anna  M.  Wilson,  Lewis  L.  Allen  and  Allen  G.  Oliver  one 
fifth,  and  Sophia  D.  Warden,  Caroline  L.  Hutchins,  Mildred 
T.  Herring,  Henrietta  Herring,  Howard  M.  Herring,  T.  W. 
Fletcher  and  J.  Fletcher  and  A.  S.  Burch,  Malcolm  L.  Herring 
and  T.  R.  Herring  one  fifth  of  the  share  of  Mrs.  Warden,  being 
in  that  case  but  one  thirty-fifth  (one  seventh  of  one  fifth)  in- 
stead of  one  fourteenth.  It  was  said,  indeed,  by  Messrs.  Divine 
and  Fallon,  that  even  in  Pennsylvania,  as  the  persons  entitled 
are  nephews  and  great  nephews  and  nieces  and  great  nieces  the 
distribution  would  be  made  in  the  same  manner ;  but  this  is 
clearly  not  the  law.  Prior  to  the  act  of  1855,  nephews  and 
nieces  took  to  the  exclusion  of  great  nephews  and  nieces,  and 
where  there  were  no  living  brothers  or  sisters,  the  distribution, 
by  express  provisions  of  the  original  act  (April  8, 1833,  sec.  14, 
P.  L.  315),  was  to  be  made  to  them  in  equal  shares.  The  act 
of  1855  extended  the  representation  among  collaterals  one  de- 
gree further,  so  as  to  include  grandchildren  of  brothers  and 
sisters,  and  give  to  them  ''such  shares  aa  their  parent  would 
have  taken  if  living."  There  is  no  suggestion  of  change  as  to 
the  shares,  and  the  operation  of  the  new  law  is  not  to  be  ex- 
tended beyond  the  purpose  manifestly  intended.  If  no  nephew 
or  niece  had  died,  the  distribution  would  be  made  per  capita ; 
the  act  of  1855  merely  brings  in  the  children  of  such  as  may 
have  died,  who  previously  would  have  been  altogether  excluded 
— and  gives  to  them,  by  representation  of  their  parent,  "  such 
share  "  as  he  would  have  taken  but  for  his  death,  viz :  a  share 
equal  to  what  each  of  the  living  nephews  and  nieces  received. 

The  decedent  was  bom  in  Pluladelphia,  where  for  many  years 
he  carried  on  business.  He  was  a  butcher,  having  a  stall  in  the 
Farmers'  Market,  and  after  reaching  the  age  of  fifty,  he  was 
able  to  retire  with  an  estate  suflicient  in  size  to  permit  him  to 
live  comfortably  on  its  income.  So  far  as  appears  he  owned  no 
real  estate  and  his  securities  were  placed  in  The  Fidelity  Insur- 
ance, Trust  and  Safe  Deposit  Company  for  safe  keeping — re- 
maining there  till  his  death.  He  was  childless,  and  sometime 
between  1872  and  1876  he  and  his  then  wife  went  to  Paris, 
powers  of  attorney  by  which  to  collect  his  income  being  left 
with  the  Fidelity  Company.  His  stay  in  Paris  was  not  contin- 
uous. He  was  in  Philadelphia  during  periods  of  greater  or  less 
duration,  the  longest  time  from  about  July,  1889,  to  August, 


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148  LOWRY'S  KSTATK. 

Statement  of  Facts.  [6  Pa.  Superior  Ct. 

1890,  and  the  last,  so  far  as  the  evidence  shows,  in  1893.  His 
wife  died  in  1890  in  Paris,  and  he  then  returned  with  her  body. 
She  was  buried  in  his  lot  in  Laurel  Hill. 
.  In  1893  he  married  the  lady  who  survived  him  as  his  widow. 
Slie  is  a  French  woman  and  the  marriage  took  place  in  France. 
After  the  remarriage  he  again  came  to  this  country,  returning 
to  Fiance  in  June,  1893.  He  died,  as  already  stated,  in  the  fol* 
lowing  January. 

A  change  of  domicil  works  such  important  consequences, 
both  as  to  the  status  of  the  person  and  the  distribution  of  his 
personal  estate,  that  the  burden  of  proving  a  change  is  upon  the 
party  alleging  it,  and  this  is  not  only  under  settled  principles 
of  public  law,  but  under  the  fundamental  rule  of  evidence  that 
an  established  condition  is  presumed  to  continue.  The  pre- 
sumption stands  until  overcome  by  proof  and  the  proof  must  be 
clear  and  free  from  reasonable  doubt.  Mere  residence  in  a  for- 
eign  country  is  not,  standing  by  itself,  enough.  It  must  appear 
that  the  residence  was  animo  manendi,  and  with  tlie  intention 
of  abandoning  the  former  domicil.  An  established  domicil 
adheres  until  an  intention  to  adopt,  with  an  actual  adoption  of 
a  new  one  is  made  manifest,  and  this  is  emphatically  the  case 
where  the  domicil  alleged  to  have  been  given  up  is  the  domicil 
of  origin.  In  the  leading  case  of  Somerville  v.  Somerville,  5 
Vesey,  750,  the  master  of  the  rolls  (Sir  Richard  Pepper  Arden), 
said:  "The  third  rule  I  shall  extract  is,  that  the  original  domi- 
cile, or  as  it  is  called,  the  forum  originalis,  or  the  domicile  of 
origin,  is  to  prevail  until  the  party  has  not  only  acquired  an- 
other, but  has  manifested  and  carried  into  execution  an  inten- 
tion of  abandoning  his  former  domicile  and  taking  another  as 
his  sole  domicile."  In  Aikman  v.  Aikman,  3  Macq.  854,  it  is 
said  by  Lord  Westbury :  "  Everyone's  domicile  of  origin  must 
be  presumed  to  continue  until  he  has  acquired  another  sole 
domicile  by  actual  residence,  with  the  intention  of  abandoning 
his  domicile  of  origin.  This  change  must  be  animo  et  facto, 
and  the  burden  of  proof  unquestionably  lies  on  the  party  who 
asserts  the  change."  And  in  the  same  case  (page  863)  it  was 
said  by  Lord  Cran worth  :  "  It  is  a  clear  principle  of  law,  that 
the  domicile  of  origin  continues  until  another  domicile  has  been 
acquired,  i.  e.  till  the  person  whose  domicile  is  in  question  has 
made  a  new  home  for  himself  in  lieu  of  the  home  of  his  birth." 


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LOWRY'S  ESTATE.  149 

1897.]  Stateme(it  of  Facts. 

A  domicil  of  choice,  as  distinguished  from  a  domicil  of  origin 
may  be  abandoned  by  simply  ceasing  to  reside  in  it  with  the  in- 
tention of  so  doing,  but  a  domicil  of  origin  is  retained  until 
tiie  actual  acquisition  animo  manendi,  of  a  new  domicil.  Hence 
in  Bell  v.  Kennedy,  L.  R.  1.  Sc.  App.  307,  it  was  held  that  a  per- 
son whose  domicil  of  origin  was  Jamaica,  who  died  in  Scotland, 
after  having  resided  there  for  a  year,  retained  his  original  domi- 
cil, though  he  had  sold  his  estates  there  and  left  Jamaica,  as 
he  had  declared,  "  for  good," — it  not  being  shown  that  he  had 
at  the  time  of  his  death  or  previously,  any  fixed  or  settled  pur- 
pose to  make  Scotland  his  future  home. 

These  principles  are  perfectly  well  settled,  and  they  have 
been  applied  in  countless  cases  decided  in  this  country.  See 
Price  V.  Price,  156  Pa.  617.  Their  application  to  the  case 
now  under  consideration  leads  to  a  conclusion  adverse  to  the 
claim  that  the  estate  of  the  decedent  is  to  be  distributed  accord- 
ing to  the  law  of  France.  There  was  nothing  to  show  that  he 
had  abandoned  his  Philadelphia  domicil  or  that  he  had  acquired 
a  permanent  residence  in  France.  He  did  not  engage  in  busi- 
ness in  the  latter  country.  So  far  as  appears  he  never  even 
became  a  householder  there,  and  his  remittances  were  made, 
not  to  him,  at  any  fixed  place  or  abode,  but  to  his  bankers, 
Drexel,  Harjes  &  Company.  Undoubtedly,  Parisian  life  had 
great  attractions  for  him;  this  was  shown  by  the  testimony 
offered  before  the  auditing  judge  by  Messrs.  Divine  and  Fal- 
lon ;  but  this  was  the  utmost  extent  that  was  shown,  and  there 
was  not  a  syllable  of  evidence  to  show  an  intention  to  renounce 
Philadelphia  as  his  place  of  domicil,  though  he  was  in  constant 
communication  with  the  Fidelity  Company  and  its  officers,  both 
while  abroad  and  in  this  country. 

The  absence  of  all  evidence,  written  or  oral,  of  any  expres- 
sion of  an  intention  to  abandon,  or  that  he  had  abandoned  Phila^ 
delphia  as  his  permanent  home,  is  especially  significant  in  view 
of  the  established  facts  that  during  the  whole  of  his  absence  in 
France,  his  entire  estate  was  permitted  to  remain  in  Philadel- 
phia ;  that  when  his  wife  died,  he  caused  her  to  be  buried,  not 
in  France  where  she  was  at  the  time,  but  in  his  family  lot  in 
Laurel  Hill,  and  that  his  last  dying  wish,  as  shown  by  a  paper 
written  at  his  instance,  was  that  he  too  should  be  buried  in  the 
«am6  place.    It  is  true  that  in  Hood's  Estate,  21  Pa.  106,  tho 


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150  LOWRY'S  ESTATE. 

Statement  of  Facts.  [6  Pa.  Superior  Ct. 

desire  of  the  decedent  to  be  buried  at  the  place  of  his  domicil 
of  origin  and  the  fact  that  some  of  his  securities  were  there,  as 
well  as  the  fact  that  he  had  an  interest  in  business  carried  on 
there,  were  not  regarded  as  important  in  view  of  the  further 
facts  that  he  had  removed  from  such  domicil  during  his  minor- 
ity, had  engaged  in  business  and  established  a  permanent  resi- 
dence in  Cuba,  had  changed  his  religion  in  order  to  become 
domiciled  there,  and  always  considered  himself  as  domiciled 
and  resident  on  the  Island  of  Cuba  where  his  fortune  lay. 
There,  there  was  the  strongest  evidence  of  abandonment  of 
original  domicil,  and  acquisition  of  permanent  residence  in 
Cuba,  while  here,  evidence  of  similar  character  is  wholly  want- 
ing. 

But  the  case  does  not  rest  on  the  mere  absence  of  proof  of 
intention  to  abandon  Philadelphia  as  the  domicil  of  the  dece- 
dent: there  is  positive  uncontradicted  evidence  of  declara- 
tions by  him,  shortly  before  his  death,  that  he  did  not  have  such 
intention.  Arthur  E.  Valois,  whose  testimony  was  taken  by 
deposition  (already  referred  to),  was  consulted  in  his  official 
character  (counsel  for  the  United  States  Consulate  General  at 
l^aris)  by  the  decedent  with  reference  to  his  contemplated  mar- 
riage in  1893,  the  question  of  domicil  being  one  of  importance 
as  affecting  marital  rights,  etc.,  etc.  He  then  stilted  that  his 
domicil  was  Philadelphia,  and  after  his  marriage  his  intention 
was  to  return,  after  some  time.  This  was  said  on  various  occa- 
sions to  Mr.  Valois.  Testimony  to  the  same  effect  was  given 
by  Mrs.  Rosa  Femand,  a  sister  of  the  widow  of  the  decedent, 
to  whom  he  said  "  many  times  "  that  "  he  never  had  a  real  resi- 
dence in  France,  never  learned  to  speak  French ;  and  that  his 
residence  was  Philadelphia,  he  loved  America  very  much." 
The  testimony  of  Mr.  Valois  was  objected  to  by  Mr.  Divine, 
but  so  far  as  the  auditing  judge  can  perceive,  upon  no  substantial 
grounds.  That  he  would  have  no  direct  pecuniary  interest  in 
the  question  before  the  court,  is  apparent;  and  the  fact,  if  it  be 
a  fact,  that  a  professional  relation  existed  between  him  and 
the  decedent,  or  between  him  and  Mrs.  Lowry,  the  widow,  is 
not  available  as  an  objection  on  the  part  of  any  third  peraon : 
Dowie's  Estate,  135  Pa.  210. 

The  estate  of  the  decedent  is  distributable  in  accordance  with 
the  laws  of  Pennsylvania,  except  so  far  as  the  parties  in  inter- 


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LOWRY'S  KSTATE.  151 

1897.]  Statement  of  Facts — Arguments. 

est  have  agreed  to  the  contrary.  Mrs.  Sophia  D.  Warden  is 
not  affected  by  any  agreement. 

A  supplemental  account,  debiting  the  accountant  with  moneys 
recently  remitted  by  Drexel,  Harjes  &  Company  to  close  the 
French  account  (#432.39)  was  presented  and  is  hereto  annexed. 
The  costs  of  filing  the  present  account  will  be  charged  against 
the  moneys  so  received. 

Exceptions  were  filed  to  adjudication,  both  upon  the  findings 
of  fact  and  of  law,  which  exceptions  were  subsequently  dis- 
missed and  the  adjudication  confirmed  by  the  court  in  banc  in 
an  opinion  by  Hanna,  P.  J.,  reported  6  District  Reports,  729, 
whereupon  this  appeal  was  taken. 

Errors  assigned  were  in  dismissing  the  exceptions  to  the 
adjudication  of  the  auditing  judge,  which  exceptions  principally 
turned  on  the  findings  of  fact  hy  the  auditing  judge  that  the 
domicil  of  the  decedent  was  in  Phil^elphia  at  the  time  of  his 
death. 

William  S.  Divine^  with  him  Christopher  Fallon^  for  appel- 
lants.— Ordinarily,  attacking  the  findings  of  fact  of  an  auditing 
judge  are  attended  with  great  difficulty,  but  the  case  at  bar  is 
not  such  a  case  as  gives  the  usual  weight  to  such  findings  of 
fact,  the  domicil  being  an  inference  drawn  from  other  facts : 
Sweatman's  Appeal,  160  Pa.  369. 

The  law,  it  is  admitted,  casts  the  burden  of  proof  upon  the 
party  asserting  the  change  of  domicil.  But  the  appellants  in 
this  case  did  not  allege  a  change  of  domicil  and  the  law  is  well 
settled  that  prima  facie  a  man  is  domiciled  at  the  place  of  his 
residence  at  the  time  of  his  death,  and  it  is  incumbent  upon 
those  who  deny  it  to  repel  the  presumption  of  law :  Guier  v. 
O'Daniel,  1  Binney,  349,  1  American  Leading  Cases,  755; 
Ennis  v.  Smith  (Kosciusko's  Estate),  14  How.  U.  S.  400. 

Prima  facie  the  place  of  residence  is  the  domicil  until  other 
facts  established  the  contrary:  Carey's  Appeal,  75  Pa.  301; 
Ennis  v.  Smith  (Kosciusko's  Estate),  supra. 

And  this  rule  applies  not  only  in  interstate  habitation,  but 
also  where  a  citizen  removes  to  a  foreign  country. 

Where  a  person  removes  to  a  foreign  country  and  settles 
there,  the  pi-esumption  in  favor  of  domicil  of  origin  no  longer 


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152  LOWRY'S  ESTATE. 

Arguments — Opinion  of  the  Court.     [6  Pa.  Superior  Ct. 

exists  and  the  burden  of  disproving  the  domicil  of  choice  falls 
upon  him  who  denies  it :  Hood's  Estate,  21  Pa.  106. 

Robert  2).  Maxwell^  with  him  Victor  Ouillou^  for  appellee. — 
When  a  deposition  is  taken  it  ought  to  be  and  is  equally  the 
property  of  both  parties  and  may  be  given  in  evidence  by  either : 
Gordon  v.  Little,  8  S.  &  R.  533 ;  Nussear  v.  Arnold,  13  S.  & 
R.  323. 

Opinion  by  Smith,  J.,  December  13, 1897 : 

The  principal  question  in  this  case  was  one  of  fact,  namely, 
the  domicil  of  Francis  F.  Lowry  at  the  time  of  his  death.  He 
was  bom  in  Philadelphia  and  lived  to  an  advanced  age,  and  dur- 
ing nearly  all  of  the  last  twenty-five  yeara  of  his  life  he  resided 
in  Paris,  France,  where  he  died  intestate.  So  far  as  appears  he 
never  engaged  in  business  there,  and  his  property  and  business 
remained  in  charge  of  a  trust  company  in  Philadelphia,  where 
he  had  placed  it  before  going  to  Europe.  Testimony  touching 
the  inquiry  was  submitted  to  the  learned  auditing  judge,  from 
which  he  found  that  Lowry  had  not  lost  his  domicil  of  origin, 
and  that,  therefore,  his  estate  should  be  distributed  according 
to  the  laws  of  Pennsylvania.  This  finding  was  approved  by  the 
orphans'  court  and  exceptions  to  the  action  of  the  auditing 
judge  were  dismissed.  Nothing  short  of  manifest  error  would 
warrant  us  in  disturbing  this  conclusion :  Galloway's  Appeal, 
5  Pa.  Superior  Ct.  272.  Whether  the  prolonged  residence  of 
Lowry  in  Paris  would  be  suflBcient  in  itself  to  establish  a  domi- 
cil of  choice  in  France,  it  is  unnecessaiy  to  decide,  because 
there  was  aiBrmative  testimony  plainly  indicating  an  intention 
on  his  part  to  retain  his  citizenship  and  domicil  here.  Even  if, 
as  contended,  the  burden  of  proof  was  cast  upon  the  appellees, 
the  evidence  is  sufficient  to  sustain  the  finding  and  decree  of 
the  court  below.  The  depositions  seem  to  have  been  regularly 
taken  under  a  rule,  and  were  filed  by  order  of  the  court.  There- 
upon they  became  proper  evidence  for  either  party:  Bennett 
V.  Williams,  67  Pa.  404.  There  is  nothing  further  in  the  case 
calling  for  special  notice.  The  specifications  are  dismissed  and 
the  decree  is  affirmed. 


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LOOSE  V.  SCHARFP.  153 

1897.]  Syllabus— ^tatoment  of  Facts. 

Cornelius  Loose,  Appellant,  v.  Willoughby  Scharff. 

Landlord  and  tenant— Way-going  crop— Sale  under  Ji.  fa,  and  vend, 
ex,  of  landlord's  interest. 

Where  a  crop  of  winter  grain  sown  by  the  way-going  tenant  is,  by 
virtue  of  a  local  custom,  the  property  of  the  landlord,  a  sale  under  a  fi.  fa. 
of  the  landlord's  interest  in  the  growing  grain  before  actual  severance 
does  not  of  itself  work  such  an  implied  severance  as  will  pass  the  land- 
lord's title  to  the  purchaser  under  the  fi.  fa.,  as  against  a  subsequent  pur- 
chaser of  the  land,  at  sheriiTs  sale,  who  obtains  a  deed  before  the  tenant's 
lease  expires. 

Argued  Nov.  9, 1897.  Appeal,  No.  96,  Oct.  T.,  1897,  by  plain- 
tiff,  from  judgment  of  C.  P.  Berks  Co.,  Oct.  T.,  1896,  No.  83, 
on  special  verdict  in  favor  of  defendant.  Before  Rice,  P.  J., 
WiCKHAM,  Beaveb,  Oblady,  Smith  and  Pobteb,  J  J.  Af- 
firmed. 

Amicable  action  in  assumpsit.     Before  Enduch,  J« 
On  the  trial  of  the  case  the  jury  found  the  following  special 
verdict : 

1.  Plaintiff  became  the  purchaser  in  December,  1894,  on  an 
execution  issued  at  his  instance  and  levied  upon  the  winter 
crops  in  the  ground  of  the  farm  of  Hibschman  (defendant  in 
said  execution)  in  the  possession  of  J.  L.  Loose,  as  tenant  for 
a  term  beginning  April  1,  1894,  and  ending  April  1, 1896. 

2.  Prior  to  the  levy  of  said  execution  said  Hibschman  had 
not  rented  said  farm  to  said  J.  L.  Loose  for  another  year  be- 
ginning April  1, 1895. 

8.  Defendant  on  February  16, 1895,  became  the  purchaser  of 
said  farm  under  execution  on  a  judgment  entered  to  No.  88, 
December  term,  1894,  J.  D.  in  a  sci.  fa.  sur  mortgage  upon 
said  property. 

4.  The  tenancy  of  said  J.  L.  Loose,  under  the  lease,  begin- 
ning April  1,  1894,  was  under  and  subject  to  the  custom  pre- 
vailing in  this  county,  that  the  incoming  tenant  has  the  benefit 
of  the  winter  crops  in  the  ground  at  the  time,  and  is  bound, 
when  going,  to  leave  a  crop  of  winter  grain  in  the  ground  in 
place  of  that  which  he  found. 

5.  The  value  of  the  crops  levied  upon  by  plaintiff  was,  when 


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154  LOOSE  V.  SCHARFF. 

Statement  of  Facts — Opinion  of  Oouit  below.  [6  Pa.  Supenor  Ct. 

harvested  in  the  summer  of  1896,  after  deduction  of  the  ex- 
pense of  hai'vesting,  $207,  and  said  crops  were  retained  by 
defendant.  If  upon  the  whole  matter  thus  found  the  court 
should  be  of  opinion  that  the  plaintiff  has  a  good  cause  of  action, 
then  we  find  for  the  plaintiff  and  assess  his  damages  at  $227.34. 
If  otherwise,  we  then  find  for  defendant,  as  per  special  verdict 
filed. 

A  motion  for  judgment  on  a  special  verdict  made  by  the 
plaintiff  was  overruled  and  judgment  was  directed  to  be  entered 
for  the  defendant  in  the  following  opinion  by  Endlich,  J. : 

Counsel  for  plaintiff  contends  that  the  long  line  of  decisions 
and  dicta  on  the  question  of  the  landlord's  interest  in  grain  in 
the  ground,  where  the  latter  has  been  rented  upon  shares,  and 
the  liability  of  that  interest  to  seizure  for  his  debts  (Careon  v. 
Blazer,  2  Binney,  475  ;  Stultz  v.  Dickey,  5  Binn.  285  ;  Biggs  v. 
Brown,  2  S.  &  R.  14 ;  Myers  v.  White,  1  R.  353 ;  Stambaugh 
V.  Yeates,  2  R.  161 ;  Demi  v.  Bossier,  1  P.  &  W.  224 ;  Forsythe 
v.  Price,  8  W.  282  ;  Rineliart  v.  Olwine,  5  W.  &  S.  157 ;  Bit- 
tinger  v.  Baker,  29  Pa.  66 ;  Bums  v.  Cooper,  31  Pa.  426  ;  Ream 
V.  Harnish,45  Pa.  376;  Helme  v.  Ins.  Co.,  61  Pa.  107;  Nar^ 
wood  V.  Wilhelm,  69  Pa.  64 ;  Hershey  v.  Metzgar,  90  Pa.  217 ; 
Shaw  V.  Bowman,  91  Pa.  414 ;  Long  v.  Sea  vera,  103  Pa.  517 ; 
Baker  v.  Lewis,  150  Pa.  251),  is  inapplicable  to  a  case  governed 
by  the  custom  found  to  exist  in  this  county.  Be  it  so.  Yet 
notwithstanding  this  custom,  which  simply  requires  the  tenant 
to  leave  a  growuig  crop  when  he  goes,  where  he  found  one  when 
he  came,  it  is  quite  clear  that,  unless  there  had  been  a  previous 
severance,  actual  or  implied,  of  the  growing  grain  from  the  soil, 
the  sale  of  the  realty  was  bound  to  carry  with  it  the  title  to  the 
grain :  Wilkins  v.  Vashbinder,  7  W.  378 ;  Bear  v.  Bitzer,  16 
Pa.  175;  Backentoss  v.Stahler's  Adm'r,  33  Pa.  251 ;  Heysham 
V.  Dettre,  89  Pa.  506;  Hershey  v.  Metzgar,  supra,  p.  219; 
Long  V.  Seavers,  supra,  pp.  521, 522.  The  controlling  inquiry, 
therefore,  in  this  case  must  be  whether  the  execution  of  the 
landlord's  creditor,  levied,  while  the  farm  was  in  the  possession 
of  the  lessee,  upon  the  winter  grain  put  out  by  him  and  in  the 
ground,  as  personalty,  constituted  a  severance  of  the  grain  from 
the  realty,  by  reason  of  which  severance  the  former  passed  to 
the  purchaser  under  said  execution  and  not  to  the  purchaser  at 


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LOOSE  V.  SCHARFF.  155 

1897.]  Opinion  of  Court  below. 

the  subsequent  sale  of  the  land  under  proceedings  upon  the 
mortgage  thei*eon.  Manifestly,  if  the  interest  of  the  landlord  in 
the  growing  grain,  at  the  time  when  it  was  levied  upon,  was  not 
liable  to  seizure  as  pei'sonalty,  no  such  effect  can  be  atti'ibuted 
to  the  execution.  Now,  it  is  said  by  Mr.  Justice  Green,  in 
Long  V.  Seavers,  supra,  p.  519,  that  the  proposition,  that  grain 
growing  in  the  ground  is  personal  property  and  may  be  seized 
and  sold  upon  execution,  relates,  in  its  generality,  only  to  the 
interest  in  the  grain  of  the  person  in  possession.  The  reason  of 
this  limitation  is  obvious  and  demonstrates  its  applicability  with- 
out regard  to  the  matter  of  differing  customs  as  affecting  the 
rights  and  duties  of  the  tenant.  Where  a  man  has  himself  sown 
his  own  land  with  his  own  grain,  he  owns  the  latter  both  as 
grain,  which  is  personalty,  and  as  part  of  the  land  into  which  he 
has  put  it,  which  is  realty.  While  he  remains  in  absolute  con- 
trol, i.  e.,  in  possession  of  the  land,  with  the  grain  in  it,  he  is,  of 
course,  competent  to  treat  the  grain  as  part  of  the  land  or  as 
something  separate  from  it,  i.  e.,  either  in  connection  with  the 
land,  as  realty,  or  apart  from  it,  as  personalty.  Consequently 
his  creditors  have  the  same  right.  An  execution  and  levy  upon 
the  grain  as  personalty,  being,  therefore,  lawful,  wUl  effect  a 
legal  severance  of  the  grain  from  the  soil,  and  a  sale  of  the 
former  under  such  execution  will  invest  the  purchaser  with  the 
title  to  the  grain.  But  where  grain  has  been  put  out  by  a  ten- 
ant, while  in  possession  of  the  land  under  his  lease,  the  landlord, 
during  the  continuance  of  the  term  and  the  tenant's  possession, 
is  the  owner  of  the  grain  in  the  soil  by  virtue  only  of  his  owner- 
ship of  the  land.  That  is,  he  owns  it  as  paH  of  his  land,  which 
is  realty,  and  as  such  only,  therefore,  can  it  be  reached  by  his 
creditors  in  connection  with,  as  appurtenant  to  the  land.  Hence 
an  execution  and  levy  upon  it  as  personalty,  apart  from  the 
land,  is  an  impossible  thing.  Such  an  execution  and  levy  con- 
sequently cannot  work  a  severance  of  the  grain  from  the  soil 
and  a  purchaser  under  it  takes  no  title  as  against  a  subsequent 
execution  purchaser  of  the  land  with  the  grain  in  it.  It  follows 
that,  in  this  case,  the  defendant  is  entitled  to  judgment  upon 
the  verdict 

And  now,  June  21, 1897,  plaintiff's  motion  for  judgment  upon 
the  special  verdict  is  overruled,  and  it  is  ordered  that,  upon 
payment  of  the  verdict  fee,  judgment  be  entered  for  defendant. 

Judgment  for  defendant.    Plaintiff  appealed. 


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156  LOOSE  V.  SCHARFF. 

Assignment  of  Error — Opinion  of  the  Court.  [183  Pa. 

Error  a$siffned  was  in  directing  judgment  to  be  entered  in 
favor  of  the  defendant  on  special  verdict. 

IT,  R.  Green^  with  him  B.  T.  Shearer  and  A.  (7.  Green^  for 
appellant 

Morris  H,  Schaffer  and  Adam  B.  Rieser^  for  appellee. 

Pee  CtmiAM,  December  18, 1897: 

This  dispute  arose  over  the  title  to  a  growing  crop  of  grain. 
The  plaintiff  claimed  as  purchaser  at  sheriff's  sale  of  the  crop 
as  personalty ;  the  defendant  as  purchaser  at  a  subsequent 
sheriff's  sale  of  the  land. 

It  was  decided  in  Long  v.  Seavers^  108  Pa.  517,  that  where 
land  is  let  upon  shares  a  sale  upon  a  fi.  fa.  of  the  landlord's 
share  of  the  growing  grain  before  actual  severance  does  not  of 
itself  work  such  an  implied  severance  as  will  pass  the  landlord's 
title  to  the  purchaser  under  the  fi.  fa.  as  against  a  subsequent 
purchaser  of  the  land  at  sheriff's  sale  who  obtains  his  deed 
before  the  rent  falls  due.  The  Ciise  was  precisely  like  the  pres- 
ent except  in  this  particular.  There  the  subject-matter  of  the 
dispute  was  the  landlord's  sliare,  reserved  as  rent  to  be  deliv- 
ered to  him  when  the  crop  was  harvested  and  divided  ;  here  it 
was  the  whole  crop  of  winter  grain  sown  by  the  tenant  whose  ten- 
ancy was  under  and  subject  to  the  local  custom  prevailing  in 
Berks  county  which  required  him,  when  going,  to  leave  a  crop 
of  winter  grain  in  the  place  of  that  which  he  found.  Notwith- 
standing this  distinction  the  similarity  of  the  two  cases  in  re- 
spect of  the  possession  at  the  time  of  the  sale  of  the  crop  upon 
fi.  fa.  remains.  The  relation  of  landlord  and  tenant  existed,  and 
the  possession  of  the  tenant  was  exclusive.  The  landlord  had 
not  the  actual  or  constructive  possession  of  the  land  or  the 
crop ;  nor  had  he  a  right  to  the  immediate  possession.  He  had 
no  right  to  enter  upon  the  land  demised  to  take  the  crop  or  do 
any  other  act  inconsistent  with  the  tenant's  right  of  possession, 
until  the  expiration  of  the  term,  and  before  that  took  place  the 
land  was  sold  at  sheriff's  sale.  Under  the  act  of  1886,  the  pur- 
chaser of  the  landlord's  title  to  the  land  under  execution  against 
him  is  entitled  to  the  rent  falling  due  after  acknowledgment 
of  the  sheriff's  deed,  whether  it  be  payable  in  money  or  grain. 


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LOOSE  V.  SCHARFF.  157 

t897.]  Opiaion  of  Uie  Couit. 

But  conceding  for  the  purpose  of  the  case  that  the  crop  had  not 
all  the  characteristics  of  rent,  strictly  speaking,  still  the  facts 
as  to  the  possession  seem  to  bring  the  case  within  the  limitation 
of  the  general  rule  as  it  was  stated  by  Mr.  Justice  Gbeen  in 
Long  V.  Sea  vers.  "  It  is  true  that  grain  growing  in  the  ground 
is  personal  property  and  may  be  seized  and  sold  upon  execution : 
Hershey  v.  Metzgar,  90  Pa.  217.  But  that  proposition  in  its 
generality  relates  to  the  interest  in  the  grain  of  the  person  in 
possession."  For  the  reasons  suggested,  which  are  more  fully 
elaborated  in  the  opinion  of  the  learned  judge  of  the  court  below, 
the  judgment  is  affirmed. 


Margaret  Philips  v.  The  Baltimore  Mutual  Aid  Society, 

Appellant. 

Insurance — MtUtud  aid  socieiy — Construction  of  policy— Delay  %n  pay- 
ment—Province ofcotirt. 

Where  membera  of  a  mutual  aid  society  arc  classed  as  nonbenefioial  if 
in  arrears  for  dues  for  more  tlian  three  weeks  and,  even  when  reinstated, 
remain  nonbenefioial  for  five  weeks  thereafter,  the  beneficiary  of  a  mem- 
l>er  so  in  default  cannot  recover  death  benefits.  The  fact  that  the  receipt 
book  of  decedent  shows  acceptance  of  dues  by  the  company  at  iiregular 
times  is  no  evidence  of  an  intent  of  waiver  by  the  company  of  any  riglita 
secured  to  it  by  the  policy  or  to  change  its  terms.  The  facts  being  undis- 
puted,  the  question  was  for  the  court,  and  it  should  have  directed  a  verdict 
for  the  defendant. 

Argued  Oct  20, 1897.  Appeal,  No.  122,  Oct  T.,  1897,  by 
defendant,  from  judgment  of  C.  P.  No.  2,  Phila.  Co.,  June  T., 
1895,  No.  860,  on  verdict  for  plamtiff.  Before  Rice,  P.  J., 
WiCKHAM,  Beavee,  Reedeb,  Oblady,  Smith  and  Porteb,  J  J. 
Reversed. 

Appeal  from  magistrate.    Before  Pennypackeb,  P.  J. 

It  appears  from  the  evidence  that  suit  was  brought  in  assump- 
sit to  recover  for  death  benefits  which  wei'e  admitted  to  be  $50.00, 
and  the  sum  of  $5.00  per  week  sick  benefits,  for  which  the  plain- 
tiff is  the  beneficiary. 

As  to  the  claim  for  benefits  the  defense  set  up  was  a  provi- 
sion of  the  policy  to  this  effect : 


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158  PHILIPS  V.  AID  SOCIETY. 

Statement  of  Facts— Arguments.    [6  Pa.  Superior  Ct. 

**  Any  member  in  arrears  for  more  than  three  weeks*  dues 
shall  not  be  entitled  to  benefits,  but  such  members  can  be  rein- 
stated by  paying  such  arrears,  and  passing  an  examination, 
though  they  will  not  be  entitled  to  benefits  should  sickness, 
accident  or  death  occur  within  five  weeks  from  date  of  reinstate- 
ment." 

By  a  receipt  book  oiBfered  in  evidence  by  the  plaintiff  it  ap- 
peared that  during  the  time  covered  by  the  book,  payments  were 
accepted  from  Hannah  Philips  in  periods  of  three  or  four  weeks, 
and  that  on  the  15th  of  October,  decedent  was  three  or  moi-e 
weeks  in  arrears.     She  died  on  the  22d  of  October,  1894. 

Defendant's  points,  which  were  refused  by  the  court,  wei^e 
as  follows : 

1.  If  the  jury  find  from  the  evidence  that  the  decedent  had 
become  nonbeneficial  by  being  more  tlian  three  weeks  in  arrears 
prior  to  her  death  and  had  not  paid  up  tliose  arrears  more  than 
at  least  five  weeks  prior  to  her  death  so  as  to  become  beneficial 
under  the  terms  of  the  policy,  then  their  verdict  should  be  for 
the  defendant.     Answer :  I  decline  that  point. 

2.  The  verdict  of  the  jury  should  be  for  the  defendant.  An- 
$wer :  I  decline  that  point. 

Verdict  and  judgment  for  plaintiff  for  f61.91.  Defendant 
appealed. 

Errors  assigned  were  refusal  of  defendant's  points. 

Edward  A.  Anderson^  with  him  John  H.  Fow^  for  appellant. — 
The  form  of  this  policy  has  been  passed  upon  by  the  court  of 
common  pleas  in  Dauphin  county,  and  held  to  be  valid  and  bind- 
ing :  Simms  v.  Ins.  Co.,  15  C.  C.  R.  642. 

This  case  is  governed  by  the  rulings  in  Lantz  v.  Ins.  Co., 
139  Pa.  546. 

Although  the  amount  involved  in  this  matter  is  small>  the 
principle  is  important. 

Joseph  W.  Hunsicker^  with  him  Charles  JSunsicker  and  George 
Thoi-n  Hunsickery  for  appellee. — Forfeitures  are  odious  in  law 
and  are  enforced  only  where  there  is  the  clearest  evidence  that 
that  was  what  was  meant  by  the  stipulation  of  the  parties: 
Helnie  v.  Ins.  Co.,  61  Pa.  107. 


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PHILIPS  V.  AID  SOCIKTr.  159 

1897.]  Arguments — Opinion  of  tlie  Court. 

The  case  of  Simins  v.  Ins.  Co.,  cited  by  the  appellant,  does 
not  apply  to  this  case.  The  other  case  cited  by  the  appellant 
of  Lantz  v.  Ins.  Co.,  only  decides  that  the  company  was  not 
bound  to  accept  the  premium  after  the  death  of  the  insured. 

Opinion  by  Porter,  J.,  December  13, 1897  : 
In  the  policy  of  insurance  sued  on  was  the  provision :  **  Any 
member  in  arrears  for  more  than  three  weeks'  dues,  shall  not  be 
entitled  to  benefits,  but  such  members  can  be  reinstated  by  pay- 
ing such  arrears  and  passing  au  examination,  though  they  will 
not  be  entitled  to  benefits  should  sickness,  accident  or  death 
occur  within  five  weeks  from  date  of  reinstatement."  The 
plaintiff,  the  mother  of  the  insured,  submitted  testimony  to 
prove  the  identity  of  the  insured  and  the  death  on  October  22, 
1894.  She  offered  in  evidence  the  policy  and  a  so-called  receipt 
book  showing  payments  of  dues  or  premiums.  The  defendant 
offered  no  evidence,  claiming  that  the  entries  in  the  receipt  book 
showed  that  the  insured  was  in  default  at  the  time  of  her  death. 
The  policy  was  dated  December  20,  1889.  The  insured  had 
been  paying  dues  for  nearly  five  years.  The  policy  and  receipt 
book  were  found  in  her  trunk  after  her  death.  There  was  no 
evidence  indicating  with  what  regularity  she  paid  her  dues  pre- 
ceding April,  1894.  The  receipt  book  included  only  payments 
made  from  April  9, 1894,  to  the  time  of  the  death  of  the  insured, 
but  recited  "  old  book  paid  up  to  date."  There  was  no  testi- 
mony to  explain  the  entries  in  the  receipt  book,  which  consisted 
merely  of  dates  and  initials.  In  the  absence  of  such  explanation 
they  would  seem  to  indicate  that  the  insured  had  made  payment 
of  her  dues  not  on  the  days  contemplated  by  the  policy,  but  at 
irregular  periods, — most  of  them  when  she  was  more  than  three 
weeks  in  arrear.  This  however  was  not  evidence  of  an  inten- 
tion to  waive  any  rights  under  the  policy  or  to  vary  any  of  its 
terms.  It  was  a  couise  permissible  by  the  stipulation  above 
quoted.  The  purpose  of  that  clause  was  to  give  the  insured  an 
opportunity  to  avert,  in  part,  the  effect  of  failure  to  pay  the 
premiums  when  due.  It  gave  a  right  of  reinstatement  but  at- 
tached the  condition  that  she  should  not  be  entitled  to  benefits 
for  five  weeks  subsequent  to  such  reinstatement.  By  the  re- 
ceipt l)ook  it  appears  that  on  October  8,  1894,  being  then  more 
than  three  weeks  in  arrears,  she  made  a  payment  reinstating 


Digitized  by  VjOOQ IC 


leO  PHILIPS  V.  AID  SOCIKIY. 

Opinion  of  the  Couit.  [6  Pa.  Superior  Ct. 

herself.  She  died  October  22,  1894,  within  the  five  weeks  fol- 
lowing the  reinstatement.  The  insured  being  thus  in  default 
by  the  terms  of  the  policy  the  beneficiary  was  entitled  to  no 
benefit  thereunder. 

We  are  therefore  of  opinion  that  the  learned  trial  judge  erred 
in  not  directing  a  verdict  for  the  defendant.  The  second  as- 
signment of  error  is  sustained  and  the  judgment  is  reversed. 


P.  A.  Althouse  v.  Mrs.  James  B.  Hunsberger,  Catherine 
M.  Hunsperger,  Appellant. 

Judgment—When  appliccUion  to  set  aside  mainicUned, 
An  application  to  vacate  and  set  aside  a  judgment  can  be  maintained 
only  on  the  ground  of  defects  apparent  on  the  face  of  the  record. 

Judgment— Mistaken  name — Service  of  process. 

If  a  party  is  sued  by  a  wrong  or  fictitious  name,  or  by  some  designation 
which  includes  a  part  only  of  his  name,  and  is  personally  served  with 
process,  and  fails  to  urge  the  misnomer  in  any  way,  a  judgment  entered 
against  him  by  such  mistaken,  fictitious  or  impei*fect  name,  is  valid  and 
enforceable. 

Catharine  M.  Hunsberger  was  sued  as  Mi*s.  James  B.  Hunsperger,  was 
seived  witli  process  and  allowed  judgment  to  be  entered  against  her  by 
default  under  that  name.  Heldt  that  Catharine  M.  Hunsperger  is  not  in 
position  to  urge  this  mispomer,  or  use  of  a  fictitious  name  as  constituting 
a  defect  vitiating  the  judgment  as  between  herself  and  the  holder  of  it. 

Judgment— Motion  to  strike  off— Laches — Equity, 

Where  the  record  shows  that  defendant,  being  served  with  process  in  a 
suit  before  an  alderman,  failed  to  defend  the  same  but  suffered  judgment 
by  default,  and  neglected  to  take  an  appeal  or  certiorari,  by  one  or  the 
other  of  which  every  right  she  subsequently  alleged  in  a  petition  to  strike 
off  the  judgment,  might  have  been  adequately  protected,  the  court  will 
not  exercise  its  equitable  power  to  stay  execution  or  interfere  with  the 
judgment. 

Argued  Nov.  9,  1897.    Appeal,  No.  92,  Oct  T.,  1897,  by 

defendant,  from  order  of  C.  P.  Berks  Co.,  May  T.,  1897,  No. 

48,  discharging  rule  to  vacate  judgment.     Before  Rice,  P.  J., 

WicKHAM,  Beaver,  Oelady,  Smith  and  Porter,  J  J.    Af* 

Armed. 

Rule  to  vacate  or  set  aside  judgment    Before  Enduch,  J. 

Digitized  by  VjOOQ IC 


ALTHOUSR  V.  HUNSBERGER.  161 

1897.]  Statement  of  Facts. 

Judgment  was  entered  by  a  magistrate  against  Mrs.  James  B. 
Hunsberger  for  $28.00.  Transcript  was  filed  in  the  common 
pleas.  A  rule  subsequently  was  taken  to  vacate,  which  upon 
hearing  was  dismissed  in  an  opinion  by  Endlich,  J.  (in  which 
further  facts  sufficiently  appear),  as  follows : 

Judgment  having  been  entered  against  Mrs.  James  B.  Huns- 
berger by  an  alderman,  a  transcript  thereof  was  in  due  couree 
filed  in  this  court  to  No.  48,  May  term,  1892,  J.  D.  An  ap- 
plication by  defendant  to  open  this  transcripted  judgment  was 
refused  for  reasons  given  in  an  opinion  filed  June  20, 1896. 
A  pluries  writ  of  vend.  ex.  was  thereupon  issued  by  plaintiiBf  to 
No.  1,  June  term,  1897,  E.  D.,  and  the  court  is  now  asked  by 
Catharine  M.  Hunsberger  (or  Hunsperger)  to  stay  the  execu- 
tion thereof  upon  her  property  and  to  vacate  and  set  aside  the 
judgment. 

I.  An  application  to  vacate  and  set  aside,  i.  e.,  to  strike  off, 
a  judgment  can  be  maintained  only  on  the  ground  of  defects 
apparent  on  the  face  of  the  record :  O'Hara  v.  Baum,  82  Pa. 
416;  Allen  v.  Krips,  119  Pa.  1 ;  France  v.  Ruddiman,  126  Pa. 
257  :  Adams  v.  Grey,  154  Pa.  258 ;  Brewmg  Co.  v.  Bootli,  162 
Pa.  100 ;  North  &  Co.  v.  Yorke,  174  Pa.  349;  Hall  v.  Pub. 
Co.,  180  Pa.  561 — which  may  include  such  undenied  averments 
in  the  applicant's  petition  as  go  to  complete  the  record :  Hiller 
V.  Niedzielska,  176  Pa.  409.  The  supposed  defect  of  this  judg- 
ment, relied  on  by  counsel,  is  the  fact  that  the  name  of  the 
defendant  therein  is  given  as  "  Mrs.  James  B.  Hunsberger." 
Conceding  that  "  Mrs."  is  not  a  legal  name.  State  v.  Gibbs,  44 
N.  J.  L.  169 — but  merely  an  indication  of  the  sex  of  a  person 
named,  Elberson  v.  Richards,  42  N.  J.  L.  69 — it  is,  nevertheless, 
true  that  the  remainder  of  the  description  of  defendant  in  this 
judgement,  containing  what  may  be  a  baptismal  and  a  surname, 
is  not,  as  a  matter  of  law,  so  indescriptive  as  to  render  the  judg- 
ment necessarily  void  under  the  doctrine  of  the  above  and  sim- 
ilar cases.  The  worst  that  can  be  said  of  it  is  that  it  is  to  be 
treated  as  a  wrong  or  fictitious  name.  Now,  the  rule  seems  to 
be  that  if  a  party  "  was  sued  by  a  wrong  or  fictitious  name,  or 
by  some  designation  which  included  a  part  only  of  his  name, 
and  was  personally  served  with  process,  and,  failing  to  urge  the 
misnomer  in  any  way,  judgment  was  entered  ....  against  him 
,  .  •  ,  by  such  mistaken,  fictitious  or  imperfect  name,  it  is  valid 
Vol.  vi-11 


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162  ALTHOUSE  v.  HUNSBERGER. 

Statemeijt  of  Facts.  [6  Pa.  Superior  Ct. 

and  enforceable ; "  1  Freeman,  Judgments,  see.  50^,  154.  The 
averments  of  Catharine  M.  Hunsperger's  petition  show  that  she 
is  the  person  sued  as  "  Mrs.  James  B,  Hunsberger,"  and  the 
transcript  discloses  the  fact  that  the  person  so  sued  was  person- 
ally served  with  process  and  that  she  allowed  judgment  to  be 
given  against  her  by  default  under  tliatname,  which  judgment, 
transcripted  into  this  court,  is  the  one  now  in  question.  It 
would  appear,  therefore,  that  Catharine  M.  Hunsperger  is  not 
in  a  situation  to  urge  this  misnomer  or  use  of  a  fictitious  name, 
as  constituting  a  defect  vitiating  the  judgment  as  between  her- 
self and  the  holder  of  it. 

As  concerns  the  petitioner's  allegations  of  fraud,  res  adjudicata, 
etc.,  though  they  appear  undenied  by  answer,  these  are  matters 
necessarily  dehors  the  record  and  therefore  not  available  in  this 
application.  Indeed  they  come  clearly  within  that  class  of  mat- 
ters which  ought  to  have  been  raised  by  appeal  or  certiorari, 
and  on  the  ground  of  which,  for  that  reason,  a  judgment  entered 
on  a  transcript  from  a  magistrate  can  be  neither  opened  nor  set 
aside :  McKinney  v.  Brown,  130  Pa.  365. 

2.  The  equitable  power  of  the  court  to  stay,  in  a  proper  case, 
^ven  indefinitely,  execution  process  issued  upon  a  judgment 
therein,  is  not  to  be  questioned,  Harrison  v-  Soles,  6  Pa. 
S93 ;  Feagley  v.  Norbeck,  127  Pa.  238,  and  doubtless  may  be 
exercised  though  the  judgment  be  one  entered  upon  a  tran- 
script from  a  magistrate :  see  Engard  v.  O'Brien,  9  Phila.  559. 
But  being  an  equitable  power,  it  is  exercised  upon  principles 
of  equity.  These  (where  there  has  been  no  agreement  or  for- 
bearance or  the  like)  forbid  its  exercise  except  upon  a  clear 
showing  that  the  defendant  has  used  due  diligence  and  ex- 
hausted every  legal  means  of  defense  or  redress,  or  has  been 
prevented,  without  fault  of  his  own,  from  doing  so.  It  is  not 
necessary  to  discus3  a  proposition  so  fundamental.  See  1  Black, 
Judgments,  sees.  865,  374,  378,  387.  The  record  here  shows 
that  the  defendant,  being  served  with  process  in  a  suit  be- 
fore an  alderman,  failed  to  defend  the  same,  but  suffered  judg-; 
ment  to  go  against  her  by  default,  and  that  without  presence 
of  ignorance  of  the  fact  that  she  neglected  to  take  an  appeal  or 
certiorari,  by  one  or  the  other  of  which  every  right  she  now; 
f^Ueges  to  have  had  might  have  been  adequately  protected.    In 


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ALTHODSE  v.  HUNSBKRGER.  163 

1897.]  Statement  of  Facts— Opinion  of  the  Court. 

these  circumstances  it  seems  very  manifest  that  the  redress  she 
asks  cannot  be  granted  without  violating  well  settled  rules. 
The  rule  to  show  cause  is  discharged. 

Urror  assigned  among  others  was  refusal  to  make  absolute 
the  rule  to  show  cause  why  the  judgment  should  not  be  va- 
cated or  set  aside. 

2>.  H.  Schroeder^  for  appellant. 

John  F.  Smithy  for  appellee. 

Peb  Cubiam,  December  18,  1897 : 

The  very  earnest  argument  of  the  defendant's  counsel  has 
failed  to  convince  us  that  the  court  committed  error  in  dis- 
charging the  rule  entered  in  the  present  case  or  in  entering 
judgment  in  the  succeeding  case.  Its  action  in  both  cases  is  so 
thoroughly  vindicated  in  the  opinions  filed  as  to  render  further 
discussion  unnecessary  and  unprofitable. 

Order  aflSrmed  and  appeal  dismissed  at  the  cost  of  the  appel- 
lant 


P.  A.  Althouse  v.  Mrs.  Jas.  B.  Hunsberger,  with  notice 
to  terre-tenant,  if  any.  Catharine  M.  Hunsperger, 
Appellant. 

Judgment— Bevival^Defense  on  original  merits. 

In  an  action  to  revive  a  judgment,  it  appearing  that  defendant  had  been 
duly  served  with  process  in  the  original  proceedings  which  had  been 
prosecuted  to  judgment,  which  had  never  been  appealed  from,  defendant 
must  be  understood  to  have  waived  her  right  to  question  its  validity. 

Argued  Nov.  9, 1897.  Appeal,  No.  149,  Oct  T.,  1897,  by 
defendant,  from  judgment  of  C.  P.  Berks  Co.,  May  T.,  1897, 
No.  23,  reviving  and  continuing  lien  of  judgment  et  quare  exe- 
cutionem  non.  Before  Rice,  P.  J.,  Wickham,  Beaver,  Or- 
LADY,  Smith  and  Porter,  JJ.    Affirmed. 

Sci.  fa.  to  revive  judgment.    Before  Endugh,  J. 

Digitized  by  V^OOQ IC 


164  ALTHOUSE  v.  HUNSBERGER. 

Statement  of  Facts — Assignment  of  Errors.    [6  Pa.  Superior  Ct. 

The  facts  sufficiently  appear  from  a  portion  of  the  opinion  of 
the  court  below,  which  is  as  follows : 

This  is  a  sci.  fa.  to  revive  the  lien  of  a  judgment  entered  to 
No.  48,  May  term,  1892,  J.  D.,  on  a  transcript  from  an  alder- 
man's docket,  et  quare  executionem  non.  The  writ  was  issued 
against  "  Mrs.  James  B.  Hunsberger  with  notice  to  terre-ten- 
ants, if  any,"  and  returned  served  on  Mrs.  James  B.  Hunsber- 
ger, defendant,  and  George  M.  Christ,  terre-tenant.  Affidavits 
of  defense  have  been  filed  by  the  latter  and  by  Catharine  M. 
Hunsberger. 

The  affidavit  of  Catharine  M.  Hunsperger  starts  out  with  an 
admission  that  the  affiant  is  the  party  sued  as  *'  Mrs.  James  B. 
Hunsberger."  It  then  recites  the  history  of  the  litigation  out 
of  which  the  judgment  sought  to  be  revived  arises,  again  aver- 
ring the  identity  of  "  Mrs.  James  B.  Hunsberger,"  "  Kate  Huns- 
berger" and  the  affiant,  and  declares  that  the  judgment  of  the 
alderman  against  her  was  given  fraudulently,  in  pursuance  of  a 
conspiracy  between  the  alderman  and  the  plaintiff,  the  former 
having  knowledge  that  a  previous  suit  before  another  magis- 
trate, between  the  same  parties  and  for  the  same  cause  of  action, 
had  been  decided  in  her  favor,  which  decision  was  not  appealed 
from,  and  having  assured  her  that  he  would  not  enter  judg- 
ment against  her.  There  is  no  allegation  that  she  was  ignorant 
of  the  entry  of  the  judgment  by  the  alderman.  What  is  not 
averred  in  an  affidavit  of  defense  is  taken  not  to  exist:  Lord  v. 
Ocean  Bank,  20  Pa.  384.  If  defendant  was  cognizant  of  the 
decision  against  her,  it  was  her  right  and  duty  to  appeal  or 
certiorari  the  proceeding  before  the  alderman.  Not  having 
chosen  to  do  so,  she  must  be  understood  as  having  waived  her 
right  to  question  its  validity.  The  matters  alleged  in  her  affi- 
davit, therefore,  would  not  avail  her  as  a  defense  before  a  jury, 
and  are  for  that  reason  (Wanner  v.  Eman.  Church,  174  Pa. 
466),  insufficient  to  prevent  judgment  against  her. 

Judgment  of  revival  in  favor  of  plaintiff  for  $36.40.  Defend- 
ant appealed. 

Error  assigned  was  in  making  the  rule  for  judgment  abso- 
lute against  Mrs.  James  B.  Hunsberger. 

2>.  E.  Schroeder,  for  appellant. 

Digitized  by  VjOOQ IC 


ALTHOUSE  t;.  HUNSBERGEB.  165 

1897.]  Opinion  of  the  Court 

John  F.  Smithy  for  appellee. 

Pbb  Cubiam,  December  18, 1897 : 

The  judgment  is  affirmed.     (See  preceding  case.) 


Benjamin  Irwin^  Assignee,  Appellant,  v.  James  F.  Han- 
thorn  and  Ellen  Hanthorn. 

iVocttce,  Superior  Cour^^ Appeals— Sufficiency  of  bail. 

Under  tlie  act  of  1895  an  appeal  to  the  Superior  Court  was  not  effectual 
unless  bail  for  the  costs  of  the  appeal  be  given,  and  an  appeal  was  dis- 
missed where  the  judge  of  the  court  below,  on  exception  taken  to  the  suf- 
ficiency of  the  bail  bond,  made  the  following  order:  **  After  hearing  I 
decline  to  approve  within  bond,  because  not  signed  by  the  pliuntiff,  and 
the  insufficiency  of  the  security  offered.^' 

Appeal— Practice^  C.  P. — Execution  for  costs. 

An  appeal  will  not  be  sustained  assigning  error  in  an  execution  for  costs 
based  on  the  assumption  that  they  had  not  been  taxed  by  the  prothonotary 
where  the  record  of  the  proceedings  prior  to  the  execution  has  neither  been 
printed  nor  brought  up,  and  where  there  is  no  allegation  that  the  appel- 
lant filed  exceptions  or  made  any  effort  to  have  the  legality  of  the  costs 
adjudicated  in  the  regular  way. 

Costs— Taxation — Practice,  C.  P. 

Conceding  that  the  court  has  the  inherent  power  to  determine  in  a  sum- 
mary way  the  legality  of  costs,  the  oi*derly  and  usual  method  of  invoking 
the  exercise  of  the  power  is  by  filing  exception,  entering  a  rule  to  have 
the  costs  taxed  or  retaxed  before  the  prothonotary,  and  appealing  from  his 
decision  to  the  court  of  common  pleas. 

Argued  Nov.  19, 1897.  Appeal,  No.  170,  Nov.  T.,  1896,  by 
plaintiff,  from  order  of  C.  P.  Chester  Co.,  Aug.  T.,  1896,  No.  102, 
to  set  aside  execution  issued  for  costs.  Before  Rice,  P.  J., 
WiOKHAM,  Bbavbb,  Reedeb,  Oblady,  Smith  and  Pobteb,  J  J. 
Affirmed. 

Rule  to  set  aside  execution  for  costs.    Before  Hemphill,  J. 

It  appears  from  the  record  that  a  judgment  of  compulsory 
nonsuit  was  entered  against  the  plaintiff  in  this  case  in  1895, 
and  was  subsequently  affirmed  by  the  Superior  Court  in  1896 
(see  Irwin  v.  Hanthorn,  1  Pa.  Superior  Ct  149).     An  execu- 


Digitized  by  VjOOQ IC 


166  IRWIN  V,  HANTHORN. 

Statement  of  Facts — ^Assignment  of  Errors.    [6  Pa.  Superior  Ct. 

tion  was  subsequently  issued  for  sheriff's  and  prothonotory's  fees 
and  costs.  This  rule  was  discharged  in  an  opinion  by  Hemp- 
hill, J.,  as  follows : 

This  is  a  rule  to  show  cause  why  the  above  execution  issued 
for  costs,  shall  not  be  set  aside,  because  the  same  have  never 
been  taxed  by  the  prothonotary.  An  inspection  of  the  record 
shows  that  the  execution  was  issued,  not  strictly  speaking,  for 
costs  but  for  fees,  the  amount  being  made  up  of  officers'  fees 
and  verdict  and  judgment  fees. 

"  Costs,"  says  Mr.  Justice  Gibson,  in  Musser  v.  Good,  11 
S.  &  R.  248,  "  are  an  allowance  to  a  party  for  expenses  incurred 
in  conducting  his  suit;  fees  are  a  compensation  to  an  officer  for 
services  rendered  in  the  progress  of  the  cause." 

See  also  Howard  Asso.  v.  Phila.  &  Reading  R.  R.  Co.,  102 
Pa.  220.  The  former  are  party  costs  and  require  taxation; 
but  the  latter  being  officers'  fees  or  record  costs,  do  not.  That 
party  costs  alone  require  taxation  is  apparent  from  our  rule  of 
court,  relaitive  to  taxation  of  costs,  which  provides  that  "  the 
affidavit  of  the  party  or  other  pereon  to  the  correctness  of  the 
bill  and  the  attendance  and  materiality  of  the  witnesses,  shall 
be  annexed  and  shall  be  good  prima  facie  evidence  to  the  tax- 
ing officer."  There  being  no  party  bill  of  costs  filed  in  this  case 
there  was  nothing  for  the  prothonotary  to  tax,  and  the  rule  is 
therefore  dismissed. 

OBDEB  OF  COURT  ON  BACK  OP  BOND. 

October  21, 1896,  after  hearing,  I  decline  to  approve  within 
bond  because  not  signed  by  plaintiff,  and  the  insufficiency  of 
the  surety  offered. 

Urrora  {uaigned  were  (1)  In  awarding  the  executions  in  this 
case.  (2)  In  refusing  to  set  aside  the  execution  of  No.  102, 
August  term,  1896,  issued  for  costs.  (8)  In  its  opinion  filed  in 
deciding  that  it  was  not  necessary  to  tax  officers'  fees  in  a  suit 
in  court.  (4)  In  its  order  of  October  21,  1896,  made  on  the 
back  of  the  bond  on  appeal,  said  order  being  as  follows:  "After 
hearing  I  decline  to  appi*ove  within  bond  because  not  signed  by 
plaintiff,  and  the  insufficiency  of  the  surety  offered."  (6)  In 
not  allowing  the  appellant  a  reasonable  time  in  which  to  either 
have  the  surety  justify  or  procure  additional  sureties. 


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IRWIN  V.  HANTHORN.  167 

1897.]  Opinion  of  the  Court. 

W.  S,  Harris^  for  appellant. 

J.  Frank  E.  Hause^  for  appellee. 

Pbb  Cubiam,  December  13, 1897 : 

A  scire  facias  sur  mortgage  was  issued  by  the  plaintiff  against 
the  defendants  and  upon  the  trial  of  the  issue  a  verdict  was 
rendered  for  the  defendants.  The  plaintiff  appealed  to  this 
court  from  the  judgment  entered  thereon,  and  the  judgment  of 
the  court  below  was  affirmed  (1  Pa.  Superior  Ct.  149).  A 
fi.  fa.  was  afterwards  issued  to  collect  the  costs.  Upon  the 
plaintiff's  petition  alleging  "  that  the  costs  in  said  case  liave 
never  been  taxed  or  the  amount  due  ascertained  by  any  process 
of  law  whatever  "  the  court  granted  a  rule  to  show  cause  why 
the  execution  should  not  be  set  aside.  From  the  order  dis- 
charging this  rule  the  present  appeal  was  taken  on  October  16, 
1896. 

The  defendants  excepted  to  the  sufficiency  of  the  bail  on  the 
appeal  bond,  and  on  October  21, 1896,  a  judge  of  the  court 
below  made  the  following  order:  "After  hearing,  I  decline  to 
approve  within  bond  because  not  signed  by  the  plaintiff,  and 
the  insufficiency  of  the  surety  offered."  The  effect  of  this 
order  was  to  leave  the  appeal  in  the  same  condition  as  if  no 
bail  had  been  entered ;  and  under  the  Act  of  June  24,  1895, 
P.  L.  212,  an  appeal  to  this  court  was  not  effectual  for  any  pur- 
pose unless  bivil  for  costs  of  the  appeal  was  given :  Marks  v. 
Baker,  2  Pa.  Superior  Ct.  167 ;  Page  v.  McNaughton,  2  Pa. 
Superior  Ct.  519.  Doubtless  the  court  might,  and  perhaps  ought 
to  have  permitted  the  plaintiff  to  enter  new  bail  within  a  reason- 
able time  after  the  original  bail  was  adjudged  insufficient,  if 
proper  application  had  been  made ;  but  the  record  brought  up  to 
us  fails  to  show  that  such  application  was  made,  or  that  a  new 
bond  was  filed  or  tendered ;  and,  of  course  we  must  be  guided 
by  the  record. 

Even  if  the  motion  to  quash  were  not  to  prevail  we  would 
be  unable  to  sustain  the  assignments  of  error.  The  complaint 
is,  that  the  execution  for  costs  was  improvidently  issued,  be- 
cause, as  we  are  asked  to  assume,  they  had  not  been  taxed  by 
the  prothonotary.  But  whether  or  not  there  was  such  taxation 
of  them,  as,  in  the  absence  of  exception  and  appeal  from  the 


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168  IRWIN  V.  HANTHORN. 

Opinion  of  the  Court.  [6  Pa.  Superior  OL 

protlionotary's  action,  would  be  sufficient  to  support  the  execu- 
tion, and  whether  or  not  the  costs  taxed  were  specifically  such 
as  the  law  allows  are  questions  which  a  court  of  error  cannot 
decide  without  having  before  it  the  record  of  the  proceedings 
prior  to  the  issuing  of  execution.  This  has  neither  been  printed 
nor  brought  up ;  all  that  we  have  before  us  are  the  execution 
docket  entries,  the  executions  and  what  follows.  These  are 
not  sufficient  to  show  the  error  complained  of.  Furthermore 
the  plaintiff  does  not  allege  in  his  affidavit  that  he  filed  any 
exceptions  to  the  fees  charged  by  the  sheriff  and  prothonotary 
(for  the  collection  of  which  the  execution  issued)  or  that 
they  were  illegal,  or  that  he  had  made  any  effort  to  have  their 
legality  adjudicated  in  the  regular  way.  Conceding  that  the 
court  possesses  the  inherent  power  to  determine  in  a  summary 
way  the  legality  of  such  charges,  as  well  as  the  party's  bill  of 
costs,  the  orderly  and  usual  mode  of  invoking  the  exercise  of 
the  power  is  by  filing  exceptions,  entering  a  rule  to  have  the 
costs  taxed  or  retaxed  before  the  prothonotary,  and  appealing 
from  his  decision  to  the  court  of  common  pleas.  The  plaintiff 
does  not  claim  that  he  attempted  to  pursue  this  course ;  and  in 
the  absence  of  specific  exceptions  to  tlie  fees  charged  or  aver- 
ment in  his  affidavit  that  they  were  illegal  or  excessive,  the 
court  committed  no  error  in  refusing  to  set  aside  the  execution. 
Appeal  dismissed  at  the  cost  of  the  appellant. 


Samuel  Goodman,  Wm.  E.  Goodman  and  Joseph  E.  Good- 
man, trading  as  Harrington  &  Goodman,  Appellants, 
V.  The  Merchants'  Despatch  Transportation  Company. 

Coniract^Shipping  receipt — Bitt  of  lading. 

When  a  shipping  receipt  provides  that :  **  The  acceptance  of  this  receipt 
for  goods  made  subject  to  the  provisions  of  the  bill  of  lading  of  this  com- 
pany makes  this  an  agreement  between  the  M.  D.  T.  Co.  and  camera 
engaged  in  tmnsporting  said  goods  and  all  parties  interested  in  the  prop- 
erty," such  provision  in  the  receipt  requires  the  shipping  receipt  and  the 
bill  of  lading  to  k>e  i-ead  together  as  constituting  the  agreement. 

Common  carrier— Misdelivery  of  goods — Evidence — Question  for  Jury, 
A  suit  was  brought  by  plaintiff  against  a  transportation  company  for 
alleged  misdeliveiy  of  goods,  consigned  to  R.  of  Tyler,  Texas,  by  deliv- 


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GOODMAN  V.  TRANSPORTATION  CO.  169 

1897.]  Syllabns— Charge  of  Court. 

ering  same  to  M.  at  Dallas,  Texas.  Held,  that  the  question  was  for  the 
jmy  under  the  tenns  of  the  contract  as  entered  into  between  the  transpor- 
tation company  and  the  consignor,  as  evidenced  by  the  shipping  receipt 
and  bill  of  lading,  whether  the  company  had  shown  a  good  excuse  other 
than  negligence,  for  not  having  delivered  the  goods  to  R.  the  consignee ; 
whether  it  did  all  that  a  prudent,  reasonable,  comroonsense  business  man 
would  have  done  to  insure  a  proper  delivery  to  the  pmper  person ;  and 
whether  the  transportation  company  had  shown  that  it  was  not  negligent. 

Common  carrier— Negligence  imicliven/  of  goods— Question  for  jury , 
In  a  question  of  negligence  arising  from  alleged  misdelivery  of  goods 
by  a  transportation  company,  held,  that  the  JU17  may  take  into  consider- 
ation the  conduct  of  consignor  towaixi  the  person  to  whom  the  goods  were 
delivered  after  receipt  by  him  and  any  delay  which  may  have  occurre<l 
in  notifying  the  transportation  company  of  such  alleged  misdelivery  and 
the  relation  of  the  recipient  of  the  goods  toward  the  consignee. 

Argued  Oct.  7,  1897.  Appeal,  No.  67,  Oct.  T.,  1897,  by 
plaintiffs,  from  judgment  of  C.  P.  No.  4,  Phila.  Co.,  March  T., 
1895,  No.  1052,  on  verdict  for  defendant.  Before  Rice,  P.  J., 
WiCKHAM,  Beaver,  Reedee,  Orladv,  Smith  and  Por- 
ter, JJ.    AflSrmed. 

Assumpsit  for  the  recoveiy  of  the  value  of  certain  gootls 
amounting  to  $430.69  alleged  to  have  been  misdelivered  by 
defendant  company.     Before  Audenreid,  J. 

The  facts  sufficiently  appear  in  the  charge  of  the  court  below, 
which  is  as  follows : 

As  I  understand  the  undisputed  facte  in  this  case,  they  are 
briefly  these :  On  the  18th  of  February,  1890,  the  firm  of  Har- 
rington &  Goodman  in  this  city  packed  up  and  shipped  to  a 
man  named  W.  B.  Robinson,  at  Tyler,  Texas,  a  case  of  dry 
goods,  of  the  value  of  ♦430.69.  These  goods  were  forwarded 
to  Robinson  by  the  hands  of  the  Merchants'  Despatch  Trans- 
portation Company,  to  which  they  were  delivered  on  the  date 
before  mentioned.  That  company  gave  to  the  shippers,  Har- 
rington &  Goodman,  a  shipping  receipt,  in  which  the  package 
containing  the  goods  is  described  and  specified  by  reference 
to  the  marks  upon  it,  W.  B.  Robinson,  Tyler,  Texas,  via  St. 
Louis.  [The  goods  seemed  to  have  reached  St.  Louis  in  good 
order,  and  to  have  been  passed  on  from  that  point  to  Tyler, 
Texas,  by  the  Pacific  Express   Company.     On  their  arrival 


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170  GOODMAN  v.  TRANSPORTATION  CO. 

Charge  of  Court.  [6  Pa.  Superior  Ct. 

at  Tyler  a  party  named  A.  J.  Michell,  who  for  a  long  time 
prior  to  that  date  had  been  conducting  business  at  Tyler  as  a 
sort  of  general  agent  for  the  consignee  named  in  the  receipt, 
went  to  the  agent  of  the  express  company,  and  directed  the 
reshipment  of  the  goods  to  Dallas,  Texas,  to  the  firm  of  Micli- 
ell  &  Co.  The  Pacific  Express  Company  forwarded  the  goods 
to  Dallas  per  his  request.]  [9]  They  were  received  by  Mich- 
ell &  Co.,  who  have  since  failed  to  pay  for  them,  except  to  the 
extent  of  $50.00.  [It  does  not  seem  to  be  disputed  that  A.  J, 
Michell  had  been  W.  B.  Robinson's  agent  at  Tyler,  an  agent 
charged  with  various  general  and  extensive  powers.  It  appears 
from  his  own  testimony  that  he  was  in  the  habit  of  receiving  all 
goods  consigned  by  express  or  freight  to  Robinson,  of  keeping  a 
bank  account  in  Robinson's  name  and  of  honoring  drafts  drawn 
on  Robinson  at  that  point.  His  powers,  as  you  see,  were  very, 
very  extensive.  He  was  practically,  as  I  recall  the  testimony 
which  was  read  from  his  deposition,  Robinson's  alter  ego  at  that 
point,  with  authority  to  do  pretty  much  all  that  Robinson  could 
himself  if  he  were  there.]  [10]  The  firm  of  Harrington  & 
Goodman  failing  to  collect  from  Robinson  or  from  Michell  & 
Co.  the  full  value  of  the  goods  embraced  in  this  shipment,  have 
sued  the  Merchants'  Despatch  Transportation  Company  for  the 
value  of  the  consignment,  charging  it  as  carrier  with  the  value  of 
the  goods  committed  to  it,  but  which  it  has  since  failed  to  de- 
liver or  to  return  to  the  consignors.  The  defense,  I  take  it,  is 
of  the  following  character:  It  is  asserted,  in  the  first  place,  on 
behalf  of  the  defendant,  that  it  is  not  a  common  earner  of  goods, 
but  that  its  position  is  that  of  a  forwarder.  It  claims  to  be  a 
corporation  which  receives  and  forwards  goods,  taking  upon 
itself  the  expense  of  transportation,  for  which  it  receives  a  com- 
pensation from  the  owners  of  the  goods,  but  it  has  no  concern 
in  the  vessels  or  wagons  or  cars  by  which  the  goods  are  trans- 
ported, and  no  interest  in  the  freight  as  freight.  [It  claims, 
therefore,  that  it  not  to  be  regarded  as  a  common  carrier,  but 
as  a  mere  bailee  for  hire.  It  stands  on  the  doctrine  of  law  that 
a  bailee  for  hire,  of  the  character  of  forwarder,  is  not  bound,  as 
is  a  common  carrier,  to  deliver  the  goods  committed  to  its  care 
for  transportation  safely,  at  all  events,  except  in  a  case  where 
such  safe  delivery  has  been  made  impossible  by  the  act  of  God 
or  of  the  public  enemy,  but  is  bound  only  to  perform  its  duty  oi 


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GOODMAN  V,  TRANSPORTATION  CO.  171 

1897.]  Charge  of  Court. 

traDsportation  with  care  and  fidelity,  and  show  that  any  loss  of 
the  goods  which  may  have  arisen,  has  arisen  not  through  its 
default  or  through  the  default  of  its  servants.  On  that  propo- 
sition of  law  the  defendant  claims  to  be  excused  from  any  lia- 
bility to  the  plaintiffs  in  this  case,  because,  it  is  said,  it  has 
used  due  care  and  diligence  in  the  handling  and  delivery  of  the 
plaintiffs'  goods.]   [11] 

Another  point  of  its  defense  is  that  it  has  complied  with  the 
contract  made  between  it  and  the  firm  of  Harrington  &  Good- 
man, in  this,  that  since  the  intention  of  the  firm  of  Harrington 
&  Goodman  was  that  the  goods  should  be  delivered  to  A.  J. 
Michell,  although  the  consignment  was  made  to  Robinson, 
Michell  was  the  real  party  to  whom  it  was  intended  the  goods 
should  be  delivered,  and  that  as  he  did  get  the  goods,  it  is  dis- 
charged. Failing  that,  it  stands  upon  the  point  that  Michell 
was  Robinson's  agent  to  receive  these  goods,  and  that  the  course 
of  Robinson's  dealings  through  Michell  at  Tyler,  had  been  such 
as  to  justify  it  and  its  agents  (not  only  as  to  Robinson,  but  as 
to  all  parties  dealing  with  Robinson  through  them)  in  the  be- 
lief that  Michell  had  the  authority  to  receive  the  goods,  or  to 
cause  them  to  be  forwarded  to  some  other  party  at  some  other 
point.  That  I  understand  to  be  the  defense  outlined  by  the 
counsel  for  the  Merchants'  Despatch  Transportation  Company. 
[Besides  this,  it  claims,  and  I  think  the  claim  is  one  to  wliich 
you  must  pay  great  attention,  that  Harrington  &  Goodman  have 
ratified  the  delivery  of  these  goods  to  Michell  &  Co.  by  accept- 
ing a  payment  on  account  of  their  price  from  Michell,  and  by 
failing  to  complain  of  that  misdelivery  until  nearly  twenty 
months  had  elapsed  after  the  date  of  the  consignment  of  the 
goods.]  [12] 

[It  is  my  opinion,  and  I  charge  you  as  matter  of  law,  that 
under  the  terms  of  the  contract  entered  into  between  the  con- 
signors and  the  transportation  company,  as  evidenced  by  the 
shipping  receipt  and  the  bill  of  lading,  it  was  the  duty  of  the 
transportation  company  to  deliver  that  case  of  dry  goods  to  Mr. 
Robinson  at  Tyler,  Texas,  or  show  a  good  excuse  for  not  hav- 
ing done  so,  that  excuse  being  something  other  than  negligence 
on  their  part  or  on  the  part  of  their  employees  or  agents  in  the 
delivery  of  the  goods.  It  lies  on  the  transportation  company  to 
show  that  it  was  not  negligent,  and  that  under  the  circumstances 


Digitized  by  VjOOQ IC 


172  GOODMAN  v,  TRANSPORTATION  CO. 

Charge  of  Court.  [6  Pa.  Superior  Ct. 

of  the  case,  its  employees  did  all  that  prudent,  reasonable, 
commonsense  business  men  would  have  done  to  insure  a  proper 
delivery  to  the  proper  person  of  the  goods  which  it  received 
from  these  plaintiffs.  It  is  for  you  to  determine  whether  they 
have  done  that,  whether  they  have  performed  their  full  duty  in 
delivering  these  goods.]  [13] 

[If  you  believe  that  the  goods  in  question  were  delivered  to 
a  person  especially  authorized  by  the  consignee  or  by  the  con- 
signee's genei-al  course  of  dealing  with  him,  to  receive  these 
goods,  and  that  the  reshipment  of  the  goods  to  Dallas,  Texas, 
was  within  the  powers  of  Michell,  as  evidenced  by  the  course 
of  dealing,  to  which  he  has  testified,  between  himself  and  Rob- 
inson, then  you  must  find  a  verdict  for  the  defendant.]   [14] 

[In  determining  whether  or  not  these  parties  were  negligent, 
you  have  a  right  to  take  into  consideration  the  fact  that  Har- 
rington &  Goodman,  after  the  delivery  of  these  goods,  corre- 
sponded with  Michell  &  Co.,  and  received  money  from  them, 
and  treated  them  just  as  if  they  had  been  the  parties  to  whom 
the  consignment  had  originally  been  made.]  [15] 

[If,  on  the  other  hand,  you  are  of  the  opinion  tliat  the  Mer- 
chants' Despatch  Transportation  Company  was  negligent  in 
making  the  delivery  in  Tyler,  Texas,  and  in  reshipping  the  goods 
to  the  new  consignees  named  by  Michell,  viz.,  Michell  &  Co., 
at  Dallas,  Texas,  if  you  believe  that  there  was  nothing  in  the 
course  of  dealings  between  Robinson  and  the  expi^ess  agents  at 
Tyler  to  warrant  the  belief  that  Michell  had  authority  to  give 
the  order  for  the  reshipment  which  he  then  gave,  your  verdict 
must  be  for  the  plaintiff,]  [16]  and  the  verdict  in  their  favor 
must  be  for  the  amount  of  tlie  bill  of  goods,  $430.60,  with  inter- 
est from  April,  1890,  less  the  $50.00  which  have  since  been  paid 
by  Michell  &  Co.,  and  which  counsel  for  the  plaintiffs  have 
agreed  shall  be  credited  upon  this  claim. 

I  have  been  requested  by  the  plaintiffs'  counsel  to  charge  you 
as  follows : 

1.  Under  the  receipt  offered  in  evidence,  the  defendant  is  re- 
sponsible, as  a  common  carrier,  for  the  through  carriage  of  the 
case  of  dry  goods  from  Philadelphia  to  Tyier,  Texas.  An- 
%wer :  That  point  I  refuse.  [17] 

2.  Under  the  bill  of  lading  offered  in  evidence,  the  defend- 
ant is  responsible,  as  a  common  carrier,  for  the  ttirough  car- 


Digitized  by  VjOOQ IC 


GOODMAN  V.  TRANSPORTATION  CO.  173 

1897.]  Charge  of  Court. 

riage  of  the  case  of  dry  goods  from  Philadelphia  to  Tyler^ 
Texas.    Answer :  That  point  I  refuse.  [18] 

8.  If  the  jury  believe,  under  the  evidence,  that  the  defend- 
ant agreed  to  carry  said  case  of  dry  goods  from  Philadelphia  to 
Tyler,  Texas,  the  defendant  is  responsible  for  the  through  car- 
riage of  said  goods  and  the  delivery  thereof  to  W.  B.  Robinson. 
Answer :  That  point  I  afi^m. 

4.  The  defendant  had  no  right,  without  plaintiffs'  authority, 
to  deliver  to  any  other  person  than  W.  B.  Robinson.  An- 
swer :  That  point  I  affirm,  with  this  qualification :  It  was  their 
right  to  deliver  the  goods  either  to  W.  B.  Robinson,  or  W.  B. 
Robinson's  duly  authorized  agent,  and,  if  you  find  that  Michell 
was  Robinson's  duly  authorized  agent  to  receive  the  goods  or  to 
order  their  reconsignment  and  reshipment  to  another  point,  your 
verdict  must  be  for  the  defendant.  [19] 

$.  The  misdelivery  of  the  case  of  dry  goods,  or  the  delivery 
to  the  wrong  person,  is  not  a  "loss,  detriment  or  damage," 
within  the  meaning  of  the  words  in  the  foUowmg  provision  of 
the  receipt,  to  wit :  "  It  is  further  stipulated  and  agreed  that  in 
case  of  any  loss,  detriment  or  damage,  done  to  or  sustained  by 
any  of  the  property  herein  receipted  for,  during  such  transpor- 
tation, whereby  any  liability  or  responsibility  shall  or  may  be 
incurred,  that  company  alone  shall  be  held  answerable  therefor 
in  whose  actual  custody  the  same  maybe  at  the  time  of  the  hap- 
pening thereof,"  and  said  provision  in  the  receipt  is  no  answer 
to  plaintiff's  claim  in  this  case.     Answer :  That  point  I  affirm. 

6.  The  misdelivery  of  the  said  case  of  dry  goods,  or  the  deliv- 
ery to  persons  not  entitled  to  receive  it,  is  not  a  "  loss  "  or  "  dam- 
age "  within  the  meaning  of  the  words  in  the  third  condition  of 
the  bill  of  lading,  to  wit :  "  No  carriers  shall  be  liable  for  loss  or 
damage  not  incurred  on  its  own  road.  .  .  .  Claims  for  loss 
or  damage  must  be  made  in  writing  to  the  agent  at  point  of 
delivery  promptly  after  arrival  of  the  propert}'',  and  if  delayed 
for  more  than  thirty  days  after  the  delivery  of  the  property,  or 
after  due  time  for  the  delivery  thereof,  no  carrier  hereunder 
shall  be  liable  in  any  event."  And  said  condition  is  no  answer 
to  plaintiff's  claim  in  this  case.    Answer :  That  point  I  affirm. 

7.  The  third  condition  of  the  bill  of  lading  which  provided 
that  "Claims  for  loss  or  damage  must  be  made  in  writing  to  the 
agent  at  point  of  delivery  promptly  after  the  arrival  of  the  prop- 


Digitized  by  VjOOQ IC 


174  GOODMAN  v.  TRANSPORTATION  CO. 

Chai'ge  of  Court.  [6  Pa.  Superior  Ct. 

erty,  and  if  delayed  for  more  than  thirty  days  after  the  deliv- 
ery of  the  property,  or  after  due  time  for  the  delivery  thereof, 
no  carrier  hereunder  shall  be  liable  in  any  event,"  is  binding,  if 
at  all,  upon  the  consignee  only  and  not  upon  the  shipper.  An- 
swer :  That  point  I  affirm. 

8.  The  third  condition  of  the  bill  of  lading  quoted  in  the 
seventh  point,  if  it  does  apply  to  the  shipper,  is  an  unreasonable 
condition.     Ayistoer :  That  point  I  affirm. 

9.  The  defendant  must  deliver  the  bill  of  lading  at  or  near 
about  the  time  the  goods  were  received  for  transportation  in 
order  to  claim  the  benefit  of  the  provisions  of  the  third  condi- 
tion in  the  bill  of  lading.  Answer :  That  point  I  refuse.  It  was 
the  right  of  the  plaintiffs  in  this  case  to  ask  for  a  bill  of  lading, 
and  if  they  did  not  do  it,  it  was  their  own  fault.  [20] 

10.  As  the  goods  shipped  to  W.  B.  Robinson,  February,  1890, 
were  delivered  to  Michell  in  April,  1890,  and  no  bill  of  lading 
or  copy  thereof  was  delivered  or  handed  to  plaintiffs  imtil  Sep- 
tember, 1891,  the  defendant  cannot  claim  the  benefit  of  the 
provisions  of  the  third  condition  of  the  bill  of  lading.  An- 
swer :  That  point  I  affirm. 

11.  If  the  defendant  relies  upon  the  third  condition  of  the 
bill  of  lading,  quoted  in  the  seventh  point,  it  thereby  affirms  that 
the  bill  of  lading  is  the  contract  between  the  parties  to  this  suit. 
Answer :  That  point  I  affirm. 

12.  The  acceptance  of  any  pajrment  on  account  by  the  plain- 
tiffs, from  the  person  or  persons,  to  whom  the  goods  were  wrong- 
fully delivered,  is  no  bar  to  this  suit  against  the  carrying 
company,  but  the  amount  so  received  goes  in  reduction  of  dam- 
ages. Answer :  Tliat  point  I  affirm.  Although  I  will  add  this 
qualification,  that  it  seems  to  me  that  the  receipt  of  money  on 
account  of  the  price  of  these  goods  from  the  parties  in  whose 
hands  the  goods  came  after  their  reconsignment  from  Tyler, 
Texas,  is  evidence  to  show  a  ratification  and  approval  of  the  de- 
livery which  was  made  by  the  defendant  to  Michell  &  Co.  [21] 

18.  Under  all  the  evidence  in  this  case,  the  verdict  must  be 
for  the  plaintiffs.     Answer:  That  point  I  refuse.  [22] 

I  have  been  requested  by  the  defendant  to  charge  you  as  fol- 
lows: 

1.  The  defendant's  contract  in  respect  of  the  goods  in  ques- 
tion required  it  only  to  carry  said  goods  promptly  and  properly 


Digitized  by  VjOOQ IC 


GOODMAN  V,  TRANSPORTATION  CO.  175 

1897.]  Charge  of  Court. 

to  East  St.  Louis,  and  there  promptly  to  deliver  them  in  good 
order  and  condition  to  tlie  next  carrier  on  their  route  to  desti- 
nation, exercising  reasonable  care  and  prudence  in  the  selection 
of  the  next  succeeding  carrier.  If  defendant  has  done  this,  it 
cannot  be  held  responsible  for  damage  to  or  loss  of  the  said 
goods  happening  beyond  East  St  Louis,  or  for  the  failure  on 
the  part  of  the  carrier  or  carriers  beyond  East  St.  Louis  to  fulfil 
their  obligations  in  respect  of  the  said  goods.  AriBwer:  That 
point  I  refuse.  I  regard  the  duty  of  the  defendant  in  this  case 
to  be  that  it  should  deliver  the  goods  not  to  East  St.  Louis  only, 
but  to  Tyler,  Texas.  That  was  the  destination  fixed  by  their 
contract. 

2.  Plaintiffs  having  accepted  without  question  the  benefits 
of  what  they  claim  to  be  an  unauthorized  delivery  of  the  goods 
in  question,  knowing  at  the  time  that  the  goods  were  delivered 
to  other  than  the  consignee,  are  estopped  from  disputing  the  pro- 
priety of  such  delivery.  Answer :  That  point  I  refuse.  I  do  not 
regard  their  collection  of  the  sum,  which  it  is  admitted  they 
received  from  Michell  &  Co.,  to  amount  to  an  estoppel,  but  I 
regard  the  receipt  of  that  money,  and  the  attempt  to  collect 
more  from  Michell  &  Co.  as  extremely  strong  evidence  that  the 
delivery  made,  as  has  been  described  by  the  Merchants*  De- 
spatch Transportation  Company,  or  their  subagents  at  Tyler, 
was  ratified  and  approved  by  the  plaintiffs  in  this  case.  [23] 

3.  Plaintiffs  having  failed  to  notify  the  defendant  until  a 
year  and  a  half  after  the  delivery  of  the  goods  in  question  at 
the  terminus  to  other  than  the  consignee,  and  having  known 
all  that  time  that  such  delivery  was  made  to  other  than  the 
consignee,  if  defendant,  owing  to  such  failure  to  so  notify,  was 
misled  to  its  injury  to  believe  the  said  delivery  was  proper, 
plaintiffs  are  estopped  from  asserting  that  such  delivery  was 
erroneous.  Answer :  That  point  I  will  refuse,  but  I  regard  their 
failure  for  a  year  and  a  half  after  the  delivery  of  the  goods  to  a 
person  other  than  the  consignee  named  in  the  shipping  receipt, 
to  notify  the  transportation  company  of  such  misdelivery  ex- 
tremely strong  evidence  that  the  plaintiffs  concurred  in  that 
delivery  and  ratified  the  act  of  the  defendant  in  giving  the 
goods  to  Michell  &  Co.  [24] 

4.  Plaintiffs  having  recognized,  as  the  party  to  whom  the 
goods  ought  to  have  been  delivered,  the  party  who  actually  did 


Digitized  by  VjOOQ IC 


176  GOODMAN  v,  TRANSPOUTATION  CO. 

Charge  of  Court.  [6  I'u.  SupeHor  Ct. 

receive  them,  by  writing  him  for  payment  and  accepting  from 
him  part  payment  therefor,  are  estopped  from  claiming  that  said 
goods  were  delivered  to  the  wrong  party.  Anmjoer:  That  point  I 
refuse.  I  do  not  regard  such  acts  as  an  estoppel;  but,  as  I 
liave  already  said,  in  my  opinion,  that  is  very  strong  evidence 
of  an  acquiescence  in  the  deliver}'  wliich  was  made  by  this  de- 
fendant to  Michell  &  Co.,  and  a  ratification  of  what  the  trans- 
portation company  did  in  fulfilling  its  contract,  or  an  acceptance 
of  the  act  of  the  defendant  company  as  a  complete  fulfilment 
and  discharge  of  their  contract  of  transportation.  [25] 

5.  By  the  terms  of  the  contract  of  shipment  as  claimed  by 
plaintiffs  herein,  it  is  provided  that  "  claims  for  loss  or  damage 
must  be  made  in  writing  to  the  agent  at  point  of  delivery 
promptly  after  arrival  of  the  property,  and  if  delayed  for  more 
than  thirty  days  after  the  delivery  of  the  property,  or  after  due 
time  for  the  delivery  thereof,  no  carrier  hereunder  shall  be  liable 
in  any  event ; "  and,  as  this  provision  is  binding  upon  plaintiffs 
and  they  have  failed  to  show  a  compliance  therewith,  they  are  not 
entitled  to  recover  any  damages  for  alleged  loss  of,  or  damages 
to,  the  goods  in  question.     Answer:  That  point  I  refuse. 

6.  Under  the  provisions  of  the  contract  of  shipment  in  ques- 
tion, the  plaintiffs  are  not  entitled  to  recover,  and  your  verdict 
should  be  for  the  defendant.  Answer:  That  point  I  refuse. 
1  think  I  have  charged  you  as  fully  as  the  case  warrants,  and 
I  shall  leave  the  matter  in  your  hands.  It  is  your  duty  to  ren- 
der a  fair  verdict.  Let  not  the  fact  that  the  defendant  is  a  cor- 
poration influence  you  in  this  matter.  You  are  sworn  to  try 
the  case  on  the  law  and  the  evidence.  [If  you  believe  that  the 
defendant  company  performed  its  contract  to  transship  these 
goods  to  Robinson,  at  Tyler,  Texas,  negligently,  that  a  reship- 
nient  to  Dallas,  under  a  reconsignment  to  Michell  &  Co.,  was  a 
thing,  which,  under  the  circumstances,  no  reasonable,  sensible, 
ordinary,  everyday,  commonsense  man  would  have  done,  then 
your  verdict  must  be  for  the  plaintiffs  for  the  amount  which 
they  have  claimed ;  but,  if  you  believe  that,  the  defendant  com- 
pany, or  its  agent,  the  Pacific  Express  Company,  did  just  what 
any  reasonable,  commonsense,  everyday  business  man  would 
have  done  under  the  circumstances,  and  that  they  were  not 
guilty  of  negligence,  then  your  verdict  must  be  for  the  defend- 
ant.] [26]     And  so,  if  you  believe  that  the  plaintiffs  have  acqui- 


Digitized  by  VjOOQ IC 


GOODMAN  V,  TRANSPORTATION  CO.  177 

1897.]  Charge  of  Court — Arguments. 

esced  in  the  delivery  made  and  have  accepted  what  the  defendant 
did  as  a  fulfilment  and  discharge  of  its  contract. 

Verdict  and  judgment  for  defendant.    Plaintiffs  appealed. 

Errors  assigned  among  others,  were  (9-16)  To  portions  of 
the  judge's  charge,  reciting  same.  (17-25)  In  answers  to  the 
points,  reciting  said  points  and  answers.  (26)  To  a  portion  of 
the  judge's  charge,  reciting  same.  (27)  In  presenting  the  case 
to  the  jury  in  the  general  charge  and  answers  to  points  as  set 
forth  in  the  foregoing  assignments  of  error  in  an  inadequate, 
partial,  unfair  and  misleading  manner.  (28)  In  not  presenting 
to  the  jury  a  full,  fair  and  impartial  view  of  the  plaintiffs'  case 
under  the  evidence  and  the  law. 

Wm.  E.  Burnett^  with  him  Sheldon  Potter  and  John  Spar- 
hawk^  Jr.^  for  appellants. — The  court  erred  in  refusing  plain- 
tiffs' thirteenth  point,  which  was  as  follows :  "  Under  all  the 
evidence  in  this  case  the  verdict  must  be  for  the  plaintiffs." 

The  bill  of  lading  is  the  contract  between  tlie  parties :  Clyde 
V.  Hubbard,  88  Pa.  358. 

The  defendant  company  falls  within  the  class  of  companies 
which  have  been  decided  to  be  common  carriers :  Bank  v.  Ex- 
pi-ess  Co.,  93  U.  S.  174 ;  Buckland  v.  Express  Co.,  97  Mass. 
124 :  2  Am.  &  Eng.  Ency.  of  Law,  783,  and  notes. 

The  shipping  receipt  was  delivered  up  to  the  defendant  and 
acespied  by  it  when  the  bill  of  lading  \^as  issued.  The  mere 
lapse  of  time  between  the  giving  of  the  shipping  receipt  and 
the  bill  of  lading  was  not  important :  Goodman  v.  Transporta- 
tion Co.,  3  Pa.  Superior  Ct.  282. 

The  word  "  forward  "  of  itself  is  not  sufficient  to  convert  a 
contract  of  carriage  into  one  to  "forward"  merely:  Clyde  v. 
Hubbard,  88  Pa.  358;  Porter  on  Bills  of  Lading,  Ch.  23,  sees. 
325,  333,  337 ;  Buckknd  v.  Express  Co.,  97  Mass.  124. 

There  is  nothing  in  the  contract  itself  which  is  any  defense 
to  plaintiffs'  claim. 

The  claim  in  this  case  is  for  damages  for  a  wrongful  delivery. 

Condition  3  of  the  bill  of  lading  provides  :  "  No  carrier  shall 
be  liable  for  loss  or  damage,"  etc.,  and  in  this  respect  the  bill 
of  lading  and  the  shipping  receipt  agree,  except  that  the  latter 
adds  the  word  "  detriment." 
Vol.  VI— 12 


Digitized  by  VjOOQ IC 


178  GOODMAN  r.  TRANSPORTATION  CO. 

Arguments.  [6  Pa.  Superior  Ct. 

This  condition  affords  no  defense,  because  a  wrongful  de- 
livery is  not  a  "loss,  damage  or  detriment:"  Clyde  v.  Hub- 
bard, 88  Pa.  358;  Porter  v.  Ex.  Co.,  4  So.  Car.  (Richardson), 
136. 

This  provision  does  not  apply  to  the  shipper  but  only  to  the 
consignee.  As  to  the  former,  it  would  be  entirely  unreason- 
able. 

There  is  no  evidence  that  the  consignor  had  any  knowledge 
of  the  misdelivery  until  six  months  after  it  had  occurred. 

There  was  no  evidence  offered  which  would  support  any 
defense  to  the  plaintiff's  claim  under  the  contract. 

The  contract  was  to  deliver  to  W.  B.  Robinson  at  Tyler, 
Texas. 

Proper  delivery  is  as  much  a  part  of  this  contract  as  safe 
transportation :  Pa.  R.  R.  Co.  v.  Stem,  119  Pa.  24 ;  Wemwag 
V.  R.  R.  Co.,  117  Pa.  46. 

The  defendant  was  bound  to  know  whether  Michell  &  Co. 
were  the  agents  of  Robinson,  or  had  any  authority  to  receive 
these  goods :  Wemwag  v.  Railroad  Co.,  117  Pa.  46. 

There  was  no  sufficient  evidence  of  the  ratification  of  de- 
fendants' wi'ongful  delivery  by  the  plaintiffs,  to  deprive  plain- 
tiffs of  the  right  of  action  against  defendants :  14  Am.  and  Eng. 
Ency.  of  Law,  826. 

The  acceptance  of  payment  on  account  from  the  party  who 
obtained  possession  by  the  wrongful  delivery,  is  no  ratification 
by  the  principal,  and  dbes  not  discharge  the  defendant  from  the 
consequences  of  his  wrongful  act :  2  Am.  &  Eng.  Ency  of  Law, 
903;  Railroad  Co.  v.  Pumphrey,  69  Md.  390;  Forbes  v.  Rail- 
imd  Co.,  133  Mass.  164;  Jellett  v.  R.  R.  Co,  30  Minn.  266, 
Rosenfield  v.  Express  Co.,  1  Woods,  131 ;  2  Sedgwick  on  Dam- 
ages, sec.  853,  p.  622. 

The  judge's  instruction  to  the  jury  was  throughout  erroneous, 
because  he  charged  the  jury:  That  the  question  in  the  case  wiis 
one  of  negligence. 

Even  if  the  judge  was  right  in  leaving  the  case  to  the  jury, 
his  charge  was  unfair  and  partial,  upon  the  subject  of  ratifica- 
tion, and  did  not  fairly  present  the  plaintiffs'  case. 

This  part  of  the  charge  is  particularly  set  forth  in  assign- 
ments 12, 16,  23, 24  and  25.  And  the  error  consists  in  present- 
ing to  the  jury  one  view  only  of  the  evidence,  and  that  the  view 


Digitized  by  VjOOQ IC 


GOODMAN  V,  TRANSPORTATION  CO.  179 

1897.]  Arguments. 

which  defendants  relied  upon  to  prove  ratification  and  in  neg- 
lecting entirely  to  present  the  plaintiffs'  view;  and  in  throwing 
the  weight  of  the  judicial  opinion  entirely  in  favor  of  defendant. 
This  is  error :  Larzelere  v.  Tiel,  8  Pa.  Superior  Ct.  109 ;  Min- 
ick  V.  Gring,  1  Pa.  Superior  Ct.  484. 

The  judge  referred  to  the  acceptance  of  payment  on  account 
as  evidence  only  of  ratification,  and  strongly  intimated  to  the 
jury  that,  in  his  opinion,  that  was  all  it  was. 

He  did  not  notice  the  plaintiffs'  position  that  they  had  a 
right  to  accept  money  for  their  goods  from  any  person  who 
wrongfully  came  into  possession  of  them,  and  they  were  not 
bound  to  rely  for  payment  in  full  from  a  person  who  might  be 
without  responsibility,  and  who  resided  several  hundred  miles 
away. 

Nor  did  he  call  attention  to  the  fact  that  the  carrier  had  never 
notified  plaintiffs  of  the  delivery ;  nor  that  the  carrier  had  re- 
ceived all  he  was  entitled  to  receive  by  having  the  amount  paid 
on  account  deducted  from  the  damages  he  would  otherwise  have 
been  obliged  to  pay. 

Cha%.  Heebner^  with  him  J.  Claude  Bedford^  for  appellee. — 
It  is  submitted  that  the  appellants  have  no  just  ground  for  com- 
plaint as  to  the  trial  of  this  cause  in  the  court  below.  What 
the  Superior  Court  (see  8  Pa.  Superior  Ct.  282)  indicated  as 
errors  in  the  former  trial  were  remedied  in  this  latest  trial ; 
the  so-called  bill  of  lading  was  admitted  in  evidence,  and  the 
facts  in  the  case  were  submitted  to  the  jury  and  submitted 
fairly  for  the  plaintiffs. 

It  is  admitted  that  these  goods  were  carried  '*  safely,  promptly, 
and  properly  "  to  destination,  and  there  was  no  attempt  to  show 
that  defendant  had  a  "  line  "  or  "  route  "  extending  to  destina- 
tion, Tyler,  Tex.,  and,  in  point  of  fact,  it  did  not  have  such 
"  line  "  or  "  route."  The  defendant  is  distinctly  a  forwarding 
company,  holding  itself  out  as  such,  and  known  as  such,  not 
having  any  road  or  owning  or  controlling  any  motive  power, 
but  having  special  facilities  for  accomplishing  the  expeditious 
movement  of  freight.  The  engagement  in  this  receipt  is  by  ex- 
press words  to  forward.  The  word  "forward"  has  a  distinct, 
well-recognized  meaning  in  contracts  for  the  transpoj-tation  of 
goods,  and  all  the  terms  of  this  shipping  receipt  show  plainly  that 


Digitized  by  VjOOQ IC 


180  GOODMAN  v.  TRANSPORTATION  CO. 

Arguments— Opinion  of  the  Court.  [6  Pa.  Superior  Ct. 

the  word  "  forward  "  in  it  was  used  there  in  its  well-known  and 
legal  sense.  See  MiiUarkey  v.  R.  R.  Co.,  9  Phila.  114,  and 
Express  Co.  v.  Bank,  69  Pa.  894.  See  also  plaintiflPs  argiv- 
ment  in  report  of  the  former  hearing,  3  Pa.  Superior  Ct.  884. 

Opinion  by  Beaver,  J.,  December  13, 1897 : 

When  this  case  was  before  us  nearly  a  year  ago,  we  sent  it 
l)ack,  in  order  to  allow  the  bill  of  lading  furnished  by  the 
defendant  to  the  plaintiffs  to  be  received  in  evidence,  and  also 
that  the  facts  relating  to  the  delivery  of  the  goods  by  the  de- 
fendant to  the  consignee  might  be  submitted  to  the  jury.  Both 
of  our  directions  were  obseived  in  the  trial  of  the  cause.  A 
verdict  was  found  by  the  jury  for  the  defendants,  upon  which 
judgment  was  entered  and  from  which  the  plaintiffs  appeal. 

The  record  shows  twenty-eight  assignments  of  error,  but  the 
first  eight  of  these  were  practically  withdrawn  at  the  argument 
as  not  having  been  made  in  accordance  with  our  rules.  The 
material  questions  in  the  case  related  to  the  deliveiy  of  the 
goods  shipped  by  the  plaintiffs  to  the  consignee  at  the  place  of 
destination,  and  the  effect  of  the  receipt  of  a  portion  of  the  value 
of  the  goods  by  the  plaintiffs  from  a  person  other  than  the  con- 
signee. The  consideration  of  these  questions  involves  others 
which  are,  for  the  most  part,  collateral  and  incidental.  The 
main  point  in  the  case  was  the  delivery  to  Michell,  as  the  agent 
of  the  consignee,  and  the  reshipment  of  the  goods  by  his  direc- 
tion to  a  point  other  than  the  place  of  destination.  The  facts 
in  regard  to  this  delivery  were  in  the  main  fairly  submitted  to 
the  jury. 

The  plaintiffs  make  their  principal  argument  on  the  twenty- 
second  assignment  of  error  which  involves  the  refusal  of  the 
court  to  affirm  the  point  that  "  under  all  the  evidence  in  this 
case,  the  verdict  must  be  for  the  plaintiffs."  It  is  difficult  to 
see  how  the  court  could  have  affirmed  this  point,  in  view  of  our 
directions  in  Goodman  v.  Transportation  Company,  3  Pa.  Su- 
perior Ct.  282,  in  which  we  say  that  "  the  facts  should  have 
l)een  submitted  to  the  jury,"  referring  to  the  facts  in  relation  to 
the  delivery. 

The  only  question  in  the  case  is  as  to  the  manner  in  which 
those  facts  were  so  submitted.  All  of  the  plaintiffs*  points, 
except  the  first,  second,  ninth  and  thirteenth,  were  affirmed 


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GOODMAN  V.  TRANSPORTATION  CO.  181 

1897.]  Opinion  of  the  Court. 

absolutely  or  with  proper  qualifications.  How  the  plaintiffs 
could  consistently  ask  the  court  to  say  that  "  under  the  i-eceipt 
offered  in  evidence,  the  defendant  is  responsible  as  a  common 
carrier  for  the  through  carriage  of  the  case  of  dry  goods  from 
Philadelphia  to  Tyler,  Texas,"  we  cannot  understand,  their 
whole  contention  being  that  the  receipt  was  merged  in  the  bill 
of  lading,  nor  can  we  see  how  the  court  could  have  affirmed  s^ 
like  proposition  in  regard  to  the  bill  of  lading,  when  the  receipt 
itself  provides  that  "  the  acceptance  of  this  receipt  for  goods, 
made  subject  to  the  provisions  of  the  bill  of  lading  of  this  com- 
pany, makes  this  an  agreement  between  the  Merchants'  Despatch 
Transportation  Company  and  carriers  engaged  in  transporting 
said  goods  and  all  parties  interested  m  the  property." 

The  receipt  and  bill  of  lading,  taken  together,  constituted  the 
contract  between  the  parties.  No  request  was  made  of  the 
court  to  determine  as  a  matter  of  law  whether  the  contract 
between  the  parties  made  the  defendants  common  carriers  or 
merely  forwarders,  and  indeed,  under  the  facts  of  the  case,  the 
question  was  of  little  practical  importance.  There  is  no  denial 
of  the  fact  that  the  goods  were  safely  transported  and  delivered 
at  Tyler,  Texas.  The  real  question,  as  we  have  already  inti- 
mated, was,  were  they  properly  delivered  ?  The  trial  judge  in 
the  court  below,  however,  evidently  treated  the  contract  of  the 
defendant  as  that  of  a  common  carrier,  and  chai'ged  the  jury 
that  ''  it  was  the  duty  of  the  transportation  company  to  deliver 
that  case  of  dry  goods  to  Mr.  Robinson  at  Tyler,  Texas,  or  show 
a  good  excuse  for  not  having  done  so,  that  excuse  being  some- 
thing other  than  negligence  on  their  part  or  on  the  part  of  their 
employees  or  agents  in  the  delivery  of  the  goods."  The  court 
below  did  not  impose  any  duty  upon  the  plaintiffs  of  showing 
negligence  on  the  part  of  the  defendant;  but,  on  the  other 
hand,  made  it  incumbent  upon  the  defendant  to  show  that  it 
was  not  negligent. 

Taking  the  charge  as  a  whole,  in  connection  with  the  answers 
to  the  points  of  both  plaintiffs  and  defendant,  we  can  see  no 
substantial  error.  The  plaintiffs'  side  of  the  case  was  presented 
to  the  jury  quite  as  favorably  for  them  as  they  had  a  right  to 
ask  or  expect. 

The  judgment  is  affirmed. 


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183  DREIBILBIS  v.  ESBENSHADE. 

Syllabus — Statement  of  Facts.     [6  Pa.  Superior  Gt. 

Daniel  Dreibilbis  v.  Peter  B.  Esbenshade,  Appellant. 

Charge  of  the  court— Biased  and  exiravagarU  charge. 

It  is  reversible  error  for  the  court  to  imi)ort  into  its  charge  reference  to 
matters  which  have  no  bearing  on  the  case  and  to  use  extravagant  expres- 
sions which  tend  unduly  to  inflame  the  minds  of  the  jury. 

Charge  of  court — Erroneous  construction  of  evidence. 

It  is  error  for  a  trial  judge  to  instruct  the  jury  thai  alleged  slander  is 
proven  by  defendant's  own  admission  when  the  testimony  of  the  defend* 
ant  denied  the  slander  as  laid  and  where  his  admissions  were  of  a  radically 
different  statement. 

It  is  en*or  for  a  judge  to  assume  more  than  is  warranted  by  the  testi- 
mony. 

Evidence— Slander— Hearsay— Irrelevant  testimony. 

In  an  action  for  slander  it  is  error  to  admit  proof  by  plaintiff  of  what 
one  of  his  witnesses  had  told  him  that  defendant  had  said  the  same  even- 
ing the  alleged  slanderous  words  had  been  uttered. 

Argued  Nov.  11,  1897.  Appeal,  No.  54,  Oct.  T.,  1897,  by 
defendant,  from  judgment  of  C.  P.  Lancaster  Co.,  Jan.  T.,  1890, 
No.  67,  on  verdict  for  plaintiff.  Before  Rice,  P.  J.,  Beateb, 
Reedbb,  Oblady,  Smith  and  Pobteb,  J  J.    Reversed. 

Trespass  for  slander.    Before  Livingston,  P.  J. 

It  appears  from  the  record  that  plaintiff's  statement  alleges 
the  defamatory  words  to  be  in  brief,  "Daniel  Dreibilbis  is  a 
thief ;  he  stole ;  he  is  not  honest."  And  the  amended  state* 
ment  filed  alleges  the  defamatory  words  to  be,  "  I  believe  my 
turkeys  are  over  there.  I  believe  the  tenant  man  took  them. 
I  believe  I'll  get  a  search  warrant.  I  think  I  know  where  they 
are.  I  think  they  are  in  Hinardier's  tenant  house.  I  think 
ril  get  a  search  warrant." 

The  court  admitted,  under  objection,  the  plaintiff  in  the  suit 
to  be  asked  and  to  answer  the  following  questions :  [  "  Q.  Mr. 
Hinardier  says  he  repeated  to  you  at  the  time  exactly  what  Mr. 
Esbenshade  said  ?  A.  That  same  evening.  Q.  What  did  he 
tell  you  Mr.  Esbenshade  said  ?  "  Objected  to  by  defendant.  Ad- 
mitted. Exception  sealed.  "  Q.  What  did  Mr.  Hinardier  say 
to  you  Mr.  Esbenshade  had  said?  A.  When  I  came  home  Hin- 
ardier told  me  that  Esbenshade  was  here  hunting  his  turkeys* 


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DREIBILBIS  V.  ESBENSHADE.  183 

1897.]  Statement  of  Facts— Charge  of  Court. 

Q.  What  did  he  tell  you  Esbenshade  had  said  to  him  ?  A.  He 
said  he  believes  I  got  his  turkeys,  and  he  is  going  in  to  get  a 
search  wariunt  and  search  my  house ;  he  is  pretty  sure  I  got 
these  turkeys."  ]  [1] 

The  court  charged  the  jury  as  follows : 

This  is  what  is  termed  in  law  an  action  of  slander.  The 
words  here  charged  are  such  words  as  the  law  requires  to  make 
an  action  actionable  in  itself ;  they  charge  larceny,  an  infamous 
crime  with  a  severe  punishment.  [These  words  as  laid  are  in 
themselves  actionable,  therefore.  Now  are  they  proven?  I 
need  scarcely  say  to  you  that  if  you  believe  the  testimony  of 
the  defendant  himself  you  cannot  say  they  are  not  proven, 
because  he  tells  you  he  did  say  about  what  is  there;  and,- 
further  than  that,  he  went  to  a  magistrate's  office  and  signed 
a  paper  in  which  he  charged  this  man,  the  defendant,  with 
the  larceny ;  had  a  search  warrant  prepared  for  him ;  searched 
his  house  (I  think  you  will  find  from  the  evidence  in  his 
absence,  the  presence  of  his  wife  and  child)  found  nothing 
and  left.  He  was  arrested  himself,  came  here  and  had  a  hear- 
ing, and  was  discharged  for  want  of  evidence  to  sustain  the 
charge  made. against  him.  So  that  in  this  case,  according  to 
the  statements  of  the  defendant  himself,  your  verdict  will  have 
to  be  for  the  plaintiff  for  some  amount ;  and  the  main  question 
you  will  have  to  decide  is  what  that  amount  shall  be.]  [2] 

It  is  true  that  he  has  not  produced  any  evidence  to  show  that 
he  has  been  driven  out  of  society  by  this  charge ;  that  he  has 
suffered  any  pecuniary  loss  for  want  of  labor  or  want  of  a  house 
to  live  in,  or  anything  of  that  kind.  If  he  had  he  would  be 
entitled  to  exemplary  or  vindictive  damages.  As  it  is  he  is  not. 
He  is  entitled  to  such  damages  as  will  dispossess  his  mind  of 
this  charge  in  this  community;  such  damages  as  you  or  either 
of  you  (for  there  is  no  direct  measure  of  fixing  them)  would 
ask  a  jury  to  give  under  circumstances  such  as  he  now  labors 
under. 

[This  is  a  record  made  against  him  which  will  not  down.  The 
record  is  here,  remains  in  this  office,  and  alwajrs  will  show  what 
the  defendant  here,  Mr.  Esbenshade,  charged  him  with.  And' 
you  will  have  to  render  such  verdict  as  in  your  judgment  will 
compensate  him  for  the  injury  he  had  received  in  his  reputation 


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184  DREIBILBIS  v.  ESBENSHADEl 

Charge  of  Court— Opinion  of  the  Court.  [6  Pa.  Superior  Ct, 

by  this  charge.]  [3]  I  cannot  give  you  anything  by  which  you 
can  measure  the  damages  otherwise  than  I  have  stated  to  you. 
There  is  no  direct  measure  when  there  are  no  direct  or  inde- 
pendent damages  proven.  Where  these  are  general,  as  in  this 
case,  the  judge  must  judge  from  those,  and  their  own  better 
judgment,  if  they  were  in  his  place,  what  they  would  ask  a  jury 
to  give.  By  doing  so  they  will  have  complied  with  the  requii*e- 
ments  of  the  law  and  discharged  their  duty. 

I  don't  know  that  I  need  say  anything  further  to  you  iii 
regard  to  the  matter.  You  will  have  to  take  the  papers  and  dis 
pose  of  the  case  under  the  law  as  I  have  stated  it  to  you  and  in 
the  manner  I  have  stated  to  you. 

Verdict  and  judgment  for  plaintiff  for  t250.  Defendant 
appealed. 

Errors  assigned  were  (1)  In  allowing  certain  questions  and 
answers  from  Samuel  Dreibilbis,  the  plaintiff  in  this  suit,  to  be 
asked  and  answered  under  exception,  reciting  same.  (2, 3)  To 
portions  of  the  judge's  charge,  reciting  same. 

J,  0.  Arnold^  for  appellant. 

J.  Hay  Brown  and  W.  U.  Hensel^  for  appellee. . 

Opinion  by  Beavbb,  J.,  December  13, 1897 : 
Tlie  action  is  slander.  The  plaintiff,  being  upon  the  witness 
stand  and  under  examination,  was  asked,  under  objection  and 
exeeption,  what  his  own  witness  Hinardier,  previously  exam- 
ined, had  told  him  the  defendant  said  the  same  evening  the 
alleged  slanderous  words  had  been  uttered.  The  puipose  of 
this  offer  was  not  stated.  We  are  at  a  loss  to  determine  in 
what  view  of  the  case  the  evidence  received  under  this  offer 
was  competent.  It  differed  somewhat  from  the  testimony  of 
Hinardier  himself  but  it  could  not  have  been  offered  for  the 
purpose  of  contradicting  him  nor  yet  of  corroborating  him. 
Was  it  intended  to  be  substantive  proof  of  the  slanderous  words 
uttered  by  the  defendant,  as  laid  in  the  plaintiff's  statement  ? 
If  so,  it  was  clearly  incompetent.  The  mere  fact  that  what  the 
defendant  said  to  Hinardier  had  been  communicated  to  the 
plaintiff  had  been  testified  to  both  by  Hinardier  himself  and 
by  the  plaintiff,  without  objection.     That  was  as  far  as  it  was 


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DREIBILBIS  V.  ESBENSHADE.  185 

1897.]  Opinion  of  the  Court. 

proper  to  go.  The  objection  should  have  been  sustained  and 
the  offer  rejected. 

The  alleged  slanderous  words,  as  laid  in  the  plaintiff's 
amended  statement,  are  as  follows  :  "  I  believe  my  turkeys  are 
over  there ;  I  believe  the  tenant  man  took  them ;  I  believe  I 
wiU  get  a  search  warrant ;  I  think  I  know  where  they  are ;  I 
think  they  are  in  Hinardier's  tenant  house  ;  I  think  I  will  get 
a  search  warrant."  The  testimony  of  the  defendant,  who  was 
called  by  the  plaintiff,  as  if  under  cross-examination,  in  regard 
to  what  he  said  as  to  the  loss  of  his  turkeys  was  as  follows : 
"  Q.  Did  you  say  to  him  (Jacob  Kohr)  talking  about  Di^eibilbis, 
*  I  believe  my  turkeys  are  over  there  ? '  A.  I  didn't  mention  no 
names.  Q.  Did  you  say  *  I  believe  my  turkeys  are  over  there  ? ' 
A.  I  did,  yes.  Q.  Did  you  say  '  I  believe  the  tenant  man  took 
them  ? '  A.  Oh  no,  no,  sir.  Q.  Did  you  say  '  I  believe  I  will 
get  a  search  warrant?'  A.  I  did  that.  Q.  *I  think  I  know 
where  they  are,'  did  you  say  that  ?  A.  No,  I  didn't  say  that. 
Q.  Did  you  say  *  I  think  they  are  in  Hinardier's  tenant  house  ? ' 
A.  No." 

It  will  be  readily  seen  that  the  words  as  laid  in  the  plaintiff's 
statement  and  those  as  testified  to  by  the  defendant  are  essen- 
tially and  materially  different,  and  yet  in  regard  to  them  the 
court  said :  "  These  words  as  laid  are  in  themselves  actionable, 
therefore,  now  are  they  proven  ?  I  need  scarcely  say  to  you 
that,  if  you  believe  the  testimony  of  the  defendant  himself,  you 
cannot  say  they  are  not  proven,  because  he  tells  you  he  did  say 
about  what  is  there.  And  further  than  that,  he  went  to  a  mag- 
istrate's office  and  signed  a  paper  in  which  he  charged  this  man, 
the  defendant,  with  the  larceny,  had  a  search  warrant  prepared 
for  him,  searched  his  house  (I  think  you  will  find  from  the  evi- 
dence in  his  absence,  the  presence  of  his  wife  and  child)  found 
nothing  and  left.  He  was  airested  himself,  came  here  and  had 
a  hearing  and  was  discharged  for  want  of  evidence  to  sustain 
the  charge  made  agauist  him,  so  that  in  this  case,  according  to 
the  statements  of  the  defendant  himself,  your  verdict  will  have 
to  be  for  the  plaintiff  for  some  amount,  and  the  main  question 
you  will  have  to  decide  is  what  that  amount  shall  be." 

In  this  there  was  substantial  error.  The  defendant  emphatic- 
ally denied  having  said  "  I  believe  the  tenant  man  took  them." 
"I  think  I  know  whei-c  they  arc."     "I  think  they  are  in  Hin- 


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186  DREIBILBIS  %\  ESBKNSHADE. 

Opinion  of  the  Court.  [6  Pa.  Superior  Ct. 

ardier's  tenant  house."  If  there  is  anything  in  the  words  laid  in 
the  plaintiff's  statement  which  will  support  the  innuendo,  it  is  in 
the  language  above  quoted.  Certainly  the  testimony  of  the  de- 
fendant did  not  prove  them.  What  followed  in  regard  to  the 
search  warrant  and  the  subsequent  proceedings  thereon  threw 
no  light  whatever  upon  the  utterance  of  the  slanderous  words 
alleged  to  have  been  uttered  and,  therefore,  the  statements  of  the 
defendant  did  not  warrant  binding  instructions  as  to  the  finding 
of  a  verdict  for  the  plaintiff. 

The  trial  judge  in  the  court  below  charged  the  jury :  "  This 
is  a  record  made  against  him  and  will  not  down.  The  record 
is  here,  remains  in  this  office,  and  always  will  show  what  the 
defendant  here,  Mr.  Esbenshade,  charged  him  with,  and  you 
will  have  to  render  such  a  verdict  as  in  your  judgment  will 
compensate  him  for  the  injuiy  he  has  received  in  his  reputation 
by  this  charge."  What  is  the  record  referred  to  ?  Was  it  the 
proceedings  before  the  aldeiman  upon  which  the  search  warrant 
was  obtained?  Technically  this  was  not  a  record,  was  not  in 
the  court  and  shows  on  its  face  that  the  charge  had  been  dis- 
missed and  the  defendant  discharged.  Was  it  the  record  of  the 
action  of  slander  then  being  tried  ?  The  defendant  was  in  no 
way  responsible  for  that.  That  was  a  record  for  whicTi  the 
plaintiff  alone  was  responsible  and  we  fail  to  see,  in  any  view 
of  the  case,  why  the  language  complained  of  should  have  been 
used  as  substantial  ground  upon  which  a  verdict  could  be  based. 

The  three  assignments  of  error,  upon  which  the  defendant 
(the  appellant  here)  relies,  are  all  sustained,  and  the  judgment 
is  reversed  and  a  new  venire  awarded. 


Josiah  S.  Koch  v.  Henry  Kuhns,  Appellant. 

Building  contract— Submission  to  architect— Rule  of  mason's  workman- 
ship— Evidence, 

A  building  conti*act  provided  that  all  the  mason  work  shall  be  measured 
bj  the  architect  according  to  rule  of  mason^s  workmanship.  Held,  in  a 
controYei*sy  as  to  the  amount  due  the  mason,  that  the  contract  properly 
interpreted  imposed  upon  the  architect  the  duty  to  observe  the  rule  of 
mason^s  workmanship  in  his  measurement,  and  offers  of  evidence  tending 
CO  show  that  the  measurements  certiiied  by  the  architect  had  failed  to  apply 


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KOCH  V,  KUHNS.  187 

1897.]  Syllabus—Statement  of  Facts. 

the  rule,  are  admissible.  In  order  to  oust  the  Jurisdiction  of  the  courts  it 
must  clearly  appear  that  the  subject-matter  of  the  controversy  is  within 
the  prospective  submission.  The  right  of  trial  by  jury  is  not  to  be  taken 
away  by  implication . 

Argued  Nov.  9,  1897.  Appeal,  No.  18,  Oct.  T.,  1897,  by 
defendant,  from  judgment  of  C.  P.  Berks  Co.,  Dec.  T.,  1894, 
No.  72,  on  verdict  for  plaintiff.  Before  Rice,  P.  J.,  Wickham, 
Beaver,  Oblady,  Smith  and  Porter,  JJ.    Reversed. 

Assumpsit  to  recover  over  payment  to  the  stone  mason  under 
a  building  contract.     Before  Endlich,  J. 

It  appears  from  the  record  and  evidence  that  this  is  an  action 
brought  by  the  contractor  to  recover  from  the  defendant,  a  stone 
mason  and  subcontractor,  an  overpayment  for  stone  masonry 
required  in  the  erection  of  the  said  building.  The  contract  pro- 
vided for  the  payment  of  a  certain  sum  per  perch  for  each  and 
every  perch  so  laid,  as  measured  by  the  architect,  and  also  pro- 
vided that  all  work  be  measured  according  to  the  rules  of 
mason's  workmanship.  The  question  turned  on  the  correctness 
of  the  architect's  measurements. 

During  the  course  of  the  trial  the  following  offers  of  testi- 
mony were  made,  with  objections  by  plaintiff.  [Charles  F. 
Smith  sworn :  Mr.  Stevens  :  Counsel  for  defendant  further  of- 
fers to  prove  by  the  witness  on  the  stand  that  he  made  actual 
measurements  of  the  mason  work  done  by  Mr.  Henry  Kuhns  at 
the  Memorial  Church  and  compared  them  with  the  measure- 
ments made  by  the  architect  Lonsdale  and  that  he  finds  that  the 
architect  failed  to  apply  the  mason's  rule  of  measurement  and  in 
many  instances  calculated  the  actual  cubic  contents  of  the  mason 
work  done,  whereby  the  claim  of  the  plaintiff  would  be  de- 
creased, and  with  the  bills  for  extras  admitted  would  be  entirely 
wiped  out ;  these  measurements  were  made  the  same  time,  No- 
vember 16, 1895.  ]  [4] 

[Mr.  Stevens:  Counsel  for  the  defendant  renew  the  same 
offer  and  add  to  it :  the  testimony  showing  that  there  was  no 
change  in  the  character  of  the  work,  and  the  witness  was  able 
accurately  to  measure  the  mason  work  as  done  by  Kuhns ;  the 
defendant  offers  to  show  by  the  witness  on  the  stand  that  he 
made  actual  measurements  on  the  ground  of  the  mason  work 
that  was  exposed  to  view  and  took  the  measurements  and  cal- 


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188  KOCH  V.  KDHN8. 

Statement  of  Facts — Charge  of  Court.  [6  Pa.  SupeHor  Ct. 

culations  made  by  the  architect  of  those  parts  which  were  con- 
cealed, and  he  finds  by  comparison  that  the  architect  failed  to 
apply  the  mason's  rule  of  measurement,  but  took  the  cubic  con- 
tents of  the  walls,  whereby  the  defendant  failed  to  receive 
credit  for  a  large  amount  of  work  done,  equal  to  the  amount  of 
plaintiffs  claim.]  [5] 

[Adam  H.  Leader  sworn:  By  Mr.  Stevens:  "Q.  You  are  a 
civil  engineer?  A.  Yes,  sir.  Q.  How  many  years' experience? 
A.  About  10.  Q.  You  are  accustomed  to  measuring  build- 
ings? A.  Yes,  sir.  Q.  You  made  a  measurement  of  the 
Memorial  Church  of  the  stone  work  done  by  Henry  Kuhns* 
A.  Yes,  sir.  Q.  From  the  work  actually  done  and  by  an  actual 
measurement  of  the  masonry  and  examination  of  the  plans  ? 
A.  Measured  the  masonry  by  lengths  of  walls,  and  assumed  the 
heights  taken  by  the  architect,  which  we  cojildn't  get,  and 
make  up  our  calculation." 

Mr.  Stevens :  We  offer  to  show  by  the  witness  that  from  an 
actual  measurement  of  the  mason  work  in  the  Methodist  Church, 
made  on  November  16, 1895,  by  the  rule  of  mason's  measure- 
ment, he  found  1232  perches  in  the  foundations,  1580J  perches 
in  the  superstructure,  not  including  the  cloister  and  the  tower, 
and  690  perches  in  the  cloister  and  tower.]  [6] 

The  court,  Endlich,  J.,  charged  in  part  as  follows : 
[Now,  gentlemen,  you  understand  in  building  contracts  of 
this  kind  where  the  parties  agree  to  refer  the  matter  of  measure- 
ments and  computations  to  a  certain  person,  that  person's  meas- 
urements and  computations  are  binding  upon  both  parties, 
except  where  the  measurements  themselves  indicate  on  the 
face  of  them  palpable  miscalculations — faulty  arithmetic.  So 
you  start  out  with  this  proposition  in  the  present  case,  that  in 
so  far  as  the  rights  of  the  parties  are  to  be  measured  by  their 
agreement  (and  they  are  to  be  measured  by  the  agreement 
unless  you  find  for  the  defendant  upon  one  of  the  questions 
which  has  been  raised  in  this  case,  and  that  I  will  discuss  to 
you  later)  the  measurements  of  the  work  done  as  made  by  the 
architect  are  binding  upon  both  parties  and  so  are  his  calcula- 
tions, except  in  those  instances  where  a  palpable  mistake  has 
been  shown  by  the  evidence.  There  have  been  certain  mistakes 
shown  by  the  evidence,  which,  as  I  understand,  are  conceded 


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KOCH  V,  KUUNS.  189 

1897.]  Charge  of  Court— Arguments. 

by  the  plaintiff,  and  those  mistakes  in  the  claim  which  he  now 
makes  against  the  defendant  have  been  corrected.]  [1] 

Verdict  and  judgment  for  plaintiff  for  $854.39.  Defendant 
appealed. 

Errors  assigned^  inter  alia,  were,  (1)  To  portion  of  the  judge's 
charge,  reciting  same.  (4-6)  Rejection  of  certain  offers  of  evi- 
dence made  by  the  defendant,  reciting  same. 

Wm.  Keiyer  Stevens^  of  Stevens  ^  Stevens^  for  appellant. — 
The  contract  between  the  parties  not  having  made  the  measure- 
ments of  the  architect  conclusive,  the  defendant  has  a  right  to 
prove  that  the  measurements  were  inaccurate:  Trust  Co.  v. 
Railway  Co.,  70  Fed.  Rep.  282 ;  Railroad  Co.  v.  Wilcox,  48 
Pa.  161. 

The  contract  between  the  parties  required  all  work  to  be 
measured  according  to  the  rule  of  mason's  measurement,  and 
the  architect  had  not  the  power  to  adopt  a  different  rule :  Mc- 
Collough  V.  Ashbridge,  156  Pa.  166. 

The  question  raised  by  these  assignments  of  error  has  been 
very  recently  considered  by  this  court  in  the  case  of  Fisher  v. 
South  Williamsport,  1  Pa.  Superior  Ct.  386 ;  Drhew  v.  Altoona» 
121  Pa.  401 ;  Railroad  Co.  v.  Dilley,  25  Am.  &  Eng.  R.  R. 
Cases,  265 ;  Morse  on  Arbitration,  38,  cited  and  approved  in 
Itaiboad  Company  v.  Mills,  22  S.  E.  Rep.  556. 

Philip  S.  Zieber^  with  him  Baer  ^  Snyder^  ior  appellee. — 
1'he  provision  in  the  contract  that  the  work  was  to  be  done  to 
the  satisfaction  of  the  architect,  and  payments  to  be  made  for 
it  as  measured  by  said  ait^hitect  at  such  times  and  in  such 
amounts  as  said  architect  shall  certify  to  be  rightly  due,  ren- 
dered the  architect's  measurements  conclusive  upon  the  parties : 
Kennedy  v.  Poor,  151  Pa.  472. 

The  agreement  of  Mr.  Koch,  therefore,  was  to  pay  only  for 
tlie  work  done  as  measured  by  the  architect.  The  case  differs 
in  that  respect  from  Railroad  Co.  v.  Wilcox,  48  Pa.  161,  and 
Trust  Company  v.  Railway  Company,  70  Fed.  Rep.  282,  cited 
in  appellant's  argument:  Kihlberg  v.  U.  S.,  97  U.  S.  400. 

Our  contention  is  also  supported  by  the  case  of  McCauley  v. 
Keller,  130  Pa.  53. 


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190  KOCH  V.  KDHNS. 

Opinion  of  the  Conrt.  [6  Pa.  Superior  Ot. 

Opinion  by  Porteb,  J.,  December  13, 1897 : 

The  contract  between  the  parties  in  this  cause  was  in  writing 
and  required  the  defendant  "to  do  all  the  stone  masonry  re- 
quired for  the  new  Methodist  Episcopal  Church  and  Sunday 
School  buildings,  to  be  erected  on  North  Fifth  street "  in  the 
city  of  Reading.  After  setting  forth  the  rate  per  perch,  the 
contract  provides,  "  all  the  work  to  be  measured  according  to 
rule  of  mason's  workmanship. 

"All  to  be  done  in  the  best,  most  substantial  and  workmanlike 
manner  to  the  satisfaction  of  Thomas  P.  Lonsdale,  the  super- 
vising architect,  as  described  and  set  forth  in  the  plans  and 
specifications  as  furnished  by  said  architect."  The  plaintiff 
was  required  by  the  contract  to  pay  the  defendant  "  the  before 
named  sums  per  perch  for  each  and  every  perch  so  laid  as 
measured  by  said  architect,  at  such  times  and  in  such  amounts 
as  the  said  architect  shall  certify  to  be  rightly  due  said  party 
of  the  first  part  upon  his  application  and  statement  of  work 
done." 

As  the  work  progressed,  payments  wei'e  made  to  the  mason 
without  the  architect's  certificate,  upon  an  account  kept  by  the 
defendant  based  upon  measurements  made  when  the  work  was 
in  progress.  The  architect  seems  to  have  made  no  measure- 
ments until  the  work  was  practically  completed,  and  then  issued 
a  certificate  for  the  whole  of  the  work  done.  When  the  certifi- 
cate was  issued  the  plaintiff  had  already  paid  the  defendant  in 
full  for  mason  work  the  sum  of  $6,357.07.  The  architect's 
measurements  and  calculations  showed  that  the  phiintiff  had 
overpaid  the  defendant  the  sum  of  ♦OOS.SS.  For  this  the  plain- 
tiff sued. 

The  difference  between  the  measurement  of  the  architect  and 
that  of  the  defendant  is  claimed  to  be,  at  least  in  part,  due  to 
the  difference  in  the  method  of  measuring  the  work  done. 

The  learned  trial  judge  of  the  court  below  seems,  in  this  con- 
nection, to  have  fallen  into  error.  Under  the  terms  of  the  con- 
tract the  architect  may  have  been  the  arbiter  as  to  the  character 
and  quality  of  the  work  done,  but  his  measurements  were  to  be 
made  according  to  a  certain  rule.  Nowhere  in  the  contract  is 
found  a  specific  stipulation  that  the  architect  is  to  have  the 
power  to  determine  the  measurement  arbitrarily. 

"  In  order  to  oust  the  jurisdiction  of  the  courts  it  must  clearly 


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KOCH  V.  KUHNS.  191 

1897.]  Opinion  of  the  Court. 

appear  that  the  subject-matter  of  the  controversy  was  within 
the  prospective  submission.  The  right  of  trial  by  jury  is  not 
to  be  taken  away  by  implication : "  Drhew  v.  Altoona,  121  Pa. 
401,  420. 

The  court  below  was  apparently  of  opinion  that  the  archi- 
tect's measurements  were  binding  unless  shown  to  have  been 
based  on  palpable  mistake  or  fraud ;  whereas,  where  the  con- 
tract contemplated  a  measurement  by  a  particular  rule,  he 
should  have  shown  his  knowledge  of  the  rule  and  his  applica- 
tion of  it  to  the  particular  case.  His  testimony  is  not  satis- 
factory on  this  point,  and  indicates  his  own  opinion  to  have 
been  that  the  rule  was  subject  to  his  power  to  vary  it  in  the 
particular  case.  True,  he  says  that  he  measured  by  what  he 
knew  to  be  the  mason's  rule,  and  says  that  he  measured  the 
whole  surface  of  the  wall  and  gave  it  to  the  mason,  but  his 
cross-examination  runs  in  part  as  follows:  "Q.  There  are  a 
number  of  openings  there,  now  you  included  them  all.  Under 
the  mason's  rule  of  measurement  those  openings  are  included? 
A.  Not  by  my  mason's  rule  as  I  understand  it,  no  sir.  Q.  There 
is  a  general  rule  adopted  in  the  measuring  of  mason's  work,  is 
there  not?  A.  No  sir.  Q.  There  is  not?  A.  No  sir.  Q.  The 
contmct  calls  for  the  mason's  rule  of  measurement?  A.  Yes 
sir,  but  measured  by  me.  Q.  That  is  a  uniform  rule  of  meas- 
urement, is  it  not?  A.  No  sir.  Q.  Did  you  adopt  a  different 
mason's  rule  ?  A.  I  had  to  do  it.  I  was  tlie  arbiter  and  had 
to  do  it  in  my  way.  I  couldn't  do  it  in  any  other  party's  way 
or  I  would  have  had  to  learn  their  method.  The  contract  re- 
quired me  to  do  it."  And  again  he  says :  "  Q.  But  now  the 
mason's  rule  of  measurement  in  a  general  way  is  uniform  in  all 
parts  of  the  state  as  to  the  work  measured?  A.  No  sir,  I 
couldn't  say  that."  *  And  again :  *'  Q.  Now  you  have  also  said 
and  given  us  an  illustration  that  the  mason's  rule  of  measure- 
ment may  differ  in  different  localities  ?  A.  No  sii*,  you  asked 
me  if  I  was  to  do  it  in  a  specific  way  and  I  said  I  was,  and  the 
mason's  measurement  set  out  for  me  to  do  is  my  way.  I  was 
fixed  in  the  contract  to  do  the  work  in  a  specific  way,  otherwise 
I  had  to  learn  some  other  way  of  measuring.  I  only  know  my 
rule  of  mason's  measurement."  And  again:  "Q.  Did  you  at 
any  time  make  any  effort  to  apply  the  rules  of  mason's  measure- 
ment? A.  I  just  explained  I  did  the  work  by  what  I  under- 
stood to  be  the  rules  of  mason's  measurement." 


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192  KOCH  V.  KUHXS. 

Opinion  of  the  Court.  [G  P:i.  Superior  Ct. 

From  this  it  will  be  seen  that  there  was  doubt  cast  on  the 
proposition  that  the  measurements  had  in  fact  been  made  accord- 
ing to  the  rule  of  mason's  measurement  as  required  by  the  con- 
tract. Under  these  circumstances,  the  offers  of  the  defendant  to 
prove  by  competent  witnesses  that  the  measurements  certified  by 
the  architect  were  not  in  accordance  with  the  rule  aforesaid,  and 
that  the  architect  had  failed  to  apply  the  rule,  ought  to  have 
been  admitted. 

The  fact  that  the  offer  of  proof  was  on  the  basis  of  measure- 
ments made  a  considerable  time  after  the  construction  was 
completed,  does  not  furnish  a  ground  to  reject  the  evidence. 
From  the  evidence  it  appeared  that  the  mason  work  in  large 
part  was  still  visible  and  that  the  architect's  own  figures  were 
accepted  as  to  the  parts  of  the  masonry  not  visible. 

We  think  the  offers  of  proof  set  forth  in  the  4th,  5th  and 
6th  assignments  of  error  should  not  have  been  rejected,  and 
these  assignments  are  therefore  sustained. 

The  first  assignment  is  also  sustained,  as  the  part  of  the 
charge  complained  of  is  in  conflict  with  the  views  herein  ex- 
pressed.   The  remaining  assignments  are  not  sustained. 

The  judgment  is  reversed  and  a  venire  facias  de  novo  awarded. 


Estate  of  Mary  Fell.  Appeal  of  Wm.  King,  Agent  for 
the  Heirs  of  Jacob  Fell  and  Francis  Fell,  deceased, 
Heirs-at-law  of  Mary  Fell,  deceased. 

Will— Bequest  oftrUeresl  a  bequest  of  the  fund— Life  estate. 

A  bequest  of  the  interest  of  a  fund,  without  limitation  as  to  time,  is  a 
iieqnest  of  the  fund  itself,  unless  there  is  something  to  show  a  di£fei*ent 
intention. 

In  cases  of  doubt  or  indcfiniteness  the  fact  that  there  is  no  bequest  or 
limitation  over  is  usually  held  decisive  in  favor  of  the  view  that  the  fii'st 
taker  is  entitled  to  an  absolute  estate  in  the  fund. 

The  bequest  was  of  interest  on  a  certain  bond  to  Leah  and  Rachel  dur- 
ing their  lives,  and  in  case  of  death  of  either  of  them  the  survivor  to  have 
all  it  draws  for  life.  Held,  on  the  death  of  the  survivor  the  piincipal  was 
payable  to  her  administrators  and  not  to  the  next  of  kin  of  the  decedent. 

Argued  Nov.  10, 1897.  Appeal,  No.  177,  Nov.  T.,  1896,  by 
Wm.  King,  agent  for  the  heirs  of  Jacob  Fell  and  Francis  Fell, 


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FELL'S  ESTATE.  193 

1897.]  Statement  of  Facts— Arguments. 

deceased,  from  decree  of  O.  C.  Lancaster  Co.,  dismissing  ex- 
ceptions to  and  confirming  absolutely  report  of  the  auditor  in 
the  estate  of  Mary  Fell,  deceased.  Before  Rice,  P.  J.,  Wick- 
ham,  Bbavbb,  Reedbb,  Orlady,  Smith  and  Porter,  JJ. 
Affirmed. 

Exceptions  to  auditor's  report.    Before  Livingstok,  P.  J. 
The  exceptions  to  the  auditor's  report  were  as  follows : 

1.  The  auditor  erred  in  awarding  the  net  balance  of  the  es- 
tate— $288.19 — to  the  administrator  of  Rachel  Fell,  deceased. 

2.  The  auditor  erred  in  not  awarding  the  net  balance  of  the 
estate — J288.19 — per  stirpes  to  the  heirs  of  Jacob  Fell,  Francis 
Fell  and  Rachel  FeU. 

Other  facts  sufficiently  appear  in  the  opinion  of  the  court. 

JSrrors  assigned  were  (1,  2)  In  dismissing  tJie  exceptions  to 
the  auditor's  report. 

Thos.  Whitson^  for  appellant. — The  mistake  that  the  learned 
auditor  made  in  interpreting  the  will  is  that  he  has  tried  to 
bring  it  under  the  rule  that  "  a  gift  of  the  produce  of  the  fund 
is  a  gift  of  the  principal."  The  rule  only  takes  hold  where  the 
gift  of  the  interest  is  unqualified,  in  perpetuity,  forever,  and  so 
indeed  it  is  held  by  every  authority  that  the  learned  auditor 
has  cited. 

An  heir  is  not  to  be  disinherited  without  an  express  devise- 
or  necessary  implication ;  such  implication  importing  not  natu- 
ral necessity,  but  so  strong  a  probability,  that  an  intention  to* 
the  contrary  cannot  be  supposed :  3  Jarman  on  Wills,  704  (5 
Am.  ed.) 

The  failure  to  name  a  residuary  legatee  raises  no  intent  to 
disinherit  any  person  who  would  take  under  the  intestate  laws : 
Hoffner  v.  Wynkoop,  97  Pa.  130;  Fitzwater's  Appeal,  94  Pa. 
141. 

All  the  tendency  of  the  law  in  cases  of  the  slightest  doubt  or 
ambiguity  is  to  follow  the  intestate  laws :  Joyce's  Estate,  13 
W.  N.  C.  520. 

D.  F.  Magee^  for  appellee. 
Vol-  VI— 13 


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194  FELL'S  ESTATE. 

Opinion  of  the  Court.  [6  Pa.  Superior  Ct. 

Opinion  by  Wickham,  J.,  December  18, 1897: 

The  portions  of  the  will  of  Mary  Fell,  deceased,  necessary  to 
be  here  considered,  are  as  follows :  "  I,  Mary  Fell,  do  make  this 
my  will,  that  is,  I  will  to  Leah  F.  Moore  and  Rachel  Fell  all 
the  interest  on  a  bond  that  I  hold  against  Charles  Fell,  except 
so  much  as  will  pay  one  half  of  the  interest  on  some  notes  I 
signed  with  Charles,  and  if  Charles' Fell  will  give  those  persons 
notes  in  his  own  name,  then  one4ialf  of  the  principal  which  I 
should  pay  may  be  entered  on  the  bond  as  the  amount  paid,  and 
Leah  F.  Moore  and  Rachel  Fell,  shall  have  all  the  interest  on 
the  remainder  of  the  bond.  They  shall  have  all  the  interest  it 
draws  during  their  lives  and  in  case  of  the  decease  of  either  of 
them,  the  survivor  shall  have  all  it  draws,  during  her  life,  &c." 

"  I  appoint  Marshall  Wright  and  William  King  ray  executors, 
and  I  appoint  them  to  be  a  committee  in  conjunction  with  Charles 
Fell  during  the  lifetime  of  Leah  F.  Moore  and  Rachel  FelL" 

The  firet  clause  of  the  first  paragraph  above  quoted,  standing 
alone,  would  undoubtedly  give  the  two  legatees  the  corpus  of 
the  fund  absolutely.  A  bequest  of  the  interest  of  a  fund,  with- 
out limitation  as  to  time,  is  a  bequest  of  the  fund  itself,  unless 
there  is  something  in  the  will  to  show  a  different  intention : 
Garret  v.  Rex,  6  W.  14 ;  Campbell  v.  Gilbert,  6  Wh.  72  ;  Rob- 
ert's Appeal,  59  Pa.  70 ;  Keene's  Appeal,  64  Pa.  268.  The  sec- 
ond clause  of  the  paragraph  provides  that  the  legatees  shall 
have  all  the  interest  during  their  lives,  and  that  it  shall  all  go 
to  the  survivor,  in  case  of  the  death  of  either  before  the  other. 

We  thus  have  presented  to  us  the  question,  whether  the  abso- 
lute bequest  of  the  fund  shall  be  cut  down  to  a  life  estate  therein 
by  a  later  expression  in  the  will.  To  accomplish  this,  all  the 
authorities  agree  that  the  testator's  intent  to  reduce  the  estate 
must  be  unambiguous.  It  will  be  noticed  that  the  testatrix 
does  not  expressly  say  iJiat  the  estate  of  the  legatees  shall  cease 
with  their  lives,  or  the  lives  of  the  survivor,  and  it  is  especially 
significant  that  there  is  no  bequest  or  limitation  over.  The 
latter  circumstance  is  very  important.  In  case  of  doubt  or 
indefiniteness  it  is  usually  held  decisive  in  favor  of  the  view 
that  the  first  taker  is  entitled  to  an  absolute  estate  in  the  fund. 
It  is  scarcely  necessary  to  refer  to  the  many  authorities  sustaining 
the  epigrammatic  summary  of  Justice  LoWRiE,  in  Smith's  Ap- 
peal, 23  Pa.  9,  that  ^^In  cases  of  doubtful  construction,  the  law 


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FELL'S  ESTATE.  195 

1897.]  Opinion  of  the  Court. 

leans  in  favor  of  an  absolute  rather  than  a  defeasible  estate, 
of  a  vested  rather  than  a  contingent  one,  of  the  primaiy  rather 
than  the  secondarj^  intent,  of  the  first  rather  than  the  second 
taker,  as  the  principal  object  of  the  testator's  bounty."  Equally 
well  settled  is  the  rule  that  a  will  must  be  so  construed  as  to 
avoid  partial  intestacy,  unless  the  contrary  is  unavoidable :  Ap- 
peal of  Boards  of  Mission,  91  Pa.  507 ;  Boies'  Estate,  177  Pa- 
190. 

The  appointment  of  a  "committee"  for  the  legatees,  whatever 
was  meant  thereby,  certainly  did  not  create  any  trust  as  to  the 
bequests.  There  is  not  a  word  in  the  will  giving  the  committee 
the  right  to  handle,  invest,  or  interfere  with  the  legatees'  es- 
tates. But,  even  if  the  bequests  had  been  placed  in  the  hands 
of  the  committee,  without  more,  the  trust  would  have  been  dry, 
the  trustees  having  assigned  to  them  no  active  duties,  and  hence 
could  have  no  effect  on  the  construction  we  feel  bound  to  give 
the  will :  McCune  v.  Baker,  155  Pa.  503. 

Decree  affirmed  at  cost  of  appellant. 


Wm.  P.  Gray,  now  to  the  use  of  Thomas  H.  Gray,  v. 
Henry  F.  Hartman,  Appellant. 

Endence^Cross-examination  of  unwilling  witness  by  party  calling  him. 
It  is  proper  for  the  tnal  judge,  in  the  exercise  of  a  sound  discretion,  to 
permit  a  cross-examination  of  an  unwilling  witness  by  the  party  calling 
him  to  show  that  his  previous  statements  and  conduct  were  at  variance 
with  his  testimony,  where  such  statements  made  at  a  preliminary  exami- 
nation induced  the  calling  of  the  witness  and  were  matenal  to  the  issue. 

Charge  of  court — Instructions  as  to  scrutiny  of  evidence. 

In  a  case  where  there  is  conflicting  or  contradictory  oral  testimony,  it  is 
proper  for  the  trial  judge  to  instruct  the  jury  as  to  tlieir  duty  of  carefully 
scrutinizing  and  dispassionately  weighing  the  evidence. 

Argued  Nov.  10, 1897.  Appeal,  No.  178,  Nov.  T.,  1896,  by 
defendant,  from  judgment  of  C.  P.  Lancaster  Co.,  Feb.  T.,  1894, 
No.  51,  on  verdict  for  plaintiff.  Before  Rice,  P.  J.,  Wickham, 
Bbavbe,  Rbedeb,  Oblady,  Smith  and  Portbb,  JJ.  Af- 
firmed. 


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196  GRAY  V,  HARTMAN. 

Statement  of  Facts — Arguments.  [6  Pa.  Superior  Ct. 
Assumpsit  for  breach  of  alleged  oral  contract.    Before  Bbit- 

BAKEB,  J. 

It  appears  from  the  evidence  that  during  the  progress  of  the 
trial  plaintifiE  called  as  a  witness  one  William  Bachman,  and 
against  defendant's  objections  was  permitted  to  cross-examine 
the  witness  as  to  alleged  declarations  or  admissions  he  had 
made  previous  to  the  trial  in  the  office  of  the  counsel  for  plain- 
tiff, for  the  purpose  of  showing  that  plaintiff  had  been  misled 
and  deceived  by  the  witness. 

The  court,  Bkubaker,  J.,  charged  the  jury,  inter  alia,  as 
follows : 

There  is  another  principle  of  law  which  I  deem  it  my  duty 
to  give  to  you,  with  reference  to  the  weight  and  preponderance 
of  the  testimony.  It  is  your  duty,  gentlemen  of  the  jury,  to 
carefully  scrutinize  and  dispassionately  weigh  the  evidence  of  all 
the  witnesses  in  the  case,  and  to  give  proper  credit  to  the  evi- 
dence of  each  and  all  of  the  witnesses,  and  if  possible  to  recon- 
cile all  the  evidence  in  the  case  with  the  presumption  that 
each  witness  has  intended  to  speak  the  truth,  unless  by  their 
manner  of  testifying  on  the  witness  stand,  or  inconsistent  state- 
ments sworn  to,  or  by  testimony  inconsistent  with  other  credible 
Avitnesses  in  the  cjwe,  you  are  led  to  believe  from  a  manifesta- 
tion of  interest,  bias  or  prejudice,  that  such  witness  or  witnesses 
have  been  inclined  to  color,  distort,  or  suppress  the  truth,  or 
unless  they  have  been  impeached.  It  is  your  duty  to  carefully 
scrutinize  the  testimony  as  it  has  been  given  upon  the  stand,  in 
order  to  arrive  at  the  truth  of  the  matters  in  dispute,  at  issue 
between  the  parties. 

Verdict  and  judgment  for  plaintiff  for  $174.34.  Defendant 
appealed. 

ErrorB  assiffned^  among  others  were  (1)  In  overruling  objec- 
tions. (2)  In  permitting  the  cross-examination  of  William 
Bachman,  a  witness  called  by  the  plaintiff,  for  the  purpose  of 
showing  that  plaintiff  had  been  misled  and  deceived  by  the 
witness.     (17)  To  portions  of  the  judge's  charge,  reciting  same. 

^.  F.  Davis^  for  appellant. — A  party  may  not  impeach  his 
own  witness  by  cross-examination:  Fisher  v.  Hart,  149  Pa. 


Digitized  by  VjOOQ IC 


GRAY  V,  HARTMAN.  197 

1897.]  Arguments — Opinion  of  the  Couit. 

232;  Steams  v.  Bank,  53  Pa.  490;  Smith  v.  Price,  8  Watts, 
447. 

The  vice  of  the  charge  was  in  allowing  the  testimony  of  plain- 
tiff in  impeaching  his  own  witness  to  go  to  the  jury  as  substan- 
tive testimony:  Bank  v.  Davis,  6  W.  &  S.  285. 

Edw.  P.  Brintouj  with  him  Wm.  R.  Brinton^  for  appellee. — 
The  court  rightly  permitted  plaintiff's  counsel  to  specially  call 
the  attention  of  witness,  Bachman,  to  his  contrary  statements 
made  in  his  preliminary  examination  and  when  he  denied  them 
in  toto,  the  court  properly  permitted  plaintiff  to  contradict  the 
witness :  Cowden  v.  Reynolds,  12  S.  &  R.  281 ;  Com.  v.  Lamber- 
ton,  2  Brewster,  565 ;  Stearns  v.  Bank,  53  Pa.  490 ;  Bank  V. 
Davis,  6  W.  &  S.  285 ;  McNemey  v.  Readmg,  150  Pa.  611. 

Opinion  by  Beaver,  J.,  December  13, 1897  : 
Sixteen  of  the  assignments  of  error  in  this  case  relate  to  ex- 
ceptions taken  to  the  examination  of  one  Bachman,  a  witness 
called  by  the  plaintiff,  or  to  the  testimony  of  witnesses  called 
to  contradict  him.  They  raise  but  a  single  question :  Can  a 
party  who  has  called  a  witness  lay  the  ground  for  contradicting 
him  by  a  cross-examination  and  subsequently  contradict  him  by 
other  witnesses,  when  he  has  been  misled  as  to  what  the  witness 
will  testify  by  a  preliminary  examination  ? 

The  general  rule  upon  the  subject  is  thus  stated  in  Greenleaf 
on  Evidence,  vol.  1,  sec.  442:  "When  a  party  offers  a  witness 
in  proof  of  his  cause,  he  thereby  in  general  represents  him  as 
worthy  of  belief.  He  is  presumed  to  know  the  character  of  the 
witnesses  he  adduces ;  and,  having  thus  presented  them  to  the 
court,  the  law  will  not  permit  the  party  afterwards  to  impeach 
their  general  reputation  for  truth  or  to  impugn  their  ci-edibility 
by  general  evidence  tending  to  show  them  to  be  unworthy  of 
belief."  "  Whether  it  be  competent  for  a  party  to  prove  tliat  a 
witness  whom  he  has  called  and  whose  testimony  is  unfavorable 
to  his  cause  had  previously  stated  the  facts  in  a  different  man- 
ner, is  a  question  upon  which  there  exists  some  diversity  of 
opinion.  .  .  .  But  the  weight  of  authority  seems  in  favor  of 
admitting  the  party  to  show  that  the  evidence  has  taken  him  by 
surprise  and  is  contrary  to  the  examination  of  the  witness  pre- 
paratory  to  the  tiial  or  to  what  the  party  had  reason  to  believe 


Digitized  by  VjOOQ IC 


198  GRAY  V.  HARTMAN. 

Opinion  of  the  Court.  [6  Pa.  Superior  Ct. 

he  would  testify,  or  that  the  witness  has  recently  been  brought 
under  the  influence  of  the  other  party  and  has  deceived  the 
party  calling  him." 

The  allegation  in  this  case  is  that  the  testimony  of  the  wit- 
ness was  not  only  contrary  to  his  examination  preparatoiy  to 
the  trial  but  that  he  had  been  brought  under  the  influence  of 
the  opposite  party. 

The  authorities  in  Pennsylvania  very  clearly  sustain  the  right 
of  the  party  calling  a  witness  under  such  circumstances  to  cross- 
examine  him,  for  the  purpose  of  showing  that  he  had  made 
statements  dififerent  from  those  to  which  he  testifies  on  the  stand 
on  a  previous  occasion,  not,  it  is  true,  for  the  purpose  of  making 
his  previous  statements  substantive  evidence  of  the  facts  there- 
in stated,  but  in  order  to  neutralize  the  evidence  given  by  the 
witness. 

This  rule  is  clearly  recognized  in  McNemey  v.  Reading,  150 
Pa.  611,  in  which  Mr.  Justice  McCollum,  delivering  the  opin- 
ion of  the  court,  sajrs :  "  It  is  apparent  that  Boyer  was  an  un- 
willing witness  and  that  his  evidence  was  a  surprise  to  the 
appellee  who  called  him  to  the  stand.  It  was  proper,  therefore, 
for  the  learned  trial  judge,  in  the  exercise  of  the  sound  discre- 
tion which  the  law  allows  him  in  such  cases,  to  permit  a  cross- 
examination  of  the  witness  by  the  party  calling  him,  to  show 
that  his  previous  statements  and  conduct  were  at  variance  with 
his  testimony.'* 

The  present  Chief  Justice,  in  Fisher  v.  Hart,  149  Pa.  232, 
distinctly  recognizes  the  rule  and  the  exceptions  thereto  which 
he  says  "were  fully  considered  by  Mr.  Justice  Thompson  in 
Stearns  v.  Merchants*  Bank,  63  Pa.  490,"  in  which  latter  case 
the  authorities  upon  the  subject  are  very  fully  commented  upon, 
and  the  reasons  for  the  exceptions  to  the  general  rule  fairly  and 
as  we  believe  soundly  laid  down. 

The  facts  of  the  present  case  warranted  the  court  below,  in 
the  exercise  of  the  sound  discretion  which  the  law  allows  in 
such  cases,  in  permitting  the  cross-examination  of  the  witness 
Bachman  by  the  party  calling  him,  and  also  in  showing  that  his 
previous  Statements  were  at  variance  with  his  testimony. 

This  is  not  the  case  of  Fisher  v.  Hart,  supra,  where  the  wit- 
ness testified  to  nothing  prejudicial  to  the  plaintiff,  and  where  it 
did  not  appear  that  he  manifested  any  bias.    His  answers  were 


Digitized  by  VjOOQ  IC 


GRAY  V.  HARTMAN.  199 

1897.]  Opinion  of  the  Court. 

"  I  don't  remember."  In  this  case,  the  witness  Bachman  was 
important.  His  testimony  was  directly  contradictory  to  that  of 
the  plain tifif ;  and,  if  the  plaintifif's  witnesses  were  to  be  believed, 
the  very  opposite  of  what  he  had  stated  in  the  preliminary  ex- 
amination, when  the  case  was  being  prepared  for  trial.  The 
parts  of  his  testimony  to  which  exception  was  taken  and  which 
constitute  the  first  three  assignments  of  error,  are  not  fairly  rep- 
resentative of  its  vital  character  and  its  far-reaching  influence 
in  determining  the  plaintiff's  case. 

The  seventeenth  assignment  relates  to  the  following  portion 
of  the  charge  of  the  trial  judge  in  the  court  below :  ''  There  is 
another  principle  of  law,  which  I  deem  it  my  duty  to  give  to 
you,  with  reference  to  the  weight  and  preponderance  of  the  tes- 
timony. It  is  your  duty,  gentlemen  of  the  jur3%  to  carefully 
scrutinize  and  dispassionately  weigh  the  evidence  of  all  the 
witnesses  in  the  case,  and  to  give  proper  credit  to  the  evidence 
of  each  and  all  of  the  witnesses  and,  if  possible,  to  i*econcile  all 
the  evidence  in  the  case  with  the  presumption  that  each  witness 
has  intended  to  speak  the  truth,  unless,  by  their  manner  of  tes- 
tifying on  the  witness  stand  or  inconsistent  statements  sworn 
to,  or  by  testimony  inconsistent  with  other  credible  witnesses  in 
the  case,  you  are  led  to  believe,  from  a  manifestation  of  influ- 
ence, bias  or  prejudice,  that  such  witness  or  witnesses  have  been 
inclined  to  cover,  distort  or  suppress  the  truth,  or  unless  they 
have  been  impeached.  It  is  your  duty  to  carefully  scrutinize 
the  testimony,  as  it  has  been  given  upon  the  stand,  in  order  to 
arrive  at  the  truth  of  the  matters  in  dispute  at  issue  between 
the  parties."  This  is  a  general  statement  proper  to  be  made  in 
every  case  where  there  is  conflicting  or  contradictory  oral  testi- 
mony. 

The  case  seems  to  have  been  carefully  and  fairly  tried  and 
we  see  no  reason  to  disturb  the  iudgment.  It  is,  therefore,  af- 
firmed. 


Digitized  by  VjOOQ IC 


200  COOPER  V.  EYRICH. 

Syllabus — AssigDment  of  Errors.      [6  Pa.  Superior  Ct. 


John  Cooper,  Jr.,  and  Abram  Gordon,  Administrators  of 
Isaac  W.  Graham,  deceased,  v.  James  R.  Eyrich  and 
Calvin  R.  Eyrich,  trading  as  James  R.  Eyrich  & 
Brother,  Appellants. 

Contrcust  of  decedent— Mispayment  to  widow — Set-off— Quasi  adminiatra- 
tion. 

An  executory  contract  was  made  by  decedent  to  deliver  pork  to  defend- 
ants. After  his  death,  pork,  belonging  to  the  estate,  was  delivered  by  tlie 
widow  and  payment  made  to  her  and  not  to  the  administrator.  Held,  in 
a  suit  by  the  administrator  to  recover  the  price  of  the  pork,  that  a  vei-dict 
for  the  plaintiff  would  have  been  properly  directed  had  allowance  been 
made  for  a  set-off  of  so  much  of  the  money  received  by  the  widow  as  was 
applied  in  quasi  administration  by  her  for  the  payment  of  debts  due  by  the 
decedent,  and  which  payments,  if  properly  made,  were  in  relief  of  the  es- 
tate. 

Argued  Nov.  18, 1897.  Appeal  No.  130,  Oct.  T.,  1897,  by 
defendants,  from  judgment  of  C.  P.  Chester  Co.,  April  T., 
1896,  No.  42,  on  verdict  for  plaintifif.  Before  Rice,  P.  J., 
WiCKHAM,  Beavee,  Orlady,  Smith  and  Pobtbb,  J  J.  Re- 
versed. 

Assumpsit  for  goods  sold  and  delivered.  Before  Wad- 
dell,  P.  J. 

Graham,  the  decedent,  made  a  contract  for  the  sale  of  pork, 
which  was  executed  by  the  widow  and  payment  made  to  her 
and  not  to  the  administrators,  the  plaintiffs  in  this  suit. 

The  widow  subsequently  claimed  and  was  allowed  her  ex- 
emption, and  the  auditor  surcharged  the  administrators  with  the 
price  of  the  pork  received  by  the  widow  and  not  accounted  for 
by  her  to  the  administrators. 

There  was  evidence  tending  to  show  that  the  widow  had  ex- 
pended a  portion  of  the  money  received  by  her  for  the  pork  in 
liquidation  of  certain  debts  of  the  decedent.  The  court  directed 
a  verdict  for  the  plaintiffs. 

Verdict  and  judgment  for  plaintiffs  for  $170.23.  Defend- 
ants appealed. 

Errors  assigned  among  others  were,  (1)  to  the  action  of  the 
court  in  directing  a  verdict  for  the  plaintiffs.     (6)  Refusal  of 


Digitized  by  VjOOQ IC 


COOPER  V.  EYRICH.  201 

1897.]  Assignment  of  Errors — Opinion  of  tho  Court. 

defendants'  seventh  point,  which  point  was  as  follows :  "  If  from 
the  money  received  from  Eyrich  &  Brother,  the  widow  of 
Isaac  W.  Graham,  paid  the  funeral  expenses  or  any  other  debts 
properly  due  by  the  administrators,  thereby  relieving  the  estate 
from  such  payments,  the  defendants  should  have  credit  for  that 
amount  in  this  action,  and  be  relieved  to  that  extent  from  the 
claim  of  the  plaintiffs.*' 

H.  H.  Gilkyson^  for  appellants. 

J.  Frank  E.  ffattse^  for  appellees. 

Opinion  by  Beaver,  J.,  December  13, 1897: 

Graham,  the  decedent,  made  a  verbal  contract  with  the  defend- 
ants for  the  sale  of  pork,  to  be  delivered  at  sundry  times.  One 
delivery  was  made  during  his  lifetime,  for  which  a  check  was 
given,  payable  to  his  order.  After  his  death,  of  which  the  de- 
fendants had  knowledge,  the  check  so  given  was  surrendered 
and,  in  its  stead,  another  check,  payable  to  the  order  of  the  per- 
son returning  it,  was  given.  Subsequent  deliveries  of  pork  were 
made  by  sundry  persons  and  paid  for  at  the  time  by  checks 
made  payable  to  the  order  of  the  persons  delivering  it.  Three 
deliveries,  aggregating  in  value  $170.23,  were  made,  the  checks 
for  which,  as  appears  in  the  testimony,  were  all  paid  and  the 
money  received  thereon  delivered  to  the  widow  of  the  decedent 
who  was  in  possession  of  his  personal  property  from  the  time  of 
lus  death  until  letters  of  administration  were  issued,  subse- 
quently to  the  delivery  of  the  pork.  The  money  so  received  by 
the  widow  was  used,  in  part  at  least,  in  the  payment  of  the 
funeral  expenses  of  the  decedent,  which,  as  appears  by  the  tes- 
timony of  one  of  the  administrators,  exceeded  $100. 

Upon  this  state  of  facts,  the  court  below  directed  the  jury  to 
find  a  verdict  for  the  plaintiffs,  the  administrators  of  the  deced- 
ent, for  the  amount  of  their  claim,  $170.23,  adding:  "  This  may 
be  wrong.  It  depends  altogether  upon  the  law  involved  in  the 
case.  My  impression  of  the  law,  as  it  now  exists,  is  in  favor 
of  the  plaintiffs ;  but,  upon  a  review  of  the  matters,  we  may  be- 
come convinced  that  it  is  a  mistake  and,  if  so,  we  can  correct 
this  error,  without  a  great  deal  of  trouble." 

The  contract  between  the  decedent  and  the  defendants  is  a 
purely  personal  one  which  was  dissolved  by  the  death  of  the  de- 


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202  COOPER  v.  EYRICH. 

Opinion  uf  tho  Court.  [6  Pa.  Superior  Ci. 

cedent  and  did  not  bind  his  legal  representatives.  The  change 
of  the  check,  therefore,  given  the  decedent  in  his  lifetime  and 
the  payment  for  subsequent  deliveries  to  the  parties  delivering 
the  pork  were  made  by  the  defendants  at  their  peril,  and  if  there 
were  nothing  else  in  the  case,  would  justify  the  direction  of  the 
court  to  find  a  verdict  for  the  plaintiffs :  Dickinson  v.  Cala- 
lian's  Admrs.,  19  Pa.  227 ;  White's  Exrs.  v.  Comth.,  39  Pa.  167. 

Letters  of  administration  were  issued  subsequently  to  the  de- 
livery of  the  pork  and,  upon  the  filing  of  their  account,  the  ad- 
ministrators were  surcharged  with  the  amount  of  the  value 
thereof,  as  claimed  in  the  present  suit ;  and,  in  order  to  make 
themselves  whole,  they  instituted  this  suit,  so  as  to  recover  from 
the  defendants  the  value  of  the  pork  already  paid  for  by  them, 
on  the  ground  that  the  payment  had  been  wrongfully  made,  or 
at  least  not  rightly  made,  and  that  they  are,  therefore,  liable  to 
pay  the  amount  a  second  time  to  the  present  plaintiffs. 

It  does  not  clearly  appear  that  either  of  the  administrators 
had  knowledge,  at  the  time,  of  the  delivery  of  the  pork  by  the 
widow  to  the  defendants  and  the  payment  of  the  same  by  them 
to  her,  through  the  parties  who  delivered  it.  It  would  seem, 
therefore,  that  the  question  of  neglect  on  their  part,  either  to 
compel  the  widow  to  account  for  the  money  so  received  or  to 
charge  her  with  it  at  the  time,  when  she  claimed  the  benefit  of 
the  act  of  1851,  has  little  significance.  The  plaintiffs  were  cer- 
tainly not  guilty  of  laches  in  delaying  their  suit  against  the  de- 
fendants until  after  the  hearing  before  the  auditor  to  whom 
their  account  was  referred,  and  the  surcharge  by  him  against 
them  of  the  value  of  the  pork  deliverd  to  the  defendants. 

We  are  of  the  opinion,  however,  that  the  defendants'  seventh 
point,  namely :  "  If,  from  the  money  received  from  Eyrich  & 
Brother,  the  widow  of  Isaac  W.  Graham  paid  the  funeral  ex- 
penses or  any  other  debts  properly  due  by  the  administi^ators, 
thereby  relieving  the  estate  from  such  payments,  the  defend- 
ants should  have  credit  for  that  amount  in  this  action  and  be 
relieved  to  that  extent  from  the  claim  of  the  plaintiffs,"  should 
have  been  aflSrmed,  with  the  possible  qualification  "  if  the  estate 
were  solvent  or  if  there  were  assets  of  the  estate  to  pay  the  pre- 
ferred debts  which  were  paid  by  the  widow." 

The  widow  was  in  possession  of  the  personal  property  of  the 
decedent  between  the  time  of  his  death  and  the  granting  of  let-, 
ters  of  administration.    As  to  the  disposition  of  the  pork  sold 


Digitized  by  VjOOQ IC 


COOPER  V.  EYRICH.  203 

1«97.]  Opinion  of  the  Court. 

to  the  defendants  she  was  undoubtedly  acting  as  an  administra- 
trix de  son  tort  and,  inasmuch  as  the  estate  received  the  benefit 
of  at  least  a  poi'tion  of  the  money  paid  by  the  defendants,  they 
should  be  relieved  from  the  repayment,  at  least  to  that  extent. 

From  the  dicta  contained  in  Roumfort  v.  McAlamey,  82  Pa. 
193,  and  Gilfillen's  Appeal,  170  Pa.  185,  as  well  as  from  reason 
and  the  general  principles  of  equity,  the  rule,  that  executors 
de  son  tort  are  entitled  to  have  credit  for  valid  debts  of  the 
decedent  actually  paid  by  them  out  of  assets  upon  which  they 
have  intruded,  would  seem  to  be  plainly  deducible ;  and,  if  this 
be  so,  it  follows  inevitably  that  those  whose  money  afforded  the 
relief  which  the  decedent's  estate  secured  by  such  payment 
should  have  the  benefit  thereof ;  for,  as  was  said  by  Mr.  Justice 
Gordon  in  82  Pa.  193,  supra,  "Under  such  circumstances, 
the  property  would  have  passed  into  a  quasi  administration  which 
it  would  be  inequitable  to  disturb.*' 

There  is  no  injustice  to  the  administrators  in  this,  for,  if 
they  had  shown  before  the  auditor  that  the  money  paid  by  the 
defendants  and  received  by  the  widow  had  been  actually  used 
by  her  in  relief  of  the  decedent's  estate,  it  is  safe  to  say  that 
they  would  not  have  been  surcharged  with  the  amount.  On 
the  other  hand,  the  injustice  to  the  defendants,  if  there  be  a 
balance  in  the  hands  of  the  administrators  for  distribution,  is 
plainly  apparent,  when  it  is  considered  that  of  that  balance  the 
widow  would  receive  the  one  third  of  the  amount  which  she 
had  already  wrongfully  received  from  the  defendants,  although 
in  a  sense  rightly  appropriated  to  the  payment  of  debts  of  the 
decedent 

The  amount  of  the  debts  of  the  decedent  paid  by  the  widow 
does  not  clearly  appear,  nor  does  it  affirmatively  appear  by  the 
record  that  the  estate  was  solvent  or  that  there  were  sufficient 
assets  to  pay  even  the  preferred  debts.  If  the  estate  were  sol- 
vent and  it  affirmatively  appeared  that  the  whole  of  the  amount 
paid  by  the  defendants  to  the  widow  had  been  expended  in  the 
payment  of  the  debts  of  the  decedent,  it  would  not  be  neces- 
sary to  retry  this  case ;  but,  inasmuch  as  we  are  not  definitely 
informed  in  regard  to  these  questions,  we  must  send  the  case 
back  for  a  retrial.  The  assignments  of  error  are  numerous. 
We  have  not  discussed  them  specifically  or  in  detail,  but  what 
we  have  said  disposes  of  the  case  as  fully  as  seems  necessary. 

Judgment  reversed  and  a  new  venire  awarded. 


Digitized  by  VjOOQ IC 


204  SAFE  DEPOSrr  CO.  v.  RAILWAY  CO. 

Syllabus— Statement  of  Facts.     [6  Pa.  Superior  Ct. 


North  Broad  Safe  Deposit  and  Storage  Co.  v.  The  Ches- 
ter^ Darby  and  Philadelphia  Railway  Co.  et  al., 
Appellants. 

Street  raUways — Negligence—**  Stop,  look  and  listen^^— Question  for  Jury. 

In  an  action  for  damages  resulting  from  an  accident  at  a  railway  cross- 
ing, the  case  is  for  the  jury  where  the  evidence  submitted  by  the  parties  is 
contradictory  in  most  important  particulars. 

Plaintiff's  evidence  tended  to  show  tliat  he  stopped,  looked  and  listened 
and  could  see  no  car  approaching,  and  that  his  horses  were  struck  by  a  car 
approaching  over  an  undulating  ti^ack  at  the  i*ate  of  thiily-five  miles  an 
liour.  Defendant's  testimony  tended  to  show  that  the  wagon  was  visible 
for  a  long  distance  from  the  car,  and  was  going  in  the  same  direction  and 
turned  suddenly  to  cross  the  tracks  without  any  effective  attempt  to  **  stop, 
look  and  listen,"  which  must  have  disclosed  the  approaching  car  clearly 
visible  from  the  crossing ;  that  the  motorman  had  the  current  off  and  brake 
on  and  had  sounded  his  bell.  Held,  that  for  the  court  to  determine  which 
of  these  statements  is  true,  would  be  an  usurpation  of  the  power  lodged  in 
thejuiy. 

Argued  November  16, 1897-  Appeal,  No.  33,  Oct.  T.,  1897, 
by  defendants,  from  judgment  of  C.  P.  Delaware  Co.,  June  T., 
1896,  No.  30,  on  verdict  for  plaintiff.  Before  Rice,  P.  J.,  Wick- 
ham,  Beaveb,  Oelady,  Smith  and  Poetee,  J  J.    Affirmed. 

Trespass  for  damages  resulting  from  a  collision.  Before 
Clayton,  P.  J. 

It  appears  from  the  evidence  that  defendants  own  and  oper- 
ate an  electric  trolley  railway  on  the  Darby  and  Chester  Turn- 
pike Road  running  in  an  eastwardly  and  westwardly  direction. 
The  road  is  about  fifty  feet  in  width.  The  telford  construction 
occupies  about  eighteen  feet  in  the  middle  of  the  road.  The 
defendants'  railway  is  constructed  on  the  north  side  of  the  road 
between  the  telford  construction  and  the  north  limit  line  of  the 
road.  The  place  where  the  accident  occurred  is  in  the  borough 
of  Glenolden  where  Ashland  avenue  crosses  the  turnpike  road  at 
right  angles. 

On  the  morning  of  July  4,  1895,  a  wagon  with  four  horses 
belonging  to  the  plaintiff  and  in  charge  of  their  driver,  was  pro- 
ceeding westwardly  on  the  turnpike  road,  approaching  the  Ash- 


Digitized  by  VjOOQ  IC 


SAFE  DEPOSIT  CO.  r.  RAILWAY  CO.  205 

1897.]  Statement  of  Facts — Assignment  of  EiTor. 

land  avenue  crossing  conveying  a  party  of  about  twenty  young 
people  on  a  picnic  excursion.  The  driver  knowing  that  the  place 
of  destination  was  somewhere  on  Ashland  avenue,  either  stopped 
or  slowed  up  a  short  distance  before  reaching  Ashland  avenue 
and  inquired  whether  he  should  turn  to  the  right  or  the  left. 
The  conductor  of  the  party  directed  him  to  turn  to  the  right.  Ac- 
cording to  his  statement,  in  order  to  make  a  long  turn,  he  started 
pulling  the  horses  first  to  the  left  to  get  the  wagon  on  the  left 
liand  side  of  the  road,  and  then  turned  to  the  right  to  go  along 
Ashland  avenue.  When  the  lead  horses  had  gotten  upon  the 
track  and  the  pole  horses  had  their  front  feet  about  on  the 
south  i-ail,  the  defendant's  trolley  car  came  along  going  west- 
wardly  and  struck  the  lead  horses,  injuring  them.  The  evidence 
was  conflicting. 

PlaintiflF  introduced  evidence  tending  to  show  that  the  driver 
before  attempting  to  make  the  turn,  stopped,  looked  up  and 
down  the  track,  listened  for  approaching  cars  and  saw  none ; 
that  the  car  was  running  at  a  dangerous  and  unusual  rate  of 
speed,  some  of  the  witnesses  testifying  that  it  was  running  from 
forty  to  sixty  miles  an  hour ;  that  immediately  after  the  acci- 
dent the  motorman  admitted  that  he  had  not  rung  the  bell  and 
that  his  car  was  not  under  control. 

Defendants  introduced  testimony  tending  to  show  that  the 
car  had  only  left  a  switch  at  a  distance  of  thirteen  hundred  feet 
from  the  place  of  the  accident  and  that  it  was  a  physical  impos- 
sibility for  the  car  to  attain  a  speed  of  more  than  twelve  miles 
an  hour  in  that  distance  from  the  starting  point;  that  the 
wagon  was  visible  from  the  track  for  some  distance ;  that  the 
motorman  had  his  brakes  on  and  had  been  sounding  his  gong ; 
that  the  wagon  made  the  turn  into  the  track  without  stopping. 

The  court  left  the  question  of  defendants'  negligence  and 
plaintifPs  contributory  negligence  to  the  jury,  with  proper  in- 
structions as  to  the  law  and  with  fair  and  impartial  comments 
on  the  evidence. 

Verdict  and  judgment  for  plaintiff  for  $800.  Defendiints 
appealed. 

Error  assigned  was  refusal  to  affirm  plaintiffs  first  point  as 
follows :  "  Under  all  the  evidence  in  the  case  the  verdict  of  the 
jury  should  be  in  favor  of  the  defendants." 


Digitized  by  VjOOQ IC 


206  SAFE  DEPOSIT  CO.  v.  RAILWAY  CO. 

Arguments — Opinion  of  the  Coui-t.  [6  Pa.  Superior  Ct. 

TT.  B.  Broomall^  for  appellants. — It  is  the  legal  duty  of  the 
person  about  to  cross  the  tracks  of  a  street  railway,  when  he 
reaches  it,  to  look  in  both  directions  for  an  approaching  car. 
This  duty  is  as  peremptory  as  the  rule  with  reference  to  steam 
railroads  to  **stop,  look  and  listen."  His  neglect  to  look  at 
that  point  and  listen  is  negligence  per  se :  Ehiisman  v.  Railway 
Co.,  150  Pa.  180;  Myers  v.  R.  R.,  150  Pa.  386;  Omslaer  v. 
Traction  Co.,  168  Pa.  519;  Davidson  v.  Railroad  Co.,  171  Pa. 
522 ;  Seamans  v.  Railroad  Co.,  174  Pa.  421 ;  Sullivan  v.  RaU- 
road  Co.,  175  Pa.  361 ;  Hartman  v.  Railroad  Co.,  182  Pa.  172. 

The  foregoing  is  a  fair  epitome  of  the  plaintiff's  evidence  re- 
lating to  the  accident.  A  fair  construction  of  it  is  that  if  the 
wagon  was  stopped  at  all  it  was  at  such  a  distance  short  of 
Ashland  avenue,  that  if  the  driver  looked  in  the  direction  of 
the  approaching  car  tlie  car  at  that  time  was  not  in  sight.  Then 
having  made  a  long  turn  first  to  the  left  and  then  to  the  right 
this  involved  such  a  length  of  time  as  that  it  was  his  duty  to 
look  again  before  crossing.  If  he  had  done  so  the  plaintiff's 
case  shows  plainly  that  the  car  was  then  in  sight.  Under  these 
circumstances  we  maintain  that  the  plaintiff  is  convicted  by 
its  own  showing  of  contributory  negligence. 

The  road  being  level  for  a  distance  of  four  hundred  feet  be- 
fore reaching  Ashland  avenue  it  is  obvious  that  the  description 
of  the  accident  given  by  the  defendant's  witnesses  is  the  correct 
one,  to  wit:  that  the  driver  of  the  wagon  when  he  came  to  Ash- 
land avenue  suddenly  pulled  his  horses  in  front  of  the  approach- 
ing car,  and  that  no  prior  indication  was  given  of  his  intention 
to  turn  into  Ashland  avenue. 

Our  cases  uniformly  hold  that  it  is  idle  for  a  man  to  say  that 
he  did  not  see  an  approaching  train,  when  if  he  had  looked  it 
would  be  impossible  for  him  to  avoid  seeing  it. 

Joseph  W.  Kenworthy^  with  him  Joseph  H.  Hinkson^  for  ap- 
pellee. 

Opinion  by  Porter,  J.,  December  13, 1897 : 

The  only  error  complained  of  in  this  case  is  the  refusal  of  the 

court  below  to  affirm  the  defendants'  point  that  "  under  all  the 

evidence  in  the  case  the  verdict  of  the  jury  should  be  in  favor 

of  the  defendants."    We  have  g^ven  the  testimony  in  the  case 


Digitized  by  VjOOQ IC 


SAFE  DEPOSIT  CO.  v.  RAILWAY  CO.  207 

1897.]  Opinion  of  the  Court. 

the  examination  which  this  assignment  requires,  and  find  that 
the  court  below  committed  no  error  in  refusing  the  request  of 
the  defendants. 

On  the  morning  of  July  4, 1895,  a  wagon  with  four  horses, 
belonging  to  the  plaintiff,  and  in  charge  of  a  careful  driver, 
was  proceeding  westwardly  on  the  Darby  &  Chester  Turnpike 
through  the  borough  of  Glenolden,  in  Delaware  county.  In 
the  wagon  were  a  party  of  about  twenty  young  people,  on  a 
picnic  excursion.  Their  destination  was  a  grove  north  of  the 
turnpike  on  Ashland  avenue  in  the  said  borough.  The  driver, 
knowing  that  the  place  of  destination  was  somewhere  on  Ash- 
land avenue,  stopped  before  reaching  the  avenue  and  inquired 
of  the  conductor  of  the  party  whether  he  should  turn  to  the 
right  or  to  the  left.  He  was  directed  to  turn  to  the  right,  which 
required  him  to  cross  the  tracks  of  the  defendant  company. 
According  to  the  testimony  for  the  plaintiff,  in  order  to  make 
a  wide  turn,  he  pulled  his  horses  first  to  the  left  and  then  to 
the  right  across  the  tracks,  to  proceed  along  Ashland  avenue. 
When  the  lead  horses  had  gotten  upon  the  track  and  the  pole 
horses  had  their  front  feet  about  on  the  south  rail,  the  defend- 
ants' trolley-car  struck  the  lead  horses,  doing  them  serious  in- 
jury. For  these  injuries  and  some  damage  to  the  harness  and 
wagon,  the  suit  was  brought. 

It  was  testified  by  the  plaintiff's  witnesses,  including  the 
driver  and  a  number  of  the  occupants  of  the  wagon,  that  before 
attempting  to  cross  the  tracks  of  the  defendants,  the  wagon 
was  stopped,  and  that  the  driver  looked  to  the  right  and  to  the 
left  more  than  once,  and  listened  for  the  approach  of  a  car; 
that  several  of  the  occupants  of  the  wagon  also  looked  and  lis- 
tened, and  that  none  of  them  saw  or  heard  a  car  approaching. 
The  stop  was  made  within  a  short  distance  of  the  place  of  cross- 
ing, where  the  occupants  of  the  wagon  had  an  unobstructed 
view.  The  roadway  upon  which  the  car  approached  was  an 
undulating  descending  grade.  The  car  was  proven  to  be  in- 
visible at  something  over  1,300  feet,  some  of  tibe  plaintiff's  wit- 
nesses saying  at  about  650  feet.  The  course  of  the  wagon  had 
been  in  the  same  direction  as  that  of  the  car  until  the  attempt 
to  turn  into  Ashland  avenue  was  made. 

It  was  testified  by  a  number  of  witnesses  for  the  plaintiff 
that  the  car  approached  at  a  rate  of  from  thirty-five  to  forty-five 


Digitized  by  VjOOQ IC 


208  SAFE  DEPOSIT  CX).  v.  RAILWAY  CO. 

Opinion  of  tlie  Court.  [6  Pa.  Superior  Ct. 

miles  an  hour  on  the  down  grade ;  that  no  bell  was  rung  and 
that  the  motornian  admitted  at  the  time  of  the  accident  that  he 
had  not  rung  the  bell  and  that  he  had  lost  control  of  the  car. 

On  behalf  of  the  defendants  it  was  testified  that  the  wagon 
was  in  sight  of  the  occupants  of  the  car  an  appreciable  time 
before  the  attempt  to  cross  the  tracks  was  made ;  that  the  motor- 
man  had  the  current  off  and  the  brake  on,  and  had  sounded 
his  bell  as  a  warning.  The  motorman  denied  the  alleged  admis- 
sions that  he  had  failed  to  ring  his  bell  and  had  lost  control  of 
the  car. 

No  attempt  is  made  by  the  defendants  to  argue  in  this  court 
that  negligence  on  their  part  was  not  sufficiently  proven  to  sup- 
port the  verdict.  Their  argument  is  directed  to. a  contention 
that  such  contributory  negligence  was  showTi  on  the  part  of  the 
plaintiff  that  there  should  have  been  no  recovery.  To  this  we 
cannot  assent.  It  was,  in  our  opinion,  a  case  that  must  inev- 
itably have  gone  to  a  jury  on  the  evidence  submitted.  Under 
the  testimony  on  behalf  of  the  plaintiff,  the  rule  to  look  and 
listen  and  if  necessary  stop  at  a  point  from  which  proper  obser- 
vation might  be  had,  was  complied  with.  Apart  from  this  rule 
the  degree  of  care  to  be  exercised  must  vary  in  every  case  with 
the  circumstances,  and  no  unbending  rule  in  this  i-egard  can  be 
laid  down.  It  was  for  the  jury  to  say  not  only  whether  the 
facts  were  as  alleged  by  the  plaintiff's  witnesses,  but  also  whether 
under  the  circumstances  the  plaintiff's  driver  failed  to  exercise 
the  care  that  would  be  expected  of  an  ordinarily  prudent  man : 
Davidson  v.  Traction  Co.,  4  Pa.  Superior  Ct.  86. 

The  language  of  Mr.  Justice  Mitchell  in  Ely  v.  Railway, 
158  Pa.  236,  may  be  adopted  as  applicable  to  the  present  case  : 

"  The  evidence  in  the  present  case  shows  that  the  plaintiff 
stopped,  looked  and  listened  before  driving  on  the  ti-ack.  He 
was,  therefore,  not  proceeding  recklessly  but  with  some  degree 
of  attention  to  the  situation  and  his  duty  in  regard  to  it.  The 
mere  act  of  stopping  does  not,  it  is  true,  of  itself  show  that  he 
stopped  at  a  proper  place,  or  that  there  was  not  another  and 
better  place  where  he  should  have  stopped  again,  or  that  his 
duty  of  looking  and  listening  was  performed  with  the  proper 
care  and  attention ;  but  stopping  is  opposed  to  the  idea  of  neg- 
ligence, and  unless  notwithstanding  the  stop,  the  whole  evi- 
dence shows  negligence  so  clearly  that  no  other  inference  can 


Digitized  by  VjOOQ IC 


SAFE  DEPOSrr  CO.  V.  RAILWAY  CO.  209 

1897.]  Opinion  of  the  Court. 

properly  be  drawn  from  it,  the  court  cannot  draw  that  inference 
as  a  conclusion  of  law,  but  must  send  the  case  to  the  jury.  .  .  . 
But  in  cases  like  the  present,  the  plaintiff  is  not  required  to  dis- 
prove contributory  negligence,  but  only  to  make  out  a  case  clear 
of  it  Unless,  therefore,  his  negligence  appears  affirmatively, 
he  is  entitled  to  go  to  the  jury  on  the  general  presumption 
against  it,  and  so,  likewise,  where  the  evidence  is  conflicting  as 
it  was  here."  It  is  true  that  the  case  from  which  the  quotation 
is  taken  was  a  grade  crossing  of  a  steam  road,  but  the  proposi* 
tions  stated  have  clear  and  direct  application  to  the  case  in 
hand. 

The  evidence  submitted  by  the  parties  is  contradictory  in 
most  important  particulars.  The  plaintiffs  witnesses  say  that 
they  looked  and  could  not  see  the  car  approaching.  The  de- 
fendant's witnesses  upon  the  car  say  that  they  saw  the  wagon 
as  they  were  approaching,  for  some  distance.  For  the  court  to 
determine  which  of  these  statements  is  true,  would  be  an  usur- 
pation of  the  power  lodged  in  the  jury.  We  have  no  doubt  that 
the  refusal  of  the  point  was  a  correct  ruling  and  therefore,  the 
judgment  of  the  court  below  is  affirmed. 


Lancaster  Trust  Co/s  use  v.  John  E.  Gouchenauer,  Ap- 
pellant. 

Execution^Debior's  exemption — Laches, 

The  claim  for  the  debtor^s  exemption  must  not  be  unnecessarily  delayed 
until  costs  have  been  incurred  which  otherwise  readily  might  have  been* 
avoided.   Moore  v.  McMon'ow,  6  Pa.  Superior  Ct.  659,  followed. 

A  claim  on  the  proceeds  of  land  sold  under  a  vend,  ex.,  made  after  the 
sheriffs  sale,  is  too  late  when  the  land  had  been  levied  on  and  coDdemne<ii 
under  the  fi.  fa.  the  year  previous  and  when  the  sale  took  place  two  yea4*s- 
after  an  assignment  for  the  benefit  of  creditors,  the  assignor  in  the  mean>- 
time  having  taken  no  steps  to  have  his  exemption  set  aside  out  of  the  reab 
estate  by  the  assignee. 

Argued  Nov.  10,  1897.  Appeal,  No.  17,  Oct.  T.^  1807,  by 
defendant,  from  decree  of  C.  P.  Lancaster  Co.,  May  T.,  1895^ 
No.  11,  refusing  exemption  in  execution  on  judgment.  Before 
Rice,  P.  J.,  Wickham,  Beaver,  Rbedbb,  Oblady,  Smith 
and  PoBTEE,  JJ.  Affirmed. 
Vol.  VI— 14 


Digitized  by  VjOOQ IC 


210       LANCASTER  TRUST  CO.  v.  GOUCHENAUER. 

Statement  of  Facts — Opinion  of  the  Court.    [6  Pa.  Supeiior  Ct. 

Rule  to  show  cause  why  the  sheriff  should  not  pay  to  John  E. 
Gouchenauer  $300,  which  he  claimed  to  be  due  him  under  the 
exemption  act  of  April  9, 1849.    Before  Bbubakbb,  J. 

It  appears  from  the  record  that  John  £.  Gouchenauer  made 
an  assignment  for  the  benefit  of  creditors.  At  the  time  the  as- 
signee made  his  appraisement,  Gouchenauer  said  to  him  that 
he  wanted  none  of  the  personal  property  and  he  then  made  no 
claim  to  have  any  real  estate  appraised  to  him  under  the  deed 
of  assignment,  but  he  subsequently  said  to  the  assignee  that  he 
wanted  $300  out  of  the  real  estate. 

The  appraisement  of  the  assignor's  property  amounted  to 
$779.25  of  which  $537.50  was  real  estate,  and  $241.75  personal 
property.  The  assignee  made  public  sale  of  the  personal  prop- 
erty, and  sold  the  same  for  $207.67,  of  which  amount  John  E. 
Gouchenauer  became  purchaser  to  the  amount  of  $68.60,  with 
the  understanding  that  when  the  assignor  received  his  $300  ex- 
emption he  would  pay  the  assignee  for  the  goods  purchased  by 
him,  the  assignor,  at  the  public  sale.  No  other  or  further  claim 
was  ever  made  by  the  assignor  from  the  assignee.  The  real  es- 
tate was  subsequently  sold  by  plaintiff  under  a  judgment  ante- 
dating the  assignment,  and  the  proceeds  amounted  to  about 
$278.  After  the  vend.  ex.  had  issued,  and  some  two  years  from 
the  time  of  the  assignment,  the  defendant  claimed  from  the 
sheriff  the  $300  debtor's  exemption. 

The  court  discharged  the  rule.     Defendant  appealed. 

Error  aBBigned  was  discharging  rule* 

Charles  L  Landis^  for  appellant. 

TT.  U.  Rensel,  with  him  J,  Hay  Brown^  for  appellee. — It  has 
been  expressly  decided  that,  where  an  assignor  who  reserves 
the  $300  worth  of  property  does  not  promptly  make  his  election 
and  have  his  appraisement,  he  loses  the  benefit  of  it :  Weaver's 
Appeal,  18  Pa.  307;  Bowyer's  Appeal,  21  Pa.  210;  Neff's  Ap- 
peal, 21  Pa.  243 ;  Davis'  Appeal,  34  Pa.  256 ;  Shaeffer's  Ap- 
peal, 101  Pa.  49. 

Per  Curiam,  December  13, 1897 : 

The  appellant's  oontention  is,  that  the  real  estate  having 
passed  out  of  the  hands  of  the  assignee  into  the  control  and 


Digitized  by  VjOOQ IC 


LANCASTER  TRUST  CO.  v,  GOUCHENAUER.       211 

1897.]  Opinion  of  the  CJourt. 

custody  of  the  sheriff,  and  the  sheriff  having  sold  it,  the  posi- 
tion of  the  parties  was  as  if  no  assignment  had  been  made,  and 
the  failure  of  the  defendant  to  claim  the  $300  exemption  at  the 
time  of  the  appraisement  of  the  assigned  estate  was  not  a  factor 
in  the  case.  It  seems  unnecessary  to  discuss  this  proposition ; 
for,  even  if  it  were  to  be  conceded,  the  defendant  would  be  left 
in  no  better  position.  The  fi.  fa.  issued  on  December  12, 1895, 
and  the  land  was  condemned.  It  was  not  until  after  the  vend, 
ex.  had  issued,  a  year  later,  that  the  claim  was  made.  These 
facts  bring  the  case  within  the  weU  settled  rule  that  the  claim 
must  not  be  unnecessarily  delayed  until  costs  have  been  in- 
curred which  otherwise  might  have  been  readily  avoided.  The 
case  cannot  be  distinguished  from  Moore  v.  McMorrow,  6  Pa. 
Superior  Ct.  659. 

Order  affirmed  and  appeal  dismissed  at  the  cost  of  the  appel- 
lant 


Commonwealth  ex  rel.  L.  A.  Hillegass,  Appellant,  v. 
Josiah  Huffman,  Jonas  Imler  and  Joseph  W.  Boor, 
Commissioners  of  Bedford  County. 

Taxatum^StaltUes — OenercU  and  local  laws  construed  and  sustained. 

The  local  law  of  April  13,  1868,  P.  L.  1017,  providing  for  the  collection 
of  taxes  in  the  county  of  Bedford  recognized  and  retained  by  the  Act  of 
June  24,  1885,  P.  L.  187,  is  not  repealed  by  the  Act  of  June  6, 1893,  P.  L. 
333,  entitled  **  An  act  to  authorize  the  election  of  tax  collectors  for  the 
term  of  three  years  in  the  several  boroughs  of  this  commonwealth." 

There  is  no  inconsistency  between  these  local  and  general  acts  which 
can  be  cnfoix^  at  the  same  time  without  in  any  material  way  interfering 
with  each  other. 

Argued  Nov.  8, 1897.  Appeal,  No.  41,  March  T.,  1898,  by 
plaintiff,  from  order  of  C.  P.  Bedford  Co.,  Sept.  T.,  1897,  No.  31, 
for  overruling  demurrer  to  the  return,  etc.,  in  an  application 
for  mandamus.  Before  Rice,  P.  J.,  Wickham,  Beaver, 
Reedbr,  Orlady,  Smith  and  Pobtbr,  JJ.    Afl&rmed. 

Mandamus  to  the  commissioners  of  Bedford  county  requiring 
them  to  deliver  to  plaintiff  for  purpose  of  collection  duplicates 
of  state  and  county  taxes  for  the  township  of  Juniata.    Before 

LOKGENECKEB,  P.  J. 


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212  COMMONWEALTH  v.  COMMISSIONERS. 

Opinion  of  Couit  below.        [6  Pa.  Superior  Ct. 

The  facts  sufficiently  appear  from  the  opinion  of  the  court 
below,  as  follows : 

L.  A.  HiUegass  was  elected  tax  collector  for  Juniata  town- 
ship at  the  February  election  1897,  and  on  the  19th  of  April 
presented  his  bond  to  the  court  when  the  same  was  approved. 
On  the  same  day  and  at  the  same  time  he  filed  his  petition 
reciting  the  above  facts  and  alleging  that  under  the  Acts  of 
June  25, 1885,  P.  L.  187,  and  June  6, 1893,  P.  L.  333,  he  was 
entitled  to  have  for  collection  the  duplicate  of  state  and  county 
taxes  levied  and  assessed  in  said  township  for  the  current  year; 
that  the  county  commissioners,  on  demand  made  upon  them  for 
said  duplicate,  had  refused  his  request,  stating  they  proposed 
to  deliver  it,  with  their  warrant  for  collection,  to  Charles  Reily 
the  county  treasurer.  He  therefore  asked  for  a  writ  of  manda- 
mus commanding  them  to  deliver  to  him  said  duplicate.  It 
was  thereupon  ordered  that  an  alternative  writ  issue. 

Charles  Reily,  the  county  treasurer,  after  alleging  his  inter- 
est in  the  subject-matter  in  controversy,  asked  leave  to  become 
a  defendant  and  to  frame  his  return  and  conduct  the  subsequent 
proceedings  at  his  own  expense,  upon  which  leave  was  granted 
him  accordingly.  He  afterwards  filed  his  return  as  did  also 
the  county  commissioners.  The  return  of  Reily  raised  no 
issue  of  fact  but  denied  the  plaintiff's  right  to  receive  the  dupli- 
cate on  the  ground  that  the  local  Act  of  Assembly  approved 
April  13, 1868,  P.  L.  1017,  entitled  "An  act  to  provide  for  the 
collection  of  state,  county,  poor  and  military  taxes  in  the  county 
of  Bedford,"  makes  it  the  duty  of  the  county  commissioners  in 
each  and  every  year,  immediately  after  the  assessment  of  taxes 
for  state,  county,  poor  and  military  purposes  have  been  com- 
pleted, to  cause  duplicates  to  be  made  and  to  deliver  the  same 
to  the  county  treasurer,  and  that  the  act  further  provides  for 
the  collection  of  the  same  by  him ;  that  said  act  of  1868  was 
not  altered,  amended  or  repealed  by  any  subsequent  law,  but  is 
still  in  force,  and  that  the  plaintiff  is  not  entitled  to  said  dupli- 
cate, but  that  he,  the  said  county  treasurer,  is  entitled  to  have 
and  collect  the  same.  The  return  of  the  commissioners  is  in 
substance  of  the  same  import  and  therefore  raises  the  same 
question  of  law.    To  these  returns  the  relator  demurred. 

The  single  question  presented  for  determination  is  the  effect 
of  the  act  of  June  6, 1893,  on  that  of  April  13, 1868.    Does  the 


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COMMONWEALTH  r.  COMMISSIONERS.  213 

1897.]  OpioioD  of  Court  below. 

act  of  1893  repeal  that  of  1868?  The  act  of  June  25, 1885, 
left  in  full  force  the  Bedford  county  system  for  collecting  the 
taxes  in  question:  Malloy  v.  Reinhard,  115  Pa.  30;  Evans  v. 
PhiUipi,  117  Pa.  226. 

The  act  of  1893  is  entitled  "  An  act  to  authorize  the  election 
of  tax  collectors  for  the  term  of  three  years  in  the  several  bor- 
oughs and  townships  of  this  commonwealth,"  and  provides 
"  that  the  qualified  voters  of  eyery  borough  and  township  in 
the  commonwealth  of  Pennsylvania  shall,  on  the  third  Tues- 
day of  February  after  the  passage  of  this  act  and  triennially 
thereafter,  vote  for  and  elect  one  properly  qualified  person  for 
tax  collector  in  each  of  said  districts,  who  shall  serve  for  the 
term  of  three  years,  and  shall  give  a  bond  annually  to  be  ap- 
proved by  the  court ; "  and  in  a  second  section  it  says  "  all  acts 
or  parts  of  acts  inconsistent  herewith  are  hereby  repealed." 

The  act  of  1886  had  already  provided  for  the  election  of  a 
collector  of  taxes  in  e.ach  borough  and  township  in  the  common- 
wealth, and  the  only  changes  made  by  the  act  of  1898  are  with 
reference  to  the  length  of  the  oflicial  term,  extending  it  from 
one  to  three  years,  and  the  giving  of  a  bond  annually,  as  in  the 
former  act,  "  to  be  approved  by  the  court,"  instead  of  "  by  the 
court  or  a  judge  thereof  in  vacation,"  as  by  the  act  of  1886. 

The  13th  section  of  the  act  of  1886,  after  declaring  so  much 
of  all  general  acts  as  was  inconsistent  with  it  repealed,  further 
provided,  "but  this  act  shall  not  apply  to  any  taxes,  the  col- 
lection of  which  is  regulated  by  a  local  law,"  thus  showing  ex- 
plicitly the  legislative  intent  of  preserving  in  force  local  statutes 
like  that  of  1868  prescribing  a  method  for  the  collection  of  cer- 
tain taxes,  as  above  stated,  though  the  same  result  would  no 
doubt  have  been  produced  had  no  such  clause  been  inserted. 

When  the  act  of  1893  was  passed,  its  second  section  repealed 
not  only  the  repugnant  provisions  of  the  act  of  1886,  but  all 
other  general  or  local  acts  inconsistent  with  the  act  of  1893. 
But  is  the  act  of  1868  inconsistent  with  it?  The  act  of  1893 
deals  alone  with  the  election  and  qualification  of  the  ofiScer  and 
his  official  term,  while  that  of  1868  relates  only  to  the  manner 
of  gathering  the  particular  taxes  therein  mentioned  by  an  officer 
whose  election  and  the  right  to  whose  office  are  in  no  way  affected 
by  the  act  of  1893.  The  question  for  our  determination  is  not 
whether  a  tax  collector  in  Juniata  township  shall  be  elected 


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214  COMMONWEALTH  v.  COMMISSIONERS. 

Opinion  of  Court  below.         [6  Pa.  Superior  Ct.' 

under  the  terms  of  the  act  of  1893  or  shall  be  designated  in 
some  other  way,  but  whether  the  county  treasurer,  whose  title 
to  his  office  is  not  and  cannot  be  challenged,  and  is  conceded, 
shall  collect  certain  taxes  as  heretofore,  in  accordance  with  the 
act  of  1868,  or  whether  the  township  collector  shall  gather  those 
taxes  also,  along  with  all  others,  notwithstanding  the  local  stat- 
ute and  the  saying  clause  in  the  13th  section  of  the  act  of  1885, 
which  clause  refers  merely  to  the  taxes  affected  by  local  laws 
and  not  to  the  election  of  the  collector. 

In  all  the  decided  cases  construing  the  act  of  1893  which  we 
have  seen,  the  issue  presented  involved  the  right  or  title  to  the 
office  of  borough  or  township  collector.  In  Com.  v.  Middle- 
town  Borough,  3  Dist.  R.  639,  the  question  for  decision  was 
whether,  since  the  passage  of  the  act  of  1893,  that  officer  could 
be  appointed  under  the  local  act.  In  Com.  v.  Wunch,  167  Pa. 
186,  the  collector  of  the  township  who  had  been  duly  elected 
and  qualified  under  the  act  of  1893,  applied  for  the  duplicates 
but  was  refused  because  a  local  statute  provided  for  the  selec- 
tion of  a  person  as  collector  who  should  be  the  lowest  bidder,  a 
method  of  designating  a  township  collector  clearly  inconsistent 
with  that  provided  by  the  act  of  1893.  In  the  case  of  Com.  v. 
Lindenmoyer,  5  Northampton  R.  165,  the  contest  was  likewise 
as  to  which  of  the  parties  was  rightfully  the  township  collector. 
Koehler  was  made  so  under  the  provisions  of  the  act  of  1893, 
and  Lindenmoyer  claimed  title  to  the  position  by  virtue  of  an 
appointment  after  competitive  bidding  for  it  under  a  local  act. 

Whatever  might  have  been  the  views  of  the  several  courts 
determining  those  cases  upon  the  question  now  before  us,  it  was 
not  necessarily  involved  in  the  cases  they  decided  and  is  not, 
as  we  think,  ruled  by  them.  They  were  ruled  as  they  were  for 
other  reasons  which  are  quite  apparent,  which  were  in  fact  ir- 
resistible, and  which  have  been  already  noticed.  The  act  of 
1893  meant  to  provide  the  only  way  of  selecting  the  officials 
known  as  tax  collectors  in  the  several  boroughs  and  townships, 
namely,  by  election,  and  of  course  the  office  could  no  longer  be 
filled  by  competitive  bidding  and  appointment  or  on  the  mere 
preference  of  the  municipal  officers.  A  uniform  method  of 
filling  the  office  was  clearly  effected  by  the  repealing  section  of 
the  act  of  1893,  which  strikes  down  all  local  statutes  supplying 
contrary  methods  of  choice. 


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COMMONWEALTH  v,  COMMISSIONERS.  215 

1897.]  Opinion  of  Court  below. 

But  neither  the  title  nor  the  act  itself  seems  to  us  to  indicate 
an  intention  to  repeal  local  laws  pertaining  only  to  the  manner 
of  gathering  taxes. 

If  it  had  been  intended  to  repeal  all  such  acts  as  well  as  those 
relating  to  the  election  of  the  oflBcers  it  would  have  been  readily 
accomplished  in  a  single  line  by  saying  so  in  express  terms. 
On  the  contrary  the  last  clear  expression  of  the  legislature  on 
this  branch  of  the  subject  is  contained  in  the  saving  clause  of 
the  act  of  1885  and  it  leaves  for  collection  taxes  thus  provided 
for  to  the  systems  contained  in  the  local  acts. 

The  argument  is  that  the  court  should  go  beyond  the  clearly 
declared  purpose  of  the  legislature  and  impress  upon  the  act  of 
1893  an  intention  which  its  words  do  not  seem  to  imply.  It  is 
proposed  that  by  judicial  interpretation  we  shall  read  into  the 
act  what  the  law  making  power  omitted  to  insert.  True,  as 
stated  in  Com.  v.  Wunch,  supra,  the  Supreme  Court  has  "  felt 
constrained  to  interpret  statutes  relating  to  these  subjects  in 
the  light  of  the  constitutional  requirements,"  and  a  purpose  is 
there  expressed  of  adhering  to  the  rules  laid  down  in  Com.  v. 
Macferron,  152  Pa.  244  and  Quinn  v.  Cumberland  County,  162 
Pa.  55 ;  but  we  do  not  understand  these  remarks  to  indicate  an 
intention  to  effect  uniformity  in  all  matters  pertaining  to  taxa- 
tion by  judicial  construction  unless  such  a  purpose  fairly  appears 
on  the  face  of  a  statute  under  consideration.  In  Com.  v.  Mac- 
ferron, cited  in  that  case,  it  was  said,  the  rule  "  that  a  previous 
local  statute  is  not  repealed  by  a  subsequent  general  statute 
inconsistent  with  it,  unless  words  of  repeal  are  employed  for 
that  purpose,"  was  not  questioned,  but  was  held  inapplicable 
because  in  classification  acts,  like  that  under  consideration,  the 
legislative  intent  is  fully  expressed.  And  so  was  the  intent 
most  clearly  expressed  in  the  act  of  1893  as  applied  to  the  case 
of  Com.  V.  Wunch.  In  Quinn  v.  Cumberland  County,  it  was 
said  by  Mr.  Justice  Gbbbk,  "  it  is  evident  the  two  acts  cannot 
be  executed  together,  and  the  act  of  1893,  in  its  8th  section, 
expi'essly  repeals  all  acts  or  parts  of  acts  inconsistent  with  or 
contrary  to  the  provisions  of  this  act."  That  was  also'  true  of 
the  act  in  Longswamp  township,  Berks  county,  for  the  selection 
of  a  township  tax  collector,  to  which  the  principle  was  applied. 

But  is  there  any  reason  why  the  acts  which  we  are  consider- 
ing may  not  be  executed  together  in  Juniata  township,  where 


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216  COMMONWEALTH  v.  COMMISSIONERS. 

Opinion  of  Court  below.         [6  Pa.  Superior  Ct. 

the  relator  will  collect  all  the  taxes  except  those  for  state  and 
county  purposes  ?  If  they  can  stand  and  be  executed  together 
we  do  not  understand  the  courts  to  mean  that  we  should 
depart  from  the  well  settled  rules  of  interpretation  and  strike 
down  the  local  act  for  the  sole  object  of  effecting  that  uniform- 
ity to  which  the  constitutional  provision  points.  The  constitu- 
tional demand  for  uniformity  was  as  imperative  when  Malloy  v. 
Reinhard  was  decided  as  it  is  now,  and  yet  it  was  there  said, 
"  rarely,  if  ever,  does  a  case  arise  where  it  can  justly  be  held 
that  a  general  statute  repeals  a  local  statute,  by  mere  implica- 
tion. The  constitution  of  1874,  upon  many  subjects,  prohibits 
local  or  special  legislation,  but  it  changes  no  rule  relative  to  the 
repeal,  by  legislation,  of  local  laws  existing  when  it  was  adopted. 
Had  section  13  of  the  act  of  1885  been  omitted,  there  would 
have  been  no  repeal  of  the  local  statutes  for  the  borough  of 
Verona." 

While,  therefore,  it  is  very  clear  that  another  collector  of 
taxes  in  Juniata  township  could  not  be  appointed  in  the  face  of 
the  act  of  1893,  it  is  not  equally  apparent  that  it  entitles  the 
relator  to  the  right  of  collecting  all  taxes  assessed  in  that  town- 
ship. In  no  event  could  he  collect  taxes  on  unseated  lands,  for 
the  12th  section  of  the  act  of  1885  expressly  forbids  it,  and  we 
do  not  understand  that  any  one  alleges  that  section  is  repealed. 
If  it  remains  in  force  it  destroys  the  argument  of  a  legislative 
intent  to  commit  all  the  taxes  in  Juniata  township  to  a  single 
individual  for  collection. 

The  system  furnished  by  the  act  of  1868  has  operated  most 
satisfactorily  for  nearly  thirty  years  in  Bedford  county,  and  as 
we  learn  in  a  number  of  other  counties  in  which  taxes  are  to- 
day being  collected  under  it,  and  a  number  of  reasons  might  be 
advanced  why  it  is  preferable  to  that  embodied  in  the  act  of 
1885,  but  we  are  quite  well  awai-e  that  such  considerations 
would  not  warrant  us  in  sustaining  the  local  act,  and  yet  we 
would  for  that  reason  feel  less  inclined  to  strain  a  point  in  order 
to  arrive  at  the  relator's  interpretation  of  the  repealing  clause 
of  the  act  of  1893. 

Now,  May  13,  1897,  the  demurrer  of  the  relator,  L.  A.  Hille- 
gass,  to  the  answers  filed  in  this  case  is  hereby  overruled,  and  it 
is  ordered,  adjudged  and  decreed  that  the  duplicate  of  state  and 
county  taxes  levied  and  assessed  hi  the  township  of  Juniata  for 


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COMMONWEALTH  v.  COMMISSIONERS.  217 

1897.]  Opinion  of  Court  below— Opinion  of  the  Court. 

tiie  current  year  be  delivered  by  the  county  commissioners,  for 
the  purpose  of  the  collection  thereof,  in  accordance  with  the 
provisions  of  the  act  of  April  13, 1868,  to  Charles  Reily,  the 
county  treasurer. 

Hrrors  amgned  were  (1)  overruling  demurrer.  (2)  In  order- 
ing that  the  duplicates  of  state  and  county  taxes  levied  and 
assessed  in  the  township  of  Juniata  for  the  current  year,  be  de- 
livered by  the  county  commissioners,  for  the  purposes  of  collec- 
tion thereof,  in  accordance  with  the  provisions  of  the  act  of 
April  13,  1868,  to  Charles  Reily  the  county  treasurer. 

Daniel  S.  Horn^  for  appellant 

John  S.  Welter  and  Frank  E.  Colvin^  with  them  S.  B.  Longe* 
neeker^  for  appellee. 

Opinion  Br  Bbaveb,  J.,  December  13, 1897  : 
Under  the  provisions  of  an  act  of  assembly  approved  April  13, 
1868,  P.  L.  1017,  entitled  "An  act  to  provide  for  the  collec- 
tion of  state,  county,  poor  and  military  taxes  in  the  county  of 
Bedford,"  the  treasurer  of  the  said  county  has,  since  the  passage 
of  the  act,  collected  the  taxes  therein  named.  An  act  of  assem- 
bly approved  the  25th  day  of  June,  A.  D.  1885,  P.  L.  187, 
entitled  "  An  act  regulating  the  collection  of  taxes  in  the  several 
boroughs  and  townships  of  this  commonwealth,"  provides  for 
the  election  of  an  officer,  to  be  styled  collector  of  taxes,  by  the 
qualified  electors  of  each  borough  and  township  in  the  common- 
wealth on  the  third  Tuesday  of  February  of  each  year  there- 
after, and  provides,  in  its  fourth  section :  "  The  several  county, 
borough,  township,  school,  poor  and  other  authorities  now 
empowered  and  which  may  hereafter  be  empowered  to  levy 
taxes  within  the  several  boroughs  and  townships  of  this  com- 
monwealth shall,  on  or  before  the  first  day  of  August  in  each 
year,  after  the  first  election  of  collector  of  taxes  under  this  act, 
issue  their  respective  duplicates  of  taxes  assessed  to  the  col- 
lector of  taxes  of  their  respective  boroughs  and  townships,  with 
their  warrants  attached,  directing  him  to  collect  the  same,  but 
road  taxes  may  be  worked  out  as  heretofore,"  and  in  its  thir- 
teenth section  provides :  "  So  much  of  all  general  acts  hereto- 


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218  COMMONWEALTH  v.  COMMISSIONERS. 

Opinion  of  the  Court.  [6  Pa.  Superior  Ct. 

fore  passed  as  is  inconsistent  herewith  is  hereby  repealed,  but 
this  act  shall  not  apply  to  any  taxes  the  collection  of  which  is 
regulated  by  a  local  law." 

An  act  of  assembly,  passed  the  6th  day  of  June,  A.  D.  1893, 
P.  L.  333,  entitled  "  An  act  to  authorize  the  election  of  tax  col- 
lectors for  the  term  of  three  years,  in  the  several  boroughs  and 
townships  of  this  commonwealth,"  provides  simply  for  such 
election  and,  in  its  second  section,  repeals  all  acts  or  parts  of 
acts  inconsistent  therewith. 

It  is  claimed  by  the  appellants  that  the  act  last  above  men- 
tioned repeals  the  act  of  April  13, 1868,  supra,  and  that  it,  by 
necessary  impUcation,  repeals  the  13th  section  of  the  act  of 
June  25, 1885,  supra,  it  being  admittedly  clear  that,  unless  this 
latter  section  is  repealed,  the  local  act  of  1868  is  safe  under  its 
protection. 

It  is  admitted  that  the  precise  question  raised  here  has  not 
been  decided  in  Pennsylvania.  Com.  v.  Wunch,  167  Pa.  186, 
in  which  the  decision  of  the  lower  court,  affirmed  in  a  Per 
Curiam  opinion  of  the  Supreme  Court,  relies  largely  upon 
Com.  V.  Middletown,  3  Dist.  Rep.  639,  is  not  directly  in  point. 
In  both  of  these  cases  the  question  involved  was,  whether  the 
tax  collector  elected  under  the  provisions  of  the  act  of  1893, 
supra,  should  perform  the  functions  and  discharge  the  duties 
of  the  office  to  which  he  had  been  elected  by  the  qualified  elect- 
ors of  the  municipality,  or  whether  these  functions  and  duties 
should  be  performed  and  discliarged  by  officers  or  employees 
who  by  appointment  or  competitive  bidding  had  secured  the 
rights  and  privileges  of  tax  collectors  under  the  operation  of 
local  laws.  It  will  be  observed  that  the  act  of  1893,  supra,  pro- 
vides for  the  election,  by  the  qualified  voters  of  every  borough 
and  township  in  the  commonwealth  of  Pennsylvania,  on  the 
third  Tuesday  of  February  after  the  passage  of  the  act,  and  tri- 
ennially  thereafter,  of  one  properly  qualified  person  for  tax  col- 
lector in  each  of  said  districts,  who  shall  serve  for  the  term  of 
three  years.  It  is  very  clear  that  the  lowest  bidder  for  the  col- 
lection of  taxes  in  the  townships  of  Longswamp  and  Bethel,  in 
Berks  county,  and  the  collector  appointed  by  the  town  council 
of  the  borough  of  Middletown  could  not  collect  the  taxes  in 
those  districts  I'espectively,  consistently  with  the  rights  and 
duties  of  the  collectors  of  taxes  elected  under  the  provisions  of 


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COMMONWEALTH  v.  COMMISSIONERS.  219 

1897.]  Opinion  of  the  Couii:. 

the  act  of  1893,  supra,  if  the  tax  collectors  so  elected  were  to 
assume  the  obligations  or  discharge  the  duties  of  the  office  to 
which  they  had  been  severally  elected.  The  latter  act  is  plainly 
inconsistent  with  the  local  acts  for  Longswamp  and  Bethel 
townships  and  Middletown  borough  above  referred  to.  The 
provisions  of  these  several  acts  cannot  be  enforced  at  the  same 
time  and,  therefore,  cannot  stand  together.  Under  the  plainest 
principles  of  construction,  therefore,  the  general  repealed  the 
local  acts. 

We  have  an  entirely  different  question  raised  in  the  present 
case.  The  saving  clause  of  the  thirteenth  section  of  the  act  of 
1885,  supra,  is  **  But  this  act  shall  not  apply  to  any  taxes  the 
collection  of  which  is  regulated  by  a  local  law."  The  treasurer 
of  Bedford  county  can  collect  the  state  and  county  taxes,  the 
latter  by  the  Act  of  April  4,  1872,  P.  L.  929,  being  made  to 
include/  the  poor  taxes,  and  the  relator  Hillegass,  who  was 
elected  tax  collector  for  Juniata  township  at  the  February  elec- 
tion in  1897,  can  collect  all  the  to^oiship  taxes  without  in  any 
way  interfering  with  each  other  in  the  discharge  of  the  duties 
of  their  respective  offices  and  without  abridging  the  rights  or 
limiting  the  powers  of  the  township  collector,  so  far  as  they 
relate  to  the  collection  of  township  taxes.  There  is,  therefore, 
no  necessary  conflict  between  the  duties  of  these  several  officers, 
which  are  to  be  discharged  under  and  by  virtue  of  the  provi- 
sions of  the  several  laws  under  which  they  secure  their  rights 
and  receive  their  authority  respectively.  The  acts  are  not 
necessarily  inconsistent  with  each  other  and,  therefore,  in  ac- 
cordance with  well  known  principles,  can  and  ought  to  be  con- 
strued together,  so  that  full  force  and  effect  may  be  given  to 
the  provisions  of  each  respectively. 

The  titles  of  the  acts  of  1886  and  1893,  supra,  are  significant. 
The  first  is  entitled  "  An  act  regulating  the  collection  of  taxes 
in  the  several  boroughs  and  townships  of  this  commonwealth ; " 
the  second  "  An  act  to  authorize  the  election  of  tax  collectors 
for  the  term  of  three  years  in  the  several  boroughs  and  town- 
ships of  this  commonwealth."  Nothing  whatever  is  intimated 
in  the  title  of,  and  nothing  is  said  in  the  latter  act  in  regard  to 
any  system  for  the  collection  of  taxes. 

So  many  of  the  counties  of  the  commonwealth  have  provi- 
sions practically  similar  to  those  of  Bedford  county  for  the  col- 


Digitized  by  VjOOQ  IC 


220  COMMONWEALTH  v.  COMMISSIONERS. 

Opinion  of  the  Couit.  [6  Pa.  Superior  Ct. 

lection  of  state  and  county  taxes,  under  local  laws,  that  this 
mode  of  collection  may  be  almost  regarded  as  a  system,  one 
which  has  worked  well  in  practice,  under  which  public  inter- 
ests have  not  suffered,  and  may  well  have  been  in  the  mind  of 
the  legislature  when  the  act  of  1885,  supra,  was  passed.  Ai*e 
the  state  and  county  taxes  in  these  several  coimties  included 
in,  or  do  they  constitute  the  "  any  taxes  the  collection  of  which 
is  regulated  by  a  local  law  "  mentioned  in  the  thirteenth  section 
of  the  act  of  1886,  supra?  If  so,  and  there  is  no  necessary  in- 
consistency between  the  enforcement  of  the  provisions  of  the 
general  act  of  1893,  supra,  and  the  several  local  acts,  including 
the  act  of  1868,  supra,  their  collection,  as  provided  for  in  the 
several  local  acts,  should  not  be  interfered  with.  We  think  it 
apparent  that  there  is  no  such  inconsistency,  and  that  the  gen- 
eral and  local  acts  involved  in  this  controversy  can  be  enforced 
at  the  same  time,  without  in  any  material  way  interfering  with 
each  other. 

It  is  not  necessary  to  add  more  to  the  well  considered  opin- 
ion  of  the  presiding  judge  in  the  court  below.  We  are  of  opin- 
ion that  he  reached  the  correct  conclusion  in  construing  the 
various  statutes  involved,  and  the  judgment  is,  therefore,  af- 
firmed. 


Commonwealth  of  Pennsylvania  v.  6.  Augustus  Page, 

Appellant. 

Criminal  law— Abortion — Adequate  charge— Answer  to  point—Question 
for  jury. 

Where  the  question  is  whether  the  defendant  did  or  did  not  commit  an 
abortion  in  manner  and  form  as  indicted  it  is  exclusively  for  the  juiy,  the 
issue  being  dependent  upon  the  credibility  of  the  witnesses  for  the  com- 
monwealth and  accused  respectively.  The  appellate  court  will  not  disturb 
the  verdict  of  the  jury  on  the  ground  that  the  charge  of  the  court  and  an- 
swer to  defendant's  point  were  unfavorable  to  the  defendant,  and  inade- 
quate in  the  presentation  of  the  case  for  the  consideration  of  the  juiy, 
when  the  point  in  question  is  ingenious  but  argumentative  and  composed 
in  part  of  a  skilful  combination  of  fact  and  inference  which  did  not  admit 
of  an  unequivocal  answer;  and  where  the  charge  was  fair,  impartial, 
adequate  and  sufficiently  guai*ded  the  rights  of  the  defendant 


Digitized  by  VjOOQ IC 


COMMONWEALTH  v.  PAGE.  221 

1897.]  Statement  of  Facts—Charge  of  Court. 

Argued  Oct.  19, 1897.  Appeal,  No.  84,  April  T.,  1898,  by 
defendant,  from  judgment  of  Q.  S.  Allegheny  Co.,  Dec.  Seas., 
1896,  No.  446,  on  verdict  of  guilty.  Before  Rice,  P.  J.,  Wick- 
ham,  Beaveb,  Reedeb,  Orlady,  Smith  and  Pobteb,  JJ. 
Affirmed. 

Indictment  for  abortion.    Before  Slagle,  J. 

The  facts  sufficiently  appear  from  the  charge  of  the  court 
below: 

The  defendant,  G.  Augustus  Page,  is  charged  in  this  indict- 
ment under  four  counts.  These  counts  are  drawn  under  an  act 
of  assembly  in  relation  to  the  crime  of  abortion,  which,  at  com- 
mon law,  was  not  regarded  as  of  so  very  great  importance,  but 
which,  in  their  wisdom,  the  legislature  saw  proper  to  specially 
provide  for.     The  act  of  assembly  is  as  foDows : 

"  If  any  person  shall  unlawfully  administer  to  any  woman, 
pregnant  or  quick  with  child,  or  supposed  and  believed  to  be 
pregnant  or  quick  with  child,  any  drug,  poison  or  other  sub- 
stance whatsoever,  or  shall  unlawfully  use  any  instrument  or 
other  means  whatsoever,  with  the  intent  to  procure  the  mis- 
carriage of  such  woman,  and  such  woman,  or  any  child  witli 
which  she  may  be  quick,  shall  die  in  consequence  of  either  of 
said  unlawful  acts,  the  person  so  offending  shall  be  guilty  of 
felony." 

The  second  section  is :  "  If  any  person,  with  intent  to  procure 
the  miscarriage  of  any  woman,  shall  unlawfully  administer  to 
her  any  poison,  drug  or  substance  whatsoever,  or  shall  unlaw- 
fully use  any  instrument,  or  other  means  whatsoever,  with  the 
like  intent,  such  person  shall  be  guilty  of  felony." 

The  difference  between  those  sections  being,  that  in  the  first, 
in  order  to  make  out  the  offense,  it  must  follow  that  the  child 
or  woman  died;  in  the  second,  merely  the  administering  of 
poisons  or  the  use  of  instruments,  with  intent  to  produce  abor- 
tion, makes  out  the  offense,  whether  or  not  the  child  or  the 
mother  died. 

In  this  case,  as  I  say,  there  are  four  counts.  The  first  count 
is  drawn  under  the  88th  section  of  the  act  of  March,  1860, 
which  charges  the  administering  of  poisons  or  other  substances 
of  that  sort,  merely  with  the  intent  to  produce  abortion.     There 


Digitized  by  VjOOQ IC 


222  COMMONWEALTH  v.  PAGE. 

Charge  of  Court.  [6  Pa.  Superior  Ct. 

is  no  evidence  in  this  case  that  medicines  were  administered  by 
the  defendant  with  any  such  purpose,  and  therefore  there  can 
be  no  conviction  under  that  count. 

The  third  count  charges  the  administering  of  medicines,  and 
alleges  that  in  consequence  of  that  the  mother,  Mrs.  Martha  M. 
Page,  died.  There  is  no  evidence,  as  I  say,  of  the  administer- 
ing of  medicine,  and  therefore  there  can  be  no  conviction  under 
that  count. 

The  second  count  alleges  that  an  instrument  was  used, — 
^^  that  the  defendant  did  use  a  certain  instrument  and  other 
means  in  and  upon  the  body  of  one  Martha  M.  Page,  she,  the 
said  Martha  M.  Page,  being  then  and  there  pregnant  and  quick 
with  child,  or  supposed  and  believed  to  be  pregnant  or  quick 
with  child,  with  the  intent  to  procure  the  miscarriage  of  the  said 
Martha  M.  Page,  contrary  to  the  act  of  the  general  assembly." 
Now  that  count  of  the  indictment  is  made  out  by  the  simple 
proof  of  the  fact  that  an  instrument  was  used,  without  regard  to 
its  consequences ;  and  if  you  find  that  the  defendant  used  an 
instrument  upon  his  wife  for  the  purpose  of  producing  an  abor- 
tion, then  he  would  be  guilty  under  that  count  of  the  indict- 
ment 

The  fourth  count  of  the  indictment  alleges  that  an  instru- 
ment or  other  means  was  used  ^'with  the  intent  to  procure  the 
miscarriage  of  the  said  Martha  M.  Page,  and  in  consequence 
of  the  said  unlawful  act  the  said  Martha  M.  Page  did  then  and 
there  die ;  contrary  to  the  form  of  the  act  of  the  general  as- 
sembly;" so  that  under  that  count  it  is  necessary  that  you 
should  be  satisfied  from  the  evidence  that  Mrs.  Page  died  in 
consequence  of  the  use  of  this  instrument. 

The  only  two  counts  of  the  indictment  which  you  are  to  con- 
sider, therefore,  are  the  second  and  fourth,  and  as  the  fourth 
includes  the  second — because  in  the  fourth  count  of  the  indict- 
ment it  is  necessary  that  you  should  be  satisfied  that  the  defend- 
ant used  the  instrument  and  that  that  resulted  in  the  death  of 
Mrs.  Page,  of  course  the  second  count  is  included  in  it — and  if 
you  find,  then,  that  he  used  the  instrument  and  that  Mrs.  Page 
died  from  the  effects  of  that  attempted  abortion,  then  you  should 
find  him  guilty  of  the  fouHh  count  and  no  more,  because  the 
fourth  includes  the  second. 

Now,  keeping  these  things  in  mind,  it  is  necessary  for  me  to 


Digitized  by  VjOOQ IC 


COMMONWEALTH  v.  PAGE.  223 

1$97.]  Charge  of  Court. 

instaruct  you  as  to  the  law  bearing  upon  the  various  questions 
raised  by  the  testimony.  The  counsel  for  defendant  have  asked 
me  to  instruct  you  upon  certain  questions  of  law,  and  before 
making  any  general  remarks  I  will  answer  the  points  submitted 
to  me. 

Here  the  court  read  and  answered  the  defendant's  points  and, 
inter  alia,  point  IV. 

rV.  [In  considering  the  testimony  relating  to  the  defendant's 
alleged  admission  to  Dr.  Pettit  that  he  had  used  an  instrument 
upon  the  person  of  his  wife,  Martha  M.  Page,  the  jury  should 
bear  in  mind  the  infirmity  of  human  recollection  as  to  the  exact 
words  that  were  used,  the  interest,  if  any,  which  Dr.  Pettit  has 
in  shielding  himself  from  blame,  the  fact  that  on  one  of  the  two 
occasions  of  said  alleged  admissions  Dr.  Pettit  himself  admits 
that  he  is  uncertain  whether  defendant  said  ^^  that  is  what  I 
used  "  or  "  that  is  what  was  used,"  the  testimony  of  Edward  A. 
Woods  that  Dr.  Pettit  told  him  he  was  not  certain  whether 
defendant  said  he  or  she  had  used  the  instrument,  and  all  other 
facts  tending  to  show  that  Dr.  Pettit  may  be  mistaken  in  re- 
peating the  language  used  by  defendant  more  than  a  year  ago, 
including  the  positive  denial  of  the  defendant  that  he  ever 
used,  or  told  Dr.  Pettit  that  he  used,  an  instrument  upon  his 
wife ;  and,  unless  upon  consideration  of  all  the  facts,  the  jury 
are  convinced  beyond  a  reasonable  doubt  that  the  defendant  did 
certainly  admit  that  he  used  the  instrument  upon  his  wife,  and 
actually  did  use  it,  or  assist  in  its  use,  their  verdict  should  be 
not  guilty.  Answer :  This  is  refused.  I  do  not  recall  any  evi- 
dence showing  any  interest  of  Dr.  Pettit  in  this  case.  It  is  not 
alleged  that  he  produced  the  abortion.  The  defendant  said  that 
the  doctor  had  agreed  to  remove  the  foetus  in  case  on  examina- 
tion he  found  it  dead.  As  to  any  alleged  malpractice  by  him, 
it  would  make  no  difference  by  whom  the  instrument  had  been 
used.  The  matters  mentioned  in  this  point  should  be  con- 
sidered in  connection  with  the  other  evidence  in  the  case,  to 
determine  whether  or  not  the  defendant  did  say  to  Dr.  Pettit 
what  he  testified  the  defendant  had  said ;  but  the  guilt  of  the 
defendant  does  not  depend  on  that  fact  alone ;  there  is  other 
evidence  in  the  case  which  should  be  considered.]  [1] 

Now,  gentlemen,  as  you  will  observe,  taking  the  fourth  count 
of  the  indictment,  which  includes,  as  I  have  said,  the  second. 


Digitized  by  VjOOQ IC 


224  COMMONWEALTH  v.  PAGE. 

Charge  of  Court.  [6  Pa.  Superior  Ct. 

there  are  a  number  of  things  that  are  necessary  to  constitute 
this  offense.  In  the  first  place,  the  woman  must  be  pregnant 
or  quick  with  child,  or  supposed  and  believed  to  be  pregnant 
or  quick  with  child.  An  instrument,  or  other  means  of  simi- 
lar character — it  does  not  describe  any  particular  instrument — 
some  mechanical  means — must  have  been  used  in  order  to  pro- 
duce an  abortion,  that  is,  with  the  intent  to  procure  the  "mis- 
carriage "  of  such  woman,  as  it  Ls  called  in  this  act,  and  that 
word  is  probably  used  in  the  act  because  abortion  at  common 
law  had  a  peculiar  signification  relating  to  the  time  at  which  it 
was  attempted,  that  is,  in  relation  to  the  length  of  time  that  the 
child  had  been  conceived,  and  under  our  law  whenever  concep- 
tion has  taken  place  and  an  attempt  is  made  to  produce  a  mis- 
carriage it  is  an  offense  under  this  law,  so  that  the  time  at  which 
conception  had  commenced  is  not  material  here,  provided  it 
was  well  defined.  And,  further,  you  must  find  under  this  in- 
dictment that  Mrs.  Page  died  from  the  effects  of  that  operation. 
It  is  not  alleged  in  the  count  that  the  child  died  from  that,  but 
it  is  alleged  that  Mrs.  Page  died  from  the  effects  of  that  opera- 
tion, and  therefore  you  must  find  that  fact,  and  it  is  not  suflB- 
cient  that  you  should  find  simply  that  the  child  died. 

A  number  of  these  facts  are  undisputed.  The  testimony  is 
undisputed  of  all  the  witnesses  who  have  any  knowledge  of  the 
matter  that  Mrs.  Page  was  pregnant  at  the  time  this  act  was 
committed.  The  testimony  of  the  defendant  is  that  she  was  in 
the  course  of  pregnancy  for  about  two  months  and  a  half ;  the 
doctors  testified  that  from  the  appearances  it  was  from  three  to 
four  months.  The  foetus  was  from  three  to  four  months  old ; 
but  there  is  no  question  about  the  fact  that  she  was  at 
that  time  pregnant.  There  is  no  dispute  about  the  fact 
that  an  instrument  was  used.  The  defendant  himself  tes- 
tifies to  that,  so  that  that  is  beyond  any  question  or  dispute, 
that  there  was  an  instrument  used  for  the  purpose  of  producing 
this  abortion.  The  testimony  of  the  physicians  indicates  it. 
The  testimony  of  the  defendant  himself  is  that  his  wife  had 
used  an  instrument,  and  that  she  had  told  him  what  instrument 
was  used,  and  he  afterwards  produced  it,  so  that  there  is  no 
question  as  to  the  fact  that  there  was  an  attempt  to  produce  an 
abortion  by  the  use  of  an  instrument,  and  that  would  make  an 
offense  under  the  second  count  of  the  indictment — I  do  not 


Digitized  by  VjOOQ IC 


COMMONWEALTH  v.  PAGE.  225 

1897.]  Charge  of  Court. 

mean  that  it  would  make  him  guilty  of  the  offense,  but  would 
constitute  an  offense  under  the  act  of  assembly — but  in  order 
to  convict  under  the  fourth  court  of  the  indictment,  you  would 
have  to  find  the  further  fact  that  this  resulted  in  the  death  of 
Mrs.  Page.  I  do  not  know  whether  there  is,  under  the  testi- 
mony, any  great  question  as  to  that  faot.  The  testimony  of  the 
doctors  as  to  her  condition  at  the  time  she  was  taken  to  the 
hospital — not  only  the  testimony  of  Dr.  Pettit,  but  that  of  the 
other  doctors — would  indicate  a  very  bad  condition.  Dr.  Pettit 
says  that  when  he  got  thei*e  on  Thursday  he  discovered  that 
she  had  been  bleeding  very  profusely,  and  there  were  clots  of 
blood»  and  that  after  making  an  examination  he  concluded  that 
to  save  her  life  it  was  necessary  that  this  fcetus  should  be  re- 
moved ;  that  he  had  not  been  certain  on  the  first  examination 
on  the  Saturday  and  Monday  preceding,  that  the  child  was 
dead ;  that  upon  this  examination  on  Thursday  he  withdrew 
one  of  the  limbs  out  far  enough  for  him  to  know  that  the  child 
was  dead  and  he  then  proceeded  to  remove  it,  and  that  it  was 
necessary  to  do  that  in  order  to  save  her  life,  in  that  condition. 

Now,  if  you  are  satisfied  from  the  testimony  in  the  case  that 
Mrs.  Page  would  have  died,  then,  if  she  died  under  an  operation, 
which  was  necessary  to  save  her  life,  still  the  death  must  be  re- 
lated back  to  the  original  injury,  and  if  you  are  satisfied  from 
all  the  circumstances  that  the  original  injury  would  have  caused 
her  death— satisfied  of  all  these  facts,  of  course,  beyond  a  rea- 
sonable doubt — that  the  original  injury  produced  by  the  use  of 
these  instruments  would  have  caused  her  death,  then  the  fact 
that  she  died  under  an  operation  or  in  consequence  of  an  opera- 
tion which  was  necessary  to  save  her  life  would  not  change  the 
effect  of  that  condition. 

Then  that  would  constitute  the  offense ;  the  woman  was  preg- 
nant, an  instrument  was  used,  and  Mrs.  Page  died;  but  in 
order  to  convict,  you  must  further  find,  beyond  a  reasonable 
doubt,  that  the  instmment  was  used  by  the  defendant  in  this 
case,  or,  as  has  been  suggested  in  the  point  submitted  and  which 
I  have  answered  in  the  afiirmative,  that  he  assisted  in  doing  it, 
because  if  he  was  present,  assisting  in  its  use  by  any  peraon 
else — his  wife  or  any  other  person — he  would  be  equally  guilty, 
if  he  was  there  assisting  in  the  operation,  though  he  didn't  use 
the  instrument  himself ;  but  under  the  testimony  in  the  case, 
Vol.  VI— 16 


Digitized  by  VjOOQ IC 


226  COMMONWEALTH  v.  PAGE. 

Char^  of  Court.  [6  Pa.  Saperior  Ct. 

it  seems  to  me,  if  there  is  any  doubt  about  the  fact  of  his  using 
it  at  all,  there  would  be  the  same  doubt  as  to  his  assistance,  be- 
cause there  is  no  evidence  as  to  any  circumstances  of  that  sort. 
The  testimony  on  the  part  of  tlie  commonwealth  goes  to  show 
that  he  did  it  himself,  and  if  he  did  not  do  it  himself  the  testi- 
mony would  not  justify  any  inference  that  he  assbted  in  it,  it 
seems  to  me ;  however,  that  is  all  for  you. 

[Now  you  have  heard  the  testimony  discussed  fully  by  coun- 
sel and  it  is  not  necessary  for  me  to  repeat  it.  You  have  heard 
the  testimony  of  Dr.  Pettit  as  to  what  he  said  at  the  time  the 
defendant  first  spoke  to  him  in  reference  to  this  matter,  and 
you  have  heard  the  positiveness  with  which  he  asserts  that  at 
that  time  the  defendant  said,  '^  I  used  this  instrument,"  and  you 
have  heard  also  the  reason  why  he  says  he  is  certain  of  the  lan- 
guage used  at  that  time,  because  of  the  subsequent  conversation 
in  relation  to  the  matter.  Of  course  the  change  of  one  word 
would  make  a  great  difference,  and  if  the  circumstances  were 
not  such  as  to  justify  you  in  believing  that  Dr.  Pettit  remem- 
bered distinctly  the  language  which  was  used  that  might  raise 
a  reasonable  doubt  in  your  minds ;  but  you  will  take  his  recol- 
lection in  connection  with  all  the  other  testimony  in  the  case 
and  say  whether  or  not  you  are  satisfied  that  Dr.  Pettit  now 
testifies  to  what  actually  occurred;  and,  hi  connection  with 
that,  you  have  the  testimony  of  Mr.  Kress  as  to  what  was 
said  to  him,  and  it  seems  to  me  that  that  is  in  corroboration  of 
what  was  said  to  Dr.  Pettit,  or  what  he  alleges  was  said  to  him. 
Mr.  Page  denies  that  he  said  to  either  of  these  men  what  they 
testify  that  lie  did  say  to  him — denies  that  he  used  the  word 
*'  I,"  but  says  that  he  used  the  word  "  she ; "  but  you  have  the 
testimony  of  those  witnesses,  and  you  will  remember  what  they 
said  and  about  all  the  circumstances  attending  the  conversa- 
tions, and  if  you  are  satisfied  that  they  are  telling  the  truth 
about  it,  then  you  have  the  admission  of  the  defendant  that  he 
was  the  party  who  committed  this  offense.  Against  that  you 
have  his  statement  that  he  said  nothing  of  the  sort,  and  you 
will  take  into  consideration,  also,  all  the  circumstances  attend- 
ing the  transaction,  in  order  to  determine  on  which  side  the 
truth  lies. 

As  I  said,  without  going  over  all  the  testimony  in  the  case 
upon  this  point,  you  must  be  satisfied  after  a  full  and  fair  con^ 


Digitized  by  VjOOQ IC 


COMMONWEALTH  v.  PAGE.  227 

1897.]  Charge  of  Court — Argaments. 

sidoration  of  all  the  evidence — satisfied  fully  and  beyond  a  rea- 
sonable doubt,  not  a  mere  possibility  of  doubt,  but  some  reasonable 
difficulty  in  coming  to  and  maintaining  your  conclusion  as  to 
his  gmit.  If  you  have  such  a  doubt  you  will  find  him  not 
guilty.  If  you  are  satisfied  beyond  such  a  doubt  that  he  com- 
mitted this  offense,  then  you  would  find  him  guilty  on  the  fourtli 
count,  if  you  find  that  the  death  of  Mrs.  Page  was  the  conse- 
quence of  this  act ;  or,  if  you  have  any  doubt  about  that,  you 
will  find  him  guilty  on  the  second  count  of  the  indictment— of 
an  attempt.]  [2] 

To  which  charge  of  the  court  counsel  for  defendant  ex- 
cept. [3] 

Verdict  of  guilty  and  sentence  thereon.    Defendant  appealed. 

Errors  assigned  were  (1)  refusing  to  affirm  defendant's 
fourth  point  and  in  the  answer  thereto,  reciting  same.  (2)  To 
a  portion  of  the  judge's  charge,  reciting  same.  (3)  The  charge 
of  the  court  as  a  whole  is  unfavorable  to  appellant,  and  inade- 
quate in  its  presentation  of  the  case  to  the  jury.  (4)  In  enter- 
ing judgment  upon  the  verdict  founded  upon  the  meager  and 
uncertain  evidence  presented  by  the  commonwealth  in  this  case. 

2>.  F.  Patter soTiy  with  him  Chas.  A.  Woods^  for  appellant. — 
On  the  whole,  and  as  a  whole,  it  was  a  charge  for  conviction, 
in  a  typical  case  for  acquittal  on  the  ground  of  reasonable  doubt. 

We  contend  that  no  judgment  should  have  been  entered  upon 
a  verdict  founded,  as  this  verdict  must  have  been,  upon  the  tes- 
timony of  a  single  witness  respecting  the  appellant's  use  of  a 
single  word.  In  Com.  v.  Cleary,  135  Pa.  64,  Paxson,  C.  J., 
said :  "  When  a  man's  life  may  depend  on  a  single  word,  the 
use  of  language  cannot  be  attended  with  too  much  care."  This 
was  said  in  reference  to  the  language  used  iJy  the  court  below 
in  its  charge,  and  is  certainly  no  less  applicable  to  language  al- 
leged to  have  been  used  by  party  charged  with  crime. 

The  note  to  page  *826  of  the  10th  edition  of  Starkie  on  Evi- 
dence furnishes  a  valuable  illustration  of  the  damage  likely  to 
result  from  the  misuse  of  a  single  word. 

We  claim  that  even  a  stringent  administration  of  justice  does 
not  require  the  punishment  of  a  reputable  citizen  when  the 
question  of  lus  guilt  or  innocence  depends  upon  a  witness's 
understanding  or  recollection  of  whether  he  said  "  I  did  it "  or 


Digitized  by  VjOOQ  IC 


228  COMMONWEALTH  v.  PAGE. 

Arguments — Opinion  of  the  Court.  [6  Pa.  Superior  Ct. 

^^  she  did  it,"  especially  when  there  is  so  much  in  the  case  to  in- 
dicate that  as  a  matter  of  fact  ^^  she  did  it." 

John  C.  Haymaker^  district  attorney,  for  appellee.  • 

Opinion  by  Beaveb,  J.,  December  13, 1897 : 

This  case  afifords  an  illustration  of  the  necessity  for  the  ef- 
forts which  organized  society  has  made,  through  the  laws  which 
it  has  enacted,  to  protect  itself — a  necessity  never  more  ap- 
parent and  pressing  than  in  these  latter  days  of  modem  social 
life,  when  the  moral  tone  in  regard  to  crimes  of  this  character 
has  become  lamentably  lax. 

Were  there  facts  fairly  raised  by  the  evidence  for  the  consid- 
eration of  the  jury  and  was  the  testimony  in  regard  to  these 
facts  presented  for  their  consideration  in  such  a  way  as  to  guard 
the  legal  rights  of  the  defendant  ?  These,  under  various  forms, 
are  the  questions  raised  by  the  assignments  of  error  and  admit 
of  a  very  simple  and  direct  answer. 

The  defendant's  fourth  point,  the  answer  to  which  is  com- 
plained of,  is  ingenious,  but  it  is  argumentative  and  is  com- 
posed in  part  of  a  skilful  combination  of  fact  and  inference, 
which  did  not  admit  of  a  direct  and  unequivocal  answer.  The 
court  undertook  to  answer  it,  however,  and  we  think  did  so 
wisely  and  well.  The  charge  was  fair,  impartial,  adequate  and 
sufficiently  guarded  the  rights  of  the  defendant. 

The  principal  witness  for  the  commonwealth,  Dr.  Pettit,  was 
clear  in  his  recollection  and  emphatic  in  his  declarations  as  to 
the  defendant's  admissions  as  to  his  personal  connection  with 
the  principal  fact  upon  which  the  commonwealth  relied  for  his 
conviction,  his  recollection  being  fortified  by  the  rebuke  which 
he  had  administered  to  the  defendant  at  the  time,  which  would 
have  been  entirely  out  of  place,  except  upon  the  theory  of  the 
defendant's  personal  participation  in  the  operation  which  finally 
resulted  in  the  death  of  his  wife.  The  previously  expressed 
intention  of  the  defendant  to  another  witness  was,  of  course, 
powerfully  corroborative  of  the  commonwealth's  case.  The  tes- 
timony of  these  witnesses,  whose  natural  bias,  if  they  had  any, 
would,  because  of  their  previous  friendship  for  him,  have  been 
with  the  defendant  was  opposed  by  the  simple  though  emphatic 
-denial  of  the  defendant. 


Digitized  by  VjOOQ IC 


COMMONWEALTH  v.  PAGE.  229 

1897.]  Opinion  of  the  Court. 

The  issue  was  a  very  simple  one.  It  was  exclusively  for  the 
jury,  under  proper  instructions  from  the  court.  Such  instruc- 
tions we  think  they  had.  We  are  not  prepared  to  say  that  the 
verdict  of  the  jury  was  not  warranted  by  the  facts.  We  ai-e  of 
the  opinion  that  the  judgment  of  the  court  below  should  be,  as 
it  now  is,  affirmed,  and  the  record  is  remitted  to  the  court 
below  with  directions  that  the  defendant  be  remanded  to  the 
Western  Penitentiary  to  serve  that  portion  of  the  sentence  yet 
unserved  at  the  time  this  appeal  was  perfected,  to  wit:  the 
81st  day  of  July,  1897. 


W.  S.  Taylor  v.  John  Sattler  and  George  P.  Bickel,  Ap- 
pellants. 

Practice,  Superior  Court— Appeals— Defective  assignment. 

An  assignment  of  error  is  defective  under  Rule  15  of  the  Superior  Court 
which  assigns  for  error  the  whole  charge  without  further  specification. 

The  purpose  of  an  assignment  of  error  is  to  place  upon  the  records  of 
the  appellate  court  the  specific  ground  of  complaint  on  the  part  of  the  ap- 
pellant. 

Appeals— Beview— Theory  of  trial  below  foUowed. 

A  case  will  be  treated  in  the  appellate  court  as  it  was  tried  below.  It 
must  be  regarded  as  the  trial  judge  was  led,  to  view  it  from  the  pleadings, 
tlie  evidence  and  the  contentions  of  counsel.  The  appellate  court  ought 
not  to  consider  whether  it  might  or  should  have  been  tried  on  some  theory 
that  would  have  led  to  a  different  result ;  when  no  radical  error  is  mani- 
fest the  appellate  court  will  adhere  to  the  theory  of  the  case  which  the 
parties  adopted,  and  in  view  of  which  the  court  instructed  the  jury. 

Appeals— Review— Appellant  may  not  shift  theory  of  the  ease. 

Where  tho  yerdict  of  the  jury  established  the  liability  of  the  defendants 
upon  the  theory  of  the  case  by  which  they  chose  to  have  it  tested,  they  can- 
not be  permitted  on  appeal  to  change  their  ground  and  allege  that  the  case 
should  have  been  treated  in  accordance  with  a  view  not  presented  on  tlie 
trial. 

Attachment  under  act  of  \S69— Bond— Action— Damages. 

An  action  may  be  maintained  on  a  bond  given  in  an  attachment  proceed- 
ing under  the  Act  of  March  17,  1869,  P.  L.  8  as  amended  by  the  Act  of 
May  24,  1887,  P.  L.  197,  where  there  has  been  a  failure  to  prosecute  the 
action  with  effect  or  where  the  attachment  has  been  quashed,  but  recovery 
in  such  action  is  limited  to  legal  costs,  fees  and  damages  sustained  by  rea* 
•on  of  the  attachment. 


Digitized  by  VjOOQ IC 


230  TAYLOR  v.  SATrLER. 

Statement  of  Facts — Charge  of  Couit.  [6  Pa.  Superior  Ct; 

Argued  April  12,  1897.  Appeal,  No.  7,  April  T.,  1897,  by 
defendants,  from  judgment  of  C.  P.  No.  3,  Allegheny  County, 
February  Tenn,  1894,  No.  534,  on  verdict  for  plainti£F.  Before 
Rice,  P.  J.,  Willard,  Wickham,  Beaver,  Reedeb,  Oblady 
and  Smith,  JJ.    Affirmed.    Reedeb,  J.,  dissents. 

Assumpsit  on  a  bond  given  in  a  writ  of  attachment  issued 
pursuant  to  the  act  of  1869.    Before  Kennedy,  P.  J. 

The  facts  sufficiently  appear  in  the  charge  of  the  court  below: 
On  or  about  April  1, 1891,  John  Sattler,  one  of  the  defend- 
ants in  the  case,  commenced  an  action  against  the  plaintiff, 
Mr.  Taylor,  by  an  attachment  and  proceeding  under  one  of  our 
statutes,  and  that  attachment  was  served  or  executed  on  or 
about  the  first  of  May  following,  attaching  certain  property  of 
the  plaintiff,  W.  S.  Taylor.  At  the  time  of  the  issuing  of  the 
attachment,  the  plaintiff  in  that  action,  Mr.  Sattler,  as  he  was 
required  to  do,  gave  a  bond,  with  the  other  defendant  here, 
George  P.  Bickel,  as  surety,  the  condition  of  that  bond  being 
that  he,  Sattler,  would  prosecute  his  attachment  and  proceeding 
to  success,  or,  failing  therein,  he  would  pay  to  Mr.  Taylor  any 
damage  or  loss  accruing  to  him  by  reason  of  this  attachment. 

The  attachment  was  issued  about  the  first  of  April,  1891, 
and  served  about  the  first  of  May  of  the  same  year.  That  attach- 
ment remained  until  May  of  1893,  upwards  of  two  years,  when 
it  was  dissolved  or  quashed  by  an  order  of  court ;  in  other 
words,  Mr.  Sattler  failed  to  sustain  his  attachment  proceedings, 
and  then  Mr.  Taylor,  as  he  had  a  right  to  do,  brought  an  action 
upon  the  bond  that  had  been  given  by  Mr.  Sattler,  with  Bickel 
as  surety,  to  recover  the  damages  which  he  alleged  he  sustained 
by  reason  of  the  issuing  and  continuance  of  this  attachment  for 
something  like  upwards  of  two  years,  and  that  action  you  have 
been  sworn  to  try  in  this  case.  It  is  admitted  by  the  pleadings 
in  this  case  by  the  defendants  that  this  property  of  the  plaintiff, 
was  duly  attached.  In  their  affidavit  of  defense  they  do  not 
deny  that  the  property  was  attached  under  the  proceedings  com- 
menced by  Mr.  Sattler,  and  they  do  not  deny  that  they  failed  to 
sustain  that  attachment  proceeding.  And  hence  Mr.  Taylor  is 
entitled  to  recover  in  this  action  damages,  if  any,  which  he  has 
Buff6i*ed  by  reason  of  the  attachment.    The  property  attached, 


Digitized  by  VjOOQ  IC 


TAYLOR  r.  SATrLER.  231 

1B97.]  Charge  of  Court. 

consisted  of  tools  used  in  the  diilling  of  oil  wells.  You  have 
heard  them  described ;  and  Mr.  Taylor  has  given  to  you  the 
cost  of  those  tools,  and  his  estimate  of  their  value  at  the  time  of 
the  attachment.  The  most  of  them  were  second-hand  tools,  but 
he  alleges  they  were  worth  at  least  two  thirds  of  their  original 
cost,  and  he  has  given  you  in  detail  the  cost  of  the  tools  that 
were  attached.  He  claims  that  they  were  a  total  loss  to  him  ; 
that  this  attachment  remained  in  force  for  upwards  of  two  years, 
and  in  the  meantime  the  tools  all  went  to  destruction.  He  says 
that  whatever  was  left  there,  if  anything,  was  worthless,  and  he 
therefore  asks  at  your  hands  a  verdict  for  all  the  tools,  because 
they  were  a  total  loss  to  him. 

It  appears  in  the  proceeding,  gentlemen,  that  a  portion  of  the 
tools,  however,  at  the  time  of  the  attachment,  were  in  the  well 
which  was  in  process  of  drilling,  and  were  fast  there  and  were 
never  gotten  out.  Of  course,  for  those  the  plaintiff  is  not 
entitled  to  recover.  He  does  not  suffer  any  loss  by  reason  of 
the  attachment  upon  those  articles  that  were  at  the  time  fast  in 
the  well.  Of  course,  the  attachment  proceeding  did  not  increase 
that  loss,  or  did  not  cause  the  loss  of  those  tools,  and  as  to.  them 
he  is  not  entitled  to  recover.  The  plaintiff  admits  that,  and  his. 
counsel  frankly  stated  that  you  may  omit  those  in  your  consid- 
eration in  making  up  your  verdict.  But  he  claims,  as  to  the  other 
tools  that  were  on  the  ground,  to  recover  their  full  value  at  the- 
time,  and  his  estimate  of  them,  and  the  estimate  of  his  witnesses,, 
is  something  upwards  of  $900.  He  claims,  in  addition,,  for  loss., 
of  time,  some  $18.00,  and  railroad  fare  $10.00,  making  $28.00 
actual  loss  or  outlay  incurred  by  him  by  reason  of  the  attach  • 
ment,  in  having  to  attend  it  here. 

In  substance  that  is  plaintiff's  claim,  amounting  in  the  aggre* 
gate  to  something  like  $900  or  $1,000,  and  for  that  he  asks  a 
verdict  at  your  hands.  The  defendants,  while  admitting  by 
their  affidavit  of  defense  that  these  tools  were  attached,  and  that 
they  did  remain  under  the  attachment  for  upwards  of  two  years^ 
yet  claim  that  a  large  number  of  the  tools  were  in  this  well,  and 
a  total  loss  to  the  plaintiff  irrespective  of  the  attachment.  They 
claim  that  there  were  other  tools  in  the  well  besides  those 
admitted  to  be  there  by  the  plaintiff.  That  is  for  your  coosid- 
eration.  Any  tools  you  find  were  in  this  well,  and  lost  by  rea- 
son of  being  there,  of  coui'se   the  plaintiff  is  not  entitled  to 


Digitized  by  VjOOQ IC 


282  TAYLOR  v.  SATrLER. 

Charge  of  Court.  [6  Pa.  Saperior  Ct. 

recover  for.  The  plaintiff  admits  that ;  but  he  gives  you,  as  he 
claims,  a  complete  list  of  those  articles,  and  says  that  those  are 
all  the  articles  in  the  well,  and  only  for  those  should  there  be 
any  reduction  made  from  his  claim. 

The  defendants  claim,  further,  that  these  tools  that  were 
there,  and  attached — that  were  not  in  the  well  I  mean,  but 
that  were  taken  under  this  attachment — were  not  of  the  value 
that  the  plaintiff  puts  upon  them ;  that  they  were  second-hand 
tools  and  worth  much  less  in  value.  That  is  another  question 
for  you  to  determine :  what  the  tools  were  actually  worth  that 
were  not  in  the  well — what  they  were  fairly  and  reasonably 
worth  in  the  market.  For  that  amount  you  are  to  allow  the 
plaintiff,  if  they  were  not  left  there  at  the  time  the  attachment 
was  dissolved,  and  in  the  same  condition  that  they  were  at  the 
time  the  attachment  was  issued.  In  other  words,  if  the  goods 
were  either  lost  or  destroyed,  or  injured,  by  reason  of  the  at- 
tachment, for  that  loss,  destruction  or  injury  the  plaintiff  would 
be  entitled  to  recover  in  this  action.  But  if  they  were  there  in 
the  same  condition  when  the  attachment  was  dissolved  that  they 
were  at  the  time  the  attachment  was  issued,  and  the  plaintiff 
could  have  had  them  by  going  for  them,  then  he  did  not  suffer 
any  loss.  But  the  plaintiff  claims  that  they  were  a  total  loss 
by  reason  of  this  attachment;  and  you  will  bear  in  mind  that 
this  attachment  remained  there  for  some  two  years.  If  the 
property  was  left  without  proper  care  for  that  time,  of  course 
it  would  be  liable  to  deteriorate  in  value. 

Now,  then,  whatever  loss  or  damage  the  plaintiff  suffered  by 
reason  of  this  attachment,  continuing  in  force  for  upward  of  two 
years,  for  that  amount,  if  any,  you  will  allow,  by  your  verdict 
in  this  case,  in  favor  of  the  plaintiff. 

Counsel  for  defendants  have  asked  us  to  instruct  you  as 
follows : 

1.  That  to  recover  damages  in  this  case  by  reason  of  the 
attachment,  the  same  must  be  clearly  proven.  Answer :  This 
point  is  affirmed. 

2.  That  if  it  appears  to  the  satisfaction  of  the  jury  that  the 
loss,  if  any,  in  this  case,  was  caused  by  the  negligence  of  the 
plaintiff  himself,  in  not  looking  after  his  property  when 
the  attachment  was  dissolved,  the  plaintiff  cannot  recover. 
Anitter :  This  point  is  affirmed. 


Digitized  by  VjOOQ  IC 


TAYLOR  V.  SATTLER  233 

1897.]  Charge  of  Court— Opinion  of  the  Court. 

8.  That  it  was  clearly  the  duty  of  the  plaintiff  to  look  after 
his  property  in  some  reasonable  time  after  the  attachment  was 
dissolved.  Answer:  This  point  is  aflSrmed.  You  will  recollect 
in  this  connection  that  the  plaintiff  maintains  that  the  property, 
whatever  was  there,  was  utterly  worthless  to  him  at  the  time  of 
the  dissolution  of  the  attachment,  while  the  defendants  main- 
tain that  it  was  as  good  as  when  the  attachment  was  issued. 

4.  That  the  sheriff's  return  in  this  case  is  not  in  evidence 
properly,  and,  while  the  attachment  was  issued,  the  alleged 
service  of  the  same  is  denied  by  the  alleged  garnishee,  Fred. 
Opperman,  and  is  not  binding  on  defendants.  Answer :  This 
point  is  refused.  As  I  have  said,  the  defendants  have  not 
denied,  in  their  affidavit  of  defense,  that  the  attachment  was 
issued  and  served ;  in  other  words,  they  have  not  denied  that 
this  property  was  attached,  as  claimed  by  the  plaintiff. 

To  which  charge  of  the  court  counsel  for  the  defendants 
except,  and,  at  their  instance,  bill  sealed. 

Error  assigned  was  to  the  charge  of  the  court  reciting  same. 

A.  H,  Rowand  and  James  Fitzsimmons^  with  them  R.  H.  Row- 
andf  for  appellants. — The  case  discloses  no  evidence  that  will 
warrant  the  judge  in  submitting  to  the  jury  the  question  as  to 
the  amount  of  damages  which  were  indirect  and  consequential. 
In  this  case  the  entire  charge  of  the  court,  which  is  practi- 
cally assigned  for  error,  shows  that  the  court  mistook  the  law 
of  this  case  and  allowed  the  plaintiff  below,  and  appellee  here, 
to  recover  for  that  which  was  not  comprehended  under  the 
terms  or  provisions  of  that  statute,  or  of  the  bond  to  be  given 
thereunder. 

It  is  scarcely  necessary  to  say  anything  more  than  to  refer  to 
the  cases  of  the  Com.  v.  Land  and  Improvement  Co.,  163  Pa. 
99;  Berwald  v.  Ray,  165  Pa.  192. 

J.  M.  Stoner^  with  him  F,  R.  Stoner^  for  appellee. 

Opinton  by  Smith,  J.,  October  18, 1897  : 

In  Com.  V.  Swayne,  1  Pa.  Superior  Ct.  547,  this  court  ex- 
pressed its  disapproval  of  the  practice  of  assigning  for  error  the 
entire  charge,  without  further  specification,  for  reasons  thus 


Digitized  by  VjOOQ IC 


234  TAYLOR  v.  SATTLKR 

Opinion  of  the  Court.  [6  Pa.  Superior  Ct. 

tersely  stated  by  our  Brother  Beaybb  :  "  Rule  15  of  this  court 
provides  that  each  error  relied  on  must  be  assigned  particularly 
and  by  itself.  What  is  the  error  relied  upon  in  this  assign- 
ment? Is  it  that  the  charge  of  the  court  taken  as  a  whole  was 
inadequate,  or  that  it  was  unfair  to  the  defendant,  or  that  it 
failed  to  state  the  evidence  specifically  and  faiiiy,  or  that  the 
conclusions  of  law  therein  set  forth  were  erroneous  ?  We  can- 
not tell.  The  particular  error  complained  of  should  be  specifi- 
cally set  forth,  so  that  the  attention  of  the  court  may  be  directed 
thereto.  This  assignment,  therefore,  lacking  as  it  does  the 
essential  element  of  particularity,  is  not  considered."  This 
ruling  is  the  logical  outcome  and  application  of  the  proposition 
laid  down  by  the  Supreme  Court  that :  "  The  purpose  of  an 
assignment  of  error  is  to  place  upon  the  records  of  this  court 
the  specific  ground  of  complaint  on  the  part  of  the  appellant : " 
Rosenthal  v.  Ehrlicher,  164  Pa.  396,  Williams,  J. 

It  is  well  settled  that,  in  the  absence  of  a  request  for  specific 
instructions,  mere  errors  of  omission  in  the  charge  can  be  com- 
plained of  in  the  appellate  court  only  in  exceptional  cases ;  as, 
for  uistance,  when  the  presentation  of  the  question  involved  is 
so  imperfect  and  inadequate  as  either  to  leave  the  jury  practi- 
cally without  direction  on  important  points,  or  tends  to  mislead 
tliem,  as  in  Tietz  v.  Traction  Co.,  169  Pa.  616 ;  Richards  v. 
Willard,  176  Pa.  181 ;  when  some  aspect  of  the  evidence  de- 
mands that  the  attention  of  the  jury  should  be  called  to  it  as 
involving  material  questions  for  them  to  consider  and  deter- 
mine, as  in  cases  of  which  Herstine  v.  R.  R.  Co.,  151  Pa.  244, 
is  a  type ;  when  prominence  is  given  to  evidence  on  one  side, 
without  adequate  reference  to  evidence  in  contradiction,  as  in 
Herrington  v.  Guernsey,  177  Pa.  176;  Lerch  v.  Bard,  177  Pa. 
197 ;  or  where,  in  a  trial  on  indictment,  it  is  the  duty  of  the 
court  to  fully  instruct  the  jury  with  respect  to  the  ingredients 
of  the  offense  and  the  evidence  necessary  to  convict.  As  to 
errors  of  commission,  there  can  be  little  difficulty  in  pointing 
them  out,  if  not  specifically,  at  least  by  description,  as  indicated 
in  Com.  v.  Swayne,  supm.  Even  in  the  rare  instances  in  which 
the  charge  embraces  but  one  point,  or  raises  but  one  question, 
the  practice  of  assigning  it  in  lump  is  not  to  be  commended. 
It  is,  in  all  cases,  more  in  conformitj'  with  the  spirit  and  pur- 
pose of  the  rule  to  present  the  portion  alleged  to  be  erroneous 


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TAYLOR  V.  SATTLER.  235 

1897.]  Opinion  of  the  Court. 

"  particularly  and  by  itself,"  separated  from  extraneous  matter. 
If  this  cannot  readily  be  done,  the  specific  character  of  the 
alleged  error  can  be  clearly  indicated. 

In  the  case  before  us,  as  in  Voskamp  v.  Conner,  173  Pa.  109, 
the  assignment  is  ^^  as  far  from  being  specific  as  it  can  well  be 
made ; "  and,  as  was  said  in  Walls  v.  Campbell,  125  Pa.  346,  if 
we  are  to  consider  it,  "  we  must  treat  the  case  here  as  it  was 
tried  below."  We  must  regard  it  as  the  trial  judge  was  led  to 
view  it  from  the  pleadings,  the  evidence,  and  the  contentions 
of  counsel.  We  are  not  to  consider  whether  it  might  or  should 
have  been  tried  on  some  theory  that  would  have  led  to  a  differ- 
ent result.  When  no  radical  error  is  manifest,  this  court  will 
adhere  to  the  theory  of  the  case  which  the  parties  adopted,  and 
in  view  of  which  the  court  instructed  the  jury :  Griffith  v.  Knarr, 
1  Pa.  Superior  Ct.  379.  "A  judge  who  submits  a  case  to  a 
jury  in  the  manner  in  which  it  is  presented  by  counsel,  ought 
not  to  be  convicted  of  error  for  not  presenting  it  in  some  other 
way  to  which  his  attention  had  not  been  called : "  Hartley  v. 
Decker,  89  Pa.  470,  Paxson,  J.  To  determine,  therefore, 
whether  the  trial  judge  may  be  convicted  of  error  in  the  charge 
before  us,  we  must  examine  the  case  as  it  was  presented  on  the 
trial,  and  decide,  not  whether  the  theory  on  which  the  parties 
chose  to  present  it  was  the  correct  one,  but  whether  the  charge 
of  the  court,  upon  that  theory,  can  justly  be  complained  of  by 
the  appellants. 

The  declaration  alleges,  as  breach  of  the  condition  of  the 
bond,  that  the  obligors  did  not  prosecute  the  attachment  with 
effect,  or  recover  a  judgment  therein,  or  pay  the  legal  costs  and 
damages  which  the  defendant  therein — the  plaintiff  here — sus- 
tained by  reason  of  the  attachment ;  and  f ui-ther  avers,  as  the 
direct  and  specific  cause  of  damages  thus  sustained,  '^  that  the 
defendant  took  under  said  attachment  and  afterward  converted 
to  his  own  use,"  the  property  attached.  The  plea  of  nonas- 
sumpsit,  by  which  this  was  met,  was  merely  a  denial  of  the 
execution  of  the  bond  and  the  alleged  breach  of  condition ;  and 
as  the  affidavit  of  defense  is  not  printed,  it  does  not  appear  tliat 
anything  else  was  in  controversy.  On  the  trial,  the  execution 
of  the  bond,  with  the  failure  to  prosecute  with  effect,  to  recover 
judgment,  and  to  pay  the  legal  costs  and  damages,  were  not. 
controverted ;  and  the  evidence  left  nothing  in  issue  but  the 


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236  TAYLOR  v.  SATTLER 

Opinion  of  the  Court.  [6  Pa.  Superior  Ct. 

nature,  cause  and  extent  of  the  damages,  as  specifically  laid — 
that  is  to  say,  the  loss  to  the  defendant  in  the  attachment  from 
the  alleged  possession  and  conversion  of  the  goods,  under  the 
writ,  by  the  plaintiff  therein.  The  possession  taken  by  the 
plaintiff  in  the  attachment,  of  the  premises  on  which  the  de- 
fendant's goods  had  been  left,  included  the  custody  of  those 
goods,  and  as  to  the  greater  portion  of  them  nothing  further  is 
shown.  The  plaintiff  in  this  action  contended,  on  the  trial,  that 
by  reason  of  this  possession  they  were  lost  to  him.  This  was 
denied  by  the  defendants.  This  was  the  only  matter  in  con- 
troversy. The  evidence  on  both  sides  was  directed  solely  to 
the  condition  and  value  of  the  property  when  the  attachment 
was  issued  or  executed,  and  when  it  was  dissolved.  There  is 
no  assignment  of  error  to  the  admission  of  evidence  to  main- 
tain this  issue  on  the  part  of  the  plaintiff,  nor  to  the  rejection 
of  evidence  offered  for  the  like  purpose  by  the  defendants.  As 
the  sheriff's  return  is  not  printed,  it  does  jiot  appear  that  the 
officer  took  possession  of  the  property,  or  even  saw  it.  Whether 
he  had  incurred  any  liability  in  the  premises  is  a  question  not 
raised  on  the  trial  nor  presented  by  the  record.  As  already 
said,  the  case  is  to  be  treated  here  as  it  was  tried  below ;  and 
as  this  question  was  not  tried  below,  there  is  nothing  to  war^ 
rant  its  consideration  here. 

With  the  pleading  and  evidence  before  him,  and  having  heard 
the  counsel  as  to  the  matters  which,  in  their  view  of  the  case, 
were  involved,  the  trial  judge  thus  stated  the  issue  to  be  deter- 
mined by  the  jury :  "  The  plaintiff  maintains  that  the  property, 
whatever  was  there,  was  utterly  worthless  to  him  at  the  time 
of  the  dissolution  of  the  attachment,  while  the  defendants  main- 
tain that  it  was  as  good  as  when  the  attachment  issued."  Since 
this  portion  of  the  charge  is  excluded  from  the  assignment  of 
error,  it  must  be  accepted  as  an  accurate  statement  of  the  issue 
made  by  the  parties.  The  trial  judge  further  instructed  the 
jury  that  the  damages  recoverable  were  such  as  accrued  "by 
reason  of  the  attachment; "  and  that,  "if  the  goods  were  either 
lost  or  destroyed  or  injured  by  reason  of  the  attachment,  for 
that  loss,  destruction  or  injury,  the  plaintiff  would  be  entitled 
to  recover  in  this  action.  But  if  they  were  there  in  the  same 
condition  when  the  attachment  was  dissolved  that  they  were  at 
the  time  the  attachment  was  issued,  and  the  plaintiff  could 


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TAYLOR  V,  SATTLKR.  237 

1897.]  Opinion  of  the  Court. 

have  had  them  by  going  for  them,  then  he  did  not  suffer  any 
loss."  He  further  limited  the  extent  of  recovery  by  excluding 
from  consideration  tools  which  had  become  lodged  in  the  well 
and  could  not  be  withdrawn.  In  the  view  of  the  case  in  which 
the  parties  united  on  the  trial,  this  was  certainly  as  favorable 
to  the  defendants  as  they  had  a  right  to  expect.  As  to  the 
measure  of  damages,  it  is  entirely  consistent  with  the  law  on 
that  subject  as  stated  in  Com.  v.  Improvement  Co.,  163  Pa.  99, 
and  in  Berwald  v.  Ray,  165  Pa.  192. 

Thus  the  issue  was  joined,  and  the  case  submitted  to  the 
jury,  on  the  theory  of  the  rights  and  liabilities  of  the  parties 
which  their  counsel  presented ;  neither  the  admission  nor  the 
rejection  of  evidence  is  complained  of ;  and  the  specific  instruc- 
tions respecting  the  duty  of  the  plaintiff,  and  the  conditions 
under  which  he  would  not  be  entitled  to  recover,  were  such  as 
the  appellants  in  their  points  asked  the  court  to  give.  The  ver- 
dict established  the  liability  of  the  appellants  upon  the  theory 
of  the  case  by  which  they  chose  to  have  it  tested.  They  can- 
not now  be  pei-mitted  to  change  their  ground  and  allege  that 
the  case  should  have  been  treated  in  accordance  with  a  view 
not  presented  on  the  trial :  Gowan  v.  Glaser,  3  Cent.  Rep.  109. 
Their  responsibility  for  the  seizure  and  retention  of  the  prop- 
erty under  the  attachment  having  been  settled  by  the  verdict, 
it  is  too  late  for  them  to  protest  that  they  had  no  part  in  the 
course  of  action  by  which  the  plaintiff  was  injured,  and  that  he 
should  seek  redress  from  the  sheriff. 

Treating  the  case  here  as  it  was  tried  below, — on  the  theory 
upon  which  both  parties  proceeded,  and  which  was  substantially 
followed  by  the  trial  judge, — there  is  no  error  in  the  charge, 
the  verdict  was  justified  by  the  evidence,  and  the  judgment 
must  be  affirmed. 

Judgment  affirmed. 

Rbedeb,  J.,  dissents. 


Digitized  by  VjOOQ IC 


238  BUILDING  ASSOCIATION  v.  WAMPOLE. 

Syllabus— Statement  of  Facts.     [6  Pa.  Superior  Ct. 


The  No.  2  Assistance  Building  and  Loan  Association, 
Appellant,  v.  Henry  K.  Wampole. 

Appeals — Befiisal  of  judgment — Practice  on  review. 

The  appellate  court  will  not  interfere,  where  rules  for  judgment  have 
been  refused,  in  doubtful  and  uncertain  cases,  but  will  do  so  where  the 
case  is  clear  and  free  from  doubt. 

Practice,  C  P,— Sufficiency  of  affidavit—Landlord  and  tenant,— Sheriffs 
sate  of  leased  property. 

The  plaintiff's  statement  showing  liability  for  rents  accruing,  subsequent 
to  sheriffs  sale,  by  tenant  to  sheriff's  vendee,  who  was  also  assignee  of  the 
lease  from  the  former  owner,  an  affidavit  is  insufficient  which  admits  no- 
tice of  plaintiff's  claim  for  rent,  a  payment  of  rent  after  such  notice  and 
a  notice  of  intended  discontinuance  after  expiration  of  the  current  year, 
and  which  attempts  to  limit  and  modify  the  effects  of  such  acts  by  stating 
reasons  which  influenced  such  conduct  at  the  Ume.  Intentions  in  such 
cases  are  not  the  subject  of  inquiry.  The  couit  can  only  inquire  into  the 
legal  effect  of  admitted  facts. 

Argued  Oct.  6,  1897.  Appeal,  No.  29,  Oct.  T.,  1897,  by 
plaintiff,  from  order  of  C.  P.  No.  2,  Phila.  Co.,  Dec.  T.,  1896, 
No.  187,  discharging  rule  for  judgment  for  want  of  a  suflScient 
affidavit  of  defense.  Before  Rice,  P.  J.,  Wickham,  Beaver, 
Rbedeb,  Orlady,  Smith  and  Porter,  JJ.    Reversed. 

Appeal  from  judgment  of  magistrate  in  a  suit  for  rent  under 
a  lease. 

It  appears  from  the  record  that  a  statement  of  claim  was  filed 
by  the  plaintiff  to  which  the  defendant  demurred.  This  de- 
murrer was  overruled  by  the  court  below,  with  leave,  where- 
upon the  defendant  filed  an  affidavit  of  defense ;  upon  which 
the  plaintiff  took  a  rule  for  judgment,  which  rule  the  court  dis- 
charged and  an  exception  was  taken  thereto  by  the  plaintiff 
under  the  act  of  assembly. 

From  the  plaintiff's  statement  the  following  allegations  ap- 
pear: 

Henry  K.  Wampole,  the  defendant,  was  the  lessee  under  a 
lease  for  a  factory  building  from  James  A.  Weir,  landlord,  for 
one  year  from  February  1,  1896,  at  the  rent  of  f  100  per  month 
(reduced  by  the  parties  to  #76.00  per  month). 


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BUILDING  ASSOCIATION  v.  WAMPOLE.  239 

1897.]  Statement  of  Facts. 

The  premises  were  sold  by  the  sheriff  as  of  the  landlord,  Weir, 
to  the  building  association,  a  mortgagee,  the  plaintiff  herein, 
and  the  lease  was  assigned  by  Weir  to  the  plaintiff,,  after  the 
sheriffs  deed  was  acknowledged.  After  that  assignment,  Warn- 
pole  paid  the  rent,  $76.00  per  month,  to  the  building  associa- 
tion for  several  months,  and,  afterwards,  on  August  26,  1896, 
gave  written  notice  to  the  association  that  he  wished  the  lease 
discontinued  after  the  expiration  of  the  current  tei*m  (Febru- 
ary 1,  1897),  tlie  lease  containing  a  provision  for  renewal  until 
notice  should  be  given. 

He  paid  the  rent  up  to  and  including  that  due  October  1, 
1896,  but  refused  to  pay  that  falling  due  November  1,  1896, 
f 75.00,  and  it  was  for  that  amount  that  this  suit  was  brought. 

To  the  statement,  the  defendant  filed  a  special  demurrer,  and 
the  court  overruled  it  with  leave,  etc.  He  then  filed  an  affi- 
davit of  defense  which  was  as  follows : 

That  he  is  the  defendant  in  the  above  entitled  cause  and  has 
a  just  and  true  defense  to  the  whole  of  the  plaintiff's  claim,  of 
the  following  nature  and  character,  to  wit : 

That  at  the  time  the  lease  was  entered  into  by  him  with  James 
A.  Weir,  on  February  1,  1896,  there  was  a  mortgage  executed 
by  the  said  James  A.  Weir,  against  the  said  demised  premises, 
dated  September  1, 1891. 

That  on  March  24, 1894,  a  judgment  was  entered  against  the 
said  James  A.  Weir,  and  that  the  said  premises  were  sold  at 
sheriff's  sale,  to  the  plaintiff,  on  the  2d  day  of  March,  1896,  and 
a  deed  therefor  made  by  the  sheriff  to  the  said  plaintiff,  dated 
March  7, 1896. 

That  the  said  defendant  occupied  said  premises  together 
with  his  partner,  Frank  V.  Wireman,  for  a  few  months,  but 
the  said  Henry  K.  Wampole  and  Frank  V.  Wireman  dissolved 
partnership,  and  that  deponent  left  said  premises  at  least  three 
months  prior  to  the  date  of  said  sheriff's  sale,  so  that  when 
the  said  sale  was  made  he  was  no  longer  in  possession  of 
said  premises,  and  the  rent  for  said  premises  had  been  paid  by 
Frank  V.  Wireman  to  James  A.  Weir,  the  then  owner  of  the 
building,  and  accepted  by  him,  and  subsequent  to  the  sale  he 
paid  it  to  plaintiff,  who  thereby  accepted  said  Wireman  as  their 
tenant. 

Your  deponent  did  not  know  that  said  premises  had  been 


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210  BUILDING  ASSOCIATION  r.  WAMPOLE. 

Statement  of  Facts — Arguments.    [6  Pa.  Superior  Ct 

sold  at  sheriff's  sale  to  the  No.  2  Assistance  Building  &  Loan 
Association,  or  to  any  one,  until  five  months  subsequent  to  said 
sale,  to  wit :  on  the  20th  day  of  August,  when  the  agent  of  plain- 
tiff called  upon  him  and  informed  him  of  these  facts,  and  he 
thereupon,  being  unadvised  as  to  his  rights,  paid  to  said  agent 
of  plaintiff  the  sum  of  '1^25.00,  and  which  was  the  only  sum  paid 
by  your  deponent  to  plaintiff. 

Your  deponent  did  not  pay  this  under  the  lease,  or  because 
he  was  bound  by  the  lease,  but  because  at  that  time  he  thought 
he  might  have  been  responsible  for  the  occupancy  of  the  prem- 
ises by  his  previous  partner. 

That  thereupon,  or  a  few  days  thereafter,  to  wit :  on  the  26th 
of  August,  he  notified  the  plaintiff  that  he  was  not  responsible 
under  said  lease  and  wislied  it  discontinued.  Such  notice  was 
not  intended  as,  nor  did  it  convey,  any  agreement  or  undertak- 
ing to  be  responsible  under  said  lease  or  any  engagement  that 
he  was  so  responsible,  but  that,  on  the  contrary,  your  deponent 
neither  made  any  agreement  to  become  responsible  under  said 
lease,  and  never  occupied  said  premises  or  paid  any  rent  to  the 
plaintiff  under  said  lease.  He  has  always  i-epudiated  any  obliga- 
tion to  be  bound  by  said  lease  and  still  does.  There  was  never 
any  agreement  between  him  and  the  plaintiff  either  by  any  com- 
munication or  contract,  verbal  or  written,  whereby  he  agreed  to 
be  or  become  the  tenant  of  said  plaintiff,  or  be  bound  by  the 
provisions  of  the  said  lease. 

All  of  which  your  deponent  believes  to  be  true,  and  therefore 
avers  and  expects  to  be  able  to  prove  upon  the  trial  of  the  cause. 

Error  asngned  was  refusal  to  enter  judgment  against  tlie 
defendant  for  want  of  a  sufficient  affidavit  of  defense. 

J.  H.  Sloan^  for  appellant. — It  is  submitted  that,  even  if  there 
had  not  been  an  assignment  of  the  lease  to  the  plaintiff,  it  had 
a  right  as  sheriff's  vendee  to  affirm  the  lease  under  the  Act  of 
June  16,  1836,  sec.  119,  P.  L.  755,  which  gives  the  same  rem- 
edies to  recover  rent  as  the  defendant  in  the  execution  had. 
See  1  Pepper  &  Lewis'  Dig.  title  *'  Execution,"  page  1993,  sec. 
164,  and  authorities  cited.  It  is  unnecessary,  however,  to  con- 
sider this  aspect  of  the  question  in  view  of  the  assignment  of 
the  lease  by  the  defendant  in  the  execution  to  this  plaintiff. 


Digitized  by  VjOOQ IC 


BUILDING  ASSOCIATION  v.  WAMPOLR  241 

1898.]  Arguments — OpiDion  of  the  Court. 

J.  Campbell  Lancaster^  for  appellee. — There  is  but  a  narrow 
question  of  law  raised  by  the  facts  in  this  case,  and  that  is 
whether  the  Act  of  June  16,  1836,  P.  L.  755,  par.  119  (1  P.  & 
L.  Dig.  pp.  1993-4,  par.  164),  has  altered  the  rule  of  the  com- 
mon law  as  to  the  effect  upon  a  tenant  under  a  lease,  by  rea- 
son of  the  sale  of  the  leased  premises  under  an  incumbrance 
antedating  said  lease.  See  on  this  point  Funk  v.  Voneida,  11 
S.  &  R.  109,  particularly  the  opinion  of  Mr.  Justice  Duncan, 
on  page  112,  citing  the  cases  of  Levett  v.  Withrington,  1  Lutw. 
97  ;  Maule  v.  Ashmeade,  20  Pa.  482 ;  Jackson  &  Gross  on  Land- 
lord and  Tenant,  par.  1015. 

While  there  are  no  cases  on  this  doctrine  precisely,  the  theory 
is  borne  out  in  Duff  v.  Wilson,  69  Pa.  316,  in  which  it  was  held 
that  there  could  be  no  recovery  against  the  surety  of  a  lessee, 
where  the  demised  premises  had  been  sold  at  a  sheriff's  sale 
under  a  mortgage  antedating  the  lease. 

Opinion  by  Beaver,  J.,  December  13,  1897 : 

The  error  complained  of  by  the  appellant  is  the  refusal  of 
the  court  below  "  to  enter  judgment  against  the  defendant  for 
want  of  a  sufficient  affidavit  of  defense."  The  grounds  upon 
which  this  refusal  was  based  are  not  given  and  we  are  left,  there- 
fore, to  seek  them  in  the  plaintiff's  statement  and  the  defend- 
ant's affidavit  of  defense. 

Appeals  under  the  provisions  of  the  act  of  April  18, 1874, 
P.  L.  64,  have  not  been  favored  by  the  Supreme  Court.  From 
Griffith  V.  Sitgreaves,  81*  Pa.  378,  one  of  the  earlier  cases,  to. 
Paine  v.  Kindred,  163  Pa.  638,  the  decisions  have  been  practi- 
cally uniform.  We  may  say,  in  the  language  of  the  latter  case  t. 
"  We  do  not  mean  to  interfere  where  rules  for  judgment  have 
been  discharged  in  the  lower  courts  in  doubtful  and  uncertain 
cases,  but  only  in  such  as  are  very  clear  and  free  of  doubt. "" 
But  where  there  is  a  case  clear  and  free  of  doubt  our  duty  is- 
not  doubtful. 

The  plaintiff^s  statement  shows  it  clearly  entitled  to  the  i*ents,. 
accruing  subsequent  to  the  sheriff's  sale,  under  the  lease  from 
Wier  to  Wampole,  in  accordance  with  the  provisions  of  the- 
119th  section  of  the  Act  of  June  16, 1836,  P.  L.  755.  Doe» 
the  affidavit  of  defense,  giving  the  fullest  effect  to  its  statements,. 
Vol.  VI— 16 


Digitized  by  VjOOQ IC 


242  BUILDING  ASSOCIATION  v.  WAMPOLK. 

Opinion  of  the  Court.  [6  Pa.  Superior  Ct. 

raise  any  issue  of  fact  between  the  plaintiff  and  the  defendant? 
We  think  not. 

The  plaintiff,  as  is  admitted  by  the  defendant,  gave  notice 
subsequently  to  the  sale  of  its  claim  for  rent,  which  was  in 
effect  an  exercise  of  its  option  to  make  him  its  tenant.  The 
defendant  practically  admitted  the  claim  by  paying  part  of  the 
rent.  He  endeavored  to  limit  or  modify  the  effect  of  this  pay- 
ment by  stating  the  reasons  which  influenced  him  to  make  it. 
These,  however,  were  based  entirely  upon  mental  states  and 
processes  which  could  not,  in  the  nature  of  the  case,  be  given 
in  evidence  on  the  trial  of  the  cause. 

His  acknowledgment  of  the  lease  and  of  his  obligation  there- 
under are  further  shown  by  the  notice  given  by  him  to  the  plain- 
tiff, in  accordance  with  the  terms  of  the  lease,  of  his  desire  to 
have  it  discontinued  after  the  expiration  of  the  then  current 
year.  What  his  intention  may  have  been  in  giving  this  notice 
is  not  the  subject  of  inquiry.  We  can  only  inquire  as  to  the 
legal  effect  of  the  admitted  fact. 

There  can  be  no  question  as  to  the  plaintiff's  right  to  recover : 
Menough's  Appeal,  6  W.  &  S.  432.  It  was  not  only  the  pur- 
chaser at  sheriff's  sale  but  was  the  assignee  of  the  lease.  The 
defendant  admitted  its  right  to  the  rent  by  a  payment  in  part 
and  by  doing  such  acts  under  the  lease  as  were  inconsistent  with 
the  claim  of  non-liability  thereunder. 

Under  the  statement  and  affidavit  of  defense,  there  are  no 
facts  for  a  jury  and,  as  we  view  the  law  of  the  case,  the  plain- 
tiff is  entitled  to  judgment. 

The  decree  of  the  court  below  is,  therefore,  reversed  and  judg- 
ment is  now  directed  to  be  entered  for  the  plaintiff  and  against 
the  defendant  for  such  sum  as  to  right  and  justice  may  belong, 
unless  other  legal  or  equitable  cause  be  shown  to  the  court  be- 
low why  such  judgment  should  not  be  so  entered. 

A  motion  for  reargument  was  made  which  was  refused. 

Per  Cubiam,  January  18, 1898 : 

**  The  effect  on  the  lease  of  the  sale  under  a  prior  incumbrance  " 
was  not  overlooked  in  the  consideration  of  the  case  nor  in  the 
opinion  filed  therein*  It  is  expressly  stated  that  "  The  plain- 
tiffs statement  shows  it  clearly  entitled  to  the  rents  accraing 


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BUILDING  ASSOCIATION  v.  WAMPOLR  243 

1898.]  Opinion  of  the  Couit. 

subsequent  to  ttie  sheriflPs  sale  under  the  lease  from  Weir  to 
Wampole  in  accordance  with  the  provisions  of  the  119th  sec- 
tion of  the  Act  of  June  16, 1836,  P.  L.  755."  It  is  further 
considered  in  the  latter  part  of  the  opinion,  in  which  it  is  stated : 
"  There  can  be  no  questiow  f\&  to  the  plaintiff's  right  to  recover: 
Menough's  Appeal,  5  W.  &  S.  432  (1843).  It  was  not  only  the 
purchaser  at  the  sheriff's  sale  but  was  the  assignee  of  the  lease. 
The  defendant  admitted  its  right  to  the  rent  by  a  payment  in 
part  and  by  doing  such  acts  under  the  lease  as  were  inconsist- 
ent with  the  claim  of  nonliability  thereunder." 

Duff  V.  Wilson,  69  Pa.  316,  has  no  possible  application  here. 
In  that  case  the  sheriff's  vendee  elected  to  disaffirm  the  lease 
and  took  possession  of  the  premises,  thereby  evicting  the  ten- 
ant, but  Mr.  Justice  Shabswood  distinctly  says  that  "The 
purchaser  at  the  sheriff's  sale  might  have  affirmed  the  lease  and 
required  the  rent  to  be  paid  to  him,  as  assignee  of  the  reversion." 
The  purchaser  at  sheriff's  sale  under  an  incumbrance  prior  to 
the  lease  can  affirm  or  disaffirm  the  lease  at  his  pleasure.  In 
this  case  the  building  association  chose  to  affirm  it  and  hold  the 
defendant  as  its  tenant  and,  in  effect,  exercised  its  option  by  de- 
manding the  rent. 

The  whole  case  was  fully  considered  and  all  the  points  raised 
in  the  original  hearing  sufficiently  met  in  the  opinion  already 
filed.    The  motion  for  the  reargument  is  therefore  denied. 


William  T.  Leader,  to  the  use  of  Henry  A.  Ingram,  d. 
Wilson  W.  Dunlap,  John  D.  Dunlap  and  Anna  S.  Pettit, 
Appellants. 

AppeaU— Practice,  S,  C. — Dittcretion  of  court — Opening  judgment. 

An  application  to  open  judgment  is  addressed  to  the  discretion  of  the 
court  which  has  not  been  taken  away  by  the  Act  of  May  20, 1891,  P.  L.  101. 

It  is  not  an  abuse  of  discretion  for  the  court  to  refuse  to  open  a  judg- 
ment entered  on  a  verdict  after  a  regular  trial,  where  defendants  counsel 
did  not  notify  him  of  the  time  of  the  tiial,  and  where  the  defendant  had 
actual  notice  that  the  case  would  likely  be  placed  on  the  trial  list  at  the 
term  it  was  tried,  but  gave  no  pei*8ona1  attention  to  the  matter. 


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244  LEADER  v.  DUN  LAP. 

Statement  of  Facts — Opinion  of  the  Ckjurt.    [6  Pa.  Superior  Ct. 

/  Argued  Oct.  14, 1897.  Appeal,  No.  102,  Oct.  T.,  1897,  by 
defendants,  from  order  of  C.  P.  No.  1,  Pliila.  Co.,  March  T., 
1894,  No.  628,  discharging  rule  to  open  judgment,  set  aside  ver- 
dict and  permit  motion  for  a  new  trial  to  be  filed  nunc  pro  tunc. 
Before  Rice,  P.  J.,  Wickham,  Braver,  Smith  and  Por- 
ter, JJ.     AflSrmed. 

Rule  to  open  judgment  and  set  aside  verdict. 

It  appears  from  the  record  that  plaintiff  brought  an  action 
for  alleged  malicious  conspiracy  against  defendants  which  was 
called  for  trial  on  February  2,  1897.  The  case  was  tried  in  the 
absence  of  defendants  and  their  counsel,  and  verdict  and  judg- 
ment entered  for  the  plaintiff  for  $500.  Defendants  entered  a 
rule  to  open  the  judgment  which  was  discharged. 

Other  facts  suflSciently  appear  in  the  opinion  of  the  court. 

'  Error  aligned  was  discharging  rule  to  show  cause  why  judg- 
nient  entered  against  defendants  should  not  be  opened,  etc. 

Wendell  P.  Bowman^  for  appellants. 

John  McDonald^  for  appellee. 

Opinion  by  Rice,  P.  J.,  January  18, 1898 : 

This  is  an  appeal  from  an  order  discharging  a  rule  to  show 
cause  why  judgment  upon  verdict  should  not  be  opened,  the 
verdict  set  aside  and  the  defendants  given  leave  to  file  a  motion 
and  reasons  for  a  new  trial  nunc  pro  tunc.  The  petition  or  affi- 
davit upon  which  the  rule  was  granted  is  not  printed  in  the 
defendants'  paper-book,  but  the  grounds  of  the  application,  as 
disclosed  in  the  depositions,  were,  that  the  defendants  were  pot 
present  at,  and  had  no  actual  notice  of,  the  trial,  until  after 
judgment  had  been  entered  on  the  verdict.  The  reason  alleged 
for  their  failure  to  appear  at  the  trial  is,  that  their  attorney  neg- 
lected to  notify  them  of  the  time  when  it  would  take  place. 
The  allegation  that  illness  was  the  cause  of  his  failure  to  notify 
them  is  not  sustained  by  any  direct  testimony  or,  indeed,  by 
aiiy  competent  and  satisfactory  evidence  of  any  kind.  There 
is  also  an  intimation  that  he  was  in  trouble  on  account  of  some 
criminal  charge  and  absconded,  but  tlie  testimony  of  the  con- 


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LEADER  V.  ©UNLAP.  245 

1S98.]  Opinion  of  the  Court. 

stable,  who  had  the  warrant  for  his  arrest,  shows,  that,  if  he  did 
abscond,  it  was  not  until  after  the  date  of  the  trial  of  the  pres- 
ent case.  Moreover,  there  is  testimony,  that,  at  a  meeting 
between  the  plaintiff  and  one  of  the. defendants  in  December, 
1896,  it  was  agreed,  that  both  parties  should  endeavor  to  have 
the  case  ended  at  that  term  of  court  Therefore,  the  defend- 
ants not  only  had  the  constructive  notice  which  the  trial  list 
gives,  but  also  had  actual  notice  that  an  effort  would  be  made 
to  have  the  case  tried  at  the  term  it  was  tried.  It  was  their 
duty  to  give  some  personal  attention  to  the  matter,  but,  <is  f^ 
as  appears,  they  neither  examined  the  trial  list  for  themselves, 
nor  consulted  their  attorney. 

^  To  sum  up  the  whole  case,  judgment  was  regularly  entered 
upon  a  verdict  after  a  trial  in  due  course  of  law.  If  the  defend- 
ants were  not  present  they  and  their  attorney  were  alone  to 
blame.  To  have  opened  the  judgment  and  granted  a  new  trial 
would  seem  to  have  been  little  less  than  a  pure  matter  of  grace. 
But  granting  to  the  court  the  most  liberal  discretionary  pow^r 
to  relieve  parties  from  defaults  due  to  the  negligence  of  their 
attorneys  that  has  ever  been  claimed,  it  must  be  remembered 
also,  that  the  vigilant  party,  who  has  obtained  a  verdict  and 
judgment,  has  rights,  and  that  there  can  be  no  prompt  dispatch 
of  the  business  in  the  courts  if  they  are  to  be  ignored,  and  ver- 
dicts and  judgments  set  aside  in  a  mere  spirit  of  benevolence 
towards  the  defaulting  party.  Certainly  it  would  not  be  safe 
to  lay  it  down  as  a  rule  (as  we  must  if  we  revei'se)  that  it  is 
an  abuse  of  discretion  for  the  court  to  refuse  to  open  a  judg- 
ment entered  on  a  verdict  after  a  regular  trial,  where  the  de- 
fendants' counsel  did  not  notify  him  of  the  time  of  the  trial, 
even  though  the  defendant  had  actual  notice  that  the  case 
would  likely  be  placed  on  the  li6t  at  the  term  it  was  tried,  and 
gave  no  personal  attention  to  the  matter.  The  application  was 
addressed  to, the  discretion  of  the  court,  which  has  not  been 
taken  away  by  the  Act  of  May  20,  1891,  P.  L.  101 :  Kelber  y. 
Plow  Co.,  146  Pa.  485;  Pfaff  v.  Thomas,  3  Pa.  Superior  GU 
419,  and  cases  there  cited.  An  examination  of  the  case  fails  to 
show  that  the  discretion  was  improperly  exercised;  therefore  it 
is  unnecessary  to  discuss  any  other  question. 

.The  Qrder  is  affirmed  and  the  appeal  dismissed  at  the  cost  of 
the  appellants. 


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24e  HELLER'S  ESTATE. 

Syllaboa-— Statement  of  Facts.     [6  Pa.  Superior  Ct: 


Estate  of  Herman  Heller,  deceased.     Appeal  of  Carter 

&  Company. 

CofUract^Time  is  of  essence  of  a  contract  to  deliver  ehaltels. 
In  mercantile  transactions,  such  as  the  sale  of  ^oods,  time  is  generally 
held  to  be  of  the  essence  of  the  contract ;  and  where  one  of  the  terms  of 
the  contract  provides  a  date  for  the  shipment  or  delivery,  shipment  or  de- 
livery at  the  time  fixed  will  usually  be  regarded  as  a  condition  precedent, 
on  the  failure  to  observe  such  date  the  other  party  may  repudiate  the  en- 
tire contract. 

Contract — Construction—Written  and  printed  parts. 

When  the  written  and  printed  parts  of  a  contract  cannot  be  reconciled, 
the  former  is  presumed  to  have  been  separately  and  particularly  con- 
sidered by  the  parties,  and  to  express  their  exact  agreement  on  the  sub- 
ject. 

Argued  Oct.  21, 1897.  Appeal,  No.  24,  Oct.  T.,  1897,  by 
Carter  &  Co.,  from  decree  of  O.  C.  Phila.  Co.,  Oct.  Sess.,  1890, 
No.  99,  dismissing  appellant's  claim  in  distribution.  Before 
Rice,  P.  J.,  Wickham,  Bbayeb,  Rbedbb,  Orlady,  and  Fob* 
TEB,  JJ.    Affirmed.    Pobteb,  J.,  dissents. 

Exceptions  to  adjudication  of  Penbose,  auditing  judge. 

At  the  adjudication  of  the  estate  of  Herman  Heller,  deceased, 
a  claim  was  presented  by  Carter  &  Company  for  goods  sold  and 
delivered  to  decedent  which  was  dismissed  by  Penbose,  audii- 
ing  judge,  in  an  adjudication,  which  was,  inter  alia,  as  follows : 

The  claim  of  Carter  &  Company,  at  whose  instance  the  ac- 
count was  so  filed,  was  for  goods  sold,  ♦113.49,  with  interest 
from  April  23,  1889,  under  a  contract  with  the  decedent,  of 
which  the  following  is  a  copy : 

**  No.  101.  Phila.,  March  16th,  1888. 

"  Carter  &  Co.,  Counter  Check  Book  Makers,  Niagara  Falls, 
N.  Y.,  will  please  ship  me  on  or  about  one-half 

at  once,  one  half  within  one  year,  via  Freight  on  (25th  March) 
88,  Ten  thousand  "  B  "  Counter  Check  Books,  for  which  I  agree 
to  pay  the  sum  of  2  J  cents  each.     Total,  f  225,  at  their  office. 

"  Payable  as  delivered.  (Signed)  H.  Helleb, 

**  Cash  and  Charge  index*  Ryan. 

**  Send  proof." 


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HELLER'S  ESTATK.  247 

1898.]  Statement  of  Facts. 

The  contract  is  written  on  a  printed  blank;  the  fiist  two 
lines,  except  the  word  "  me  "  and  the  last  two,  except  the  words 
*il"  4*2J"  and  "$225"  being  printed,  and  all  of  the  rest,  ex- 
cept the  word  **  via  "  being  in  manuscript. 

The  proof  requested  at  the  foot  of  the  paper  was  sent,  imd 
across  it  was  written :  "  O.  K.,  make  5000  yellow  paper,  5000 
white,  for  use  on  alternate  days.     (Signed)  H.  Heller,  Ryan." 

The  first  delivery  in  pursuance  of  this  contract  was  made 
April  9, 1888.  It  was  duly  accepted  and  paid  for  (5,075  checks, 
$114.20). 

The  decedent  was  a  manufacturer  of  ladies'  wear  and  white 
goods,  wholesale  and  retail.  The  checks  are  slips  used  by  sales- 
men for  the  purpose  of  having  proper  entries  of  sales  made 
upon  the  books  of  the  merchant.  In  the  present  case,  the  name 
of  the  decedent,  his  address  and  nature  of  business,  were  printed 
at  the  top  of  the  paper  or  slip,  and  after  this  a  blank  for  the 
name  of  the  salesman,  the  amount  of  sale,  and  amount  received ; 
and  at  the  foot,  the  words :  "  In  case  of  error,  return  this  bill." 
It  will  be  seen,  therefore,  that  unless  taken  by  the  person  for 
whom  prepared,  they  were  absolutely  useless  to  the  shipper,  and 
incapable  of  being  sold  or  disposed  of  to  any  other  person. 

On  April  23,  1889,  the  balance  of  the  order,  viz :  5,044 
checks,  amounting  to  $113.49,  were  shipped  from  Niagara  Falls 
to  the  decedent  at  Philadelphia,  and  upon  their  arrival  were 
duly. tendered  at  his  store,  780  Arch  street;  but  he  had  died 
previously,  viz :  January  22, 1889,  and  his  executors,  who  were 
then  engaged  in  winding  up  the  business,  declined  to  receive 
them.  In  a  letter  dated  April  25, 1889,  they  wrote  to  the  claim- 
ants :  "  We  were  much  surprised  to  receive  the  enclosed  bill,  as 
we  never  ordered  the  goods  and  know  nothing  about  them. 
You  have  evidently  made  a  mistake  in  the  name."  In  reply  to 
tliis  the  claimants  wrote,  April  27,  1889,  (apparently  in  ignor- 
ance of  the  death  of  the  decedent  as  the  letter  was  addressed  to 
him): 

"  We  hold  your  signed  contract,  dated  March  16,  1888,  for 
10,000  check  books,  half  of  which  were  to  be  shipped  Mai*ch  25th 
and  the  balance  within  one  year.  This  contract  is  signed 
*  H.  Heller,  per  Ryan.'  The  first  part  of  this  contract  was  duly 
sent  and  the  goods  invoiced ;  the  enclosed  invoice  is  for  the  bal- 
ance of  the  contract.  We  enclose  herewith  copy  of  the  original 
contract  so  that  you  can  investigate  the  matter," 


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248  HELLER'S  ESTATR 

Statement  of  Facts^  [6  Pa.  Superior  Ct. 

To  this  the  executors  replied,  April  29, 1889,  returning  the 
bill  and  saying :  "  We  ....  must  positively  decline  to  accept 
the  goods,  for  the  following  reasons :  The  contract  calls  for  the 
balance  to  be  shipped  within  one  year  from  March  16, 1888. 
That  time  has  now  expired,  and  besides,  owing  to  the  death  of 
Mr.  Herman  Heller,  the  executors  have  assumed  charge  and  ai*e 
liquidating  the  busmess,  and  having  no  use  for  the  books,  must 
decline  to  accept  them.  We  know  nothing  of  any  such  con- 
tract, and  had  you  notified  us  beforehand  we  would  have  ad- 
vised you  in  time." 

On  May  1, 1889,  the  claimants  wrote  to  the  executors,  deny- 
ing their  right  to  refuse  the  goods,  and  asserting  that  both  the 
letter  and  spirit  of  the  contract  had  been  complied  with  on  their 
part — the  first  shipment  of  the  books  having  been  made  April  9, 
1888,  and  the  second  AprQ  23, 1889.  They  added  that  the  fact 
that  the  executors  *'  did  not  know  that  we  were  holding  these 
books  for  Mr.  Heller  does  not  alter  the  facts  of  the  case,  nor 
does  it  relieve  the  estate  of  Mr.  Heller  from  the  responsibility 
of  accepting  and  paying  for  the  goods." 

In  reply  to  this  the  executors  wrote.  May  2,  1889,  referring 
the  claimants  to  their  solicitor,  Mayer  Sulzberger,  ILsq. 

It  must,  of  course,  be  conceded  that  the  death  of  the  pur- 
chaser did  not  put  an  end  to  the  right  of  the  other  party  to  the 
contract  to  insist  upon  payment ;  but  this  right  was  dependent 
upon  performance  by  them  in  accordance  with  the  terms  of  the 
agreement.  When  the  case  was  presented  to  the  auditing  judge 
he  was  inclined  to  the  opinion  that  such  performance  had  been 
shown,  and  that  the  stipulation  as  to  time,  in  view  of  the  words 
"  on  or  about,"  was  not  material ;  but  further  reflection  had  led 
to  a  different  conclusion.  The  words  "  on  or  about "  are  printed 
in  the  form  given  to  the  decedent  to  fill  up,  but  it  is  clear  they 
are  no  part  of  his  contract  and  are  to  be  regarded  as  if  erased. 
They  must  give  way  to  the  terms  as  written,  and  they  are 
express  that  the  half  not  presently  delivered  must  be  shipped 
"  within  one  year."  Whether  the  period  of  one  year  is  to  be 
computed  from  the  date  of  the  contract  or  of  the  first  deliveiy 
is  immaterial ;  more  than  a  year  from  either  having  expired 
before  the  shipment  was  made. 

It  is  true  that  in  general,  time  is  not  regarded  as  of  the  essence 
of  a  contract  for  the  sale  of  lands,  but  this  is  because  the  con- 


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HELLER'S  ESTATE.  249 

1898.]  Statement  of  Facts — Opinion  of  Court  below. 

tract  itself  yests  the  equitable  estate  in  the  vendee,  and  the  com« 
pletion  of  the  transaction  by  transfer  of  the  mere  legal  title  is, 
in  equity,  not  of  suflScient  importance  to  interfere  with  the  riglit 
to  demand  specific  performance  because  of  delay,  more  or  less 
prolonged,  in  asking  for  it.  But  the  reason  does  not  apply  to 
contracts  with  regard  to  personalty,  as  to  which  it  appears  to 
be  well  settled  that,  in  the  absence  of  waiver,  strict  performance 
in  every  particular — quantity,  quality,  place  and  time  is  essen- 
tial ;  and  this  irrespective  of  actual  loss  to  the  opposite  party : 
Addison  on  Contracts,  233 ;  Hare  on  Contracts,  670 ;  Pollock 
on  Contracts,  464;  Cleveland  v.  Sterrett,  70  Pa.  204. 

In  the  present  case  not  only  was  there  a  failure  on  the  part 
of  the  claimants  to  deliver  at  the  stipulated  time,  but  according 
to  the  testimony  (Dr.  Edwin  A.  Heller)  there  was  actual  incon- 
venience and  loss  to  the  estate  of  the  decedent  in  consequence. 

The  auditing  judge  is  forced  to  the  conclusion  that  the  exec- 
utors of  the  decedent  were  not  bound  to  receive  the  articles 
contracted  for  at  the  time  they  were  tendered,  and  the  claim 
must,  therefore,  be  disallowed. 

The  balance  of  principal  in  the  hands  of  the  accountants,  as 
set  forth  above,  $  will  be  held  for  the  pur- 

poses mentioned  in  the  will  of  the  testator. 

Two  commissions  for  the  examination  of  witnesses  were  taken 
out  on  behalf  of  Carter  &  Company,  the  cost  of  execution  of  one 
of  which,  as  stated  by  Mr.  Cooper,  was  $16.00  and  of  the  other 
f  10.00,  As  the  claim  has  not  been  sustained,  these  costs  cannot, 
of  course,  be  charged  against  the  decedent's  estate. 

It  is  ordered  and  adjudged  that  the  account  be  confirmed  nisi 
on  payment  of  clerk's  fees. 

Exceptions  to  the  adjudication  disallowing  the  claim  of  Car- 
ter &  Company  were  dismissed  by  the  court  in  banc  in  the  fol- 
lowing opinion  by  Hanna,  P.  J. 

The  single  question  in  this  case  is  whether  claimants  were 
boimd  by  their  contiuct  with  testator  to  deliver  to  him  the 
remaining  half  part  of  the  printed  "counter  check  books" 
within  one  year  from  March  16, 1888. 

The  evidence  is  the  shipment  was  not  made  until  April  23, 
1889.  In  the  interval,  testator  died ;  and  upon  the  arrival  of 
the  goods  in  this  city,  his  executors  refused  to  receive  them, 


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250  HELLER'S  ESTATE- 

Opinion  of  Court  below*         [6  Pa.  Superior  Ct. 

upon  the  ground  that  claimants  had  not  complied  with  the  terms 
of  the  order  given  by  testator  or  the  contract  entered  into  with 
them.  The  death  of  testator  does  not  affect  the  right  of  the 
claimants  to  recover.  The  balance  due  is  still  a  debt  payable 
by  his  estate,  provided  the  claimants  performed  their  part  of 
the  contract. 

It  will  be  observed,  the  contract  in  this  case  is  with  respect 
to  personalty,  and  the  rule  as  to  the  perfonnance  of  which 
differs  from  that  applied  to  the  specific  performance  of  contracts 
with  regai'd  to  the  sale  and  conveyance  of  real  estate.  In  such 
cases  it  seems  that,  in  equity,  time  is  not  of  the  essence  of  the 
contract,  except  when  controlled  by  other  equities,  as  shown  in 
Bispham's  Equity  (5th  ed.),  sees.  391,  392.  But  when  a  con- 
tract is  made  for  the  manufacture  and  delivery  of  ai*ticles  of 
merchandise  or  other  personal  property  on  or  before  a  certain 
day,  or  at  a  specified  date,  in  the  absence  of  proof  of  consent 
of  the  other  party  or  waiver  by  him,  strict  performance  of  the 
terms  and  conditions  of  and  compliance  with  the  contract  are 
required  before  recovery  of  the  price  agreed  upon  can  be  had. 

The  "  counter  check  books  "  were  to  be  delivered  "  within 
one  year,"  and  this,  by  the  terms  of  the  contract,  was  a  condi- 
tion precedent  to  the  demand  for  payment.  This  being  the 
case,  no  suit  can  be  brought  upon  the  contract,  ^^  until  the 
condition  has  been  fulfilled  or  its  nonfulfillment  excused." 
Again,  *'  from  the  very  nature  of  a  condition  precedent,  it  re- 
sults that  it  must  be  strictly  performed  before  the  party  on 
whom  its  performance  is  incumbent  can  call  on  the  other  party 
to  fulfill  his  promise : "  Tiffany  on  Sales,  153 ;  Anson  on  Con- 
ti-acts,  380. 

Upon  a  fair  consideration  of  the  language  of  the  contract  in 
this  case,  the  intention  of  the  parties  seems  very  clear,  that  each 
was  to  be  bound  by  the  stipulation  that  the  "  counter  check 
books"  were  to  be  printed  and  delivered  "one-half  at  once, 
one-half  within  one  year."  The  claimants  had  the  right  to  de- 
liver at  any  time  within  one  year,  and  the  testator  was  bound 
to  pay  upon  the  delivery.  The  "check  books  "  were  to  be  used 
in  testator's  retail  business,  and  having  his  name  and  his  own 
peculiar  trade  blanks,  symbols,  etc.,  printed  thereon,  were  abso- 
lutely valueless  and  unsalable  to  any  other  tradesman  or  in  any 
other  business.     This  the  claimants  must  be  presumed  to  know* 


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HELLER'S  ESTATE.  251 

1898.]  Opinion  of  Court  below. 

The  time  thus  fixed  upon  would  appear  to  be  considered  by  the 
parties  as  a  mateiial  factor  of  the  conti^ict,  and  made  by  them 
an  essential  part  thereof.  Thus,  ^^  of  the  essence  of  the  con- 
ti-act,"  and  consequently  a  condition  precedent:  Tiffany  on 
Sales,  154.  See  also  Addison  on  Conti-acts,  233,  Hare  on  Con- 
timcts,  570,  Pollock  on  Contracts,  464,  and  Blackburn  on  Con- 
tracts of  Sale,  225-227. 

"In  mercantile  transactions,  however,  such  as  the  sale  of 
goods  time  is  generally  held  to  be  the  essence  of  the  contract ; 
and  where  one  of  the  terms  of  the  contract  provides  for  the 
shipment  or  deliveiy,  shipment  or  deliveiy  at  the  time  fixed 
will  usually  be  regarded  as  a  condition  precedent,  on  the  fail- 
ure of  which  the  other  party  may  repudiate  the  entire  contract : " 
Tiffany  on  Sales,  155  and  cases  cited  in  note.  An  "  impossibility 
arising  after  die  formation  of  the  contract  is  not  an  excuse  from 
performance,  unless  the  impossibility  results  either  (a)  from 
the  destruction  of  the  specific  goods  which  are  the  subject  of 
the  sale,  or  (6)  from  a  change  in  the  law : "  Tiffany  on  Sales, 
158, 160 ;  Anson  on  Contracts,  *321,  and  cases  in  note. 

Furthermore,  the  contract  was  executory  in  its  character. 
The  "  check  books  "  were  not  printed  and  sold  and  delivered  to 
the  purchaser  so  that  the  title  passed  to  him,  as  in  the  sale  of 
wool  in  Kitchen  v.  Stokes,  9  W.  N.  48,  and  the  removal  and 
payment  therefor  within  thirty  days  were  held  not  to  be  of  the 
essence  of  the  contract;  but  they  were  to  be  manufactured  and 
delivered  at  a  future  date  fixed  upon  by  the  contract,  thus  show- 
ing that  time  was  in  the  contemplation  of  the  pailies. 

In  Cleveland  v.  Sterrett,  70  Pa.  204,  the  defendants  agreed 
to  deliver  to  plaintiff  240  barrels  of  oil  of  quality  named,  etc., 
"  any  time  between  July  1  and  Dec.  1,"  and  it  was  held  the 
defendants  were  to  be  the  actors,  as  the  claimants  in  the  pres- 
ent case  must  be  held,  and  were  bound  to  be  ready  to  deliver 
the  oil  on  December  1st.  Agnbw,  J.,  said :  *'  It  is  plain  the 
contract  fixed  the  time  of  delivery  as  Dec.  1,  for  beyond  this 
date  Cleveland  &  Co.  had  reserved  no  day  of  grace."  They 
**  were  not  ready  then  to  deliver,  and  their  failure  gave  Sterrett 
the  right  to  rescind  ;"  and  "not  being  ready  to  deliver  the  oil 
and  comply  with  their  contract,  could  not  demand  the  money 
of  the  plaintiff,  nor  recover  damage  from  the  plaintiff  for  his 
refusal  to  receive  the  oil  after  Dec.  1.*' 


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2o2  HELLER'S  ESTATE. 

Opinion  of  Court  below — Assignment  of  Errors.     [6  Pa.  Superior  Ct. 

In  Depuy  v.  Arnold,  1  W.  N.  157,  carpets  were  bought  on 
the  express  condition  they  should  be  delivered  and  put  down 
by  a  certain  day.  The  carpets  were  not  delivered  nor  put  down 
on  that  day,  nor  on  a  subsequent  day  promised  by  the  plaintiff. 
The  defendant  accordingly  refused  to  accept  the  carpets,  and 
in  an  action  brought  to  recover  the  price,  plaintiff  was  refused 
judgment  for  want  of  a  sufiBcient  afiSdavit  of  defense. 

In  the  case  before  us  there  is  no  hardship  to  the  claimants, 
except  that  arising  from  their  own  laches  and  oversight  of  the 
express  conditions  of  the  contract.  They  performed  part  of  the 
contract,  as  did  the  testator  by  payment  for  half  of  the  "  check 
books  "  ordered,  and  they  had  full  notice  they  could  not  demand 
payment  for  the  remainder,  unless  they  delivered  them  to  him 
**  within  one  year." 

We  cannot  reach  any  other  conclusion  than  that  the  parties 
intended  time  to  be  "of  the  essence  of  the  contract,"  and  as 
claimants  failed  in  performance  within  the  time  agreed  upon  by 
them,  their  claim  is  properly  disallowed. 

The  exceptions  are  dismissed  and  the  adjudication  confirmed* 

ErrorB  assigned  were  (1)  In  dismissing  appellant's  first  excep- 
tion to  the  adjudication  of  the  auditing  judge,  which  was  as 
follows:  "Because  the  learned  judge  erred  in  law  in  finding 
regarding  the  written  contract  of  claimants,  Carter  &  Company, 
Limited,  with  decedent,  the  words  '  on  or  about '  are  printed  in 
the  form  given  to  the  decedent  to  fill  up,  but  it  is  clear  they  are 
no  part  of  his  contract,  and  are  to  be  regarded  as  if  erased." 
(2)  In  dismissing  appellant's  second  exception  to  the  adjudica- 
tion of  the  auditing  judge,  which  was  as  follows :  "  Because  the 
learned  judge  erred  in  law  in  finding  that  the  written  contract, 
under  the  circumstances  of  this  case,  was  to  be  construed  ex- 
actly according  to  its  terms,  with  the  erasure  of  the  words  'on  or 
about,'  while  it  is  apparent,  both  from  the  contract  and  the  ad- 
mitted evidence,  that  the  agreement  was  for  the  futui-e  delivery 
of  printed  matter,  the  order  for  which  had  to  be  sent  to  Niagara 
Falls,  New  York,  a  proof  made  and  I'etumed,  the  goods  manu- 
factured and  shipped,  and  under  which  it  is  admitted  that  the 
first  shipment,  which  was  received  and  paid  for,  did  not  take 
place  until  twenty-four  days  after  the  contract  was  signed,  and 
the  words  in  the  contract  '  on  or  about '  thus  adopted  and  rati« 


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HELLER'S  ESTATE.  253 

1898.]  Assignment  of  EiTors — Arguments* 

fied  by  the  decedent  as  a  very  part  of  the  same.  (3)  In  dis- 
missing appellant's  third  exception  to  the  adjudication  of  the 
auditing  judge,  which  was  as  follows :  "  Because  the  learned 
judge  erred  in  law  in  finding  as  to  the  contract  in  this  case,  that 
•strict  performance,  in  every  particular — quantity,  quality,  place 
and  time  is  essential '  when  it  was  clearly  in  evidence  without 
contradiction,  that  the  decedent  gave  an  order  for  twice  as  many 
goods  as  he  needed  in  order  to  get  the  advantage  of  a  reduced 
price,  and  that  the  goods  were  manufactured  according  to  the 
order  by  the  claimants,  one  half  of  them  shipped  to  the  decedent, 
as  agreed,  while  the  other  half  was  held  for  his  convenience, 
and  subject  to  his  order  at  any  time,  and  no  evidence  was  pro- 
duced to  show  that  they  had  ever  been  called  upon  to  make  any 
shipment."  (4)  In  dismissing  appellant's  fourth  exception  to 
the  adjudication  of  the  auditing  judge,  which  was  as  follows : 
"  Because  the  learned  judge  erred  in  finding  from  the  testimony, 
tliat  ^  there  was  actual  inconvenience  and  loss  to  the  estate  of 
the  decedent  in  consequence '  of  the  nondelivery  of  the  bal- 
ance of  the  goods,  when  the  testimony  does  not  bear  that  evi- 
dence, and  the  letter  written  by  the  executors,  when  the  balance 
of  the  goods  was  tendered  stated :  '  The  executors  have  assumed 
chai-ge  and  are  liquidating  the  business,  and  having  no  use  for 
the  books,  we  must  decline  to  receive  them';  showing  conclu- 
sively that  the  reason  they  did  not  want  them  was  because  the 
decedent's  business  had  passed  into  their  hands,  and  the  books 
were  no  longer  appropriate  for  use  in  the  store,  and  this  is  fur- 
ther shown  by  the  testimony  of  Dr.  Heller  that  the  retail  busi- 
ness was  carried  on  until  Christmas  following  the  tender  of  the 
goods."  (5)  In  dismissing  appellant's  fifth  exception  to  the 
adjudication  of  the  auditing  judge,  which  was  as  follows :  "  Be- 
cause the  learned  judge  disallowed  the  claim  of  Carter  &  Com- 
pany, Limited,  as  presented,  and  did  not  allow  to  them  the  full 
amount  of  their  claim  with  costs  of  the  commissions." 

Samuel  W.  Cooper^  for  appellant. — The  principles  governing 
the  point  whether  time  is  the  essence  of  the  contract  in  cases 
like  this  are  so  well  settled  and  accepted  by  the  mercantile  com- 
munity that  it  does  not  appear  that  any  case  exactly  in  point 
has  been  brought  into  court. 

If  no  demand  is  made  until  after  the  time  stipulated,  the  sell- 


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254  HELLER'S  ESTATE. 

Arguments—Opinion  of  the  Court.  [6  Pa.  Superior  Ct. 

er  is  entitled  to  a  reasonable  time  after  such  demand  within 
which  to  deliver:  Holt  v.  Brown,  63  Iowa,  319. 

Where  it  is  the  buyer's  duty  to  designate  the  time  of  deliv- 
ery the  seller  is  not  bound  to  act  until  he  has  been  notified  of 
the  place  chosen :  Shaw  v.  Grandy,  5  Jones  (No.  Car.),  56. 

In  fact  the  vendor,  under  the  conditions  of  the  agreement  in 
this  case,  is  a  bailor :  Oakley  v.  State,  40  Ala.  372. 

Ephnsim  Lederer^  for  appellee. 

Opinion  by  Rice,  P.  J.,  January,  18, 1898  : 

The  appellants  argue,  that  the  point  of  this  case  is  whether 
time  is  of  the  essence  of  the  contract,  when  the  vendee  of  goods 
has  them  specially  manufactured  for  his  use  and  leaves  them  in 
the  possession  of  the  vendor  subject  to  order.  But  we  do  not 
BO  understand  the  question  raised.  The  contract,  as  evidenced 
by  the  decedent's  written  order  which  was  accepted  by  the 
ap|)ellants,  contains  nothing  which  indicates  that  the  second 
instalment  was  to  be  held  subject  to  order.  Nor  do  we  find 
any  competent  parol  evidence  that  such  was  the  understanding 
of  the  parties.  The  appellants  were  the  actors  and  were  bound 
to  ship  the  goods  within  the  time  specified  in  the  contract  with- 
out further  order  unless  performance  within  that  time  was 
excused  or  waived. 

The  authorities  cited  in  the  opinions  of  the  auditing  judge 
and  of  the  court  upon  exceptions,  as  well  as  others  that  might 
be  cited,  show  that  a  stipulation  as  to  the  time  of  delivery  in 
an  executory  contract  for  the  sale  of  goods  is  an  essential  and 
not  a  collateral  term.  A  distinction  has  been  drawn  in  favor 
of  contracts  for  work  or  skill,  and  the  materials  upon  which  it 
is  to  be  bestowed,  and  as  to  such  it  has  been  said  that  ^^  a  state- 
ment fixing  the  time  of  performance  of  the  contract  is  not  oi*di- 
narily  of  its  essence,  and  a  failure  to  perform  within  the  time 
stipulated,  followed  by  substantial  performance  after  a  short 
delay  will  not  justify  the  aggrieved  party  in  repudiating  the 
entire  contract  but  will  simply  give  him  his  action  for  damages 
for  the  breach  of  the  stipulation : "  Beach  on  Contracts,  sec.  619. 
We  doubt  whether  this  distinction  would  hold  good  in  ordinaiy 
mercantile  contracts  although  the  goods  were  to  be  manufac- 
tured.    Merchants  are  not  in  the  habit  of  placing  upon  their 


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HELLER'S  ESTATE.  255 

1898.]  Opinion  of  the  Coart. 

contracts  stipulations  to  which  they  do  not  attach  some  value 
and  importance,  and  that  alone  might  be  sufficient  answer  to  the 
question  why  time  of  shipment  should  be  deemed  an  essential 
term :  Bowes  v.  Shand,  L.  R.  2  App.  Cases,  456 ;  Burdick  on 
Sales,  142.  The  contract  under  consideration  was  not  a  mer- 
cantile contract,  it  is  true ;  that  is  to  say,  the  goods  were  not 
ordered  with  a  view  to  sell  them.  They  were  however  of  a 
special  pattern  and  were  ordered  for  a  special  purpose.  They 
were  valueless  to  any  one  but  the  purchaser,  and  would  be  of 
no  value  to  him  if  he  did  not  continue  in  the  mercantile  busi- 
ness he  was  then  conducting.  Ample  time  was  allowed  for  the 
performance  of  the  contract,  and  from  all  the  circumstances  it 
is  reasonable  to  suppose  that  the  parties  actually  intended  that 
performance  within  that  time  should  be  a  condition  precedent 
to  a  right  to  recover  the  price. 

It  is  probable  that  the  appellants  agreed  to  furnish  the  books 
at  a  less  price,  because  they  could  make  them  all  at  one  time 
but  we  fail  to  see  how  this  fact  affects  in  any  way  the  question 
of  their  duty  to  deliver  them  within  the  time  specified.  If  it 
has  any  bearing  it  tends  to  show  that  the  failure  to  deliver  was 
without  even  plausible  excuse.  As  the  learned  president  of  the 
court  below  well  says  :  "  In  the  case  before  us  there  is  no  hard- 
ship, to  the  claimants,  except  that  arising  from  their  own  laches 
and  oversight  of  the  express  conditions  of  the  contract." 

When  the  written  and  printed  parts  of  a  contract  cannot  be 
reconciled  the  former  is  presumed  to  have  been  separately  and 
particularly  considered  by  the  parties  and  to  express  their  exact 
agreement  on  the  subject.  See  Grandin  v.  Ins.  Co.,  107  Pa.  26 ; 
Haws  V.  Fire  Assn.,  114  Pa.  431 ;  Duffield  v.  Hue,  129  Pa. 
94 ;  Dick  v.  Ireland,  130  Pa.  299 ;  Lane  v.  Nelson,  167  Pa.  602. 
This  rule  was  properly  applied  in  the  present  case.  When  the 
parties  came  to  fix  the  time  for  delivery,  instead  of  naming  a 
specific  date  "  on  or  about "  which  the  second  instalment  should 
be  shipped  by  the  appellants  and  accepted  by  the  purchaser, 
they  designated  a  period  within  which  it  was  to  be  shipped, 
leaving  the  precise  date  of  shipment  within  that  period  to  the 
option  of  the  appellants.  Whether  the  year  was  to  be  com- 
puted from  the  date  of  the  conti-act  (which  is  the  more  reason- 
able construction)  or  from  the  date  of  the  first  shipment,  is 
immaterial ;  because,  in  either  case,  the  goods  were  not  shipped 
within  the  time  specified  in  the  contract* 


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256  HELLER'S  ESTATE. 

Opinion  of  the  Court.  [6  Pa.  Superior  Ct. 

For  these  reasons,  in  connection  with  those  set  forth  in  the 

able  opinions  of  the  auditing  judge  and  of  the  court  below  the 

decree  is  affirmed  and  the  appeal  is  dismissed  at  the  cost  of 

the  appellants. 

Porter,  J.,  dissents. 


Commonwealth  v.  A.  L.  Spencer  and  Thomas  Aubrey, 

Appellants. 

Criminal  law — Conspiracy — Jurisdiction. 

Conspiracy  is  a  matter  of  inference  deducible  from  the  acts  of  the  par- 
ties accused,  done  in  pursuance  of  an  apparent  criminal  purpose,  in  com- 
mon between  them,  and  which  rarely  are  confined  to  one  place  and  if  the 
parties  are  linked  in  one  community  of  design  and  of  interest  there  can  be 
no  good  reason  why  both  may  not  be  tried  where  any  distinct  overt  act  is 
committed ;  for  he  who  procures  another  to  commit  a  misdemeanor  is  guilty 
of  the  fact,  in  whatever  place  it  is  committed  by  the  procuree. 

Conspiracy — Evidence  of  general  motives. 

In  order  properly  to  comprehend  the  nature  and  circumstances  of  a  par- 
ticular conspii*acy,  charged  in  an  indictment,  evidence  as  to  the  motives 
and  conduct  of  the  alleged  conspirators  in  promoting  a  conspiracy  of  the 
same  kind  to  defraud  the  public  genemlly,  is  properly  admissible. 

Practice f  Superior  Court — Evidence  admitted  without  objection. 
Where  evidence  is  offered  and  admitted  without  objection  in  the  court 
below  it  is  improper  to  assign  such  admission  for  error. 

Practice,  Superior  Court-^Defective  assignment  of  error. 
An  assignment  of  error  as  to  admission  of  evidence  is  defective  under 
Rule  17  which  neither  quotes  the  full  substance  of  the  bill  of  exceptions 
nor  copies  the  bill  in  immediate  connection  with  the  assignment. 

Practice^  Superior  Court— Review — Refusal  to  grant  new  trial — Lack  of 
exceptiofis. 

Errors  to  the  refusal  of  the  court  below  to  grant  a  new  trial  will  not  be 
considered  when  no  exception  was  taken  to  this  action  of  the  court. 

A  new  trial  is  properly  refused  where  on  the  motion  therefor  the  evi- 
dence adduced  upon  the  trial  is  not  shown  to  be  incon*ect  in  any  matenal 
matter  by  anything  subsequently  made  to  appear. 

Argued  Oct.  11, 1897.  Appeal,  No.  23,  Jan.  T.,  1898,  by  de- 
fendants, from  judgment  of  Q.  S.  Luzerne  Co.,  Nov.  Sess.,  1896, 
No.  39,  on  verdict  of  guilty.  Before  Rice,  P.  J.,  Wickham, 
Beavee,  Rebdbr,  Orlady,  Smith  and  Porter,  J  J.  AfiBrmed, 


Digitized  by  VjOOQ IC 


COMMONWEALTH  v.  SPENCKR.  257 

1898.]  Statement  of  Facts— Assignment  of  EiTor. 

Indictment  for  conspiracy.    Before  Bennett,  J. 

It  appears  from  the  record  that  the  indictment  charged  tlie 
defendants,  Spencer  and  Aubrey,  with  having  conspired  wil- 
fully and  maliciously  to  cheat  the  firm  of  Koons  &  Company 
out  of  certain  spikes,  pipes,  etc. 

The  facts  sufficiently  appear  in  the  opinion  of  the  court. 

Verdict  of  guilty  and  sentence  thereon  that  each  defendant 
pay  $100,  costs  of  prosecution  and  be  imprisoned  in  the  Luzerne 
county  jail  for  one  year.     Defendants  appealed. 

Urrors  assigned  were  (1)  In  admitting  under  objection  evi- 
dence offered  by  the  commonwealth  as  follows :  "  Commonwealth 
proposes  to  prove  by  the  witness  on  the  stand,  both  by  oral  con- 
versations and  by  letters  to  be  subsequently  offered,  that  he 
entered  into  an  ai*rangement  with  the  defendants,  in  the  early 
part  of  1896  and  latter  part  of  1895,  to  organize  a  corporation 
under  the  laws  of  the  state  of  New  Jersey  to  be  known  as  the 
Phoenix  Contract  Company,  with  power  to  buy  and  sell  mate- 
rials, buy  and  sell  stock,  bonds  and  other  paper ;  with  power  to 
construct  railroads,  bridges,  docks,  etc.,  with  a  paid  up  capital 
of  $1,000  and  an  authorized  capital  of  $100,000.  That  after 
procuring  said  charter  they  would  obtain  a  rating  from  a  com- 
mercial agency  which  would  give  them  credit  in  the  business 
world,  and  that  one  office  of  the  company  should  be  in  the  city 
of  New  York,  and  another  in  the  city  of  Scranton,  Lackawanna 
county.  Pa. ;  the  latter  to  be  the  main  office.  Thomas  Aubi-ey, 
one  of  the  defendants,  the  confidential  clerk  and  employee  of 
A.  L.  Spencer,  the  other  defendant,  was  to  be  the  secretary  and 
treasurer  of  the  company.  That  they  would  then  proceed  to 
buy  materials,  such  as  nails,  pipe  and  the  like  in  large  quan- 
tities, wherever  credit  could  be  obtained  on  the  fuitli  of  the 
incorporation  and  rating  aforesaid."  (2)  In  admitting  under 
objection  certificate  of  organization  of  the  Phoenix  Contmct 
Company  issued  by  the  state  of  New  Jersey  to  be  followed  by 
evidence  that  there  was  not  a  dollar  paid  in  to  commence  busi- 
ness with,  the  charter  stating  that  the  total  amount  of  capitol 
stock  of  said  company  is  $100,000,  number  of  shares  one  thou- 
sand, to  be  followed  by  evidence  that  no  moneys  of  this  amount 
of  $100,000  was  ever  paid  in.  Defendants'  counsel  object  to 
this  certificate,  first,  because  it  appears  that  the  incorporator 
Vol.  VI— 17 


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258  COMMONWEALTH  v.  SPENCER. 

Assignment  of  EiTora.  [6  Pa.  Superior  Ct. 

were  persons  other  than  the  defendants  and  that  neither  of  the 
defendants  is  in  any  way  referred  to  or  mentioned  in  the  certi- 
ficate. (3)  In  charging  the  jury  as  follows :  "  Indeed  it  may 
be  necessary  and  proper  to  prove  a  conspiracy  of  such  general 
character  in  order  to  establish  the  particular  conspiracy  charged 
in  the  indictment  as  the  ofiFspring  of  the  more  general  one. 
But,  as  we  have  also  in  a  general  way  hitherto  instructed  you, 
if,  as  the  offspring  or  succession  of  such  a  general  conspiracy, 
these  defendants  entered  into  a  distinct  conspiracy  to  cheat  and 
defraud  Koons  &  Co.,  according  to  the  second  position  taken 
by  the  commonwealth,  then  they  may  be  convicted  under  this 
indictment,  if  overt  acts  have  been  committed  in  this  county  by 
■either  of  them  or  their  innocent  agent,  as  claimed  by  the  com- 
monwealth. Again,  it  is  argued  in  behalf  of  the  defendants 
that  tlie  evidence  on  the  part  of  the  commonwealth  which  may 
tend  to  show  the  original  or  general  conspiracy  claimed  by  it,  is 
irrelevant  and  immaterial  on  the  real  issue  which  you  are  trying, 
and  that  it  should  be  disregarded  by  you  in  determining  whether 
there  was  a  conspiracy  to  cheat  and  defraud  Koons  &  Co.  In 
answer  to  this  we  say  to  you  that  while  such  evidence  of  the 
general  conspiracy  claimed  is  not  suflBcient  to  establish  the  spe- 
cial one  in  issue,  even  though  it  should  prove  the  existence  of 
the  former  to  your  satisfaction ;  yet,  that  such  evidence  is  never- 
theless proper  for  your  consideration  as  bearing  upon  the  rela- 
tions existing  between  the  defendants  and  M ilair,  through  this 
Phoenix  Contract  Company,  upon  the  nature  and  character  of 
the  business  methods  they  were  pursuing,  their  purposes  and 
motives  at  the  time,  and  such  evidence  may  be  considered  by 
you  in  connection  with  the  testimony  showing  the  transactions 
which  led  to  the  opening  and  conduct  of  business  with  Koons  & 
Co.,  and  as  bearing  upon  the  question  whether  there  was  an  inde- 
pendent conspiracy  upon  the  same  general  plan  of  execution  as 
the  original,  yet  having  for  its  specific  purpose  the  cheating  and 
defrauding  of  Koons  &  Co.  The  defendant  Spencer  held  no 
official  relation  to  the  company,  yet  was  to  act  with  the  other 
parties  in  its  l^half .  These  and  his  testimony,  and  in  fact  all  of 
the  evidence  bearing  on  the  subject  of  the  purposes  of  this  Phoe- 
nix Contract  Company,  are  for  you,  and  you  are  to  determin3 
what  is  the  truth  in  this  matter."  (4)  The  entii-e  charge  of  the 
court  to  the  jury  was  prejudicial,  misleading  and  unfair  to  de- 


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COMMONWEALTH  v.  SPENCER.  259 

1S9S.]  Assignment  of  Errors — Arguments. 

fendants,  charged  as  they  were  with  a  crime.  The  court  com- 
mitted error  in  admitting  as  evidence  upon  the  trial  under  the 
indictment,  the  following  letter,  together  with  a  very  large  num- 
ber of  others  of  a  like  character,  to  be  found  in  commonwealth's 
exhibits  in  appendix.  Many  of  them  having  been  written  long 
before  the  defendants,  or  either  of  them,  ever  knew  George  W. 
Koons  &  Co.,  or  heard  of  the  Ph<Bnix  Contract  Co.,  and  even 
before  the  inception  of  said  company,  and  having  no  reference 
or  relation  to  either  of  them. 

**ScBANTON,  Pa.,  Nov.  18, 1895. 
**  G.  A.  J.  MiLAnt,  Esq. 

"  Room  472,  32  Liberty  St.,  New  York. 
"  Dear  Sir :  I  know  now  where  I  can  get  $20,000  worth  of 
materials  for  good  paper  if  you  can  get  it  here  at  once.  Can't 
some  Boston  firm  help  you  out?  Wii*e  me,  as  I  must  let  them 
know.  Here  is  a  rare  chance.  Hope  to  see  you  Tuesday  at 
farthest 

**  Yours  truly, 
(Signed)  *^  A.  L.  Spencer." 

(5,  6)  Refusing  a  new  triaL  (7)  In  continuing  to  take  juris- 
diction  of  the  case  after  the  close  of  the  evidence  upon  the  trial. 
(8)  The  refusal  of  a  new  trial  was  an  abuse  of  the  discretionary 
power  of  the  court. 

E.  R.  Shurtleff  Mid  L  R,  Burnn^  for  appellants. — The  accused 
defendants  cannot  be  convicted  of  one  offense  by  evidence  of  ^ 
former  offense  which  had  been  completed  before  the  inception 
of  the  second  and  which  is  not  charged  in  the  indictment  i  Hait- 
mann  v.  Com.,  5  Pa.  60 ;  Com.  v.  Harley,  48  Mass.  506 ;  Com. 
V.  Judd,  2  Mass.  329 ;  Com.  v.  Kellogg,  61  Mass.  478  ;  Hffx  v. 
Roberts,  1  Camp.  399. 

So  far  as  our  research  has  extended  we  do  not  find  that  the 
precise  point  has  been  raised  in  this  state,  but  in  Collins  v. 
Com.,  3  S.  &  R.  220,  the  indictment  was  drawn  in  the  precise 
form  suggested  in  the  Harley  case  and  is  at  least  persuasive 
evidence  that  our  courts  consider  it  correct.  The  court  erred 
in  refusing  a  new  trial. 

In  at  least  one  case  the  Supi*eme  Court  has  examined  the  trial 
evidence  in  order  to  determine  the  question  of  a  retrial :  Pilge^ 
V.  Com.,  112  Pa.  220. 


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260  COMMONWEALTH  v.  SPENGER. 

Arguments — Opinion  of  the  Court.  [6  Pa.  Superior  Ct. 

Whatever  may  have  been  said  in  some  of  th^  older  decisions 
in  regard  to  granting  new  trials  by  appellate  courts  we  take  it 
that  it  is  now  the  settled  law  that  a  refusal  to  set  aside  a  ver- 
dict in  the  court  below  may  be  alleged  for  error :  Smith  v.  Times 
Pub.  Co.,  178  Pa.  481. 

It  is  confidently  asserted  that  there  is  no  proper  and  legal 
evidence  to  prove  the  charge  as  laid  in  the  indictment  or  to  sus- 
tain the  jurisdiction  of  the  court  of  Luzerne  county.  Not  only 
this,  but  the  great  change  in  the  facts,  as  they  would  be  pre- 
sented on  another  trial,  is  amply  sufficient  to  justify  this  court 
in  granting  us  a  rehearing. 

John  T,  Lenahan  and  Henry  A,  Fuller^  with  them  Daniel  A. 
Fell^  district  attorney,  for  appellee. — Authorities  are  legion 
establishing  the  competency  of  distinct  but  connected  offenses 
to  prove  guilty  knowledge  or  criminal  intent,  some  of  which  are 
considered  by  the  court  below,  and  others  may  be  cited  here : 
Kramer  v.  Com.,  87  Pa.  299 ;  Goersen  v.  Com.,  99  Pa.  388 ;  s.  c. 
106  Pa.  477;  Com.  v.  Johnson,  133  Pa.  293;  Com.  v.  Place, 
153  Pa.  314. 

The  court  below  have  found  that  : 

\'The  evidence  adduced  upon  the  trial  has  not  been  shown  to 
be  incorrect  in  any  material  matter  by  anything  subsequently 
made  to  appear.  Nor  do  the  manner  and  circumstances  under 
which  at  a  very  late  period  after  the  verdict  the  so-called  correc- 
tion or  retraction  came  about,  serve  to  impress  us  with  its  im- 
portance or  merit  as  a  rei\son  for  a  new  trial." 

Jurisdiction  in  conspiracy  is  obtained  by  any  overt  acts  done 
within  the  jurisdiction. 

Opinion  by  Wickham,  J.,  January  18, 1898 : 
The  defendants  in  this  case  were  indicted  and  convicted  for 
conspiring  to  cheat  and  defraud  George  W.  Koons  &  Co.  of 
valuable  personal  property.  The  evidence  consisting  of  about 
four  hundred  and  fifty-three  pages  of  printed  testimony,  and 
one  hundred  and  twenty  letters  and  other  documentary  exhibits, 
reveals  the  philosophy  and  methods  of  one  of  the  dangerous 
forms  of  dishonesty  peculiar  to  modem  business  life. 

A.  L.  Spencer,  living  in  Scranton,  Pa.,  had  been  engaged, 
prior  to  1895,  in  business  dealings  with  one  E,  T,  Day,  of  New 


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COMMONWEALTH  v,  SPENCER.  261 

.1898.]  Opinion  of  the  Court. 

York  City,  and  as  he- alleges,  obtained  through  Day,  as  security 
for  some  indebtedness  owing  to  him  from  the  latter,  certain 
notes  issued  by  a  corporation  called  the  Southwestern  Pacific 
Company.  This  was  a  speculative,  insolvent  concern  of  shad- 
owy outline,  whereof  G.  A.  J.  Milair,  also  of  New  York,  was 
president.  How  long  it  eked  out  an  existence  we  do  not  know, 
but  it  is  quite  sure  that  it  was  defunct  for  some  time  before  the 
Phoenix  Contract  Company  was  formed.  Just  what  the  precise 
nature  of  the  relations  between  Spencer  and  Milair  were  before 
October  of  the  year  1895,  is  hard  to  tell ;  their  testimony  in 
regard  to  this  matter  is  not  as  clear  as  it  might  be,  and  much 
is  left  for  surmise,  but  from  their  letters  appearing  in  evidence, 
it  seems  that  they  were  on  terms  of  close  business  intimacy, 
that  Milair  was  procuring  and  trying  to  procure  iron,  lumber, 
and  other  materials  for  Spencer,  to  reduce  Day's  indebtedness 
to  the  latter  and  probably  to  help  himself  at  the  same  time. 
For  these  purposes  the  Southwestern  Pacific  Company  was  used 
to  some  extent,  and  if  Milair  is  to  be  believed,  would  have  been 
fraudulently  employed  in  an  extensive  way,  at  Spencer's  sug- 
gestion, had  not  its  credit  utterly  failed.  When  things  had 
reached  this  pass,  and  it  became  evident  to  Spencer  that  the 
old  company  could  no  longer  be  made  available  for  either  honest 
or  dishonest  uses,  we  find  him  writing  to  Milair,  under  date  of 
October  8, 1895,  complaining  that  the  latter  had  not  sent  lum- 
ber, iron  and  spikes  aa  he  had  promised,  and  suggesting  as  fol- 
lows :  "  I  tell  you  the  thing  to  do  is  to  start  a  new  Co.  The 
old  one,  no  matter  what  you  may  do,  is  hammered  out  of  exist- 
ence and  is  carrying  a  bigger  black  eye  than  you  will  ever  be 
able  to  heal.  If  you  will  pitch  in,  I  will  turn  material  into  cash 
for  you.  I  would  like  to  handle  the  money  end  of  it  myself. 
What  do  you  say  ?  " 

Before  this  letter  was  written,  Spencer,  Day  and  Milair  had 
at  least  one  conference  in  New  York  about  organizing  the  new 
company,  the  real  purpose  whereof,  as  Milair,  in  effect  admits, 
being  to  buy  materials,  to  wit :  iron,  nails,  spikes,  lumber,  etc., 
sell  the  same  and  divide  the  proceeds,  Spencer  to  receive  fifty  per 
centum  thereof.  Whether  he  was  to  get  more  in  the  aggregate 
than  would  pay  his  debt,  then  alleged  to  be  $8,500,  is  not  quite 
clear,  npr  is  it  very  material.  The  other  fifty  per  cent  was  to 
go  to  the  New  York  end  of  the  concern.     Aubrey  was  to  get 


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i02  COMMONWEALTH  v.  SPENCER. 

Opinion  of  the  Court.  [G  Pa.  Superior  CI. 

$1^500  a  year  for  his  services,  seemingly  -to  be  paid  out  of  the 
gross  receipts. 

On  October  14, 1895,  Spencer  again  writes  Milair,  saying: 
"  Viewing  your  situation  in  the  back  ground  and  from  past 
experience,  I  realize  fully  how  diflBcult  it  is  to  buy  with  the 
credit  of  S.  W.  P.  Co.,  and  each  report  through  the  agencies 
reflects  stronger  and  sti*onger  on  you  and  that  Co. ;  hence  the 
necessity  of  forming  a  new  one  under  a  wholly  new  name  that 
you  can  sit  quietly  back  and  manage.  We  are  all  discouraged 
at  this  end."  On  October  22, 1895,  he  writes  Milair  concern- 
ing a  note,  and  says :  "  Your  name  and  that  of  the  S.  W.  P.  Co. 
must  not  appear."  In  a  letter  to  Milair,  dated  December  2, 
1895,  he  suggests  that  the  title  of  the  new  company,  the  forma- 
tion of  which  was  then  under  consideration,  shall  be  "New 
York  Construction  &  Fire  Proofing  Co."  and  adds,  "  As  I  am 
to  use  the  material  or  dispose  of  it,  it  would  seem  that  I  should 

be  out  of  the  list Get  up  the  new  company  under  this 

head,  and  Aubrey  as  secretary  or  treasurer  as  you  wish.  Will 
look  for  your  letter  and  small  notes  to-morrow.  I  am  worried 
as  the  time  to  take  care  of  the  old  ones  is  short.  Do  not  forget 
that  now  is  the  time  I  need  your  aid."  Aubrey  was  Spencer's 
bookkeeper  and  business  confidant. 

Milair,  recognizing  the  fitness  of  things,  preferred  the  name, 
"  The  PhoBnix  Contract  Company,"  and  so  wrote  Spencer,  and 
the  latter  name  was  chosen.  When  asked  by  the  defendants' 
counsel :  "  I  suppose  you  suggested  that  because  it  was  rising 
out  of  the  ashes  of  your  former  enterprise  ?  "  He  replied,  '*  That 
was  my  idea,  yes ;  that  is  the  reason  I  thought  it  was  an  appro- 
priate name." 

In  a  letter  to  Milair,  dated  December  13, 1895,  Spencer  states : 
"  My  attorney  says  I  cannot  be  a  director  in  any  company  with- 
out being  liable  for  its  debts,  and  I  can't  afford  to  do  that" 
On  December  28,  he  says  in  another  letter:  "A  new  company 
with  Pelletreau  and  Hoffmire  and  several  others  with  us,  would 
make  the  thing  go  at  once.  This  is  the  quickest  way  to  get 
easy,  and  if  they  would  authorize  Aubrey  to  buy,  we  could  be- 
gin now,"  etc.  It  may  be  remarked  here,  that  throughout  the 
voluminous  correspondence,  only  brief  extracts  from  which  can 
be  presented,  Spencer  appears  anxious  to  get  every  one,  that 


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COMMONWEALTH  v.  SPENCER.  263 

1898.]  Opinion  of  tlie  Court. 

might  be  made  useful,  into  the  new  company,  while  determined 
to  have  no  visible  connection  with  it  himself. 

In  a  letter  of  Januaiy  15, 1896,  he  complains  to  Milair  that 
the  latter  is  "  too  slow  about  the  new  company  "  and  concludes 
as  follows :  "  You  cannot  aflford  to  neglect  this  new  company 
for  something  less  reliable.  When  you  get  H.  and  P.  to  join, 
I  will  send  ♦25.00  for  charter.  Now  act  quickly.  Aubrey  has 
become  discouraged  at  your  slow  pace."  The  next  letter,  dated 
February  8, 1896,  and  referring  to  certain  notes  that  he  wanted 
Milair  to  send  him  for  speculative  purposes,  contains  the  follow- 
ing :  "  It  would  be  as  well  that  the  notes  should  bear  no  indorse- 
ment that  would  suggest  the  South  Western  Pacific  Company. 
This  deal  has  progressed  so  satisfactorily  so  far  that  I  would 
not  on  any  account  have  it  imperiled  now."  Two  days  later,  he 
writes  Milair:  ^'•Both  myself  and  Aubrey  are  ready  to  take  off 
our  coats  to  make  the  new  company  a  success,  if  we  can  only  get 
it  started,  and  I  accordingly  enclose  a  check  as  promised,  pay- 
able to  the  secretary  of  state  of  New  Jersey,  amount  $26.00,  and 
shall  be  glad  to  know  that  the  organization  will  be  completed 
at  an  early  date."  It  seems  that  Milair  did  not  have  the  small 
sum  of  money  needed  to  pay  the  fees  on  the  issuing  of  tlie 
charter.  On  February  26,  Spencer  says  in  another  letter  to 
Milair :  **  I  wired  you  this  morning  to  send  me  the  name  of  th» 
new  company,  and  the  position  assigned  to  Aubrey  in  it,  as  I 
want  to  work  some  of  the  matters  I  have  on  hand  through  the 
medium  of  the  new  organization."  The  telegram  referred  to  is. 
as  follows :  "  Wire  name  new  company,  Aubrey's  position  in  it 
so  can  make  purchases."  In  a  letter,  dated  March  2,  1896,  he- 
says:  "I  want  Thomas  Aubrey  made  secretary  and  treasurer  of 
the  Phoenix  Contract  Co.,  as  he  will  do  the  buying  and  trading 
at  this  end."  On  March  7,  1896,  he  writes :  "  I  hope  you  will: 
now  lay  aside  every  other  scheme  until  this  is  perfected,  and 
once  in  working  order,  I  am  sure  it  will  be  highly  renumerative^ 
for  you  and  me."  The  charter  for  the  Phoenix  Contract  Company 
was  obtained  under  the  laws  of  New  Jersey,  on  March  7,  1896,. 
and  the  capital  stock  was  fixed  at  $100,000.  Milair,  Joseph  P. 
Wiswall,  and  Charles  R.  Braine  were  the  incorporators,  all  soi 
far  as  we  can  see,  being  financially  irresponsible,  nor  does  it  ap- 
pear that  James  Kennedy,  who  was  brought  in  later,  concededly 
as  a  figure  head,  was  in  much  better  condition.    The  $26.00  check 


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264  COMMONWEALTH  v.  SPENCER. 

Opinion  of  the  Court.  [6  Pa.  Superior  Ct. 

was  used  in  paying  for  the  charter.  Braine  was  made  president, 
Kennedy  vice-president,  Aubrey  secretary  and  treasurer  with 
an  office  at  Scranton,  and  Milair  general  manager,  with  an  office 
in  New  York.  Braine,  as  Milair  says  in  his  testimony,  was  the 
"  Mr.  B."  referred  to  in  the  following  extract  from  Spencer's  let- 
ter to  Milair  dated  October  14,  1895,  "  We  are  all  discouraged 
at  this  end.  Mr.  B.  has  given  up  the  idea  of  getting  spruce  lum- 
ber. I  fear  we  shall  not  be  able  to  bring  him  into  use  again.'* 
On  March  17, 1896,  Spencer  says  in  a  communication  to  Milair: 
**  I  enclose  herewith  check,  #50.00,  to  cover  rent  of  new  offices 
at  156  Broadway,  and  hope  to  hear  at  once  that  you  have 
closed  arrangements  for  same.  This  must  be  done  at  once 
that  we  may  proceed  to  get  our  stationery  pnnted  here  and 
that  you  may  antinge  for  a  rating  as  suggested  to  Aubrey 
yesterday.  Please  lose  no  time  in  these  matters.  I  am  spe- 
cially anxious  if  possible  to  get  some  money  this  month  to  take 
up  some  of  the  old  papers,  and  I  see  no  other  way  to  accom- 
plish it  but  through  the  medium  of  the  new  Co.  Nothing  can 
be  done  until  these  details  are  definitely  fixed,  and  we  must 
all  act  at  once  while  trade  remains  dull."  On  the  next  day,  he 
again  writes,  saying  '••  I  cannot  too  greatly  emphasize  the  ne- 
cessity for  promptly  obtaining  for  the  new  Co.  a  good  rating. 
Nothing  can  be  done  without  it,  and  if  it  is  delayed  we  can  do 
no  business  here."  Again  on  March  24th,  he  says :  "  I  am  very 
anxious  on  the  question  of  rating  for  the  new  Co.,  of  which  you 
make  no  mention  in  recent  letters.  Please  rush  this  matter  as 
Aubrey  and  I  are  very  desirous  of  getting  down  to  business. 
Material  is  daily  offered  to  me,  which  the  Phoenix  Co.  could 
easily  buy,  given  a  good  rating.  We  cannot  make  a  move  with- 
out it  however,  and  I  don't  want  to  run  the  risk  of  making  a 
mistake."  Three  days  later,  he  writes  Milair:  "Now  we  have 
lots  of  business  in  the  air.  The  delay  on  the  rating  hurts.  The 
secretary  sent  out  specifications  (at  a  risk  I  think)  for  822,000 
worth  of  nails.  ...  If  you  can  get  in  new  office  do  so  at  once, 
as  inquiries  may  come  there  concerning  the  nails  purchased." 

Before  this  time  Aubrey  had  also  been  writing  Milair  hurry- 
ing him  up.  In  a  letter  under  date  of  March  21, 1896,  he  says : 
**  We  are  all  in  shape  here  to  proceed  to  business,  but  awaiting 
your  advice  as  to  rating.  Please  say  when  you  can  secure  this, 
as  it  will  certainly  be  the  first  question  put  to  us  in  response  to 


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COMMONWEALTH  v,  SPKNCER.  265 

1898.]  Opinion  of  the  Couit. 

inquiries  for  material.  ...  It  will  be  advisable  for  each  of  us 
to  keep  the  other  informed  of  every  move  made,  so  that  there 
may  be  no  surprises  sprung  on  either."  On  the  26th  of  the 
same  month,  he  writes :  "  Seeing  that  Mr.  S.  will  ultimately 
handle  a  large  proportion  of  the  material  we  shall  buy,  it  will  be 
inadvisable  to  use  his  name  as  reference  whenever  it  is  asked  for." 
On  the  30th  of  the  same  month,  he  again  writes  Milair,  saying : 
*'  Mr.  Spencer  wired  you  this  A.  M.  to  be  here  on  Wednesday 
morning  without  fail.  We  have  agreed  to  meet  Dun's  agent  at 
3  o'clock  on  Wednesday  afternoon  to  make  a  statement  relative 
to  the  position  of  this  Co.  This  must  be  done  at  once  inasmuch 
as  we  have  a  big  nail  deal  practically  consummated,  and  if  we 
can  only  nobble  Dun's  local  man,  we  are  safe  to  carry  it  through. 
Please  do  not  fail  to  be  here  and  bring  along  whatever  you  can 
that  will  establish  us  with  Dun's.  A  rating  can  be  more  easily 
procured  here  than  in  N.  Y.  From  what  Mr.  Spencer  said  in 
his  letter  to  you  on  Friday,  I  concluded  you  would  be  on  the 
lookout  for  nail  men.  I  wrote  to  every  nail  mill  in  Penna.,  and 
have  one  quotation  today  that  looks  like  positive  business. 
Hence  the  necessity  for  your  certain  appearance  on  Wednesday. 
Anything  in  the  shape  of  bonds,  notes,  or  securities  of  any  kind 
that  you  can  get  hold  of,  it  would  be  very  essential  to  bring 
along  with  you." 

It  is  significant  that  the  "big  nail  deal"  referred  to  was  the 
one  consummated  with  Koons  later,  as  Aubrey  admits  in  his 
cross-e^tamination.  This  matter  has  a  most  important  bearing 
on  the  alleged  particular  conspiracy  of  Spencer  and  Aubrey  to 
defraud  Koons.  Among  the  definitions  of  "  nobble  "  a  word 
little  used  here,  but  common  in  England,  Aubrey's  native 
country,  the  Century  Dictionary  gives  the  following,  ''  Circum- 
vent," "get  the  better  of,"  "get  hold  of  dishonestly,"  and  a 
nobbier  is  "a  thimblerigger's  confederate." 

In  response  to  the  call  from  Spencer  and  Aubrey,  Milair  went 
from  New  York  to  Scranton,  and  met  them  at  the  company's 
office  in  the  latter  city.  The  three  men,  in  order  to  get  a  good 
business  rating  through  R.  G.  Dun  &  Co.'s  agency,  for  the 
Phoenix  Contract  Company,  prepared  the  following  statement  : 

"  The  authorized  capital  stock  of  the  Company  is  ^100,000, 
of  which  $50,000  has  been  subscribed  and  paid  for.  The  assets 
of  the  company  is : 


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266  COMMONWEALTH  v.  SPENCER. 

Opinion  of  the  Couit.  [6  Pa.  Superior  Ct 

Cash  in  bank •  8,000.00 

Bills  receivable 10,000.00 

Merchandise,  about 17,000.00 

Stocks,  Bonds,  etc 20,000.00 

Total 850,000.00 

Liabilities None. 

"The  banking  of  the  company  is  done  with  the  Traders' 
National  Bank,  Scranton,  Pa. 

"  The  business  of  the  company  is  that  of  general  contractors 
for  the  construction  of  railroads,  bridges,  etc.  etc.,  and  has  sev- 
eral lai-ge  contracts  pending." 

Not  a  dollar  of  the  stock  was  at  any  time  paid  for,  nor  was 
it  intended  that  it  should  be  paid  for,  even  in  part.  In  what 
proportions  it  was  held  by  the  incorporators  does  not  appear. 
Indeed,  Aubrey,  the  secretary  and  treasurer,  admits  in  his  tes- 
timony that  he  did  not  know  himself.  But  this  was  a  matter 
of  small  moment,  seeing  that  the  division  of  the  gross  receipts 
in  the  manner  agreed  on,  rather  than  of  legitimate  profits,  was 
the  chief  aim  and  object  of  the  confederacy.  The  company 
was  organized  mainly  to  get  goods  on  credit,  or  for  securities 
of  little  or  no  value,  that  Milair  might  pick  up  in  New  York 
and  elsewhere  by  the  questionable  methods  revealed  by  the  evi- 
dence. That  there  was  no  intention  to  expend  more  money 
than  was  absolutely  necessary  to  bait  the  traps  from  time  to 
time  is  very  apparent.  The  company  had  nothing  in  the  way 
of  assets  or  capital  save  $3,000  temporarily  deposited  by  Spen- 
cer in  the  Traders'  National  Bank  of  Scranton  to  aid  in  making 
a  false  show  and  securing  a  fraudulent  rating.  This  deposit, 
as  is  shown  by  the  correspondence,  had  "a  string  to  it,"  and 
was  all  withdrawn  inside  of  thirty  daj's.  A  statement  more 
boldly  and  nakedly  false  was,  perhaps,  never  before  sought  to 
be  imposed  on  a  mercantile  agency. 

It  failed  to  accomplish  its  intended  purpose  with  R.  G.  Dun 
&  Co.,  but  misled  Bradstreet's  agency,  which  latter  concern  gave 
the  company  the  desired  rating.  Everything  was -now  ready  for 
the  "  big  nail  deal "  with  Koons,  who  lived  in  Audenreid,  a 
town  on  the  edge  of  Luzerne  county,  and  was  representing  him- 
self and  his  partner  George  John.  To  bring  about  this  deal 
speedily  was  evidently  the  main  reason  for  the  anxiety  of  Spen-  • 


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COMMONWEALTH  v.  SPENCER,  2C7 

1898.]  Opinion  of  the  Court. 

cer  and  Aubrey  to  get  Milair  to  Scranton  and  secure  a  rating, 
as  the  evidence  shows  that  on  the  very  day  Aubrey  wi^ote  his 
letter  hist  quoted  from,  he  had  negotiated  with  Koons  for  a 
large  lot  of  nails.  Thereafter  the  two  Scranton  conspiratoiB 
followed  Koons  as  the  skillful  hunter  pursues  his  quarry.  Au- 
brey's letters  to  his  victim,  wherein  he  assumes  the  tone  of  a 
strict  and  careful  business  man,  who  will  not  stand  any  remiss- 
ness, his  complaints  of  delay,  his  intimations  that  only  the  great- 
est promptness  on  the  part  of  Koons  will  save  the  latter  from 
losing  a  valual^e  customer,  are  models  of  cunning  and  effront- 
ery. 

By  June  10, 1895,  goods  to  the  value  of  $10,050.27  had  been 
obtained  from  Koons  and  his  partner.  They  were  secured 
through  about  a  dozen  shipments,  all  save  two  made  to  points 
in  Luzerne  county.  Of  the  total  price,  #1,000  was  paid  in 
cash  and  about  $950  by  tuining  over  to  Koons  storage  receipts 
for  some  goods  in  New  York,  the  title  to  which  he  testified  at 
the  trial,  was  still  in  dispute.  Beyond  these  amounts  nothing 
was  paid.  On  June  8,  1896,  when  only  $15.00  stood  to  the 
credit  of  the  company  in  the  bank  wherewith  all  its  business 
was  done,  the  other  moneys  collected  from  the  sales  of  Koons's 
goods  having  been  divided  between  Spencer  and  Aubrey, 
the  latter  negotiated  with  Koons  for  material  to  cost  $12,000 
more.  In  a  letter  of  that  date  to  Milair  he  says :  "  It  was  the  best 
policy  to  give  Koons  money,  as  I  have  now  got  his  entire  confi- 
dence, and  yesterday  closed  a  deal  with  him  for  $12,000  worth 
of  material  for  prompt  delivery."  Before  Koons  shipped  the 
goods  last  ordered,  he  suspected  that  he  was  being  cheated  and 
refused  to  go  any  farther.  In  an  earlier  letter  Aviitten  May  28, 
1896,  to  Milair,  Aubrey  sajrs,  speaking  of  Koons,  "  I  think  you 
had  better  leave  him  to  me,  and  if  you  reply  to  his  letter  give 
him  to  understand  that  you  will  not  interfere  between  the  Scran- 
ton office  and  his  good  self,  inasmuch  as  his  treatment  of  our 
orders  has  been  so  unbusinesslike  and  annoying  to  us.  We  can 
work  him  well  enough  from  this  end,  and  his  zeal  for  prompt  cash 
settlements  will  soon  cool  off.  .  .  .  Mr.  Spencer  has  written  a 
good  letter  to  Lehigh  Lumber  Co."  Spencer's  letter  to  the  Le- 
high Lumber  Company  was  one  recommending  the  Phoenix  Con- 
tract Company-as  entitled  to  credit,  and  falsely  representing  its 
business  and  assets. 


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268  COMMONWEALTH  v.  SPENCER. 

Opinion  of  the  Court.  [6  Pa.  Superior  Ct. 

What  became  of  the  material  purchased  from  Koons  ?  This 
inquiry  is  fully  answered  by  the  evidence.  No  sooner  were 
shipments  commenced  than  a  manufacturer's  agent,  or  broker, 
Fred  E.  Turner,  of  Wilkes-Barre,  a  debtor  of  Spencer,  was  sent 
for  and  an  arrangement  made  with  him  to  sell  the  property. 
Spencer,  Aubrey  and  Turner  met,  not  at  the  office  of  the  Phoe- 
nix Contract  Company,  but  at  Spencer's  own  office  at  Green 
Ridge  Iron  Works,  Scranton.  Turner  says,  *'  They  there  in- 
formed me  that  the  Phoenix  Contract  Company  had  been  organ- 
ized, and  that  they  had  excess  material  that  would  be  turned 
into  cash,  at  a  price  below  the  market  rate,  in  order  to  assist  Mr. 
Spencer  on  some  notes  that  he  had  indorsed  for  gentlemen  in 
New  York."  They  farther  explained  that  the  excess  was  from  a 
large  contract  that  the  company  had  in  the  west,  and  that  Spen- 
cer had  put  Aubi^y  into  the  company  as  secretary  and  treasurer, 
to  look  after  Spencer's  interests.  Turner  immediately  started 
for  New  York,  to  which  city  the  first  shipments  had  been  made, 
where  he  sold  one  thousand  kegs  of  nails  at  ten  per  cent  below 
the  then  market  rate,  and  the  price  agreed  to  be  paid  Koons 
only  a  few  days  before,  his  commissions,  part  of  which  were  to 
be  applied  to  his  indebtedness  to  Spencer,  to  come  out  of  the 
sums  realized. 

After  the  material  in  New  York  had  been  disposed  of,  he 
went  into  Luzerne  count}"-,  pursuant  to  his  authority,  and  from 
time  to  time,  during  the  spring  and  summer  of  1896,  there  sold 
the  goods  shipped  by  Koons  into  that  county,  at  figures  (some- 
times as  much  as  fifteen  per  cent)  below  the  ruling  market 
prices.  Most,  perhaps  all,  of  these  goods  were  consigned  by 
G.W.  Koons  &  Co.  to  themselves,  at  Wilkes-Barre  and  Plymouth. 
The  facts  just  recited  are  important  in  considering  what  overt 
acts  were  committed  in  Luzerne  county  by  Spencer  and  Aubrey, 
or  either  of  them,  acting  by  authority  express  or  implied  of 
both,  or  by  their  agent  Turner,  in  furtherance  of  the  common 
design.  The  offenders  may  be  indicted  in  any  county  where 
even  a  single  overt  act  has  been  committed.  Our  Supreme 
Court,  announcing  the  general  rule  on  the  subject,  has  said 
in  Commonwealth  v.  Gillespie,  7  S.  &  R.  469,  and  the  lan- 
guage is  applicable  to  more  than  one  branch  of  this  case :  "  It 
must  be  recollected  that  conspiracy  is  a  matter  of  inference, 
deducible  from  the  acts  of  the  parties  accused,  done  in  pursu- 


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COMMONWEALTH  v.  SPENCER.  269 

1898.]  Opinion  of  the  Court. 

ance  of  an  apparent  criminal  purpose,  in  common  between  them, 
and  which  rarely  are  confined  to  one  place,  and  if  the  parties 
are  linked  in  one  community  of  design  and  of  interest,  there 
can  be  no  good  reason  why  both  may  not  be  tried  where  one 
distinct  overt  act  is  committed,  for  he  who  procures  another  to 
commit  a  misdemeanor  is  guilty  of  the  fact,  in  whatever  place 
it  is  committed  by  the  procuree." 

Turner  usually  made  the  Luzerne  county  sales  while  the 
goods  were  yet  in  the  carriers'  hands,  consigned  to  G.  W. 
Koons  &  Co.,  and  therefore  liable  to  stoppage  in  transitu: 
Hayes  &  Black  v.  Mouille  &  Co.,  14  Pa.  48;  Penna.  R.  Co. 
V.  Amer.  Oil  Works,  126  Pa.  485;  Tiffany  on  Sales,  216^ 
217.  In  such  cases  he  reported  the  sales  to  the  Scranton  office, 
and  orders  of  G.  W.  Koons  &  Co.  to  deliver  were  sent  from 
tiiere  to  the  carriers.  Sometimes  he  had  deliveries  made  di- 
rectly to  himself.  It  cannot  be  denied  that  these  transactions 
constituted  overt  acts,  in  furtherance  of  the  scheme  to  defraud. 
It  is  urged,  however,  for  the  defense,  tliat  while  Spencer  may 
have  been  in  the  conspiracy  to  defraud  the  public  genemlly, 
there  is  no  sufficient  proof  that  he  conspired  against  G.  W. 
Koons  &  Co.,  or  that  he  authorized  any  overt  act  in  Luzerne 
county,  and  that  therefore  the  defendant  could  not  be  brought 
within  the  jurisdiction  of  the  court  of  quarter  sessions  of  that 
county.  But  Tuiiier  testifies  that  he  talked  and  communicated 
with  both  defendants  regarding  the  business,  that  *^  he,"  Spen- 
cer, "  advised  with  me  on  the  sale  of  material  that  was  under 
way.  If  I  needed  any  instructions  or  advice  I  got  it  from  either 
one  of  them,  from  either  Mr.  Spencer  or  Mr.  Aubrey."  It 
must  be  remembered  that  practically  the  only  victim,  or  at  least 
the  only  one  worth  mentioning  that  came  into  the  net,  was 
Koons,  and  that  about  the  only  business  done,  so  far  as  the  evi- 
dence shows,  was  getting  hold  of  the  goods  of  Koons  and  his 
partner,  promptly  selling  them  at  less  than  cost  and  market 
prices,  and  dividing  the  proceeds  between  Spencer  and  Aubrey, 
the  former  getting  most  of  the  money.  Everything  that  was 
realized  went  substantially  to  these  two  men.  Their  confeder- 
ates were  completely  ignored  in  the  division  of  the  spoils. 
Milair  testifies,  and  his  testimony  in  the  main  is  borne  out  by 
other  evidence,  **  They  got  in  I  understand  some  eight  or  ten 
thousand  dollars.     They  told  me  all  the  time  they  had  not 


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270  COMMONWEALTH  v.  SPENCER. 

OpiDion  of  the  Couit.  [6  Pa.  Superior  Cti 

received  it,  but  it  seems  they  did  receive  it  during  June,  July, 
and  August.  They  told  me  the  goods  had  not  been  delivered 
and  had  not  received  any  money,  could  not  even  send  money 
for  the  rent  of  the  office  in  New  York.  In  the  meantime  had 
taken  thousands  of  dollars  as  it  appears  out  of  the  treasury  of 
the  company."  He  also  says,  and  there  is  no  denial,  **  I  asked 
the  secretary  and  treasurer  for  a  statement  repeatedly  and  re- 
peatedly ;  never  furnished  it  to  me.  I  don't  know  how  much 
money  was  paid  in  or  what  paid  out,  they  would  not  allow  me 

to  see  the  books,  or  allow  me, ^  to  give  me  any  information 

of  any  kind.  They  simply  took  the  money  and  left  me  in  New. 
York." 

Koons  testifies  that  after  he  had  made  a  shipment  or  two,  he 
met  Spencer,  at  Aubrey's  request,  and  that  the  former  assured 
him  that  Aubrey  and  the  Phoenix  Contract  Company  were  all 
right  and  that  ^^he  would  not  hesitate  to  give  them  a  line  of 
credit  himself."  It  will  be  observed,  from  the  evidence,  that  he 
-  did  not  do  this,  although  the  company  was  anxious  to  buy  the 
very  things  he  was  manufacturing  and  selling. 

On  one  occasion  Aubrey  went  to  Wilkes-Barre,  and  told 
Spencer  that  Turner  needed  money  the  next  day,  and  that  they 
must  go  together  and  collect  some  of  the  bills  for  the  goods  sold 
by  Turner.  This  they  did  and  Aubrey  went  back  to  Scranton 
with  the  funds.  It  would  be  easy  to  refer  to  other  evidence,  in 
the  case,  tending  still  further  to  show  the  intimate  connection 
and  understanding  between  Spencer  and  Aubrey  in  regard  to 
the  transactions  with  Koons,  and  that  from  beginning  to  end 
Spencer's  was  the  master  mind. 

A  motion  for  a  new  trial  was  made  in  the  court  below,  one 
of  the  main  reasons  relied  on  being  an  affidavit  made  by  Turner 
after  the  trial,  that  he  did  not  mean  to  say  in  his  testimony  that 
Spencer  had  directed  him  to  sell  the  material  furnished  by  the 
Koons'  firm.  This  was  not  in  accordance  with  his  story  told  the 
counsel  for  the  commonwealth,  or  his  testimony  before  the  grand 
jury  and  the  traverse  jury,  which  was  undenied  by  the  defend- 
ants at  the  trial.  His  deposition  was  taken  to  be  used  at  the 
argument  of  the  motion,  and  it  appears  from  it  that,  a  month 
after  the  trial,  Spencer  had  Turner  go  to  Scranton,  and,  after  talk- 
ing to  him,  secured  the  affidavit.  Unfortunately  for  the  defense, 
Turner,  on  cross-examination,  was  compelled,  in  his  deposition 


Digitized  by  VjOOQ IC 


COMMONWEALTH  v.  SPENCER.  271 

1898.]  Opinion  of  the  Court. 

to  explain  the  aflBdavit,  and  his  explanation  when  analyzed 
Bimply  means,  to  use  his  own  language,  that  Spencer  did  not 
** actually  and  solely"  employ  him  to  make  the  sales.  But 
even  if  we  accept  the  affidavit  as  true,  and  meaning  all  that  it 
says,  there  is  still  enough  left  in  the  circumstances,  the  umis- 
sadled  and  unretracted  part  of  the  testimony  of  Turner,  and  the 
other  evidence,  to  amply  justify  the  conviction.  Turner's  agree- 
ment to  receive  fSOO  for  furnishing  information,  which  aided 
Koons  in  following  the  conspirators  in  their  secret  windings, 
throws  no  doubt  on  those  portions  of  his  testimony  impliedly 
admitted  to  be  true,  and  to  which  he  still  adheres. 

It  is  urged  by  the  defense  that  the  commonwealth  should  not 
have  been  permitted  to  go  into  the  history  of  the  formation  and 
purposes  of  the  Phoenix  Contract  Company,  as  by  so  doing  a 
separate  and  indictable  conspiracy  to  defraud  the  public  at 
large  was  uncovered.  For  the  same  reason  it  might  be  ob- 
jected, in  behalf  of  one  indicted  for  killing  or  wounding  an- 
other with  a  deadly  weapon,  that  the  commonwealth  should 
be  debarred  from  proving  that  the  prisoner,  for  weeks  before 
the  commission  of  the  crime,  had,  contrary  to  our  statute, 
canied  the  weapon,  concealed  on  his  person,  with  the  de- 
liberate intention  of  using  it  against  any  one  whom  he  might 
select  from  a  class  of  persons.  In  order  to  properly  compre- 
hend the  nature  and  circiimstances  of  the  particular  conspiracy 
charged  in  the  indictment,  and  the  motives  and  conduct  of 
the  two  defendants,  it  was  absolutely  necessary  to  admit  the 
evidence  whereof  complaint  is  made.  Never  in  the  history 
of  English  or  American  jurisprudence  was  there  a  time  when 
an  intelligent  judge  would  have  excluded  it.  The  bogus  com- 
pany was  part  of  the  juggling  machinery  created  by  the  defend- 
ants to  delude  their  victims,  and  was  deliberately,  skillfully  and 
successfully  employed  as  a  means  or  instrument  in  deceiving 
Koons.  Had  it  not  been  so  used,  by  both  defendants,  thei-e 
would  be  reason  in  their  objection.  The  case  of  Carroll  v. 
Commonwealth,  84  Pa.  107,  and  kindred  authorities  fully  sus- 
tain the  admissibility  of  the  evidence,  but,  even  before  these 
cases  were  decided,  its  relevancy  could  not  have  been  fairly 
questioned. 

Coming  now  to  a  direct  consideration  of  the  assignments  of 
error,  we  find  that  the  first  fails  to  comply  with  Rule  17  of  this 


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272  COMMONWEALTH  v.  SPENCER. 

Opinion  of  the  Court.  [6  Pa.  Superior  Ct. 

court,  as  it  neither  quotes  the  full  substance  of  the  bill  of  excep- 
tions, nor  copies  the  bill  in  immediate  connection  with  the 
assignment.  The  offer  of  evidence  and  the  ruling  thereon  are 
given,  but  the  evidence  itself  is  neither  set  forth  nor  incorpo- 
rated by  reference.  The  second  assignment,  at  least  so  far  as 
it  relates  to  the  evidence  outside  of  the  certificate  therein  men- 
tioned, is  open  to  the  same  objection,  and  the  further  one  that 
it  fails  even  to  show  the  ruling  of  the  court  on  the  offer.  The 
letters  referred  to  in  the  fourth  assignment  only  one  of  which 
is  set  forth  or  otherwise  individuated  were,  so  far  as  we  can 
see,  offered  and  admitted  without  objection ;  hence  it  is  unfair 
to  the  court  below,  as  well  as  improper,  to  assign  their  admis- 
sion as  error.  The  fifth,  sixth,  and  eighth  assignments  com- 
plain of  the  refusal  of  the  couii;  below  to  grant  a  new  trial.  No 
exception  was  taken  to  this  action  of  the  court.  The  other, 
assignments,  relating  to  the  jurisdiction  of  the  court,  and  alleged 
errors  in  the  charge,  cannot  be  sustained.  .The  statement  quoted 
from  the  charge,  in  the  third  assignment  of  error,  is  fully  war- 
ranted by  Spencer's  own  undenied  and  unexplained  letters. 

The  peculiar  character  of  the  case  has  led  us,  as  will  be 
observed,  to  consider  it  more  fully  and  broadly  on  its  merits 
than  a  strict  adherence  to  our  rules,  relating  to  assignments  of 
error,  demands.  In  doing  so  we  have  reached  the  conclusion, 
that  the  defendants  were  treated  with  the  greatest  fairness  dur- 
ing the  trial,  every  doubtful  question  raised  by  their  counsel 
having  been  resolved  in  their  favor,  that  the  verdict  was  the 
only  one  the  evidence  would  warrant,  that  a  new  trial  was 
justly  refused  for  the  reasons  set  forth  by  the  learned  trial 
judge  in  his  opinion,  and  that  the  sentences  are  very  merciful. 

All  the  specifications  of  error  are  overruled,  the  judgments 
are  affirmed,  and  the  record  remitted  to  the  court  below,  to  the. 
end  that  the  sentences  imposed  may  be  duly  enforced.  And  it 
is  ordered  that  the  defendants  surrender  themselves  forthwith 
to  the  custody  of  the  keeper  of  the  jail  of  Luzerne  county,  and 
serve  out  so  much  of  the  periods  of  imprisonment,  prescribed  by 
the  said  sentences,  as  had  not  expired  on  Jime  30, 1897,  the  day 
the  supersedeas  allowed  on  this  appeal  took  effect. 


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COM.  V.  YEISLEY.  273 

1898.]  Sjllabos^-^tatement  of  Facts. 

Commonwealth  of  Pennsylvania  ex  rel.  John  T.  Bald- 
win &  Co.  V.  George  Yeisley,  Constable,  and  John  R. 
Jeffries,  Surety  on  his  Official  Bond,  Appellants. 

Public  officers — ConstabWs  bonds — Cause  of(icUonfor  neglect. 

In  an  action  of  assumpsit  on  a  constable's  official  bond  a  sufficient  cause 
of  action  is  disclosed  where  tiie  breach  alleged  was  that  an  execution  was 
placed  in  the  constable's  hands  by  virtue  of  which  he  had  made  levy  upon 
goods  of  the  debtor  which  would  have  sold  for  more  than  enough  to  sat- 
isfy the  execution  but  that  he  neglected  and  refused  to  sell  them  but  made 
return  **  no  goods  found  subject  to  levy  and  sale.'^ 

PracUce^  C,  P, — Amended  sUUement  and  second  rule  for  Judgment. 

It  is  not  error  to  permit  a  plaintiff  to  withdraw  his  original  statement 
and  to  file  another,  averring  the  elements  of  damage  with  greater  partic- 
ularity and  verified  by  affidavit  as  required  by  rules  of  court.  No  new 
cause  of  action  being  introduced  such  action  is  a  proper  exercise  of  the 
power  to  permit  amendments.  Nor  is  there  error  in  granting  a  second 
rule  for  judgment  after  the  defects  in  the  original  statement  have  been  cured 
by  amendment. 

Practice,  C.  P.— Suit  on  constable's  bond  demands  affidavit  qf  defense. 
An  action  on  a  constable's  official  bund  conditioned  for  the  performance 
of  collateral  acts  or  official  duties  is  within  the  affidavit  of  defense  act. 

Constables — When  demand  requisite  under  act  of  1772. 

The  written  notice  or  demand  required  to  be  made  by  the  Act  of  March  21 , 
1772,  1  Sm.  L.  865,  only  applies  where  the  constable  acts  in  obedience  to 
his  warrant  or  writ;  it  has  no  application  where  the  cause  of  action  is 
based  on  his  open  contempt  of  and  disobedience  to  his  writ. 

Constable's  bond—Proper  entry  of  judgment—Power  of  court  to  control. 

While  there  may  be  force  in  the  contention  that  in  strict  practice  two 
judgments  should  be  entered  in  a  suit  on  a  constable's  bond,  one  in  favor 
of  the  commonwealth  for  the  amount  of  the  bond  and  one  in  favor  of  the 
plaintiff  for  his  damages,  it  does  not  appear  that  the  constable  has  reason 
to  complain  that  judgment  was  not  entered  for  the  penalty,  and  in  any 
event  the  court  would  have  power  to  correct  the  judgment  so  as  to  make 
it  conform  to  the  statute  had  the  question  been  raised  by  the  assignments 
of  eiTor. 

Argued  Nov.  10,  1897.  Appeal,  No.  156,  Nov.  T.,  1896,  by 
defendants,  from  judgment  of  C.  P.  Lancaster  Co.,  Feb.  T.,  1896, 
Nc.  47,  for  want  of  a  sufficient  affidavit  of  defense.  Before 
Rice,  P.  J.,  Wickham,  Beaveb,  Rbbdeb,  Oblady,  Smith 
and  PoBTEB,  JJ.  Affirmed. 
Vol.  VI— 18 


Digitized  by  VjOOQ IC 


274  COM.  V.  YEISLEY. 

Statement  of  Facts— Arguments.  [6  Pa.  Superior  Ct 

Assumpsit  on  constable's  bond.     Before  Brubaker,  J. 

It  appears  from  the  record  that  this  suit  was  brought  on  bond 
of  Yeisley,  one  of  the  defendants,  to  recover  for  losses  incident 
to  his  failure  to  execute  a  writ.  The  record  does  not  show  that 
notice  was  given  and  demand  made  by  plaintiffs  in  this  case  on 
the  constable  before  suit  was  brought.  Plaintiffs  moved  for 
judgment  for  want  of  a  suflScient  affidavit  of  defense  which  was 
refused.  The  court  subsequently  permitted  plaintiffs  to  with- 
draw the  statement  and  file  an  amended  statement  to  conform 
to  the  rules  of  court.  After  the  amended  statement  was  filed 
a  second  rule  for  judgment  for  want  of  an  affidavit  of  defense 
was  taken  and  subsequently  made  absolute  and  judgment  en- 
tered for  $151.60.    Defendants  appealed. 

Errors  assigned  were  (1)  In  enteiing  judgment,  viz :  "  We 
now  direct  judgment  to  be  entered  for  the  plaintiffs  for  the  sum 
of  one  hundred  and  fifty-one  dollars  and  sixty  cents  (*151.60).*' 
(2)  In  allowing  plaintiffs  to  withdraw  their  statement  filed 
April  18,  1896,  and  substitute  in  lieu  thereof  a  second  state- 
ment, filed  June  4,  1896.  (3)  In  allowing  a  new  or  second 
statement  to  be  filed  by  plaintiffs  in  lieu  of  their  first  statement, 
after  the  court  discharged  the  rule  for  judgment  on  the  first 
statement.  (4)  In  not  discharging  the  rule  for  judgment  giunted 
on  the  second  statement  filed.  (5)  In  entering  judgment  on  the 
statement,  No.  2,  filed,  as  there  is  not  sufficient  cause  of  action 
disclosed  therein  to  warrant  it.  (6)  In  holding  that  the  defend- 
ants are  requii'ed  to  file  an  affidavit  of  defense  to  prevent  judg- 
ment from  being  entered  against  them  under  the  Act  of  May  25, 
1887,  P.  L,  271,  for  want  of  an  affidavit  of  defense,  the  suit  in 
this  case  being  brought  on  a  constable's  official  bond.  (7)  In 
entering  judgment  against  the  defendants  for  the  reason  that  no 
notice  was  given  the  constable,  George  Yeisley,  one  of  the  ap- 
pellants, before  tliis  suit  was  brought,  as  required  by  the  Act  of 
March  21, 1772,  sec.  6,  1  Sm.  L.  365. 

J.  W.  Denlinger  and  A,  J.  Eberly^  for*  appellants. — It  was 
error  to  allow  the  plaintiffs  to  move  for  judgment  after  amended 
statement  had  been  filed.  The  statement  upon  which  the  judg- 
ment was  entered  was  deficient  and  did  not  warrant  the  entry 
of  such  judgment,  in  that  judgment  was  asked  to  be  entei'ed  for 


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CX)M.  V.  YEISLEY.  275 

1898.]  Arguments. 

the  commonwealth  for  the  use  of  Baldwin  &  Co.  for  the  amount 
of  their  dam^es  and  not  in  favor  of  the  commonwealth  for  the 
penal  sura  named  in  the  bond  which  would  accrue  to  all  parties 
interested  in  said  bond :  Byrne  v.  Hayden,  124  Pa.  170. 

An  affidavit  of  defense  is  not  required  in  actions  on  official 
bonds :  Endlich  on  Affidavits  of  Defense,  sec.  109 ;  Com.  v. 
Hoflfman,  74  Pa.  105. 

Judgment  in  this  case  must  be  reversed,  because  Yeisley, 
constable,  one  of  the  appellants,  did  not  receive  the  notice  he 
was  entitled  to  before  this  suit  was  brought,  under  the  act  of 
March  21,  1772,  sec.  6,  1  Sm.  L.  365 ;  Com.  v.  Warfel,  157 
Pa.  444. 

A.  F.  Eontetter^  with  him  W.  F.  Beyer^  for  appellees. — Per- 
mitting the  withdrawal  of  the  statement  and  filing  an  amended 
statement  was  the  proper  exercise  of  the  power  of  amendment : 
Waite  V.  Palmer,  78  Pa.  192 ;  Lance  v.  Bonnell,  105  Pa.  46 ; 
Kay  V.  Fredrigal,  3  Pa.  221. 

Nor  is  the  fact  that  the  court  entered  judgment  for  want  of  a 
sufficient  affidavit  of  defense  after  having  discharged  a  previ- 
ous rul^  an  abuse  of  discretion:  Wetherill  v.  Stillman,  65  Pa.  105. 

If  an  action  sounds  in  contract  its  name  is  assumpsit  and  an 
affidavit  of  defense  is  required.  The  act  of  1887  makes  no 
exception  as  to  official  bonds :  Bradley  v.  Potts,  33  W.  N.  C. 
570. 

The  only  seeming  exception  is  in  an  action  brought  to  recover 
statutory  penalties:  Osborn  v.  The  Bank,  154  Pa.  184. 

Our  case,  however,  is  not  a  penal  action  nor  is  it  an  action  ex 
delicto.  It  is  an  action  on  the  defendant's  bond  which  is  a  con- 
tract and  is  for  a  breach  of  the  covenant  of  that  bond. 

The  precise  objection  made  by  the  appellants  that  the  law 
remains  as  it  was  before  1887  is  met  by  the  Supreme  Court  in 
Byrne  v.  Hayden,  124  Pa.  170. 

The  case  at  bar  is  not  the  kind  of  case  covered  by  the  act  of 
1772.  It  is  manifest  that  the  sixth  section  of  that  act  is  no  pro- 
tection where  the  warrant,  if  legal,  would  furnish  no  justifica- 
tion and  this  section  has  no  place  where  the  injury  complained 
of  arises  from  an  act  which  was  not  commanded  by  the  writ : 
Mollison  V.  Bowman,  3  Clarke,  183 ;  Lantz  v.  Lutz,  8  Pa.  405. 


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276  COM.  V.  YEISLEY. 

Opinion  of  the  Court.  [6  Pa.  Superior  Ct 

Opinion  by  Rice,  P.  J.,  Januaiy  18, 1898 : 

This  was  an  action  of  assumpsit  upon  a  constable's  official 
bond.  The  breach  alleged  was  that  an  execution  having  been 
placed  in  his  hands  by  virtue  of  which  he  had  made  a  levy  up- 
on goods  of  the  debtor  which  would  have  sold  for  more  than 
enough  to  satisfy  the  execution ;  he  neglected  and  refused  to 
sell  them  but  falsely  made  i^etum  "no  goods  found  subject  to 
levy  and  sale."  The  action  was  in  substance,  as  well  as  in  form, 
ex  contractu,  and  by  the  express  terms  of  the  act  of  1887  the 
plaintiff's  statement  in  such  a  case  "  shall  be  replied  to  by  affi- 
davit." Th^re  is  nothing  in  the  objection,  that  an  action  upon 
a  bond  conditioned  for  the  performance  of  collateral  acts  or 
official  duties,  is  not  within  the  affidavit  of  defense  law.  If  the 
statement  contains  all  the  ingredients  of  a  complete  cause  of 
action,  averred  in  clear  and  unequivocal  language,  and  the  dam- 
ages are  specifically  set  out,  so  that,  upon  a  judgment  by  default, 
they  may  be  liquidated  with  certainty,  an  affidavit  must  be  filed 
to  prevent  judgment.  See  Byrne  v.  Hayden,  124  Pa.  170. 
The  principle  upon  which  Osbom  v.  First  Nat.  Bank,  154  Pa. 
134  was  decided  has  no  application  to  a  case  like  the  present, 
and  the  other  cases  cited  by  the  defendant's  counsel  were  de- 
cided prior  to  the  act  of  1887,  which,  as  was  said  in  Byrne  v. 
Hayden,  was  intended  to  have  a  wider  scope  than  the  old  affi- 
davit of  defense  law. 

It  was  not  error  to  permit  the  plaintiff  to  withdraw  his  origi- 
nal statement  and  to  file  another,  averring  the  elements  of  his 
damages  with  greater  particularity,  and  verified  by  affidavit  as 
the  rules  of  court  required.  No  new  cause  of  action  was  intro- 
duced. It  was,  in  effect,  a  proper  exercise  of  the  power  to  per- 
mit amendments :  Kay  v.  Fredrigal,  3  Pa.  221.  Nor  was  there 
error  in  granting  a  second  rule  for  judgment  after  the  defects  in 
the  original  statement  had  been  cured  by  amendment:  Wether- 
ill  V.  StiUman,  65  Pa.  105. 

The  act  of  March  21, 1772, 1  Sm.  L.  365,  declares :  "No  action 
shall  be  brought  against  any  constable  ....  for  anything 
done  in  obedience  to  any  warrant  under  the  hand  and  seal  of 
any  justice  of  the  peace,  until  demand  hath  been  made,  .... 
in  Writing,  signed  by  the  party  demanding  the  same,  of  the  peru- 
sal and  copy  of  such  warrant  duly  certified  under  his  hand,  and 
the  same  hath  been  neglected  for  the  space  of  six  days  after  such 


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COM.  V.  YEISLET.  277 

1898.]  Opinion  of  the  Court. 

demand."  The  purpose  of  this  provision  becomes  plain  wlien 
we  look  at  the  context.  It  was  to  protect  constables  in  acts 
done  in  obedience  to  writs  placed  in  their  hands,  notwith- 
standing a  defect  of  jurisdiction  in  the  justice  or  justices 
issuing  them,  and  to  inform  the  party  aggrieved  by  such  acts 
where  to  place  the  responsibility.  The  design  of  the  section  was 
to  make  the  justice  exclusively  answerable  for  his  own  defaults. 
Where  a  constable  has  pursued  his  warrant,  he  can  be  affected 
with  want  of  jurisdiction  in  the  magistrate,  only  where  he  is 
sued  alone,  having,  after  a  proper  demand,  refused  for  the  space 
of  six  days  to  furnish  a  copy  of  the  warrant :  Jones  v.  Hughes, 
5  S.  &  R.  299,  803 ;  Barr  v.  Boyles,  96  Pa.  81,  and  cases  there 
cited.  If,  however,  the  constable  acted  not  in  obedience  to  his 
warrant  but  in  open  contempt  of  it,  of  course  he  could  not 
plead  the  warrant  as  a  justification,  and  such  a  case  is  not 
within  the  letter  or  the  spirit  of  the  statute.  This  was  ex- 
pressly decided  in  Lantz  v.  Lutz,  8  Pa.  405,  where  the  action 
was  for  an  escape ;  and  although  it  has  been  held  since,  that 
the  action  cannot  be  maintained  by  the  prosecutrix  in  a  crim- 
inal case  and  to  that  extent  the  case  has  been  overruled  (Down- 
ing V.  Com.,  21  Pa.  215)  the  principle  for  which  we  cite  the 
case  as  authority  has  not  been  questioned  in  any  later  decision 
which  has  come  to  our  notice.  It  is  supported  by  the  English 
decisions  upon  a  precisely  similar  statute  collected  by  Judge 
Lewis  in  Mollison  v.  Bowman,  8  Clark,  281.  The  case  of 
Com.  V.  Warfel,  157  Pa.  444,  is  not  an  authority  to  the  con- 
trary. There  the  constable  had  in  his  hands  an  execution  is- 
sued by  competent  authority  commanding  him  to  do  just  what 
was  done.  If  proper  demand  had  been  made  and  complied  with, 
the  plaintiff  would  have  seen  that  no  action  could  be  maintained 
against  the  constable,  because  he  was  protected  by  his  writ  in 
levying  upon  and  selling  the  debtor's  goods.  Here  the  constable 
refused  to  obey  the  command  of  his  writ,  and  for  that  he  was 
exclusively  liable.  Undoubtedly,  as  the  Chief  Justice  says, 
the  demand  must  be  made  in  all  cases  within  the  purview  of 
the  act ;  but  this  case  was  not  within  its  purview. 

The  29th  section  of  the  act  of  March  20, 1810,  5  Sm.  L.  178, 
provided  that  constables'  bonds  should  be  "for  the  like  purposes 
and  uses  for  which  sheriffs'  bonds  are  usually  given."  Substan- 
tially the  same  provision  was  incorporated  in  the  112th  section 


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278  COM.  V.  YEISLEY. 

Opinion  of  the  Court.  [6  Pa.  Suijerfor  Ct, 

of  the  Act  of  April  15, 1834,  P.  L.  657,  and  was  interpreted  to 
mean  that  the  i-emedy  should  be  the  same  as  that  upon  sherifEs* 
bonds,  which  was  regulated  by  the  act  of  March  28, 1803,  4  Sm. 
L.  45.  It  was  held  upon  a  construction  of  these  statutes  that 
judgment  was  not  to  be  entered  for  the  penally  for  the  use  of 
those  interested  but  for  the  damages  sustained  by  the  party  suing: 
Campbell  v.  The  Commonwealth,  8  S.  &  R.  414.  But  the  act 
of  June  14, 1836,  P.  L.  637,  applies  in  express  terms  to  '*  every 
bond  and  obligation  which  shall  be  given  to  the  commonwealth 
by  any  public  officer,"  and  it  was  said  in  McMicken  v.  Common- 
wealdi,  58  Pa.  213,  that  "  so  much  of  the  act  of  1803  as  relates 
to  proceedings  upon  the  official  bond  of  the  sheriff  is  no  doubt 
supplied  and  therefore  repealed  by  this  act,"  but  it  was  held 
not  to  be  so  as  to  the  recognizance.  There  is  therefore  much 
force  in  the  defendants'  contention  that  in  strict  practice  two 
judgments  should  have  been  entered,  one  in  favor  of  the  com- 
monwealth for  the  amount  of  the  bond,  and  the  other  in  favor 
of  the  plaintiffs  for  their  damages.  It  is  not  clear,  however, 
what  reason  the  defendants  have  to  complain  that  judgment 
was  not  entered  for  the  penalty,  and  upon  a  critical  examina- 
tion it  will  be  seen  that  the  assignments  of  error  do  not  dis- 
tinctly and  unequivocally  raise  the  objection.  Even  if  they 
did,  it  would  not  be  necessary  to  reverse  the  judgment;  for 
we  would  have  power  to  correct  it  so  as  to  make  it  conform  to 
the  statute :  Carman  v.  Noble,  9  Pa.  366,  372 ;  Scarborough  v. 
Thornton,  9  Pa.  451,  456;  McMicken  v.  Commonwealth,  58 
Pa.  213,  219;  Act  of  June  24,  1895,  sec.  8,  P.  L.  212. 
Judgment  affirmed. 


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SKINNER  V.  CHASE.  279 

1898.]  Syllabus— Statement  of  Facts. 

Frank  Skinner,  to  use,  Appellant,  v.  George  Chase. 

JudgmerUs  as  set  off. 

Judgments  are  set  off  against  each  other  by  the  inherent  powers  of  the 
court  immemorially  exercised. 

Judgment — Set-off— Assignment  of  judgment — Discretion  as  to  conflicting 
equities. 

The  equity  of  a  defendant  to  set  off  a  judgment  purchased  by  him 
against  a  judgment  acquired  by  the  plaintiff  against  him  is  equal  to  the 
secret  equity  of  an  assignee  of  plaintiff^s  judgment  prior  in  time  to  defend- 
ants acquisition  of  judgment  sought  to  be  set  off  where  said  assignee 
has  neglected  the  precaution  of  having  the  judgment  marked  to  use.  The 
appellate  court  therefore  will  not  disturb  the  exercise  of  the  discretion  of 
the  court  below  in  making  absolute  a  rule  to  permit  defendant  to  set  off 
the  judgment  against  the  plaintiff  acquired  by  him  after  suit  brought. 

Assignment  of  chose — Subject  to  defense— Notice. 

An  assignee  of  a  chose  in  action  not  negotiable  takes  it  subject  to  all 
the  defenses  to  which  it  was  subject  in  the  hands  of  an  assignor  including 
the  right  of  the  debtor  to  set  off  any  claim  against  the  assignee  before 
notice  of  the  assignment. 

Practice,  C.  P. — Discretion  of  court — Duty  of  filing  opinion. 

In  cases  appealing  largely  to  the  discretion  of  the  court  below  where- 
oral  testimony  of  witnesses  is  frequently  heard  and  passed  upon,  an  opin- 
ion should  always  be  filed  by  the  court  setting  forth  at  least  briefly,  its 
findings  of  fact  and  the  grounds  of  its  decision :  Gump  v.  Goodwin,  172' 
Pa.  276. 

Argued  Oct.  22,  1897.  Appeal,  No.  123,  Oct.  T.,  1897,  hy 
plaintiff,  from  order  of  C.  P.  No.  2,  Phila.  Co.,  June  T.,  1895^ 
No.  52,  making  absolute  rule  to  set  off  judgment  held  by  defend- 
ant against  plaintiff.  Before  Rice,  P.  J.,  Wickham,  Beaver,. 
Reeder,  Orlady,  and  Porter,  JJ.    Affirmed. 

Rule  to  set  off  judgment  held  by  defendant  against  plaintiff 
against  a  judgment  held  by  plaintiff  against  defendant.  The 
rule  was  made  absolute  by  the  court  below.     Plaintiff  appealed. 

The  facts  suflBciently  appear  in  the  opinion  of  the  court.^ 

Hrror  assigned  was  making  absolute  the  rule  of  defendant 
permitting  him  to  set  off  judgment  which  he  obtained  by  pur- 
chase seven  months  after  the  plaintiff  had  assigned  hi»  ittteiest 
in  suit  against  defendant. 


Digitized  by  VjOOQ IC 


280  SKINNER  v.  CHASE. 

Ai"g:uments— Opinion  of  the  Court.  [6  Pa.  Superior  Ct. 

J,  M.  Moyer^  for  appellant. — If  the  assignments  are  good, 
then  the  purchase  by  Chase  of  the  Kennedy  judgment  for  the 
purpose  of  set-off  comes  like  the  doctor  at  the  funeral,  too  late* 

As  against  Skinner,  had  he  not  previously  assigned  his  inter- 
est in  the  Chase  suit,  the  judgment  not  presented  by  way  of 
set-off  would  be  one  thing,  but  as  against  Skinner's  assignees 
it  can  only  avail  subject  to  their  equities  and  rights :  Weidner 
V.  Schweigart,  9  S.  &  R.  387. 

Charles  A.  Chase^  for  appellee. — The  judgment  was  assigned 
to  defendant  who  set  it  off  against  tlie  judgment  subsequently 
obtained  against  himself.  He  certainly  had  as  much  right  to 
obtain  redress  as  the  original  legal  plaintiff  who  could  have  at- 
tached him  as  garnishee.  The  rule  to  set  off  one  judgment 
against  another  had  exactly  the  same  effect  as  an  attachment, 
was  more  expeditious,  less  expensive  and  placed  the  plaintiff 
under  no  disadvantage  whatever:  Hazelhurst  v.  Bayard,  8 
Yeates,  152 ;  RusseU  v.  Spear,  4  W.  N.  C.  476  ;  Rider  v.  John- 
son, 20  Pa.  190. 

If,  however,  the  security  offered  as  a  set-off  has  been  merely 
borrowed  for  the  purpose,  it  will  not  be  allowed :  McGowan  v. 
Budlong,  79  Pa.  472. 

The  power  to  set  off  judgments  has  been  exercised  immemo- 
rially,  and  arises  from  the  court's  equitable  powers  over  its 
suitors :  Gamer  v.  Price,  4  Kulp,  10.  See  also  discussion  of 
the  subject  by  Rice,  P.  J.,  in  Shoemaker  v.  Flosser,  5  Kulp,  437. 

It  has  been  decided  in  the  following  cases  that  a  judgment 
can  be  set  off  against  a  judgment  notwithstanding  equities  in 
third  parties :  Stout  v.  Moore,  7  W.  N.  C.  456 ;  Hazelhurst  v. 
Bayard,  3  Yeates,  152;  Wain  v.  Hews,  5  S.  &  R.  468;  Com- 
well's  Appeal,  7  W.  &  S.  305. 

Opinion  by  Rice,  P.  J.,  January  18, 1898 : 

On  May  9,  1895,  Frank  Skinner  sued  George  Chase,  and  on 
December  6, 1895,  obtained  judgment  for  want  of  an  appear- 
ance. 

On  December  9, 1895,  Chase  applied  to  have  the  judgment 
opened.  His  application  was  granted,  and  on  April  8,  1897, 
the  plaintiff  obtained  a  verdict  for  $223.97,  upon  which  judg- 
ment was  entered  on  April  13th. 


Digitized  by  VjOOQ IC 


SKINNER  V.  CHASE.  281 

1898.]  Opinion  of  the  Court. 

On  the  following  day  (April  14th)  Chase  was  granted  a  rule 
to  show  cause  why  a  judgment  entered  in  common  pleas  No.  1 
in  favor  of  Thomas  Kennedy  against  Frank  Skinner,  and  as- 
signed by  Kennedy  to  Chase  on  December  11th,  should  not  be 
set  off  against  the  judgment  against  him.  Depositions  were 
taken,  by  which  the  following  facts  were  established : 

On  December  16,  1895,  Skinner  borrowed  of  William  P. 
Elder  f  200,  and  as  collateral  security  for  the  loan  (which  was 
renewed  in  June,  1895),  pledged  his  wife's  diamond  earrings, 
and  assigned  the  above-mentioned  claim  against  Chase.  On 
January  6,  1896,  this  claim  was  marked  of  record  to  Elder's 
use ;  and  so  the  record  stood  at  the  time  of  the  trial  and  at  the 
time  tlie  rule  under  consideration  was  granted.  It  appears, 
however,  that  on  June  1, 1896,  the  loan  was  repaid  by  the  check 
of  Skinner's  wife  drawn  upon  her  personal  bank  account,  and 
the  diamonds  were  returned  to  her.  At  the  same  time  Elder 
executed  the  following  receipt  and  assignment:  "Received 
from  Mrs.  Sallie  P.  Skinner  her  check  for  two  hundred  dollars  in 
full  payment  for  a  loan  for  that  amount  made  by  me  to  Frank 
Skinner  on  June  17,  1895.  I  hereby  assign  and  transfer  unto 
her  all  my  interest  in  the  claim  of  Frank  Skinner  against  George 
Chase  in  common  pleas  No.  2,  June  term,  1895,  No.  52,  previ- 
ously assigned  and  marked  to  my  use  as  collateral  security  by 
Frank  Skinner,  the  plaintiff,  and  all  benefit  to  be  derived  there- 
from and  I  direct  that  said  claim  be  marked  to  the  use  of  Sallie  P. 
Skinner." 

It  is  said  that  this  transaction  was  a  fraud  concocted  by 
Skinner  for  the  purpose  of  hindering  and  delaying  his  creditors 
by  the  use  of  his  wife's  name ;  but  this  position  is  not  sustained 
by  any  competent  and  satisfactory  proof.  On  the  contrary,  the 
uncontradicted  testimony  is,  that  the  diamonds  were  given  to 
Mrs.  Skinner  by  her  father;  that  she  had  a  separate  estate  which 
she  inherited  from  him ;  that  the  money  which  she  advanced  to 
pay  the  Elder  loan  did  not  come  from  her  husband,  and  that  he 
has  not  repaid  her. 

It  is  urged,  in  the  second  place,  that  as  she  bought  the  judg- 
ment with  notice  that  Chase  owned  the  Kennedy  judgment 
against  her  husband  she  took  subject  to  the  right  of  Chase  to 
set  off  the  latter  judgment  against  the  former.  If  she  were  a 
mere  purchaser  this  would  be  true :  Filbert  v.  Hawk,  8  W.  443 ; 


Digitized  by  VjOOQ IC 


282  SKINNER  v.  CHASE. 

Opinion  of  the  Court.  [6  Pa.  Superior  Ct. 

Clement  v.  Philadelphia,  137  Pa.  328.  But  the  equity  of  Mrs. 
Skinner  antedates  the  fonnal  assignment  to  her.  It  had  its 
inception  when  she  permitted  her  diamonds  to  be  pledged  as 
security  for  her  husband's  debt,  which  was  before  Chase  bought 
the  judgment  that  he  asks  to  use  a  setroff.  When  she  advanced 
the  money  to  pay  the  debt  she  became  entitled  to  be  put  in  the 
place  of  the  creditor,  upon  the  established  principle  of  equity 
that  a  surety,  or  one  who  stands  in  the  situation  of  a  surety  for 
one  whose  debt  he  pays,  is  entitled  to  have  the  benefit  of  the 
collateral  securities  which  the  creditor  has  taken  as  an  additional 
pledge  for  his  debt.  The  assignment  was  but  the  formal  recog- 
nition of  that  equity  by  the  parties  concerned. 

Here,  however,  another  difi&culty  is  encountered.  Chase 
bought  the  Kennedy  judgment  without  any  notice  whatever 
that  there  was  an  outstanding  equity  in  any  one  which  would 
prevent  him  from  setting  it  ofiE  against  the  judgment  that  was 
entered  against  him.  Indeed,  it  was  not  until  after  this  rule 
was  made  absolute  that  Mrs.  Skinner  filed  her  assignment  or 
attempted  to  have  the  judgment  marked  to  her  use. 

In  view  of  these  facts  was  Mrs.  Skinner's  equity  superior  to 
that  of  Chase,  and  was  the  court  bound  to  recognize  it  in  the 
present  proceeding? 

An  assignee  of  a  chose  in  action  not  negotiable  takes  it  sub- 
ject to  all  the  defenses  to  which  it  was  subject  in  the  hands  of 
the  assignor,  including  the  right  of  the  debtor  to  set  off  any 
claim  against  the  assignor  before  notice  of  the  assignment: 
Rider  v.  Johnson,  20  Pa.  190 ;  Smith  v.  Ewer,  22  Pa.  116 ; 
Keagy  v.  Com.,  43  Pa.  70,  73.  Proof  of  no  notice  of  the  as- 
signment is  not  necessary  to  establish  the  right  of  set-off,  but 
proof  of  notice  is  necessary  to  defeat  the  right :  Burford  v.  Fer- 
gus, 165  Pa.  310.  But  a  cross  demand  to  be  set  off  must  belong 
to  the  defendant  before  suit  brought :  Pennell  v.  Grubb,  13  Pa. 
552 ;  Speers  v.  Sterrett,  29  Pa.  192 ;  Gihnore  v.  Reed,  76  Pa. 
462.  For  this  reason  alone  Chase  could  not  have  offered  the 
Kennedy  judgment  as  a  setoff  on  the  trial  of  the  issue.  He 
nevertheless  had  a  right  to  purchase  it  with  a  view  to  use  it  as 
a  set-off  against  the  judgment  that  had  been  entered  against  him 
or  that  might  be  entered  after  the  trial  of  the  issue.  It  was  as 
available  for  that  purpose  as  if  he,  personally,  had  obtained  a 
judgment  against  Skinner  on  December  11, 1895,  the  date  of 


Digitized  by  VjOOQ IC 


SKINNER  V.  CHASE.  283 

1898.]  Opinion  of  the  Couit. 

its  assignment  to  him.  Judgments  are  set  off  against  each  other, 
not  by  force  of  the  defalcation  act,  but,  as  was  said  by  Chief 
Justice  Gibson,  "by  the  inherent  powers  of  the  courts  im- 
niemorially  exercised,  being  almost  the  only  equitable  jurisdic- 
tion originally  appertaining  to  them  as  courts  of  law  remaining :" 
Ramsey's  Appeal,  2  W.  228 ;  Jacoby  v.  Guier,  6  S.  &  R.  448 ; 
Filbert  v.  Hawk,  8  W.  443 ;  Horton  v.  Miller,  44  Pa.  256 ; 
Hazelhurst  v.  Bayard,  3  Y.  152 ;  Bums  v.  Thomburgh,  3  W. 
78  ;  Wellock  v.  Cowan,  16  S.  &  R.  318.  The  exercise  of  this 
power  is  not  a  mere  matter  of  grace  but  is  governed  by  equi- 
table principles.  The  right  of  the  defendant,  although  not  se- 
cured by  the  statute,  cannot  be  arbitrarily  denied.  Being  so, 
one,  not  a  party  to  the  record,  who  sets  up  a  prior  equity  to 
defeat  it,  may  justly  be  required  to  show  that  he  has  omitted  no 
duty.  In  discussing  the  right  of  defalcation  under  the  statute, 
Lewis,  J.,  said :  "  If  a  debtor,  in  the  lawful  pursuit  of  his  busi- 
ness, parts  with  his  money  or  property  in  consideration  of  the 
transfer  of  a  cross  demand  against  his  creditor,  with  a  view  to 
a  setroff,  it  would  be  unjust  to  deprive  him  of  this  right  by  a 
previous  assignment  of  which  he  had  no  notice  at  the  time  he 
parted  with  the  consideration.  He  has  as  good  a  right  to  pur- 
chase a  cross  demand  to  extinguish  the  claim  against  himself 
by  set-off,  as  he  had  to  accomplish  the  same  object  by  direct 
payment.  In  the  latter  case  it  is  not  pretended  that  he  could 
be  compelled  to  pay  the  debt  a  second  time.  The  principle  is 
precisely  the  same  in  each  case.  .  .  .  The  maxim,  prior  in  tem- 
pore, potior  in  jure  holds,  it  is  true,  whenever  it  has  not  been 
inverted  by  enactment,  or  where  the  benefit  has  not  been  lost 
by  misconduct  or  imprudence;  but  it  must  not  be  allowed  to 
protect  a  party  who  has  neglected  a  requisite  precaution  to  save 
others  from  imposition :  "  Rider  v.  Johnson,  supra.  These  gen- 
eral principles  are  applicable  here.  The  assignment  to  Chase 
antedated  the  assignment  to  Mrs.  Skinner.  He  appears,  there- 
fore, to  be  prior  in  time.  She  sets  up  a  prior  secret  equity,  but 
of  this  he  had  no  notice  whatever.  It  would  seem,  therefore, 
that  his  equity  is  equal  to  hers,  and  as  she  had  not  filed  her 
assignment,  or  attempted  to  make  herself  a  party  to  the  record, 
we  are  not  prepared  to  say  that  the  court  improperly  exercised 
its  discretion  in  making  the  rule  absolute. 
-    "  In  cases  such  as  this — appealing  largely  to  the  discretion  of 


Digitized  by  VjOOQ IC 


284  SKINNER  v.  CHASE. 

Opinion  of  the  Court.  [6  Pa.  Superior  Ct. 

the  court  below — where  oral  testimony  of  witnesses  is  frequently 
heard  and  passed  upon,  an  opinion  should  always  be  filed  by 
the  court,  setting  forth,  at  least  briefly,  its  findings  of  fact  and 
the  grounds  of  its  decision : "  Gump  v.  Goodwin,  172  Pa.  276. 
Order  affirmed  and  appeal  dismissed  at  the  cost  of  the  appel- 
lant. 


Commonwealth  of  Pennsylvania  to  use  of  Mary  F.  Chap- 
man V.  Annie  C.  Rodgers  et  al.,  Appellants. 

PaHUion^BUtribuiion  of  proceeds-^Lien  creditors  of  heir— Trustee* 8  re- 
spomdbility. 

Where  the  orphans*  court  in  distribution  of  the  proceeds  of  the  sale  of 
land  by  a  trustee  in  partition  proceedings,  awai*ds  to  an  heir  only  what 
would  remain  of  her  share  of  the  fund  after  payment  of  the  recoixl  liens 
against  her  interest  the  trustee  having  given  bond  to  appropriate  the  pro- 
ceeds of  such  real  estate  according  to  the  trust  and  decree  of  the  couit,  the 
trustee  cannot  ignore  a  lien  creditor  of  the  heir  and  settle  with  the  latter 
who  has  no  authority  to  release  the  trustee  from  his  du^  to  pay  such 
creditor  under  the  deci*ee  of  the  court. 

Pariition-^Judicial  sale—Dieestiture  of  liens. 

Where  proceedings  in  partition  result  in  a  judicial  sale  of  the  land,  the 
lien  which  had  been  created  by  one  of  the  tenants  is  divested  from  the 
land  but  continues  on  the  money  I'aised  by  the  sale. 

Partition — Sale  by  trustee— Duty  of  trustee  to  take  searches  before  distri" 
bution, 

A  trustee  who  sold  real  estate  under  a  decree  in  partition,  and  settled 
with  one  of  the  heii*s  without  taking  out  searches  for  liens  of  record,  is 
liable  to  a  mortgagee  whose  mortgage  was  discharged  by  the  sale. 

Argued  Oct.  13,  1897.  Appeal,  No.  97,  Oct.  T.,  1897,  by 
defendants,  from  judgment  of  C.  P.  No.  4,  Phila.  Co.,  March  T., 
1897,  No.  1030,  for  want  of  a  sufficient  affidavit  of  defense.  Be- 
fore Rice,  P.  J.,  Wickham,  Bbaveb,  Oblady,  Smith  and 
PoBTER,  JJ.    Affirmed. 

Assumpsit  upon  the  trustee's  bond  to  recover  for  mortgage 
given  by  one  of  the  heirs  on  the  undivided  interest  in  the  es- 
tate of  her  father,  the  defendant  being  the  administratrix  of  the 


Digitized  by  VjOOQ IC 


COM.  V.  R0DGER8.  285 

1898.]  Statement  of  Facts — Arguments. 

trustee  and  the  sureties  on  the  bond  in  proceeding  in  partition 
in  the  estate  of  Francis  Rodgers,  deceased. 

Other  facts  appear  in  the  opinion  of  the  court. 

The  rule  for  judgment  for  want  of  a  suflScient  affidavit  of 
defense  was  made  absolute  in  an  opinion  by  Arnold,  P.  J., 
reported  in  6  Dist.  Rep.  453. 

Judgment  for  plaintiff  for  $509.10.    Defendants  appealed. 

Error  assigned  was  making  absolute  the  rule  for  judgment 
for  want  of  a  sufficient  affidavit  of  defense. 

Edward  A.  Anderson^  with  him  John  H.  Fow^  for  appellants. 
— Upon  a  distribution  of  a  fund  in  partition,  a  confirmation  of 
the  audit  is  conclusive  upon  a  judgment  creditor  of  one  of  the 
heirs  who  failed  to  present  his  claim :  Sutton's  Est.,  4  Kulp, 
297 ;  Kennedy  v.  Borie,  166  Pa.  360. 

It  is  the  well-settled  doctrine  in  this  state  that  where  the  land 
is  divided  the  lien  of  the  judgment  against  the  heirs  attaches 
to  their  respective  purparts :  Diermond  v.  Robinson,  2  Yeates, 
824,  and  that  the  purpose  of  partition  is  division  and  not  con- 
version :  Wright  v.  Vickers,  81  Pa.  122,  and  that  upon  a  sale 
in  partition  the  proceeds  pass  to  a  person  entitled  thereto  as  real 
estate  :  Wentz's  App.,  126  Pa.  541 ;  Stoner's  Est.,  8  York,  27 ; 
and  so  it  has  been  decided  in  a  sister  state,  that  an  agreement 
between  heirs  that  one  buy  at  a  partition  sale  for  a  certain  price 
is  legitimate  and  binding:  Venti-ess  v.  Brown,  34  La.  Ann. 
448 ;  17  Am.  &  Eng.  Ency.  of  Law,  793. 

Charles  A.  Chase^  for  appellee. — Where  a  proceeding  in  parti- 
tion results  in  a  judicial  sale  of  the  land,  the  lien  which  had  been 
created  by  one  of  the  tenants  is  divested  from  the  land,  but  con- 
tinues on  the  money  raised  by  the  sale :  Reed  v.  Fidelity  Ins. 
Co.,  113  Pa.  574 ;  Wright  v.  Vickers,  81  Pa.  122;  Steel's  Ap- 
peal, 86  Pa.  222 ;  Stewart  v.  Bank,  101  Pa.  842. 

When  the  lien  of  a  mortgage  is  divested  by  a  judicial  sale  it 
IB  not  revived  by  a  reacquisition  of  the  title  by  the  mortgagor: 
Ranch  v.  Dech,  116  Pa.  157. 

The  orphans'  court,  therefore,  had  full  authority  to  make  the 
decree  that  it  did.  This  case  is  similar  to  the  case  of  Reed  v. 
Ins.  Co.,  113  Pa.  574,  and  for  these  reasons  and  for  those  given 
by  the  president  judge  of  the  court  below  this  judgment  should 
be  affirmed. 


Digitized  by  VjOOQ IC 


286  COM.  v.  RODGERS. 

Opinion  of  the  Court.  [6  Pa.  Superior  Ct. 

Opinion  by  Rice,  P.  J.,  January  18, 1898  : 

Real  estate  was  sold  by  a  trustee  in  partition  proceedings  to 
three  of  five  heirs,  one  of  the  tliree  having  previously  mort- 
gaged her  interest  to  the  present  plaintiff.  The  sale  was  con- 
firmed upon  the  trustee  giving  bond  with  sureties  conditioned 
"  faithfully  to  execute  the  trust  and  properly  to  appropriate  the 
proceeds  of  such  real  estate  according  to  the  trust  and  decree 
of  the  court,  and  according  to  law."  On  the  adjudication  of 
the  account  of  the  trustee  the  share  of  the  heir  who  had  given 
the  mortgage  was  ascertained  to  be  $3,057.70,  which  sum  was 
awarded  to  her  subject  to  the  liens  of  record  against  her  interest. 
In  defense  to  this  action  brought  by  the  mortgagee  on  the  trus- 
tee's bond  it  was  alleged,  that,  pursuant  to  an  agreement  made 
between  the  trustee  and  this  heir  before  the  sale,  he  settled  with 
her,  receiving  from  her  on  account  of  her  bid  only  so  much 
money  as  was  necessary  to  pay  her  share  of  the  costs  and  the 
amount  due  the  other  heirs,  and  she,  in  turn,  discharging  him 
from  payment  of  the  sum  awarded  to  her  in  the  adjudication  of 
his  account.  In  an  opinion  filed,  to  which  little  can  be  added, 
the  court  below  held  that  the  affidavit  was  insufficient  to  pre- 
vent judgment,  and  in  that  conclusion  we  concur.  If  the  heir 
were  suing  for  her  share  this  might  be  a  good  defense,  but  we 
fail  to  see  how  the  rights  of  her  lien  creditor  can  be  prejudiced 
by  an  agreement  to  which  he  was  not  a  party  and  of  which  he 
had  no  notice.  No  secret  agreement  between  the  heir  and  the 
trustee  could  compel  him  to  i*esort  to  the  land  for  the  coUectioi^ 
of  his  debt  if  under  the  decree  he  was  entitled  to  take  it  out  of 
the  fund.  The  general  rule  is,  that  where  a  proceeding  in  par- 
tition results  in  a  judicial  sale  of  the  land,  the  lien  which  had 
been  created  by  one  of  the  tenants  is  divested  from  the  land, 
but  continues  on  the  money  raised  by  the  sale :  Wright  v. 
Vickere,  AdmV,  81  Pa.  122 ;  Reed  v.  Fidelity  Ins.  Co.,  113 
Pa.  674.  In  making  distribution  the  orphans'  court  recognized 
and  applied  this  general  rule,  and  awarded  to  the  heir  only  what 
would  remain  of  her  share  of  the  fund  after  payment  of  the 
record  liens  against  her  interest.  By  the  decree,  fairly  construed, 
these  were  continued  against,  and  were  first  payable  out  of  the 
fund  into  which  her  interest  in  the  land  had  been  converted, 
and  she  had  no  authority  to  release  the  trustee  from  his  duty 
to  pay  them. 


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COM.  V.  RODGERS.  287 

1898.]  Opinion  of  the  Court. 

But  it  is  argued  tlmt  a  decree  of  distribution  directing  the  trus- 
tee to  pay  to  an  heir  his  share  of  the  proceeds  of  sale  in  parti- 
tion proceedings  after  deducting  therefrom  the  record  liens 
against  his  interest,  without  ascertaining  and  specifying  what 
the  liens  are,  their  amount,  and  to  whom  payable,  is  not  such  a 
decree  as  is  contemplated  by  the  Act  of  March  27, 1832,  sec.  49, 
P.  L.  206.  It  is  argued  with  much  force,  that  that  form  of 
decree  casts  on  the  trustee  a  responsibility  from  which  he  is 
entitled  to  be  relieved;  that  it  compels  him,  not  only  to  ascer- 
tain what  the  liens  are,  but  to  take  the  risk  of  deciding  all 
disputes  between  the  heir  and  the  creditor;  whereas,  if  the 
creditors  were  required  to  come  before  the  auditor  or  the  audit- 
ing judge  and  prove  their  claims  (as  undoubtedly  they  may)  a 
final  adjudication  could  be  made  which  would  protect  every- 
body. Let  it  be  granted  that  the  court  might  have  pursued 
this  course,  still  the  trustee  is  not  in  a  position  to  complain 
because  it  did  not  do  so.  The  plaintiffs'  lien  was  on  record. 
Its  validity  and  amount  are  not  questioned.  The  trustee  might 
have  procured  searches  to  be  made  and  thus  furnished  the  court 
the  means  to  make  a  specific  distribution.  It  is  not  alleged  that 
he  did  so,  and,  presumably  he  did  not.  And,  even  if  he  did, 
the  place  to  complain  was  in  the  orphans'  court;  but  he  neither 
excepted  to  the  adjudication  nor  appealed.  Nothing  remained 
for  him  to  do  but  to  appropriate  the  money  in  accordance  with 
it.  If  the  lien  creditor  had  been  ignored  in  the  distribution 
and  the  whole  sum  awarded  unconditionally  to  the  heir  (as  was 
done  in  Sutton's  Estate  (4  Kulp,  297),  a  different  question 
would  be  presented.  Having  acquiesced  in  the  decree  which 
clearly  recognized  the  rights  of  the  lien  creditor  the  trustee 
could  not  ignore  him,  and  settle  with  the  heir  and  then  claim 
to  be  discharged  from  further  liability. 

Judgment  affirmed. 


Digitized  by  VjOOQ IC 


288  INS.  CO.  V.  STORAGE  CO. 

Syllabus — Statement  of  Facts.     [6  Pa.  Superior  Ct. 


Western  Massachusetts  Mutual  Fire  Insurance  Company, 
Appellant,  v.  Girard  Point  Storage  Co. 

Contrctct — Lex  loci— Conflict  of  laws — ConsiUutioruU  law. 
If  a  citizen  of  Pennsylvania,  by  a  contract  validly  made  outside  of  its 
boundaries,  incurs  a  liability,  no  law  of  this  state,  can  under  tlie  constitu- 
tion of  tlie  United  States,  prevent  his  fulfilling  that  obligation,  even  by  an 
act  done  within  the  state. 

Insurance — Foreign  companies — Lex  loci — Prohibitive  Pennsylvania 
sUUutes. 

The  issuance  and  delivery  of  insurance  policies  in  Massachusetts 
makes  the  contract  a  Massachusetts  contract  to  be  governed  by  the  laws 
of  that  state  free  from  the  taint  of  illegality  by  reason  of  the  existence  of 
penal  or  prohibitive  legislation  in  Pennsylvania.  Com.  v.  Biddle,  139  Pa. 
605,  followed. 

Policies  for  property  in  Pennsylvania  were  issued  in  Massachusetts. 
These  policies  were  canceled  and  the  insured  received  a  return  premium. 
Held^  in  a  suit  to  recover  assessments  imposed  for  losses,  etc.,  incurred 
by  plaintiff  company  while  the  policies  were  in  force,  that  an  affidavit  was 
insufficient  which  set  up  as  a  defense  that  **  the  plaintiff  being  a  foreign 
company  had  not  prior  to  placing  the  insurance  complied  with  the  acts  of 
assembly  of  Pennsylvania  regulating  the  way  in  which  foreign  insurance 
companies  should  undertake  the  insurance  of  property  in  Pennsylvania.^' 

Argued  Oct.  12,  1897.  Appeal,  No.  79,  Oct.  T.,  1897,  by 
plaintiff,  from  order  of  C.  P.  No.  1,  Phila.  Co.,  Mar.  T.,  1896, 
No.  189,  refusing  judgment  for  want  of  a  sufficient  affidavit  of 
defense.  Before  Rice,  P.  J.,  Wickham,  Beaver,  Reedeb, 
Orlady,  Smith  and  Porter,  J  J.    Reversed. 

Rule  for  judgment  for  want  of  a  sufficient  affidavit  of  defense 
in  an  action  of  assumpsit  upon  two  policies  of  insurance  to 
recover  assessments  levied  upon  the  insured  for  losses  and  ex- 
penses incurred  by  the  company  during  the  life  of  the  policies. 
Before  Bettler,  J. 

The  facts  sufficiently  appear  in  the  opinion  of  the  court. 

The  court  below  discharged  the  rule  for  judgment.  Plaintiff 
appealed. 

Error  assigned  was  discharging  the  rule  for  judgment. 

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INS.  CO.  V.  STORAGK  CO.  289 

1898.]  Arguments. 

Franci%  S.  Laws^  with  him  Sharp  ^  Alleman^  for  appellant — 
A  contract  as  to  its  validity,  nature,  obligation  and  interpreta- 
tion is  to  be  governed  by  the  laws  of  the  place  of  performance : 
Story  on  Conflict  of  Laws,  sec.  280;  Bank  v.  Hall,  150  Pa.  466 ; 
Perlman  v.  Sartorius,  162  Pa.  320  ;  Shattuck  v.  Ins.  Co.,  4  Caff. 
(Mass.)  599 ;  Todd  v.  Ins,  Co.,  11  Phila.  355. 

The  mere  fact  that  the  subject-matter  of  the  contract  (the 
property  insured)  was  located  in  Pennsylvania  is  not  sufficient 
to  change  what  is  otherwise  a  Massachusetts  contract  into  a 
Pennsylvania  contract :  Lamb  v.  Bowser,  7  Bissell,  315. 

John  Hampton  BameSy  for  appellee. — A  corporation  being  a 
creature  of  law,  has  no  existence  outside  of  the  jurisdiction 
which  created  it.  One  state  may  therefore  prescribe  the  terms 
and  conditions  upon  which  business  may  be  conducted  in  that 
state  by  corporations  of  another  state :  Paul  v.  Virginia,  8  Wall. 
168;  List  v.  Com-,  118  Pa-  322. 

Making  such  a  contract  or  policy  of  insurance  as  the  present 
is  a  carrying  on  of  the  business  of  insurance  in  the  state  of 
Pennsylvania,  even  though  the  negotiations,  circulars,  etc-,  may 
have  been  carried  on  through  the  mails  and  the  policy  delivered 
by  mail:  Com-  v.  Long,  1  C.  C.  190;  6  Thompson  on  Corps, 
par.  7968  ;  Heebner  v.  Ins.  Co.,  76  Mass.  131 ;  Thwing  v.  Ins. 
Co.,  Ill  Mass.  93. 

AU  foreign  corporations  are  prohibited  from  going  into  oper- 
ation in  Pennsylvania  without  having  first  complied  with  the 
Act  of  June  7, 1879,  P.  L.  112,  sec.  1,  and  Act  of  April  4, 1873, 
P.  L-  20. 

Every  policy,  contract,  or  guaranty  of  a  foreign  fire  insurance 
company  which  sliall  not  have  complied  with  the  above  and 
other  laws  of  Pennsylvania  in  regard  to  foreign  insurance  com- 
panies, is  illegal  and  absolutely  void.  See  Act  of  February  4, 
1870,  sec.  1,  P-  L.  14,  Pur.  105. 

This  act  is  constitutional  and  such  contracts  are  void :  Arrott 
V.  Walker,  118  Pa.  249 ;  Com.  v-  Vrooman,  164  Pa.  806:  Act 
of  May  1, 1876,  sec.  47,  P.  L.  66,  Pur.  1057,  which  is  a  supple- 
ment to  act  of  April  4, 1873,  supra. 

No  foreign  insurance  company  which  has  not  complied  with 
the  laws  of  Pennsylvania  with  regard  to  foreign  insurance  com- 
panies can  recover  in  the  courts  of  Pennsylvania  on  a  contract 
Vol.  VI— 19 


Digitized  by  VjOOQ IC 


290  INS.  CO.  V.  STORAGE  CO. 

Arguments — Opinion  of  the  Court.     [6  Pa.  Superior  Ct. 

made  iii  violation  thereof :  Ins.  Co.  v.  Bales,  92  Pa.  352 ;  Thome 
V.  Ins.  Co.,  80  Pa.  15 ;  Ins.  Co.  v.  Heath,  95  Pa.  333 ;  Lasher 
V.  Stimson,  145  Pa.  30. 

Opinion  by  Pobtbr,  J.,  January  18, 1898: 

This  is  an  appeal  from  the  court  below,  discharging  the  rule 
for  judgment  for  want  of  a  suiBcient  affidavit  of  defense. 

The  plaintifE  is  a  corporation  organized  under  the  la^vB  of  the 
state  of  Massachusetts.  The  defendant  is  a  Pennsylvania  cor 
poration,  to  whom  two  policies  of  fire  insurance  were  issued 
by  the  plaintifE,  covering  property  in  Philadelphia.  These  poli- 
cies were  alleged  by  the  statement  of  claim  and  admitted  by 
the  affidavit  of  defense,  to  have  been  "issued  and  delivered 
to  the  defendant  at  Springfield,  Massachusetts."  The  insur- 
ance was  to  cover  the  period  from  June  25,  1894,  to  June  25, 
1895.  On  April  25,  1895,  the  policies  were  canceled  and  the 
defendant  received  a  return  premium.  On  May  25,  1895,  an 
assessment  was  sought  to  be  imposed  upon  the  defendant  for 
losses  and  expenses  incurred  by  the  plaintiff  company  while  the 
policies  were  in  foi*ce.  The  affidavit  of  defense  denies  liability 
on  the  ground  that :  "  the  said  plaintiff  being  a  foreign  insur- 
ance company,  had  not  prior  to  the  placing  of  the  said  insurance 
complied  with  the  acts  of  assembly  of  the  state  of  Pennsylvania 
regulating  and  directing  the  way  and  manner  in  which  foreign 
insurance  companies  should  undertake  the  insurance  of  prop- 
erty in  the  State  of  Pennsylvania."  And  "  that  the  placing  of 
the  said  insurance  and  the  issuing  of  the  said  policies  by  the 
plaintiff  on  the  property  of  the  defendant  situated  in  the  State 
of  Pennsylvania  as  aforesaid  was  contrary  to  the  provisions  of 
the  said  statute "  and  "  avers  that  under  such  circumstances 
the  plaintiff  is  not  entitled  to  recover  from  the  defendant  the 
assessments,"  etc. 

It  is  not  necessary  to  a  decision  of  this  case  to  quote  the 
numerous  provisions  of  the  several  acts  of  assembly.  The  pur- 
pose of  the  sj'Stem  of  legislation  in  Pennsylvania  respecting  fire 
insurance  has  been,  to  limit  the  business  to  corporations  created 
under  the  laws  of  the  commonwealth  and  to  foi'eign  corpora- 
tfons  which  have  complied  with  certain  expressed  regulations. 

The  objects  of  the  legislation  have  been  for  revenue  and  to 
protect  the  citizens  of  the  commonwealth  from  irresponsible  and 


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INS.  CO.  V,  STORAGE  CO.  Wl 

1898.]  Opinion  of  the  Court. 

unsupervised  insurers.  The  methods  of  enforcing  the  legisla- 
tive provisions  are  by  the  imposition  of  punishment  upon  the 
pereons  (principals  or  agents)  who  fail  to  regard  the  prohibi- 
tions ;  by  imposing  personal  liability  on  agents  atttempting  to 
represent  foreign  insurance  companies  not  complying  with  the 
law,  and  by  declaring  void,  contracts  made  in  violation  of  the 
several  acts. 

In  the  case  now  before  us  there  is  nothing  to  indicate  that 
the  plaintiffs  were  doing  an  insurance  business  in  Pennsylvania. 
They  had  neither  office  nor  agent  within  the  commonwealth. 
The  policies  in  the  present  case  are  admitted  to  have  been  "  is- 
sued and  delivered  in  Massachusetts." 

True,  the  property  insured  was  located  in  Pennsylvania. 
This,  however,  does  not  in  our  opinion  bring  the  contract  of 
insurance  within  the  prohibitions  of  the  statutes.  The  illustra- 
tion used  in  Story  on  Conflict  of  Laws,  sec.  278a,  is  applicable. 
He  sayB :  "  So  a  policy  of  insurance  executed  in  England  on  a 
French  steamship  for  the  French  owner  on  a  voyage  from  one 
French  port  to  another,  would  be  treated  as  an  English  con- 
tract, and  in  cases  of  loss  the  debt  would  be  treated  as  an  En- 
glish debt.  Indeed  all  the  rights  and  duties  and  obligations 
growing  out  of  such  a  policy  would  be  governed  by  the  law  of 
England  and  not  by  the  law  of  France,  if  the  laws  respecting 
insurance  were  different  in  the  two  countries." 

The  issuance  and  delivery  of  the  policies  in  Massachusetts 
made  the  contract  a  Massachusetts  contract  to  be  governed  by 
the  law  of  Massachusetts,  free  from  taint  of  illegality  by  reason 
of  the  existence  of  penal  or  prohibitive  legislation  in  Pennsyl- 
vania. To  hold  otherwise  would  be  to  give  to  these  acts  ex- 
tmterritorial  effect,  and  to  deprive  the  citizen  of  his  constitu- 
tional right  to  make  such  contracts  as  he  may  desire  beyond  the 
boundaries  of  Pennsylvania:  Allgeyer  v.  I^ouisiana,  165  U.  S. 
578. 

In  reaching  the  conclusion  herein  expressed  we  are  guided  by 
the  opinion  of  the  Supreme  Court  in  the  case  of  Commonwealth 
V.  Biddle,  139  Pa.  605.  It  is  true  that  there  the  case  required 
only  a  construction  of  the  penal  acts.  The  expressions  used, 
however,  have  direct  application  to  the  present  case :  "  It  may 
be  readily  conceded  that  an  act  which  should  attempt  to  prevent 
a  non-resident  owner  of  property  in  this  state  or  a  resident 


Digitized  by  VjOOQ IC 


292  INS.  CO.  V.  STORAGE  CO. 

Opinion  of  the  Court.  [6  Pa.  Saperior  Ct. 

owner  not  at  the  time  within  its  territory,  from  insuring  his 
property  in  any  manner  lawful  in  the  place  of  contract,  would 
be  void  as  extra-territoriaL  So,  also,  it  may  be  conceded  that 
if  a  citizen  of  Pennsylvania  has,  by  a  contract  validly  made  out- 
side of  its  boundaries,  incurred  a  liability,  no  law  of  this  state 
can,  under  the  constitution  of  the  United  States,  prevent  his 
fulfilling  that  obligation,  even  by  an  act  done  within  the  state. 
But,  beyond  the  limitation  imposed  by  the  constitution,  the 
power  of  the  legislature  to  declare  any  acts  done  within  the  ter- 
ritory of  the  state  unlawful  or  criminal  cannot  be  questioned, 
and  all  considerations  of  wisdom  or  policy,  of  hardship,  of  diflS- 
culty  or  even  impossibility  of  general  enforcement,  must  be  ad- 
dressed to  the  law-making  branch  of  the  government." 

The  case  of  McBride  v.  Rinard,  172  Pa.  648,  has  been  cited, 
as  expressing  a  conclusion  adverse  to  that  reached  by  us  in  the 
present  cause.  That,  however,  was  an  action  brought  to  hold 
a  local  agent  of  a  foreign  corporation  personally  liable  as  prin- 
cipal, and  the  remark  contained  in  the  opinion  palpably  refers 
to  companies  having  an  agency  within  the  state.  It  cannot 
apply,  in  our  opinion,  to  companies  who  have  never  come  within 
the  boundaries  of  the  commonwealth,  who  have  neither  office 
nor  agent  here  and  who  have  but  issued  and  delivered  policies 
in  another  state  in  a  particular  instance  to  a  citizen  of  Pennsyl- 
vania. 

Neither  precedent  nor  authority  can  be  found  in  the  cases 
cited  by  the  defendant  for  holding  that  the  transaction  in  this 
case  comes  within  the  statutes  forbidding  the  doing  of  business 
in  Pennsylvania. 

The  assignments  of  error  are  sustained ;  the  judgment  of  the 
court  below  is  reversed,  and  the  record  is  remitted  with  direc- 
tion to  the  court  below  to  enter  judgment  against  the  defend- 
ants for  such  sum  as  to  right  and  justice  may  belong  unless 
other  legal  or  equitable  cause  be  shown  to  the  said  court  why 
sucl^  judgment  should  not  be  so  entered. 


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MYTON  V.  WILSON.  298 

1898.]  Syllabus— Assignment  of  Errors. 


Benner  R.  Myton  v.  Jas.  A.  Wilson  et  al.,  Appellants. 

EasemetU — Way — Reservation  of  moiety  of  spring— Access  thereto. 

A  reservation  in  a  eonyeyance  of  one  half  a  spring  and  a  moiety  of  the 
spot  of  ground  whereupon  it  arises  implies  access  to  the  spring  in  some 
manner  for  the  purpose  of  taking  water;  but  with  an  existing  channel 
natural  or  artificial  conducting  the  water,  the  parties  must,  in  the  absence 
of  any  provision  for  a  different  mode  of  conveyance,  be  understood  as  con- 
templating the  use  of  such  channel  for  that  purpose.  No  implication 
arises  that  will  warrant  the  grantor  or  his  successors  in  title,  in  laying  a 
pipe  over  grantee^s  lands. 

Argued  October  19, 1897.  Appeal,  No.  11,  March  T.,  1897, 
by  defendants,  from  judgment  of  C.  P.  Huntingdon  Co.,  Dee.  T., 
1895,  No.  20,  on  verdict  for  plaintifE.  Before  Rice,  P.  J., 
WiCKHAM,  Beaveb,  Rebdeb,  Oblady,  Smith  and  Pobteb,  J  J. 
Affirmed. 

Trespass.    Before  Bailey,  P.  J. 

The  facts  sufficiently  appear  in  the  opinion  of  the  court 

Verdict  for  plaintiflf  for  ^.00.     A  certificate  having  been 

filed  that  the  value  of  the  right  or  interest  involved  was  less 

than  $1,000,  defendant  appealed. 

Errors  assigned  were  (1)  In  its  answer  to  defendants*  second 
point,  as  follows :  "  2.  The  deed  of  the  executor  of  William  John- 
ston, Esquire,  to  George  Rung  in  1824  for  the  adjoining  and  re- 
maining portion  of  his  farm  under  a  power  in  his  will  to  sell 
real  estate  vested  in  George  Rung  the  title  to  one  undivided 
half  of  the  spring  and  spot  of  ground  on  which  it  rises  as  an  ap- 
purtenance and  constituent  part  of  the  tract  of  land  therein  de- 
scribed. Answer :  Refused."  (2)  In  its  answer  to  defendants' 
fifth  point,  as  follows:  "5.  If  the  jury  believe  that  Thomas  F. 
Stewart  and  James  Myton,  predecessors  in  the  title  of  Benner  R. 
Myton,  claimed  only  one  fourth  each  of  the  spring  as  testified 
by  Bilger  Shipton  and  John  B.  Frazier,  Benner  Myton  is  es- 
topped and  cannot  claim  that  James  A.  Wilson  is  a  trespasser  in 
entering  upon  the  other  undivided  half,  under  a  claim  of  right 
Anwoer:  This  point  is  refused  as  not  material."    (3)  In  charg- 


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294  MYTON  r.  WILSON. 

Assignment  of  En-ors.  [6  Pa.  Superior  Ct. 

ing  the  jury  as  follows,  to  wit:  "There  is  no  phjrsical  connec- 
tion of  the  spring  with  the  land  conveyed  to  Rung ;  there  is  no 
evidence  that  William  Johnston  used  the  spring  as  an  incident 
or  appurtenance  to  this  land ;  or  that  he  in  any  manner  con- 
nected the  one  with  die  other  in  their  use."  (4)  In  instructing 
the  jury  as  follows :  "An  appurtenance  is  defined  to  be  '  a  thing 
belonging  to  another  thing  as  principal  and  which  passes  as  in- 
cident to  the  particular  thing.'  It  must  be  necessary  to  the 
full  enjoyment  of  the  thing  gmnted,  and  in  use  at  the  time  of 
the  grant  as  incident  thereto.  In  this  state  it  is  held  that  what 
is  necessary  to  the  enjoyment  of  the  thing  granted  passes  with 
it  as  an  appurtenance,  without  express  words ;  but  what  is  merely 
convenient  to  its  enjoyment  does  not."  (5)  In  instructing  the 
jury  as  follows :  "  The  property  now  owned  by  Wilson  had  been 
occupied  by  William  Johnston  and  the  several  intermediate 
owners  without  any  connection  whatever  between  it  and  the  use 
of  the  spring  as  an  attachment  to  it.  For  eighty-five  years  each 
successive  owner  enjoyed  the  use  of  the  water  flowing  from  this 
spring  by  reason  of  his  right  thereto  as  riparian  owner.  There- 
fore, it  could  not  at  the  time  of  the  original  grant,  have  been 
actually  necessary  to  the  enjoyment  of  the  land  now  owned  by 
the  defendant  Wilson.  There  was  no  act  of  William  Johnston, 
no  eidpress  words  in  the  deed  of  his  executors  to  Rung  convey- 
ing the  interest  of  Johnston  in  the  spring,  or  the  water  flowing 
from  it,  and  we  are  of  opinion  that  the  general  words  conveying 
the  '  appurtenances  thereto  belonging '  do  not  include  the  spring ; 
and  therefore  the  interest  of  Johnston  in  it  is  not  now  owned  by 
Wilson,  and  it  is  our  opinion  that  he  had  no  right  to  enter  the 
land  of  the  plaintiff,  intervening  between  his  land  and  the  spring 
for  the  purpose  of  laying  pipe  to  conduct  water  therefrom.  It 
is  not  material  that  Johnston  must  have  intended  to  use  the 
water  from  the  spring  or  convey  it  to  his  land  as  argued  by  the 
learned  counsel  for  the  defendant.  The  fact  remains  that  he 
did  not  so  use  it,  and  that  there  was  no  connection  whatever 
between  the  use  of  the  spring  and  the  use  of  the  land  until  the 
defendant  laid  these  pipes  in  1895,  except  the  use  he  was  en- 
titled to  of  the  water  flowing  from  the  spring  down  its  natural 
channel  by  virtue  of  his  being  the  owner  of  lands  abutting  on 
that  channel.  We  feel  bound  to  instruct  you  that  the  defend- 
ant had  no  right  to  lay  down  the  pipes  on  the  land  of  the  plain* 


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MYTON  V.  WILSON.  295 

1898.]  Assignment  of  En'oi-s — Arguments. 

ti£E,  and  that  the  plamtiflf  may  recover  in  this  action,  whatever 
damage  he  has  sustained  by  reason  of  the  defendant's  entry  on 
his  land.  If  we  are  in  error  in  our  view  of  the  law  we  feel  grati- 
fied to  know  that  such  error  may  be  corrected  by  a  higher  court 
on  appeal."  (6)  In  instructing  the  jury  as  follows:  "  The  only 
question  that  remains  for  you  to  determine  is  the  amount  of 
damage  the  plaintifiE  is  entitled  to  under  the  evidence."  (7)  In 
charging  the  jury  as  follows :  '*  You  will  determine  the  amount 
of  damage  to  compensate  him  for  the  injury  done  and  render 
your  verdict  accordingly."  (8)  In  charging  the  jury  as  follows : 
"  The  only  question  that  remains  for  you  to  determine  is  the 
amount  of  damage  the  plaintiff  is  entitled  to  under  the  evi- 
dence." 

Charles  Q:  Broton  and  H,  R.  Waite^  for  appellants. — A  right 
reserved  in  a  deed  and  spread  on  record  is  in  the  chain  of  title  to 
the  lands  upon  which  the  right  is  reserved,  and  is  constructive 
notice  to  the  persons  who  subsequently  purchase  the  said  lands : 
Bombaugh  v.  Miller,  82  Pa.  203;  Hayes  v.  R.  R.  Co.,  61  N.  J. 
Eq.  345. 

To  the  same  effect  is  the  case  of  Whitney  v.  R.  R.  Co.,  77 
Mass.  369 ;  71  Am.  Dec.  716. 

An  easement  is  not  presumed  to  be  a  mere  personal  right  or 
in  gross,  when  it  may  be  fairly  regarded  as  appurtenant  to  some 
other  estate :  Gould  on  Waters,  sec.  301 ;  Dennis  v.  Wilson, 
107  Mass.  591. 

Mere  nonuser  for  any  length  of  time  of  an  easement  created 
by  express  grant,  will  not  destroy  or  extinguish  it.  There  must 
be  some  conduct  on  the  part  of  the  owner  of  the  servient  tene- 
ment, adverse  to  and  in  defiance  of  the  easement,  and  the  non- 
user  must  be  the  result  of  it  and  must  continue  for  twenty-one 
years:  Dill  on  Board  of  Education,  N.  J.  10,  L.  Rep.  Ann. 
276;  Hall  v.  McCaughey,  51  Pa.  43;  Lathrop  v.  Eisner,  93 
Mich.  699. 

W.  H.  Woods  and  A.  0.  Furst,  with  them  J.  S.  Woods,  W. 
McK,  Williamson  and  T,  W.  Mi/ton^  for  appellee. — But  aside 
from  this,  an  adverse  user  and  possession  of  the  servient  estate 
coupled  with  nonuser  by  the  dominant,  when  continued  for  the 
time  of  the  statute  of  limitations,  will  destroy  an  easement  or, 


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296  MYTON  v.  WILSON. 

Arguments— Opinion  of  the  Couit.  [6  Pa.  Saperior  Ct. 

to  speak  more  accumtely,  will  raise  a  presumption  of  a  release: 
Jemiison  v.  Walker,  77  Mass.  423 ;  4  Leading  Cases  Am.  Law 
on  Real  Property,  156. 

It  is  confidently  submitted : 

1.  That  the  estate  left  in  William  Johnston,  Sr.,  the  grantor, 
under  the  deed  of  August  17, 1810,  did  not  create  an  easement 
of  any  description.  It  is  to  be  regarded  as  an  estate  remaining 
in  him  precisely  as  if  he  had  never  made  the  conveyance  of  the 
eighty-one  acre  tract. 

2.  That  William  Johnston,  retained  such  interest  in  the  spring, 
and  the  water  flowing  therefrom,  did  not  make  the  tract  of  land 
conveyed  by  him,  a  tenement  servient  to  any  other  tenement  or 
tract  of  land. 

3.  That  there  was  no  connection  or  annexation  of  his  estate  in 
the  spring  to  the  tract  of  land,  the  title  to  a  portion  of  which 
became  vested  in  appellant. 

4.  That  there  was  no  grant  made  by  William  Johnston,  or 
any  successor  in  title,  by  which  his  estate  in  the  spring  was  con- 
veyed or  annexed  to  appellant's  land. 

6.  That  there  never  has  been  any  prescriptive  use  of  the  said 
spring  for  the  advantage  or  benefit  of  appellant's  lands. 

6.  That  appellant,  in  entering  forcibly  into  the  close  oi  the 
plaintiff,  breaking  the  soil,  digging  a  trench,  laying  a  pipe 
therein,  and  taking  the  water  from  the  spring  in  the  interior  of 
plaintiff's  tract,  was  guilty  of  a  trespass,  and  was  liable  to  the 
plaintiff  as  a  trespasser. 

Opinion  by  Smith,  J.,  January  18, 1898 : 

The  trespass  of  which  the  plaintiff  complains  was  the  laying 
of  a  pipe  through  his  land,  by  the  defendant,  for  the  conveyance 
of  water  from  a  spring  thereon  to  the  defendant's  land  adjacent. 
The  defendant  contends  that  the  right  to  do  this  is  an  easement 
appurtenant  to  his  land. 

William  Johnston,  in  1810,  conveyed  part  of  a  tract  of  land 
to  his  sons,  William  and  John,  and  by  his  will,  executed  later, 
authorized  his  executors  to  sell  the  residue.  The  plaintiff  holds 
under  the  deed  and  the  defendant  under  the  will.  The  deed 
contains  the  following  stipulation :  "  Provided  always,  never- 
theless, and  it  is  hereby  declared  to  be  the  express  intent  and 
meaning  of  the  parties  to  these  presents,  that  the  right  to  one 


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MYTON  V.  WILSON.  297 

I.}  Opinion  of  the  Court. 

moiety  or  half  part  of  a  certain  spring  which  rises  on  the  above 
described  land,  opposite  to  and  about  ten  perches  east  south 
east  of  a  red  oak,  comer  of  the  line,  south  eight  degrees  west 
twenty-four  perches,  and  which  crosses  the  said  line,  south  eight 
degrees  west  twenty-four  perches  passing  in  a  northwesterly 
course  between  the  lines,  south  thirty-four  degrees  east  twenty- 
four  perches  to  a  still  house  and  south  thirty  degrees  west 
eighty-six  perches  to  a  white  oak,  and  the  free  use,  liberty  and 
privilege  of  the  same  shall  still  subsist  in  and  continue  and  re- 
main unto  the  said  William  Johnston,  esquire,  his  heirs  and 
assigns.  To  have  and  to  hold  the  said  above  described  land 
hereby  granted,  or  mentioned,  and  intended  so  to  be  with  the 
appurtenances  unto  the  said  William  Johnston,  Junior,  and  the 
said  John  Johnston,  their  heirs  and  assigns,  as  tenants  in  com- 
mon, and  not  as  joint  tenants,  to  the  only  proper  use,  benefit 
and  behoof  of  them  the  said  William  and  John  and  their  re- 
spective heirs  and  assigns  forever.  Excepting,  nevertheless, 
the  right  to  one  half  part  of  said  spring  and  one  moiety  of  the 
spot  of  ground  whereupon  it  arises,  which  the  said  William 
Johnston,  esquire,  expi'essly  reserves,  as  aforesaid,  to  himself, 
his  heirs  and  assigns  forever." 

The  defendant  contends  that  the  water  right  thus  described 
became  appurtenant  to  the  land  retained  by  the  grantor,  and 
passed  to  his  successors  in  title.  As  the  case  is  presented,  how- 
ever, a  determination  of  this  point  is  unnecessary.  First,  there 
is  a  question  as  to  the  identity  of  the  spring  described  with  that 
reached  by  the  defendant's  pipe.  Next,  it  appears  that  a  natu- 
ral outlet  or  channel  existed,  by  which  the  water  of  the  latter 
spring  was  conveyed  to  the  defendant's  land,  and  there  is  no 
allegation  of  interference  therewith  by  the  plaintiff.  If  the 
spring  to  which  the  defendant  laid  his  pipe  was  not  the  one 
mentioned  in  the  stipulation,  it  is  clear  that  the  pipe  was  laid 
without  right.  If  it  was  that  spring,  the  first  question  to  be 
considered  is  whether  the  stipulation,  if  creating  a  right  appur- 
tenant to  the  defendant's  land,  authorized  him  to  lay  the  pipe. 
Access  to  the  spring  in  some  manner,  for  the  purpose  of  taking 
water,  it  undoubtedly  implied.  But  with  an  existing  channel, 
natural  or  artificial,  conducting  the  water,  the  parties  must,  in 
the  absence  of  any  provision  for  a  different  mode  of  conveyance, 
be  understood  as  contemplating  the  use  of  such  channel  for  that 


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298  MYTON  v.  WILSON. 

Opinion  of  the  Court.  [6  Pa.  Superior  Ct. 

purpose.  There  is  no  express  provision  for  a  departure  from 
this  channel,  or  for  the  laying  of  a  pipe  through  the  land  con- 
veyed ;  while  the  description,  beginning  with  the  spring,  follows 
with  courses  and  distances  that  apparently  refer  to  its  outlet,  as 
if  for  the  purpose  of  including  it.  Under  the  terms  of  the 
stipulation,  therefore,  the  grantor  had  a  right  to  so  maintain  the 
existing  channel  as  to  keep  it  adequate  for  the  purposes  of  the 
stipulation.  He  had  no  right  to  construct  a  channel  elsewhere. 
If  such  a  right  can  be  implied,  it  is  without  limit,  and  the 
grantor  might  change  the  channel  as  often  as  he  desired.  Such 
a  construction  would  give  him  an  unreasonable  dominion  in  the 
pi^emises ;  one  beyond  evident  need  and  beyond  the  apparent 
intention  of  the  parties.  To  say  that  he  had  a  riparian  right  to 
the  flow  through  the  natural  channel,  independent  of  the  stipu- 
lation, does  not  meet  the  case.  This  right  was  limited  to  the 
natural  flow  from  the  spring,  which  might  have  been  less  than 
the  quantum  stipulated  for.  The  stipulation  gave  the  right  to  a 
fixed  proportion  of  the  spring  water,  and  must  be  construed  as 
contemplating  its  conveyance  by  the  existing  channel,  with  a 
right  to  make  such  improvement  or  enlargement  as  might  be 
found  necessary  to  its  sufliciency.  This  was  the  extent  of  the 
defendant's  right,  and  the  substitution  of  another  mode  of  con- 
ducting the  water  through  the  plaintiffs  land  without  his  con- 
sent was  unwarranted.  Since  this  change  in  the  manner  of  its 
enjoyment  was  without  authority,  the  question  whether  the 
water  right  was  appurtenant  to  the  defendant's  land  becomes 
immaterial. 
Judgment  aj£rmed« 


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ICE  CO.  V.  PHILA.  299 

l^llabas— Statement  of  Foots. 


Commercial  Ice  Company,  Appellant,  v.  City  of  Phila- 
delphia. 

Public  officers— 'Necessary  furnishing  of  public  office. 
The  furnishiag  of  ice  is  not  one  of  the  **  things  necessary  for  the  proper 
furnishing  of  the  offices  of  the  register  of  wills  and  orphans^  court.^' 

Argued  Dec.  15, 1897.  Appeal,  No.  170,  Oct.  T.,  1897,  by 
plaintifE,  from  judgment  of  C.  P.  No.  4,  Phila.  Co.,  June  T., 
1897,  No.  1325,  in  favor  of  defendant  on  case  stated.  Before 
WiCKHAM,  Beavee,  Rbeder,  Oblady,  Smith  and  Portee,  J  J. 
Affirmed. 

Case  stated.    Before  Arnold,  P.  J. 

1.  The  plaintiff,  a  corporation  duly  organized  under  the  laws 
of  the  state  of  Pennsylvania,  engaged  in  the  business  of  selling 
ice,  wholesale  and  retail,  in  the  city  of  Philadelphia  and  vicinity, 
at  the  special  instance  and  request  of  the  register  of  wills  for 
the  county  of  Philadelphia,  furnished  ice  for  use  in  the  offices 
of  the  register  of  wills  and  in  the  rooms  of  the  orphans'  court 
for  said  county  from  January  1, 1895,  to  June  30, 1897. 

2.  The  said  register  of  wills  is  a  county  officer  of  the  county 
of  Philadelphia,  and  it  was  and  is  his  duty,  under  an  act  of 
assembly  of  the  state  of  Pennsylvania,  to  provide  all  things  nec- 
essary for  the  proper  furnishing  of  the  offices  of  the  register  of • 
wills  and  the  rooms  of  the  orphans'  court  of  said  county. 

3.  The  value  of  the  ice  so  furnished  by  plaintiff  for  this  pur- 
pose during  this  period  was  $573.36. 

4.  Said  ice  so  furnished  and  services  rendered  by  the  said 
plaintiff  were  in  all  respects  satisfactory  to  the  said  register  of 
wills,  and  bills  for  the  same  were  approved  but  were  not  paid  by 
him  as  presented  from  time  to  time  because  no  specific  appro- 
priation had  been  made  for  the  same  by  the  councils  of  the  city 
of  Philadelphia,  and  the  general  appropriation  made  by  the  said 
council  to  defi-ay  the  incidental  expenses  of  the  offices  of  the 
register  of  wills  had  been  exhausted. 

5.  It  is  agreed  between  the  plaintiff  and  the  defendant  that 
if  the  court  be  of  opinion,  upon  the  above  statement  of  facts, 


Digitized  by  VjOOQ  IC 


BOO  ICE  CO.  V.  PHILA. 

Statement  of  Facts— Arguments.  [6  Pa.  Superior  Ct. 

that  the  plaintiff  is  entitled  to  judgment  against  the  defendant, 
judgment  shall  be  entered  in  its  favor  for  $573.36}  with  interest 
thereon  from  June  30,  1897. 

Either  party  reserving  the  right  of  appeal. 

Judgment  was  entered  on  case  stated  in  favor  of  defendant 
in  the  foUowmg  opinion  by  Arnold,  P.  J. 

Payment  of  this  claim  by  judgement  of  court  is  forbidden  by 
the  Act  of  April  21, 1858,  sec.  5,  P.  L.  385,  which  provides  that 
no  debt  or  contract  shall  be  binding  on  the  city  of  Philadelphia, 
unless  authorized  by  law  or  ordinance  and  an  appropriation  suffi- 
cient to  pay  the  same  has  been  previously  made  by  councils. 

In  this  case  an  appropriation  was  made  to  defray  incidental 
expenses,  but  it  has  been  exhausted  without  paying  the  plaintiff. 
The  claim  is  now  made  for  the  years  1895  and  1896  and  half  of 
1897.  While  ice  may  be  considered  a  necessity,  yet  we  do  not 
consider  it  among  the  "  things  necessary  for  the  proper  furnish- 
ing "  of  a  public  office,  such  as  may  be  paid  for  by  mandamus. 
It  has  always  been  paid  for  out  of  an  appropriation  for  inciden- 
tal expenses  made  by  the  city  councils,  who  may  if  they  see  fit, 
ratify  the  plaintiff *8  claim  and  order  the  payment  thereof.  Judg 
ment  for  defendant 

Error  oiiigned  was  entering  judgment  in  favor  of  the  de- 
fendant and  in  not  entering  judgpnent  in  favor  of  plaintiff  on 
case  stated. 

Howard  TF.  Page^  of  Page^  Allinson  ^  Penrose^  for  appellant. 
—The  Act  of  April  21,  1858,  P.  L.  385,  does  not  apply  to 
county  officers. 

The  distinction  between  contracts  made  by  city  and  county 
officers  is  recognized :  Bladen  v.  Phila.,  60  Pa.  464 ;  Wright  v. 
Phila.,  8  W.  N.  C.  141 ;  Smith  v.  Phila.,  5  Phila.  1. 

A  careful  examination  of  the  case  in  which  recovery  was  re- 
fused upon  the  ground  that  case  fell  within  the  provision  of  the 
act  of  April  21, 1858,  will  show  that  they  are  instances  in  which 
contracts  were  made  by  a  city  as  distinguished  from  a  county 
officer. 

Even  admitting  that  the  fifth  section  of  the  act  of  1858  ap- 
plied, the  act  was  not  violated,  as  it  appears  from  case  stated 


Digitized  by  VjOOQ IC 


ICE  CO.  V.  PHILA.  aOl 

1898.]  Argaments. 

that  general  appropriations  were  made  from  time  to  time  by 
councils  to  defray  the  incidental  expenses  of  the  office  of  the 
register  of  wills,  and  that  the  only  reason  tb^t  plaintiff's  bills 
were  not  paid  as  presented,  was  that  said  appropriations  had 
been  otherwise  exhausted.  •  The  case,  therefore,  would  seem  to 
be  analogous  to  McGlue  v.  Phila.,  10  Phila.  848,  and  such  di- 
yersion  could  hardly  bar  his  claim  under  the  principle  laid  down 
in  Parker  v.  Phila.,  92  Pa.  401. 

The  case  stated  contains  an  express  averment  that  it  was  the 
duty  of  the  register  of  wills  under  an  act  of  assembly,  to  pro- 
vide all  things  necessary  for  the  proper  furnishing  of  the  offices 
of  the  register  of  wills  and  the  rooms  of  the  orphans'  court. 

The  word  ** proper  "  has  been  defined  as  synonymous  with  "fit, 
suitable,  appropriate:"  Century  Dictionary,  title  "proper," 
par.  3. 

The  word  "  furnish  "  means  to  supply,  or  provide,  or  equip 
with  anything  necessary  or  useful :  Webster's  Dictionary. 

"  To  furnish  "  means  "  to  provide  with  what  is  proper  or  suit- 
able, supply  with  anything ;  fit  up  or  fit  out,  equip,  as  to  fur- 
nish a  house,  a  library  or  an  expedition: "  Century  Dictionary, 
title,  "  furnish,"  par.  8. 

"  Furniture  in  general  includes  that  with  which  anything  is 
furnished  or  supplied  to  fit  it  for  operation  or  use.  That  which 
fits  or  equips  for  use  or  action ;  outfit,  equipment,  as  the  fur- 
niture of  a  war  horse,  of  a  microscope,  table  furniture : "  Cen- 
tury Dictionary,  par.  8. 

The  phrase  "  furniture  of  ship"  ex  vi  termini,  includes  every- 
thing with  which  a  ship  requires  to  be  furnished  to  make  her 
seaworthy :  Winfield's  Adjudged  Words  and  Phi-ases,  279,  cit- 
mg  Weaver  v.  Owens,  I  Wallace,  Jr.,  U.  S.  C.  C.  859,  869. 

Provisions  for  the  use  of  the  crew  are  covered  by  a  policy  on 
the  "ship  and  furniture:"  Stroud's  Judicial  Dictionary,  816, 
citing  Brough  v.  Whitmore,  4  T.  R.  206 ;  Hill  v.  Patton,  8 
East,  878. 

"  The  word  furniture  relates  ordinarily  to  movable  personal 
chattels,  but  is  very  general  in  meaning  and  application,  and 
the  meaning  changes  so  as  to  take  the  color  or  to  accord  with 
the  subject  to  which  it  is  applied : "  Anderson's  Law  Diction- 
ary, 488,  citing  Fore  v.  Hibbard,  68  Ala.  412. 

It  may  not  be  amiss  to  remark  that  the  words  of  the  case 


Digitized  by  VjOOQ IC 


802  ICE  CO.  v.  PHILA. 

Arguments — Opinion  of  the  Court.  [6  Pa.  Superior  Ot. 

stated  are  not  that  the  register  of  wills  is  authorized  to  pur- 
chase office  furniture  but  to  provide  "  all  things  necessary  for 
the  proper  furnishing,"  a  phrase  general  in  its  character  and 
equivalent  to  all  things  necessarj''  for  the  proper  equipment  of 
the  offices  for  the  use  intended.  If  ice  water  is  a  necessity,  as 
admitted  in  the  opinion  of  the  court  below,  it  is  difficult  to  see 
how  rooms  intended  for  use  by  a  great  multitude  of  people  at 
all  times  and  under  all  conditions,  could  be  properly  equipped 
without  it  It  is  just  as  much  one  of  the  necessary  expenses 
of  the  administration  of  justice  within  the  language  of  Judge 
Sharswood  in  Bladen  v.  Phila.,  supra,  as  telephone  service, 
stationery,  fuel  or  janitor  service,  and  the  plaintiff's  claim  is  as 
much  entitled  to  the  protection  of  the  court. 

E,  Spencer  Miller^  with  him  John  X.  Kinsey^  for  appellee. — 
It  may  be  reasonable  to  infer  that  the  ice  in  question  was  pur- 
chased to  cool  drinking  water.  This  is  a  form  of  refreshment 
which  may  be  a  grateful  relief  in  either  winter  or  summer.  It 
can  hardly  be  regarded  as  indispensable,  however. 

No  authorities  appear  to  exist  upon  the  questions  raised, 
where  the  commodity  purchased  was  thus  one  of  refreshment 
rather  than  necessity.  The  absence  of  authority  in  support  of 
such  a  claim  would  seem  to  be  a  sufficiently  strong  negative 
assurance  to  equal  an  authority  for  the  defense. 

Opinion  by  Porter,  J.,  January  18,  1898 : 

The  plaintiff  at  the  request  of  the  register  of  wills  for  the 
county  of  Philadelphia  furnished  ice  for  use  in  the  offices  of  the 
register  of  wills  and  in  the  rooms  of  the  orphans'  court  for  said 
county  from  January  1, 1895,  to  June  30,  1897,  and  now  sues 
the  city  of  Philadelphia  for  1573.36,  the  amount  of  the  bill. 

The  register  of  wills  is  a  county  officer  and  under  legislative 
enactment,  is  required  to  provide  "  all  things  necessary  for  the 
proper  furnishing  of  the  offices  of  the  register  of  wills  and  the 
rooms  of  the  orphans'  court  of  said  county,"  as  set  forth  in 
the  case  stated. 

We  do  not  think  it  necessary  here  to  determine  whether  the 
plaintiff,  in  order  to  a  recovery  against  the  city  of  Philadelphia, 
should  be  required  to  exhibit  an  ordinance  and  appropriation 
by  the  ci<y  councils  giving  authority  to  contract  the  debt. 


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ICE  CO.  V,  PHILA.  303 

1898.]  Opinion  of  the  Couit. 

The  real  question  is  whether  the  furnishing  of  ice  is  one  of 
the  "  things  necessary  for  the  proper  furnishing  of  the  offices  of 
the  register  of  wills  and  the  rooms  of  the  orphans'  court." 

To  reverse  the  action  of  the  court  below  would  require  us  to 
determine  judicially  that  the  providing  of  ice  is  necessary  for 
such  furnishing.  This  we  are  not  prepared  to  do.  We  con- 
strue the  language  of  the  act  to  cover  only  those  things  which, 
if  absent,  would  obstruct  or  prevent  the  proper  conduct  of  the 
business  of  the  offices  of  the  register  of  wills  and  of  the  said 
courts.  While  the  use  of  ice  may  have  come  to  be  so  prevalent 
as  to  make  it  to  many  people  more  than  a  luxury,  we  cannot 
hold  that  it  is  necessary  to  a  proper  furnishing  of  a  public  office 
or  court  rooDi. 

The  city  of  Philadelphia  has  in  the  past  periodically  appro- 
priated a  sum  to  incidental  expenses,  as  appears  by  the  case 
stated,  out  of  which  such  claims  as  the  present  have  been  paid. 
The  appropriation  for  the  period  during  which  the  plaintiflf's 
claim  was  accruing,  was  exhausted  before  the  presentation  of 
the  claim.  Such  a  fund  may  with  propriety  be  applied  in  part 
to  the  maintenance  of  the  court  rooms  and  register's  offices  with 
a  due  regard  to  personal  convenience  as  well  as  to  necessity.  In 
the  present  case  we  are  compelled  to  construe  the  language  of 
an  act  of  assembly  which  is  too  narrow  in  its  terms  to  sustain 
the  plaintiff's  contention. 

The  judgement  of  the  court  below  is  therefore  affirmed. 


M.  Zineman  &  Bro.  v.  William  Harris,  Appellant. 

Contract--Resci98ionfor  frauds  Evidence— Province  of  the  court. 

The  trial  judge  is  justified  in  excluding  from  the  jury  the  question  of 
alleged  fraud  when  the  testimony  of  the  witness  called  to  corroborate  the 
defendant  was  vague  and  unceitain  and  where  all  the  testimony  taken  to- 
gether failed  to  answer  the  test  of  being  clear,  precise  and  indubitable. 

Contract — Rescission  for  fraud — Requisite  proof. 

In  order  to  resciqd  a  contnict  on  the  ground  of  fraudulent  representa- 
tions by  the  seller,  it  must  be  established  by  clear  and  decisive  proof  that 
the  alleged  representation  was  made  in  regard  to  a  material  fact ;  that  it 
was  false;  that  the  maker  knew  that  it  was  not  ti*ue;  that  he  made  it  in 
order  to  have  it  acted  on  by  the  other  party  to  his  damage  and  in  ignor- 
ance of  its  falsity  and  with  a  reasonable  belief  that  it  was  true. 


Digitized  by  VjOOQ IC 


804  ZINKMAN  v.  HARRIS. 

Syllabus — Charge  of  Court.       [6  Pa.  Superior  Cfc. 

Province  of  court  and  jury^QuesUon  of  reasonable  time. 
The  question  of  what  is  reasonable  time  or  undue  delay,  when  the  facts 
are  undisputed,  is  a  question  of  law  to  be  determined  by  the  court. 

Argued  Dec.  14,  1897.  Appeal,  No.  Ill,  Oct  T.,  1897,  by 
defendant,  from  judgment  of  C.  P.  No.  4,  Phila.  Co.,  June  T., 
1894,  No.  1552,  on  verdict  for  plaintiff.  Before  Rice,  P.  J., 
WiCKHAM,  Beaver,  Reedbr,  Orlady,  Smith  and  Por- 
ter, JJ.     AflBrmed. 

Assumpsit  for  goods  sold  and  delivered.  Before  Thayer,  P.  J. 

It  appears  from  the  evidence  that  plaintiffs  are  manufacturers 
of  spectacles,  and  had  devised  an  outfit  consisting  of  an  instru- 
ment to  determine  the  proper  spectacles,  and  spectacles  num- 
bered to  correspond  with  marks  on  the  instrument.  The 
defendant  a  druggist  without  experience  in  dealing  in  specta- 
cles alleged  that  he  had  ordered  goods  of  the  plaintiffs  on  their 
representation  that  they  had  sold  such  outfits  to  another  drug- 
gist in  a  similar  neighborhood  to  the  defendant's  and  that  that 
druggist  liad  sold  large  quantities  of  them. 

The  court,  Thayer,  P.  J.,  charged  the  jury  as  follows : 
[This  is  a  suit  brought  to  recover  the  price  of  certain  goods 
sold  and  delivered.  The  defendant  relies  upon  an  alleged  re- 
scission of  the  contract  on  his  part,  which  he  attempts  to  justify 
by  proof  that  he  was  induced  to  buy  them  by  misrepresentation 
made  to  him  by  the  plaintiffs,  who  sold  them.  The  alleged 
misrepresentation  consisted,  according  to  the  defendant's  state- 
ment, in  the  plaintiff's  representing  that  he  had  sold  similar 
goods  to  Mr.  Ogden.  The  evidence  is  that  although  the  plain- 
tiff had  not  sold  precisely  these  goods  to  Mr.  Ogden,  he  had 
sold  him  somewhat  similar  goods — smoked  eyeglasses  it  turned 
out  to  be.]  [1]  [At  any  rate,  after  receiving  the  goods  and  keep- 
ing them,  as  the  defendant  did,  from  the  17th  of  March  to  the 
28th  of  June,  it  was  too  late  for  him  then  to  rescind  the  con- 
tract upon  such  an  allegation  as  that.  If  he  intended  to  re- 
scinci  the  contract  he  ought  to  have  acted  sooner.  If  he  had 
returned  them  immediately,  or  within  a  reasonable  time,  after 
receiving  the  goods,  there  might  have  been  at  least  some  color 
for  such  a  defense.  But  as  matter  of  law,  I  instruct  you  that 
his  offer  to  return  the  goods  was  entirely  too  late,  and  there- 
fore he  is  responsible  to  the  plaintiffs.]  [2] 


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ZINEMAN  V,  HARRIS.  »05 

1898.]  Verdict— Opinion  of  the  Court. 

Verdict  and  judgment  for  plaintiff  for  $88.25.  Defendant 
appealed. 

Errors  assigned  were  (1,  2)  portions  of  the  judge's  charge, 
reciting  same. 

IF.  8,  Ronet/j  for  appellant. — There  being  a  mistake  of  fact 
material  to  the  contract  it  is  void :  2  Kent's  Com.  (18th  ed.), 
,  477 ;  Pollock  on  Contracts,  441 ;  Fink  v.  Smith,  170  Pa.  124. 

These  misrepresentations  constituted  a  fraud.  They  come 
fully  up  to  the  standard  laid  down  in  Brown  v.  Eccles,  2  Pa. 
Superior  Ct.  192. 

There  was  no  assent  of  two  minds  meeting  on  common  ground : 
Harding  v.  Lloyd,  8  Pa.  Superior  Ct.  298. 

An  effort  was  made  to  return  the  goods  as  soon  as  the  fraud 
was  discovered :  Hollingsworth  on  Contracts,  183  ;  Lawson  on 
Contracts,  sec.  249. 

Irving  JE.  Zeiyler^  for  appellees. — The  right  to  rescind  a  con- 
tract must  be  exercised  within  a  reasonable  time  after  the  breach. 
What  is  such  a  reasonable  time  is  for  the  court :  Morgan  v. 
McKee,  77  Pa.  228. 

The  act  of  the  defendant  in  opening  the  package  and  selling 
therefrom,  was  such  that  rescission  could  not  be  made. 

Opinion  by  Beaver,  J.,  January  18, 1898 : 
The  contract  in  this  case  was  in  writing.  It  was  an  order  to 
tlie  plaintiffs  signed  by  the  defendant  for  certain  goods  which 
were  actually  delivered,  which  the  defendant  accepted  and  part 
of  which  he  sold.  He  undertook  to  rescind  the  contract,  on  the 
ground  that  it  was  induced  by  representations  which  he  alleges 
were  false  and  fraudulent.  When  this  action  was  brought  by 
the  plaintiffs  to  recover  the  value  of  the  goods  sold,  the  fraud 
80  alleged  was  set  up  as  a  defense  to  its  payment. 

Two  assignments  of  error  cover  the  entire  charge  of  the  court 
to  the  jury,  in  which  the  court  instructed  the  jury  that  the  de- 
fendant's offer  **to  return  the  goods  was  entii-ely  too  late  and, 
therefore,  he  is  responsible  to  the  plaintiffs."  The  charge  is 
very  brief.  No  reasons  are  given  for  the  conclusions  reached 
by  the  trial  judge  and  we  are,  therefore,  left  to  gather  them  from 
the  testimony  as  it  was  developed  in  the  trial. 
Vol.  VI— 20 


Digitized  by  VjOOQ IC 


806  ZINEMAN  v.  HARRIS. 

Opinion  of  the  Couit.  [6  Pa.  Saperior  Ct 

If  no  fraud  was  practiced  upon  the  defendant  by  the  plain- 
tiffs, the  conclusion  reached  by  the  trial  judge  is  undoubtedly 
correct.  The  goods  were  sold  on  the  15th  day  of  March,  1894, 
and  were  returned  or  offered  to  be  returned  on  the  28th  of  June 
following,  the  defendant  having  in  the  meantime  sold  some  of 
the  goods  and.  In  order  to  restore  the  status  quo,  having  pur- 
chased from  other  persons  what  was  sufficient,  in  his  opinion,  to 
make  good  the  amount  sold.  , 

The  question  of  "  what  is  a  reasonable  time  or  undue  delay, 
when  the  facts  are  not  disputed,  is,  as  is  well  settled,  a  ques- 
tion of  law  to  be  determined  by  the  court : "  Leaming  v.  Wise, 
73  Pa.  173;  Morgan  v.  McKee,  77  Pa.  228. 

If  the  contract,  however,  were  based  upon  a  fraud  practiced 
upon  the  defendant,  he  could  rescind  it  within  a  reasonable 
time,  after  the  discovery  of  the  fraud ;  and,  if  his  testimony  is 
to  be  believed,  he  rescinded  the  contract  and  offered  to  return 
the  goods  immediately  after  the  discovery  of  what  he  alleged  to 
be  the  fraud  practiced  upon  him  by  the  plaintiffs.  It  is  mani- 
festly certain,  therefore,  that  the  trial  judge  in  the  court  below 
eliminated  the  question  of  fraud  entirely  from  the  case.  Was 
he  justified  in  so  doing?  It  has  been  very  often  held  by  the 
Supreme  Court  and  this  court  that  ^'  when  the  execution  of  an 
instrument  has  been  obtained  by  means  of  a  fraud  or  where 
there  has  been  an  attempt  to  make  a  fraudulent  use  of  the  instru- 
ment in  violation  of  a  promise  or  agreement  made  at  the  time 
the  instrument  was  signed  and  without  which  it  would  not  have 
been  executed,  parol  evidence  could  be  given  to  prove  the  fraud, 
though  it  contradict  the  instrument ; "  but  in  such  a  case  ^^  the 
evidence  must  be  clear,  precise  and  indubitable — not  indubitable 
in  the  sense  that  there  must  be  no  opposing  testimony  but  in 
the  sense  that  it  must  carry  a  clear  conviction  of  its  truth : " 
Honesdale  Glass  Co.  v.  Storms,  125  Pa.  268,  and  numerous 
cases  therein  cited. 

Admitting  that  the  representations  complained  of  amounted 
to  a  fraud  of  which  the  law  will  take  cognizance,  was  the  evi- 
dence of  it  sufficient  to  be  submitted  to  the  jury?  We  think 
not.  It  was  sufficient  in  quantity,  having  the  two  witnesses 
necessary  to  establish  the  fraud ;  but,  after  a  careful  reading  of 
all  the  testimony  upon  the  subject,  we  are  clearly  of  the  opinion 
that  the  witness  who  was  called  to  coiToborate  the  defendant 


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ZINSMAN  V.  HARRIS.  807 

1898.]  Opinion  of  the  Court. 

was  yague  and  uncertain  in  his  testimony ;  and,  taking  all  of 
the  testimony  upon  the  subject  together,  it  fails  to  meet  the 
requirements  herein  set  forth.  Whether  these  considerations 
influenced  the  trial  judge  in  failing  to  submit  to  the  jury  the 
question  of  fraud,  we  cannot,  of  course,  determine.  It  may  be 
that  other  considerations  moved  him. 

In  Southern  Development  Co.  v.  Silva,  125  U.  S.  247,  it  was 
held  that  ^'  In  order  to  rescind  a  contract  for  the  purchase  of 
real  estate  on  the  ground  of  fraudulent  representation  by  the 
seller,  it  must  be  established  by  clear  and  decisive  proof  that 
the  alleged  representation  was  made  in  regard  to  a  material  fact; 
that  it  was  false ;  that  the  maker  knew  that  it  was  not  true ; 
that  he  made  it  in  order  to  have  it  acted  on  by  the  other  party 
and  that  it  was  so  acted  on  by  the  other  party  to  his  damage 
and  in  ignorance  of  its  falsity  and  with  a  reasonable  belief  that 
it  was  true."  The  rule  is  not  essentially  different  as  to  personal 
property.  Were  the  representations  as  to  the  sale  to  Ogden  of 
a  material  fact?  Admitting  that  the  defendant  acted  upon 
those  representations,  did  he  do  so  to  his  detriment  or  damage  ? 
These  are  questions  which  naturally  suggest  themselves  as  legiti- 
mately raised  by  the  evidence  but  which  need  not  be  definitely 
answered,  in  view  of  the  reasons  heretofore  given  which  may 
have  influenced  the  court  below  in  withholding  the  question  of 
fraud  from  the  jury  and  which,  in  our  opinion,  wad  a  sufficient 
justification  for  so  doing. 

The  judgment  is  affirmed. 


Samuel  P.  Ferree,  trading  as  Street  Railway  Advertising 
Company,  Appellant,  v.  Samuel  Young. 

Practice,  Superior  Court — Refusal  of  judgment  on  affidavit. 

The  appellate  couits  will  not  review  the  action  of  the  courts  below  in 
discharging  a  rule  for  want  of  a  sufficient  affidavit  of  defense  unless  it  be 
a  veiy  plain  case  of  error  of  law. 

Practice,  C,  P.— Sufficiency  ofaffidarnl  ailegxng  fraud. 
An  affidavit  is  sufficient  which  alleges  representations  which  were  in 
effect  fraudulent,  made  by  plaintiff  for  the  purpose  of  inducing  the  defend- 
ant to  execute  a  contract  and  a  rescission  of  alleged  contract  upon  discov- 
ery of  the  alleged  fi*aud.  Such  affidavit  raises  questions  of  fact  which 
cannot  be  determined  by  an  appellate  court. 


Digitized  by  VjOOQ IC 


808  FERREE  v,  YOUNG. 

Statement  of  Facts— Opinion  of  the  Qomt.    [6  Pa.  Superior  Ct. 

Argued  Dec.  15, 1897.  Appeal,  No.  156,  Oct.  T.,  1897,  by 
plaintifif,  from  order  of  C.  P.  No.  2,  Phila.  Co.,  June  T.,  1897, 
No.  686,  discharging  rule  for  judgment  for  want  of  a  sufficient 
affidavit  of  defense.  Before  Wickham,  Beaver,  Reedbr, 
Orlady,  Smith  and  Porter,  JJ.    Affirmed. 

Rule  for  judgment  for  want  of  a  sufficient  affidavit  of  defense. 

The  plaintiff  claimed  on  a  conti'act  for  advertising  in  street 
cars  the  sum  of  f  112.50.  The  court  below  discharged  the  rule 
for  judgment  for  want  of  a  sufficient  affidavit  of  defense,  filing 
no  opinion.    Defendant  appealed. 

Error  assigned  was  to  the  order  of  the  court  discharging  the 
rule. 

C,  F.  Gummey^  Ji\^  for  appellant. — The  principle  involved  in 
this  case  has  already  been  decided  by  this  court  in  Hand  v. 
Russell,  1  Pa.  Superior  Ct.  165.  A  case  almost  identical  with 
the  one  under  discussion  is  Hallowell  v.  Lierz,  171  Pa.  577. 

Wm,  H.  Woodj  for  appellee. — Where  the  positive  averments, 
considered  with  reference  to  the  written  conti'act,  show  that  the 
oml  agreement  induced  the  signing  of  the  written  one,  the  affi- 
davit is  sufficient :  Keough  v.  Leslie,  92  Pa.  424. 

Plaintiff  could  not  repudiate  the  fraud  and  yet  retain  thd 
benefit  of  the  conti-act:  Jones  v.  Bldg.  Assn.,  94  Pa.  215;  Meyer- 
hoff  V.  Daniels,  173  Pa.  555. 

An  order  refusing  judgment  for  want  of  a  sufficient  affidavit 
of  defense,  will  only  be  reversed  in  a  very  plain  case  of  error  in 
law:  Radcliffe  v.  Herbst,  135  Pa.  568;  Ins.  Co.  v.  Confer,  158 
Pa.  598 ;  Paine  v.  Kindred,  163  Pa.  638. 

Opinion  by  Smith  J.,  January  18, 1898 : 

The  plaintiff  appeals  from  the  decree  of  the  court  below  dis- 
charging a  rule  for  judgment  for  want  of  a  sufficient  affidavit 
of  defense.  This  court  has  followed  the  rule  of  the  Supreme 
Court  in  this  class  of  appeals :  "  It  must  be  a  very  plain  case  of 
error  in  law,  if  we  sustain  appeals  in  such  cases  as  this,  from 
the  decree  of  the  common  pleas  discharging  the  rule : "  ^tna 
Ins.  Co.  V.  Confer,  158  Pa.  598.     The  affidavit  of  defense  avers, 


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FRRREE  V.  YOUNG.  809 

1898.]  Opinion  of  the  Court. 

that  the  plaintiff's  agent  procured  the  defendant  to  advertise, 
on  the  representation  that  the  plaintiff  had  room  in  the  street 
cars  for  just  one  coal  advertisement,  and  only  one,  and  that  if 
the  defendant  would  place  an  advertisement  with  the  plaintiff 
no  other  coal  advertisement  would  be  placed  in  the  cars  during 
the  defendant's  contract.  The  affidavit  further  avers  that  the 
defendant  relied  upon  this  assurance  and  was  induced  thereby 
to  sign  the  contract;  that  the  plaintiff,  notwithstanding  the  rep- 
resentation and  promise,  put  the  defendant's  advertisement  with 
those  of  other  coal  dealers  in  the  same  cars ;  and  that  the  defend- 
ant notified  the  plaintiff,  as  soon  as  he  could  do  so,  to  remove 
his  advertisement,  as  it  was  obtained  through  fraud  and  mis- 
representation, and  he  would  not  pay  for  it.  The  affidavit  is 
expanded  with  the  elaborate  phraseology  frequently  employed 
in  those  instruments,  but  we  give  the  substance.  The  learned 
court  refused  to  declare  the  affidavit  insufficient,  and  we  are 
therefore  asked  to  hold  that  this  ruling  presents  ''  a  very  plain 
case  of  en*or  in  law,"  which  calls  for  correction.  This  we  can- 
not do.  The  affidavit  alleges  representations  which  were  in 
effect  fraudulent,  made  by  the  plaintiff's  agent  for  the  purpose 
of  inducing  the  defendant  to  execute  the  contract,  and  a  rescis- 
sion of  the  alleged  contract  upon  discovery  of  the  alleged  fraud. 
This  raises  questions  of  fact  which  cannot  be  determined  by  an 
appellate  court. 

ITie  decree  discharging  the  rule  for  want  of  a  sufficient  affi- 
davit of  defense  is  affirmed. 


Hannah  T.  Omensetter  v.  Henry  Kemper,  Appellant. 

Evidence — Trespass — Res  gestm — Measure  of  damages. 
The  question  being  one  of  trespass  in  illegally  closing  plakitiflTs  win- 
dow overlooking  property  belonging  to  wife  of  defendant,  evidence  is 
properly  admissible  as  to  conduct  and  declarations  of  the  defendant  in 
regai*d  to  consenting  to  the  erection  of  the  windows  as  bearing  on  a  license 
from  the  wife  as  well  as  to  alleged  bad  faith,  recklessness  or  oppression 
of  the  defendant;  the  evidence  being  pertinent  in  any  event,  irrespective 
of  the  wife^s  title  and  defendant's  inability  to  bind  her,  if  it  appeared  that 
plaintifTs  property  was  built  within  her  own  line,  tending  as  it  did  to  fur- 
nish some  guidance  ais  to  the  measure  of  damage. 


Digitized  by  VjOOQ IC 


810  OMENSETTER  v.  KEMPER. 

Syllabus— Statement  of  Facts.     [6  Pa.  Superior  Ct. 

Evidence—  Witness  cannot  be  made  the  arbiter. 

Where  the  issue  turned  on  the  proper  division  line  between  two  proper- 
ties a  question  is  properly  excluded  when,  to  have  allowed  the  witness  to 
have  answered  it,  would  have  made  him  the  arbiter  of  the  whole  question 
of  title,  including  the  application  of  the  statute  of  limitation. 

Practice,  Superior  Court — Unfair  assignment — Excerpt  from  charge. 

An  assignment  of  eiTor  is  unfair  and  defective  which  complains  of  an 
excerpt  from  the  charge,  wrested  from  its  context,  when,  if  all  that  was  said 
in  the  instruction  complained  of  had  been  quoted,  it  would  appear  that  the 
matter  in  dispute  had  been  left  entirely  to  the  jury. 

Practice— Beview— Charge  of  court— Comment  on  evidence. 

The"  question  turning  on  the  accuracy  of  certain  measurements  made,  on 
the  one  hand  by  trained  surveyors  and  on  the  other,  by  unskilled  persons, 
it  was  not  error  for  the  court  to  call  the  attention  of  the  jury  to  the  fact 
that  defendant's  measurements  were  made  by  **  a  baker  attended  by  a  tin- 
smith under  the  supervision  of  a  lawyer."  This  is  not  such  departure  from 
judicial  gravity  as  to  call  for  a  reversal. 

Trespass — Title  by  possession— Burden  of  proof  on  defendant. 

Mere  possession  is  in  itself  a  form  of  title,  and  he  who  interferes  there- 
with must  be  prepared  to  show  a  better  title.  Plaintiff  having  been  in 
possession  of  her  house  and  defendant  having  invaded  her  possession,  by 
obstructing  her  windows,  the  burden  devolved  upon  him  to  explain  or  jus- 
tify his  acts. 

Division  fence — Consentdble  line — Statute  of  limitations— Burden  of  proof 
The  mere  calling  a  fence  a  division  feiice  does  not  make  it  one.  It  is 
the  duty  of  a  party,  relying  on  a  fence  as  a  division  one,  to  supply  the  juiy 
with  the  requisite  facts.  A  consentable  line  is  not  established  merely  by 
an  existing  fence  when  its  character  is  only  accounted  for  during  ten  or 
twelve  years. 

Argued  Oct.  5,  1897.  Appeal,  No.  88,  Oct.  T.,  1897,  by 
defendant,  from  judgment  of  C.  P.  No.  4,  Phila.  Co.,  June  T., 
1896,  No.  665,  on  verdict  for  plaintiff.  Before  Rice,  P.  J., 
WiCKHAM,  Beaver,  Reedeb,  Orlady,  Smith  and  Porter,  JJ, 
AflRrraed. 

Trespass  quare  clausum  fregit  to  recover  damages  for  obstruc- 
tion to  plaintiff's  light  and  air  by  nailing  up  her  windows.  Be- 
fore Audenreid,  J. 

The  facts  sufficiently  appear  in  the  opinion  of  the  court. 

Verdict  and  judgment  for  plaintiff  for  $183.33.  Plaintiff 
appealed. 


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OMENSErrER  V.  KEMPER.  311 

1898.]  Assignment  of  Errors. 

JErrors  assiffned  were  (1-3)  In  admitting  questions  propounded' 
to  plaintiff's  witnesses  as  to  conversations  which  had  taken 
place  between  them  and  the  defendant.  (4)  In  overruling  the 
following  question  propounded  to  Joseph  Thorp :  "  Q.  Assum- 
ing that  the  fence  line  as  you  have  put  it  on  the  plan  was  the 
fence  as  it  has  been  in  existence  as  testified  to  by  Mr.  Kemper, 
and  running  that  fence  out  upon  the  straight  line  as  Mr.  Kemper 
testified  that  the  fence  did  run  to  Leverington  avenue,  state  to 
the  court  and  juiy  whether  or  not  that  would  show  that  the 
plaintiff's  property  was  built  over  Mrs.  Kemper's  property." 
(5-8)  In  charging  the  jury  as  follows :  "  As  Mrs.  Omensetter 
was,  undoubtedly,  in  possession  of  that  house  and  every  part  of 
it,  including  not  only  its  interior,  but  also  the  wall  in  which 
these  windows  were  opened,  it  would  appear  that  her  possession 
has  been  invaded,  and  that  she  is  therefore  entitled  to  recover 
damages  at  your  hands  in  this  action,  unless  the  defendant  can 
explain  and  justify  his  acts.  ...  As  the  plaintiff  is  in  the  pos- 
session of  the  property  No.  518  Leverington  avenue  you  are 
bound  to  start  out  with  the  presumption  that  she  is  lawfully  in 
possession  of  it,  and  that  her  title  is  co-extensive  with  her  pos- 
session. It  lies  on  the  defendant  to  show  that  that  house  is  not 
within  the  plaintiff's  o\vn  lot,  and  that  the  division  line  is  not  to 
the  northeast  of  the  wall  in  which  the  windows  and  doors  open. 
.  •  .  .  The  only  question  of  doubt  in  Mr.  Thorp's  determination 
of  the  location  of  the  southwest  line  of  the  Kemper  lot  is  as  to 
whether  he  carefully  measured  the  distance  of  one  hundred  and 
ninety-six  feet  one  inch  from  the  comer  of  Ridge  avenue.  I  do 
not  think  that  there  is  chance  for  a  mistake  in  this  calculation 
at  any  other  point.  .  .  .  The  measui*ements  made  for  the  defend- 
ant were  made  by  a  baker,  attended  by  a  tinsmith,  under  the 
supervision  of  a  lawyer.  It  does  not  appear  that  any  of  these 
gentlemen  ever  made  a  land  measurement  before."  (9)  In  af- 
firming plaintiff's  second  point,  which  point  is  as  follows :  "  If 
the  jury  believe  from  the  evidence  that  the  defendant  gave  a 
license  to  the  plaintiff  to  erect  the  windows  in  question  and  in 
consequence  of  which  license  plaintiff  went  to  an  expense  by 
building  her  house  upon  a  different  plan  from  that  which  she 
would  have  adopted  if  such  license  had  not  been  given,  then 
the  license  was  irrevocable,  and  in  no  aspect  has  the  defendant 
a  right  to  nail  the  obstiTictions  to  plaintiff's  window."     (10)  In 


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312  OMENSETTER  v.  KEMPER. 

Assignment  of  Errors — Argiinoents.  [G  Pa.  Superior  Ct.' 

refusing  to  charge  the  jury  as  requested  for  the  defendant  as 
follows :  "  It  is  the  uncontradicted  testimony  of  the  defendant 
that  the  division  line  between  the  property  of  plaintiff  and  Cath- 
arine Kemper  for  upwards  of  twenty-one  years  next  preceding 
the  erection  of  plaintiff's  house  was  marked  by  a  straight  fence 
as  shown  on  the  plan  of  survey  which  you  have  in  evidence. 
I  instmct  you  if  you  find  the  said  fence  to  have  existed  as  tes- 
tified to,  and  that  the  plaintiff's  house  is  upon  or  over  the  line 
as  so  established,  then  your  verdict  must  be  for  the  defendant." 
(11)  The  damages  found  by  the  jury  were  excessive. 

W.  Horace  Hepburn^  for  appellant. — The  only  question  before 
tlie  court  below  on  the  trial  of  this  case  was  as  to  the  location 
of  the  division  line  between  the  defendant's  lot  and  the  plain- 
tiff's property.  The  evidence  admitted  under  the  first  three 
assignments  of  error  were  irrelevant  and  prejudicial  and  should 
have  been  excluded :  Bank  v.  Gillespie,  115  Pa.  564. 

The  affirmance  of  the  plaintiff's  second  point  as  set  out  in  the 
9th  assignment  of  error,  did  not  tend  in  the  least  possible  way 
to  enlighten  and  help  the  jury,  but  did  tend  to  convey  the  im- 
pression that  the  defendant  had  committed  a  wrongful  act. 

The  burden  of  proof  should  be  upon  the  plaintiff,  and  not,  as 
stated  by  the  court,  upon  the  defendant:  Wolf  v.  Wolf,  158 
Pa.  621. 

The  line  fence  had  been  recognized  for  a  period  beyond  the 
statute  of  limitations  and  should  not  have  been  disturbed:  Mc- 
Cormick  v.  Barnum,  10  Wend.  104. 

Long  acquiescence  by  one  in  a  line  assumed  by  the  other  is 
evidence  of  an  agreement :  Kip  v.  Norton,  12  Wend.  127  ;  Hunt 
V.  Johnson,  19  N.  Y.  279. 

A  great  numl)er  of  cases  confirming  the  doctrine  as  stated 
above  may  be  found  in  Tyler's  Law  of  Boundaries,  Fences  and 
Window  Lights,  at  pages  288  to  294. 

The  description  of  the  persons  testifying  as  to  the  measure- 
ments for  defendant  was  couched  in  language  by  the  trial  judge 
tending  to  produce  a  mirthful  effect  upon  the  jur)',  and  it  had 
that  effect  as  it  brought  forth  a  laugh  from  them. 

.  Francis  S.  Cantrell  and  Francis  S.  CantrelU  Jr.^  for  appellee. 
-r-There  was  no  evidence  in  this  case  of  a  consentable  line  recog 


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OMENSETTER  v.  KEMPER.  818 

1898.]  Arguments — Opinion  of  the  Court. 

nized  for  a  period  long  enough  to  invoke  the  statute  of  limita- 
tions. The  evidence  sufficiently  established  the  proposition  that 
plaintiff  had  built  her  house  within  her  own  line,  and  that  the 
act  of  the  defendant  was  an  unwarrantable  trespass. 

The  comments  of  the  court  complained  of  in  the  assignments 
of  error  were  mere  proper  expressions  of  opinion  by  the  court : 
Com.  V.  Orr,  138  Pa.  276. 

Opinion  by  Wickham,  J.,  January  18, 1898 : 
The  plaintiff  sued  in  trespass,  for  the  alleged  unlawful  acts 
of  the  defendant  in  closing  up  two  windows  in  the  east  wall  of 
her  house,  which  is  situate  on  East  Leverington  Avenue,  in  the 
city  of  Philadelphia.  The  defendant  tried  to  justify  his  acts  by 
averring,  and  attempting  to  prove,  that  the  wall  extended  over 
on  the  property  of  his  wife,  by  whose  authority  he  obstructed 
the  windows.  The  only  question,  therefore,  outside  of  the 
matter  of  damages,  was  whether  or  not  the  wall  was  built  on 
the  land  of  the  defendant's  wife.  To  make  this  question  of 
fact  still  more  definite  and  easy  of  solution,  the  defendant  in  his 
first  point,  which  was  affirmed,  asked  the  court  to  charge  that 
his  wife  was  entitled  to  a  lot  fifty  feet  wide  west  of  the  western 
boundary  line  of  another  lot,  adjoining  and  east  of  hers,  known 
as  the  Shinkle  or  Morton  lot.  This  boundary  line  was  marked 
by  an  ancient  fence  which  both  parties  agreed  was  the  true 
eastern  boundary  of  the  Kemper  lot. 

Under  the  instruction  requested  by  the  defendant  and  given 
by  the  court,  it  is  apparent  that  if,  measuring  westwardly  from 
the  Morton  fence  to  the  Omensetter  wall,  Mrs.  Kemper  had  a 
lot  fifty  feet  in  width,  all  she  claimed  under  her  deed,  then  the 
defendant  was  guilty  of  the  trespass  charged,  unless  through  a 
consentable  line,  or  imder  the  statute  of  limitations,  the  wife 
could  justly  claim  more  land.  Such  was  the  necessary  effect 
of  the  way  in  which  the  defendant  had  the  case  submitted  to 
the  juiy.  The  jury,  looking  at  all  the  evidence  bearing  on 
this  point,  found  in  effect,  that  Mrs.  Kemper  had  the  fifty  feet 
referi'ed  to  east  of  plaintiff's  house  and  west  of  the  Morton  fence, 
and  therefore  rendered  a  verdict  against  the  defendant.  The 
evidence  shows,  that  the  defendant  intruded  west  of  the  eastern 
surface  of  the  wall,  the  obstructions  having  been  nailed  to  the 
wooden  fiiimes  set  back  in  the  window  openings. 


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8U  OMENSETTKR  y.  KEMPER. 

Opinion  of  the  Court.  [6  Pa.  Superior  Ct. 

The  court  had  in  its  charge  ruled,  that  there  was  not  suffi- 
cient evidence  to  establish  a  consentable  line,  or  to  give  title 
under  the  statute  of  limitations,  to  the  land  occupied  by  the 
wall  or  any  part  thereof.  The  defendant  therefore  had  to  stand 
on  his  wife's  deed  and  the  measurements  made  westwardly  from 
the  Morton  fence,  and  the  juiy  found  that  she  had  fifty  feet  east 
of  the  plaintiff's  building. 

Let  us  now  look  at  the  assignments  of  error.  The  first,  sec- 
ond, and  third  relate  to  the  admission  of  testimony  showing  that 
the  plaintiff's  husband,  before  she  erected  her  house  in  1889, 
consulted  with  the  defen4ant,  who  encouraged  the  putting  in  of 
the  windows.  He  talked  and  acted  at  that  time  in  such  a  way 
as  to  lead  one,  not  knowing  that  his  wife  held  the  title,  to  assume 
that  he  was  the  owner  of  the  lot  adjoining  the  plaintiff's.  He 
alone  was  sued,  and,  at  the  time  when  the  testimony  objected  to 
was  offered,  his  defense  was  not  developed.  The  testimony  was 
therefore  properly  admitted  as  part  of  the  history  of  the  matter 
in  controversy  and  as  bearing  on  the  question  of  license,  as  well 
as  the  alleged  bad  faith  and  recklessness,  or  oppression  of  the 
defendant.  Even  after  the  defense  had  been  opened,  and  it 
appeared  by  the  wife's  deeds  that  she  was  the  real  owner  of  the 
property  occupied  by  herself  and  husband,  and  that  he  therefore 
had  no  authority  to  bind  her,  the  evidence  was  still  pertinent, 
in  case  the  jury  found  that  the  plaintiff's  house  was  built  in  on 
her  own  lot.  It  tended  to  furnish  some  guidance  as  to  the 
measure  of  damages.  Omensetter,  in  the  conversation  detailed 
in  the  first  assignment  of  error,  asked  Kemper,  after  showing 
him  the  plan  of  the  house  if  he  had  any  objection  to  it.  Kemper 
replied,  "  No,  John,  I  would  rather  have  those  windows  there 
than  a  dead  wall."  Omensetter  says  farther,  in  giving  his  ver- 
sion of  the  conversation,  "  I  told  him  I  intended  to  keep  within 
my  own  line  which  I  am  doing."  The  remark  *'  which  I  am 
doing  "  was  volunteered  by  the  witness,  was  not  called  out  by 
any  question,  and  in  strictness  was  inadmissible.  A  motion 
was  made  by  the  defendant's  counsel  to  strike  it  out,  but  as 
there  is  no  assignment  of  error,  based  on  the  court's  refusal  to 
do  so,  the  matter  need  not  be  further  considered. 

To  another  witness  Kemper  said,  '*  I  gave  him  "  (Omensetter) 
"  permission  to  put  two  windows  in  the  gable  end  of  this  wall," 
and  made  a  like  statement  to  still  another  person. 


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GMENSETTER  v.  KEMPER.  815 

1898.]  Opinion  of  the  Coait. 

The  learned  trial  judge  told  the  jury,  in  language  not  to  be 
misunderstood,  that  Kemper  had  no  authority  to  represent  his 
wife,  and  that  no  license  had  been  proved.  The  jury  found  in 
effect  that  the  plaintiff's  building  was  inside  her  line.  In  view 
of  this  finding  we  fail  to  see  why,  in  assessing  the  damages, 
they  had  not  a  right  to  consider  the  defendant's  conduct  from 
beginning  to  end  so  far  as  it  related  to  the  windows.  He  en- 
couraged the  putting  of  them  in.  He  was  told  by  Omensetter 
that  the  house  would  be  built  west  of  the  Kemper  line,  and  as 
a  matter  of  fact,  it  was  so  built  and  maintained.  And  yet,  not- 
withstanding these  things,  the  defendant,  without  a  word  of 
notice  or  warning,  disfigured  the  plaintiff's  habitation  and  closed 
up  her  handsome  and  costly  leaded  and  plate  glass  windows 
by  nailing  over  one  an  old  pine  batten  door,  and  over  the  other 
"  bagging  covered  with  manure,  horse  manure,"  thus  causing 
crowds  of  six  to  a  dozen  people  to  frequently  gather,  as  the  evi- 
dence shows,  to  view  the  odd  decorations. 

We  think  that  all  the  testimony  of  the  three  witnesses  men- 
tioned in  the  assignments  we  have  been  considering,  so  far  as  it 
was  responsive  to  the  questions  or  suggestions  of  the  plaintiff's 
counsel,  was  admissible.  Anything  objectionable  and  volun- 
teered should  have  been  met,  at  the  time,  by  a  motion  to  strike 
out,  and  if  such  motion  were  overruled,  the  refusal,  if  excepted 
to,  could  have  been  assigned  for  error  here.  This  has  not  been 
done,  and  at  any  rate,  the  irresponsive  matter  is  so  harmless  as 
to  be  scarcely  worth  the  trouble. 

The  fourth  assignment  complains  that  the  court  overruled 
the  following  question,  put  for  the  defense  to  one  of  the  sur- 
veyors on  cross-examination :  "  Assuming  that  the  fence  line 
as  you  have  put  it  on  the  plan  was  the  fence  as  it  has  been  in 
existence,  as  testified  to  by  Mr.  Kemper,  and  running  that  fence 
out  upon  the  straight  line  as  Mr.  Kemper  testified  that  the  fence 
did  run  to  Leverington  avenue,  state  to  the  court  and  jury 
whether  or  not  that  would  show  that  the  plaintiff's  property  was 
built  over  Mrs.  Kemper's  property."  This  question  was  very 
properly  disallowed  for  two  reasons :  first,  it  does  not  appear 
that  the  witness  heard  what  Kemper  had  testified,  about  the 
fence  and  the  length  of  time  it  had  existed ;  and  second,  to 
have  allowed  the  witness  to  answer  would  have  made  him  the 
arbiter  of  the  whole  question  of  title  including  the  applicabil- 


Digitized  by  VjOOQ IC 


816  OMENSKTTER  v.  KEMPER. 

Opinion  of  the  Court.  [6  Pa.  Superior  Ct. 

ity  of  the  statute  of  limitations.  It  was  the  province  of  the 
jury  to  determine  whether  the  Omensetter  wall  was  built  on  the 
Kemper  property.  The  witness  should  have  been  asked  as  to 
the  position  of  the  fence  with  reference  to  the  wall,  or  the  Mor- 
ton line,  or  as  to  like  matters  within  his  art. 

The  fifth  and  sixth  assignments  are  based  on  the  instructions 
given  the  jury  to  the  effect  that  the  plaintiff,  being  in  posses- 
sion of  her  house,  including  of  course  the  wall  and  windows, 
and  the  defendant  having  admittedly  invaded  her  possession,  it 
devolved  on  him  to  explain  or  justify  his  acts.  As  this  is  horn- 
book law,  part  of  the  very  alphabet  of  the  law  of  trespass,  no 
authorities  need  be  cited  to  sustain  it.  Mere  possession,  fortu- 
nately for  the  good  order  of  society,  is  in  itself  a  form  of  title, 
and  he  who  interferes  therewith  must  be  prepared  to  show  a 
better  one. 

The  seventh  assignment  is  not  quite  fair  to  the  court  below. 
The  instruction  complained  of  is  an  excerpt,  wrested  from  its 
context.  Had  all  that  was  said,  on  the  subject  referred  to  in 
this  instruction,  been  quoted,  it  would  appear  that  the  matter 
of  the  correctness  of  the  conflicting  measurements  was  left  en- 
tirely to  the  jury.  Even  the  expression  of  opinion,  contained 
in  the  excerpt,  was  practically  withdrawn  near  the  close  of  the 
next  paragraph  of  tlie  charge. 

In  the  eighth  assignment  the  appellant  complains,  that  the 
court  said  to  the  jury  that  the  defendant's  measurements  "  were 
made  by  a  baker  attended  by  a  tinsmith  under  the  supervision  of 
a  lawyer."  That  the  measurements  were  made  by  three  persons 
of  the  respective  callings  mentioned,  instead  of  by  a  surveyor, 
and  that  the  lawyer  superintended,  is  indubitable,  but  a  careful 
examination  of  the  testimony  does  not  make  it  quite  clear 
whether  the  baker,  who  was  the  defendant  himself,  was  attended 
by  the  tinsmith,  or  the  tinsmith  by  the  baker.  However,  a 
slight  mistake  in  stating  the  order  of  rank  would  be  harmless 
error,  as  it  is  quite  certain  that  the  baker  was  at  one  end  of  the 
tape  line  and  the  tinsmith  at  the  other.  The  plaintiff's  evidence 
as  to  the  disputed  line  came  from  professional  surveyor's.  The 
defendant  first  called  in  a  surveyor,  but  being  dissatisfied  with 
the  result,  he  rejected  the  artist's  work.  Then,  instead  of  em- 
ploying another  surveyor,  he  undertook,  with  the  aid  of  his 
counsel  and  a  neighbor,  to  make  his  own  measurements,  this 


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OMENSETTER  v.  KEMPER.  817 

1898.]  OpiDion  of  the  Court. 

being  the  first  experience  either  of  the  three  had  in  measuring 
land  or  finding  boundaries.  It  was,  therefore,  not  out  of  place 
for  the  court  to  call  the  attention  of  the  jury  to  their  vocations, 
and  although  it  may  have  been  done  in  a  manner  calculated  to 
provoke  a  smile,  there  was  not  such  a  wide  departure  from  judi- 
cial gravity  as  to  demand  a  reversal.  It  may  be  mentioned 
here,  that  the  testimony  of  Mr.  Thorp,  one  of  the  sui'veyors, 
explains  how  easily  these  three  gentlemen,  ignorant  of  the 
courses  of  the  lot  lines  and  the  angles  at  which  they  intersect 
the  avenue,  might  make  mistakes,  although  actuated  by  the  most 
honest  motives. 

It  would  have  been  better  for  the  court  to  have  simply  refused 
the  plaintiff's  second  point,  set  forth  in  the  ninth  assignment  of 
error.  The  answer,  however,  taken  as  a  whole,  is  equivalent  to 
saying,  ''  It  is  true  that  if  a  license  has  been  proved,  then  it  is 
irrevocable,  but  there  is  no  evidence  that  either  Kemper  or  his 
wife  gave  any  license."  In  the  general  charge,  the  jury  were 
emphatically  instructed  that  no  license  had  been  shown,  the 
learned  trial  judge  closing  his  remarks  on  this  head  with  the 
words  "  Therefore  as  I  say,  the  question  of  license  is  out  of 
the  case,  and  you  need  not  consider  it."  In  view  of  all  this, 
the  appellant,  in  our  opinion,  suffered  no  harm  from  the  manner 
in  which  the  court  disposed  of  the  plaintiff's  second  point.  The 
jury  must  have  understood  that,  in  effect,  the  point  was  refused. 

The  tenth  assignment  rests  on  the  refusal  of  the  court  to 
charge  as  follows:  "It  is  the  uncontradicted  testimony  of  the 
defendant  that  the  division  line  between  the  property  of  plain-! 
tiff  and  Catharine  Kemper  for  upwards  of  twenty-one  years  next 
preceding  the  erection  of  plaintiff's  house  was  marked  by  a 
straight  fence,  as  shown  on  the  plan  of  survey  which  you  have 
in  evidence.  I  instmct  you,  if  you  find  the  said  fence  to  have 
existed  as  testified  to,  and  that  the  plaintiff's  house  is  upon  or 
over  the  line  as  so  established,  then  your  verdict  must  be  for 
the  defendant."  To  have  afi&rmed  this  point  would  have  been 
serious  error.  It  is  true  the  defense  offered  evidence  as  to  the 
existence  of  a  straight  fence,  running  back  from  Leverington 
avenue,  along  or  near  the  disputed  line,  and  a  part  whereof  was 
taken  down  by  the  plaintiff  when  she  built  her  house.  It  was 
testified  by  the  defendant  and  his  wife,  that  the  fence  had  been 
there  some  thirty-five  years  befoi*e  the  trial.     Mrs.  Kemper 


Digitized  by  VjOOQ IC 


818  OMENSETTER  v.  KEMPER. 

Opinion  of  tbe  Court.  [6  Pa.  Superior  Ot. 

bought  in  1877,  the  Omensetter  house  was  built  in  1889.  Kem- 
per testified  that  the  plaintiff's  husband,  between  the  two  years 
just  mentioned,  helped  to  maintain  the  fence.  Under  the  proof, 
we  have  only  a  period  of  twelve  years,  at  the  most,  during 
which  the  defendant's  wife  can  be  said  to  have  claimed  up  to 
the  fence.  We  are  left  utterly  in  the  dark  as  to  the  history  of 
the  fence  prior  to  1877.  It  does  not  appear  who  built  or  main- 
tained it ;  whether  it  was  intended  to  mark  the  true  line  or  a 
consentable  line ;  whether  it  was  recognized  by  former  owners 
as  indicating  the  boundary,  or  whether  Mrs.  Kemper's  prede- 
cessors in  title  had  claimed  and  held  up  to  it.  The  merely 
calling  it  a  division  or  line  fence  by  the  defendant  and  his  wife, 
in  their  testimony,  does  not  make  it  one.  It  was  their  duty  to 
supply  the  jury  with  facts.  The  measure  of  proof  is  indicated 
in  Brown  v.  McKinney,  9  W.  565,  and  Reiter  v.  Mc  Junkin,  178 
Pa.  82,  the  strongest  cases  that  can  be  found  in  our  reports  in 
favor  of  the  appellant's  position. 

We  may  add,  that  where  this  fence  stood  with  reference  to 
the  wall  is,  to  say  the  least,  left  very  conjectural.  The  only 
witness  who  testified  directly  in  regard  to  the  matter  was  the 
carpenter,  who  built  the  plaintiff's  kitchen  back  of  the  main 
building,  and  who  was  called  for  the  defense.  He  stated  that 
he  took  down  about  twelve  feet  of  the  fence,  but  added  that  he 
built,  inside  the  line,  on  the  plaintiff's  own  lot. 

As  to  the  eleventh  and  last  assignment,  we  cannot  say,  look- 
ing at  all  the  facts,  that  the  amount  of  the  verdict  should  lead 
us  to  interfere. 

Judgment  affirmed. 


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KARAHUTA  v.  TRACTION  CO.  819 

1898.]  Syllabus— -ArgumeDts. 


Andrew  Karahuta  v.  The  Schuylkill  Traction  Company, 

Appellant. 

Question  for  jury — Negligence — Street  railways— Duty  ofmotonnan, 
Whei'e  there  is  evidence  of  the  failure  to  ring  the  bell  and  of  failure  to 
perceive  the  approach  of  the  child  who  was  killed  by  a  trolley  car,  and 
that  the  motorman  was  engaged  in  conversation  with  one  of  the  pas- 
sengers just  before  the  accident  and  that  his  face  was  at  one  time  turned 
away  from  the  track,  the  case  is  for  the  jury  on  the  question  of  the  de- 
fendant's negligence. 

Negligence-rContributory  negligence  ofparent—Questtonforjury, 
A  father  left  his  little  child  of  two  and  one  half  years  of  age  on  the 
front  steps  of  his  house  facing  a  public  street  where  electric  cars  and 
wagons  were  passing,  while  he  took  a  still  smaller  child  in  to  its  mother. 
There  was  a  hand  organ  playing  upon  the  opposite  side  of  the  street  and 
the  child  was  enjoined  not  to  leave  the  step.  While  the  father  was  absent 
the  child  had  wandered  upon  the  track  and  had  been  killed.  The  parents 
wei*e  people  in  humble  circumstances  and  had  no  one  else  to  take  care  of 
the  children  but  themselves,  ffeldt  That  the  action  of  the  parent  was  not 
such  as  compelled  the  court  to  pronounce  it  to  be  such  contributory  negli- 
gence on  his  part  as  to  require  the  withdrawal  of  the  case  from  the  jury. 

Argued  Dec.  9, 1897.  Appeal,  No.  160,  Oct.  T.,  1897,  by 
defendant,  from  judgment  of  C.  P.  Schuylkill  Co.,  Jan.  T., 
1896,  No.  207,  on  verdict  for  plaintiff.  Before  Rice,  P.  J., 
WiCKHAM,  Beaveb,  Reedeb,  Orlady,  Smith  and  Porter,  J  J. 
Affirmed. 

Trespass  by  parent  to  recover  damages  for  the  death  of  his 
son,  who  was  struck  by  car  of  the  defendant  company.  Before 
Savidgb,  P.  J. 

The  facts  sufficiently  appear  in  the  opinion  of  the  court. 

Verdict  and  judgment  for  plaintifif  for  $566.60.  Defendant 
appealed. 

Error  assigned  was  refusal  of  binding  instructions  for  defend- 
ant. 

MacHenry  Wilhelm^  for  appeUant. — The  fact  that  a  child  is 
injured  on  a  public  street  does  not  of  itself  impose  liability  on 


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320  KARAHUTA  v.  TRACTION  CO. 

Arguments— Opinion  of  the  Court.   [6  Pa.  Supeilor  Ct. 

the  part  of  a  driver  or  other  person  who  has  the  vehicle  in 
charge :  Moss  v.  Traction  Co.,  180  Pa.  389 ;  Johnson  v.  Rail- 
way Co.,  160  Pa.  647. 

The  fact  that  a  child  is  found  in  the  streets  affords  a  strong 
presumption  of  negligence  on  the  part  of  the  plaintiff :  P.  & 
R.  R.  R.  Co.  V.  Long,  75  Pa.  257 ;  Cauley  v.  RaHway  Co.,  95 
Pa.  398 ;  Glaasey  v.  Ry.  Co.,  57  Pa.  152. 

Chas.  N,  Brumrn^  with  him  George  Dyson^  for  appellee. — The 
principles  of  law  that  apply  perfectly  to  this  case  are  laid  down 
in  Henne  v.  Ry.  Co.,  1  Pa.  Superior  Ct.  311. 

The  refusal  of  binding  instructions  is  justified  by  Dunseath 
V.  Traction  Co.,  161  Pa.  124. 

Opinion  by  Poeteb,  J.,  January  18, 1898 : 

The  only  specification  of  error  in  this  case  is  the  refusal  of 
the  court  below  to  give  binding  instructions  to  the  jury  to  find 
for  the  defendants.  This  request  is  based  upon  the  propositions 
first  that  the  defendants  were  not  guilty  of  negligence ;  and  sec- 
ond, that  the  plaintiff,  (the  father  of  the  child  who  was  killed) 
was  guilty  of  contributory  negligence. 

A  decision  of  this  case  requires  a  consideration  of  the  testi- 
mony. The  plaintiff  is  a  foreigner,  having  lived  at  the  time  of 
the  accident,  but  seven  years  in  this  country.  His  residence 
was  on  Centre  street  in  the  borough  of  Mahanoy  City.  His 
family  consisted  of  himself,  his  wife,  his  son  Joseph,  (who  was 
killed)  of  the  age  of  two  years  and  a  half,  and  a  younger  child 
about  one  year  old.  Centre  street  is  about  eighty  feet  wide  from 
curb  line  to  curb  line  and  is  traversed  by  the  tracks  of  the  de- 
fendant company,  which  operates  an  electrical  sti-eet  railway. 
The  tittcks  are  laid  in  the  middle  of  the  street.  One  of  the 
termini  of  the  line  is  in  Mahanoy  City  east  of  the  house  occu- 
pied by  the  plaintiff.  The  car  which  killed  the  child,  Joseph 
Karahuta,  had  passed  eastward  to  the  terminus  and  was  on  its 
return  trip. 

On  August  7, 1894,  the  plaintiff  left  his  house  and  proceeded 
directly  across  Centre  sti*eet  taking  his  two  children,  the  younger 
in  his  arms  and  the  older  by  the  hand,  to  Hogan's  store  to  be 
nearer  an  Italian  who  was  there  playing  a  hand  organ.  Having 
remained  for  a  time  listening  to  the  music  with  a  number  of 


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KARAHUTA  v.  TRACTION  CO,  821 

1898.]  Opinion  of  the  Court. 

other  persons,  adults  and  children,  the  plaintiff  returned  to  his 
house  with  his  two  children.  Having  to  go  to  the  yaid  of  the 
house  for  a  necessary  purpose  for  a  few  minutes,  he  allowed 
the  older  boy  to  remain  on  the  front  doorstep  and  took  the 
younger  child  into  the  house,  placing  the  latter  in  the  care  of 
its  mother.  On  his  return  to  the  house,  in  a  few  minutes,  he 
found  the  older  child  dead  in  the  arms  of  its  mother,  having 
been  killed  during  his  absence  1^  a  car  of  the  defendant  com* 
pany. 

The  allegations  in  respect  to  the  negligence  of  defendants 
were  that  the  car  was  moving  at  an  extraordinary  speed,  that 
the  motorman  failed  to  ring  his  alarm  bell,  and  that  his  atten- 
tion was  not  being  properly  given  to  the  management  of  his  car. 

The  evidence  does  not  satisfy  us  that,  there  was  any  undue 
speed.  The  car  seems  to  have  been  moving  at  a  rate  of  not 
more  than  four  to  six  miles  an  hour  at  the  time  of  the  accident. 
The  power  was  not  on  and  the  car  was  drifting  on  a  slight  down 
grade. 

As  to  the  failure  to  give  warning  of  approach  it  was  shown 
that  the  accident  occurred  in  the  middle  of  the  block  and  that 
the  motorman  had  not  rung  his  bell  since  leaving  the  street 
crossing  to  the  east.  While  it  is  true  that  there  is  no  necessity 
for  a  motorman  to  continually  ring  his  bell,  it  is  also  true  that 
when  approaching  a  point  whei-e  he  could  see  that  a  number  of 
children  and  others  had  congregated  upon  the  street  it  may 
well  have  been  his  duty  to  give  notice  with  his  gong  of  the  ai)- 
proach  of  his  car,  and  had  he  done  so  in  the  present  case  it  might 
have  been  that  the  warning  would  have  prevented  the  little 
child  from  crossing  the  track. 

In  addition,  however,  there  was  evidence  showing  that  the 
motorman  was  engaged  in  conversation  with  one  of  the  passen- 
gers  just  before  the  accident,  and  that  his  face  at  one  time  was 
turned  away  from  the  track.  This  turning  away  was  sought  to- 
be  explained  by  the  fact  that  a  number  of  persons  called  out  to 
liim  in  warning  to  prevent  the  injury  to  the  child.  This  is  not 
a  satisfactory  explanation.  If  bystanders  were  able  to  see  the 
impending  accident  and  give  warning,  the  motorman  should 
have  been  able  to  see  it  himself,  and  if  he  had,  the  warning 
from  others  could  not  have  diverted  his  attention  nor  would 
such  warning  have  been  necessary^  There  was  in  our  opinion 
Vol.  VI— 21 


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S22  KARAHUTA  v/  TRACTION  00. 

Opinion  of  the  Court:  [6  Pa.  Saperipr  Ct. 

sufficient  evidence  of  the  failure  to  ring  the  bell  and  of  the  fail- 
ure to  perceive  the  approjwjh  of  the  child,  to  require  the  case  to 
go  to  the  jmy,  on  the  question  of  the  defendants'  negligence. 

The  plaintiff  allowed  his  little  child  of  two  and  one  half  years 
of  age  to  remain  on  the  front  step  of  the  house  facing  on  the 
public  street  where  electric  cars  and  wagons  were  passing.  He 
allowed  him  to  remain  there  for  a  few  minutes  with  an  injunc- 
tion not  to  go  away.  .  The  smaller  child  ;was  left  with  the 
mother,  who  was  in  the  front  or  back  I'oom  of  the  house.  The 
family  were  in  moderate  circumstances.  The  child  had  no  care- 
taker but  the  parents.  It  is  true  that  the  attraction  of  a  hand 
organ  was  within  sight  and  hearing  of  the  child.  He  had 
however,  been  permitted  to  see  the  organ  at  a  nearer  view.  It 
is  true  that  its  presence  may  have  been  a  temptation  to  the 
child  to  leave  the  doorstep  in  defiance  of  the  father's  injunction. 
We  are,  however,  not  prepared  to  say  that  the  action  of  the 
parent  in  this  case  was  such  as  to  require  a  court  to  pronounce 
it  to  be  such  negligence  on  his  paH  as  to  require  the  withdrawal 
of  the  case  from  the  jury.  The  absence  of  the  testimony  of  the 
mother  upon  this  branch  of  the  case  is  to  be  regretted,  but  it 
was  explained  by  the  statement  at  bar  that  she  was  dead  at  the 
time  of  the  trial. 

This  case  differs  from  Johnson  v.  Passenger  Railway  Co.,  160 
Pa.  647.  There  the  mother  stood  at  the  open  door  of  the  house 
in  conversation  with  relatives  and  permitted  her  child  to  pass 
her  and  escape  into  the  street  and  be  killed  by  a  passing  car. 
The  facts  in  that  case  are  tersely  put  by  Mr.  Justice  Dean,  "a 
child  twenty  months  old,  an  open  door,  a  dangerous  railway 
track,  within  a  few  feet  of  the  open  door,  the  mother  standing 
in  full  view  of  the  door  and  the  track,  and  the  further  fact  that 
it  would  probably  take  the  little  child  as  long  to  toddle  from 
the  door  to  the  tiuck  before  the  eyes  of  its  mother  as  it  took  the 
approaching  car  to  come  a  square.  Was  this  such  care  as  was 
due  from  the  mother  to  her  child  according  to  tbe  circum- 
stances ?  '^  The  burden  of  that  case  fell  upon  the  fact  that  the  ac- 
cident happened  under  the  eyes  of  the  parent  under  circumstances 
where  she  might  have  intervened  after,  the  child  had  started  on 
its  path  to  danger.  This  case  comes  rather  within  the  ruling  in 
Dunseath  v.  Pittsburg,  etc.,  Traction  Co.,  161  Pa.  124,  where 
it  is  said:  ^^  We  cannot  assent  to  the  proposition  that  the.  court 


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KARAHUTA  v,  TRACTION  CO.  323 

1898.]  Opinion  of  the  Court. 

■should  have  taken  the  case  from  the  jury  on  the  ground  that 
the  presence  of  the  boy  on  the  street  under  the  circumstances " 
shown,  constitute  negligence  on  the  part  of  the  plaintiffs  which 
contributed  to  his  death.'*  Mr.  Justice  McColltjm  quotes 
with  approval  in  the  same  opinion  the  language  of  the  Supreme 
Court  in  P.  &  R.  R.  Co.  v.  Long,  75  Pa.  257,  as  follows :  "To 
suffer  a  child  to  wander  on  the  street  has  the  sense  of  permit. 
If  such  permission  or  sufferance  exist,  it  is  negligence.  This 
is  the  assertion  of  a  principle.  But  whether  the  mother  did 
suffer  the  child  to  wander  is  a  matter  of  fact  and  is  the  subject 
of  evidence,  and  this  must  depend  upon  the  care  she  took  of 
her  child.  Such  care  must  be  reasonable  care,  dependent  on 
the  circumstances.  This  is  a  fact  for  the  jury."  The  opinion 
in  the  recent  case  of  Woeckner  v.  Erie  Electric,  etc.,  Co.,  182 
Pa.  182,  applies  this  view  of  the  law  to  facts  similar  in  many 
respects  to  those  presented  here. 

The  learned  trial  judge  was  thus  compelled  to  send  the  case 
to  the  jury.  This  he  did  in  a  clear  and  able  charge,  quite  as 
favorable  to  the  defendants  as  they  could  have  expected. 

The  judgment  of  the  court  below  is  therefore  affirmed. 


License  of  Lorenz  Wacker.     Appeal  of  D.  C.  Gibboney. 

Liquor  law— 'Statutory  period  for  acceptance  of  license  cannot  be  extended^-. 

An  applicant  for  a  liquor  license  has,  under  the  statute,  fifteen  days 
within  which  to  accept  or  refuse  his  license  when  allowed.  This  time 
being  definitely  fixed  by  the  statute  cannot  be  extended  by  the  oouii;. 

Liquor  law — Appeals — Standing  of  remonstrant  to  appeal. 
The  right  of  appeal  belongs  to  every  person  in  a  legal  sense  aggrieved 
and  whoever  stands  in  a  cause  as  the  legal  representative  of  interests 
which  may  be  injuriously  affected  hj  the  decree  made  in  a  license  case  is, 
within  the  meaning  of  the  law,  aggrieved.  One  who  is  properly  before 
the  lower  court  as  a  remonstrant  and  who  is  heard  by  that  tribunal,  is  ^. 
proper  appellant. 

Argued  Oct.  20, 1897.  Appeal,  No.  117,  Oct.  T;,  1897,  by 
D.  C.  Gibboney,  and  as  secretary  of  the  Law  and  Order  Society 
from  the  decree  of  Q.  S.  Phila.  Co.,  granting  a  bottler's  license 
to  Lorenz  Wacker.  Before  Rice,  P.  J.,  Wickham,  BeavbRj 
RsEDSB,  Orlady,  Smith  and  Porter,  J  J.    Reversed. 


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324  WACKER'S  LICENSE. 

Statement  of  Facta— Arguments.  [6  Pa.  Superior  Cl. 

It  appears  from  the  record  that  Lorenz  Wacker  filed  an  ap- 
plication for  a  bottler's  license  at  801  N.  Forty-eighth  street, 
Philadelphia.  A  remonstrance  was  filed  of  the  Law  and  Order 
Society.  On  May  14,  1897,  a  bottler's  license  was  granted. 
On  May  30,  1897,  in  obedience  to  the  Act  of  June  9, 1891, 
P.  L.  257,  the  grant  was  revoked  for  nonpayment  of  license  fee 
within  fifteen  days.  On  July  8,  1897,  petitioner  Wacker  pre- 
sented petition  dated  June  17, 1897,  to  extend  time  of  payment, 
which  was  granted  the  same  day.  On  July  9,  1897,  a  receipt 
of  the  city  treasurer  for  the  license  fee  received  fifty-six  days 
after  the  legal  grant,  was  filed. 

An  appeal  was  taken  to  the  Superior  Court  by  D.  C.  Gib- 
boney  and  as  secretary  of  the  Law  and  Order  Society,  remon- 
strants. 

ErrorB  a%%igned  were  (1)  Granting  the  petition  of  Lorenz 
Wacker  on  July  8, 1897.  (2)  In  granting  an  extension  of  time. 
(3)  In  making  the  order  indorsed  oji  the  application  *'  and  now 
July  8,  1897,  license  granted."  (4)  In  rehearing  and  regrant- 
ing  in  July  term,  1897,  a  bottler's  license  on  an  application 
made  to  March  term,  1897,  heard  March  31, 1897,  wherein  a 
final  decree  was  made  on  May  14, 1897.  (5)  In  rehearing  and 
regranting  to  Lorenz  Wacker  an  application  for  a  bottler's  li- 
cense for  the  license  year  commencing  June  1, 1897,  tlie  said 
application  previously  granted  May  14,  1897,  to  the  same  per- 
son, for  the  same  business,  at  the  same  place,  for  the  same  time, 
having  been  revoked  May  30, 1897,  by  the  express  provisions 
of  the  act  of  assembly  approved  June  9, 1891,  sec.  7,  P.  L.  267, 
no  new  application  having  been  filed. 

Lewis  Z>.  Vail^  for  appellant. — The  court  of  quarter  sessions 
cannot  repeal  the  express  provisions  of  an  act  of  assembly.  The 
action  of  the  court  below  was  not  an  amendment  of  the  order 
of  May  14,  1897 :  Riddle's  Estate,  19  Pa.  431. 

John  Dolman  for  appellee. — There  is  no  case  in  which  a  tax- 
payer or  citizen  is  allowed  an  appeal  from  the  decision  of  the 
quarter  sessions  on  a  question  affecting  the  police  government 
of  the  city.  The  act  of  June  9,  1891,  gives  the  court  of  quar- 
ter sessions  authority  to  grant  liquor  licenses,  the  only  restric- 


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WACKER'S  LICENSE.  325 

1898.]  Arguments— Opinion  of  the  Court. 

tion  being  that  they  shall  be  for  one  year  from  a  date  fixed  by 
rule  or  standing  order.  The  action  of  the  quarter  sessions  is 
clearly  within  its  powers  under  the  act.  The  sincerity  of  the 
applicant  is  unquestioned.  He  owns  sufficient  money  to  pay 
his  license  fee,  but  failed  to  have  it  in  his  immediate  possession 
at  the  proper  time  through  a  mere  accident.  Although  he 
failed  to  pay  it  in  time,  he  neither  "neglected"  nor  "refused" 
to  pay  it  as  the  act  provides. 

Opiniok  by  Oblady,  J.,  January  18,  1898: 

The  application  for  license  in  this  case  was  resisted  by  the 
Law  and  Order  Society  of  Philadelphia.  A  remonstrance  was 
filed  by  the  society  in  which  legal  and  material  objections  were 
specifically  averred,  and  these  were  attested  by  an  affidavit. 
The  record  shows  that  the  petition  and  the  remonstrance  were 
considered  by  the  court  on  a  hearing  held  March  31,  1897,  and 
on  May  14th  the  prayer  of  the  petitioner  was  granted. 

The  applicant  did  not  comply  with  the  provisions  of  sec.  7 
of  the  Act  of  June  9, 1891,  P.  L.  257.  "  If  any  person  or  per- 
sons shall  neglect  or  refuse  to  pay  to  the  city  or  county  treas- 
urer the  sum  of  money  directed  in  sections  one  and  three,  within 
fifteen  days  after  his,  her  or  their  application  for  license  has 
been  granted  by  said  court,  then  and  in  that  case  the  said  grant 
shall  be  deemed  and  held  revoked  and  no  license  issued.  It 
shall  be  the  duty  of  the  person  or  persons  whose  application 
has  been  granted  by  the  said  court,  to  pay  the  said  sum  of 
money  to  the  said  treasurer  within  the  said  fifteen  days  and 
forthwith  produce  to,  and  file  with  the  clerk  of  court,  the  re- 
ceipt of  said  treasurer  thereof,  and  upon  any  default  the  said 
clerk  shall  forthwith  mark  the  said  application  and  grant  're- 
voked.'" The  clerk  of  quarter  sessions  noted  of  record  the 
default  of  the  applicant  as  follows :  "  And  now,  to  wit:  May  30, 
1897  the  application  and  grant  to  Lorenz  Wacker  for  bottler's 
liquor  license  at  810  North  Forty-eight  street,  thirty-fourth 
ward  is  hereby  revoked  for  nonpayment  of  license  fee  within 
fifteen  days.'* 

On  July  8th  fifty-six  days  after  the  license  had  been  granted, 
Wacker  presented  his  petition  to  the  court  in  which  he  gave 
reasons  for  the  default,  and  said  that  "  he  had  been  disappointed 
in  securing  the  necessary  money  to  pay  the  license  fee  from  an 


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326  WACKER'S  LICENSE. 

Opinion  of  the  Couit.         '  [6  Pa.  Superior  C£. 

expected  source  and  had  made  a  number  of  eflforts  to  get  tli6 
money  elsewhei-e  but  was  unsuccessful."  On  this  petition  the 
court  extended  the  time  within  which  to  pay  the  license  fee  and 
indorsed  it  "  license  granted." 

July  9th,  Wacker  paid  to  the  counly  treasurer  the  license  fee, 
filed  in  the  ofi&ce  of  the  clerk  of  quarter  sessions  a  proper  receipt 
therefor,  and  received  from  that  official  a  bottler's  Uoense  for 
one  year  from  June  1,  1891. 

After  the  grant  of  the  license  the  proceeding  was  ex  parte, 
no  rule  was  granted,  nor  notice  given  to  the  remonstrants.  No 
objection  is  or  could  be  taken  to  the  action  of  the  court  in  grant- 
ing the  original  license.  The  applicant  had,  under  the  statute, 
fifteen  days  within  which  to  decide  whether  he  would  accept 
or  refuse.  That  time  is  definitely  fixed  by  the  statute  and  can- 
not be  extended  by  the  court.  The  subsequent  action  of  the 
court  was  without  statutory  authority.  The  whole  proceeding 
is  founded  upon  the  statute,  and  the  right  to  this  license  ceased 
when  the  applicant  made  default  in  not  paying  within  the  pre- 
scribed time.  It  is  nowhere  suggested  that  the  decree  of 
July  8th,  was  an  amendment,  or  was  made  to  correct  an  error 
of  record  in  the  knowledge  of  the  court,  and  it  cannot  be 
construed  otherwise  than  that  the  intention  was  to  extend  the 
statutory  time  for  making  payment  of  the  license  fee.  The 
license  was  properly  revoked  by  the  clerk.  The  remonstrants 
were  regularly  on  record  and  were  heard  without  *  objection 
by  the  court  at  the  time  the  license  was  originally  granted. 
The  right  of  appeal  belongs  to  every  person  in  a  legal  sense 
aggrieved.  Not  only  are  those  persons  aggrieved  in  a  legal 
sense,  whose  individual,  peculiar  rights  are  invaded,  but  also 
those  whose  representative  claims  are  assailed.  Whoever  stands 
in  a  cause  as  the  legal  representative  of  interests  which  may  be 
injuriously  affected  by  the  decree  made  is,  within  the  meaning 
of  the  law,  aggrieved :  Green  v.  Blackwell,  32  N.  J.  Eq.  768. 
This  is  the  law  of  the  civil  courts,  and  we  feel  that  the  same 
generous  rule  should  apply  in  license  cases.  One  who  is  prop- 
erly before  the  lower  court  as  a  remonstrant,  and  who  is  heard 
by  that  tribunal,  is  a  proper  appellant  to  this  court.  The  re- 
monstrance is  signed  by  the  "  Law  and  Order  Society  of  Phila- 
delphia, D.  C.  Gibboney,  Secretary,"  and  the  truth  of  the  facta 


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WACKER'S  UCErfSE.  S27 

1898.]  Opmidnof  the  Cfouit. 

'stated  therein  is  vouched  for  under  oath  by  C.  B.  Jones,    "the 
same  parties  appear  here  as  appellants. 

The  decree  of  the  court  dated  July  8,  1897,  granting  the 
license  to  Lorenz  Wacker  is  reversed,  the  costs  to  be  paid  by 
the  appellee. 


Hugh  Kelly  v.  Frederick  Baun,  Appellant. 

CotUrctct— statute  offrauds-^Original  undertaking. 

Where  the  parainoant  purpose  moviDg  a  promisor  in  making  a  promise 
wab  to  subseiire  his  own  interests,  it  becomes  an  original  undertaking  and 
is  not  within  the  statute  oi  frauds/  although  the  promise  incidentally  iiy- 
eludes  the  payment  of  the  debt  of  another. 

Where  plaintiff  and  defendant  were  creditors  of  B.,  and  plaintiff  bid  in 
certain  goods  at  a  sheriffs  sale  of  B/s  business  which  was  purc^hased  by 
defendant,  a  promise  by  defendant  that  in  consideration  of  a  ti'ansfer  of 
plaintiffs  bid  that  he,  the  defendant,  would  pay  B.^s  debt  to  plaintiff,  be- 
cause he  could  not  run  the  place  without  the  goods  purchased  by  plaintiff, 
such  promise  although  in  form  an  assumption  of  B/s  debt  is  what  is  termed 
an.  original  undertaking  and  is  not  within  the  statute. 

Argued  Dec.  14, 1897.  Appeal,  No.  65,  Oct.  T.,  1897,  by 
defendant,  from  judgment  of  C.  P.  No.  8,  Phila.  Co.,  March  T., 
1895,  No.  345,  on  verdict  for  plaintiff.  Before  Rice,  P.  J.^ 
WicKHAM,  Beavbe,  Rbedeb,  Oblady,  Smith  and  Pob- 
TEB,  J  J.    AflSrmed. 

Assumpsit.     Before  McMichael,  J. 
The  facts  sufficiently  appear  in  the  opinion  of  the  court. 
Verdict  and  judgment  for  plaintiff  for  $550.    Defendant 
appealed. 

Error  assigned  was  refusal  of  binding  instructions  for  de^- 
fendant. 

Thomas  Learning^  for  appellant.  The  alleged  promise  in  thid 
case  is  within  the  1st  section  of  the  Act  of  April  26, 1855,  P.  L. 
808,  the  familiar  statute  of  frauds.  ' 

In  order  to  convert  a  promise  to  pay  a  debt  of  another  into  an 
original  undertaking  so  as  to  take  it  out  of  the  statute  of  frauds. 


Digitized  by  VjOOQ IC 


828  KELLY  v.  BAUN. 

Arguments— Opinion  of  the  Court.  [6  Pa.  Superior  Ct. 

evidence  must  be  clear  and  satisfactory,  and  this  is  a  question  for 
thecoui-t:  Eshleman  v.  Harnish,  76  Pa.  97 ;  Haverly  v.  Mercur, 
78  Pa.  257 ;  Gable  v.  Graybill,  1  Pa.  Superior  Ct.  29. 

The  test  that  this  verbal  promise  was  a  guaranteeing  of  an- 
other's debt  is  the  continued  existence  of  the  original  debt; 
Maule  V.  Bucknell,  60  Pa.  89,  62 ;  Dougherty  v.  Bash,  167  Pa. 
429;  Branson  v.  Kitchenman,  148  Pa.  641;  Machine  Co.  v. 
Cann,  173  Pa.  392 ;  Burr  v.  Mazer,  2  Pa.  Superior  Ct  426. 

Thomas  A.  Fahy^  for  appellee. 

Opinion  by  Smith,  J.,  January  18, 1898 : 

The  whole  complaint  in  this  case  is  based  on  the  refusal  of 
the  court  below  to  direct  a  verdict  for  the  defendant.  The 
appellant  contends  that  the  testimony  showed,  indisputably,  that 
the  plaintiff^s  cause  of  action  was  upon  the  note  of  a  third  per- 
son to  which  the  defendant  was  not  a  party  and  for  which  he 
was  not  liable;  and  that  this  suit  is  an  attempt  to  hold  the 
defendant  responsible  for  the  debt  of  another,  under  an  oml 
promise,  in  contravention  of  the  statute  of  frauds. 

It  is  admitted  that  both  plaintiff  and  defendant  were  credit- 
ors of  one  Karl  Hiller,  who  conducted  a  butchering  establish- 
ment, and  was  a  brother-in-law  of  the  defendant.  At  a  sheriffs 
sale  of  Hiller's  property  the  greater  part  of  it  was  bid  in  for  the 
defendant.  The  plaintiff  attended  the  sale  and  "hoping  to 
save  his  claim  of  $600,"  bid  in  the  shafting  and  machinery  used 
in  Hillers  business.  After  the  sale  the  defendant  and  tlie 
plaintiff  met  and  arrived  at  an  understanding  whereby  the  plain- 
tiff surrendered  his  right  to  the  property  he  had  purchased,  to 
the  defendant,  the  latter  paying  the  bid. 

The  question  submitted  to  the  jury  arose  from  the  circum- 
stances under  which  the  plaintiff  transferred  his  right  to  the 
property.  The  plaintiff  alleged  that  the  defendant  pi-omised,  in 
consideration  of  the  surrender,  to  pay  the  $600  which  Hiller 
owed  him.  The  only  testimony  on  the  subject  was  that  of  the 
parties.  The  plaintiff  testified  in  chief  that  the  defendant  said 
to  him :  "  Look  here,  Mr.  Kelly,  you  had  better  let  the  machin- 
ery and  shafting  you  bought  stay  here.  We  cannot  run  the 
thing  without  that  shafting,  and  I  will  pay  you  myself  that 
$600  of  Hiller's ; "  and  on  cross-examination,  that  the  defend- 


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KELLY  V.  BAUN.  829 

1898.]  Opinion  of  the  Court. 

ant  said  to  him :  "  I  will  pay  that  money  to  you  myself,  for  that 
machinery,  if  you  will  leave  it  here,"  and  that  "he  said  that 
afterward,  he  said  it  twice  over,  and  he  said  that  to  me."  The 
defendant  testified  that  he  knew  nothing  about  the  note,  and 
that  nothing  was  said  about  paying  it.  The  jury  were  instructed 
that  if  they  believed  the  plaintififs  version  the  plaintiff  was  en- 
titled to  recover ;  otherwise  not.  The  verdict  was  for  the  plain- 
tiff. 

The  machinery  bid  in  by  the  plaintiff  was  turned  over  to  and 
accepted  by  the  defendant.  He  became  the  purchaser  of  all  the 
property  sold  by  the  sheriff  and  continued  the  business  in  his 
own  name.  The  sheriff's  sale  was  made  on  executions  in  which 
he  was  the  plaintiff.  But  it  is  contended  that  the  promise  to 
pay  the  plaintiff  $500,  in  addition  to  the  bid,  for  the  portion  bid 
in  by  the  latter,  is  within  the  statute  of  frauds,  because  the 
agreement  was  to  pay  the  amount  Hiller  owed  the  plaintiff, 
and  because  the  latter  held  a  note  that  was  not  surrendered, 
and  upon  which  Hiller  paid  one  year's  interest,  after  the  sher- 
iff's sale.  We  cannot  assent  to  this  view.  The  statute  was 
passed  to  prevent  fraud,  and  courts  must  not  permit  it  to  be 
made  an  instrument  for  the  perpetration  of  fraud.  Assuming 
as  we  must  that  the  facts  have  been  correctly  found  by  the  jury, 
the  provisions  of  the  statute  are  invoked  to  relieve  the  defend- 
ant from  payment  of  part  of  the  sum  which  he  promised  to  pay 
for  the  property. 

The  substantial  question  for  our  decision  is  whether  the  para- 
mount purpose  of  the  defendant,  in  making  the  promise  was 
to  subserve  his  own  interest,  or  to  secure  the  debt  of  another 
person.  If  the  former,  it  is  what  is  termed  "  an  original  under- 
taking," although  in  form  an  assumption  of  the  debt  of  another, 
and  is  not  within  the  statute.  The  machinery  transferred  to 
the  defendant  was  necessary,  with  that  which  he  had  already 
purchased,  for  the  operation  of  the  business  there  conducted. 
According  to  his  own  statement  he  "  could  not  run  the  thing  " 
without  the  shafting,  and  in  order  that  this  might  be  done  he 
bought  the  plaintiff's  right  thereto  for  $500.  True,  he  promised 
to  pay  the  debt  of  his  brother-in-law ;  but  it  was  to  secure  this 
that  the  plaintiff  attended  the  sale  and  bid  in  the  property,  and 
the  fact  that  he  was  willing  to  release  his  claim  on  Hiller  can- 
not operate  to  discharge  the  defendant  from  his  promises,  made 


Digitized  by  VjOOQ IC 


330  KELLY  v.  BAUNl 

Opinioa  Of  the  Couiti  [6  Pa.  Superior  Cti 

manifestly  for  his  own  interest  and  purposes.:  Substantially 
Killer's  debt  to  the  plaintiff  was  merely  the  measure  of  the  sum 
which  the  defendant  was  willing  to  pay  the .  plaintiff  for  the 
property  bid  in  by  liim.  It  is  clear  that  the  plaintiff  bid  off  and 
held  the  machinery  because  he  sought  thus  to  secure  the  debt 
Hiller  owed  him,  and  it  therefore  requires  no  stretch  of  the 
principle  that  '*  it  (the  promise)  .may  be  unaffected  by  the  stat* 
ute,  though  the  original  debt  remains,  if  the  promisor  has  re- 
ceived a  fund  pledged,  set  apart,  or  held  for  the  payinent  of  the 
debt,"  (Maule  v.  Bucknell,  50  Pa.  39),  to  hold  that  it  covers^ 
the  transaction  under  consideration. 
Judgment  affirmed. 


Ross  C.  Collins  v.  The  Morning  News  Company,  Appel- 
lant. 

Libel-^Evidence — When  record  of  a  crime  charged  inadmissible 
Where  the  libel  charged  plaintiff  :is  indicted  for  a  criminal  offense,  eyi- 
dence  tending  to  show  that  plaintiff  was  on  the  bail  of  the  real  oflfender  is 
properly  excluded,  it  not  being  pretended  that  the  publication  was  based 
upon  knowledge  of  the  facts  as  shown  by  the  rejected  testimony.  The 
excluded  record  would  have  shown  conclusively  that  every  material  fact 
stated  in  the  publication  was  untrue. 

Libel^Measure  of  damages. 

Where  there  is  no  evidence  that  defendant  in  a  libel  suit  had  actual  mal« 
ice  in  publishing  the  article  complained  of  by  the  plaintiff,  compensation 
for  the  injuiy  done  to  the  plaintifiTs  character  is  the  only  legal  measure  of 
damages  for  which  a  recovery  can  be  had. 

Libel— Privileged  communication — Burden  of  proof, 

A  communication  to  be  privileged,  must  be  made  on  a  proper  occasion, 
from  a  proper  motive,  and  be  based  upon  reasonable  or  probable  cause. 
The  immunity  of  a  privileged  communication  is  an  exception,  and  he  who 
relies  upon  an  exception  must  prove  all  the  facts  necessary  to  bring  him- 
self within  it. 

It  is  not  a  privileged  communication  when  a  newspaper  publishes  that 
plaintiff  '*  was  arrested  on  a  bailpiece,^^  when  an  examination  of  the  rec- 
oixl  would  have  disclosed  that  it  was  plaintiff  who,  as  bail,  had  surrendered 
the  real  offender. 

Libel— Probable  cause — Failure  to  examine  record. 

Probable  cause  is  not  shown  where  a  newspaper  publishes  a  libelouar 


Digitized  by  VjOOQ IC 


COLLINS  ij.  NEWS  CO.  351 

1898.]  Syllabtioa — Assignment  of  £iTors. 

charge  against  a  citizen  on  information  from  the  attoniey  in  a  criminal 
case,  whei'e  such  information  made  further  information  necessaiy  to  war- 
rant a  cautious  man  in  believing  that  the  plaintiff  was  guilty  of  any  of- 
fense. 

A  cursory  and  insufficient  examination  of  the  record  will  not  exempt 
from  the  charge  of  carelessness  when  a  more  particular  investigation  would 
have  elicited  the  whole  truth ;  Still  more  is  defendant  responsible  if  he  neg- 
lects to  examine  an  available  record  choosing  rather  to  remain  in  ignor- 
ance when  he  might  have  obtained  full  information. 

Argued  Nov.  11, 1897.  Appeal,  No.  35,  Oct.  T.,  1897,  by 
defendant,  from  judgment  of  0.  P.  Lancaster  Co.,  Sept.  T.,  1893, 
No.  3,  on  verdict  for  plaintiff.  Before  Rice,  P.  J.,  Beaver, 
Reeder,  Oblady,  Smith  and  Porter,  JJ.    Affirmed. 

Trespass  sur  libel.    Before  Livingston,  P.  J. 

The  facts  sufficiently  appear  in  the  opinion  of  the  court. 

Verdict  for  plaintiff  for  $650.     Defendant  appealed. 

Hrrora  asaiffned  were,  inter  alia  (1,  2)  In  admitting,  under 
objection,  the  following  questions  to  witness  for  plaintiff,  for  the 
purpose  of  showing  the  amount  of  damages  involved:  "  Q.  What 
was  the  circulation  of  the  Morning  News  at  that  time — 15th  of 
August,  1893?  A.  About  3,500.  Q.  Did  it  or  not  circukte 
generally  in  this  city  and  county?  A.  It  did."  (3)  In  over- 
ruling the  following  question  by  defendant  in  cross-examination 
of  the  plaintiff:  "Defendant  offers  to  ask  the  witness  if  there 
was  not  a  prosecution  against  Howard  Lehman  for  malicious 
mischief  and  ci-ueltv  to  animals,  and  whether  Mr.  Collins,  John 
Cassidy  and  Behny  Ross  were  not  his  bail  for  his  appearance, 
and  whether  or  not  they  hadn't  taken  out  a  bailpiece  for  him 
by  Mr.  Collins."  (5-10)  The  substance  of  these  assignments 
were  errors  assigned  in  disallowing,  upon  objection  by  the  plain- 
tiflf,  offers  of  defendant  to  prove  by  tiie  records  of  the  quarter 
sessions  that  one  Lehman  was  charged  with  malicious  mischief 
and  cruelty  to  animals,  and  that  plaintiff  and  others  were  sure- 
ties on  the  recognizance  given  by  him  before  the  magistrate  to 
appear  at  quarter  sessions.  That  a  bailpiece  was  taken  out  in 
this  case  by  plaintiff  for  the  body  of  said  Lehman ;  to  be  fol- 
lowed by  evidence  that  the  I'eporter  of  the  News  had  under- 
stood from  information  received  from  B.  F.  Davis,  counsel  for 


Digitized  by  VjOOQ IC 


832  COLLINS  v.  NEWS  CX). 

Assignment  of  Enx)i-8.  [6  Pa.  Superior  Ct. 

plaintiff,  that  this  bailpiece  had  been  taken  out  for  the  arrest  of 
said  Collins  and  in  pui-suance  of  that  information  so  obtained, 
the  reporter  caused  a  local  item,  which  is  the  subject  of  this 
suit,  to  be  published  in  the  Morning  News.  (12)  In  answer  to 
plaintiff's  second  point,  as  follows:  "2.  The  uncontradicted 
evidence  in  this  case  is  that  the  publication  made  was  untrue. 
It  is  not  privileged.  It  is  libelous  per  se.  It  is  actionable, 
and,  therefore,  it  is  presumed  to  be  malicious.  Answer :  That 
is,  malice  in  law.  It  is  not  shown.  It  is  denied  there  was  any- 
actual  malice  on  the  part  of  the  defendant  here  in  this  pub- 
lication, and  no  proof."  (14)  In  answer  to  plaintiff's  fourth 
point:  "4.  Where  the  words  published  are  in  themselves  ac- 
tionable, libelous  and  untrue,  evidence  need  not  be  given  of 
malice.  The  publication  is  presumed  to  be  malicious.  An- 
nwer :  That  is  what  I  have  stated  to  you  in  the  general  charge." 

(15)  In  answer  to  plaintiff's  fifth  point :  "  5.  The  publisher  of 
a  newspaper  and  his  reporters  are  bound  to  use  extreme  dili- 
gence to  ascertain  whether  or  not  libelous  matter  which  they 
publish  is  true,  and  when  the  publication  and  untruth  of  such 
matter  are  shown,  they  are  required  to  prove  extreme  diligence 
to  ascertain  its  truth  before  they  are  exempted  from  damages 
for  such  publication.  Answer :  We  say  that  the  publisher  of  a 
newspaper  and  his  reporters  are  bound  to  use  due  care,  reason- 
able care  and  diligence  to  ascertain  whether  the  matter  is  libel- 
ous or  not,  libelous  or  true.  And  when  the  publication  and 
untruth  of  such  matter  are  shown,  they  are  required  to  prove 
reasonable  diligence  and  care  to  ascertain  its  truthfulness  before 
they  can  be  exempted  from  damages  for  such  publication." 

(16)  In  answer  to  plaintiff's  sixth  point:  "6.  Under  the  law 
and  the  evidence  the  verdict  must  be  for  the  plaintiff  for  such 
amount  as  will  compensate  him  for  the  damages  he  has  suffei'ed; 
and  for  malice  or  reckless  negligence  if  proved,  punitive  dam- 
ages may  be  awarded.  Answer :  That  may  be  affirmed.  That 
would  be  the  correct  method  of  getting  at  it,  provided  he  has 
not  used  proper  care  and  diligence."  (18)  In  charging  the 
jury  as  follows :  "  And  where  there  are  several  charges,  it  is 
said  in  Murr  v.  Book,  several  distinct  charges,  some  privileged 
and  some  not  privileged,  those  that  are  not  privileged  are  not 
justified  by  the  charges  which  are  privileged.  Where  an  arti- 
cle is  libelous  in  itself,  is  not  privileged  in  its  character,  pub* 


Digitized  by  VjOOQ IC 


COLLINS  V,  NEWS  CO.  333 

1898.]  Assignment  of  Errors — Arguments. 

lishers  failing  to  establish  its  truthfulness  are  liable  for  damages, 
and  if  the  communication  contains  expressions  which  exceed 
the  limits  of  privilege,  such  expressions  are  evidence  of  malice, 
and  the  case  must  be  given  to  the  jury.  Wherever  one  pub- 
lishes words  which  injure  the  reputation  of  another  he  must  be 
taken  to  have  intended  the  consequence  naturally  resulting 
therefrom.  Malice  is  an  essential  element,  but  whenever  a 
wilful,  unprivileged  publication  is  made  embodying  the  other 
qualities  of  libel,  legal  malice  may  be  inferred.  Falsehoods  are 
never  privileged,  and  reasonable  cause  to  believe  the  libelous 
charge  to  be  true  is  no  defense  for  its  publication.  The  defend- 
ant in  this  case  admits  the  publication  was  untrue,  and  states 
the  fact  that  the  next  morning,  as  was  read  to  you  from  their 
next  morning's  paper,  they  attempted  to  correct  the  error  they 
had  made  the  day  previous  without  any  request  on  the  part  of 
Mr.  Collins.  This  is  not  in  any  sense  a  privileged  communica- 
tion. It  is  not  a  report  of  a  judicial  proceeding.  There  were 
no  proceedings  against  Mr.  Collins  in  this  court,  and  none  shown 
to  be.  There  was  no  suit  in  court  against  him.  He  had  not 
been  held  to  answer  to  the  crimes  stated,  malicious  mischief  and 
cruelty  to  animals.  He  had  not  given  bail  for  his  appeai-ance 
to  answer  such  charges.  He  had  not  been  arrested  on  a  bail- 
piece,  and  was  not  then  put  to  jail,  was  not  in  jail.  So  that 
none  of  the  charges  against  him  in  this  paper  were  true.  That 
is  admitted  by  the  attempt  to  correct  the  next  day  after  they 
saw  they  were  not  true." 

George  Nauman  and  JJ.  M.  Norths  with  them  T.  B,  Holahan 
and  Eugene  O.  Smithy  for  appellant. — The  article  in  question 
waa  a  privileged  communication:  Briggs  v.  Garrett,  111  Pa. 
404;  Jackson  v.  Pittsburg  Times,  152  Pa.  406. 

A  reasonable  ground  of  suspicion,  supported  by  circumstances 
sufficient  to  wan-ant  a  cautious  man  to  believe  that  the  party 
was  guilty  of  the  ofifense,  is  the  basis  for  a  privileged  communi- 
cation :  Coates  v.  Wallace,  4  Pa.  Superior  Ct.  253. 

The  defendant  had  undoubted  right  to  prove  the  circum- 
stances upon  which  probable  cause  of  belief  was  based,  witli 
the  source  of  its  information,  as  the  latter  bore  on  the  good 
faith  of  its  inquiry :  Conroy  v.  Times,  139  Pa.  334. 

J.  Hay  Brovm  and  W.  U.  Henselj  for  appellee. — The  fact  that 

Digitized  by  VjOOQ IC 


334  COLLINS  v.  NEWS  CO. 

Arguments — Opinion  of  the  Court.  [6  Pa.  Superior  Ct. 

one  man  Is  arraigned  in  court  for  a  criminal  offense  certainly 
gives  a  newspaper  no  right  to  say  that  some  other  man  had  been 
so  arraigned:  Odgers  on  Slander  and  Libel,  187,  *248;  Shelly 
V.  Dampman,  1  Pa.  Superior  Ct.  115;  Ingram  v.  Reed,  41 
W.  N.  C.  123. 

The  case  at  bar  does  not  respond  to  the  criterion  of  privilege 
as  laid  down  by  Thaybb,  P.  J.,  in  McKay  v.  McClure,  8 
W.  N.  C.  58.  See  also  Godshalk  v.  Metzgar,  23  W.  N.  C.  641 ; 
Press  Co.  v.  Stewart,  119  Pa.  584 ;  Collins  v.  Publishing  Co., 
152  Pa.  187;  Seip  v.  Deshler,  170  Pa.  234;  O'Toole  v.  Pitts- 
burg Post,  179  Pa.  271. 

Opinion  by  Orlady,  J.,  January  18, 1898  : 

The  defendant  published  in  its  newspaper,  the  following: 
"  Arrested  on  a  Bail  Piece.  There  are  suits  pending  against 
R.  C.  Collins,  John  Cassidy  and  Behny  Ross  for  malicious  mis- 
chief and  cruelty  to  animals,  which  will  be  tried  at  next  week 
court.  It  was  feared  last  evening  that  R.  C.  Collins  would  leave 
this  locality  and  not  turn  up  for  trial.  In  consequence  a  bail 
piece  was  issued  and  he  was  committed  to  jail  to  await  trial,  un- 
less he  secures  other  bail."  On  the  day  after  this  publication, 
the  following  appeared  in  the  same  newspaper :  "  A  provoking 
Error.  '  Through  a  mix  of  names  The  Morning  News  yester- 
day stated  that  R.  C  Collins,  John  Cassidy  and  Behny  Ross 
had  suits  pending  against  them  for  cruelty  to  animals  and  mall* 
cious  mischief,  and  that  R.  C.  Collins  had  been  arrested  on  a  bail 
piece.  Of  course  the  public  will  understand  that  the  item  was 
a  provoking  error,  and  that  such  honorable  and  well  known  gen- 
tlemen are  not  defendants  at  all  in  any  suit.  The  fact  of  the 
matter  is  that  they  are  bondsmen  for  one  Howard  Lehman,  who 
stands  charged  with  the  above  offenses,  and  tiiey  surrendered 
their  bail,  taking  out  a  bail  piece,  upon  which  he  was  arrested." 

This  action  was  instituted  the  same  day  that  the  alleged  libel 
was  published,  and  resulted  in  a  verdict  in  favor  of  the  plaintiff. 

It  was  not  contended  on  the  trial  that  the  article  was  mali- 
ciously published,  and  the  defendant's  second  point  was  affirmed. 
"  As  there  is  no  evidence  that  the  defendant  in  this  case  had 
actual  malice  in  publishing  the  article  complained  of  by  the 
plaintiff,  compensation  for  the  injury  done  to  the  plaintiff's 
character  is  the  only  legal  measure  of  damages  for  which  a  re- 
covery could  be  had  in  any  event." 


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COLLINS  V.  NEWS  CO.  S35 

1898.]  .Opiuron  of  .the  Court. 

The  evidence  Represented  by  the  third,  fourth,  fifth,  sixth, 
seventh,  eighth,  ninth  and  tenth  assignments  of  error  was  prop- 
erly excluded,  as  it  was  not  pretended  that  the  publication  was 
based  upoi;!  the  knowledge  of  the  facts  as  shown  by  the  rejected 
testimony.  A  proper  examination  of  the  record  suggested  in 
the  several  offers,  or  knowledge  by  the  defendant  of  the  facts 
as  stated,  previous  to  the  publication,  would  have  made  it  de- 
signedly malicious.  The. excluded  record  would  have  shown 
conclusively  that  every  material  fact  stated  in  the  publication 
was  untrue.  The  published  retraction  declares  the  plaintiff  to 
be  "  an  honorable  and  well  known  gentleman,"  and  "  of  course 
the  public  will  understand  that  the  item  was  a  provoking  error." 
It  is  only  when  grave  mistakes  are  made  that  newspapers  so 
frankly  declare  that  their  news  items  are  to  be  disbelieved.  The 
only  substantive  question  in  the  case  was  one  of  fact;  was  the 
publication  of  this  admittedly  erroneous  statement  made  after 
a  proper  inquiry  into  the  facts  as  therein  detailed  by  the  news- 
paper reporter? 

The  reporter  was  a  member  of  the  bar,  and  by  reason  of  his 
professional  learning  had  special  knowledge  of  the  place  in  which 
to  make  search  for  the  truth  or  falsity  of  the  facts  given.  The 
investigation  of  the  case  could  have  been  as  easily  made,  prior 
to  the  publication  as  after,  and  if  made,  would  have  disclosed 
the  facts  to  be  as  stated  in  the  retraction  and  as  found  on  the 
trial.  There  was  no  pending  proceeding  against  the  plaintiff^ 
he  had  not  been  held  to  answer ;  he  had  not  given  bail  for  his 
appearance ;  he  had  not  been  arrested  on  u  bail  piece ;  he  was 
not  put  to  jail ;  and  no  one  feared  or  said  he  feared  that  "  he 
would  leave  the  locality  and  not  turn  up  for  trial ; "  all  of  which 
was  discovered  within  a  few  hours  after  the  publication,  and 
the  defendants  admit  each  and  every  one  of  the  prejudicial  facts 
to  be  untrue. 

,  The  reporter  relied  upon  a  brief  and  hurried  interview  with 
an  attorney,  which,  from  his  testimony  was  incomplete  and  con- 
fusing as  to  the  true  relation  of  the  plaintiff  to  the  case  about 
which  the  inquiry  was  made.  The  conversation  with  the  attor- 
ney, under  the  facts  of  the  case,  instead  of  furnishing  a  reason- 
able and  probable  cause  for  the  publication  rather  made  a  further 
examination  necessary  to  warrant  a  cautious  man  in  believing 
that  the  plaintiff  was  guilty  of  any  offense. 


Digitized  by  VjOOQ IC 


336  COLLINS  v.  NEWS  CO. 

Opimon  of  the  Court.  [6  Pa.  Superior  Ct. 

It  was  not  a  privileged  connnunication.  The  authorities  on 
which  the  appellant  relies  to  sustain  the  argument  that  it  was 
such,  are  considered  in  Coates  v.  Wallace,  4  Pa.  Superior  Ct 
253,  and  cannot  relieve  the  defendant  in  this  case.  It  \b  not 
sufficient  that  the  defendant  believed  the  facts  to  be  true  at  the 
time  of  publication ;  the  belief  must  have  rested  on  reasonable 
and  probable  cause :  Winebiddle  v.  Porterfield,  9  Pa.  137 ;  Chap* 
man  v.  Calder,  14  Pa.  365 ;  Smith  v.  Ege,  62  Pa.  419. 

In  God^halk  v.  Metzgar,  23  W.  N.  C.  541,  an  offer  was  made 
of  a  record  of  a  suit,  not  in  justification,  but  to  show  probable 
cause,  and  rejected ;  the  court  sajring:  "  The  reporter  may  have 
written  this  paragraph  for  the  pui*pose  of  giving  spice  to  his 
paper,  or  from  other  motives.  It  is  true  no  offense  is  named, 
but  it  is  idle  to  say  that  a  statement  that  a  man  has  been  arrested 
and  committed  to  the  county  prison  in  default  of  bail  does  not 
mean  anything,  it  means  a  great  deal,  and  is  the  more  damag- 
ing from  what  it  leaves  unsaid."  In  Ingram  v.  Reed,  5  Pa. 
Superior  Ct.  550,  this  court  held,  under  facts  more  favorable  to 
the  defendant  than  in  the  present  case,  that  even  a  cursory  and 
superficial  examination  of  a  record,  will  not  relieve  or  exempt 
from  the  charge  of  carelessness,  when  a  more  particular  investi- 
gation of  the  record  or  case  would  have  elicited  the  whole  truth. 
The  zeal  of  the  reporter  for  sensational  news  must  be  curbed  by 
a  careful  investigation  of  the  accessible  facts  which  would 
throw  light  upon  the  subject-matter  before  the  reading  public  is 
furnished  with  that  which  may  be  proper. 

This  is  the  requirement  of  the  law,  and  has  been  so  i-ecog- 
nized  in  all  the  cases  in  which  the  question  has  been  raised.  If 
indeed  there  were  means  at  hand  for  ascertaining  the  truth  of 
the  matter  of  which  the  defendant  neglects  to  avail  himself  and 
chooses  rather  to  remain  in  ignorance  when  he  might  have 
obtained  full  information,  there  will  be  no  pretense  of  any  claim 
of  privilege  :  Shelly  v.  Dampman,  1  Pa.  Superior  Ct.  115 ;  Con- 
roy  V.  Times,  139  Pa.  334. 

In  the  light  of  the  facts  in  this  case,  the  numerous  decisions 
of  the  Supreme  and  Superior  Couits  stamp  the  article  "Arrested 
on  a  Bail  Piece  "  as  entirely  outside  the  pale  of  privileged  com- 
munications, and  that  it  was  published  without  reasonable  or 
probable  cause  of  the  truth  of  its  facts.  The  assignments  of 
error  are  overruled  and  the  judgment  is  affirmed. 


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NEWLIN  V.  ACKLEY.  337 

1898.]  Syllabus — Assignment  of  Errars. 

James  W.  M.  Newlin,  Appellant,  r.  J.  Edward  Ackley. 

Appeals — Weight  to  be  given  to  referee'*  sjifidings  of  fact. 
The  appellate  court  cannot  go  behind  the  findings  of  fact  by  a  referee, 
except  whei-e  the  assignment  of  eiTor  is  such  as  could  he  heard  and  deter- 
mined if  the  trial  had  been  according  to  the  course  of  the  common  law, — 
before  a  jury.  If  the  evidence  is  relevant  and  proper  and  the  findings  of 
fact  are  i*easonably  inferable  therefrom,  the  couit  must,  in  the  absence  of 
fraud,  accept  the  report  as  correct. 

Argued  Nov.  18,  1897.  Appeal,  No.  121,  Oct.  T.,  1897,  by 
plaintifiF,  from  judgment  of  C.  P.  Bucks  Co.,  Feb.  T.,  1898, 
No.  18,  in  favor  of  plaintiff  as  to  a  portion  of  his  claim  but  dis- 
missing plaintiff's  exceptions  to  the  report  of  the  referee  re- 
jecting a  portion  of  plaintiff's  claim.  Before  Rice,  P.  J.,  WiCK- 
HAM,  Bbaveb,  Oelady,  Smith  and  Poetbb,  JJ.     Atiirmed. 

Foreign  attachment.    Before  Ybrkes,  P.  J. 

It  appears  from  the  record  that  this  was  an  action  brought  by 
the  plaintiff  to  recover  from  defendant  for  professional  services 
two  separate  sums,  to  wit:  one  of  $260  and  one  of  $750.  The 
case  was  referred  to  J.  Percy  Keating,  who  found  for  the  plain- 
tiff as  to  the  former  sum  and  no  exception  having  been  filed 
judgment  became  final  as  to  the  $250.  As  to  the  claim  for 
^750  the  referee  reported  that  the  services  had  been  rendered 
and  that  they  were  reasonably  worth  '$750,  but  that  the  condi- 
tions under  which  this  contingent  fee  was  to  become  payable 
had  not  been  fulfilled,  hence  he  rejected  the  plaintiff's  claim  for 
the  $750. 

Other  facts  appear  in  the  opinion  of  the  court. 

Judgment  for  plaintiff  for  $250  with  interest  and  costs.  Plain- 
tiff appealed. 

JSrrora  assigned  among  others  were  (6)  In  dismissing  plain- 
tiff's sixth  exception  to  the  referee's  supplemental  report,  whicli 
was  as  follows :  "  That  plaintiff  excepts  to  that  portion  of  the 
referee's  second  conclusion  of  law,  which  reads  as  follows :  *  The 
burden  of  proving  that  such  lack  of  ownership  was  through 
defendant's  fault,  and  that  the  suit  was  definitely  determined 
Vol.  VI— 22 


Digitized  by  VjOOQ IC 


838  NEWLIN  v,  ACKLEY. 

Assignment  of  Eirora— Opinion  of  the  Court.     [6  Pa.  Superior  Ct. 

in  consequence,  likewise  rests  with  the  plaintiflf  and  this  he  has 
not  established.'  Because  this  finding  is  a  mixed  one  of  law 
and  fact  and  is  erroneous  in  law,  and  is  not  supported  by  the 
evidence  in  the  cause."  (11)  In  making  the  order  confirming 
the  referee's  report. 

The  other  specifications  of  error  related  either  wholly  or  par- 
tially to  findings  of  fact,  and  in  view  of  the  opinion  of  the  Supe- 
rior Court  it  is  not  necessary  to  set  out  same. 

Alex.  Simpson^  Jr.^  with  him  Henry  Lear^  for  appellant. — 
Where  the  means  of  proving  the  negative  are  not  within  the 
power  of  the  party  alleging  it,  but  all  the  proof  on  the  subject 
is  within  the  control  of  the  .opposite  party,  who,  if  the  negative 
is  not  true,  can  disprove  it  at  once,  then  the  law  presumes  the 
truth  of  the  negative  averment  from  the  fact  that  such  opposite 
party  withholds  or  does  not  produce  the  proof  which  is  in  his 
hands,  if  it  exists,  that  the  negative  is  not  true :  Railroad  Co. 
V.  Bacon,  30  111.  347 ;  Ins.  Co.  v.  Kearney,  16  Q.  B.  926 ;  State 
V.  Lipscomb,  62  Mo.  82 ;  Sheldon  v.  Clark,  1  Johns.  (N.  Y.) 
618. 

J.  Edward  AcJdey^  with  him  Robb  ^  Lang^  for  appellee. — The 
contract  was  an  entire  one  and  until  complete  performance  on 
his  part  the  attorney  cannot  sue :  Tenney  v.  Berger,  93  N.  Y. 
524 ;  Whitehead  v.  Lord,  7  W.  H.  &  G.  691 ;  Weeks  on  Attor- 
neys, sees.  255,  316  ;  Cordeiy's  Law  of  Solicitors,  62. 

Opinion  by  Smith,  J.,  January  18, 1898 : 

The  plaintiff,  an  attorney  at  law,  brought  this  action  to  re- 
cover for  professional  services  performed  for  the  defendant  in 
certain  legal  proceedings  instituted  in  the  United  States  cir- 
cuit court,  and  another  suit  in  the  court  of  common  pleas  of 
Philadelphia.  Upon  a  reference  under  the  act  of  May  14, 1874, 
the  plaintiff's  claim  for  services  in  the  latter  case  was  allowed, 
and  his  claim  for  services  in  the  suit  in  the  federal  court  was 
wholly  disallowed.  Exceptions  to  the  report  of  the  referee, 
filed  on  behalf  of  the  plaintiff,  were  dismissed  by  the  court  be- 
low ;  whereupon  this  appeal  was  taken. 

The  proceeding  in  the  federal  court  was  by  bill  in  equity, 
and  the  claim  in  dispute  here  is  for  services  therein.    The 


Digitized  by  VjOOQ IC 


NEWLIN  V.  ACKLKY.  339 

1898.]  Opinion  of  the  Ck)art. 

ground  of  action  is  too  indefinitely  stated  in  the  declaration, 
but  is  given  more  specifically  in  the  plaintiff's  "  history  of  the 
case,"  as  follows:  **The  proceedings  on  Mr.  Ackley's  bill  in 
equity  were  to  be  conducted  for  said  Ackley  until  final  deter- 
mination was  had  on  the  merits.  That  if  the  cause  failed  on 
the  merits  defendant  was  to  be  charged  no  further  fee,  but  that 
if  it  was  decided  in  his  favor  then  he  was  to  pay  plaintiff  (ap- 
pellant) a  liberal  contingent  fee,  the  amount  of  which  was  not 
agreed  upon,  but  which  should  be  based  upon  the  increased 
value  of  said  Ackley 's  stock."  The  plaintiff  alleged  that  it 
became  necessary  to  abandon  the  equity  suit  in  the  federal 
court,  because  the  defendant  failed  to  acquire,  prior  to  its  com- 
mencement, the  personal  ownership  of  the  street  railway  stock 
which  he  held  as  administrator,  and  upon  which  the  suit  was 
based,  as  he  had  been  instructed  to  do,  and  that  this  failure 
precluded  a  determination  of  tlie  suit  on  its  merits.  "  Wherefore 
he  now  sues  for  J<750  as  a  quantum  meruit  fee,  because  Ackley's 
default  prevented  the  original  agreement  being  carried  out." 
The  claim  before  the  referee  was  supported  mainly  by  the  plain- 
tiff's testimony.  The  defendant-,  testifying  in  his  own  behalf, 
denied  the  agreement  set  up  by  the  plaintiff,  and  also  denied 
that  the  equity  case  was  abandoned  by  reason  of  any  fault  of 
neglect  on  his  part,  and  he  further  asserted  that  the  equity  suit 
lias  not  been  discontinued,  but  is  still  pending  in  the  circuit 
court  Defendant  further  alleged  that  proceedings  in  the 
equity  suit  were  voluntarily  suspended  by  the  plaintiff  here,  who 
entered  into  an  agreement  whei-eby  its  final  disposition  was 
made  to  depend  upon  the  result  of  another  action  by  other 
parties  against  the  railway  company,  in  another  court,  and  that 
this  action  also  remains  undetermined. 

The  material  questions  in  controversy  would  seem  to  be 
covered  by  the  report  of  the  referee.  On  the  principal  point 
he  found  that  it  was  not  shown  that  the  equity  suit  in  the  fed- 
eral court,  upon  which  the  plaintiff's  claim  is  based,  was  de- 
feated,  or  had  to  be  abandoned,  by  reason  of  any  default  of  the 
defendant,  and  that  as  a  fact  it  is  still  pending,  and  may  be 
proceeded  with.  He  further  reports  that  the  plaintiff  "waft 
himself  responsible  for  the  circumstance  which  he  relies  on  here 
as  an  obstacle  to  his  earning  his  fee.  He  has  accordingly  failed 
to  substantiate  his  claim."    The  pUintiff's  claim  is  not  based 


Digitized  by  VjOOQ IC 


840  NEWLIN  r.  ACKLEY. 

Opinion  of  the  Court.  [6  Pa.  Superior  Ct 

on  his  fulfillment  of  the  alleged  contract  with  the  defendant, 
but  on  the  allegation  that  he  could  not  fulfil  it  because  of  the 
defendant's  default.  He  seeks,  therefore,  to  recover  for  his  ser- 
vices in  its  prosecution,  without  reference  to  the  alleged  agree- 
ment. He  admits  that  this  contract  called  for  a  trial  of  the 
equity  case  on  its  merits  and  a  final  determination  by  due  course 
of  procedure,  to  entitle  him  to  further  compensation ;  but  he 
contends  that  this  termination  was  defeated  by  the  defendant, 
and  therefore  he  was  entitled  to  compensation  for  what  he  had 
done.  But  the  referee  found,  on  adequate  evidence,  that  this 
contention,  essential  to  plaintiffs  recovery,  was  unwarranted  by 
the  facts.  If  the  facts  left  the  main  question  in  doubt,  it  might 
be  worth  while  to  inquire  whether  the  agreement  entered  into 
by  the  plaintiff,  whereby  proceedings  were  suspended  in  the 
equity  suit  until  the  final  determination  of  another  suit  by 
other  parties,  and  to  abide  the  decision  thereof,  could  be  con- 
sidered a  final  determination  on  the  merits  of  the  defendant's 
equity  suit  in  the  federal  court,  within  the  meaning  of  the 
alleged  agreement,  or,  if  without  the  concurrence  of  Ackley,  it 
was  within  the  scope  of  professional  services  at  all.  This  agree- 
ment of  the  plaintiff  postponing  the  equity  case,  was  properly 
admitted  in  evidence  by  the  referee.  It  tended  to  refute  the 
gist  of  the  plaintiffs  claim  under  the  issue  raised  by  the  evi- 
dence. 

The  controversy  here  involves  questions  of  fact,  and  the 
paper-books  of  both  parties  would  indicate  that  the  referee  heard 
a  large  amount  of  testimony  and  based  his  conclusions  of  fact 
and  of  law  thereon.  These  conclusions  would  seem  to  be  war- 
i-anted  by  the  evidence,  and  are  therefore  binding  upon  us.  The 
power  of  the  appellate  court  to  deal  with  the  facts  has  often  been 
passed  upon,  and  is  clearly  defined  by  the  decisions.  Thus,  in 
Bradlee  v.  Whitney,  108  Pa.  362,  it  was  said  by  Clabk,  J. :  "  It 
has  been  frequently  held  in  this  court  that  a  writ  of  error,  in 
such  case,  brings  up  only  questions  of  law.  The  court  cannot 
go  behind  the  findings  of  fact  by  the  referee,  except  where  the 
assignment  of  error  is  such  as  could  be  heard  and  determined 
if  the  trial  had  been  according  to  the  course  of  the  common  law 
— before  a  jury :  Jamison  v.  Collins,  83  Pa.  359 ;  Lee  v.  Keys, 
88  Pa.  175 ;  Brown  v.  Dempsey,  95  Pa.  243.  If  the  evidence 
is  relevant  and  proper,  and  the  findings  of  fact  are  reasonably 


Digitized  by  VjOOQ IC 


NEWLIN  V.  ACKLEY.  a41 

1898.]  Opinion  of  the  Court. 

inferable  therefi-om,  we  must,  in  the  absence  of  fraud,  ac- 
cept the  report  as  correct.  We  cannot  consider  the  weight  or 
the  conflict  of  the  evidence,  or  the  veracity  of  the  witnesses ; 
this  is  the  proper  office  of  the  referee,  who  performs  the  double 
function  of  court  and  jury.  Such  of  the  assignments  of  error 
as  are  directed  solely  to  the  facts  must  therefore  be  dismissed." 
Again,  in  Bidwell  v.  Railway  Company,  114  Pa.  535,  the  same 
learned  justice  said :  "  The  findings  of  fact  by  the  referee  are  of 
course  conclusive  here;  we  cannot  review  them,  they  are  as 
binding  upon  us  as  if  they  had  been  found  by  a  jury  in  the  form 
of  a  special  verdict ;  the  case  must  therefore  be  considered  upon 
the  assumption  of  the  facts  stated."  This  view,  supported  by 
all  the  authorities  touching  the  point,  but  enunciates  the  distinc- 
tion of  the  statutes  regulating  the  procedure  in  referred  cases. 
All  the  specifications  of  error  relate,  either  wholly  or  partially, 
to  findings  of  fact,  except  the  sixth  and  eleventh.  Even  were 
we  permitted  to  re-examine  and  refind  the  facts  we  could  not 
do  so  because  the  evidence  has  not  been  printed.  There  is  no 
error  in  the  sixth  or  eleventh  specifications. 

The  assignment  of  eiTora  is  overruled  and  the  judgment 
affirmed. 


Albert  Snyder  v.  Steinmetz  &  Zearfoss,  Appellants. 

Province  of  court  as  to  whether  there  is  a  question  for  the  Jury, 
It  is  true  that  there  is  in  all  cases  at  law  a  preliminary  question  for  the 
couit  whether  there  is  any  evidence  of  the  facts  sought  to  be  established 
that  ought  reasonably  to  satisfy  the  jury.  If  there  is  evidence  fi*om  which 
the  jury  can  properly  find  the  question  for  the  paily  on  whom  rests  the 
burden  of  proof,  it  should  be  submitted.  If  not  it  should  be  withheld 
from  the  jury. 

Contract — Presumption  of  payment —  Question  for  Jury. 

Where  there  is  more  than  a  scintilla  of  evidence  in  the  casCf  from  which 
a  contract  reasonably  might  be  inferred,  and  a  presumption  of  payment 
is  not  conclusive,  and  where  if  the  testimony  of  the  plaintiff  is  believed 
such  contract  is  established  and  such  presumption  of  payment  is  rebutted, 
the  question  of  credibility  is  for  the  juiy. 


Digitized  by  VjOOQ  IC 


342  SNYDER  v.  STEINMETZ. 

Syllabus — Assignment  of  Erroi-s.      [6  Pa.  Superior  Ct; 

CofUract^lmplied  contract — Extra  wages — Rebuttable  presumption^  of 
payment, 

A  contract  to  do  extra  work  may  be  implied  from  a  request  to  do  such 
work,  and  the  subsequent  performance  thereof  and  the  presumption  of  pay- 
ment arising  from  a  delay  in  presentation  of  a  claim  for  extra  compensa- 
tion, coupled  with  a  regular  receipting  for  regulation  wages  may  be  re- 
butted by  evidence  which  is,  if  believed,  clear,  complete  and  convincing. 

;  Argued  Dec.  9,  1897.  Appeal,  No.  161,  Oct.  T.,  1897,  by 
defendants,  from  judgment  of  C.  P.  Northampton  Co.,  May  T., 
1897,  No.  71,  on  verdict  for  plaintiff.  Before  Rice,  P.  J., 
WiCKHAM,  Beaver,  Reedeb,  Orlady,  Smith  and  Porter,  J  J. 
AflBrmed. 

Appeal  from  magistrate.    Before  Schuyler,  P.  J. 
The  facts  sufficiently  appear  in  the  opinion  of  the  court. 
Verdict  and  judgment  for  plaintiff  for  |i68.00.    Defendants 
appealed. 

Errors  assigned  were,  (1)  The  charge  of  the  court  below  is 
misleading  when  he  says  to  the  jury  that  ^^  it  is  an  undisputed 
fact  that  the  plaintiff  rendered  the  services  for  which  he  seeks 
to  recover."  The  part  of  the  charge  where  the  court  misleads 
the  jury  is  as  follows:  "It  is  undisputed  that  beginning  with 
the  year  1895,  on  the  10th  of  December,  and  ending  on  the  29tli 
day  of  March,  1897,  the  plaintiff  cared  for  the  horses  of  the  de- 
fendants on  Sunday.  If  this  service  was  rendered  to  the  defend- 
ants, at  their  request,  or  at  the  request  of  either  of  them,  or  if  it 
were  rendered  to  the  defendants  without  any  request  having 
been  made  upon  the  subject,  if  they  knew  that  the  services  were 
being  rendered,  then,  if  there  were  nothing  further  in  the  case, 
the  plaintiff  would  be  entitled  to  a  verdict  at  your  hands  for  the 
value  of  these  services.  But  these  facts  do  not  stand  alone. 
It  is  contended  on  the  part  of  the  defendants  that  the  plaintiff 
is  not  entitled  to  recover  notwithstanding  he  rendered  these  ser- 
vices. The  defendants  deny  that  they  requested  the  plaintiff 
or  that  either  of  them  requested  the  plaintiff  to  render  these  ser- 
vices. They  deny,  at  least  impliedly,  that  these  services  were 
rendered  for  them,  my  recollection  of  the  testimony  being  that 
they  presumed  the  services  were  being  rendered  for  the  other 
drivers  in  their  employ.     If  that  be  so  then  the  plaintiff  would 


Digitized  by  VjOOQ IC 


SNYDER  V.  STEINMKTZ.  343 

1898.]  Assignment  of  Errora. 

not  be  entitled  to  recover  for  the  services,  if  there  were  nothing 
further  in  the  case  than  that  fact.  If  the  plaintiff  rendered 
these  services  without  being  requested  to  do  so,  and  if  he  ren- 
dered them  for  the  other  employees  of  the  defendants,  and  they 
got  the  benefit  of  the  services,  and  the  defendants  did  not  get 
the  benefit  of  the  services,  then  the  plaintiff  would  not  be  en- 
titled to  recover.  .  .  .  Now,  I  have  said  to  you  that  if  these 
sei'vices  were  rendered  to  the  defendants  at  their  request,  or 
with  their  knowledge,  that  that  standing  alone  would  entitle 
the  plaintiff  to  recover  the  amount  which  would  compensate 
him  for  what  tliose  services  were  really  worth.  I  leave  all  the 
facts  with  you.  There  are  two  facts  and  very  important  facts 
in  the  case  that  are  wholly  undisputed.  The  one  is  that  these 
services  were  actually  i-endered."  (2)  In  that  part  of  their 
charge  where  they  say :  **  The  law  upon  this  subject  is  this,  that 
where  settlements  are  made  with  employees  from  time  to  time, 
and  the  employee  receives  payment  from  time  to  time  for  the 
services  which  he  has  rendered,  and  does  not  complain  that  the 
amounts  that  he  received  wei-e  too  small,  but  accepts  them 
without  objection  and  without  any  remonstrance  on  his  part,  I 
say  the  law  applicable  to  that  condition  of  things  is  that  it  is 
very  strong  evidence  that  the  claim  of  the  plaintiff  is  not  well 
founded.  I  have  been  asked  to  take  the  case  away  from  you 
upon  that  point.  I  do  not  think  that  the  law  goes  that  far,  but 
the  law  goes  this  far,  that,  as  I  have  said  to  you,  the  fact  of  the 
receipt  of  so  many  payments  without  any  hint  at  all  of  any 
omission,  is  strong  evidence  that  a  superadded  claim  is  not  well 
founded."  (8)  In  their  answer  to  the  defendants'  point.  The 
point  and  answer  thereto  are  as  follows :  "  1.  The  court  is  asked 
to  say  to  the  jury  that  the  plaintiff's  claim  being  for  wages,  and 
he  having  worked  for  the  defendants  from  December  10,  1895, 
to  March  29, 1897,  and  the  defendants  having  paid  him  every 
Saturday  night,  and  he  never  having  demanded  extra  pay  for 
Sundays,  the  presumption  is  that  the  wages  paid  him  on  Satur- 
day night  was  in  full  of  all  moneys  due  him  up  to  the  time  of 
such  payments.  Answer :  If  you  find  the  facts  as  stated  in  thin 
point,  these  facts  furnish  strong  evidence  against  the  claim  set 
up  by  the  plaintiff."  (4)  In  their  answer  to  the  plaintiff's  third 
point.  The  point  and  aiifswer  thereto  are  as  follows:  "8.  If 
there  be  substantial  change  in  the  nature  or  amount  of  the  labor 


Digitized  by  VjOOQ IC 


S44  SNYDER  v.  STEINMETZ. 

Assignment  of  Erroi-s— Opinion  of  the  Court.     [6  Pa.  Superior  Ct. 

and  service  perfoiined  by  the  plaintifif,  the  law  presumes  that 
the  plaintiff  is  entitled  to  extra  compensation,  proportioned  to 
the  increased  labor  and  services.  Answer:  That  point  I  affirm 
with  the  same  qualification." 

William  Fackenthall^  for  appellants. — The  payment  to  the 
plaintiff  every  Saturday  was  a  payment  in  full  for  the  week, 
was  so  considered  and  accepted  by  the  plaintiff  and  the  court 
should  have  said  so  to  the  jury:  Webb  v.  Lees,  149  Pa.  13; 
153  Pa.  436;  McConnell's  Appeal,  97  Pa.  31. 

A.  B.  ffowelly  for  appellee. — If  the  contract  was  not  done  by 
request,  but  the  appellants  knew  that  it  was  being  done  and 
received  the  benefits  of  it,  the  law  implies  an  obligation  on  their 
part  to  pay  for  it:  Swires  v.  Parsons,  5  W.  &  S.  357 ;  Curry  v. 
Curry,  114  Pa.  367. 

The  presumption  of  pa3rment  in  this  case  is  but  a  presump- 
tion of  fact  and  may  be  rebutted:  McConnell's  Appeal,  97 
Pa.  31. 

If  there  be  more  than  a  mere  scintilla  of  evidence  in  support 
of  the  appellee's  case,  even  though  it  be  weak,  it  is  an  error  for 
the  court  not  to  submit  it  to  the  jury :  Pattei-son  v.  Dushane, 
115  Pa.  334;  Express  Co.  v.  Wile,  64  Pa.  201 ;  Bank  v.  Wire- 
back,  106  Pa.  37. 

Opinion  by  Beaver,  J.,  January  18, 1898 : 

The  plaintiff,  a  driver  of  a  horse  which  he  attended  only  dur- 
ing working  days,  being  in  the  employ  of  the  defendants  at  a 
stipulated  rate  of  wages,  which  were  paid  at  the  end  of  each 
week,  alleged  that  one  of  his  employers  had  handed  him  the 
keys  of  the  stable  in  which  the  four  horses  belonging  to  the  de- 
fendants were  kept,  sa}n[ng  "  You  take  care  of  the  horses  and 
feed  them  and  I  will  make  arrangements  witti  you  in  a  day  or 
two."  This  was  immediately  after  another  employ^  in  the  ser- 
vice of  the  defendants,  who  had  general  charge  of  the  horses 
and  their  exclusive  care  on  Sunday,  left  that  employment. 

As  was  said  by  the  court  below,  it  was  "  undisputed  that  be- 
ginning with  the  year  1895  on  the  10th  of  December  and  end- 
ing on  the  29th  day  of  March,  1897,  the  plaintiff  cared  for  the 
horses  of  the  defendants  on  Sunday."     This  was  testified  to  by 


Digitized  by  VjOOQ IC 


SNYDER  V.  STEINMETZ.  345 

1898.]  Opinion  of  the  Court. 

the  plaintiff,  by  one  or  more  of  his  co-employees  and  by  others 
who  had  knowledge  of  the  facts.  It  was  not  disputed.  One 
of  the  defendants  admitted  his  knowledge  of  the  fact  that  the 
plaintiff  was  doing  the  work  for  which  he  claimed  but  added, 
by  way  of  explanation,  that  he  supposed  he  was  doing  it  for  and 
under  some  arrangement  with  the  other  drivers.  There  was  no 
denial  and  no  attempt  at  denial  of  the  fact  that  the  plaintiff  ac* 
tually  did  the  work. 

The  defense  was  twofold:  First,  that  the  work  was  not  done 
for  the  defendants  under  any  contract,  either  express  or  im- 
plied, and  that,  therefore,  they  were  not  liable  to  pay  for  the 
same;  and,  second,  that  the  weekly  payments  made  by  the 
defendants  and  accepted  by  the  plaintiff  raised  the  presumption 
"  that  the  wages  paid  on  Saturday  night  was  in  full  of  all  moneys 
due  him  up  to  the  time  of  such  payments." 

It  is  not  claimed  by  the  plaintiff  that  there  was  any  express 
contract  between  him  and  the  defendants  for  the  extra  work 
for  which  he  claims  in  the  present  suit.  The  contract  must  be 
inferred  from  the  alleged  request  made  by  one  of  the  defend- 
ants, when  the  keys  were  delivered  to  the  plaintiff,  to  take 
charge  of  the  horses  and  that  he  would  make  an  arrangement 
in  reference  thereto  in  a  day  or  two,  and  from  the  fact  that 
plaintiff  entered  upon  and  continued  to  perform  the  extra  work 
which  the  alleged  employment  contemplated  and  imposed.  It 
is  not  alleged  that  such  an  arrangement  ever  was  actually  made. 
The  plaintiff  could  recover,  therefore,  if  entitled  to  anything, 
only  what  the  services  rendered  in  pursuance  of  this  alleged 
i-equest  were  reasonably  worth.  As  to  their  value  there  was 
ample  evidence  for  the  consideration  of  the  jury. 

The  presumption  of  payment,  raised  by  the  facts  in  evidence, 
was  twofold :  First,  that  arising  from  the  delay  in  making  de- 
mand for  payment  for  the  alleged  extra  services,  until  the  plain- 
tiffs discharge ;  and  second,  from  the  acceptance  every  week  of 
the  regular  weekly  wages  which  were  paid  subsequent  as  well 
as  prior  to  the  alleged  employment  for  extra  work,  for  which 
the  plaintiff  claimed. 

In  McConnell's  Appeal,  97  Pa.  81,  where  a  domestic  servant 
made  no  demand  for  the  payment  of  wages,  until  after  the  death 
of  her  employer  and  several  years  after  the  services  were  ren- 
dered, it  was  held  that  this  delay  raised  a  presumption  of  pay- 


Digitized  by  VjOOQ  IC 


346  SNYDER  v.  STEINMETZ. 

Opinion  of  the  Couit.  [6  Pa.  Supedor  Ct. 

ment,  but  it  was  said  by  Mr.  Justice  Paxson  who  delivered  the 
opinion  of  the  court,  "  It  is,  however,  a  presumption  of  fact 
merely  and  liable  to  be  rebutted."  In  Webb  v.  Lees  et  al.,  149 
Pa.  13,  relied  upon  by  the  appellants,  it  was  held  that  "  When 
an  employee  is  shown  to  have  accepted  wages  from  week  to 
week  for  a  period  of  months,  at  a  rate  in  accordance  with  his 
own  returns  of  time,  it  is  convincing  evidence  that  he  was  to 
be  paid  according  to  time,  and  not  only  should  it  be  so  set  be- 
fore the  jury  but  the  jury  should  not  be  permitted  to  disregard 
it  in  the  absence  of  an  explanation  equally  clear,  complete  and 
convincing  and  made  out  by  evidence  that  does  and  ought  to 
carry  conviction."  The  facts  in  both  of  these  cases  were,  how- 
ever, different  and  easily  clistiiiguished  from  those  which  we 
are  considering.  The  evidence  in  the  present  case  was  such  as 
was  necessarily  submitted  to  the  juiy.  If  believed  by  them,  as 
it  evidently  was,  it  rebutted  the  presumption  of  fact  raised  by 
the  delay  in  making  the  demand  and  was  sufficiently  convinc- 
ing to  satisfy  the  jury  that  the  weekly  envelope  payments  had 
not  contained  the  wages  earned  by  the  plaintiff  in  the  extra 
work  alleged  by  him  to  have  been  done  on  Sunday  in  the  sta- 
bles of  the  defendants  for  their  benefit.  The  testimony  of  the 
plaintiff  as  to  the  emplojinent  by  one  of  the  defendants  was 
specific,  the  fact  that  he  did  the  work  was  clearly  proved  and 
seems  to  have  been  known  by  both  the  defendants,  Steinmetz 
testifying  on  cross-examination  that  the  fact  was  communicated 
to  him  by  his  partner,  and  the  plaintiff's  explicit  statement  wa^ 
evasively  met  by  Steinmetz  in  his  cross-examination.  There 
was,  therefore,  much  more  than  a  scintilla  of  evidence  which 
could  not  be  withheld  from  the  jury :  Patterson  v.  Dushane, 
115  Pa.  384.  It  is  true  that  "  there  is  in  all  cases  at  law  a  pre- 
liminary question  for  the  court  whether  there  is  any  evidence 
of  the  facts  sought  to  be  established  that  ought  reasonably  to 
satisfy  the  jury.  If  there  is  evidence  from  which  the  jury  can 
properly  find  the  question  for  the  party  on  whom  rests  the  bur- 
den of  proof,  it  should  be  submitted.  If  not,  it  should  be  with- 
held from  the  jury : "  McKnight  v.  Bell,  135  Pa.  358 ;  but 
there  was  evidence  in  this  case  from  which  a  contract  might  be 
reasonably  inferred  and  the  presumption  of  payment  was  not 
conclusive:  Weaver  v.  Craighead,  104  Pa.  288;  Cover  v. 
Manaway,  115  Pa.  338.    If  the  testimony  of  the  plaintiff  was 


Digitized  by  VjOOQ IC 


SNYDER  v.  STEINMETZ.  847 

1898.]  Opinion  of  the  Court. 

to  be  believed*  the  jury  could  well  find  in  his  favor  and  the 
question  of  his  credibility  was  entirely  for  them. 

The  instructions  of  the  trial  judge  in  the  court  below  as  to 
the  implied  contract  under  which  the  plaintiff  sought  to  recover 
and  as  to  the  effect  of  the  receipt  of  his  weekly  wages  were  not 
unfavorable  to  the  appellants ;  and,  taking  the  charge  and  an- 
swers to  points  together,  fully  and  fairly  covered  the  case. 

The  judgment  is,  therefore,  affirmed. 


The  R.  Rothschilds  Sons'  Company,  a  corporation  incor- 
porated and  doing  business  under  the  laws  of  the  state 
of  Ohio,  Appellant,  v.  E.  F.  McLaughlin. 

Province  of  court  cu  to  whether  there  is  question  for  Jury, 
There  is  in  all  cases  at  law  a  preliminary  question  for  the  court  whether 
there  is  any  evidence  of  the  facts  sought  to  be  established  that  ouglit  reu- 
8onal|]y  to  satisfy  the  jury ;  if  there  is  evidence  from  which  the  jury  can 
properly  find  the  question  for  the  party  on  whom  rests  the  burden  of 
proof,  it  should  be  submitted.  If  not,  it  should  be  withheld  from  the 
juiy. 

Evidence— Parol  evidence  to  reform  written  contract— Quantity  and 
guaiity. 

To  reform  or  contradict  a  written  contract  the  evidence  of  fraud  or  mis- 
take must  be  sufBcient  to  move  the  conscience  of  a  chancellor  to  reform 
the  instrument ;  that  is  as  to  quantity,  there  must  be  the  testimony  of  two 
witnesses  or  one  witness  with  corroborating  circumstances  equivalent  to 
a  second,  and  as  to  quality,  the  evidence  must  be  clear,  precise  and  indu- 
bitable. 

Province  of  court  and  jury— Inadequate  charge  as  ground  for  reversal. 

Where  the  trial  judge  fails  to  give  the  jury  proper  instructions  as  to  the 
vital  question  in  the  case  and  either  entirely  overlooks  or  disregards  the 
same,  it  is  ground  for  reversal. 

Argued  Nov.  18, 1897.  Appeal,  No.  120,  Oct.  T.,  1897,  by 
plaintiff,  from  judgment  of  C.  P.  Delaware  Co.,  June  T.,  1896, 
No.  141,  on  verdict  for  defendant.  Before  Rice,  P.  J.,  Wick- 
HAM,  Beavbr,  Rebder,  Oelady,  Smith  and  Porter,  J  J. 
Reversed. 


Digitized  by  VjOOQ IC 


348  ROTHSCHILDS  CO.  v.  MoLAUGHLIN. 

Charge  of  Court.  [6  Pa.  Superior  Ct. 

Replevin.    Before  Clayton,  P.  J, 

The  facts  sufficiently  appear  in  the  charge  of  the  court  below, 
as  follows : 

"  This  is  an  action  of  replevin  in  which  the  plaintiff,  when  he 
issued  his  writ,  claimed  to  be  the  owner  of  certain  barroom  fix- 
tures which  he  says  he  leased  to  Mr.  McLaughlin.  The  real 
transaction  between  the  parties  was  in  the  nature  of  a  condi- 
tional sale.  The  plaintiffs  were  willing  to  sell  the  fixtures,  the 
title  to  remain  in  them  until  they  should  be  paid  for ;  that  is 
the  transaction  between  the  parties,  and  it  was  a  lawful  trans- 
action ;  the  law  permits  agreements  of  that  kind.  It  is  in  the 
natui'e  of  a  conditional  sale  between  the  parties ;  that  is  to  say, 
the  plaintiff  agreed  to  lease  these  articles  for  what  they  call  a 
rent,  and  after  a  certain  amount  of  rent  shall  be  paid  equal  to 
the  value  of  the  articles,  then  the  title  was  to  pass  to  Mr.  Mc- 
Laughlin and  not  before.  So,  you  see,  the  whole  question  for 
you  is.  Has  the  article  been  paid  for  ?  If  it  has,  then  the  title 
at  the  time  of  the  issuing  of  this  writ  was  in  Mr.  McLaughlin, 
and  he  is  entitled  to  your  verdiot.  If  the  articles  have  not  been 
paid  for  then  the  title  was  in  the  plaintiff,  Rothschilds.  Now, 
whether  the  full  price  has  been  paid  or  not,  will  depend  upon 
all  the  circumstances  of  the  cause. 

The  defendant  alleges  that  they  did  not  send  him  the  article 
he  purchased  ;  that  they  sent  him  an  inferior  article,  worth  much 
less,  and,  as  he  had  paid  $100  down,  and  had  paid  $50.00  on  the 
freight,  or  at  the  time  it  was  delivered,  he  kept  the  articles  with 
the  understanding  that  they  should  make  good  to  him  what 
they  represented  the  articles  to  be,  or  with  the  intention  upon 
his  part  to  set  off  the  difference  in  value  between  the  article  he 
received  and  the  article  he  was  to  receive.  I  say  to  you  that 
under  the  operation  of  this  peculiar  action  he  has  the  right  to 
do  it  The  action  of  replevin  in  Pennsylvania  is  an  equitable 
action.  It  will  lie  in  every  case  to  test  the  title  to  personal 
property.  The  operation  of  the  action  of  replevin  is  to  settle 
the  title  to  personal  property,  and  the  title  to  this  property  is  in 
Mr.  McLaughlin  if  Mr.  McLaughlin  has  paid  for  it.  If  he  has 
not  paid  for  it  the  title  is  in  the  plaintiff,  Rothschilds,  and  Roth- 
schilds will  be  entitled  to  your  verdict,  and  his  verdict  will  be 
the  value  of  Uie  property.    As  a  rule,  all  other  circumstances 


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ROTHSCHILDS  CO.  v.  McLAUGHLIN.  849 

1898.]  Charge  of  Court. 

being  equal,  what  the  party  agrees  to  pay  for  a  certain  article 
is  its  value ;  but  if  the  article  contracted  for  was  not  sent,  if  an 
inferior  article  was  sent,  then  there  is  an  implied  agreement 
only  to  pay  the  value  of  the  inferior  if  the  man  accepts  it  and 
within  a  reasonable  time  makes  his  claim.  If,  therefore,  you 
shall  find,  and  the  first  question  will  be  for  you,  did  Roth- 
schilds send  Mr.  McLaughlin  an  inferior  article  ?  Did  he  send 
the  article  that  Mr.  McLaughlin  bought  from  him  ?  If  he  did 
not,  what  is  the  difference  in  the  price  ?  That  is  the  whole  ques- 
tion. Now  you  will  have  no  diificulty  in  regard  to  that.  You 
will  consider  first  whether  the  article  that  was  received  by  Mr. 
McLaughlin  was  the  article  that  he  contracted  for.  If  you  find 
that  it  was,  then  the  contract  price  is  what  your  verdict  should 
be,  less  what  has  been  paid;  and,  in  that  event,  your  verdict 
would  be  for  the  plaintiff  for  $301.20.  If  you  come  to  the  con- 
clusion that  the  Rothschilds  did  not  send  the  article  that  was 
bargained  for,  if  you  find  that  he  sent  an  inferior  article  which 
was  worth  less  money,  then  the  implied  contract  would  be  that 
the  title  should  vest  in  Mr.  McLaughlin  as  soon  as  he  paid  what 
the  article  was  reasonably  worth ;  and,  if  you  find  that  it  was 
reasonably  worth  less  than  the  article  that  he  agreed  to  pur- 
chase, then  just  what  that  is  worth  is  what  your  verdict  should 
be,  deducting  what  has  been  paid.  As  I  understand — what 
amount  has  been  paid  ? 

Mr.  Baker:  «380. 

The  Court :  $330  has  been  paid,  and  Mr.  Gray  and  Mr.  Mc- 
Laughlin say  that  the  article  received  was  not  worth  more  than 
$330.  If  that  is  so  and  the  bar  received  was  not  the  one  agreed 
to  be  leased,  then  the  defendant  is  entitled  to  a  verdict.  If  you 
find  that  the  article  sent  was  not  the  article  bargained  for,  and 
that  it  was  worth  only  $320  or  $330  instead  of  $600,  then,  as 
the  $330  has  been  paid  the  title  is  in  Mr.  McLaughlin ;  he  has 
paid  for  what  he  got.  But  if  you  find  that  they  sent  on  to  him 
the  article  he  contracted  for,  if  they  kept  their  contract  with 
him,  then  the  price  of  the  article  purchased  is  the  $600  agreed 
upon  between  the  parties,  and  as  $330  has  been  paid  there 
will  be  $270  due.  Now  the  plaintiff  was  entitled  to  have  that 
money  at  the  time  that  his  action  was  brought,  at  least ;  and 
therefore  he  should  have  damages  for  the  detention,  which,  in 
this  case,  should  not  be  more  than  six  per  cent,  which  would 


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850  ROTHSCHILDS  CO.  v.  McLAUGHLIN. 

Charge  of  Court— Arguments.     [6  Pa.  Superior  Ct. 

amount  in  this  case  to  $301.30.  Their  claim,  I  say,  is  for  $301.30, 
including  the  damages  for  the  detention  under  the  allegation 
they  have  sent  what  they  agreed  to  furnish,  and  for  that  that 
is  what  they  are  entitled  to,  and  if  they  have  not,  then  you  will 
deduct  from  the  $301.30  whatever  you  think  the  difference  is 
between  the  article  contracted  for  and  the  article  that  was  sent. 

Now,  gentlemen,  that  is  all  the  light  that  I  can  give  you  upon 
this  case.  The  question  is  reduced  to  a  simple  point.  Consider 
these  two  questions  that  I  have  laid  before  you,  and  if  you  come 
to  the  conclusion  that  the  plaintiffs  here  have  carried  out  their 
contract  and  have  furnished  Mr.  McLaughlin  with  the  fixtures 
he  contracted  for,  then  there  would  be  due  to  the  plaintiff  the 
sum  of  $801.30.  If,  on  the  other  hand,  you  find  that  they  did 
not  send  him  the  article  he  bought,  and  that  under  the  circum- 
stances the  best  that  he  could  do  was  to  keep  what  they  did 
send  him,  then  h^  is  only  to  pay  what  the  article  was  reasonably 
woi-th,  and  it  will  be  for  you  to  say  what  deduction  should  be 
made  if  you  should  so  find. 

The  contract  and  letters  offered  in  evidence  are  sent  to  the 
jury. 

Verdict  and  judgment  for  defendant.     Plaintiff  appealed. 

En^or  assigned  among  others  was  (22)  the  charge  as  a  whole 
failed  to  give  the  jury  instructions  as  to  their  duty  in  the  case, 
and  left  them  in  ignorance  of  the  law  applicable  thereto. 

A.  B.  Qeary^  for  appellant. — Where  parties,  without  any  fraud 
or  mistake,  have  deliberately  put  their  engagements  in  writing, 
the  law  declares  the  writing  to  be  not  only  the  best,  but  the  only 
evidence  of  their  agreement :  Thome,  McFarlane  &  Co.  v.  Waf- 
flein,  100  Pa.  619 ;  Baer's  Appeal,  127  Pa.  360 ;  Irvin  v.  Irvin, 
142  Pa.  271 ;  Wodock  v.  Robinson,  148  Pa.  603 ;  Hoffman  v. 
Raiboad  Co.,  157  Pa.  174. 

The  only  ground  upon  which  the  court  could  submit  to  the 
juiy  the  power  to  find  that  the  plaintiff  did  not  send  the  article 
contracted  for  would  be  that  there  was  suflScient  evidence  of 
alteration  of  the  contract  or  evidence  of  fraud  clear,  precise  and 
indubitable  and  so  direct  and  clear  that  a  chancellor  would  re- 
form the  agreement,  anything  short  of  this  ought  not  to  be  sub- 
mitted to  the  jury :  McGinity  v.  McGinity,  63  Pa.  38 ;  Rowand 


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ROTHSCHILDS  CO.  v.  McLAUGHLIN.  851 

1898.]  Arguments — Opinion  of  the  Couit. 

V.  Finney,  96  Pa.  192;  Murray  v.  R.  R.  Co.,  103  Pa.  87 ;  Syl- 
vius  V.  Kosek,  117  Pa.  67;  McClain  v.  Smith,  158  Pa.  49. 

If  the  charge  is  inadequate  in  its  treatment  of  the  question 
submitted,  such  defect  will  be  ground  for  reversal :  Young  v. 
Merkel,  163  Pa.  613 ;  Fineburg  v.  Railway  Co.,  182  Pa.  97. 
If  no  particular  instructions  be  asked,  the  court  is  responsible 
for  the  general  effect  only  of  the  charge ;  and  in  considering 
the  charge  the  whole  of  it  must  be  taken  together.  If,  when 
so  considered,  it  has  a  tendency  to  mislead,  though  no  partic- 
ular portion  of  it  be  erroneous,  it  is  cause  for  reversal :  Insur- 
ance Co.  V.  Rosenberger,  8  W.  N.  C.  16 ;  Iron  Co.  v.  Diller,  17 
W.  N.  C.  6. 

We  respectfully  submit  that  the  charge  was  inadequate  and 
misleading  to  the  jury,  and  failed  to  present  to  them  the  real 
question  for  their  consideration. 

No  argument  or  paper-book  for  appellee. 

Opinion  by  Beaver,  J.,  January  18, 1898  : 

Whilst  it  is  always  more  satisfactory  to  us  to  have  both 
appellant  and  appellee  represented  by  counsel  and  to  have,  in 
most  cases,  written  and  oral  arguments  presented  for  our  con- 
sideration, we  are,  nevertheless,  enabled  to  reach  a  fairly  satis- 
factory understanding  of  the  position  of  the  defendant  in  this 
case  from  the  colloquies  which  occurred  between  his  counsel 
and  the  coui't  in  the  course  of  the  trial  below.  The  first  im- 
pressions of  the  trial  judge,  as  the  case  unfolded  in  the  trial 
were  correct  and,  if  they  had  been  adhered  to  and  embodied  in 
the  charge  to  the  jury,  it  is  probable  that  this  case  would  not 
have  been  presented  for  our  consideration. 

The  plaintiff  company  and  the  defendant,  on  the  14th  of 
January,  1895,  in  the  city  of  New  York,  entered  into  a  written 
agreement  in  and  by  which  the  plaintiff  leased  to  the  defend- 
ant certain  bar  fixtures,  therein  fully  described,  upon  the  terras 
and  conditions  set  forth  in  the  lease.  This  agreement  undoubt- 
edly constitutes  a  bailment  and  was  so  recognized  by  the  court 
below.  It  is  true  that  the  tiial  judge  speaks  of  it  in  his  charge 
as  being  ^*  in  the  nature  of  a  conditional  sale  between  the  par- 
ties "  but  he  clearly  recognized  the  true  character  of  the  trans- 
action in  what  follows :  ''  that  is  to  say,  the  plaintiff  agreed  to 


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3&2  ROTHSCHILDS  CO.  v.  McLAUGHLIN. 

Opinion  of  the  Court.  [6  Pa.  Superior  Ct 

lease  these  articles  for  what  they  called  a  rent  and,  after  a  cer- 
tain amount  of  rent  shall  be  paid,  equal  to  the  value  of  the 
articles,  then  the  title  was  to  pass  to  Mr.  McLaughlin  and  not 
before."  If  there  were  nothing  else  in  the  case,  the  appellant 
would  have  little  to  complain  of. 

Twenty-two  assignments  of  error  are  presented  for  our  con- 
sideration. The  twentynsecond  is  as  follows :  "  The  charge,  as 
a  whole,  failed  to  give  the  jury  instructions  as  to  their  duty  in 
the  case  and  left  them  in  ignorance  of  the  law  applicable  thereto." 
The  discussion  of  this  assignment  will  practically  cover  all  that 
need  be  said  in  regard  to  the  case.  As  we  remarked  in  Snyder 
v.  Steinmetz,  ante,  p.  341,  in  which  an  opinion  has  been  this 
day  filed,  quoting  McKnight  v.  Bell,  186  Pa.  358:  "There  is 
in  all  cases  at  law  a  preliminary  question  for  the  court  whether 
there  is  any  evidence  of  the  facts  sought  to  be  established  that 
ought  reasonably  to  satisfy  the  jury ;  if  there  is  evidence  from 
which  the  jury  can  properly  find  the  question  for  the  party  on 
whom  rests  the  burden  of  proof,  it  should  be  submitted.  If 
not,  it  should  be  withheld  from  the  jury," 

Was  there  any  evidence  in  this  case  which  should  have  been 
submitted  to  the  jury,  from  the  consideration  of  which,  under 
any  circumstances,  they  could  find  for  the  defendant?  The 
agreement  of  the  parties  was  in  writing,  the  defendant's  testi- 
mony showing  that,  when  executed  in  the  office  of  the  plaintiff 
in  New  York,  the  only  persons  present  were  the  defendant  him- 
self and  the  agent  of  the  plaintiff  who  is  the  subscribing  witness 
thereto.  It  would  seem  also  as  if  the  defendant  were  the  only 
person  pi'esent,  when  the  memoranda  in  the  agreement,  which 
constitute  the  description  of  the  fixtures,  were  made.  The 
effort  was  made  to  discredit  and  set  aside  the  written  agreement 
upon  the  theory  and  allegation  that  the  fixtures  shipped  by  the 
plaintiff  to  the  defendant  were  not  those  which  he  purchased 
or  leased.  There  was  no  effort  to  show  that  they  did  not  cor- 
respond with  the  description  contained  in  the  written  agree- 
ment. It  was,  thei*efore,  incumbent  upon  the  defendant  at  the 
outset  to  discredit  the  agreement  which  was  in  writing.  This 
could  only  be  done,  under  the  circumstances,  by  proof  of  fraud 
or  mistake.  As  has  been  held  in  very  many  cases,  so  familiar 
to  the  profession  that  they  need  not  be  recited  here,  the  evi- 
dence of  fraud  or  mistake  must  be  sufficient  to  move  the  con« 


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ROTHSCHILDS  CO.  v.  McLAUGHLIN.  853 

1898.]  Opinion  of  the  Court. 

science  of  a  chancellor  to  reform  the  instrument ;  that  is,  as  to 
quantity  there  must  be  the  testimony  of  two  witnesses  or  one 
witness  with  corroborating  circumstances  equivalent  to  a  sec- 
ond, and  as  to  quality  the  evidence  must  be  clear,  precise  and 
indubitable.  A  number  of  cases  relating  to  this  subject  are 
collected  in  Honesdale  Glass  Co.  v.  Storms,  125  Pa.  268.  It  is 
scarcely  necessary  to  say,  in  view  of  what  we  have  already  said 
on  this  subject,  that  it  is  at  least  doubtful  whether  either  in 
quantity  or  quality  the  proof  in  this  case  came  up  to  the  re- 
quirements of  the  law  in  reference  to  the  contradiction  of  a 
written  instrument  by  parol  evidence  on  the  ground  of  fraud 
or  mistake.  This  goes  to  the  root  of  the  case  and  should  have 
been  distinctly  passed  upon  by  the  court  below,  but  there  is  not 
a  word  said  in  the  charge  in  regard  to  a  written  agreement  nor 
as  to  the  rules  under  which  it  is  allowable  to  contradict  it. 
Nothing  is  said  to  the  jury  as  to  the  measure  and  quantum  of 
proof  required  for  that  purpose.  Indeed  the  case  was  left  to 
the  jury  as  if  the  purchase  had  been  made  by  a  parol  agreement, 
and  tlie  witnesses  were  permitted  to  testify,  without  reference 
to  the  written  agreement,  that  the  article  shipped  by  the  plain- 
tiff and  received  by  the  defendant  was  not  the  article  purchjised. 

Even  if  this  had  been  so,  what  was  the  duty  of  the  defendant, 
when  the  fixtures  were  received  and  the  discovery  made  that 
they  were  not  what  he  purchased  ?  It  was  clearly  his  duty,  either 
to  refuse  to  receive  the  goods  ;  or,  having  opened  them  before 
the  mistake  or  fraud  was  discovered,  to  return  them  or  offer  to 
return  them  immediately.  Instead  of  doing  this,  the  defend- 
ant unpacked  the  fixtures,  set  them  up  in  his  place  of  business 
and  used  them  continuously  paying  numerous  instalments  under 
the  lease,  apparently  without  objection,  until  the  writ  of  replev- 
in, which  is  the  foundation  of  this  suit,  was  issued  by  the  plain- 
tiff. The  defendant  seeks  to  avoid  the  discharge  of  this  plain, 
legal  duty  by  saying  that  he  gave  notice  to  the  plaintiff's  agent, 
his  friend  and  witness,  Gray ;  but  there  is  nothing  in  the  case, 
except  the  defendant's  own  allegation,  that  Gray  was  in  any 
sense  the  agent  of  the  plaintiff,  and  his  testimony  on  the  sub- 
ject is  very  unsatisfactory  and  indefinite. 

The  court  below  failed  to  give  the  jury  proper  instructions  as 
to  the  duty  of  the  plaintiff  in  regard  to  the  return  or  offer  to 
return  of  the  fixtures,  when  received  by  him,  and  did  not  allude 
Vol.  VI— 23 


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354  ROTHSCHILDS  CO.  v.  McLAUGHLIN. 

Opinion  of  the  Court.  [6  Pa.  Superior  Ct. 

in  any  way  to  the  measure  of  proof  necessary  to  establish  the 
agency  of  Gray.  The  vital  questions  in  the  case  were,  there- 
fore, entirely  overlooked  or  disregarded  by  the  court  in  its 
charge  to  the  jury  and  the  twenty-second  assignment  of  error, 
which  we  have  quoted,  must  be  sustained. 

It  is  scarcely  necessary  to  discuss  in  detail  the  various  assign- 
ments of  error.  Enough  has  been  said  to  indicate  the  general 
principles  which  should  govern  in  submitting  the  case  to  the 
jury.  These  principles  are  fundamental,  and  if  properly  ob- 
served will  doubtless  govern  in  the  admission  of  evidence  as 
well  as  in  the  instructions  to  the  jury. 

The  judgment  is  reversed  and  a  new  venire  awarded. 


F.  A.  North  &  Co.,  Appellants,  v.  Mrs.  E.  M.  Yorke. 

Practice,  C.  P. — Sufficiency  of  affidavit  of  defense — Conditional  sale. 

Under  a  contract,  in  form  a  bailment,  but,  as  between  the  parties  at 
least,  a  conditional  sale,  an  affidavit  is  sufficient  which,  admitting  a  de- 
fault in  the  payment  of  instalments  of  purchase  money  due  under  the  con- 
tract, aven*ed  a  surrender  of  the  chattel  in  controversy,  that  it  was  at  tlie 
lime  of  such  return  worth  more  than  the  balance  due  by  defendant  thereon, 
and  finally  that  the  vendor  plaintiff  accepted  the  organ  in  full  settlement 
and  satisfaction  of  any  claims  against  the  affiant. 

Argued  Dec.  7,  1897.  Appeal,  No.  55,  Oct.  T.,  1897,  by 
plaintiffs,  from  judgment  of  C.  P.  Montgomery  Co.,  Dec.  T., 
1894,  No.  102,  refusing  judgment  for  want  of  a  suflScient  affi- 
davit of  defense.  Before  Rice,  P.  J.,  Wickham,  Beaveb, 
Reeder,  Orlady,  Smith  and  Porter,  JJ.    Affirmed. 

Assumpsit  for  goods  sold  and  delivered.   Before  SWARTZ,  P.  J. 

The  plaintiffs,  by  a  written  agreement  in  the  form  of  a  lease, 
sold  to  defendant  a  symphony  organ  and  from  time  to  time  sold 
to  the  defendant  certain  rolls  of  music  for  use  in  said  organ. 
The  defendant  having  become  in  arrears  and  the  terms  of  the 
alleged  lease  having  fully  expired,  plaintiffs  demanded  a  settle- 
ment of  the  arrearages  of  the  alleged  rental,  which  defendant 
could  not  make.     During  the  pendency  of  negotiations  the  or- 


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NORTH  &  CO.  V,  YORKE.  355 

1898.]  Statement  of  Facts— Assignment  of  Errors. 

gan  and  music  were  returned,  and  the  plaintiffs  brought  suit  to 
recover  the  alleged  arrearages  of  rental. 

Defendant  filed  an  affidavit  of  defense  as  follows : 

E.  M.  Yorke,  defendant  above  named,  being  duly  sworn  ac- 
cording to  law,  deposes  and  saith : 

That  she  has  a  full  and  complete  defense  against  the  whole 
of  the  claim  on  which  suit  has  been  brought  against  her  in  the 
above  case,  of  the  following  nature,  to  wit : 

That  on  or  about  March  31,  1891,  said  plaintiffs  sold  to  her 
the  certain  organ  refened  to  in  plaintiffs'  claim,  conditionally 
upon  her  payment  therefor  of  the  sum  of  four  hundred  and 
seventy-five  dollars  ($475),  in  monthly  instalments  on  said 
organ. 

That  said  defendant  paid  between  the  Ist  day  of  May,  and 
the  28th  day  of  January,  1893,  on  account  of  said  monthly 
instalments  the  sum  of  one  hundred  and  seventy-five  dollars 
(♦175)  on  said  organ,  and  finding  herself  unable  to  pay  the  bal- 
ance of  said  purchase  money,  surrendered  and  delivered  said 
organ  to  said  plaintiffs  on  or  about  July  31, 1893,  and  plaintiffs 
accepted  the  same ;  and  the  said  defendant  is  advised  that  by 
said  acceptance  she  was  forthwith  released  from  further  liability 
on  said  contract  of  purchase. 

And  the  said  defendant  further  saith  that  at  the  time  of  the 
return  to  the  said  plaintiffs  of  said  organ,  the  same  was  worth 
more  money  than  the  balance  of  the  contract  price  for  the  pur- 
chase of  the  same  after  deducting  therefrom  the  payments  made 
by  her,  and  that  she  verily  believes  and  expects  to  be  able  to 
prove  that  said  plaintiffs  accepted  said  organ  in  full  settlement 
and  satisfaction  of  any  claim  they  might  have  against  her,  by 
reason  of  her  contract  of  purchase  with  them. 

All  of  which  facts  defendant  believes  to  be  true  and  expects 
to  be  able  to  prove  on  trial  of  above  case. 

A  former  branch  of  this  case  was  reported  in  174  Pa.  349. 

The  court  below  discharged  the  rule  for  judgment  for  want 
of  a  sufficient  affidavit  of  defense.    Plaintiffs  appealed. 

Errors  assigned  among  othera  were  (1,  2)  In  discharging 
plaintiffs*  rule  for  judgment  for  want  of  a  sufficient  affidavit  of 
defense,  and  not  making  the  same  absolute.  (3)  In  holding  as 
follows :  "  The  contract  was  in  reality  a  conditional  sale,  but 


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856  NORTH  &  CO.  v.  YORKE. 

Assignment  of  Errors — Arguments.  [G  Pa.  Superior  Ct. 

the  law  allows  these  contracts  to  be  clothed  in  the  di'ess  of  bail- 
ments, and  sustains  them  as  such  in  the  interest  of  both  the 
vendor  and  vendee."  (4)  In  holding  that  "the  penalty  for 
nonpayment  is  a  redelivery  of  the  organ  to  the  vendor,  and  the 
repossession  is  a  discharge  of  the  penalty.  The  vendor  could 
have  proceeded  against  the  defendant  for  the  overdue  instal- 
ments ;  he  saw  fit,  however,  to  take  the  other  remedy ;  either 
was  complete  in  itself,  and  the  plaintiffs  in  default  could  collect 
the  money  or  retake  the  organ.  The  two  remedies  were  not 
cumulative ;  they  could  not  adopt  both  unless  it  was  plainly 
expressed  in  the  contract,  or  a  necessary  implication  from  its 
terms."  (5)  In  holding  that  *'  at  the  end  of  the  term,  if  the 
payments  were  made,  the  organ  was  the  property  of  the  defend- 
ant, without  the  further  payment  of  a  penny."  (6)  In  holding 
that  "  taking  back  the  organ  in  default  of  payments  was  a  I'e- 
scission  of  the  contract,  and  an  end  of  any  personal  obligation 
on  the  part  of  the  lessee."  (7)  In  holding  that  "  the  defend- 
ant says  she  returned  tlie  organ  because  she  was  unable  to  make 
the  payments.  This  was  a  privilege  as  well  as  a  duty  under 
her  contract.  In  default  of  any  monthly  payment  the  said  les- 
see agrees  to  redeliver  said  organ  to  the  party  of  the  first  part. 
Even  if  this  provision  was  made  for  the  protection  of  the  lessors, 
and  they  alone  could  take  advantage  of  it,  still,  as  they  accepted 
the  organ,  as  alleged  in  the  affidavit,  it  was  a  redelivery  under 
the  terms  of  the  lease,  because  of  default  in  payments." 

Chapman  ^  Chapman^  with  them  Joseph  Fomance^  for  appel- 
lants.— This  affidavit  does  not  set  out  any  agreement  between 
plaintiffs  and  defendant,  either  to  accept  said  organ  as  a  partial 
or  a  total  satisfaction.  It  can  be  presumed  that  there  was  no 
such  agreement,  otherwise  it  would  have  been  set  out,  and  it  is 
therefore  the  more  necessary  for  affiant  to  set  out  the  facts  on 
which  she  bases  her  statement,  that  she  "  verily  believes  "  the 
plaintiffs  accepted  said  surrender  in  full  satisfaction.  Her  aver- 
ment of  acceptance  by  plaintiffs,  without  any  thing  to  show  how, 
when,  or  in  what  manner,  is  a  statement  of  a  legal  conclusion, 
and  insufficient :  Bank  v.  Stadelman,  153  Pa.  634. 

In  holding  that  the  contract  is  in  reality  a  conditional  sale, 
masquerading  under  the  guise  of  a  bailment,  the  learned  court 
below  has  committed  a  serious  eri'or  :  Edwards'  Appeal,  105  Pa. 


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NORTH  &  CO.  V.  YORKE.  857 

1898.]  Arguments— Opinion  of  the  Court. 

108;  Jones  v.  Wands,   1  Pa-   Superior  Ct   269;   Rieker  v. 
Koechling,  4  Pa.  Superior  Ct.  286. 

The  contract  contained  the  essential  feature  of  a  lease  or  con- 
tract of  hiring,  to  wit :  The  provision  for  the  return  of  the  goods : 
Farquhar  v.  McAlevy,  142  Pa.  234. 

Henry  Pleasants^  with  him  Montgomery  Evans  and  George  W. 
Reed^  for  appellee. — Either  remedy  was  complete  in  itself,  and 
the  plaintiffs,  on  default,  could  adopt  either;  but  they  were 
not  cumulative  ;  they  could  not  adopt  both  unless  it  was  plainly 
expressed  in  the  contract,  or  a  necessary  implication  from  its 
terms. 

Similar  rulings  were  previously  made  by  the  Supreme  Court 
in  Campbell  v.  Hickock,  140  Pa.  290,  Scott  v.  Hough,  161 
Pa.  680,  and  Durr  v.  Replogle,  167  Pa.  347. 

Opinion  by  Porter,  J.,  Januarj^  18, 1898 : 

Agreements  of  the  kind  disclosed  in  this  case  usually  come 
before  the  courts  for  interpretation  in  controversies  between  the 
vendor  of  chattels  and  creditors  of  the  vendee.  Here  we  are 
required  to  construe  the  agreement  as  between  the  original  par- 
ties to  it. 

The  form  of  the  contract  is  one  of  hiring  or  bailment,  but  the 
parties  evidently  intended  that  the  event  should  be  an  absolute 
purchase :  Seanor  v.  McLaughlin,  165  Pa.  154.  In  construing 
this  contract  and  in  determining  the  rights  and  liabilities  under 
it,  we  must  look  not  so  much  to  form  as  to  substance  and 
intention.  The  plaintiff  under  the  form  of  a  lease,  in  effect, 
sold  to  the  defendant  an  organ  on  certain  expressed  conditions. 
Payment  was  to  be  made  in  periodic  instalments  covering  a 
specified  period.  These  instalments  were  called  rent,  but  as 
between  the  original  parties  they  were  in  fact  payments  on  ac- 
count of  the  purchase  money.  On  the  failure  to  pay  any  in- 
stalment the  defendant  agreed  to  redeliver  the  chattel  to  the 
plaintiff.  On  a  failure  so  to  deliver  the  plaintiff  had  the  right 
to  reposses  himself  of  the  chattel,  should  he  so  desire.  In  this 
case  the  defendant  fell  into  default  and  did  not  immediately 
redeliver  to  the  plaintiff.  The  plaintiff  did  not  exercise  his 
right  to  take  possession  but  allowed  subsequent  defaults  to 
occur,  and  did  not  at  any  time  during  the  running  of  the  con- 


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358  NORTH  &  CO.  v.  YORKE. 

Opinion  of  tlie  Court.  [6  Pa.  Superior  Ct« 

tract  repossess  himself  of  the  chattel.  The  only  construction 
that  can  reasonably  be  placed  upon  this  course  of  action  is  that 
the  plaintiff  extended  the  time  for  the  payment  of  the  instal- 
ments. 

At  the  expiration  of  the  time  when  all  the  instalments  should 
have  been  paid,  the  plaintiff  was  entitled  to  recover  the  total 
aniount  stipulated  by  the  contract  to  be  paid  with  interest. 
Failing  to  immediately  demand  this,  the  organ  seems  to  have 
remained  with  the  defendant  for  a  considerable  time.  Being 
unable  to  discharge  the  balance  of  her  indebtedness  she  avers 
"  That  she  surrendered  and  delivered  said  organ  to  said  plain- 
tiffs on  or  about  July  31,  1893."  This  was  a  right  as  well  as 
an  obligation  under  the  conditions  of  the  contract. 

The  affidavit  contains  the  further  averment :  "  That  at  the 
time  of  the  return  to  said  plaintiffs  of  said  organ  the  same  was 
worth  more  money  than  the  Imlance  of  the  contract  price."  She 
further  avers  that  "  She  believes  and  expects  to  be  able  to  prove 
that  said  plaintiffs  accepted  said  organ  in  full  settlement  and 
satisfaction  of  any  claims  they  might  have  against  her." 

While  the  affidavit  might  have  been  more  specific  in  detail, 
yet  we  are  satisfied  that  the  averments  are  sufficiently  set  forth 
to  prevent  the  entry  of  judgment,  and  we  do  not  i*egard  it  as 
necessary  at  this  stage  of  the  cause  to  do  more  than  indicate 
our  views  of  the  contract  as  above  expressed. 

The  order  of  the  court  below  discharging  the  rule  for  judg- 
ment is  affirmed. 


City  of  Chester  v.  Mary  McGeoghegan  et  al.,  Appellants. 

Jurisdiction,  J.  P. — Reduction  of  municipal  claim  by  remission  of  the 
penalty. 

A  naunicipality  having  cause  of  action  to  recover  a  municipal  assess- 
ment and  penalty  tliereon,  may  throw  off  the  penally  and  thus  bring  the 
claim  within  the  jurisdiction  of  an  iilderman. 

Municipal  law— Power  to  compromise  claims. 

Municipal  officers  may  compromise  claims  or  remit  them  in  whole  or  in 
part  when  delay  and  expense  may  be  saved  by  so  doing ;  they  are  respon- 
sible at  the  pi^oper  time  and  place  for  so  doing,  but  a  debtor  being  sued  as 
such  is  not  in  position  to  call  thera  to  an  account. 


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CHESTER  V,  McGEOGHEGAN.  359 

1898.]  Statement  of  Facts— Opinion  of  the  Court. 

Argued  Nov.  16, 1897.  Appeal,  No.  20,  Oct.  T.,  1897,  by 
defendants,  from  judgment  of  C.  P.  Delaware  Co.,  Sept.  T., 
1895,  No.  226,  in  favor  of  plaintiff  for  want  of  a  sufficient  affi- 
davit of  defense.  Before  Rice,  P.  J.,  Wickham,  Bea^^r, 
Orlady,  Smith  and  Porter,  JJ.    Affirmed. 

Assumpsit  on  a  claim  for  paving.     Before  Clayton,  P.  J. 

The  facts  sufficiently  appear  in  the  opinion  of  the  court. 

The  court  entered  judgment  for  want  of  a  sufficient  affidavit 
of  defense  for  #298.74,  plaintiff  having  omitted  that  part  of  its 
claim  for  penalty  prescribed  by  the  act  of  assembly.  Defend- 
ants appealed. 

Error  aBngned  was  in  making  absolute  plaintiff's  rule  for 
judgment  for  want  of  a  sufficient  affidavit  of  defense. 

J.  V,  McQeoghegan^  with  him  Charles  A.  Lagen^  for  appel- 
lants.— The  remedy  given  is  not  only  specific,  but  it  is  the  only 
remedy  designated  in  the  act  for  the  adjudication  of  such  claims : 
Campbell  v.  Grooms,  101  Pa.  481. 

In  all  cases  where  a  remedy  is  provided  the  directions  of  the 
act  of  assembly  must  be  strictly  pursued :  Beltzhoover  v.  Gol- 
lings,  101  Pa.  293. 

The  plaintiff  cannot  reduce  part  of  his  claim  and  thereby  give 
the  justice  jurisdiction:  Collins  v.  Collins,  37  Pa.  387 ;  McFar- 
land  V.  O'Neil,  166  Pa.  266. 

A,  A,  Cochran^  for  appellee. — Interest  is  simply  an  incident 
of  debt  overdue  which  a  person  may  claim  or  not  at  his  pleas- 
ure. It  follows  that  he  may  remit  a  penalty  for  the  same  pur- 
pose :  Quigley  v.  Quigley,  10  W.  N.  C.  388 ;  Evans  v.  Hall, 
46  Pa.  236. 

Opinton  by  Wickham,  J.,  January  18, 1898  : 
The  city  of  Chester  had  the  right,  under  the  Act  of  May  23, 
1889,  P.  L.  272,  and  an  ordinance  passed  in  accordance  there- 
with, to  sue  for,  and  recover  from  the  appellants,  a  municipal 
assessment  of  $220.66,  together  with  interest  and  a  penalty  of 
five  per  centum,  amounting  in  all  to  $308.76. 
Instead  of  suing  for  the  latter  sum,  the  city  threw  off  the 


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860  CHESTER  v,  McGEOGHEGAN. 

Opinion  of  the  Court.  [6  Pa.  Superior  Ct. 

penalty,  amounting  to  $11.02,  and  brought  suit  before  an  alder- 
man for  the  debt  and  interest  only,  the  aggregate  of  both  being 
less  than  $300.  The  only  question  before  us  is  whether  the 
plaintiff  could  give  the  alderman  jurisdiction  by  waiving  its 
right  to  the  penalty,  and  thus  bringing  the  claim  below  fSOO, 
the  maximum  amount  for  which  an  action  could  be  brought 
before  the  magistrate. 

We  have  no  hesitation  in  holding  that  this  could  legally  be 
done.  In  Evans  v.  Hall,  45  Pa.  235,  it  was  decided,  that  while 
one  cannot  by  relinquishing  a  part  of  his  debt  give  a  justice  of 
the  peace  jurisdiction,  he  may  accomplish  that  result  by  refrain- 
ing from  claiming  interest,  the  reason  assigned  being  that  the 
interest  is  no  portion  of  the  debt  proper,  but  merely  an  inci- 
dent thereof.  There  is  much  stronger  reason  for  saying  that 
the  penalty,  in  the  present  case,  is  no  more  than  an  incident  of 
the  indebtedness.  Interest,  where  it  can  be  claimed  as  of  right, 
is  now  popularly  regarded  as  an  outgrowth  of  the  debt  and 
therefore  practically  a  part  of  it,  whereas  a  penalty  is  something 
collateral  and  foreign  tacked  on  to  the  principal  thing. 

The  appellants  argue,  however,  that  the  city,  because  it  is  a 
municipality  having  its  powers  and  duties  defined  by  statute, 
cannot  legally  sue  for  less  than  the  principal,  with  the  interest 
and  penalty  attached.  To  this  we  cannot  assent.  The  proper 
municipal  officers  may  compromise  claims,  or  remit  them  in 
whole  or  in  part,  when  delay  and  expense  may  be  saved  by  so 
doing,  being  responsible  at  the  proper  time  and  place  for  any 
breach  of  duty.  The  appellants  are  not  in  court  as  citizens 
defending  the  rights  of  the  city,  but  as  mere  debtors  refusing 
to  pay  a  just  debt,  on  the  sole  ground  that  the  plaintiff  might 
have  sued  for  more.  They  cannot  be  heard  to  object,  in  this 
proceeding,  that  the  city  authorities  have  done  what  any  private 
suitor  might  lawfully  do,  to  secure  a  standing  in  the  alderman's 
court. 

Judgment  affirmed. 


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BELBER  V.  BELBER.  861 

1898.]  Syllabus—Arguments. 


M.  Y.  Belber  v.  M.  Belber.     Appeal  of  Mayer  Alsberg 

etal. 

ExectUio7i— Standing  of  judgment  creditor  to  contest  prior  execution, 
A  judgment  creditor  whose  execution  has  been  issued  on  a  transcript 
from  the  judgment  of  a  magistmte,  has  no  standing  to  resist  the  right  of 
a  prior  execution  creditor  to  take  the  fund  out  of  court  when  an  appeal  has 
been  regularly  taken  in  due  time  from  the  judgment  of  the  magistrate. 

Judgment— Transcript  filed  pending  time  of  appeal^  Practice,  C,  P. 

An  appeal  from  the  judgment  of  a  magistrate  regularly  taken,  ipso  facto, 
destroys  a  judgment  obtained  by  filing  a  transcript  in  the  common  pleas. 
A  plaintiff  cannot  prevent  this  result,  by  humedly  taking  a  transcript  to 
the  prothonolary^s  office,  provided  the  defendant,  within  the  time  allowed 
by  law,  take  and  enter  his  appeal. 

Argued  Oct.  21,  1897.  Appeal,  No.  3,  Oct.  T.,  1897,  by 
Mayer  Alsberg,  from  decree  of  C.  P.  No.  3,  Phila.  Co.,  Sept.  T., 
1896,  No.  747,  discharging  rule  to  show  cause  why  the  sheriff 
should  not  pay  the  funds  into  court  and  for  an  issue.  Before 
Rice,  P.  J.,  Wickham,  Beaver,  Reeder,  Orlady,  and  Por- 
ter, JJ.     AfiBrmed. 

Rule  to  pay  the  fund  arising  from  the  sheriff's  sale  on  sundry 
executions  into  court,  and  for  an  issue  to  determine  the  material 
facts  in  dispute  relating  to  the  distribution  of  said  fund. 

The  facts  sufiBciently  appear  in  the  opinion  of  the  court. 

The  court  below  discharged  the  rule.  Junior  execution  cred- 
itors appealed. 

Error  assigned  was  in  discharging  the  rule  for  the  payment 
of  the  fund  arising  from  the  sheriff's  sale  into  court,  and  in  re- 
fusing to  frame  issues  to  determine  the  material  facts  in  dispute 
relating  to  the  distribution  of  the  fund. 

Charles  Hoffman^  for  appellants. — Upon  the  aflSdavit  of  a 
subsequent  lien  creditor  that  prior  judgments  are  without  con- 
sideration and  for  the  purpose  of  hindering,  delaying  and  de- 
frauding creditors,  the  court,  under  the  Acts  of  June  16, 1836, 
P.  L.  755,  and  April  20,  1846,  has  no  discretion  but  to  award 
an  appeal :  Schwartz's  Appeal,  21  W.  N.  C.  246. 


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362  BELBER  i-.  BELBER. 

Arguments — Opinion  of  the  Court.  [6  Pa.  Superior  Ct; 

John  Monaghan^  with  him  David  Phillips^  for  appellee. — A 
transcript  of  the  judgment  of  a  justice  of  the  peace  filed  in  the 
common  pleas,  creates  no  lien  upon  the  defendant's  real  estate, 
if  an  appeal  be  entered  before  the  justice  within  the  time  limited 
by  law:  Hastings  v.  Lolough,  7  Watts,  540 ;  Rubinsky  v.  Pat- 
rick,  2  Dist.  Rep.  695. 

Opinion  by  Wickha^m,  J.,  January  18, 1898  : 

The  appellants  obtained  judgment  before  a  magistrate  against 
Mary  Belber,  on  November  16,  1896,  and  three  days  later  filed 
a  transcript  thereof  in  the  court  of  common  pleas  No.  4,  of  Phil- 
adelphia county,  having  fii-st  issued  an  execution  in  the  magis- 
trate's court,  to  which  there  Wiis  a  return  of  nulla  bona. 

The  Act  of  June  24,  1885,  P.  L.  160,  provides,  "  That  in  all 
cases  where  a  judgment  has  l)een  obtained  before  a  justice  of 
the  peace,  city  recorder,  magistrate  or  alderman,  of  this  common- 
wealth, and  no  appeal  or  certiorari  has  been  taken  to  said  judg- 
ment, and  a  transcript  of  said  judgment  has  been  filed  in  the 
office  of  the  prothonotary  of  the  county  where  said  judgment  is 
obtained,  such  judgment  shall  thereafter  be  and  have  all  the 
force  and  effect  of  a  judgment  originally  obtained  in  the  court 
of  common  pleas  of  said  county."  On  the  day  the  transcript 
was  filed  a  fieri  facias  issued  on  the  judgment  thereby  created, 
and  a  levy  was  made  on  personal  property  of  the  defendant,  sub- 
ject to  the  lien  of  a  prior  fieri  facias  for  $812.35,  issued  from 
common  pleas  No.  3,  in  favor  of  M.  Y.  Belber.  The  sheriff,  a 
day  later,  sold  this  property  on  both  Avrits  and  another  issued 
contemporaneously  with  that  of  the  appellants  in  favor  of  a  third 
creditor,  realizing  $440.  The  appellants,  before  the  return  day 
of  any  of  the  writs,  presented  a  petition  in  common  pleas  No.  3, 
alleging  inter  alia,  that  the  judgment  in  favor  of  M.  Y.  Belber 
was  given  without  consideration,  to  hinder,  delay,  and  defraud 
the  petitioners  and  other  creditors  of  M.  Belber,  and  praying 
that  the  proceeds  of  sale  should  be  ordered  into  court  and  an 
issue  granted.  *  On  this  petition  the  court  granted  a  rule  on  the 
sheriff  and  M.  Y.  Belber  to  show  cause. 

An  appeal,  from  the  judgment  of  the  magistrate  in  favor  of 
the  appellants,  was  taken  by  the  defendant,  M.  Belber,  on  No- 
vember 27, 1896,  and  filed  the  same  day  in  common  pleas  No.  1. 
On  November  28, 1896,  the  rule  to  show  cauee  issued  in  com- 


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BELBER  r.  BELBER.  363 

1898.]  Opinion  of  the  Court. 

mon  pleas  No.  3,  was  discharged.  On  December  3,  1896,  the 
defendant  took  a  rule,  in  common  pleas  No.  4,  to  strite  ofif  the 
appellants'  judgment  entered  on  the  transcript,  which  rule,  after 
hearing,  was  discharged,  for  what  reasons  we  know  not,  nor  need 
we  here  inquire. 

It  will  hardly  be  seriously  contended  that  the  taking  and  fil- 
ing the  appeal  did  not  ipso  facto  annul  the  judgment.  The 
proceedings  on  the  appeal  are  de  novo :  Hastings  v.  Lolough,  7 
W.  540 ;  Felton  v.  Weyman,  10  Pa.  70.  A  plaintiff  cannot  pre- 
vent this  result  by  hurriedly  taking  a  transcript  to  the  prothon- 
otary's  office,  provided  the  defendant,  within  the  time  allowed 
him  by  law,  take  and  enter  his  appeal. 

If,  by  record  evidence,  the  plaintiff  in  the  first  execution 
against  Mary  Belber  was  able  to  show  that  the  appellants'  judg- 
ment liad  ceased  to  exist,  and  this  it  seems  was  done,  the  appel- 
lants had  no  right  to  an  issue,  for  they  had  lost  their  standing 
to  claim,  as  against  the  fii-st  execution  creditor,  any  part  of  the 
fund  which  was  still  in  the  grasp  of  the  law.  As  Justice  Shars- 
WOOD  says,  in  Sheetz  v.  Hanbest's  Executors,  81  Pa.  100,  an 
execution  creditor  engaged  in  a  contest  regarding  the  distri- 
bution of  the  proceeds  of  a  sheriff's  sale  may  displace  another 
creditor's  lien  by  establishing  "  any  matter  of  defense,  arising 
subsequent  to  the  judgment,  which  the  defendant  himself  could 
do  in  an  action  of  debt  or  scire  faciiis  upon  it."  A  scire  facias 
to  revive  may  be  defeated  by  proof  of  a  collateral  agreement 
that  on  the  occurring  of  a  cei-tain  event,  to  take  place  after  the 
entry  of  the  judgment  and  which  has  so  taken  place,  the  judg- 
ment shall  have  no  farther  efficacy :  Hartzell  v.  Reiss,  1  Binn. 
289 ;  Bown  v.  Morange,  108  Pa.  69 ;  or  a  discharge  in  bank- 
ruptcy, where  the  judgment  was  a  provable  debt,  at  the  time  of 
the  adjudication,  may  be  shown  with  like  effect :  Spring  Run 
Coal  Co.  V.  Tosier,  102  Pa.  342.  So  also  release,  accord  and 
satisfaction,  or  payment  may  be  successfully  set  up. 

In  the  present  case  the  appellants'  judgment  died  on  Novem- 
ber 27,  1896,  And  their  right  to  take  out  of  court  any  part  of 
the  proceeds,  realized  from  the  sale  of  the  defendant's  goods, 
could  be  legally  denied  by  any  other  creditor  having  a  lien  on 
the  fund,  the  latter  being  insufficient  to  pay  all  the  claims. 

Decisions  to  the  effect  that  property,  sold  on  execution  under 
a  voidable  judgment^  or  on  a  judgment  appealed  from,  cannot 


Digitized  by  VjOOQ IC 


864  BRLBER  v.  BELBER. 

Opinion  of  the  Court.  [6  Pa.  Superior  Ct. 

be  reclaimed  from  the  purchaser,  rest  on  a  well  known  principle 
not  applicable  here.  Patterson  v.  Peironnet,  7  W.  337,  cited 
for  appellants,  when  analyzed,  does  not  conflict  with  the  views 
on  which  we  decide  the  case  in  hand.  All  that  was  actually 
decided  there  was  that  the  buyer  of  goods  regularly  sold  on 
execution  by  the  constable  before  appeal  taken,  was  entitled  to 
retain  them.  No  question  as  to  the  disposition  of  the  proceeds 
of  sale  between  parties  claiming  as  lien  creditors  arose  or  was 
considered.  The  case  also  differs  from  the  present  one  in  other 
respects. 

We  are  of  the  opinion  that  had  an  issue  been  granted,  M.  Y. 
Belber  might  have  successfully  resisted  the  appellants'  attempt 
to  take  any  part  of  the  fund  out  of  court,  hence  there  was  no 
error  in  refusing  the  petition. 

The  order  discharging  the  rule  to  show  cause  is  aflfirmed,  and 
appellant  directed  to  pay  the  costs. 


Estate  of  George  Fitler,  deceased.  Appeal  of  David 
Fitler,  Administrator  of  the  Estate  of  Samuel  Fitler, 
deceased.  * 

DecedenVs  estaU — In  absence  of  creditors  heirs  may  distribute  among 
themselves. 

The  mere  legal  estate  passes  to  the  administrator  of  a  decedent,  the  equi- 
table descends  upon  the  parties  entitled  to  distribution.  If  there  be  no 
creditors,  the  heii*s  have  a  complete  equity  in  the  property,  and  if  they 
choose,  instead  of  taking  out  letters,  may  distribute  it  by  arrangement 
made  and  executed  amongst  themselves. 

Decedent's  estate^ Distribution  by  family  settlement — Presumption  as  to 
nonexistence  of  creditors. 

George,  a  son,  the  decedent,  owed  his  father,  Samuel,  $2,000,  repre- 
sented by  four  bonds  of  $500.  The  son's  widow  as  administratrix  of  her 
husband  paid  his  four  brothers  $100  each  on  account  of  above  debt  in  an- 
ticipation of  distribution,  and  received  two  bonds,  one  in  consideration  of 
the  payment,  and  one  for  sei*vices  rendered  by  her  individually  to  SamueVs 
wife.  No  letters  were  taken  out  on  the  estate  of  the  father,  until  sixteen 
years  after  his  death  and  long  after  the  above  family  settlement,  when 
one  of  the  sons  administered.  The  account  of  George's  estate  showed  a 
balance  of  $478.51.     The  father's  administrator  recovered  judgment 


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FITLER'S  ESTATE.  865 

1898.]  Syllabus — ^AssignmeDt  of  Errors. 

against  the  administratrix  of  his  brother  George  for  the  $1,000,  and 
sought  to  recorer  the  full  amount  of  the  balance  shown  by  her  as  admihis- 
tratiix  of  George.  Held,  that  the  decree  against  the  administratrix  was 
properly  limited  to  the  amount  shown  to  have  been  in  her  hands,  as  such, 
less  the  $400  paid  in  distribution  under  the  family  settlement  to  the  sons 
surviving  the  father,  or  in  fact  to  $78.51,  and  that  the  lapse  of  sixteen  years, 
with  other  circumstances,  raised  a  presumption  of  the  nonexistence  of 
creditoi*s  of  the  father  Samuel,  which  sustained  the  family  settlement  by 
way  of  informal  distribution. 

Argued  Dec.  7,  1897.  Appeal,  No.  66,  Oct.  T.,  1897,  by 
David  Fitter,  administrator  of  the  estate  of  Samuel  Fitler,  de- 
ceased, from  decree  of  O.  C.  Schuylkill  Co.,  Jan.  T.,  1897,  No.  1, 
in  distribution.  Before  Rice,  P.  J.,  Wickham,  Beaver, 
Keedeb,  Orlady,  Smith  and  Porter,  JJ.    Affirmed. 

Exceptions  to  adjudication.    Before  Dunn,  P.  J. 

It  appears  from  the  record  that  the  question  arose  at  the  audit 
of  the  first  and  final  account  of  Sarah  Fitler,  administratrix  of 
the  estate  of  George  Fitler,  at  which  audit  David  Fitler,  as  the 
administrator  of  the  estate  of  Samuel  Fitler,  claimed  the  balance 
of  $478.51,  shown  by  the  accountant  to  be  in  her  hands.  The 
court,  Dunn,  P.  J.,  allowed  the  accountant  credit  for  $400 
theretofore  paid  to  the  heirs  of  Samuel  Fitler,  deceased,  in  pur- 
suance of  a  family  settlement,  and  awarded  the  balance,  only 
♦76.01,  to  the  administrator  of  Samuel  Fitler. 

Other  facts  appear  in  the  opinion  of  the  court. 

} 

Errors  assigned  among  others  were  (1)  In  dismissing  the 
exception  taken  by  the  appellant  to  the  adjudication,  which  was 
as  follows :  ''  The  court  erred  in  not  regarding  the  judgment 
obtained  by  David  Fitler  against  Sarah  Fitler  as  final  and  con- 
clusive between  the  parties."  (2)  In  permitting  accountant, 
under  objection  from  appellant,  to  submit  evidence  in  support 
of  the  following  offer  of  accountant's  counsel :  Mr.  Gerber :  "  I 
propose  to  prove  by  cross-examination  of  this  witness,  and  by 
such  other  evidence  as  may  be  produced  hereafter,  that  Sarah 
Fitler,  the  administratrix  in  this  estate,  paid  to  the  heirs  of 
Samuel  Fitler,  out  of  the  pei'sonal  funds  in  her  hands,  as  admin- 
istratrix of  the  estate  of  George  Fitler,  deceased,  the  sum  of 
$400 ;  that  that  sum  was  paid  on  account  of  the  distributive 
shares  of  the  four  heirs  of  David  Fitler  (Samuel  Fitler),  and 


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366  FITLER'S  ESTATE. 

Assignment  of  En-ors — Arguments.     [6  Pa.  Superior  Ct. 

tliat  said  sum  was  paid  prior  to  the  recovery  of  judgment  in 
this  suit,  and  on  a  bond  given  by  George  Fitler  to  Samuel  Fit- 
ler,  which  said  bond  was  surrendered  to  the  said  Sarah  Fitler 
at  the  time  that  the  said  $400  was  paid  or  else  an  indorsement 
made  on  it  whatever  it  is.  This  for  the  purpose  of  not  disputr 
ing  the  judgment  in  the  court  of  common  pleas,  but  for  the 
purpose  of  showing  partial  distribution  of  the  fund  in  the  hands 
of  Sarah  Fitler,  the  administratrix  and  accountant,  now  before 
the  court.  It  is  also  further  proposed  to  prove  by  evidence  to 
be  produced  hereafter,  that  tender  of  the  whole  amount  of  the 
mone}^  arising  from  the  personal  pi-operty  of  George  Fitler,  was 
made  to  the  said  heii-s  of  Samuel  Fitler,  and  a  release  requested 
from  them,  and  it  was  refused ;  said  tender  being  made  either 
in  the  fall  of  1890  or  the  fall  of  1891."  (7)  In  dismissing  the 
seventh  exception  taken  by  the  appellant  to  the  adjudication  of 
the  court  below,  which  was  as  follows :  ''  The  estate  of  Samuel 
Fitler,  deceased,  is  not  before  the  court  and  it  is  error  to  deter- 
mine what  the  sons  did  or  did  not  do  at  this  time."  (9)  In 
deciding  as  a  matter  of  law  that  the  WOO  paid  by  the  defend- 
ant to  the  four  sons  of  Samuel  Fitler,  deceased,  should  be  al- 
lowed to  her  in  full,  which  decision  is  as  follows :  "  We  find  as 
a  matter  of  law  that  the  accountant  is  liable  for  the  sum  of 
J5478.51,  less  $400  paid  to  David,  John,  William  and  Franklin 
Fitler.  That  the  balance  of  the  fund  for  which  she  is  liable, 
after  deducting  the  fees  of  the  clerk  of  the  orphans'  court,  must 
be  paid  to  David  Fitler,  admuiistrator  of  Samuel  Fitler,  deceased, 
on  account  of  judgment  March  Term,  1895,  No.  281."  (11)  In 
finding  as  a  fact  that  there  were  no  creditors  of  the  estate  of 
Samuel  Fitler,  which  finding  of  fact  is  as  follows :  "  Creditors 
of  their  deceased  father  (Samuel  Fitler)  could  call  upon  them 
as  executors,  de  son  tort,  but  there  are  no  creditors  of  Samuel 
Fitler  to  complain." 

S.  M,  Enterline^  for  appellant. — A  judgment  having  been 
obtained  in  the  common  pleas  by  the  administrator  of  Samuel 
Fitler  against  the  administratrix  of  George  Fitler,  the  account- 
ant's only  remedy  was  to  apply  to  the  same  court  in  which  judg- 
ment was  entered,  to  open  or  vacate  it,  or  by  writ  of  error  or 
appeal :  Otterson  v.  Middleton,  102  Pa.  78 ;  McClain's  Appeal, 
180  Pa.  231. 


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FITLER'S  ESTATE.  867 

1898.]  Arguments— Opinion  of  the  Court. 

The  learned  judge  below  was  in  error  in  deciding  that  there 
could  be  no  creditors  of  the  estate  of  Samuel  Fitler.  He  evi- 
dently lost  sight  of  the  fact  that  no  letters  of  administration 
were  taken  out  on  this  estate  until  February  18, 1895,  and  that 
the  statute  of  limitations  of  the  creditora  against  the  estate  did 
not  begin  to  run  until  then.  In  fact  there  are  still  remaining 
over  three  years'  time  for  them  to  present  their  claim :  Mars- 
teller  V.  Marsteller,  93  Pa.  350;  Levering  v.  Rittenhouse,  4 
Wharton,  130;  Amoles'  Appeal,  115  Pa.  356;  Riner  v.  Riner, 
166  Pa.  617. 

In  Yorks'  Appeal,  110  Pa.  69,  Judge  Paxson  (reversing  the 
court  below  said)  :  "The  administmtion  of  estates  in  Pennsyl- 
vania is  a  legal,  and  not  an  equitable  system,  resting  as  it  does 
upon  statutes." 

All  assets  of  a  decedent  must  come  to  the  hands  of  his  per- 
sonal representative.  A  payment  of  money  to  any  one  else  is  a 
mispayment.  Eisenbise  v.  Eisenbise,  4  Watts,  134,  is  directly 
in  line. 

Q.  H,  Gerber^  for  appellee. 

Opinion  by  Wickham,  J.,  January  18,  1898 : 
Samuel  Fitler  died  in  1879.  At  the  time  of  his  death,  his 
son  George  owed  him  $2,000,  secured  by  four  bonds  of  $500 
each.  George  died  in  1884  leaving  the  bonds  unpaid.  His 
widow,  Sarah,  took  out  lettera  of  administration  on  his  estate, 
and  in  September,  1887,  filed  her  first  and  final  account  show- 
ing a  balance  nominally  in  her  hands  of  $478.51. 

When  the  usual  proceedings  to  make  formal  distribution  were 
had  in  the  orphans'  court,  the  administratrix  proved  that  she 
had,  by  way  of  anticipation,  paid  to  David,  John,  William,  and 
Franklin  Fitler,  at  their  joint  request,  each  $100,  about  the  year 
1890.  These,  her  husband's  brothers,  were  the  only  persons 
entitled  as  the  heirs  of  Samuel  Fitler,  and  as  there  were  no 
creditors  of  his  estate,  they  might  legally  divide  it  without 
administration.  "  No  doubt  the  personal  estate  of  a  decedent 
vests  in  the  administrator,  but  in  trust  for  creditors  and  heirs 
or  legatees.  The  mere  legal  estate  passes  to  the  administrator, 
the  equitable  descends  upon  the  parties  entitled  to  distribution. 
If  there  be  no  creditors,  the  heirs  have  a  complete  equity  in  the 


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868  FITLER'S  ESTATE. 

Opinion  of  the  Court.  [6  Pa.  Superior  Ct. 

property,  and  if  they  choose,  instead  of  taking  letters  of  admin- 
istration, to  distribute  it  by  arrangement  made  and  executed 
amongst  themselves,  where  is  the  principle  which  forbids  it?" 
Walworth  v.  Abel,  52  Pa.  370  ;  Weaver  v.  Roth,  105  Pa.  408. 

At  the  time  these  payments  were  made,  the  heirs  surrendered 
to  Sarah  one  of  the  bonds,  because  of  the  money  paid  them,  and 
gave  her  another  for  services  rendered  her  husband's  mother 
during  the  last  years  of  her  life.  The  debt  was  thus  reduced 
to  $1,000. 

In  1895,  David  Fitler  took  out  letters  of  administration  on 
the  estate  of  Samuel,  his  father,  and  brought  suit  in  the  com- 
mon pleas  for  the  $1,000  agamst  Sarah  Fitler  and  her  children, 
heirs  of  George,  with  a  view  evidently  to  obtain  a  lien  on 
George's  real  estate.  He  succeeded  only  in  securing  judgment 
against  Sarah  as  administratrix,  having  delayed  too  long  in 
instituting  proceedings  to  i*each  the  land.  This  judgment  was 
presented  in  the  orphans'  court  by  David,  who  claimed  that 
Sarnh  should  be  required  to  pay  thereon  the  whole  amount  of 
the  balance  of  $478.51  shown  by  her  account.  The  learned 
auditing  judge  very  properly,  as  we  think,  held  that  the  $400 
a<lvanced  earlier  should  be  regarded  as  a  partial  distribution, 
and  that  therefore  only  the  sum  of  $78.51  remained  actually 
unpaid.  This  amount,  less  the  clerk's  fee,  was  awarded  to  the 
judgment. 

To  have  sustained  David's  contention  would  have  resulted  in 
compelling  George's  administratrix  to  pay  the  $400  twice  to  the 
heirs  of  Samuel,  and  made  her  liable  for  $878.41  instead  of  the 
true  balance  shown  by  her  account. 

But  it  is  contended,  for  the  appellant,  that  there  was  not  suffi- 
cient evidence  to  justify  the  court  in  holding  that  there  were 
no  creditors  of  Samuel's  estate  to  whom  David  as  administrator 
might  be  liable.  We  think  the  circumstances  amply  warranted 
the  learned  auditing  judge's  conclusion.  Samuel  died  May  29, 
1879,  and  no  letters  of  administration  were  taken  out  on  his 
estate  until  February  18, 1895,  and  it  does  not  appear  that  they 
were  issued  at  the  instance  of  any  creditor.  So  far  as  we  can  see, 
they  were  secured  by  David  merely  to  qualify  himself  to  bring 
suit  against  George's  estate.  It  is  not  likely  that  if  Samuel 
were  indebted,  at  the  time  of  his  decease,  his  creditors  would 
have  permitted  his  estate  to  go  unadministered  for  nearly  six- 


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FITLKR'S  ESTATE.  869 

1898.]  Opinion  of  Uie  Court. 

teen  years.  The  audit  of  Sarah's  account  took  place  on  Feb- 
ruary 8,  1897,  nearly  eighteen  years  after  Samuel's  death.  In 
the  absence  of  any  evidence  or  even  intimation,  at  the  audit, 
that  any  unpaid  debts  existed  against  Samuel's  estate,  the  learned 
auditing  judge,  looking  at  all  the  circumstances,  rightly  assumed 
that  they  constituted  prima  facie  proof  that  there  were  no  such 
debts. 

The  appellant's  position  that  Sarah  purchased  the  two  bonds 
from  the  heirs  is  not  sustainable. 

We  have  carefully  considered  all  the  assignments  of  error,  in 
connection  with  the  argument  of  the  appellant's  counsel,  and 
deem  none  of  them  tenable. 

Decree  affirmed  at  the  cost  of  appellant. 


Commonwealth  of  Pennsylvania  v.  Dr.  W.  F.  Mitchell, 
Appellant. 

Criminal  laio — Refusal  of  new  trial— Adequacy  of  charge. 

The  refusal  to' grant  a  new  tiial  in  a  criminal  case  is  not  en*or  where  on 
the  whole  evidence,  if  believed,  no  reasonable  doubt  is  raised  as  to  the  de- 
fendant's guilt  and  where  the  trial  was  conducted  with  gi'eat  care,  the 
attention  of  the  jury  directed  to  the  measure  of  proof  necessary  and  to  the 
presumption  of  innocence,  and  where  Uie  evidence  was  submitted  in  a  clear 
and  impartial  manner. 

Criminal  law — Evidence  of  letters,  etc,,  indicating  an  expected  meeting. 
Where  the  ciime  of  abortion  is  charged  as  incident  to  the  meeting  of 
two  people,  which  is  admitted  to  have  taken  place,  evidence  is  admissible 
as  tending  to  prove  a  step  in  the  commonwealth's  case  of  the  fact  that  de- 
ceased addressed  and  mailed  a  letter  to  defendant,  and  subsequently  wired 
him  to  meet  her  on  a  certain  train ;  such  evidence  being  admissible  as 
tending  to  prove  thai  these  two  persons  had  been  in  communication  prior 
to  the  subsequent  meeting  on  the  train  designated  in  the  telegram. 

Argued  Oct.  20, 1897.  Appeal,  No.  85,  April  T.,  1898,  by 
defendant,  from  judgment  of  Q.  S.  Somerset  Co.,  Feb.  Sess., 
1897,  No.  14,  on  verdict  of  guilty.  Before  Rice,  P.  J.,  Wick- 
ham,  Beaver,  Rebder,  Orlady,  Smfth  and  Porter,  JJ. 
AflBrmed. 

Vol.  VI— 24 


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870  COMMONWEALTH  v.  MITCHELL. 

Statement  of  Facts — Assignment  of  Erroi-s.    [6  Pa.  Saperior  Ct. 

Indictment  for  procuring  abortion.  Before  Longeneck- 
BR,  P.  J. 

It  appears  from  the  record  and  evidence  that  the  defendant, 
Dr.  W.  F.  Mitchell,  a  practicing  physician  in  Petersburg  where 
he  was  known  among  the  front  ranks  of  his  profession,  was  in- 
dicted on  the  above  charge.  The  commonwealth  produced  evi- 
dence to  show  that  a  letter  and  telegram  addressed  to  defendant 
had  been  sent  by  the  deceased ;  that  subsequently  defendant 
called  on  the  deceased  at  a  hotel  in  Somerset ;  that  deceased 
subsequently  went  to  Pittsburg  where  she  died  in  a  hospital  as 
the  result  of  a  criminal  operation.  Defendant  was  examined  as 
to  what  took  place  at  the  interview  at  the  hotel  and  the  condi- 
tion disclosed  by  his  evidence  appeared  to  be  somewhat  incon- 
sistent with  the  testimonies  of  the  authorities  of  the  hospital. 

Defendant  denied  having  received  either  the  telegi-am  or  the 
letter  offered  in  evidence  or  that  he  had  ever  seen  or  heard  from 
the  deceased  prior  to  having  been  called  in  by  her  in  a  profes- 
sional capacity  at  the  one  interview  at  the  hotel  in  Somerset. 
He  further  denied  performing  any  crimmal  operation. 

Verdict  of  guilty  and  sentence  thereon.     Defendant  appealed. 

Urrors  assigned  were  (1)  In  admitting  evidence  on  the  fol- 
lowing offer  and  objection.  Miss  Lizzie  Thomas,  assistant  in  the 
post  office  at  Scott  Haven,  Pa.,  being  on  the  stand :  "  Mr.  Ruppel : 
Let  us  have  an  offer.  Mr.  Kooser :  Counsel  for  the  common- 
wealth propose  to  prove  by  the  witness  on  the  stand  that  a  few 
dajrs  before  the  30th  of  December,  1896,  near  about  Christmas, 
Miss  Sadie  E.  Beal  handed  to  the  witness  a  letter  addressed  to 
Dr.  Mitchell,  Addison,  Pa. ;  that  that  letter  was  mailed  on  the 
next  mail  going  east,  in  the  direction  of  Addison  from  Scott 
Haven.  This  to  be  followed  by  proof  that  the  defendant  was 
the  only  Dr.  Mitchell  resident  at  Addison  in  December,  1896, 
and  to  be  followed  by  further  proof  that  on  the  30th  of  Decem- 
ber, 1896,  Sadie  E.  Beal  telegraphed  Dr.  Mitchell  to  Confluence, 
Pa.,  in  these  words :  '  Will  be  on  6  instead  of  14,  meet  me,' 
signing  instead  of  her  own  name  '  S.  E.  B.  Andrews.'  Mr. 
Ruppel:  This  is  objected  to  for  the  following  reasons:  1.  It 
is  not  shown  that  the  Dr.  Mitchell  so  addressed  is  the  defend- 
ant, as  there  were  no  initials  on  the  letter.  2.  It  is  not  pro- 
posed to  be  shown  by  proof  on  part  of  the  commonwealth  that 
Dr.  Mitchell,  the  defendant,  received  such  a  letter,     3.  The 


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COMMONWEALTH  r.  MITCHELL.  371 

1898.]  Assignment  of  Errors. 

defendant  denies  having  received  such  a  letter.  4.  The  evi- 
dence is  irrelevant  and  immaterial.  The  Court :  With  regard 
to  the  testimony  embraced  in  the  offer  tending  to  make  out 
a  step  in  the  commonwealth's  case,  the  evidence  is  proper  for 
that  puipose.  We  admit  it  and  note  an  exception  to  the  de- 
fense. The  witness  then  testified  as  follows:  'Q.  Did  you 
know  Sadie  E.  Beal?  A.  Yes,  sir.  Q.  Who  was  with  Mr. 
Madore  in  December  last?  A.  Yes,  sir.  Q.  Do  you  have  any 
distinct  recollection  of  her  handing  you  a  letter  in  the  latter 
part  of  December,  and  if  so,  state  about  when  it  was  and  to 
whom  addressed  and  to  what  point  addressed.  A.  Well,  I 
remember  she  came  there  one  morning  and  handed  me  two 
letters,  one  addressed  to  Dr.  Mitchell,  and  it  was  Somerset 
county ;  I  don't  remember  the  address,  but  think  it  was  Addi- 
son, and  I  sent  it  on  the  2  o'clock  mail."  (2)  In  admitting 
evidence  on  the  following  offer  and  objection:  "Mr.  Kooser: 
We  offer  in  evidence  all  the  exhibits  identified  ....  the  tele- 
graphic message  as  written,  signed  S.  E.  B.  Andrews,  at  Mc- 
Keesport  and  sent  to  Confluence,  and  the  message  received 
at  Confluence,  and  the  entries  on  the  registers  of  the  Hotel 
Vamiear  in  Somerset  and  of  the  Hotel  Federal  in  Allegheny. 
Mr.  Ruppel :  We  object  to  the  telegram  at  McKeesport  written 
by  S.  E.  B.  Andrews,  as  we  got  no  such  telegram.  The  Court : 
These  exhibits  are  admitted.  The  exhibit  marked  'F'  which 
is  objected  to,  is  also  admitted  upon  the  testimony  of  the  two 
operator,  the  one  at  McKeesport  and  the  one  at  Confluence ; 
the  testimony  of  the  one  being  that  she  sent  the  message, 
the  substance  of  the  message,  and  that  of  the  other  being  that 
she  received  it,  and  the  two  messages  being  the  same  in  sub- 
stance and  differing  merely  in  the  initials  of  the  name  attached, 
both  being  signed  *  Andrews.'  We  think  they  are  sufficiently 
identified  as  the  same  message.  Note  an  exception  to  the  de- 
fendant as  to  the  McKeesport  telegram."  (3)  In  charging  the 
jury  as  follows :  *'  It  is  charged  that  the  defendant  met  Sadie  E. 
Beal  on  the  30th  of  December,  by  pre-ari-angement,  for  the  pur- 
pose of  a  criminal  operation,  the  theory  being  that  he  had  been 
previously  advised  by  letter  and  undei'stood  the  purpose  of  the 
meeting ;  that  the  message  of  the  morning  merely  apprised  him 
of  her  coming  by  a  particular  train,  and  that  the  operation  was 
in  fact  performed  in  the  few  moments  he  is  shown  to  have  been  in 


Digitized  by  VjOOQ IC 


872  COMMONWEALTH  r.  MITCHELL. 

Assignment  of  EiTors.  [6  Pa.  Superior  Ct. 

her  room  at  the  hoteL  The  only  evidence  produced  of  any  com- 
munication prior  to  the  message  received  by  him  at  Confluence 
on  that  morning,  related  to  a  letter  which  the  young  lady  acting 
as  assistant  postmistress  at  Scott  Haven  testified  Miss  Beal  had 
mailed  at  her  oflSce  the  latter  part  of  December,  and  which  was 
addressed  to  Dr.  MitcheU,  as  she  thought,  at  Addison,  in  this 
county.  That  letter  she  said  she  sent  on  the  2  o'clock  east 
bound  train  that  afternoon.  With  regard  to  a  letter  thus  mailed 
and  not  shown  to  have  been  received,  the  law  raises  a  mere 
presumption  that  the  peraon  addressed  received  it  through  the 
ordinary  course  of  the  mails.  Against  this  presumption  the 
defendant  positively  testifies  that  he  never  did  receive  it.  If 
you  believe  him  it  takes  out  of  the  case  all  the  significance  at- 
tachdd  to  the  alleged  previous  communication.  If  not,  it  might 
be  a  potent  circumstance  in  construing  the  conduct  of  the 
parties  on  the  meeting  upon  the  tmin  after  the  message  from 
McKeesport.  The  facts  connected  with  the  message  delivered 
to  the  defendant  at  Confluence  have  been  veiy  fully  discussed 
on  both  sides,  so  I  need  not  refer  to  them  more  at  length." 
(4)  In  charging  the  jury  as  follows :  "  After  the  girl  died  in 
the  hospital  and  it  was  manifest  an  abortion  was  produced  by 
the  criminal  act  of  some  one,  it  seems  suspicion  was  directed  to 
this  defendant,  and  he,  to  relieve  himself  of  that  suspicion, 
went  to  the  district  attorney's  office  and  related  to  those  present 
his  version  of  the  visit  he  had  made  to  the  unfortunate  woman's 
room.  It  is  ai'ound  this  statement  that  the  most  serious  aspects 
of  the  case  gather.  Just  what  his  statement  of  the  affair  then 
was,  has  become  the  subject  of  serious  conflict  in  the  testimony 
of  those  who  were  present.  Four  of  them  unite  substantially 
in  saying  that  he  stated  his  examination  of  the  woman's  parts 
developed  tlie  fact  that  a  rupture  of  the  sack  containing  the 
foetus  had  already  occurred,  that  the  waters  had  been  draining 
from  it  and  the  discharge  had  in  fact  attained  an  offensive  odor, 
while  the  os,  or  mouth  of  the  womb,  was  already  greatly  dilated, 
as  illustrated  by  the  witnesses.  These  conditions,  you  will 
recall,  are  inconsistent  \idth  those  described  as  found  on  hei 
arrival  at  the  hospital.  It  will  probably  puzzle  you  to  under- 
stand how  a  woman  with  that  degree  of  dilation  of  the  neck  of 
the  womb,  and  nature  struggling  to  expel  tlie  foetus,  could 
travel  the  many  miles  covered  by  Sadie  E.  Beal's  journey  that 


Digitized  by  VjOOQ IC 


COMMONWEALTH  v.  MITCHELL.  373 

1898.]  Assignment  of  EiTors — Opinion  of  Court. 

day.  However,  it  is  only  the  statement  which  Dr.  Mitchell  is 
alleged  to  have  made  that  day  in  which  that  condition  is  de- 
scribed, and  the  controversy  is  between  the  witnesses  as  to  the 
manner  in  which  he  did  describe  it.  On  the  part  of  the  defense 
two  witnesses  were  called  who  were  present  and  they  say  no 
such  dilation  was  exhibited  as  is  stated  by  the  witnesses  of  the 
commonwealth,  but  as  they  illustrated  it  with  their  hands  the 
neck  or  mouth  of  the  womb  was  almost  closed.  And  the  wit- 
nesses are  also  in  conflict  as  to  what  he  said  about  the  condition 
of  the  waters  coming  from  the  woman  and  the  nature  of  the 
discharge.''  (5)  In  refusing  binding  instructions  for  defendant 
(6)  In  the  answer  to  the  third  point  of  defendant,  as  follows : 
"  That  all  evidence  in  this  case  relating  to  the  alleged  mailing 
of  a  letter  by  Sadie  E.  Beal  to  the  defendant  must  be  entirely 
ignored  by  the  juiy  in  the  consideration  and  determination  of 
the  case.  Amwer :  Refused."  (7)  In  overruling  motion  for  a 
new  trial. 

W,  ff.  Ruppel  and  W.  H.  Koontz^  with  them  J.  H.  Uhl  and 
John  B.  Seott^  for  appellant. — The  prima  facie  proof  that  depos- 
iting at  defendant's  office  a  properly  addressed,  prepaid  letter, 
raises  a  presumption  that  it  reached  its  destination  in  due  course 
of  mail,  may  be  rebutted  by  showing  that  it  was  not  received. 
In  all  the  cases,  however,  that  have  been  ruled  by  the  Supreme 
Court  in  this  state,  the  oflfer  to  prove  the  contents  of  the  letter, 
accompanied  the  offer  to  prove  the  mailing  of  it:  Ins.  Co.  v. 
Toy  Co.,  97  Pa.  424 ;  Jansen  v.  McCovkell,  164  Pa.  323. 

In  the  case  now  before  the  court,  it  was  not  proposed  to  show 
the  contents  of  the  letter,  nor  that  it  was  received  by  the  defend- 
ant, and  the  evidence  in  the  case  failed  to  show  any  previous 
acquaintance  between  Miss  Beal  and  the  defendant,  and  there 
was  not  a  particle  of  evidence  as  to  the  contents  of  the  letter. 
The  evidence,  however,  went  to  the  jury,  from  which  they  were 
led  to  infer  that  the  contents  of  the  letter  were  that  the  defend- 
ant should  perform  a  criminal  operation  upon  her. 

No  argument  offered  or  paper-book  submitted  for  appellee. 

Opinion  by  Orlady,  J.,  January  18, 1898 : 
The  defendant  was  convicted  on  an  indictment  in  which  the 
crime  of  abortion  was  charged.     Sadie  E.  Beal,  an  unmarried 


Digitized  by  VjOOQ IC 


374  COMMONWEALTH  r.  MITCHELL. 

Opinion  of  the  Court.  [6  Pa.  Superior  Ct. 

woman  whose  residence  was  at  Sand  Patch,  Somerset  county, 
Penna.,  died  in  Allegheny  City  as  the  result  of  a  premature 
birth  which  had  been  induced  by  unnatuml  causes.  When  the 
defendant  learned  through  the  newspapers  that  a  criminal  oper- 
ation had  been  performed  on  her  at  a  hotel  in  Somerset,  he 
went  to  the  district  attorney's  office  and  made  a  statement  that 
he  had  gone  to  the  room  of  Miss  Beal  in  the  Hotel  Vannear, 
and  there  made  an  examination  of  her  person  after  refusing  to 
aid  her  in  procuring  an  abortion. 

The  first  and  second  assignments  of  error  must  be  overruled. 
The  contents  of  the  letter  were  not  offered,  nor  did  the  com- 
monwealth propose  anything  beyond  establishing  the  fact  that 
a  letter  had  been  sent.  That  fact  standing  alone  was  harmless, 
but  taken  in  connection  with  the  telegram,  and  the  subsequent 
meeting  of  the  parties,  it  was  an  item  of  evidence  worthy  of 
consideration.  So  also  was  the  telegram.  The  testimony  of 
the  sending  and  receiving  operator  proved  that  her  message 
had  been  received  by  the  defendant,  and  however  slight  that 
link  in  the  chain  was,  it  was  yet  entitled  to  be  received  in  evi- 
dence with  the  letter  for  the  very  purpose  as  suggested  by  the 
learned  trial  judge, — "as  tending  to  make  out  a  step  in  the 
commonwealth's  case." 

The  contents  of  the  letter  and  the  gene  ml  meaning  of  tlie 
telegram  were  not  material,  but  they  tended  to  prove  that  these 
two  persons  had  been  in  communication  prior  to  their  meeting 
on  the  train,  and  that  this  meeting  was  the  result  of  design  and 
not  of  accident.  Proof  of  any  system  or  means  which  would 
suggest  a  previous  acquaintance  would  be  subject  to  a  like 
objection.  It  was  not  so  much  what  was  written  as  the  fact 
that  the  defendant  did  not  meet  Miss  Beal  on  the  train  as  an 
unexpected  stmnger.  In  the  authorities  cited  by  appellant, 
the  contents  of  the  letter  in  each  case  was  the  important  mat- 
ter, and  they  do  not  apply  under  these  facts. 

The  trial  was  conducted  with  great  care,  and  the  attention 
of  the  jury  was  fairly  directed  to  the  measure  of  proof  neces- 
sary, and  to  the  presumption  of  innocence  to  which  the  defend- 
ant was  entitled,  to  wit :  "Are  there  such  circumstances  proved 
beyond  a  I'easonable  doubt  in  each  instance,  as  to  make  out  the 
separate  elements  necessary  to  prove  that  the  defendant  was 
guilty  of  the  crime  charged?" 


Digitized  by  VjOOQ IC 


COMMONWEALTH  v.  MITCHELL.  375 

1898.]  OpiuKMi  of  the  Court. 

The  evidence  was  submitted  in  a  clear  and  impartial  manner. 
The  high  character  of  the  defendant  and  misstatements  of  the 
dead  girl  were  of  great  weight,  and  whatever  of  doubt  there 
was  when  the  commonwealth  rested,  it  was  removed  by  the 
damaging  admissions  of  the  defendant.  On  the  whole  evidence 
there  was  not  such  doubt  of  guilt  as  to  warrant  a  new  trial  and 
it  was  properly  refused. 

The  judgment  of  the  court  below  is  aflSrmed,  and  it  is  now 
ordered  that  W.  L.  Mitchell  be  remanded  to  the  custody  of  the 
keeper  of  the  county  jail  of  Somerset  county,  there  to  be  con- 
fined according  to  law  for  the  residue  of  the  term  for  which  he 
was  sentenced,  and  which  had  not  expired  on  the  5th  day  of 
August,  1897,  and  that  the  record  be  remitted  to  the  said  court, 
that  this  order  may  be  effectual. 


Albert  P.  Reger,  Appellant,  v.  Manhattan  Brass  Com- 
pany and  William  Wiler. 

Measure  of  damages — Claim  property  bond  in  sheriff'*  s  interpleader. 

The  true  measure  of  damages  in  a  proceeding  on  a  forthcoming  claim 
property  bond,  given  under  sheriff's  interpleader  proceedings,  where,  on 
determination  of  the  issue  against  the  claimant,  the  goods  have  not  been 
returned  and  the  bond  has  thereby  become  forfeited,  is  the  value  of  the 
goods,  with  interest,  from  the  time  the  goods  were  to  be  forthcoming  ac- 
cording to  the  tenor  of  the  bond,  and  not  from  the  date  of  the  bond. 

Argued  Oct.  5,  1897.  Appeal,  No.  12,  Oct.  T.,  1897,  by 
plaintiff,  from  judgment  of  C.  P.  No.  2,  Phila.  Co.,  June  T., 
1891,  No.  903,  for  want  of  a  sufficient  affidavit  of  defense  against 
William  Wiler.  Before  Rice,  P.  J.,  Wickham,  Beaver, 
Reeder,  Oblady,  Smith  and  Porter,  JJ.    Affirmed. 

Sci.  fa.  sur  recognizance.     Before  Pennypacker,  J. 

This  action  is  a  scire  facias  sur  recognizance  given  in  sheriff's 
interpleader  proceedings,  in  which  the  claimant  had  failed  to 
sustain  its  title  to  the  goods  claimed.  To  the  above  scire  facias 
the  defendants,  principal  and  surety,  filed  separate  affidavits  of 
defense.    Plaintiff  thereupon  took  rules  for  judgment  for  want 


Digitized  by  VjOOQ IC 


376  REGER  v.  BRASS  CO. 

Statement  of  Facts — Arguments.    [6  Pa.  Superior  Ct. 

of  sufficient  affidavits  of  defense,  and  the  court,  by  special  order, 
entered  judgment  for  the  plaintiff  for  the  full  value  of  the  goods 
claimed  and  costs,  with  interest  from  the  return  day  of  the  vend, 
ex.,  to  wit:  October  7, 1895.  The  plaintiffs  claimed  judgment, 
however,  for  the  value  of  the  goods,  with  interest  from  the  date 
of  their  taking,  October  23,  1891,  and  for  defendants'  costs  in 
the  interpleader  proceedings,  which  was  refused,  and  from  the 
entry  of  this  judgment  the  plaintiff  has  taken  this  appeal. 

The  court  below  entered  judgment  in  favor  of  the  plaintiff 
for  $1,634.24  with  interest  from  October  7,  1895.  Plaintiff 
appealed,  alleging  that  judgment  should  have  been  entered  in 
the  penal  sum  of  #3,200  to  be  released  on  payment  of  $1,611.74, 
together  with  interest  thereon  from  October  23,  1891,  and 
$22.50  defendants'  costs  in  the  interpleader  proceedings  and 
costs  of  suit. 

Errors  assigned  were  (1)  In  making  the  following  order  for 
judgment,  to  wit:  "And  now,  July  8,  1896,  it  is  ordered  that 
judgment  be  entered  in  favor  of  the  plaintiff  against  the  Man- 
hattan Brass  Company  in  the  sum  of  $1,634.23,  with  interest 
from  October  7, 1895 ;  that  the  plaintiff  have  leave  to  serve  a 
copy  of  the  amended  scire  facias  upon  William  Wiler,  the  other 
defendant,  and  that  the  said  Wiler  have  leave  to  file  a  supple- 
mental affidavit  of  defense  within  one  week  from  the  time  of 
such  service  of  the  copy  of  the  sci.  fa."  (2)  In  making  the 
following  order  for  judgment,  viz :  **  And  now,  October  7, 
1896,  it  is  ordered  that  judgment  be  entered  in  favor  of  the 
plaintiff  against  William  Wiler  in  the  sum  or  $1,634.24,  with 
inT;erest  from  October  7, 1895."  (3)  In  not  entering  judgment 
in  favor  of  the  plaintiff,  and  against  the  defendants,  the  Man- 
hattan Brass  Company  and  William  Wiler,  for  the  sum  of 
$3,200,  to  be  released  on  payment  of  $1,611.74,  together  with 
interest  thereon  from  October  23, 1891,  and  $22.50,  defendants' 
costs  in  the  interpleader  proceedings,  and  costs  of  suit. 

M.  Hampton  Todd,  for  appellant. — The  plaintiffs  are  entitled 
to  compensation,  and  the  only  means  by  which  they  can  obtain 
compensation  is  to  give  them  the  value  of  the  goods  of  which 
they  were  deprived,  with  interest  from  the  date  of  the  unlawful 
claiming:  O'Neill  v.  WUt,  75  Pa.  266. 


Digitized  by  VjOOQ IC 


REGER  V.  BRASS  CO.  377 

1898.]  Arguments — Opinion  of  the  Court. 

The  measure  of  damages  contended  for  here  is  sustained  by 
the  somewhat  analogous  proceedings  in  replevin :  McCabe  v. 
Morehead,  1  W.  &  S.  513. 

In  Mclnroy  v.  Dyer,  47  Pa.  118,  in  an  action  of  trespass  the 
rule  was  laid  down  to  be  "  what  will  make  the  plaintiff  whole  is 
the  same  in  one  form  of  action  as  in  another.  No  distinction 
is  recognized  by  the  courts."  To  the  same  effect  is  Hill  v.  Can- 
field,  56  Pa.  454. 

John  Weaver^  with  him  John  Sparhawk^  Jr.^  for  appellees. — 
Is  the  amount  to  be  recovered  upon  the  bond  the  value  of  the 
goods,  with  interest,  from  the  date  of  the  bond,  or  the  value  of 
the  goods,  with  interest,  from  the  time  the  goods  were  to  be 
forthcoming,  according  to  the  tenor  of  the  bond  ?  Bain  v.  Lyle, 
68  Pa.  60 ;  Byrne  v.  Hayden,  124  Pa.  170  ;  Sedgwick's  Appeal, 
7  W.  &  S.  260 ;  Passavant  v.  Gummy,  32  W.  N.  C.  217 ;  White- 
sides  V.  Bordman,  39  Leg.  Int.  347. 

Opinion  by  Orlady,  J.,  January  18, 1898 : 

The  sole  question  in  controversy  in  this  case  is  concisely 
stated  by  appellant's  counsel.  What  is  the  true  measure  of 
damage  in  a  proceeding  on  a  forthcoming  claim  property  bond, 
given  under  sheriff's  interpleader  proceedings,  where,  on  the 
determination  of  the  issue  against  the  claimant,  the  goods  have 
not  been  returned  and  the  bond  thereby  becomes  forfeited? 
The  plaintiff  claimed  to  recover  the  value  of  the  goods  as  ap- 
praised, *1,611.74,  with  interest  from  the  date  they  were  taken 
from  under  his  execution,  namely  October  23,  1891,  and  the 
defendant's  costs,  $22.50  in  the  interpleader  proceedings.  Judg- 
ment was  entered  for  want  of  a  sufficient  affidavit  of  defense, 
as  contended  for  by  the  plaintiff,  except  that  interest  was  al- 
lowed only  from  the  day  on  which  the  venditioni  exponas  was 
returned,  eloigned,  namely,  October  7,  1895. 

The  amount  in  dispute  being  the  difference  in  interest  on 
the  amount  of  the  judgment  between  the  dates  mentioned. 
The  bond  is  in  the  penal  sum  of  #3,200,  and  the  condition  is 
^Hhat  if  the  goods  so  levied  upon  and  claimed  as  aforesaid, 
shall  be  forthcoming  upon  the  determination  of  the  issue  to 
answer  the  said  writ  of  execution,  if  the  said  issue  shall  be 
determined  in  favor  of  the  said  Albert  P.  Reger  et  al.,  or  if  so 


Digitized  by  VjOOQ IC 


378  REGER  %\  BRASS  CO. 

Opinion  of  the  Court.  [6  Pa.  Superior  Ct. 

many  of  them  shall  be  forthcommg  as  shall  be  determined  not 
to  be  the  property  of  the  said  Manhattan  Brass  Company,  then 
this  obligation  to  be  null  and  void,  otherwise  to  remain  in  full 
force  and  virtue."  The  goods  were  taken  from  under  the  plain- 
tiff's execution,  and  upon  the  filing  of  the  claim  property  bond 
delivered  into  the  possession  of  the  Manhattan  Brass  Company, 
the  claimants.  As  shown  by  the  record,  these  goods  were  not 
forthcoming  to  answer  the  writ  of  venditioni  exponas,  and  the 
sheriff  made  return  of  eloigned  thereto.  Compensation  for 
being  kept  from  what  rightfully  belongs  to  the  plaintiff  is  not 
compensation  for  being  kept  out  of  the  use  of  property,  but  for 
being  kept  out  of  the  use  of  money.  In  cases  of  trover,  re- 
plevin and  trespass,  interest  on  the  value  of  property  unlaw- 
fully taken  or  converted  is  allowed  by  way  of  damages  for  the 
purpose  of  complete  indemnity  of  the  party  injured,  and  it  is 
difficult  to  see  why,  on  the  same  principle,  interest  on  the  value 
of  property  lost  or  destroyed  by  the  wi*ongful  or  negligent  act 
of  another  may  not  be  included  in  the  damages :  Sedgwick  on 
Damages  (8th  ed.),  sec.  316 ;  Mclnroy  v.  Dyer,  47  Pa.  118. 
The  reasons  for  the  decisions  being  that  in  these  instances  there 
is  an  absolute  conversion  of  the  property,  and  the  possession  is 
taken  from  its  former  owner. 

The  judgment  in  this  case  is  intended  to  represent  the  value 
of  the  propei-ty  at  the  time  it  was  subject  to  execution  after  the 
title  to  it  had  been  disposed  of  in  the  interpleader  proceeding. 

A  claim  property  bond  is  security  for  the  damages  which  may 
be  recovered.  Nothing  but  money  can  be  recovered  on  it. 
That  part  of  the  bond  usually  given  by  the  defendant  which 
provides  for  a  return  of  the  property  is  a  nullity.  The  judg- 
ment, if  a  verdict  in  found  for  the  plaintiff',  can  only  be  for 
damages.  The  bond  is  not  simply  that  the  goods  shall  be  forth- 
coming, but  in  order  to  answer  the  execution  of  the  plaintiff — 
the  execution  upon  which  the  levy  is  made — not  an  alias  exe- 
cution with  its  necessary  accompaniment  of  a  new  levy,  but 
that  identical  execution  or  one  following  it  up  and  perfecting 
it  as  a  venditioni  exponas :  Bain  v.  Lyle,  68  Pa.  60. 

On  the  giving  of  the  bond  the  property  is  placed  in  the  cus- 
tody of  the  claimant.  His  custody  is  substituted  for  that  of 
the  sheriff.  The  property  is  not  withdrawn  from  the  custody 
of  the  law.    In  the  hands  of  the  claimant  under  the  bond  for  its 


Digitized  by  VjOOQ  IC 


BEGER  V.  BRASS  CO.  879 

1898.]  Opinion  of  die  Court. 

delivery  to  the  sheriff,  the  property  is  as  free  from  the  reach  of 
other  processes  as  it  would  have  been  in  the  hands  of  the  sher- 
iff:  Hagan  v.  Lucas,  10  Peters,  U.  S.  400;  Lantz  v.  Worth- 
ington,  4  Pa.  153;  Tefft  v.  Sternberg,  5  L.  R.  A.  221  and 
notes ;  Curtis  v.  Ford,  10  L.  R.  A.  529  and  notes ;  Parsons  v. 
Hartman,  30  L.  R.  A.  98  and  notes. 

Had  the  goods  in  this  case  been  held  by  the  sheriff,  the  ap- 
pellant's argument  would  not  contend  for  interest  earlier  than 
October  7,  1895,  and  if  the  claimant's  custody  is  a  mere  substi- 
tute for  that  of  the  law  the  conclusion  reached  is  the  same. 

It  has  been  repeatedly  held  that  the  execution  and  delivery 
of  such  bond  does  not  discharge  the  goods  from  the  lien  of  the 
execution  or  substitute  the  bond  for  the  goods.  It  mei^ely  op- 
erates as  a  transfer  of  the  goods  from  the  custody  of  the  sheriff 
to  that  of  the  claimant,  pending  the  issue  as  to  their  ownership  : 
Bain  v.  Lyle,  supra. 

If  the  condition  of.  the  bond  is  performed,  the  goods  are  sold 
by  the  sheriff,  and  the  proceeds,  less  costs,  applied  to  the  exe- 
cution creditor  entitled  thereto.  On  the  other  hand,  if  the  con- 
dition is  broken,  the  damage  sustained  by  the  creditor  is  the 
sum  that  would  have  been  realized  by  the  sale  of  the  goods,  and 
that  presumptively  is  their  value :  Byrne  v.  Hayden,  124  Pa. 
170.  What  sale  is  here  meant?  Certainly  the  one  on  the  ven- 
ditioni exponas  which  is  under  the  levy  of  the  original  writ. 
The  date  of  that  sale  could  not  have  been  earlier  than  October  7, 
1895,  prior  to  which  time,  under  the  decisions,  the  property  was 
in  the  custody  of  the  law.  The  value  of  the  property  is  not^- 
questioned,  and  the  amount  of  that  part  of  the  judgment  is  ad- 
mittedly correct. 

The  judgment  entered  should  have  been  for  the  penalty  named 
therein  to  be  released  upon  payment  of  the  ascertained  amount 
of  damages  occasioned  by  the  breach  of  the  condition,  as  stated 
in  Byrne  v.  Hayden,  supra,  but  it  is  not  a  reversible  error  as 
this  court  has  full  power  to  enter  judgment  for  the  proper  sum, 
and  in  the  proper  form  to  make  it  conform  to  the  statute :  Car- 
man V.  Noble,  9  Pa.  366,  372 ;  Act  of  June  24, 1895,  P.  L.  212 ; 
Commonwealth  v.  Yeisley,  ante,  p.  273,  decided  at  this  term. 

It  is  not  necessary  to  dispose  of  the  first  assignment  of  error, 
the  second  is  overruled,  and  the  judgment  as  modified  in  form 
is  affirmed. 


Digitized  by  VjOOQ  IC 


880  RKGER  v.  BRASS  CO. 

Opinion  of  the  Couit.  [6  Pa.  Superior  Ct. 

It  is  now  ordered  that  judgment  be  entered  in  favor  of  the 
plaintiff  and  against  the  defendants,  the  Manhattan  Brass  Com- 
pany and  William  Wiler,  for  the  sum  of  J3,200  to  be  released 
upon  payment  of  the  sum  of  tl,611.74  with  interest  from  Octo- 
ber 7, 1895,  and  f  22.50  the  defendant's  costs  in  the  interpleader 
proceeding,  costs  of  suit  and  of  this  appeal. 


Kate  Adam,  wife  of  Abraham  Adam,  in  the  right  of  said 
Kate,  V.  Elizabeth  Moll,  Appellant. 

PracUce,  C.  P. — Amendment  to  statement^  the  cause  of  <zction  being  the 
same. 

Plaintiff  properly  is  allowed  to  amend  his  statement  where  the  founda- 
tion of  the  action  remains  the  same. 

In  the  case  at  bar,  being  trespass  for  wrongful  diyei*sion  of  waters, 
the  amendment  was  properly  allowed ;  the  water  affected  was  the  same ; 
the  means  employed  to  effect  the  diversion  are  set  out  with  more  particu- 
larity in  the  first  than  in  the  second ;  the  fact  of  the  diverting  and  obstinic- 
ing  remained  the  same  in  each ;  the  use  of  tlie  supply  of  water  is  the  same ; 
and  the  alleged  injury  the  same. 

Waters  and  water  courses— Obstruction  and  diversion — Prescription. 

Where  the  obstiniction  of  a  water  course  is  complained  of,  instructions 
to  the  jury  are  proper  to  the  effect  that  if  the  natural  flow  of  a  water  course 
had  remained  as  alleged  for  twenty-one  years  then  the  plaintiff^s  right  to 
the  water  became  absolute.  The  testimony  being  contradictoiy  as  to  the 
responsibility  of  defendant  for  the  alleged  diversion  it  was  properly  left 
to  the  jury,  with  directions  t<»  reconcile  it  if  they  could,  and  if  not  to  deter- 
mine on  which  side  the  truth  lay. 

Argued  Nov.  9,  1897.  Appeal,  No.  162,  Nov.  T.,  1896,  by 
defendant,  from  judgment  of  C.  P.  Berks  Co.,  Sept  T.,  1891, 
No.  54,  on  verdict  for  plaintiff.  Before  Rice,  P.  J.,  Wickham, 
Bbaveb,  Orlady,  Smith  and  Porter,  JJ.    Aflarmed. 

Trespass  for  obstruction  of  water  course.     Before  Ermen- 

TROUT,  p.  J. 

It  appears  from  the  evidence  that  the  defendant  and  the 
plaintiff  owned  property  on  opposite  sides  of  a  public  road. 
The  defendant  alleged  that  plaintiff  diverted  the  water  flowing 


Digitized  by  VjOOQ  IC 


ADAM  r.  MOLL.  881 

1898.]  Statement  of  Facts — Assignment  of  EiTors. 

from  springs  located  on  defendant's  land  so  as  to  change  the 
point  of  discharge  upon  the  land  of  the  plaintiff.  It  was  alleged 
by  the  plaintiff  that  the  water  was  diverted  from  its  natural 
course  by  a  ditch  dug  by  defendant's  son.  The  testimony  was 
conflicting  as  to  what  exactly  was  done  by  the  son  and  also  as 
to  whether  it  was  done  with  knowledge  and  consent  of  defend- 
ant herself. 

Verdict  and  judgment  for  plaintiff  for  fl.OO  and  costs.  De- 
fendant appealed. 

JErrors  assigned  among  others  were  (1)  In  overruling  defend- 
ant's motion  to  strike  out  amended  narr,  as  follows  :  "  Mr.  Ste- 
vens :  Before  the  jury  is  sworn  in  this  case  the  defendant  asks 
the  court  to  strike  out  the  amended  narr."  Errors  were  as- 
signed to  the  charge  of  the  court  commenting  on  the  evidence, 
and  especially,  (5)  In  charging  the  jury  as  follows :  "  There 
was  some  testimony  on  the  part  of  the  plaintiff  that  her  first 
experience  in  not  having  the  use  of  this  water  was  after  Or- 
lando dug  that  ditch,  or,  rather,  five  years  ago.  This  is  the 
language :  *  Q.  Was  the  water  pretty  regular  there  prior  to 
five  years  ago?  A.  Always;  that  is  the  way  it  was  up  to 
five  years  ago ;  there  was  always  water  there.  Q.  How  is  it 
now  ?  A.  Now  it  is  gone  ;  there  is  none  there.'  She  says  the 
ditch  was  dug  about  five  years  ago.  She  says  that  she  went 
to  the  old  lady  and  complained  about  tliis  thing,  and  that 
the  old  lady  declined  to  do  anything  to  give  her  relief.  That 
evidence  is  submitted  to  the  jury  to  find  whether  or  not  the  old 
lady,  the  defendant,  ratified,  approved,  assented  to  the  act  of 
Orlando  in  digging  that  ti-ench.  If  the  jury  find  from  that  evi- 
dence that  the  act  of  Orlando  was  ratified,  approved  and  assented 
to  by  her,  then  she  would  be  responsible,  otherwise  not." 
(7)  Iiji  charging  the  jury  as  follows :  "  I  have  tried  to  make 
myself  understood  in  this  case.  I  have  called  the  attention  of 
the  jury  to  the  important  points  in  the  case.  I  will  sum  them 
up  again.  Did  this  sti'eam  flow  so  that  water  was  delivered 
upon  the  land  of  the  plaintiff?  Did  the  defendant  prevent  that 
water  from  being  delivered  at  the  exact  point  at  which  it  was 
accustomed  to  be  delivered  ?  If  the  defendant  diverted  it,  and 
she  failed  to  deliver  that  water  back  at  that  point,  the  plaintiff 
can  recover ;  otherwise  not.    As  to  the  damages,  $1.00  and  costs 


Digitized  by  VjOOQ IC 


882  ADAM  v,  MOLL. 

Assio^nment  of  EiToi-s— Opinion  of  the  Court.     [6  Pa.  Superior  Ct. 

•will  be  just  as  effective  as  anything  else.     We  always  tell  the 
jury  in  cases  of  this  kind  to  find  simply  nominal  damages." 

Wm,  Kerper  Stevens^  with  him  Ira  P.  Rothermel^  for  appellant. 

John  F.  Smithy  for  appellee. 

Opinion  by  Orlady,  J.,  January  18,  1898 : 

The  plaintiff  and  defendant  are  owners  of  adjoining  properties 
which  are  sepai-ated  by  a  public  road,  and  so  related  by  the  nat- 
ural conformation  of  the  ground  that  the  water  rising  and 
accumulating  on  the  land  of  the  defendant  naturally  flows  across 
the  public  road  onto  the  land  owned  by  the  plaintiff.  This 
action  was  brought  to  recover  damages  alleged  to  be  sustained 
by  the  plaintiff  for  the  wrongful  diversion  of  the  water,  which 
wholly  deprived  her  of  its  use  for  necessary  domestic  and  irri- 
gating purpases.  The  original  statement  was  amended  by  leave 
of  court  under  objection  which  alleged  that  a  new  cause  of  action 
was  thus  introduced.  An  examination  of  the  two  statements 
satisfies  us  that  there  was  no  error  in  permitting  the  amendment, 
as  the  foundation  of  the  action  is  the  same  in  each  ;  the  water 
affected  is  the  same:  the  description  of  the  watercourse  the 
same ;  the  means  employed  to  effect  the  diversion  are  set  out 
with  more  particularity  in  the  fii-st  than  in  the  second ;  the  fact 
of  obstructing  and  diverting  is  unchanged ;  the  use  of  the  sup- 
ply of  water  the  same ;  and  the  alleged  injury  the  same.  The 
first  assignment  of  en'or  is  not  susttiined. 

The  point  submitted  by  the  plaintiff  embraced  the  material 
facts  urged  by  the  plaintiff,  "  If  the  juiy  find  from  the  evidence 
that  the  stream  of  water  in  contention  in  this  suit,  flowed  over 
the  lands  of  the  defendant  in  a  defined  ditch  or  channel  along 
the  ledge  of  the  hill  in  the  defendant's  meadow  onto  the  pub- 
lic highway  and  thence  across  the  public  highway  and  onto  the 
plaintiff's  land  for  a  period  of  twenty-one  years  and  upwards 
prior  to  March,  1891,  then  the  plaintiff's  right  to  have  the  water 
discharged  at  this  point  became  absolute  "  and  warranted  affirm- 
ance by  the  court.  The  disputed  question  of  fact  was  limited 
to  one  item, — was  the  defendant  responsible  for  the  diversion 
of  the  water  ?  The  jury  was  told  "'  The  testimony  upon  that 
point  is  somewhat  contradictory,  it  is  for  the  jury  to  reconcile 


Digitized  by  VjOOQ IC 


ADAM  V.  MOLL.  883 

1898.]  Opinion  of  the  Court. 

all  the  facts,  it  is  for  the  court  to  say  what  the  law  is,  not  to 
pass  upon  the  facts.  You  will  look  at  every  bit  of  evidence  in 
the  case  and  reconcile  it  if  you  can.  If  you  cannot  reconcile  it, 
then  you  must  make  up  your  minds  which  is  to  be  believed  and 
act  accordingly.  Now,  what  is  the  alleged  diversion?  The 
alleged  diversion  is  that  a  ditch  was  dug  connecting  the  stream 
in  such  a  manner  as  to  change  its  course  and  take  it  down  to  a 
certain  stone  culvert  through  which  it  was  discharged  onto  the 
land  of  the  plaintiff.  Who  created  that  diversion  if  such  was 
created  ?  If  the  jury  find  from  the  evidence  that  the  act  of  the 
son  was  ratified,  approved  and  assented  to  by  her  then  she  would 
be  responsible ;  otherwise  not." 

The  facts  were  left  entirely  to  the  jury  and  the  citation  from 
the  testimony  of  the  defendant's  witnesses  was  fairly  made  by 
the  court.  We  fail  to  find  anything  in  this  record  suflScient  to 
warrant  a  reversal.  The  assignments  of  error  are  overruled  and 
the  judgment  is  affirmed. 


Moncure  Robinson,  Jr.,  and  Lydia  M.  B.  Robinson,  Ap- 
pellants, V.  The  Pennsylvania  Railroad  Company. 

Bailroads — Eminent  domain — Practice — Bes  judiccUa — Construction  of 
charter. 

The  universal  practice  upon  well  settled  law,  under  mode  pointed  out 
by  the  supplement  to  charter  of  the  Pennsylvania  Railroad  Company,  has 
been  to  assess  all  the  damages  done,  or  likely  to  be  done,  to  the  premises 
through  which  a  railroad  passes,  including  materials  t;iken  from  adjoining 
land,  and  at  a  different  time,  although  the  bond,  for  appropriation  of  the 
strip  for  right  of  way,  and  the  petition  in  the  proceedings,  set  forth  and 
are  for  damages  for  right  of  way  only,  and  not  for  damages  for  materials 
so  taken  from  adjoining  lands. 

Under  said  supplement,  a  difTerent  cause  of  action  does  not  exist  for 
materials  so  taken,  and  a  petition  for  the  appointment  of  a  jury  to  assess 
such  damages  will,  on  motion,  be  stricken  off,  as  res  judicata. 

Argued  Nov.  15, 1897.  Appeal,  No.  160,  Nov.  T.,  1896,  by 
plaintiffs,  from  order  of  C.  P.  Chester  Co.,  Miscel.  No.  1905, 
dismissing  petition  for  appointment  of  a  jury  of  view.  Before 
Rice,  P.  J.,  Wickham,  Beaver,  Orlady,  Smith  and  Poe- 
TEB,  J  J.    Affirmed. 


Digitized  by  VjOOQ IC 


384  ROBINSON  r.  PKNNA.  R.  CO. 

Statement  of  Facts.  [6  Pa.  Superior  Ct. 

Petition  for  jury  of  view  to  assess  damages  for  materials  al- 
leged to  be  due  by  the  Pennsylvania  Railroad  Company.  Before 
Waddell,  p.  J. 

It  appears  from  the  record  that  plaintiffs'  petition  filed  July  6, 
1896,  was  as  follows : 

The  petition  of  Moncure  Robinson  and  Lydia  M.  B.  Robin- 
son respectfully  represents : 

*'That  the  Pennsylvania  Railroad  Company,  a  corporation 
duly  incorporated  and  existing  under  the  laws  of  the  Common- 
wealth of  Pennsylvania,  heretofoi*e  surveyed,  laid  out,  and  con- 
structed a  branch  line  of  railroad  through  and  upon  the  lands 
of  your  petitioners,  in  the  township  of  Tredjrffrin,  in  said  county, 
and  in  so  doing  said  company  took,  used  and  occupied  a  strip  of 
land  containing  about  7^o^  acres,  more  or  less,  which  strip  of 
land  is  particularly  described  by  metes  and  bounds  in  a  certain 
petition  filed  by  said  company  in  this  court  on  March  26,  1895, 
wherein  said  company  requested  the  appointment  of  five  per- 
sons as  viewers  to  assess  the  damages  done  to  the  petitioners  by 
i-ejison  of  the  entering  upon  and  occupation  of  said  strip  of  land. 

"  That  said  company,  in  the  construction  of  said  branch  line, 
entered  upon  the  land  of  the  petitioners  adjoining  and  in  the 
neighborhood  of  the  strip  above  referred  to,  and  quarried,  dug, 
cut,  took  and  carried  away  therefrom  large  quantities  of  stone, 
gravel,  clay,  sand,  earth  and  other  suitable  materials  necessary 
and  proper  for  the  construction  and  maintenance  of  said  line. 

"  That  your  petitioners  and  the  said  company  have  endeav- 
ored to  agree,  but  cannot  agree,  upon  the  compensation  to  be 
paid  for  the  damage  done  in  consequence  of  the  quanying,  dig- 
ging, cutting,  taking  and  carrying  away  of  the  materials  afore- 
said. 

"  Wherefore,  your  petitioners  pray  the  court  to  appoint  as 
viewers  five  disinterested  persons,  and  fix  a  time  not  less  than 
twenty  or  more  than  thirty  days  thereafter,  for  said  viewers  to 
meet  upon  said  premises,  and  to  order  and  direct  that  said  view- 
ers, having  been  first  duly  sworn  or  affirmed  by  some  power 
competent  to  administer  oaths,  faithfully,  justly  and  impartially 
to  decide  and  true  report  to  make  concerning  all  the  matters 
and  things  to  be  submitted  to  them,  and  in  relation  to  which 
they  are  authorized  to  inquire,  and  having  viewed  the  said 
premises,  to  estimate  and  determine  what  damages  have  been 


Digitized  by  VjOOQ IC 


ROBINSON  V.  PENNA.  R.  CO.  885 

1898.]  Statement  of  Facts— Arguments. 

sustained  by  the  petitioners  by  reason  of  the  quarrying,  digging, 
cutting,  using  and  carrying  away  of  the  materials  aforesaid." 

On  July  6,  1896,  on  motion  of  defendant's  counsel  a  rule 
was  granted  on  the  above-named  petitioners  to  show  cause  why 
the  petition  should  not  be  dismissed.  On  September  7, 1896, 
the  railroad  company,  defendant,  filed  its  answer.  On  Octo- 
ber 12, 1896,  the  court  made  the  above  rule  absolute. 

Other  facts  appear  in  the  opinion  of  the  court.  Plaintiffs 
appealed. 

Error  assigned  was  dismissing  the  petition  filed  by  the  appel- 
lants. 

C,  H.  Krumbhaar^  for  appellants. — The  decree  of  the  learned 
court  below  amounts  to  the  sustaining  of  the  demurrer  to  the 
petition  of  the  appellants.  The  record  properly  discloses  no 
more  than  a  petition  by  the  appellants  for  the  appointment  of 
viewers  and  a  rule  to  dismiss  the  same.  If  it  was  proper  for 
the  court  below  to  dismiss  the  petition  of  the  appellants  for 
deficiencies  appearing  on  the  face  thereof,  the  decree  below  was 
right.  Othei-wise  it  was  clearly  wrong.  The  answer  filed  by 
the  appellee,  and  the  testimony  heard  on  the  return  of  the  rule, 
cannot  be  considered  in  this  court,  and  should  not  have  been  in 
the  court  below.  They  are  not,  properly  speaking,  apart  of  the 
record.  They  neither  add  to  nor  take  away  from  the  suflBciency 
of  the  petition  of  the  appellants. 

The  bar  set  up  by  the  appellee  is  an  alleged  former  recovery, 
an  assertion  that  the  damages  claimed  in  this  proceeding  for 
materials  were,  or  ought  to  have  been,  and  therefore,  in  contem- 
plation of  law,  actually  were,  included  in  the  judgment  rendered 
for  original  land  damages.  Even  in  an  affidavit  of  defense  where 
res  adjudicata,  or  former  recovery,  is  set  up  as  a  defense,  the 
former  judgment  must  be  set  forth  in  the  affidavit  of  defense 
ipsissimis  verbis.  So  has  said  the  Supreme  Court  of  Pennsyl- 
vania :  Richards  v.  Bisler,  8  W.  N.  485. 

The  right  to  have  damages  assessed  for  taking  materials  is 
specially  provided  for  in  the  charter  of  the  company.  The  first 
section  of  the  company's  charter  (Act  of  April  18, 1846,  P.  L. 
312),  confers  upon  the  company  three  distinct  powers  as  follows : 
(a)  To  "survey,  ascertain,  locate,  fix,  mark  and  determine" 
Vol.  VI— 25 


Digitized  by  VjOOQ IC 


886  ROBINSON  v.  PENNA.  R.  CO. 

Arguments.  [6  Pa.  Superior  Ct. 

the  route  of  the  road.  (6)  To  *•  lay  down,  erect,  construct  and 
establish  a  railroad"  on  the  route  determined,  (e?)  To  ** enter 
upon  any  lands  adjoining,  or  in  the  neighborhood  of  the  said 
railroad  so  to  be  constructed,  and  to  quarry,  dig,  cut,  take  and 
carry  away  therefrom  any  stone,  gravel,  sand,  earth,  wood,  or 
other  suitable  material  necessary  or  proper  for  the  construction 
of  said  railroad."  The  fourth  section  of  the  Act  of  March  27, 
1848,  P.  L.  278,  which  act  is  a  supplement  to  the  charter 
of  the  company,  also  clearly  indicates  that  tlie  taking  of  ma- 
terials is  a  separate  and  distinct  matter  from  the  taking  of 
the  land  for  the  right  of  way. 

It  is  incumbent  upon  the  jury  to  set  out  in  their  report  the 
quantity,  quality  and  value  of  both  the  land  taken  and  the 
"  materials  "  as  separate  items :  Reitenbaugh  v.  R.  R.  Co.,  21 
Pa.  105 ;  Pa.  R.  R.  v.  Bruner,  55  Pa.  318. 

The  proceeding  for  the  assessment  of  these  damages  was 
begun  by  the  company,  and  the  jury  as  a  matter  of  law  had  no 
authority  to  take  into  consideration  anything  except  what  the 
petition  described. 

The  reason  why  the  report  of  the  jury  should  be  specific  and 
in  the  line  of  the  requirements  of  the  act,  is  stated  in  Zack  v. 
Railroad  Co.,  25  Pa.  394,  in  these  words :  "  It  is  important,  in 
reviewing  a  cause  tried  out  of  the  general  course  of  the  law,  to 
see  what  matters  have  been  inquired  of,  that  it  may  be  known 
that  the  cause  has  been  fully  and  rightly  considered." 

The  same  reasoning  is  applied  in  the  case  of  Phila.  &  Erie  R. 
R.  V.  Cake,  95  Pa.  139. 

But  aside  from  this  position,  which  goes  to  the  merits  of  the 
case,  the  question  raised  by  the  company  cannot  be  considered 
in  this  summar)^  manner. 

The  answer  to  the  present  petition  sets  up,  in  substance,  that 
damages  have  been  paid  for  the  injury  described  in  the  petition 
and  the  verdict  in  the  former  proceeding,  its  payment  and  satis- 
faction of  record  are  stated  as  a  bar  to  the  right  to  have  a  jury 
appointed. 

All  this,  however,  is  matter  of  defense.  It  does  not  justify 
the  court  in  refusing  to  appoint  a  jury.  If  the  company  has 
already  paid  the  damages  now  claimed,  the  jury  of  view  will  so 
determine,  and  the  jury  to  try  the  case  on  appeal  has  like  au- 
thority.   This  question  is  for  them,  not  for  the  court.     A  pre- 


Digitized  by  VjOOQ IC 


ROBINSON  V.  PENNA.  R.  CO.  S87 

1898.]  Argamento. 

cisely  similar  question  has  been  passed  upon  in  Hemer  v.  R.  R. 
Co.,  1  Pa.  C.  C.  43 ;  Updegrove  v.  R.  R.  Co.,  3  Pa.  C.  C.  74; 
Fulmer  v.  R.  R.  Co.,  1  Pa.  C.  C.  46. 

John  J.  Pinkerton^  for  appellee. — In  the  trial  of  this  cause 
before  a  jury  of  the  common  pleas,  under  the  pleadings,  every 
species  of  demand  enters,  because  the  measure  of  damages  is 
the  difference  between  the  mai-ket  value  of  the  land  before  and 
after  the  taking. 

In  estimating  the  damages  to  a  landowner,  caused  by  the 
construction  of  a  railroad,  the  rule  as  to  the  measure  of  dam- 
ages declared  by  Judge  Gibson  in  1821,  has,  ever  since,  been 
recognized  and  followed:  Schuylkill  Navigation  Company  v. 
Thoburn,  7  S.  &  R.  411 ;  Railway  Co.  v.  McCloskey,  110  Pa. 
436. 

The  verdict  of  the  jury  in  tliis  case  was  for  f  24,057.67,  and 
it  is  to  be  presumed  that  every  form  of  damage  entered  into  it  : 
Del.  &  Lack.  Co.  v.  Burson,  61  Pa.  369,  381. 

The  acceptance  by  the  plaintiffs,  of  the  amount  awarded  by 
the  verdict  of  the  jury,  and  satisfaction  of  the  judgment  entered 
thereon,  is  a  bar  to  any  future  recovery  for  damages  sustained 
by  reason  of  tlie  construction  and  maintenance  of  this  railroad : 
Hoffeditz  v.  R.  R.  Co.,  129  Pa.  264. 

The  claim  for  damages  for  materials  taken  in  the  construc- 
tion of  the  railroad  was  embraced  in  the  pleadings  of  the  case 
tried  in  the  common  pleas ;  it  might  have  been  recovered  in 
that  suit,  and,  for  these  reasons,  cannot  be  recovered  in  a  sec- 
ond proceeding:  Hess  v.  Heebie,  6  S.  &  R.  57. 

The  question  will  then  be,  how  far  have  the  jury  in  the  first 
action  tried,  professed  to  pass  on  the  matters  put  in  issue  by 
the  pleadings  ?  It  is  the  duty  of  the  jury  to  find  the  whole 
issue,  and  if  they  fail  in  this,  their  verdict  is  bad. 

The  matter  I  apprehend,  depends  not  on  the  nature  of  the 
demand  as  it  appeared  in  the  evidence,  but  on  the  manner  in 
which  it  was  set  out  in  the  declaration. 

If  a  verdict,  finding  several  issues,  be  produced  in  evidence, 
the  opposite  party  will  not  be  allowed  to  show  that  no  evidence 
was  given  on  one  of  the  issues,  and  that  the  finding  was  in- 
doi'sed  on  the  postea  by  mistake,  the  record  being  conclusive 
that  the  fact  was  as  it  is  therein  stated. 


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888  ROBINSON  v.  PENNA.  R.  CO. 

Arguments.  [6  Pa.  Superior  Ct. 

Whether  the  present  cause  of  action  had  been  inquired  into, 
was  not  the  question,  but  whether  the  cause  of  action  contained 
in  the  declaration  was  the  same  as  that  laid  in  the  second  suit : 
Carvill  v.  Garrigues,  5  Pa.  152. 

C.  H,  Krumbhaar  in  reply. —  The  proceedings  being  statutory 
must  be  strictly  followed :  Fehr  v.  Schyl.  Nav.  Co.,  69  Pa.  161 ; 
Koch  V.  Williamsport  W.  Co.,  65  Pa.  288. 

The  proceedings  being  special,  do  not  come  within  the  ordinary 
power  of  the  judge  as  such,  but  must  be  exercised  by  him  under 
the  statute:  Lewis  v.  St.  Paul  Ry.  Co.,  58  N.  W.  Rep.  580;  5 
So.  Da.  Rep.  148. 

The  proceedings  provided  by  the  charter  meant  a  trial  by 
jury.  A  trial  would  have  given  appellants  an  opportunity  to 
meet  defense  of  former  recovery,  and  not  have  exposed  them 
to  the  danger  of  being  cast  out  of  court  on  ex  parte  affidavit 

The  claim  for  materials  was  not  embraced  in  the  pleadings. 

A  plea  of  "not  guilty"  in  trespass  quare  clausum  fregit 
raises  only  the  issue  declared  in  the  narr.  The  petition,  in  the 
present  instance,  takes  the  place  of  the  narr ;  otherwise,  what 
issue  would  have  been  presented?  What  closie  broken?  The 
close,  of  course,  described  in  the  petition  the  right  of  way  sixty- 
six  feet  in  width.  It  is  the  statement  in  which  the  whole  and 
only  cause  of  action  is  embraced.  Without  it  the  proceedings 
would  have  been  a  hollow  nothingness. 

The  agreement,  in  question,  to  put  the  cause  at  issue,  was 
only  an  agreement  that  the  said  cause  shall  be  deemed  at  issue 
with  like  effect  as  though  a  declaration  in  trespass  quare 
clausum  fregit  had  been  filed  by  the  plaintiffs,  and  a  plea  of 
not  guilty  filed  thereto  by  the  defendant.  The  cause  referred 
to  was,  of  course,  the  cause  of  action  contained  in  the  petition, 
which  was  the  basis  of  the  proceeding  instituted  by  the  appel- 
lees, in  which  they  had  the  unobstructed  right  and  choice  to  set 
forth  only  one  or  as  many  other  causes  of  action  as  fully  and 
completely  as  possibly  could  exist. 

The  judge  cannot  direct,  or  the  jury  inquire  into,  anything 
not  set  forth  in  a  proper  petition,  consequential  damages,  grow- 
ing out  of  the  act  set  forth,  of  course  being  included ;  but  not 
damages  for  or  growing  out  of  an  act  not  set  forth :  Lewis  v. 
St.  Paul  R.  Co.,  58  N.  W.  Rep.  580 ;  5  So.  Da.  Rep.  148. 


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ROBINSON  V.  PENNA.  R.  CO.  889 

1898.]  Arguments — Opinion  of  the  Court. 

Damages  arising  from  the  taking  of  the  property  desciibed 
in  the  bond,  and  subsequently  in  the  petition,  the  sixtynsix  feet 
wide  strip  was  a  question  to  be  inquired  into. 

A  close  examination  of  the  authorities  cited  by  appellee  more 
strongly  establishes  the  contention  of  appellant : 

1.  That  the  bond  fixed  the  date  of  appropriation  of  the  right 
of  way  only. 

2.  That  the  charter  establishes  two  separate  causes  of  action. 

3.  That  nothing  within  the  view  of  this  court  shows  more 
than  one  cause  of  action  to  have  been  declared  upon. 

4.  That  the  taking  of  material  is  a  separate  and  distinct  act 
from  the  appropriation  for  a  right  of  way,  done  at  a  different 
time,  and  requiring  compensation  or  security. 

5.  That  the  plea  of  "not  guilty"  raised  only  the  issue  set 
forth  in  the  petition  filed  March  26, 1895,  i.  e.,  right  of  way. 

6.  That  the  damages  for  taking  of  said  material  could  not  be 
included  in  consequential  damages  resulting  from  the  taking  of 
the  strip  of  land  for  right  of  way. 

There  is  no  record  before  this  court,  or  in  fact  before  the 
lower  court,  in  any  of  the  proceedings  heretofore  had,  which 
will  show  that  the  materials  have  ever  been  included  in  any 
issue,  or  paid  for,  or  security  given  therefor ;  but,  on  the  con- 
trary, could  they  be  examined,  they  would  show  that  materials 
had  been  expressly  excluded. 

Hess  V.  Heebie,  6  S.  &  R.  57,  only  confirms  appellants'  right 
to  offer  parol  testimony  to  explain  record  under  the  circum- 
stances of  the  present  case,  and  to  disprove  former  recovery.  It 
differs  from  the  present  case  in  that  plaintiff  there  counted  in 
solido,  here  appellants  have  not  merged  their  two  causes  of  ac- 
tion. 

The  railroad  company  had  not  done  all  incumbent  on  it 
under  charter  (i.  e.,  entered  bond  or  condemned  the  materials 
taken),  to  place  it  in  position  to  invoke  proceedings  thereunder, 
— consequently  could  not  have  raised  the  issue.  Hess  v.  Heebie 
explained ;  Carmony  v.  Hoober,  5  Pa.  307. 

Opinion  by  Beaver,  J.,  January  18, 1898 : 

The  appellants,  in  July,  1896,  presented  to  the  court  of  com- 
mon pleas  of  Chester  county  a  petition  setting  forth  that  *'  The 
Pennsylvania  Railroad  heretofore  surveyed,  laid  out  and  con- 


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390  ROBINSON  r.  PENNA.  R.  CO. 

Opinion  of  the  Court.  [6  Pa.  Superior  Ct 

stracted  a  branch  line  of  railroad  thi'ough  and  upon  the  lands 
of  your  petitioners  in  the  township  of  Tredyffrin,  in  said  county, 
and  in  so  doing  said  company  took,  used  and  occupied  a  strip 
of  land  containing  about  7  yW\f  acres,  more  or  less,  which  strip 
of  land  is  particularly  described  by  metes  and  bounds  in  a  cer- 
tain petition  filed  by  said  company  in  this  court  on  March  26, 
1895,  wherein  said  company  requested  the  appointment  of  five 
pei-sons  as  viewers  to  assess  the  damages  done  to  the  petitioners 
by  reason  of  the  entering  upon  and  occupation  of  said  strip  of 
land."  It  was  further  alleged  in  said  petition:  "That  said 
company,  in  the  construction  of  said  branch  line,  entered 
upon  the  land  of  the  petitioners  adjoining  and  in  the  neigh- 
borhood of  the  strip  above  referred  to,  and  quarried,  dug, 
took  and  carried  away  therefrom  large  quantities  of  stone, 
gravel,  clay,  sand,  earth  and  other  suitable  materials  necessary 
and  proper  for  the  construction  and  maintenance  of  said  liiie," 
and  asking  that  the  court  appoint  viewers  "  to  estimate  and 
determine  what  damages  have  been  sustained  by  petitioners,  by 
reason  of  the  quarrying,  digging,  cutting,  using  and  carrying 
away  of  the  materials  aforesaid."  The  reference  in  the  petition 
to  the  former  petition  presented  by  the  railroad  company  for 
viewers  naturally  attracted  the  attention  of  the  court  to  which 
the  petition  was  presented,  an  inspection  of  which  discloses  the 
fact  that  "The  said  railroad  company,  in  pursuance  of  the 
authority  vested  in  them  by  the  act  incorporating  the  said  com- 
pany and  by  any  and  all  acts  of  the  General  Assembly  of  the 
Commonwealth  of  Pennsylvania  enabling  them,  desired  to  enter 
upon  and  occupy  for  the  purpose  of  constructing  thereon  the 
said  branch  railroad,  wnth  the  necessary  slopes,  embankments, 
bridges,  turnouts,  sidings,  depots  or  stations,  warehouses,  offi- 
ces, engine  and  water  stations  or  other  buildings  or  appurte- 
nances, which  may  be  necessary  or  convenient  for  the  same,  the 
following  described  piece  or  parcel  of  land,  to  wit:"  (after 
which  follows  a  description  by  metes  and  bounds  of  the  land  to 
be  entered  upon,  containing  seven  and  ^oW  acres,  more  or  less), 
and  praying  the  court  to  appoint  viewers  "  faithfully,  justly  and 
impartially  to  decide  and  true  report  to  make  concerning  all  the 
matters  and  things  to  be  submitted  to  them,  and  in  relation  to 
which  they  are  authorized  to  inquire  and,  having  viewed  the 
said  premises,  to  estimate  and  determine  the  quantity,  quality 


Digitized  by  VjOOQ IC 


ROBINSON  V,  PENNA.  R.  CO.  891 

1898.]  Opinion  of  the  Court. 

and  value  of  the  said  land  so  taken  or  occupied,  and  what  amount 
of  damages  have  been  sustained  or  may  be  sustained  and  to 
whom  payable." 

Viewers  were  appointed,  in  pursuance  of  the  said  petition, 
four  of  whom  on  the  11th  day  of  June,  1895,  made  a  report 
filed  in  the  court  below  September  7,  1896,  in  which  they  esti- 
mated the  value  of  the  land  taken,  as  the  same  appears  by  the 
plot  or  draft  of  the  route  of  said  railroad  thereto  attached,  at 
the  sum  of  $5,133,  and  the  damages  done  to  the  property  at  the 
sum  of  $9,867. 

An  appeal  from  the  award  of  viewers  thus  made  was  taken 
by  the  appellants  and,  upon  the  trial  of  that  appeal  in  the  court 
below,  in  which  it  was  agreed  "  that  the  foregoing  cause  shall 
be  deemed  at  issue  with  like  effect  as  though  a  declaration  in 
trespass  quare  clausum  fregit  had  been  filed  by  the  plaintiff  and 
a  plea  of  not  guilty  filed  thereto  by  the  defendant,"  a  verdict 
was  rendered  by  the  jury  in  favor  of  the  plaintiffs,  the  appel- 
lants in  this  case,  and  against  the  defendant,  the  appellee,  for 
the  sum  of  $24,057.67,  damages,  and  six  cents  costs,  which 
judgment  was  satisfied  by  the  plaintiffs'  attorney  April  27, 
1896.  All  these  facts  appear  as  matters  of  record  in  the  pro- 
ceedings arising  under  the  petition  filed  by  the  defendant,  as 
alluded  to  by  the  appellants  in  their  petition  for  the  appoint- 
ment of  viewers,  and  were  fully  set  out  in  an  answer  to  the 
petition  made  by  the  railroad  company,  duly  sworn  to,  in  re- 
sponse to  a  rule  granted  by  the  court  upon  the  petitioners  to 
show  cause  why  the  petition  should  not  be  dismissed.  Testi- 
mony was  also  taken  upon  that  rule,  at  the  taking  of  wliich  the 
appellants  were  represented  by  counsel,  to  show  that  in  March, 
1895  (the  date  at  which  the  original  petition  of  the  railroad 
company  had  been  presented),  "  all  the  dirt  had  been  taken  and 
materials  used  and  everything  needed  in  the  construction  of  the 
road."  The  question  was,  therefore,  fully  and  fairly  raised  as 
to  whether  or  not  the  petitioners  had  a  right  to  the  appoint- 
ment of  viewers  to  assess  damages  for  taking  dirt  and  other 
materials  used  in  the  construction  of  the  railroad  passing  through 
their  property  outside  the  limit  of  the  right  of  way,  after  having 
recovered  a  verdict  for  damages  under  the  proceedings  had  in 
pursuance  of  the  petition  presented  by  the  railroad  company  in 
March,  1895. 


Digitized  by  VjOOQ IC 


392  ROBIiSSON  v.  PENNA.  R.  CO. 

Opinion  of  the  Court.  [6  Pa.  Superior  Ct. 

It  would  seem,  from  the  report  of  Robinson  v.  Railroad,  161 
Pa.  661,  that  the  railroad  company  had  originally  entered  upon 
and  taken  a  strip  of  land  through  the  appellants'  property  one 
hundred  and  forty  feet  in  width  instead  of  the  sixty-six  feet  ex- 
pressly allowed  by  its  charter,  which  is  contained  in  the  Act  of 
13th  of  April,  1846,  P.  L.  312,  as  amended  by  the  Act  of  27th 
of  March,  1848,  P.  L.  273.  In  an  ejectment  brought  by  the 
plaintiffs  against  the  railroad,  they  were  allowed  to  recover  all 
of  the  land  outside  a  strip  sixty-six  feet  wide,  to  which  the  rail- 
road was  limited  for  right  of  way.  The  railroad  was  allowed 
to  amend  its  petition  descriptive  of  the  land  taken  by  it,  so  as  to 
limit  it  to  the  sixty-six  feet  in  width,  and  it  was  after  this 
amendment  that  the  appeal  from  the  award  of  viewers  was  tried 
and  the  verdict  for  damages  rendered. 

It  is  claimed  by  the  appellants  that  the  charter  of  the  railroad 
company,  as  contained  in  the  acts  of  1846  and  1848,  supra,  is  to 
be  strictly  construed  against  it,  and  this  is  undoubtedly  true, 
and  that  by  a  strict  construction  of  its  charter,  they  are  to  be 
allowed  separate  sets  of  viewers  to  assess  the  value  of  the  land 
taken  for  the  purposes  of  the  railroad  and  for  the  materials 
which  it  may  enter  upon,  use  or  take  away  in  pursuance  of  the 
authority  given  it  by  its  charter.  It  is  true,  that  in  the  fourth 
section  of  the  act  of  1848,  supra,  in  which  the  mode  in  which 
damages  are  to  be  assessed  is  pointed  out,  authority  is  given  to 
the  viewers  to  assess  the  damages  for  lands  or  materials  which 
the  company  may  enter  upon,  use  or  take  away,  in  pursuance 
of  the  authority  given  to  it  by  the  act,  and  the  disjunctive  con- 
junction "  or  "  is  used  throughout  the  entire  section  in  speaking 
of  lands  or  materials,  the  duty  of  the  viewers  being  prescribed 
in  the  following  language :  "  And,  having  viewed  the  premises, 
they  shall  estimate  and  determine  the  quantity,  quality  and 
value  of  said  lands  so  taken  or  occupied,  or  to  be  taken  and 
occupied,  or  the  materials  so  used  or  taken  away,  or  to  be  used 
or  taken  away,  as  the  case  may  be ;  and,  having  due  regard  to 
and  making  just  allowance  for  the  advantages  which  may  have 
resulted  or  which  may  seem  likely  to  result  to  the  owner  or 
owners  of  said  lands  or  materials,  in  consequence  of  the  opening 
or  making  of  said  railroad  or  the  construction  of  works  con- 
nected therewith ;  and,  after  having  made  a  fair  and  just  com- 
parison of  said  advantages  or  disadvantages,  they  shall  estimate 


Digitized  by  VjOOQ IC 


ROBINSON  V.  PENNA.  R.  CO.  393 

1898.]  Opinion  of  the  Court. 

and  determine  whether  any,  and  if  any,  what  amount  of  dam- 
ages have  been  sustained  or  may  be  sustained,  and  to  whom  pay- 
able, and  make  report  thereof  to  the  court.'" 

In  pursuance  of  the  powers  thus  conferred  upon  viewers,  the 
universal  practice  in  Pennsylvania,  so  far  as  we  know, — a  prac- 
tice based  upon  the  well  settled  law, — has  been  to  assess  all  the 
damages  done  or  likely  to  be  done  to  the  premises  through 
which  the  railroad  passes,  includmg  the  use  and  occupation  of 
the  ground  occupied,  the  materials  taken  from  the  land  ad- 
joining the  limits  of  the  right  of  way,  increased  danger  by  fire, 
inconvenience  from  noise,  additional  burden  imposed  upon  the 
land  by  reason  of  fencing,  inconvenience  of  farming  parts  of 
lands  separated  from  each  other  by  the  railroad,  increased  diffi- 
culty in  reaching  bams  and  other  buildings,  in  the  ordinary  use 
of  the  property,  damages  likely  to  result  from  drainage  and 
othet  causes  arising  from  the  construction  of  the  road  and  other 
similar  disadvantages.  These  and  such  as  these  have  always 
been  held  as  proper  subjects  of  inquiry  by  viewers  and,  on  ap- 
peal from  their  award,  by  juries,  in  estimating  the  difference 
between  the  value  of  the  land  as  it  was  before  the  railroad  was 
constructed  and  its  value  after  the  construction. 

There  has  been  no  deviation  from  the  general  rule  in  regard 
to  the  measure  of  damages  in  cases  of  the  character  of  that 
tried  in  the  court  below,  in  which  the  appellants  were  plaintiffs 
and  the  railroad  company  defendant,  since  the  case  of  the 
Schuylkill  Navigation  Co.  v.  Thobum,  7  S.  &  R.  411,  which,  as 
we  have  lately  remarked  in  another  connection,  was  a  leading 
case,  down  to  Struthers  v.  Phila.  &  L.  R.  R.  Co.,  174  Pa.  291, 
in  which  latter  case  Mr.  Justice  Williams  laj's  down  the  rule 
as  follows :  "  The  true  measure  of  damages  has  been  held,  in  a 
long  and  unbroken  line  of  cases,  to  be  the  difference  in  the  mar- 
ket or  selling  value  of  the  property  entered,  before  the  entry 
was  made,  and  afterwards,"  (i^eferring  to  a  number  of  well 
known  cases)  "  but  the  juiy  have  no  right  to  allow  damages  for 
distinct  items,  whether  estimated  by  experts  or  other  witnesses, 
and  reach  the  amount  of  their  verdict  in  that  manner.  Their 
duty  is  simply  to  ascertain  the  loss  in  the  selling  value  of  the 
property  entered,  due  to  the  fact  of  the  taking  by  eminent  do- 
main. This  loss  stands  for  the  measure  of  damages,  because  it 
embraces  the  effect  of  all  the  elements  of  depreciation  taken 
together." 


Digitized  by  VjOOQ IC 


894  ROBINSON  v.  PENNA.  R.  CO. 

Opinion  of  the  Court.  [6  Pa.  Superior  Ct. 

If  the  railroad  company  went  beyond  the  bounds  of  its  right 
of  way  and  took  materials  for  the  construction  of  its  embank- 
ment, that  was  an  element  of  depreciation  which  could  have 
been,  should  have  been  and  doubtless  was  taken  into  considera- 
tion, by  both  the  viewers  and  the  juiy,  in  reaching  a  conclusion 
as  to  the  amount  of  damages  suffered  by  the  appellants  in  the 
construction  of  the  railroad.  In  no  other  way  could  the  differ- 
ence in  the  market  or  selling  value  of  the  properly  entered  upon, 
before  the  entry  was  made  and  afterward,  be  ascertained.  If 
the  appellants  had  been  the  owners  of  property  adjoining  that 
of  anothel*  person,  through  whose  lands  the  railroad  was  located 
and  built,  and  the  railroad  company  had  entered  upon  their  land 
for  the  purpose  of  taking  materials  to  be  used  in  the  construc- 
tion of  the  road,  they  would  undoubtedly  have  been  entitled  to 
the  appointment  of  viewere  for  the  purpose  of  assessing  the  dam- 
ages so  done  to  their  property ;  but,  by  their  own  showing,  as 
is  manifest  from  their  petition  and  the  reference  therein  to  the 
former  proceedings,  the  damages  for  the  ascertainment  and  deter- 
mination of  which  they  asked  viewers  to  be  appointed,  must 
have  been  passed  upon  in  the  proceedings  had  in  pursuance  of 
that  petition,  otherwise  we  would  be  obliged  to  hold  that  coun- 
sel for  plaintiff  and  defendant,  viewers,  court  and  jury,  all  failed 
in  the  discharge  of  a  manifest  duty. 

It  is  contended  by  the  appellants  that  the  only  question  for 
the  court  below,  and  the  only  one  which  is  legitimately  before 
us,  is  the  sufficiency  and  regularity  of  the  petition  presented  by 
them  asking  for  the  appointment  of  viewers ;  but,  as  hereinbe- 
fore intimated,  they  have  themselves  introduced  the  record  of 
the  former  proceedings  by  reciting  the  petition  of  the  railroad 
company  for  the  appointment  of  viewers.  They  were  repi*e- 
sented  in  the  proceedings  which  followed  the  granting  of  the 
rule  to  show  cause  why  the  petition  should  not  be  dismissed. 
They  participated  in  the  cross-examination  of  the  witness  whose 
testimony  was  taken  in  the  proceedings  had  under  that  rule. 
We  can  see  no  reason  why  the  court  should  not  determine  the 
question  as  to  whether  or  not  viewers  should  be  appointed  to 
assess  the  damages,  as  well  at  the  time  when  the  petition  was 
presented  as  when,  after  an  appeal  from  the  award  of  viewers, 
in  a  trial  before  a  jury,  an  effort  was  made  to  show  the  damages 
resulting  from  the  taking  of  the  material  complained  of,  which 


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KOBINSON  V.  PENNA.  R.  CO.  895 

1898.]  Opinion  of  the  Court. 

could  not  have  been  allowed ;  or  when,  after  the  plaintiffs  had 
given  in  evidence  testimony  relating  to  the  damages,  the  fact  of 
a  former  recovery  had  been  shown,  in  which  event  the  court 
would,  of  course,  have  instructed  the  jury  that  no  recovery  could 
be  had. 

Although  the  question  was  not  distinctly  raised  in  the  court 
below,  there  is  grave  doubt  as  to  the  sufficiency  of  the  petition 
presented  by  the  appellants.  It  shows  that  the  railroad  company 
had  "  laid  out  and  constructed  a  branch  line  of  i-ailroad  through 
and  upon  the  lands  of  your  petitioners  in  the  township  of  Tre- 
dyffrin "  and  that  "  in  the  construction  of  said  branch  line, 
entered  upon  the  land  of  the  petitioners  adjoining  and  in  the 
neighborhood  of  the  strip  above  referred  to  and  quarried,  dug," 
etc.  There  is  no  allegation  that  the  materials  taken  for  the 
construction  of  the  road  had  been  taken  fi*om  an  adjoining  tract. 
It  must  be  presumed,  tlierefore,  that  they  were  taken  fix>m  the 
same  tract  upon  which  the  road  had  been  laid  out  and  con- 
sti'ucted.  How  could  the  viewers,  therefore,  if  appointed,  have 
complied  with  the  provisions  of  the  fourth  section  of  the  act  of 
March  27, 1848,  supra,  in  determining  the  damages  to  be  awarded 
to  the  appellants,  after  making  just  allowances  for  the  advan- 
tages which  may  have  resulted  or  which  may  seem  likely  to 
result  to  the  owner  or  owners  of  said  lands  or  materials  in  con- 
sequence of  the  opening  or  making  of  said  railroad  or  the  con- 
struction of  works  connected  therewith  ?  The  petition  stops 
short  of  what  is  required  under  the  facts  of  the  case  and,  if 
viewers  were  to  be  appointed  in  such  a  case,  we  can  see  no  rea- 
son why  another  set  of  viewers  might  not  be  appointed  to  deter- 
mine what  damages  had  been  suffered  by  the  appellants,  by 
reason  of  the  increased  burden  of  fencing,  or  by  reason  of  the 
inconvenience  from  noise  and  vibration  of  the  plaintiff's  resi- 
dence, by  the  running  of  trains,  and  every  other  element  which 
enters  into  the  determination  of  the  question  of  damages,  as  reg- 
ulated by  the  well  settled  principles  as  hereinbefore  referred  to. 
How  could  the  viewers  in  any  such  case  consider  the  advantages 
accruing  to  the  petitioner  by  reason  of  the  construction  of  the 
railroad,  in  estimating  the  damages  ?  It  is  not  necessary  for  us 
to  pass  upon  this  question,  however,  inasmuch  as  it  is  not  pre- 
sented for  our  consideration. 

There  is  nothing  in  the  objection  made  by  the  appellants  that 


Digitized  by  VjOOQ IC 


396  ROBINSON  v.  PENNA.  R.  CO. 

Opinion  of  the  Court.  [6  Pa.  Superior  CL 

they  were  limited  in  the  trial  of  the  appeal  from  the  award  of 
the  original  viewers  by  the  bond  filed  by  the  defendants  in  that 
suit.  The  condition  of  that  bond  was  "  to  pay  or  cause  to  be 
paid  unto  the  plaintiffs,  or  to  their  executors,  administrators  or 
assigns,  such  sum  of  money  as  they  shall  be  entitled  to  receive 
for  damages,  in  consequence  of  the  taking  and  keeping  of  said 
land  for  tiie  purposes  aforesaid,  said  payment  to  be  made  after 
the  amount  of  said  damages  shall  be  agreed  upon  by  the  parties 
or  assessed  in  the  manner  prescribed  by  the  laws  in  such  case 
made  and  provided."  If  this  bond  had  not  been  sufficiently 
broad  to  cover  all  the  damages  suffered  or  to  be  suffered  by  tlie 
plaintiffs,  they  could  have  required  it  to  be  enlarged  or  amended 
at  the  time  by  an  application  to  the  court  below,  but  we  think 
it  was  abundantly  sufficient  in  every  respect  to  cover  all  the 
damages  which  the  plaintiffs  suffered  or  were  likely  to  suffer, 
in  consequence  of  the  taking  of  their  land  and  the  construction 
of  the  road»  as  provided  in  ordinary  cases. 

It  is  incumbent  upon  courts  to  prevent  litigation  as  far  as 
possible,  consistently  with  the  rights  of  all  parties  in  interest. 
The  court  of  common  pleas  in  this  case  had  complete  jurisdic- 
tion of  the  subject  of  controversy.  The  single  question  in  dis- 
pute was  as  fairly  and  fully  raised  as  it  could  have  been,  at  any 
subsequent  stage  of  the  proceedings  usually  incident  to  the 
ascertainment  and  determination  of  damages  in  alike  case.  We 
see  no  impropriety  whatever  in  the  disposition  made  of  the  case, 
at  the  time  and  under  the  circumstances,  when  disposed  of. 

The  decree  of  the  court  below  is  affirmed  and  the  appeal  dis- 
missed, at  the  costs  of  the  appellant. 


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FORNEY  V.  HUNTINGDON  COUNTY.  897 

1898.]  Syllabus— Statement  of  Facts. 


Mrs.  E.  M.  Forney  et  al.,  Heirs  of  Henry  B.  Mytinger, 
deceased,  Appellants,  v.  The  County  of  Huntingdon. 

Practice,  G.  P. — Case  stated  rnust  show  jurisdiciion. 

A  case  stated  must  show  the  jurisdiction  of  the  court  over  the  parties 
and  that  it  is  a  real  dispute,  not  a  colorable  one,  to  obtain  an  opinion  from 
the  court. 

A  case  stated  is  defective  where  it  fails  to  set  forth  the  nature  of  the 
judgment  to  be  entered  in  case  the  coun  should  find  the  law  to  be  for  the 
plaintiffs. 

Practice,  Superior  Court— Appeal  quashed  in  absence  of  assignments  of 
error. 

Where  there  are  no  assignments  of  error  the  appeal  will  be  quashed. 

The  appellate  court  will  decline  to  roam  at  will  over  the  whole  domain 
of  law  and  fact  and  enter  such  judgment  at  law  or  decree  in  equity  as  it 
might  conclude  the  plaintiffs  might  have  been  entitled  to. 

Argued  December  14,  1897.  Appeal,  No.  35,  March  Term, 
1897,  by  plaintiffs  from  judgment  of  C.  P.  Huntingdon  Co., 
May  T.,  1897,  No.  22,  in  favor  of  defendant  on  case  stated. 
Before  Rice,  P.  J.,  Wickham,  Beaver,  Reedeb,  Orlady, 
Smith  and  Porter,  JJ.    Appeal  quashed. 

Case  stated,  raising  the  question  of  validity  of  assessment  of 
county  taxes  for  #46.34.     Before  Bailey,  P.  J. 

The  case  stated  is  as  follows : 

That  Henry  B.  Mytinger,  of  Morris  township,  died  on  or  about 
the  21st  day  of  November,  A.  D.,  1884,  leaving  to  survive  him 
the  above  stated  plaintiffs  who  are  his  heirs  at  law. 

That  at  the  time  of  his  death  the  said  Henry  B.  Mytinger  was 
seized  of  a  certain  farm  or  tract  of  land,  situate  in  the  township 
of  Morris  and  known  as  the  "  Water  Street  Property,"  contain- 
ing 62  acres  of  improved  land  and  19  acres  of  unimproved  or 
timber  land. 

That  among  the  improvements  on  said  farm  were  a  brick  hotel 
building  in  which  three  of  the  said  heirs  now  reside,  a  gristmill 
and  mill  tenant  house,  brick  house  and  five  other  small  tenant 
houses.  That  said  farm  was  valued  in  the  annual  assessment 
for  the  year  1896  (a  copy  of  which  is  hereto  attached  and  marked 
exhibit  "  A  "),  at  the  sum  of  $1,659,  and  a  tax  for  county  pur- 


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898  FORNEY  v.  HUNTINGDON  COUNTY. 

Statement  of  Facts.  [6  Pa.  Saperior  Ct. 

poses  of  123.22,  being  at  the  rate  of  14  mills  levied  thereon  by 
the  county  commissioners.  A  receipt  for  which  tax  is  hereto 
attached  and  marked  exhibit  "  B."  That  the  other  above  men- 
tioned buildings  and  improvements  located  on  said  farm  were 
valued  and  assessed  in  said  assessment  for  the  year  1896  as  fol- 
lows :  Geiser  house,  f  150 ;  brick  hotel,  f  760 ;  mill  and  house, 
f  1,150 ;  minister's  house,  $300 ;  house  above  gate,  f  150 ;  gate 
house,  $100;  double  frame  house,  $100;  brick  house,  $600; 
and  a  county  tax  at  the  rate  of  14  mills  was  levied  on  each  of 
the  said  buildings  as  above  valued,  making  a  total  additional 
county  tax  of  $46.34  levied  on  said  farm  by  the  said  county 
commissioners. 

The  following  question  is  therefore  submitted  for  the  deter- 
mination of  your  honorable  court. 

Whether  the  assessment  of  a  county  tax  of  $46.34  on  the 
above  stated  buildings  and  improvements  on  said  farm  for  the 
year  1896  was  a  legal  or  illegal  tax  and  assessment. 

If  the  court  shall  be  of  the  opinion  that  the  said  additional 
tax  of  $46.34  as  well  as  the  valuation  of  the  buildings  and  im- 
provements by  the  assessor  was  illegal  and  should  be  stricken 
from  the  assessment  and  tax  duplicate,  then  the  court  is  respect- 
fully requested  to  enter  judgment  for  the  plaintiffs. 

If  the  court  shall  be  of  the  opinion  that  valuation  of  the  said 
buildings  was  lawfully  made  by  the  assessor  and  the  said  tax 
of  $46.34  legally  levied  thereon  by  the  county  commissionera 
the  court  is  respectfully  requested  to  enter  judgment  in  favor  of 
defendant. 

It  is  hereby  agreed  by  the  parties  hereto  that  the  judgment 
of  the  court  in  this  case  stated  shall  be  as  binding  as  if  made 
in  a  regularly  instituted  suit  in  law  or  equity. 

Each  party  reserves  the  right  of  appeal. 
L.  H.  Beers,  Saml.  I.  Spykbr, 

Atty.  for  plaintiffs.  County  solicitor. 

Now  May  21, 1897,  it  is  hereby  agreed  that  valuation  and 
assessment  of  the  real  estate  of  H.  B.  Mytinger's  heirs,  men- 
tioned in  the  foregoing  "case  stated,"  is  identically  the  same 
for  the  year  1897  as  for  the  year  1896,  on  the  said  farm  as  well 
for  the  buildings  and  improvements  on  said  farm.  That  tfa# 
county  tax  levied  on  said  real  estate  is  at  tbrrate  o£  1^  mills. 


Digitized  by  VjOOQ IC 


FORNEY-  0.  HUNTINGDON  COUNTY.  399 

1898.]  Statement  of  Facts — Opinion  of  Ck)urt  below. 

That  an  additional  county  tax  of  $39.72  was  levied  on  the 
buildings  and  improvements  on  said  faim  in  addition  to  the 
county  taxes  on  said  farm. 

It  is  further  agreed  that  the  court  shall  enter  judgment  touch- 
ing and  including  the  said  county  taxes  and  the  assessment  and 
valuation  of  the  said  real  estate  for  the  year  1897,  in  all  respects 
and  with  same  force  and  effect  as  in  the  above  "  case  stated  "  for 
the  year  1896. 

Saml.  I.  Spykbr,  L.  H.  Bebbs, 

County  solicitor.  Atty.  for  plaintiffs. 

The  court  entered  judgment  for  defendant,  Bailey,  P.  J., 
filing  the  following  opinion : 

The  plaintiffs  property  is  returned  for  taxation  at  a  valua- 
tion of  $5,169.  The  property  consists  of  a  farm,  hotel,  grist- 
mill and  seveml  tenant  houses.  The  hotel,  mill  and  tenant 
houses  were  erected  on  what  was  originally  the  farm.  It  is  not 
alleged  they  were  used  in  connection  with  the  farm.  It  is 
true  the  assessor  returns  with  his  assessment,  the  manner  by 
which  he  arrives  at  the  aggregate  valuation.  That  is,  he  arrives 
at  the  total  valuation  of  the  property  as  a  whole  by  ascertaining 
the  value  of  its  several  parts,  and  returns  the  separate  values 
of  these  several  parts  to  show  how  he  reached  the  total  valuation. 
Perhaps  this  was  unnecessary ;  we  do  not  think  it  vitiated  the 
assessment.  It  is  not  a  double  assessment  and  there  is  no  alle- 
gation that  the  valuation  is  excessive.  If  it  were  too  high  or 
for  any  reason  illegal  the  proper  remedy  of  the  plaintiff  would 
have  been  by  appeal:  Moore  v.  Taylor,  147  Pa.  481. 

The  triennial  assessment  was  made  in  1895.  An  inspection 
of  the  return  of  the  assessor  for  Morris  township  shows  that  the 
plaintiff's  property  was  valued  in  the  same  manner  and  at  the 
same  amount  as  in  1896  and  1897.  It  is  presumed  that  the  plain- 
tiffs had  notice  of  this  assessment  and  of  the  time  of  the  appeal. 
No  appeal  was  taken,  and  the  tax  was  laid  on  the  basis  of  the 
valuation  as  returned.  It  is  too  late  to  object  to  the  manner  of 
the  assessment  when  the  tax  collector  calls  for  the  tax.  If  the 
assessment  was  not  satisfactory  it  was  the  right  and  duty  of  the 
taxpayers  to  appeal  in  the  manner  and  within  the  time  fixed  by 
law.  Not  having  done  so  the  assessment  and  valuation  have 
the  effect  of  a  judgment.     We  have  no  jurisdiction  to  review 


Digitized  by  VjOOQ IC 


400      FORNEY  v.   HUNTINGDON  COUNTY. 

Opinion  of  CJourt  below — Opinion  of  the  Court.  [6  Pa.  Superior  Ct, 

the  action  of  the  assessor  or  the  cominissionei*s,  wherein  they 
have  authority  to  act,  except  on  appeal  taken  within  the  time 
fixed  by  law.  We  have  no  original  but  only  appellate  juris- 
diction as  to  questions  of  excessive  or  illegal  assessments  in 
cases  where  the  general  power  to  assess  exists  in  the  assessors 
and  commissioners :  Clinton  School  District's  Appeal,  56  Pa.  315. 

Equity  will  enjoin  against  the  collection  of  a  tax  assessed  for 
an  illegal  puipose,  and  in  cases  where  the  taxing  authorities 
had  no  power  to  lay  the  tax :  Harpers'  Appeal,  109  Pa.  9 ;  Kem- 
ble  V.  Titusville,  135  Pa.  141. 

In  this  case  it  is  not  claimed  that  the  commissioners  were 
without  authority  to  lay  the  tax.or  that  it  was  laid  for  an  illegal 
purpose. 

Let  judgment  be  entered  in  the  case  stated  in  favor  of  the  de- 
fendant. 

Judgment  for  defendant  on  case  stated.     Plaintiff  appealed. 

There  were  no  assignments  of  error  set  out  in  the  paper-books. 

i.  H,  Beers,  for  appellants. 
Saml.  I.  Spyker,  for  appellee. 

Per  Curiam,  January  18, 1898 : 

These  proceedings  were  irregular  and  defective  in  many  es- 
sential particulars,  but  we  need  mention  only  two.  A  case 
stated  must  show  the  jurisdiction  of  the  court  over  the  parties, 
and  that  it  is  a  real  dispute,  not  a  colorable  one,  to  obtain  an 
opinion  from  the  court:  Berks  Countj'^  v.  Jones,  21  Pa.  413. 
Not  only  was  there  no  appeal  from  the  decision  of  the  county 
commissioners  or  board  of  revision  and  appeals,  but  it  would 
also  seem  that  the  plaintiffs  had  not  put  themselves  in  position 
to  take  such  appeal.  The  suggestion  that  the  case  stated  was 
intended  as  a  substitute  for  an  appeal,  and  was  to  be  disposed 
of  as  if  a  formal  appeal  had  been  taken  is  not  borne  out  by  the 
record  and  was  not  assented  to  on  the  argument.  Therefore 
the  court  was  without  jurisdiction  to  enter  any  order,  decree  or 
judgment  with  reference  to  the  assessment  or  collection  of  the 
taxes  in  question. 

In  the  second  place  the  case  stated  fails  to  set  forth  the  na- 
ture of  the  judgment  to  be  entered  in  case  the  court  should  find 
the  law  to  be  with  the  plaintiffs. 


Digitized  by  VjOOQ IC 


FORNEY  V,  HUNTINGDON  COUNTY.  401 

1898.]  Opinion  of  the  Court. 

Courts  ought  to  encourage  amicable  submissions  of  real  dis- 
putes, but  the  greatest  liberality  of  practice  will  not  justify 
parties  in  agreeing  upon  facts  —  no  action  or  proceeding  being 
pending  or  agreed  to — and  asking  the  court  to  enter  such  judg- 
ment at  law  or  decree  in  equity  as  it  may  conclude  the  plaintiff 
might  be  entitled  to. 

For  these  reasons  the  court  below  might  well  have  dismissed 
the  case  stated. 

When  the  case  reached  this  court  there  was  the  same  disre- 
gard of  form  and  orderly  procedure.  No  assignments  of  error 
were  filed  and  we  are,  in  effect,  asked  to  roam  at  will  over  the 
whole  domain  of  law  and  fact,  and  enter  such  judgment  at  law 
or  decree  in  equity  as  we  may  conclude  the  plaintiffs  might 
have  been  entitled  to.     This  we  decline  to  do. 

The  appeal  is  quashed. 


Estate  of  Samuel  Royer,  deceased.     Appeal  of  Samuel 

Wolf. 

WiU-^Issue  d.  v,  n,—When  to  be  awarded  or  not. 

An  issae  d.  v.  n.  is  of  right  when  the  fact  arising  and  in  dispute  is  sub- 
stantive and  material  to  the  inquiry,  unless  the  whole  evidence  of  the  fact 
alleged  be  so  doubtful  and  unsatisfactory  that  a  verdict  against  the  valid- 
ity of  the  will  should  not  be  permitted  to  stand. 

WtU— Testamentary  capacity— Degree  of  proof. 

Vague  and  indefinite  indications  of  mental  weakness  will  not  suffice  ta> 
deprive  a  maq  of  his  dominion  over  his  estate,  or  defeat  his  light  to  dis- 
pose of  it  by  will. 

WiU—jPestamentary  incapacity^Issue  d.v,n. 

An  issue  will  not  be  awarded  where  the  evidence  showed  that  while  the 
testator  was  advanced  in  years  at  the  time  of  making  the  will,  and  not  ex- 
empt from  the  infirmities  of  age  or  the  impairment  of  the  mental  faculties 
incident  thereto,  disclosed  no  positive  mental  disability  or  incompetence 
to  act  understandingly,  and  where  the  sole  act  complained  of  was  the  dis- 
placement of  tlie  appellant  as  executor  who  was  then  eighty-seven,  andi 
the  substitution  of  a  younger  man  of  unquestioned  fitness. 

Argued  Nov.  11, 1897.    Appeal,  No.  144,  Oct.  T.,  1897,  hj 
Samuel  Wolf,  from  decree  of  O.  C.  Lancaster  Co.,  refusing  an- 
Vol.  VI— 26 


Digitized  by  VjOOQ IC 


402  ROYER'S  ESTATE. 

Statement  of  Facts — Argaments.    [6  Pa.  Superior  Ct 

issue  d.  V.  n.    Before  Rice,  P.  J.,  Beaveb,  Rekder,  Orlady, 
Smith  and  Porteb,  JJ.    Affirmed. 

Rule  on  executors  of  Samuel  Royer,  deceased,  to  show  cause 
why  an  issue  devisa\'it  vel  non  should  not  be  granted.  Before 
Livingston,  P.  J. 

The  facts  sufficiently  appear  in  the  opinion  of  the  court 
The  court  below  discharged  the  rule.     Samuel  Wolf,  the 
would  be  executor  appealed. 

Errors  asBigned  were  (1)  discharging  rule  for  an  issue  d.  v.  n. 
(2)  In  the  opinion  of  the  court  as  follows:  ""Being  of  opinion 
that,  as  Samuel  Wolf  is  neither  legatee,  heir,  or  next  of  kin,  to 
Samuel  Royer,  deceased,  but  a  stranger  to  him,  and  to  the  es- 
tate, having  no  interest  therein  whatever ;  a  mere  in  trader,  hav- 
ing no  right  to  object  to  the  probate  of  the  will  or  to  take  and 
enter  an  appeal  therefrom,  and  having  no  right  or  standing  in 
this  court  to  demand  or  be  made  party  to  an  issue  devisavit  vel 
non  to  test  the  validity  of  the  instrument  in  writing  purporting 
to  be  the  will  of  Samuel  Royer,  deceased,  the  rule  to  show  cause 
why  an  issue  devisavit  vel  non  should  not  be  granted,  etc.,  must 
be  discharged  and  appeal  dismissed.  The  rule  is  therefore  dis- 
charged by  the  court  and  the  appeal  dismissed." 

John  H,  Fry  and  B.  F.  Davis^  for  appellant. — If  from  any 
cause  he  is  so  enfeebled  in  mind  as  to  be  incapable  of  knowing 
the  property  he  possesses,  he  is  without  the  i-equired  testamen- 
tary capacity:  Wilson  v.  Mitchell,  101  Pa.  495 ;  Shaver  v.  Mc- 
Carthy, 110  Pa.  339;  Tawney  v.  Long,  76  Pa.  106;  Thompson 
V.  Kyner,  65  Pa.  368 ;  Daniel  v.  Daniel,  39  Pa.  191 ;  1  Redfield 
on  Wills,  104, 122, 123. 

Want  of  testamentary  capacity  once  shown  is  presumed  to 
continue  until  the  fact  of  temporary  capacity  is  established  by 
convincing  proofs  :  Leech  v.  Leech,  21  Pa.  67 ;  Haixien  v.  Hays, 
9  Pa.  151;  Titlow  v.  Titlow,  54  Pa.  216. 

J,  Hay  Brown  and  A.  J.  Eberly^  with  them  W.  U.  Hensel^ior 
appellees. — An  issue  will  not  be  granted,  if  upon  the  whole  evi- 
dence, a  verdict  against  the  will  ought  not  to  be  sustained : 
Boyer's  Will,  13  Phila.  254 ;  Wainwright's  Appeal,  89  Pa.  220 ; 
Winpenny's  App?al,  8  W.  N.  C.  415. 


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ROYER'S  ESTATE.  403 

3.3  Arguments— Opinion  of  tho  Court. 

An  issue  devisavit  vel  non  will  not  be  awaixled  unless  suflfi- 
cient  evidence  be  furnished,  which,  if  uncontradicted,  would  sus- 
tain a  verdict  against  the  will :  Corson's  Estate,  2  Montg.  173 ; 
8.  c,  3  Montg.  103. 

Evidence  that  the  testator  was  old,  intemperate  and  irascible 
is  not  sufficient  to  submit  his  mental  capacity  to  a  jury,  in  the 
absence  of  evidence  that  he  was  mentally  unfitted  to  dispose 
intelligently  of  his  property :  Keating's  Appeal,  17  Atl.  207 ; 
8.  c.  36  P.  L.  J.  283,  affirming  McCullough's  Will,  35  P.  L.  J. 
169.  See  Napfle's  Estate,  134  Pa.  492,  affirming  s.  c.  46  L.  1. 57. 
An  issue  as  to  testamentary  capacity  or  undue  influence  will 
not  be  awarded  upon  mere  evidence  of  old  age,  lessened  mental 
activity  or  impaired  memory.  In  such  cases,  the  inquiry  is 
always  to  be  directed  to  the  mental  condition  of  the  testator  at 
the  time  of  the  execution  of  the  will,  and  to  the  circumstances 
then  surrounding  him  or  affecting  his  action :  Lennig's  Estate, 
36  W.  N.  C.  118  ;  Shreiner  v.  Shreiner,  178  Pa.  57 ;  Boehm  v- 
Kress,  179  Pa.  387. 

Opikign  by  Smith,  J.,  January  18, 1898 : 

In  October,  1884,  Samuel  Royer  made  his  will,  disposing  of 
his  entire  estate,  and  appointed  Samuel  Wolf,  Sr.  and  Adam 
Konigmacher  executors.  Subsequently,  Adam  Konigmacher 
died,  and  in  July,  1890,  his  son  Jacob  Konigmacher  was  sub- 
stituted by  codicil.  In  January,  1893,  the  testator  executed 
another  codicil,  in  which  he  revoked  the  appointment  of  Samuel 
Wolf  and  appointed  Jacob  Konigmacher  and  W.  K.  Seltzer 
executors,  and  expressly  ratified  the  will  in  all  other  respects. 
The  testator  died  about  two  months  after  the  execution  of  the 
last  codicil,  and  his  will  was  duly  proved  before  the  register  of 
Lancaster  county.  From  the  decree  admitting  it  to  probate 
Samuel  Wolf,  Sr.,  appealed,  alleging  that  he  was  interested  in 
the  estate  by  "  being  named  in  will  of  date  of  October  9,  1884, 
and  codicil  of  date  of  July  31,  1890,  as  one  of  the  executors  of 
the  will  of  said  Samuel  Royer,"  and  assigned  as  reasons  for  his 
appeal  that  the  testator  was  not  of  sound  mind  when  he  exe- 
cuted the  codicil  of  January  25, 1893,  and  that  the  codicil  was 
procured  by  fraud,  duress,  and  undue  influence.  Evidence  w?w 
submitted  to  the  orphans'  court  on  the  question  of  the  testator's 
mental  capacity,  with  special  reference  to  his  ability  to  make 


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404  KOYER'S  ESTATE. 

Opinion  of  the  Couit.  [6  Pa.  Superior  Ct. 

the  codicil  by  which  the  appellant's  appointment  was  revoked. 
No  attempt  was  made  to  invalidate  the  original  will  or  the  first 
codicil.  The  court  made  no  comment  on  the  effect  of  this  evi- 
dence relating  to  the  testator's  mental  capacity,  but  disposed  of 
the  case  on  the  ground  that  the  appellant  was  a  stranger  to  the 
testator, — "  a  mere  intruder  " — not  a  "  person  interested  "  within 
the  meaning  of  the  statutes  allowing  interested  persons  to  in- 
stitute a  contest,  and  for  this  reason  dismissed  the  appeal. 

Two  questions  are  raised  by  this  record :  (1)  Was  the  evi- 
dence produced  sufficient  to  warrant  the  granting  of  an  issue 
dfivisavit  vel  non  ?  (2)  Has  Samuel  Wolf  such  an  interest  in 
the  estate  as  entitles  him  to  raise  this  issue?  Vague  and  indefi- 
nite indications  of  mental  weakness  will  not  sufiice  to  deprive 
a  man  of  his  dominion  over  his  estate,  or  defeat  his  right  to  dis- 
pose of  it  by  will.  The  testator  was  advanced  in  years  at  the 
time  of  making  his  will,  and  was  not  exempt  from  the  infirmi- 
ties of  his  age  or  the  impairment  of  the  mental  faculties  inci- 
dent thereto ;  but  there  is  nothing  in  the  evidence  that  shows 
positive  mental  debility,  or  incompetency  to  act  understand- 
ingly,  when  making  the  codicil  of  January  25th.  The  sole  act 
complained  of  is  the  displacement  of  the  appellant,  who  waa 
then  eighty-seven  years  of  age,  and  the  substitution  of  a  younger 
man  of  unquestioned  fitness  for  the  active  discharge  of  the 
duties  of  the  position.  The  appellant  was  not  connected  with 
the  testator  or  his  wife  by  blood  or  marriage ;  and  the  heirs  and 
legatees  do  not  complain  of  the  change. 

From  a  close  examination  of  the  evidence  it  fails,  in  our  opin- 
ion, to  show  that  the  testator  was  not  in  the  full  possession  of 
his  senses  and  entirely  competent  to  dispose  of  his  estate  when 
he  made  the  last  codicil.  In  this  class  of  cases,  where  an  issue 
is  asked  for  by  one  who  has  a  right  to  demand  it,  '•  the  issue  is 
of  right,  under  the  41st  section  of  the  act  of  March  15, 1832, 
when  the  fact  arising  and  in  dispute  is  substantial  and  material 
to  the  inquiry,  unless  the  whole  evidence  of  the  fact  alleged  be 
BO  doubtful  and  unsatisfactory  that  a  verdict  against  the  validity 
of  the  will  should  not  be  permitted  to  stand : "  Schwilke's 
Appeal,  100  Pa.  628.  This  rule,  so  often  repeated  by  the 
Supreme  Court,  has  long  been  the  established  test  as  to  whether 
an  issue  should  be  granted ;  hence  there  is  no  difficulty,  so  far 
as  the  law  is  concerned,  in  determining  the  propet  course  to 


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ROYEB'S  ESTATE.  405 

1898.]  Opinion  of  tlie  Court. 

pursue.  An  examination  of  the  evidence  in  the  present  case 
leads  unhesitatingly  to  the  conclusion  that  it  is  "so  doubtful 
and  unsatisfactory  that  a  verdict  against  the  validity  of  the  will 
should  not  be  permitted  to  stand."  The  few  incidents  shown, 
and  upon  which  the  appellant  relies  to  prove  mental  incapacity, 
are  common  in  every  day  life,  even  in  persons  far  younger  than 
the  testator ;  but  such  casual  departures  from  what  men  regard 
as  the  rational  standard  are  not  suificient  to  deprive  such  per- 
sons of  the  right  to  dispose  of  their  property  by  will. 

Holding  as  we  do  that  nothing  was  shown  which  would  jus- 
tify the  framing  of  an  issue  devisavit  vel  non,  it  is  unnecessary 
for  us  to  pass  upon  the  other  question  presented. 

The  decree  is  affirmed. 


Commonwealth  v.  R.  Bruce  Hutchinson,  Appellant. 

Criminal  law — Solicilalion  to  commit  crime  when  an  iiidictable  offense. 

Solicitation  to  commit  a  felony  is  a  misdemeanor.  But  the  classification 
of  a  crime  as  a  felony  or  a  misdemeanor  being  wholly  arbitrary,  and  gov- 
erned by  no  fixed  or  definite  piinciples,  it  is  not  the  criterion  by  which  to 
determine  the  question  whether  solicitation  to  its  commission  is  an  offense 
in  law.  The  true  test  is  to  be  found  in  its  effect  on  society,  since  all  acts 
that  injuriously  affect  the  public  police  and  economy  are  indictable  at  com- 
mon law.  Solicitation  to  bum  a  store  building  is  such  an  act ;  incitement 
to  incendiarism  being  a  direct  blow  at  security  of  property  and  even  of  life. 
It  is  therefore  indictable  as  a  misdemeanor. 

Evidence  of  crime  not  charged  btU  cognate  when  admissible. 
While  an  independent  crime  having  no  connection  with  that  charged 
cannot  be  shown,  evidence  may  be  given  of  one  so  connected  with  the  of- 
fense for  which  the  defendant  is  on  trial  as  to  show  motive,  purpose,  iden- 
tity or  guilty  knowledge. 

The  evidence  tending  to  show  that  a  defendant,  charged  with  soliciting 
another  to  burn  a  building,  at  or  about  the  time  of  such  alleged  solicitations, 
addressed  similar  solicitations  to  other  persons,  is  properly  admitted. 
Such  testimony  does  not  fall  within  the  rule  excluding  evidence  of  other 
offenses  than  that  laid  in  an  indictment. 

Argued  Nov.  8,  1897.  Appeal,  No.  40,  Oct.  T.,  1897,  by 
defendant,  from  judgment  of  Q.  S.  Blair  Co.,  Jan.  Sess.,  1897, 
No.  27,  on  verdict  of  guilty.    Before  Rice,  P.  J.,  Wickham, 


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406  COMMONWEALTH  v.  HUTCHINSON. 

Statement  of  Facts— Arguments.    [6  Pa.  Superior  Ct. 

Beaver,  Rbedee,  Oblady,  Smith  and  Pobtbb,  JJ.    Af- 
firmed. 

Indictment  charging  solicitation  to  bum  a  building.  Be* 
fore  Bell,  P.  J. 

It  appears  from  the  record  and  evidence  that  there  was  evi- 
dence tending  to  show  that  defendant  made  a  proposition  to 
Robert  Williams  that  if  he  would  set  fire  to  the  storeroom  of 
Pheasant  &  Wagner,  the  defendant  would  pay  him,  Williams, 
i25.00.  An  offer  of  evidence  was  made  and  admitted,  under 
objection,  tending  to  show  that  similar  offers  were  made  to  other 
persons  about  the  same  time  to  commit  the  same  or  similar  of- 
fense connected  with  the  same  building. 

The  opinion  of  Bell,  P.  J.,  refusing  motion  in  arrest  of  judg- 
ment and  a  new  trial,  is  reported  in  6  Dist.  Rep.  709. 

Verdict  of  guilty  and  sentence  thereon.     Defendant  appealed. 

ErrorB  assigned  among  others  were  (1)  the  indictment  in  the 
above  case  will  not  sustain  a  conviction  in  Pennsylvania,  as  it 
does  not  charge  an  offense  indictable,  either  at  common  law  or 
by  statute.  (4)  The  admission  of  the  testimony  of  Frank  Bow- 
den,  Frank  Moore  and  Harry  Woods,  tending  to  show  that 
defendant  had  solicited  them  to  bui*n  this  same  building  after 
the  time  he  had  solicited  Robert  Williams  to  burn  it,  being 
distinct  and  separate  offenses  (if  offenses  at  all),  having  no  con- 
nection with  the  crime  charged  in  the  bill  of  indictment,  and 
occurring  weeks  after  the  solicitation  laid  in  said  indictment, 
and  for  which  an  indictment  is  still  pending,  the  commonwealth 
having  elected  on  motion  of  defendant's  counsel  to  go  to  trial  on 
bill  No.  27,  of  January  sessions,  1897,  in  which  the  names  of 
Frank  Bowden,  Frank  Moore  and  Harry  Woods  had  been 
stricken  off  by  the  district  attorney.  (8)  The  sentencing  of 
the  defendant  to  pay  a  fine  of  $20.00,  costs  of  prosecution,  and 
to  undergo  an  imprisonment  in  the  jail  of  Blair  county  for  a 
period  of  six  months.  (9)  There  is  no  warrant  in  law  for  the 
sentence  imposed  by  the  court  upon  the  defendant,  as  there  is 
no  act  of  assembly  authorizing  it,  and  it  is  thei'efore  illegal  and 
void, 

A.  V,  Dively^  with  him  J,  Banks  Knrtz^  for  appellant. — So- 
licitations to  commit  misdemeanors  are  not  indictable  in  Penn- 


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COMMONWEALTH  v.  HUTCHINSON.  407 

1898.]  Arguments — Opinion  of  the  Couili. 

sylvania:  Smith  v.  Com.,  64  Pa.  209 ;  Whar.  Cr.  Law,  sec.  179 ; 
Stabler  v.  Com.,  95  Pa.  318. 

The  admission  of  the  testimony  of  Bowden,  Moore  and  Wood, 
tending  to  show  that  defendant  had  solicited  them  to  bum  this 
same  building,  after  the  time  he  had  solicited  Williams  to  bum 
being  distinct  and  separate  offenses,  if  offenses  at  all,  having 
no  connection  with  the  crime  charged  in  the  bill  of  indictment, 
and  occurring  weeks  after  the  solicitation  laid,  and  for  which 
an  indictment  is  still  pending  was  eiTor:  Shaffner  v.  Com., 
72  Pa.  60 ;  Com.  v.  Daniels,  2  Select  Eq.  Cases,  332 ;  2  Russ. 
on  Crimes,  694. 

Wm.  S.  Sammond^  district  attorney,  with  him  Thomas  S. 
Oreevy  and  R,  A.  Senderson^  for  appellee. 

Opinion  by  Smith,  J.,  January  18, 1898 : 

The  defendant  was  convicted  and  sentenced  on  the  charge  of 
soliciting  one  Robert  Williams  to  bum  a  store  building.  The 
material  parts  of  the  indictment  are  as  follows  :  "  That  R.  Bruce 
Hutchinson  ....  did  unlawfully,  maliciously  and  wickedly 
solicit  and  incite  Robert  Williams  to  unlawfully,  wilfully  and 
maliciously  bum,  attempt  to  set  fire  to  with  intent  to  bum  a 
certain  new  building  ....  owned  by  the  firm  of  Pheasant  & 
Wagner,  and  used,  on  the  first  floor  for  a  storeroom  and  post- 
office,  on  the  second  floor  by  the 'Young  Men's  Christian  Asso- 
ciation and  the  Juniata  Borough  Council,  and  on  the  third  floor 
by  the  Independent  Order  of  Odd  Fellows  and  the  Patriotic 
Sons  of  America ;  and  did  offer  the  sum  of  $25.00  to  the  said 
Robert  Williams  to  pay  him  for  setting  fire  ....  with  intent 
to  bum  the  said  building." 

It  is  contended,  on  the  part  of  the  defense,  that  solicitation  to 
commit  a  misdemeanor  is  not  indictable,  and  that,  as  the  indict- 
ment charges  only  such  solicitation,  it  sets  forth  no  criminal 
offense. 

There  seems  no  question  that  solicitation  to  commit  a  felony 
is  a  misdemeanor :  Rex  v.  Higgins,  2  East,  5 ;  Rex  v.  Hick- 
man, 1  Moody,  34 ;  Reg.  v.  Quail,  4  F.  &  F.  1076 ;  State  v. 
Avery,  7  Conn.  266 ;  People  v.  Bush,  4  Hill,  133 ;  Com.  v. 
M'Gill  et  al.,  Add.  21 ;  State  v.  Bowers,  15  L.  R.  A.  199.  This 
however  cannot  be  affirmed  of  the  broad  proposition  that  solici- 


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408  COMMONWEALTH  v.  HUTCHINSON. 

Opinion  of  the  Qouit.  [6  Pa.  Superior  CU 

tation  to  commit  a  misdemeanor  is  itself  a  misdemeanor.  On 
the  contrary,  it  seems  clear  that  with  respect  to  various  misde- 
meanora,  involving  little  or  no  moral  turpitude  or  prejudice  to 
society,  solicitation  to  their  commission  is  not  in  law  an  offense. 
It  is  equally  clear  that  as  to  certain  others,  it  is  an  offense.  The 
cases  cited  in  Wharton's  Criminal  Law,  sec.  179,  show  that  such 
solicitations  are  indictable,  "when  their  object  is  interference 
with  public  justice,  as  when  a  resistance  to  the  execution  of  a 
judicial  writ  is  counseled,  or  perjury  is  advised,  or  the  escape 
of  a  prisoner  is  encouraged,  or  the  corruption  of  a  public  offi- 
cer is  sought,  or  is  invited  by  the  officer  himself."  In  Rex  v. 
Phillips,  6  East,  464,  it  was  held  that  solicitation  to  commit  a 
misdemeanor  of  an  evil  and  vicious  nature  was  indictable.  Tlie 
authorities  collected  in  the  notes  to  Washington  v.  Butler,  25 
L.  R.  A.  434,  embrace  cases  in  which  it  was  held  indictable  to 
solicit  another  to  make  a  plate  for  counterfeiting  bills  of  ex- 
change ;  to  commit  assault  and  battery ;  to  commit  perjury. 
There  is  also  a  class  of  cases  frequently  referred  to  in  the  dis- 
cussion of  this  question,  but  really  without  bearing  on  it ;  solici- 
tations accompanied  with  the  offer  of  a  bribe,  of  which  Rex  v. 
Plympton,  2  Ld.  Raymond,  1377,  and  Rex  v.  Vaughan,  4  Burr, 
2494,  are  leading  instances.  In  these  the  act  sought  was  law- 
ful ;  the  offer  of  a  bribe  to  influence  its  performance  was  the 
unlawful  feature. 

The  adjudications  by  the  highest  court  of  our  own  state,  on 
the  subject  of  solicitation  to  commit  crime,  touch  it  only  at  two 
points.  They  decide  that  it  is  a  misdemeanor  to  solicit  the 
commission  of  murder:  Stabler  v.  Com.,  95  Pa.  318 ;  Com.  v. 
Randolph,  146  Pa.  83 ;  and  that  solicitation  to  commit  fornica- 
tion or  adultery  is  not  indictable :  Smith  v.  Com.,  54  Pa.  209. 
The  latter  case  doe*  not,  however,  go  to  the  length  of  declaring 
that  solicitation  to  commit  a  misdemeanor  is  not  a  misdemeanor. 
No  general  rule  on  the  subject  was  thei-e  laid  down.  The  de- 
cision was  based  on  the  difficulty  of  defining  the  particular 
offense  charged  in  the  case ;  of  determining  *'  what  expressions 
of  the  face  or  double  entendres  of  the  tongue,  what  freedom  of 
manners,  are  to  be  adjudged  solicitation ; "  and  on  the  princi- 
ple that  ^^  a  rule  of  law  which  should  make  mere  solicitation  to 
fornication  or  adultery  indictable  would  be  an  impracticable  rule, 
one  that  in  the  present  usages  and  manners  of  society  would 


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COMMONWEALTH  v.  HUTCHINSON.  409 

1898.]  Opinion  of  the  Court. 

lead  to  great  abuses  and  oppressions."  It  may  be  added  that 
the  act  charged  was  one  that  tended  only  to  secret  immorality 
by  the  parties  immediately  involved,  and  not  directly  to  the 
public  prejudice. 

In  the  broad  field  lying  between  the  extremes  thus  adjudi- 
cated, our  guide  must  be  found  in  the  principles  that  underlie 
our  criminal  code.  To  reach  just  conclusions,  we  must  pursue 
the  method  thus  laid  down  by  Mr.  Justice  Paxson  in  Com.  v. 
McHale,  97  Pa.  397,  and  applied  in  that  case :  "  We  must  look 
beyond  the  cases  and  examine  the  principles  upon  which  com- 
mon law  offenses  rest.  It  is  not  so  much  a  question  whether 
such  offenses  have  been  punished  as  whether  they  might  have 
been.  .  .  .  We  are  of  opinion  that  all  such  crimes  as  espe- 
cially affect  public  society  are  indictable  at  common  law.  The 
test  is  not  whether  precedents  can  be  found  in  the  books,  but 
whether  they  injuriously  affect  the  public  police  and  economy." 

The  distinction,  sometimes  attempted,  between  solicitation  to 
commit  a  felony  and  to  commit  a  misdemeanor,  is  based  on  an 
artificial  and  not  an  intrinsic  difference.  It  has  received  com- 
paratively slight  judicial  recogfnition.  In  Reg.  v.  Hansford,  IS 
Cox  C.  C.  9,  it  was  declared  to  be  without  foundation.  Indeed, 
the  statutory  classification  of  crime,  as  felony  or  misdemeanor, 
is  governed  by  no  fixed  or  definite  principle,  but  is  purely  arbi- 
trary. Legislative  whim  or  caprice  may  alone  determine  in 
which  category  an  offense,  not  a  felony  at  common  law,  shall 
be  placed.  There  is  no  reason,  arising  from  the  nature  of  the 
offenses,  why  the  burning  of  another's  house  shall  be  classed  as 
a  felony,  and  the  burning  of  one's  own  house  or  other  building, 
with  intent  to  defraud  insurers,  as  a  misdemeanor ;  why  the 
larceny  of  money  shall  be  pronounced  a  felony,  and  its  embez- 
zlement only  a  misdemeanor ;  why  it  shall  be  deemed  a  felony 
to  make  counterfeit  coin,  and  but  a  misdemeanor  to  utter  it,  or 
a  felony  to  attempt  to  utter  a  counterfeit  bank  note,  and  only  a 
misdemeanor  to  utter  counterfeit  coin ;  why  the  possession  of 
ten  counterfeit  bank  notes,  with  intent  to  utter  them,  shall  be 
declared  a  felony,  and  the  forgery  of  a  deed  merely  a  misde- 
meanor ;  or  why  the  forgery  of  a  bank  check  shall  be  made  a 
felony,  and  the  f orgen^f  a  promissory  note  but  a  misdemeanor. 
With  respect  Xji^tife  public  police  and  economy,  and  the  general 
interests  ^^iety,  there  are  misdemeanors  more  pernicious  in 


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410  COMMONWEALTH  v.  HUTCHINSON. 

Opinion  of  the  Court.  [6  Pa.  Superior  Ct. 

effect  than  some  of  the  felonies.  As  to  the  mode  and  incidents 
of  trial  there  is  no  distinction,  except  as  between  offenses  triable 
exclusively  in  the  oyer  and  terminer  and  those  within  the  juris- 
diction of  the  quarter  sessions.  As  to  punishment,  trial  for 
misdemeanor  may  subject  the  defendant  to  punitive  conse- 
quences more  serious  than  those  to  which  he  is  exposed  in  trial 
for  many  of  the  felonies,  since  the  penalty  is  often  more  severe, 
and,  even  if  acquitted,  the  costs  may  be  imposed  upon  him. 
It  is  obvious  that,  with  respect  to  the  majority  of  criminal 
offenses,  the  distinction  between  felonies  and  misdemeanors 
rests  on  no  substantial  basis,  and  that  the  classification  of  an 
offense  as  a  felony  or  a  misdemeanor  affords  no  just  criterion 
for  determining  whether  solicitation  to  its  commission  is  indict- 
able. Under  such  a  test,  one  may  be  punished  for  soliciting 
the  theft  of  the  most  trifling  chattel,  or  the  burning  of  tlie 
most  worthless  dwelling,  yet  may  with  impunity  incite  to  the 
embezzlement  of  millions,  or  to  the  laying  in  ashes  of  the  lar- 
gest manufactories,  or  the  entire  business  quarter  of  a  city. 
The  only  practical  and  reasonable  test  is  that  stated  and  applied 
in  Com.  v.  McHale,  supra :  the  manner  in  which  the  act  may 
"  affect  the  public  police  and  economy ; "  and  the  only  logfical 
conclusion  is  that  all  acts  which  ^^  especially  affect  public  so- 
ciety," to  its  injury,  are  criminal.  The  act  for  which  the  de- 
fendant is  here  indicted,  as  thus  affecting  public  society,  is  the 
solicitation  described  in  the  indictment. 

Argument  is  scarcely  needed  to  demonstrate  that  the  solici- 
tation charged  in  the  present  case  is  of  a  character  to  injuriously 
affect  public  society  and  the  public  police  and  economy.  Ex- 
cept solicitations  to  murder  and  riot,  nothing  is  more  calculated 
to  disorder  and  terrorize  society  than  incitements  to  incendia- 
iism.  Such  incitement  is  a  direct  blow  at  security  of  property 
and  even  of  life.  It  must  therefore  be  pronounced  an  indictable 
offense. 

The  evidence  tending  to  show  that  the  defendant,  at  or  about 
the  time  of  his  solicitation  of  Williams,  addressed  similar  solici- 
tations to  other  persons,  was  properly  admitted.  The  testimony 
on  this  point  does  not  fall  within  the  rule  excluding  CAndence 
of  other  offenses  than  that  laid  in  the  indictment.  While  an 
independent  crime,  having  no  connection  with  that  charged, 
oannot  be  shown,  evidence  may  be  given  of  one  so  connected 


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COMMONWEALTH  v.  HUTCHINSON.  411 

1898.]  Opinion  of  the  Couit. 

with  the  offense  for  which  the  defendant  is  on  trial  as  to  show 
motive,  purpose,  identity  or  guilty  knowledge :  Kramer  v.  Com., 
87  Pa.  299 ;  Shaffner  v.  Com.,  72  Pa.  60 ;  Copperman  v.  People, 
56  N,  Y.  591 ;  State  v.  Watkins,  9  Conn.  47 ;  Reg.  v.  Dossett, 
2  Car.  &  Kir.  806:  Rex  v.  Voke,  1  R.  &  R.  531;  Rex  v.  Ellis, 
9  Dowling  &  Rowland,  174.  In  tlie  present  case  the  several 
solicitations  were  connected  manifestations  of  one  puipose  exist- 
ing in  the  defendant's  mind, — the  purpose  of  burning  the  build- 
ing described  in  the  indictment,  by  the  hand  of  another. 

Nothing  in  the  assignments  of  error  requires  further  discus- 
sion. 

The  judgment  of  the  court  below  is  aflSrmed,  and  it  is  now 
ordered  that  R.  Bruce  Hutchinson,  the  appellant,  be  remanded 
to  the  custody  of  the  keeper  of  the  county  jail  of  Blair  county,, 
there  to  be  confined  according  to  law  for  the  residue  of  the  term 
for  which  he  was  sentenced  and  which  had  not  expired  at  the 
date  of  his  admission  to  bail  pending  tliis  appeal,  and  that  the 
record  be  remitted  that  the  sentence  and  this  order  be  carried 
into  effect. 


Charles  Clements  v.  George  Bolster,  Frederick  W.  Bol- 
ster and  George  W.  Bolster,  partners  trading  as  George 
Bolster  &  Sons,  Appellants. 

Epistolary  corUracts—WhcU  amounts  to,  in  law. 

When  a  conti*act  is  epistolary,  consisting  of  a  series  of  letters,  contain- 
ing inqairies,  propositions  and  answers,  it  is  necessary  that  some  point 
should  be  attained,  at  which  the  distinct  proposition  of  the  one  party  is 
unqualifiedly  acceded  to  by  the  other,  so  that  nothing  further  is  wanting  on 
either  side  to  manifest  that  aggregatio  mentium,  which  constitutes  an 
agi'eement,  and  that  junction  of  wills  in  the  same  identical  manner,  offered 
on  one  side  and  concurred  in  by  the  other,  bringing  everything  to  a  con- 
clusion which  in  contemplation  of  law  amounts  to  a  contract. 

It  is  not  a  contract  where  an  offer  is  made  to  buy  a  monument  at  $600 
adding  *•  we  would  like  to  have  your  derrick  to  set  up  monument.  We 
will  pay  freight  on  derrick  to  return  ; "  to  which  plaintiff  replied  asking 
that  $15.00  more  be  allowed,  and  added :  ••  I  have  entered  your  order- 
Now  as  to  derrick,  you  would  hardly  want  one  sent  from  here,  as  that 
would  be  too  expensive  for  you.    Why  not  get  one  from  Philadelphia  or 


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412  CLEMENTS  v.  BOLSTER. 

Syllabus — Assignment  of  Errors.      [6  Pa.  Superior  Ct. 

Ilarrisburg  P  ^^  This  was  but  an  acceptanoe  in  part ;  there  could  be  no 
contract  without  an  acceptance  in  full.  A  contract  is  not  created  by  pro- 
posals and  counter  proposals;  it  arises  only  from  the  acceptance  of  a 
proposal. 

An  offer  is  not  converted  into  a  contract  by  a  response  proposing  a  de- 
viation from  its  terms ;  it  becomes  a  contract  only  when  accepted  in  pra- 
cise  accordance  with  its  terms. 

Argued  Nov.  11, 1897.  Appeal,  No.  114,  Oct  T.,  1897,  by 
defendants,  from  judgment  of  C.  P.  Lancaster  Co.,  Dec.  T., 
1894,  No.  24,  on  verdict  for  plaintiff.  Before  Rice,  P.  J., 
Beaver,  Reedbb,  Oblady,  Smith  and  Pobtbr,  J  J.  Reversed. 

Assumpsit  for  goods  sold  and  delivered.    Before  Livtng- 

BTON,  P.  J. 

It  appears  from  the  record  that  plaintiff  based  his  claim  on 
an  alleged  epistolary  contract  for  the  purchase  and  sale  of  a 
monument.  In  his  statement  the  plaintiff  declared  on  two  let- 
ters  of  the  dates  of  January  23,  1894  and  January  24,  1894,  as 
forming  the  basis  of  this  contract.  These  letters  are  set  out  in 
full  in  the  opinion  of  the  court. 

Other  letters  of  subsequent  date  passing  between  the  parties 
were  made  the  subject  of  offers  of  evidence,  which  offers  were 
ruled  upon  by  the  court  below,  some  of  the  letters  being  ad- 
mitted and  others  rejected,  and  these  rulings  are  made  the  sub- 
jects of  assignments  of  error.  In  view  of  the  decision  of  the 
appellate  court,  however,  it  is  not  material  that  any  of  the  sub- 
sequent correspondence  be  set  out  in  full,  the  plaintiff  having 
declared  only  on  the  letters  of  January  23,  and  24,  as  consti- 
tuting the  contract. 

Verdict  and  judgment  for  plaintiff  for  $206.14.  Defendants 
appealed. 

Hfrors  assigned  among  others  were  (7)  in  its  answer  to  the 
plaintiff's  first  point,  which  point  and  answer  are  as  follows : 
"  1.  By  the  letter  of  January  23, 1894,  from  Bolster  to  Clements, 
and  the  letter  in  reply  thereto,  from  Clements  to  Bolster,  dated 
January  24, 1894,  which  letters  are  admitted  by  both  sides  to 
have  been  written,  sent  and  received,  a  complete  contract  for 
the  purchase  and  sale  of  the  monument  was  made,  and  this  con- 
tract could  not  be  changed  nor  added  to  by  the  defendants,  ex* 


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CLEMENTS  v.  BOLSTER,  413 

1898.]  Assignment  of  Errors. 

cept  with  the  consent  of  the  plaintiff.  Answer :  That  we  have 
affirmed  in  the  general  charge."  (9)  In  disaUowing  the  following 
offer  of  testimony  by  the  defendant :  Frederick  Bolster,  one  of 
the  defendants,  being  under  examination.  "Witness  shown 
letter  dated  April  9, 1894,  and  also  envelope  in  which  it  was 
inclosed,  stamped  Boston,  Mass.,  April  9,  1894,  and  asked  if 
he  received  that  letter  from  Clements.  Objected  to  by  plain- 
tiff. Disallowed.  Defendants  except."  (11)  In  disallowing 
the  following  offer  of  defendants :  "  Defendants  offer  in  evidence 
the  letter  of  April  9,  1894,  marked  '  J.  B.  L . ; '  the  envelope 
marked  *  J.  B.  L.  No.  2,'  in  which  the  letter  yrwa  inclosed,  and 
the  draft  or  design  marked  *  J.  B.  L.  No.  1,'  which  was  in- 
closed in  the  same  envelope  and  carried  in  the  same  mail.  Ob- 
jected to  by  plaintiff.  Disallowed.  Defendants  except.  The 
letter  was  as  follows : 

"Boston,  Mass.,  April  9, 1894. 
"  Messrs.  Geo.  Bolster  &  Sons, 
"  Ephbata,  Pa. : 
"  Dear  Sirs :  Can  you  make  use  of  a  Pink  Westerly  Granite 
Headstone  as  per  enclosed,  tracing  No.  14,085  ?    If  so  I  will  let 
you  have  it  at  the  extremely  low  price  of  ♦36.00.    This  is  a  spe- 
cial offer  and  you  must  not  calculate  upon  getting  another  at 
this  price.    It  is  an  easy  selling  design,  and  I  am  sure  you  would 
do  well  with  it.    Can  ship  at  once  on  receipt  of  order.     Terms 
would  be  list. 

"  Both  work  and  material  are  first^jlass,  and  I  assure  you  you 
are  getting  a  bargain  if  you  accept  this  offer.  If  you  decide  to 
take  the  Monument,  please  send  your  order,  at  once,  as  it  is  an 
attractive  design,  and  one  that  will  sell  itself. 

**  All  Scotch  Granites  f .o.b  cars  New  York  City,  American 
Granites  f.o.b  car  quarries. 

**  Yours  truly, 

"  Chables  Clements. 
"  P.  S.    Try  and  sell  this." 

(13)  In  admitting  the  following  offer  of  plaintiff :  "Defend- 
ants object  to  the  reading  of  letter  of  July  9, 1894,  Clements  to 
Bolster,  because  it  is  argument,  made  by  plaintiff  in  his  behalf. 
Admitted.    Defendants  except    The  letter  was  as  follows : 


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414  CLEMENTS  v.  BOLSTER. 

AsBjgnment  of  Errors.  [6  Pa.  Superior  Ct. 

"Boston,  Mass.,  July  9, 1894. 
**  Messrs.  Geo.  Bolster  &  Sons,  ' 

"  Ephbata,  Pa. : 

"  Gentlemen:  I  have  yours  of  the  6th  in  regard  to  Monument 
13,257.  You  state  that  you  are  surprised  at  receiving  my  letter  of 
the  5th  of  July.  I  do  not  see  why  you  should  be.  Same  was  sent 
in  your  interests  so  that  you  could  place  your  derrick  and  be 
ready  to  set  the  work  as  soon  as  received.  You  state  that  you 
did  not  order  the  monument.  I  would  refer  you  to  your  letter 
of  January  28, 1894,  which  is  a  direct  order  for  the  work.  You 
write  as  follows : 

'* '  We  will  give  you  for  this  monument  complete,  8600 ;  there 
must  be  letter  *  B '  instead  of  '  H '  on  Cap.  This  is  the  best  we 
can  do.  It  will  also  take  headstone  which  we  will  take  it  and 
pay  extra  for  it.  We  would  also  like  to  have  your  derrick  to 
set  the  monument.  We  will  pay  f I'cight  on  derrick  to  return ; 
we  calculate  to  do  more  business  with  you  in  the  futui'e.  We 
will  pay  for  monument  as  soon  as  set  up.' 

"  In  answer  to  the  above  you  have  my  letter  of  January  24, 
1894.     Then  you  wrote  January  26,  as  follows : 

"'We  will  give  you  the  job  provided  you  write  and  promise 
best  Dark  Quincy  including  all  lettering,  firstKjlass  job,  for  ft600. 
We  are  held  responsible  for  a  first-class  job,  and  therefore  must 
hold  you  responsible  for  it.  If  you  will  answer  the  letter  ac- 
cordingly, we  will  send  you  the  inscription  letters ;  let  us  know 
by  return  mail ;  state  if  you  can  send  it  about  the  20th  or  25th 
of  April ;  we  will  get  a  derrick  as  we  have  further  use  for  it 
If  this  job  is  all  right,  can  sell  several  monuments  on  hand.  On 
back  of  letter  you  will  find  sketch  of  headstone  to  be  Dark 
Quincy,  face  pol.,  balance  hammer  dressed,  bevel  to  front  Ij  ; 
give  us  price  on  it. ' 

"  In  answer  to  the  above  letter  you  have  mine  of  January  29, 
wherein  I  told  you  I  would  accept  and  furnish  the  work  at  $600 
and  referred  to  giving  you  price  on  headstone  in  another  letter. 

"Now  I  shall  insist  in  your  taking  tliis  work,  and  will  expect 
an  answer  by  the  14th,  instructing  me  to  ship.  When  I  told 
you  that  I  would  accept  the  order,  I  accepted  the  conditions 
named  in  your  letter  of  the  26th. 

"  Yours  truly, 

"  Chables  Clements." 


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CLEMENTS  v.  BOLSTER.  4l5 

1898.]  Assignment  of  Errors — Opinion  of  Court. 

(14)  In  admitting  the  following  offer  of  plaintiff :  "  Plaintiff 
offers  in  evidence  letter  dated  June  28, 1895.  It  is  admitted 
letter  was  received  by  defendants,  but  defendants  object  to  its 
admission  in  evidence.  Admitted.  Defendants  except.  Letter 
read  to  the  jury  by  Mr.  Coyle : 

"Boston,  Mass.,  June  28, 1895. 
"Messrs.  Geo.  Bolster  &  Sons, 
"Ephbata,  Pa.: 
"  Dear  sirs :  I  have  given  instructions  to  attorneys  to  notify 
you  that  if  you  did  not  make  settlement  of  my  account  within 
the  next  twenty  days,  either  by  secured  note  or  cash,  that  the 
monument  now  ready  for  shipment  to  you,  and  which  is  subject 
to  your  order,  will  be  sold  at  auction  and  proceeds  from  said 
sale  will  be  credited  to  your  account,  and  suit  brought  for  the 
balance. 

"  Yours  truly, 

"  Charles  Clements." 

B.  F.  Davit  and  J.  Hay  Brown^  with  them  W.  U,  Hensel  and 
A.  U.  Burkholder^  for  appellants. — In  Slaymaker  v.  Irwin,  4 
Whar.  869,  a  case  not  unlike  this,  there  is  a  lucid  discussion  of 
the  subject  of  epistolary  contract.  The  case  of  AUen  v.  Kir- 
wan,  159  Pa.  612,  is  more  recent  and  even  more  strongly  in 
point.  The  plaintiff  gives  further  evidence  in  the  letter  of 
April  9, 1894,  that  the  contract  had  not  been  closed,  and  the 
court  erred  in  excluding  this  testimony  and  holding  as  a  matter 
of  law  that  this  letter  did  not  refer  to  the  monument  of  the 
January  correspondence,  and  that  it  could  not  even  be  proved 
to  relate  to  it. 

John  A.  Coyle^  for  appellee. — We  have  a  completed  contiuct 
made  by  the  letters  of  January  23d  and  the  reply  of  Janu- 
ary 24th.  The  offer  was  open  until  it  reached  the  plaintiff,  and 
the  contract  closed  the  moment  the  plaintiff  mailed  his  accept- 
ance  to  the  defendant :  Ames  &  Co.  v.  Pierson,  174  Pa.  597. 

Opinion  by  Smith,  J.,  January  18, 1898 : 

The  declaration  avers,  as  the  cause  of  action,  a  contract  be- 
tween the  parties,  embodied  in  a  letter  from  the  defendants  to 
the  plaintiff,  dated  January-  23,  1894,  and  an  answer  by  the 


Digitized  by  VjOOQ IC 


416  CLEMENTS  v.  BOLSTER. 

Opinion  of  the  Qoxxrt.  [6  Pa.  Superior  Ct. 

plaintiff,  dated  January  24, 1894.  The  trial  judge  held  that 
these  letters  formed  "  a  complete  contract  for  the  purchase  and 
sale  of  the  monument "  to  wliich  they  referred.  This  instruc- 
tion to  the  jury  is,  inter  alia,  assigned  for  error.  Unless,  there- 
fore, the  letters  present  such  a  contract,  the  declaration  discloses 
no  ground  on  which  the  plaintiff  can  recover,  and  the  instruc- 
tion complained  of  was  erroneous. 

These  letters,  as  set  forth  in  the  declaration  and  shown  on 
trial,  we  quote  in  full.     The  defendants  first  wrote  as  follows : 

"Ephrata,  Pa.,  January  23, 1894. 
"  Mb.  Charles  Clements  : 

"  Dear  Sir :  We  have  sold  monument  No.  647,  of  your  De- 
sign Dmpery  spire  first  size.  Spire  1.5x1.5x11.6  Plinth 
2.0X2.0X1.3.  Cap  3.2X3.2X2.1.  Die  3.2x3.2x1.4.  Base 
4.4x4.4x1.6.  To  be  dark  quincy  granite,  first  class  job.  To 
be  six  raised  letters  for  name  on  base  3  1/2  in.  large  deep  3/8 
in.  sunk  letters,  for  inscription  60, 1 1/2  inches  large.  We  will 
give  you  for  this  monument  in  complete  order,  six  hundred  dol- 
lars. There  must  be  letter  '  B '  instead  of  *  H '  in  cap,  this  is 
the  best  we  can  do.  It  also  takes  headstone  which  we  will  take 
yet  and  pay  extra  for  it.  We  would  also  like  to  have  your  der- 
rick to  set  up  the  monument.  We  will  pay  freight  on  derrick 
to  return.  We  calculate  to  do  more  business  with  you  in  the 
future.  We  will  pay  for  monument  as  soon  as  set  up." 
"  Yours  very  respectfully, 

"  George  Bolster  &  Sons." 

To  this  the  plaintiff  replied  on  the  following  day : 

"Boston,  Mass.,  January  24, 1894. 
"  Messrs.  George  Bolster  &  Sons,  Ephrata,  Pa  : 

"  Dear  Sir :  I  have  your  favor  of  the  23d,  giving  order  for 
No.  647  at  $600,  including  lettering  to  amount  you  named.  I 
have  entered  your  order,  but  if  you  can  give  me  $15.00  more 
on  this  I  would  like  to  have  you  allow  it ;  cutting  the  price  to 
$600  and  not  allowing  anything  for  the  lettering  makes  it  rock 
bottom  for  good  work  and  stock  which  I  intend  to  give  you  in 
this  monument. 

"  Now  as  to  derrick  you  would  hardly  want  one  sent  from 
here  as  that  would  be  too  expensive  for  you.  Why  not  get  one 
from  Philadelphia  or  Harrisburg.     This  will  save  you  money. 


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CLEMENTS  v.  BOLSTER.  417 

1898.]  Opinion  of  the  Court. 

I  think  I  can  put  you  in  correspondence  with  parties  that  \lill 
loan  you  a  derrick  or  set  the  work  for  you. 

"  Yours  truly, 

"  Chables  Clements. 
"P.  S.  Send  on  the  lettering." 

The  principles  on  which  the  legal  effect  of  these  letters  is  to 
be  determined  are  thus  defined  by  Mr.  Justice  Sekgeant,  in 
Slaymaker  v.  Irwin,  4  Wharton,  369 :  "  It  is  incumbent  on  a 
party  suing  to  recover  damages  for  breach  of  contract,  to  make 
out  a  clear  case  of  some  matter  or  thing  mutually  assented  to, 
and  agreed  upon  by  the  parties  to  the  alleged  contract.  When 
the  agreement  is  in  writing,  signed  and  executed  by  the  parties, 
their  assent  to  all  that  is  contained  in  it,  is  no  longer  a  matter 
of  dispute ;  the  questions  which  arise  in  such  a  case  are  of  a 
different  character.  But  when  it  is  epistolary,  consisting  of  a 
series  of  letters,  containing  inquiries,  propositions  and  answers, 
it  is  necessary  that  some  point  should  be  attained,  at  which  the 
distinct  proposition  of  the  one  party  is  unqualifiedly  acceded  to 
by  the  other,  so  that  nothing  further  is  wanting  on  either  side, 
to  manifest  that  aggregatio  mentium,  which  constitutes  an 
agreement,  and  that  junction  of  wills  in  the  same  identical 
manner,  offered  on  one  side  and  concurred  in  by  the  other, 
bringing  everytliing  to  a  conclusion,  which  in  contemplation  of 
law  amounts  to  a  conti-act.  If  a  proposition  be  made  by  one 
man  to  another,  to  purchase  an  article  from  him  at  a  certain 
price  and  on  certain  terms,  which  is  accepted  as  offered,  there 
is  then  an  agreement  or  contract.  But  if,  instead  of  accepting 
it,  the  party  declines  so  doing,  and  then  new  terms  of  purchase 
are  offered,  the  assent  is  yet  to  be  given  by  the  other  to  the 
terms  thus  varied.  It  is  not  a  contract — it  is  the  suggestion  or 
proposal  of  a  new  subject  of  contract,  on  which  the  first  party 
has  again  a  right  to  pause,  to  consider,  to  accept,  to  reject,  to 
suggest  new  terms ;  and  all  is  in  the  meantime  merely  negotia- 
tion. Mr.  Chitty,  in  his  General  Practice,  in  treating  of  the 
question,  when  the  contract  may  be  collected  from  several  docu- 
ments or  letters,  extracts  this  iTile  from  the  authorities  :  '  This 
whole  terms  of  the  contract  when  in  writing  need  not  be  ex- 
pressed on  the  same  paper  or  documents,  but  may  be  collected 
from  several  letters  containing  proposals  and  alternate  agree- 
VOL.  VI— 27 


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418  CLEMENTS  v.  BOLSTER. 

Opinion  of  the  Court.  [6  Pa.  Saperior  Ct 

ments  between  the  parties ;  but  then  the  last  communication, 
must  be  a  distinct  and  unqualified  assent,  to  an  equally  clear 
proposal;  and  if  the  last  letter  suggest  any  new  or  further 
proposition,  requiring  the  assent  of  the  other  party,  or  some 
communication  from  him  to  complete  the  transaction,  then  no 
contract  or  agreement  is  constituted : '  1  Chitty,  Gen.  Prac.  118." 

In  Joseph  v.  Richardson,  2  Pa.  Superior  Ct.  208,  in  an  opinion 
by  the  president  judge  of  this  court,  it  was  said  on  this  subject : 
"  To  constitute  a  contmct  the  acceptance  of  the  offer  must  be 
absolute  and  identical  with  the  terms  of  the  offer.  If  one  offers 
another  to  do  a  definite  thing,  and  that  other  person  accepts 
conditionally,  or  introduces  a  new  term  into  the  acceptance,  his 
answer  is  either  a  mere  expression  of  willingness  to  ti-eat,  or  it 
is  in  effect  a  counter  proposal.     This  is  elementary  law." 

According  to  all  the  authorities,  a  contract  is  not  created  by 
proposals  and  counter  proposals ;  it  arises  only  from  the  accept- 
ance of  a  proposal.  And  this  acceptance  must  be  in  exact  con- 
formity with  the  proposal ;  the  minds  of  the  parties  must  meet 
on  every  point  presented  in  the  offer.  An  acceptance  qualified 
in  any  manner,  or  accompanied  by  any  reservation,  or  new  pro- 
posal, is  not  that  union  of  minds  in  which  the  law  recognizes  a 
contract.  An  offer  is  not  converted  into  a  contract  by  a  response 
proposing  a  deviation  from  its  terms ;  it  becomes  a  contract  only 
when  accepted  in  precise  accordance  with  its  terras. 

It  is  evident  from  an  examination  of  the  letters  of  January  23d 
and  24th,  that  the  proposals  of  the  defendants  were  not  "  un- 
qualifiedly acceded  to  "  by  the  plaintiff.  On  the  contrary,  he 
proposed  a  change  in  the  price,  and  suggested  a  substitute  for 
the  sending  of  a  derrick  which  formed  part  of  the  offer.  We 
cannot  say  that  this  part  of  the  offer  was  immaterial.  The  de- 
fendants regarded  it  as  of  sufficient  importance  to  be  embraced 
in  their  proposal,  arid  on  this  point  we  are  not  to  revise  their 
judgment  and  substitute  our  own.  The  plaintiff  could  not  hold 
the  defendants  to  their  offer  by  accepting  it  in  part ;  there  could 
be  no  contract  without  its  acceptance  as  a  whole.  The  varia- 
tion proposed  by  the  plaintiff  was,  in  legal  effect,  a  rejection  of 
the  offer,  and  precluded  its  acceptance  thereafter,  without  the 
subsequent  assent  of  the  defendants.  ^^  An  acceptance,  upon 
terras  varying  from  those  offered,  is  a  rejection  of  the  offer,  and 
puts  an  end  to  the  negotiations,  ....  unless  renewed  by  the 


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CLEMENTS  v.  BOLSTER.  419 

1898.]  Opinion  of  Uie  Court. 

proposer,  or  he  assents  to  the  modification  suggested : "  Railway 
Co.  V.  Rolling  Mill  Co.,  119  U.  S.  149;  1  Benjamin  on  Sales, 
page  106.  The  letters  of  the  parties,  in  the  present  case,  re- 
cited in  the  declaration  as  forming  the  conti*act  on  which  the 
plaintiff  seeks  to  recover,  do  not  exhibit  an  offer  with  an  accept- 
ance in  such  terms  as  to  create  a  contract,  and  the  seventh  as- 
signment is  sustained. 

A  letter  from  the  defendants  to  the  plaintiff,  dated  January  26, 
1894,  indicates  a  modification  of  the  proposals  contained  in  the 
first  two  letters ;  and  in  a  letter  to  the  defendants,  dated  July  9, 
1894,  the  plaintiff  says,  "  I  accepted  the  conditions  named  in 
your  letter  of  the  26th."  Whether  the  letters  written  in  Jan- 
uary, 1894,  taken  together,  form  a  contract,  it  is  unnecessary  now 
to  decide;  but  if  there  was  a  sale  of  the  monument  mentioned  in 
the  first  two  letters  on  terms  other  than  those  indicated  in  those 
letters,  the  plaintiff  has  a  right  to  recover  in  accordance  with  such 
terms,  though  it  may  become  necessary  to  amend  the  declaration 
to  make  the  final  agreement  admissible.  In  this  connection 
the  plaintiff's  letter  dated  April  9,  1894,  becomes  material,  and 
should  be  admitted,  while  in  the  absence  of  a  contract  between 
the  parties  its  rejection  did  the  defendants  no  harm.  The 
plaintiff  contends  that  the  word  "  monument,"  as  used  in  this 
letter,  corresponds  in  meaning  to  the  word  "  headstone,"  also 
used,  and  that  both  refer  to  the  stone  therein  offered  for  sale. 
The  defendants  insist  that  it  refers  to  the  monument  mentioned 
in  the  two  letters  set  forth  in  the  declaration,  and  tends  to  sus- 
tain their  contention  that  no  contract  for  that  monument  had 
yet  been  made.  While  the  construction  of  a  writing  is,  in  gen- 
eral, for  the  court,  yet  where  ''  words  used  in  a  contract  are 
technical,  or  local,  or  generic  or  indefinite,  or  equivocal,  on  the 
face  of  the  instrument,  or  made  so  by  proof  of  extrinsic  circum- 
stances, parol  evidence  is  admissible  to  explain  by  usage  their 
meaning  in  the  given  case : "  Brown  v.  Brooks,  25  Pa.  210. 
Where  words  are  susceptible  of  two  interpretations,  the  ambi- 
guity growing  out  of  the  manner  in  which  they  are  used  in  the 
instrument  may  be  relieved  by  showing  their  meaning  in  the 
trade  in  which  they  are  employed  and  to  which  they  are  pecu- 
liar :  McDonough  v.  Jolly  Bros.,  165  Pa.  542.  Parol  evidence, 
which  is  explanatory  of  the  subject-matter  of  a  written  contract, 
consistent  with  its  terms  and  necessary  for  its  interpretation,  is 


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420  CLEMENTS  r.  BOLSTER, 

Opinion  of  the  Court.  [6  Pa.  Superior  Ct. 

admissible :  Church  v.  Clime,  116  Pa.  146.  Whether,  as  trade 
terms,  at  the  plaintifPs  place  of  business,  at  the  date  of  the  let- 
ter of  April  9, 1894,  the  words  "monument"  and  '* headstone" 
were  regarded  as  so  far  similar  in  meaning  that  either  might  be 
applied  to  such  a  stone  as  that  described  in  the  letter  referred 
to,  can  be  shown  only  by  parol,  and  the  construction  of  this  let- 
ter may  depend  largely  upon  the  evidence  that  may  be  produced 
on  this  point. 

Nothing  in  the  letter  embraced  in  the  thirteenth  assignment 
is  competent  evidence  for  the  plaintiff  except  the  first  sentence 
of  the  last  paragraph,  relating  to  the  delivery  of  the  work,  and 
this  is  competent  only  as  an  offer  to  deliver. 

The  letter  embraced  in  the  fourteenth  assignment  was  prop- 
erly admitted,  as  an  offer  of  deliveiy,  and  notice  that  unless 
accepted  the  work  would  be  sold  on  the  defendant's  account. 
This  was  the  proper  course  for  the  plaintiff  to  pursue,  unless  he 
chose  to  make  delivery  of  the  work  and  sue  for  the  price. 

Nothing  in  the  remaining  assignments  requires  further  notice. 

Judgment  reversed,  and  venire  de  novo  awarded. 


Commonwealth  ex  rel.  Fred  Nuber  v.  Keeper  of  Work- 
house. 

Criminal  law — Practice,  Q,  8.— Suspension  of  sentence— Order  when 
equivalent  to  final  sentence. 

An  order  of  the  court  of  quarter  sessions  which  suspends  sentence  as  to 
a  pait  of  the  penalty  prescribed  by  law  for  an  offense,  and  imposes  a  pe- 
cuniary penalty  upon  the  defendant,  where  fine  and  imprisonment  consti- 
tute the  penalty  affixed  to  the  crime,  is,  to  all  intents  and  purposes,  a 
legal  sentence,  compliance  with  the  terms  of  which  renders  it  illegal  for 
the  court  to  alter  or  reform  the  sentence,  after  the  term  at  which  trial, 
conviction  and  the  said  partial  sentence  occurred,  and  any  sentence  sub- 
sequent thereto  is  illegal  and  void. 

Argued  Jan.  12,  1898.  Appeal,  No.  2,  Miscellaneous 
Docket,  April  T.,  1898,  by  Fi-ed  Nuber,  relator,  from  sen- 
tence of  Q.  S.  Erie  Co.,  Nov.  Sessions,  1896,  No.  9,  on  verdict 
of  guilty.  Before  RiOB,  P.  J.,  Wiokham,  Beaveb,  Oblady, 
Smith  and  Pobteb,  JJ.    Reversed. 


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COMMONWEALTH  r.  NUBER.  421 

1898.]  St4itement  of  Facts. 

Indictment  for  receiving  stolen  goods.  Before  Milleb,  P.  J., 
of  the  35th  judicial  district,  specially  presiding. 

It  appears  from  the  record  that  Lizzie  Nuber  was  indicted, 
tried  and  convicted  at  the  November  sessions,  1896,  of  the  court 
of  quarter  sessions  of  Erie  county  for  receiving  stolen  goods, 
and  that  at  said  term  sentence  of  imprisonment  was  suspended 
on  the  following  order,  made  by  the  court  which  was  complied 
with  by  the  defendant,  the  order  being  as  follows :  "And  now, 
November  19, 1896,  on  recommendation  of  district  attorney,  the 
sentence  of  imprisonment  in  the  case  of  the  Commonwealth  v. 
Lizzie  Nuber  is  suspended  for  the  present  and  during  good  be- 
havior upon  her  paying  the  costs  of  prosecution,  paying  1200 
to  the  clerk  of  the  courts  for  the  use  of  the  Erie  County  Law 
Library,  and  paying  a  sum  not  to  exceed  ilOO  to  reimburse  the 
New  York,  Chicago  &  St.  Louis  R.  R.  Co.  for  damage  done  to 
goods  which  were  stolen  and  received  by  the  defendant." 

On  November  30,  1896,  the  clerk  of  the  court  receipted  for 
f894.28  "  to  apply  on  costs,  leaving  the  amount  due  the  New 
York,  Chicago  &  St.  Louis  R.  R.  Co.  unpaid."  Subsequently 
the  committee  of  the  Law  Library  receipted  for  the  $200  di- 
rected to  be  paid  by  the  order  of  November  19th  as  "  two  hun- 
di-ed  dollars  fine  in  this  case," 

In  December,  1896,  the  clerk  of  the  court  receipted  for  f  100, 
"being  the  amount  of  money  to  be  paid  to  the  New  York, 
Cliicago  &  St  Louis  R.  R.  Co.  to  reimburse  &em  for  damage 
done  to  goods  which  were  stolen  and  received  by  defendant,  as 
per  order  of  court" 

On  May  25, 1897,  the  court  sentenced  the  defendant,  Lizzie 
Nuber  to  pay  a  fine  of  $1.00  to  the  commonwealth  for  the  use 
of  the  Erie  County  Law  Library,  pay  the  costs  of  prosecution, 
restore  the  property  stolen  if  not  already  restored,  or  pay  the 
owner  the  full  value  thereof,  and  undergo  imprisonment  in  the 
Allegheny  county  workhouse  for  and  during  a  period  of  two 
years,  there  to  be  kept,  fed,  clothed  and  treated  as  the  law  di- 
rects, and  stand  committed  until  the  sentence  be  complied  with. 

It  appears  also  from  the  record  that  there  are  four  terms  of 
quarter  sessions  and  'oyer  and  terminer  in  the  county  of  Erie 
fixed  by  rule  of  court  as  follows :  One  term  commencing  the 
first  Monday  of  September  to  continue  three  weeks,  one  term 
commencing  the  second  Monday  in  November  to  continue  two 


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422  COMMONWEALTH  v,  NUBER. 

Statement  of  Facts— Arguments.  [6  Pa.  Superior  Ct. 
weeks,  one  term  commencing  the  first  Monday  in  Febiniary  to 
continue  tliree  weeks  and  one  term  commencing  the  second 
Monday  in  May  to  continue  two  weeks. 

A  petition  was  subsequently  filed  by  Fred  Nuber,  husband  of 
defendant,  reciting  the  facts  as  above  set  out  and  suggesting 
"  that  the  sentence  of  imprisonment  imposed  May  25,  1897,  is 
illegal  and  void  for  the  reason  that  there  being  only  four  regu- 
lar terms  of  quarter  sessions  in  the  said  county  of  Erie,  the  said 
court  had  no  jurisdiction  in  said  matter  after  the  ending  of  the 
November  sessions,  1896,  at  which  conviction  was  had  and  the 
first  sentence  imposed  and  entered  upon ;  that  the  said  Lizzie 
Nuber  is  unlawfully  detained  in  the  custody  of  the  keeper  of 
the  Allegheny  county  workhouse,  upon  a  sentence  and  commit- 
ment of  a  court  without  jurisdiction,  and  your  petitioner  there- 
fore prays  that  a  writ  of  habeas  corpus  may  issue  according  to 
the  act  of  assembly  in  such  case  made  and  provided,  so  that  the 
said  Lizzie  Nuber  may  be  brought  before  your  honorable  court 
to  do,  submit  to,  and  receive  what  the  law  may  require." 

The  petition  being  allowed,  a  writ  of  habeas  corpus  was  issued 
and  at  the  same  time  in  accordance  with  the  order  of  the  court, 
a  certiorari  was  also  issued  which  brought  up  the  entire  I'ecord. 

W.  G.  CroBhy^  of  FUh  ^  Crosht/^  for  the  relator. — The  relator 
contends  that  if  the  first  order  or  judgment  of  the  court  was  a 
sentence  to  pay  a  fine,  then  after  said  November  term  the  said 
court  had  no  fui-ther  jurisdiction  in  said  case,  and  the  latter 
order  or  sentence  of  said  court  was  illegal  and  void. 

The  act  of  March  31,  1860,  sec.  109,  provides  that  one  con- 
victed of  the  crime  of  receiving  stolen  goods  shall  be  sentenced 
to  pay  a  fine  and  undergo  imprisonment. 

A  sentence  is  the  final  determination  of  a  criminal  court.  It 
is  a  conclusion  of  the  law  and  not  of  the  judge. 

Fine  is  a  pecuniaiy  punishment  imposed  by  the  judgment  of 
the  court,  a  sentence  to  pay  a  penalty  in  money,  and  the  terms, 
fine,  penalty  and  punishment  as  used  in  that  sense,  have  been 
declared  to  be  synonymous :  U.  S.  v.  Reisinger,  128  U.  S.  398 ; 
19  Am.  &  Eng.  Ency.  of  Law,  569. 

Under  all  legal  principles  the  orders  and  judgments  of  court 
should,  when  possible,  be  construed  to  have  been  exercised 
under  full  power  and  authority  until  the  contrary  is  shown. 


Digitized  by  VjOOQ IC 


COMMONWEALTH  v.  NUBER.  423 

1898.]  Arguments — Opinion  of  the  Court. 

In  the  light  of  such  a  construction  the  order  of  the  court  of 
Erie  county  in  No.  9,  November  sessions,  1896,  made  Novem- 
ber 19,  1896,  was  the  imposing  of  judgment  or  sentence,  to  the 
extent  of  a  fine  or  pecuniary  punishment,  and  as  such  was  final, 
and  any  subsequent  sentence  of  imprisonment  after  the  term 
was  error. 

A  court  may  suspend  the  judgment  over  a  criminal,  in  toto, 
until  another  tenn,  but  has  no  power  to  impose  two  sentences 
for  a  single  offense  by  imposing  a  fine  and  at  a  later  term  super- 
adding imprisonment :  Com.  v.  Ketner,  92  Pa.  372 ;  Com,  v. 
Perkins,  124  Pa.  36;  United  States  v.  Pile,  130  U.  S.  280, 
Com.  V.  Foster,  122  Mass.  317. 

No  appearance  or  paper-book  for  appellee. 

Opinion  by  Bbavbb,  J.,  February  19, 1898  : 
The  relator  presented  his  petition  to  this  court,  alleging  that 
his  wife,  Lizzie  Nuber,  was  illegally  detained  by  the  defendant, 
by  reason  of  an  alleged  sentence  of  the  court  of  quarter  sessions 
of  the  county  of  Erie,  passed  upon  her  on  the  25th  day  of  May, 
1897,  and  pmying  that  a  writ  of  habeas  corpus  might  issue  to 
bring  her  before  this  court,  in  order  that  the  legality  of  the 
sentence  under  which  she  was  confined  might  be  determined. 
The  writ  was  allowed  and  she  was  regarded  by  consent  as  con- 
structively present  at  the  argument  of  the  case.  At  the  same 
time  in  accordance  with  our  order  a  writ  of  certiorari  issueil 
which  brought  up  the  entire  record. 

The  relator's  wife,  who  was  the  defendant  in  the  case  of  the 
Commonwealth  v.  Lizzie  Nuber,  in  the  court  of  quarter  sessions 
of  Erie  county,  was  convicted  on  the  18th  day  of  November, 
1896,  of  the  crime  of  receiving  stolen  goods.  The  109th  sec- 
tion of  the  Act  of  March  31,  1860,  P.  L.  382,  provides  that 
'^  If  any  person  shall  buy  or  receive  any  goods,  chattels,  money^^ 
or  securities  or  any  other  matter  or  thing,  the  stealing  of  which 
is  made  larceny  by  any  law  of  this  commonwealth,  knowing  the 
same  to  be  stolen  or  feloniously  taken,  such  person  shall  be 
guilty  of  felony  and,  on  conviction,  suffer  the  like  pains  and 
penalties  which  are  by  law  imposed  upon  the  person  who  shall 
have  actually  stolen  or  feloniously  carried  away  the  same."  The 
103d  section  of  the  same  act  provides  that  *'  If  any  person  shall 


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424  COMMONWEALTH  v,  NUBER 

Opinion  of  the  Ck>urt.  [6  Pa.  Superior  Ct 

be  guilty  of  lai-ceny,  he  shall  on  conviction  be  deemed  guilty  of 
felony  and  be  sentenced  to  pay  a  fine  not  exceeding  five  hun- 
dred dollars  and  to  undergo  an  imprisonment  by  separate  or  soli- 
tary confinement  at  labor  not  exceeding  three  years."  On  the 
19th  day  of  November,  1896,  the  following  order  or  judgment 
was  entered  by  the  court :  "  On  recommendation  of  the  district 
attorney,  the  sentence  of  imprisonment  in  the  case  of  the  Com- 
monwealth V.  Lizzie  Nuber  is  suspended  for  the  present  and 
during  good  behavior  upon  her  paying  the  costs  of  prosecution, 
paying  two  hundred  dollars  to  the  clerk  of  the  courts  for  the 
use  of  the  Erie  County  Law  Library  and  paying  a  sum,  not  to 
exceed  one  hundred  dollars,  to  reimburse  the  New  York,  Chicago 
&  St.  Louis  Railroad  Company  for  damage  done  to  goods  which 
were  stolen  and  received  by  the  defendant." 

Under  the  provisions  of  the  Acts  of  Assembly  of  April  17, 
1866,  P.  L.  962,  and  of  April  8,  1872,  P.  L.  752,  all  fines 
imposed  by  the  courts  of  the  county  of  Erie,  which  do  not  by 
law  go  to  the  school  fund  of  said  county,  were  made  payable  to 
a  committee  therein  named  for  the  purchase  of  a  law  library  for 
the  said  county  of  Erie,  etc.  The  record  shows  that  the  costs 
were  fully  paid,  that  "  two  hundred  dollars  fine  in  this  case  " 
was  receipted  for  by  the  treasurer  of  Erie  County  Law  Libraiy 
December  3,  1896,  and  that  the  attorney  of  the  New  York, 
Chicago  &  St  Louis  Railroad  received  "one  hundred  dollars,  it 
being  amount  of  money  to  be  paid  New  York,  Chicago  &  St 
Louis  Railroad  Co.  to  reimburse  them  for  damage  done  to  goods 
which  were  stolen  and  received  by  defendant,  as  per  order  of 
coui-t,  December  19,  1896." 

On  the  25th  day  of  May,  1897,  the  court  made  this  record : 
"  The  court  sentences  the  defendant,  Lizzie  Nuber,  to  pay  a  fine 
of  one  dollar  to  the  commonwealth  (for  the  use  of  the  Erie 
County  Law  Library),  pay  the  costs  of  prosecution,  restore  the 
property  stolen,  if  not  already  restored,  or  pay  the  owners  the 
full  value  thereof,  and  undergo  an  imprisonment  in  the  Alle- 
gheny County  Workhouse  for  and  during  the  period  of  two 
years,  there  to  be  kept,  fed,  clothed  and  treated  as  the  law  di- 
rects, and  stand  committed  until  the  sentence  be  complied  with." 
If  the  order  of  the  court  of  November  19, 1896,  were  a  sentence 
of  the  defendant,  then  the  sentence  passed  upon  her  May  25. 
1897,  supra,  is  illegal  and  void,  inasmuch  as  a  defendant  cannot 


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COMMONWEALTH  v.  NUBER.  425 

1898.]  Opinion  of  the  Court. 

be  twice  sentenced  for  the  same  offense,  nor  have  the  criminal 
courts  of  this  state  the  power  to  reconsider  a  sentence  after  the 
term  at  which  it  was  pronounced :  Commonwealth  v.  Mayloy, 
67  Pa.  291.  It  will  be  observed  that  the  order  of  November  19tli, 
supra,  is  not  a  general  suspension  of  sentence.  According  to 
its  terms  ^^  the  sentence  of  imprisonment  in  the  case  of  Common- 
wealth V.  Lizzie  Nuber  is  suspended  for  the  present  and  during 
good  behavior."  The  penalty  imposed  by  law  for  the  offense 
of  which  the  defendant  was  convicted  is  fine  and  imprisonment. 
If  the  amount  directed  to  be  paid  to  the  Erie  County  Law 
Library  was  a  fine,  the  said  order  was  at  least  in  part  the  sentence 
which  is  authorized  by  law ;  if  it  was  not  a  fine,  the  court  had 
no  legal  right  to  impose  nor  had  the  Erie  County  Law  Library 
any  authority  of  law  to  receive  it. 

The  direction  to  pay  the  costs  in  a  criminal  proceeding  is  not 
a  sentence  in  the  sense  of  its  being  a  part  of  the  penalty- imposed 
by  law.  It  is  rather  an  incident  of  the  judgment,  but  the  sen- 
tence is  nevertheless  used  as  the  means  of  enforcing  payment. 
In  common  practice  the  sentence  in  case  of  a  conviction  of  lar- 
ceny or  of  receiving  stolen  goods  consists  of  four  parts :  the  pay- 
ment of  costs,  the  restoration  of  the  goods  or  the  payment  of  the 
value  thereof,  the  payment  of  a  fine,  and  imprisonment.  Three 
of  these  ingredients  or  parts  of  the  ordinary  sentence  are  found 
in  the  order  of  the  court  of  the  19th  of  November,  1896.  It  is 
to  be  presumed  that  the  court,  in  making  the  said  order,  acted 
within  the  limits  of  lawful  authority.  If  it  did,  the  order  was, 
to  all  intents  and  purposes,  a  sentence  of  the  defendant.  It 
matters  not  what  the  sum  of  money  paid  into  court  for  the  ben- 
efit of  the  Erie  County  Law  Library  may  be  called.  It  was  a 
pecuniary  penalty  imposed  upon  the  defendant,  by  virtue  of  the 
conviction  by  the  jury  of  the  crime  with  which  she  was  charged, 
the  only  authority  for  its  imposition  being  the  right  conferred 
by  the  act  of  assembly  to  impose  a  fine  as  part  of  the  penalty 
incurred  by  the  commission  of  the  crime.  It  will  not  do  to  say 
that  it  was  an  agreement  made  by  the  court  with  the  defendant 
which  she  could  comply  with  or  decline,  as  she  chose.  Such  a 
proposition  shocks  tiie  moral  sense  as  well  as  the  legal  instinct. 
It  is  equivalent  to  saying  that  the  court,  without  any  authority 
of  law,  made  such  an  agreement.  This  we  would  be  slow  to 
assume  under  any  circumstances,  and  it  is  not  necessary  in 


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426  COMMONWEALTH  v,  NUBER. 

Opinion  of  the  Court.  [6  Pa.  Saperior  Ct. 

this  case,  for  the  court  suspended  sentence  only  as  to  impris- 
onment and,  therefore,  must  have  acted  within  and  under  the 
provisions  of  the  law,  affixing  the  penalty  to  the  crime  of  which 
the  defendant  was  convicted,  so  far  as  the  fine  or  the  payment 
of  money  as  a  penalty  was  concerned,  otherwise  it  acted  not 
only  without  lawful  authority  but  in  disregard  of  its  own  order. 
Moreover,  the  defendant  was  hel pless.  Notwithstanding  all  that 
may  be  said  to  the  contrary,  she  would  naturally  feel  that  the 
order  of  the  court  must  be  complied  with  or  that  she  would  suf- 
fer in  the  end.  The  powerwhich  would  and  doubtless  did  move 
her  to  comply  with  the  terms  of  the  order  of  the  court  is  the 
same  which  in  its  last  analysis  impels  obedience  to  all  orders, 
judgments  and  sentences  of  all  courts — the  fear  of  worse. 

The  imposition  of  what  is  called  the  regular  sentence,  on  the 
25th  of  May,  1897,  was  the  second  term  after  conviction  and  the 
order  of  the  19th  of  November,  which  immediately  followed. 
By  the  terms  of  that  sentence  she  was  directed  to  pay  a  fine  of 
one  dollar  to  the  commonwealth  for  the  use  of  the  Erie  County 
Law  Library— she  had  already  paid  $200  under  the  previous 
order ;  to  pay  the  costs  of  prosecution — which  had  been  over- 
paid, as  appeal's  by  the  record,  under  the  previous  order ;  to  re- 
store the  property  stolen,  if  not  already  restored,  or  pay  the 
owners  the  full  value  thereof — which  had  been  done,  under  the 
provisions  of  the  former  order,  as  appears  by  the  receipt,  upon 
the  record,  of  the  attorney  of  the  railroad  company.  It  is  to  be 
presumed  that  the  court  had  no  intention  of  compelling  the  pay- 
ment of  the  costs  which  had  already  been  paid  and  of  making 
good,  a  second  time,  the  value  of  the  property  stolen.  But  we 
can  see  no  warrant  in  law,  in  view  of  what  has  been  said  in  re- 
gard to  the  order  of  the  19th  of  November,  for  the  im])osition 
of  an  additional  fine  and  the  sentence  to  imprisonment  which 
followed,  if  the  said  order  was  in  law,  as  it  undoubtedly  was  in 
fact,  a  sentence  of  the  defendant. 

In  view  of  the  limited  or  only  partial  suspension  of  sentence 
and  of  the  imposition  of  a  pecuniary  penalty  which  has  no  jus- 
tification in  law,  except  as  a  fine  provided  by  the  act  of  assem- 
bly which  affixes  the  penalty  to  the  crime  of  which  the  defendant 
was  found  guilty,  we  feel  bound  to  hold  that  the  order  of  the 
19th  of  November,  1896,  was  a  legal  sentence.  But  it  may  be 
urged  that  the  court  did  not  exhaust  the  penalty  and  that, 


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COMMONWEALTH  v.  NUBER.  427 

1898.]  Opinion  of  the  Court. 

inasmuch  as  the  law  provides  for  a  fine  and  imprisonment,  the 
sentence  was  not  complete  and,  therefore,  illegal.  But,  as  was 
said  in  Commonwealth  v.  Mayloy,  supra :  "  The  common  law 
principle  of  the  finality  of  judgments  is  at  once  an  answer  to 
the  argument  and  a  refutation  of  the  idea  that  the  power  to 
interpose  exists  after  the  term  has  passed."  The  power  of  the 
court  was  exhausted ;  its  sentence  could  not  be  amended ;  "  it 
might  have  been  during  the  term  but  not  afterward : "  Beale 
V.  The  Commonwealth,  25  Pa.  11. 

We  do  not  determine,  nor  are  we  called  upon  to  determine, 
what  might  have  been,  if  the  defendant  had  failed  to  comply 
with  the  terms  of  the  order  above  referred  to.  She  did  comply 
with  them.  True,  not  within  the  tenn  at  which  the  order  was 
made ;  but,  if  the  commonwealth  had  wished  to  take  advantage 
of  her  failure  to  do  so,  the  motion  to  reform  the  sentence  should 
have  been  made  duiing  term  time.  We  have  been  greatly 
aided  in  reaching  a  conclusion  in  this  case  by  the  reasoning  of 
Dixon,  J.,  in  State  v.  Addy,  14  Vroom,  113,  39  Am.  Rep.  547, 
and  the  exhaustive  discussion  of  the  general  subject  in  Ex  parte 
Lange,  18  WaU.  163. 

We  have  not  discussied,  nor  are  we  called  uj)on  to  discuss  in 
this  connection  the  almost  universal  practice  in  this  common- 
wealth of  the  suspension  of  sentence,  upon  the  payment  of  costs, 
where  considerations  of  public  policy  may  and  ought  to  induce 
the  court  to  stay  its  hand.  We  say  nothing  in  regard  to  this 
practice.  On  the  whole,  the  power  which  it  implies  has  been 
judiciously  exercised,  so  far  as  our  knowledge  and  information 
extend;  nor  is  it  necessary  to  say  anything  as  to  the  practice 
which  has  been  recognized  and  is  alluded  to  in  Commonwealth 
V.  Mayloy,  supra,  in  which  Chief  Justice  Thompson  says: 
"  The  court  has  power  to  remand  and  hold  convicts  for  sentence 
as  long  as  may  be  deemed  necessary  and  advantageous  to  the 
ends  of  justice,  and,  in  the  meantime,  may  receive  information 
in  addition  to  that  disclosed  on  the  trial  in  regard  to  what 
should  be  an  appropriate  sentence  under  the  circumstances, 
where  the  court  has  a  discretion  on  the  subject." 

What  we  do  now  decide  specifically  is  that  an  order  of  the 
court  of  quarter  sessions  which  suspends  sentence  as  to  a  part 
of  the  penalty  prescribed  by  law  for  an  offense  and  imposes  a 
pecuniary  penalty  upon  the  defendant,  where  fine  and  imprison- 


Digitized  by  VjOOQ IC 


428  COMMONWEALTH  v.  NUBER. 

Opinion  of  the  Court.  [6  Pa.  Superior  Ct 

ment  constitute  the  penalty  affixed  to  the  crime,  is,  to  all  intents 
and  purposes,  a  legal  sentence,  compliance  with  the  terms  of 
which  renders  it  illegal  for  the  court  to  alter  or  reform  the 
sentence,  after  the  term  at  which  trial,  conviction  and  the  said 
partial  sentence  occurred,  and  that  any  sentence  subsequent 
thereto  is  illegal  and  void. 

Whereupon  it  is  now  considered  and  adjudged  that  the  judg- 
ment of  the  court  of  quarter  sessions  for  the  county  of  Erie, 
entered  May  25,  1897,  in  which  the  court  sentences  "the 
defendant,  Lizzie  Nuber,  to  pay  a  fine  of  one  dollar  to  the  com- 
monwealth, for  the  use  of  the  Erie  County  Law  Library,  pay  the 
costs  of  prosecution,  restore  the  property  stolen,  if  not  already 
restored,  or  pay  the  owners  the  full  value  thereof,  and  undergo 
an  imprisonment  in  the  Allegheny  county  workhouse,  for  and 
during  the  period  of  two  years,  there  to  be  kept,  fed,  clothed 
and  treated  as  the  law  directs,  and  stand  committed,  until  the 
sentence  be  complied  with  "  be  reversed  and  annulled ;  and  it 
is  further  ordered  that  the  said  Lizzie  Nuber  be  released  from 
her  confinement  in  tlie  Allegheny  county  workhouse,  and  that 
the  record  be  remitted  to  the  said  court  of  quarter  sessions  for 
further  proceedings,  in  conformity  with  the  opinion  of  this  court 
herein  expressed,  and  of  this  order ;  costs  of  the  proceedings 
in  this  court  to  be  paid  by  the  county  of  Erie. 


Hugh  McNeile  v.  Martha  Cridland  and  Ella  Cridland, 

Appellants. 

Evidence — InadmissibilUy  of  post  cotUraciual  representations  in  deceiL 
In  an  action  on  a  contract  evidence  was  properly  rejected  which  was 
offered  in  support  of  alleged  representations  made  by  the  plaintiflTs  agent 
after  the  contract  in  controversy  had  been  entered  into ;  such  representa- 
tions even  if  false  would  not  legitimately  tend  to  establish  the  defense, 
which  was  deceit. 

Appeals — Applicalion  for  new  trial— After-discovered  tesUmony  —  Dis- 
cretion of  court. 

Applications  for  new  trial  based  on  allegations  of  after-discovered  testi- 
mony are  addressed  to  the  sound  discretion  of  the  trial  court,  and  only  in 
clear  cases  of  abuse  of  discretion,  if  ever,  is  the  refusal  of  the  applica- 
tion assignable  for  error. 


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McNEILE  V.  CRIDLAND.  429 

1898.]  Sjllabos— Statement  of  Facts. 

Charge  of  caurt^CoinmerUs  on  iesHmony— Effect  of  charge  as  a  whole. 

The  charge  of  the  couit  is  not  open  to  exception  when  the  effect  of  its 
comments,  taken  as  a  whole,  was  to  lead  the  juiy  to  the  conclusion,  not 
that  the  plaintiff's  version  of  a  conyersation  was  the  mora  probable,  but 
that  his  version  did  not  differ, in  legal  effect,  upon  the  question  at  issue* 
from  that  of  tlie  defendant. 

It  is  not  error  for  the  trial  judge  to  comment  on  the  testimony  of  a  wit- 
ness and  to  call  attention  to  its  inherent  probability  or  improbability, 
provided  he  does  it  fairly,  and  leaves  the  question  of  his  credibility  to 
the  jury. 

Where  particular  instructions  are  not  asked  for,  and  the  complaint  is 
that  the  charge  was  inadequate  or  one-sided,  the  court  will  be  ^viewed 
on  the  general  effect  of  the  charge  and  not  upon  sentences  or  paragraphs 
disconnected  from  the  context  which  qualifies  and  explains  them ;  if ,  as  a 
whole,  the  charge  was  calculated  to  mislead,  there  is  error  in  the  recoixl ; 
if  not,  there  is  none. 

Argued  Dec.  14,  1897.  Appeal,  No.  8,  Oct.  T.,  1897,  by 
defendants,  from  judgment  of  C.  P.  No.  2,  Phila.  Co.,  Mar.  T., 
1898,  No.  70,  on  verdict  for  plaintiff.  Before  Rice,  P.  J., 
WiCKHAM,  Beaver,  Reedeb,  Oblady,  Smith  and  Por- 
TEB,  JJ.    Affirmed. 

Sci  fa.  sur  mortgage.    Before  Sulzbebgeb,  J. 

It  appears  from  the  evidence  that  defendants  purchased  of 
the  plaintiff  certain  premises  in  Philadelphia  for  the  sum  of 
$4,400,  subject  to  certain  incumbrances,  and  executed  a  bond 
and  mortgage  for  a  portion  of  the  purchase  money,  namely, 
♦1,400  secured  on  the  same,  $1,000  to  be  paid  in  six  months, 
and  $50.00  quarterly  thereafter.  The  agreement  of  sale  made 
in  writing,  on  February  18,  1890,  was  as  follows : 

"  Received  Philadelphia  February  18,  1890,  of  Miss  Martha 
H.  and  Ella  Cridland  the  sum  of  $100  on  account  of  purchase 
money  of  premises  No.  2220  N.  16th  St.  28th  Ward  sold  for 
the  sum  of  $4,400  subject  to  a  mortgage  of  $2,500  thereon. 
Taxes,  interest,  to  be  adjusted  at  date  of  settlement  which  is 
to  be  made  on  or  before  the  25th  day  of  February  1890.  The 
policy  of  insurance  against  fire  to  be  paid  for  by  the  purchaser 
less  10  ^  discount.  Terms  to  be  $500  cash,  $2,500  first  mort- 
gage at  5  3/10,  $1,400  second  mortgage  at  6^  $1,000  to  be  paid 
in  six  months  and  $50  quarterly.  Deed  to  be  made  in  the  name 
of  Miss  Martha  H.  and  Ella  Cridland. 
*'$100. 

"1805  Butler  St 


Digitized  by  VjOOQ IC 


430  McNEILE  t;.  CRIDLAND. 

Statement  of  Facts — Assignment  of  Errors.    [6  Pa.  Superior  Ct. 

"F.  C.  Thomas  1714  S.  8th  St.  will  attend  to  the  convey- 
ancing and  making  settlement  at  office  of  building." 

At  the  expiration  of  six  months  it  was  alleged  that  certain 
material  defects  in  the  building  manifested  themselves,  and 
that  the  defendants,  upon  being  assured  by  the  plaintiff  that 
these  defects  would  be  remedied,  paid  the  $1,000.  Repairs 
were  not  made,  and  no  portion  of  the  balance  being  paid,  suit 
was  brought  upon  the  mortgage. 

At  the  trial  offers  were  made  to  prove  certain  conversations 
between  defendants  and  the  agent  of  the  plaintiff  in  which  it 
was  alleged  that  certain  misrepresentations  were  made  by  said 
agent  and  which  conversations  took  place  on  the  25th  of  Feb- 
ruary, 1890.  This  evidence,  upon  objection  by  the  plaintiff,  was 
Injected.  [1,  2] 

Verdict  and  judgment  for  plaintiff  for  ii681.06.  Defendants 
appealed. 

Error%  assigned  among  others  were  (1,  2)  In  sustaining  plain- 
tiff's objection  to  the  offers  of  evidence  by  defendants  of 
conversations  between  plaintiff  and  defendant  subsequent  to 
February  18,  1890,  the  date  when  the  agreement  of  sale  was 
signed,  under  which  it  was  alleged  that  certain  misi'epresenl»- 
tions  were  made  by  plaintiff's  agent ;  (3)  In  refusing  to  grant 
a  new  trial  based  upon  an  affidavit  of  after-discovered  evidence. 
(4)  In  its  charge  to  the  jury,  taken  as  a  whole,  by  giving  prom- 
inence to  the  evidence  of  the  appellee  without  adequate  refer- 
ence to  evidence  in  contradiction,  which  is  especially  prominent 
in  the  following  abstract :  "  Now  the  evidence  in  this  case  is, 
on  the  part  of  the  Misses  Cridland,  that  they  did  make  the 
question  of  solid  ground  such  a  question,  and  I  do  not  under- 
stand Mr.  Locker  to  deny  it.  Mr.  Locker  said  what  was  per- 
fectly natural,  and  what  appears  to  bear  all  the  evidence  of 
truthfulness  :  '  I  deal  a  great  many  times  in  a  year ;  I  have  had 
many,  many  transactions  since  that  time,  perhaps  hundreds. 
Now,  would  it  be  possible  for  me  truthfully  to  say  that  I  spoke 
to  these  people  on  this  occasion  when  I  sold  perhaps  ninety 
houses  in  that  one  operation  alone,  and  a  great  many  others  in 
other  operations  ? '  Well,  that  impresses  one  as  being  a  badge 
of  truthfulness.  In  short,  if  he  had  said  that  he  really  remem- 
bered every  word  of  the  conversation,  you  might  very  well  ask 


Digitized  by  VjOOQ IC 


McNEILE  v.  CRIDLAND.  481 

1898.]  Assignment  of  Errors. 

yourselves  how  it  is  that  this  man  has  such  a  tremendous  mem- 
ory, such  a  huge  memory  that  iii  all  the  lapse  of  time  and  with 
all  that  multiplicity  of  transactions,  he  can  still  remember  every 
word  that  everybody  had  said,  and  you  might  doubt  the  truth- 
fulness of  such  a  story,  but  here  he  says,  *  I  can't  say,  I  know 
this,  that  McNeile  told  me  these  foundations  were  solid.  They 
were  excellent,  and  if  anybody  asked  me  about  them  I  said 
that.'  From  the  whole  of  that  I  think  you  would  be  fairly  jus- 
tified in  concluding  that  there  was  a  conversation  between  the 
plaintiff  and  defendant  concerning  the  solidity  of  the  founda- 
tion." (5)  In  charging  the  jury  as  follows:  '"The  concrete  cov- 
eiing  of  the  cellar  floor  serves  as  a  platform  which  practically 
bears  very  little  weight.  The  space  under  the  cellar  wall  there 
bears  very  much  weight,  to  wit:  the  weight  of  the  whole  house. 
Now,  if  a  house  comes  down,  they  say  the  joint  between  the 
wall  and  the  cellar  floor  must  be  broken,  that  you  could  not 
have  Hie  walls  settling  down  without  breaking  the  joint  between 
walls  and  the  cellar  floor ;  and  they  say,  furthermore,  that  if 
the  settling  were  uneven  so  that  the  four  walls  would  not  come 
down  at  exactly  the  same  rate,  at  the  same  time,  there  would, 
moreover,  be  a  fi'acture  of  the  comers,  where  one  wall  would 
leave  the  other ;  and  they  say  that  they  examined  that  place 
with  the  greatest  care  and  minuteness,  used  lights,  and  made 
deliberate  inspection,  and  did  not  find  any  evidence  of  such  a 
fracture  in  either  place ;  and  their  professional  opinion  is,  that 
that  condition  of  affairs  being  given,  it  is  impossible  that  there 
could  have  been  a  settling  of  the  foundation.  On  this  point, 
you  know,  Mr.  McBride  (appellant's  witness)  is  equally  posi- 
tive. I  do  not  recollect  that  he  was  able  to  point  to  a  particu- 
lar fracture,  but  when  questioned  by  me  upon  that  subject,  it 
seemed  to  me  that  the  emphasis  of  his  condemnation  increased, 
rather  than  diminished.  He  then,  I  think,  spoke  about  what 
was  the  use  of  discussing  minor  points ;  that  the  whole  block 
was  going  down,  or  something  to  that  effect."  (6)  In  charg- 
ing the  jury  as  follows :  "  If  you  find  that  this  house  has  not 
settled  in  the  foundations ;  that  the  foundation  of  ground  upon 
which  it  is,  is  solid — and  in  that  sense  I  use  foundation  and 
ground  as  identical,  and  that  the  foundation  is  solid  and  that 
the  bouse  has  not  settled  by  reason  of  any  defect  in  the  founda- 


Digitized  by  VjOOQ IC 


432  McNEILE  v.  CRIDLAND. 

Assignment  of  Errors — Arguments.     [6  Pa.  Superior  Ct. 

tions — then  you  are  to  find  a  verdict  for  the  plaintiff  for  the  full 
amount." 

J.  H,  Brinton^  for  appellants. — The  crucial  point  of  the  de- 
fense lies  in  the  misrepresentations  made  to  defendants  by  plain- 
tiff, or  his  agent,  on  the  faith  of  which  the  premises  in  question 
were  purchased. 

The  alleged  agreement  of  February  18, 1890,  is  at  best  but 
un  ex  parte  statement  of  the  plaintiff's  conception  of  the  agree- 
ment and  was  signed  by  his  agent  and  could,  therefore,  be  but 
binding  upon  himself  and  his  principal.  Such  writings  and 
receipts  are  not  to  be  construed  as  definitive  agreements :  Baush 
V.  Railroad,  18  Phila.  892 ;  Horton's  Appeal,  38  Pa.  294 ;  Bat^ 
dorf  V.  Albert,  59  Pa.  59;  Wolf  v.  Phila.,  105  Pa.  25;  Grove 
V.  Donaldson,  15  Pa.  128 ;  Bell  v.  Bell,  12  Pa.  235. 

The  charge  of  the  court  is  misleading,  and  his  comments  had 
the  effect  to  minimize  the  weight  of  the  testimony  of  defend- 
ants' witnesses  and,  taken  as  a  whole,  would  leave  the  im- 
pression that  the  plaintiff's  witnesses  deserved  the  greater 
credibilitJ^ 

While  it  is  true  that  the  practice  of  excepting  to  a  charge 
generally  and  assigning  it  as  error  is  not  recognized  save  in 
exceptional  cases,  the  case  at  bar  seems  to  comply  with  the 
requirements  of  the  exception :  Reichenbach  v.  Ruddach,  127 
Pa.  564;  Lerch  v.  Bai-d,  177  Pa.  197;  Herstine  v.  Railroad 
Co.,  151  Pa.  244. 

H.  Gordon  McCouch^  for  appellee. — As  the  gist  of  the  defense 
was  alleged  false  representations  inducing  the  making  of  the 
contract,  it  is  apparent  that  no  evidence  could  have  been  re- 
ceived as  to  representations  made  after  the  contract  was  closed, 
and  in  such  ruling  of  the  court  there  was  no  error. 

The  overruling  of  a  motion  for  a  new  trial  is  not  a  proper 
subject  for  an  assignment  of  error.  The  discretion  of  the  court 
is  not  reviewable  here :  Howser  v.  Com.,  51  Pa,  332 ;  Moock 
V.  Conrad,  155  Pa.  586 ;  DeGrote  v.  DeGrote,  175  Pa.  50. 

The  charge  of  the  court,  as  a  whole,  was  entirely  fair ;  in 
effect,  the  court  charged  the  jury  that  representations  were 
made  and  relied  on,  and  left  it  to  them  to  decide  whether  they 


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McNEILE  V.  CRIDLAND.  488 

1898.]  Arguments — Opinion  of  the  Court. 

were  true  or  false.  Their  verdict  settles  that  question  in  favor 
of  the  appellee,  and  while  the  appellants  may  feel  dissatisfied 
with  the  finding  they  have  no  just  cause  to  complain  of  their 
treatment  by  the  court. 

Opinion  by  Rice,  P.  J.,  February  19, 1898 : 

The  valid  objection  to  the  evidence  referred  to  in  the  first 
and  second  assignments  of  error  was,  not  that  it  would  tend  to 
contradict  or  vary  the  contract  by  parol,  but  that  proof  of  rep- 
resentations, though  false,  made  by  the  plaintiff's  agent  after 
the  contract  was  entered  into,  would  not  legitimately  tend  to 
establish  the  defense,  which  was  deceit.  This  is  obvious ;  for 
the  defendant  admitted  that  the  contract  was  made  on  Febni- 
ary  18th,  and  was  in  writing ;  the  receipt  which  contained  the 
essentials  of  a  valid  writing  for  the  sale  of  real  estate  was  de- 
livered on  that  day ;  and  the  other  witness,  Aaron  J.  Cridland, 
testified,  that,  before  the  alleged  conversation  took  place,  he  had 
been  told  by  his  sisters,  the  defendants,  that  they  had  purchased 
the  house.  Manifestiy  they  did  not  purchase  it  on  the  faith  of 
any  representations  made  on  February  25th,  and  the  court  com- 
mitted no  eiTor  in  rejecting  testimony  which  had  no  legitimate 
tendency  to  prove  the  defense,  and  could  only  tend  to  confuse 
and  divert  the  minds  of  the  jurors  from  the  real  issue.  The 
first  and  second  assignments  are  overruled. 

An  application  for  a  new  trial  based  on  an  allegation  of  after- 
discovered  testimony  is  addressed  to  the  sound  discretion  of  the 
trial  court,  and  only  in  clear  cases  of  abuse  of  discretion,  if 
ever,  is  the  refusal  of  the  application  assignable  for  en*or: 
DeGrote  v.  DeGrote,  175  Pa.  50.  The  witness  Kohn  had  tes» 
tified  on  the  trial,  and  had  undertaken  to  describe  the  cracks  in 
the  building,  but  omitted  to  mention  any  cracks  in  the  founda* 
tion  walls.  Very  naturally  the  court  might  hesitate  to  grant  a 
new  trial  for  the  purpose  of  permitting  him  to  supplement  his 
testimony.  But  we  need  not  speculate  as  to  the  reasons  which 
moved  the  action  of  the  court.  They  are  not  on  the  record ; 
and,  even  if  the  defendants  had  excepted  to  the  refusal  of  the 
application,  there  is  nothing  in  the  case  to  take  it  out  of  the 
rule  above  stated.    The  third  assignment  is  dismissed. 

In  commenting  on  the  testimony  of  the  witness  Locker,  the 
learned  trial  judge  committed  no  error  of  which  the  defendants 
Vol.  VI— 28 


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484  McNEILE  v,  CRIDLAND. 

Opinion  of  the  Court.  [6  Pa.  Superior  Ct. 

have  any  just  reason  to  complain.  The  eflfect  of  Tiis  comments, 
taken  as  a  whole,  was  to  lead  the  jury  to  the  conclusion,  not 
that  the  witness's  version  of  the  conversation  was  the  more 
probable,  but  that  his  version  did  not  differ  in  legal  effect  upon 
the  question  at  issue  from  that  of  the  defendants.  ^^  It  seems 
to  me,"  said  the  judge,  "  for  the  purposes  of  this  case  there  is 
no  real  difference"  (between  "solid  ground,"  the  terms  used 
by  the  plaintiff,  and  *'  solid  foundation,"  the  terms  used  by 
the  defense)  "because  the  defendants,  if  they  were  told  that 
the  foundations  were  solid,  were  entitled  to  believe,  not  only 
that  those  cellar  walls  were  well  built,  but  that  they  were  well 
built  and  well  placed  upon  a  proper  supporting  foundation  of 
earth,  and  if  they  were  not  so  placed,  if  they  were  placed  upon 
a  foundation  that  was  not  safe,  that  would  not  support  the 
weight  put  upon  it,  then  there  was  not  a  solid  foundation." 
There  were  other  instructions  to  the  same  effect ;  and  upon  a 
careful  perusal  of  the  whole  charge  it  will  be  seen  that  the  case 
was  sent  to  the  jury  upon  the  theory,  so  far,  at  least,  as  the 
judge  expressed  an  opinion  upon  the  question  of  fact,  that  the 
defendants*  version  of  the  representations  was  not  contradicted 
in  essential  particulars  by  the  testimony  of  the  witness.  Fur- 
ther comment  upon  the  fourth  assignment  of  error  is  unneces- 
sary ;  it  is  overruled. 

We  find  no  error  in  the  instructions  complained  of  in  the 
fifth  assignment,  even  when  disconnected  from  the  rest  of  the 
charge.  The  theories  of  both  parties  and  the  main  points  in 
the  evidence  supporting  them  were  adequately  and  impartially 
presented.  Nor  did  the  court,  in  summarizing  the  testimony  of 
the  witness  McBride,  misapprehend  its  effect,  as  will  be  seen 
from  the  following  extract  therefrom :  "  I  mean  to  say  it  is  im- 
possible to  talk  about  one  house  that  is  built  tied  in  with  other 
houses,  to  say  that  one  house  would  show  a  crack  when  they 
have  all  gone  down  together;  there  is  nothing  to  crack  them, 
they  cannot  crack ;  they  can  fall  apart,  they  can  fall  out  in  the 
street,  but  there  is  nothing  there  to  hold  them  to  make  them 
crack.  You  cannot  talk  about  one  house  that  is  built  in  with 
other  houses.  It  is  impossible  for  that  house  to  show  a  crack, 
when  they  are  all  going  down  together.  The  house  has  gone, 
all  the  walls,  the  side  walls,  and  Ixtck  walls,  and  front  walls." 

It  is  not  error  for  a  trial  judge  to  comment  on  the  testimony 


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MoNEILE  v.  CRIDLAND.  435 

1898.]  Opinion  of  the  Court. 

of  a  witness  and  to  call  attention  to  its  inherent  probability  or 
improbability,  provided  he  does  it  fairly  and  leaves  the  question 
of  his  credibility  to  the  jury.  Where  particular  instructions 
are  not  asked  for  and  the  complaint  is  that  the  charge  was  in- 
adequate or  onesided,  the  court  will  be  reviewed  on  the  general 
effect  of  the  charge,  and  not  upon  sentences  or  paragraphs  dis- 
connected from  the  context  which  qualifies  and  explains  them ; 
if,  as  a  whole,  the  charge  was  calculated  to  mislead,  there  is  er- 
ror in  the  record ;  if  not,  there  is  none :  Irvin  v.  Kutruff,  152 
Pa.  609 ;  K.  of  P.  v.  Leadbeater,  2  Pa.  Superior  Ct.  461 ;  Walton 
V.  Caldwell,  5  Pa.  Superior  Ct.  143.  This  charge,  whether 
viewed  in  respect  of  the  instructions  upon  the  law,  or  the  re- 
view of  the  facts,  was  clear,  adequate,  and  impartial. 

The  instruction  complained  of  in  the  sixth  assignment,  taken 
in  connection  with  what  followed,  was  a  full  and  clear  state- 
ment of  the  controlling  questions  of  fact  in  the  case  and  was 
free  from  error.     This  seems  too  plain  to  permit  discussion. 

Judgment  affirmed. 


Wile's  Estate.     Rump's  Appeal. 

Evidence — Conflicting  presumptions  of  marriage  and  legitimacy — Policy 
of  law, 

A  valid  marnage  once  established  is  presumed  to  continae  until  the  con- 
trary is  shown  or  until  a  different  presumption  is  raised.  Of  necessity 
resort  must  often  be  had  to  presumptive  evidence,  and  it  is  not  too  much 
to  say  that  the  burden  of  proof  is  often  placed  and  shifted,  not  only  be- 
cause of  the  convenience  of  proving  or  disproving  a  fact  in  issue,  but  also 
upon  grounds  of  public  policy. 

The  presumption  of  the  continuance  of  a  valid  marriage  will  yield  after 
long  desertion  of  a  wife  by  her  first  husband  and  after  a  second  marriage 
by  the  firet  husband  and  by  the  wife,  in  favor  of  the  presumption  of  legit- 
imacy of  the  wife's  child  by  her  second  marriage ;  and  the  burden  of  prov- 
ing the  continuing  validity  of  the  first  marriage  is  imposed  by  the  policy 
of  law  upon  those  contesting  the  legitimacy  of  the  child  of  the  wife  by  the 
second  maiTiage  even  to  the  extent  of  compelling  the  production  of  proof 
that  the  firat  marriage  had  not  been  terminated  by  divorce  during  the  long 
years  of  deseition  by  the  husband  during  which  he  had  sojoui*ned  in  many 
stjites,  had  married  again  and  had  declared  that  his  marriage  with  the 
mother  of  the  child  in  question  was  void. 


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436  WILE'S  ESTATE. 

Syllabus— Statement  of  Facts.     [6  Pa.  Supeiior  Ct. 

LegUimacy  of  children — Burden  and  qucUity  of  proof— Policy  of  law. 

The  presumption  and  charity  of  the  law  are  in  favor  of  the  legitimacy 
of  a  child,  and  those  who  wish  to  bastardize  him  must  make  out  the  fact 
by  clear  and  irrefragable  proof.  The  presumption  of  law  is  not  lightly 
repelled ;  it  is  not  to  be  lightly  broken  in  upon  nor  shaken  by  a  mere  bal- 
ance of  probabilities ;  the  evidence  for  repelling  it  must  be  strong,  sat- 
isfactory and  conclusive;  such  presumption  can  only  be  negatived  by 
disproving  every  reasonable  probability. 

Argued  Oct  13,  1897.  Appeal,  No.  82,  Oct.  T.,  1897,  by 
Almira  E.  Rump,  Julia  McKnight  and  Michael  Shetzline  from 
decree  of  O.  C.  Phila.  Co.,  Oct.  T.,  1881,  No.  168,  in  the  matter 
of  the  estate  of  George  Wile,  deceased.  Before  Rice,  P.  J., 
WiCKHAM,  Beavbb,  Orlady,  Smith  and  Porter,  J  J.  Af- 
firmed. 

Adjudication  of  trustees*  account.  Before  Ferguson,  audit- 
ing judge. 

It  appears  from  the  record  and  evidence  that  the  question 
arose  at  the  audit  of  the  estate  of  George  Wile  upon  the  filing 
of  the  account  of  testamentary  trustees. 

The  guardian  of  John  Shetzline,  Jr.,  the  grandson  of  the  tes- 
tator, claimed  as  distributee  under  the  limitations  during  the 
continuation  of  a  trust  to  issue  of  testator's  children,  Ferguson, 
auditing  judge,  finding  that  the  minor's  mother  had  been  mar- 
ried to  Benjamin  Andrews  prior  to  her  marriage  to  the  child's 
father,  and  that  her  first  husband  was  living  at  the  time  of  her 
second  marriage,  holding  that  the  marriage  was  void  and  that 
the  child  being  illegitimate  could  not  share  as  issue  of  his  father 
in  the  distribution.  This  finding  he  reaffirmed  on  a  rehearing 
which  had  been  granted  "  to  enable  the  guardian  to  prove  her 
claim."  Exceptions  on  behalf  of  the  guardian  of  John  Shetz- 
line, Jr.,  were  filed  alleging  error,  (2)  In  placing  the  burden 
of  proof  on  said  minor ;  (5)  In  finding  that  there  was  no  evi- 
dence that  Benjamin  F.  Andrews  and  Elizabeth  Andrews  were 
divorced ;  (7)  In  not  finding  that  the  said  minor  was  entitled 
to  all  presumptions  existing  at  the  time  of  his  birth ;  (10, 11)  In 
not  awarding  the  fund  to  the  guardian  of  said  minor. 

The  court  in  banc  sustained  the  above  exceptions  in  an  opin- 
ion by  Penrose,  J.,  in  which  the  material  facts  of  the  case  fully 
appear,  and  which  is  as  follows : 


Digitized  by  VjOOQ IC 


WILE'S  ESTATE.  437 

1898.]  Opinion  of  Court  below. 

That  the  parents  of  the  child,  whose  right  as  one  of  the  dis- 
tributees is  now  denied,  were  regularly  married  in  1884,  a  year 
or  more  before  his  birth ;  that,  in  the  relation  thus  established, 
they  lived  happily  until  the  husband's  death  in  1891 ;  and  that 
during  the  entire  period  of  seven  years  or  more  his  father, 
brother  and  sisters  were  on  terms  of  intimacy  and  friendship 
with  his  family,  with  no  suggestion  that  his  marriage  was  not 
a  valid  one,  are  facts  clearly  established  by  the  evidence,  and, 
practically,  not  in  dispute.  As  grandchild  he  was  entitled, 
while  he  lived,  to  one  twentieth  of  the  income  of  the  estate  of 
the  testator;  and  the  share  which  he  had  received  was  contin- 
ued, for  more  than  two  years,  to  his  child's  guardian,  under  the 
limitation  during  the  continuance  of  the  trust  to  "issue." 

The  boy,  a  helpless  cripple,  now  about  ten  years  old,  seems 
to  have  been  the  object  of  especial  tenderness  on  the  part  of  his 
father,  who,  on  his  death-bed,  expressed  great  anxiety  as  to  his 
future  welfare,  fearing,  as  he  said,  "  lest  some  wrong  might  at 
any  time  be  done  to  his  little  crippled  boy."  His  mind  was 
relieved  by  the  assurance  of  a  sister  that  this  should  never  be ; 
but  it  is  this  sister  who  now  alleges  that  her  brother's  marriage 
was  invalid,  and  seeks  on  this  ground,  not  only  to  exclude  his 
boy  from  further  participation  in  the  grandfather's  estate,  but 
to  blight  his  entire  life  by  stigmatizing  him  as  illegitimate — 
though  her  share  of  what  he  would  thus  be  deprived  of,  during 
a  period  of  two  years,  is  shown  by  the  adjudication  to  be  but 
$60.62.  The  auditing  judge,  in  commenting  on  this  has  well 
said :  "  We  have  often  illustrated  in  this  court  some  of  the  best 
features  of  human  nature.  We  have  also  some  of  the  worst. 
This  is  one  of  the  worst."  Avarice,  however,  is  apt  to  yield  to 
just  such  temptations ;  and,  as  we  know,  thirty  pieces  of  silver 
(just  half  the  amount  sought  for  here)  were  sufficient  to  induce 
the  grossest  act  of  perfidy  recorded  in  the  history  of  the  human 
race. 

It  appears  that  in  1866  the  boy's  mother  was  married  to  a 
man  who  deserted  her  in  1872,  after  having  treated  her  with 
great  brutality  and  after  repeatedly  declaring  that  she  was  not 
his  wife.  He  disappeared  from  the  city,  and  she  was  told  that 
he  was  dead ;  but  it  was  not  until  1884,  after  an  interval  nearly 
twice  as  long  as  that  required  to  create  a  presumption  of  death, 
that  she  contracted  a  second  marriage — never,  in  the  mean- 


Digitized  by  VjOOQ IC 


488  WILE'S  ESTATE. 

Opinion  of  Court  below.         [6  Pa.  Saperior  CL 

while,  having  heard  of,  or  had  any  communication  with  him. 
But  he  was  not  dead ;  and  a  year  or  two  after  the  birth  of  the 
child  whose  legitimacy  is  now  attacked,  he  appeared  again  in 
Philadelphia,  thus  putting  an  end,  of  course,  to  the  presump- 
tion of  death  arising  from  his  long  continued  absence. 

If  the  case  rested  here,  there  could  be  no  escape  from  the 
conclusion  that  the  second  marriage  of  the  wife,  notwithstand- 
ing the  good  faith  with  which  it  was  contracted,  was  void  ab 
initio.  But  it  was  shown  that  two  or  three  years  after  his  de- 
sertion, the  supposed  first  husband  married  another  woman,  with 
whom,  as  his  wife,  he  has  ever  since  lived  and  cohabited ;  and 
as  he  would  otherwise  be  guilty  of  bigamy,  it  is  to  be  presumed 
either  that  he  spoke  truthfully  when  he  asserted  that  the  mar- 
riage of  1866  was,  for  some  undisclosed  reason,  void,  or  that 
after  his  desertion  and  before  his  remarriage,  he  obtained  a  di- 
vorce. A  divorce  so  procured,  even  if  service  were  not  effected 
upon  the  opposite  party,  would  be  voidable  only,  not  void ;  and 
after  the  remarriage  of  both  parties  both  would  be  bound  by  it 
(see  Richardson's  Estate,  132  Pa.  292;  Pennoyer  v.  Neff,  95 
U.  S.  714;  Bishop  on  Marriage  and  Divorce,  sees.  163,  199). 
It  is  stated  in  Best  on  Evidence,  sec.  346,  that  "  it  is  a  pre- 
sumptio  juris,  running  through  the  whole  law  of  England,  that 
no  person  shall,  in  the  absence  of  criminative  evidence,  be  sup- 
posed to  have  committed  any  violation  of  the  criminal  law,  .  .  . 
or  to  have  committed  any  act  subjecting  him  to  any  species  of 
punishment,  ....  and  this  holds  in  all  proceedings  for  what- 
ever purpose  originated,  and  whether  the  guilt  of  the  party 
comes  in  question  directly  or  collaterally."  And  "  so  strong  is 
this  presumption,"  it  is  said  by  Professor  Greenleaf  (Evidence, 
sec.  36),  "  that  even  where  the  guilt  can  be  established  only  by 
proving  a  negative,  the  negative  must,  in  most  cases,  be  proved 
by  die  party  alleging  the  guilt ;  though  the  general  rule  of  law 
devolves  the  burden  of  proof  on  the  party  holding  the  affirma- 
tive." Illustrations  of  these  principles  are  furnished  by  Rex  v. 
The  Inhabitants  of  Twynmg,  2  B.  &  Aid.  386 ;  Case  v.  Case, 
17  Cal.  698;  West  v.  The  State,  1  Wis.  186 ;  Williams  v.  The 
East  India  Company,  3  East,  193,  etc. 

But  where  the  question  not  only  involves  the  commission  of 
crime  by  third  persons,  but  relates  also  to  the  legitimacy  of  one 
bom  in  wedlock,  and  especially  where  the  legitimacy  was  not 


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WILE'S  ESTATE.  4^9 

1898.]  Opinion  of  Court  below— Arguments. 

questioned  until  after  the  death  of  the  parent  through  whom 
property  is  claimed,  presumptions  of  this  character  are  greatly 
strengthened.  "  The  presumption  and  charity  of  the  law,"  as 
was  said  by  the  Supreme  Court  of  Illinois  in  Orthwein  v.  Thomas, 
127  111.  664,  are  in  favor  of  the  legitimacy  of  the  child,  "and 
those  who  wish  to  bastardize  him  must  make  out  the  fact  by 
clear  and  irrefragable  proof.  The  presumption  of  law  is  not 
lightly  repelled ;  it  is  not  to  be  lightly  broken  in  upon  or 
shaken  by  a  mere  balance  of  probabilities ;  the  evidence  for  re- 
pelling it  must  be  strong,  satisfactory  and  conclusive."  And  in 
Piers  V.  Piers,  2  H.  L.  Cas.  881,  it  is  said  that  tlie  presumption 
"  can  only  be  negatived  by  disproving  every  reasonable  possibil- 
ity." See  also  DeThoren  v.  The  Attorney  General,  L.  R.  1 
App.  Cas.  686. 

The  precise  question  has  been  decided  by  the  court  of  last 
resort  in  at  least  two  states  of  the  Union  (Blanchard  v.  Lam- 
bert, 43  Iowa,  328 ;  Carroll  v.  Carroll,  20  Texas,  731) ;  and  as 
the  decisions  are  fully  justified  by  the  principles  to  which  we 
have  referred,  we  have  no  hesitation  in  following  them. 

The  second,  fifth,  seventh,  tenth  and  eleventh  exceptions  to 
the  readjudication  are  sustained,  and  the  distribution  awarded 
accordingly. 

Counsel  will  prepare  the  necessary  decree. 

Errors  assigned  among  others  were  (1)  In  sustaining  appel- 
lee's exceptions ;  (6)  In  finding  that  there  was  a  presumption 
of  a  divorce  of  the  child's  mother  from  her  former  husband ; 
(6)  In  giving  said  presumption  of  divorce  the  full  force  of  an 
established  fact ;  (9)  In  finding  that  John  Shetzline,  Jr.  was  a 
legitimate  son  of  John  Shetzline,  Sr. 

Frederick  J.  Knaus,  for  appellants. — If  a  woman  has  a  law- 
ful husband  alive  and  undivorced  at  the  time  of  her  second 
marriage,  no  matter  how  long  he  may  be  absent  or  unheard  of, 
the  second  marriage  is  void:  Clark's  Appeal,  173  Pa.  461. 
Kenley  v.  Kenley,  2  Yeates,  207 ;  Thomas  v.  Thomas,  124  Pa. 
646. 

It  was  error  in  the  court  in  banc  not  to  have  sent  the  matter 
back  to  the  auditing  judge  to  permit  the  hearing  to  be  com- 
pleted by  permitting  the  appellants  to  submit  evidence  in  support 


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440  WILE'S  ESTATE. 

Arguments — Opinion  of  the  Court.  [6  Pa.  Superior  Ct. 

of  their  side  of  the  case.  The  proceeding  was  analogous  to  a 
nonsuit  in  a  common  law  action,  and  no  one  will  pretend  that 
when  a  nonsuit  is  taken  off  the  defendant  has  not  the  right  to  a 
venire  de  novo,  to  have  his  side  heard.  This  point  was  raised 
in  Wharton  v.  Williamson,  13  Pa.  273. 

Albert  D.  Wilson^  for  appellee. — The  court  in  banc  inferred 
an  additional  fact,  namely,  a  divorce  by  Benjamin  Andrews 
from  his  wife.  "Legal  presumptions  lie  thickly  strewn  in  the 
pathway  of  evidence.  A  state  of  facts  being  proved  the  law 
makes  its  own  inference  and  from  it  pronounces  that  another  fact 
must  have  existed : "  Kisterback's  Appeal,  61  Pa.  483.  When 
presumptions  are  in  conflict  that  prevails  which  favors  inno- 
cence.    It  is  presumed  every  one  has  conformed  to  the  law. 

The  findings  of  fact  by  the  orphans'  court  will  not  be  dis- 
turbed :  Coulston's  Estate,  161  Pa.  161 ;  McConnell's  Appeal, 
97  Pa.  31. 

Opinion  by  Ricb,  P.  J.,  February  19, 1898 : 
When  the  existence  of  a  valid  marriage  relation  is  once  es- 
tablished by  proof  it  is  to  be  presumed,  ordinarily,  that  it  con- 
tinues to  exist  until  the  contraiy  is  shown  or  until  a  different 
presumption  is  raised.  Where  this  presumption  comes  in  con- 
flict with  the  presumption  of  the  innocence  of  either  of  the  par- 
ties in  marrying  a  second  time  and  of  the  legitimacy  of  the 
offspring  of  such  marriage,  the  question  arises  which  shall  yield. 
If  one  of  the  parties  has  been  absent  from  his  or  her  domicil 
unheard  of  for  seven  years  there  is  no  diflSculty.  In  such  a 
case  death  is  to  be  presumed :  Francis  v.  Francis,  180  Pa.  644 ; 
but  this  presumption  is  subject  to  be  rebutted,  as  it  was  in  the 
present  case,  by  proof  that  he  was  alive  at  the  time  of  the  sec- 
ond marriage :  Thomas  v.  Thomas,  124  Pa.  646.  But  proof 
that  he  was  alive  is  not  positive  proof  that  he  was  still  the  law- 
ful husband  of  the  woman  to  whom  he  was  first  married.  That 
fact  rests  alone  on  the  presumption  of  the  continuance  of  a 
relation  which  might  have  been  dissolved  by  divorce  as  well  as 
by  death.  Upon  that  bare  presumption  the  appellants'  whole 
case  rests.  In  other  words,  they  say,  that  Benjamin  Andrews 
was  married  to  Elizabeth  in  1866,  and  was  alive  when  she  mar- 
ried John  Shetzline  in  1884 ;  therefore,  because  of  the  presumed 


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WILE'S  ESTATE.  441 

1898.]  Opinion  of  tlie  Court. 

continuance  of  a  proved  relation,  the  latter  marriage  was  void, 
the  child  bom  of  it  was  a  bastard,  and  was  incapable  of  inherit- 
ing from  or  through  his  father.  Possibly,  if  there  were  nothing 
further  in  the  case,  this  presumption  would  neutralize  the  prima 
facie  presumption  in  favor  of  the  validity  of  the  marriage  di- 
rectly in  issue ;  although  that  has  been  denied  in  more  than  one 
case.  But  be  that  as  it  may,  the  proposition,  that  the  former 
presumption  must  always  prevail,  in  the  absence  of  full  proof 
of  the  dissolution  of  the  first  marriage,  is  not  sustained  by  prin- 
ciple or  the  weight  of  authority.  The  circumstances  of  the  par- 
ticular case,  although  not  in  themselves  amounting  to  full  proof 
of  the  fact,  may  so  aid  the  presumption  in  favor  of  innocence  as 
to  warrant  the  court  in  presuming  the  dissolution  of  the  first 
marriage  by  death  and  even  by  divorce ;  or  to  put  the  proposi- 
tion in  a  preferable  form,  in  holding,  that  the  burden  of  prov- 
ing that  it  was  not  dissolved  rests  on  him  who  asserts  the 
illegitimacy  of  the  offspring  of  the  second  marriage.  Of  the 
well  considered  cases  which  may  be  cited  in  support  of  this 
proposition — some  of  them  go  still  further — are  Blanchard  v. 
Lambert,  43  Iowa,  228;  Re  Edwards,  58  Iowa,  431;  Carroll 
V.  Carroll,  20  Tex.  731 ;  Coal  Run  Coal  Co.  v.  Jones,  127  111. 
379;  Schmisseur  V.  Beatrie,  147  111.  310;  Boulden  v.  Mclntire, 
119  Ind.  674 ;  Hull  v.  Rawls,  27  Miss.  471 ;  Klein  v.  Landman, 
29  Mo.  269 ;  Hunter  v.  Hunter,  31  L.  R.  A.  411,  and  cases  there 
cited.  See  also  Rex  v.  Twyning,  2  B.  &  Aid.  386 ;  Kelly  v. 
Drew,  94  Mass.  107  ;  Greensboro  v.  Underbill,  12  Vt.  604 ; 
Spears  v.  Burton,  31  Miss.  648 ;  Wilkie  v.  Collins,  48  Miss. 
496 ;  Johnson  v.  Johnson,  114  111.  611 ;  Orthwein  v.  Thomas, 
127  111.  554 ;  Sharp  v.  Johnson,  22  Ark.  79.  Our  own  cases 
recognize  the  general  principle,  although  none  of  them  decides 
the  precise  question  before  us.  In  Breiden  v.  Paff,  12  S.  &  R. 
430,  the  question  was  as  to  the  validity  of  a  deed  made  by  A 
and  B,  his  wife.  It  was  proved  that  she  had  been  married 
to  D  who  was  dead  more  than  thirty  years,  and  one  of  the 
plaintiff's  witnesses  stated  that  she  had  had  three  husbands 
before  marrying  A.  It  was  contended  that  a  conveyance  to 
which  her  legitimate  husband  was  not  a  party,  would  not  pass 
her  estate,  but  Judge  Gibson  said :  "  I  am  of  opinion,  the  court 
were  right  in  leaving  the  jury  to  presume  that  the  persons  to 
whom  she  had  been  maiTied  previously  to  her  marriage  with 


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442  WILE'S  ESTATK. 

Opinion  of  the  Court.  [6  Pa.  Superior  Ct 

Paff  were  dead.  In  an  old  transaction  like  this,  the  fact  of  the 
second  marriage  is,  of  itself,  some  evidence  of  the  death  of  the 
former  husband.  There  are  sometimes  cases  where  it  is  un- 
avoidably necessary  to  decide  on  the  existence  of  facts,  without 
a  particle  of  evidence  on  either  side,  and  if  a  decision  in  a  par- 
ticular way  would  implicate  a  party  to  the  transaction  in  the 
commission  of  a  crime,  or  any  offense  against  good  morals,  it 
ought  to  be  avoided ;  for  the  law  will  not  gratuitously  impute 
crime  to  any  one,  the  presumption  being  in  favor  of  innocence 
till  guilt  appear."  In  Senser  v.  Bower,  1  P.  &  W.  460,  the 
question  was  as  to  the  legitimacy  of  the  plaintiff.  There  was 
sufficient  evidence  of  reputation  and  cohabitation  to  show  that 
her  father  and  mother  were  married  in  fact.  "  But,"  said  Chief 
Justice  Gibson,  "there  is  said  to  be  the  same  evidence  of  a 
precedent  marriage  of  the  mother  with  another  man  who  was 
alive  at  her  second  marriage ;  and  hence  a  supposed  dilemma. 
But  the  proof  being  equal,  the  presumption  is  in  favor  of  inno- 
cence ;  and  so  far  is  this  carried  in  the  case  of  conflicting  pre- 
sumptions, that  the  one  in  favor  of  innocence  shall  prevail : 
Starkie  on  Ev.  749-753.  It  must  be  admitted  that  this  prin- 
ciple is  not  immediately  applicable  here,  inasmuch  as  there  is 
no  conflicting  evidence,  and  the  facts  supposed  to  result  are 
consistent  with  each  other;  but  it  establishes  that  the  same 
proof  that  is  sufficient  to  raise  a  presumption  of  innocence  may 
be  inadequate  to  a  presumption  of  guilt.  To  say  the  least,  then, 
the  jury  were  not  bound  to  draw  the  same  conclusion  of  mar- 
riage from  the  same  evidence,  without  regard  to  consequences ; 
and  to  have  instructed  them  that  they  were,  would  have  been 
an  error.  On  the  contrary,  they  were  bound  to  make  every  in- 
tendment in  favor  of  the  plaintiff's  legitimacy,  which  was  not 
necessarily  excluded  by  the  proof."  So  in  Pickens's  Estate, 
Obenstein's  Appeal,  163  Pa.  14,  Mr.  Justice  Fell  said,  "  but  if 
conflicting  presumptions  arose,  that  in  favor  of  innocence  and 
legitimacy  would  prevail." 

The  declaration  of  Benjamin  Andrews  that  the  mother  of  the 
appellee  was  not  his  wife ;  his  marriage  to  another  woman  with 
whom  he  lived  openly  as  his  wife,  and  who  was  so  recognized 
by  his  daughter ;  the  terms  of  intimacy  and  friendship  which 
existed  between  the  mother  of  the  appellee  and  her  second  hus- 
band's family  during  all  the  peripd  of  their  marriage ;  their 


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WILE'S  ESTATE.  44a 

1898.]  Opinion  of  tlie  Court. 

recognition  of  her  as  his  lawful  wife,  and  of  the  appellee  as  his 
legitimate  child,  emphasized  by  a  solemn  promise  made  by  one 
of  the  appellants  to  the  father  upon  his  death  bed ;  the  lapse  of 
time,  during  all  which  no  question  appears  to  have  been  raised 
by  any  one  as  to  the  validity  of  either  of  the  second  marriages, 
are  facts  which  cannot  be  overlooked  in  determining  such  an 
issue  as  is  presented  here.  They  do  not,  of  themselves,  prove 
the  dissolution  of  the  first  marriage,  it  is  true,  but  they  do  show 
a  probability  of  it,  which,  taken  in  connection  with  the  pre- 
sumption of  innocence  and  legitimacy,  neutralized  the  presump- 
tion that  Benjamin  Andrews  was  the  lawful  husband  of  Elizabeth 
at  the  time  of  her  marriage  with  John  Shetzline,  and  left  the 
fact  essential  to  the  appellants'  claim  not  proven. 

In  answer  to  the  question,  how  were  they  to  prove  that  he 
was  not  divorced,  it  may  be  asked  how  was  this  appellee  to  pix)ve 
that  he  was  ?  If  he  must  prove  it  by  the  record  it  would  be 
scarcely  less  difficult  for  him  to  ascertain  the  state  and  the  court 
in  which  the  decree  was  made,  than  for  the  appellants  to  prove 
the  negative ;  and,  it  is  to  be  borne  in  mind  that  even  where 
guilt  can  be  established  only  by  proving  a  negative,  the  nega- 
tive must  in  most  cases  be  proved  by  the  party  alleging  the 
guilt,  unless  the  fact  be  one  peculiarl}'-  within  the  knowledge  of 
the  other  party.  But  the  opinion  of  the  court  below  is  so  full 
and  satisfactory  upon  this  point,  and  indeed  upon  all  the  ques- 
tions, that,  it  seems  to  me,  we  might  well  have  adopted  it  with- 
out further  discussion. 

Since  writing  the  foregoing  we  have  examined  the  unreported 
case  of  Van  Dyke  v.  Barger  (No.  83,  May  T.  1878,  Middle  Dis- 
trict of  Supreme  Court)  called  to  our  attention  by  our  Brother 
Beayeb  who  was  of  counsel.  Upon  a  hasty  examination  it 
seemed  to  sustain  the  appellant's  contention,  but  upon  a  more 
careful  consideration  of  its  facts  we  think  it  fairly  distinguish- 
able from  the  present  case  in  a  very  important  particular. 
There,  the  question  was  as  to  the  dissolution  of  the  marriage 
tie  between  Alexander  Van  Dyke  and  Elizabeth  McCleary.. 
The  evidence  showed,  that  shortly  after  their  separation  both, 
married  a  second  time,  and  after  the  death  of  the  second  woman 
Alexander  Van  Dyke  married  a  third  time.  But  both  parties 
continued  to  reside  in  Pennsylvania,  and  their  domicils  were 
well  known*    If  either  party  had  obtained  a  divorce  it  would 


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444  WILE'S  ESTATE. 

Opinion  of  the  Court.  [6  Pa.  Superior  Ct. 

have  been  an  easy  matter  to  prove  it  by  a  judicial  or  legislative 
record.  It  was  of  such  a  case  that  the  Supreme  Court,  in  dis- 
tinguishing it  from  Senser  v.  Bower,  supra,  said :  "  It  is  evident 
no  such  presumption  arises  here — and  it  is  very  different  fi-om 
presuming  a  divorce  —  which  should  only  be  by  some  legisla- 
tive or  judicial  proceeding  easily  susceptible  of  proof,  if  it  had 
existed."  The  same  cannot  be  said  of  the  present  case.  For 
over  ten  years  the  domicil  of  Benjamin  Andrews  was  unknown. 
The  mother  of  the  appellee  supposed  him  to  be  dead,  and  was 
warranted  in  so  presuming  when  she  married  a  second  time. 
The  evidence  showed  that  his  second  marriage  was  contracted 
in  Kentucky,  and  when  his  daughter  visited  him  he  was  domi- 
ciled in  Illinois.  The  appellee  furnished  the  best  CAddence  of 
which  the  case  in  its  nature  was  susceptible,  taking  into  consid- 
eration all  the  circumstances.  To  require  him  to  prove  a  di- 
vorce by  the  record  of  some  court  would  be  to  compel  him  to 
trace  Benjamin  Andrews  through  all  his  wanderings  and  to 
search  the  records  of  all  the  courts  of  all  the  states  where  he 
may  have  been  domiciled.  This  were  to  require  an  impossibility, 
as  much  so  as  to  prove  the  death  of  a  person  who  has  been 
unheard  of  for  seven  years.  The  latter  may  be  presumed,  and 
is  often  presumed,  in  favor  of  innocence ;  why  not  the  former? 
Of  necessity,  resort  must  often  be  had  to  presumptive  evidence, 
and  it  is  not  too  much  to  say  that  the  burden  of  proof  is  often 
placed,  and  shifted,  not  only  because  of  the  convenience  of 
proving  or  disproving  a  fact  in  issue,  but  also  upon  grounds  of 
public  policy.  '•  Society  rests  upon  marriage,  the  law  favors 
it,  and  when  a  man  and  woman  have  contracted  marriage  in 
due  form,  the  law  will  require  clear  proof  to  remove  the  pre- 
sumption that  the  contract  is  legal  and  valid."  The  presump- 
tion of  the  continuity  of  an  established  relation,  or  state,  or 
condition,  whether  of  marriage  or  any  other,  is  a  convenient 
rule  of  evidence,  and,  it  is  true,  most  frequently  acc6rds  with 
the  actual  facts.  But  it  is  not  an  absolute  and  inflexible  rule, 
and  could  not  be  so  declared  without  breaking  down  other  pre- 
sumptions equally  regarded  in  the  law  and  based  on  as  strong 
natural  probability.  We  think  it  was  so  far  weakened  in  the 
present  case  by  the  proved  facts  and  the  natural  probabilities 
that  grew  out  of  them,  that  the  court  was  justified  in  holding, 
that  it  was  incumbent  on  the  appellants  to  prove  that  Benjamin 


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WILE'S  ESTATE.  445 

1898.]  Opinion  of  the  Court. 

Andrews  was  the  lawful  husband  of  the  appellee's  mother  at 
the  time  of  her  marriage  to  John  Shetzline,  and  that  they  had 
failed  to  prove  that  fact. 

There  is  nothing  in  the  record  of  the  proceedings  to  show 
that  the  auditing  judge  did  not  receive  all  the  evidence  that  the 
appellants  offered.  After  a  regular  marriage  of  the  parents  of 
the  appellee  was  shown,  the  burden  of  proving  that  the  par- 
ties had  not  legal  capacity  to  marry,  and  that  the  issue  was  ille- 
gitimate, rested  on  the  appellants.  If  they  saw  fit  to  go  to  final 
hearing  without  introducing  or  offering  all  the  evidence  they 
had  upon  that  question,  they  took  the  risk,  and  having  lost 
were  not  entitled  to  another  opportunity  to  make  out  a  stronger 
case. 

The  decree  is  aflirmed  at  the  cost  of  the  appellants. 

Beaveb,  J.,  dissents. 


Annie  S.  Koons,  Appellant,  v.  James  F.  McNamee. 

Easement — Prescription  does  not  run  pending  unity  of  titles. 
There  can  be  no  adverse  user  upon  which  to  base  a  prescription  of  ease- 
ment while  the  title  to  the  properties  is  held  by  a  single  owner,  for  no  man 
can  have  an  easement  in  his  own  property. 

Easements  founded  upon  grant  subject  to  permanent,  visible  service. 
Where  the  owner  of  land  subjects  part  of  it  to  an  open,  visible,  perma- 
nent and  continuous  service  or  easement  in  favor  of  another  part,  and  then 
aliens  either,  the  purchaser  takes  subject  to  the  buixlen  or  the  benefit  as  the 
case  may  be.  This  is  founded  on  the  principle  that  a  man  shall  not  dero- 
gate from  his  own  grant,  and  its  enfoi*cement  is  a  fortiori  where  the  vendee 
purchases  the  dominant  land. 

Easements  whether  apparent  and  cotUinuous— Question  for  jury. 
Whether  an  easement  or  servitude  is  apparent,  continuous  or  the  con- 
traiy,  involves  questions  of  fact  resting  in  pai*ol  which,  when  the  facts 
are  in  dispute,  is  for  the  juiy,  the  court  cannot  reserve  to  itself  the  power 
to  decide  them. 

Practice f  0,  P. — Reservation  of  point  of  law — Province  of  court. 
Where  a  point  of  law  is  reserved,  the  facts  out  of  which  it  arose  must 
be  stated  on  the  record ;  the  court  cannot  draw  inferences  of  fact  from 
the  evidence.    It  must  be  a  pure  question  of  law — such  as  rules  the 
case,— not  a  mixed  question  of  law  and  fact. 


Digitized  by  VjOOQ IC 


446  KOONS  V.  MoNAMEE. 

Syllabus— Arguments.  [6  Pa.  Superior  Ct. 

Where  there  has  been  an  improper  reservation  the  case  will  be  sent  back 
for  a  new  trial,  in  order  that  the  facts  may  be  found  by  the  jury  or  dis- 
tinctly put  on  the  record  in  some  other  recognized  way. 

Argued  Oct.  22, 1897.  Appeal,  No.  131,  Oct.  T.,  1897,  by- 
plaintiff,  from  judgment  of  C.  P.  No.  4,  Phila.  Co.,  June  T., 
1896,  No.  703,  in  favor  of  defendant,  on  verdict  for  plaintiff, 
Bubject  to  point  of  law  reserved  as  to  whether  the  plaintiff 
could  recover.  Before  Rice,  P.  J.,  Wickham,  Beaver, 
Rbedeb,  Orlady  and  Porter,  JJ.    Reversed. 

Trespass  for  cutting  off  the  water  and  drain  pipe  which 
flowed  through  defen(^nt's  property.     Before  Audekreid,  J. 

The  facts  suflBciently  appear  in  the  opinion  of  the  court. 

The  court  below  directed  the  jury  to  render  a  verdict  for  the 
plaintiff  for  $104,  subject  to  a  point  of  law  reserved  as  to  whether 
the  plaintiff  could  recover.  Judgment  was  subsequently  entered 
on  the  point  of  law  reserved  in  favor  of  defendant,  non  obstante 
veredicto. 

Error  as%tffned  was  entry  of  judgment  for  defendant  on  the 
point  of  law  reserved  non  obstante  veredicto. 

J.  H.  Grater^  for  appellant. — It  is  well  settled  doctrine  in  this 
state  that  a  permanent  right  established  by  the  owner  over  his 
property,  necessary  for  its  convenient  use,  will  not  be  destroyed 
by  his  sale  or  his  incumbrance :  Railroad  Co.  v.  Jones,  60  Pa. 
417. 

Easements  which  are  apparent  and  continuous  are  not  merely 
those  which  must  necessarily  be  seen,  but  those  which  may  be 
seen  or  known  on  a  careful  inspection  by  a  person  ordinarily 
conversant  with  the  subject:  Kieffer  v.  Imhoff,  26  Pa.  438. 

The  appellant  was  entitled  to  the  use  of  the  water  and  drain 
through  appellee's  property,  as  the  servitude  was  imposed  by  liis 
gi-antor,  and  was  continued  for  upwai*ds  of  twenty-one  years* 
An  easement  by  prescription  was  created  by  appellee's  vendor. 

James  P.  Gourley^  for  appellee. — The  purchaser  of  an  al- 
leged servient  estate  does  not  take  it  subject  to  an  easement 
not  apparent  nor  mentioned  in  the  deed,  unless  he  had  notice. 
He  is  not  bound  to  make  inquiries  of  adjoining  owners,  nor 


Digitized  by  VjOOQ IC 


KOONS  V.  McNAMEK.  447 

1898.]  Arguments — Opinion  of  tlie  Ck>urt. 

make  an  examination  of  adjoining  premises :  McElinney  v.  Mc- 
CoUough,  42  L.  I.  414. 

A  mere  permissive  occupation  of  land  is  revocable  at  pleasure, 
and  cannot  be  made  the  basis  of  a  claim  of  adverse  user.  What- 
ever right  therefore  the  licensee  may  have  under  such  circum- 
stances is  extinguished  the  instant  the  title  is  ti*ansferred  to 
another:  Stille  v.  Simes,  16  Phila.  110. 

Opinion  by  Rice,  P.  J.,  February  19, 1898  : 

The  plaintiff  is  the  owner  of  two  lots  of  ground  on  Palethorp 
street  in  the  city  of  Philadelphia,  and  the  defendant  is  the  owner 
of  a  lot  on  Second  street  abutting  on  the  plaintiff's  lots.  Both 
these  properties  were  originally  owned  by  John  McNulty .  The 
plaintiff  acquired  her  title  in  1884  from  the  purchaser  at  sher- 
iff's sale  under  a  judgment  on  a  mortgage  given  by  John  Mc- 
Nulty  in  1879.  The  defendant  acquired  his  by  deed  from  the 
heirs  of  John  McNulty  in  May,  1891. 

In  1874  or  1875,  Mr.  McNulty  built  two  houses  on  the  Pale- 
thorp street  lots,  and  from  that  time  until  the  commission  of 
the  trespass  for  which  this  suit  was  brought,  they  were  sup- 
plied with  water  carried  by  a  pipe  from  the  main  on  Second 
street  through  the  lot  now  owned  by  the  defendant.  For  the 
same  period  the  drainage  from  the  roofs  and  water  closets  of 
the  Palethorp  street  houses  was  conducted  into  a  well  on  the 
same,  and  thence  into  a  larger  well,  separated  only  by  a  wall, 
on  the  defendant's  lot,  which  was  connected  with  the  sewer  on 
Second  street  by  a  terra  cotta  pipe.  It  is  alleged  that  there  is 
no  water  main  or  sewer  on  Palethorp  street. 

In  May,  1896,  the  defendant  shut  off  the  flow  of  water  to 
the  plaintiff's  premises,  and  also  stopped  the  drain  therefrom 
by  filling  up  the  well  upon  his  own  premises.     Hence  this  suit. 

At  the  conclusion  of  the  testimony  the  trial  judge  instructed 
the  jury  as  follows :  ''The  only  question  in  this  case  is  a  ques- 
tion of  law.  That  question  is  as  to  whether  or  not,  under  the 
evidence  which  has  been  adduced,  the  plaintiff  has  established 
her  right  to  the  easement,  for  the  interference  with  which  she 
now  claims  to  be  damaged.  I  will  reserve  that  question,  and 
with  that  point  reserved,  I  direct  you  to  find  a  verdict  in  favor 
of  the  plaintiff  for  the  sum  of  $104,  the  sum  agreed  on  by  the 
parties."  Subsequently  the  court  entered  judgment  for  the 
defendant  non  obstante  veredicto.    No  opinion  was  filed. 


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448  KOONS  V.  McNAMEE. 

Opinion  of  the  Court.  [6  Pa.  Superior  Ct. 

The  contention  that  the  plaintiff  has  an  easement  by  pre- 
scription, in  its  strict  sense,  cannot  be  maintained,  for  the  rea- 
son that  there  could  be  no  adverse  user  while  the  title  to  the 
properties  was  held  by  a  single  owner ;  and  the  period  of  time 
after  their  severance  in  title,  even  dating  from  the  giving  of 
the  mortgage,  was  not  sufficiently  long  for  the  creation  of  an 
easement  in  that  way. 

"  It  is  true  that,  strictly  speaking,  a  man  cannot  subject  one 
part  of  his  property  to  another  by  an  easement,  for  no  man  can 
have  an  easement  in  his  own  property,  but  he  obtains  the  same 
object  by  the  exercise  of  another  right,  the  general  right  of 
property ;  but  he  has  not  the  less  thereby  altered  the  quality 
of  the  two  parts  of  his  heritage ;  and  if,  after  the  annexation 
of  peculiar  qualities,  he  alien  one  part  of  his  heritage,  it  seems 
but  reasonable,  if  the  alterations  thus  made  are  palpable  and 
manifest,  that  a  purchaser  should  take  the  land  burthened  or 
benefited,  as  the  case  may  be,  by  the  qualities  which  the  pre- 
vious owner  had  undoubtedly  the  right  to  attach  to  it: "  Gale's 
Law  of  Easements,  52.  This  doctrine  as  to  implied  easements, 
not  of  strict  necessity,  has  also  been  stated  in  this  way: 
"  Yet  where  an  owner  of  property  has  so  used  one  portion  of  it 
that  he  has  impressed  upon  it  in  favor  of  another  portion  what 
would  be,  were  the  portions  in  different  ownerships,  a  servitude, 
then  upon  a  conveyance  of  the  former  portion  an  easement  will 
be  granted  to  the  vendee,  where  the  use  has  been  of  such  char- 
acter that  an  easement  resulting  from  it  would  be  of  the  class 
known  as  continuous  and  apparent:"  4  Sharswood  and  Budd's 
Leading  Cases  on  Real  Property,  133, 134.  A  distinction  has 
been  drawn  in  the  modern  English  oases  between  an  implied 
grant  and  an  implied  reservation,  but  the  general  principle  as 
above  stated,  as  far  at  least  as  it  relates  to  the  implication  of  a 
grant,  is  too  well  settled  by  authority  to  require  discussion.  In 
one  of  the  recent  decisions  of  our  Supreme  Court  it  is  said : 
"  The  law  on  this  subject  is  settled  beyond  question.  Where 
an  owner  of  land  subjects  part  of  it  to  an  open,  visible,  perma- 
nent, and  continuous  service  or  easement  in  favor  of  another 
part,  and  then  aliens  either,  the  purchaser  takes  subject  to  the 
burden  or  the  benefit  as  the  case  may  be.  This  is  the  general 
nile  founded  on  the  principle  that  a  man  shall  not  derogate 
from  his  own  grant.    The  rule  is  stated  in  Gale  on  Easements 


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KOONS  V,  McNAMEE.  449 

1898.]  Opinion  of  the  Court. 

half  a  century  ago,  quoted  with  approbation  by  Chief  Justice 
Gibson  in  Seibert  v.  Levan,  8  Pa.  383;  by  Chief  Justice  Lewis 
in  Kieffer  v.  Imhoff,  26  Pa.  438 ;  and  expressly  made  the  basis 
of  the  decision  in  Phillips  v.  Phillips,  48  Pa.  178.  The  cases 
in  which  the  subject  has  most  frequently  come  before  this  court, 
are  those  in  which  the  grantor  has  conveyed  the  servient  tene- 
ment, and  the  question  has  been  whether  the  purchaser  took 
subject  to  the  easement  remaining  in  the  estate  of  the  grantor : 
Overdeer  v.  Updegraff,  69  Pa.  110,  and  the  rule  has  been  uni- 
formly held  to  be  as  above  stated.  Its  enforcement  would  be 
a  fortiori  where  the  vendee  purchases  the  dominant  land,  as  in 
the  present  case.  That  is  conceded  even  in  the  modem  English 
cases  which  question  the  universality  of  the  rule:"  Grace 
Church  V.  Dobbins,  163  Pa.  294.  In  addition  to  the  cases  cited 
in  the  foregoing  opinion,  the  following  may  be  mentioned  as 
recognizing  and  applying  tlie  general  principle :  Zell  v.  Uni- 
versalist  Society,  119  Pa.  390;  Geible  v.  Smith,  146  Pa.  276; 
Onnsby  v.  Pinkerton,  159  Pa.  468 ;  Sharpe  v.  Scheible,  162  Pa. 
341 ;  Held  v.  McBride,  3  Pa.  Superior  Ct.  165,  and  the  cases 
there  cited.  The  rule  applies  to  purchasers  at  judicial,  as  well 
as  private  sales :  Zell  v.  Universalist  Society,  supra.  It  will 
be  observed  that  the  implication  of  a  grant  in  the  class  of  cases 
above  cited,  and  to  which  this  belongs,  rests  not  upon  strict 
necessity  but  upon  a  different  principle.  How  far  necessity  or 
great  convenience  enters  into  the  question  in  cases  of  this  class 
is  thus  stated  in  Phillips  v.  Phillips,  48  Pa.  178 :  "It  is  not  to 
be  understood  by  this  doctrine  that  any  temporary  convenience 
adopted  by  the  owner  of  property  is  within  it.  By  all  the  au- 
thorities it  is  confined  to  cases  of  servitudes  of  a  permanent 
nature,  notorious  or  plainly  visible,  and  from  the  character  of 
which  it  may  be  presumed  that  the  owner  was  desirous  of  their 
preservation  as  servitudes,  evidently  necessary  to  the  conve- 
nient enjoyment  of  the  property  to  which  they  belong,  and  not 
for  the  purpose  of  mere  pleasure."  These  general  principles, 
apply  to  all  kinds  of  apparent  and  continuous  servitudes  imposed 
by  the  owner  upon  one  portion  of  his  land  for  the  benefit  of 
another  portion,  and  of  course  drains  and  water  pipes  are  noti 
excluded  from  the  operation  of  the  rule.  Indeed,  in  the  lead* 
ing  case  of  Nicholas  v.  Chamberlain,  Cro.  Jac.  121,  it  was  held 
"tiiat  if  one  erects  a  house  and  builds  a  conduit  thereto  in 
Vol.  VI— 29 


Digitized  by  VjOOQ IC 


450  KOONS  V.  McNAMEE. 

Opinion  of  the  Court.  [6  Pa.  Superior  Cfc. 

another  part  of  his  land,  and  conveys  water  by  pipes  to  the 
house,  and  afterwaixls  sells  the  house  with  the  appurtenances, 
or  sells  the  land  to  another  reserving  to  liimself  the  house,  the 
conduit  and  pipes  pass  with  the  house."  This  has  been  used 
as  an  illustration  of  the  general  principle  in  several  of  our  own 
cases. 

An  examination  of  the  evidence,  in  the  light  of  these  general 
principles,  shows,  that  the  question  whether  the  plaintiff  had 
an  easement  of  drain  and  water  pipe,  or  of  either,  in  the  defend- 
ant's premises  could  not  be  reserved  and  decided  as  a  pure  ques- 
tion of  law. 

Whether  an  easement  is  apparent  and  continuous  or  non- 
apparent  and  noncontinuous  involves  questions  of  fact  resting 
in  parol,  which,  under  the  evidence  in  the  present  case,  were 
for  the  jury  to  decide  under  proper  instructions  as  to  the  law. 
Where  the  essential  facts  have  not  been  found  by  a  jury,  or 
agreed  upon  by  the  parties,  and  are  in  dispute,  as  in  the  pres- 
ent case,  the  court  cannot  reserve  to  itself  the  power  to  decide 
then.  For  example,  there  is  some  evidence  tending  to  show, 
that,  owing  to  the  fact  that  there  is  no  water  drain  or  sewer  on 
Palethorp  street,  the  easement  claimed  was  necessary,  or,  at 
least,  greatly  convenient  to  the  reasonable  enjoyment  of  the 
dominant  tenement.  If  this  be  the  fact  it  would  have  an  im- 
portant bearing  (even  if  it  were  not  conclusive)  upon  the  inten- 
tion of  the  owner  in  connecting  the  Palethorp  street  houses 
with  the  drain  and  sewer  on  Second  street  See  Phillips  v. 
Phillips,  supra.  Again  it  is  alleged  by  the  plaintiff, — we  do 
not  assume  to  say  it  is  the  fact, — that,  not  only  might  the 
drainage  connection  between  the  dominant  and  the  servient 
tenements  have  been  seen  by  any  one  inspecting  the  latter,  but 
also  that  the  defendant  had  actual  knowledge  before  he  pur- 
chased the  Second  street  property  that  the  Palethorp  street 
liouses  were  supplied  with  water,  and  drained,  in  the  way  de- 
scribed. What  is  the  fact  ?  It  has  not  been  found  by  the  jury, 
and  has  not  been  put  on  the  record  in  the  reserved  point.  We 
need  not  go  further  into  the  evidence  for  the  purpose  of  point- 
ing out  other  questions  of  fact  which  arose,  or  might  arise  in 
such  a  case.  We  have  referred  to  these  simply  for  illustration, 
and  enough  has  been  said  to  show,  that  the  question,  whether 
tlie  plaintiff,  under  the  "  evidence  adduced,"  (which  must  mean 


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KOONS  V.  McNAMKE.  451 

1898.]  Opinion  of  the  Court. 

all  the  evidence)  has  an  easement  in  the  defendant's  land,  was 
not  a  pure  question  of  law. 

Where  a  point  of  law  is  reserved  the  facts  out  of  which  it 
arose  must  be  stated  on  the  record ;  the  court  cannot  draw  in- 
ferences of  fact  from  the  evidence.  It  must  be  a  pure  ques- 
tion of  law— ^3uch  as  rules  the  case — ^not  a  mixed  question  of 
law  and  fact.  A  question  has  been  raised  as  to  the  propriety 
of  reserving  the  question  *'  whether  there  is  any  evidence  in 
the  case  to  be  submitted  to  the  jury  upon  which  the  plaiutifif  is 
entitled  to  recover "  (Chandler  v.  Commerce  Fire  Ins.  Co.,  88 
Pa.  223 ;  Koons  v.  Tel.  Co.,  102  Pa.  164 ;  Newhard  v.  R.  R.  Co., 
153  Pa.  417 ;  Yerkes  v.  Richards,  170  Pa.  346),  but  all  the 
authorities,  from  Edmonson  v.  Nichols,  22  Pa.  74,  to  Yerkes  v. 
Richards,  supra,  uniformly  hold,  that  a  verdict  for  a  certain 
sum,  subject  to  the  opinion  of  the  court  whether  upon  the 
whole  case  the  plaintiff  is  entitled  to  recover,  does  not  authorize 
a  judgment  for  the  defendant  non  obstante  veredicto ;  the  facts 
must  be  admitted  of  record  or  found  by  the  jury:  Ii*win  v. 
Wickersham,  25  Pa.  316 ;  Wilson  v.  The  Tuscarora,  25  Pa. 
317 ;  Wmchester  v.  Bennett,  54  Pa.  510 ;  Wilde  v.  Trainor, 
59  Pa.  439;  Ferguson  v.  Wright,  61  Pa.  258;  Campbell  v. 
O'Neill,  64  Pa.  290 — a  case  directly  in  point — Com.  v.  Mc- 
Dowell, 86  Pa.  377 ;  Miller  v.  Bedford,  86  Pa.  454 ;  Printing 
Co.  V.  Rice,  106  Pa.  623;  Buckley  v.  Duff,  111  Pa.  223 ;  Henry 
V.  Heilman,  114  Pa.  499 ;  Moore  v.  Copley,  165  Pa.  294 ;  Shelly 
V.  Dampman,  1  Pa.  Superior  Ct.  115 ;  Ginther  v.  YorkviUe,  3 
Pa.  Superior  Ct.  403. 

In  any  view  of  the  case  the  judgment  non  obstante  veredicto 
must  be  reversed ;  but  whether  we  ought  now  to  enter  judg- 
ment for  the  plaintiff  on  the  verdict  or  to  send  the  case  back 
for  a  retrial  is  a  question  of  practice  not  free  from  diflBculty. 
Without,  however,  undertaking  to  lay  down  a  general  rule 
upon  the  subject  we  are  of  opinion  that  under  the  special  cir- 
cumstances of  the  case  it  should  be  treated  as  an  improper  res- 
ervation and  not  as  an  absolute  nullity,  and  that,  following 
Bank  v.  Earley,  115  Pa.  359,  the  case  should  be  sent  back  for 
a  retrial,  in  order  that  the  facts  may  be  found  by  a  jury,  or  dis- 
tinctly put  on  the  record  in  some  other  recognized  way.  See 
also  Wilde  v.  Trainor,  59  Pa.  439. 

Judgment  reversed  and  venire  facias  de  novo  awarded. 


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452  LIPPER  V.  BOUVfi,  CRAWFORD  &  CO. 

Syllabus— Statement  of  Facts.     [6  Fa.  Superior  CI. 


Benjamin  Lipper  v.  Bouvfe,  Crawford  &  Company,  a  cor- 
poration, Appellant. 

Surrender  of  lease — Burden  of  proof  ow  to  tusceplance. 

A  surrender  of  demised  premises  by  the  tenant,  in  order  to  be  effectual, 
so  as  to  release  him  from  liability  for  the  rent,  must  be  accepted  by  the 
lessor  and  the  burden  of  proof  is  on  the  lessee. 

Landlord's  duly  as  to  leasing  abandmied  premises. 

A  landlord  is  not  bound  in  relief  of  his  tenant  to  lease  abandoned  prem- 
ises to  any  one  who  may  apply ;  and  he  clearly  is  not  bound  to  consider 
a  proposition  of  a  tliird  pei*son  to  rent  them  prior  to  and  In  anticipation 
of,  the  tenants  removal.  Any  efforts  which  he  may  make  are  in  the  inter- 
est and  for  the  benefit  of  the  tenant  and  do  not,  of  themselves,  discharge 
the  tenant  from  his  covenant  to  pay  rent. 

Landlord  and  ieiuinl — Exercise  of  option  for  additional  term — Tenancy 
from  year  to  year, 

A  holding  over  by  a  tenant  who  has  an  option  for  an  additional  term  is 
notice  to  his  landlord  of  his  election  to  exercise  his  privilege ;  the  actual 
continuance  of  such  occupation  is  the  best  and  most  conclusive  evidence 
of  the  intention  to  continue. 

A  lease  was  for  a  year  with  an  option  of  two  years'  renewal,  and  a  pro- 
vision for  tenancy  from  year  to  year  on  three  months*  written  notice.  The 
tenant  held  over  the  firat  year,  and  toward  the  end  of  the  second  year  gave 
three  months'  written  notice  of  intention  to  terminate  the  lease.  Held^ 
That  the  option  having  been  exercised  the  term  became  ceitain  in  dura- 
tion, and  that  a  tenancy  from  year  to  year  would  not  arise  before  the  expi- 
ration of  the  term. 

Argued  Oct.  21,  1897.  Appeal,  No.  45,  Oct.  T.,  1897,  by 
defendant,  from  judgment  of  C.  P.  No.  4,  Phila.  Co.,  June  T., 
1895,  No.  599,  in  favor  of  plaintiflF  for  want  of  a  sufficient  affi- 
davit of  defense.  Before  Rice,  P.  J.,  Wickham,  Beaver, 
Reedeb,  Oblady  and  Porter,  JJ.    Affirmed. 

Assumpsit  to  recover  rent 

The  material  facts  appear  from  the  statement  and  affida- 
vits of  defense.  The  statement  declared  for  rent  due  on  a 
lease  for  the  term  of  one  year  with  the  privilege  of  two  years 
additional  from  December  1,  1892,  the  essential  covenants  of 
this  lease  being  set  out  in  the  opinion  of  the  court.  The  ten- 
ant after  three  months'  written  notice,  vacated  on  November  80. 


Digitized  by  VjOOQ IC 


LIPPER  V.  BOUVJfc,  CRAWFORD  &  CO.  453 

1898.]  Statement  of  Facts — Argaments. 

1894,  claiming  the  lease  to  be  one  from  year  to  year.  The  land- 
lord having  rented  the  premises  for  a  portion  of  the  year  end- 
ing November  30,  1895,  claimed  for  the  difference  in  rent 
collected.  The  affidavit  set  up  a  surrender  and  legal  right  to 
surrender,  but  did  not  specifically  aver  an  acceptance  by  the 
landlord.  A  supplemental  affidavit  averred  that  prior  to  No- 
vember 30, 1894,  a  number  of  persons  offered  to  rent  the  store 
for  the  same  sum  as  that. reserved  in  tenant's  lease  and  upon 
being  referred  to  the  landlord  he  failed  or  refused  to  rent  to 
them,  and  that  subsequently  after  alterations  made  he  rented 
for  a  higher  rent. 
Judgment  for  plaintiff  for  $647.61.    Defendant  appealed. 

Error  assigned  was  making  absolute  the  rule  for  judgment 
for  want  of  a  sufficient  affidavit  of  defense. 

Charles  A.  Chase^  for  appellant. — The  words  "  for  the  term 
of  one  year  with  privilege  of  two  years  additional"  mean 
from  year  to  year  not  exceeding  three  years ;  this  construction 
was  placed  upon  a  similar  clause  by  the  Supreme  Court  in  the 
case  of  Gillion  v.  Finley,  22  W.  N.  C.  124.  That  case  is  iden- 
tical with  the  present  case  at  bar. 

In  Magaw  v.  Lambert,  3  Pa.  444,  it  was  held  that  where 
premises  were  destroyed  by  fire  and  the  landlord  entered  to 
repair,  if  he  did  so  without  the  tenant's  consent,  it  was  an  evic- 
tion ;  if  with  the  tenant^s  consent,  it  was  a  rescission  of  the 
lease,  and  in  either  case  the  rent  is  suspended. 

It  is  submitted,  therefore,  that  both  the  affidavit  and  the  sup- 
plemental affidavit  set  forth  a  good  defense. 

Benjamin  Alexander^  for  appellee. — This  case  is  not  ruled  by 
the  case  of  Gillion  v.  Finley,  22  W.  N.  C.  124  as  contended  by 
the  appellant  In  that  case  there  was  no  covenant  to  deliver 
up  the  premises  at  the  expiration  of  the  term,  or  a  clause  pro- 
viding for  a  tenancy  from  year  to  year  after  the  expiration  of 
the  term. 

In  the  present  case,  in  the  argument  of  the  rule  for  judg- 
ment for  want  of  a  sufficient  affidavit  of  defense,  counsel  for 
the  appellee  cited  the  cases  of  Harding  v.  Seeley,  148  Pa.  20 ; 


Digitized  by  VjOOQ IC 


454  UPPER  V.  BOUVfe,  CRAWFORD  &  CO. 

Arguments — Opinion  of  the  Court.  [6  Pa.  Superior  Ct. 

Cairns  v.  Llewelljoi,  2  Pa.  Superior  Ct.  599 ;  Montgomery  v. 
Commissioners,  76  Ind.  362 ;  Delashman  v.  Berry,  20  Mich.  292, 
and  other  cases,  and  it  was  upon  these  cases  that  the  court 
granted  judgment. 

Opinion  by  Rice,  P.  J.,  February  19, 1898: 

The  plaintiff  leased  to  the  defendant  a  certain  building  "  for 
the  term  of  one  year  with  privilege  of  two  years  additional  from 
the  first  day  of  December,  A.  D.  1892,  at  a  rent  of  two  thousand 
dollars  per  year  to  be  paid  in  equal  monthly  payments  •  ...  in 
advance."  The  lessee  covenanted  that  they  "at  the  termina- 
tion of  said  term,  will  deliver  up  said  premises  in  as  good  condi- 
tion, order  and  repair  as  the  same  now  are  in,"  etc.  The  lease 
contained  this  further  provision:  "And  it  is  hereby  mutually 
agreed  that  either  party  hereto  may  determine  this  lease  at  the 
end  of  said  term,  by  giving  the  other  notice  thereof,  at  least 
three  months  prior  thereto,  but  in  default  of  such  notice,  this 
lease  shall  continue  upon  the  same  terms  and  conditions  as  are 
herein  contained,  for  a  further  period  of  one  year  and  so  on  from 
year  to  year  unless  or  until  terminated  by  either  party  hereto 
giving  to  the  other  three  months'  notice  for  removal  previous  to 
the  expiration  of  the  then  current  term." 

If  there  were  only  the  language  of  the  granting  part  of  the  in- 
strument to  guide  us  the  decision  in  Gillion  v.  Finley,  22  W.  N. 
C.  124 ;  11  Cent.  Rep.  793,  might  perhaps  compel  us  to  hold  that 
the  lessees  holding  over  after  the  expii-ation  of  the  first  year 
created  a  tenancy  from  year  to  year,  simply,  which  they  might 
terminate  at  the  end  of  the  second  year.  But  the  other  provi- 
sions of  the  lease  indicate  an  intention  to  create  a  tenancy  for  a 
determinate  period  which  should  be  one  year  or  three  years  at 
the  option  of  the  lessees.  When  the  option  was  exercised  the 
term  became  certain  in  duration ;  and  at  the  expiration  of  that 
term,  but  not  before,  a  tenancy  from  year  to  year  would  arise  if 
the  tenant  held  over,  unless  the  landlord  had  given  three  months* 
notice  prior  thereto,  as  provided  in  the  lease.  By  this  construc- 
tion the  rights  and  obligations  of  the  lessor  and  the  lessees  in 
respect  to  the  termination  of  the  lease  at  the  expiration  of  the 
term,  after  its  dumtion  had  been  fixed  by  the  exercise  of  the 
lessees'  option,  would  be  mutual,  and  neither  would  have  an 
advantage  over  the  other  in  that  regard.    But  this  would  not 


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LIPPER  V,  BOUVfi,  CRAWFORD  &  CO.  455 

1898.]  Opinion  of  the  Court. 

be  so  if  the  tenant  could  give  notice  and  terminate  the  lease  at 
the  end  of  the  second  year  and  the  landlord  could  not.  The 
plain  intention  was  to  put  them  on  an  equality  after  tlie  lessees 
had  once  exercised  their  option,  and  this  can  only  be  can-ied 
out  by  holding  that  it  then  became  a  lease  for  tlu^ee  years  from 
the  beginning  of  the  term.  In  Harding  v.  Seeley,  148  Pa.  20, 
it  was  said :  "  That  a  holding  OA-^er  by  a  tenant  who  has  an  option 
for  an  additional  term  is  notice  to  his  landlord  of  his  election  to 
exercise  his  privilege  is  generally  held  in  this  country."  In 
Delashman  v.  Berry,  20  Mich.  292,  it  was  said :  *'  Upon  principle 
it  would  certainly  seem,  that  the  actual  continuance  of  such  occu- 
pation was  the  best  and  most  conclusive  evidence  of  the  intention 
to  continue.  And  as  it  was  at  his  option  to  have  the  term  expire 
at  one  year  or  three  years,  and  he  had  covenanted  to  deliver  up 
possession  at  the  end  of  the  term,  but  one  inference  could  legally 
and  properly  be  drawn  from  such  continuance  after  the  year, 
to  wit :  That  he  intended  to  continue  rightfully,  according  to 
the  terms  of  his  lease,  rather  than  wrongfully  to  defiance  of  its 
provisions."  The  foregoing  was  quoted  with  approval  in  the 
opinion  of  our  Brother  Wickham  in  Cairns  v.  Llewellyn,  2  Pa. 
Superior  Ct.  599,  and  the  case  was  cited  in  the  opinion  of  Mr. 
Justice  Heydrick  in  Harding  v.  Seeley.  In  Rohboch  v.  Mc- 
Cai-go,  6  Pa.  Superior  Ct.  134,  the  lease  was  "  from  the  26th 
day  of  January,  1891,  for  and  during  the  term  of  one  year,  two 
months  and  six  days,  with  the  privilege  of  remaining  in  posses- 
sion until  the  1st  day  of  April,  1896."  In  the  opinion  rendered 
after  a  reargutoent  of  the  case  Judge  Wickham  said :  '*  The  les- 
sees were  given  the  right  to  hold  for  and  during  the  continuous 
period  of  time  intervening  between  April  1,  1891,  and  April  1, 
1896.  This  is  the  plain  and  obvious  meaning  of  the  language 
used.  When  they  accepted  the  option,  they  at  once  took  this 
integral  term,  and  not  a  portion  thereof,  nor  a  mere  tenancy 
from  year  to  year."  The  case  of  Montgomery  v.  Commission- 
ers, 76  Ind.  362,  is  also  directly  in  point. 

When  the  lessees  in  the  present  case  held  over  after  the  end 
of  the  first  year  nothing  more  was  necessary  to  give  notice  to 
the  lessor  of  their  intention  to  exercise  their  privilege.  In  the 
absence  of  anything  to  qualify  or  explain  their  act,  it  is  to  be 
deemed  an  election  to  claim  their  full  privilege  and  to  hold  for 
two  years  additional;  so  that,  if  the  lessor  had  attempted  to 


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456  LIPPKR  V.  BOUVJfc,  CRAWFORD  &  CO. 

Opinion  of  the  Court.  [6  Pa.  Superior  Ct. 

remove  them  at  the  end  of  the  first  additional  year,  against  their 
consent,  he  must  have  failed,  and  they,  on  the  other  hand  became 
bound  to  pay  the  stipulated  rent  for  the  full  term  of  three  years. 
By  this  construction  all  the  provisions  of  the  lease  are  harmon- 
ized and  given  full  force,  and  by  no  other  can  they  be. 

A  surrender  of  demised  premises  by  the  tenant,  in  order  to 
be  effectual,  so  as  to  release  him  ^from  lia][)ility  for  the  rent,.must 
be  accepted  by  the  lessor,  and  the  burden  of  proof  is  on  the 
lessee.  Acceptance  is  expressly  denied  in  the  plaintiffs  state- 
ment and  is  not  alleged  in  the  aflSdavit  of  defense ;  nor  is  it 
necessarily  to  be  implied  from  the  facts.  Such  acts  of  the  lessor 
as  are  shown  in  the  statement  and  the  affidavit  are  in  the  inter- 
est and  for  the  benefit  of  the  tenant,  and  do  not,  of  themselves, 
discharge  him  from  his  covenant  to  pay  rent:  Pier  v.  Carr,  69 
Pa.  326 ;  Breuckmann  v.  Twibill,  89  Pa.  58 ;  Auer  v.  Penn, 
99  Pa.  370;  Teller  v.  Boyle,  132  Pa.  56;  Lane  v.  Nelson,  167 
Pa.  602 ;  Ashhurst  v.  Phonograph  Co.,  166  Pa.  357. 

Tlie  defendants  further  aver  that  "  when  it  became  known  to 
the  public  previous  to  the  30th  day  of  November,  1894,"  that 
they  intended  to  vacate  the  store,  a  number  of  persons  applied 
to  rent  it  and  were  sent  by  them  to  the  plaintiff ;  that  some  of 
these  persons  offered  to  rent  the  store  upon  the  same  tenna 
and  conditions  as  those  contained  in  the  lease ;  and  that  the 
plaintiff  "neglected  and  refused  to  rent  the  store  to  anyone." 
It  will  be  observed  that  the  affidavit  is  silent  as  to  the  names  of 
these  persons,  their  character,  responsibility  and  business  and 
that  the  time  referred  to  was  prior  to  the  removal.  The  land- 
lord is  not  bound,  in  relief  of  his  tenant  who  had  abandoned  the 
premises,  to  rent  them  to  any  one  who  may  apply,  but  may  rent 
them  and  hold  the  tenant  for  the  difference,  unless  he  has 
accepted  a  surrender:  Auer  v.  Penn,  supra.  But  whatever 
may  be  his  duty  after  he  has  retaken  possession,  he  is  clearly 
not  bound  to  consider  a  proposition  of  a  third  person  to  rent 
them  prior  to,  and  in  anticipation  of,  the  tenant's  removU. 

Judgment  affinned* 


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HIRES  &  CO.  V.  NORTON.  457 

1898.]  Syllabus— Statement  of  Facts. 

Hires  &  Co.,  limited,  v.  Albert  E.  Norton,  Owner,  James 
Hood,  Contractor,  Appellants. 

Appeals— Praciice,  Superior  Court— Assumption  based  on  motive  dehors 
the  record. 

The  appellate  court  is  not  warranted  in  going  outside  of  the  record  in 
search  of  questions  of  fact  not  faii'ly  raised  by  the  evidence.  Where  un- 
der the  admitted  facts  a  plaintiff  has  made  out  a  prima  facie  case  on  a 
mechanic's  claim,  and  the  defendant  offers  in  evidence  a  single  clause  of  a 
contract  between  him  and  the  contractor,  the  appellate  court  will  not  as- 
sume it  was  the  contract  under  which  the  buildings  were  erected. 

Argued  December  14,  1897.  Appeal,  No.  141,  October  T., 
1897,  by  defendants,  from  judgment  of  C.  P.  No.  1,  Phila.  Co., 
June  T.,  1892,  No.  196,  M.  L.  D.  on  verdict  for  plaintiff. 
Before  Rice,  P.  J.,  Wickham,  Beaver,  Reedeb,  Oblady, 
Smith  and  Pobteb,  JJ.    Affirmed. 

Sci.  fa.  8ur  mechanic's  lien  for  glass,  etc.,  against  forty-five 
adjoining  three-  and  two^tory  brick  dwellings,  etc.  Before 
BbiIgy,  J. 

At  the  trial  the  following  facts  were  agreed  upon  and  sub- 
mitted as  the  plaintiff's  evidence : 

That  the  amount  of  the  lien  apportioned  against  the  property 
against  which  the  sci.  fa.  was  issued  was  $185.07,  and  that  the 
amount  due  now  with  interest  in  said  lien  is  $252. 

That  the  said  sum  is  due  for  glass,  lights,  putty,  etc.,  fur- 
nished by  said  claimant  for  and  about  the  ei*ection  and  construc- 
tion of  said  house  within  six  months  before  the  filing  of  the  lien, 
of  which  building  Albert  E.  Norton  is  the  owner,  and  James 
Hood  the  contractor,  at  whose  instance  and  request  the  mate- 
rials were  furnished. 

By  indenture  dated  March  29, 1890,  recorded  April  12, 1890, 
Hugh  Chain,  Jr.,  et  al.,  conveyed  to  said  Albert  E.  Norton 
the  lot  of  ground  against  which  the  above  amount  is  appor- 
tioned ;  the  lot  being  on  the  north  side  of  Fairmount  avenue 
and  west  side  of  Union  street,  containing  in  front  on  Fairmount 
avenue  sixteen  feet,  and  extending  of  that  width  in  length  or 
depth  northward  on  Union  street,  seventynseven  feet  to  a  three 
foot  wide  alley,  and  having  a  brick  store  and  dwelling  built 
thereon.     (Plaintiff  closed). 


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458  HIRES  &  CO.  v.  NORTON. 

Statement  of  Facts — Opimon  of  the  Comt.    [6  Pa.  Superior  Ct. 

Defendant  offered  in  evidence  the  eleventh  clause  of  the  con- 
tract as  follows : 

11.  The  said  James  Hood  furthermore  agrees  and  binds  him- 
self that  he  will  not  himself  file  any  lien  for  work  and  labor 
done  and  materials  furnished  towards  the  erection  of  said  sixty- 
five  houses  or  any  of  them,  and  that  he  will  not  suffer  or  peimit 
any  lien  attachment  or  other  incumbrance  under  any  law  of  this 
state  or  otherwise  by  any  person  or  persons  whatsoever  to  be 
put  or  remain  upon  the  said  sixty-five  buildings  or  upon  any  of 
them  for  any  work  or  labor  done  or  materials  furnished  under 
or  in  pursuance  to  this  contract,  or  by  reason  of  any  other  claim 
or  demand  against  him  that  can  or  might  in  any  manner  or  way 
affect,  impair  or  take  priority  to  the  lien  of  the  said  sixty-five 
mortgages  executed  in  favor  of  the  German-American  Title  and 
Trust  Company,  one  being  upon  each  of  the  said  sixty-five  re- 
spective premises.     (Evidence  closed). 

The  court  instructed  the  jury  to  render  a  verdict  for  the 
plaintiff. 

Verdict  and  judgment  for  plaintiff  for  $252.  Defendants 
appealed. 

Error  assiffned  was  refusal  of  binding  instructions  for  defend- 
ants. 

Robert  H,  Hinckley^  with  him  Leon  FolZy  for  appellants. — The 
wording  of  this  contract  is  entirely  within  the  ruling  of  Nice 
V.  Walker,  153  Pa.  123. 

H.  Cooper  Shapley^  for  appellee  submitted  no  paper-book. 

Opinion  by  Rice,  P.  J.,  February  19, 1898 : 
Under  the  admitted  facts  the  plaintiff  made  out  a  prima 
facie  case.  In  defense,  the  owner  of  the  buildings  offered  in 
evidence  a  single  clause  of  a  contract  between  him  and  the 
contractor,  which  we  are  asked  to  assume  was  the  contract 
under  which  the  buildings  were  erected.  Without  having  be- 
fore us  the  whole  contract,  and  without  any  evidence  upon  the 
record  that  the  lien  in  question  "  can  or  might  in  any  manner 
or  way  affect  or  take  priority  to  the  lien "  of  any  mortgage 
given  by  the  owner,  we  cannot  say  that  the  court  committed 


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HIRES  &  CO.  V.  NORTON.  459 

1898.]  Opinion  of  the  Couit. 

error  in  holding  that  no  defense  was  made  out.    We  do  not 
feel  warranted  in  going  outside  the  record  in  search  of  ques- 
tions not  fairly  raised  by  the  evidence. 
Finding  no  error  in  the  record,  the  judgment  is  affirmed. 


Bixler  &  Correll  v.  J.  B.  Lesh,  Appellant. 

ContracU — Construction — Province  ofcmiai,  and  jury. 

If  a  contract  is  verbal,  it  is,  of  course,  the  exchisive  province  of  the  jury 
to  ascertain  what  the  parties  meant ;  if  it  is  in  writing,  its  construction  is 
for  the  court.  The  sense  of  words  used  in  connection  with  what  the  par- 
ties intended  to  express  by  them  is  exclusively  for  the  jury. 

Promiaaory  notes  (inpayment  of  debt — Presumption — Question  for  jury , 
If  one  indebted  to  another  gives  his  negotiable  promissoiy  note  for  the 
amount  without  any  new  consideration,  the  acceptance  of  the  note  does 
not  operate  as  payment  or  satisfaction,  unless  so  intended  by  the  parties, 
and  this  is  a  question  for  the  juiy  if  there  be  any  evidence  going  to  show 
such  intention. 

Argued  Jan.  13,  1898.  Appeal,  No.  22,  Jan.  T.,  1898,  by 
defendant,  from  judgment  of  C.  P.  Lackawanna  Co.,  Jan.  T., 
1895,  No.  221,  on  verdict  for  plaintiffs.  Before  Rice,  P.  J., 
WiCKHAM,  Bbavbb,  Oblady,  Smith  and  Porteb,  JJ.  Af- 
firmed. 

Assumpsit  to  recover  amount  due  on  book  accounts.    Before 

GUNSTER,  J. 

It  appears  from  the  record  and  evidence  that  judgment  had 
been  entered  on  a  judgment  note  given  as  collateral  security 
for  certain  goods  and  merchandise  sold  by  plaintiffs  to  defend- 
ant. Subsequent  to  the  sale  the  defendant  gave  to  the  plaintiffs 
certain  promissory  notes ;  it  being  alleged  that  these  notes  were 
given  in  payment  of  the  book  account  and  also  of  the  judgment 
note  which  it  was  agreed  should  be  returned  to  the  defendant. 
The  judgment  note  having  been  entered  up  a  motion  was  filed 
and  rule  granted  to  show  cause  why  judgment  should  not  be 
opened.  Upon  consideration  of  this  rule  the  court  granted  an 
order  that  an  issue  be  made  up  by  the  plaintiffs  declaring  on 


Digitized  by  VjOOQ IC 


460  BIXLEB  &  CORBELL  v.  LESH. 

Statement  of  Facts — Opinion  of  the  Court.  [6  Pa.  Superior  Ct. 

iheir  book  accounts  and  filing  copy  thereof,  and  the  defendant 
making  answer  within  ten  days  thereafter  as  to  what,  if  any,  part 
to  said  account  they  liave  any  defense. 

Verdict  and  judgment  for  plaintiffs  for  $223.82.  Defendant 
appealed. 

Errors  assigned  were,  (1)  In  refusing  to  open  judgment. 
(2)  Refusing  binding  instructions  for  defendant;  (3)  In  charg- 
ing the  jury  as  follows :  "  The  plaintiffs  testify  that  the  notes 
were  received  by  them  in  lieu  of  the  book  account,  in  partial 
satisfaction  of  the  book  account — that  the  notes  were  accepted 
not  in  payment  but  in  partial  satisfaction."  (4)  In  charging  the 
jury  as  follows:  "The  plaintiffs  testify  that  the  notes  were 
received  by  them  only  in  partial  satisfaction,  and  that  they  re- 
ceived only  fifty  dollars  on  the  note.  If  these  plaintiffs  accepted 
these  notes  in  satisfaction  of  their  book  account,  then  the  book 
account  is  paid,  because  they  took  the  notes.  If  you  believe 
that  they  did  not  accept  them  in  satisfaction  of  the  book  account, 
and  that  they  simply  received  them  in  the  usual  course  of  busi- 
ness, as  a  man  would  accept  a  note  as  a  promise  to  pay  the  debt 
that  is  due  him,  then  the  debt  would  not  be  paid,  and  it  is  for 
you  to  say." 

A.  A.  Voshurg  of  Voshurg  ^  Datosotiy  for  appellant. — The 
doctrine  that  where  there  is  a  scintilla  of  evidence  the  case  must 
be  submitted  to  the  jury,  has  been  exploded :  Express  Co.  v. 
Wile,  64  Pa.  201. 

Where  a  charge  is  misleading,  the  judgment  will  be  reversed. 
Collins  V.  Leafey,  23  W.  N.  C.  264;  Fawcett  v.  Fawcett,  95  Pa. 
376 ;  Canal  Co.  v.  Harris,  101  Pa.  80. 

Questions  should  not  be  submitted  to  the  jury,  without  evi- 
dence :  Furniture  Co.  v.  School  Dist.,  122  Pa.  494 ;  Cunning- 
ham V.  Smith,  70  Pa.  450. 

E.  Warren^  for  appellees  submitted  no  paper  book. 

Opinion  by  Rice,  P.  J.,  February  19, 1898 : 

The  defendant  gave  the  plaintiffs  a  judgment  note  as  collat- 
eral security  for  goods  he  was  about  to  purchase.  The  goods 
were  delivered,  and  subsequently  he  gave  three  bank  notes  for 


Digitized  by  VjOOQ IC 


BIXLER  &  CORRELL  v.  LKSH.  461 

1898.]  Opinion  of  the  Court. 

tiie  amount  of  the  account  and  the  discount.  Later  he  applied 
for  a  rule  to  show  cause  why  the  judgment  should  not  be  opened. 
After  hearing  upon  depositions,  the  court  discharged  the  rule, 
but  awarded  an  issue  to  determine  the  amount  due  for  or  on 
account  of  goods  sold  and  delivered.  No  dispute  arose  on  the 
trial  of  the  issue  as  to  the  amount  of  the  account  or  as  to  the 
actual  payments,  the  sole  defense  being  that  the  bank  notes 
were  given  and  accepted  in  full  payment  of  the  book  account, 
and,  therefore,  the  plaintiffs  should  have  sued  on  the  notes. 

It  is  a  general  rule  of  law  that  if  one  indebted  to  another 
gives  his  negotiable  promissory  note  for  the  amount  without 
any  new  consideration,  the  acceptance  of  the  note  does  not  oper- 
ate as  payment  or  satisfaction,  unless  so  intended  by  the  par- 
ties, and  this  is  a  question  of  fact  for  the  jury  if  there  be  any 
evidence  going  to  show  such  intention :  Hart  v.  Boiler,  15  S,  & 
R.  162 ;  Brown  v.  Scott,  51  Pa.  357 ;  Seltzer  v.  Coleman,  32 
Pa.  498 ;  Kemmerer's  Appeal,  102  Pa.  558 ;  Walker  v.  Tupper, 
152  Pa.  1 ;  Dougherty  v.  Bash,  167  Pa.  429. 

It  is  argued  that  there  was  nothing  for  the  jury  to  decide 
because  there  was  no  dispute  about  the  fact  that  the  notes  were 
given  and  accepted  in  pajrment.  This  depends  upon  the  con- 
struction to  be  put  on  the  plaintiffs'  version  of  the  transaction. 
One  of  them  testified  that  they  were  taken  "  not  in  payment, 
but  in  partial  satisfaction."  The  plaintiffs'  witness  who  took 
the  notes  described  the  transaction  thus :  ^^  Well,  he  said  he  had 
no  money,  so  I  told  him  I  had  come  for  a  settlement  of  the  bill, 
and  the  best  thing  I  asked  him  if  he  could  give  notes.  He 
said  he  would  and  he  signed  them  right  there."  When  asked 
on  cross-examination  what  he  took  the  notes  for,  he  answered : 
"  Partial  payment  on  the  bill."  Assuming  the  correctness  of 
this  version,  what  did  the  parties  intend  in  giving  and  accept- 
ing the  notes  in  "  partial "  payment  or  "  partial "  satisfaction  of 
the  accounts  ?  Evidently  not  that  they  were  a  complete  extin- 
guishment of  the  account,  nor  that  they  were  a  satisfaction  of 
a  particular  part  of  it,  for  no  part  was  mentioned.  A  probable 
meaning  of  the  language  is  that  they  were  taken  as  a  condi- 
tional payment;  that  is  to  say,  if  or  when  they  were  paid. 
This,  however,  was  a  question  for  the  jury,  and  the  court  could 
not  have  declared  that  diey  were  taken  as  absolute  payment 
without  usurping  their  functions.     "  The  sense  of  words  used 


Digitized  by  VjOOQ IC 


462         BIXLER  &  CORRELL  v.   LESH. 

Opinion  of  the  Court.  [6  Pa.  Superior  Ct. 

in  connection  with  what  the  parties  intended  to  express  by  them 
is  exclusively  for  the  jury  to  determine : "  Maynes  v.  Atwater, 
88  Pa.  496.  "  If  the  contract  is  verbal,  it  is,  of  course  the  ex- 
clusive province  of  the  jury  to  ascertain  what  the  parties  meant ; 
if  it  is  in  writing,  its  construction  is  for  the  court  : "  Forrest  v. 
Nelson,  108  Pa.  481.  Other  cases  to  the  same  effect  are  cited 
in  Speers  v.  Knarr,  4  Pa.  Superior  Ct.  80.  The  question  as  to 
what  the  parties  said  and  what  they  meant  was  left  to  the  jury 
in  a  clear  and  impartial  charge,  of  which  the  defendant  has  no 
reason  to  complain. 

All  the  assignments  of  error  are  overruled  and  the  judg- 
ment is  aiBrmed. 


Charles  H.  Clark,  Appellant,  v.  Jacob  Koplin  et  al. 

Mechanic's  lien  for  dUerations,  etc, — Notice — Statutes  construed. 
The  Act  of  May  18,  1887,  P.  L.  118,  extending  the  local  law  of  May  1, 
1861,  P.  L.  550,  relative  to  liens  for  repairs,  alterations  and  additions  is  a 
substitute  for  the  latter  act  and  the  latter  act  must  yield.  The  same  in- 
terpretation applies  to  its  effect  on  the  Act  of  Au^ist  1,  1868,  P.  L.  1168, 
\vhich  permitted  liens  to  be  filed  in  the  city  of  Philadelphia,  but  contained 
no  requirement  as  to  notice,  and  the  act  of  1868  must  be  considered  as  su- 
perseded, so  far  as  the  duty  to  give  notice  under  the  act  of  1887  is  con- 
cerned. 

Argued  Dec.  14,  1897.  Appeal,  No.  28,  Oct.  T.,  1897,  by 
plaintiff,  from  order  of  C.  P.  No.  4,  Pbila.  Co.,  Dec.  T.,  1896, 
No.  136,  M.  L.  D.  striking  off  mechanic's  claim.  Before 
Rice,  P.  J.,  Wickham,  Beaver,  Reeder,  Orlady,  Smith 
and  Porter,  JJ.    Affirmed. 

Rule  to  strike  off  mechanic's  lien. 

It  appears  from  the  record  that  plaintiff  furnished  to  Jacob 
Singer,  contractor  for  Jacob  Koplin,  the  owner,  or  reputed  owner, 
of  a  building  upon  which  repairs  were  being  made,  certain  lumber 
to  the  value  of  $52.94.  No  notice  was  given  to  the  owner  of 
the  building  by  the  plaintiff  of  his  intention  to  file  Jiis  claim. 
Defendants  took  a  rule  to  strike  off  the  claim,  which  rule  the 
court  below  made  absolute.     Plaintiff  appealed. 


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CLARK  V.  KOPLIN.  463 

1898.]  Assignment  of  Error— Opinion  of  the  Court. 

Error  assigned  was  making  absolute  rule  to  strike  off  claim. 

Augustus  J.  Rudderowy  for  appellant. — Contended  that  the  Act 
of  May  18,  1887,  P.  L;  118,  does  not  supersede  the  Act  of 
August  1, 1868,  P.  L.  1168. 

Adolph  Eichhoh^  for  appellee. — This  question  is  not  a  new 
one.  The  Supreme  Court  has  repeatedly  held  that  the  act  of 
1887  has  superseded  the  local  acts  upon  the  same  subject :  Best 
7.  Baumgardner,  122  Pa.  17;  Morrison  v.  Henderson,  126  Pa. 
216 ;  Groezinger  v.  Ostheim,  135  Pa.  604 ;  Purvis  v.  Ross,  158 
Pa.  20. 

Per  Cubiam,  February  19, 1898 : 

The  Act  of  May  18, 1887,  P.  L.  118,  extended  the  local  law 
of  May  1, 1861,  P.  L.  550,  relative  to  liens  for  repairs,  altera- 
tions and  additions,  *'  to  all  the  counties  of  this  commonwealth," 
and  provided  "  that,  to  entitle  any  one  to  the  benefits  of  this 
act,  he  shall  give  notice  ....  of  his  intention  to  file  a  lien 
under  the  provisions  of  this  act."  The  act  of  1861  contained 
no  requirement  as  to  notice.  "  It  is,  however,  perfectly  plain 
that  it  was  the  intention  of  the  legislature  by  the  act  of  1887, 
to  give  a  lien  for  repairs  by  general  law  applicable  over  the 
whole  commonwealth,  but  subject  to  the  condition  that  the 
claimant  should  give  notice  of  his  intention  to  file  a  lien  to 
the  owner  when  the  materials  are  furnished  or  work  done.  As 
this  condition  was  not  imposed  by  the  act  of  1861,  it  is  neces- 
sarily and  materially  inconsistent  with  that  act ;  but  as  the  act 
of  1887  was  clearly  intended  to  cover  the  same  subject-matter 
as  the  act  of  1861,  by  way  of  general  instead  of  local  law,  it 
must  be  regarded  as  a  substitute  for  the  latter,  and  the  latter 
must  yield : "  Best  v.  Baumgardner,  122  Pa.  17 ;  Groezinger  v. 
Ostheim,  135  Pa.  604 ;  and  see  Morrison  v.  Henderson,  126  Pa. 
216.  By  the  same  reasonable  interpretation  the  Act  of  August  1, 
1868,  P.  L.  1168,  which  permitted  liens  for  repairs  to  be  filed 
in  the  city  of  Philadelphia  but  contained  no  requirement  as  to 
notice,  must  be  considered  as  superseded,  so  far  as  the  duty  to 
give  notice  is  concerned,  by  the  act  of  1887.  As  the  city  and 
county  of  Philadelphia  are  coextensive,  and  as  the  act  of  1887 
extended  the  act  of  1861  to  all  the  counties  of  the  common- 


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464  CLARK  V.  KOPLIN. 

Opinion  of  the  Court.  [6  Pa.  Superior  Ot. 

wealth,  with  the  added  proviso  as  to  notice,  it  is  impossible  to 
conclude  that  the  legislature  intended  to  except  Philadelphia 
from  its  operation. 

Order  affirmed  and  appeal  dismissed  at  the  cost  of  the  appel- 
lant. 


Petition  of  J.  Boyd  McHenry,  Sheriff,  for  approval  of 
appointment  of  Jailer.  Appeal  by  Commissioners  of 
Columbia  County. 

StcUtUes — Construction — Repeal  by  nonuser. 

An  act  of  the  legislature  cannot  be  repealed  by  nonuser.  A  statute 
can  be  i*epealed  only  by  express  provision  of  a  subsequent  law  or  by 
necessary  implication.  To  repeal  by  implication  there  must  be  such  posi- 
tive repugnancy  between  the  new  law  and  the  old  that  they  cannot  stand 
together  or  be  consistently  reconciled.  Only  so  far  as  the  later  statute  is 
repugnant  to  the  prior,  does  it  operate  as  a  repeal. 

Stalutes— Prison  keepers— Ads  of  1790  and  1860. 

There  is  no  such  inconsistency  and  repugnancy  between  the  28th  section 
of  the  Act  of  April  6,  1790,  2  Sm.  L.  539,  and  the  Act  of  March  31,  1860, 
P.  L.  427,  as  requires  the  courts  to  hold  that  keepers  of  jails  or  prisons 
may  not  be  appointed  in  counties,  where,  in  the  opinion  of  the  court,  suit- 
able prisons  have  been  erected  for  impiisonment  of  convicts  at  labor. 

Appeals— Practice,  Superior  Court, 

An  order  of  couit  was  made  confirming  the  appointment  of  a  keeper  of 
a  county  prison,  and  no  appeal  being  taken  to  the  order  within  the  time 
allowed  by  law,  the  appellate  court  cannot  go  behind  the  order  and,  upon 
an  inquiry  into  the  facts,  treat  it  as  a  nullity.  So  far  as  the  appellate 
eouit  has  authority  to  determine,  the  order  was  valid  until  it  was  rescinded, 
and  until  that  time  the  keeper  was  entitled  to  receive  compensation ;  he  is 
entitled  to  have  the  appeal  determined  by  the  record  proper. 

Argued  Jan.  12,  1898.  Appeal,  No.  33,  Jan.  T.,  1898,  by 
commissioners  of  Columbia  Co.,  from  order  of  Q.  S.  Columbia 
Co.,  Feb.  Sess.,  1897,  No.  29,  rescinding  order  appointing  prison 
keeper,  but  directing  payment  of  his  services  from  day  of  appoint- 
ment. Before  Rice,  P.  J.,  Wickham,  Beaver,  Orlady, 
Smith  and  Porter,  JJ.    Affirmed. 

Petition  to  rescind  confirmation  of  sheriff's  appointment  of 

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McHENRY'S  .PETITION.  465 

1898.]  Statement  of  Facts— Argumentg. 

keeper  of  county  prison.  Before  Cbaig,  P.  J.,  of  the  48d  judi- 
cial district,  specially  presiding. 

It  appears  from  the  record  that  on  March  1, 1897,  on  peti- 
tion of  the  sheriff  of  Columbia  county  setting  forth  that  he  had 
appointed  Harry  H.  Kline  jailer  and  keeper  of  prisoners  con- 
fined in  the  jail  of  Ck)lumbia  county,  under  the  act  of  April  5, 
1790,  the  court  approved  the  appointment  and  fixed  the  wages 
of  the  appointee  at  $25.00  a  month.  Afterwards,  on  Septem- 
ber 20, 1897,  the  county  commissioners  filed  a  petition  asking 
that  so  much  of  the  order  of  court  as  required  the  county  to 
pay  Harry  H.  Kline,  the  sheriff^s  appointee,  $25.00  per  month 
be  rescinded,  on  the  ground  that  section  28  of  the  act  of  1790 
has  been  rendered  obsolete.  After  hearing  had  on  said  petition, 
the  court  made  the  following  decree : 

"  And  now,  October  26, 1897,  after  argument  and  due  con- 
sideration, the  order  made  by  the  court  of  quarter  sessions  of 
Columbia  county  on  the  1st  of  March,  1897,  is  rescinded ;  and 
it  is  further  directed  that  said  Harry  H.  Kline  receive  pay  from 
the  county  of  Columbia,  for  his  services  under  said  order  at  the 
rate  of  $25.00  per  month,  to  November  1, 1897  ;  and  that,  there- 
after, C.  F.  Deiterich,  the  commissioners'  appointee,  be  given 
access  to  the  jail  of  said  county  by  the  sheriff,  for  the  purposes 
of  his  appointment ;  and  that  he  receive  compensation  therefor, 
at  the  rate  of  $25.00  per  month,  from  and  after  the  first  of 
November,  1897." 

The  commissioners  of  Columbia  county  appealed. 

Error  assigned  was  in  the  following  part  of  the  decree  of 
the  court  that  "  it  is  further  directed  that  said  Harry  H.  Kline 
receive  pay  from  the  county  of  Columbia  for  his  services  under 
said  order  at  the  rate  of  $25.00  per  month,  to  November  1, 1897," 
the  order  referred  to  being  the  order  of  March  1, 1897,  confirm- 
ing the  sheriff's  appointment,  and  fixing  the  appointee's  wages 
at  $25.00  per  month. 

J.  B.  Robinson^  with  him  B.  B.  Little^  for  appellant — The 
commissioners  had  no  power  to  settle  demands  arising  from 
torts  or  the  wrongful  acts  of  a  public  officer :  Black  v.  Rem- 
publicam,  1  Yeates,  140. 
Vol.  VI— 30 


Digitized  by  VjOOQ IC 


466  McHENRY'S  PETITION. 

Ar^piments — Opinion  of  the  Court. '   [6  Pa.  Superior  Ct* 

A  public  oflBcer  claiming  compensation  must  show  an  act  of 
assembly  giving  it:  Rothrock  v.  School  Dist.,  133  Pa.  487. 

He  cannot  claim  fees  for  services  rendered  for  which  no 
compensation  is  provided  by  law:  Will  v.  Eberly,  8  Lane. 
Bar.  105. 

No  one  but  an  officer  de  jure  is  entitled  to  the  compensation 
provided  by  law:  Commonwealth  v.  Slifer,  25  Pa.  23. 

Clearly  the  commissioners  would  not  have  the  power  to  use 
the  public  moneys  in  this  case  against  law,  and  therefore  the 
courts  could  not  compel  them  to  so  use  them.  Even  when  the 
statutory  compensation  be  clearly  inadequate  it  cannot  be  varied 
at  the  discretion  of  the  court  or  the  agreement  of  the  parties : 
Hahn  V.  Derr,  1  W'r'd.  178. 

And  if  the  commissioners  had  no  right  to  pay  a  person  not 
authorized  by  law  the  courts  had  no  jurisdiction  to  compel 
them  to  do  so :  Black  v.  Rempublicam,  1  Yeates,  140. 

&rant  Herring^  with  him  O.  M.  Quick^  for  appellee. 

Pbb  Cueiam,  February  19,  1898 : 

The  28th  section  of  the  Act  of  April  5, 1790,  2  Sm.  L.  539, 
has  not  been  expressly  repealed,  and  it  is  worthy  of  notice  that 
it  was  omitted  from  the  list  of  statutes  and  sections  of  the  same 
act  embraced  in  the  repealing  section  of  the  Revised  Penal  Code 
of  Procedure  (Act  of  March  31,  1860,  P.  L.  427-451). 

There  was  good  reason  for  this.  Imprisonment  at  labor  in  the 
county  jail  or  prison  for  less  than  a  year  is  still  permitted  by 
section  75  of  the  latter  act  when  in  the  opinion  of  the  court  pro- 
nouncing the  sentence,  suitable  prisons  have  been  erected  for  such 
confinement  and  labor.  Therefore,  the  reasons  which  actuated 
the  legislature  in  providing  for  the  appointment  of  keepers  of 
such  malefactors,  whose  duty  it  was  to  superintend  and  direct 
their  labors,  have  not  ceased  to  exist.  As  they  enacted  no  sub- 
stitute for  the  provision  it  is  fairly  to  be  presumed  that  they  in- 
tended to  leave  it  in  force.  The  remark  of  Lord  Bacon,  "  that, 
as  exceptions  strengthen  the  force  of  a  general  law,  so  enumer- 
ation weakens,  as  to  things  not  enumerated,"  expresses  a  prin- 
ciple which  often  aids,  if  it  does  not  conclusively  control,  in 
deteimining  the  intention  of  the  legislature ;  which,  after  all,  is 
the  thing  to  be  ascertained,  whether  the  question  be  one  of  con 


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McHENRY'S  PETITION.  467 

1898.]  Opinion  of  the  Ck)urU 

struction  or  of  implied  repeal.  It  has  even  been  held  that  a 
specific  repeal  by  one  statute  of  a  particular  section  of  another 
raises  a  clear  implication  that  no  further  repeal  was  intended. 
Probably  it  is  safer  to  say,  that  it  is  strong  evidence  that  no 
further  repeal  was  intended ;  and  it  is  not  here  contended  tha<t 
the  rule  is  so  rigid  as  to  prevent  the  consideration  of  other  evi- 
dence of  legislative  intent,  as,  for  instance,  positive  repugnancy 
or  clear  inconsistency  between  the  provisions  of  the  later  law 
and  those  of  the  earlier.  See  Endlich's  Interpretation  of  Stat- 
utes, sees.  203,  397,  398  and  cases  there  cited.  "  It  was  long 
ago  settled  that  an  act  of  parliament  cannot  be  repealed  by  non- 
user.  That  this  is  the  rule  in  this  state  accords  with  reason, 
and  the  absence  of  authority  to  the  contrary.  The  settled  rale  is, 
that  a  statute  can  be  repealed  only  by  express  provision  of  a 
subsequent  law,  or  by  necessary  implication.  To  repeal  by  impli- 
cation there  must  be  such  a  positive  repugnancy  between  the  new 
law  and  the  old,  that  they  cannot  stand  together,  or  be  consist- 
ently reconciled:"  Homer  v.  Commonwealth,  106  Pa.  221. 
Only  so  far  as  the  later  statute  is  repugnant  to  the  prior,  does  it 
operate  as  a  repeal.  There  is  no  such  inconsistency  or  repug- 
nancy between  the  act  of  1860  and  the  28th  section  of  the  act 
of  1790  as  requires  us  to  hold  that  keepers  of  jails  or  prisons 
may  not  be  appointed  in  counties,  where,  in  the  opinion  of  the 
court,  suitable  prisons  have  been  erected  for  imprisonment  of 
convicts  at  labor. 

There  was,  therefore,  authority  of  law  for  the  order  approv- 
ing the  appointment  of  the  keeper,  and  fixing  his  compensation 
if  the  county  prison  was  suitable  for  the  confinement  of  prisoners 
at  labor.  This  was  to  be  determined  by  the  court  having  juris- 
diction to  make  the  order ;  and,  as  an  appeal  from  the  order 
would  be  a  mere  substitute  for  a  certiorari,  there  could  be  no 
review  of  the  judgment  of  the  court  upon  the  facts.  The  pro- 
ceedings being  regular,  and  the  court  having  jurisdiction  of  the 
subject-matter,  it  must  be  presumed  that  it  acted  according  to 
law.  Furthermore,  no  appeal  was  taken  irom  the  order  wit!) in 
the  time  allowed  by  law.  We  cannot  now  go  behind  it,  and, 
upon  an  inquiry  into  the  facts,  treat  it  as  nullity.  So  far  bs  we 
have  authority  to  determine  in  this  proceeding,  the  order  was 
valid  until  it  was  rescinded,  and  until  that  time  the  keeper  was 
entitled  to  receive  compensation.    In  other  words,  the  quei^tion 


Digitized  by  VjOOQ IC 


468  McHENRY'S  PETITION. 

Opinion  of  the  Court.  [6  Pa.  Superior  iX, 

whether  he  was  an  officer  de  jure  or  merely  de  facto  does  not 
arise  on  this  record. 

We  have  not  overlooked  what  the  learned  judge  says  in  his 
opinion  relative  to  the  facts  alleged  in  the  petition  of  the  com- 
missioners to  have  the  order  rescinded.  Passing  the  question 
whether  facts  can  be  brought  on  the  record  by  a  recital  of  them 
in  the  opinion,  it  is  to  be  observed  that  the  record  does  not  show 
that  the  appellee  had  notice  of  the  proceeding  to  revoke  his  ap- 
pointment or  that  he  appeared ;  and  it  is  not  alleged  anywhere, 
that  he,  or  anyone  who  had  authority  to  speak  for  him,  admitted 
the  facts  alleged  in  the  petition.  Therefore,  he  is  entitled  to 
have  the  appeal  determined  by  the  record  proper,  which  shows 
a  regular  appointment  on  March  1, 1897,  and  a  qualified  rescis- 
sion of  the  order  on  October  26,  1897,  which,  in  efiEect,  left  the 
original  order  in  force,  so  far  as  it  affected  his  right  to  compen- 
sation duiing  the  period  of  his  actual  service.  There  is  no  er- 
ror in  this  record  of  which  the  appellants  can  justly  or  legally 
complain. 

The  order  is  affirmed  and  the  appellants  are  directed  to  pay 
the  costs. 


P.  S.  Bogert,  Appellant,  v.  John  Batterton  and  Elizabeth 

Batterton. 

Actions— Illegal  distress — Proper  remedy  is  replevin. 

Replevin  is  the  proper  remedy  to  be  used  by  a  person  whose  goods 
have  been  impi'operly  distrained  upon  by  a  landlord  for  rent  due  by  a 
tenant,  and  where  such  person  receives  notice  of  the  distress  and  the  land- 
lord postpones  the  sale  to  give  him  an  opportunity  to  replevin  which  he 
refuses  to  do,  he  cannot,  after  sale,  bring  trespass  against  the  landlord  for 
the  value  of  the  goods,  nor  replevin  against  a  purchaser  of  the  same  at 
the  constable^s  sale. 

Landlord  and  tenant — Leased  sewing  machines  not  exempt  from  distress, 
A  sewing  machine  leased  to  the  tenant  of  a  dwelling  house  is  not  exempt 
from  distress  for  rent  under  the  Act  of  March  4,  1870,  P.  L.  35. 

Landlord  and  tenant — Property  on  premises  liable  to  distress — Exempt 
Uon  not  claimable  by  a  stranger. 
Property  of  a  stranger  found  upon  leased  premises  is  liable  to  distress 


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BOGERT  V.  BATTERTON.  469 

1898.]  Syllabos— Statement  of  Facts. 

for  rent  in  aiTears.  The  claim  for  exemption  is  a  personal  privilege  and 
must  be  claimed  by  the  person  entitled  thereto.  It  cannot  be  assigned  to 
or  claimed  by  a  stranger. 

Argued  Jan.  12,  1898.  Appeal,  No.  86,  Jan.  T.,  1898,  by 
plaintiff,  from  judgment  of  C.  P.  Luzerne  Co.,  Oct.  T.,  1891, 
No.  261,  in  favor  of  defendants,  on  case  tried  before  a  judge 
without  a  jury.  Before  Rice,  P.  J.,  Wickham,  Beaver,  Or- 
LADY,  Smith  and  Pobtbr,  JJ.    Affirmed. 

Replevin  for  sewing  machine.  Before  Gunster,  J.,  of  the 
45th  judicial  district  specially  presiding. 

By  agreement  of  the  parties  a  trial  by  jury  was  dispensed 
with  and  the  case  was  submitted  to  the  decision  of  the  court 
under  the  act  of  April  22, 1874.  The  following  material  facts 
were  found  by  the  court :  John  Essling  rented  on  May  8, 1891, 
a  certain  house  in  Wilkes-Barre  from  D.  L.  O'Neill  for  a  cer- 
tain term  at  the  rate  of  f  12.50  a  month  payable  in  advance. 
He  made  a  payment  of  $5.00  down  on  the  execution  of  the 
lease,  and  promising  to  pay  another  15.00  in  a  few  da3rs,  was 
permitted  to  go  into  possession  of  the  premises  described  in  the 
lease.  On  May  15,  1891,  the  plaintiff  rented  to  said  Essling  a 
sewing  machine  of  the  value  of  $40.00  for  the  term  of  one 
month,  for  the  rent  of  $3.00,  and  delivered  the  same  to  said 
Essling  at  said  premises. 

Essling  did  not  pay  the  remaining  $5.00  due  on  the  execu- 
tion of  the  lease,  nor  the  instalment  of  $12.50  rent  which  fell 
due  June  1, 1891,  and  on  June  2,  a  landlord's  warrant  of  dis- 
tress, in  the  usual  foim,  issued  for  the  sum  of  $17.50,  under 
which  distress  was  made  upon  some  personal  property,  includ- 
ing the  sewing  machine  rented  by  the  plaintiff  to  Essling.  The 
lease  contained  a  waiver  of  exemption.  At  the  hour  fixed  for 
the  constable's  sale,  the  plaintiff  gave  the  constable  notice  in 
writing  that  the  sewing  machine  was  his  property,  and  forbade 
him  selling  the  same  as  the  property  of  John  Essling,  as  the 
same  was  only  leased  to  him.  The  constable  sold  the  other 
property,  but  not  the  sewing  machine,  and  adjourned  the  sale 
of  it  for  one  week,  notifying  plaintiff  of  the  fact.  At  the  ex- 
piration of  the  week  nothing  having  been  done  in  the  mean- 
time by  the  plaintiff,  the  constable  put  up  the  machine  in 
question  for  sale  and  sold  it  to  Elizabeth  Batterton,  one  of  the 


Digitized  by  VjOOQ IC 


470  BOGERT  v.  BAITKRTON. 

Statement  of  Facts.  [6  Pa.  Superfoi  Ct 

defendants,  who  took  possession  of  the  machine.  The  plaintiflE 
was  present  and  participated  in  the  bidding  on  the  machine. 

On  June  24, 1891,  the  plaintiff  sued  out  a  writ  of  replevin  in 
this  case  for  the  machine  in  question,  laying  the  value  at  ^0.00, 
and  delivered  the  same  to  the  plaintiff  and  summoned  both  of 
the  defendants,  John  Batterton  pleading  non  cepit,  and  Eliza- 
beth Batterton  pleading  non  cepit  and  property. 

Certain  points  had  been  presented  and  a  formal  request  for 
instructions  to  the  jury  before  a  juror  was  withdrawn,  and  the 
•decision  of  the  case  submitted  to  the  court.  These  points  and 
the  answers  thereto,  were,  inter  alia,  as  follows : 

Plaintiff's  second  point,  that  under  the  provisions  of  the  act 
approved  March  4, 1870,  sewing  machines  used  and  owned  by 
private  families  were  exempt  from  levy  and  sale  on  execution 
or  distress  for  rent,  and  the  constable,  John  Merrick,  who  had 
the  landlord's  warrant  against  John  Essling,  had  no  authority 
or  wan-ant  in  law  to  levy  upon  the  sewing  machine  in  dispute. 
An%wer :  The  act  of  1870  is  a  supplement  to  an  act  entitled 
*'  an  act  to  exempt  sewing  machines  belonging  to  seamstresses 
in  this  commonwealth  from  levy  and  sale  on  execution  or  dis- 
tress for  rent,"  approved  April  17,  1869,  which  provides  as 
follows:  "That  hereafter  all  sewing  machines  belonging  to 
seamstresses  in  this  commonwealth  shall  be  exempt  from  levy 
and  sale  on  execution  or  distress  for  rent,  in  addition  to  any 
articles  or  money  now  exempt  by  law."  The  act  of  1870  i-e- 
ferred  to  in  the  point  is  entitled  "  a  supplement  to  an  act  entitled 
'an  act  to  exempt  sewing  machines  belonging  to  seamstresses  in 
this  commonwealth  from  levy  and  sale  on  execution  or  distress 
for  rent,'  and  provides  as  follows :  "  That  the  act  entitled  '  an 
act  to  exempt  sewing  machines  belonging  to  seamstresses  in  this 
commonwealth  from  levy  and  sale  on  execution  or  distress  for 
rent,'  approved  April  17, 1896,  shall  from  and  after  the  passage 
of  this  act  apply  to  all  sewing  machines  used  and  owned  by 
private  families  in  this  commonwealth :  Provided— that  this  act 
shall  not  apply  to  persons  who  keep  sewing  machines  for  sale 
or  hire.' "  The  defendant  contends  that  Essling  waived  the 
benefit  of  the  exemption  provided  by  this  act  by  waiving  "  all 
the  exemption  laws  of  this  or  any  other  State  of  the  United 
States,"  while  the  plaintiff  contends  that  as  to  the  property  now 
in  dispute  the  waiver  is  void.     Counsel  have  not  referred  me  to 


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BOGERT  V.  BATTERTON.  471 

1898.]  Statement  of  Facts. 

any  judicial  construction  of  the  acts  under  consideration.  A 
careful  comparison  of  these  provisions  with  those  of  other  acts 
of  assembly  exempting  property  from  levy,  and  the  constiniction 
which  has  been  put  upon  such  other  statutes  leads  me  to  the 
conclusion  that  ^^  all  sewing  machines  belonging  to  seamstresses 
in  this  commonwealth  shall  be  exempt  from  levy  and  sale,"  and 
that  it  would  be  contrary  to  public  policy  to  permit  seamstresses 
to  waive  this  exemption.  The  act  of  1849  already  exempted 
property  to  the  value  of  $800  exclusive  of  all  wearing  apparel 
of  the  defendant  and  his  family,  and  all  bibles  and  school  books 
in  use  in  the  family  from  levy  and  sale  on  execution  issued 
upon  any  judgment  obtained  upon  contract  and  distress  for  rent. 
Sewing  machines  fall  as  much  within  this  exemption  as  stoves 
and  other  household  furniture,  or  a  carpenter's  tools.  The  leg- 
islature was  no  doubt  well  aware  that  few  seamstresses  have 
anything  more  than  their  wearing  apparel  and  their  sewing 
machines.  Under  the  act  of  1849  their  wearing  apparel,  bibles 
and  school  books  remained  exempt,  as  they  were  before  the  date 
of  said  act,  and  I  have  never  heard  of  a  case  where  such  prop- 
erty was  sold  when  the  owner  claimed  them  as  exempt,  though 
the  exemption  of  the  act  of  1849  had  been  waived.  But  other 
property,  including  sewing  machines,  to  the  value  of  $800  was 
exempted  by  that  act.  If  sewing  machines  were  already  exempt 
what  necessity  was  there  for  exempting  them  again?  In  1849 
they  were  not  known.  In  1869  they  were  in  general  use,  had 
become  a  household  necessity  and  afiEorded  many  deserving 
women  the  means  of  earning  a  livelihood.  Unfortunately  our 
courts  have  held  that  the  exemption  under  the  act  of  1849  could 
be  waived.  That  they  have  so  held  is  the  only  argument  which 
can  be  advanced  that  the  exemption  of  the  act  of  1869  can  be 
waived.  This  argument  loses  much  of  its  force  when  consid- 
ered in  the  light  of  what  our  Supreme  Court  says  of  the  inter- 
pretation put  upon  the  act  of  1849.  In  Firmstone  v.  Mack,  49 
Pa.  387,  the  late  Chief  Justice  Woodwabd  says  :  "  If  it  were 
res  Integra,  if  with  the  experience  and  observation  we  have  had 
we  were  now  for  the  first  to  pass  upon  the  question  whether 
debtors  could  waive  their  rights  under  the  act  of  1849  or  widows 
theirs  under  the  act  of  April  14, 1851,  we  would  be  very  likely  to 
deny  it  altogether  and  stick  to  the  statutes  as  they  are  written." 
This  .was  said  in  1866,  only  four  years  before  the  act  of  1869 


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472  BOGERT  v.  BATTERTON. 

Statement  of  Facts — ^Points.       [6  Pa.  Superior  Ct. 

was  framed,  and  in  this  same  case  it  was  held  that  an  agree^ 
ment  by  a  laborer  to  waive  the  proviso  of  the  act  of  1845  which 
exempts  wages  from  attachment,  embodied  in  a  promissory  note, 
was  void.  Eveiy  reason  which  can  be  advanced  for  withhold- 
ing the  wages  of  the  laborer  from  the  grasp  of  his  creditor  can 
be  advanced  for  withholding  the  machine  with  which  the  poor 
seamstress  earns  wages,  from  the  grasp  of  her  creditors.  But 
however  that  may  be,  there  are  reasons  why  the  point  cannot  be 
affirmed.  There  is  nothing  in  the  title  of  the  act  of  1870  to 
indicate  that  it  was  the  intention  of  the  legislature  to  enact  a 
law  relating  to  any  other  person  or  persons  than  seamstresses, 
and  the  exemption  of  sewing  machines  belonging  to  them.  It 
is  entirely  silent  on  the  matter  of  making  the  act  of  1869  ap« 
plicable  to  sewing  machines  used  and  owned  by  private  families. 
The  act  itself  expressly  provides  that  it  "  shall  not  apply  to 
persons  who  keep  sewing  machines  for  sale  and  hire."  It  is  an 
undisputed  fact  in  the  case  that  the  plaintiff  was  engaged  in 
the  business  of  selling  and  letting  or  hiring  sewing  machines, 
and  that  he  let  the  machine  in  question  to  Essling  for  the  term 
of  one  month.  There  is  no  evidence  that  Essling  claimed  the 
exemption  of  it  On  the  contrary,  he  left  the  premises  and 
abandoned  the  property  on  it.  There  is  no  evidence  that  the 
plaintiff  claimed  that  the  machine  was  exempt.  He  was  not  in 
a  position  to  claim  the  benefit  of  any  exemption  law.  Neither 
the  relation  of  landlord  and  tenant,  nor  of  debtor  and  creditor 
was  established  between  him  and  Mr.  O'Neil.  If  he  was  not  a 
debtor  for  the  rent,  he  was  not  entitled  to  the  exemption  of  the 
statute.  That  his  property  was  seized  was  due  to  the  accident 
of  its  being  found  on  the  demised  premises.  It  shared  the  fate 
which  the  goods  of  any  stranger  might  have  shared :  Rosen- 
berger  v.  Hallowell,  35  Pa.  369.  It  is  a  well  settled  principle 
of  the  common  law  that  the  goods  of  a  stranger  found  on  the 
demised  premises  are  liable  to  distress  for  rent.  While  there 
are  many  exceptions  in  fact  to  this  general  rule  there  are  few 
exceptions  to  it  in  principle :  Page  v.  Middleton,  118  Pa.  546 ; 
Kams  V.  McKinney,  74  Pa.  387.  For  these  reasons  I  decline 
to  affirm  tlie  plaintiff's  second  point.  [1] 

The  following  points  of  the  defendant  were  affirmed: 
1.  That  the  property  of  a  stranger  found  upon  leased  preic* 
ises  is  liable  to  distress  by  the  landlord  for  rent  in  arrean. 


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BOGERT  V.  BATTERTON.  473 

1898.]  Points— Opinion  of  the  Court. 

2.  The  claim  for  exemption  is  a  personal  privilege,  and  must 
be  claimed  by  the  person  entitled  thereto.  It  cannot  be  assigned 
or  claimed  by  a  sti-anger. 

3.  If  the  jury  believe  from  the  evidence  that  Elizabeth 
Batterton,  one  of  the  defendants,  purchased  the  machine  in 
question  at  a  public  sale  made  by  a  constable  in  the  execution 
of  a  landlord's  warrant,  her  title  to  the  machine  is  not  vitiated 
or  afifected  by  the  failure  or  refusal  of  the  constable  to  allow  a 
claim  for  exemption.  [8] 

4.  If  the  jury  believe  that  the  plaintiff  did  not  replevy  the 
machine  in  question  before  the  sale  as  requii-ed  by  act  of  21st 
March,  1872,  he  cannot  recover  in  an  action  of  replevin  against 
the  purchaser  instituted  after  the  sale.  [4] 

5.  If  the  jury  believe  fi-om  the  evidence  that  the  tenant) 
John  Essling,  in  the  lease  signed  by  him  waived  the  benefit  of 
all  the  exemption  laws  of  the  state  of  Pennsylvania,  that  waiver 
cannot  be  retracted  or  set  up  by  another  party.  [5] 

6.  Under  all  the  evidence  in  the  case  the  verdict  must  be 
for  the  defendants.  [6] 

In  conclusion  I  am  of  opinion  that,  under  the  facts  of  the 
case,  judgment  should  be  entered  in  favor  of  the  defendants 
and  against  the  plaintiff,  and  that  the  said  Elizabeth  Batterton 
have  return  implevisable  of  the  said  machine  and  fourteen  dol- 
lars and  fifty  cents  damages,  and  the  prothonotary  of  said  court 
is  hereby  directed  to  enter  judgment  hereon  accordingly,  unless 
exceptions  are  filed  hereto,  in  his  office  within  thirty  days  after 
service  of  notice  of  the  filing  of  this  decision  by  him  to  the  said 
parties  or  their  attorneys. 

Error%  assigned  among  others  were  (1)  refusal  to  affirm  the 
plaintiff's  second  point  or  request.  (3-6)  In  affirming  defend- 
ants' third,  fourth,  fifth  and  sixth  points  or  requests. 

U.  F»  Mc  Govern,  for  appellant. 

J.  F.  G'NeiU,  with  him  D.  L.  O'Neill,  for  appellees. 

Pee  Cueiam,  February  19, 1898 : 

The  sewing  machine  in  question  was  not  exempt  from  levy 
and  sale  on  execution  or  distress  for  rent  under  the  act  of 


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474  BOGERT  v.  BAITERTON. 

Opinion  of  the  Couit.  [6  Pa.  Supeiior  Ct 

April  17, 1869,  because  it  did  not  belong  to  a  seamstress.  It 
was  not  exempt  under  the  Act  of  March  4, 1870,  P.  L.  35,  as 
the  property  of  the  plaintiff,  because  that  act  expressly  excepts 
from  its  operation  "  persons  who  keep  sewing  machines  for  sale 
or  hire."  Nor  is  he  in  a  position  to  claim  that  it  was  exempt  as 
the  property  of  the  lessee.  The  latter  had  left  it  upon  the  prem- 
ises from  which  he  had  removed  and  made  no  claim  of  owner- 
ship, or  demand  to  have  it  exempted,  and  at  the  date  of  the  ^ale 
the  term  for  which  he  had  leased  it  had  expired.  It  was  not  at 
that  time  a  sewing  machine  "  owned  and  used  "  by  a  private 
family  within  the  meaning  of  that  act.  It  is  also  to  be  re- 
marked, that  the  plaintiff  had  notice  of  the  distress  and  full 
opportunity  to  replevy  the  property  before  the  sale ;  but,  in- 
stead of  pursuing  his  remedy  under  the  act  of  1772,  he  saw 
fit  to  let  the  sale  go  on,  and,  indeed,  participated  in  the  bid- 
ding. Moreover,  the  title  of  the  act  of  1870  gives  no  notice 
whatever  of  legislation  exempting  sewing  machines  owned  and 
used  by  private  families,  and  it  maybe  well  questioned  whether 
such  a  provision  was  germane  to  the  subject  of  the  act  of  1869 
to  which  it  was  a  supplement.  It  is  not  necessary,  however,  to 
go  into  a  discussion  of  that  question,  since  under  the  facts  foimd 
by  the  court  the  plaintiff  is  not  now  in  a  position  to  deny  the 
validity  of  the  title  acquired  by  the  purchaser  at  the  sale  un- 
der the  landlord's  warrant.  "  That  his  goods  were  seized  was 
due  to  the  accident  of  their  being  found  on  the  demised  prem- 
ises. A  stranger's  goods  would  have  shared  the  same  fate : " 
Rosenberger  v.  Hallowell,  35  Pa.  369.  The  reasons  in  support 
of  the  judgment  are  so  clearly  stated  in  the  findings  of  the  pre- 
siding judge  as  to  render  further  discussion  unnecessary. 
'    Judgment  affirmed. 


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DOYLE  V.  LONGSTRKTH.  475 

1898.]  Syllabus— Assignment  of  Errors. 


Patrick  Doyle  v.  Benjamin  T.  Longstreth,  landlord, 
Appellant,  and  James  McKniff. 

Landlord  and  tenant — Apportionment  of  rent  of  land  diminished  by  sale. 
Where  by  the  terms  of  a  lease  the  landloi-d  reserved  the  privilege  of 
selling  off  portions  of  the  land,  the  rent  to  be  apportioned  accoi'dingly,  in 
the  absence  of  an  agreement  between  the  paities  as  to  the  precise  amount 
of  the  reduction  to  be  made  after  each  sale,  the  tenants  remain  liable  for 
the  payment  of  such  proportion  of  the  whole  rent  as  the  rental  value  of  the 
parts  unsold  bear  to  the  whole. 

Partnership — Partner"^ s  authoiHty  to  bind  his  copartner — Estoppel, 
A  property  which  had  been  leased  to  copaitnei's  was  reduced  in  extent 
by  sales,  by  the  landlord  under  agreement  with  the  tenants,  of  portions  of 
the  demised  farm.  One  of  the  cotenants  and  partners  settled  and  paid  the 
rent  for  several  years  upf)n  the  basis  of  an  annual  reduction  of  $50.00  on 
account  of  land  sold.  The  copartnership  was  dissolved,  the  other  partner 
continuing  as  tenant.  Held,  in  an  action  of  replevin  by  the  tenant  that  the 
foimer  partner  in  making  the  settlement  or  appoitionment  of  rent  acted 
within  the  apparent  scope  of  his  authority  and,  in  the  absence  of  fraud  or 
collusion,  the  plaintiff  could  not  be  permitted  to  allege,  as  against  the  land- 
lord, that  the  abatement  claimed  and  allowed  was  too  small,  and  therefore, 
that  over  payments  were  made  which  should  be  applied  upon  the  rent  for 
the  years  of  his  sole  tenancy. 

Argued  Nov.  17,  1897.  Appeal,  No.  69,  Oct.  T.,  1897,  by 
defendant,  from  judgment  of  C.  P.  Delaware  Co.,  June  T.,  1895, 
No.  120,  on  verdict  for  plaintiflE.  Before  Rice,  P.  J.,  Wickham, 
Beaver,  Orlady,  Smith  and  Porter,  JJ.    Reversed. 

Replevin  for  goods  distrained.    Before  Clayton,  P.  J. 

The  defendant,  Benjamin  T.  Longsti'eth,  distrained  for  four 
yeara'  rent  on  certain  premises  amounting  to  $1,000,  after  allow- 
ing for  certain  credits  which  reduced  the  amount  of  the  distress 
warrant  to  $517.48.  The  plaintiff,  Patrick  Doyle,  tenant  in 
possession,  replevied.  The  defendant  avowed  and  made  cog- 
nizance, and  the  case  was  tried  on  the  issue  of  no  rent  in  arrear. 

Other  facts  suflSciently  appear  in  the  opinion  of  the  court. 

Verdict  and  judgment  for  plaintiff.    Defendant  appealed. 

'    Errors  assigned  9,moTi^  othere  were  (1)  in  sajdng  to  the  jury 
that  under  the  terms  of  the  lease  there  should  be  a  reduction  of 


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476  DOYLE  t;.  LONGSTRETH. 

Assignment  of  Ei-rors — Arguments.    [6  Pa.  Supeiior  Ct. 

17.50  per  acre  for  each  acre  of  land  sold,  this  being  the  construc- 
tion by  the  court  of  the  term  "a  corresponding  reduction  being 
made  in  the  rent,"  for  land  sold,  contained  in  the  following 
clause  in  the  lease:  "The  said  William  M.  Longstreth  and 
Patrick  Doyle,  also  covenant  and  agree  to  and  with  the  said 
Benjamin  T.  Longstreth  that  on  the  sale  of  any  of  the  above 
property  by  the  said  Benjamin  T.  Longstreth  that  they,  the  said 
William  M.  Longstreth  and  Patrick  Doyle  will  release  the  prop- 
erty so  sold  from  the  terms  and  operations  of  this  lease,  on  a 
corresponding  reduction  being  made  in  the  rent,  and  on  pay- 
ment to  them  of  the  value  of  whatever  crop  may  be  in  the  ground 
so  sold."  (2)  In  charging  the  jury  as  follows :  "As  I  have  said, 
you  will  just  consider  these  two  questions  and  you  can  take  out 
this  lease  with  you,  which  I  have  already  construed.  You  will 
clearly  see  that  this  is  a  lease  for  farming  purposes  and  not  for 
anything  else ;  as  I  tell  you  the  acreage  rule  is  the  rule  for  tlie 
proportionate  deduction  to  be  made,  and  after  you  have  arrived 
at  your  verdict  there  is  no  objection  to  the  prothonotary  taking 
it,  but  you  must  see  that  it  is  properly  done.  There  are  two 
cases  before  you."  (4)  The  rent  having  been  voluntarily  paid 
in  full  to  March  1, 1891,  by  William  M.  Longstreth,  one  of  the 
tenants,  and  the  distress  warrant  being  only  for  rent  falling  due 
since,  the  learned  court  erred  in  saying  to  the  jury,  that  if  they 
found  the  other  teifant  did  not  agree  to  this  payment,  he  was 
entitled  in  this  action  to  be  credited  at  the  rate  of  $7.60  per  acre 
for  all  land  sold  since  the  beginning  of  the  lease. 

V.  Oilpin  Robinson^  for  appellant. — The  acts  and  declarations 
of  the  parties  may  be  fairly  regarded  as  throwing  light  upon 
what  they  meant  by  their  written  agreement :  Colder  v.  Weaver, 
7  Watts,  466  ;  Gass's  Appeal,  78  Pa.  89. 

In  the  construction  of  a  contract  where  the  language  used 
by  the  parties  is  indefinite  or  ambiguous  and  of  doubtful  con- 
struction, the  practical  interpretation  by  the  parties  themselves 
is  entitled  to  great  if  not  controlling  influence:  Toplifif  v.  Top- 
liff,  122  U.  S.  121. 

A  voluntary  payment  of  money  under  a  claim  of  right  cannot 
in  general  be  recovered  back. 

A  voluntary  overpayment  upon  a  previous  quarter  cannot  be 
recovered  of  the  landlord :  Warner  v.  Caulk,  8  Whart  193. 


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DOYLE  r.  LONGSTRETH.  477 

1898.]  Arguments — Opinion  of  the  Court. 

Each  member  of  a  partnership  is  in  contemplation  of  law 
the  general  agent  of  the  firm,  and  has  power  to  bind  his  copart* 
ners  by  acts  done  within  the  scope  of  the  business  of  the  part- 
nership :  Savings  Fund  Society  v.  Savings  Bank,  86  Pa.  498 ; 
Edwards  v.  Tracy,  62  Pa.  874. 

The  court  in  instructing  the  jury  that  the  landlord  should  be 
called  upon  to  account  for  the  pajrments  made  by  Doyle's  co- 
tenant,  even  if  Doyle  did  not  understand  that  his  cotenant  was 
only  getting  a  reduction  of  ^0.00  a  year,  overlooked  the  fact 
that  the  issue  on  trial  was  between  Doyle  and  his  landlord  and 
not  between  Doyle  and  his  partner,  and  further  gave  no  weight 
to  the  legal  principle  that  Doyle  was  bound  by  the  acts  of  his 
partner:  Tyson  v.  Pollock,  1  P.  &  W.  875;  Saving  Fund 
Society  v.  Bank,  36  Pa.  498 ;  Edwards  v.  Tracy,  62  Pa.  874, 
and  that  if  his  pailiner  had  misbehaved,  the  remedy  was  against 
him  for  such  misbehavior.  The  remedy  was  not  against  the 
landlord  to  compel  him  to  refund. 

W.  Roger  Fronefield^  for  appellee. 

Opinion  by  Rice,  P.  J.,  February  19, 1898 : 

Benjamin  T.  Longstreth,  the  principal  defendant,  leased  a 
tract  of  land  to  Patrick  Doyle,  the  plaintiff,  and  William  M. 
Longstreth  for  the  term  of  one  year  from  March  1, 1882,  at  an 
annual  rental  of  $800. 

At  the  end  of  the  first  year  they  remained  in  joint  posses- 
sion as  tenants  from  year  to  year  until  March  1, 1891,  after 
which  time  Doyle  remained  in  sole  possession. 

In  April,  1895,  the  landlord  issued  a  distress  warrant  for  the 
rent  which  he  alleged  had  accrued  between  March  1, 1891,  and 
March  1, 1895,  and  was  unpaid.  The  goods  of  Doyle  were  dis- 
trained and  he  sued  out  a  writ  of  replevin.  The  defendants 
avowed  and  made  cognizance,  and  upon  the  trial  of  the  issue 
upon  a  plea  of  no  rent  in  arrear,  and  a  special  plea  not  necessary 
to  be  noticed  here,  it  appeared,  that  the  leased  premises  origi- 
nally consisted  of  a  tract  of  land  of  about  forty  acres,  mostiy 
arable,  upon  which  there  were  a  dwelling  house,  a  spring  house 
with  a  tenement  overhead,  and  a  bam  with  stable  for  six  or 
eight  cows  or  horses.  The  premises  were  reduced  in  extent  by 
sales  made  by  the  landlord  as  follows :  in  the  years  beginning, 


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478  DOYLE  v.  LONGSTRETH; 

Opinion  of  the  Court.  [6  Pa.  Superior  Ct : 

March  1, 1882,  two  acres ;  March  1, 1886,  one  acre ;  March  1, 
1887,  twelve  acres. 

Patrick  Doyle  paid  the  stipulated  rent  for  the  year  1882 ;  and 
for  the  years  1888, 1884,  1886, 1886, 1887,  William  Longstreth, 
his  cotenant,  paid  it.  For  the  subsequent  years  up  to  March  1, 
1891,  when  William  M.  Longstreth  went  out  of  possession,  the 
latter  paid  rent  at  the  rate  of  $250  a  year,  under  an  amicable 
arrangement,  as  alleged,  between  him  and  the  landlord,  by 
which  the  latter  abated  $50.00  a  year  on  account  of  the  land 
sold. 

The  money  with  which  William  M.  Longstreth  paid  the  rent 
for  the  years  mentioned  was  partly  his  own  and  partly  Patrick 
Doyle's. 

It  is  not  disputed,  that,  as  between  them,  the  latter  was  alone 
liable  for  the  rent  for  the  years  1891 — 1895  for  which  tlie  dis- 
tramt  was  made. 

The  principal  legal  question  in  the  case  arises  upon  the  con- 
struction of  the  following  clause  in  the  lease :  "  The  said  Wil- 
liam M.  Longstreth  and  Patrick  Doyle  also  covenant  and  agree 
to  and  with  the  said  Benjamin  T.  Longstreth  that  on  the  sale 
of  any  of  the  above  property  by  the  said  Benjamin  T.  Long- 
streth, that  they  the  said  William  M.  Longstreth  and  Patrick 
Doyle  will  release  the  property  so  sold  from  the  terms  and  oper* 
ations  of  this  lease,  on  a  corresponding  reduction  being  made  in 
the  rent,  and  on  payment  to  them  of  the  value  of  whatever  crop 
may  be  in  the  ground  so  sold."  Very  early  in  the  trial  of  the 
case  the  learned  judge  construed  this  to  mean,  that  for  every 
acre  sold  one  fortieth  of  the  rent,  or  $7.50,  was  to  be  abated. 
The  argument  in  favor  of  this  construction  is,  that  it  furnished 
a  convenient  rule,  whei-eby  the  amount  of  the  reduction  could 
be  ascertained  with  certainty  and  disputes  be  avoided.  The 
argument  is  not  without  force,  but  it  is  not  convincing.  If  the 
parties  had  intended  that  reduction  should  be  made  according 
to  this  inflexible  rule  it  seems  reasonable  to  suppose  that  they 
would  have  so  provided  in  the  lease.  The  land  was  not  rented 
at  so  much  an  acre ;  the  parties  had  not  agreed  that  the  rental 
value  of  each  acre  was  $7.50 ;  nor  was  it  so  in  fact,  as  a  refer- 
ence to  the  testimony  embraced  in  the  third  assignment  of  error 
will  show.  It  is  unreasonable  to  suppose  that  if,  for  example, 
the  landlord  had  sold  the  land  upon  which  the  house  stands^ 


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DOYLE  V.  LONGSTRETH.  479 

1898.]  Opinion  of  the  Court. 

which  according  to  the  plaintiff's  own  admission  he  sublet  for 
♦50.00  a  year,  the  parties  contemplated  no  greater  reduction  of 
the  rent  than  as  if  he  had  sold  a  piece  of  swamp  land  of  equal 
size.  It  is  rather  to  be  presumed  that  they  intended  that  the 
rent  should  be  reduced  according  to  the  relative  rental  value  of 
the  land  sold,  rather  than  its  relative  quantity,  as  the  law  would 
apportion  the  rent  if  the  landlord  had  sold  part  of  the  land  with- 
out the  tenant's  consent.  "  The  apportionment "  (in  such  a  case) 
"  where  the  parties  cannot  agree,  is  to  be  made  by  the  jury,  ac- 
cording to  the  value,  not  the  quantity  of  the  respective  parts:" 
Reed  v.  Ward,  22  Pa.  144,  citing  1  Thorn.  Coke,  366,  369 ;  2 
Inst.  503 ;  Cuthbert  v.  Kuhn,  3  Wh.  357.  The  general  prin- 
ciples upon  which  the  rent  is  apportioned  in  such  a  case  were 
very  fully  stated  in  Reed  v.  Ward,  supra,  and  were  thus  sum- 
marized in  Linton  v.  Hart,  25  Pa.  193 :  "  The  law  will  not 
apportion  rent  in  favor  of  a  wrongdoer,  and  therefore  if  the 
landlord  wi*ongEuUy  dispossesses  his  tenant  of  any  portion  of 
the  demised  premises,  the  rent  is  suspended  for  the  whole.  But 
the  owner  of  a  reversion  has  a  right  to  sell  the  whole  or  any 
part  of  it.  The  exercise  of  it  is  not  wrongful,  and  therefore,  in 
the  case  of  a  sale  of  a  part  of  the  reversion,  the  law  will  appor- 
tion the  rent ;  and  the  right  of  apportionment  attaches  the  mo- 
ment the  sale  is  made."  So  it  has  been  held  that  an  eviction  of 
a  tenant,  under  a  title  paramount  to  that  of  his  landlord,  from  a 
portion  of  the  demised  premises  when  the  tenant  continues  in 
possession  of  the  remaining  part,  using  and  enjoying  it,  does 
not  work  a  suspension  of  all  subsequent  rent.  "  He  remains 
liable  to  the  payment  of  such  proportion  of  the  rent  as  the  value 
of  the  part  retained  bears  to  the  whole : "  Seabrook  v.  Meyer, 
88  Pa.  417.  See  also  Van  Rensselaer  v.  Gallup,  5  Den.  454 ; 
Van  Rensselaer  v.  Bradley,  3  Den.  135.  The  general  principle 
upon  which  rent  is  apportioned  according  to  the  relative  value  of 
the  part  sold  has  been  applied  in  many  analogous  cases,  notably 
in  our  own  case  of  Martin's  Appeal,  2  Pa.  Superior  Ct.  67,  and 
in  Lee  v.  Dean,  3  Wh.  316 ;  Beaupland  v.  McKeen,  28  Pa.  124  ; 
Carpenter  v.  Koons,  20  Pa.  222,  cited  in  the  opinion  of  our 
Brother  Smith.  There  is  nothing  in  the  agreement  or  in  the 
acts  of  the  parties  to  indicate  that  they  intended  that  the  acre- 
age rule  should  be  applied.  Therefore,  the  jury  sliould  have 
been  instructed,  that,  in  the  absence  of  an  agreement  between. 


Digitized  by  VjOOQ IC 


480  DOYLE  v.  LONGSTREXp. 

Opinion  of  the  Court.  [6  Pa.  Superior  Ct. 

the  parties  as  to  the  precise  amount  of  the  redaction  to  be  made 
after  each  sale,  the  tenants  would  remain  liable  to  the  payment 
of  such  proportion  of  the  whole  rent  as  the  rental  value  of  the 
parts  unsold  bore  to  the  whole. 

This  being  the  rule  applicable  under  a  proper  construction  of 
the  lease,  the  amount  of  the  reductions  to  be  made  as  sales  were 
made  from  time  to  time  was  a  matter  peculiarly  subject  to  the 
agreement  of  the  parties.  The  evidence  is,  that  William  M.  Long- 
streth,  the  plaintiffs  cotenant  and  partner,  settled  and  paid  the 
rent  for  the  years  1888, 1889  and  1890  upon  the  basis  of  an 
annual  reduction  of  $50.00  on  account  of  land  sold.  In  so  do- 
ing he  acted  within  the  apparent  scope  of  his  authority,  and  in 
the  absence  of  proof  of  fraud  or  collusion  the  plaintiff  should 
not  be  permitted  to  allege,  as  against  the  landlord,  that  the 
abatement  claimed  and  sdlowed  was  too  small,  and  therefore, 
that  overpayments  were  made  which  should  be  applied  upon  the 
rent  for  the  years  of  his  sole  tenancy.  This  is  upon  the  assump- 
tion that  the  payments  made  by  William  M.  Longstreth  out  of 
their  joint  funds  were  not  made  on  account  of  rent  generally 
but  in  extinguishment  of  the  rent  for  particular  years,  pursuant 
to  an  agreement  between  him,  acting  for  himself  and  his  part- 
ner and  cotenant  and  their  landlord,  as  to  the  amount  to  be 
abated  for  those  years  on  account  of  land  sold. 

Upon  a  still  narrower  view  of  the  authority  of  William  M. 
Longstreth  to  settle  and  adjust  the  amount  of  the  rent  for  the 
years  covered  by  his  payments  the  plaintiff  was  concluded.  Wil- 
liam M.  Longstreth  testified  that  the  plaintiff  knew  of  the  abate- 
ment and  of  the  amount  he  was  paying,  and  expressed  no  dissat- 
isfaction. We  have  carefully  examined  the  plaintiff's  testimony 
to  ascertain  whether  he  denied  this  statement,  and  cannot  find 
that  he  did.  It  was  error,  therefore,  to  submit  the  question  of 
his  knowledge  and  assent  to  the  jury.  It  was  not  a  disputed 
fact.  Whether  or  not,  under  any  circumstances  not  amounting 
to  fraud,  he  could  go  behind  a  settlement  and  adjustment,  made 
by  his  cotenant  and  partner,  of  the  rent  for  the  years  of  their 
cotenancy,  it  is  very  plain  that  he  could  not  do  so  when  the 
amount  was  adjusted  and  paid  with  his  knowledge  and  implied 
assent.  Under  the  facts,  as  the  evidence  presents  them,  that 
was  an  end  of  the  matter,  as  far  as  the  rent  accruing  prior  to 
March  1, 1891,  was  concerned,  and  neither  landlord  nor  tenant 


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DOYLE  V.  LONGSTRETH.  481 

1898.]  Opinion  of  tlie  Couit. 

could  reopen  it  upon  the  ground  that  the  abatement  allowed 
wa8  too  laige  or  too  small.  See  Jones's  Est.,  169  Pa.  392 ;  Heff- 
ner  v.  Sharp,  3  Pa.  Superior  Ct.  249.  But  as  to  the  rent  for 
which  the  plaintiff's  goods  were  distrained  (March  1,  1891,  to 
March  1, 1895,)  we  find  nothing  in  the  evidence  to  prevent  him 
from  demanding  an  abatement  of  the  stipulated  rent  to  be  esti- 
mated in  accordance  with  the  rule  above  stated.  If  there  was 
an  adjustment  of  the  rent  for  the  preceding  years  upon  terms 
which  were  satisfactory  to  the  parties,  it  cannot  now  be  claimed 
that  there  was  an  overpayment.  The  case  of  Weber  v.  Rorer, 
151  Pa.  487,  has  no  application  to  such  a  state  of  facts. 

Enough  has  been  said,  without  discussing  the  assignments  of 
error  separately,  to  show  that  the  case  was  tried  upon  a  wrong 
tlieory,  both  as  to  the  construction  of  the  lease  and  as  to  the 
plaintiff's  right  to  claim  that  overpayments  were  made  in  the 
years  prior  to  1891  which  he  could  defalk  from  the  rent  accru- 
ing subsequentJy  thereto. 

The  judgment  is  reversed  and  a  venire  facias  de  novo  awarded. 


Edwin  Griffin,  Appellant,  v.  Bernard  Davis. 

Execution  must  follow  judgment  and  be  warranted  by  the  record. 

A  writ  in  execution  must  follow  the  judgment  and  be  warranted  by  it. 

Practioe,  G.  P. — Proceedings  under  act  of  1810— fiecord  of  justice. 
Where  the  transcript  from  the  justice  discloses  only  an  action  in  assump- 
sit and  judgment  thereon,  such  record  does  not  disclose  such  a  proceeding 
and  judgment  under  the  Act  of  March  20,  1810,  6  Sm.  L.  161,  as  will  sus- 
tain a  writ  of  ca.  sa. ;  the  record  if  not  perfect  most  at  least  purport  to  bo 
a  proceeding  to  enforce  a  liability  in  the  mode  there  prescribed. 

Argued  Jan.  13,  1898.  Appeal,  No.  2,  Jan.  T.,  1898,  by 
plaintiff,  from  order  of  C.  P.  Lackawanna  Co.,  Sept.  T.,  1896, 
No.  901,  quashing  writ  of  ca.  sa.  Before  Rice,  P.  J.,  Wick- 
ham,  Beaver,  Oblady,  Smith  and  Porteb,  J  J.    AflSrmed. 

Rule  to  quash  writ  of  ca.  sa.     Before  Gunsteb,  J. 
The  transcript  disclosed:   ^^ Summons  in  assumpsit  issued. 
September  20, 1895.    Returned  September  24, 1895.    Served 
Vol.  VI— 81 


Digitized  by  VjOOQ IC 


482  GRIFFIN  v.  DAVIS. 

Statement  of  Facts — Opinion  of  Court  below.  [6  Pa.  Superior  Ct. 

on  defendant  by  producing  to  him  the  original  summons  and 
informing  him  of  the  contents  thereof.  October  3, 1895,  plain- 
tiff appeared  and  the  defendant  did  not  appear.  Plaintiff  swoni 
and  testified  that  alderman  Horan  gave  the  execution  to  the 
defendant,  B.  Davis,  constable,  and  that  he  refused  to  serve  it 
and  gave  it  to  him  (the  plaintiff)  and  he  then  gave  it  to  con- 
stable Cole  at  the  request  of  the  defendant.  W.  N.  Cole  sworn 
(and  testified  to  the  same,  as  the  plaintiff  did.  At  3 :  15  o'clock 
judgment  was  publicly  given  in  favor  of  the  plaintiff  and  against 
the  defendant,  for  the  sum  of  $10.00,  together  with  interest 
'from  June  15, 1894,  and  cost  of  suit. 

"  This  action  is  brought  for  the  alleged  neglect  of  the  defend- 
ant in  the  discharge  of  his  duties  as  a  public  officer,  in  the  case 
of  Edward  Griffin  v.  P.  Dempsey. 

**  Now,  April  9, 1896,  execution  issued  in  the  above  case  and 
given  to  constable  W.  N.  Cole,  of  the  Third  ward,  Scranton. 

"  And  now,  May  16, 1896,  constable  Cole  returns  above  exe- 
cution nulla  bona. 

"  Now,  July  8, 1896,  an  alias  execution  issued  and  given  to 
any  constable  of  Lackawanna  county.  Pa. 

"  Now,  July  31,  1896,  above  alias  execution  returned  *  not 
served.' " 

The  above  transcript  filed  in  C.  P.  Lackawanna  county,  as 
No.  901,  September  term,  1896,  whereupon  plaintiff  issued  a 
writ  of  capias  ad  satisfaciendum,  August  12,  1896. 

September  14,  1896,  a  rule  was  entered  on  application  of 
defendant  to  show  cause  why  the  writ  of  capias  ad  satisfacien- 
dum should  not  be  quashed.  Returnable  sec.  reg.  proceedings 
on  said  capias  stayed  meantime,  with  leave  to  sheriff  to  proceed 
on  the  wiit  of  fi.  fa. 

On  November  9,  1896,  the  court  below  made  absolute  the 
rule  to  show  cause  why  the  ca.  sa.  should  not  be  quashed  in 
the  following  opinion  by  Gunster,  J. 

From  the  very  nature  of  the  case  the  summons  contemplated 
by  this  act  is  not  like  the  ordinary  summons  in  actions  of 
assumpsit  or  trespass,  but  is  in  the  nature  of  a  scire  facias,  a 
summons  not  to  answer  to  a  certain  plea,  but  a  summons  to 
show  cause.  It  is  so  considered  in  our  books  on  practice :  1 
McKinney's  Justice  (4th  ed.),  759 ;  Binns's  Justice  (8th  ed.), 


Digitized  by  VjOOQ IC 


GRIFFIN  V,  DAVIS.  483 

1898.]  Opinion  of  Court  below — Opinion  of  the  Court. 

266.  The  summons  in  the  present  case  was  not  a  summons  to 
show  cause,  but  a  summons  in  assumpsit,  and  whatever  may  have 
been  the  intention  of  the  plaintiff  and  the  alderman,  the  record 
does  not  disclose  a  proceeding  and  judgment  under  the  act  of 
1810.  It  does  not  even  show  that  the  action  was  for  the  amount 
of  an  execution  placed  in  the  defendant's  hands  as  constable, 
and  much  less  does  it  show  a  judgment  in  a  proceeding  against 
him,  commanding  him  to  show  cause  why  an  execution  should 
not  issue  against  him  for  the  amount  of  another  execution  pre- 
viously delivered  to  him.    The  rule  is  made  absolute. 

Error  assigned  among  others  was  making  absolute  the  rule 
to  show  cause  why  the  ca.  sa.  should  not  be  quashed. 

James  Mahon^  for  appellant. 

A.  A.  Voshurg  of  Vosburg  ^  Dawson^  for  appellee. 

Per  Cubiam,  February  19, 1898: 

When  the  rule  to  quash  the  ca.  sa.  came  up  for  disposition 
all  that  the  court  had  before  it  from  which  to  determine  the 
nature  of  the  judgment  was  the  transcript  from  the  docket  of 
the  justice  of  the  peace.  This  showed  a  judgment  in  an  ac- 
tion apparently  begun  by  a  summons  in  assumpsit,  and  failed 
to  show  with  any  degree  of  certainty  that  the  proceeding  was 
intended  to  enforce  a  statutory  liability  in  the  mode  prescribed 
in  the  12th  section  of  the  act  of  1810.  This  being  the  condi- 
tion of  the  record,  the  court  properly  held  that  there  was  no 
warrant  of  law  for  issuing  a  ca.  sa.  upon  the  judgment  and 
quashed  the  writ.  All  that  need  be  said  in  vindication  of 
that  ruling  is  contained  in  the  opinion  rendered  by  the  learned 
judge  of  the  court  below. 

Nor  was  the  case  brought  within  the  provisions  of  the  Act  of 
March  29,  1824,  P.  L.  171,  by  proof  subsequently  furnished 
by  affidavit  or  depositions  that  the  writ  actually  issued  by  the 
justice  was  not  a  summons  in  assumpsit,  as  the  record  seemed 
to  show,  but  a  summons  in  the  nature  of  a  scire  facias  in  the 
form  prescribed  by  the  act  of  1810.  To  entitle  the  plaintiff  to 
a  ca.  sa.  under  the  provisions  of  the  act  of  1824  he  must  show  a 
record  in  substantial  conformity  to  the  provisions  of  the  12th  secr 


Digitized  by  VjOOQ  IC 


48 1  GRIFFIN  v.  DAVIS. 

Opinion  of  the  Couit.  [6  Pa.  Superior  Ct. 

tion  of  the  act  of  1810,  otherwise  he  must  be  content  with  the 
ordinary  process  to  enforce  the  judgment.  We  do  not  say  he 
must  show  a  perfect  record — one  that  could  not  be  successfully 
assailed  on  certiorari — but  it  must  at  least  purport  to  be  a  pro- 
ceeding to  enforce  a  liability  in  the  mode  there  prescribed.  The 
defendant  is  entitled  to  have  the  question  of  the  plaintiff's  right 
to  issue  a  ca.  sa.  determined  by  the  record  as  it  was  made  up  by 
the  justice,  for  possibly  he  might  have  seen  fit  to  appeal  if  it  had 
been  made  up  differently.  But  we  need  not  seek  for  reasons  to 
support  the  wellnsettled  general  rule  that  the  execution  must  fol- 
low the  judgment  and  be  warranted  by  it.  The  writ  issued  by 
the  justice  was  no  part  of  the  record  of  the  common  pleas.  The 
question  was  to  be  determined  by  an  inspection  of  the  tran- 
script, which  could  not  be  supplemented  or  changed,  for  the 
purposes  of  this  motion,  by  parol  evidence  of  the  proceedings 
before  the  justice,  any  more  than  it  can  be  for  the  purpose  of 
depriving  a  party  of  an  appeal.  See  Dawson  v.  Condy,  7  S.  & 
R.  866 ;  D.  &  H.  Co.  v.  Loftus,  71  Pa.  418 ;  Foss  v.  Bogan,  92 
Pa.  296  ;  Driesbach  v.  Morris,  94  Pa.  23. 

All  the  assignments  are  overruled. 

Order  affirmed  and  appeal  dismissed  at  the  cost  of  tlie  ap- 
pellant. 


Estate  of  Henry  Worthington,  deceased.      Appeal  of 
Charity  P.  Worthington. 

Practice,  0.  C.—Equity— Pleading— -Effect  of  repUcaiion— Hearing  <m 
bill,  answer  and  replication. 

Proceedings  in  the  orphans^  court  must  have  the  substance  of  equitable 
form  if  not  its  technical  nicety.  The  proper  mode  of  proceedings  is  by 
petition,  answer  and  replication,  in  which  the  substantial  requisites  mak- 
ing out  a  case  should  appear.  A  replication  in  equity  is  the  plaintiifs 
answer  or  reply  to  defendants  plea  or  answer.  If  it  be  a  general  denial 
of  the  truth  thereof,  matter  alleged  in  the  answer  must  be  proved.  If  it 
confines  the  denial  to  averring  that  the  answer  was  untrue  in  certain  par- 
ticulars, but  omits  to  deny  or  demand  proof  of  material  facts  set  out  in  the 
answer,  an  agi'eement  that  the  case  be  disposed  of  on  petition,  answer  and 
replication  warrants  the  court  in  treating  relevant  facts  averred  in  the  an- 
swer and  not  denied  in  the  replication  as  admitted. 


Digitized  by  VjOOQ IC 


WORTHINGTON'S  ESTATE  AND  APPEAL.         485 

1898.]  Statement  of  Facts. 

Argued  Jan.  12,  1898.  Appeal,  No.  37,  Jan.  T.,  1898,  by 
Charity  P.  Worthington,  irom  decree  of  O.  C.  Luzerne  Co., 
No.  177,  of  1880,  dismissing  petition  praying  for  an  account- 
ing in  the  estate  of  Henry  Worthington,  deceased.  Before 
Rice,  P.  J.,  Wickham,  Beaver,  Orlady,  Smith  and  Por- 
ter,  J  J.    Affirmed. 

Petition  for  accounting  by  administratrix.  Before  D  arte,  P.  J. 

Charity  P.  Worthington  filed  a  petition  as  the  executrix  and 
devisee  of  William  Worthington,  deceased,  who  was  the  son 
and  heir  of  Henry  Worthington,  deceased,  who  died  intestate 
in  1880,  setting  out  that  Alice  Worthington,  his  widow,  as  ad- 
ministratrix, had  never  accounted,  and  praying  for  citation. 
The  administrati'ix  filed  an  answer,  admitting  administration 
and  that  she  had  never  accounted,  but  set  up  that  the  peti- 
tioner was  estopped  irom  asking  her  to  account,  alleging  an 
agreement  purporting  to  have  been  made  and  signed  in  1890, 
wherein  she  alleged  a  full  settlement  was  made  of  both  real 
estate  and  personal  propert}'-,  which  she  alleged  the  petitioner 
and  her  husband  through  whom  she  claimed,  had  executed,  and 
that  this  agreement  estopped  her  from  asking  an  accounting. 

The  petitioner  filed  a  replication  setting  out,  inter  alia,  that 
the  said  paper  was  not  executed  by  her,  and  that  at  the  time 
the  said  paper  was  alleged  to  have  been  executed  some  of  the 
parties  who  signed  the  same  were  not  of  full  age. 

The  paper  or  release  referred  to  purported  to  be  signed  by  all 
the  heirs  and  the  children  of  Henry  Worthington,  and  among 
them  by  petitioner's  husband,  William  Worthington,  and  by 
petitioner  herself,  and  purported  to  be  a  full  release  to  Alice 
Worthington,  as  administratrix  of  her  husband,  "from  all 
dividends,  shares,  claims,  or  demands  on  account  of  their  re- 
spective shares  of  the  estate,  real  or  personal,  and  from  any 
other  matter,  cause  or  thing  whatsoever  from  said  estate  or  on 
account  of  the  administration  thereof." 

The  court  below  held  that  the  pleadings  admitted  the  valid- 
ity of  the  agreement,  its  signature,  and  execution,  except  as 
denied  by  the  replication ;  that  the  signature  of  William  Wor. 
thington,  through  which  petitioner  claimed,  was  not  denied, 
and  that  therefore  petitioner  had  no  standing  to  call  for  an  ac- 
counting.   Petitioner  appealed. 


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i86  WORTHINGTON*S  ESTATE  AND  APPEAL. 

Assignment  of  Errors — Opinion  of  the  Court.     [6  Pa.  Superloi  Ct. 

Ei-rors  aligned  among  others  were  (1)  in  holding  that  Wil- 
liam Worthington,  deceased,  executed  and  delivered  a  paper  to 
the  administratrix  which  released  her  from  accounting,  that  was 
not  produced  nor  offered  in  evidence ;  (2)  in  not  holding  that 
the  replication  filed  was  sufficient  to  put  the  answer  in  issue, 
and  in  the  ahsence  of  a  rejoinder  or  testimony  to  decree  an  ac- 
counting by  Alice  Worthington,  the  administratrix ;  (3)  in  not 
finding  that  the  only  one  intei-ested  in  having  an  accounting  was 
Charity  P.  Worthington,  the  widow  and  sole  devisee  of  William 
Worthington,  deceased,  who  had  filed  the  replication,  that  the 
interests  of  all  the  othei«  who  are  alleged  to  have  signed  the 
agreement  in  the  personal  and  real  estate  of  Henry  Wortliing- 
ton,  deceased,  had  been  conveyed  to  William  Worthington,  de- 
ceased, the  son  and  heir  of  said  decedent. 

Michael  Cannon^  for  appellant. 

Oeo,  jr.  Powell^  with  him  D.  L,  Rhone^  for  appellee. 

Per  Cubiam,  February  19,  1898: 

The  orphans'  court  is  a  coui-t  of  equity  within  the  limited 
sphere  of  its  operations,  and  the  proceedings  should  have  the 
substance  of  equitable  form,  though  not  its  technical  nicety. 
The  proper  mode  of  proceeding  in  that  court  is  by  petition, 
answer,  replication,  etc.,  in  which  the  substantial  requisites  mak- 
ing the  case  should  appear:  Steffy's  Appeal,  76  Pa.  94.  A 
replication  in  equity  is  the  plaintiff's  answer  or  reply  to  the 
defendant's  plea  or  answer.  If  it  be  a  general  denial  of  the 
truth  of  the  plea  or  answer,  and  an  assertion  of  the  truth  and 
sufficiency  of  the  bill,  matter  alleged  in  the  answer  in  avoid- 
ance of  the  relief  prayed  for  by  the  bill  must  be  proved  on  the 
hearing.  It  is  contended  by  the  appellant  that  this  general 
rule  of  pleading  was  applicable  to  the  present  proceeding ; 
therefore  the  respondent  should  have  been  compelled  to  prove 
the  execution  of  the  paper  set  forth  in  her  answer.  In  support 
of  this  contention  her  counsel  cites  Hengst's  Appeal,  24  Pa. 
413,  which  would,  indeed,  sustain  her  position  if  she  had  filed 
a  general  replication.  But  this  she  did  not  do,  probably  ber 
cause  she  was  required  by  the  rules  of  the  court  below  to  swear 
to  it.     Be  that  as  it  may,  she  contented  herself  with  averring 


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WORTHINGTON'S  ESTATP:  AND  APPEAL.  487 

1898.]  Opinion  of  the  Court. 

that  the  answer  was  untrue  in  certain  particulars,  not  material  in 
the  proceeding,  but  omitted  to  deny  or  to  demand  proof  of  the 
execution  of  the  release  by  William  Worthington  through  whom 
she  claims.  This  being  the  state  of  the  pleadings,  an  agreement 
that  the  case  should  be  disposed  of  on  petition,  answer  and 
replication  warmnted  the  court  in  treating  the  relevant  facts 
averred  in  the  answer,  and  not  denied  in  the  replication,  as 
admitted.     See  Russell's  Appeal,  3-t  Pa.  258. 

The  case  turned  then  upon  the  construction  of  the  paper. 
The  court  below  correctly  construed  it  to  mean  that  the  parties 
executing  it  intended  to  release  the  respondent  and  her  sureties 
from  all  liability  to  them  for,  or  on  account  of,  her  administra- 
tion of  the  estate  of  her  husband. 

The  question  of  her  rights  in  the  partition  proceeding  referred 
to  in  the  replication  is  not  before  us ;  nor  was  it  before  the  or- 
phans' court.  It  is  sufficient  for  present  purposes  to  say  that 
the  institution  of  that  suit  did  not  estop  the  respondent  from 
pleading  the  release  in  answer  to  the  citation  to  account  for  her 
administration  of  the  personal  estate. 

The  decree  is  affirmed  and  the  appellant  directed  to  pay  the 
costs. 


Claster  Bros.  Appellants,  v.  E.  Katz. 

Sale— Fraud— JRule  of  Smith  v.  Smith  to  be  strictly  construed. 

The  intention  of  the  buyer  of  goods  at  the  time  of  purchasing  them,  not 
to  pay,  together  with  his  insolvency  at  the  time  and  his  knowledge  of  it 
not  communicated  to  tlie  seller,  will  not  avoid  the  sale  after  the  delivery 
of  the  property  sold.  This  is  the  ru\p  of  Smith  v.  Smith,  21  Pa.  367,  re- 
cently recognized  and  followed  as  authority  in  Pennsylvania,  but  it  is  a 
rule  which  is  declared  to  be  not  in  harmony  with  that  of  a  majority  of 
other  states,  nor  with  sound  policy  or  the  principles  of  business  honesty, 
and  the  courts  will  construe  it  strictly  and  will  not  go  a  step  beyond  it. 
Any  additional  circumstance  which  reasonably  involves  a  false  representa- 
tion will  be  held  sufficient  to  take  the  case  out  of  the  rule. 

Where,  in  addition  to  insolvency  known  to  the  buyer  and  undisclosed 
to  the  seller,  the  buyer,  before  the  delivery  of  the  goods  confesses  a  judg- 
ment enforceable  at  once,  knowing  that  the  effect  of  its  enfoi'cement  will 
be  to  disable  him  from  continuing  his  business,  and  it  is  so  used,  thoM 


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488  CLASTER  BROS.  v.  KATZ. 

Syllabus — Assignment  of  Errors.      [6  Pa.  Saperior  Ct. 

additional  circumstances  are  sufficient  to  take  the  case  out  of  the  strict 
rule  of  Smith  v.  Smith. 

Argued  Nov.  10, 1897.  Appeal,  No.  135,  Oct.  T.,  1897,  by 
plaintiffs,  from  judgment  of  C.  P.  Lancaster  Co.,  Nov.  T.,  1896, 
Nos.  35  and  36,  on  verdict  for  defendant.  Before  Rice,  P.  J., 
WiCKHAM,  Beaver,  Reeder,  Orlady,  Smith  and  Porter,  J  J. 
Reversed. 

Sheriff's  interpleader.     Before  Brdtjaker,  J. 
The  value  of  the  goods  in  controversy  appears  to  have  been 
somewhere  between  $82.00  and  $152.27. 

The  facts  sufficiently  appear  in  the  opinion  of  the  court. 
Verdict  for  defendant.     Plaintiffs  appealed. 

Errors  assigned  were,  (1)  In  charging  the  jury  as  follows : 
"  The  law  in  this  state  has  been  well  settled  since  the  opinion 
of  Judge  Mitchell,  which  has  been  quoted  here,  who  had 
given  an  opinion  in  a  case  in  the  Supreme  Court  of  this  state. 
The  law  in  this  state  is  entirely  different  from  the  laws  in  most 
of  the  states  of  the  Union.  In  New  York  and  New  Jersey, 
and  especially  where  they  have  codes,  the  law  is,  that  fraudu- 
lent insolvency  in  itself  is  sufficient  to  rescind  the  contract ; 
but  the  state  of  Pennsylvania,  by  an  old  decision  rendered  very 
many  years  ago,  held  that  there  must  be  more  than  fraudulent 
insolvency ;  tiiat  it  must  be  shown  that  the  goods  were  procured 
by  a  trick,  artifice  or  deception,  or  conduct  which  reasonably 
involves  a  false  representation  to  accomplish  the  purpose." 
(2)  In  its  answer  to  plaintiff's  first  point,  which  point  and  an- 
swer are  as  follows :  "  1.  If  a  purchaser  about  the  time  of  the 
delivery  of  the  goods  confesses  judgment,  and  disables  himself 
from  continuing  business,  he  commits  an  act  of  legal  if  not 
actual  fraud,  and  acquires  no  title  to  the  goods.  Answer :  That 
point  we  have  to  affirm  as  a  general  proposition ;  but  before 
you  can  render  a  verdict  for  the  plaintiffs  they  must  show,  as  I 
have  said  before,  that  Blankfield  practiced  artifice  or  deception, 
or  conduct  between  them  which  reasonably  involves  a  false 
representation,  to  accomplish  the  purpose  before  he  got  the 
goods.  Unless  the  plaintiffs'  story  is  a  true  one,  your  verdict 
must  be  for  the  defendant,  if  you  believe  Blankfield.  If  you 
believe  the  plaintiffs,  then  your  verdict  should  be  in  favor  of  the 


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CLASTER  BROS.  v.  KAT2.  489 

1898.]  Assignment  of  Errors — Arguments. 

plaintiffs."  (8)  In  its  answer  to  plaintiff's  second  point,  which 
point  and  answer  are  as  follows :  "  2.  If  the  jury  believe  that  after 
the  purchase  of  the  goods  in  controversy  from  Claster  Bros.,  and 
before  their  shipment,  Blankfield  confessed  a  judgment  to  E. 
Katz,  it  was  such  a  change  in  the  circumstances  as  the  vendor  was 
entitled  to  know,  and  was  a  most  material  fact  in  the  transaction. 
Having  concealed  from  Claster  Bros,  the  knowledge  that  such  a 
judgment  had  been  confessed,  no  title  passed  from  Claster  Bros, 
to  Blankfield,  which  could  be  subject  to  the  levy  of  the  execu- 
tions issued  upon  the  Katz  judgments.  Answer :  That  point 
we  must  negative  as  it  stands.  That  is  true,  provided,  as  I 
have  said  so  frequently,  you  believe  that  a  trick,  artifice  or 
fraud,  or  conduct  between  the  parties  equivalent  to  such  fraud, 
was  practiced  on  the  day  that  the  goods  were  purchased  by 
Blankfield.  That  in  itself  would  not  be  held  sufficient,  unless 
this  artifice,  trick  or  deception  was  perpetrated  by  Blank- 
field."  (4)  In  answer  to  plaintiff's  third  point,  which  point 
and  answer  are  as  follows :  "  8.  If  the  jury  believe  that  at  the 
time  of  the  sale  of  the  goods  in  controversy  J.  Blankfield  repre- 
sented that  he  had  a  stock  of  from  '^2,000  to  $3,000,  was  not 
indebted  to  any  one,  except  a  small  balance  of  $40.00  on  a  note 
of  his  sister,  and  that  he  owed  no  borrowed  money,  and  had  no 
judgments  outstanding,  and  the  facts  thus  stated  were  untrue, 
and  on  the  faith  of  such  representations  Clasters  parted  with 
their  goods,  then  the  sale  from  Claster  Bros,  to  J.  Blankfield 
would  be  void,  and  Claster  Bros,  would  have  a  right  to  the 
property  claimed  in  this  issue,  as  the  title  to  the  same  never 
passed  out  of  them  to  Blankfield.  Answer:  That  would  be 
true,  providing  Blankfield  was  insolvent  at  the  time." 

ChdB.  L  Landis  and  B.  F,  Davisy  for  appellants. — There  was 
error  in  the  charge  of  the  court  in  that  it  stated  an  erroneous 
principle  as  having  a  direct  operation  on  the  evidence,  and  with- 
drew the  attention  of  the  jury  from  other  points :  Deal  v.  Mc- 
Cormick,  8  S.  &  R.  843 ;  Young's  Est.,  65  Pa.  101. 

The  tendency  of  the  charge  was  to  mislead  the  jury :  Bisbing 
V.  Nat.  Bank,  98  Pa.  79 ;  Penna.  Railroad  Co.  v.  Berry,  68  Pa. 
272. 

The  effect  of  the  answer  of  the  court  to  the  third  and  fourth 
points  was  instruction  to  the  jury  that  the  confession  of  the 


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490  CLASTER  BROS,  v,  KAT2. 

Arguments.  [6  Pa.  Superior  Ct 

judgment  could  not  in  any  manner  affect  the  rights  of  the  plain- 
tiff, and  therefore,  the  sale  was  good  against  him.  This  was  an 
incorrect  statement  of  the  law :  Bughman  y.  Central  Bank,  159 
Pa.  94. 

It  is  error  not  to  answer  directly  the  question  proposed  by 
counsel :  Powers  v.  McFerran,  2  S.  &  R.  44 ;  Smith  v.  Thomp- 
son, 2  S.  &  R.  49 ;  Tenbrooke  v.  Jahke,  77  Pa.  392. 

W.  V,  ffenselj  with  him  J.  Hay  Browr^  for  appellee. — The 
errors  complained  of  to  the  charge  of  the  court  and  answers  to 
points,  if  errors  they  be,  are  sufBciently  covered  and  corrected 
by  the  general  charge,  where  the  court  subsequently  said,  "You 
should  try  to  reconcile  the  evidence  if  you  can ;  but  if  you  can- 
not reconcile  it,  you  must  say  whose  testimony  you  will  believe. 
If  you  believe  the  plaintiffs  and  the  testimony  adduced  by  them 
in  their  behalf,  that  J.  Blankfield  at  the  time  he  purchased  these 
goods  made  such  representations  as  they  say  he  made,  then  we 
do  not  hesitate  to  say  to  you  in  our  instructions,  there  was  a 
trick,  artifice  or  deception  used  in  the  getting  of  these  goods. 
That  is  the  issue  raised  here." 

This  was  a  correct  statement  of  the  law  of  Pennsylvania  as 
abundantly  appears  from  the  authorities :  Bughman  v.  Bank, 
159  Pa.  94 ;  Perlman  &  Cooper  v.  Sartorius,  162  Pa.  320 ;  Coop- 
erage  Co.  v.  Gaul,  170  Pa.  545 ;  Labe  v.  Bremer,  167  Pa.  15 ; 
Lowrey  &  Co.  v.  Ulmer,  1  Pa.  Superior  Ct.  425 ;  Wessels  v. 
Weiss  Bros.,  156  Pa.  591 ;  Ralph  v.  FonDersmith,  3  Pa.  Supe- 
rior Ct.  618. 

The  appellate  court  will  not  reverse  by  reason  of  a  fragment, 
which,  wrested  from  its  context,  seems  to  present  an  erroneous 
statement  of  the  law :  Riegel  v.  Wilson,  60  Pa.  388 ;  Bartley 
V.  Williams,  66  Pa.  829. 

While  a  party  is  entitled  to  an  explicit  answer  to  his  prayer 
for  instruction,  the  court  may  so  qualify  it  as  to  conform  to  the 
evidence:  Killion  v.  Power,  51  Pa.  429. 

If  the  defendant  in  his  prayer  for  instruction  sets  up  a  broader 
right  than  he  is  entitled  to,  the  judge  should  not  deny  it  alto- 
gether, but  should  explain  to  the  jury  the  true  extent  of  the 
riglit :  Amer  v.  Longstreth,  10  Pa.  145. 

It  is  enough  if  the  points  are  sufBciently  answered  in  the 
charge :  Scheuing  v.  Yard,  88  Pa.  286. 


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CLASTER  BROS.  v.  KATZ.  491 

1898.]  Arguments — Opinion  of  the  Court. 

To  qxialify  an  affirmance  of  a  point  by  the  cautionary  state- 
ment of  an  abstract  principle  of  law  is  not  error :  Yardley  v. 
Cuthbertson,  108  Pa.  895 ;  Duncan  v.  Shennan,  121  Pa.  520. 

If  the  material  questions  of  fact  are  fairly  submitted,  as  pre- 
sented by  the  evidence,  an  expression  of  an  opinion  upon  the 
weight  of  the  plaintiff's  testimony  is  not  error:  Didier  v.  Penna. 
Co.,  146  Pa.  582. 

Opinion  by  Rice,  P.  J.,  February  19, 1898 : 

This  was  a  sherifFs  interpleader  to  try  the  title  to  certain 
goods  levied  upon  as  the  property  of  J.  Blankfield.  The  plain- 
tiffs were  in  the  wholesale  clothing  and  notion  business  in  the 
city  of  Harrisburg,  and  Blankfield  was  in  the  same  business  as 
a  retailer  in  Ephrata  in  the  county  of  Lancaster. 

On  or  about  September  18,  1896,  Blankfield  ordered  goods 
of  the  plaintiffs  to  the  amount  of  about  $300.  Later  in  the 
same  day  he  ordered  goods  of  E.  Katz,  also  doing  business  in 
Harrisbui^,  to  the  amount  of  $292.73,  and  on  September  15th, 
(pursuant  to  an  agreement  made  on  the  13th),  gave  her  a  judg- 
ment note  dated  September  14th,  and  payable  one  day  after 
date  for  $619.13.  It  is  alleged  that  this  note  was  given  for  the 
goods  ordered  on  September  13th,  and  money  that  he  owed  her. 

On  September  16th  Blankfield  telegraphed  the  plaintiffs  to 
ship  only  one  half  the  goods.  Accordingly,  on  September  16th 
or  17th,  the  plaintiff  shipped  one  half  the  goods  ordered  with- 
out any  knowledge  that,  in  the  mean  time,  Blankfield  had  given 
to  Mrs.  Katz  the  judgment  note  above  referred  to. 

On  September  23d,  Mrs.  Katz  entered  judgment  on  the  note 
and  also  on  another  note  bearing  date  May  1, 1896,  for  $300, 
the  consideration  for  which  does  not  distinctly  appear,  and  is- 
sued executions.  On  the  following  day  a  levy  was  made  on 
the  goods  in  Blankfield's  store,  including  those  ordered  from 
the  plaintiffs  that  had  not  been  disposed  of.  These  goods  (some 
of  which  were  still  in  the  original  packages)  were  claimed  by 
the  plaintiffs  and  appraised  at  $80.00.  The  remaining  goods 
were  sold  at  sheriff's  sale  for  $895. 

Blankfield  owned  no  real  estate,  and,  as  far  as  appears,  no 
other  property  except  that  in  his  store.  He  was  indebted  to 
other  parties,  but  in  what  amount  does  not  directly  appear. 

Insolvency  has  been  defined  as  the  state  of  a  person  who, 


Digitized  by  VjOOQ IC 


492  CLASTER  BROS.  v.  KATZ. 

Opinion  of  the  Court.  [6  Pa.  Superior  Ct. 

from  any  cause,  is  unable  to  pay  his  debts  in  the  ordinary  or 
usual  course  of  trade :  Levan's  Appeal,  112  Pa.  294.  But  it  is 
well  settled  in  Pennsylvania  that  tJie  insolvency  of  the  vendee 
of  goods  at  the  time  of  the  sale,  although  known  to  him  and 
not  disclosed  to  the  vendor,  is  not  alone  such  fraud  as  will  en- 
able the  latter  to  rescind  the  sale  and  reclaim  the  goods  after 
they  had  come  fully  into  the  possession  of  the  vendee.  Many 
of  the  late  cases  in  which  this  rule  has  been  recognized  and  ap- 
plied are  cited  in  the  opinion  of  our  Brother  Oblady  in  Ralph 
V.  FonDersmith,  3  Pa.  Superior  Ct.  618,  and  need  not  be  cited 
here.  In  Smith  v.  Smith,  21  Pa.  367,  it  was  held  that  the  added 
fact  that  the  vendee  intended  not  to  pay  would  not  change  the 
rule  which  was  thus  stated  in  the  syllabus :  "  The  intention  of 
the  buyer  of  goods,  at  the  time  of  purchasing  them,  not  to  pay, 
together  with  his  insolvency  at  the  time  and  his  knowledge  of 
it  not  communicated  to  the  seller,  will  not  avoid  the  sale  after 
the  delivery  of  the  property  sold." 

It  was  said  in  Bughman  v.  Central  Bank,  159  Pa.  94  that  the 
law  as  thus  declared  in  Smith  v.  Smith,  was  not  in  harmony 
with  that  of  a  majority  of  other  states,  nor  with  sound  policy 
or  the  principles  of  business  honesty,  and,  moreover,  was  a  de- 
parture from  the  previous  decision  in  Mackinley  v.  McGregor, 
3  Wh.  369.  "  But,"  said  Mr.  Justice  Mitchell,  "  it  has  been 
expressly  followed  in  several  cases,  and  has  remained  in  the 
books  without  being  overruled,  for  forty  years,  and  recognizing 
that  the  subject  is  one  on  which  legal  minds  have  always  been 
apt  to  differ,  we  do  not  think  it  wise  now,  notwithstanding  our 
own  clear  convictions  on  the  principle,  to  unsettle  the  law  by 
another  change.  We  will  therefore  stand  on  the  authority  of 
Smith  V.  Smith  and  its  kindred  cases,  but  we  will  not  go  a  step 
beyond  what  they  require.  Any  additional  circumstance  which 
tends  to  show  trick,  artifice,  false  representation,  or,  in  the  lan- 
guage of  Smith  V.  Smith  itself,  *  conduct  which  reasonably  in- 
volves a  false  representation  *  will  be  sufficient  to  take  tha  case 
out  of  the  rule  of  those  authorities." 

It  needs  no  argument  to  show  that  the  instruction  complained 
of  in  the  first  assignment  goes  very  far  beyond  what  the  rule 
declared  in  Smith  v.  Smith  required.  Conceding  that  a  seller 
must  take  the  risk  of  the  insolvency  of  the  buyer  and  of  liis 
secret  intention  not  to  pay,  must  he  also  take  the  chance,  that, 


Digitized  by  VjOOQ IC 


CLASTER  BROS.  v.  KATZ.  493 

1898.]  Opinion  of  the  Courc. 

the  buyer  has  committed,  or  between  the  sale  and  the  delivery 
of  the  goods,  will  commit,  an  act  of  fraudulent  insolvency, 
whereby  the  seller  will  be  efiEectually  prevented  from  collecting 
the  price  of  his  goods  ?  Clearly  not.  To  obtain  goods  in  that 
way  is  to  obtain  them  by  a  trick, — a  "  fraud  acted  out " — which 
only  needs  the  sanction  of  the  law  to  make  it  a  most  successful 
method  of  cheating.  From  the  very  nature  of  a  transaction  a 
fact  not  disclosed  may  be  such  that  it  is  impliedly  represented 
not  to  exist,  and  whilst  under  our  decisions  a  buyer  is  not  held 
to  an  implied  representation  of  solvency,  he  may  be  fairly  pre- 
siuned  to  represent  that  he  has  not  deliberately  set  a  trap  for  the 
unwary  seller.  We  need  not  discuss  this  assignment  further ; 
nor,  since  the  case  must  be  sent  back  for  a  retrial  upon  other 
grounds,  need  we  consider  whether  the  error  into  which  the 
learned  judge  inadvertently  fell  in  stating  the  rule,  was  ren- 
dered harmless  by  other  portions  of  the  charge. 

The  question  raised  by  the  second  and  third  assignments  of 
eiTor  relates  to  the  effect  of  acts  of  the  buyer,  between  the  pur- 
chase and  the  delivery  of  goods,  upon  the  right  of  the  seller  to 
rescind  the  sale,  after  the  goods  have  come  into  the  possession 
of  the  buyer.  The  legal  principle,  which,  in  their  first  point, 
the  plaintiffs  asked  to  have  applied  to  the  case  was  that,  if  the 
buyer  about  the  time  of  the  delivery  of  the  goods  confesses 
judgment  and  disables  himself  from  continuing  business,  he 
compiits  an  act  of  legal,  if  not  actual,  fraud,  and  acquires  no 
title  to  the  goods.  The  court  affirmed  the  point  as  an  abstract 
proposition  of  law,  but  accompanied  the  affirmance  with  instruc- 
tions to  the  effect,  that  to  entitle  the  seller  to  rescind  the  sale 
he  must  show  that  it  was  induced  by  some  trick,  artifice  or  de- 
ception practiced  by  the  buyer  on  the  day  the  contract  was 
made.  The  practical  effect  of  thus  qualifying  the  point  was  to 
nullify  it,  and  to  leave  the  impression  on  the  jurors'  minds,  that, 
unless  such  deception  was  practiced,  the  subsequent  acts  of  the 
buyer  were  immaterial.  Whereas,  if  the  principle  invoked  by 
the  plaintiffs  was  sound,  and  the  facts  of  the  case  warranted  its 
application,  the  plaintiffs  had  a  right  to  rescind  the  sale,  whether 
active  misrepresentations  were  made  by  Blankfield  on  the  day 
the  goods  were  ordered  or  not. 

The  confession  of  judgment  by  a  buyer  of  goods  between  the 
purchase  and  delivery  of  the  same  is  not,  per  se,  such  a  fraud 


Digitized  by  VjOOQ IC 


494  CLASTER  BROS.  v.  KAT2. 

Opinion  of  the  Court.  [6  Pa.  Superior  Ct. 

upon  the  seller  as  entitles  the  latter  to  rescind  the  sale.  Other 
facts  must  be  present  in  the  case  in  order  to  warrant  the  appli- 
cation of  the  principle  contended  for ;  and  if  the  evidence  con- 
cerning them  is  conflicting,  or  leaves  them  as  subjects  of  infer- 
ence purely,  the  question  must  be  submitted  to  the  jury  under 
proper  instructions.  Hence,  we  are  unable  to  say,  that  the 
plaintiffs  were  entitled  to  an  unqualified  affirmance  of  their 
second  point.  The  defendant's  assets  and  liabilities  at  the  time 
of  the  confession  might  have  to  be  considered. 

But  where,  in  addition  to  insolvency  known  to  the  buyer  and 
undisclosed  to  the  seller,  the  buyer,  before  the  delivery  of  the 
goods,  confesses  a  judgment  which  is  enforceable  at  once,  and 
he  knows  that  the  effect  of  its  enforcement  will  be  to  disable 
him  from  continuing  his  business  and  to  bring  it  to  an  end,  and 
it  is  so  used,  these  additional  circumstances  are  sufficient,  in 
our  opinion,  to  take  the  case  out  of  the  strict  rule  of  Smith  v. 
Smith,  and  kindred  cases.  The  decision  in  Bughman  v.  Cen- 
tral Bank,  159  Pa.  94,  is  directly  in  point.  It  appeared  there 
that  Fawcett  and  Sons  sent  two  barges  to  the  plaintifPs  works 
to  be  loaded  with  coal  in  accordance  with  their  previous  course 
of  dealing  on  credit  by  notes  running  for  four  months.  On  the 
same  day  Fawcett  and  Sons  confessed  judgment  to  the  defend- 
ant, and  on  November  21,  executed  and  delivered  to  the  defend- 
ant a  bill  of  sale  covering  practically  all  their  coal  boats,  and 
including  the  two  barges  with  the  coal  contained  therein  pur- 
chased from  the  plaintiff.  The  evidence  tended  to  show  that 
the  bill  of  sale  was  signed  and  delivered  in  the  forenoon  of  the 
21st,  at  which  time  only  one  of  the  barges  was  loaded,  and  that 
the  other  was  not  loaded  until  the  afternoon  of  that  day.  The 
question  was  as  to  the  right  of  the  plaintiff  to  rescind  the  sale. 
It  was  contended  there,  as  it  is  here,  that,  in  the  absence  of  ac- 
tive misrepresentations,  the  rule  laid  down  in  Smith  v.  Smith, 
applied,  but  the  Supreme  Court  emphasized  their  declaration 
that  they  would  not  go  a  step  beyond  what  that  case  requires, 
in  the  following  ruling :  "  In  the  present  case,  Fawcett  &  Sons 
at  about  the  time  if  not  before  the  delivery  of  the  coal  not  only 
committed  an  act  of  insolvency  by  the  confession  of  judgment 
and  bill  of  sale  to  the  bank,  but  in  fact  disabled  themselves 
from  continuing  their  business,  and  practically  brought  it  to  an 
end.     This  was  a  most  material  fact  in  the  transaction.    It 


Digitized  by  VjOOQ IC 


CLASTER  BROS,  v,  KAT2.  496 

1898.]  Opinion  of  the  Court. 

was  such  a  change  in  circumstances  as  the  vendor  was  entitled 
to  know,  and  it  does  not  admit  of  doubt  that  if  he  had  knoAvn 
it,  he  would  not  have  delivered  the  coal.  In  the  New  York 
cases  this  fact  makes  the  purchase  a  fraud  in  law,  and  is  con- 
clusive :  Mitchell  v.  Worden,  20  Barb.  253.  This  we  think  is 
the  sound  and  true  rule.  It  is  in  accord  with  what  we  know 
would  be  the  practical  result  in  business  life,  and  it  follows  the 
close  analogy  of  a  concealed  defect  in  an  article  sold,  which  en- 
titles the  purchaser  to  rescind  the  sale.  We  hold  therefore  that 
as  between  the  appellant  and  Fawcett  &  Sons  the  transaction 
was  a  legal,  if  not  an  actual  fraud,  and  passed  no  title  to  the 
coal." 

We  do  not  hold  that  it  was  the  duty  of  the  court  to  declare 
that  the  facts  of  the  present  case  required  the  application  of 
this  legal  principle,  but  we  are  clearly  of  opinion  that  there 
was  ample  evidence  to  warrant  the  jury  in  finding  the  facts  to 
which  it  would  be  applicable.  Hence,  while  the  plaintiffs  first 
point  required  explanation,  and  the  second  qualification,  the 
principle  involved  arose  fairly  out  of  the  evidence,  and  was  not 
subject  to  the  qualification  which  was  put  upon  it  in  the  an- 
swers. 

If  the  facts  were  as  stated  in  the  plaintiffs  third  point,  then 
a  gross  fraud  was  practiced  to  induce  the  plaintiffs  to  part  with 
their  goods,  and  they  had  a  right  to  rescind  the  sale  and  to  re- 
cover in  the  issue  being  tried,  without  being  compelled,  in  addi- 
tion, to  prove  that  the  purchaser  was  insolvent.  The  point 
was  in  exact  accord  with  instructions,  given  in  the  general 
charge,  and  should  have  been  distinctly  and  unequivocally  af- 
firmed. The  qualification,  "  provided  Blankfield  was  insolvent 
at  the  time "  was  inappropriate  in  answer  to  that  point,  and 
tended  to  mislead. 

The  judgment  is  reversed  and  a  venire  facias  de  novo  awarded. 


Digitized  by  VjOOQ IC 


496  TAYLOR  v.  PAUL. 

Syllabus— Statement  of  Facts.     [6  Pa.  Superior  Ct. 


A.  T.  Taylor,  Appellant,  v.  Mrs.  Jean  McLain  Paul,  G. 
W.  Swan  and  D.  W.  Simpson. 

Sale — Assignment  for  creditors — Parol  evidence. 

An  assignment  of  property  by  an  insolvent  debtor,  although  absolute 
on  its  face,  may  be  shown  by  parol  evidence  to  have  been  intended  to  cre- 
ate a  trust  for  creditors. 

Practice,  0.  P — Charge  of  court— **  Clear  and  satisfactory  evidenced 
Where,  even  in  the  absence  of  special  request  for  instruction,  the  court 
undertakes  to  instruct  the  jury  as  to  the  measure  or  quality  of  proof  re- 
quired having  stated  the  rule  by  which  the  jury  should  be  goveraed  in 
determining  the  issue,  error  may  be  assigned  if  the  true  rule  is  not  given. 
To  instruct  the  jury  that  a  fact  must  be  established  by  the  *'  weight  of 
the  evidence"  is  not  equivalent  to  saying  that  it  must  be  established  '*  by 
clear  and  satisfactoiy  evidence."  The  latter  implies  a  higher  degree  of 
proof  than  the  former. 

Husband  and  loife — Wife  claiming  against  creditors — Burden  and  qual- 
ity of  proof 

The  property  of  a  husband  is  not  to  be  covered  up  or  withheld  from 
creditors  upon  equivocal  suspicions  or  doubtful  evidence  of  a  wife^s  right 
to  it.  The  family  relation  is  such,  and  the  probabilities  of  ownership  so 
great  on  part  of  the  husband,  that  a  plain  and  satisfactory  case  should  be 
made  out  before  the  wife  can  be  permitted  to  hold  property  against  honest 
creditoi*s.  The  burden  of  proof  is  upon  the  wife  claiming  under  such  cir- 
cumstances and  such  proof  must  be  clear  and  satisfactory. 

Argued  May  8, 1897.  Appeal,  No.  81,  April  T.,  1897,  by 
plaintiff,  from  judgment  of  C.  P.  Indiana  Co.,  Sept.  T.,  1893, 
No.  32,  in  favor  of  defendants.  Before  RiCB,  P.  J.,  Willaed, 
WiCKHAM,  Reedeb,  Orlady  and  Smith,  J  J.    Reversed. 

Interpleader.     Before  White,  P.  J. 

An  attachment  execution  was  issued  on  a  judgment  obtained 
by  A.  T.  Taylor  against  John  K.  Paul  with  a  clause  of  sci.  fa. 
to  G.  W.  Swan  and  D.  W.  Simpson,  partners  trading  as  Swan 
&  Simpson  and  summoned  them  as  garnishee.  The  sheriff  was 
directed  to  attach  |250  in  the  hands  of  Swan  &  Simpson.  Issue 
in  the  nature  of  an  interpleader  was  awarded  to  determine  the 
ownership  of  a  certain  chose  in  action. 

The  facts  sufficiently  appear  in  the  opinion  of  the  court. 

Verdict  and  judgment  for  defendants.     Plaintiff  appealed. 


Digitized  by  VjOOQ IC 


TAYLOR  r.  PAUL.  497 

1898.]  Assignment  of  Errors — Arguments. 

Errors  assigned  were  (1)  In  charging  the  juiy  as  follows : 
"  This  is  a  civil  case,  to  be  determined  by  the  weight  of  the 
evidence."  (2)  In  charging  the  jury  as  follows :  "  The  ques- 
tion first  to  be  determined  is,  were  these  notes  actually  assigned 
to  Mrs.  Paul  prior  to  the  service  of  the  attachment  on  her ;  or, 
in  other  words,  had  she  actually  made  an  arrangement  by  which 
she  in  good  faith  had  purchased  these  notes  from  T.  S.  McLain, 
who  was  the  assignee  of  her  husband,  John  L.  Paul."  (3)  In 
charging  the  jury  as  follows :  "  If  this  was  actually  consum- 
mated, if  she  actually  made  the  agreement  to  raise  this  money 
before  the  service  of  this  attachment  upon  Swan  &  Simpson  on 
the  9th  and  10th  of  June,  1893,  if  she  made  the  arrangement 
in  good  faith  to  raise  the  money,  and  actually  did  raise  the 
money  and  execute  it,  although  actual  payments  were  not  made 
until  after  the  attachment,  still  it  would  be  good."  (4)  In 
charging  the  jury  as  follows :  "  If  it  was  not  so,  if  McLain  and 
Paul  understood  each  other  and  it  was  an  arrangement  in  fraud 
of  creditors,  and  subsequently  Mrs.  Paul  came  in  and  the  trans- 
action between  her  and  McLain  was  in  good  faith,  that  is,  in 
good  faith  upon  her  part,  she  knew  nothing  about  what  may 
have  been  a  fraud  between  Paul  and  McLain,  if  she  had  na 
notice  of  that  and  got  these  notes  for  value,  that  would  be  good; 
that  would  be  good  as  between  her  and  the  plaintiff  here." 
(6)  In  charging  the  jury  as  follows :  "  Paul  testifies  that  the 
arrangement  between  him  and  McLain  was  that  he  was  to  raise 
the  money  to  pay  the  insurance  companies  out  as  consideration 
for  the  transfer  of  these  notes,  so  that  the  transfer  of  the  agen- 
cies could  be  consummated  to  Swan  &  Simpson."  (6)  In 
charging  the  jury  as  follows :  **  But  to  make  it  valid  there  must 
have  been  an  agreement  made  by  McLain  in  good  faith  at  that 
time  that  he  would  raise  the  money  to  pay  it  off.  If  that  was 
so,  then  it  would  be  a  good  transaction."  (7)  In  charging  the 
jury  as  follows :  "  Was  this  transaction  consummated  between 
Mr.  Paul  and  Mr.  McLain  in  good  faith  on  the  5th  of  June, 
1893?  If  it  was,  then  Mr.  McLain  would  be  the  owner  of 
these  notes." 

2>.  B.  Taylor^  of  Jack  ^  Taylor^  for  appellant. — The  issue 
framed  by  the  court  was  to  try  *'  whether  in  fact  Mrs.  Paul 
holds  the  note  by  assignment,"  and  second,  ^^  if  she  does,  whether 
Vol.  VI— 82 


Digitized  by  VjOOQ IC 


498  TAYLOR  v.  PAUL. 

Arguments — Opinion  of  the  Court.  [6  Pa.  Superior  Ct. 

such  assignment  is  valid  as  against  the  plaintiff.''  Upon  the 
appeal  of  this  issue  the  court  charged  the  jury,  '*  this  is  a  civil 
case  to  be  determined  by  the  weight  of  the  evidence."  This  is 
not  the  established  rule  of  evidence.  Gamber  v.  Gamber,  18  Pa. 
363,  where  it  was  held,  "  in  the  case  of  a  purchase  after  mar- 
riage the  burden  is  upon  the  wife  to  prove  distinctly  that  she 
paid  for  it  with  funds  which  were  not  furnished  by  her  hus- 
band :  "  Wilson  v.  Silkman,  97  Pa.  509 ;  Kenney  v.  Good,  21  Pa. 
349;  Billington  v.  Sweeting,  172  Pa.  161 ;  Jack  v.  Kintz,  177 
Pa.  571. 

It  was  the  duty  of  the  court  to  instruct  the  jury  that  the  as- 
signment under  which  Mrs.  Paul  claimed  was  an  assignment 
for  the  benefit  of  creditors,  and  not  having  been  recorded  within 
thirty  days  was  void  as  against  this  plaintiff :  Wallace  v.  Wain- 
wright,  87  Pa.  263 ;  Johnson's  Appeal,  103  Pa.  373. 

John  N.  Banks  and  Frk.  Keener^  of  Watson  ^  Keener^  for 
appellees.— It  was  incumbent  on  appellant  setting  up  the  fraud 
to  establish  it,  at  least,  by  the  weight  of  the  testunony :  Morton 
V.  Weaver,  99  Pa.  47 ;  Young  v.  Edwards,  72  Pa.  257. 
,  The  appeUant,  not  having  requested  the  court  to  instruct  the 
jury  that  the  evidence  of  ownership  must  be  established  by  clear 
and  satisfactory  testimony,  cannot  now  complain  about  the 
charge  of  the  court :  Com.  v.  Goldberg,  4  Pa.  Superior  Ct.  142 ; 
Raibmd  Co.  v.  Getz,  113  Pa.  214. 

Even  if  the  question  had  been  properly  raised  in  the  court 
below,  the  cases  cited,  to  wit :  Wallace  v.  Wainwright,  87  Pa. 
263,  and  other  kindred  cases,  would  not  support  the  contention 
of  the  appellant,  as  there  is  nothing  on  the  face  of  the  assign- 
ment from  Paul  to  McLain  to  indicate  tliat  it  was  an  assign- 
ment for  tiie  benefit  of  creditors,  or  that  it  was  an  assignment 
in  tinist  for  any  purpose :  Bank  v.  Carter,  38  Pa.  446 ;  Uhler  v. 
Maulfair,  23  Pa.  483. 

Opinion  by  Rice,  P.  J.,  Februaiy  19, 1898 : 

On  June  5,  1893,  John  L.  Paul  sold  his  insurance  business 
and  oflice  furniture  to  Swan  and  Simpson  and  received  in  pay- 
ment their  three  judgment  notes  dated  June  1, 1893,  payable  as 
follows:  $500,  twelve  days;  *277.77  four  months ;  f 277.77,  six 
months.     Paul  immediately  assigned  these  notes  to  T.  T.  Mc 


Digitized  by  VjOOQ IC 


TAYLOR  V,  PAUL.  ^499 

1«9d.]  Opinion  of  the  Conn. 

Lean,  and  on  June  6th  and  8tb  McLean  assigned  the  two  latter 
notes  to  Mrs.  Paul,  subject  to  a  payment  of  a  small  sum  that  in 
the  mean  time  had  been  made. 

On  June  9, 1893,  A.  T.  Taylor  issued  an  attachment  execu- 
tion upon  a  judgment  against  Paul  and  summoned  Swan  and 
Simpson  as  garnishees.  They  filed  answers  to  interrogatories 
admitting  their  indebtedness  upon  the  two  smaller  notes,  less 
the  payment  made,  and  averrmg  that  they  had  been  notified  by 
Mrs.  Paul  that  she  owned  the  notes  by  assignments  made  be- 
fore the  service  of  the  attachment. 

The  record  as  printed  shows,  that  John  L.  Paul's  attorney 
applied  for  and  obtained  a  rule  on  the  plaintiff  to  show  cause 
why  the  attachment  should  not  be  dissolved,  and  that  the  plain- 
tiff filed  an  answer.  As  this  is  not  printed  we  have  no  means 
of  knowing  the  grounds  upon  which  he  attacked  the  assign- 
ments to  Mrs.  Paul.  The  next  step  in  the  proceedings,  as 
shown  by  the  record,  was  the  following  order :  "June  9, 1894, 
it  is  ordered  that  an  issue  be  framed  wherein  A.  T.  Taylor  shall 
be  plaintiff,  and  Mrs.  Jean  McLain  Paul,  G.  W.  Swan  and  D.  W. 
Simpson,  defendants ;  the  questions  to  be  tried  are  whether  in 
fact  Mrs.  Paul  holds  the  notes  in  controversy  by  assignment; 
second,  if  she  does,  whether  such  assignment  is  valid  as  against 
the  plaintiff."  The  parties  went  to  tiial  upon  this  issue,  and 
from  the  judgment  on  the  verdict  in  favor  of  the  defendants  the 
plaintiff  has  appealed  to  this  court. 

The  case,  as  tried,  was  in  fact,  although  not  in  strict  technical 
form,  an  interpleader.  The  garnishees  admitted  the  indebted- 
ness, but  being  uncertain  as  to  the  ownership  of  the  notes,  and 
standing  indifferent  between  the  claimant  and  the  attachmg 
creditor,  were  entitled  to  protection  against  a  double  recovery. 
This  might  have  been  afforded  by  proceeding  according  to  the 
practice  in  common  law  interpleader  as  described  in  Brownfield 
V.  Canon,  25  Pa.  299,  and  followed  in  D.,  L.  &  W.  R.  R.  Co- 
V.  Hill,  10  W.  N.  C.  461.  But  whether  or  not  any  process  was 
issued  to  bring  in  the  claimant  is  immaterial ;  she  voluntarily 
appeared  and  made  no  objection  to  the  form  of  the  issue,  which 
was  so  framed  as  to  raise  the  question  as  to  her  title  generally. 
If  for  any  reason  the  assignments  to  her  were  not  valid  as  against 
the  plaintiff,  he  was  entitled  to  the  fund  in  the  garnishee's  hands. 
The  bui-den  of  proof  was  upon  her,  and  she  was  bound  to  sus- 


Digitized  by  VjOOQ IC 


500  TAYLOR  v.  PAUL. 

Opinion  of  the  Court.  [6  Pa.  Superior  Ct^ 

tain  her  title  by  the  quality  and  quantity  of  proof  required  of  a 
married  woman  who  sets  up  title  to  property  derived  from  her 
husband,  as  against  his  creditors.  As  was  said  in  Earl  v.  Cham- 
pion, 65  Pa.  191,  the  language  of  the  cases  as  to  the  quality  of 
the  proof  required  is  rather  an  approximation  than  a  definition ; 
for  the  reason  that  it  is  difl&cult  to  define  accurately  that  whicii 
is  merely  a  mental  operation,  and  to  express  with  precision  the 
degree  of  conviction  forced  upon  the  mind  by  evidence.  Never- 
theless, it  has  been  uniformly  held  whenever  the  question  has 
been  raised,  that  the  wife  must  establish  her  title  by  a  higher 
degree  or  quality  of  proof  than  is  required  of  a  stranger.  '*  In 
case  of  a  purchase  after  marriage  the  burden  is  upon  her  to  prove 
distinctly  that  she  paid  for  it  with  funds  which  were  not  fur- 
nished by  her  husband.  Unless  rigid  proof  of  her  title  is  al- 
ways required,  no  one  can  calculate  the  amount  of  injustice 
which  the  act  of  1848  will  produce : "  Gamber  v.  Gamber,  18 
Pa.  363.  "  Evidence  that  she  purchased  it  amounts  to  nothing 
unless  it  be  accompanied  by  clear  and  full  proof  that  she  paid 
for  it  with  her  own  funds.  In  the  absence  of  such  proof  the 
presumption  is  a  violent  one  that  her  husband  furnished  the 
means  of  payment : "  Keeney  v.  Good,  21  Pa.  349 ;  Rhoads  v. 
Gordon,  38  Pa.  277 ;  Wilson  v.  Silkman,  97  Pa.  509 ;  Aurand 
V.  Schaffer,  43  Pa.  363.  She  must  prove  her  title  "  by  clear 
and  satisfactory  evidence :  "  Hoar  v.  Axe,  22  Pa.  381.  "  She 
must  make  it  clearly  appear  that  the  means  of  acquisition  were 
her  own,  independently  of  her  husband:"  Auble's  Admr.  v. 
Mason,  35  Pa.  261.  Mr.  Justice  Thompson,  after  a  critical  re- 
view of  some  of  the  earlier  cases,  held  that  it  was  going  too  far 
to  charge  the  jury  that  "if  you  pause  or  doubt  upon  her  evi- 
dence, your  verdict  should  be  given  for  the  plaintiff,"  but  con- 
ceded that  the  true  rule  was  "  that  the  proof  by  the  wife  must 
be  clear  and  satisfactory,  sufficient  to  repel  all  adverse  presump- 
tions : "  Tripner  v.  Abrahams,  47  Pa.  220.  "  We  have  said  in 
many  cases  that  the  evidence  must  be  clear  and  satisfactory — 
clear  and  full  proof — clear  and  unequivocal — it  must  exclude 
reasonable  suspicion  that  the  property  was  the  husband's.  These 
are  but  forms  of  expression  to  denote  that  the  property  of  a 
husband  is  not  to  be  covered  up  or  withheld  from  creditors  upon 
equivocal,  suspicious  or  doubtful  evidence  of  a  wife's  right  to 
it.    The  family  relation  is  such,  and  the  probabilities  of  owner- 


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TAYLOR  V.  PAUL.  501 

1898.]  Opinion  of  the  Court. 

ship  ^o  great  on  part  of  the  husband,  that  a  plain  and  satisfactory 
case  should  be  made  out  before  the  wife  can  be  permitted  to 
hold  property  against  honest  creditors:"  Earl  v.  Champion, 
65  Pa.  191.  "  The  proof  for  this  purpose  "  (to  show  the  wife's 
title  as  against  her  husband's  creditors)  ^'  must  be  clear  and  sat- 
isfactory : "  Duncan  v.  Sherman,  121  Pa.  520.  "  A  man  who 
is  solvent  may  make  a  valid  gift  to  his  wife :  Appeal  of  Hart, 
Lee  &  Co.,  157  Pa.  200,  but  the  fact  of  the  gift,  and  every  ele- 
ment necessary  to  sustain  the  claim  of  a  married  woman  as 
against  her  husband's  creditors,  must  be  established  by  clear  and 
satisfactory  evidence:"  Billington  v.  Sweeting,  172  Pa.  161. 
"  These  acts  (1887  and  1893)  enlarge  the  capacity  of  a  mar- 
ried woman  to  contract,  and  to  acquire  and  dispose  of  property, 
but  they  do  not  remove  the  burden  which  rests  on  her  of  prov- 
ing title  to  the  property  she  claims  against  her  husband's  cred- 
itors : "  Jack  V.  Kintz,  177  Pa.  671.  Nor,  we  may  add,  have 
they  changed  the  rule  as  to  the  measure  of  proof :  Shober  v. 
Harrison  Bros.  &  Co.,  3  Pa.  Superior  Ct.  188-192. 

But,  it  is  argued  that  the  plaintiff,  not  having  requested  the 
court  to  charge  that  the  wife  must  establish  her  title  by  clear 
und  satisfactory  proof,  cannot  now  complain.  There  would  be 
force  in  this  suggestion  if  the  court  had  not  undertaken  to 
instruct  the  jury  as  to  the  measure  or  quality  of  proof  required. 
But  having  stated  the  rule  by  which  the  jury  were  to  be  gov- 
erned in  determining  the  issue,  error  may  be  assigned  if  the 
true  rule  was  not  given.  To  instruct  the  jury  that  a  fact  must 
be  established  by  "  the  weight  of  the  evidence  "  is  not  equiva- 
lent to  saying  that  it  must  be  established  "  by  clear  and  satis- 
factory evidence.  The  latter  implies  a  higher  degree  of  proof 
than  the  former :  Coyle  v.  Commonwealth,  100  Pa.  573 ;  Com- 
monwealth V.  Gerade,  145  Pa.  289, 

Again,  it  is  urged  that  "  the  evidence  being  clear  and  satis- 
factory the  ownership  of  the  notes  would  be  determined  by  the 
weight  of  the  evidence."  But  was  the  evidence  of  the  facts 
essential  to  the  claim  of  Mrs.  Paul  clear  and  satisfactory?  Did 
she  buy  the  notes  out  and  out,  or  did  she  take  them  upon  the 
same  trusts  as  T.  S.  McLain  ?  Assuming  that  she  might  have 
acquired  a  good  title  by  the  purchase  of  them  upon  her  personal 
credit,  was  there  such  a  purchase  ?  In  other  words,  wei*e  the 
notes  transferred  to  her  in  consideration  of  a  distinct  and  bind- 


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502  TAYLOR  v.  PAUL. 

Opinion  of  the  Court.  [6  Pa.  Superior  Ct. 

ing  promise  on  her  part  made  at  the  time  of  the  assignments 
(or  at  least  prior  to  the  attachment),  to  pay  her  husband's 
indebtedness  to  the  insurance  companies  ?  Is  her  own  version 
of  the  transaction  so  clear  upon  this  point  as  to  admit  of  but 
oniB  construction?  The  bare  suggestion  of  these  and  other 
questions  that  fairly  arose  out  of  the  evidence  adduced  by  the 
defendants  themselves  shows  the  importance  of  having  the  jury 
distinctly  and  unequivocally  instructed,  that  the  facts  essential 
to  her  claim  of  title  must  be  established  by  clear  and  satisfac- 
tory evidence.  After  a  very  careful  examination  of  the  evi- 
dence, we  feel  warranted  in  saying  that  this  is  not  a  case  where 
an  erroneous  statement  of  the  rule  as  to  the  degree  of  proof 
can  be  treated  as  harmless  eri'or.  Nor  can  we  find  that  the 
error  into  which  the  court  fell  was  cured  in  other  portions  of 
the  charge.  Therefore  we  are  compelled  to  sustain  the  first 
assignment. 

We  shall  not  incumber  this  opinion  with  a  recital  of  the  tes- 
timony. Under  no  view  of  it  can  T.  S.  McLain  be  regarded  as 
a  purchaser  for  value.  If  however  Mrs.  Paul  bought  the  notes 
in  good  faith,  agreeing  in  consideration  of  the  assignment  to 
her  to  pay  the  indebtedness  due  to  the  insurance  companies,  the 
fact  that  part  of  the  consideration  was  not  paid  until  after  the 
service  of  the  attachment  would  not  invalidate  her  title.  If 
however  they  were  transferred  to  her  to  be  employed,  converted 
or  collected  for  the  benefit  of  certain  creditors  of  her  husbands 
he  being  insolvent  at  the  time,  it  is  questionable  whether  she 
could  set  up  title  to  them  as  against  an  attaching  creditor. 
"  None  of  the  acts  of  assembly  relating  to  assignments  for  the 
T^enefit  of  creditors  have  required  that  they  should  be  drawn  in 
any  specific  form.  Such  instruments  were  well  known  and  in 
common  use  when  the  act  of  March  24,  1818,  was  passed,  and 
neither  before  nor  after  its  passage  was  any  particular  colloca- 
tion of  words  held  necessary  to  give  to  a  writing  the  effect  of 
an  assignment.  Since  1818  property  transferred  to  one  person 
to  be  employed,  paid  over  or  converted  for  the  benefit  of  others 
has  been  regarded  as  property  held  in  trust  within  the  opera- 
tion of  the  statutes : "  Wallace  v.  Wainwright,  87  Pa.  263.  It 
is  due  to  the  learned  trial  judge  to  say,  that  the  point  that  the 
transaction  was  an  assignment  for  the  benefit  of  creditors  and 
-was  void  because  not  recorded  within  thirty  days  was  not 


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TAYLOR  V.  PAUL.  i03 

1898.]  Opinion  of  the  Court. 

raised  or  suggested  on  the  trial  of  the  case.  Therefore  we 
should  not  feel  inclined  to  I'everse  the  judgment  because  of  his 
omission  to  instruct  the  jury  as  to  the  law  upon  that  subject  if 
the  case  wei-e  free  from  error  upon  the  theory  upon  which  the 
parties  tried  it.  However,  as  the  case  must  be  retried,  and  as 
the  point  is  now  distinctly  raised,  it  is  proper  to  say  that  an 
assignment  of  property  by  an  insolvent  debtor,  although  abso- 
lute on  its  face,  may  b©  shown  by  parol  evidence  to  have  been 
intended  to  create  a  trust  for  creditors :  York  Co.  Bank  v.  Car- 
ter, 38  Pa.  446-456.  Whether  this  transaction  was  intended 
to  create  a  trust,  or  was  a  bona  fide  purchase  by  Mrs.  Paul  was 
a  question  to  be  submitted  to  the  jury  under  proper  instruc- 
tions, not  only  as  to  her  good  faith,  but  also  as  to  the  facts 
essential  to  a  finding  that  she  became  the  absolute  owner  of 
the  notes  and  not  a  mere  trustee  for  ci*editors.  Any  armnge- 
ment  between  her  and  McLain  and  her  husband,  whereby  she 
did  not  become  personally  bound  to  pay  the  claims,  but  was 
only  to  use  the  notes  for  the  purpose  of  raising  money  to  pay 
them  was  ineffectual  of  itself  to  vest  in  her  a  title  which  would 
be  good  as  against  an  attaching  creditor,  although  such  arrange- 
ment may  have  been  entered  into  in  entire  good  faith ;  and 
nothing  that  she  might  voluntarily  do  after  the  service  of  the 
attachment  would  perfect  her  title. 

In  view  of  the  point  now  raised,  the  instructions  complained 
of  in  the  third,  fourth,  fifth,  sixth  and  seventh  assignments  of 
error  were  scarcely  adequate  to  compel  a  distinct  finding  by  thQ 
jury  as  to  whether  the  transfer  to  Mi's.  Paul  was  a  present  sale 
for  a  sufficient  consideration,  or  was  an  assignment  in  trust  for 
creditors.  Doubtless  more  precise  and  definite  instructions 
would  have  been  given  if  the  point  had  been  raised  on  the  trial. 
This  is  all  that  we  are  called  upon  to  say  upon  this  feature  of 
the  case  at  this  time. 

The  judgment  is  reversed  and  a  venire  facias  de  novo  awarded. 


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504  HEYER  v.  PIANO  CO. 

Syllabus.  [6  Pa.  Superior  Ct 

Frank  Heyer  v.  The  Cunningham  Piano  Company,  Ap- 
pellant. 

Bills  of  exception — Practice,  C.  P. — Exceptions^Testimony— Charge  of 
pourt. 

Exceptions  to  evidence  are  required  only  when  the  question  of  its  ad- 
missibility is  presented,  when  there  is  no  objection  there  is  no  ground  for 
on  exception.  Instead  of  authentication  by  bill  of  exceptions,  both  evi- 
dence and  charge  are  placed  on  the  record  as  directed  by  the  act  of  1887. 
The  procedure  in  this  respect  has  been  repeatedly  stated  by  the  Supreme 
Court.    It  may  be  thus  summarized : 

1.  It  is  the  duty  of  the  stenographer  to  take  complete  and  accurate  notes 
of  the  proceedings,  evidence  and  charge,  and  to  transcribe,  for  filing,  a 
longhand  or  typewritten  copy ;  but  this  transcription  may  be  omitted  in 
the  discretion  of  the  court,  with  the  consent  of  counsel. 

2.  Exceptions  noted  by  the  stenographer,  by  direction  of  the  judge,  are 
equivalent  to  the  formal  sealing  of  a  bill  of  exceptions. 

3.  The  stenographer  has  no  authority  to  note  an  exception  except  by 
direction  of  the  judge. 

4.  To  become  pait  of  the  record,  the  copy  of  tlie  stenographer's  notes 
must  be  certified  to  by  the  stenographer,  and  approved  by  the  judge  and 
filed  by  his  direction. 

6.  The  stenographer's  certificate  must  set  forth,  in  substance,  that 
the  proceedings,  evidence  and  charge  are  contained,  fully  and  accurately, 
in  the  notes  taken  by  him  on  the  trial,  and  that  the  copy  filed  is  a  correct 
transcript  of  the  same.  It  must  be  signed  by  the  stenographer,  and  not 
in  a  firm  name  or  by  deputy. 

6.  The  judge's  certificate  must  show,  in  substance,  his  belief  that  the 
transcript  is  correct,  and  that  it  is  filed  by  his  direction. 

7.  Transcripts  of  the  proceedings  and  evidence,  and  of  the  charge,  with 
the  requisite  certificates,  may  be  filed  together  or  separately. 

Charge  of  court — Comments  on  evidence — Entire  charge  to  be  weighed. 
The  charge  of  the  court  does  not  disclose  reversible  error  when,  if  the 
assignments  of  error  to  the  charge  are  weighed  in  connection  with  the  en- 
tire context,  it  appears  that  all  controverted  questions  resting  in  parol 
were  submitted  to  the  jury,  and  when  the  charge,  in  its  reference  to  the 
evidence,  is,  as  a  whole,  entirely  fair. 

Contracts — Assent  to  written  contract  evidenced  otherwise  than  by  sign- 
ing. 

It  both  parties  assent  to  the  terms  of  a  contract,  embodied  in  writing, 
their  assent  creates  a  valid  contract  without  reference  to  signature,  except 
where  signing  is  expressly  required  by  law. 

Master  and  servant— Illegal  discharge — Mectsure  of  damages. 

When  an  employee  is  discharged,  without  sufilcient  cause,  before  the 


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HEYER  V.  PIANO  CO.  505 

1898.]  Syllabus — Assignment  of  Errors. 

end  of  bis  term  of  employment,  be  is  prima  facie  entitled  to  recover  bis 
wages  for  the  full  term.  He  may  bold  bimself  in  constant  i^eadiness  to 
perform  and  recover  as  for  pei'formance.  Even  if  bound  to  make  reason- 
able effort  to  obtain  other  employment,  the  burden  of  proof  is  on  the  em- 
ployer to  show  that  he  obtained  or  might  have  obtained  it. 

Argued  Oct.  14, 1897.  Appeal,  No.  101,  Oct  T.,  1897,  by 
defendant,  from  judgment  of  C.  P.  No.  1,  Phila.  Co.,  Sept.  T., 
1896,  No.  730,  on  verdict  for  plaintiff.  Before  Rice,  P.  J.. 
WiCKHAM,  Beaver,  Smith  and  Porter,  JJ.    Afl&nned. 

Assumpsit  for  wages.    Before  Biddle,  J. 

The  plaintiff  alleged  a  contract  of  employment  by  defendant 
as  foreman  of  defendant's  factory  for  the  period  of  one  year, 
on  and  after  May  4, 1896,  at  a  yearly  salary  of  $1,500  payable 
in  weekly  instalments.  He  offered  on  May  4, 1896,  to  perform 
the  duties  under  the  alleged  agreement,  but  defendant  refused 
to  permit  him  to  enter  its  employment. 

Other  facts  appear  in  the  opinion  of  the  court. 

Verdict  and  judgment  for  plaintiff  for  $991.11.  Defendant 
appealed. 

Errors  asBigned  were  (1)  In  charging,  after  reciting  part  of 
the  testimony  of  the  plaintiff :  ^^  That  is  the  allegation  of  the 
plaintiff  as  to  what  occurred  on  this  occasion,  and  if  you  believe 
that  is  what  occurred  it  would  be  a  perfectly  valid  contract,  if 
Mr.  Cunningham  had  the  right  to  make  such  a  contract." 
(2)  In  charging :  "  It  is  not  always  necessary  that  a  contract 
should  be  signed  by  both  parties.  It  is  a  question  for  the  jury 
to  consider,  if  there  is  a  question  whether  a  contract  was  made, 
why  it  was  not  signed  by  both  parties.  If  a  man  presents  a 
contract  to  another  and  he  tells  him  it  is  all  right  and  he  directs 
him  to  begin  work  in  the  morning,  it  is  a  perfectly  valid  con- 
tract." (3)  In  charging:  "In  regard  to  Mr.  Cunningham's 
right  to  make  this  contract,  that  of  course  must  be  shown.  His 
relation  to  the  company  has  been  shown  as  that  of  general  man- 
ager, who  employed  all  the  hands,  although  there  was  no  evi- 
dence that  he  employed  any  one  whose  term  of  service  extended 
to  a  year."  (4)  In  charging :  "  As  I  understand  Mr.  Cunning- 
ham's evidence,  he  practically  admits  that  he  would  have  the 
right  to  make  this  emplojnnent  if  he  chose  to  do  so  without 


Digitized  by  VjOOQ IC 


506  HEYER  v.  PIANO  CO. 

Assignment  of  Errors — Arguments.  [G  Pa.  Superior  CtJ 

presenting  it  to  the  company."  (5)  In  charging :  "  No  by-law 
has  been  offered  to  show  that  it  was  obligatory,  therefore  I  think 
that  if  he  did  make  the  contract  the  company  would  be  bound 
by  it,  but  the  denial  comes  as  to  the  fact  of  the  contract  having 
been  made."  (6)  In  charging:  "It  therefore  reduces  itself 
down  in  this  case  to  the  question  whether  Mr.  Cunningham  did 
pr  did  not  make  this  contract."  (7)  In  charging :  "  Assuming 
be  had  the  right  to  make  it,  and  if  what  Mr.  Heyer  says  is  true 
he  did  make  it,  he  is  bound  by  it ;  but  if  Mr.  Cunningham's 
contention  is  true,  that  it  was  a  question  to  be  afterwards  acted 
upon,  of  course  he  would  not  be  bound  by  it."  (8)  In  charg- 
ing: '*The  rule  of  damages  in  cases  of  this  character  is,  if  a 
man  makes  a  contract  and  the  other  side  i*efuses  to  carry  it  out, 
the  workman  has  no  right  to  sit  down  and  do  nothing,  and  at 
the  end  of  the  year  require  the  party  with  whom  he  made  the 
contract  to  pay  the  full  amount  he  should  receive  under  its 
terms.  It  is  his  duty  to  lessen  the  damage  as  much  as  possible 
by  seeking  other  employment,  and  if  he  succeeds,  ihe  amount  he 
received  from  such  employment  should  be  deducted  from  the 
amount  of  his  claim.  Mr.  Heyer  has  told  you  what  he  has  earned 
during  the  time,  and  if  you  should  consider  that  he  is  entitled 
to  any  damage  you  should  deduct  that  from  it."  (9)  In  charg- 
ing :  "  I  think  I  have  answered  all  the  points  here  and  I  do  not 
think  it  is  worth  while  to  go  over  them  individually." 

Samuel  Gvstine  Thompson^  with  him  John  A.  Toomey  and 
Patrick  F.  Dever^  for  appellant. — A  contract  of  this  nature, 
where  there  are  mutual  and  depending  covenants,  can  only  be 
established  by  proving  that  it  has  been  signed  by  the  parties. 
Assuming  for  the  purpose  of  argument  that  Mr.  Cunningham 
had  in  fact  made  a  contract  on  the  part  of  the  corporation, 
plaintiff  was  bound  to  show  authorit}^  to  make  the  same :  Bank 
V.  McKee,  2  Pa.  818;  Millward  Cliff  Cracker  Co.'s  Est.,  161 
Pa.  167 ;  Curry  v.  Cemetery  Assn.,  5  Pa.  Superior  Ct.  289. 

The  defendant  was  entitled  to  show  employment  by  the 
plaintiff  in  mitigation  of  damages :  Chamberlin  v.  Morgan,  68 
Pa.  168. 

Oscar  Leser^  for  appellee. — The  testimony  is  not  upon  the 
record.    There  is  no  bill  of  exceptions,  nor  was  a  single  excep-. 


Digitized  by  VjOOQ IC 


HEYER  V.  PIANO  CO:  50T 

1898.]  Arguments — Opinion  of  the  Court. 

tion  asked  for  or  allowed  to  any  portion  of  the  testimony  or  to 
any  portion  of  the  charge. 

The  charge  itself  is  not  of  record,  because  it  does  not  appear 
that  it  was  filed  ^^  by  the  judge's  direction  at  the  express  request 
of  a  party  made  before  verdict,  and  only  when  such  direction 
affirmatively  appears,  the  charge  becomes  part  of  the  record, 
and  is  assignable  for  error : "  Connell  v.  O'Neil,  154  Pa.  682 ; 
Tasker  v.  Sheldon,  115  Pa.  107. 

From  the  testimony,  it  is  clear  that  Mr.  Cunningham  ex- 
pressly assented  to  the  contract,  called  his  bookkeeper  to  whom 
he  dictated  its  terms,  and  by  whom  tiie  name  of  the  company 
in  the  presence  of  Cunningham,  the  secretary,  treasurer  and 
general  manager,  was  affixed. 

A  corporation  may,  by  the  instrumentality  of  its  agents,  con- 
tract within  the  sphere  of  its  functions,  pretty  much  as  a  natural 
person  may.  The  corporate  seal  is  not  a  necessity :  Hamilton 
V.  Ins.  Co.,  5  Pa,  889 ;  Imperial  Co.  v.  Dunham,  117  Pa.  460 ; 
McCuUough  V.  Ins.  Co.,  2  Pa.  Superior  Ct.  233. 

Where  the  agreement  is  wholly  executory,  the  engagement 
of  one  party  may  be  in  writing  and  the  other  in  parol :  Grove 
V.  Hodges,  55  Pa.  504. 

The  assent  of  the  nonsigning  party  may  be  inferred  from  the 
circumstances :  Flannery  v.  Dechert,  13  Pa.  505 ;  Pratt  v.  Hard- 
ing, 30  Pa.  525 ;  Swisshehn  v.  Laundry  Co.,  95  Pa.  370. 

Opinion  by  Smith,  J.,  February  19, 1898 : 

It  is  objected  by  the  appellee  that  neither  the  charge  nor  the 
evidence  is  on  the  record  before  us ;  since  it  does  not  appear 
that  the  charge  was  filed  by  the  judge's  direction,  at  the  request 
of  a  party,  before  verdict,  and  there  is  no  biU  of  exceptions  to 
any  of  the  evidence,  or  to  any  portion  of  the  charge. 

This  objection  is  based  on  a  phase  of  practice  which  has, 
within  the  last  twenty  years,  been  in  large  measure  superseded. 
All  the  cases  holding  that  the  charge  becomes  part  of  the  record 
only  when  filed  at  the  request  of  a  party,  before  verdict,  were, 
decided  under  the  act  of  1806,  and  prior  to  the  Acts  of  March  24, 
1877,  P.  L.  38  and  May  24,  1887,  P.  L.  199.  In  the  practice 
under  the  latter  acts,  such  request  has  not  been  required.  And 
under  the  act  of  1806,  an  exception  to  the  charge  has  never 
been  held  necessary :  Wheeler  v.  Winn,  53  Pa.  122.    Excep- 


Digitized  by  VjOOQ IC 


508  HEYKR  v.  PIANO  CO. 

Opinion  of  the  Court.  [6  Pa.  Superior  Ct 

tions  to  evidence  are  required  only  when  the  question  of  its 
admissibiliiy  is  presented ;  when  there  is  no  objection  there  is 
no  ground  for  an  exception.  Instead  of  authentication  by  a  bill 
of  exceptions,  both  evidence  and  charge  are  placed  on  tiie  rec- 
ord as  directed  by  the  act  of  1887.  The  procedure  in  this  re- 
spect has  been  repeatedly  stated  by  the  Supreme  Court ;  notably 
in  the  cases  of  Rosenthal  v.  Ehrlicher,  154  Pa.  396 ;  Connell 
V.  O'Neill,  154  Pa.  582;  Com.  v.  Arnold,  161  Pa.  320 ;  Wood-' 
ward  V.  Heist,  180  Pa.  161 ;  Harris  v.  Traction  Co.,  180  Pa.  184. 
It  may  be  thus  summarized : 

1.  It  is  the  duty  of  the  stenographer  to  take  complete  and 
accurate  notes  of  the  proceedings,  evidence  and  charge,  and 
to  transcribe,  for  filing,  a  longhand  or  typewritten  copy ;  but 
this  transcription  may  be  omitted  in  the  discretion  of  the  court, 
with  the  consent  of  counsel. 

2.  Exceptions  noted  by  the  stenographer,  by  direction  of 
the  judge,  are  equivalent  to  the  formal  sealing  of  a  bill  of  ex- 
ceptions. 

3.  The  stenographer  has  no  authority  to  note  an  exception 
except  by  direction  of  the  judge. 

4.  To  become  part  of  the  record,  the  copy  of  the  stenog- 
rapher's notes  must  be  certified  to  by  the  stenographer,  and 
approved  by  the  judge  and  filed  by  his  direction. 

5.  The  stenographer's  certificate  must  set  forth,  in  substance, 
that  the  proceedings,  evidence  and  charge  are  contained,  fully 
and  accurately,  in  the  notes  taken  by  him  on  the  trial,  and  that 
the  copy  filed  is  a  correct  transcript  of  the  same.  It  must  be 
signed  by  the  stenographer,  and  not  in  a  firm  name  or  by 
deputy. 

6.  The  judge's  certificate  must  show,  in  substance,  his  be- 
lief that  the  transcript  is  correct,  and  that  it  is  filed  by  his  di- 
rection. 

7.  Transcripts  of  the  proceedings  and  evidence,  and  of  the 
charge,  with  the  requisite  certificates,  may  be  filed  together  or 
separately. 

In  the  present  case,  the  certificates  contain,  in  substance,  the 
matters  required  to  place  the  proceedings,  evidence  and  charge 
before  us,  and  properly  present  them  for  review. 

The  plaintiflE  alleges,  as  the  ground  of  action,  a  contract  for 
his  employment,  made  by  P.  J.  Cunningham  as  representative 


Digitized  by  VjOOQ IC 


HEYER  v.  PIANO  CO.  50D 

1898.]  Opinion  of  the  Court. 

of  "The  Cunningham  Piano  Company,"  named  as  defendant. 
The  defendant  denies  that  such  contract  was  made.  As  to  the 
contract  in  question,  the  trial  judge  instructed  the  jury,  in  sub- 
stance, that  if  Mr.  Cunningham  had  authority  to  make  it,  and 
they  believed  the  allegation  of  the  plaintiff  in  relation  to  it,  it 
was  a  valid  contract,  but  that  if  there  was  no  more  than  a  pro- 
posal to  be  afterward  acted  on,  the  defendant  would  not  be 
bound  without  such  subsequent  action ;  also,  that  it  is  not  nec- 
essary for  both  parties  to  sign  a  contract,  but  that  if  one  signs, 
and  the  other  assents  to  it,  and  directs  performance  by  the  party 
signing,  it  is  a  valid  contract.  As  to  the  measure  of  damages, 
he  instructed  the  jury  that  it  was  the  plaintiff's  duty  to  seek 
other  employment,  and  that  his  earnings  in  such  employment, 
during  the  period  embraced  in  the  contract,  should  be  deducted 
from  the  compensation  contracted  for.  These  instructions  are 
assigned  for  error. 

As  to  the  authority  of  Mr.  Cunningham  to  make  the  contract, 
the  assignments  are  apparently  based  on  the  theory  that  the 
defendant  is  a  corporation.  It  is  not  entirely  clear,  however, 
that  such  is  the  Tact.  In  the  names  of  the  parties,  as  presented 
in  the  paper-books,  the  defendant  is  not  described  as  a  corpora- 
tion; and  as  the  declaration  is  not  printed,  we  cannot  say  that 
the  defendant  is  therein  so  described.  The  defendant's  name 
indicates  nothing  on  this  question.  In  the  business  nomencla- 
ture of  the  day,  a  designation  of  corporate  form  is  frequently 
adopted  by  a  partnership,  general  or  limited,  and  sometimes  by 
an  individual.  In  a  case  before  us  at  the  present  term,  the 
plaintiff  was  an  individual  named,  trading  as  the  "  Street  Rail- 
way Advertising  Company."  Neither  a  charter  nor  other  di- 
rect evidence  of  incoi-poration  was  offered.  From  occasional 
passages  of  the  testimony,  however,  it  is  apparent  that  the 
parties  regarded  the  defendant  as  a  corporation,  and  from  these 
the  jury  might  find  what  the  parties  assumed  as  a  fact.  At  the 
same  time,  the  evidence  of  Mr.  Cunningham's  authority  to 
make  the  contract  in  question  is  quite  equal  in  probative  f oi-ce 
to  that  of  the  defendant's  corporate  existence.  In  his  own  tes- 
timony on  the  subject,  Mr.  Cunningham  leaves  it  to  be  inferred 
that  he  did  not  possess  this  authority,  but  he  does  not  directly 
and  expressly  deny  his  possession  of  it.  There  was  evidence 
that  he  employed  others  without  reference  to  the  board  of 


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610  HEYER  r.  PIANO  CO. 

Opinion  o£  the  Court.  [6  Pa.  Saperior  CL 

directors ;  and  in  not  referring  to  the  board  the  question  of  the 
plaintiff's  employment  he  exercised  the  power  of  deciding  it 
independently  of  that  body.  The  extent  of  his  authority  is 
material  only  if  the  defendant  is  a  corporation,  and  the  evi- 
dence, positive  and  negative,  respecting  both  questions,  was 
sufficient  to  justify  their  submission  to  the  jury.  The  question 
of  Mr.  Cunningham's  authority  is  not  to  be  decided  on  his  own 
testimony  alone ;  it  must  be  determined  from  all  the  evidence 
on  that  subject.  The  assignment  of  errors  to  the  charge  must 
also  be  weighed  in  connection  with  the  entire  context.  When 
so  considered  it  appears  that  the  learned  trial  judge  submitted 
all  controverted  questions,  resting  in  parol,  to  the  jury.  The 
charge,  in  its  references  to  the  evidence,  is,  as  a  whole,  entirely 
fair,  and  the  passages  assigned  for  error  do  not  seem  to  us  of  a 
character  to  mislead  the  jury. 

The  instructions  complained  of  are  fully  warranted  by  both 
the  law  and  the  evidence.  If  both  parties  assent  to  the  terms 
of  a  contract,  embodied  in  writing,  their  assent  creates  a  valid 
contract  without  reference  to  signature,  except  where  signing 
is  expressly  required  by  law.  Assent  is  most  readily  shown  by 
signature,  but  it  may  also  be  shown  by  the  acts  of  the  parties 
with  reference  to  the  matter  in  hand.  If,  in  the  present  case, 
the  jury  believed  that  the  parties  agreed  to  the  stipulations 
noted  by  the  defendant's  bookkeeper,  as  testified  to  by  the  plain- 
tiff, those  stipulations  formed  a  contract  binding  on  both.  If, 
however,  the  matters  thus  noted  were  not  finally  assented  to, 
but  left  for  further  action,  there  would  not  be  the  union  of  wills 
on  the  subject  essential  to  a  contract.  The  question  was  sub- 
mitted to  the  jury,  with  adequate  instructions;  and  the  evi- 
dence on  the  part  of  the  plaintiff,  believed  as  it  was  by  the  jury, . 
furnished  adequate  ground  for  the  verdict. 

The  instruction  as  to  the  measure  of  damages  was  certainly 
as  favorable  as  the  defendant  was  entitled  to.  When  an  em- 
ployee is  discharged,  without  sufficient  cause,  before  the  end  of 
his  term  of  employment,  he  is  prima  facie  entitled  to  recover  his 
wages  for  the  full  term.  He  may  hold  himself  in  constant 
readiness  to  perform,  and  recover  as  for  performance.  Even  if 
bound  to  make  reasonable  effort  to  obtain  other  employment, 
the  burden  of  proof  is  on  the  employer  to  show  that  he  obtained 
or  might  have  obtained  it:  King  v.  Steiren,  44  Pa.  99 ;  Wolf  v. 


Digitized  by  VjOOQ IC 


HEYER  V.  PIANO  CO.  511 

.1898.]  Opinion  of  the  Court. 

Studebaker,  65  Pa.  459 ;  Emery  v.  Steckel,  126  Pa.  171.  There 
is  no  evidence  that  the  plaintiff  in  this  case  neglected  any  op- 
portunity of  employment,  and  full  allowance  was  evidently 
made  for  his  actual  earnings.  The  difference  between  these 
and  the  stipulated  salary  he  was  entitled  to  recover  from  the 
defendant. 
Judgment  affirmed. 


William  R.  Newbold,  trading  as  Hoopes  &  Newbold,  Ap- 
pellant, V.  Jacob  Boon  and  Bethel  M.  Custer. 

Banks  and  Banking— Promissory  note— Rights  ofindorsers. 

Where  a  bank  holds  the  funds  of  a  maker  at  the  maturity  of  the  note, 
it  is  bound  to  consider  the  interests  of  the  indorsers  as  sureties ;  and  if  it 
allows  the  maker  to  withdraw  his  funds,  after  protest,  and  the  indorsers 
are  losers  thereby,  the  bank  is  liable  to  them. 

Promissory  note—Accommodation  paper — Equities  after  maturity. 
The  holder  of  a  promissory  note,  discounted  after  maturity  and  protest 
with  full  knowledge  of  its  history,  can  only  use  it  subject  to  the  equities 
arising  out  of  the  transaction  and  connected  with  the  note  itself ;  he  has 
no  higher  right  to  recover  against  the  defendant's  indorsers  than  had  the 
maker  of  the  paper  with  whom  he  acted. 

The  defendants  were  liable  as  indorsers  on  a  note  made  by  6.  and  dis- 
counted by  the  plaintiff.  B.  offered  as  a  renewal  another  note  with  the 
same  indorsers;  this  plaintiff  refused  to  accept  as  a  renewal,  but  in  point 
of  fact  retained  it  in  his  possession  without  any  consideration,  as  a  mere 
memorandum  of  a  rejected  offer,  but  after  its  maturity  and  protest,  dis- 
counted the  second  note  and  credited  the  proceeds  to  B.'s  account  in  settle- 
ment of  the  prior  note  and  other  accounts  with  B.  Held,  In  a  suit  against 
the  indorsers  on  the  second  note,  that  plaintiff  could  not  recover. 

Argued  Nov.  16, 1897.  Appeal,  No.  17,  Oct.  T.,  1897,  by 
plaintiff,  from  judgment  of  C.  P.  Delaware  Co.,  Dec.  T.,  1894, 
No.  12,  on  verdict  for  defendants.  Before  Rice,  P.  J.,  Wick- 
ham,  Beaver,  Orlady,  Smith  and  Porter,  J  J.    Affirmed. 

Assumpsit  on  promissory  note  for  $800.  Before  Brbgy,  of 
the  first  judicial  district,  specially  presiding. 

The  facts  sufficiently  appear  in  the  opinion  of  the  court. 
Verdict  and  judgment  for  defendants.     Plaintiff  appealed. 


Digitized  by  VjOOQ  IC 


512  NEWBOLD  r.  BOON. 

Assignment  of  Error— Opinion  of  the  Court.     [6  Pa.  Superior  Cl. 

Error  assigned  was  directing  the  jury  to  find  a  verdict  for 
defendants. 

E.  ffl  Hall^  for  appellant. — Any  one  in  possession  of  negoti- 
able paper  may  protest  it  for  non  acceptance  and  give  notice  of 
such  protest,  although  he  is  not  the  lawful  holder,  and  could 
not  demand  payment  or  protest  the  paper  for  nonpayment: 
3  Randolph  on  Commercial  Paper,  sec.  1139,  page  136. 

A  creditor  who  holds  a  bill  as  collateral  security  is  bound  to 
present  and  give  notice  of  dishonor,  and  is  liable  for  the  conse- 
quences if  he  omit  to  do  so :  Peacock  v.  Pursell,  78  E.  C.  L. 
728  (Am.  reprint). 

A  note  being  in  the  nature  of  collateral  security,  cannot  be 
considered  as  accommodation  paper :  Lord  v.  Ocean  Bank,  20 
Pa.  384;  Van  Brunt  v.  Potter  &  Co.,  2  Pa.  Superior  Ct.  591 ; 
Cozens  v.  Middleton,  118  Pa.  622 ;  Snyder  v.  Riley,  6  Pa.  164; 
Long  V.  Rhawn,  75  Pa.  128 ;  Philler  v.  Patterson,  168  Pa.  468. 

0.  B.  Dickinson^  for  appellees. — The  indoraee  of  overdue 
paper  takes  it  subject  to  all  the  equities  which  arise  out  of  it  as 
between  the  original  parties :  Clay  v.  Cattrell,  18  Pa.  413 ; 
Bower  v.  Hastings,  36  Pa.  285 ;  Wilson  v.  Savings  Bank,  45 
Pa.  488;  Peale  v.  Addicks,  174  Pa.  549. 

One  who  takes  accommodation  paper  after  maturity,  takes 
only  the  title  of  him  from  whom  he  gets  the  paper :  Peale  v. 
Addicks,  174  Pa.  549. 

Opinion  by  Orlady,  J.,  February  19, 1898  : 
The  defendants  were  liable  as  accommodation  indorsers  on  a 
note  of  $900,  which  was  made  by  Harry  H.  Black,  and  held  by 
the  plaintiff,  a  banker.  This  note  became  due  on  January  31, 
1893,  and  the  indorsers  continued  their  liability  by  waiving 
protest  of  the  paper  on  the  day  on  which  it  matured.  On  the 
same  day.  Black  offered  to  the  plaintiff,  his  note  for  $800, 
which  was  marked  (to  renew  the  $900)  at  two  months,  and 
with  the  same  persons  as  accommodation  indorsers,  but,  by  rea- 
son of  the  nonpayment  of  the  difference  between  the  two  notes, 
the  $800  note  was  refused  by  the  banker,  although  it  was  left 
in  his  possession.  No  credit  was  given  to  Black  for  the  new 
note,  and  on  the  date  of  its  maturity  (April  3, 1893)  the  plain- 


Digitized  by  VjOOQ  IC 


NEWBOLD  V.  BOON.  513 

1898.]  Opinion  of  the  Court. 

tiff  presented  it  for  payment  at  the  bank  at  which  it  was  made 
payable,  and  had  it  protested.  On  April  20, 1893,  Black  paid 
to  the  plaintiff  $200,  and  was  then  charged  with  the  interest  on 
the  $900  note  from  the  day  it  fell  due ;  credit  was  given  for 
the  proceeds  of  the  $800  note,  and  upon  a  balance  being  then 
ascertained  between  the  plaintiff  and  Black,  the  latter  drew  a 
check  for  $902.33,  by  which  the  $900  note  was  discharged,  as 
stated  in  appellant's  history  of  this  case.  This  suit  was  in- 
stituted to  recover  upon  the  $800  note,  and  on  the  trial  the 
learned  trial  judge  gave  instructions  to  the  jury  to  return  a  ver- 
dict for  the  defendants. 

Other  transactions  between  the  ,plaintiff  and  Black  seem  to 
have  complicated  the  settlement  of  their  dealings,  but,  as  to 
this  note  in  suit,  the  plaintiff's  testimony  is  clear  and  positive 
that  he  knew  the  defendants  were  accommodation  indorsers ; 
that  the  note  in  suit  was  intended  as  a  renewal  of  the  $900 
one ;  that  he  positively  refused  to  receive  it  as  offered ;  that 
he  retained  the  $800  note,  without  any  consideration,  as  a  mere 
memorandum  of  a  rejected  offer;  that  on  April  3, 1893,  he  had 
it  protested;  that  on  April  20,  1893,  sixteen  days  after  its 
maturity,  and  in  an  adjustment  of  accounts  between  the  plain- 
tiff and  Black,  the  $800  note  was  treated  by  them  as  living 
paper,  by  then  discounting  it  and  using  the  proceeds  to  dis- 
charge the  larger  one  of  $900. 

If  the  plaintiff  has  title  to  the  eight  hundred  dollar  note, 
and  whatever  its  value  may  have  been  of  that  date,  (April  20, 
1893)  he  acted  with  full  knowledge  of  its  history.  In  settle- 
ment with  the  principal  debtor,  he  sought  to  give  it  vitality,  as 
against  the  accommodation  indorsers,  in  the  face  of  his  refusal 
to  receive  or  discount  it  when  it  was  offered  before  maturity. 
With  this  knowledge  he  can  only  use  it  subject  to  the  equities 
arising  out  of  the  transaction  or  connected  with  the  note  itself : 
Hughes  V.  Large,  2  Pa.  103;  Downey  v.  Tharp,  63  Pa.  322; 
Long  V.  Rhawn,  75  Pa.  128.  He  has  no  higher  right  to  recover 
against  these  defendants  than  had  the  maker  of  the  paper  with 
whom  he  acted,  and  each  had  equal  knowledge  of  all  the  facts : 
Bower  v.  Hastings,  36  Pa.  285 ;  Hart  v.  Trust  Company,  118 
Pa.  565 ;  Peale  v.  Addicks,  174  Pa.  549. 

It  further  appears,  from  the  testimony  of  the  plaintiff,  that 
after  the  dishonor  of  the  note  on  which  suit  is  brought,  other 
Vol.  VI— 33 


Digitized  by  VjOOQ IC 


514  NEWBOLD  v.  BOON. 

Opinion  of  tlie  Couit.  [6  Pa.  Superior  Ct. 

notes  made  by  Black  were  included  in  a  settlement  in  which 
the  proceeds  of  this  note  figured^  by  which  other  claims  were 
paid,  and  resulted  in  continuing  the  liability  of  these  accommo- 
dation indorsers.  When  a  bank  holds  funds  of  the  maker,  at 
the  maturity  of  the  note,  it  is  bound  to  consider  the  interests  of 
the  indorsers  as  sureties,  and  if  it  allows  the  maker  to  withdraw 
his  funds,  after  protest,  and  the  indorsers  are  losers  thereby,  the 
bank  is  liable  to  them :  Mechanic's  Bank  v.  Seitz  Bros.,  150  Pa. 
632,  and  under  the  facts  as  developed  by  the  plaintiff  the  same 
rule  must  apply  in  this  case. 

The  case  was  properly  disposed  of  in  the  court  below,  the 
assignment  of  error  is  overruled  and  the  judgment  is  affirmed. 


Gattle   Brothers  v.  Joseph  P.  Kremp,  Appellant. 

Sale — ConsignmeiU  for  sale — Fraud. 

It  has  been  the  policy  of  the  law  and  the  aim  and  trend  of  all  the  deci- 
sions to  prevent  fmudulent  imposition  on  creditors  by  a  misleading  posses- 
sion ;  but  open,  notorious  and  exclusive  possession  being  destructive  of 
all  sales  under  consignment  is  not  the  test  where  there  has  been  a  bona 
lide  and  honest  consignment  of  goods  to  be  sold  as  the  property  of  the 
consignor.  The  honesty  of  the  ti*ansaction  and  the  intention  of  the  parties 
while  not  the  sole  tests,  are  important  and  constituent  parts  of  it  in  deter- 
mining whether  a  transaction  is  a  sale  or  consignment,  with  a  view  to  de- 
teimining  the  liability  of  the  goods  to  execution  creditors  of  the  consignee 
or  vendee. 

Consignment  for  sale — Fraudulent  possession — Questioii  for  jury, 
A  jeweler  of  Reading,  Pa.,  indebted  to  a  New  York  creditor,  whose 
claim  was  being  pressed,  met  him  by  appointment  at  a  place  in  Reading 
•  other  than  the  debtor's  store;  at  this  meeting  the  claim  was  adjusted  by 
the  return  of  a  portion  of  the  goods  originally  bought  froqi  the  creditor 
and  the  delivery  of  certain  other  goods  belonging  to  tlie  debtor  merchant. 
These  goods  were  actually  delivered  to  the  creditor  by  the  debtor,  and  the 
indebtedness  of  the  latter  canceled.  At  the  same  time  and  place  and  almost 
immediately  after  the  adjustment  of  the  accounts  the  creditor  delivei'ed  the 
goods  so  received  by  him  in  satisfaction  of  his  debt  to  his  former  debtor 
to  be  by  him  sold  as  a  consignment  for  the  account  of  the  New  York  mer- 
chant, the  fonner  creditor.  Subsequently  another  creditor  obtained  judg- 
ment on  a  debt  which  had  accrued  prior  to  this  transaction,  and  issued 
execution.    Held^  on  uu  issue  arising  under  a  sheriff's  interpleader  that  the 


Digitized  by  VjOOQ IC 


GATTLE  BROS.  v.  KREMP.  515 

1898.]  Syllabus— Assignment  of  £nx>r8. 

question  of  fraudulent  possession  by  the  debtor  in  possession,  or  bona  fide 
consignment,  was  for  the  jury. 

Argued  Nov.  9, 1897.  Appeal,  No.  118,  Oct.  T.,  1897,  by 
defendant,  from  judgment  of  C.  P.  Berks  Co.,  Dec.  T.,  1896, 
No.  91,  on  verdict  for  plaintiffs.  Before  Rice,  P.  J.,  Wick- 
ham,  Beaveb,  Oblady,  Smith  and  Porter,  J  J.    Affirmed. 

Feigned  issue.    Before  Enduch,  J. 

Joseph  P.  Kremp,  the  defendant,  issued  execution  on  a  judg- 
ment against  James  M.  Burkhart,  and  levied  on  the  stock  of 
goods  in  his  store ;  Gattle  Bros.,  the  plaintiffs,  thereupon  made 
claim  to  certain  diamonds  valued  at  $610.20,  as  their  property. 

Other  material  facts  appear  in  the  opinion  of  the  court. 

Verdict  and  judgment  for  plaintiffs.     Defendant  appealed. 

Erron  asBigned  were  (1)  In  not  affirming  defendant's  point, 
which  is  as  follows :  "  That  under  all  the  evidence  the  verdict 
must  be  in  favor  of  the  defendant  except  as  to  the  single  com- 
bination ring,  #9.50,  which  the  defendant  admits  was  consigned 
originally.  Amweri  Negatived,  not  read  to  the  jury."  (2)  In 
charging  the  jury  as  follows :  "  Those  questions,  gentlemen,  are 
these :  In  the  first  place,  did  Burkhart  deliver  to  Gattle  the 
actual  possession  of  the  goods  in  question  on  October  15, 
1896  ?  He  brought  them  to  Gattle's  room,  there  is  no  dispute 
about  that ;  he  laid  them  on  the  table,  there  is  no  dispute  about 
that ;  but  did  he  mean  in  so  doing  to  hand  them  over  to  Gattle 
as  the  property  thereafter  of  Gattle  Brothers,  did  he  mean  to 
put  them  into  the  possession  of  Moses  Gattle  as  part  payment 
of  the  debt  which  he,  Burkhart,  owed  to  Gattle  Brothers,  and 
did  Gattle  so  receive  them  and  actually  possess  them?  The 
law  cannot  undertake  to  fix  any  particular  time  during  which 
a  man  must  have  held  actual  possession  of  goods  in  order  to 
constitute  a  transfer  which  will  be  valid,  but  it  requires  that 
that  transfer  shall  have  been  an  actual  one  with  the  right  in  the 
transferee  of  continued  possession.''  (3)  In  charging  the  jury 
as  follows :  "  In  other  words,  in  order  to  constitute  a  transfer 
of  possession,  you  must  find  by  the  fair  preponderance  of  the 
evidence  that  when  Burkhait  brought  these  goods  into  Gattle 's 
room  and  put  them  on  the  tsible,  what  he  said  and  did  gave 
Gattle  the  right  to  retain  those  goods  then  and  there,  and  send 


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516  GATTLE  BROS.  v.  KREMP. 

Assignment  of  EiTors — Arguments.     [6  Pa.  Superior  Ct 

Burkhart  away  without  them.  Otherwise  the  transaction  would 
not  amount  to  a  legal  delivery."  (4)  In  charging  the  jury  as 
follows :  "  If,  on  the  other  hand,  there  was  a  transfer,  a  legal, 
valid  transfer,  as  I  have  explained  that  to  you,  at  the  time,  then 
the  next  question  arises,  What  was  the  nature  of  the  retransf er 
of  these  goods  to  Burkhart  ?  There  is  no  dispute  about  the 
fact  that  whikt  Burkhart  went  to  Gattle's  room  with  the  goods 
in  his  possession,  he  also  left  Gattle's  room  with  the  goods  in 
his  possession  and  they  continued  thereafter  to  be  in  his  store. 
If  my  recollection  of  the  testimony  is  right,  there  was  no  dis- 
tinction made,  nor  was  there  any  undei-standing  at  the  time 
there  should  be  any  distinction  made,  between  these  goods  and 
others  so  far  as  their  handling  by  Burkhart  in  his  store  was 
concerned.  It  is  for  you  to  say  whether  this  transfer,  this  re- 
transfer  of  the  goods — supposing  there  was  a  transfer  in  the 
first  place  by  Burkhart  to  Gattle — by  Gattle  to  Burkhart,  was 
a  bona  fide  transfer  to  him,  for  inspection  of  the  goods,  or  on 
consignment,  to  be  sold  by  him  on  Gattle  Brothel's'  account,  as 
the  property  of  Gattle  Brothers,  or  was  it  a  mere  renewal  of 
Burkhart's  former  possession,  a  resale  to  him  of  the  goods,  with 
the  addition,  however,  of  a  stipulation  between  these  people 
that  in  order  to  secure  payment  by  Burkhart  to  Gattle  Brothers 
the  title  to  the  property  should  remain  in  Gattle  Brothera  until 
paid.  If  it  was  a  bona  fide  and  honest  consignment,  the  goods 
to  be  sold  as  the  property  of  Gattle  Bi*other8,  then  they  re- 
mained the  property  of  Gattle  Brothers,  and  this  execution 
could  not  be  lawfully  levied  upon  this  property,  because  Burk- 
hart being  indebted  to  Gattle  Brothers,  as  well  as  to  Kremp, 
had,  of  course,  the  right  to  prefer  one  creditor  over  another, 
and  if  he  did  prefer,  in  such  a  way  as  to  make  the  preference  a 
legally  valid  one,  the  Gattle  Brothers,  then  their  possession, 
their  title  to  the  property  would  be  superior  to  that  of  other 
creditors  who  might  come  in  afterwards." 

Stevem  ^  Stevens^  for  appellant. — The  retention  of  possession 
of  personal  property  by  the  vendor  is  a  fraud  in  law  whenever 
the  subject  of  the  transfer  is  capable  of  delivery,  and  no  honest 
and  fair  reason  can  be  assigned  for  the  vendor  not  giving  up 
and  the  vendee  taking  possession :  Clow  v.  Woods,  5  S.  &  R. 
275 ;  WeUer  v.  Meeder,  2  Pa.  Superior  Ct.  488. 


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GATTLK  BROS.  v.   KRKMP.  517 

1898.]  Arguments. 

The  rules  of  law  applicable  to  this  case  were  applied  by  the 
Supreme  Court  to  a  similar  state  of  facts  in  the  case  of  Young 
V.  McClure,  2  W.  &  S.  147. 

Change  of  possession  must  be  bona  fide,  not  colorable;  clear, 
unequivocal  and  exclusive.  This  rule  is  intended  to  prevent 
frauds  and  avoid  the  danger  to  creditors,  by  giving  a  man  a  false 
and  delusive  credit :  McBride  v.  McClelland,  6  W.  &  S.  94 ; 
Streeper  v.  Eckert,  3  Wharton,  302 ;  Garman  v.  Cooper,  72  Pa. 
82 ;  Milne,  Brown  &  Co.  v.  Henry,  40  Pa.  352. 

An  attempt  to  secure  payment  of  a  debt  very  like  the  one 
presented  in  the  case  at  bar  is  shown  in  Wagner  v.  Common- 
wealth, 16  W.  N.  C.  75. 

The  transaction  of  October  15,  1896,  between  Gattle  Broth- 
ers and  James  M.  Burkhart  being  a  fraud  in  law,  without  regard 
to  the  intention  of  the  parties,  it  became  a  question  for  the  court 
and  not  for  the  jury  to  decide,  and  therefore  the  court  erred  in 
not  affirming  the  defendant's  point :  Weller  v.  Meeder,  2  Pa. 
Superior  Ct.  488 ;  Domick  v.  Reichenback,  10  S.  &  R.  84. 

Rourke  ^  Heinly^  for  appellees. — There  being  evidence  of 
an  actual,  visible,  manual  delivery,  the  question  of  change  of 
possession  was  properly  submitted  to  the  jury;  and  having 
found  that  there  was  such  a  change  of  possession,  it  was  for 
them  further  to  find  whether  the  same  was  bona  fide,  absolute, 
and  unconditional :  Renninger  v.  Spatz,  128  Pa.  524 ;  Goddaixi 
V.  Weil,  165  Pa.  419. 

By  intent  is  meant  not  the  secret  understanding  of  the  parties, 
but  their  intention  as  indicated  by  tlieir  language  and  conduct : 
Waters  v.  Wolf,  2  Pa.  Superior  Ct.  200. 

The  bona  fides  of  the  transaction  in  the  case  at  bar  is  ad- 
mitted by  the  appellant.  There  was  a  valid  consideration, 
namely,  the  payment  of  a  debt :  Blakey's  Appeal,  7  Pa.  449. 

Under  the  charge  of  the  coui-t,  the  verdict  shows  that  the 
transaction  was  an  actual,  visible,  physical  transfer,  bona  fide, 
unconditional  and  absolute,  and  for  a  valid  and  adequate  con- 
sideration. 

There  are  many  cases  where  the  vendor,  after  the  transfer, 
remained  upon  the  same  premises,  using  the  same  goods,  as  the 
servant  or  agent  of  the  vendee,  and  the  transaction  was  not  re- 
gaixled  as  legal  fraud.    These  cases  have  been  so  fully  reviewed 


Digitized  by  VjOOQ IC 


518  GATTLE  BROS.  v.  KRKMP. 

Arguments — Opinion  of  the  Court.  [6  Pa.  Saperior  Ct. 

in  the  late  case  of  Weller  v.  Meeder,  2  Pa.  Superior  Ct.  488, 
that  it  is  necessary  to  cite  but  a  few :  Garretson  v.  Hackenberg, 
144  Pa.  107;  BeU  v.  McCloskey,  156  Pa.  819. 

Opinion  by  Orlady,  J.,  February  19, 1898 : 

Joseph  P.  Kremp,  of  Reading,  Pa.,  and  Gattle  Brothers,  of 
New  York  City,  were  creditors  of  James  M.  Burkhart,  who  was 
doing  business  as  a  jeweler  in  Reading.  After  the  indebted- 
ness of  Burkhart  to  Kremp  had  been  created,  the  former  be- 
came indebted  to  Gattle  Brothers  for  diamonds,  jewelry,  etc., 
which  were  purchased  from  them,  for  sale  in  his  store.  Kremp 
was  unable  to  pay  the  claim  of  Gattle  Brothers  upon  their  de- 
mand, and  a  correspondence  ensued  between  the  parties  which 
resulted  in  an  offer  by  Burkhart  to  deliver  to  Gattle  Brothers 
some  of  the  goods  purchased  from  them,  and  goods  purchased 
from  other  dealers,  in  payment  of  their  claim.  Pursuant  to  this 
offer  on  October  15, 1896,  the  parties  met  in  a  room  of  a  hotel 
in  Reading,  to  which  place  the  goods  were  brought  by  Burk- 
hart, and  were  then  examined,  scheduled,  marked  with  their 
then  value,  and  in  payment  of  his  debt  were  delivered  by  Burk- 
hart to  Moses  Gattle  for  the  plaintiff.  Subsequent  to  tins,  but 
at  the  same  meeting,  the  goods  were  delivered  by  Moses  Gattle, 
upon  a  memorandum  bill,  to  Burkhart,  as  a  consignee,  to  be 
by  him  sold  as  the  property  of  Gattle  Brothers,  and  upon  their 
account.  The  goods  were  placed  on  sale  in  the  store  of  Burk- 
hart without  any  special  mark  of  identification. 

On  December  5, 1896,  Kremp  issued  an  execution  and  levied 
upon  the  stock  of  goods  in  Burkhart's  store,  including  the 
goods  now  in  dispute,  which  were  then  claimed  by  Gattle 
Brothers,  in  consequence  of  which  a  feigned  issue  was  framed 
to  determine  the  title  thereto. 

On  the  trial,  the  defendant  requested  the  court  to  say  "  That 
under  all  the  evidence  the  verdict  must  be  in  favor  of  the  de- 
fendant except  as  to  the  single  combination  ring,  ($9.50)  which 
the  defendant  admits  was  consigned  originally." 

The  learned  trial  judge  refused  this  point,  and  the  evidence 
was  submitted  the  jury  in  a  well  guarded  charge. 

While  the  facts  were  not  controverted,  the  evidence  was  of 
such  a  character  as  might  admit  of  opposite  inferences,  and  it 
was  proper  to  refer  it  to  the  jury.    The  defendant  contended 


Digitized  by  VjOOQ IC 


GATTLE  BROS.  v.  KREMP.  519 

1898.]  Opinion  of  the  Court. 

in  the  court  below,  and  as  earnestly  urges  in  this  court,  that 
he  was  entitled  to  binding  instructions  under  authority  of  a 
line  of  cases  beginning  with  Clow  v.  Woods,  5  S.  &  R.  275. 

The  court  said  "  The  law  cannot  undertake  to  fix  any  par- 
ticular time  during  which  a  man  must  have  held  actual  posses- 
sion of  goods  in  order  to  constitute  a  transfer  which  will  be 
valid,  but  it  requires  that  the  transfer  shall  have  been  an  ac- 
tual one,  with  the  right  in  the  transferee  of  continued  posses- 
sion. If  there  was  a  transfer,  a  legal,  valid  transfer  at  the  time, 
then  the  next  question  arises,  what  was  the  nature  of  the  re- 
transfer  of  these  goods  to  Burkhart.  It  is  for  you  to  say 
whether  this  retiansfer  was  a  bona  fide  transfer  to  him  for  in- 
spection of  the  goods,  or  on  consignment  to  be  sold  by  him  on 
Gattle  Brothers'  account,  as  the  property  of  Gattle  Brothers, 
or  was  it  a  mere  renewal  of  Burkhart's  former  possession,  a  re- 
sale to  him  of  the  goods,  with  the  addition  however  as  a  stipu- 
lation between  these  people,  that  in  order  to  secure  payment  by 
Burkhart  to  Gattle  Brothers  the  title  should  remain  in  Gattle 
Brothers  until  paid.  If  it  was  a  bona  fide  and  honest  consign- 
ment, the  goods  to  be  sold  as  the  property  of  Gattle  Brothers, 
then  they  remained  the  property  of  Gattle  Brothers,  and  this 
execution  could  not  be  lawfully  levied  upon  this  property." 

The  point  submitted  by  the  defendant  assumes  the  validity  of 
a  consignment  to  preserve  the  title  in  the  consignor  in  except- 
ing from  his  claim  the  single  combination  ring  ($9.50),  which 
the  defendant  admits  was  consigned  originally — and  he  could 
not  have  objected  to  the  conclusiveness  of  the  transaction  if  the 
goods  in  dispute  had  been  taken  by  Moses  Gattle  from  Read- 
ing to  the  New  York  store,  and,  with  the  single  comldnation 
ring,  honestly  consigned  from  that  point,  all  of  which  could 
have  been  done  within  twenty-four  hours. 

The  fairness  of  the  consideration  in  accepting  the  goods  in 
payment  of  a  preexisting  debt  is  not  questioned. 

In  the  cases  on  which  appellant  relies  there  was  no  evidence, 
or  there  was  a  conflict  of  evidence,  as  to  a  change  of  possession 
of  the  property,  but  in  this  case,  under  the  charge  of  the  court, 
the  verdict  means  that  the  first  transaction  was  honest,  the  con- 
sideration a  valuable  one,  accompanied  by  an  actual  physical 
delivery  of  the  property,  free  from  any  pretense,  collusion  or 
condition,  resulting  in  a  consmnmated  sale,  and  the  exclusive 


Digitized  by  VjOOQ IC 


520  GAITLE  BROS.  v.  KREMP. 

Opinion  of  the  Court.  [6  Pa.  Superior  Ct. 

right  in  Gattle  Brothers  to  a  continued  possession.  These  facts 
being  found,  what  difference  did  it  make  to  this  creditor  of 
Burkhart  as  to  whether  the  goods  were  consigned  tp  his  debtor 
from  Reading  or  New  York?  If  the  right  to  a  continuous  pos- 
session, with  an  absolute  title,  became  fixed  in  Gattle  Brothers, 
this  creditor  was  not  injured  by  their  consignment  of  these 
goods  to  him.  His  debt  had  been  long  overdue,  and  no  false 
or  delusive  credit  was  created,  and  imder  the  facts  as  deter- 
mined by  the  verdict  the  possession  of  Burkhart  at  the  time  of 
the  levy  was  entirely  unrelated  to  his  former  possession. 

The  stock  of  goods  kept  for  sale  in  a  store  is  continually 
changing,  and  a  lender  does  not  extend  general  credit  to  an 
owner  on  the  faith  of  a  particular  item  of  property  in  his  store. 
There  is  no  evidence  in  the  case  intimating  that  Kremp  knew, 
or  did  not  know,  that  this  debtor  kept  or  sold  goods  on  con- 
signment. The  aim  and  trend  of  all  the  decisions  has  been  to 
prevent  fraudulent  imposition  on  creditors  by  a  misleading 
possession,  but  the  open,  notorious  and  exclusive  possession  as 
urged  by  appellant  would  be  destructive  of  all  sales  under  con- 
signment. Admitting  that  there  was  no  coUusive  or  actual 
fraud,  the  appellant  contends  that  the  transaction  was  fraudu- 
lent in  law  because  of  the  insufficiency  of  Burkhart's  possession 
as  consignee  of  Gattle  Brothers ;  and  that  the  honesty  of  the 
transaction  or  the  intention  of  the  parties  are  not  to  be  consid- 
ered. 

We  cannot  go  that  far.  The  honesty  of  the  transaction  and 
the  intention  of  the  parties  were  not  the  sole  tests  by  which  its 
legality  was  to  be  determined,  but  they  were  very  important, 
constituent  parts  of  it,  and  when  a  jury  finds  that  they  are 
accompanied  by  an  unconditional,  physical  delivery  of  posses- 
sion as  could  reasonably  be  expected,  taking  into  view  the  char- 
acter and  situation  of  the  property,  and  the  relation  of  the 
parties,  based  on  an  honest  consideration,  they  became  decisive 
of  the  question :  Hugus  v.  Robinson,  24  Pa.  9 ;  Billingsley  v. 
White,  59  Pa.  464 ;  McKibben  v.  Martin,  64  Pa.  352 ;  Evans 
v.  Scott,  89  Pa.  186 ;  Crawford  v.  Davis,  99  Pa.  576 ;  Ziegler 
V.  Handrick,  106  Pa.  87 ;  Buckley  v.  Duff,  114  Pa.  596 ;  Ren- 
nmger  v.  Spatz,  128  Pa.  524 ;  Stephens  v.  GifEord,  137  Pa.  219 ; 
McGuire  v.  James,  143  Pa.  521 ;  Garrettson  v.  Hackenburg, 
144  Pa.  107;  Bell  v.  McCloskey,  155  Pa.  319;  Goddard  v. 


Digitized  by  VjOOQ IC 


GATTLE  BROS.  v.  KREMP.  521 

1898.]  Opinion  of  the  Court. 

Wen,  165  Pa.  419;  Goss  P.  Co.  v.  Jordan,  171  Pa.  474;  Post 
V.  Berwind-White  Co.,  176  Pa.  297.  The  distinctions  noted 
in  Clow  V.  Woods,  5  S.  &  R.  276,  and  in  many  later  cases  fully 
warranted  the  submission  of  this  case  to  the  jury.  If  the  proof 
warranted  the  finding  of  the  fact  that  the  last  transaction,  called 
the  retransfer,  was  a  constituent  part  of  the  first,  or  if  the  two 
taken  together  were  a  mere  device  or  expedient  to  pledge  the 
property  as  a  security  for  money,  the  result  would  be  different, 
but  the  contention  of  the  plaintiff  was  supported  by  evidence 
which  convinced  the  jury  that  the  consignment  was  a  separate 
and  entirely  independent  undertaking,  and  as  such  it  must  be 
considered :  Murray  v.  McCarthy,  5  Cent.  Rep.  169. 

The  assignments  of  error  are  overruled  and  the  judgment  is 
affirmed. 


J.  E.  Smucker,  Executor  of  Frank  Hefright,  deceased, 
and  Ann  Esther  Cunningham,  Appellants,  v.  The 
Pennsylvania  Railroad  Company. 

Riparian  rights— Effect  of  survey—Land  hounded  by  stream, 
A  surrey  retuiiied  as  bounded  by  a  navigable  liver  vests  in  the  owner 
the  right  of  soil  to  ordinary  low  watermark  of  the  stream  subject  to  the 
public  right  of  passage,  etc.,  between  oi*dinary  high  and  low  watermark 
and  where  there  is  nothing  more  in  the  case,  the  successor  in  the  title 
hold  coextensively. 

Eminent  domain — Evidence— Ex  parte  drafts  made  by  commonwealth. 

In  order  to  fix  the  location  of  land  appropriated  by  the  state  to  public 
uses,  a  draft  attached  to  the  report  of  the  inquisition  appointed  to  assess 
the  damages,  together  with  all  the  explanatory  memoranda  attached  thereto 
is  admissible  in  evidence  to  show  tlie  location  of  the  canal  because  it 
forms  part  of  the  record :  Pennsylvania  Canal  Co.  v.  Dunkel,  101  Pa.  103 ; 
but  an  ex  parte  draft,  offered  to  show  the  location  of  a  canal  which  was 
not  used  in  and  which  did  not  pertain  to,  either  an  amicable  or  adverse 
proceeding  between  the  state  and  the  landowner,  made  after  the  canal  was 
finished,  without  knowledge  or  consent  of  the  owners  and  long  subsequent 
to  the  settlement  had  with  a  number  of  the  ownei*s  of  distinct  parts  of  the 
locus  in  quo,  is  inadmissible. 

Actions— Trespass  for  trying  title. 

The  right  exists  to  bring  trespass  for  an  original  tort  for  the  purpose  of 


Digitized  by  VjOOQ IC 


522  SMUCKER  v.  PENNA.  R.  CO. 

Syllabus— Statement  of  Facts.     [6  Pa.  Superior  Ct.' 

trying  tide,  and  the  judgment  in  such  an  action  has  the  same  effect  on  the 
question  of  title  as  a  judgment  in  ejectment. 

Trespass  for  trying  tiUe — What  constitutes  possession. 

A  mere  discontinuance  of  actual  occupancy  of  town  lots,  without  an  inten- 
tion to  abandon,  does  not  put  the  true  owner  out  of  leg:\l  possession.  To 
hold  possession  of  a  town  lot  once  occupied,  it  is  not  necessarily  required 
that  the  owner  should  build  on  it  or  even  fence  it.  When  there  is  no  ac- 
tual possession  in  another,  the  owner  is  to  be  deemed  in  actual  possession, 
and  trespass  will  lie  against  a  wrongdoer,  it  is  the  close  of  him  who  has 
the  right. 

Evidence^CredibUUy  of  witness— Question  for  jury. 

It  does  not  follow  because  a  witness  is  not  dii*ectly  contradicted  by  an- 
other witness,  that  his  testimony  is  undisputed.  His  manner  on  the  stand, 
his  lapses  of  memory,  the  improbability  of  his  stoiy,  its  self-contradiction, 
the  evidence  afforded  by  circumstances,  all  these  or  some  of  them  may 
rightly  lead  the  jury  to  reject  his  testimony.  Tiie  credibility  of  a  witness, 
whether  it  is  directly  or  indirectly  involved,  is  for  the  jury. 

Question  for  jury— Eminent  domain. 

The  question  whether  or  not  a  particular  strip  of  land  was  or  was  not 
taken  by  the  state  for  the  location  of  a  canal  is  for  the  jury,  there  being 
more  than  a  scintilla  of  evidence  that  the  state  left  some  land  above  low 
watermark,  unappropriated,  the  land  between  high  and  low  wateimarks 
being  the  land  in  question. 

Charge  of  court— Right  and  propriety  ofcofnment  on  evidence. 

It  is  always  the  right  and  often  the  duty  of  the  couit  freely  to  discuss 
the  evidence.  Comments  kept  within  bounds  are  entirely  legitimate  they 
aid  the  juiy,  frequently  prevent  unjust  and  absurd  verdicts,  and  thus  help 
to  preserve  the  respect  of  the  people  for  the  jury  system. 

Argued  March  15, 1897.  Appeal,  No.  26,  Marcli  T.,  1897,  by 
plaintiffs,  from  judgment  of  0.  P.  Huntingdon  Co.,  Sept.  T., 
1891,  No.  43,  on  verdict  for  defendant.  Before  Rice,  P.  J., 
WiLLARD,  WiCKHAM,  Beavbb,  Reedbr  and  Smith,  JJ.  Re- 
versed. 

Trespass  for  occupation  of  plaintiffs'  lands.  Before  Bell,  P.  J., 
of  the  24th  judicial  district,  specially  presiding. 

This  action  was  brought  to  recover  damages  for  injuries  done 
by  defendant  to  the  plaintiffs  by  casting  a  large  quantity  of 
stone  and  dirt  and  by  laying  railroad  tracks  upon  a  strip  of 
ground  lying  between  the  abandoned  Pennsylvania  canal  and 
the  Juniata  river,  and  forming  the  southern  parts  of  lots  num- 
bered from  109  to  116,  inclusive,  in  the  recorded  plan  of  the 


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SMUCKER  V.  PENNA.  R.  CO.  623 

1898.]  Statement  of  Facts— Opinion  of  the  Court. 

borough  of  Huntingdon.    Damages  were  laid  in  the  sum  of 
$1,000. 

Other  facts  sufficiently  appear  in  the  opinion  of  the  court. 

Verdict  and  judgment  for  defendant.     Plaintiffs  appealed. 

ErroTB  assigned  among  others  were  (8)  The  answer  to  plain- 
tiffs' third  point,  which  point  and  answer  are  as  follows : 
"  3.  Trespass  will  lie  for  injury  to  the  qualified  title  between 
high  and  low  watermark.  Ariswer :  As  applicable  to  the  facts 
in  the  case  this  point  is  denied."  (11)  In  giving  binding  in- 
structions for  defendant. 

W.  B,  Simpson  and  H.  H.  Waite^  with  them  J.  R,  Simpsonj 
for  appellants. 

John  D,  Dorris^  with  him  William  Dorris^  for  appellee. 

Opinion  by  Wiokham,  J.,  February  19, 1898 : 
On  November  21, 1787,  the  commonwealth  of  Pennsylvania 
granted  to  William  Smith,  his  heirs  and  assigns,  a  tract  of  land 
called  The  Standing  Stone,  and  bounded  and  described  as  fol- 
lows :  "  Situate  on  the  northeast  side  of  Frankstown  branch 
of  Juniata,  in  Huntingdon  county,  beginning  at  a  hickory 
on  the  bank  of  said  branch,  thence  by  a  vacant  hill  north  63° 
east  118  perches  to  a  post ;  thence  by  land  of  Ashur  Clayton 
and  vacant  Piney  hill  south  20°  east  262  perches  to  a  hickory ; 
thence  by  Piney  hill  south  42°  east  152  perches  to  a  comer 
white  oak  of  William  Smith's  land ;  thence  by  the  same  south 
27°  east  94  perches  to  a  white  oak ;  thence  by  a  vacant  hill 
south  17°  east  109  perches  to  a  pine;  and  south  44°  west 
12  perches  to  a  hickory  on  the  bank  of  said  branch ;  thence  up 
the  same  696  perches  to  the  place  of  beginning ;  containing 
428  acres  and  |  and  allowance  of  6%  for  roads,  etc.,  with  the 
appurtenances.  [Which  said  tract  was  surveyed  in  pursuance 
of  a  warrant  granted  to  the  said  George  Croghan,  dated  De- 
cember 10,  1764,  who  by  deed  duly  recorded  at  Carlisle,  in 
the  county  of  Cumberland,  conveyed  the  same  to  the  said  Wil- 
liam Smith  in  fee.]" 

On  November  14, 1795,  Smith  plotted  and  laid  out  the  town 
of  Huntingdon,  afterwards  incorporated  as  a  borough,  on  the 


Digitized  by  VjOOQ IC 


524  smuckp:r  v.  PENNA.  R.  CO. 

Opinion  of  the  Court.  [6  Pa.  Superior  Ct. 

tract  of  land  above  described.  The  external  boundaries  of  the 
town,  as  set  forth  in  words  and  figures  on  the  plan  thereof,  are 
as  follows :  "  Beginning  at  a  large  stone  comer  placed  on  the 
banks  of  the  river  Juniata  down  by  entrance  of  a  fording  place 
and  at  the  distance  of  200  feet  on  a  creek  south  66°  east  from 
the  east  side  of  St.  Clair  street ;  then  running  from  said  stone 
or  place  of  beginning  north  24°  east  109  perches  and  -3^  of  a 
perch  to  a  stone ;  thence  north  66°  west  157  perches  to  a  stone ; 
thence  south  24°  west,  including  Charles  street,  110  perches  or 
thereabouts  to  the  river  Juniata,  thence  down  the  same  on  the 
northerly  bank  or  side  to  the  place  of  beginning." 

The  subject-matter  of  the  present  controversy  is  a  strip  of 
land  extending  along  the  Juniata  river  between  Fourth  and 
Fifth  streets,  in  the  said  borough,  the  same  consisting  of  the 
southern  ends  of  lots  Nos.  109, 110,  111,  112, 113, 114, 115  and 
116  in  the  aforesaid  plan.  This  strip  is  only  a  few  yards  wide, 
lies  mostly,  perhaps  altogether,  between  high  and  low  water- 
mark of  the  stream,  and  was  unimproved,  uninclosed,  and  un- 
cultivated when  the  defendant  took  possession  thereof. 

Between  the  years  1828  and  1830  the  Pennsylvania  canal 
was  constructed  by  the  state  over  and  through  the  lots,  the 
numbers  whereof  have  just  been  given,  and  compensation  was 
duly  made  to  the  owners  for  the  taking  and  injury.  The  Penn- 
sylvania Railroad  Company  in  1857  succeeded  the  state  in  the 
ownership  of  the  canal  property.  In  1867  it  conveyed  all  its 
rights  therein  to  the  Pennsylvania  Canal  Company.  The  canal 
company  reconveyed  to  the  railroad  company  in  1889. 

In  1891,  the  railroad  company,  claiming  that  the  state  in 
constructing  the  canal  had  appropriated  the  disputed  land,  and 
that,  therefore,  it  was  part  of  the  canal  property,  decided  to 
use  it  in  connection  with  its  adjoining  lands  for  railroad  pui^ 
poses.  To  this  end,  the  company  took  possession  of  the  strip, 
made  fills,  built  embankments,  and  laid  tracks  thereon.  At  the 
time  the  plaintiff's  action  was  brought,  on  August  8,  1891,  the 
land  was  occupied  by  the  defendant,  and  improvements  were 
still  going  on. 

Naturally  the  first  question  presenting  itself  for  solution  is, 
whether  Smith  under  his  patent  from  the  commonwealth  took 
merely  to  the  bank  of  the  river,  or  to  ordinary  low  watermark. 
The  stream,  it  is  proper  to  say,  was  made  navigable  by  act  oi 


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SMUCKER  V.  PENNA.  R  CO.  525 

1898.]  Opinion  of  tlie  Court. 

March,  1771.  In  view  of  the  decision  in  Wood  v.  Appal,  63 
Pa.  210,  and  the  many  earlier  Pennsylvania  cases  therein  cited 
and  discussed  by  Mr.  Justice  Agnew,  we  cannot  hesitate  in 
holding,  as  was  there  held,  that  the  grant  extended  to  ordinary 
low  watermark,  subject  only  to  the  rights  of  the  public  as  to 
navigation,  fishing,  etc.  The  description  in  Wood  v.  Appal, 
so  far  as  we  are  concerned  with  it,  is  so  similar  to  the  one 
under  consideration  here  that  we  reproduce  it :  "  Beginning  at 
comer  hickory,  at  Pittsburg  Manor,  standing  on  the  bank  of 
the  Ohio  river ;  thence,  by  said  Manor,  south  14°  west .... 
north  37°  degrees  east  60  perches  to  a  comer  iron  wood  tree 
standing  on  the  bank  of  said  Ohio  river ;  thence  up  the  river 
233  perches  to  the  first  mentioned  hickory,  the  place  of  begin- 
ning."    See  also  Pabner  v.  Farrell,  129  Pa.  162. 

The  next  question  for  consideration  is,  whether  Smith  in- 
tended that  the  southern  boundaries  of  the  lots  above  men- 
tioned, or  of  any  of  them,  should  run  to  the  ordinary  low  water- 
mark line.  Applying  the  law  as  settled  by  the  above  decisions 
to  the  description  and  plot  of  the  town,  we  are  satisfied  that 
such  was  his  intention,  and  that  each  and  all  the  lots  extended 
to  low  watermark.  The  description  carries  the  town  lines  on 
the  south  to  that  point,  and  the  plot  shows  no  street  or  strip  of 
land  reserved  for  the  founder,  or  the  public,  along  the  stream. 

We  are  therefore  constrained  to  hold,  as  a  matter  of  law,  on 
the  uncontradicted  evidence  before  us,  that  the  grantees  of  these 
lots  took  title  to  ordinary  low  watermark,  and  that  were  there 
nothing  more  in  the  case,  their  successors  in  title,  whoever 
they  may  be,  would  hold  coextensively.  It  devolved  on  the 
plaintiffs  to  show  title  to  the  premises  in  dispute,  or  some  part 
thereof,  in  order  to  recover  in  whole  or  in  part.  This  they 
sought  to  do  by  offering  conveyances  for  the  ends  of  the  lots 
lying  south  of  what  they  allege  to  be  the  canal  appropriation. 
As  to  most  of  the  strip,  their  paper  title  seemed,  prima  facie, 
good,  unless  the  state  in  making  the  canal  appropriated  the 
land  out  to  low  watermark.  The  court  below  was  of  the  opin- 
ion that  the  state  left  no  part  of  the  strip,  south  of  the  canal, 
imappropriated ;  that  the  lots  as  laid  out  by  Smith  extended 
only  to  the  bank  of  the  river,  and  further  held  that,  even  if  the 
plaintiffs  had  shown  an  undoubted  title,  they  could  not  sustain 
an  action  of  trespass,  because  they  were  not  in  actual  occupancy 


Digitized  by  VjOOQ IC 


526  SMUCKEU  v.  PENNA.  R.  CO. 

Opinion  of  the  Court.  [6  Pa.  Superior  Ct. 

when  the  company  entered  on  the  land.  For  these  reasons,  a 
verdict  was  directed  for  the  defendant. 

As  to  the  second  ground  for  so  ruling,  we  have  already  suffi- 
ciently expressed  an  opinion.  The  first  reason  was  for  the  jury 
to  pass  on,  there  being  more  than  a  scintilla  of  evidence  that 
the  state  left  some  land,  above  low  watermark,  unappropriated, 
and  that  as  late  as  1871,  the  ends  of  lot  No.  110  or  111,  or  both, 
were  occupied  by  a  building  held  by  persons  claiming  under 
and  through  the  parties,  who  owned  at  the  time  the  canal  was 
constructed.  There  was  also  other  evidence  proper  to  submit 
to  the  jury  on  this  point.  In  adopting  the  view  he  did  regard- 
ing this  matter,  the  learned  trial  judge  was  no  doubt  strongly 
influenced  by  certain  words  and  figures,  appearing  on  a  draft 
of  that  part  of  the  canal  lying  within  the  limits  of  the  borough, 
which  draft  was  and  is  on  file  in  the  proper  office  in  Harrisburg. 
It  appears,  however,  from  the  defendant's  own  statement,  made 
when  the  draft  was  admitted  in  evidence  against  the  plaintiff's 
objection,  that  it  was  not  drawn  until  December  29, 1832,  (see 
page  33  of  Appendix  to  appellant's  paper  book,)  and  both  sides 
agree,  as  will  be  seen  by  reference  to  their  respective  histories 
of  the  case,  that  the  appropriation,  by  the  state,  must  have  been 
made  between  1828  and  1830,  It  is  also  shown,  by  releases 
offered  in:  evidence  by  the  defendant,  that  as  to  several  of  the 
lots  at  least,  the  damage  for  the  taking  had  been  agreed  on,  and 
paid  to  the  owners  as  early  as  1829  and  1830. 

In  Pennsylvania  Canal  Co.  v.  Dunkel,  101  Pa,  103,  decided 
in  1882,  it  was  held  that  a  draft  attached  to  the  report  of  the 
viewers  appointed  to  assess  damages,  together  with  all  the  ex- 
planatory memoranda  thereon,  was  admissible  to  show  the  loca- 
tion of  the  canal,  because  it  was  part  of  the  record  of  the 
proceedings,  and  as  Mr.  Justice  Trunkey  sajrs :  "  It  was  made 
after  the  beginning  of  the  canal  and  before  its  completion.  It 
must  have  been  known  to  the  parties  interested.  It  is  consis- 
tent with  the  place  where  the  canal  was  constructed."  In  the 
present  case,  so  far  as  we  can  see,  the  draft  was  ex  parte,  was 
not  used  in,  and  did  not  pertain  to,  either  an  amicable  or  ad- 
verse proceeding  between  the  State  and  the  land  owners,  was 
made  after  the  canal  was  finished,  without  the  knowledge  or 
consent  of  the  owners,  and  long  subsequent  to  the  settlement 
had  with  a  number  of  the  owners  of  distinct  parts  of  the  locus 
in  quo. 


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SMUCKER  V.  PENNA.  R.  CO.  627 

1898.]  Opinion  of  the  Court. 

If  it  be  contended  that  the  draft  was  admissible,  as  part  of 
an  official  book  or  register,  its  competency,  unless  offered  in 
support  of  an  actual  possession,  and  to  explain  the  extent  of 
the  possession  and  claim,  which  was  not  and  could  not  be  tlie 
purpose  of  the  offer  here,  is  denied  by  the  just  rule  laid  down 
in  1  Greenleaf  on  Evidence  (13th  ed.),  section  485,  as  follows : 
"  It  is  deemed  essential  to  the  official  character  of  these  books 
that  the  entries  in  them  be  made  promptly,  or  at  least  without 
such  long  delay  as  to  impair  their  credibility."  It  will  hardly 
be  contended  that  even  the  state,  notwithstanding  its  great 
powers,  can  make  title  for  itself,  at  the  expense  of  the  rights 
of  its  citizens,  by  maps  or  drafts  prepared  in  secret,  years  after 
the  event  to  which  they  relate,  the  entering  of  which  in  the 
official  records  persons  to  be  affected  knew  nothing  of,  and,  if 
they  did,  might  be  powerless  to  prevent. 

How  far  these  remarks  regarding  the  draft  will  be  applicable 
at  the  next  trial  will  depend  on  the  evidence  then  adduced. 
If  it  shall  be  made  to  appear  that  the  taking,  in  the  case  of  any 
of  the  lots,  was  in  accordance  with  the  draft,  or  that  it  served 
as  a  basis  for  fixing  the  compensation,  to  that  extent,  in  the 
absence  of  countervailing  evidence,  it  should  be  held  conclu- 
sive against  the  plaintiff's  right.  By  the  draft,  we  mean  not 
merely  the  lines  drawn  thereon,  but  the  whole  instrument,  in- 
cluding the  explanatory  words  and  figures.  Standing  alone 
and  taken  as  a  whole,  it  sufficiently  shows  an  intended  appro- 
priation by  the  state  of  all  of  the  lots  lying  south  of  the  bed 
of  the  canal.  This  is  clearly  indicated  by  the  figures  in  the 
column  showing  how  much  of  each  lot  was  left  to  the  original 
owner,  and  by  the  entire  absence  of  lot  lines  south  of  the  canal 
bed. 

We  are  compelled  to  differ  in  part  with  the  view  of  the 
learned  trial  judge  as  to  the  right  of  the  plaintiffs  to  maintain 
trespass.  They  may,  if  they  show  good  title,  recover  for  the 
original  trespass,  that  is,  the  disseisin,  but  not  for  anything 
done  later.  To  obtain  a  status  to  recover  for  injuries  caused 
to  the  land,  or  for  mesne  profits,  while  the  defendants  have 
been  and  are  in  possession,  the  plaintiffs  must  first  regain  pos- 
session by  an  action  of  ejectment:  2  Greenleaf  on  Evidence 
(13th  ed.),  section  619;  2  Waterman  on  Tres.  371;  Bigelow  v. 
Jones,  27  Mass,  161;  Graham  v.  Houston,  4  Dev.  (N.  C.)  232; 


Digitized  by  VjOOQ IC 


528  SMUCKER  v.  PENNA.  R  CO. 

Opinion  of  the  Court.  [6  Pa.  SupenorCt. 

Rowland  v.  Rowland,  8  Ohio,  40.  The  right  to  bring  trespass 
in  this  state  for  the  original  tort,  for  the  purpose  of  trying  title, 
is  impliedly  recognized  in  our  Act  of  April,  6, 1869,  P.  L.  16, 
which  provides  that  the  judgment  in  such  an  action  shall  have 
the  same  effect  on  the  question  of  title  as  a  judgment  in  eject- 
ment. It  appears,  from  the  pleadings  and  evidence,  that  the 
acts  complained  of  by  the  plaintiffs  were  done  pursuant  to  a 
plan  to  hold  the  land  permanently,  and  under  claim  of  right, 
which  claim  in  Pennsylvania  when  acted  upon,  as  in  this  case, 
gives  color  of  title :  Green  v.  Kellum,  23  Pa.  254 ;  Fisher  v. 
Philadelphia,  75  Pa.  392.  The  defendant  entered  upon  the 
premises,  made  extensive  and  necessarily  expensive  improve- 
ments, and  at  the  time  suit  was  brought  was  holding  and  using 
the  ground  in  the  manner  in  which  a  railroad  company  usually 
possesses  and  enjoys  such  property,  that  is,  by  means  of  its 
tracks  and  their  substructure.  As  said  before,  there  can  be 
no  recovery  in  trespass  for  anything  done  by  the  company  while 
it  retains  such  possession. 

But  it  is  seemingly  urged,  that  actual  physical  occupation  of 
the  land,  or  at  least  inclosure  by  the  plaintiffs,  at  the  very 
time  of  the  commission  of  the  trespass,  must  be  shown  to  sus- 
tain the  suit.  We  do  not  so  understand  the  law.  The  locus 
in  quo  consists  of  parts  of  town  lots  which  had  been  occupied 
by  the  owners  for  a  long  period  before  the  canal  was  con- 
structed, and  if  the  evidence  offered  for  the  plaintiffs  were 
correct,  were  in  the  possession  of  their  predecessors  in  title, 
claiming  under  and  through  such  owners,  long  after  the  canal 
was  made.  A  mere  discontinuance  of  actual  occupancy,  under 
the  circumstances,  without  an  intention  to  abandon,  would  not 
put  the  true  owner  out  of  legal  possession.  To  hold  possession 
of  a  town  lot  once  occupied,  it  is  not  necessarily  required  that 
the  owner  should  build  on,  or  even  fence  it.  "  When  there  is 
no  actual  possession  in  another,  the  owner  of  course  is  to  be 
deemed  in  actual  possession:"  Clark  v.  Smith,  25  Pa.  137. 
"  Where  possession  is  vacant,  trespass  will  lie  against  a  wrong- 
doer, it  is  the  close  of  him  who  has  the  right : "  Mather  v. 
Ministers  et  al.,  3  S.  &  R.  508,  512,  and  cases  there  cited. 
Even  if  we  are  to  regard  the  locus  in  quo  as  having  lapsed  into 
the  condition  of  wild  land,  the  rule  laid  down  in  the  above 
decisions,  and  also  in  Porter  v.  McGinnis,  1  Pa.  413,  Baker  v. 


Digitized  by  VjOOQ IC 


SMUCKER  V.  PKNNA.  R.  CO.  529 

1898.]  Opinion  of  tlie  Coiiit. 

King,  18  Pa.  188,  Miller  v.  Zufall,  113  Pa,  817,  and  a  number 
of  other  authorities,  is  equally  applicable.  We  may  add  that 
the  failure  of  the  evidence  to  show  any  formal  entry  by  the 
plaintiffs,  under  their  title,  is  not  material,  since  entry  is  unnec- 
essary in  Pennsylvania :  Carlisle  v.  Stitler,  1  P.  &  W.  6. 

In  view  of  the  above  discussion  of  the  salient  points  of  the 
case,  it  is  not  necessary  to  pass  on  each  assignment  of  error. 
One  matter,  however,  not  already  considered,  may  be  properly 
touched  on.  It  does  not  follow,  because  a  witness  is  not 
directly  contradicted  by  another  witness,  that  his  testimony  is 
undisputed.  His  manner  on  the  stand,  his  lapses  of  memory, 
the  improbability  of  his  story,  its  self-contradiction,  the  evidence 
aiforded  by  circumstances,  all  these  things,  or  some  of  them, 
may  rightly  lead  the  jury  to  reject  his  testimony.  The  jurors 
should  be  left  free  to  draw  their  own  conclusions,  unless  the 
absolute  verity  of  the  witness's  statements  are  either  expressly, 
or  by  the  clearest  implication,  admitted.  The  credibility  of 
the  witness,  where  it  is  directly  or  indirectly  involved,  is  for 
the  jury :  Grambs  v.  Ljoich,  4  Penny.  248. 

But  while  this  is  true,  it  is  always  the  right  and  often  the 
duty  of  the  court  to  freely  discuss  the  evidence.  Comments, 
kept  within  proper  bounds,  are  entirely  legitimate,  they  aid  the 
jury,  frequently  prevent  unjust  or  absurd  verdicts,  and  thus 
help  to  preserve  the  respect  of  the  people  for  the  jury  system. 

Judgment  reversed  and  venire  facias  de  novo  awarded. 


J.  L.  McKay  v.  G.  W.  Pearson,  Appellant. 

Actions—Trover  and  Conversion — Way  going  crop. 
'  The  absolute  and  unqualified  denial  of  goods  to  him  that  hath  the  right 
to  denaand  them,  is  an  actual  conversion  and  not  merely  the  evidence 
thereof,  and  trover  will  lie  immediately  upon  such  denial. 

An  out  going  tenant  has  the  right  to  the  way  going  crop,  and  the  refusal 
by  the  new  tenant  to  permit  him  to  enter  upon  the  land  and  harvest  it  is  a 
conversion  of  the  crop.  A  subsequent  permission  given  by  the  tenant  in 
possession  to  the  owner  of  the  crop  to  harvest  the  same  after  the  prior 
refusal,  does  not  destroy  the  riglit  of  action  the  crop  in  the  meantime  hav- 
ing become  injured  by  the  delay  in  harvesting  the  same. 
Vol.  VI— 34 


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530  McKAY  r.  PEARSON. 

Statement  of  Facts — Assignment  of  Errors.    [6  Pa.  Saperior  Ct. 

Argued  May  12,  1897.  Appeal,  No.  77,  April  T.,  1897,  by 
defendant,  from  judgment  of  C.  P.  Mercer  Co.,  Sept.  T.,  1894, 
No.  101,  on  verdict  for  plaintiff.  Before  Rice,  P.  J.,  Wick- 
ham,  Beavek,  Reeder,  Orlady,  Smith  and  Porter,  JJ. 
Affirmed. 

Appeal  from  judgment  of  justice.    Before  Miller,  P.  J. 

This  was  an  action  of  trespass  to  recover  the  value  of  a  crop 
of  growing  grain  alleged  to  be  the  property  of  the  way  going 
tenant. 

The  facts  sufficiently  appear  in  the  opinion  of  the  court 

Verdict  and  judgment  for  plaintiff  for  Jj46.66.  Defendant 
appealed. 

Err  or  9  assigned  among  others  were  (1)  To  portions  of  the 
judge's  charge  as  follows :  "  It  is  a  question  of  fact  for  you  to 
find  whether  or  not  there  was  a  conversion ;  but  it  is  likely  you 
will  find  there  was  a  conversion  in  case  you  find  that  the  plain- 
tiff went  to  the  premises  on  the  4th  day  of  July  to  cut  and  har- 
vest the  wheat,  and  the  defendant  refused  to  permit  him  to  go 
on  to  the  premises  to  do  so.  He  could  not  cut  the  wheat  with- 
out going  to  the  field ;  he  had  no  right  to  go  there  without  per- 
mission of  the  defendant.  When  the  defendant  forbade  him  to 
enter  upon  his  premises,  if  he  did  so,  plaintiff  was  not  bound  to 
fight  his  way  in ;  and  you  will  likely,  if  you  find  those  facts,  find 
there  was  a  conversion.  There  can  be  no  recovery  unless  there 
was  a  conversion  under  any  circumstances ;  but  if  there  was  a 
conversion,  as  we  have  explained  it  to  you,  on  July  4th,  or 
about  that  date ;  if  there  was  an  offer  on  the  part  of  the  defend- 
ant to  pennit  the  plaintiff  to  cut  this  crop  on  the  13th ;  if  the 
crop  had  deteriorated  between  the  dates  of  July  4th  and  July  13th, 
then  the  phiintiff  was  not  bound  to  cut  it  on  the  13th,  or  any 
time  thereafter,  and  he  is  entitled  to  recover."  (8)  In  answer 
to  plaintiff's  sixth  point,  which  point  and  answer  are  as  follows: 
'*  6.  That  if  plaintiff  was  there  with  his  men  and  machinery 
ready  and  prepared  to  do  this  work  of  harvesting  his  crop,  and 
was  prevented  from  so  doing  by  the  wrongful  act  of  the  de- 
fendant, then  plaintiff  cannot  be  charged  with  the  cost  of  har- 
vesting the  same,  but  would  be  entitled  to  the  full  value  of 
bis  crop.     Answer :  If  there  was  a  conversion  of  the  crop  on 


Digitized  by  VjOOQ IC 


McKAY  V.  PEARSON.  531 

1898.]  Assignment  of  EiTors — Opinion  of  the  Court. 

or  about  July  4,  1894,  and  if  there  was  an  offer  on  the  part  of 
the  defendant  to  the  plaintiff  to  permit  him  to  harvest  this 
wheat  crop  on  or  about  July  13,  1894,  if  the  crop  had  been 
damaged  by  the  unlawful  act  of  the  defendant  between  July  4th 
and  13th,  the  plaintiff  would  be  entitled  to  recover  the  value  of 
his  crop  of  wheat  on  July  4,  1894.  Thus  explained  this  point 
is  aflSnned."  (9)  In  answer  to  defendant's  second  point,  which 
point  and  answer  are  as  follows :  "  2.  If  the  jury  believe  from 
the  evidence  that  the  defendant  offered  to  buy  the  field  of  wheat 
from  the  plaintiff  on  July  13th,  and  the  plaintiff  refused  to  sell 
it  to  him,  and  at  the  same  time  notified  the  defendant  that  he, 
defendant,  dare  not  cut  it,  and  that  the  defendant  never  did 
cut  the  wheat  nor  convert  it  to  his  own  use,  then  the  plaintiff 
cannot  recover  in  this  action.  Atiswer :  If  there  was  no  con- 
version by  the  defendant  there  can  be  no  recovery  by  the  plain- 
tiff. If  you  find  there  was  a  conversion  by  defendant,  then  this 
point  is  refused." 

S,  R,  Mason  and  B.  Magoffin^  for  appellant. 

TT.  ff.  Cochran^  for  appellee. — It  is  held  that  trover  and  con- 
version is  a  proper  remedy  for  the  tenant  to  recover  the  value 
of  the  way-going  crop  where  the  same  is  denied  him :  Shaw  v. 
Bowman,  91  Pa.  414. 

This  suit  was  begun  before  a  justice  of  the  peace,  under  the 
provisions  of  the  Act  of  Assembly  of  1879,  P.  L.  194,  which 
expressly  confers  jurisdiction  up(m  justices  to  try  suits  in  trover 
and  conversion,  where  the  sum  in  controveray  does  not  exceed 
$300. 

A  wrongful  intent  is  not  an  essential  element  of  the  con- 
version. It  is  enough  in  this  action  that  the  rightful  owner 
has  been  deprived  of  his  property  by  some  unauthorized  act  of 
another  assuming  dominion  or  control  over  it:  Boyce  v.  Brock- 
way,  31  N.  Y.  493.     See  also  Whitaker  v.  Houghton,  86  Pa.  51 . 

Opinion  by  Wickham,  J.,  February  19, 1898 : 

J.  S.  McKay,  the  plaintiff,  in  the  fall  of  1893,  sowed  five 

acres  of  wheat  on  a  farm  that  he  had  leased  from  William 

Turner.    At  the  expiration  of  his  term,  in  the  spring  of  1894, 

he  removed  from  the  farm.     On  July  4, 1894,  the  wheat  was 


Digitized  by  VjOOQ IC 


532  McKAY  v.  PEARSON. 

Opinion  of  tlie  Court.  [6  P;i.  Superior  Ct. 

ripe  and  ready  for  cutting,  and  the  plaintiff,  with  a  man  and 
the  necessary  machinery,  went  to  the  premises  to  harvest  it,  as 
it  is  now  admitted  he  had  a  legal  right  to  do. 

He  was  there  met  by  G.  W.  Pearson,  the  defendant,  who  had 
succeeded  him  as  Turner's  tenant,  and  who  warned  him  to  keep 
off  the  land.  The  next  morning  the  plaintiff  again  sought  to 
gain  an  entry,  for  the  same  purpose,  and  was  again  driven  away. 
At  the  first  visit,  the  defendant,  as  he  admits,  refused  to  allow 
the  plaintiff  to  cut  the  wheat,  because,  to  quote  his  own  lan- 
guage, "  Bill  Turner  told  me  when  I  rented  from  him  that  he  " 
the  plaintiff,  "  had  no  right  to  put  the  wheat  in  and  had  no 
right  to  the  wheat."  Turner  denied  that  he  had  told  the  de- 
fendant this,  but  the  matter  is  more  interesting  than  important, 
as  he  could  not,  by  anything  he  might  say,  destroy  the  plain- 
tiff's rights.  The  plaintiff  says  that  the  defendant  gave  as  a 
reason  for  excluding  him,  that  Turner  had  not  reserved  the 
wheat  in  the  lease,  and  that  therefore  it  belonged  to  him,  the 
defendant.  On  the  second  visit,  the  defendant  told  the  plain- 
tiff that  he  had  not,  the  evening  before,  claimed  ownership  of 
the  wheat,  but  he  adhered  to  his  positive  refusal  to  not  permit 
the  plaintiff  to  enter  and  harvest  it.  The  plaintiff  then,  per- 
force accepting  the  situation,  took  his  machinery  and  man  and 
went  away,  evidently  hopeless,  as  he  had  a  right  to  be,  of  being 
ever  able  to  get  his  property. 

Looking  at  all  the  evidence,  it  is  plain  that  the  defendant, 
unqualifiedly  and  absolutely,  denied  the  plaintiff's  title,  and 
did  and  said  that  which  must  have  led  the  latter  to  conclude, 
that  his  wheat  was  lost  to  him.  He  could  draw  no  other  inferr 
ence  from  what  had  happened.  If  one  locks  my  money  in  his 
safe  or  my  horse  in  his  stable  and  coolly  tells  me  "  I  don't  claim 
to  own  your  property  but  I  will  never  let  you  have  it,"  he  is 
guilty  of  a  conversion.  By  what  magic  could  the  plaintiff 
gather  his  crop  without  going  on  the  land?  In  the  very  early 
case  of  Baldwin  v.  Cole,  6  Mod.  212,  Lord  Holt,  speaking  of 
an  absolute  and  unexplained  denial,  said:  "The  very  denial  of 
goods  to  him  that  hath  the  right  to  demand  them  is  an  actual 
conversion,  not  only  evidence .  of  it,  for  what  is  a  conversion 
but  the  assuming  upon  one's  self  the  property  and  right  of  disr 
posing  of  another's  goods."  "  Where  the  refusal  is  absolute 
and  unexplained,  it  is  plenary  evidence  of  a  conversion : "  2Q 


Digitized  by  VjOOQ IC 


McKAY  V,  PEARSON.  583 

1898.]  Opinion  of  the  Court. 

Eng.  &  Am.  Ency.  of  Law,  731.  "Every  conversion  consists 
of,  first,  a  dealing  with  the  goods  in  a  manner  inconsistent  with 
the  right  of  the  person  entitled  to  the  immediate  possession ; 
second,  an  intention  in  so  doing  to  deny  his  right  or  assert  a 
dominion  which  is  inconsistent  with  such  right : "  Ibid.  735. 
One  who  purchased  land  whereon  was  felled  timber  that  had 
been  sold  to  another,  of  which  sale  he,  the  purchaser  of  the  land 
had  notice,  refused  to  permit  the  purchaser  of  the  timber  to 
remove  it.  He  was  held  liable  for  conversion:  Sherman  v. 
Way,  56  Barb.  188. 

It  is  not,  and  never  was,  claimed  that  the  defendant  was  hold- 
ing the  wheat  for  Turner.  He  certainly  was  not  keeping  it  for 
the  plaintiff.  The  inevitable  conclusion  therefore  is,  that  he 
was  retaining  it  solely  for  some  purpose  of  his  own,  and  whether 
that  purpose  was  malicious  or  mercenary  is  of  no  importance. 
The  test  is,  not  what  the  defendant  has  or  has  not  acquired, 
but  what  has  been  the  effect  of  his  act  with  respect  to  the  plain- 
tiff, and  whether  iJ^am9lmtft-to"afi^b8olutedeni^3^d  repudia- 
tion  of_the  plaintiff 'sjght.  Had  the  defendant  informed  the 
plaintiff  that  he  intended  to  exclude  him  only  temporarily,  or 
long  enough  to  get  time  to  investigate  his  title,  there  would  be 
reason  for  saying  that  the  evidence  of  conversion  was  doubtful. 
But,  according  to  the  tenor  of  the  defendant's  own  testimony, 
he  had  already  inquired  concerning  the  matter  of  title,  and 
made  up  his  mind  that  the  plaintiff  had  no  right  to  the  wheat. 
It  is  too  clear  that  he  thought  he  had  a  technical  advantage, 
over  the  plaintiff,  and  meant  to  hold  it.  There  was  nothing 
equivocal  or  uncertain  in  his  conduct.  He  intended  to  prevent 
the  plaintiff  from  getting  the  wheat. 

Several  days  later,  alarmed  perhaps  by  the  plaintiff's  positive 
assertion  of  his  right  to  the  crop,  the  defendant  concluded  to 
see  a  lawyer.  He  did  so  and  found  out  that  he  was  wrong,  but, 
not  until  July  13,  did  he  infoi*m  the  plaintiff,  {hat  the  latter 
might  cut  the  wheat.  His  excuse  for  the  delay  is,  that  the 
plaintiff  seemed  to  avoid  him  on  a  couple  of  occasions  on  the 
highway.  If  it  be  true  that  the  plaintiff  showed  a  want  of  de- 
sire to  meet  him,  it  is  hardly  to  be  wondered  at,  in  view  of  what 
had  already  occurred  between  them.  Had  the  defendant  how- 
ever been  sufficiently  anxious  to  right  the  wrong  he  had  com- 
mitted, and  to  restore  to  the  plaintiff  dominion  over  the  crop, 
he  doubtless  could  easily  have  found  the  latter  at  bis  habitation, 


Digitized  by  VjOOQ IC 


534  McKAY  v.  PEARSON. 

Opinion  of  the  Court.  [6  Pa.  Superior  Ct. 

or  sent  him  word  by  mail  or  messenger.  Nor  is  it  surprising 
if,  on  July  13th  (although  this  is  denied),  the  plaintiff,  a  man 
unlearned  in  the  law  and  smarting  under  a  sense  of  injury,  told 
the  defendant  that  the  latter  dare  not  cut  the  wheat. 

The  essential  questions  involved  in  this  case  may  be  thus 
summarized  and  answered:  First,  did  the  plaintiff  own  the 
wheat,  and  have  the  right  to  enter  on  the  land  and  harvest  it? 
These  rights  were  secured  to  him  by  his  lease,  as  well  as  by  the 
custom  of  the  country,  which  is  part  of  our  common  law,  Shaw 
V.  Bowman,  91  Pa.  414,  and  indeed  they  are  now  conceded. 

Second,  was  there  a  conversion  of  the  crop  by  the  defendant, 
and,  if  so,  when?  There  being,  in  effect,  an  absolute  and  un- 
qualified denial  of  the  plaintiff's  right,  as  well  as  a  positive  and 
final  refusal  to  allow  him  to  cut  the  wheat  on  July  4th  and  5th, 
these  things  would,  under  the  authorities  already  cited,  be  ple- 
nary evidence  of  the  conversion,  provided  that  a  growing  crop 
can  be  converted  without  severance,  a  matter  to  be  presently 
considered. 

Third,  if  a  right  of  action  accrued,  when  was  it  complete  ? 
Undoubtedly  the  plaintiff  could  have  legally  brought  suit  on 
July  4th,  or  on  July  6th  at  the  latest. 

Fourth,  did  the  permission  given  by  the  defendant  to  the 
plaintiff,  on  July  13th,  to  enter  and  cut  me  grain  take  away  the 
right  of  action  already  accrued  ?  Th^Ieamed  trial  judge,  going 
even  further  than  some  of  the  dec^d  cases  warrant,  told  the 
jury  that  if  the  wheat  were  worth-^q^^much  on  July  13th  as  it 
was  at  the  time  of  the  alleged  conversion,  there  could  be  no  re- 
covery, otherwise,  if  there  had  b^n  deterioration  in  value.  This 
was  stating  the  law  most  favoKtbly  for  the  defendant :  Whitaker 
V.  Houghton,  86  Pa.  48 ;  Hart  v.  Skinner,  16  Vt.  138 ;  Green 
V.  Sperry,  16  Vt.  390.  The  jury  found  that  the  grain  had  been 
damaged  and  lessened  in  value,  during  the  interval.  The  plain- 
tiff, therefore,  was  not  bound  to  secure  help  and  machinery,  a 
second  time,  and  harvest  the  overripe  and  injured  crop. 

Fifth,  did  the  plaintiff  in  any  way  agree  to  accept  the  de- 
fendant's offer  of  July  13th?  If  he  did,  of  course,  at  the 
most,  he  could  only  recover  the  difference  in  value  between 
the  wheat  as  it  was  at  the  date  last  mentioned  and  the  time  of 
the  conversion.  The  evidence,  however,  shows  that  he  refused 
to  make  any  arrangement  whatever  with  the  defendant.  His 
statement  to  the  latter,  if  made,  that  he,  the  defendant,  dare 


Digitized  by  VjOOQ IC 


McKAY  V.  PEARSON.  585 

1898.]  Opinion  of  the  Court. 

not  cut  the  wheat,  taken  in  connection  with  all  the  circum- 
stances, was  merely  an  angry  expression  of  opinion  as  to  the 
defendant's  legal  rights,  and  did  not  amount  to  an  agreement 
to  condone  the  conversion  or  to  resume  dominion  over  the 
crop,  nor  does  it  seem  to  have  been  so  understood  by  either 
party.  Had  the  defendant  consulted  his  lawyer  a  second 
time,  he  would  have  been  instructed  to  save  what  he  could  of 
the  wheat,  and  thereby  make  the  best  of  the  situation,  in  which 
he  had  deliberately  placed  himself. 

Lastly,  will  the  action  of  trover  lie  under  the  circumstances 
detailed?  In  Pennsylvania,  growing  crops,  unlike  trees  and 
other  spontaneous  productions  of  the  earth,  are  personal  prop- 
erty, and  it  cannot  be  doubted  that  in  the  present  case  the  wheat 
was  as  fully  personalty,  while  attached  to  the  soil,  as  though 
actually  severed  therefrom :  Backenstoss  v.  Stahler's  Admrs., 
33  Pa.  251.  It  might  therefore  be  converted,  by  cutting  and 
carrying  it  away,  by  applying  the  torch  to  it  in  the  field,  or  by 
excluding  the  owner,  when  the  crop  was  ready  for  harvesting, 
in  such  a  manner  as  to  clearly  indicate  to  him  an  unequivocal 
and  absolute  denial  of  his  right  to  the  grain,  and  a  fixed  intent 
to  permanently  deprive  him  of  all  control  over  it.  In  the  lat- 
ter instance  the  conversion  would  be  complete  at  once,  although 
the  wrongdoer  neither  then  nor  thereafter  made  nor  expected  to 
make  any  profit  out  of  the  transaction.  Had  he  retained  the 
plaintiffs  wagon  in  his  field  until  the  weather  had  destroyed 
it,  just  as  the  elements  destroyed  the  wheat  crop,  in  the  present 
ciise,  who  will  say  that  he  would  not  have  been  liable  in  trover? 
Nor  would  the  plaintiff  have  been  obliged  to  await  the  physical 
destruction  before  bringing  suit.  In  Stafford  v.  Ames,  9  Pa. 
348,  a  case  much  like  the  one  in  hand,  the  ground  of  the  de- 
cision was  that  the  plaintiff's  agent  "  was  prevented  from  cut- 
ting and  threshing  the  wheat ;  he  was  illegally  kept  out  of 
possession  and  had  a  right  to  immediate  possession." 

We  see  no  error  in  the  charge  or  answer  to  the  points.  The 
question,  as  to  whether  (^  not  there  was  a  conversion,  was  fairly 
left  to  the  jury.  The  expression  of  opinion  as  to  this  matter, 
made  by  the  learned  trial  judge,  was  fully  justified  by  the  facts, 
and  the  rule  as  to  the  measure  of  the  damages  was  correctly 
given.  It  would  answer  no  good  purpose  to  discuss,  in  detail, 
the  many  assignments  of  error.     They  are  all  overruled. 

Judgment  affirmed. 


Digitized  by  VjOOQ IC 


536  PECK,  PHILLIPS  &  WALLACE  CO.  v.  STEVENSON. 

Syllabus — ^Assignment  of  Errors.    [6  Pa.  Superior  CL 


Peck,  Phillips  &  Wallace  Company,  Limited,  for  use  of 
John  Fullerton  &  Son,  v.  M.  H.  Stevenson,  Appellant. 

Debtor  and  creditor-^  Sale  for  paymetU  of  particular  debts — Fraud. 

A  sale  by  a  debtor  at  a  full  price,  intended  by  both  buyer  and  seller  for 
the  payment  of  particular  debts  of  the  vendor  is  a  lawful  sale  and  none 
the  less  so  because  other  creditors  may  be  prevented  or  hindered  by  it  from 
obtaining  payment. 

Fraud — MisrepreserUaiion — Expression  of  opinion. 
The  essential  element  of  fraud  arising  out  of  a  misrepresentation  is,  that 
it  must  be  of  a  fact,  and  not  the  mere  expression  of  opinion. 

Argued  April  27, 1897.  Appeal,  No.  120,  April  T.,  1897,  by 
defendant,  ivom  judgment  of  C.  P.  No.  2,  Allegheny  Co.,  April 
T.,  1895,  No.  364,  on  verdict  for  plaintiff.  Before  Rice,  P.  J., 
WiCKHAM,  Beaver,  Reeder,  Orlady,  Smith  and  Por- 
ter, JJ.    Reversed, 

Assumpsit.    Before  White,  P.  J. 
The  facts  suflSciently  appear  in  the  opinion  of  the  court. 
Verdict  and  judgment  for  plaintiff  for  $163.17.     Defendant 
appealed. 

Error B  assigned  among  others  were  (2)  In  charging  the  jury 
as  follows :  "  The  agreement  between  them,  as  evidenced  by 
the  typewritten  copy  which  is  in  evidence  here,  undoubtedly 
required  defendant  to  pay  all  the  debts  of  that  finn ;  the  lan- 
guage clearly  conveys  that  idea,  and  it  would  not  be  an  honest 
sale,  really,  for  the  firm  to  sell  all  its  property  and  all  its  ac- 
counts to  a  party,  unless  they  intended  to  provide  for  all  their 
debts."  (3)  In  charging  the  jury  as  follows :  "  An  insolvent 
firm  may  make  an  assignment — what  we  call  a  voluntary  assign- 
ment— and  if  that  is  duly  recorded,  then  all  the  creditors  come 
in  and  get  their  share ;  but  our  law  prohibits  an  assignment  so 
as  to  give  a  preference  to  certain  creditors.  If  a  man  or  a  firm 
is  not  able  to  pay  all  his  or  its  debts,  he  has  no  right  to  transfer 
that  property  over  for  a  part  of  his  debts,  and  leave  part  unpro- 
vided for.  Making  an  assignment  in  that  way  is  virtually  a 
voluntary  assignment  and  would  be  a  violation  of  our  assign- 


Digitized  by  VjOOQ  IC 


PECK,  PHILLIPS  &  WALLACE  CO.  v.  STEVENSON.  537 
3.]  Assignment  of  Enx>r8. 

ment  law.  It  is  trae  that  an  insolvent  firm  or  man  may  make 
an  honest,  bona  fide  sale  of  a  part  of  its  property,  and  if  the 
purchaser  pays  an  honest  price  for  it,  not  knowing  of  any  inten- 
tion to  cheat  the  creditors,  he  would  take  a  good  title ;  but 
when  a  man  takes  all  the  property  that  another  has,  not  only 
all  the  property,  but  all  his  accounts  and  business,  the  fair 
presumption  would  be  that  he  would  pay  the  debts ;  because 
that  would  be  the  honest  way  of  doing  business ;  and,  I  say,  on 
that  basis,  this  agreement  was  evidently  drawn."  (4)  In  charg- 
ing the  jury  as  follows :  "  Now,  it  is  very  clear  and  manifest 
from  that  language  that  Stevenson  was  to  take  all  the  property 
and  interest  in  that  firm,  and  to  pay  all  their  debts.  .  .  .  There 
was  a  claim  of  $800,  and  under  the  printed  language  here  the 
defendant  would  be  bound  to  pay  the  whole  of  it,  as  every  other 
debt."  (5)  In  cliarging  the  jury  as  follows :  ''  I  would  say, 
gentlemen,  that  it  is  very  awkwardly  worded ;  it  is  a  very  awk- 
wardly worded  sentence,  and  while  I  would  give  that  interpre- 
tation to  it,  yet  it  is  veiy  awkwardly  worded.  If  it  had  referred 
alone  to  that  Whitesell  account,  it  ought  to  have  said,  '  the  bal- 
ance of  that  account,'  or  *  the  Whitesell  account  to  be  paid  out 
of  the  accounts  collected.'  It  does  not  say  that ;  it  says,  '  bal- 
ance from  accounts.'  It  is  indefinite  and  uncertain,  and  the 
contention  on  the  part  of  the  defendant  is  that  that  was  put 
there  to  qualify  the  previous  clause,  which  made  him  liable  for 
all  the  debts  of  the  firm,  as  shown  by  their  books  of  account." 
(6)  In  charging  the  jury  as  follows :  "  Well,  now,  to  transfer 
that  clause  to  the  other  seems  a  verj'  harsh  construction,  and 
a  very  awkward  way  of  expressing  it.  .  .  •  Suppose  that  clause, 
^  balance  from  accounts,'  to  be  added ;  how  would  it  read?  ^De- 
fendant assuming  to  pay,*  etc.,  and  *  the  indebtedness  of  said 
firm,  as  shown  by  their  books  of  account,  balance  from  accounts.' 
Does  that  make  good  sense  ?  "  (7)  In  charging  the  jury  as  fol- 
lows: "If  you  find,  gentlemen,  from  the  evidence,  that  the 
clause,  '  balance  from  accounts,'  was  intended  to  change  and 
modify  that  part  of  the  agi*eement  which  made  him  liable  for 
all  the  debts  ....  then  you  find  for  the  defendant ;  otherwise 
your  verdict  ought  to  be  for  the  plaintiff."  (9)  In  not  affirm- 
ing defendant's  second  point,  which  said  point  and  the  answer 
thereto  are  as  follows  :  "2.  As  it  is  not  shown  by  Fullerton  & 
Son  that  their  claim  is  an  indebtedness  of  the  said  fiim  as  shown 


Digitized  by  VjOOQ IC 


538  PECK,  PHILLIPS  &  WALLACE  CO.  v.  STEVENSON. 

Assignment  of  EiTors — Opinion  of  the  Court.     [6  Pa.  Superior  Ct. 

by  their  books  of  account,  there  can  be  no  recovery.  Anawer : 
That  is  refused.  According  to  the  testimony,  even  of  the  de- 
fendant himself,  he  admitted  that  this  account  of  Fullerton  & 
Son  was  a  claim,  and  a  valid  claim  against  the  firm  of  Peck, 
Phillips  &  Wallace  Company,  Ltd."  (10)  In  not  afl5rming, 
unqualifiedly,  defendant's  third  point ;  which  said  point  and  the 
answer  thereto  ai*e  as  follows :  "  3.  If  the  jury  believe  from 
the  evidence,  that  defendant  was  to  pay  the  indebtedness  of 
said  firm  only  out  of  the  collections  he  made,  the  plaintiff  can- 
not recover  without  showing  that  the  defendant  has  collected 
in  more  money  than  he  paid  out.  Answer :  I  would  affirm  the 
first  part  of  that  point,  but  refuse  the  latter  pait,  because  the 
burden  would  be  on  the  defendant  to  show  that  he  had  not  col- 
lected enough  to  pay  the  accounts ;  and  you  have  his  testimony 
that  he  did  not."  (13)  The  undisputed  testimony  being  that 
just  before  the  agreement  in  suit  was  signed,  the  balance  due 
on  the  Whitesell  judgment  had  been  paid  and  satisfied  of  rec- 
ord, the  court  erred  in  not  instructing  the  jury  that  the  words, 
"balance  from  accounts,"  could  not,  therefore,  apply  to  the 
Whitesell  judgment,  but  must  apply  to  the  indebtedness  of  said 
firm,  as  shown  by  their  books  of  account,  except  $380,  which 
was  to  be  paid  by  the  warrant  of  the  Supreme  Commandery. 

M.  H.  Stevenson^  with  him  J.  R.  Braddock^  for  appellant. 

J.  (?.  White^  for  appellee. 

Opinion  by  Beaver,  J.,  February  19, 1898 : 
The  legal  plaintiffs,  being  considerably  involved  and  having 
numerous  executions  against  them  in  the  hands  of  the  sheriff, 
made  a  sale  of  their  entire  business  property,  including  ac- 
counts, to  the  defendant  for  a  price  not  alleged  to  be  inade- 
quate, so  as  to  pay  the  claims  of  the  execution  creditors  and 
certain  others  named  in  the  articles  of  agreement,  under  and 
in  pursuance  of  the  terms  of  which  the  sale  was  made.  There 
was  no  allegation  or  intimation  of  fraud.  The  defendant  took 
possession  of  the  property,  paid  the  claims  of  the  execution 
creditors  and,  as  he  alleges,  paid  in  addition  more  than  he  was 
bound  to  do  under  the  terms  of  the  agreement.  The  use  plain- 
tiffs brought  suit  in  the  name  of  the  legal  plaintiffs  for  the  recov- 


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PECK,  PHILLIPS  &  WALLACE  CO.  v.  STEVENSON.  533 

1898.]  Opinion  of  the  Court. 

evy  of  a  claim  against  them  which  they  allege  in  their  statement 
the  defendant  agreed  to  pay,  alleging  that  the  defendant  had 
**  agreed  (inter  alia)  to  pay  the  debts  of  the  said  limited  part- 
nership with  such  exceptions  as  said  agreement  will  show.*' 
The  agreement  was  produced  by  the  defendant  and  given  in 
evidence  by  the  plaintiffs. 

That  portion  of  the  agreement,  the  construction  of  which  is 
in  controversy,  reads  as  follows :  *'  Now,  therefore,  this  agree- 
ment witnesseth,  that,  in  consideration  of  the  sum  of  two  hun- 
dred dollars,  to  be  paid  in  cash,  and  the  assuming  of  such  fees 
as  may  be  due  to  R.  H.  Jackson,  Esq.,  their  attorney,  and  the 
indebtedness  of  said  firm,  as  shown  by  their  books  of  account, 
except  three  hundred  and  eighty  dollars  due  on  note  of  eight 
hundred  dollars  due  to  Whitesell  &  Sons,  same  to  be  paid  by 
warrant  of  Sup.  Commandery,  balance  from  accounts,  the  said 
Peck,  Phillips  &  Wallace  Company,  Limited,  hereby  agrees  to 
sell,  assign,  transfer  and  set  over  unto  the  said  M .  H.  Stevenson 
all  its  right,  title  and  interest  in  the  lease,  stock,  machinery,  type, 
fixtures,  good-will,  business  and  eveiything  belonging  thereto, 
together  with  all  the  accounts  outstanding,  it  being  the  intent 
to  sell  and  assign  to  the  said  M.  H.  Stevenson  the  entire  plant 
and  business  as  owned  and  conducted  by  said  firm  at  Nos.  43 
and  45  Shiloh  St.,  Pittsburg." 

In  reference  to  this  agreement,  the  trial  judge  in  the  court 
below,  as  complained  of  in  the  second  assignment  of  error, 
said:  "The  agreement  between  them,  as  evidenced  by  the 
typewritten  copy  which  is  in  evidence  here,  will  undoubtedly 
require  defendant  to  pay  all  the  debts  of  that  firm.  The  lan- 
guage clearly  conveys  that  idea,  and  it  would  not  be  an  honest 
sale  really  for  the  firm  to  sell  all  its  property  and  all  its  accounts 
to  a  party,  unless  they  intended  to  provide  for  all  their  debts." 
In  this  there  was  double  error.  The  agreement  does  notxequire 
the  defendant  to  pay  "all  the  debts  of  the  firm,"  but  only  such 
as  were  contained  in  their  books  of  accounts,  nor  is  it  true  that 
"  it  would  not  be  an  honest  sale  for  the  firm  to  sell  all  its  prop- 
erty and  all  its  accounts  to  a  party,  unless  they  intended  to  pro- 
vide for  all  their  debts."  It  was  held  in  the  York  County  Bank 
V.  Carter,  38  Pa.  446,  that  "  A  sale  by  a  debtor  at  a  full  price, 
intended  by  both  buyer  and  seller  for  the  payment  of  particular 
debts  of  the  vendor,  is  a  lawful  sale  and  none  the  less  so,  be- 


Digitized  by  VjOOQ IC 


540  PECK,  PHILLIPS  &  WALLACE  CO.  r.  STEVENSON. 

Opinion  of  the  Court.  [6  Pa.  Superior  Ct. 

cause  other  creditors  may  be  prevented  or  hindered  by  it  from 
obtaining  payment.  Such  is  the  doctrine  of  Uhler  v.  Maul- 
fair,  23  Pa.  481,  and  such  is  ever3rwhere  the  doctrine  of  the 
common  law,  except  where  a  bankrupt  law  exists."  This  has 
been  followed  in  very  many  cases  since  that  time.  This  prac- 
tically disposes  of  the  second,  third  and  fourth  assignments  of 
error,  which  must  be  sustained. 

The  court  practically  left  it  to  the  jury  to  say  what  the  con- 
struction of  the  phrase  "  balance  from  accounts,"  taken  in  con- 
nection with  the  sentence  in  which  it  occurs,  should  be,  giving 
their  own  views  in  regard  to  the  matter  in  the  language  which 
is  complained  of  in  the  fifth  and  sixth  assignments  of  error. 
It  was  the  duty  of  the  court  to  construe  this  agreement  which, 
under  the  undisputed  evidence,  does  not  seem  to  be  doubtful. 
Jackson,  the  attorney  of  the  legal  plaintiffs  at  the  time  the 
agreement  was  signed,  and  Stevenson  both  testified  that  the 
balance  of  the  Whitesell  &  Sons  judgment,  save  the  $380  men- 
tioned in  the  agreement,  had  been  actually  paid  by  the  defend- 
ant to  the  sheriff,  before  the  agreement  was  signed,  and  as  to  this 
there  is  practically  no  denial.  If  that  were  so,  there  was  no  bal- 
ance of  the  Whitesell  &  Sons'  judgment  or  claim  to  be  provided 
for,  after  the  $380  mentioned  in  the  agreement,  and  the  words 
"  balance  from  accounts  "  must  and  could  only  be  held  to  apply 
to  the  balance  of  other  claims  against  the  legal  plaintiffs  which 
were  to  be  paid  out  of  the  proceeds  of  the  accounts  against  their 
debtors.  The  testimony  of  the  defendant  that  he  had  not  col- 
lected enough  from  the  accounts  to  pay  the  claims  against  the 
legal  plaintiffs  found  upon  their  books,  and  that  he  had  actually 
paid  out  more  money  than  had  been  or  could  be  collected,  was 
pi*actically  undisputed.  The  fifth,  sixth,  seventh,  tenth  and  thir- 
teenth assignments  of  error  are,  therefore,  sustained. 

The  eleventh  and  twelfth  assignments  are  not  sustained. 
There  is  no  evidence  of  any  fraud  upon  the  part  of  the  legal 
plaintiffs  in  representing  the  condition  of  their  accounts,  and  it 
would  seem,  from  the  defendant's  own  testimony,  that  he  had 
discovered,  before  the  agreement  was  signed,  that  many  of  the 
accounts  were  worthless  and  uncollectible  and,  that  for  that  rea- 
son, at  his  instance,  the  phrase  "  balance  from  accounts  "  was 
inserted  for  his  protection.  At  the  most.  Peck's  representa- 
tions, according  to  Stevenson's  testimony,  amounted  to  no  more 


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PECK,  PHILLIPS  &  WALLACE  CO.  v.  STEVENSON.  541 
1898.]  Opinion  of  the  Court. 

than  the  expression  of  an  opinion :  "  He  remarked  to  me,  '  Mr. 
Stevenson,  I  think  those  accounts  are  all  collectible,  except  per- 
haps $25.00.'  Mr.  Wallace  told  me  about  the  same  thing,  and  I 
did,  on  that  assurance,  undertake  to  collect  in  the  accounts  and 
pay  the  indebtedness."  One  of  the  essential  elements  of  fraud 
arising  out  of  a  misrepresentation  is,  that  it  must  be  of  a  fact, 
and  not  the  mere  expression  of  opinion :  Brown  v.  Eccles,  2 
Pa.  Superior  Ct.  192 ;  Southern  Development  Co.  v.  Silva,  125 
U.  S.  247. 

The  interests  as  well  as  the  obligations  of  the  legal  plaintiffs 
and  those  of  Charles  F.  Peck  in  the  agreement  are  easily  sev- 
erable and,  in  view  of  that  fact,  we  think  the  suit  was  properly 
brought. 

As  to  the  first  assignment  of  error  the  testimony  as  to  con- 
versations between  the  legal  and  equitable  plaintiffs  on  the  one 
side  and  the  defendant  on  the  other  was,  when  received,  compe- 
tent and  relevant.  There  is  no  evidence  upon  the  record  of  any 
exception  to  the  refusal  of  the  motion  to  strike  it  out,  nor  is 
there  any  exception  to  the  admission  of  the  evidence  itself.  It 
is,  therefore,  not  sustained. 

The  equitable  plaintiffs  failed  to  show  that  their  account  was 
included  in  "the  indebtedness  of  said  firm,  as  shown  by  their 
books  of  account "  and  the  testimony  of  the  defendant  that  it 
was  not  so  shown  was  undenied.  The  defendant's  second  point 
should,  therefore,  have  been  affirmed,  and  the  ninth  assignment 
of  error  is  sustained. 

The  equitable  plaintiffs,  having  elected  to  take  advantage  of 
the  written  agreement  entered  into  between  the  legal  plaintiffs 
and  the  defendant,  and  having  declared  thereupon,  are  bound 
by  its  terms.  It  was  their  duty  to  show  that  they  were  included 
within  the  debts  of  the  legal  plaintiffs  to  be  paid  by  the  defend- 
ant. Having  failed  to  do  this  they  are  not  entitled  to  recover, 
and  the  jury  should  have  been  so  instructed. 

The  judgment  is  reversed. 


Digitized  by  VjOOQ IC 


542  GRIER  v.  HOMESTEAD  BOROUGH. 

Syllabus— Statement  of  Facts.     [6  Pa.  Superior  CL 


Samuel  C.  Grier  v.  The  Borough  of  Homestead,  Appel- 
lant. 

Municipal  law — Evidence — Proof  of  ordinance — Burden  of  proof 
It  is  not  necessary  to  prove  the  preliminary  steps  taken  in  passing  and 
publishing  a  municipal  oi-dinance,  the  ordinance  book  is  prima  facie  evi- 
dence of  the  validity  of  the  ordinance,  and  if  anything  essential  to  its 
validity  has  been  omitted  in  passing  or  publishing  it,  it  devolves  upon  the 
party  resisting  it  to  show  such  invalidity. 

Practice,  Superior  Court — Defective  assignment  of  error — Rule  XVII, 
Defective  assignments  of  error  which  are  in  direct  violation  of  Rule 
XVII  of  the  Superior  Court  will  not  be  considered. 

Evidence — Road  law^Afeasure  of  damages, 

A  witness  in  a  land  damage  case  must  give  his  estimate  of  the  money 
value  of  the  injury,  by  contrasting  the  market  value  of  the  property,  as  it 
was  before  th^  injury  was  inflicted,  with  its  value  immediately  after  tlie 
injury ;  and  the  jury  should  be  instructed  that  the  difference  in  these  values 
is  the  measure  of  damage. 

Land  damage  cases— Evidence — Competency  of  witness. 
In  land  damage  cases  the  positive  requirements  for  a  competent  wit- 
ness are :  personal  knowledge  of  the  property  and  of  its  market  value  at 
the  time  it  was  taken.  In  order  that  a  witness  may  be  competent  to  tes- 
tify intelligently  as  to  the  market  value  of  the  land  he  should  have  some 
special  opportunity  for  observation ;  he  should  in  a  general  way  and  to  a 
reasonable  extent  have  in  his  mind  the  data  from  which  a  proper  estimate 
of  the  value  could  be  made. 

Appeals— Evidence— 'Effect  of  admission  of  incompetent  testimony. 

The  fact  that  sufficient  competent  testimony  was  admitted  on  the  trial 
to  sustain  the  verdict,  is  no  antidote  for  the  error  of  admitting  incompetent 
testimony,  since  an  appellate  court  cannot  determine  either  the  effect  given 
by  the  jury  to  that  which  should  not  have  been  before  them,  or  whether 
the  verdict  was  not  due  wholly  to  the  incompetent  testimony. 

Argued  April  13,  1897.  Appeal,  No.  32,  April  T.,  1897,  by 
defendant,  from  judgment  of  C.  P.  No.  3,  Allegheny  Co., 
Aug.  T.,  1895,  No.  129,  on  verdict  for  plaintiflf.  Before 
Rice,  P.  J.,  Wickham,  Beaver,  Reedeb,  Orlady,  Smith 
and  Porter,  JJ.    Revei-sed. 

Appeal  from  report  of  road  viewers. 

On  January  19,  1891,  the  borough  of  Homestead  by  ordi- 
nance established  the  grade  of  Dickson  street.     Shortly  after 


Digitized  by  VjOOQ IC 


GRIER  v.  HOMESTEAD  BOROUGH.  543 

1898.]  Statement  of  Facts — Assignment  of  Errors. 

that  time  Levi  Myers  then  the  owner  of  the  lots  in  question, 
erected  thereon  six  tenement  houses  forming  one  building. 
December  31,  1891,  the  property  was  conveyed  to  Samuel  C. 
Grier,  plaintiff  in  this  case. 

In  pursuance  of  a  subsequent  ordinance  Dickson  street  in 
front  of  the  property  in  question,  was  brought  to  a  grade  es- 
tablished by  ordinance  of  January  19,  1891.  On  petition  of 
plaintiff  viewers  were  appointed  to  assess  the  damages  and  bene- 
fits on  abutting  properties. 

On  the  trial  of  the  case  counsel  for  the  borough  of  Home- 
stead offered  in  evidence  the  ordinance  of  the  borough  of  Jan- 
uary 19,  1891,  to  show  a  formal  change  of  grade  prior  to  the 
erection  of  plaintiffs  improvements  on  the  lot  in  question. 
This  was  objected  to  because  the  ordinance  included  more  than 
one  street,  and  because  the  offer  did  not  include  proof  of  publi- 
cation by  handbills  or  newspapers  as  required  by  law.  The 
objection  was  sustained. 

The  court  admitted  under  objection  and  exception  the  testi- 
mony of  several  witnesses  as  to  values,  whose  preliminary  ex- 
amination showed  that  they  had  no  special  knowledge  on  the 
subject. 

Verdict  and  judgment  for  plaintiff  for  jil,000.  Defendant 
appealed. 

JErrors  assigned  were  (1)  Sustaining  plaintiff's  objection  to  de- 
fendant's offer  to  prove  that  the  grade  was  established  on  Dick- 
son street  on  January  19, 1891,  and  that  that  was  prior  to  the 
time  the  houses  were  erected,  the  offer,  objection  and  ruling 
being  as  follows:  "H.  J.  O'Donnell,  a  witness  for  defendant, 
being  the  borough  clerk,  and  having  identified  the  borough  ordi- 
nance book  was  interrogated  as  follows :  Mr.  Silveus:  I  wish  to 
prove  that  the  grade  was  established  on  Dickson  street  on  Janu- 
aiy  19,  1891.  I  will  prove  by  other  witnesses  that  that  was 
prior  to  the  time  that  these  houses  were  erected  and  that,  there- 
fore, the  plaintiff  is  not  entitled  to  recover  for  the  change  of 
grade  any  damages  caused  to  the  improvements  that  were  on 
the  lot.  Mr.  Dahlinger:  I  object  to  the  offer  of  this  ordinance, 
because  it  is  an  ordinance  establishing  the  grade  of  Second, 
Third,  Fourth  and  Fifth  avenues  extension  city  farm  line,  and 
Dickson  street  extension  and  Plummer  street ;  it  is  not  an  ordi- 


Digitized  by  VjOOQ IC 


544  GRIER  v,  HOMESTEAD  BOROUGH. 

Assignment  of  EiTora.  [6  Pa.  Superior  Ct. 

nance  fixing  the  grade  of  Dickson  street.  I  object  further, 
because  it  includes  the  proceedings  of  eight  streets  in  one  ordi- 
nance, and  further,  that  the  offer  docs  not  include  the  proof  of 
publication  by  handbill  and  in  the  newspapers  as  required  by- 
law. Objection  sustained.  To  which  ruling  of  the  court  coun- 
sel for  defendant  requests  an  exception.  Exception  allowed 
and  bill  sealed."  (2)  The  court  erred  in  overruling  the  objec- 
tion to  the  testimony  of  Samuel  C.  Grier,  a  witness  for  plaintiff, 
the  offer  and  ruling  being  as  follows :  "  Mr.  Dahlinger:  I  propose 
to  call  Mr.  Grier  to  corroborate  the  evidence  that  we  have  put 
in  as  to  the  damage  sustained  by  these  houses.  I  offer  to  prove 
by  Mr.  Grier  the  actual  amount  of  loss  sustained  by  the  grading 
of  this  street  to  this  property.  •  T^e  Court:  Although  he  does 
not  know  the  market  value  either  before  or  after  ?  Mr.  Dah- 
linger :  Although  he  does  not  know  the  market  value  of  prop- 
erty in  the  neighborhood  at  that  time.  The  Court :  He  has 
not  even  testified  that  he  knows  the  market  value  of  this  prop- 
erty either  before  or  after?  Mr.  Dahlinger:  He  knows  what 
he  paid  for  it.  The  Court:  The  witness  admitting  that  he 
does  not  know  the  market  value  of  propert)-  in  the  neighbor- 
hood including  the  property  about  Avhich  the  controversy  arises, 
it  is  proposed  to  ask  him  what  extent  it  was  damaged.  He  has 
already  been  permitted  to  testify  that  in  his  opinion  it  is  dam- 
aged ;  this  on  the  authority  of  Dawson's  Appeal.  We  are  not 
certain  whether  the  ruling  as  to  Mawhinney's  testimony  on 
Dawson's  Appeal  goes  to  the  extent  in  a  case  of  this  sort  of 
permitting  the  witness  to  fix  figures  when  he  admits  that  he 
does  not  know  the  market  value  either  before  or  after ;  but  we 
will  err,  if  at  all,  on  the  side  of  liberality  in  admitting  the  testi- 
mony, and  on  the  authority  of  the  ruling  with  respect  to  Maw- 
hinney  in  Dawson's  Appeal  overrule  the  objection  and  seal  a 
bill  for  the  defendant.  Mr.  Dahlinger :  Now,  Mr.  Grier,  state 
in  your  opinion  the  difference  before  and  after  the  grading  of 
this  street  as  to  this  property."  (3)  In  admitting  the  testimony 
of  Robert  J.  Coyle,  a  witness  for  plaintiff,  the  questions,  objec- 
tions and  ruling  being  as  follows :  "  The  Court :  Q.  Do  you 
know  anything  about  the  value  of  property  in  that  neighborhood? 
A.  I  don't  know  the  value  per  foot  of  the  ground.  Q.  You 
persist  in  not  answering  the  question  that  is  asked?  A.  I  can't 
answer  it  because  I  don't  know  the  value  of  the  ground  right 


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GRIER  V.  HOMESTEAD  BOROUGH.  545 

1898.]  Assignment  of  Erix>r8. 

there.  Mr.  Dahlinger :  Q.  Do  you  know  the  value  of  property 
in  that  immediate  neighborhood  in  a  general  way  ?  A.  In  a 
general  way  I  could,  but  if  you  would  ask  me  point  blank  what 
those  two  lots  are  worth  I  could  not  tell  you.  Q.  Well,  just 
answer  that  question.  A.  Well,  in  a  general  way,  I  would 
know  the  value,  yes,  sir.  Mr.  Silveus :  Q.  How  do  you  get 
that  knowledge  ?  A.  Why  from  the  general  knowledge  of  the 
real  estate  business.  Defendant  renews  the  objection  that  the 
witness  is  not  qualified  to  testify  as  an  expert  in  a  case  of  this 
kind.  Q.  I  will  ask  you  now  Mr.  Coyle  if  in  j'-our  opinion  that 
property  is  benefited  or  damaged  by  the  grading  of  Dickson 
street?  A.  I  think  it  was  damaged.  Q.  To  what  extent? 
Objected  to.  Q.  I  will  change  the  form  of  the  question,  what 
is  the  difference,  in  your  opinion,  between  the  value  of  the  prop- 
erty before  and  after  the  grading?  Objected  to.  Objection 
overruled.  To  which  ruling  of  the  court  counsel  for  defendant 
i*equests  an  exception.  Exception  allowed  and  bill  sealed." 
(4)  In  admitting  the  testimony  of  John  G.  Hastings,  a  witness 
for  plaintiff,  the  questions,  objections  and  ruling  being  as  fol- 
lows :  "  Q.  What  in  your  opinion  was  the  difference  between 
the  market  value  before  and  after  the  grading  ?  Objected  to. 
Cross-examined  by  defendant:  Q.  Did  you  ever  deal  in  real 
estate  at  all?  A.  No,  sir.  Q.  Do  you  know  anything  at  all 
about  the  value  of  real  estate  in  Homestead?  A.  No,  sir. 
Q.  And  the  only  thing  you  do  know  is  by  observing  on  this 
street  since  the  grading  was  done,  how  much  it  is  cut  down  in 
front  ?  A.  In  regard  to  these  houses,  yes,  sir,  I  went  up  for  that 
purpose.  Defendant  renews  the  objection  to  the  witness  answer- 
ing the  question  that  was  asked  him.  The  Court:  I  make  the 
same  ruling  as  in  the  case  of  the  last  witness.  The  ruling  as 
to  the  Mawhinney  testimony  may  have  broad  enough  meaning 
to  cover  this.  The  objection  is  overruled  and  a  bill  sealed  for 
the  defendant."  (5)  In  overruling  defendant's  objection  to  the 
testimony  of  John  G.  Hastings,  a  witness  for  plaintiff,  the  ques- 
tions, objection  and  ruling  being  as  follows :  "  Do  you  mean  it 
was  worth  less  or  more  ?  A.  It  was  worth  '$1,500  less.  Q.  Now, 
how  do  you  arrive  at  that?  A.  Why  I  went  up  there  and  esti- 
mated, looked  over  the  buildings  and  received  a  bid  for  the 
lowering  of  the  house.  Objected  to  as  heresay.  Q.  Did  you 
make  an  estimate  yourself?  A.  I  gave  Mr.  Grier  an  estimate 
Vol.  VI— 85 


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546  GRIER  v.  HOMESTEAD  BOROUGH. 

Assignment  of  EiTors— Arguments.     [6  Pa.  Superior  Ct 

of  what  would  put  that  property  in  the  same  condition  it  was 
before  lowering  it  down  to  the  grade  of  the  street,  the  same  as 
it  was  before  the  street  was  graded.  I  gave  Mr.  Grier  an  esti- 
mate of  between  $1,500  and  *1,600.  Q.  Well,  have  you  that 
estimate?  A.  I  have  a  memorandum  of  it,  I  just  figured  it  up 
at  the  time.  Q.  State  what  the  items  are?  A.  12  cellar 
frames  sash  $48.00.  That  would  necessitate  putting  in  new 
cellar  frame  there.  We  would  have  to  tear  the  whole  YfdXl  out. 
Objected  to.  Objection  overruled.  To  which  ruling  of  the 
court  counsel  for  defendant  requested  an  exception.  Excep- 
tion allowed  and  bill  sealed." 

John  F.  Cox^  with  him  J.  (?•  Silveus^  for  appellant. — The  man- 
ner of  proving  records  of  boroughs  in  this  state  is  regulated  by 
statute.    See  Act  of  April  1, 1834,  P.  L.  163. 

A  municipal  corporation  is  not  required  to  prove  every  ante- 
cedent act  requisite  to  the  legal  passage  of  an  ordinance :  Becker 
V.  Washington,  7  S.  W.  Rep.  291.  To  like  effect  see  Town  of 
Tipton  V.  Norman,  72  Mo.  380 ;  Lindsay  v.  Chicago,  115  111. 
120. 

In  order  that  a  witness  may  be  competent  to  testify  intelli- 
gently to  the  market  value  of  land  he  should  have  some  special 
opportunity  for  observation  ;  he  should  in  a  general  way  have 
in  his  mind  data  from  which  a  proper  estimate  of  value  ought 
to  be  made:  Railway  Co.  v.  Vance,  116  Pa.  825.  See  also 
Chambers  v.  South  Chester  Borough,  140  Pa.  510 ;  Phila.  & 
Del.  County  R.  R.  Co.,  174  Pa.  291. 

The  testimony  given  by  Coyle  was  a  mere  opinion,  and  the 
same  rule  would  apply  as  already  laid  down  by  Mr.  Justice 
Clark  in  Railway  Co.  v.  McCloskey,  110  Pa.  436. 

These  questions  seem,  however,  to  have  been  settled  by  the 
decision  of  this  court  in  Orr  v.  Gas  Co.,  2  Pa.  Superior  Ct.  401. 

Chas.  W.  Dahlinffer,  for  appellee. — The  text  books  and  deci- 
sions are  unanimous  in  holding  that  "when  ordinances  are  re- 
quired to  be  published  before  they  go  into  effect,  this  requirement 
is  essential,  and  the  publication  must  be  in  the  designated  mode : " 
Dillon  on  Municipal  Corporations,  sec.  331 ;  17  Am.  &  Eng. 
Ency.  of  Law,  262 ;  4  Wait's  Actions  and  Defenses,  page  610. 
See  also  Taylor  Avenue,  146  Pa.  638. 


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GRIER  V.  HOMESTEAD  BOROUGH.  547 

1898.]  Argutuents — Opinion  of  the  Coui*t. 

There  is  no  presumption  in  favor  of  the  legality  ol  municipal 
ordinances :  Altoona  v.  Bowman,  171  Pa.  307. 

The  other  four  assignments  of  error  relating  to  the  admission 
of  evidence  of  Samuel  C.  Grier  and  others  are  not  properly  as- 
signed in  that  they  do  not  show  the  testimony  adduced.  These 
errors  are  evidently  intended  to  be  assigned  under  Rule  XVI L 
of  the  Superior  Court,  and  in  no  case  is  the  answer  of  the  wit- 
ness given  to  whose  testimony  objection  was  made.  This  point 
is  no  longer  in  doubt,  and  the  assignments  cannot  be  regarded : 
Com.  V.  Smith,  2  Pa.  Superior  Ct.  474;  Battles  v.  Sliney,  126 
Pa.  460. 

Opinion  by  Orlady,  J.,  February  19, 1898: 
Under  proceedings  instituted  by  the  borough,  the  plaintiff 
recovered  a  verdict  of  $1,000,  as  damages  sustained  in  chang- 
ing the  grade  of  Dickson  street.  On  the  trial  below  it  was 
urged  in  defense  to  the  claim  for  damages,  that  the  grade  had 
been  established  by  an  ordinance  at  a  time  prior  to  the  erection 
of  the  buildings  on  the  lots  of  the  plaintiff,  and  in  support  of 
this  contention,  the  borough  clerk  was  called  by  the  defendant 
and  produced  the  ordinance  book  of  the  borough.  The  ordi- 
nance of  January  19,  1891,  on  which  the  defendant  relied  wa« 
offered  in  evidence,  and  to  this  the  plaintiff  objected.  "  I  ob- 
ject to  the  offer  of  this  ordinance,  because  it  is  an  ordinance 
establishing  the  grade  of  second,  third,  fourth  and  fifth  avenues 
extension  city  farm  line,  and  Dixon  street  extension  and  Plum- 
mer  street ;  it  is  not  an  ordinance  fixing  the  grade  of  Dixon 
street.  I  object  further,  because  it  includes  the  proceedings  of 
eight  streets  in  one  ordinance ;  and  further,  that  the  offer  does 
not  include  the  proof  of  publication  by  hand  bill  and  in  news- 
papers as  required  by  law."  The  objection  was  sustained,  (1st 
assignment)  but  as  the  ordinance  is  not  on  the  record  sent  to 
this  court  we  only  dispose  of  that  part  of  the  assignment  which 
suggests  the  necessity  of  proof  of  publication  of  the  ordinance, 
by  handbills  and  in  the  newspapers,  before  receiving  it  in  evi- 
dence. 

By  the  Act  of  April  3, 1851,  P.  L.  820,  sec.  8,  par.  IV.,  it  is 
made  a  corporate  duty  "  to  publish  in  at  least  one  newspaper 
if  such  be  printed  in  the  proper  county,  and  by  not  less  than 
twelve  advertisements  to  be  put  up  in  the  most  public  places  in 


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548  GRIER  v.  HOMESTEAD  BOROUGH. 

Opinion  of  the  Court.  [6  Pa.  Superior  Ct. 

the  borough,  every  enactment,  regulation,  ordinance  or  other 
general  law  at  least  ten  days  before  the  same  shall  take  effect ;" 
and  by  the  preceding  paragraph  "  to  make  full  records  of  their 
proceedings  and  to  provide  for  the  preservation  thereof." 

By  the  eighth  section  of  the  act  the  secretary  is  required  "  to 
attend  all  the  meetings  of  the  corporation,  keep  full  minutes  of 
their  proceedings,  transcribe  the  by-laws,  rules,  regulations  and 
ordinances  adopted  into  a  book  kept  for  the  purpose  ;  and  when 
signed  by  the  presiding  officer  shall  attest  the  same,  preserve 
the  records  and  documents  of  the  corporation  ....  record  the 
publication  of  all  enactments  and  attest  the  same  by  his  signa- 
ture thereto."  The  offer  as  made,  was  unaccompanied  by  proof 
of  publication,  and  though  the  ordinance  was  not  operative 
until  the  terms  of  the  act  of  assembly  had  been  complied  with, 
the  only  question  raised  by  this  assignment  is,  can  the  ordi- 
nance be  received  in  evidence  without  the  fact  of  publication 
being  first  affirmatively  shown  ? 

By  the  Act  of  April  15,  1834,  P.  L.  537,  it  is  made  the  duty 
of  the  town  clerk  "  to  provide  a  suitable  book  or  books,  for  the 
purpose  of  entering  therein  all  matters  of  which  he  shall  by  law 
be  required  to  keep  a  record  "  and  by  section  9  of  the  act  of 
1861  these  duties  devolve  upon  the  secretary  of  the  borough 
council.  When  ordinances  are  required  to  be  published  before 
they  go  into  effect,  this  requu'ement  is  essential,  and  the  publi- 
cation must  be  in  the  designated  mode :  Dillon  on  Mun.  Corp. 
sec.  331. 

The  posting  by  advertisements  and  publications  in  a  news- 
paper are  as  essential  to  the  validity  of  an  ordinance  as  are  the 
other  statutory  requisites :  Sower  v.  Phila.,  35  Pa.  231 ;  Kep- 
ner  v.  Com.,  40  Pa.  124 ;  Marshall  v.  Mayor,  59  Pa.  465;  Ful- 
ler V.  Scranton,  2  Cent.  Repr.  788. 

The  ordinance  book  is  required  to  be  kept,  by  the  express 
direction  of  the  statute,  and  the  memorial  made  in  compliance 
with  the  statute  is  a  public  record,  and  when  the  projier  person 
presents  the  proper  record  in  which  the  ordinance  is  identified 
and  attested,  it  is  prima  facie  correct  and  entitled  to  be  read  in 
evidence :  Wharton  on  Evidence,  sec.  644 ;  Thompson  v.  Chase, 
2  Grant  Cases,  367. 

The  records  of  a  school  board  though  not  required  by  law  to 
be  kept  are  admissible,  and  when  defective  are  explainable  by 
parol  evidence :  Gearhart  v.  Dixon,  1  Pa.  224. 


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GRIER  V.  HOMESTEAD  BOROUGH.  549 

1898.]  Opinion  of  the  Court. 

It  was  not  necessary  to  prove  the  preliminary  steps  taken  in 
passing  and  publishing  the  ordinance,  as  it  is  well  held  that  the 
ordinance  book  is  prima  facie  evidence  of  the  validity  of  the  ordi- 
nance, and  if  anything  essential  to  its  validity  has  been  omitted 
in  passing  or  publishing  it,  it  devolves  upon  the  party  resisting 
it  to  show  such  invalidity :  Prell  v.  McDonald,  7  Kan.  426, 
8-  c.  12  Am.  Reps.  428;  City  of  Atchison  v.  King,  9  Kan.  650. 

To  hold  otherwise,  would  make  it  necessary  to  prove  that 
the  advertisements  were  of  the  statutory  number,  or  that  the 
posting  places  were  the  most  public  in  the  borough ;  but  while 
admissible  as  an  ordinance,  it  is  subject  to  attack,  and  proof 
may  be  adduced  to  show  that  it  was  not  legally  published  and 
posted,  and  hence  was  inoperative. 

The  first  assigimient  of  error  is  sustained.  The  second  and 
third  assignments  are  not  considered,  as  they  are  in  direct  viola- 
tion of  Rule  17  of  this  court ;  the  answer  of  the  witness  not 
being  given,  we  repeat  what  was  said  in  Commonwealth  v.  Smith, 
2  Pa.  Superior  Ct.,  474,  "  The  reasons  for  this  rule  and  the 
importance  of  it  are  so  clearly  shown  in  Battles  v.  Sliney,  126 
Pa.  460,  that  we  need  only  to  refer  to  that  case."  Tlie  fourth 
and  fifth  assignments  are  considered  together.  A  witness, 
John  G.  Hastings,  a  contractor,  when  questioned  as  to  the  amount 
of  damages  to  which  the  plaintiff  was  entitled,  testified  as  fol« 
lows  2  "Q.  Do  you  know  anything  at  all  about  the  value  of  this 
real  estate  in  Homestead  ?  A.  No,  sir.  Q.  And  the  only  thing 
you  do  know  is  by  observing  on  this  street  since  the  grading 
was  done  how  much  it  was  cut  down  ?  A.  In  regard  to  the 
house,  I  went  up  for  that  purpose." 

From  his  evidence,  it  appears  that  he  had  no  knowledge  of 
the  condition  of  the  property  before  the  grade  of  the  street  was 
changed,  nor  did  he  have  any  knowledge  of  the  value  of  real 
estate  in  the  borough ;  but  as  a  contractor,  he  simply  visited  the 
premises  after  the  changes  had  been  made  and  estimated  the  cost 
necessary  to  lower  the  house  and  make  it  conform  to  the  new 
grade.  He  was  not  called  as  an  expert,  and  if  his  testimony  had 
been  confined  to  the  facts  of  which  he  had  knowledge,  it  would 
have  been  competent,  but  he  knew  nothing  of  the  conditions 
existing  before  the  grade  was  changed,  and  could  not  testify  as 
to  the  damage  resulting  from  a  change  of  which  he  admitted 
he  did  not  have  any  knowledge. 

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550  GRIER  V.  HOMKSTKAD  BOROUGH. 

Opinion  of  the  Couit.  [6  Pii.  Superior  Ct. 

The  testimony  wa3  i^eceived  under  authority  of  Dawson  v. 
Pittsburgh,  159  Pa.  817,  but  we  do  not  think  the  evidence  com- 
petent under  that  case. 

Experience  has  constantly  demonstrated  the  correctness  of 
the  old  rule  established  in  the  case  of  Schuylkill  Nav.  Co.  v. 
Thobum,  7  S.  &  R.  411,  to  wit,  the  jury  are  to  consider  the 
matter  just  as  if  they  were  called  on  to  value  the  injury  at  the 
moment  when  compensation  could  be  first  demanded ;  they  are 
to  value  the  property,  without  reference  to  the  person  of  the 
owner,  or  the  actual  state  of  his  business,  and  in  doing  that,  the 
only  safe  rule  is  to  inquire :  What  would  the  property,  unaf- 
fected by  the  obstruction,  have  sold  for  at  the  time  the  injury 
was  committed  ?  What  would  it  have  sold  for  as  affected  by 
the  injury?  The  difference  is  "the  true  measure  of  compensa- 
tion "  is  the  language  of  the  Supreme  Court  in  Chambers  v. 
South  Chester  Borough,  140  Pa.  510,  and  in  determining  the  duty 
of  the  jury.  The  same  case  is  as  definite  authority  for  the 
measure  of  proof  and  qualification  of  a  witness,  in  the  following 
concise  direction :  "  More  and  more  closely,  in  recent  years,  we 
have  held  parties  to  the  rule  that,  after  all  things  are  consid- 
ered which  may  affect  the  mind  of  the  witness  he  must  give 
his  estimate  of  the  money  value  of  the  injury,  by  contrasting 
the  market  value  of  the  property,  as  it  was  before  the  injury 
was  inflicted,  with  its  value  immediately  after  the  injury ;  and 
the  jury  is  instructed  that  the  difference  of  these  values  is  the 
measure  of  damage." 

This  plain  and  just  rule  is  the  result  of  many  preceding  cases 
noted  in  that  decision,  and  it  has  been  followed  without  modifi- 
cation. In  P.  V.  &  C.  Ry.  Co.  v.  Vance,  115  Pa.  325,  it  is 
said :  "  In  order,  therefore,  that  a  witness  may  be  competent  to 
testify  intelligently  as  to  the  market  value  of  land,  he  should 
have  some  special  opportunity  for  observation ;  he  should,  in  a 
general  way,  and  to  a  reasonable  extent,  have  in  his  mind  the 
data  from  which  a  proper  estimate  of  value  ought  to  be  made ; 
if  interrogated,  he  should  be  able  to  disclose  sufficient  actual 
knowledge  of  the  subject  to  indicate  that  he  is  in  a  condition 
to  know  what  he  proposes  to  state,  and  to  enable  the  jury  to 
judge  of  the  probable  proximate  accui^acy  of  his  conclusions ; " 
which  test  of  competency  is  held  to  be  vital  in  Michael  v.  Cres- 
cent Pipe  Line  Co.,  159  Pa.  99.    He  cannot  intelligently  tes- 


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GRIER  r.  HOMESTEAD  BOROUGH.  551 

1898.]  Opinion  of  the  Court. 

tify  without  such  knowledge ;  its  possession  is  a  necessary 
element  in  the  value  of  such  testimony,  but  cannot  be  assumed ; 
the  court  cannot  pass  on  the  question  of  competency  until  it  is 
made  to  appear.  Hence  the  possession  and  sufficiency  of  such 
knowledge  should  be  made  to  appear  and  be  passed  upon  by  the 
court  before  the  witness  should  be  permitted  to  express  any 
opinion.  The  basic  requirements  are  personal  knowledge  of 
the  property  and  of  its  value  at  the  time  it  is  taken :  Orr  v. 
Gas  Co.,  2  Pa.  Superior  Ct.  401.  While  these  rules  have  been 
varied  in  instances  of  limited  or  special  knowledge  of  particular, 
pi-operty,  the  Supreme  Court  has  held  that  it  is  safest  rigidly  to 
adhere  to  the  principles  announced  in  the  cases  cited,  this  being 
the  only  fair  and  safe  way  to  ascertain  the  actual  damage  sus- 
tained. 

The  witness,  Hastings,  did  not  pretend  to  have  any  knowl- 
edge of  the  property ;  any  idea  of  its  market  value ;  the  uses  to 
which  it  was  put;  its  extent  or  character;  its  surroundings  or 
advantages  before  the  change  was  made ;  and  he  could  not  aid 
the  jury  in  the  least  by  his  estimate  of  the  damages  the  plaintiff 
sustained,  by  giving  his  opinion  "  of  the  difference  between  the 
market  value  before  and  after  the  grade." 

A  stranger  from  a  distant  state,  who  saw  the  property,  for 
the  first  time  on  the  day  of  trial,  could  testify  to  the  same  facts. 
A  verdict  to  be  respected  must  have  a  firmer  foundation. 

The  fact  that  sufficient  competent  testimony  was  admitted 
on  the  trial  to  sustain  the  verdict,  is  no  antidote  for  the  error  of 
admitting  incompetent  testimony,  since  an  appellate  court  can- 
not determine  either  the  effect  given  by  the  jury  to  that  which 
should  not  have  been  before  them,  or  whether  the  verdict  was 
not  due  wholly  to  the  incompetent  testimony. 

The  first,  fourth  and  fifth  assignments  of  error  are  sustained, 
the  judgment  is  reversed,  and  a  venire  facias  de  novo  awarded. 


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652  ROSS  V.  HUDSON. 

Syllabus — Assignment  of  Error.       [6  Pa.  Saperior  Ct. 

John  W.  Ross  v.  Thompson  Hudson,  Appellant. 

Illegal  arrest — Liability  of  Justice  of  peace — Jet  of  March  21,  1772. 

A  justice  of  the  peace  who  illegally  orders  or  causes  the  arrest  of  a  citi* 
zen  may  be  made  liable  in  an  action  for  damages ;  but  to  be  so  held  liable 
the  statute  requires  the  preliminary  notice  to  be  given,  so  that  proper 
amends  may  be  made  and  expensive  litigation  avoided. 

Wherever  a  magistrate  has  acted  honestly,  although  mistakenly,  where 
he  supposed  he  was  in  the  execution  of  his  duty,  although  he  had  no  au- 
thority to  act,  he  is  entitled  to  the  protection  of  the  Act  of  March  21,  1772, 
1  Smith's  Laws,  864. 

Argued  Nov.  17,  1897.  Appeal,  No.  63,  Oct.  T.,  1897,  by 
defendant,  from  judgement  of  C.  P.  Chester  Co.,  Aug.  T.,  1896, 
No.  79,  on  verdict  for  plaintiff.  Before  Rice,  P.  J.,  Wickham, 
Beaver,  Orlady,  Smith  and  Porter,  JJ.    Reversed. 

Trespass  for  the  unlawful  issuing  by  the  defendant,  a  justice 
of  the  peace,  of  a  warrant  for  the  arrest  of  the  plaintiff  and  pro- 
curing his  arrest  and  retention  for  nonpayment  of  tax.  Before 
Waddell,  p.  J. 

The  fju5ts  sufficiently  appear  in  the  opinion  of  the  court. 

Verdict  and  judgment  for  plabitiff  for  $100.  Defendant 
appealed. 

JError  aaaiffned  among  others  was  in  the  answer  to  and  disaf- 
firmance  of  defendant's  first  point,  which  point  and  answer  are 
as  follows :  "  The  plaintiff  having  failed  to  show  thirty  days' 
notice  of  plain tifTs  intention  to  sue,  given  to  the  defendant 
(who  is  a  justice  of  the  peace)  by  said  plaintiff,  pursuant  to  the 
provisions  of  the  act  of  assembly  of  March  21, 1772,  the  plain- 
tiff cannot  recover  in  this  action,  and  your  verdict  must  be  for 
the  defendant.  Answer :  I  must  refuse  to  affirm  that  point  I 
recognize  that  the  act  of  assembly  makes  provision  that  a  justice 
of  the  peace  shall  have  thirty  days'  notice  of  an  intention  to 
bring  an  action  against  him  for  violation  of  his  duties  in  office, 
and  if  the  plaintiff  does  not  do  so,  that  he  cannot  sustain  his 
action.  But  that  depends  upon  the  character  of  the  action.  If 
the  justice  was  acting  within  his  jurisdiction,  within  the  powers 


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ROSS  V.  HUDSON.  553 

1898.]  Assignment  of  Errors^Opinion  of  the  Court. 

of  his  office,  then  he  is  entitled  to  have  thirty  da3rs*  notice,  so 
that  he  may  make  any  amends  which  he  may  think  the  case  war* 
rants.  But  when  he  is  acting  without  any  jurisdiction,  simply 
imder  color  of  his  office  because  he  is  a  justice,  then  he  is  not 
entitled  to  any  such  notice.  In  my  judgment  the  case  depends 
upon  that  question,  and  I  cannot  therefore  affirm  that  point.  I 
must  refuse  it." 

Cha%.  JST.  Pennypacker^  for  appellant. — It  may  be  laid  down  as 
a  general  rule,  that  wherever  an  officer  has  acted  honestly,  al- 
though mistakenly,  where  he  supposed  he  was  in  the  execution 
of  his  duty,  although  he  had  no  authority  to  act,  he  is  entitled 
to  the  protection  of  the  act  of  assembly :  Booth  v.  Clive,  10 
C.  B.  827 ;  Jones  v.  Hughes,  5  S.  &  R.  299 ;  Hubert  v.  Mitchell, 
Dist  Ct.  of  Phila.  March  19, 1849. 

Qeorge  B,  Johnson^  with  him  J".  Frank  E.  Hause^  for  appellee. 
— Where  the  act  committed  by  the  justice  is  entirely  foreign  to 
his  jurisdiction,  nothing  can  give  it  official  color:  Jones  v. 
Hughes,  5  S.  &  R.  299. 

Before  a  justice  is  entitled  to  the  notice  provided  by  the  act 
of  1772,  he  must  be  clothed  with  official  power  to  do  the  act  offi- 
cially, so  that  he  is  authorized  to  judge  and  decide  whether  the 
offense  charged  has  been  committed,  or  whether  the  thing  done 
is  punishable  or  within  his  cognizance :  Johnson  v.  Thompkins, 

1  Baldwin,  671,  602. 

If  a  court  acts  without  jurisdiction  its  judgments  are  nulli- 
ties ;  they  are  not  voidable  but  void,  and  not  one  of  the  essen- 
tials to  jurisdiction  existed  in  the  case  at  bar :  Wise  v.  Wills, 

2  R.  208;  Grohmann  v.  Kirschman,  86  W.  N.  C.  389. 

Opinion  by  Orlady,  J.,  February  19,  1898 : 
The  defendant,  a  duly  commissioned  and  acting  justice  of  the 
peace,  on  complaint  in  writing  of  a  collector  of  taxes,  issued  a 
warrant  authorizing  a  constable  named  therein  to  levy 'the 
amount  of  a  tax  assessed  against  the  plaintiff  the  language  of 
the  writ  being  as  follows :  "  in  case  goods  and  chattels  sufficient 
to  satisfy  the  said  tax  with  costs  cannot  be  found,  you  are  hereby 
authorized  to  take  the  body  of  the  said  J.  W.  Ross  and  convey 
him  to  the  jail  of  the  proper  county,  there  to  remain  until  the 


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654  ROSS  V.  HUDSON. 

Opinion  of  the  Court.  [6  Pa.  Superior  Ct 

amount  of  said  tax  with  costs  shall  be  paid  or  secured  to  be 
paid,  or  until  he  be  otherwise  discharged  by  due  course  of  law." 
The  plaintiff  neglected  or  refused  to  make  payment  of  the  tax, 
and  under  the  authority  of  the  warrant  issued  by  the  defendant 
the  plaintiff  was  taken  into  custody,  but  before  being  committed 
to  prison  he  was  discharged  under  habeas  corpiis  proceedings. 
This  action  is  brought  to  recover  damages  for  the  wrongful  arrest. 

It  was  clearly  proved  that  the  taxes  claimed  were  due  by  the 
plaintiff  as  school  taxes,  and  it  is  admitted  that  the  proceeding 
to  enforce  the  payment  by  the  arrest  of  the  delinquent  was  un- 
authorized by  any  statute  providing  for  the  collection  of  school 
taxes. 

The  defendant's  first  point  raised  the  principal  question  in 
the  case.  "  The  plaintiff  having  failed  to  show  thirty  days'  no- 
tice of  plaintiff's  intention  to  sue  given  to  the  defendant  (who 
is  a  justice  of  the  peace)  by  said  plaintiff,  pursuant  to  the  pro- 
visions of  the  act  of  assembly  of  March  21,  1772,  the  plaintiff 
cannot  recover  in  this  action,  and  your  verdict  must  be  for  the 
defendant." 

The  learned  trial  judge  refused  to  affirm  the  point,  and  held 
that  "  If  the  justice  was  acting  within  his  jurisdiction,  within 
the  powere  of  his  office,  then  he  is  entitled  to  have  thirty  days' 
notice  so  that  he  may  make  any  amends  which  he  may  think  the 
ca^ie  warrants ;  but  when  he  is  acting  without  any  jurisdiction, 
simply  under  color  of  his  office  because  he  is  a  justice,  then  he 
is  not  entitled  to  any  such  notice." 

This  statute  has  received  practically  the  same  construction 
here  as  similar  ones  in  England,  and  as  held  in  Jones  v.  Hughes, 
5  S.  &  R.  299.  "  It  may  be  laid  down  as  a  general  rule,  that 
wherever  the  officer  has  acted  honestly,  although  mistakenly; 
where  he  supposed  he  was  in  the  execution  of  his  duty,  although 
he  had  no  authority  to  act,  he  is  entitled  to  the  protection  of 
the  act  of  assembly. 

"  The  having  of  jurisdiction  is  not  the  criterion ;  for  if  one 
magistrate  were  to  act  in  a  case  in  which  jurisdiction  is  expressly 
committed  to  two,  he  would  still  be  entitled  to  notice."  And 
m  Prior  v.  Craig,  5  S.  &  R.  44 :  "  The  act  of  1772  is  a  remedial 
law,  general  in  its  provisions ;  it  is  beneficial,  and  therefore,  not 
to  be  restrained,  but  by  express  words  or  strong  and  necessary 
implication.    It  was  intended  for  all  cases  where  a  justice  of 


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ROSS  V.  HUDSON.  555 

1898.]  Opinion  of  tlie  Couit. 

the  peace  acting  within  liis  jurisdiction  rendered  himself  amen 
able  for  the  wrong ;  and  although  the  policy  of  the  act  may 
have  been  to  secure  in  some  measure  the  officer  bound  to  act, 
and  therefore  in  danger  of  doing  wrong,  from  the  legal  conse- 
quences of  unintentional  error ;  yet  as  it  is  in  many  instances, 
impossible  to  distinguish  errors  of  the  head  from  those  of  the 
heart,  its  provisions  must  of  necessity  be  extended  to  every  case 
of  official  misconduct  made  the  subject  of  an  action." 

The  complicated  system  of  securing  the  payment  of  taxes, 
and  the  distinctions  in  the  means  employed  to  enforce  payment 
of  township  and  school  taxes,  though  the  teiTitory,  person  and 
property  may  be  identical  for  each  object,  furnishes  ample  room 
for  a  mistake  by  a  person  unlearned  in  the  law. 

The  conflicting  arguments  as  to  jurisdiction,  and  want  of 
jurisdiction  in  the  justice's  court  are  much  too  complicated  to 
hold  the  officer  individually  responsible  for  a  bona  fide  mistake 
of  legal  judgement. 

The  words  "  in  the  execution  of  his  office  "  cannot  be  held  to 
mean  absolute  certainty  of  jurisdiction,  as  that  would  preclude 
possibility  of  error,  and  the  officer  would  not  then  require  pro- 
tection. The  words  must  be  qualified  by  the  decisions ;  and 
then  the  meaning  will  be,  that  a  party  to  be  entitled  to  the  .pro- 
tection of  a  notice  must  bona  fide  and  reasonably  believe  him- 
self to  be  authorized  by  the  act. 

The  evidence  clearly  shows  the  justice  to  have  acted  in  the 
mistaken  belief  that  he  was  following  the  strict  letter  of  a  stat- 
ute, and  to  have  erred  only  because  he  failed  to  legally  distinguisli 
between  the  means  to  be  employed  in  the  collection  of  township 
or  school  taxes.  If  the  defendant  acted  in  honest  ignorance,  or 
in  an  honest  belief  that  he  was  acting  by  reason  of  his  office  as 
justice  of  the  peace  in  putting  the  law  in  motion,  he  was  entitled 
to  the  notice  required  by  the  act  of  1772.  The  answer  of  the 
learned  trial  judge  to  the  defendant's  tliird  point  imposed  a 
higher  standard  of  duty  on  the  justice  of  the  peace  than  is  re- 
quired by  the  law. 

The  English  cases  are  uniform  on  this  subject:  Booth  v.  Clive, 
10  C.  B.  R.  827 ;  Arnold  v.  Hamel,  9  Exch.  404 ;  Heath  v. 
Brewer,  15  C.  B.  R.  (N.  S.)  803 ;  and  the  deysisions  of  our 
courts  are  in  accord  with  them :  Jones  v.  Hughes,  supra ; 
Wise  V.  Wills,  2  Rawle,  208.    A  justice  of  the  peace  who  ille- 


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556  ROSS  V.  HUDSON, 

Opinion  of  the  Court.  [6  Pn.  Superior  Ct 

gaily  orders  or  causes  the  arrest  of  a  citizen  raay  be  made  liable 
in  an  action  for  damages :  McCarthy  v.  DeArmit,  99  Pa.  63 ; 
Neall  V.  Hart,  115  Pa.  347 ;  but  to  be  so  held  liable  the  statute 
requires  the  preliminary  notice  to  be  given  so  that  proper 
amends  may  be  made  and  expensive  litigation  avoided. 

The  first  assignment  of  error  is  sustained,  the  judgment  is 
reversed. 


Levi  M.  Pollock,  Agent  of  R.  H.  Pollock,  v.  Joseph  K. 
Ingram,  Appellant. 

Public  officers— Constable^  8  liabilUy  for  false  return — Act  of  1772. 

Where  a  constable,  after  be  hacl  a  sufficient  levy  and  had  accepted  a  suf- 
ficient bond  of  indemnity,  abandons  his  lex'y  and  returas  his  wiit,  he  is 
neither  justified  by  his  writ  nor  protected  by  the  Act  of  March  21,  1772, 
1  Sm.  L.  364.  The  object  of  the  sixth  section  of  the  act  of  1772  was  to 
protect  constables  and  inferior  officers  from  suffering  injuiy  for  acts  done 
strictly  in  obedience  to  their  wairants,  by  reason  of  iiTegularity  or  for  want 
of  jurisdiction  in  the  magistrate. 

Argued  Nov.  18,  1897.  Appeal,  No.  76,  Oct.  T,,  1897,  by 
defendant,  from  judgment  of  C.  P.  Chester  Co.,  Aug.  T.,  1896, 
No.  46,  on  verdict  for  plaintiff.  Before  Rice,  P.  J.,  Wickham, 
Beavbb,  Oblady,  Smith  and  Porteb,  J  J.    AflSrmed. 

Appeal  from  judgment  of  a  justice  of  the  peace.  Before 
Hemphill,  J. 

It  appears  from  the  record  that  this  was  an  action  in  assump- 
sit against  Joseph  K.  Ingram,  a  constable  under  the  Act  of 
March  20, 1810,  5  Sm.  L.  161,  to  recover  for  a  false  return  to 
an  execution  placed  in  his  hands. 

Verdict  and  judgment  for  plaintiff  for  $85.53.  Defendant 
appealed. 

Urrors  assigned  were  (1)  In  admitting  in  evidence  the  exe- 
cution i8sued%by  the  justice,  together  with  the  parol  statements 
of  the  justice  as  to  the  proceedings  before  him  and  by  him,  and 
refusing  to  require  the  production  of  the  justice's  docket.     (2)  In 


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POLLOCK  V.  INGRAM.  557 

1898.]  Assignment  of  Errors. 

admitting  the  original  execution  issued  by  the  justice  in  favor 
of  Levi  Pollock,  Agent,  v.  William  Ross  Cameron  on  the  $78.72 
judgment,  together  with  the  several  indorsements  on  the  paper, 
because  it  was  not  a  record  or  any  part  of  the  record  of  the  jus- 
tice's court.  (3)  In  refusing  to  admit  evidence  to  show  that 
the  defendant  constable  was  not  the  nearest  constable  to  the 
justice,  nor  the  one  most  convenient  to  the  justice,  nor  the  con- 
stable of  the  township  in  which  the  justice  exercised  his  official 
functions.  (4)  In  i^efusing  to  permit  the  defendant  constable 
to  testify  concerning  the  declaration  of  Justice  Campbell  when 
he  gave  him  the  execution.  (6)  In  refusing  to  permit  the  de- 
fendant constable  to  testify  as  to  any  parol  instructions  given 
to  him  by  the  justice  when  he  handed  him  the  execution.  (6)  In 
refusing  to  permit  the  defendant  constable  to  testify  concerning 
the  directions  given  him  by  the  plaintiff  about  the  removal  of 
defendant's  personal  property  from  the  farm  occupied  by  de- 
fendant. (7)  In  rejecting  evidence  of  the  assessed  valuation 
of  the  real  estate  of  Samuel  A.  Grayson,  one  of  the  sureties 
upon  the  bond  tendered  to  the  defendant  constable.  (8)  In 
rejecthig  evidence  to  show  that  W.  Ross  Cameron,  the  defend- 
ant in  the  Pollock  execution,  was  not  possessed  of  any  property 
and  at  no  time  could  the  defendant  constable  have  made  the 
money  on  the  execution.  (9)  In  refusing  to  admit  in  evidence, 
the  affidavits  claiming  ownership  of  the  personal  property  which 
had  been  filed  with  the  defendant  constable.  (10)  In  its  disaf- 
firmance and  answer  to  defendant's  first  point :  '*  A  constable  is 
not  liable  to  a  suit  under  the  act  of  March  20,  1810,  for  failure 
to  make  return  of  an  execution  on  or  before  the  return  day  where 
he  is  not  the  constable  of  the  ward,  district  or  township  in  which 
defendant  in  the  execution  resided,  nor  the  next  constable  most 
convenient  to  the  defendant,  and  upon  the  evidence  in  this  case 
your  verdict  must  be  for  the  defendant."  (11)  In  disaffirming 
defendant's  third  point:  **Itwa8  the  duty  of  the  plaintiff  to 
have  furnished  to  the  constable  a  bond  duly  dated,  filled  up, 
signed  and  witnessed,  and  if  the  bond  tendered  failed  in  any  of 
tliese  particulars,  it  was  not  a  sufficient  bond  of  indemnity,  and 
the  constable  was  justified  in  declining  it,  and  your  verdict 
should  be  for  the  defendant."  (12)  In  disaffirming  defendant's 
fourth  point :  "  If  the  jury  believe  that  no  demand  was  made 
upon  the  defendant  by  the  plaintiff  prior  to  suit  brought  or 


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558  POLLOCK  r.  INGRAM. 

Assignment  of  EiTors — ^Arguments.  [G  Pa.  Superior  Ct. 

notice  or  demand  given  or  made  by  the  plaintiflf  to  the  defend- 
ant prior  to  suit  brought,  pursuant  to  the  provisions  of  the  act 
of  assembly,  the  plaintiff  cannot  recover,  and  your  verdict  must 
be  for  the  defendant."  (13)  In  disaffirming  defendant's  first 
(additional)  point :  "  If  the  jury  believe  that  the  defendant  was 
advised  by  Theodore  K.  Stubbs,  his  counsel,  that  the  bond  of- 
fered by  Pollock  was  not  a  legal  bond  and  would  not  protect 
liim  against  loss,  and  that  his  rejection  of  such  bond  was  pur- 
suant to  advice  of  his  counsel,  and  his  return  of  the  execution 
was  made  pursuant  to  the  advice  of  his  counsel,  the  defendant 
is  not  liable  in  this  action,  and  your  verdict  must  be  for  the  de- 
fendant." (14)  In  disaffirming  defendant's  fourth  (additional) 
point :  "  The  defendant  was  justified  in  declining  the  bond  ten- 
dered to  him  in  the  condition  in  which  it  was,  and  your  verdict 
must  be  for  the  defendant." 

(7Aa«.  ff.  Pennypacker^  for  appellant. — A  penal  statute  is  the 
foundation  of  this  suit.  The  act  fixes  both  the  liability  and 
the  measure  of  it.  So  that  all  its  terms  must  be  strictly  com- 
plied with  and  strictly  construed,  and  should  not  be  extended  by 
implication.  The  very  point  raised  at  the  inception  of  this  case 
has  been  decided  by  Judge  Schuyler  in  Bachman  &  Co.  v. 
Fenstermacher,  2  C.  C.  R.  499 ;  s.  c,  112  Pa.  331. 

Penal  statutes  must  be  strictly  construed  and  never  extended 
by  implication :  Com.  v.  Wells,  1  Cent.  Rep.  232 ;  Com.  v. 
Lentz,  106  Pa.  643. 

The  docket  of  the  justice  is  the  best  proof  of  the  procedure. 
The  entries  therein  show  what  has  been  done :  Climenson  v. 
Climenson,  163  Pa.  451. 

The  court  below  was  in  error  in  refusing  to  admit  the  dec- 
larations of  the  justice  made  to  constable  Ingram  when  he  gave 
him  the  execution.  Declarations  accompanying  the  act  are 
evidence  of  the  part  of  the  res  gestae :  Woodwell  v.  Brown,  44 
Pa.  121. 

This  action  was  brought  without  any  demand  or  notice,  as 
required  by  the  act  of  March  21,  1772.  Such  an  action  was 
within  the  purview  of  the  act :  Com.  v.  Warfel,  157  Pa.  444. 

The  evidence  shows  that  the  bond  was  not  signed  on  the  day 
it  bears  date ;  that  the  names  of  the  sureties  do  not  appear  in 
the  body  of  the  bond  and  it  was  not,  therefore,  a  sufficient  bond: 
Keener  v.  Ciugo,  81*  Pa.  166. 


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POLLOCK  V.  INGRAM.  559 

1898.]  Arguments — Opinion  of  the  Court. 

Thomas  W.  Pierce^  with  him  S.  D.  Ramsey^  for  appellee. — 
The  courts  have  also  held  that  when  process  has  been  executed, 
the  power  of  the  magistrate  to  select  the  officer  cannot  be  at- 
tacked collaterally,  for  that  is  a  matter  in  which  he  has  a  right 
to  consult  his  judgment  and  convenience :  Com.  v.  Lentz,  106 
Pa.  643. 

Upon  being  indemnified  a  constable  must  proceed  with  an 
execution  on  penalty  of  being  liable  for  a  false  return:  Coraon 
V.  Hunt,  14  Pa.  610 ;  Meeker  v.  Sutton,  2  Phila.  288. 

A  voluntary  acceptance  by  a  constable  of  an  execution  and 
acting  thereunder,  places  him  in  the  same  position  and  renders 
him  liable  in  like  manner,  as  if  there  was  an  obligation  imposed 
upon  him  to  receive  the  writ :  Com.  v.  Lentz,  106  Pa.  643, 

A  penal  statute  is  not  to  be  so  strictly  construed  as  to  en- 
tirely defeat  its  object :  Bartolett  v,  Achey,  38  Pa.  273. 

The  case  was  not  witliin  the  intendment  of  the  act  of  1772. 
The  act  of  1810  under  which  this  suit  was  brought  directs  the 
method  of  procedure  under  it,  and  makes  no  provision  for  notice 
except  by  the  summons.  The  matter  covered  by  the  sixth, 
eighth  and  ninth  assignments  of  error  was  properly  ruled  upon 
by  the  court  as  irrelevant:  Bachman  v.  Fenstermacher,  112 
Pa.  331. 

Opinion  by  Oblady,  J.,  February  19, 1898 : 
The  plaintiff  secured  a  judgment  for  $78.72,  before  a  justice 
of  the  peace,  against  one  Cameron,  and  caused  an  execution  to 
be  issued  thereon,  which  was  directed  to  the  defendant,  as  a 
constable,  who  levied  upon  and  took  into  his  possession  certain 
personal  property.  A  claim  of  ownership  was  made  to  the 
property  levied  upon  by  persons  not  named  in  the  writ,  and  the 
constable  demanded  a  bond  of  indemnity,  which  was  furnished 
by  the  plaintiff.  A  few  days  afterward  a  controversy  arose  as 
to  its  sufficiency,  and  four  days  after  the  writ  was  issued  the 
constable  made  return  of  it  into  the  office  of  the  justice,  indorsed, 
**  Levied  upon  and  not  sold  for  want  of  sufficient  indemnity, 
goods  levied  upon  being  claimed  by  Geo.  W.  Campbell  and 
M.  Ella  Cameron  who  have  filed  affidavits  in  proof  of  their 
claims." 

This  suit  was  then  instituted  before  a  justice  of  the  peace, 
under  the  12th  section  of  the  Act  of  Assembly  March  20, 1810, 


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560  POLLOCK  v.  INGRAM. 

Opinion  of  the  Court.  [6  Pa.  Superior  Ct. 

5  Sm.  L.  161,  to  show  cause  why  execution  should  not  issue 
against  the  constable  "  for  the  amount  of  tlie  debt,  interest  and 
costs  of  an  execution  in  his  hands  to  which  he  made  a  false 
and  insufficient  return  "  and  a  repovery  was  had  against  him. 

On  the  trial  of  an  appeal  to  the  common  pleas,  a  verdict  was 
had  against  the  constable,  and  the  record  is  brought  into  this 
court  for  review. 

The  writ  of  execution  was  received  in  evidence  under  objec- 
tion to  show  the  amount  of  the  plaintiff's  claim.  This  did  the 
defendant  no  harm,  and  the  grade  of  proof  was  as  high  as  the 
docket  of  the  justice.  The  act  of  1810  directs  that  "  in  the  de- 
livery of  the  execution  to  any  constable,  an  account  shall  be 
stated  in  the  docket  of  the  justice,  and  also  on  the  back  of  the 
execution,  of  the  debt,  interest  and  costs,  from  which  the  con- 
stable shall  not  be  discharged,  but  by  producing  to  the  justice, 
on  or  before  the  return  day  of  the  execution,  the  receipt  of  the 
plaintiff  or  other  return  as  may  be  sufficient  in  law." 

In  making  the  levy,  the  constable  undertook  the  execution 
of  the  writ,  and  on  it  he  made  his  return.  This  action  against 
him  was  for  his  alleged  default  after  he  had  accepted  the  writ, 
and  the  amount  of  the  penalty  was  as  certainly  fixed  by  the 
indorsement  on  the  execution  made  by  the  justice  as  by  the  one 
in  his  docket.  The  statute  required  the  statement  of  debt, 
interest  and  costs  to  be  on  each  and  both.  The  officer  may  not 
have  been  strictly  the  "next "constable,  but  it  does  not  appear 
that  he  was  not  the  most  convenient :  Commonwealth  v.  Lentz, 
106  Pa.  643.  He  was  within  the  jurisdiction  of  the  justice, 
he  voluntarily  accepted  the  writ  without  objection,  which  made 
him  responsible  for  a  default  or  neglect  in  its  proper  execution. 
The  first,  second,  third  and  tenth  assignments  are  overruled. 

The  instructions  or  directions  given  by  the  justice  at  the 
time  the  execution  was  accepted  by  the  constable  could  not 
in  any  way  affect  his  liability,  as  the  performance  of  his  duty 
was  measured  by  the  law  and  not  by  the  oral  instructions  of 
the  justice.  The  rights  of  the  plaintiff  in  an  execution  are 
not  to  be  increased  or  lessened  by  the  uncertain  interpretations 
of  a  justice  of  the  peace.  His  control  over  the  writ,  as  far  as 
its  service  is  concerned,  ends  with  its  delivery  to  the  constable. 

Whether  the  defendant  in  the  execution  was  the  legal  owner 
of  the  property,  or  what  was  its  assessed  value  were  not  mate- 


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POLLOCK  r.  INGRAM.  561 

1898.]  Opinion  of  Court  below. 

rial  as  here  presented.  The  act  of  1810  is  not  merely  declara- 
tory of  the  common  law ;  it  goes  further  and  fixes  a  penalty 
for  a  failure  to  perform  a  duty ;  and  the  penalty  is  the  amount 
of  the  execution  and  costs ;  neither  more,  neither  less.  It  is 
his  failure  to  make  a  return,  or  making  a  false  return,  not  his 
inability  to  make  the  money  in  the  execution,  which  is  the  sub- 
ject of  inquiry.  Hence  it  is  entirely  immaterial  to  show  that 
the  defendant  had  no  goods  upon  which  to  levy :  Bachman  v. 
Fenstermacher,  112  Pa.  331.  The  fourth,  fifth,  sixth,  seventh, 
eighth  and  ninth  assignments  are  overruled. 

The  evidence  shows  that  the  constable  accepted  the  bond  of 
indemnity  and  expressed  satisfaction  as  to  its  form  and  the 
sureties  at  the  time  it  was  given.  He  cannot  afterward  set  up 
the  alleged  defect  which  is  now  urged  as  an  excuse  for  hiB  fail- 
ure to  proceed.  The  fact  of  his  accepting  or  refusing  the  bond 
was  fairly  left  to  the  jury,  to  wit :  "  If  he  was  satisfied  that  the 
security  was  sufficient,  he  cannot  use  his  power  arbitrarily  and 
as  a  mere  subterfuge  to  avoid  the  acceptance  of  a  bond  by  say- 
ing it  was  insufficient,  when  in  reality  he  knew  and  believed 
that  it  was  sufficient."  The  eleventh,  thirteenth  and  four- 
teenth assignments  are  overruled. 

The  plaintiff's  fourth  point  was  "  If  the  jury  believe  that  no 
demand  was  made  upon  the  defendant  by  the  plaintiff  prior  to 
suit  brought,  or  notice,  or  demand  given  or  made  by  the  plain- 
tiff to  the  defendant  prior  to  suit  brought,  pursuant  to  the  pro- 
visions of  the  act  of  assembly,  the  plaintiff  cannot  recover  and 
your  verdict  must  be  for  the  defendant." 

If  the  act  complained  of  could  not  have  been  done  in  obedi- 
ence to  the  commands  of  the  writ,  but  was  necessarily  in  con- 
tempt of  it,  the  production  of  the  writ  would  not  protect  the 
constable,  and  the  case  is  not  within  the  letter  or  the  spirit  of 
the  statute,  was  held  in  Lantz  v.  Lutz,  8  Pa.  405. 

In  the  case  before  us  the  process  was  regular,  and  such  as  the 
justice  was  authorized  to  issue.  No  action  could  be  sustained 
against  that  officer.  But  the  plaintiff  complains  that  the  con- 
stable, after  he  had  a  sufficient  levy  and  had  accepted  a  suffi- 
cient bond  of  indemnity,  abandoned  his  levy  and  returned  his 
writ.  If  these  facts  be  as  alleged  and  the  verdict  so  determined 
them,  the  constable  is  neither  justified  by  his  writ,  nor  protected 
by  the  act  of  assembly  of  March  21,  1772. 
Vol.  VI— 36 


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562  POLLOCK  v.  INGRAM. 

Opinion  of  the  Court.  [6  Pa.  Superior  Ct- 

The  injury  complained  of  was  that  it  waa  not  "  done  in  obe- 
dience to  his  warrant "  but  in  defiance  of  its  mandate,  and  there- 
fore no  demand  of  a  copj*-  was  required.  The  object  of  the  sixth 
section  of  the  ixct  of  1772  was  to  protect  constables  and  inferior 
officers  from  suffering  injury  for  acts  done  strictly  in  obedience 
to  their  warrants,  by  reason  of  irregularity,  for  want  of  jurisdic- 
tion in  the  magistrates. 

The  authorities  collated  by  Judge  Lewis  in  Mollison  v.  Bow- 
man, 3  Clark  Cases,  281  are  convincing,  and  have  been  adopted 
by  this  court  in  Commonwealth  v.  Yeisley,  6  Pa.  Superior  Ct 
273. 

In  Commonwealth  v,  Warfel,  157  Pa,  444,  the  officer  acted 
in  obedience  to  the  warrant,  but  in  this  the  clear  direction  of 
the  warrant  was  disregarded  and  disobeyed. 

The  judgment  is  affirmed. 


Benjamin  Davis,  Appellant,  v.  James  Hamilton  and  the 
Borough  of  Downingtown. 

OrarU— Restrictive  application  of  (he  grant  not  favored, 
A  construction  of  a  gi*ant  which  would  restrict  the  grantee  to  the  specifio 
use  for  which  the  grant  is  firat  applied  is  not  favored,  and  will  not  be 
adopted  unless  the  language  of  the  grant  unmistakably  indicates  an  in- 
tention to  restrict  the  use. 

Waters  and  watercourse— Orant  not  restricted  to  primary  uses, 
A  grant  gave  the  grantee  and  his  heirs  and  assigns  '*  the  free  use  and 
privilege  of  a  certain  stream  of  water  that  now  runs  through  other  lands  " 
of  the  grantor,  "and  the  unobstructed  right  of  conveying  the  said  water 
in  an  open  race  or  watercourse  to  the  saw,  plaster  and  feed  mill  as  it  is 
now  running,  with  the  right  of  entering  upon  said  premises  at  any  and  all 
times  to  cleanse,  scour  and  repair  the  said  race  and  watercourse/^  Held, 
That  the  successors  in  title  of  the  grantor  have  no  right  of  action  against 
the  grantee  or  his  successor  in  title  for  changing  the  use  to  which  the  water 
is  put  after  he  receives  it,  nor  for  trespass  on  grantor^s  land  to  maintain 
and  repair  the  watercourse  to  supply  water  for  such  changed  use. 

Argued  Nov.  19, 1897,  Appeal,  No,  182,  Oct  T.,  1897,  by 
plaintiff,  from  judgment  of  C.  P,  Chester  Co,,  Oct,  T,,  1896, 
No.  22,  on  verdict  for  defendants.     Before  RiOB,  P,  J,,  WiCK- 


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DAVIS  V.  HAMILTON.  563 

1898.]  Statement  of  Facts — Arguments. 

HAM,  Beaver,  Reedeb,  Oblady,  Smith  and  Porter,  JJ. 
AffirmecL 

Trespass,    Before  Waddell,  P.  J. 

It  appears  from  the  record  that  this  was  an  action  of  trespass, 
and  the  complaint  alleged  not  only  trespass  upon  plaintiff's 
land  and  digging  it,  but  for  virtually  diverting  a  stream  of 
water  that  passed  through  it. 

The  amount  of  damages  as  alleged  does  not  appear  in  the 
paper-books,  but  security  was  entered  in  the  sum  of  #200. 

Other  essential  facts  appear  in  the  opinion  of  the  court 

Verdict  and  judgment  for  defendants.     Plaintiff  appealed. 

Errors  assigned  among  others  were  (1,  2)  In  rejecting  plain- 
tiff's offers  of  evidence  as  to  whether  it  was  a  special  benefit  to 
the  plaintiff's  property  to  have  the  feed,  saw  and  plaster  mill  in 
operation  near  it;  and  whether  it  was  a  benefit  to  the  neighbor- 
hood to  have  a  feed,  saw  and  plaster  mill  in  operation  there. 

(3)  In  the  charge  of  the  court  as  follows :  "  My  impi-essions  at 
this  time  are  that  the  grant  contained  in  these  papers  does  give 
the  Borough  of  Downingtown  the  right  which  they  here  claim." 

(4)  In  the  charge  of  the  court  as  follows  :  "  For  the  purposes 
of  this  trial,  we  say  to  you  that  in  our  judgment  the  justifica- 
tion here  is  complete,  and  the  borough  had  a  right  to  do  just 
what  it  has  done,  and  that  would  seem  naturally  and  necessarily 
to  result  in  a  verdict  in  favor  of  the  defendants."  (7)  In  sub- 
stantially taking  the  case  away  from  the  jury  and  directing  a 
verdict  for  the  defendants. 

William  M,  Hayes^  with  him  J.  Carroll  Hayes^  for  appellant. — 
The  Borough  of  Downingtown  here  attempts  to  sustain  a  most 
flagrant  misuse  of  the  grant,  and  to  evade  its  manifest  intention. 

They  buy  of  the  Ringwait  heirs  an  insignificant  lot  of  1.06 
acres,  barely  enough  to  caiTy  with  it  this  water  right,  whatever 
it  may  be.  They  now  set  up  that  they  are  liie  rightful  suc- 
cessors of  Wilson  Young  in  all  the  rights  that  he  possessed,  and 
In  many  he  did  not  possess,  and  never  thought  of  possessing. 

The  right  was  reserved  in  the  deeds  to  "  the  owner  of  the 
adjoining  mill  property,"  to  convey  the  water  "to  the  saw, 
plaster  and  feed  mill  as  it  is  now  running."    And  now  this  bor- 


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564  DAVIS  V,  HAMILTON. 

Arguments.  [6  Pa.  Saperior  Ct. 

ough  claims  to  be  "  the  owner  of  the  adjoining  mill  property," 
in  the  sense  expressed  in  the  grant,  and  to  have  the  right  to 
divert  the  water  to  this  alien  and  uncontemplated  use. 

However  general  the  terms  may  be  in  which  an  agreement  is 
conceived,  it  only  comprehends  those  things  in  respect  to  which 
it  appears  that  the  contracting  parties  proposed  to  contract,  and 
not  others  they  never  thought  of :  Doster  v.  Zinc  Co.,  140  Pa. 
147 ;  Coddmg  v.  Wood,  112  Pa.  371,  378. 

Having  a  construction  put  upon  his  contract  plaintiff  un- 
doubtedly has  the  right  to  show  all  the  surrounding  facts  and 
circumstances  as  they  existed  at  the  time  the  contract  was 
entered  into:  Penna.  R.  R.'s  Appeal,  126  Pa.  189;  Erwin's 
Appeal,  20  W.  N.  C.  278 ;  Sergeant  v,  Ingersoll,  7  Pa,  340 ; 
Stevenson  v.  Stewart,  7  Phila.  295, 

Where  an  easement  is  granted  for  a  specified  use,  the  grant 
must  be  strictly  construed,  and  the  use  cannot  be  extended  or 
enlarged  beyond  that  specifically  granted :  Lewis  v.  Carstairs, 
6  Wh.  193 ;  Crosland  v.  Borough,  126  Pa.  511. 

Alfred  P.  Reidy  with  him  Butler  ^  Windle^  for  appellees. — 
A  construction  of  a  grant  which  would  restrict  the  grantee  to 
the  specific  use  for  which  it  is  first  applied  is  not  favored,  and 
will  not  be  adopted,  unless  the  language  of  the  grant  unmistak* 
ably  indicate  an  intention  to  restrict  the  use :  4  Leading  Cases 
in  the  Law  of  Real  Property,  334 ;  Johnston  v.  Hyde,  33  N.  J. 
Eq.  632 ;  Iszard  v.  Water  Power  Co.,  31  N.  J.  Eq.  511. 

The  grant  to  Wilson  Young,  his  heirs  and  assigns,  is  unlim- 
ited in  character  because  no  restriction  or  condition  is  suggested, 
and  it  is  declared  that  it  is  the  "  free  "  use.  "  Free  "  means, 
not  subject  to  restraint  or  control,  individual,  exclusive,  inde- 
pendent, opposed  to  common :  Anderson's  Law  Dictionary,  478. 

"  By  them  freely  to  be  possessed  and  enjoyed,"  show  a  strong 
intent  to  give  a  fee,  and  have  been  adjudged  sufficient  to  convey 
it :  Burkhart  v.  Bucher,  2  Binney,  466. 

By  a  devise  of  the  "  free  use  of  lands  "  the  lands  themselves 
will  pass:  Cook  v.  Gerrard,  1  Saunders,  181. 

Where  an  easement  is  of  a  certain  quantity  of  water  the 
owner  is  not  bound  to  use  it  in  any  particular  manner,  though 
the  purpose  for  which  it  is  used  is  mentioned  in  the  grant.  He 
may  use  the  water  in  a  different  manner  or  at  a  different  place, 


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DAVIS  v.  HAMILTON.  565 

1898.]  Argaraents— Opinion  of  the  Court. 

or  increase  the  capacity  of  the  machinery  which  is  propelled  by 
it,  without  affecting  his  right:  Iron  Co.  v.  Iron  Co.,  107  Mass. 
290;  Gould  on  Waters,  sec,  820;  Johnston  v.  Hyde,  83  N.  J. 
Eq,  632 ;  Groat  v.  Moak,  94  N.  Y.  115 ;  Frey  v.  Witman,  7  Pa. 
440. 

Under  a  grant  of  the  privilege  of  sufficient  water  to  propel 
certain  specified  machinery,  the  grantee  is  entitled  to  the  use  of 
the  water  for  any  purpose  not  requiring  a  greater  power  than  is 
reserved:  Iszard  v.  Water  Power  Company,  31  N.  J.  Eq.  511 ; 
Angell  on  Water-Courses  (5th  ed.),  sec.  149 ;  Luttrel's  Case, 
4  Coke,  86. 

OPDaoN  BY  Orlady,  J.,  February,  19, 1898 : 
This  action  of  trespass  was  brought  to  recover  damages  for 
the  unlawful  entry  by  the  defendant — ^by  its  workmen — ^upon 
the  land  of  the  plaintiff,  and  '^  digging  and  removing  the  soil, 
grass  and  herbage  "  from  the  same.  The  defense  was  that  the 
defendant  had  a  legal  right  to  enter,  and  dig,  by  virtue  of  a 
grant  conferred  by  the  plaintiff's  predecessors  in  title. 

In  1870,  Thomas  C.  Hoopes,  the  then  owner  of  certain  real 
estate  in  Chester  county,  conveyed  a  part  thereof,  viz:  one 
hundred  and  five  acres  and  one  hundred  and  twenty-four  perches 
to  the  plaintiff  in  fee,  with  a  reservation  as  follows :  "  and  sub- 
ject also  to  the  right  of  the  owner  of  the  adjoining  mill  prop- 
erty, his  heirs  and  assigns,  of  the  free  use  and  privilege  of  a 
certain  stream  of  water  which  now  runs  through  to  the  property 
hereinbefore  conveyed,  and  the  unobstructed  right  of  convey- 
ing said  water  in  an  open  race  or  watercourse  to  the  saw, 
plaster  and  feed  mill  as  it  is  now  running,  with  the  right  of 
entering  on  said  premises  at  any  and  all  times  to  clean,  scour 
or  repair  said  race  or  watercourse."  The  same  day  the  fore- 
going conveyance  was  executed,  Thomas  C.  Hoopes  conveyed 
to  Wilson  Young  twenty  acres  and  forty-one  perches  adjoining 
the  land  sold  to  Davis.  After  the  general  description  of  the 
acreage  is  added,  "  Further  grant  and  convey  mito  the  above 
named  Wilson  Young,  his  heirs  and  assigns,  the  free  use  and 
privilege  of  a  certain  stream  of  water  that  now  runs  runs  through 
other  lands  of  the  said  Thomas  C.  Hoopes,  and  the  unobstructed 
right  of  conveying  said  water  in  an  open  race  or  watercourse 
to  the  saw,  plaster  and  feed  mill  as  it  is  now  running,  with  the 


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566  DAVIS  V,  HAMILTON. 

Opinion  of  the  Court.  [6  Pa.  Superior  Ct. 

right  of  entering  upon  said  premises  at  any  and  all  times  to 
cleanse,  scour  and  repair  the  said  race  or  watercourse," 

When  Hoopes  sold  the  two  parcels  of  real  estate  to  the  plain- 
tiff and  Young,  there  was  in  operation  on  the  part  sold  to 
Young,  about  one  hundred  feet  from  plaintiffs  line  a  saw,  feed 
and  plaster  mill,  which  was  propelled  by  power  secured  from 
the  water  flowing  in  an  artificial  race  or  watercourse,  of  about 
twelve  himdred  feet  in  length,  from  a  dam  on  the  plaintifTs 
property  to  the  mill. 

About  twelve  years  before  this  suit  was  brought,  the  mill  was 
abandoned  by  its  owner,  and  the  dam,  which  diverted  the  water 
from  a  creek  into  the  race,  was  no  longer  kept  in  repair,  so  that 
at  the  time  of  defendant's  entry  on  plaintiffs  land  they  were 
both  in  a  useless  condition. 

After  the  abandonment  of  the  mill  and  dam,  the  water,  which 
would  have  flowed  in  the  race  under  the  conditions  existing  in 
1870,  ran  in  the  bed  of  the  parent  stream,  and  the  avowed  pur- 
pose of  the  entry  on  the  plaintiffs  land  was  to  reconstruct  the 
discarded  dam,  and  clean,  scour  and  repair  the  open  race  so  as 
to  again  bring  the  water  into  its  bed,  by  which  a  stream  of  water 
would  be  again  brought  to  the  old  mill  site,  where  the  defend- 
ant had  erected  a  pumping  station  for  forcing  the  water  from 
the  stream  to  the  borough  of  Downingtown. 

On  the  trial,  the  plaintiff  offered  evidence  to  show  that  it  was 
a  special  benefit  to  the  then  owner  of  plaintiffs  property,  and  a 
general  benefit  to  the  neighborhood  to  have  a  feed,  saw  and 
plaster  mill  in  operation  on  the  site  as  occupied  at  the  time  of 
creating  the  grants  and  reservations  described,  to  which  offer, 
objection  was  made  and  sustained  by  the  court.  However  gen- 
eral the  terms  may  be  in  which  an  agreement  is  conceived,  it 
comprehends  only  those  things  in  respect  to  which  it  appears 
that  the  contracting  parties  professed  to  contract,  and  not  others 
they  never  thought  of :  Doster  v.  Zinc  Co.,  140  Pa.  147.  The 
fact  that  a  mill  was  in  operation  within  a  short  distance  from 
liis  property  may  have  been  an  element  in  determining  the  price 
the  plaintiff  paid  for  his  property  in  1870,  but  there  was  no  pro- 
vision that  the  water  in  the  race,  as  it  then  ran,  should  be  lim- 
ited to  the  use  to  which  it  was  at  that  time  applied,  or  that  it 
should  be  so  continued,  and  the  purchaser  must  be  presumed 
to  have  known  that  such  a  business  enterprise  depends  for  its 


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DAVIS  V.  HAMILTON.  667 

I.]  Opinion  of  the  Court. 

permanency  upon  many  matters  which  no  one  but  the  miU  owner 
has  the  right  to  decide.  Whether  the  business  would  be  profit- 
able or  desirable ;  whether  the  property  would  be  rebuilt  after 
being  burned  down ;  whether  the  mill  would  run  or  stand  idle, 
would  be  decided  by  the  mill  owner,  and  would  be  contingencies 
over  which  this  plaintiff  had  no  right  to  compel  nor  control. 

The  condition  of  the  property  and  the  circumstances  of  the 
parties  are  to  be  considered,  for  the  purpose  of  ascertaining 
what  they  really  meant  by  the  reservation.  Angell  on  Water- 
courses (7th  ed.),  sec.  185,  applies  only  when  the  intention  of 
the  parties  is  not  clearly  expressed  in  the  language  used. 

The  proof  offered  was,  at  most,  the  mere  opinion  of  the  wit- 
ness, and  we  do  not  think  it  was  competent  in  this  action  of 
trespass  for  digging  and  removing  the  soil,  grass  and  herbage. 

TTie  primal  benefit  under  the  grant  and  reservation  men- 
tioned, was  for  the  owner  of  the  adjoining  mill  property,  and 
the  plaintiff  was  entitled  to  enjoy  all  riparian  rights  incident 
to  his  ownership  of  the  land  through  which  the  race  flowed. 
From  all  that  appears  in  the  evidence,  all  of  the  water  which 
came  to  the  defendant's  property,  by  way  of  the  race,  passed 
through  the  open  race  in  the  same  way  it  did  when  the  mill 
was  in  operation. 

The  grant  was  of  the  free  use  and  privilege  of  the  stream  of 
water  conveyed  in  an  open  race,  as  it  then  ran  to  the  mill,  and 
the  right  to  make  the  necessary  repairs  to  the  race.  "  As  it  is 
now  running,"  referred  to  the  volume  of  water  conducted  by 
the  open  race  of  the  course,  width  and  depth  as  then  visible  to 
the  parties,  and  not  to  the  perishable  structure  at  which  the 
water  was  then  used.  As  a  further  aid  to  interpret  the  grant 
to  Davis,  we  have  in  the  same  deed  a  reservation  of  a  specific 
volume  of  water  *'  in  a  half  inch  pipe  in  the  head  of  the  race 
to  the  barnyard,"  and  all  the  water  that  remained  was  for  the 
adjoining  mill  owner. 

A  construction  of  a  grant  which  would  restrict  the  grantee 
to  the  specific  use  for  which  it  is  first  applied  is  not  favored, 
and  will  not  be  adopted,  unless  the  language  of  the  grant  un- 
mistakably indicates  an  intention  to  restrict  the  use :  4  Lead- 
ing Cases  of  Law  on  Real  Property,  384 ;  Cress  v.  Vamey,  17 
Pa.  496. 


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568  DAVIS  V.  HAMILTON. 

Opinion  of  the  Court.  [6  Pa.  Superior  Ct. 

The  deeds  are  to  be  construed  in  the  light  of  the  state  of  the 
property  at  the  date  of  their  execution :  Connery  v.  Brooke, 
73  Pa.  80 ;  3  Washburn  on  Real  Property,  384. 

Until  the  water  left  the  upper  owner's  land  the  lower  owner 
had  no  right  to  any  of  it,  and  after  it  passed  the  line  of  the 
upper  owner,  it  not  only  belonged  to  the  lower  owner  but  the 
upper  owner  had  no  right  either  to  the  water,  or  to  direct  how 
it  should  be  used.  His  right  to  it  was  exhausted,  and  he  had 
no  interest  in  it :  Washburn  on  Easements  (4th  ed.),  55,  437 ; 
28  Am.  &  Eng.  Ency.  of  Law,  1030  and  notes. 

If  the  plaintiff  has  a  right  of  action  against  the  first  lower 
owner  for  changing  the  use  to  which  the  water  is  put  after  he 
receives  it,  why  should  he  not  as  well  have  a  similar  right 
against  an  owner  further  down  the  stream?  If  the  present 
owner  of  the  mill  site  had  erected  a  saw,  plaster  and  feed  mill 
instead  of  a  pumping  station,  it  would  not  be  contended  that 
he  would  not  have  had  a  right  to  do  all  that  the  defendant  has 
done  in  bringing  the  water  to  the  property. 

In  Penna.  R.  Co.'s  Appeal,  125  Pa.  189,  the  facts  are  very 
different  from  this  case.  The  examiner  and  master  there  found 
that  "  during  certain  portions  of  every  year,  the  greater  portion 
of  the  stream  is  thus  led  away  from  the  complainant's  property, 
and  he  has  been  deprived  of  its  use  for  agricultural  property," 
and  the  question  was,  "  does  this  grant  and  reservation  give  the 
railroad  company  the  right  and  privilege  of  taking  and  convey- 
ing the  stream  in  question  away  from  both  these  tracts  of  land 
for  the  distance  of  about  one  nule,  and  then  use  the  water  for 
railroad  purposes."  The  grant  was  subject  to  the  limitation 
that  it  was  to  be  for  the  use  of  the  Parke  tract,  and  it  was  "  to 
be  conducted  where  it  formerly  was."  The  Supreme  Court 
says  of  it,  "  we  do  not  see  how  so  limited  a  grant  can  now  be 
used  to  divert  the  water  of  the  stream  entirely  away  from  both 
tracts  a  distance  of  a  mile  or  more  by  means  of  iron  pipes,  and 
the  water  used,  not  at  all  for  the  purposes  of  the  Parke  tract, 
but  for  suppljdng  the  engines  of  a  railroad  company,  or  the 
inhabitants  of  a  town."  In  the  case  being  considered  there 
was  no  diminution  in  volume  of  the  water,  no  diversion  of  any 
pail;  of  it  on  the  plaintiff's  land,  no  deprivation  of  the  owner  of 
any  benefit  to  his  land,  no  change  in  the  course  of  the  stream 


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DAVIS  V.  HAMILTON,  669 

1898.]  Opinion  of  the  Court. 

in  its  width  or  depth.  As  far  as  the  open  race  in  his  land  is 
concerned,  all  benefits  and  advantages  that  he  had  at  the  time 
of  his  purchase  in  1870  he  has  now. 

We  think  the  case  was  properly  tried,  the  assignments  of 
error  are  overruled  and  the  judgment  is  aiBrmed. 


Thomas  McKeone  v.  John  W.  Christman,  Appellant. 

Appeals — Discretion  of  court — Refusal  to  open  judgment. 

There  is  no  abuse  of  discretion  in  a  refusal  to  open  judgment  when  it 

appeal's  from  the  depositions  that  the  entry  of  a  final  judgment  in  favor  of 

the  defendant  would  be  more  than  doubtful. 

Argued  Dec.  15, 1897.  Appeal,  No.  157,  Oct.  T,,  1897,  by 
defendant,  from  judgment  of  C.  P.  No.  4,  Phila.  Co.,  March  T., 
1897,  No.  1049,  for  want  of  an  affidavit  of  defense.  Before 
WicKHAM,  Beaver,  Rbedbr,  Oblady,  Smith  and  Porter,  J  J. 
Affirmed. 

Rule  to  open  judgment  and  let  defendant  into  a  defense. 

Plaintiff  brought  suit  on  a  contract  in  writing  to  do  certain 
plumbing  work  according  to  the  rules  of  the  board  of  health. 
Statement  was  filed  May  8,  1897.  September  23,  1897,  judg- 
ment was  entered  for  want  of  an  affidavit  of  defense.  On 
September  29, 1897,  rule  was  taken  to  open  judgment  and  let 
defendant  into  a  defense,  proceedings  to  stay.  On  Septem- 
ber 30, 1897,  an  affidavit  of  defense  was  filed.  On  October  23, 
1897,  depositions  taken  in  support  of  the  rule  were  filed.  Rule 
discliarged. 

Errors  assigned  were  in  discharging  defendant's  rule  to  open 
judgment. 

TT.  H.  Peace  and  A.  E.  Stockwellj  for  appellant 

Horace  Pettily  for  appellee. 

Opinion  by  Orlady,  J.,  February  19, 1898 : 
A  careful  examination  of  the  depositions  taken  in  support  of 
the  rule  to  open  the  judgment,  which  was  entered  for  want  of 


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570  McKEONE  r.  CHRISTMAN. 

Opinion  of  tiie  Court.  [6  Pa.  Superior  Ct. 

an  affidavit  of  defense,  shows  that  the  defense  to  the  action  was 
more  ingenious  than  reaL 

There  was  ample  time  within  which  to  place  the  defense  in 
proper  form,  and  counsel  frankly  assumes  the  responsibility  for 
the  omission  to  file  an  affidavit  to  prevent  judgment,  but,  un- 
less there  is  more  in  the  case  than  is  shown  in  the  depositions, 
the  entry  of  a  final  judgment  in  favor  of  the  defendant  would 
be  very  doubtful. 

There  was  no  abuse  of  discretion  in  the  refusal  of  the  court 
below  to  open  the  judgment,  and,  under  the  facts  presented,  its 
action  was  entirely  proper. 

The  judgment  is  affirmed. 


John  L.  Moore  v.  William  E.  Phillips,  Appellant. 

Evidence — Parol  evidence  to  explain  purpose  of  a  note  admissible — AC' 
co7nmodation  paper—Burden  of  proof. 

Parol  evidence  is  admissible  to  explain  a  receipt  or  entry  in  a  bank  book 
or  account  book,  or  to  show  the  purpose  for  which  a  note  is  given. 

Plaintiff  sued  to  recover  the  amount  paid  by  him  to  take  up  a  note  al- 
leged to  have  been  given  as  accommodation  for  defendant.  Defendant 
claimed  the  note  to  have  been  given  as  payment  for  a  horse  sold  by  him 
to.  plaintiff.  The  court  having  charged  the  jury :  '*  The  plaintiff  must 
convince  you  of  the  tinith  of  his  statement  by  the  weight  of  the  evidence, 
and  his  unsupported  oath  is  not  sufficient/^  defendant  cannot  complain. 

Argued  Dec.  9,  1897.  Appeal,  No.  153,  Oct.  T.,  1897,  by 
defendant,  from  judgment  of  C.  P.  Montgomery  Co.,  March  T., 
1896,  No.  132,  on  verdict  for  plaintiff.  Before  Rice,  P.  J., 
WiCKHAM,  Beaver,  Reeder,  Orlady,  Smith  and  Por- 
ter, JJ.    Affirmed. 

Assumpsit.     Before  Weand,  J. 

The  facts  sufficiently  appear  in  the  opinion  of  the  court. 
Verdict  and  judgment  for  plaintiff  for  $328.53.     Defendant 
appealed. 

Errors  assigned  among  others  were  (1)  In  refusing  binding 
instructions  for  defendant.    (2^  In  charging  the  jury  as  follows : 


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MOORE  V.  PHILLIPS.  571 

1898.]  Assignment  of  En-or— Opinion  of  the  Couit. 

"  Now  I  charge  you  that  if  that  was  the  understanding  and 
agreement  between  these  parties  at  the  time,  that  is,  that  no 
consideration  passed  from  the  defendant  to  the  plaintiff  and 
that  the  defendant  agi*eed  to  take  it  up  when  it  came  due,  then 
it  would  be  one  of  the  cases  in  which  the  plaintiff  can  explain 
the  transaction ;  but  in  order  to  do  so,  he  must  convince  you  of 
the  truth  of  his  statement  by  the  weight  of  the  evidence,  and 
his  unsupported  oath  is  not  sufficient.  But  if  the  facts  and 
circumstances  surrounding  the  transaction  add  weight  to  the 
plaintiff's  testimony,  and  corroborate  him,  then  it  will  be  suffi- 
cient for  him  to  maintain  his  action."  (8)  In  charging  the  jury 
as  follows:  "If  you  believe  the  plaintiff's  testhnony,  that  this 
was  purely  an  accommodation  note,  and  that  Mr.  Phillips  prom- 
ised to  take  it  up  when  it  became  due,  then  he  is  entitled  to 
recover ;  if  on  the  contrary  you  believe  Mr.  Phillips'  testimony, 
that  the  note  was  given  in  payment  of  the  horses,  then  your 
verdict  will  be  in  favor  of  the  defendant."  (6)  In  overruling 
the  objection  of  the  defendant  to  the  plaintiff's  offer  as  follows : 
To  prove  by  Robert  J.  Fox,  a  witness,  as  follows:  "Plaintiff 
offers  to  prove  by  the  witness  that  he  was  called  in  to  Mr. 
Moore's  place  the  day  after  the  horaes  were  delivered  at  Mr. 
Moore's ;  that  one  horse  was  suffering  with  lameness  and  the 
other  had  a  very  severe  cold — horse  grippe,  for  the  purpose  of 
showing  at  the  time  the  horses  were  delivered  tliey  were  un- 
sound." 

M,  M.  Gibson^  with  him  N.  H.  Larzelere^  for  appellant. — The 
rule  is  that  a  chancellor  invariably  refuses  to  decree  on  the  un- 
corroborated testimony  of  a  smgle  witness :  Bank  v.  Thompson, 
144  Pa.  893;  Van  Voorhis  v.  Rea  Bros.  &  Co.,  153  Pa.  19; 
Braithwait  v.  Renshaw,  13  Atl.  Rep.  819. 

Henry  M.  Brotmback^  for  appellee. 

Opinion  by  Orlaby,  J.,  February  19, 1898 : 
This  suit  was  brought  to  recover  a  sum  of  money  which  the 
plaintiff  alleged  he  had  been  obliged  to  pay  for  the  defendant, 
by  reason  of  being  an  accommodation  maker  for  him  on  a  note 
which  the  defendant  refused  to  pay  at  maturity.  The  proceeds 
of  the  note  had  been  received  by  the  defendant,  and  its  pay- 


Digitized  by  VjOOQ IC 


572  MOORE  v.  PHILLIPS. 

Opinion  of  the  Court.  [6  P&.  Superior  Ct. 

ment  was  refused  by  the  maker  on  the  ground  that  the  note 
was  given  as  a  consideration  for  two  horses,  which  the  defend- 
ant had  sold  to  the  plaintiff  about  the  date  of  the  note. 

The  controlling  fact  in  the  case  was  whether  the  note  had 
been  given  for  the  two  horses,  or,  as  an  accommodation  to 
Phillips  by  Moore. 

The  testimony  was  spiced  with  a  horse  deal  between  the  par- 
ties, and,  true  to  the  record  of  such  transactions,  these  litigants 
had  very  conflicting  impressions  as  to  the  condition  and  qual- 
ity of  the  animals. 

The  jury  adopted  the  theory  of  the  plaintiff  in  finding  that 
he  was  an  accommodation  maker,  and  that  he  had  not  bought 
the  horses. 

The  plaintiff  did  not  contradict  the  note,  which  stood  for 
what  it  was  worth,  but,  the  effect  to  be  given  it,  the  use  to 
which  it  was  to  be  put,  and  the  purpose  of  its  form  were  proper 
items  of  proof  which  do  not  in  any  way  contradict  or  reform  it. 
The  suit  was  not  on  the  note,  it  was  used  only  as  an  item  of 
evidence  to  fix  the  amount  the  plaintiff  had  paid :  Tasker's 
App.,  182  Pa.  122. 

Parol  evidence  is  admissible  to  explain  a  receipt,  an  entry  in 
a  bank  book  or  account  book,  or  to  show  the  purpose  for  which 
a  note  is  given :  Sheaffer  v.  Sensenig,  182  Pa.  634.  The  defend- 
ant offered  cadence  to  show  a  consideration  for  the  note  by  a 
sale  of  the  two  horses,  which  proof  was  rebutted  by  the  evi- 
dence of  Moore  as  to  the  condition  of  the  horses  and  the  rea- 
son for  giving  the  note. 

The  defendant  should  not  complain  of  the  standard  of  proof 
exacted  by  the  charge  of  the  court,  as  all  that  was  required 
imder  the  whole  evidence  was  to  place  the  burden  on  the  plain- 
tiff. Whereas,  the  court  said,  "he  (the  plaintiff)  must  con- 
vince you  of  the  truth  of  his  statement  by  the  weight  of  the 
evidence,  and  his  unsupported  oath  is  not  sufficient.  But  if 
the  facts  and  circumstances  surrounding  the  transaction  add 
weight  to  the  plaintiff's  testimony,  and  corroborate  him,  then 
it  will  be  sufficient  for  him  to  maintain  his  action : "  Conmey 
V.  Macfarlane,  97  Pa.  861 ;  Holohan  v.  Mix,  134  Pa.  88. 

The  evidence  complained  of  in  the  fifth,  sixth,  seventh  and 
eighth  assignments  was  properly  received  as  contradictory  of 
the  testimony  of  the  defendant,  and  the  credence  to  be  given  it 


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MOORE  V,  PHILLIPS.  573 

1898.]  Opinion  of  the  Coui-t. 

by  the  juiy  would  depend  entirely' on  the  manner  of  the  wit- 
nesses and  subject-matter  of  their  testimony. 

The  assignments  of  error  are  overruled  and  the  judgment  is 
affirmed. 


Henry  G.  Schultz  v.  Eula  Weir  Burlock,  Appellant. 

Landlord  and  tenant— Lease  signed  by  tenant  only — Statute  of  frauds — 
Opening  judgment. 

A  lease  signed  only  by  the  lessee  is  not  in  eon ti'aven lion  of  the  statute 
of  frauds,  one  of  the  pnrposes  of  which  was  for  the  protection  of  land 
owners  and  was  intended  to  guard  them  against  prejudice  in  the  proof  of 
parol  contracts ;  hence  the  requirements  of  the  statute  are  answered  by  a 
memorandum  in  writing  signed  by  the  party  to  be  charged  therewith. 

A  lease  signed  and  executed  by  the  tenant  and  accepted  by  the  landlord 
sustains  a  judgment  in  an  amicable  action  in  ejectment  entered  under  the 
agreements  of  the  lease,  and  there  is  no  abuse  of  discretion  in  the  refusal 
of  the  court  below  to  open  the  judgment. 

Argued  Dec.  15,  1897.  Appeal,  No.  155,  Oct.  T.,  1897,  by 
defendant,  from  order  of  C.  P.  No.  4,  Phila.  Co.,  Sept.  T.,  1897, 
No.  208,  refusing  to  set  aside  execution,  open  judgment  and  let 
defendant  into  a  defense.  Before  Wickham,  Beaver,  Reeder, 
Orlady,  Smith  and  Porter,  JJ.    Afl&rmed. 

Rule  to  set  aside  execution,  open  judgment,  and  let  defendant 
into  a  defense. 

This  was  an  amicable  action  in  ejectment  under  an  alleged 
lease  under  which  proceedings  the  defendant  was  ejected.  It 
appears  from  the  record  and  the  evidence  that  the  judgment 
and  proceedings  were  upon  a  lease  which  was  executed  by  the 
defendant  as  lessee  but  not  executed  by  the  lessor,  plaintiff,  and 
for  the  defendant's  alleged  violation  of  the  covenant  to  pay  rent. 

Error  assigned  was  refusal  to  make  absolute  rule  to  set  aside 
the  execution  issued  in  pursuance  to  a  confessed  judgment  in 
ejectment,  to  open  the  judgment  and  let  defendant  into  a  defense. 

A.  E,  Stockwell^  for  appellant. — It  is  submitted  that  the  lessee 
is  not  liable  upon  the  covenants,  and  the  covenant  to  pay  rent 


Digitized  by  VjOOQ IC 


574  SCHULTZ  v.  BURLOCK. 

ArgQiutsnts — Opinion  of  tlie  Court.  [6  Pa.  Superior  Ct. 

is  not  obligatory :  Jennings  v.  McComb,  112  Pa.  518 ;  Pitman 
V.  Woodbury,  3  Exch.  Rep.  11 ;  Wood's  Land  and  Ten.  sec.  214. 

M.  J.  0"  Callaghan^  for  appellee. 

Opinion  by  Oblady,  J.,  February  19, 1898: 

The  judgment  which  the  court  below  refused  to  open  was 
entered  against  the  lessee  who  had  signed  and  sealed  it,  and 
who  was  charged  with  the  performance  of  the  covenants  in  the 
lease  for  the  premises  which  she  occupied.  The  lease  support- 
ing the  judgment  provided  for  a  tenancy  from  month  to  month, 
and  possession  of  the  premises  was  taken  at  the  beginning  of  the 
term. 

The  landlord  accepted  the  lease  as  made  by  the  tenant,  and, 
in  affirmance  of  it,  he  made  several  demands  for  rent  which 
proved  futile  in  producing  the  money.  He  then  entered  the 
judgment  in  ejectment  for  recovery  of  possession  of  the  prop- 
erty. 

The  case  of  Jennings  v.  McComb,  112  Pa.  518,  is  not  a  par- 
allel one.  The  lease  in  this  case  is  not  in  contravention  of  the 
statute  of  frauds  one  of  the  purposes  of  which  was  for  the 
protection  of  landowners,  and  was  intended  to  guard  them 
against  prejudice  in  the  proof  of  parol  contracts;  hence  the 
requirements  of  the  statute  are  answered  by  a  memorandum  in 
writing  signed  by  the  party  to  be  charged  therewith.  K  there- 
fore it  is  signed  by  the  vendor  alone  and  delivered  to  the  vendee, 
who  accepts  and  acts  under  it,  it  is  all  that  the  statute  requires : 
Lowry  V.  MehafEy,  10  Watts,  387 ;  Cadwalader  v.  App,  81  Pa. 
194. 

The  judgment  was  self-sustaining  on  the  record :  Stewart  v. 
Lawson,  181  Pa.  549. 

The  assignments  of  error  are  overruled,  and  the  judgment 
is  affirmed. 


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MATTEN  v.  LICHTENWALNER.  575 

Syllabus — Statement  of  Facts. 


C.  C.  Matten,  Receiver,  Appellant,  v.  A.  C.  F.  lichten- 
walner,  now  Butz. 

Mutual  insurance — Cancelation  of  agreement— Assessments^Premium 
note, 

A  policy  of  insurance  and  the  premium  note  given  therefor  constitute  a 
contract  which  the  parties  may  rescind  by  mutual  agreement,  and  when 
such  agreement  is  made  in  good  faith  the  parties  are  as  much  bound  as  if 
the  policy  had  been  marked  canceled  and  the  premium. note  given  up. 

If  a  policy  be  in  fact  canceled,  there  can  be  no  recoveiy  of  assessments 
on  a  premium  note  given  by  the  insured  unless  a  liability  existed  for 
losses  sustained  by  the  company  prior  to  such  cancelation. 

Mutual  insurance— Effect  of  cancelation — Question  for  Jury, 
In  a  suit  by  a  receiver  to  recover  on  a  pi*eminm  note,  an  assessment  au- 
thorized by  the  court,  where  the  defense  is  that  the  policy  had  been  can- 
celed by  agreement,  and  thei*e  is  evidence  which  if  believed  would  justify 
the  juiy  in  finding  that  such  agreement  had  been  made,  the  couit  properly 
left  the  case  to  the  jury  to  be  conti*olled  by  their  finding  of  two  facts, 
namely,  cancelation  of  the  policy  and  nonliability  at  the  time  of  such 
cancelation  by  reason  of  the  fact  that  the  company  had  collected  assess- 
ments with  which,  or  had  the  means,  to  pay  losses  for  which  insured  was 
liable  as  a  member  of  the  company  at  the  time. 

Argued  Dec.  7,  1897.  Appeal,  No.  41,  Oct.  T.,  1897,  by 
plaintiff,  from  judgment  of  C.  P.  Lehigh  Co.,  April  T.,  1889, 
No.  77,  on  verdict  for  defendant  Before  Rice,  P.  J.,  WiOK- 
HAM,  Beavbb,  Reeder,  Orlady,  Smith  and  Porteb,  JJ. 
Afl&rmed. 

Assumpsit.    Before  Albright,  P.  J. 

It  appears  from  the  record  that  this  was  an  action  to  recover 
the  amount  due  on  an  assessment  directed  by  the  court  of  com- 
mon pleas  of  Schuylkill  county,  the  affairs  of  the  North  Schuyl- 
kill Mutual  Fire  Insurance  Company  of  Pennsylvania  having 
gone  into  the  hands  of  a  receiver.  The  defense  was,  that  the 
defendant,  a  policy  holder,  having  paid  all  assessments  due  up 
to  the  time,  surrendered  a  policy,  which  surrender  was  accepted 
by  agreement  of  the  company  and  promises  given  for  the  return 
of  the  premium  note.  The  court  below  left  the  question  to  the 
jury  as  to  whether  such  an  agreement  or  surrender  or  cancela- 
tion was  made,  and  whether  all  assessments  for  which  the  insured 


Digitized  by  VjOOQ IC 


576  MATTEN  y.  LICHTENWALNER. 

Statement  of  Facts — Arguments.    [6  Pa.  Superior  Ct. 

was  liable  at  the  time  of  such  cancelation  had  been  paid  by  her 
to  the  company.  The  amount  of  the  assessments  sued  for  was 
fl37.50. 

Verdict  and  judgment  for  defendant.    Plaintiff  appealed. 

Errors  assigned  among  others  were,  (2)  In  refusing  binding 
instructions  for  plaintiff.  (3)  In  the  general  charge  in  submitr 
ting  to  the  jury  the  question  of  the  cancelation  of  defendant's 
policy,  and  the  payment  of  all  losses  that  had  occurred  down  to 
date  of  cancelation,  there  being  no  evidence  to  warrant  a  find- 
ing in  favor  of  defendant  on  these  points,  or  the  submission  of 
this  question.  (4)  In  admitting  testimony  on  behalf  of  the 
defendant  purporting  to  show  a  surrender  of  the  policy  to  the 
company,  and  that  the  company  canceled  the  policy  and  relieved 
insured  from  all  liability  thereafter.  (5)  In  admitting  evidence 
on  behalf  of  defendant  tending  to  show  that  the  policy  was  sent 
to  the  company  and  that  the  defendant  received  a  notice  from  the 
company  saying  that  the  policy  would  be  canceled  as  soon  as 
the  assessmeiits  were  paid,  and  that  the  assessments  were  paid. 
(6)  In  admitting  evidence,  under  objection,  on  the  part  of  the 
defendant,  to  show  that  defendant  had  received  a  letter  from 
the  oiBcers  of  the  company,  dated  June  7,  1876,  signed  by  the 
secretary;  the  purpose  of  the  offer  being  to  show  that  on  June  7, 
1876,  assessment  No.  2  was  made  by  the  compj^ny ;  to  be  fol- 
lowed by  a  notice  from  the  company  showing  that  the  policy 
would  be  canceled  on  the  payment  of  the  assessments  up  to 
that  date.  This  evidence  to  be  followed  by  the  resolutions  of 
the  board  of  directors  directing  this  policy  to  be  canceled. 

Qeo,  J.  Wadlinger  and  James  L.  Schaadt^  for  appellant — 
The  evidence  failed  to  show  that  defendant  either  paid  her 
pro  rata  share  of  all  losses  and  expenses,  or  that  her  policy  was 
canceled  as  provided  by  the  by-laws,  or  by  any  one  having  au- 
thority to  cancel  the  same  and  relieve  the  defendant  from  lia- 
bility on  her  premium  note.  There  not  being  more  than  a  scin- 
tilla of  evidence  of  a  material  fact,  the  question  should  not  be 
submitted  to  the  jury:  Bank  v.  Wirebach,  106  Pa.  87;  Mc- 
Carthy V.  Scanlon,  176  Pa.  262. 

Failure  to  collect  one  assessment  is  not  a  waiver  of  the  right 
to  collect  a  subsequent  one :  Ins.  Co.  v.  Cochran,  88  Pa.  230. 


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iTATTEiSr  V,  LICHTENWALNER.  677 

1898.]  Arguments — Opinion  of  tlie  Court. 

The  question  of  the  effect  of  a  surrender  of  a  policy  to  an 
agent  has  been  ruled  by  the  Supreme  Court  against  the  conten- 
tion of  the  appellee,  in  the  case  of  Ins.  Co.  v.  Swank,  102  Pa. 
17 ;  Buckley  v.  Ins.  Co.,  83  Pa.  298. 

In  the  case  of  Eichraan  v.  Hersker,  170  Pa.  402,  one  of  the 
defenses  set  up  is  very  much  like  that  of  the  defendant  in  this 
case. 

John  Rupp^  with  him  A.  (?.  De  Walt^  for  appellee. — A  reason- 
able statement  of  the  rule  is,  that  where  there  is  any  evidence 
which  alone  would  justify  an  inference  of  the  disputed  fact,  it 
must  go  to  the  jury,  no  matter  how  strong  or  persuasive  may 
be  the  countervailing  proof :  Raby  v.  Cell,  85  Pa.  80. 

The  liability  of  the  defendant  was  limited  to  paying  her  pro- 
portionate share  of  the  expenses  incurred,  which  happened  dur- 
ing the  period  of  her  membership :  Ins.  Co.  v.  Hartshorn,  90 
Pa.  465 ;  Akers  v.  Kite,  94  Pa.  394. 

Opinion  by  Beaver,  J.,  February  19, 1898 : 
"  A  policy  of  insurance  and  the  premium  note  given  therefor 
constitute  a  contract  between  the  company  and  the  insured  and 
the  parties  usually  have  the  same  power  to  rescind  it  by  mutual 
agreement  as  they  had  to  make  it."  "  A  good  faith  agreement 
between  the  parties  in  a  contract  of  insurance  to  annul  it  is 
valid."  "  The  parties  are  as  much  bound  by  such  an  agree- 
ment as  if  the  policies  had  been  marked  canceled  and  the  pre- 
mium note  given  up."  "  From  thence  the  defendant  had  no 
insurance,  she  was  not  a  member,  nor  was  she  liable  on  the 
notes."  '*  The  plaintiff  has  no  more  right  to  collect  an  assess- 
ment on  such  notes  than  on  those  which  had  been  actually 
returned  on  like  terms : "  Akers  v.  Hite,  94  Pa.  394.  The  sec- 
retary of  an  insurance  company  is  the  proper  organ  of  commu- 
nication between  the  company  and  the  assured.  It  was  clearly 
within  the  scope  of  his  authority  to  inform  the  assured  of  the 
cancelation  of  her  policy,  either  upon  failure  of  the  assured  to 
comply  with  the  condition  upon  which  it  was  issued  and  for  the 
nonperformance  of  which  the  company  had  reserved  the  right 
to  cancel  it,  or  by  agreement  between  the  company  and  the 
assured.  If  the  policy  was  in  fact  canceled,  there  can  be  no 
recovery  of  the  assessments  on  the  premium  note  given  by  the 
Vol.  VI— 87 


Digitized  by  VjOOQ IC 


578  MAITEN  v.  LICHTENWALNER. 

Opinion  of  the  Court.  [6  Pa.  Superior  Ct. 

defendant,  unless  she.  were  liable  for  losses  sustained  by  the 
company  prior  to  such  cancelation :  Columbia  Insurance  Co.  v. 
Masonheimer,  76  Pa.  138. 

The  defendant  became  a  member  of  a  Mutual  Fire  Insur- 
ance Co.,  and,  upon  notice  of  an  assessment  upon  her  premium 
note  to  pay  losses,  she  surrendered  her  policy  to  the  agent  from 
whom  she  had  received  it  and  requested  it  to  be  canceled.  It 
was  sent  by  the  agent  to  the  company  for  cancelation.  The 
secretary  acknowledged  its  receipt  for  cancelation,  and  the  de- 
fendant was  informed  by  the  agent  that  it  had  been  canceled. 
She  subsequently  received  notice  of  two  assessments,  in  one  of 
which  there  was  a  statement  of  assets  and  liabilities,  showing 
abundance  of  assets  for  the  payment  of  liabilities,  with  the 
assurance  that,  upon  the  payment  of  these  assessments,  the  pre- 
mium note  would  be  I'etumed,  and  she  released  from  all  further 
claims.  These  assessmente  were  paid  by  her  to  the  attorney 
designated  by  the  company  to  receive  them.  Upon  this  state 
of  facts,  the  court  below  was  asked  to  say  that  the  plaintiff  was 
entitled  to  a  verdict  for  the  full  amount  of  an  assessment  au- 
thorized by  the  court  of  common  pleas  of  Schuylkill  county,  to 
be  laid,  nearly  ten  years  after  the  payment  of  the  assessments 
last  mentioned  by  the  defendant.  It  is  not  suiprising  that  the 
court  refused  to  do  so. 

The  charge  of  the  court,  in  submitting  the  case  to  the  jury, 
is  clear,  full  and  fair.  The  only  part  of  it  with  which  the  ap- 
pellants find  fault,  is  that  in  which  the  only  question  in  the 
case  which  was  submitted  to  the  jury  is  stated  by  the  court  as 
follows :  "  The  only  question  submitted  to  you  and  the  only 
grounds  upon  which  you  could  find  for  the  defendant  is  this : 
Did  the  directors  of  the  company  cancel  her  policy?  If  they 
did  not  so  act,  then  she  continued  to  be  a  member  and  was  lia- 
ble to  jissessment.  If  you  find  that  the  proper  authorities  of 
the  company  did  cancel  her  policy,  then  you  will  say  that  she 
is  relieved  from  liability  under  its  terms,  provided  it  is  proved 
by  the  defendant  that  all  the  losses  that  had  occurred  down  to 
the  date  of  that  cancelation  had  been  paid,  i.  e.,  realized  by  the 
company.  When  I  say  *  paid,'  I  do  not  mean  that  the  company 
had  actually  passed  the  money  over  to  the  person  or  persons 
who  had  the  loss,  but  that  the  company  had  realized  from  its 
members,  including  Mrs.  Lichtenwalner,  what  they  were  bound 


Digitized  by  VjOOQ IC 


MAITEN  v.  LIGHTEN  VVALNER.  579 

1898.]  Opinion  of  the  Court. 

to  pay  to  satisfy  all  those  losses.  If  tlie  defendant  has  not 
sho>vn  that  she,  Mrs.  Lichtenwalner,  had  paid  to  the  company 
her  share  of  all  the  losses  that  were  incurred  down  to  the  period 
when  the  policy  was  canceled,  if  it  was  canceled,  then  you  will 
say  that  she  still  remained  liable,  notwithstanding  the  action  of 
the  directors  in  attempting  to  give  her  free  and  cancel  her  pol- 
icy/' In  this  there  was  no  error.  The  jury  was  allowed  to 
deal  with  but  two  facts,  namely,  the  cancelation  of  the  defend- 
ant's policy  and  her  nonliability  at  the  time  of  such  cancelation, 
by  reason  of  the  fact  that  the  company  had  collected  assess- 
ments with  which,  or  had  the  means,  to  pay  losses  for  which 
she  was  liable  as  a  member  of  the  company  at  the  time.  As  to 
these  questions  we  cannot  say  that  there  was  no  evidence  to  go 
to  the  jury.  If  the  issue  had  rested  upon  the  surrender  of  the 
policy  and  the  acknowledgment  of  its  receipt  for  cancelation, 
there  might  have  been  some  question  in  regard  to  it,  but  the 
acceptance  by  the  defendant  of  the  proposition  contained  in  the 
notice  of  January  11, 1877,  and  the  payment  by  her  of  assess- 
mentB  Nos.  2  and  3,  which  notice  contained  a  statement  of  the 
assets  and  liabilities  of  the  company  justified  the  jury  in  reach- 
ing a  conclusion  not  only  that  an  agreement  was  thereby  made 
for  the  cancelation  of  the  policy  but  that  the  defendant  also  dis- 
charged the  obligation  to  her  co-members  by  such  payments. 
There  can  be  no  doubt  that,  under  this  state  of  facts,  if  her 
property  had  burned  down,  she  would  not  have  been  entitled  to 
recover  for  its  loss  from  the  company. 

The  failure  of  the  company  to  return  the  premium  note  and 
the  fact  that  the  receiver  found  it  among  its  assets,  when  he 
took  charge  of  them,  amounts  to  nothing,  if  the  agreement  of 
cancelation  was  made,  as  found  by  the  jury.  As  was  said  by 
Mr.  Justice  Tbunkey  in  Akers  v.  Hite,  supra,  "The  plaintiff 
has  no  more  right  to  collect  an  assessment  on  this  note  than  on 
those  which  had  actually  been  returned  on  like  terms."  The 
first,  second  and  third  assignments  of  error  are  overruled. 

In  the  fourth,  fifth  and  sixth  assignments,  which  relate  to  the 
admission  of  evidence,  we  can  see  no  error.  The  testimony 
was  relevant  and  entirely  competent.  It  went  to  the  root  of 
the  case,  namely,  the  cancelation  of  the  defendant's  policy,  and, 
under  the  authorities  which  we  have  cited  herein  was,  we  think, 
properly  received. 

The  judgment  is  affirmed. 


Digitized  by  VjOOQ IC 


580  MYERS  v.  FRITCHMAN. 

Syllabus— Charge  of  Court.       [6  Pa.  Supeiior  CL 


William  M.  Myers,  Appellant,  v,  P.  A.  Fritchraan,  I.  J. 
Bachman,  and  others,  associated  in  an  unincorporated 
association  as  Cradle  of  Liberty  Council,  No.  124,  0. 
U.  A.  M.,  Freemansburg,  Pa. 

8ick  benefit  associcUion — daims  of  members — Proper  tribunal— Jurisdic- 
tion, C.  P. 

The  constitution  and  by-lavrs  of  an  unincorporated  sick  benefit  associ:i- 
tion  derive  their  force  from  assent  eitlier  actual  or  constructive,  and  are 
binding  on  its  members.  Courts  are  without  jurisdiction  to  inquire  into 
'  the  merits  of  questions  whicli  have  been  passed  upon  by  the  organization 
in  the  regular  course  of  business,  provided  those  questions  are  within  tlie 
scope  of  its  powers. 

A  member  of  a  sick  benefit  association  cannot  recover  in  the  courts  a 
sum  alleged  to  be  due  him  when  the  regular  tribunal  constituted  by  the 
constitution  to  pass  on  such  claims  has  repoiled  adversely  after  regular 
proceedings  and  opportunity  for  a  full  hearing. 

Argued  Dec.  8,  1897.  Appeal,  No.  81,  Oct.  T.,  1897,  by 
plaintiff,  from  judgment  of  C.  P.  Northampton  Co.,  Sept.  T., 
1896,  No.  69,  on  verdict  for  defendant.  Before  Rice,  P.  J., 
WiCKHAM,  Beaver,  Reeder,  Orlady,  Smtfh  and  Porter,  J  J. 
Affirmed. 

Appeal  from  judgment  of  a  justice  of  the  peace  in  favor  of 
plaintiff  for  $223.    Before  Schuyler,  P.  J. 

It  appears  from  the  record  and  evidence  that  plaintiff  claimed 
sick  benefits  from  an  unincorporated  sick  benefit  association, 
the  defendant,  of  which  he  was  a  member.  It  appears  that  the 
plaintiff's  claim  had  l)een  submitted  in  accordance  with  the  pro- 
visions of  the  constitution  to  the  tribunal  of  the  association 
constituted  thereby  for  the  determination  of  such  matters,  by 
which  tribunal  it  liad  been  rejected. 

The  court  charged  the  jury  as  follows  : 

The  facts  admitted  by  the  pleadings  are  as  follows:  The 
plaintiff  submitted  the  claim  in  suit  to  the  decision  of  the  local 
council  defendant,  who  rejected  the  claim,  whereupon  the  plain- 
tiff appealed  to  the  state  council,  which  dismissed  the  appeaL  . 


Digitized  by  VjOOQ IC 


MYERS  V,  FRITCHMAN.  6?!. 

1898.]  Charge  of  Court— Arguments. 

[By  section  6,  article  2,  of  the  constitution,  it  is  provided  that 
the  decision  of  the  local  council  upon  claims  of  this  kind  is  final, 
subject  to  an  appeal  to  the  state  council. 

In  the  opinion  of  the  court  this  constitutes  the  claim,  an  adju- 
dicated claim,  and  there  can  be  no  appeal  from  the  decision  of 
the  local  council  under  any  circumstances  to  the  court  of  com- 
mon pleas  for  the  purpose  of  having  the  claim  readjudicated.]  [1] 

Verdict  and  judgment  for  defendant.    Plaintiff  appealed. 

Errors  assiffned  were  (1)  To  portions  of  the  judge's  charge, 
reciting  same.  (2)  In  directing  the  jury  to  find  a  verdict  for 
the  defendant. 

William  0.  Loos^  for  appellant. — A  by-law  imposing  forfeiture 
is  void  in  the  absence  of  a  statute  expressly  conferring  power : 
PhiUips  V.  AUen,  41  Pa.  481. 

Where  a  forfeiture  is  set  up  in  defense,  the  burden  is  upon  . 
the  association  to  prove  the  regularity  of  the  proceedings: 
Crumpton  v.  Pittsburg  Council,  1  Pa.  Superior  Ct.  613. 

Conflicting  circumstances  or  allegations  should  be  submitted 
to  the  jury  for  determination :  Moore  v.  Miller,  8  Pa.  272. 

There  is  no  error  in  the  constitution  or  prohibition  against  ^ 
member's  right  to  have  the  justice  of  his  claim  adjudicated  by 
the  courts.  A  similar  defense  was  introduced  and  rejected  in 
Dobson  V.  Hall,  1  Dist.  Rep.  401. 

A  by-law  that  attempts  to  oust  the  jurisdiction  of  the  court 
is  void :  Sweeney  v.  Beneficial  Soc.,  14  W.  N.  C.  466. 

The  court  has  jurisdiction  to  examine  into  the  proceedings  of 
beneficial  associations :  Manning  v.  Kline,  1  Pa.  Superior  Ct.  210. 

0.  H,  Meyers^  for  appellees. — The  courts  entertain  a  jurisdic- 
tion to  preserve  these  tribunals  in  the  line  of  order  and  to  cor- 
rect abuses ;  but  they  do  not  inquire  into  the  merits  of  what  has 
passed  in  rem  judicatum  in  a  regular  course  of  proceeding: 
Porter  v.  Boone,  8  W.  &  S.  251 ;  Toram  v.  Beneficial  Assn.,  4 
Pa.  519. 

The  constitution  and  articles  of  a  voluntary  association  are 
law  as  to  its  members :  Moxey's  Appeal,  9  W.  N.  C.  441 ; 
Sperry's  Appeal,  116  Pa.  391 ;  Com.  v.  Union  League,  135  J*a. 
801. 


Digitized  by  VjOOQ IC 


582  MYERS  v.  FRITCHMAN. 

Opinion  of  the  Court.  [6  Pa.  Superior  Ct 

Opinion  by  Smith,  J.,  February  19, 1898: 

The  plaintiff,  a  member  of  Cradle  of  Liberty  Council,  O.  tl. 
A.  ^tf..  No.  134,  Freemansburg,  Pa.,  an  unincorporated  society, 
sues  the  society  for  sick  benefits  to  which  he  alleges  he  is  en- 
titled under  its  constitution  and  by-laws.  The  defense  is  that 
this  constitution  provides  for  the  adjudication  of  all  claims  by 
tribunals  of  the  order,  and  that  the  plaintiff  has  been  heard  by 
these  and  determined  against  him. 

One  section  of  the  constitution  referred  to  provides  for  the 
reference  of  certain  cases  to  a  physician,  "whose  report,  if 
approved  by  the  council,  shall  be  final,  subject  to  an  appeal  to 
the  State  Council ; "  and  another  section  provides  for  an  appeal 
from  the  state  to  the  national  council.  The  plaintiff's  case  is 
one  that  falls  within  these  provisions. 

There  is  no  controversy  as  to  the  facts  on  which  the  defense 
rests.  They  are  set  forth  in  an  aflBdavit  of  defense,  the  aver- 
ments of  which,  not  being  negatived  by  the  declaration  or  denied 
by  replication,  are,  under  a  rule  of  the  court  below,  to  be  taken 
as  admitted.  An  adverse  report  of  a  physician  on  the  plain- 
tiff's claim,  supplemented  by  a  like  report  by  the  relief  com- 
mittee, and  a  further  investigation  made  at  the  plaintiff's  re- 
quest, with  the  same  result,  was  duly  approved  by  the  local 
council,  and  on  an  appeal  by  the  plaintiff  was  approved  by  the 
state  council.  Thereupon  the  plaintiff,  instead  of  appealing  to 
the  national  council,  brought  this  action. 
.  It  has  long  been  settled  that  when  one  becomes  a  member  of 
such  an  organization  as  this  he  accepts  and  is  bound  by  the 
rules  adopted  for  its  government.  His  rights  and  liabilities  are 
regulated  by  those  rules,  whether  they  be  called  a  constitution, 
or  by-laws,  or  both,  provided  they  are  not  in  contravention  of 
the  laws  of  the  commonwealth :  Com.  v.  Society,  8  W.  &  S. 
247 ;  Com.  v.  Union  League,  135  Pa.  301.  This  doctrine  has 
been  recognized  in  many  other  cases,  and  is  in  conflict  with 
none.  While  perhaps  most  of  the  reported  cases  were  begun 
by  mandamus,  the  principle  applies  to  all  proceedings  in  which 
rights  arising  from  membership  are  involved.  The  question 
was  raised  in  an  action  on  the  case  to  recover  benefits,  in  Society 
v.  Vandyke,  2  Wharton,  309,  and  the  doctrine  was  there  laid 
down  that  the  by-laws  of  a  body  like  the  present,  derive  their 
force  from  asaent,  either  actual  or  constructive,  and  are  binding 


Digitized  by  VjOOQ  IC 


MYERS  v.  FRITCHMAN.  583 

J898.]  Opinion  of  the  Court. 

on  its  members.  This  principle  has  been  adhered  to  ever  since. 
In  Com.  V.  Benef.  Society,  8  W.  &  S.  247,  supra,  it  was  said  by 
Sergeant,  J.  "  The  charter  to  the  defendants  below,  provides 
for  the  offense,  directs  the  mode  of  proceeding,  and  authorizes 
the  society,  on  conviction  of  the  member,  to  expel  him.  This 
has  been  done,  after  a  hearing  and  trial,  according  to  the  mode 
prescribed ;  at  least,  there  is  no  allegation  of  the  irregularity  of 
the  proceeding.  Under  these  circumstances  the  sentence  is 
conclusive  on  the  merits,  and  cannot  be  inquired  into  collaterally 
either  by  mandamus  or  action,  or  in  any  other  mode."  Courts 
are  without  jurisdiction  to  inquire  into  the  merits  of  questions 
which  have  been  passed  upon  by  the  organization  in  the  regular 
course  of  the  business,  provided  those  questions  are  within  the 
scope  of  its  powers.  When  the  organization  acts  in  a  judicial 
capacity  with  reference  to  matters  of  which  it  has  undoubted 
jurisdiction  under  its  laws,  its  decisions  are  conclusive  on 
members  and  all  those  who  claim  under  its  laws ;  hence  they 
cannot  resort  to  the  courts  with  alleged  grievances  which  have 
thus  been  passed  upon.  By  uniting  in  membenship  they  desig- 
nate the  organization  as  the  forum  of  their  choice  relative  to 
all  membership  questions,  and  its  rules  determine  their  rights 
and  duties.  Courts  may  judge  of  the  cause  so  far  as  to  ascer- 
tain whether  it  be  within  the  jurisdiction  of  the  organization, 
and  whether  the  prescribed  forms  have  been  observed  in  deal- 
ing with  the  question,  but  cannot  review  the  case  on  the  merits : 
Com.  V.  Union  League,  supra.  In  McAlees  v.  Order  Iron  Hall, 
12  Cent.  Rep.  415,  it  was  said,  per  curiam:  "We  have  often 
held  that  a  member  of  a  beneficial  society  must  resort  for  the 
correction  of  an  alleged  wrong,  to  the  tribimals  of  his  order, 
and  that  the  judgment  of  such  tribunals,  when  resulting  fairly 
from  the  application  of  the  rules  of  the  society,  is  final  and  con- 
clusive." This  case  bears  some  features  similar  to  those  of  the 
case  in  hand,  notably  the  provisions  with  reference  to  the  adjust- 
ment of  differences  and  the  finality  of  the  judgment  pronounced. 
The  policy  of  the  law  is  to  encourage  the  amicable  settlement 
of  differences  arising  in  those  societies,  in  accordance  with  their 
rules,  when  within  the  scope  of  their  objects,  and  thus  avoid 
the  annoyance  and  expense  of  public  legal  controversies  over 
private  matters,  in  violation  of  charter  obligations.  It  was  said 
by  Chief  Justice  Gibson  in  Society,  v  Vandyke,  supra,  "  Even 


Digitized  by  VjOOQ IC 


584  MYERS  v.  FRITCHMAN; 

Opinion  of  the  Court.  [6  Pa.  Superior  Ct. 

were  there  not  a  sentence  in  the  way,  payment  of  his  stipendary 
allowance  could  not  be  enforced  by  action.  The  society  never 
consented  to  expose  itself  to  the  costs  and  vexation  of  an  action 
for  every  weekly  pittance  that  might  be  in  arrear." 

As  has  been  said  by  our  highest  court,  "  a  member  must  resort 
to  the  tribunal  of  his  order,  and  the  judgment  of  such  tribunal 
is  final  and  conclusive."  In  seeking  rights  arising  under  the 
constitution  of  the  order,  he  must  pursue  the  methods  pro- 
vided by  this  constitution.  In  the  present  case,  the  order  to 
which  the  plaintiff  belonged  has,  by  its  constitution,  provided 
tribunals  for  the  settlement  of  his  claim.  He  was  bound  to 
resort  to  these,  and  is  concluded  by  their  adjudication.  He 
does  not  deny  that  their  proceedings  in  relation  to  his  claim, 
were  regular,  nor  that  he  had  full  opportimity  of  being  heard. 
Their  jurisdiction  is  not  to  be  transferred  to  the  courts  of  law 
because  of  an  adverse  decision,  or  his  failure  to  employ  or  to  ex- 
haust the  methods  provided  for  its  exercise.  The  court  below, 
therefore,  properly  directed  a  verdict  for  the  defendants. 


Acetylene  Light,  Heat  &  Power  Company  v.  Charles 
Beck,  Appellant. 

Praciice,  C.  P,-^Insufficieni  affidavUSubscriplion  to  siock^Alleged  in- 
ducing promises. 

An  affidavit  is  insufficient  which  sets  up  alleged  unfulfilled  promises  and 
unrealized  expectations  as  a  defense  to  clearly  expressed  obligations  of  a 
written  contract. 

In  a  suit  on  a  sealed  contract  to  recover  a  subscription  to  stock,  in  terms 
an  unqualified  agreement  to  pay  fifty  per  centum  of  the  price  down  and 
the  balance  as  called  for  by  the  corporation,  the  affidavit  of  defense  held 
insufficient  which  rested  the  defense  on  certain  alleged  parol  promises  upon 
which  the  subscription  was  induced  and  which  had  not  been  fulfilled. 
Held,  insufficient  also  in  that  it  did  not  allege  that  the  promises  were 
omitted  from  the  written  contract  by  fraud,  accident  or  mistake,  that  part 
of  the  written  conti*act  itself  had  been  violated,  that  it  did  not  specify 
wherein  the  alleged  promises  were  false  or  fraudulent,  or  state  any  speci- 
fic loss. 

Argued  Dec.  16, 1897.  Appeal  No.  140,  Oct.  T.,  1897,  by 

Digitized  by  VjOOQ IC 


ACETYLENE  CO.  u  BECK.  585 

1898.]  StAtement  of  Facts. 

defendant^  from  judgment  of  C.  P.  No.  1,  Phila.  Co.,  March  T., 
1897,  No.  237,  for  want  of  a  sufficient  affidavit  of  defense.  Be- 
fore WiCKHAM,  Beaver,  Reedeb,  Oblady,  Smith  and  Fob- 
TEB,  J  J.    Affirmed. 

Assumpsit  to  recover  unpaid  subscription  to  stock. 

Plaintiff's  statement  set  out  an  agreement  under  seal  whereby 
the  defendant  subscribed  to  eighty  shares  of  the  capital  stock 
of  the  plaintiff  company,  agreemg  to  pay  fifty  per  centum  at  the 
time  of  signing  the  agreement  and  to  pay  the  additional  fifty 
per  centum  when  and  as  the  same  shall  be  called  by  the  board 
of  directors  of  the  corporation. 

Subsequent  to  the  payment  of  the  original  fifty  per  centum 
an  assessment  of  ten  per  cent  on  the  stock  had  been  called  and 
paid  for  by  the  defendant,  and  subsequently  the  assessment, 
which  is  the  subject  of  the  suit  in  controversy,  was  made  on 
April  20,  1896,  which  the  defendant  refused  to  pay. 

Defendant  in  his  affidavit  of  defense  alleged  that  the  sub: 
scription  was  obtained  by  reason  of  fake  and  fraudulent  state- 
ments made  by  the  officers  of  the  company  at  the  time  said, 
subscription  was  solicited  and  obtained.  That  the  company 
agreed  to  supply  deponent  with  gas  and  failed  to  do  so,  that 
access  to  the  books  of  the  company  is  denied  the  stockholdeiB ; 
that  the  officers  control  a  large  majority  of  the  stock  which  they 
voted  to  themselves,  and  have  passed  a  by-law  whereby  said 
officers  continue  to  elect  themselves  to  office :  that  after  the  de- 
fendant subscribed,  the  officers  of  the  company  issued  another 
million  dollars'  worth  of  stock  which  they  claimed  was  used  to 
pay  for  the  right  to  use  said  gas  within  a  ciixjuit  of  ten  miles  of 
the  city  hall  in  Philadelphia,  which  is  not  as  great  a  territory  as 
is  covered  by  the  county  of  Philadelphia,  in  which  it  was  al- 
leged the  right  of  territory  had  been  secured ;  that  the  company 
had  squandered  large  sums  of  money  in  experimental  work  and 
that  up  to  the  present  time  had  failed  to  manufacture  and  intro- 
duce a  marketable  gas,  and  that  defendant  believed  the  com- 
pany to  be  absolutely  insolvent  and  unable  to  carry  out  any  of 
the  representations  made  by  it  to  induce  subscriptions  to  its 
stock. 

Judgment  for  plaintiff  for  ^00,  with  interest  from  Octo-, 
ber,  1, 1896.    Defendant  appealed. 


Digitized  by  VjOOQ IC 


586  ACETYLENE  CO.  v.  BECK. 

Assignment  of  EiTor— Opinion  of  the  Court.      [6  Pa.  Superior  Cf.. 

Error  assigned  was  entry  of  judgment  for  want  of  a  sufficient 
affidavit  of  defense. 

Edwin  0.  Michener^  for  appellant. — It  is  well  recognized  in 
Pennsylvania  that  any  false  or  fraudulent  statements  made  by 
officers  of  the  company,  to  induce  subscriptions  to  its  stock,  are 
a  good  defense  in  a  suit  brought  by  the  company,  although  they 
would  not  be  a  good  defense  in  a  suit  brought  by  a  receiver. 
Among  the  later  cases  upon  this  subject  are  Ins.  Co.  v.  Hum- 
ble, 100  Pa.  495;  Dettra  v.  Kestner,  147  Pa.  566. 

Harry  B,  Oill^  with  him  Read  ^  Pettit^  for  appellee. 

Opinion  by  Smith,  J.,  February  19, 1898 : 

In  this  action,  brought  on  a  contract  of  subscription  to  stock, 
a  judgment  was  entered  for  the  plaintiff  for  want  of  a  sufficient 
affidavit  of  defense.  The  subscription  of  the  defendant  was  in 
writing,  under  his  hand  and  seal,  and  in  law  is  an  ordinary  con- 
tract: Railroad  v.  Graham,  36  Pa.  77.  And  with  i*eference  to 
other  subscribers,  it  is  a  trilateral  contiuct :  Railroad  v.  Con- 
way, 177  Pa.  864.  In  terms,  it  is  an  unqualified  agreement 
to  purchase  eighty  shares  of  stock,  fifty  per  centum  of  the 
price  to  be  paid  down,  and  the  balance  as  called  for  by  the  cor- 
poration. It  contains  no  other  condition  or  limitation.  More 
than  one  year  after  its  execution,  the  defendant  paid  an  addi- 
tional ten  per  centum  of  his  subscription,  upon  call  by  the 
directors ;  but  a  few  months  thereafter,  when  duly  called  upon 
for  another  instalment  of  ten  per  cent,  he  refused  to  pay  on  the 
ground,  substantially,  that  certain  alleged  parol  promises,  set  out 
in  the  affidavit  of  defense,  and  upon  the  faith  of  which  he  now 
says  he  subscribed,  have  not  been  fulfilled.  It  is  not  alleged 
that  the  parol  agreement,  now  set  up  in  defense,  was  omitted 
from  the  writing  by  fraud,  accident,  or  mistake ;  nor  is  it  averred 
that  any  part  of  the  written  contract  itself  has  been  violated  by 
the  plaintiff.  The  affidavit  alleges  that  the  subscription  of  the 
defendant  was  obtained  by  reason  of  false  and  fraudulent  repre- 
sentations, but  does  not  specify  wherein  the  alleged  parol  state- 
ments were  false  or  fraudulent.  The  most  that  can  be  said  of 
the  affidavit  is  that  it  recites  alleged,  unfulfilled  promises,  and 
unrealized  expectations.     Nothing  definite  is  given,  showing  or 


Digitized  by  VjOOQ IC 


ACETYLENE  CO.  v.  BECK.  587 

1898.]  Opinion  of  tlie  Court. 

alleging  the  existence  of  fraud  when  the  contract  was  made, 
and  upon  the  strength  of  which  the  subscription  was  procured. 
No  specific  loss  is  stated  upon  which  even  a  defense  of  set-off 
could  be  based.  The  defendant  has  evidently  lost  faith  in  the 
enterprise,  and  therefore  seeks  to  avoid  further  liability.  The 
main  features  of  the  affidavit  allege  unperformed  promises,  and 
misappropriation  and  waste  of  the  company's  assets.  But  these 
allegations  are  not  sufficient  to  bar  judgment :  Iron  &  Steel  Co. 
V.  Selliez,  175  Pa.  18.  If,  as  the  defendant  seems  to  believe, 
the  affairs  of  the  corporation  have  been  mismanaged,  and  it  has 
become  insolvent,  the  law  affords  a  remedy  for  those  ills.  But 
they  cannot  be  cured  or  lessened  by  withholding  from  the  com- 
pany a  legitimate  part  of  its  assets,  the  use  of  which  might  en- 
able the  officers  tq  successfully  carry  on  its  corporate  business. 

Conceding  the  truth  of  the  affidavit,  and  giving  full  force  to 
all  proper  inferences  therefrom,  enough  has  not  been  shown  to 
entitle  the  defendant  to  go  to  a  jury. 

Judgment  affirmed. 


Phillip  Yedinskey  v.  Felix  Strouse,  Appellant. 

HecU  estate  broker— Commtsstons— Actum  without  license — Burden  of 
proof. 

Where  a  pei*8on  claims  for  serrioes  rendered  about  the  sale  of  real  estate 
under  a  contract  and  not  as  a  real  estate  broker,  it  devolves  on  the  em- 
ployer, if  he  relies  on  the  fact  that  plaintiff  was  a  real  estate  broker,  to 
show  that  fact,  and  the  question  when  properly  raised  is  for  the  jury. 

Beat  estate —Bight  to  recover  for  sale  under  contract— Broker, 
Any  person  may  lawfully  employ  one,  who  is  not  a  real  estate  broker, 
to  buy  or  sell  real  estate,  and  when  such  employment  takes  place  and 
labor  is  done  under  the  employment,  it  must  be  paid  for. 

Argued  Dec.  10,  1897.  Appeal,  No.  169,  Oct.  T.,  1897,  by 
defendant,  from  judgment  of  C.  P.  Schuylkill  Co.,  May  T.,  1896, 
No.  492,  on  verdict  for  plaintiff.  Before  Rice,  P.  J.,  Wick- 
ham,  Bbaveb,  Reedeb,  Orlady,  Smith  and  Porter,  JJ. 
Affirmed. 


Digitized  by  VjOOQ  IC 


588  YEDINSKEY  v.  STROUSE. 

Statement  of  Facts — Opinion  of  the  Court.  [6  Pa.  Superior  Gt. 

Assumpsit  to  recover  for  services  in  selling  real  estate.  Be- 
fore Bbchtbl,  J. 

The  facts  sufficiently  appear  in  the  opinion  of  the  court. 

Verdict  and  judgment  for  plaintiff  for  $^325.80.  Defendant 
appealed. 

Errors  assigned  were  (1)  In  not  affirming  the  defendant's 
firet  point,  to  wit :  "  That  the  testimony  of  the  plaintiff  and  his 
witnesses  shows  that  the  plaintiff  was  in  the  business  of  buying 
and  selling  real  estate,  and  that  he  had  no  license,  and  therefore 
under  all  the  evidence  the  plaintiff  cannot  recover,"  and  in 
making  the  following  answer  to  said  point :  "  Tliis  we  decline 
to  say  to  you,  and  have  already  indicated  to  you  that  we  leave 
the  matter  to  you  as  a  question  of  fact."  (2)  In  not  affirming 
the  defendant's  third  point:  "That  under  all  the  evidence  the 
plaintiff  cannot  recover,"  and  in  making  the  following  answer : 
"  This  we  refuse  to  say  to  you,  and  leave  you  to  decide  what 
your  verdict  shall  be." 

Wm.  Wilhelniy  for  appellant. 

D.  0,  Henning^  with  him  W.  J.  Whitehouse^  for  appellee. 

Opinion  by  Wickham,  J.,  February  19, 1898  : 

The  defendant,  desiring  to  sell  certain  real  estate  in  Potts- 
ville,  at  the  price  of  f  20,000,  offered  the  plaintiff  who  was  the 
court  interpreter  of  Schuylkill  county  $300  to  find  him  a  pur- 
chaser. The  plaintiff  secured  a  buyer,  who  bought  at  the  price 
fixed.  The  employment  of  the  plaintiff,  although  denied  by 
the  defendant,  was  found  by  the  jury  on  ample  evidence,  to 
have  taken  place.  When  the  plaintiff  demanded  his  compensa- 
tion, it  was  refused,  hence  this  suit. 

The  agreement  between  the  parties  was  made  in  1896  or 
earlier,  the  sale  took  place  in  the  fall  of  1895,  about  the  month 
of  November,  and  this  case  was  tried  in  the  court  below  on  Sep- 
tember 25  and  26, 1897.  These  dates  are  quite  important,  in 
view  of  the  main  defense  set  up,  and  the  nature  of  the  evidence 
relied  on  to  sustain  it. 

At  the  trial  the  defendant,  in  addition  to  denying  the  con- 
tract, alleged  that  the  plaintiff  was  a  real  estate  broker  and  was 


Digitized  by  VjOOQ IC 


YEDINSKEY  v.  STROUSE.  580 

1898.]  Opinion  of  the  Court. 

not  entitled  to  recover,  because  he  had  not  the  license  required 
by  Act  of  April  10,  1849,  sec.  18,  P.  L.  573.  This  is  the  only 
matter  of  defense  urged  here. 

The  evidence  that  the  plaintiff  was  a  real  estate  broker  when 
he  made  his  contract  with  the  defendant,  or  found  the  purchaser, 
was  not  so  clear  as  to  justify  the  court  in  saying,  as  a  matter  of 
law,  that  he  was  one  at  that  time.  This  question  was,  therefore, 
properly  referred  to  the  jury  who  found  in  the  plaintiff's  favor. 

The  plaintiff  does  not  speak  English  with  ease  or  correctness, 
and  in  testifying  regarding  the  matter,  nearly  always  spoke  in 
the  present  tense.  Whether  he  meant,  by  any  of  his  answers,  to 
convey  the  idea  that  he  had  been  buying  and  selling  real  estate 
for  others  as  a  business,  as  far  back  as.  the  year  in  which  the  de- 
fendant's property  was  sold,  was  so  uncertain,  as  to  make  it  the 
duty  of  the  court  to  leave  the  question  to  the  juiy,  as  one  of  fact. 
Outside  of  the  plaintiff's  own  testimony,  there  is  not  much  to 
show  that  he  was  a  real  estate  broker  at  any  time.  It  is  true, 
that  another  witness  stated  that  the  plaintiff  had  "  bought  or 
sold  several  properties  "  before  he  had  acted  for  the  defendant, 
but  an  occasional  or  casual  sale  does  not  necessarily  make  the 
negotiator  thereof  a  broker,  within  the  meaning  of  the  act: 
Chadwick  v.  Collins,  26  Pa.  138. 

We  quote  from  the  decision  just  cited :  "  Any  person  may 
lawfully  employ  one,  who  is  not  a  real  estate  broker,  to  buy  or 
sell  real  estate,  and  when  such  employment  takes  place,  and 
labor  is  done  under  the  employment,  it  must  be  paid  for ;  at  all 
events,  the  law  will  not  lend  its  aid  to  the  employer,  to  defraud 
the  employee  out  of  his  just  reward. 

"  PracticaUy  there  is  no  difficulty  in  ascertaining  who  are  en- 
gaged in  the  business  or  occupation  of  real  estate  brokers.  It 
is  those  who  hold  themselves  out  to  the  public  as  such,  gener- 
ally having  offices  or  places  of  business,  the  character  of  which 
is  indicated  by  clear  and  unmistakable  evidence." 

As  the  plaintiff  in  the  present  case  did  not  declare  as  a  pro- 
fessional real  estate  broker,  but  rested  his  claim  on  a  special 
contract,  made  as  an  ordinary  individual  with  the  defendant,  it 
devolved  on  the  latter  if  he  chose  to  defend  on  the  ground  that 
the  plaintiff  was  a  broker,  to  show  that  fact,  in  some  way.  This, 
he  contends,  was  done  through  the  plaintiff's  own  admissions 
in  his  testimony.     Had  the  inquiry  related  to  the  fact  of  the 


Digitized  by  VjOOQ IC 


590  YEDINSKKY  v.  STROUSE. 

Opinion  of  the  Court.  [6  Pa.  Superior  Ct^ 

plaintiiT  having  been  engaged  in  the  business  or  occupation  of 
a  real  estate  broker  at  or  about  the  time  of  the  trial,  or  within 
a  few  months  before,  instead  of  at  an  earlier  period,  the  state- 
ments he  made  in  testifying  might  have  warranted  the  court  in 
holding,  that  he  was  subject  to  the  act  and,  therefore,  bound  to 
have  a  license,  although  he  denied  that  he  was  a  broker  and  it 
did  not  appear  that  he  advertised  or  had  an  office.  But,  the 
important  question  was,  whether  he  was  a  broker  as  earlj'  as 
1895,  and  this  under  the  doubtful  evidence  was  for  the  jury  to 
decide. 

The  case  of  Johnson  v.  Hulings,  103  Pa.  498,  relied  on  by  the 
defendant,  does  not  govern  the  one  in  hand.  There  the  plain- 
tiff admitted  and  the  jury,  in  a  special  verdict,  found  that  at  the 
very  time  the  contract  sued  on  was  made,  he  was  engaged  in 
buying  and  selling  real  estate  for  others,  on  commission,  as  a 
business,  and  had  no  license. 

In  view  of  the  finding  of  the  jury,  in  the  present  case,  that 
the  plaintiff,  at  the  time  of  his  dealings  with  the  defendant,  was 
not  a  real  estate  broker,  it  is  unnecessary  to  consider  the  evi- 
dence relating  to  the  matter  of  tlie  license. 

Judgment  affirmed. 


The  Philadelphia  Bourse  v.  William  C.  Downing  and 
Robert  W.  Downing,  Jr.,  Copartners,  trading  as  Down- 
ing Brothers,  Appellants. 

ContrtJuU — Rescission  of— Stock  subscription — MisrepresentcUion, 
Benefits  to  be  derived  from  the  founding  of  an  institution  to  the  stock 
of  which  the  defendant  was  invited  to  subscribe,  may  or  may  not  result  as 
alleged,  but  disappointment  as  to  the  result  cannot  be  set  up  in  defense  to 
a  suit  to  recover  a  subscription  to  stock  when  the  subscriber  had  quite  as 
good  opportunities  of  judging  as  the  person  who  solicited  and  secured  the 
subscnption. 

Practice,  C.  P. — Insufficient  affidavit— Contract — Misrepresentation. 

An  affidavit  is  insufficient,  which,  setting  up  two  distinct  representations 
as  inducing  a  subscription  to  stock  of  a  corporation,  is  indefinite  in  its 
allegations  as  to  which  is  false;  it  is  insufficient  moreover,  when  alleging 
mere  expressions  of  opinion,  it  fails  to  aver  a  distinct  statement  of  raateriaJ 


Digitized  by.  VjOOQ IC 


PHILADELPHIA  BOURSE  v.  DOWNING.  591 

1898.]  Syllabus—Statement  of  Facts. 

fact  known  to  the  solicitor  and  unknown  to  the  subscriber,  which  if  false 
would  justify  a  rescission  of  the  contmct. 

Argued  Dec.  15,  1897.  Appeal,  No.  138,  Oct.  T.,  1897,  by 
defendant,  from  judgment  of  C.  P.  No.  3,  Phila.  Co.,  Sept.  T., 
1893,  No.  726,  for  want  of  a  sufficient  affidavit  of  defense. 
Before  Wickham,  Beaver,  Reeder,  Orlady,  Smith  and 
Porter,  JJ.    Affirmed. 

Assumpsit  to  recover  subscription  to  tbe  capital  stock  of  the 
Philadelphia  Bourse  amounting  to  f500  with  interest  from 
respective  dates  of  calls  thereon. 

The  statement  alleged  that  defendant  subscribed  for  ten 
shares  par  value  $50.00  of  the  capital  stock  of  the  Philadel- 
l)hia  Bourse,  to  which  the  terms  of  the  subscription  were  fully 
complied  with,  and  which  became  due  on  the  first  days  of  the 
months  of  April,  May  and  June.  That  demands  for  said  pay- 
ments were  duly  made  upon  the  days  and  payment  refused. 
Defendants  filed  the  following  affidavit  and  supplemental  affi- 
davit of  defense. 

The  affidavit  of  defense  was  as  follows : 

Deponent  avers  that  on  or  about  December  10,  1891,  the 
agent  of  the  said  plaintiff,  specially  authorized  for  that  purpose, 
did  solicit  the  subscription  of  the  said  defendants  to  the  capital 
stock  of  the  said  plaintiff,  and  acting  within  the  scope  of  the 
said  authority,  did  represent  to  the  said  defendants,  that  all  of 
the  largest  retail  coal  dealers  in  the  city  of  Philadelphia  had  or 
were  about  to  subscribe  to  the  said  stock,  and  that  the  enter- 
prise was  intended  to  foster  and  encourage  the  trade  of  the  re- 
tail coal  dealers  in  the  city  of  Philadelphia,  and  who,  if  thus 
interested  as  stockholders,  would  be  of  service  to  each  other. 

Deponent  avers  that  the  said  representations  so  made  were 
false  and  were  made  with  the  intention  of  deceiving  and  mis- 
leading the  said  defendants ;  wherefore  and  whereby  the  said 
defendants  do  elect  to  rescind  the  said  contract  for  said  sub- 
scription to  the  stock  of  the  plaintiff,  and  repudiate  all  liability 
thereunder. 

The  supplemental  affidavit  of  defense  was  as  follows : 

That  the  representations  referred  to  in  the  affidavit  of  defense 
heretofore  filed,  made  to  defendants  by  said  agent  of  plaintiff, 
were  fake,  and  at  the  time  they  were  so  made  they  were  known 


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592  PHILADELPHIA  BOURSE  v.  DOWNING. 

Statement  of  Facts — Opinion  of  the  Court.     [6  Pa.  Superior  Ct. 

by  said  agent  to  be  false.  Tliat  said  false  and  fraudulent  mis- 
representations were  the  inducing  cause  to  obtain  the  said  sub- 
scription of  these  defendants,  and  said  subscription  was  made 
solely  and  entirely  by  reason  of  the  said  misrepresentations 
being  made  to  these  defendants,  and  believed  and  relied  upon 
by  them,  and  that  said  subscription  would  not  have  been  made 
except  that  the  defendants  relied  and  believed  that  the  state- 
ments and  representations  made  by  the  agent  of  the  said  plain- 
tiff at  the  time  of  obtaining  the  said  subscription  were  true. 
That  these  defendants  did  elect  to  rescind  the  said  contract  to 
subscribe  to  the  stock  of  the  said  plaintiff  as  soon  as  the  fi-aud 
practiced  upon  them,  as  above  referred  to  and  set  forth  in  the 
original  affidavit  of  defense,  was  discovered  by  them. 

Judgment  for  plaintiff  for  tSOO  with  interest.  Defendant 
appealed. 

Error  assigned  was  making  the  rule  absolute  for  judgment 
for  want  of  a  sufficient  affidavit  of  defense. 

F,  R.  Shattuck,  for  appellants. — There  is  no  distinction  to  be 
drawn  between  the  facts  in  this  case  and  those  in  the  case  of 
Lare  v.  Westmoreland  Specialty  Company,  155  Pa.  33.  To  the 
same  effect,  also,  is  the  case  of  Howard,  Receiver,  v.  Turner,  155 
Pa.  849. 

Charles  A.  Chase^  with  him  Charles  C.  Lister^  for  appellee. — 
A  subscription  to  a  joint  stock  company  is  not  only  an  under- 
taking to  the  company,  but  with  all  other  subscribers,  and  even 
if  fraudulent  as  between  the  parties  is  to  be  enforced  for  the 
benefit  of  the  others  in  interest :  Graeff  v.  R.  R.,  31  Pa.  489. 

In  Guarantee  Co.  v.  Mayer,  141  Pa.  511,  an  allegation  that 
a  stock  subscription  was  obtained  upon  the  representation  that 
branch  offices  would  be  established,  which  were  not,  was  held 
to  be  insufficient  to  prevent  summary  judgment. 

Opinion  by  Beaver,  J.,  February  19, 1898 : 
The  affidavit  of  defense  in  this  case  was  clearly  insufficient. 
It  was  indefinite.     There  are  at  lei\st  two  distinct  representa- 
tions set  out  in  the  affidavit.     Which  of  them  is  alleged  to  be 
false?    Upon  which  of  them  did  the  defendants  rely?    We 


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PHILADELPHIA  BOURSE  r.  DOWNING.  693 

1898.]  Opinion  of  the  Court. 

cannot  tell.  It  is  important,  from  every  point  of  view,  that  the 
affidavit  should  set  forth  whether  they  relied  upon  the  represen- 
tation "  that  all  of  the  largest  retail  coal  dealers  in  the  city  of 
Philadelphia  had  or  were  about  to  subscribe  to  the  said  stock  " 
or  upon  that  which  alleged  "  that  the  enterprise  was  intended 
to  foster  and  encourage  the  trade  of  the  retail  coal  dealers  in 
the  city  of  Philadelphia  and  who,  if  thus  interested  as  stock- 
holders, would  be  of  service  to  each  other." 

Independently  of  this,  however,  were  the  representations  such 
as  would  justify  the  rescission  of  the  contract  set  forth  in  the 
plaintiff's  statement?  We  think  not.  At  the  most  they  con- 
stituted the  expression  of  an  opinion  as  to  what  would  be  done 
by  the  largest  retail  coal  dealers  in  the  city  of  Philadelphia,  and 
as  to  the  effect  which  such  sul>8cription  would  have  in  bringing 
these  traders  together  for  their  mutual  benefit.  There  was  no 
distinct  statement  of  a  material  fact  known  to  the  person  alleged 
to  have  been  the  agent  of  the  plaintiff,  and  unknown  to  the 
defendants,  which  would  justify  the  rescission  of  the  contract. 
The  benefits  to  be  derived  from  the  founding  of  the  institution, 
to  the  stock  of  which  the  defendants  were  invited  to  subscribe, 
may  or  may  not  result  as  alleged,  but  as  to  this  they  had  quite 
as  good  opportunities  of  judging  as  the  person  who  secured 
their  subscription. 

There  is  no  allegation  that  they  made  inquiry  as  to  who  the 
largest  retail  coal  dealers,  whose  subscriptions  were  expected, 
were.  Indeed  the  answer  to  such  a  question  would  necessarily 
have  been  a  matter  of  conjecture.  Equally  difficult  would  it  have 
been  to  determine  who  the  largest  retail  coal  dealers  were.  Opin- 
ions as  to  that  question  would  doubtless  differ.  The  representa- 
tions lack  all  the  essential  elements  necessary  to  establish  fraud, 
which  will  justify  the  rescission  of  a  written  contract :  Southern 
Development  Co.  v.  Silva,  126  U.  S.  247 ;  Brown  v.  Eccles,  2 
Pa.  Superior  Ct.  192. 

The  judgment  is  affirmed. 
Vol.  VI— 38 


Digitized  by  VjOOQ IC 


694  KLEINKRT  v.  ICE  &  COAL  CO. 

Syllabus— Statement  of  Facts.     [6  Pa.  Superior  CI. 


Mary  B.  Kleinert  v.  Catharine  A.  Rees  and  P.  Ashman 
Rees,  trading  as  Delaware  Ice  &  Coal  Co.^  Appellants. 

Negligence — IhUy  of  driver  approaching  crossing— Question  for  Jury. 

It  is  the  duty  of  dnvers  of  wagons  to  approach  street  crossings,  recog- 
nizing the  fact  that  people  may  attempt  to  ci*oss  at  that  street,  and  it  thei*e- 
fore  becomes  a  duty  to  have  the  team  in  such  condition  as  to  be  able  to 
stop  it. 

A  dnver  of  an  ice  wagon  turned  so  suddenly  from  Arch  to  Juniper  street 
that  the  near  horse  sti'uck  a  woman  just  stepping  from  the  curb  upon  the 
crossing.  The  evidence  of  negligence  was  clear  and  abundant,  although 
to  some  extent  denied.  Held,  that  the  question  of  negligence  was  prop- 
erly left  to  the  jury. 

Argued  Oct.  21,  1897.  Appeal,  No.  53,  Oct.  T.,  1897,  by 
defendants  from  judgment  of  C.  P.  No.  1,  Phila.  Co.,  June  T., 
1894,  No.  450,  on  verdict  for  plaintifiF.  Before  Rice,  P.  J., 
WiCKHAM,  Beaver,  Reedeb,  Orlady  and  Porter,  JJ. 
Affirmed. 

Trespass  for  personal  injuries.     Befoi'c  Bbboy,  J. 

It  appears  from  the  evidence  that  plaintiff  was  walking  on 
Juniper  street  in  the  city  of  Philadelphia  which  runs  north  and 
south,  east  of  Broad  street,  and  is  twenty-eight  feet  in  width, 
having  seven  feet  wide  sidewalks  on  each  side  and  a  road  bed 
fourteen  feet  in  width.  Arch  street  runs  east  and  west  at  right 
angles  with  Juniper  street,  and  is  of  the  width  of  seventy-two 
feet,  having  sidewalks  on  each  side  of  eighteen  feet  and  a  road- 
bed of  thirtynsix  feet.  On  Arch  street  there  are  constructed 
two  passenger  railway  tracks  occupying  thirteen  feet  ten  and  a 
half  inches  in  the  center  of  the  street.  The  plaintiff  was  on  the 
east  side  of  Juniper  street  between  Arch  and  Filbert  streets, 
intending  to  take  a  car  on  Arch  street  going  west  on  the  north 
track.  Defendants'  ice  wagon  with  two  horses  attached  was 
on  the  south  track  on  Arch  street  going  east  from  Broad,  and 
was  turned  into  Juniper  street,  and  the  plaintiff,  as  she  stepped 
off  the  sidewalk  of  Juniper  street,  was  struck  by  one  of  the 
liorees  and  was  knocked  down  and  trodden  upon. 

There  was  evidence  tending  to  show  that  plaintiff  saw  the 
wagon  coming  down  Arch  street  but  supposed,  from  its  speed, 


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KLEINERT  v.  ICE  &  COAL  CO.  595 

1898.]  Statement  of  Facts— Opinion  of  the  Court. 

that  it  intended  to  go  east  past  Juniper  street.  The  court  left 
the  question  of  contributory  negligence  and  defendants'  negli- 
gence to  the  jury. 

Mary  Kleinert  and  her  husband,  George  J.  Kleinert,  brought 
separate  suits,  but  these  two  actions  were  consolidated  under 
the  act  of  May  18, 1895,  and  tried  as  one,  and  two  verdicts  i*en- 
dered. 

Verdict  and  judgment  for  Mary  B.  Kleinert  for  $1,000. 

Verdict  and  judgment  for  George  J.  Kleinert  for  $300.  De- 
fendants appealed. 

Error  assigned  was  in  declining  defendants'  sixth  and  last 
point,  which  point  and  answer  thereto  are  as  follows :  "  There 
is  no  such  evidence  of  negligence  in  this  case  as  ought  reason- 
ably to  satisfy  you  thereof,  and  therefore  I  instruct  you  on  the 
whole  case — ^your  verdict  should  be  for  the  defendants.  Anr 
stper :  The  last  point  I  decline." 

James  Alcorn^  for  appellants. — The  circumstances  of  this  case 
indicate  contributory  negligence  on  the  part  of  the  plaintiff. 
The  case  is  very  similar  to  Houser  v.  Railroad  Co.,  147  Pa.  440. 
See  also  Carson  v.  Railroad,  147  Pa.  219 ;  Holden  v.  Railroad, 
169  Pa.  1 ;  Funk  v.  Ti-a<3tion  Co.,  176  Pa.  559 ;  Waters  v. 
Wing,  59  Pa.  211 ;  Marland  v.  Raili-oad,  128  Pa.  487. 

Charles  A.  Chase^  for  appellee. — Relied  upon  Christian  v. 
Ice  Co.,  3  Pa.  Superior  Ct.  320 ;  Bodge  v.  City,  167  Pa.  492. 

Opinion  by  Beaver,  J.,  February  19, 1898  : 
No  fault  is  found  with  the  manner  in  which  the  facts  of  this 
case  were  submitted  to  the  jury,  if  there  were  any  facts  to  be 
submitted.  The  court  below  was  asked  to  say  in  a  point  sub- 
mitted by  the  appellants :  "  There  is  no  such  evidence  of  neg- 
lect in  this  case  as  ought  reasonably  to  satisfy  you  thereof  and, 
therefore,  I  instruct  you,  on  the  whole  case,  your  verdict  should 
be  for  the  defendants,"  which  was  declined. 

The  wagon  of  the  defendants  was  being  driven  rapidly ;  so 
rapidly  that  the  witness,  Mrs.  Young,  saj'^s :  "  I  knew  it  was  a 
heavy  wagon  coming  down  the  street  and  judged  it  was  a  run- 
away."    As  to  this  the  testimony  of  the  plaintiff  and  the  only 


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596  KLEINKRT  r.  ICE  &  COAL  CO. 

Opinion  of  the  Couit.  [6  Pa.  Superior  OL 

other  living  eye-witness  of  the  accident  who  was  called  is  clear. 
The  turn  into  Juniper  street  was  made  unexpectedly  and 
sharply ;  the  plaintiff  supposed  the  wagon  was  to  continue  its 
course  down  Aix^h  street.  The  accident  occurred  at  the  curb 
either  just  as  she  stepped  down  from  the  pavement  on  to  the 
street  or  was  attempting  to  step  back  from  the  street  to  the  pave- 
ment. It  is  immaterial  which.  The  significant  fact  is  that 
she  was  struck  by  the  near  horse,  that  is  the  horse  on  the  left 
side,  at  the  curb,  which  would  clearly  indicate  that  the  turn 
from  Arch  street  was  made  so  hurriedly  that  the  driver  was 
unable  to  bring  his  horse  in  to  the  middle  of  Juniper  street  at 
the  crossing. 

No  effort  was  made  to  stop  the  wagon.  The  driver  says : 
^^  I  hollered  and  she  seen  the  peril  she  was  in  and  backed  back 
and  fell  as  the  horse  hit  her— the  horse  on  the  near  side."  It 
is  evident  that  the  driver  saw  the  peril  as  soon  as  the  plaintiff. 
He  made  no  effort  to  stop  the  horses  before  the  accident,  and 
yet  he  did  stop  them  as  soon  as  it  happened. 

As  we  said  in  Christian  v.  Commercial  Ice  Co.,  3  Pa.  Superior 
Ct.  820,  "  It  was  the  duty  of  the  driver  to  approach  the  street 
crossing  recognizing  the  fact  that  people  might  attempt  to  cross 
at  that  street  and,  therefore,  it  was  his  duty  to  have  his  team  in 
such  a  condition  that,  if  the  occasion  required,  he  would  be  able 
to  stop  it."  If  his  team  was  in  such  a  condition  as  would  enable 
him  to  stop  it,  it  was  his  duty  to  do  so.  If  it  was  not,  it  was  a 
plain  violation  of  his  duty  to  pedestrians.  In  either  case  it  was 
negligence.  The  evidence  of  negligence  was  clear  and  abundant, 
although  to  some  extent  denied.  It  was  for  the  jury  to  say 
whose  testimony  was  the  more  worthy  of  credence.  It  would 
have  been  manifest  error  for  the  court  to  have  affirmed  the  de- 
fendants' point. 

The  judgment  is  affinned. 


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COBLE  V.  ZOOK.  697 

1898.]  Syllabus— Arguments. 

Frank  N.  Coble  w.  Joseph  S.  Zook,  Appellant. 

Practice,  C.  P,^Effect  of  failure  to  demur. 

If  a  statement  is  defective  defendant  should  demur ;  having  joined  issue 
and  gone  to  trial  he  is  bound  by  the  evidence  as  shown  in  the  testimony 
at  the  trial,  especially  when  the  same  is  received  without  objection  on  his 
pait ;  it  is  then  too  late  to  set  up  want  of  consideration  in  the  agreement 
sued  upon. 

Question  for  jury — CredibUiiy  of  witnesses. 

There  being  evidence,  though  conflicting,  sufficient  to  sustain  a  verdict 
either  way  on  the  issue  raised  according  as  credibility  is  accorded  to  the 
testimony  of  one  side  or  the  other,  the  question  is  properly  for  the  jury. 

Argued  Nov.  10,  1897.  Appeal  No.  26,  Oct.  T.,  1897,  by 
defendant,  from  judgment  of  C.  P.  Lancaster  Co.,  April  T., 
1896,  No.  110,  on  verdict  for  plaintiff.  Before  Rice,  P.  J., 
WicKHAM,  Beaver,  Reeder,  Orlady,  Smith  and  Porter,  J  J. 
Reversed. 

Appeal  from  judgment  of  justice.    Before  Livingston,  P.  J. 

It  appears  from  the  record  that  this  is  an  action  to  recover  the 
sum  of  J250  with  interest  alleged  to  be  due  and  owing  to 
plaintiff  from  defendant  under  and  by  virtue  of  a  verbal  agree- 
ment. 

The  facts  sufficiently  appear  in  the  opinion  of  the  court. 

Verdict  and  judgment  for  plaintiff  for  #266.25.  Defendant 
appealed. 


u 


JErrors  assigned  were  (1)  In  refusing  defendant's  second  point: 
2.  No  consideration  to  the  defendant  for  his  alleged  agreement 
with  plaintiff  is  set  forth  in  the  statement,  and  the  verdict  must 
be  in  favor  of  the  defendant."  (2)  In  affirming  plaintiff's  point 
which  point  is  as  follows :  '*  The  plaintiff  having  submitted  tes- 
timony in  the  above  case  which  is  uncontradicted,  the  court  is 
respectfully  asked  to  chai'ge  the  jury  that  the  verdict  must  be 
in*  favor  of  the  plaintiff  and  against  the  defendant  for  the  sum 
of  #250,  with  interest  from  Januar)'  1, 1896."  (3)  In  not  leav- 
ing the  credibility  of  the  witnesses  to  the  jury. 

J.  Hay  Brown  and  A,  J.  Eberly^  with  them  TF.  U,  Hensel^  for 
appellant. — Under  a  current  of  decisions,  the  sufficiency  of  the 


Digitized  by  VjOOQ IC 


698  COBLE  v,  ZOOK. 

Arguments— Opinion  of  the  Court.  [6  Pa.  Superior  Ct. 

testimony  and  the  credibility  of  the  witnesses  are  always  to  be 
left  to  the  juiy.  It  is  their  peculiar  province  to  pass  upon  the 
same ;  and  absolute  binding  instructions,  without  leaving  the 
credibility  of  the  witnesses  to  the  jury,  is  error :  Fullara  v.  Rose, 
160  Pa.  47. 

The  credibility  of  a  witness — though  contradicted — is  always 
for  the  jury:  Grarabs  v.  Lynch,  20  W.  N.  C.  376;  Heister  v. 
Lynch,  1  Yeates,  108 ;  Waters  v.  Burgess,  14  Atlan.  398. 

U,  M,  Gilbert^  for  appellee. — On  the  question  of  considera- 
tion cited  McClymonds  v.  Stewart,  2  Pa.  Superior  Ct.  310; 
Dutton's  Estate,  181  Pa.  426  ;  Greeves  v.  McAllister,  2  Binn, 
691. 

It  is  true  that  the  plaintiff  did  offer  in  evidence  defendant's 
affidavit  of  defense  for  the  purpose  of  showing  everything  therein 
that  defendant  admitted,  and  so  stated  the  purpose  of  the  offer : 
Bowen  v.  DeLattre,  6  Wharton,  430. 

Where,  upon  the  whole  case,  a  trial  judge  conceives  it  to  be 
his  duty  to  give  the  jury  binding  instructions  the  answers  to 
points  become  mere  dissertations  of  law.  The  correctness  of 
the  direction  to  the  jury  to  find  in  one  way  or  another  depends 
on  the  facts  admitted  or  established,  and  if  the  conclusion  is 
right  on  the  facts,  no  error  is  committed.  The  same  principle 
has  been  held  in  Maynard  v.  Lumberman,  20  W.  N.  C.  272 ; 
Cougle  V.  McKee,  151  Pa.  602 ;  Holland  v.  Kindregan,  155  Pa. 
156. 

OpmiOK  BY  Beaver,  J.,  February  19, 1898 : 
If  the  statement  was  demurrable,  defendant  should  have  de- 
murred to  it :  Newbold  v.  Pennock,  154  Pa.  591.  Having  filed 
his  affidavit  of  defense,  joined  issue  and  gone  to  trial,  he  is 
bound  by  the  evidence  of  consideration  for  the  agreement,  as 
shown  in  the  testimony  at  the  trial,  the  same  having  been  re- 
ceived, without  objection  on  his  part.  The  first  assignment  of 
error  is,  therefore,  overruled. 

The  second  and  third  assignments  relate  to  the  same  ques- 
tion.  The  record  shows  that  the  plaintiff  offered  in  evidence 
the  statement  and  the  affidavit  of  defense.  The  object  of  the 
offer  is  not  stated ;  but,  having  offered  them,  he  is,  of  course, 
bound  by  the  issue  which  .they  raised.    The  affidavit  of  defense 


Digitized  by  VjOOQ  IC 


COBLE  f.  ZOOK.  599 

1898.]  Opinion  of  the  Couil. 

contains  a  distinct  denial  of  the  plaintiffs  claim  and  sets  forth 
that  "  he  (defendant)  never  made  any  agreement  to  pay  plain- 
tiff two  hundred  and  fifty  dollars,  as  is  alleged  and  set  forth  in 
the  statement  filed,  but  it  is  true  that  he  did  agree  that,  in  the 
event  of  his  being  able  to  resell  the  premises  referred  to  in  the 
statement  as  having  been  purchased  by  him  at  sheriff's  sale  and 
upon  his  being  able  to  reimburse  himself  for  all  moneys  that  he 
had  therein,  he  would  then,  upon  the  resale  of  the  said  premises 
by  him,  at  a  price  sufficient  to  reimburse  himself  for  all  moneys 
that  he  had  therein  and  to  enable  him  to  pay  the  said  sum  of 
two  hundred  and  fifty  dollars  as  aforesaid,  pay  to  the  plaintiff 
the  said  sum  of  two  hundred  and  fifty  dollars,  and  this  agree- 
ment on  his  part  is  the  only  one  he  ever  entered  into  with  plain- 
tiff to  pay  him  two  hundred  and  fifty  dollars ;  that  he  is  still 
the  owner  of  said  premises,  never  having  been  able  to  sell  them ; 
that,  whenever  he  is  able  to  sell  them  and  reimburse  himself  as 
aforesaid  for  all  moneys  that  he  has  therein  invested,  he  will 
be  ready  and  willing  to  pay  plaintiff  the  sum  of  two  hundred 
and  fifty  dollars."  In  the  absence  of  any  evidence  of  the  sale 
of  the  premises  and  of  the  reimbursement  to  the  defendant  of 
the  money  which  he  had  invested  therein,  this  affidavit  raised 
a  question  of  fact  concerning  which  it  was  the  province  of  the 
jury  to  pass.  If  they  had  believed  its  contents,  the  plaintiff 
was  not  entitled  to  recover.  The  credibility  of  the  witnesses 
of  the  plaintiff  and  of  the  defendant,  the  latter  becoming  a  wit- 
ness by  the  introduction  of  his  affidavit  of  defense  by  the  plain- 
tiff, was  for  the  jury  and  should  have  been  submitted  for  their 
consideration  by  the  court.  There  was,  therefore,  error  in 
affirming  the  plaintiff's  point,  and  directing  the  jury  to  find  for 
the  plaintiff. 

The  second  and  third  assignments  of  error  are  sustained,  and 
the  judgment  is  reversed  and  a  new  venire  awarded. 


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600         WILKES-BARRE  RECORD  u  LUZERNE  (X). 

Syllabus— Assignment  of  Errors.    [6  Pa.  Superior  (X 

The  Wilkes-Barre  Record,  Appellant,  v.  The  County  of 

Luzerne. 

Public  Officers^ Sheriff-^ Advertisement  of  Eketions-^'*  OenertU  Elec- 
tion "  Defined— Statutes. 

The  sheriflf  is  not  authonzed  or  required  to  give  notice  by  advertise- 
ment of  the  annual  spring  municipal  election  as  provided  in  sec.  10  of 
the  Act  of  June  26,  1895,  P.  L.  392,  for,  in  cases  of  genei'al  elections, 
such  municipal  elections  are  not  general  elections  within  the  meaning  of 
said  section. 

Submitted  Jan.  12, 1898.  Appeal,  No.  29,  Jan.  T.,  1898,  by 
plaintiff,  from  judgment  of  C.  P.  Luzerne  Co.,  Oct.  T.,  1897, 
No.  525,  on  verdict  for  defendant.  Before  Rice,  P.  J.,  Wick- 
ham,  Beaver,  Orlady,  Smtth  and  Porter,  JJ.    Affirmed. 

Case  stated.    Before  Bennett,  J. 

The  following  facts  were  agreed  upon  in  the  case  stated  as 
if  the  same  had  been  found  by  special  verdict  for  the  opinion 
of  the  court.  The  plaintiffs  were  proprietors  of  a  daily  news- 
paper published  at  Wilkes-Barre.  On  February  6,  1897,  the 
sheriff  gave  notice  of  tlie  election  required  by  law  to  be  held 
on  the  third  Tuesday  of  February  of  that  year  in  the  cities  of 
Luzerne  county,  by  advertisement  in  cei*tain  newspapers,  includ- 
ing plaintiff's  paper,  without  a  special  contract  as  to  rate  or 
amount  of  compensation  therefor,  and  without  advertisement 
by  the  county  controller  for  bids,  nor  direction  by  the  county 
commissioners  to  tlie  controller  to  so  advertise.  That  the  re- 
quirements of  law  have  been  observed  by  the  sheriff  as  to  the 
contents  of  said  proclamation,  assuming  the  same  to  be  author- 
ized by  law  with  respect  to  the  February  election;  as  to  the 
number  and  political  character  of  the  papers  in  which,  and  the 
period  during  which  the  same  was  published,  assuming  as  afore- 
said; that  the  sum  charged  by  the  plaintiff  as  the  price  thereof, 
to  wit,  $177.66,  is  reasonable  and  just,  assuming  as  afoi*esaid. 

The  court  below  entered  judgment  in  favor  of  defendant 
Plaintiff  appealed. 

JSrror  assigned  was  entry  of  judgment  for  defendant 

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WILKKS-BARRE  RKCORD  v.  LUZERNE  CO.         601 
1898.]  Arguments — Opinion  of  the  Court. 

George  S.  Ferris^  for  appellant. 

G.  L.  Hdlsei/y  for  appellee. 

Opinion  by  Beaver,  J.,  February  19, 1898  : 

The  tenth  section  of  the  Act  of  June  26, 1895,  P.  L.  392, 
devolves  a  duty  upon  the  sheriff  of  every  county,  for  the  dis- 
charge of  which  he  alone  is  responsible,  and  in  the  making  of 
the  contracts  for  the  discharge  of  which  he  has  sole  authority. 
The  tenth  section  of  the  Act  of  June  27, 1895,  P.  L.  403,  re- 
lates exclusively  to  contracts  made  by  the  commissioners  and 
has  nothing  whatever  to  do  with  the  contracts  for  advertising 
provided  for  in  the  previous  act.  From  the  decision  of  the 
court  below  upon  this  point  there  is  no  appeal.  Both  parties 
to  the  case  stated  assent  to  it. 

We  have,  therefore,  to  do  only  with  the  one  question  remain- 
ing :  Is  it  the  duty  of  the  sheriff  of  every  county,  in  which  there 
are  cities  of  the  first,  second  or  third  classes,  to  give  notice  of 
the  annual  municipal  or  February  or  Spring  election,  by  adver- 
tisement in  at  least  three  newspapers,  as  provided  in  section  ten 
of  the  act  of  June  26,  supra?  In  other  words,  is  the  said 
February  election  a  general  election  within  the  meaning  of  the 
said  section?  Section  2  of  article  8  of  the  constitution  of  the 
commonwealth  provides  that :  "  The  general  election  shall  be 
held  annually  on  the  Tuesday  next  following  the  first  Monday 
of  November "  and  the  third  section  of  the  same  article  that 
"  All  elections  for  city,  ward,  borough  and  township  officers  for 
regular  terms  of  service  shall  be  held  on  the  third  Tuesday  of 
February."  The  distinction  is  here  clearly  made  between  what  is 
known,  in  common  parlance,  as  the  fall  and  the  spring  elections, 
and  it  is  to  be  presumed  that  in  all  laws  relating  to  the  subject 
the  legislature,  in  legislating  upon  the  general  subject  observes 
the  distinction  so  clearly  preserved  in  the  constitution,  unless 
the  contrary  clearly  appears.  This  constitutional  distinction  is 
in  ordinary,  popular  use,  and  our  elections  are  known  as  gen- 
eral, municipal  or  local  and  special. 

It  is  argued,  however,  that  the  legislature  intended,  by  said 
act,  to  apply  the  term  general  elections  to  mimicipal  elections, 
and  to  require  advertisement  for  such  elections,  as  provided  in 
the  tenth  section  of  the  act  of  June  26th,  supra,  so  far  as  cities 


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602         WILKES-BARRE  RECORD  ir.  LUZERNE  CO. 

Opinion  of  the  Court.  [6  Pa.  Superior  Ct." 

are  concerned.  The  argument  is  based  upon  the  peculiar 
phraseology  of  the  first  sentence  of  said  section,  which  provides 
that  "  It  shall  be  the  duty  of  the  sheriff  of  every  county,  at 
least  ten  days  before  any  general  election  to  be  held  therein, 
except  borough  and  township  elections,  to  give  notice  of  the 
same,"  etc.,  and  it  is  urged  that  the  lawmakers  did  not  intend 
to  except  from  a  class  what  would  not  in  their  view  otherwise 
belong  to  it ;  but  this,  in  our  opinion,  draws  too  nice  a  distino- 
tion  and  gives  a  more  critical  meaning  to  the  word  "  except  '* 
than  was  in  the  mind  of  the  legislature.  The  evident  intention 
was  to  exclude  municipal  elections,  and  the  phrase  was  used  out 
of  superabundant  caution. 

The  effect  of  the  construction  claimed  would  be  to  require 
the  counties  at  large  to  pay  for  advertising  the  municipal  elec- 
tion for  the  cities  which  were  contained  within  the  limits  of 
such  counties,  although  no  such  advertisements  were  required 
for  the  boroughs  and  townships  thereof.  We  cannot  believe 
that  such  was  the  intention  of  the  legislature  and,  inasmuch  as 
the  construction  which  is  claimed  for  this  section  by  the  appel- 
lants would  require  us  to  give  an  interpretation  to  the  term 
"  general  election "  different  from  that  which  is  contained  in 
and  recognized  by  the  constitution,  and  is  in  general  use  among 
the  people,  we  feel  constrained  to  hold,  with  the  court  below, 
"  that  the  sheriff  not  being  authorized  or  required  to  give  notice 
by  advertisements,  as  it  is  set  forth  he  did  in  the  case  stated, 
the  plaintiff  is  not  entitled  to  recover  from  the  defendant  for 
the  printing  in  question." 

Judgment  affirmed. 


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GILMORE  &  DUFFY  v.  DUNLEAVY.  603 

1898.]  Syllabus— Opinion  of  the  Court. 

Gilmore  &  Duffy  v.  Margaret  Dunleavy,  Appellant. 

AppeaU^CerHorari—Bevieu)  of  order  striking  offjndgmenL 
There  is  no  statutory  appeal  from  an  order  of  the  common  pleas  strik* 
ing  from  the  record  an  entry  of  satisfaction  of  a  judgment.  The  effect  of 
an  appeal  therefore  is  equivalent  to  a  common  law  writ  of  certiorari  which 
brings  up  the  record  only ;  the  errors  to  be  corrected  must  appear  upon 
the  face  of  the  record,  the  merits  cannot  be  inquired  into ;  they  are  left  to 
the  judgment  of  the  court  below.  Neither  the  evidence  nor  the  opinion  of 
the  court  forms  any  part  of  the  record  proper,  and  for  that  reason  cannot 
be  examined  into. 

Argued  Jan.  13,  1898.  Appeal,  No.  18,  Jan.  T.,  1898,  by 
defendant,  from  order  of  C.  P.  Lackawanna  Co.,  Nov.  T.,  1896, 
No.  668,  making  absolute  rule  to  strike  oflf  satisfaction  of  judg- 
ment. Before  Rice,  P.  J.,  Wickham,  Beavbb,  Oblady, 
Smith  and  Porter,  JJ.    Affirmed. 

Rule  to  strike  off  satisfaction  of  judgment.  Before  Ed- 
wards, J. 

It  appears  from  the  record  that  judgment  was  entered  on 
May  18,  1897,  for  want  of  a  sufficient  affidavit  of  defense  for 
♦814.80  and  interest.  On  June  2,  1897,  the  following  entry 
was  made  on  the  record :  "  Satisfied  in  full,  debt,  interest  and 
costs.  Gilmore  &  Duffy,  per  A.  F.  Duffy."  On  June  2, 1897, 
a  rule  was  granted  on  defendant  to  show  cause  why  satisfaction 
should  not  be  struck  off,  which  rule  was  made  absolute  and 
the  satisfaction  entered  in  the  case  struck  off.  Defendant 
appealed. 

Error  assigned  was  striking  off  the  satisfaction  of  the  judg- 
ment entered  in  this  case. 

M.  E.  McDonald^  with  him  J.  C.  Vaughafiy  for  appellant. 

James  H.  Torrey^  for  appellee. 

Opinion  by  Beaver,  J.,  February  19, 1898 : 
"  The  power  to  entertain  and  decide  upon  motions  for  sum^ 
mary  relief  is  a  necessary  incident  of  jurisdiction.    If  an  entry 


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604  GILMORE  &  DUFFY  v.  DUNLEAVY. 

Opinion  of  the  Court.  [6  Pa.  Superior  Ct. 

of  satisfaction  be  made  upon  the  record  by  mistake,  by  fraud 
or  by  falsely  personating  the  plaintiff,  the  court  where  the 
record  is  has  an  undoubted  right,  upon  proof  of  the  facts,  on 
notice  to  the  parties,  to  strike  oif  such  improper  entry,  and  its 
decision  upon  such  facts  is  the  decision  of  a  matter  of  fact  which 
is  not  the  subject  of  review  on  writ  of  error:"  Murphy  v. 
Flood,  2  Gr.  Pa.  Ca.  411. 

"  Undoubtedly  the  court  of  common  pleas  has  power  to  in- 
quire into  the  entry  of  satisfaction  upon  its  record  and,  if  the 
facts  show  that  it  was  improperly  done  or  without  authority, 
to  order  the  entry  to  be  vaoated.  This  is  but  the  exercise  of  a 
power  necessary  to  prevent  injustice.  The  presumption  is,  the 
court  exercised  the  power  rightfully  and  on  good  cause  shown. 
The  facts  are  not  before  us  and,  therefore,  cannot  be  reviewed : " 
McKinney  v.  Fritz,  2  W.  N.  C.  173. 

There  is  no  statutory  right  of  appeal  from  an  order  of  the 
court  of  common  pleas,  striking  from  the  record  an  entry  of 
satisfaction  of  a  judgment.  The  only  effect  of  the  present 
appeal,  therefore,  is  that  of  the  conunon  law  writ  of  certiorari. 
This  writ,  as  is  well  known,  brings  up  the  record  in  any  given 
case  for  review  and  correction,  but  it  brings  the  record  only : 
Holland  v.  White,  120  Pa.  228 ;  Rand  v.  King,  184  Pa.  641. 
The  errors  to  be  corrected  must  appear  on  the  face  of  the 
record,  and  the  merits  cannot  be  inquired  into  upon  this  writ, 
but  are  left  to  the  judgment  of  the  court  below.  Neither  the 
opinion  of  the  court  nor  the  evidence  forms  any  part  of  the 
record  proper,  and,  for  that  reason,  they  will  not  be  examined 
on  certiorari :  Rand  v.  King,  supra. 

In  the  case  under  consideration  the  court  below  had  jurisdic- 
tion. The  record  shows  that  a  rule  was  granted  on  defendant 
to  show  cause  wliy  satisfaction  should  not  be  stricken  off.  An- 
swers were  filed,  and,  on  the  16th  of  August,  1897,  the  entry 
is  made,  '^  Rule  absolute,  and  the  satisfaction  entered  in  this 
case  stricken  off."  The  opinion  of  the  court  and  the  testimony 
upon  which  the  decree  was  founded  ai-e  not  before  us.  We 
are  confined  in  our  inquiry  simply  to  the  regularity  of  the  pro- 
ceedings, as  shown  by  the  record.  They  appear  to  be  regular. 
If  we  were  to  travel  beyond  the  record,  it  would  seem  as  if  tlie 
court  had  acted  upon  grounds  which  justified  its  action. 

Appeal  dismissed  at  the  costs  of  the  appellants. 


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GILL  &  FISHER  v.  O'ROURKE.  605 

1898.]  Syllabos^-Statement  of  Facts. 


Gill  &  Fisher,  Limited,  v.  John  T.  O'Rourke,  trading *a8 
John  T.  O'Rourke  &  Co.,  Appellant. 

Evidence — Construction  of  writings — Protnnce  of  court. 

Where  a  printed  rule  of  the  commercial  exchange  and  a  written  notice 
purporting  to  be  given  thereunder  are  in  the  Ciise,  it  is  the  duty  of  the 
court  to  construe  them  and  determine  the  rights  and  duties  arising  there- 
from. 

Contract — Default  under  rules  of  the  exchange — Notice  construed. 
Where  a  rule  of  the  exchange,  of  which  the  parties  to  the  suit  are  mem- 
bers, required  a  vendor,  on  receiving  written  notice  that  a  default  on  a 
contract  was  intended,  to  sell  on  or  before  the  firet  open  board  thereafter, 
a  letter  from  the  vendee  to  the  vendor,  which  states,  **  So  far  as  we  are 
concerned  deal  is  off,"  is  a  notice  under  this  rule  in-espective  of  the  rea- 
sons given  for  such  default.  The  vendee  was  not  bound  to  give  any  rea- 
sons, hence  the  reasons,  wlien  given,  do  not  enter  into  the  case  for  either 
consideration  by  the  jury  or  construction  by  the  court. 

Argued  Oct.  6,  1897.  Appeal,  No.  40,  Oct.  T.,  1897,  by 
defendant,  from  judgment  of  C.  P.  No.  2,  Phila.  Co.,  Mar.  T., 
1893,  No.  281,  on  verdict  for  plaintiff.  Before  Rice,  P.  J., 
WiCKHAM,  Beaver,  Reeder,  Orlady,  Smith  and  Porter,  J  J. 
Revei-sed. 

Assumpsit.     Before  Sulzberger,  J. 

Plaintiffs  and  defendant  were  members  of  the  commercial 
exchange  in  Philadelphia.  On  September  21,  1892,  plaintiffs 
sold  to  defendant  twelve  thousand  bushels  No.  2  mixed  corn  to 
be  delivered  in  lots  to  suit  the  buyer  between  the  date  of  sale 
and  the  10th  of  October  ensuing.  The  sale  took  place  on  the 
floor  of  the  exchange.  On  the  27th  of  September  the  appellant 
ordered  from  the  plaintiffs  two  thousand  bushels  of  this  com, 
whereupon  plaintiffs  required  payment  in  money  or  bank  due 
bill.  As  a  consequence  of  this,  a  controversy  ensued  between 
the  plaintiffs  and  defendant,  and  on  the  28th,  defendant  wrote 
the  plaintiffs  the  following  letter  : 

"9/28,1892. 
'*  Messrs.  Gill  &  Fisher  Co.,  Ltd.  : 

"  Gentlemen : — After  due  consideration  we  have  arrived  at 
the  following  conclusion,  as  you  refuse  to  take  our  check  and 


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606  GILL  &  FISHER  v,  O'ROURKE. 

Statement  of  Facts — Assignment  of  Errors.    [6  Pa.  Superior  Ct. 

deliver  us  the  com  as  we  want  it  between  now  and  the  10th  of 
October,  1892,  we  would  say  you  can  keep  the  com,  as  we  do 
not  care  to  deal  with  parties  who  treat  us  that  way,  we  do  not 
take  this  stand  because  the  market  is  somewhat  lower  to-day 
than  when  we  bought  the  com.  As  we  have  never  faltered  in 
any  of  our  contracts  we  did  not  propose  to  do  so  in  this.  But 
when  a  firm  is  afmid  to  take  our  check  the  best  way  to  do  is  to 
keep  your  goods,  and  not  deal  with  us.  So  far  as  we  are  con- 
cerned deal  is  off. 

**  Yours  respectfully, 

"J.  T.  O'ROURKB&CO." 

It  appears  from  the  evidence  that  there  exists  a  rule  of  the 
exchange  regarding  defaults  in  contracts,  which  is  as  follows : 

"  Sec.  8.  When  one  party  to  a  contract  shall  give  notice  in 
writing  to  the  other  party  that  default  on  said  contract  is  in- 
tended, it  shall  be  the  duty  of  the  party  receivuig  such  notice 
(unless  it  should  be  mutually  arranged  otherwise)  to  buy  or 
sell,  as  the  case  may  be,  on  or  before  the  first  open  board  there- 
after, the  amount  of  grain  necessary  to  cover  such  contract,  and 
immediately  to  advise  the  party  in  writing  of  such  transaction." 

Other  material  facts  appear  in  the  opinion  of  the  court. 

Vei-dict  and  judgment  for  plaintiffs  for  8548.10.  Defendant 
appealed. 

Errors  assigned  were  (1)  in  chargmg  the  jury  as  follows : 
"  Then  I  charge  you  that  a  default  under  this  mle  means  that 
a  person  who  gives  the  notice  of  default  acknowledged  in  some 
way,  it  need  not  be  by  express  words,  that  the  valid  subsisting 
coptmct  upon  which  he  is  liable,  is  proposed  to  be  ended  by  him 
without  the  consent  of  the  other  party  to  the  contract,  namely, 
that  he  intends  to  break  the  contract.  I  also  charge  you  that 
to  impose  upon  the  other  the  blame  of  his  having  broken  the 
contract  is  not  notice  of  a  default  within  the  meaning  of  this 
rule,  and  I  further  charge  you  that  that  writing,  which  is  a  let- 
ter, and  therefore  capable  of  being  construed  by  the  court  that 
the  writing  of  Mr.  O'Rourke  is  not  notice  of  default  within  the 
rule,  because  instead  of  giving  notice  of  his  default  it  is  a  charge 
that  the  plaintiffs  have  made  default.  With  this  notice  out  of 
the  way  as  it  is  by  my  instmctions  on  this  point,  of  course  the 
plaintiff  was  not  bound  to  sell  on  that  day."     (2)  In  declining 


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GILL  &  FISHKR  v,  O'ROURKE.  607 

1898.]  Assignment  of  Errors — Opinion  of  the  Court. 

the  defendant's  first  point  as  follows :  "  1.  That  if  the  jury  find 
that  the  defendant  (John  T.  O'Rourke)  notified  the  plaintififs 
(Gill  &  Fisher)  in  writing  on  September  28, 1892,  that  the  deal 
or  contract  for  the  purchase  of  twelve  thousand  bushels  of  com 
was  off,  or  that  he  did  not  intend  to  comply  with  same,  the  plain- 
tiffs were  bound  to  sell  the  twelve  thousand  bushels  of  com  on 
or  before  the  first  open  board  thereafter  at  the  commercial  ex- 
change, in  conformity  with  section  3  of  the  rules  governing 
defaults  of  said  exchange."  (3)  In  charging  the  jury  as  fol- 
lows :  **  The  defendant  says  he  accepted,  and  he  has  a  witness 
who  does  not  prove  anything  about  it.  Mr.  Sexton  swears  that 
he  accepted  it,  but  that  evidence  you  are  bound  not  to  consider. 
No  man  has  a  right  to  swear  to  a  conclusion  of  law.  The  ac- 
ceptance of  a  contract  is  a  legal  conclusion  from  certain  words 
and  acts  theretofore  done,  and  Mr.  Sexton  being  pressed  gave 
the  whole  of  the  discussion  and  he  always  ended  with  the  offer 
of  the  plaintiff  to  pay  $90.00,  and  he  never  said  a  word  that  the 
plaintiff  had  said  in  reply.  Therefore  you  are  remitted  entirely 
to  the  uncorroborated  evidence  of  the  defendant  for  the  $90.00 
settlement." 

TF.  Horace  Hepburn,  for  appellant. 

Silas  W.  Pettit,  with  him  John  R.  Read^  for  appellee. 

'    Opinion  by  Smith,  J.,  February  19, 1898: 

The  plaintiffs,  by  a  contract  made  September  21,  1892,  sold 
the  defendant  twelve  thousand  bushels  of  com,  "  to  be  deliv- 
ered in  quantities  to  suit,  up  to  Oct.  10th."  On  September  27, 
the  defendant  called  for  one  thousand  five  hundred  to  two 
thousand  bushels,  but  the  plaintiffs  declined  to  receive  the 
defendant's  check  in  payment  and  none  was  delivered.  No 
further  call  was  made ;  and  the  plaintiffs,  having  tendered  the 
com  October  10,  resold  it  October  11,  for  less  than  the  contract 
price.  This  action  is  brought  to  recover  the  difference.  The 
defense  is  directed  both  to  the  right  of  action  and  the  measure 
of  damages.  As  to  the  former,  the  defendant  asserts  that  the 
refusal  to  receive  his  check  was  a  violation  of  an  agreement  to 
take  it  which  gave  him  a  right  to  rescind  the  contract.  As  to 
the  measure  of  damages  in  the  event  of  his  liability,  he  alleges 


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608  GILL  &  FISHER  v,  O'ROURKE. 

Opinion  of  the  Qmrt.  [6  Pa.  Superior  Ct 

that  on  September  28,  he  gave  the  plaintiffs  written  notice  that 
he  would  default  on  the  contract,  and  that,  under  a  rule  of  the 
commercial  exchange  to  which  the  sale  was  subject,  it  there- 
upon became  the  duty  of  the  plaintiffs  to  sell  the  com  on  or 
before  the  first  open  board  thereafter,  which  was  on  the  day 
following ;  and  further  alleges  that  before  giving  this  notice  it 
was  agreed  that  he  should  pay  the  plaintiffs  $90.00  in  settle- 
ment of  the  matter,  though  payment  has  not  been  made.  The 
only  questions  raised  by  the  assignment  of  errors,  however, 
relate  to  the  construction  and  effect  of  the  rule  and  notice 
referred  to,  and  a  portion  of  the  evidence  respecting  the  alleged 
settlement. 

The  first  point  submitted  by  the  defendant,  though  correctly 
stating  a  conclusion  of  law,  was,  as  a  whole,  properly  refused. 
The  rule  of  the  exchange  being  a  printed  one,  and  the  notice 
to  the  plaintiffs  being  in  writing,  there  was  nothing  for  the 
jury  to  find  as  to  their  effect.  It  was  for  the  court  to  construe 
them,  and  determine  the  rights  and  duties  arising  from  them. 

The  portion  of  the  charge  embraced  in  the  first  specification 
was  erroneous.  The  rule  of  the  exchange  required  the  plain- 
tiffs, on  receiving  notice  that  default  on  the  contract  was 
intended,  to  sell  on  or  before  the  first  open  board  thereafter. 
The  defendant's  letter  of  September  28  was  clearly  notice  of 
his  intention  to  default.  If  he  chose  to  incur  the  consequences 
of  a  default,  he  was  not  bound  to  give  a  reason  therefor ;  hence 
it  is  not  material  whether  the  reason  assigned  was  sufficient  to 
justify  a  rescission  of  the  contract.  With  or  without  such  rea- 
son, his  letter  was  unmistakable  notice  of  an  intention  not  to 
comply  with  his  contract;  and  it  cannot  be  contended  that 
noncompliance  is  not  default.  Throughout  this  letter,  with  its 
comment  on  the  action  of  the  plaintiffs,  the  defendant's  purpose 
not  to  take  the  corn  which  he  had  contracted  for  is  evident. 
Its  concluding  sentence:  "So  far  as  we  are  concerned  deal 
is  off,"  is  unequivocal ;  it  can  be  understood  only  as  a  final 
declaration  of  the  defendant's  intention  to  default  on  his  con- 
tract. It  is  apparent,  also,  that  the  plaintiffs  so  understood  it ; 
for  in  their  answer  of  September  80  they  describe  it  as  "repu- 
diating for  alleged  reasons  "  the  contract  for  the  com.  Again, 
in  the  declaration,  they  aver  that  the  defendant,  "  on  Sept.  28th, 
1892,  repudiated  said  contract."     Assuredly  they  cannot  com- 


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GILL  &  FISHER  u.  O'ROURKE.  609 

1898.]  Opinion  of  the  Court. 

plain  if  their  averment  of  record  be  taken  as  correct ;  and  repu- 
diation is  certainly  default.  A  default  on  September  28  being 
laid  as  the  ground  of  action,  the  measure  of  damages  must  be 
determined  by  the  rule  of  the  exchange  as  to  such  default ;  on 
this  point,  the  date  is  material.  Viewing  the  defendant's  letter 
as  notice  of  his  intention  to  default,  it  was  undeniably  the  duty 
of  the  plaintiffs,  on  receiving  it,  to  resell  the  com  on  or  before 
the  first  open  board  thereafter,  which  appears  to  have  been  on 
the  day  following ;  and  it  was  their  right  to  hold  the  defendant 
for  any  loss  on  such  resale.  If,  indeed,  as  appears  from  some 
of  the  evidence,  the  price  at  that  time  was  above  the  contract 
price,  they  would  have  sustained  no  loss  on  such  resale,  and 
the  measure  of  damages  indicated  would  }deld  them  nothing. 

The  alleged  agreement  for  payment  of  $90.00  as  a  settlement 
would,  if  made,  fix  the  measure  of  damages  independently  of 
the  notice  and  rule.  The  finding  of  the  jury  against  it  may 
have  been  due  to  the  inaccurate  reference  by  the  trial  judge  to 
the  testimony  of  one  witness  in  relation  to  it,  which  is  made 
the  subject  of  the  third  specification  of  error.  This  witness 
testified :  "  Finally,  Mr.  Barker,  as  I  understood  it,  he  said  it 
plain  enougli,  said  that  he  would  accept  three  quarters  of  a 
cent.  Mr.  O'Rourke  had  not  yet  agreed  to  pay  it,  but  in  a  few 
moments  he  said :  *  Well,  in  order  to  avoid  a  controversy,  I 
will  pay  you  the  $90.00,  and  that  will  end  our  transactions.' " 
The  language  of  the  learned  trial  judge  with  reference  to  the 
testimony  of  this  witness  was  calculated  to  mislead  the  jury. 
Should  the  parties  proceed  to  another  trial  the  evidence  on 
this  point  can  receive  closer  attention,  and  it  may  then  present 
a  different  aspect. 

Judgment  reversed  and  venire  de  novo  awarded. 
Vol,  VI— 39 


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610  COMMONWEALTH  v.  LEWIS. 

Syllabus— Assignment  of  Errors.      [6  Pa.  Superior  Ct 


Commonwealth  of  Pennsylvania  v.  Michael  Lewis,  Appel- 
lant. 

Criminal  law—FrauduUiU  removal  of  goods^  Pleading^ Act  of  188.5. 

The  substantive  offense  aimed  at  by  the  Act  of  June  23, 1885,  P.  L.  136, 
is  the  fraudulent  removal  of  a  debtor's  goods  by  placing  them  beyond  the 
reach  of  creditors.  The  reference  in  the  act  to  methods  of  removal  which 
niiglit  more  particularly  affect  debts  of  a  certain  status  was  not  designed 
to  exclude  the  claims  of  other  creditors  from  its  provisions.  The  act  was 
intended  to  embrace  all  fraudulent  methods  of  removal  of  property  beyond 
the  reach  of  creditors.  The  inclusion  of  several  methods  or  phases  of  re- 
moval in  one  count  is  not  forbidden  by  the  principles  of  criminal  pleading, 
although  the  removal  might  have  been  accomplished  by  one  or  more  of 
these,  to  the  exclusion  of  others. 

Argued  Jan.  17,  1898.  Appeal,  No.  16,  Jan.  T.,  1898,  by 
defendant,  from  judgment  of  Q.  S.  Carbon  Co.,  April  Sess., 
1897,  No.  12,  on  verdict  of  guilty.  Before  Rice,  P.  J.,  Wick- 
ham,  Beaver,  Orlady,  Smith  and  Porter,  JJ.    Aflfirmed. 

Indictment  sur  charge  of  removing  property  out  of  the  county 
with  intent  to  prevent  same  from  being  levied  on  by  execution, 
and  for  secreting,  assigning  and  conveying  property  with  intent 
to  defmud  creditors  and  to  prevent  such  property  from  being 
levied  upon  by  execution.    Before  Craig,  P.  J. 

The  facts  suflBciently  appear  in  the  opinion  of  the  court. 

Verdict  of  guilty  and  sentence  thereon.     Defendant  appealed. 

Errors  assigned  were  (1)  refusal  of  binding  instructions  for 
defendant.  (2)  In  charging  the  jury  as  follows :  "  If,  on  the 
contrary,  there  was  a  removal,  or  a  secreting  with  the  intent  to 
defraud  Moses  Miller,  who  was  a  creditor;  and  with  the  intent 
to  prevent  the  same  from  being  levied  upon  by  any  execution  ; 
if  it  was  done  for  that  purpose,  and  you  believe  that  beyond  a 
reasonable  doubt,  then  you  may  find  this  defendant  guilty." 
(2)  In  the  following  sentence :  "  And  now,  June  21,  the  de- 
fendant, Michael  Lewis,  is  sentenced  to  pay  to  the  common- 
wealth for  the  use  of  the  parties  entitled  thereto,  the  sura  of 
$10.00  and  costs  of  prosecution ;  and  further,  that  he  undergo 
imprisonment  in  the  jail  of  the  county  of  Carbon  for  the  term 


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COMMONWEALTH  v.  LEWIS.  611 

1898.]  Assignment  of  Errors — Arguments. 

of  three  months,  to  be  computed  from  this  date,  and  he  stands 
committed  until  the  sentence  is  complied  with." 

Fred.  Bertolette  and  H,  Y,  Kaufman^  of  Kaufman  ^  Schrader^ 
for  appellant. — The  bill  of  indictment  is  therefore  a  jumble,  and 
an  indiscriminate  mixing  up  of  two  separate  and  distinct  charges, 
intended  to  be  covered  by  the  act  under  which  the  indictment 
is  drawn.  It  follows  that  the  indictment  is  bad  for  duplicity  : 
Com.  V.  Symonds,  2  Mass.  168. 

Nor  does  it  fall  within  the  ruling  in  Com.  v.  Miller,  107  Pa. 
276 ;  Com.  v.  Mentzer,  162  Pa.  646. 

Again,  the  bill  sets  forth  no  value  of  the  goods  so  removed. 
This  is  fatal.  A  formal  defect  may  be  amended  befoi*e  issue 
joined,  and  in  certain  cases  it  may  be  amended  afterwards. 

Penal  statutes  must  be  construed  strictly:  Warner  v.  Com., 
1  Pa.  154. 

Nor  can  they  be  extended  by  implication  to  cases  not  strictly 
within  their  terms  :  Hall  v.  State  of  Ohio,  20  Ohio,  8 ;  Andrews 
V.  U.  S.,  2  Story,  202. 

Nor  can  it  be  made  to  embi-ace  a  doubtful  case :  Case  of 
Pierce,  16  Maine,  255. 

Nor  will  they  be  allowed  to  inflict  penalties  by  implication : 
Com.  V.  Standard  Oil  Co.,  101  Pa.  119,  144. 

Horace  Heydt  and  E.  0,  Nothntein^  district  attorney,  with 
them  William  (?.  Freymariy  for  appellee. — It  is  sufiicient  if  the 
indictment  state  the  charge  with  so  much  certainty  that  the  de- 
fendant may  know  what  he  is  called  upon  to  answer,  and  that 
the  court  may  know  how  to  render  the  proper  judgment  thereon ; 
over  nice  exceptions  are  not  to  be  encouraged,  especially  in  cases 
which  do  not  touch  the  life  of  the  defendant :  Sherban  v.  Com- 
monwealth, 8  Watts,  212  ;  Com.  v.  Keenan,  67  Pa.  203 ;  Com. 
v.  Stacey,  28  Leg.  Int.  20. 

It  was  not  necessary  for  the  commonwealth  to  prove  the  five 
acts  and  the  intents  set  forth  in  the  indictment.  If  the  com- 
monwealth has  proved  one  act  with  one  intent  that  is  sufficient 
to  sustain  a  conviction,  and  the  sentence  of  the  court :  Clark's 
Criminal  Procedure,  326. 

An  indictment  drawn  in  the  words  of  an  act  of  assembly  is 
sufficient  under  the  criminal  procedure  act  of  1860 :  Com.  v. 
Havens,  6  C.  C.  R.  546. 


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612  COMMONWEALTH  v.  LKWIS. 

Opinion  of  the  Court.  [6  Pa.  Superior  Ct. 

Opinio!^  by  Smith,  J.,  February  19, 1898 : 

The  defendant  was  indicted  and  convicted  of  the  offense  of 
removing  and  secreting  property  with  intent  to  defraud  cred- 
itors. The  indictment  contains  one  count,  which  avers  the 
fraudulent  secreting  and  removing  of  property  out  of  the  county. 
The  plea  of  not  guilty  was  duly  entered  by  the  defendant,  with- 
out any  previous  motion,  and  the  case  was  tried  on  the  merits. 
The  defendant  was  sentenced  to  pay  a  fine  of  ten  dollars  and 
undergo  imprisonment  in  the  county  jail  for  the  term  of  three 
months. 

The  evil  aimed  at  by  the  act  of  June  23,  1885,  under  which 
the  indictment  is  framed,  is  the  defrauding  of  creditors  by  plac- 
ing the  debtor's  property  beyond  their  reach.  While  the  stat- 
ute enumerates  some  of  the  methods  by  which  this  might  be 
done  and  prohibits  them  under  a  penalty,  it  also  contemplates 
all  fraudulent  means  of  secreting,  removing  or  disposing  of 
property,  with  like  intent,  by  the  words  "  or  otherwise  dispose 
of  any  ....  property  ....  with  intent  to  defraud  any  cred- 
itor." 

The  fraudulent  removal  of  property  to  evade  liability  for 
debts  is  forbidden  by  the  statute,  and  this  is  its  principal  sub- 
ject. The  purpose  is  to  protect  creditors  from  being  fraudu- 
lently deprived  of  recourse  to  the  property  of  debtors,  and  it 
includes  all  creditors  who  may  be  thus  defrauded,  without  regard 
to  the  nature  or  status  of  their  claims.  The  reference  in  the 
act  to  methods  of  removal  which  might  more  particularly  affect 
debts  of  a  certain  status  was  not  designed  to  exclude  the  claims 
of  other  creditors  from  its  provisions.  The  act  was  intended 
to  embrace  all  fraudulent  methods  of  placing  property  beyond 
the  reach  of  creditors.  And  all  creditors  who  may  thus  be 
defrauded  are  included  in  its  scope  and  purpose.  The  sub- 
stantive offense  is  the  f i-audulent  removal ;  and  the  inclusion 
of  several  methods  or  phases  of  the  removal  in  one  count  is  not 
forbidden  by  the  principles  of  criminal  pleading,  although  the 
removal  might  have  been  accomplished  by  one  or  more  of  these, 
to  the  exclusion  of  others.  Conviction  of  a  fraudulent  removal 
by  proof  of  one  phase  or  method  would  be  a  bar  to  a  subsequent 
prosecution  for  the  removal  of  the  same  property  through  other 
methods,  when  all  relate  to  the  same  transaction :  Com.  v. 
Mentzer,  162  Pa.  646. 


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COMMONWEALTH  v.  LEWIS.  618 

1898.]  Opinion  of  the  Court. 

The  evidence  was  abundant  to  warrant  the  verdict.  The  tes- 
timony shows  that  the  defendant  was  a  partner  in  the  clothing 
business  at  Lansf ord.  Carbon  county ;  that  the  firm  was  indebted 
to  Moses  Miller  and  others ;  that  Uie  defendant  and  his  brother 
(an  alleged  creditor)  removed  a  large  quantity  of  goods  from 
the  store  of  the  firm,  in  the  nighttime  after  business  hours ; 
that  some  of  the  goods  were  afterward  discovered  in  the  defend- 
ant's house  in  Reading,  Berks  county,  and  were  identified 
by  the  other  partner.  The  circumstances  under  which  the  goods 
were  removed  and  afterward  secreted,  when  creditors  were  press- 
ing, clearly  warranted  the  inference  of  fittud ;  and  it  is  difficult 
to  reconcile  them  with  honesty  of  purpose.  The  sentence  was 
pursuant  to  the  statute,  but  not  to  its  maximum  extent.  The 
fine  authorized  by  the  statute  is  "  a  sum  not  exceeding  the  value 
of  the  property  secreted."  It  is  not  pretended  that  the  fine 
imposed  exceeded  or  was  equal  to  that  value.  From  the  testi- 
mony, the  property  would  appear  to  have  been  worth  about  one 
thousand  dollars.  The  other  questions  raised  on  the  argument 
require  no  discussion  by  this  court. 

The  assignment  of  error  is  overruled,  and  the  judgment  is 
affirmed ;  and  it  is  now  ordered  that  Michael  Lewis,  the  defend- 
ant, be  remanded  to  the  keeper  of  the  county  jail  of  Carbon 
county  there  to  be  confined  according  to  law  for  the  residue  of 
the  term  for  which  he  was  sentenced,  and  which  had  not  expired 
on  the  26th  day  of  June,  1897,  and  that  the  record  be  remitted 
to  the  court  of  quarter  sessions  of  said  county  with  instructions 
to  carry  this  order  into  effect. 


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614  YUENGLING  &  SONS  v.  JKNNINGS. 

Syllabus—Assignment  of  En-ors.    [6  Pa.  Superior  Ct 


D.  G.  Yuengling  &  Son,  now  assigned  to  C.  Stegmaier 
&  Son,  tj.  Peter  P.  Jennings  and  Ann  Jennings  and 
the  Quaker  City  Mutual  Fire  Insurance  Company, 
Garnishee,  Appellant. 

Insuranoe^Defective  proof  of  loss^Nolict^DtUy  of  the  company— 
Waiver  by  estoppel. 

If  the  insured,  in  good  faith,  and  within  the  stipulated  time,  does  what 
he  plainly  intends  as  a  compliance  with  tlie  requirements  of  his  policy, 
good  faith  equally  requii*es  that  the  company  shall  promptly  notify  him 
of  their  objections,  so  as  to  give  him  the  opportunity  to  obviate  them ;  and 
mere  silence  may  so  mislead  him  to  his  disadvantage  to  suppose  the  com- 
pany satisfied,  as  to  be  of  itself  sufficient  evidence  of  waiver  by  estoppel. 

Argued  Jan  11,  1898.  Appeal,  No.  12,  Jan.  T.,  1898,  by 
insurance  company,  garnishee,  from  judgment  of  C.  P.  Lu- 
zerne Co.,  May  T.,  1894,  No.  672,  on  verdict  for  plaintiff.  Be- 
fore Rice,  P.  J.,  Wickham,  Beaver,  Orlady,  Smith  and 
PoRTEB,  JJ.    Affirmed. 

Assumpsit  on  policy  of  insurance.    Before  Woodward,  P.  J. 
The  facts  sufficiently  appear  in  the  opinion  of  the  court. 
Verdict  and  judgment  for  plaintiff  for  $705.60.     Garnishee 
appealed. 

Errors  assigjied  among  othei^s  were  refusal  to  affirm  defend* 
ant's  first,  second,  third,  fourth  and  eleventh  points,  which 
points  were  as  follows :  "  1.  The  evidence  offered  by  the  plain- 
tiff in  this  case  fails  to  establish  that  J.  W.  Miller  had  any 
greater  authority  than  that  of  a  local  solicitor,  and  is  insufficient 
to  show  that  he  had  the  authority  of  a  general  agent  of  gar- 
nishee company,  consequently  any  acts  performed  by  him  or 
service  of  notice,  or  proofs  of  loss  upon  him  cannot  bind  the 
garnishee  company.  2.  The  authority  of  J.  W.  Miller,  as  gen- 
eral agent  of  garnishee  company  not  having  been  shown  by  a 
certificate  of  authority,  and  it  appearing  that  he  did  not  coun- 
tersign the  policy  claimed  on  in  this  case,  any  acts  of  his  aside 
from  the  delivery  of  the  policy  and  receipt  of  premium  would 
not  bind  the  garnishee  company,  and  it  must  be  excluded  by 


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YUENGLING  &  SONS  r.  JENNINGS.  615 

1898.]  Assignment  of  Errore— Arguments. 

the  jury  from  their  consideration.  3.  The  plaintiffs  account  of 
■  his  loss  in  this  paper  dated  April  5, 1894,  is  not  such  a  particu- 
lar account  of  his  loss  or  damage  as  the  terms  of  the  policy 
require  of  him,  and  no  particular  account  of  his  loss  or  damage 
liaving  been  delivered  to  the  garnishee  company  or  its  geneml 
agent  within  sixty  days  next  after  the  fire,  he  or  his  assigns 
cannot  recover.  4.  There  is  no  evidence  to  be  submitted  to  the 
jury  of  the  waiver  of  the  requirements  of  the  policy  claimed  on 
to  give  a  particular  account  of  the  plaintiffs'  loss  or  damage, 
within  sixty  days  next  after  the  fire,  and  the  plaintiff  or  his 
assigns  cannot  recover.  11.  Under  all  the  evidence  in  this  case 
the  verdict  must  be  for  the  defendant." 

James  R.  Sconton^  with  him  TT.  -B.  Cribbons^  for  appellant. — 
The  alleged  proof  of  loss  said  to  have  been  furnished  in  this 
case  was  utterly  defective,  and  no  waiver  can  be  implied  from 
its  transmission  to  the  company :  Beatty  v.  Ins.  Co.,  66  Pa.  9. 

That  the  rule  as  laid  down  by  Justice  Mitchell  in  Gould  v. 
Insurance  Company,  is  not  as  broad  as  it  would  appear  upon 
first  reading,  we  refer  to  the  same  justice  in  another  part  o(  the 
same  opinion,  in  which  he  says :  "  In  establishing  this  rule  in 
regard  to  the  conduct  of  insurance  companies,  as  to  objections 
to  proof  of  loss,  it  is  not  intended  to  encroach  at  all  on  the  doc- 
trine of  waiver  by  estoppel,  as  laid  down  in  the  weU  considered 
and  authoritative  cases  of  Trask  v.  Fire  Insurance  Company, 
29  Pa.  198,  and  Beatty  v.  Insurance  Company,  66  Pa.  9." 

We,  therefore,  respectfully  contend  that  our  assignments  of 
error,  numbers  three  and  four,  should  be  sustained,  because 
(1)  the  paper  offered  as  a  proof  of  loss  was  not  such  as  required 
notice  from  the  garnishee  of  its  defects,  and  (2)  the  garnishee 
by  neither  act  nor  deed,  did  anything  prior  to  the  expiration  of 
the  sixty  days,  which  constitutes  in  law  acceptance  of  the  paper 
as  a  proof  of  loss,  or  a  waiver  of  the  formal  proof,  and  for  a 
further  reason,  that  the  attachment  execution  having  been  is- 
sued on  April  23,  1894,  and  interrogatories  served  on  or  about 
May  10,  1894,  long  before  the  expiration  of  the  sixty  days,  the 
parties  were  dealing  at  arms'  length,  and  the  garnishee  was 
under  no  obligation  to  notify  the  insured  of  defects  in  the  al- 
leged proof  of  loss,  which  would  inure  to  the  benefit  of  the 
attaching  creditor:  Hocking  v.  Howard  Insurance  Co.,  130 
Pa.  170. 


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616  YUENGLING  &  SONS  v.  JENNINGS. 

Arguments — Opinion  of  the  Couit.  [6  Pa.  Superior  Ct 

JE,  F.  Mc  Govern^  with  him  John  McQ-ahrevi^  for  appellee, 
relied  on  Gould  v.  Ins.  Co.,  134  Pa.  570,  588;  Moyer  v.  Ins. 
Co.,  176  Pa.  579. 

Opinion  by  Smith,  J.,  February  19, 1898 : 

The  broad  question  here  is  whether  upon  all  the  evidence  the 
defendant  company  is  liable  under  the  policy  for  the  loss  by  fire 
of  the  property  insured.  The  assignment  of  errors  contains 
twenty  specifications,  several  of  which  repeat,  in  varying  phrase, 
the  substance  of  others.  The  eleventh  is  tliat  the  court  erred 
in  declining  to  affirm  the  point  that  "  Under  all  the  evidence  in 
the  case  the  verdict  must  be  for  the  defendant."  This  brings 
up  the  whole  case  for  review.  Upon  examination,  however,  it 
appears  that  the  controverted  points  are  quite  few.  Testimony 
sufficient  for  submission  to  the  jury,  was  introduced  tending  to 
show :  (1)  That  the  insurance  was  effected  through  J.  W.  Mil- 
ler, an  insurance  agent,  who  received  the  premium,  forwarded 
it  to  the  company,  and  delivered  the  policy  to  the  insured. 
(2)  That  on  March  31,  1894,  while  the  policy  was  in  force,  the 
property  insured  was  destroyed  by  fire,  without  fmud  or  fault 
on  the  part  of  the  insured.  (3)  That  what  the  insured  described 
as  "  A  proof  of  loss  ....  according  to  the  terms  of  the  policy," 
verified  by  affidavit,  and  accompanied  with  the  justice's  certifi- 
cate, was  on  April  5, 1894,  delivered  by  the  insured  to  the 
agent.  Miller,  and  by  him  mailed  to  the  company,  and  was  pro- 
duced by  the  company  on  trial.  (4)  That  no  objection  or  an- 
swer of  any  kind  was  made  to  this  by  the  company.  (5)  That 
receiving  no  answer  to  this  notice  of  loss  or  to  his  letters,  the 
insured,  on  June  27,  1894,  made  out,  swore  to,  and  mailed  to 
the  company,  a  more  formal  proof  of  loss,  in  accordance  with 
the  detailed  requirements  of  the  policy.  (6)  That  the  insured 
received  no  answer  from  the  company  to  any  of  his  communi- 
cations until  January  21, 1895,  when  a  letter  came  by  mail  call- 
ing on  him  to  appear  at  the  company's  office  in  Philadelphia, 
and  submit  to  an  examination  under  oath. 

The  specifications  of  error  relate  to  questions  of  fact,  mainly, 
which  were  properly  submitted  to  the  jury.  The  objection  to 
the  sufficiency  of  the  proofs  of  loss  was  the  principal  matter 
discussed  on  the  argument.  This  matter  we  think  comes  fairly 
within  the  rule  laid  down  in  Gould  v.  Insurance  Co.,  134  Pa. 


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TUENGLING  &  SONS  v.  JENNINGS.  617 

1898.]  Opinion  of  the  Court. 

688,  and  Moyer  v.  Insurance  Co.,  176  Pa.  579,  as  held  by  the 
learned  judge  of  the  court  below.  The  rule  is  as  follows :  '*  If 
the  insured,  in  good  faith,  and  within  the  stipulated  time,  does 
what  he  plainly  intends  as  a  compliance  with  the  requirements 
of  his  policy,  good  faith  equally  requires  that  the  company  shall 
promptly  notify  him  of  their  objections,  so  as  to  give  him  the 
opportunity  to  obviate  them ;  and  mere  silence  may  so  mislead 
him  to  his  disadvantage,  to  suppose  the  company  satisfied,  as 
to  be  of  itself  sufficient  evidence  of  waiver  by  estoppel."  It  is 
idle  now  to  question  the  validity  of  this  rule,  or  to  argue  that 
it  is  stated  too  broadly.  It  is  the  logical  deduction  from  all  the 
authorities,  including  those  here  cited  in  opposition  to  it.  The 
opinion  of  Mr.  Justice  Mitchell  indicates  a  full  examination 
of  the  cases  on  the  question  of  waiver  and  of  estoppel,  in  their 
relation  to  insurance  contracts,  and  the  rule  referred  to  was 
evidently  well  considered  before  its  adoption.  It  is  a  just  and 
safe  guide  for  both  insurei-s  and  insured,  sound  in  principle  and 
salutary  in  its  operation. 

In  the  present  case  it  is  not  denied  that  "  the  insured,  in  good 
faith,  and  within  the  stipulated  time,  did  what  he  plainly  in- 
tended as  a  compliance  with  the  requirements  of  his  policy," 
and  for  that  purpose  called  to  his  aid  the  assistance  of  a  justice 
of  the  peace  whose  certificate  was  required.  His  communica- 
tion was  unanswered  by  the  company.  His  subsequent  efforts  to 
obtain  an  answer  were  similarly  disregarded.  Not  until  about 
ten  months  after  the  loss  could  the  insured  elicit  an  answer  from 
the  company,  and  tliis  consisted  of  a  peremptory  demand  that 
he  go  to  Philadelphia  and  submit  to  an  examination.  Such 
unexplained  silence  or  indifference,  in  the  face  of  contractual 
obligations,  will  be  neither  encouraged  nor  excused  by  this  court. 
We  therefore  hold  that  the  defendant  company  is  now  estopped 
from  making  a  denial  of  the  sufficiency  of  the  proofs  submitted, 
which  would  turn  the  plaintiff  out  of  court  because  of  formal 
inadequacy.  This  is  not  a  case  in  which  the  insured  made  no 
effort  to  comply  with  the  requirements  of  his  policy.  On  the 
contrary,  it  is  evident  that  he  endeavored  to  do  so  promptly  and 
according  to  his  understanding  of  his  duties.  His  efforts  in 
that  direction  were  apparently  spumed  with  contemptuous  silence 
by  the  officers  of  the  company.  He  is  not  now  to  be  impaled 
on  the  horn  of  technicality,  in  aid  of  such  treatment. 


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618  YUENGLING  &  SONS  v.  JENNINGS. 

Opinion  of  the  Court.  [6  Pa.  Superior  Ct 

The  question  of  the  authority  of  Mr.  Miller,  as  general  or 
special  agent,  is  not  involved  in  this  case.  No  objection  is  made 
to  what  he  did  in  procuring  the  insurance  or  in  receiving  the 
premium,  and,  while  the  first  proofs  of  loss  wei'e  handed  to  him, 
it  is  not  denied  that  he  promptly  mailed  them  to  the  company. 
It  is  not  contended  that  the  proofs  were  "  served  "  on  him  or 
that  he  had  authority  to  accept  such  service.  It  was  unneces- 
sary to  show  this  when  it  was  not  alleged  that  the  company  did 
not  receive  them  by  due  course  of  mail  within  the  period  fixed 
by  the  policy.  It  would  appear  from  the  testimony  that  the 
proofs  were  executed  before  the  justice  by  the  insured  and  re- 
ceived by  the  company  within  ten  days  of  the  loss  by  fire. 
Whether  the  company  has  since  become  insolvent,  or  proceed- 
ings are  pending  to  have  a  receiver  appointed,  is  not  material 
here. 

The  assignment  of  en*ors  is  oven-uled  and  the  judgment  is 
affirmed. 


William  T.  Auer,  Appellant,  v.  Jacob  B.  Mauser  and 
Abraham  Smoyer. 

Malicious  prosecution — Essential  grounds. 

The  grounds  on  which  an  action  for  malicious  prosecution  must  rest  are 
well  settled;  it  must  appear  to  have  been  commenced  maliciously  and 
without  probable  cause ;  these  essentials  must  coexist. 

Province  of  court  andjury^What  constitutes  for  the  court— Existence  for 
the  Jury. 

Wliat  circumstances  constitute  probable  cause  is  for  the  court ;  whether 
they  have  been  shown  in  a  particular  case  is  for  the  jury. 

Evidence — Probable  cause  and  malice — When  implied — Presumption  from 
acqiiittaJ, — Question  for  jury . 

Malice  may  be  implied  from  want  of  probable  cause  and  may  be  re- 
butted by  evidence  showing  its  absence;  but  want  of  probable  cause  can- 
not be  implied  from  malice,  and  may  exist  without  it.  The  inquiry  as  to 
both  must  relate  to  the  commencement  of  the  prosecution  and  the  circum- 
stances leading  to  it.  It  is  permitted  to  show  how  the  prosecution  termi- 
nated as  bearing  on  the  existence  or  nonexistence  of  cause  and  malice. 
An  acquittal  or  lawful  discharge  of  the  defendant  is  prima  facie  evidence 
of  want  of  probable  cause,  and  therefore  sufficient  to  caiTy  the  case  to 
the  jury. 


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AUER  V.  MAUSER.  619 

1898.]  Syllabus— Assignment  of  Errors. 

In  an  action  for  malicious  prosecution  the  case  is  for  the  jurj?  where  it 
appears  that  the  plaintiff  in  the  action  as  defendant  in  the  prosecution, 
was  lawfully  discharged,  although  there  was  evidence  tending  to  establish 
probable  cause  and  to  rebut  presumption  of  malice. 

Evide7ice^Maliciou8  prosecution — Conversationa  between  prosecutor  and 
justice. 

Evidence  of  conversations  between  the  prosecutor  and  the  justice  aftef 
the  prosecution  had  been  instituted,  in  the  absence  of  the  defendant  in 
the  prosecution,  are  inadmissible  to  rebut  the  presumption  of  malice. 

Argued  Dec.  9, 1897.  Appeal,  No.  142,  Oct.  T.,  1897,  by 
plaintiff,  from  judgment  of  C.  P.  Northampton  Co.,  April  T., 
1895,  No.  24,  on  verdict  for  defendants.  Before  Rice,  P.  J., 
WiCKHAM,  Beavbb,  Reeder,  Orlady,  Smith  and  Por- 
ter, JJ.    Reversed. 

Trespass  for  malicious  prosecution.     Before  Schuyler,  P.  J. 

The  action  was  based  on  alleged  malicious  prosecution  of  the 
plaintiff  by  the  defendants  in  causing  him  to  be  arrested  for 
lai*ceny. 

The  facts  suflSciently  appear  in  the  opinion  of  the  court. 

The  court  below  directed  a  verdict  for  the  defendants  in  the 
following  charge : 

[It  is  indispensable  to  a  recovery  in  an  action  for  malicious 
prosecution  that  the  prosecution  claimed  to  be  malicious  was 
f  uUy  ended  when  the  action  was  brought.  This  the  plaintiff  has 
failed  to  show.  On  the  contmry,  the  undisputed  evidence  shows 
that  the  prosecution  was  not  fully  ended.]  [1]  [You  will  there- 
fore return  a  verdict  in  favor  of  the  defendants.]  [2] 

Verdict  and  judgment  for  defendants.     Plaintiff  appealed. 

Errors  assigned  were  (1,  2)  To  portions  of  the  judge's  charge, 
reciting  same.  (3,  4)  In  overruling  plaintiff's  objection  to  the 
testimony  of  Jacob  B.  Mauser  as  to  what  occuiTcd  between  him 
and  the  justice  of  the  peace  after  the  latter  had  issued  the  war- 
rant in  suit.  (5)  In  overruling  plaintiff's  objection  to  the  testi- 
mony of  Jacob  M.  Mauser  as  U^  conversation  between  him  and 
the  district  attorney  after  the  bill  had  been  ignored  by  the  grand 
jurj\  (6)  In  overruling  the  plaintiff's  objection  to  the  testi- 
mony of  A.  C.  LaBarre,  district  attorney,  as  to  conversations 


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620  AUER  V.  MAUSER. 

Assignment  of  EiTors — Arguments.     [6  Pa.  Superior  Ct 

between  him  and  Jacob  B.  Mauser,  after  the  bill  had  been 
ignored  by  the  grand  jury. 

Russell  0.  Stewart  and  M.  Kirkpatrick^  with  them  TF.  S.  Kirk- 
patrleky  for  appellant. — In  this  state  not  only  ia  an  acquittal  by 
a  jury  of  the  criminal  charge  prima  facie  evidence  of  want  of 
probable  cause,  but  a  discharge  by  a  committing  magistrate,  a 
return  of  not  a  true  bill,  and  a  discharge  by  a  judge  upon  habea* 
corpus,  all  have  the  same  effect :  Orr  v.  Seiler,  1  Penny.  445 
Bernar  v.  Dunlap,  94  Pa.  829 ;  Zebley  v.  Storey,  117  Pa.  478 
Mentel  v.  Hippely,  165  Pa.  559. 

In  our  judgment  there  is  a  case  in  Pennsylvania  that  rulef 
our  case.  It  is  Murphy  v.  Moore,  10  Cent.  92,  not  reported  in 
oflScial  reports. 

We  desire  also  to  refer  to  a  late  case  upon  the  general  sub- 
ject as  to  the  effect  of  what  takes  place  in  the  quarter  sessions 
as  bearing  on  the  question  of  probable  cause :  Grohmann  v. 
Krischman,  168  Pa.  189. 

Declarations  made  by  a  defendant  in  his  own  favor  in  the 
absence  of  the  plaintiff  and  not  under  oath  are  never  to  be  re- 
ceived, either  in  mitigation  of  damages  or  as  substantive  matter 
of  defense.  The  whole  subject  is  clearly  reviewed  Mr.  Justice 
Gbeen  in  Clever  v.  Hilberry,  116  Pa.  431. 

Our  objections  to  this  te-stimony  were:  1,  immaterial,  irrele- 
vant and  incompetent ;  2,  that  the  record  of  the  court  of  quarter 
sessions  was  the  best  evidence  and  the  only  competent  evidence ; 
that  it  could  not  be  contradicted  by  the  testimony  offered ; 
8,  that  the  matters  offered  are  res  inter  alios  acta :  Gordon  v. 
Com.,  92  Pa.  216 ;  Com.  v.  Green,  126  Pa.  531. 

IT,  J.  Steele^  with  him  George  W,  Geiser^  for  appellees. — To 
sustain  the  action  the  failure  of  the  proceedings  against  the 
plaintiff  must  be  averred  and  proved :  Stewart  v.  Sonnebom, 
98  U.  S.  187;  Murson  v.  Austin,  2  Phila.  116. 

In  Knott  V.  Sargent,  125  Mass.  95,  the  grand  jury  made  a 
return  of  "  no  bill,"  but  by  parol  evidence  it  was  shown  that  it 
was  on  account  of  the  absence  of  a  material  witness  and  that 
the  case  was  continued;  held  that  an  action  for  malicious 
prosecution  will  not  lie. 

These  assignments  apparently  overlook  the  fact  that  the 
foundation  of  the  action  is  a  charge  of  malice.     It  has  repeat- 


Digitized  by  VjOOQ  IC 


AUER  V.  MAUSER  621 

1898.]  Arguments — Opinion  of  the  Court. 

edly  been  held  that  it  is  competent  as  in  this  case  for  a  defend- 
ant to  testify  to  his  intent  or  motive  where  that  is  involved  in 
the  case :  Heap  v.  Parrish,  104  Ind.  86 ;  Spalding  v.  Lowe, 
56  Mich.  866. 

And  upon  this  it  is  even  competent  to  show  that  he  sought 
the  advice  of  counsel,  and  what  was  then  stated :  Walter  v. 
Sample,  25  Pa.  275. 

What  the  prosecutor  stated  to  the  grand  jury  has  ever  been 
held  proper  on  the  question  of  malice :  Dietz  v.  Langfit,  63  Pa. 
234. 

Here  the  declarations  were  part  of  the  res  gestae,  accompanied 
the  acta  in  issue  and  characterized  them  at  the  time :  Elmer  v. 
Fessenden,  151  Mass.  858. 

These  assignments  relate  to  the  competency  of  the  district 
attorney  to  explain  the  circumstances  under  which  the  indict- 
ment was  ignored.  Appellant  assumes  that  the  purpose  was  to 
impeach  the  record.  This  is  a  mistake.  Its  sole  purpose  was 
to  show  the  circumstances.  We  do  not  deny  that  the  bill  was 
returned  ignored,  but  we  do  say  that  this  was  accomplished  in 
an  illegal  manner.  In  Knott  v.  Sargent,  125  Mass.  95,  the  dis- 
trict attorney  was  held  competent,  after  the  grand  jury  had  ig- 
nored a  bill,  to  testify  that  a  witness  had  been  absent,  and  that 
the  case  was  actually  continued.  Mauser  was  clearly  compe- 
tent to  testify  that  he  was  not  called  before  the  grand  jury : 
1  Greenleaf  on  Evidence,  252. 

Probable  cause  does  not  depend  on  the  actual  state  of  the  case 
in  point  of  fact,  but  upon  the  honest  and  reasonable  belief  of  the 
party  prosecuting.  It  has  been  variously  defined  as  such  a  sus- 
picion as  would  induce  a  reasonable  man  to  commence  a  prose- 
cution: Smith  V.  Ege,  52  Pa.  419;  Gilliford  v.  Windel,  108 
Pa.  142. 

Opinion  by  Smtih,  J.,  February  19, 1898  : 

This  action  is  based  on  an  alleged  malicious  prosecution  of 
the  plaintiff  by  the  defendants.  The  grounds  on  which  such 
an  action  must  rest  are  well  settled ;  it  must  appear  that  the 
prosecution  upon  which  it  is  founded  was  commenced  mali- 
ciously and  without  probable  cause.  These  are  essential  and 
must  coexist.  What  circumstances  constitute  probable  cause, 
are  for  Uie  court;  whether  they  have  been  shown  in  a  particu*" 


Digitized  by  VjOOQ IC 


622  AUER  V,  MAUSER. 

Opinion  of  the  Ccuiit.  [6  Pa.  Superior  Ct 

lar  case  is  for  the  jury  to  decide.  Malice  may  be  implied  from 
want  of  probable  cause,  and  may  be  rebutted  by  evidence  show- 
ing its  absence.  But  want  of  probable  cause  cannot  be  implied 
from  malice,  and  may  exist  without  it.  The  inquiry  as  to  both 
probable  cause  and  malice  must  relate  to  the  commencement  of 
the  prosecution  and  the  circumstances  leading  to  it.  As  in 
other  cases,  all  relevant  matters,  whether  arising  before  or  after 
the  prosecution  was  begun,  which  properly  tend  to  show  the 
cause  and  the  motive,  are  admissible  in  evidence.  Hence  it  has 
always  been  permitted,  in  these  actions,  to  show  how  the  prose- 
cution terminated,  as  bearing  on  the  existence  or  nonexistence 
of  cause  and  of  malice.  When  the  prosecution  has  been  ter- 
minated by  the  conviction  of  the  defendant,  that  fact  is  ordina- 
rily accepted  as  sufficient  proof  of  cause  to  defeat  an  action  for 
damages.  On  the  other  hand  an  acquittal  or  lawful  discharge 
of  the  defendants,  is  prima  facie  evidence  of  want  of  probable 
cause,  and,  therefore,  sufficient  to  carry  the  case  to  the  jury. 
Both  conviction  and  acquittal  may  be  shown,  but  neither  is 
conclusive  of  the  question ;  the  former,  however,  has  the  greater 
probative  force.  In  the  determination  of  the  questions  arising 
in  these  cases,  the  ordinary  rules  of  evidence  are  to  be  applied, 
and  the  functions  of  the  trial  court  and  of  the  jury  are  to  be 
exercised  as  in  other  cases.  These  general  principles  have  been 
recognized  and  applied  so  often  that  citation  of  authorities  in 
their  support  is  ifnnecessary. 

In  the  case  before  us,  it  appears  that  the  plaintiff  was  arrested 
for  larceny  at  the  instance  of  the  defendants,  and  bound  over 
for  his  appearance  at  the  next  court  of  quarter  sessions.  The 
grand  jury  to  whom  the  bill  of  indictment  was  submitted 
ignored  it,  and  the  defendants  were  discharged.  A  month  later 
this  suit  was  brought.  No  further  action  was  taken  on  the 
return  upon  which  the  indictment  was  founded,  and  no  other 
prosecution  for  the  alleged  larceny  has  since  been  commenced. 
The  criminal  proceedings  seem  to  have  been  finally  dropped, 
and  the  statute  of  limitations  as  to  larceny  had  fully  run  before 
this  case  was  called  for  trial.  On  the  trial  the  plaintiflf  oflFered, 
inter  alia,  the  record  of  the  criminal  proceedings  which  showed 
that  the  grand  jury  returned  the  indictment  "Not  a  true  bill.'' 
To  meet  the  effect  of  this  finding,  the  defendants  called  the 
district  attorney,  who  testified,  under  objection,  that  the  indict-. 


Digitized  by  VjOOQ IC 


AUER  V,  MAUSER.  623 

1898.]  Opinion  of  the  Court. 

ment  was  laid  before  the  grand  jury  earlier  than  the  day  on 
which  the  witnesses  for  the  commonwealth  had  been  subpoenaed 
to  attend,  and  therefore  but  one  witness,  the  defendants'  father, 
was  examined ;  that  rather  than  hold  the  jury  over,  he  con- 
cluded to  let  the  bill  be  ignored,  especially  because  of  the  state- 
ment to  him,  by  the  prosecutors'  counsel,  that  the  defendants  had 
taken  the  property  under  a  claim  of  right.  The  bill  was  accord- 
ingly ignored.  Other  testimony  would  also  indicate  that  the 
bill  was  disposed  of  before  the  day  fixed  for  the  commonwealth's 
witnesses  to  appear.  That  they  were  not  sworn  before  the 
grand  jury  seems  to  be  conceded,  and  it  does  not  appear  that 
their  failure  to  testify  was  due  to  any  act  of  the  defendants  in 
the  present  case. 

At  the  close  of  the  testimony,  the  trial  judge  directed  a  ver- 
dict for  the  defendants  in  the  following  brief  charge :  "  It  is 
indispensable  to  a  recovery  in  an  action  for  malicious  prosecu- 
tion that  the  prosecution  claimed  to  be  malicious  wiis  fully  ended 
when  the  action  was  brought.  This  the  plaintiff  has  failed  to 
show.  On  the  contrary,  the  undisputed  evidence  shows  that 
the  prosecution  was  not  fully  ended.  You  will  therefore  return 
a  verdict  in  favor  of  the  defendants."  It  was  erroneous  thus 
to  declare  that  "  the  undisputed  evidence  shows  that  the  prose- 
cution was  not  fully  ended,"  and  to  direct  a  verdict  for  the  de- 
fendants for  that  reason,  contrary  to  the  legal  effect  of  the  record. 
Time,  the  district  attorney  was  called  by  the  defendants  and 
testified,  under  objection,  that  after  the  bill  was  ignored  he  had 
told  Mr.  Mauser,  one  of  the  prosecutors,  it  was  a  mistake,  and 
that  he  would  lay  another  indictment  before  the  next  grand 
jury.  But  when  Mr.  Mauser  was  questioned  about  his  conver- 
sation, he  said  he  had  agreed  that  it  was  wrong  thus  to  dispose 
of  the  prosecution ;  but  he  did  not  admit  that  he  had  concurred 
in  the  proposition  to  send  another  bill  before  a  subsequent  grand 
jury.  Whether  the  circumstances  under  which  the  bill  was 
ignored  rebutted  the  presumption  of  want  of  probable  cause 
raised  by  the  record,  was  for  the  jury  to  determine  under  the 
evidence.  The  record,  and  the  manner  in  which  the  finding  of 
the  jury  was  brought  about,  were  evidence  on  thia  question. 
But  the  record  of  the  court  of  quarter  sessions,  like  that  of  other 
courte,  imports  verity,  and  cannot  be  impeached  or  contradicted 
by  parol  evidence  except  for  fraud,  or,  perhaps,  plain  mistake : 


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624  AUER  V,  MAUSER. 

Opinion  of  the  Court.  [6  Pa.  Superior  Ct. 

County  V.  Boyd,  113  Pa.  52.  But  the  testimony  did  not  con- 
tradict the  record;  it  was  designed  to  rebut  a  presumption 
ordinarily  deduced  therefrom  in  these  cases,  and  it  was  admis- 
sible for  that  purpose :  Thome  v.  Insurance  Co.,  80  Pa.  15 ;  Mc- 
Clafferty  v.  Philp,  151  Pa.  86 ;  Dietz  v.  Langfitt,  68  Pa.  234. 
A  discharge  or  an  acquittal  casts  upon  the  defendant,  in  an 
action  for  malicious  prosecution,  the  burden  of  showing  proba- 
ble cause,  unless  that  appears  from  the  plaintiff's  testimony:  Bit- 
ter V.  Ewing,  174  Pa.  342 ;  Ruffner  v.  Hooks,  2  Pa.  Superior 
Ct.  278. 

The  defendant  in  the  indictment  was  in  no  default  in  the 
prosecution  upon  which  this  action  is  grounded.  The  finding 
of  the  grand  jury  and  his  discharge  were  all  he  could  ask. 
Whether  the  proceedings  should  be  continued  by  a  new  bill,  or 
renewed  by  another  prosecution,  were  matters  beyond  his  con- 
trol ;  and  in  the  absence  of  fraud  on  his  paii;  he  had  a  right  to 
rely  upon  the  record.  That  a  return  of  "ignoramus "  or  "not 
a  true  bill "  by  the  grand  jury,  approved  by  the  court,  is  a  suf- 
ficient ending  of  the  prosecution,  and  such  an  "  acquittal "  of 
the  defendant,  as  will  support  an  action  for  malicious  prosecu- 
tion based  thereon,  is  elementary  law,  not  now  to  be  questioned : 
Savil  V.  Roberts,  1  Salk.  13 ;  Lowe  v.  Wartman,  1  Cent  Rep. 
(N.  J.)  437 ;  Shock  v.  McChesney,  2  Yeates,  473 ;  Stewart  v. 
Thompson,  51  Pa.  158 ;  Murphy  v.  Moore,  10  Cent.  Rep.  92 ; 
Charles  v.  Abell,  Brightly  Rep.  131.  In  this  last  case  the  prin- 
cipal question  was  the  right  to  maintain  an  action  for  malicious 
prosecution  upon  the  discharge  of  the  defendant  on  a  writ  of 
habeas  corpus,  and  it  was  there  said  by  Mr.  Justice  Bell,  at  nisi 
prius,  "  It  seems  to  be  now  agreed  that  if  a  grand  jury  ignore 
the  bill,  it  is  sufficient  to  maintain  the  action ; "  and  the  entire 
opinion  embracing  this  sentence  was  quoted  approvingly  by 
Mr.  Justice  Paxson  in  delivering  the  opinion  of  the  court  in 
Zebley  v.  Storey,  117  Pa.  478.  In  the  case  of  Stewart  v.  Thomp- 
son, supra,  the  prosecution  for  which  damages  were  claimed 
had  terminated,  as  to  the  plaintiflF,  by  the  grand  jury  ignoring 
the  indictment;  and  while  the  chief  contention  in  the  Supreme 
Court  was  whether  trespass  or  case  was  the  proper  form  of  ac- 
tion, Mr.  Justice  Read  said:  "But  the  prosecution  did  not 
stop  here :  he  [the  prosecutor]  procured  a  bill  of  indictment, 
valid  in  form,  ....  to  be  presented  to  the  grand  jury,  which 


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AUER  V.  MAUSKR.  625 

1898.]  Opinion  of  tiie  Court. 

was  ignored  as  to  the  plaintiff ;  and  the  prosecution  was  wholly 
ended  and  determined,  and  the  plaintiff  discharged.  It  is  clear, 
therefore,  that  there  was  a  prosecution  for  a  criminal  offense 
which  was  at  an  end,  and  Uierefore  case  for  a  malicious  prose- 
cution was  the  proper  form  of  action."  Judgment  for  the  plain- 
tiff in  that  case  was  affirmed.  The  case  of  Hill  v.  Egan.  160 
Pa.  119,  is  relied  upon  by  the  appellees  here  to  sustain  their 
contention  that  the  prosecution  was  not  legally  terminated  and 
that  the  present  action  was  prematurely  brought.  That  case  is 
authority  for  the  proposition  that  where  a  prosecution  was  so 
proceeded  in  that  the  defendant  was  held  to  bail,  the  magistrate 
could  not  afterward  lawfully  discharge  the  defendant  without 
notice  to  the  prosecutor,  and  that  such  a  termination  of  the 
prosecution  would  not  make  the  prosecutor  liable  to  an  action 
for  malicious  prosecution.  It  does  not  uphold  the  broad  prop- 
osition that  a  trial  judge  may  declare  a  judicial  record  of  no 
legal  effect  when  opposed  by  parol  testimony  alleging  that  it 
was  made  up  partially  under  a  mistake  of  fact.  If  the  termi- 
nation of  the  prosecution  refen-ed  to  here  was  falsely  or  fraud- 
ulently procured  by  or  on  behalf  of  the  defendant,  he  could  not 
ground  a  suit  for  malicious  prosecution  on  it ;  but  this  also 
would  be  a  question  of  fact  for  the  jury.  The  first  and  second 
specifications  of  error  are  sustoined. 

Complaint  is  made,  under  the  third  and  fourth  specifications, 
of  the  admission  of  a  conversation  between  the  justice  who  is- 
sued the  warrant  and  Mauser,  one  of  the  defendants,  in  the 
absence  of  the  plaintiff,  after  the  warrant  was  issued  and  be- 
fore its  return  by  the  constable.  This  was  offered  for  the  pur- 
pose of  showing  the  absence  of  malice,  and  was  admitted  on 
that  ground.  We  think  its  admission  was  erroneous.  It  was 
a  mere  declaration  by  the  defendant,  made  several  hours  after 
the  warrant  was  issued,  unaccompanied  by  any  act  or  request 
to  discontinue  the  prosecution.  Mr.  Mauser  then  told  the  jus- 
tice, substantially,  that  he  did  not  want  to  have  Auer  arrested 
for  stealing ;  but  he  said  nothing  about  recalling  the  warrant 
or  revoking  the  written  instructions  he  had  sent  to  the  justice 
in  the  morning  by  his  tenant,  Mr.  Smoyer:  "Mr.  Snyder,  go 
for  this  man  Auer  criminally  to  have  hay  and  straw  returned," 
in  pursuance  of  which  the  complaint  was  made  and  the  warrant 
issued.  Though  disclaiming  a  desire  for  the  arrest,  he  still  al- 
VOL.  VI— 40 


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626  AUER  V.  MAUSER. 

Opinion  of  the  Court.  .  [6  Pa.  Superior  Ct 

lowed  it  to  be  made.  While  it  was  entirely  proper  for  the  de- 
fendants to  disprove  malice,  this  could  not  be  done  by  proof  of 
theii'  own  declarations  in  the  absence  of  the  plaintiff,  and  which 
did  not  affect  the  prosecution  or  purport  to  affect  it :  Thomas  v. 
Miller,  165  Pa.  216.  The  case  of  Dietz  v.  Langfit,  63  Pa.  234, 
is  not  authority  for  the  admission  of  such  declarations.  There 
it  was  sought  to  disprove  the  presumption  of  malice  arising  from 
the  termination  of  the  prosecution  through  the  return  "  ignora- 
mus "  by  the  grand  jury,  and  for  this  purpose  the  defendant,  who 
was  the  only  witness  called  before  the  grand  jury,  was  allowed 
to  show  that  he  had  stated  to  the  grand  jury  that  he  did  not  wish 
to  prosecute  the  case  further,  for  reasons  which  he  stated,  and 
it  was  thereupon  ended.  In  the  present  case  the  defendants 
could  not  justify  on  the  ground  that  the  prosecution  was  pur- 
sued under  the  advice  of  the  justice.  It  is  no  part  of  his  ofiS- 
cial  duties  to  counsel  litigants,  and  his  directions  afford  no 
shield  for  errors  committed  in  pursuance  thereof:  Brobst  v. 
Ruff,  100  Pa.  91;  Beihofer  v.  Loeffert,  159  Pa.  865.  The 
third  and  fourth  qpsignments  are  sustained. 

It  was  competent  for  the  defendants  to  show  the  circumstances 
under  which  the  prosecution  was  terminated,  and  that  its  ter- 
mination was  without  their  concurrence  or  knowledge.  If  the 
action  of  the  grand  jury  resulted  from  the  mistake  of  the  dis- 
trict attorney,  and  by  reason  thereof  the  defendants  and  other 
witnesses  for  the  commonwealth  were  not  sworn,  this  fact 
might  be  shown  to  rebut,  so  far  as  it  might  do  so,  the  pre- 
sumption of  want  of  probable  cause  arising  from  the  discharge 
of  the  plaintiff.  Hence  the  testimony  of  the  district  attorney 
and  of  the  defendant  Mauser,  in  so  far  as  it  shows  the  circum- 
stances which  led  to  the  finding  of  the  grand  juiy,  was  admis- 
sible. But  the  testimony  should  be  confined  to  this  subject ; 
the  expression  of  the  intentions  and  future  purposes  of  the 
district  attorney  and  of  the  defendants,  or  either  of  them,  in 
the  absence  of  the  plaintiff,  and  forming  no  part  of  the  res 
gestae,  could  not  be  thus  introduced  in  evidence  against  tlie 
plaintiff.  With  this  qualification  the  fifth  and  sixth  specifica- 
tions of  error  ai'e  overruled. 

The  judgment  is  reversed,  and  a  venire  facias  de  novo  is 
awarded. 


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POTTER'S  ESTATE.  627 

1898.]  Syllabas—Statement  of  Faoto. 

Estate  of  Erastus  Potter,  deceased.     Appeal  of  Le  Grand 

Wells. 

Contracts  with  the  aged — Scrutiny  and  policy  of  law. 

The  law  is  especially  solicitous  and  careful  of  childltood  and  old  age. 
The  rights  of  the  latter  are  to  be  guai*ded  with  as  much  of  carefulness  and 
solicitude  as  the  former.  A  contract,  made  with  an  aged  woman,  who  is 
unadvised  as  to  her  lights,  a  waiver  of  which  is  imputed  from  the  execa- 
tioQ  of  such  contract,  will  be  closely  scrutinized  and  strictly  construed  ia 
her  favor. 

Mistake  of  law  —  Equity  wiU  relieve  when  mixed  with  imposition  or 
fraud. 

Where  with  a  mistake  in  law,  there  is  found  mixed  up  other  ingredi- 
ents showing  misrepresentations,  stating  that  which  is  not  true  or  conceal- 
ing that  which  ought  to  have  been  made  known,  Avhere  imposition,  undue 
influence,  mental  incapacity  or  surpnso  are  established,  relief  will  be 
afforded  to  one  who  has  thus  been  imposed  upon  and  induced  to  do  that 
which  is  contrary  to  equity  to  maintain. 

Widow^s  exemption — Waiver  obtained  by  undue  influence — Equity. 

A  paper  purporting  to  be  a  waiver  of  a  widow's  right  to  exemption  exe- 
cuted by  an  aged  widow  in  ignorance  of  her  rights  and  of  the  significance 
of  the  paper  at  the  solicitations  of  her  husband's  creditor  without  advice 
or  oppoitunity  to  seek  advice,  will  not  be  permitted  to  intei*fere  with  her 
rights  to  claim  the  benefit  of  the  act  of  1851. 

Widoiv^s  exemption — Waiver  of— Laches. 

There  can  be  no  fault  or  laches  committed  by  a  widow  as  to  claiming 
her  exemption  until  she  has  knowledge  of  her  rights,  and  there  is  a  proper 
officer  from  whom  she  can  claim  it  or  until  she  can  compel  the  appoint- 
ment of  such  an  officer.  An  ignorant,  aged  and  illiterate  widow  had  no 
knowledge  of  her  right  to  the  exemption  until  several  years  after  her 
husband's  death.  Uer  claim  for  exemption  was  presented  to  the  admin- 
istrator eighteen  days  after  letters  issued.    Held^  that  there  was  no  laches. 

Argued  Jan.  17,  1898.  Appeal,  No.  28,  Jan.  T.,  1898,  by 
Le  Grand  Wells,  from  decree  of  O.  C.  Susquehanna  Co.,  Aug.  T., 
1897,  No.  53,  in  the  matter  of  exceptions  to  widow's  inventory. 
Before  Rice,  P.  J.,  Wickham,  Bba^^bb,  Oelady,  Smith  and 
POBTBB,  JJ.    Affirmed. 

Exceptions  to  widow's  inventory  and  appraisement.     Before 
Seable,  p.  J. 
It  appears  from  the  auditor's  report  that  Erastus  Potter  died 

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628  POTTER'S  ESTATE. 

Statement  of  Facts^-Assignment  of  Errors.    [6  Fa.  Supenor  Ct, 

Januarj-  20, 1893,  testate,  bequeathing  and  devising  all  his  prop- 
erty to  his  widow,  Jenett  Potter.  His  property  consisted  of 
some  personal  property  and  thii'ty-three  acres  of  land.  The 
widow  continued  to  reside  on  and  receive  the  income  of  said 
property  until  after  the  real  estate  was  sold  by  the  administrator 
of  said  estate,  March  80,  1896.  The  will  was  duly  probated 
December  7,  1893. 

•  The  principal  debts  of  the  decedent  were  three  judgment 
liens  to  Le  Gi-and  Wells  and  one  judgment  lien  to  G.  G. 
Wells.  After  the  probate  of  the  will  Le  Grand  Wells,  one  of 
the  lien  creditors,  called  on  the  widow  and  she  signed  a  revival 
of  judgment  and  a  waiver  of  her  right  to  claim  the  widow's 
exemption,  giving  him  at  the  same  time  a  note  for  $339.05  for 
a  debt  she,  individually,  owed  him  and  revived  one  of  the  estate 
judgments,  as  terre-tenant  and  owner  of  the  real  estate  of  said 
decedent  by  last  will. 

In  January,  1896,  the  widow  and  her  coexecutor  renounced 
the  light  to  administer,  and  an  administrator  c.  t.  a.  was  ap- 
pointed. On  February  6,  of  the  same  year  an  order  of  sale  was 
issued  by  the  orphans'  court  to  the  administrator  to  sell  the  real 
estate  of  the  decedent  for  the  purpose  of  paying  the  judgments 
against  it.  On  Febiniary  3,  1896,  the  widow  elected  to  take 
$300  exemption  out  of  the  real  estate  of  her  deceased  husband, 
which  was  duly  appraised,  and  $300  awarded  to  the  widow  as 
her  exemption  out  of  and  from  the  same. 

Other  facts  appear  in  the  opinion  of  the  couii;. 

The  auditor  sustained  the  exceptions  to  the  widow's  invea- 
tory  and  appraisement,  and  ordered  distribution  to  the  lien  cred- 
itoi-s  only,  as  a  matter  of  law,  holding  that  the  fact,  that  the 
widow  remaining  silent  for  upwards  of  three  years  after  the 
death  of  her  husband,  and  making  no  claim  for  her  exemption, 
is  a  conclusive  proof  of  a  waiver  of  her  right  to  the  same. 

The  court  below  sustained  exceptions  to  the  auditor's  report, 
touching  confirmation  of  the  widow's  inventory  and  confirming 
the  said  inventory  finally.  Le  Grand  Wells,  a  lien  creditor,  ap- 
pealed. 

Errors  a%ngned  among  others  were  (1)  in  refusing  to  confirm 
the  auditor's  report.  (2)  In  sustaining  exceptions  thereto  and 
confirming  the  widow's  inventory. 


Digitized  by  VjOOQ IC 


POTTER'S  ESTATE.  629 

1898.]  Arguments. 

T.  J.  Davies^  for  appellant. — A  delay  of  over  three  years  on 
the  part  of  the  widow  in  exercising  her  right  of  exemption  is 
gross  laches  and  operates  as  a  conclusive  proof  of  a  waiver  of 
her  right :  Kerns'  Appeal,  120  Pa.  523. 

Numerous  cases  can  be  cited  that  hold  that  a  party  claiming 
exemption  must  not  allow  expense  and  cost  to  be  made  before 
making  their  claim:  Williams'  App.,  92  Pa.  69:  Millers  App., 
16  Pa.  800. 

The  authorities  are  numerous  that  hold  that  an  extension  of 
time  or  forbearance  is  sufficient  consideration  for  an  agreement: 
Hesser  v.  Steiner,  5  W.  &  S.  476 ;  Giles  v.  Acklec,  9  Pa.  147  ; 
Gorder  v.  Bank,  7  Atl.  Rep.  144 ;  Homer  v.  Jones,  6  Phila. 
258. 

A  contract  of  a  married  woman  to  pay  the  debts  of  her  hus- 
band creates  a  moral  obligation :  Holden  v.  Banes,  140  Pa.  63. 

Possession  by  a  widow  of  the  real  estate  devised  to  her  is 
evidence  of  an  election  under  the  will :  Zimmerman  v.  Lebo, 
151  Pa.  345. 

Mere  ignorance  of  the  law  will  not  relieve  her  from  the  eflFect 
of  acceptance  under  the  will :  Light  v.  Light,  21  Pa.  407. 

Where  a  widow  accepts  part  of  a  bequest  under  a  will,  she  is 
estopped  from  afterwards  claiming  her  exemption,  where  it  in- 
jures other  beneficiaries  :  Maier's  Est.,  1  Pearson,  420. 

The  widow's  inventory  should  not  be  confirmed,  and  money 
awarded  to  the  widow,  for  the  following  reasons :  (1)  because 
the  widow  did  not  make  her  claim  for  exemption  in  a  reason- 
able time ;  (2)  because  she  waived  the  right  of  exemption  in 
writing  under  seal ;  (3)  she  is  estopped  from  claiming  her  ex- 
emption, because  she  accepted  and  elected  to  take  under  the 
terms  of  the  will  of  her  husband;  (4)  because  the  widow  failed 
to  proceed  and  claim  her  exemption  under  the  provisions  of  the 
act  of  November  27, 1865,  and  as  therein  provided ;  (5)  because 
judgments  No.  92,  January  term,  1894,  and  No.  91,  January 
term,  1894,  became  liens  upon  the  real  estate  described  in  her 
inventory,  prior  to  making  claim  for  her  exemption,  by  virtue 
of  her  acceptance  under  the  will  of  her  deceased  husband. 

A.  B.  Smithy  Jr.^  ior  appellee. — The  relation  between  the  con- 
tracting parties  appears  to  be  of  such  a  character  as  to  render  it 
oertain  that  they  did  not  deal  on  equal  terms  and  the  transao- 


Digitized  by  VjOOQ IC 


630  POTTKR'S  ESTATK. 

Arguments — Opinion  of  the  Court.     [6  Pa.  Superior  Ct. 

tion  is  pronounced  void.  It  is  incumbent  on  the  party  in  whom 
such  confidence  is  reposed  to  show  aflBrmatively  that  no  decep- 
tion was  used,  and  that  all  was  fair,  open,  voluntary  and  well 
understood :  Stepp  v.  Frainpton,  179  Pa.  284. 

Allowance  has  been  had  of  a  widow's  exemption  after  a  pe- 
riod longer  than  three  years :  Cocker's  Est.,  1  Dist.  Rep.  81. 

The  laches  of  the  widow,  if  any,  in  this  regard,  are  excused 
by  tlie  circumstances:  Kirchner's  Appeal,  6  Dist.  Rep.  138; 
McWilUam's  App.,  117  Pa.  111. 

Opinion  by  Beaver,  J.,  February  19, 1898 : 

The  facts  of  this  case  are  peculiar,  and  its  determination  must 
rest  upon  those  facts.  They  are  very  fully  stated  in  the  opm- 
ion  of  the  presiding  judge  in  the  court  below,  and  need  not  be 
specially  recounted  here. 

The  law  is  especially  solicitous  and  careful — and  rightly  so 
— of  childhood  and  old  age.  The  rights  of  the  latter  are  to  be 
guarded  with  as  much  of  carefulness  and  solicitude  as  the  for- 
mer. As  the  time  approaches  for  the  passage  into  what  we  call 
second  childhood,  which  is  practically  as  helpless  as  early  child- 
hood, there  is  no  reason  why  the  law  should  not  exercise  dis- 
criminating care  in  regard  to  transactions  made  with  persons 
in  the  one  class  as  in  the  other,  and  why  it  should  not  throw 
the  same  protection  around  both. 

Eliminating  from  the  consideration  of  the  case  the  testimony 
in  regard  to  misrepresentations  which  would  amount  to  fraud, 
and  threats  which  would  amount  to  duress,  which  is  not  want- 
ing, but  which  doubtless,  on  account  of  the  age  of  the  one  wit- 
ness and  the  youth  of  the  other,  was  eliminated  from  the 
consideration  of  the  case,  both  by  the  auditor  and  the  court 
below,  and  which  is  in  part  at  least  denied,  it  clearly  appears 
by  the  testimony  of  the  appellant  himself  and  from  other  testi- 
mony entirely  undisputed,  that  the  appellant  came  into  the 
home  of  a  widow  woman  who  had  reached  the  three  score  years 
and  ten  usually  allotted  to  man,  nearly  a  year  after  the  death 
of  her  husband,  when  she  and  her  granddaughter,  about  thirteen 
years  of  age,  and  a  small  boy,  of  ten  or  eleven  years  of  age,  were 
the  only  persons  present — the  man  of  the  house,  another  grand- 
son, a  youth  in  his  teens,  being  absent — ^with  three  papers  pre- 
viously prepared  for  her  signature.     One  of  these  was  the  re- 


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POTTER'S  ESTATE.  631 

1898.]  Opinion  of  the  Court. 

vival  of  a  judgment  obtained  against  her  husband  in  his  lifetime, 
in  which  she  described,  or  is  made  to  describe  herself,  as  "  terre- 
tenant  and  owner  of  the  real  estate  of  said  decedent  by  lafift 
will ; "  another,  a  judgment  note  for  three  hundred  and  thirty- 
nine  and  Y§^  dollars,  with  five  per  cent  commission,  and  the 
other  a  paper  purporting  to  be  a  waiver  of  her  right  to  exemp- 
tion from  or  out  of  the  real  estate  of  the  decedent.  None  of 
these  papers  was  read  to  the  widow  nor  did  she  read  them,  for 
the  reason  probably,  as  she  says,  that  she  "  could  not  read  writ- 
ing to  amount  to  anything."  It  is  alleged,  both  by  the  widow 
and  her  granddaughter,  that  she  asked  to  have  them  read  and 
objected  to  signing  anything  which  she  did  not  understand. 
It  is  clearly  apparent  that  she  was  not  only  entirely  ignorant 
of  the  contents  of  the  papers  which  she  signed,  but  that  she  was 
also  ignorant  of  her  rights  as  a  widow.  It  nowhere  appears  in 
the  testimony  of  the  appellant,  or  elsewhere,  that  there  was  any 
agreement  as  to  the  extension  of  time  for  the  payment  of  the 
debts  of  the  deceased  husband  for  any  definite  period.  It  would 
seem,  therefore,  as  if  the  indefinite  statement  contained  in  the 
agreement  waiving  exemption  had  been  inserted  for  the  purpose 
of  giving  an  apparent  consideration  for  the  execution  thereof. 
Shortly  after  the  execution  of  this  paper,  she  became  aware  in 
some  way  of  her  rights  as  widow  under  the  act  of  1851,  and  some 
two  years  thereafter  and  eighteen  days  after  the  issue  of  letters 
of  administration  c.  t.  a.,  she  presented  her  petition  or  election  to 
have  set  aside  and  appraised  to  her,  as  her  widow's  exemption, 
the  sum  of  three  hundred  dollars  out  of  said  decendent's  estate, 
and  elected  to  take  the  same  from  the  real  estate  therein  de- 
scribed. Appraisers  were  appointed,  who  returned  that  the 
real  estate  was  of  greater  value  than  three  hundred  dollars,  and 
could  not  be  divided  so  as  to  set  apart  a  portion  thereof,  to  the 
amount  of  three  hundred  dollars,  as  the  widow's  exemption. 
Exceptions  were  filed  to  this  appraisement  and,  upon  the  con- 
firmation thereof  by  the  court,  this  appeal  was  taken. 

In  Whelen's  Appeal,  70  Pa.  410,  this  general  principle,  ap- 
proved by  the  Supreme  Court,  is  laid  down :  "  It  is  clearly  set- 
tled that  where,  with  a  mistake  in  law,  there  is  found  mixed 
up  other  ingredients  showing  misrepresentations,  stating  that 
which  is  not  true  or  concealing  that  which  ought  to  have  been 
made  known,  where  imposition,  undue  influence,  mental  inco- 


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632  POTFER'S  ESTATE. 

Opinion  of  the  Court.  [6  Pa.  Superior  CL 

pacity  or  surprise  are  established,  relief  will  be  afforded  to  one 
who  has  thus  been  imposed  upon  and  induced  to  do  that  which 
it  is  contrary  to  equity  to  maintain."  It  is  therein  also  held 
"  that,  when  a  party  has  acted  under  a  misconception  or  igno- 
rance of  his  title,  and  has  executed  an  agreement  or  conveyance 
to  his  prejudice,  he  will  be  relieved  in  equity."  The  latter 
principle  is  quoted  in  Wilson  v.  Ott,  173  Pa.  263.  See  also 
RusseU's  Appeal,  75  Pa.  269. 

Applying  these  principles  to  the  facts  of  this  case,  we  are 
clearly  of  opinion  that  the  confirmation  of  the  widow's  appraise- 
ment should  stand,  and  that  the  paper  writing  purporting  to  be 
a  waiver  of  her  right  to  exemption,  having  been  executed  in 
ignorance  of  its  contents,  which  should  have  been  communi- 
cated to  her,  and  in  ignorance  of  her  rights  as  a  widow,  when 
she  had  no  one  with  whom  to  advise, — ^her  age,  her  failing  mem- 
ory and  the  other  circumstances  attending  the  execution  of  the 
papers  being  considered, — should  not  be  allowed  to  interfere 
with  her  right  to  claim  the  benefit  of  the  act  of  1861,  com- 
monly called  the  widow's  exemption  act. 

Was  she  guilty  of  laches  in  making  this  claim?  Under  the 
circumstances,  for  the  reasons  fully  and  clearly  stated  by  the 
court  below,  we  think  not.  The  will  was  not  in  the  possession 
of  the  widow.  It  was  not  produced  for  a  year  after  the  death 
of  her  husband.  Practically  the  entire  personal  estate  had  been 
exhausted  in  the  payment  of  preferred  debts.  After  the  pro- 
bate of  the  will,  the  appellant  had  the  same  right  to  require 
the  issue  of  letters  as  had  the  widow  to  take  them.  It  does 
not  appear  that  he  suffered  by  the  delay,  or  that  he  incurred 
any  expense  in  consequence  thereof.  On  the  other  hand,  the 
widow,  by  her  agreement  to  the  revival  of  the  judgment  obtained 
against  the  husband  in  his  lifetime,  prevented  the  accumula- 
tion of  costs.  She  made  her  demand  upon  the  administrator 
c.  t.  a.,  eighteen  days  after  the  issue  of  letters  to  him.  This 
case  is  easily  distinguished,  by  its  facts,  from  Kern's  Appeal, 
120  Pa.  523.    See  Williams'  Estate,  141  Pa.  436. 

Her  election  to  take,  under  the  terms  of  the  will  of  her  de- 
ceased husband,  did  not  prevent  her  claim  for  the  benefit  of 
the  exemption  law,  even  if  such  election  had  been  made  in  a 
way  which  was  binding  upon  her:  Peebles'  Estate,  167  Pa. 
606.    The  widow's  application  was  not  made  xmder  the  pro- 


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POTTER'S  ESTATE.  638 

1898.]  Opinion  of  the  Court. 

visions  of  the  Act  of  November  27, 1865,  P.  L.  (1866)  1227— 
and  the  provisions  of  the  said  act  did  not,  therefore,  apply  to 
the  proceedings  in  this  case. 

The  judgment  against  the  husband  revived  against  the  widow 
as  terre-tenant,  and  that  against  her  were  liens  only  upon  her 
estate  as  devised  under  the  will.  They  did  not  bind  her  inter- 
est under  the  exemption  law,  as  widow,  which  was  not  real 
estate  and  which  did  not  attach,  until  her  claim  was  made. 

The  assignments  of  error  are  all  overruled,  the  decree  of  the 
court  below  is  affirmed,  and  the  appeal  dismissed,  at  the  costs 
of  the  appellant. 


Estate  of  Erastus  Potter,  deceased.    Appeal  of  Le  Grand 

Wells. 

Widow^s  exemption — Effect  of  liens  existing  against  decadent  and  widow, 
A  widoMT  taking  under  a  will  subsequently  claimed  her  exemption  out 
of  proceeds  of  sale  of  certain  real  estate.  Judgments  existed  which  were 
liens  on  the  husband^s  estate  and  also  a  pei*sonal  judgment  against  her. 
Held^  that  the  judgments  were  only  a  lien  upon  the  interest  acquired  under 
the  will,  and  that  they  did  not  bind  the  proceeds  of  the  sale  of  the  real 
estate  claimed  by  the  widow  as  her  exemption. 

Argued  Jan.  17,  1898.  Appeal,  No.  27,  Jan.  T.,  1898,  by 
Le  Grand  Wells,  from  decree  of  O.  C.  Susquehanna  Co.,  Nov.  T., 
1896,  No.  26,  in  distribution  of  the  estate  of  Erastus  Potter, 
deceased.  Before  RiOB,  P.  J.,  Wickham,  Beaver,  Orlady, 
Smith  and  Porter,  J  J.    Affirmed. 

Exceptions  to  auditor's  report.    Before  Searle,  P.  J. 

It  appears  from  the  record  that  a  question  arose  in  the  dis- 
tribution of  the  estate  of  Erastus  Potter,  deceased ;  on  excep- 
tions filed  to  the  auditor's  report  by  the  widow,  the  exceptions 
were  sustained  by  the  court  and  the  fund  was  awarded  to  the 
widow  on  her  exemption  claim. 

Other  facts  appear  in  the  report  of  the  preceding  case. 

Le  Grand  Wells,  a  lien  creditor  of  decedent  and  of  the  widow, 
appealed. 


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634  POrrER'S  ESTATE.     WELLS'S  APPEAL. 

Assignment  of  Errors — Opinion  of  the  Court.     [6  Pa.  Superior  Ct 

Errors  assigned  among  others  were  (1)  In  sustaining  excep- 
tions to  auditor's  report  and  awarding  the  fund  for  distribution 
to  the  widow,  Jenett  Potter.  (5)  In  the  opinion  of  the  court, 
stating  as  follows :  "  The  fact  that  Enistus  Potter  devised  to 
his  widow  the  land  incumbetred  to  the  full  extent  of  its  value 
could  not  have  the  efifect  of  merging  her  right  of  exemption 
out  of  it,  into  the  title  she  took  b}'  the  devise,  if  it  did,  the  lien 
creditors  of  Erastus  Potter  would  by  virtue  of  such  merger  have 
a  lien  prior  to  the  widow's  right  to  exemption.  If  the  right  of 
exemption  merged  in  the  title  devised,  it  merged  upon  the  death 
of  Erastus  Potter  by  virtue  of  his  will  giving  the  land  to  his 
widow." 

T.  J.  Davies^  for  appellant. 

A.  B.  Smithy  Jr,^  for  appellee. 

Opinion  by  Beaver,  J.,  February  19, 1898 : 
We  have  this  day  filed  an  opinion  in  No.  28  of  January  term, 
1898,  in  which  the  same  parties  are  appellant  and  appellee  re- 
spectively, in  which  the  questions  involved  in  this  appeal  have 
been  discussed  and  determined. 

The  record  here  raises  no  question  which  has  not  been  de- 
cided in  No.  28  above  mentioned.  The  questions  relating  to 
the  validity  of  the  widow's  exemption,  as  raised  in  the  former 
case,  practically  cover  all  the  points  raised  and  argued  herein. 
Admitting  the  validity  of  and  giving  full  effect  to  the  judg- 
ments of  the  appellant  against  the  husband  of  the  appellee  and 
also  against  her,  they  were  only  a  lien  upon  the  interest  which 
she  acquired  under  the  will  of  her  deceased  husband.  They 
were  not  a  lien  upon  any  interest  which  she  may  have  acquired 
by  virtue  of  her  claim  for  her  exemption ;  first,  because  the 
claim  for  exemption  was  not  made  until  after  the  judgments 
were  entered,  and,  second,  what  she  acquired  under  said  claim 
was  not  real  estate,  but  money  to  be  paid  out  of  the  proceeds 
of  real  estate.  She  acquired  no  real  estate  or  interest  therein, 
under  the  claim,  and,  therefore,  there  could  be  no  merger  with 
the  estate  held  by  her  as  devisee  under  the  will  of  her  deceased 
husband.  But  even  if  she  had  acquired  real  estate  under  her 
claim  for  exemption,  it  would  not  have  been  the  completion  of 


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POTTER'S  ESTATE.        WELLS'S  APPEAL.  635 

1898.]  Opinion  of  the  Court. 

a  title  previously  commenced.  It  would  have  been  held  by  her 
by  a  title  entirely  independent  of  what  she  acquired  under  the 
will,  and  would  not  have  been  bound  by  the  lien  of  the  judg- 
ments of  the  appellant.  When  the  inventory  of  the  appraisers 
appointed  to  make  appraisement  under  her  claim  for  exemption 
was  confirmed,  she  became  entitled  to  the  payment  of  $300  out 
of  the  proceeds  of  the  sale  of  the  real  estate,  as  made  by  the 
administrator. 

The  decree  of  the  court  below,  making  distribution,  is,  there- 
fore, afi&rmed  and  the  appeal  dismissed,  at  the  costs  of  the 
appellant. 


Joseph  Louchheim  v.  James  and  Charles  A.  Mnguire, 
Appellants. 

Practice,  G.  P. — Statement— Affidavit — Effect  on  defective  statement, 
A  statement  must  be  self-sustaining;  that  is  to  say,  it  must  sot  forth  in 
clear  and  precise  terms  a  good  cause  of  action. 

A  statement  which  alleged  the  indorsement  and  delivery  of  a  note  to 
plaintiff,  that  he  is  the  present  holder  and  that  the  note  has  not  been  paid, 
does  not  neeessaiily  require  an  affidavit  of  defense,  but  the  defendant  hav- 
ing chosen  to  answer  it  by  affidavit,  waives  the  incompleteness  of  the  state- 
ment and  must  rely  upon  his  affidavit. 

Practice,  (7.  P. — Sufficiency  of  affidavit — Promissory  note — Fundamental 
defense. 

An  affidavit  which  distinctly  avers  that  plaintiff  is  not  a  bona  fide  holder 
for  value  before  maturity,  but  that  he  h:is  taken  the  note  since  maturity 
for  purposes  of  collection  and  in  the  interest  of  the  payee  for  the  purpose 
of  avoiding  the  defense  which  defendants  have  thereto,  is  sufficient  to  put 
plaintiff  upon  proof  of  bona  fide  holding.  When,  therefore,  the  affi- 
davit alleges  fundamental  defenses  which  go  to  the  foundation  of  the 
right  of  the  promisee  to  recover,  a  question  is  raised  for  the  jury. 

Affidavit  of  defense — Contra^  of  performance. 

In  an  action  to  recover  on  a  contract  for  pnttingdown  cement  pavements, 
it  appeal's  that  the  contract  specifically  provided  that:  "The  party  of  the 
second  part  hereby  guarantees  all  work  done  and  all  matenals  furnished 
by  the  said  party  of  the  second  part,  under  and  by  virtue  of  this  agreement 
for  a  period  of  ^y^  years  from  the  completion  of  said  work,  against  all 
defects,  whether  in  work,  labor  or  materials ;  and  said  party  of  the  second 
part  agrees  on  notice  in  writing  from  said  party  of  the  first  part,  or  a  duly 


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636  LOUCHHETM  v.  MAGUIRE. 

Syllabus — Arguments.  [6  Pa.  Superior  Ct. 

autliorized  agent  of  the  same,  to  repair  said  work  and  keep  it  In  good  order 
and  condition  for  said  period  of  five  years,  reasonable  wear  and  tear  ex- 
cepted." The  defendant  filed  an  affidavit  of  defense  expressly  denying 
that  the  conti*act  was  substantially  performed,  and  aveiring  defects  in  cop- 
ing and  curbing,  and  in  the  foundations,  and  an  insufficient  quantity  of 
cement  used ;  that  the  contractors  were  notified  of  the  defects  and  requested 
to  repair  them,  to  which  notice  they  paid  no  attention,  and  that  by  reason 
of  the  failure  of  the  contiuctors  to  complete  the  work  in  accordance  with 
the  contract  and  agreement  defendants  have  been  and  will  in  future  be, 
compelled  to  pay  out  large  sums  of  money  to  repair  the  same  and  place  it 
in  proper  order  and  condition,  and  in  so  doing  expend  a  much  larger  sum 
of  money  than  that  for  which  this  suit  is  brought.  Held^  the  affidavit  was 
sufficient  to  prevent  judgment 

Argued  Dec.  14, 1897.  Appeal,  No.  151,  Oct.  T.,  1897,  by 
defendants,  from  judgment  of  C.  P.  No.  4,  Phila.  Co.,  June  T., 
1897,  No.  829,  for  want  of  a  sufficient  aflSdavit  of  defense. 
Before  Rice,  P.  J.,  Wickham,  Beaver,  Reedeb,  Oblady, 
Smith  and  Pobter,  JJ.    Reversed. 

Assumpsit  on  a  promissory  note. 

It  appears  from  the  record  and  aflSdavit  that  this  was  an  action 
on  a  promissory  note  for  $500.  Defendants  filed  an  aflfidavit  of 
defense  averring  that  the  plaintiff  was  not  a  holder  of  the  note 
for  value  before  maturity  and  without  notice,  and  further  setting 
out  certain  defenses  on  the  merits  as  between  the  original  parties. 

The  material  facts  sufl&ciently  appear  in  the  opinion  of  the 
court. 

After  hearing,  the  court  made  the  rule  for  judgment  absolute, 
and  damages  were  assessed  in  the  sum  of  $509.31.  Defendants 
appealed. 

Error  assigned  was  making  absolute  the  rule  for  judgment 
for  want  of  a  suflScient  aflfidavit  of  defense. 

John  K.  Andre^  with  him  Henry  F.  Walton^  for  appellants. 
— The  aflSdavit  of  defense  alleges  that  the  plaintiff  was  not  a 
holder  of  the  note  for  value  before  maturity,  and  that  the  con- 
ti'actors  to  whom  the  note  was  given  did  not  do  the  work  in 
accordance  with  their  agreement,  and  it  is  suflScient,  thei-efore, 
to  send  the  case  to  a  jury :  Lane  v.  Penn  Glass  Sand  Co.,  172 
Pa.  262. 


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LOUCHHEIM  V.  MAGUIRE.  687 

1898.]  Arguments — Opinion  of  tlie  Court. 

Samuel  K.  Louchheim,  for  appellee. — The  work  having  been 
completed,  the  defendants  cannot  successfully  defend  a  suit  for 
the  contract  price,  because  of  defects  subsequently  arising,  or 
repairs  needed  in  said  work. 

An  averment  in  an  affidavit  of  defense  setting  forth  a  claim 
of  damages  amounting  to  more  than  the  plaintiffs  claim  is  too 
vague  an  allegation  to  constitute  a  defense :  McBrier  v.  Mar- 
sliall,  126  Pa.  390 ;  Stevens  v.  Hallock,  7  Kulp,  260. 

Even  if  the  statement  is  demurrable,  the  defendant  having 
filed  an  affidavit  must  set  forth  facts  sufficient  to  make  out  a 
case  of  fraudulent  circulation  of  the  note :  Newbold  v.  Pennock, 
154  Pa.  691 ;  McKnight  v.  Pugh,  4  W.  &  S.  445. 

Opinion  by  Beaver,  J.,  February  19, 1898 : 
"  To  entitle  a  plaintiff  to  judgment  for  want  of  an  affidavit 
of  defense  or  for  want  of  a  sufficient  affidavit  of  defense,  the 
statement  of  his  demand,  under  the  act  of  May  25, 1887,  must 
be  self-sustaining,  that  is  to  say,  it  must  set  forth  in  clear  and 
concise  terms  a  good  cause  of  action,  by  which  is  meant  such 
averments  of  fact  as,  if  not  controverted,  would  entitle  him  to 
a  verdict  for  the  amount  of  his  claim : "  Bank  v.  Ellis,  161  Pa. 
241. 

The  averments  in  the  plaintiff's  statement  that  "  The  said 
J.  H.  Louchheim  &  Co.  then  and  there  indorsed  and  delivered 
the  said  promissory  note  to  the  plaintiff,  by  means  whereof  the 
defendants  then  and  there  became  liable  to  pay  to  the  plaintiff 
the  sum  of  money  in  the  said  promissory  note  specified  "  and 
the  averment  by  the  plaintiff  ^^  that  he  is  the  present  holder  of 
said  note,  and  that  neither  the  whole  nor  any  part  thereof  has 
been  paid  "  do  not  distinctly  set  up  an  indorsement  and  deliv- 
ery before  maturity  for  a  valuable  consideration  and  without 
notice.  The  statement  did  not  necessarily  require  an  affidavit 
of  defense  but  the  defendant,  having  chosen  to  answer  it  by  an 
affidavit  of  defense,  waived  the  incompleteness  of  the  statement, 
and  must  rest  upon  his  affidavit :  Newbold  v.  Pennock,  154  Pa. 
691 ;  Bank  v.  Furman,  4  Pa.  Superior  Ct.  415.  The  defend- 
ants distinctly  aver  in  their  affidavit  that  they  are  informed, 
believe  and  expect  to  be  able  to  prove  that  the  plaintiff  is  not 
a  bona  fide  holder  of  said  promissory  note  for  value  before  ma- 
turity, but  that  he  has  taken  the  same  since  maturity  for  the 


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638  LOUCHHEIM  v,  MAGUIRE. 

Opinion  of  the  Court.  [6  Pa.  Superior  Ct, 

purpose  of  collection,  and  in  the  interest  of  the  said  J.  H. 
Louchheim  &  Co.,  and  for  the  purpose  of  avoiding  the  defense 
which  defendants  have  thereto.  This  averment  fully  meets  the 
requirements  of  Newbold  v.  Pennock,  supra,  and  puts  the  plain- 
tiff upon  proof  of  bona  fide  holding. 

We  have,  therefore,  but  a  single  question  remaining,  namely, 
is  the  affidavit  of  defense  good  as  between  the  makers  and 
payees  in  the  note  upon  which  the  suit  is  founded?  The  note 
is  alleged  in  the  affidavit  of  defense  to  have  been  given  in  part 
payment  for  work  done  under  a  contract  in  writing  between 
the  makers  and  payees  for  "  all  material,  labor  and  tools  re- 
quired for  the  laying  and  putting  down  of  the  cement  pave- 
ments, yards  and  alley-wajrs,  curbs  and  coping,  in  the  erection 
of  one  hundred  and  fifty-six  houses  now  in  the  course  of  erec- 
tion on  Poplar  and  Wyalusing  streets,  between  38th  and  39th 
streets,  in  the  24th  ward,  city  of  Philadelphia,"  and  the  laying 
of  "  the  vitrified  brick  on  the  two  streets  above  mentioned,  to 
wit,  on  Poplar  and  Wyalusing  streets,  between  38th  and  39th 
streets,  according  to  the  specifications  contained  in  exhibit  'A,' 
and  under  the  supervision  and  inspection  of  the  highway  bu- 
reau of  the  city  of  Philadelphia.'^  The  said  agreement  contains 
the  following  clause :  "  And  the  party  of  the  second  part  hereby 
guarantees  all  work  done  and  all  materials  furnished  by  the 
said  party  of  the  second  part,  under  and  by  virtue  of  this  agree- 
ment, for  a  period  of  five  years  from  the  completion  of  said 
work,  against  all  defects,  whether  in  work,  labor  or  materials, 
and  said  party  of  the  second  part  agrees,  on  notice  in  writing 
from  said  party  of  the  first  part  or  a  duly  authorized  agent  of 
the  same,  to  repair  said  work  and  keep  it  in  good  order  and 
condition  for  said  period  of  five  years,  reasonable  wear  and  tear 
excepted." 

The  affidavit  of  defense  avers  that  the  work  was  not  done  in 
accordance  with  the  agreement.  It  specifies  the  places  where, 
and  the  character  of  the  defects  alleged.  It  sets  forth  that 
"  The  defect  in  said  coping  and  curbing  is  shown  by  the  curb 
being  broken  and  split,  the  top  coat  of  the  same  having  cracked, 
so  as  to  leave  the  concrete  bare.  This  is  caused  by  the  foun- 
dations not  being  properly  put  in  by  the  said  J.  H.  Louch- 
heim &  Co.  and  an  insufficient  quantity  of  cement  being  used 
in  making  the  concrete.     The  cinders  making  the  foundations 


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LOUCHHEIM  V,  MAGUIRE.  639 

J898.]  Opinion  of  the  Court. 

were  not  properly  rammed,  and  the  concrete  was  not  made  with 
Bufficient  cement  to  form  a  solid  mass  necessary  to  make  a  good 
pavement ;  by  means  of  said  defects  the  pavements  rise  in  cer- 
tain places,  making  it  dangerous  for  pedestrians  to  pass  over 
them."  There  is  also  an  averment  that  defendants  were  noti- 
fied of  these  defects  and  requested  to  repair  them  at  once,  to 
which  notice  they  paid  no  attention. 

The  allegation  is  further  made  that  '^  by  reason  of  the  failure 
of  the  said  J.  H.  Louchhein  &  Co.  to  complete  said  work,  in 
ivccordance  with  the  contract  and  agreement,  defendants  have 
been  compelled  to  pay  out  and  will  be  in  the  future  compelled 
to  pay  out  a  large  sum  of  money  to  repair  the  same,  and  place 
it  in  proper  order  and  condition,  a  much  larger  sum  of  money 
than  that  for  which  this  suit  is  brought." 

These  allegations  are  fundamental.  They  go  to  the  founda- 
tion of  the  right  of  the  contractors  to  recover,  as  fully  to  all 
intents  and  purposes  as  in  Lane  v.  Penn  Glass  Sand  Co.,  172 
Pa.  252.  We  think  they  fairly  raised  a  question  for  the  con- 
sideration of  a  jury;  and  that  the  affidavit  should  have  been  held 
sufficient. 

Judgment  reversed  and  a  procedendo  awarded. 


Gerson  L.  Kahn  w.  James  Maguire  and  Charles  A.  Ma- 
guire,  Appellants. 

Argued  Dec.  14, 1897.  Appeal,  No.  152,  Oct.  T.,  1897,  by 
defendants,  from  judgment  of  C.  P.  No.  4,  Phila.  Co.,  June  T., 
1897,  No.  830,  in  favor  of  plaintiff,  for  want  of  a  sufficient  affi- 
davit of  defense.  Before  Rice,  P.  J.,  Wickham,  Beaver, 
Reedbb,  Orlady,  Smith  and  Porter,  JJ.    Reversed. 

The  facts  in  this  case  are  similar  to  those  in  the  preceding 
case,  and  the  cases  were  argued  together. 

John  K.  Andre  with  him  Henry  F.  Walton^  for  appellant 


Digitized  by  VjOOQ IC 


640  KAHN  v.  MAGUIRE. 

Opinion  of  the  Court.  [6  Pa.  Superior  Ct. 

Samuel  K,  Louchheim^  for  appellee. 

Opinion  by  Beaver,  J.,  February  19, 1898 : 
In  the  case  of  Louchheim  v..Maguire,  we  have  this  day  filed 
an  opinion,  in  which  it  was  held  that  the  affidavit  of  defense 
therein  filed  was  sufficient,  and  that  the  entry  of  judgment 
should  have  been  stayed,  in  consequence  thereof.  The  facts 
of  this  case  are  similar  and,  for  the  reasons  stated  in  the  former 
case,  we  enter  the  same  judgment.  (See  ante,  p.  636.) 
Judgment  reversed  and  procedendo  awarded. 


John  R.  Jones,  Cornelia  P.  Jones,  Administratrix,  v. 
James  E.  Cleveland,  Appellant. 

Contract— Rescission  of— Question  for  jury. 

In  an  action  to  recover  for  goods  sold  and  delivered  an  alleged  rescis- 
sion of  the  contract  becomes  the  vital  point  in  the  case,  and  there  being 
some  evidence  of  rescission  it  was  reversible  eiTor  to  affirm  plaintiff's 
point  as  follows:  ** There  is  no  proof  that  the  conti*act  of  sale  ever  was 
rescinded  and  abrogated  by  the  consent  of  the  parties.^' 

Argued  Jan.  10,  1898.  Appeal,  No.  11,  Jan.  T.,  1898,  by 
defendant,  from  judgment  of  C.  P.  Luzerne  Co.,  Oct.  T.,  1894, 
No.  285,  on  verdict  for  plaintiff.  Before  Rice,  P.  J.,  Wick- 
ham,  Beavbb,  Orlady,  Smith  and  Porter,  JJ.    Reversed, 

Assumpsit  for  goods  sold  and  delivered.  Before  Wood- 
ward, P.  J. 

It  appears  from  the  evidence  that  there  was  a  sale  and  de- 
livery on  behalf  of  Jones  to  the  defendant  Cleveland  of  fifty 
tubs  of  butter,  through  a  sales  agent  by  the  name  of  Staples. 
The  butter  was  delivered  to  the  defendant  and  some  of  it  was 
sold  by  him. 

There  was  evidence  tending  to  show  that  subsequent  to  the 
sale  and  delivery  Staples,  the  agent,  visited  defendant's  store 
in  Wilkes-Barre  where  they  had  a  conversation  in  which  it  was 
alleged  that  the  butter  was  not  good,  whereupon  Staples  tele- 
phoned Jones  at  Binghamton  and  received  from  him  an  answer 


Digitized  by  VjOOQ IC 


JONES  V.  CLEVELAND.  641 

1898.]  Statement  of  Facts— Assignment  of  EiTors. 

to  the  effect  that  he  was  to  dispose  of  the  butter  to  the  best 
advantage  he  could,  and  that  finally,  after  making  efforts  to  sell 
to  others,  he  did  sell  the  whole  of  this  butter  to  Cleveland  at 
12  cents  a  pound,  receiving  from  Cleveland  two  checks  in  pay- 
ment, and  gave  him  a  receipt  in  full. 

Out  of  the  proceeds  of  one  of  these  checks  he  took  his  ex- 
penses and  commission  and  sent  the  balance  to  one  Beemer, 
who  he  says  bought  the  butter  at  11  cents  a  pound,  he  having 
sold  it  on  his  account  to  Cleveland.  The  court  left  the  ques- 
tion to  the  jury  to  decide  whether  Cleveland  was  either  actually 
or  by  force  of  law,  a  party  to  this  fraud,  stating  that  there  was 
a  fraud  beyond  doubt.  It  instructed  the  juiy  at  the  same  time 
that  the  law  applicable  to  the  facts  is  stated  in  Bnidlee  &  Co. 
V.  Kemmerer,  108  Pa.  368. 

Verdict  and  judgment  for  plaintiff  for  $466.39.  Defendant 
appealed. 

Errors  assigned  among  others  were  (1,  2)  In  rejecting  testi- 
mony relating  to  a  second  bill  of  goods  between  the  parties ; 
the  offer  being  made  for  the  purpose  of  showing  that  at  the  time 
the  butter  in  controversy  was  bought  from  Staples  and  settle- 
ment made  with  Staples,  the  defendant  was  not  acquainted  with 
and  had  no  knowledge  of  the  plaintiff  in  the  transaction,  and 
that  he  bought  the  butter  from  Staples,  believing  that  Staples 
was  the  bona  fide  owner  of  said  butter.  (5)  The  defendant 
takes  exception  to  the  following  statement  in  the  charge  of  the 
court,  to  wit:  "Mr.  Staples  was  a  sales  broker,  who  traveled 
the  country  and  effected  sales  for  Mr.  Jones.  He  had  no  inter- 
est in  the  ownership  or  property,  but  was  merely  a  commission 
broker  or  intermediate  man,  who  sold  the  property  of  another, 
receiving  for  his  service  a  commission  on  the  sales.  His  habit 
was  to  receive  orders  and  to  forward  them  to  Jones,  his  em- 
ployer, at  Binghamton,  who  proceeded  to  fill  them."  (6)  The 
charge  of  the  court  was  vicious  and  misleading  to  the  jury,  as 
follows  :  "  Up  to  this  point  we  have  the  evidence  of  tiie  sale 
and  delivery  of  this  butter  by  Jones  to  Cleveland,  and,  though 
there  were  nothing  else  in  the  case,  the  plaintiff  would  be  en- 
titled to  recover  the  full  amount  claimed  in  this  suit  for  the 
purchase  money  of  the  butter."  (7)  In  affii-ming  the  plaintiff's 
first  point,  which  was  as  follows :  "1.  If  the  jury  believe  that 
Vol.  VI — 41 


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642  JONES  V.  CLEVELAND. 

Assignment  of  Errors.  [6  Pa.  Superior  Ct, 

Staples,  who  sent  the  order  to  plaintiff,  pursuant  to  the  propo- 
sition contained  in  the  order  from  Staples,  packed  up  and  sent 
the  goods  hy  the  D.  &  H.  R.  R.  to  the  defendant  at  Wilkes- 
Barre,  and  the  goods  were  there  delivered  to  the  defendant,  the 
conti-act  of  the  sale  was  thereby  consummated  and  defendant 
became  the  debtor  of  J.  R.  Jones  for  the  specified  price  of  said 
goods."  (8)  The  court  erred  in  affirming  the  plaintiff's  second 
point,  which  read  as  follows :  "  2.  If  the  jury  believe  from  the 
evidence  that  the  plaintiff  was  a  merchandise  broker,  the  de- 
fendant had  no  right  to  make  payment  of  the  butter  to  him, 
unless  he  was  authoiized  by  Jones  to  make  such  payment,  and 
the  burden  of  proof  is  cast  upon  the  defendant  to  establish  by 
satisfactory  proof  that  Jones  authorized  the  defendant  to  make 
such  payment."  (9)  In  affirming  plaintiff's  third  point,  which 
reads  as  follows :  "  3.  That  there  is  no  proof  that  the  butter 
after  it  was  accepted  and  received  by  the  defendant  and  appro- 
priated by  him  was  ever  delivered  in  fact  to  said  Jones,  or  the 
contract  of  sale  between  Jones  and  Cleveland  ever  was  rescinded 
and  abrogated  by  the  consent  of  said  Jones  and  Cleveland,  nor 
was  there  any  proof  that  said  butter  was  ever  delivered  to  said 
Beemer  by  Jones  or  his  authority."  (10)  In  affirming  the 
plaintiff's  fourth  point,  which  was  as  follows :  "  4.  That  Sta- 
ples' position  and  functions  as  broker  with  reference  to  this 
butter  had  wholly  terminated  and  ceased  when  the  butter 
reached  the  hands  of  Cleveland,  and  he  no  longer  represented 
the  said  Jones."  (11)  In  affirming  the  plaintiff's  fifth  point, 
which  reads  as  follows :  "  6.  That  the  defendant  cannot  avail 
himself  of  his  ignorance  that  the  plaintiff,  Jones,  was  his  ven- 
dor, unless  he  shows  that  he  had  used  due  diligence  to  ascertain 
the  fact  previous  to  his  paying  Staples  the  moneys  he  paid  him 
for  the  butter."  (12)  The  court  erred  in  qualifying  the  de- 
fendant's first  ^x)int,  which  reads  as  follows:  "1.  If  the  jury 
believe  that  Cleveland  honestly  thought  he  was  dealing  with 
Staples,  or  with  Staples  and  Beemer,  and  paid  for  the  butter  as 
he  testified,  then  the  verdict  should  be  for  the  defendant  An- 
9wer:  We  may  qualify  that  point  and  affirm  it  by  saying: 
*  Provided  he  was  not  negligent  in  acting  on  the  knowledge 
which  he  had  in  the  premises.'  With  that  qualification  we 
affinn  the  point."  (13)  In  qualifjdng  the  defendant's  second 
point,  which  reads  as  follows:  "2.  If  the  jury  believe  that 


Digitized  by  VjOOQ IC 


JONES  v.  CLEVELAND.  648 

1898.]  Assignment  of  EiTor— Opinion  of  the  Court 

Cleyeland  at  first  refused  the  butter,  and  that  then  the  plaintiff, 
or  his  manager,  instructed  Staples  to  sell  it  for  what  he  could 
get,  and  in  pursuance  thereof,  he  sold  it  to  Beemer,  then  the 
verdict  must  be  for  the  defendant.  Aniwer :  We  say  that  may 
be  afi&rmed  if  the  jury  believe  that  the  transaction  was,  as  we 
said  before,  untainted  and  free  from  fraud ;  with  that  qualifica- 
tion the  point  may  be  affirmed."  (14)  In  charging  the  jury  as 
follows :  "  Whatever  else  is  true  in  this  case,  it  is  plain  that  in 
this  transaction  Staples  and  Beemer  did  not  act  as  honest  men 
should  have  acted;  that  they  were  guilty  of  a  dishonest 
unbusinesslike  trick  in  their  manner  of  conducting  this  busi- 
ness, which  resulted  in  cheating  Jones  out  of  every  dollar  of 
his  money  for  this  butter.  In  other  words,  the  owner  of  the 
property  employed  a  man  as  his  agent  on  commission,  who  dis- 
posed of  the  property,  received  his  commission,  put  it  in  his 
pocket  and  then  sold  the  property  a  second  time  to  Beemer, 
received  commission  again  from  Beemer,  and  now  goes  on  the 
stand  to  testify  for  the  defendant."  (16)  The  defendant  ex- 
cepts to  the  whole  of  the  charge  of  the  court,  in  that  it  is  not 
sufficiently  explanatory  of  the  law  governing  the  case,  and  in 
the  general  assumption  that  Cleveland  was  connected  with  a 
fraudulent  undertaking  to  cheat  the  plaintiff. 

Jno.  F.  Scragg^  with  him  E,  (7.  Newcomb^  E.  F.  Mc  Govern 
and  Jos.  L.  Lenahan^  for  appellant. 

A.  J.  Cblhom^  Jr.^  with  him  2>.  J.  M.  Loup^  for  appellee. — 
The  charge  was  warranted  under  the  evidence,  and  the  strong 
expressions  used  by  the  court  were  right  and  proper,  the  whole 
controversy  was  rightfully  left  for  the  determination  of  the 
jury:  Knapp  v.  Griffin,  140  Pa.  604. 

Strong  expressions  of  opinion  upon  the  facts,  which,  if  taken 
in  connection  with  the  whole  charge,  does  not  amount  to  a  bind- 
ing instruction,  is  not  ground  for  reversal:  Rogers  v.  David- 
son, 142  Pa.  436 ;  Didier  v.  Penna.  Co.,  146  Pa.  682. 

Opinion  by  Braybb,  J.,  February  19, 1898 : 
This  case  was,  in  the  main,  well  tried  and  fairly  submitted  to 
the  jury.     The  evidence  in  regard  to  the  receipt  of  the  bill  for 
a  second  shipment  of  butter  was  properly  rejected.    The  testi- 


Digitized  by  VjOOQ IC 


644  JONES  V.  CLEVELAND. 

Opinion  of  the  Court.  [6  Pa.  Superior  Ct. 

mony  was  irrelevant  and  threw  no  light  whatever  upon  the 
receipt  or  failui*e  to  receive  the  bill  for  the  first  shipment.  If 
received,  it  would  not  have  established  or  tended  to  establish 
the  fact  which  was  alleged  to  be  the  purpose  of  its  introduction. 
The  first  and  second  assignments  of  error  are,  therefore,  over- 
ruled. 

As  to  the  admission  of  the  testimony  of  W.  H.  Jones  in  rebut- 
tal, it  was  entirely  within  the  discretion  of  the  court,  and  was 
properly  admitted.  The  denial  of  the  conversations  detailed 
by  the  defendant's  witnesses  on  cross-examination  in  chief  was 
of  such  conversations  as  were  in  the  mind  of  the  counsel  who 
conducted  the  examination.  The  testimony  in  rebuttal  was  a 
denial  of  the  conversations  as  they  were  detailed  by  the  defend- 
ant's witnesses.  The  defendant  suffered  in  no  way  by  the  ad- 
mission of  tins  denial. 

The  statements  of  fact,  as  contained  in  the  paiiB  of  the  charge 
complained  of  in  the  fifth  and  sixth  assignments  of  error  are 
abundantly  sustained  by  the  evidence,  and  were  a  fair  and  clear 
epitome  of  the  evidence  in  regard  to  the  status  of  Staples  and 
the  transaction  conducted  by  him,  as  the  agent  of  Jones,  with 
Cleveland. 

The  answers  of  the  court  to  the  points  of  the  plaintiff  and 
defendant,  as  complained  of  in  the  seventh,  eighth,  tenth,  elev- 
enth, twelfth  and  thirteenth  assignments  of  error  were  correct. 
Cleveland's  acquaintance  with  Staples  and  former  knowledge 
of  his  business,  the  positive  testimony  of  one  of  the  plaintiff's 
witnesses  as  to  the  mailing  of  the  bill  or  invoice  of  the  first 
consignment  of  butter,  made  yet  more  emphatic  by  his  cross- 
examination  upon  the  subject,  were  all  facts  which  were  to  be 
considered  by  the  jury,  and  properly  influenced  the  court  in 
qualifying  the  points  which  relate  to  the  knowledge  and  good 
faith  of  Cleveland.  The  manner  in  which  the  court  character- 
ized the  transaction  between  Staples  and  Beemerdid  the  defend- 
ant no  harm,  and  was  certainly  no  stronger  than  the  facts  war- 
ranted. One  of  the  most  significant  facts  in  the  case,  which 
tended  to  show  collusion  between  Staples  and  Beemer,  namely, 
the  sending  of  the  money  received  from  Cleveland  by  the  former 
to  the  latter,  instead  of  to  Jones  the  owner,  was  not  mentioned 
by  the  court. 

There  was  no  general  assumption  by  the  court  that  Cleveland 


Digitized  by  VjOOQ  IC 


JONES  V,  CLEVELAND.  645 

1898.]  Opinion  of  the  Court. 

had  knowledge  of  or  was  connected  with  any  fraudulent  under- 
taking to  cheat  the  plaintiff,  and  nothing  in  the  general  charge 
or  in  the  answers  to  points  justifies  the  inference  of  such  assump- 
tion. The  fourteenth  and  fifteenth  assignments  of  error  are, 
therefore,  also  overruled. 

The  ninth  assignment  is  as  follows :  "  That  there  is  no  proof 
that  the  butter,  after  it  was  accepted  and  received  by  the  de- 
fendant and  appropriated  by  him,  was  ever  delivered  in  fact  to 
said  Jones  or  the  contract  of  sale  between  Jones  and  Cleveland 
ever  was  rescinded  and  abrogated  by  the  consent  of  said  Jones 
and  Cleveland,  nor  was  there  any  proof  that  said  butter  was 
ever  delivered  to  said  Beemer  by  Jones  or  his  authority.''  It 
is  true  that  there  was  no  proof  that  any  of  the  first  shipment  of 
butter  was  ever  actually  redelivered  to  Jones,  nor  was  there  any 
proof  that  any  of  the  butter  was  ever  delivered  to  Beemer  by 
Jones  or  by  his  authority.  The  rescission  of  the  contract  be- 
tween Jones  and  Cleveland  was  a  vital  point  in  the  case.  There 
was  some  evidence  of  such  a  rescission.  It  is  found  in  the  testi- 
mony of  Staples,  Jones's  agent,  who  testified  that  he  had  called 
Jones  by  telephone  from  Cleveland's  oflSce  in  Wilkes-Barre,  had 
informed  him  that  Cleveland  would  not  accept  the  butter  and 
was  told  by  him  to  dispose  of  it  to  the  best  advantage;  in  accord- 
ance with  which  instructions  he  resold  the  butter  as  stated  by 
him  in  other  parts  of  his  testimony.^  If  the  jury  had  believed 
this  testimony,  they  would  have  been  warranted  in  finding  that 
the  contract  had  been  rescinded.  There  was  error,  therefore, 
in  affirming  that  portion  of  the  plaintiff's  third  point  which 
stated  that  "  There  is  no  proof  that  the  contract  of  sale  between 
Jones  and  Cleveland  ever  was  rescinded  and  abrogated  by  the 
consent  of  said  Jones  and  Cleveland."  For  this  reason,  the 
ninth  assignment  of  error  must  be  sustained. 

The  judgment  is  reversed  and  a  new  venire  awarded. 


Digitized  by  VjOOQ IC 


646  GWINN  V,  LEE. 

Syllabus.  [6  Pa.  Superior  Ct 


J.  B.  Gwinn  and  Frank  L.  Gwinn,  Appellants,  v,  E.  M. 
Lee,  John  A.  Magee,  D.  M.  Anderson,  J.  L.  Hunter 
and  S.  B.  Eisenhuth. 

Parttiership^EquUy  of  partners  and  creditors^Effecl  of  death  or  trans- 
fer. 

The  equity  of  creditors  must  be  worked  out  through  the  medium  of  that 
of  the  partners. 

In  the  absence  of  an  agreement  a  legal  dissolution  is  effected  by  death 
of  a  partner  or  the  transfer  of  a  partnership  interest. 

Partnership — Transfer  of  shares — Liability  for  pre-existing  debts. 

The  transfer  of  a  partner^s  interest  or  shares  in  an  unincorporated  bank- 
ing association  and  a  continuance  of  the  business  without  any  separation 
of  past  from  future  liabilities,  or  discrimination  between  past  and  future 
profits  will  not  make  the  new  concern  liable  for  pre-existing  indebtedness 
of  the  bank.  The  creditors  of  the  former  firm  or  firms  which  may  have 
constituted  the  banking  association  have  no  claim  attaching  to  the  partner- 
ship effects  which  have  passed  to  the  succeeding  partnership ;  the  latter 
firm  may  sell  unhampered  by  any  lien  or  trust  in  favor  of  the  creditors  of 
the  former  firm  or  assign  for  the  benefit  of  creditors,  and  in  that  case  the 
only  persons  entitled  to  participate  in  the  distribution  are  the  creditors  of 
the  firm  to  which  the  property  belonged  at  the  lime  of  the  assignment. 

Equity  practice— Pleadings — Injection  of  one  defendant  as  supplemental 
plaintiff. 

While  in  a  sense  both  parties  in  equity  are  plaintiffs  and  a  decree  may 
in  some  circumstances  be  entered  in  favor  of  the  defendant  without  a  cross 
bill,  yet  the  necessity  for  proper  and  formal  pleadings  is  not  destroyed. 
It  is  not  permitted  on  mere  motion  after  replication  filed  in  the  regular 
way  and  after  reference  of  the  case  that  one  defendant  may  on  mere 
motion  urge  new  facts  which  would  qualify  the  orig\nal  statement  and 
without  affidavit  or  service  of  notice  to  other  defendants  inject  a  new  plain- 
tiff to  urge  grounds  of  relief  which  the  other  party  plaintiff  could  not 
press. 

Equity — Jurisdiction  once  attaching  embraces  all  points  in  contest. 

Equity  ever  looks  to  great  principles  rather  than  the  special  modes  of 
procedure,  which  latter  must  always  give  way  when  they  come  in  conflict 
with  the  application  of  these  principles  to  cases  embraced  within  them,  and 
a  doubt  as  to  equitable  junsdiction  will  not  prevail  after  a  full  hearing 
and  after  heavy  costs  have  been  incurred. 

When  equity  takes  cognizance  of  a  litigation  it  will  dispose  of  eveiy 
subject  embraced  within  the  circle  of  contest,  whether  the  question  be  of 
remedy  or  of  distinct  yet  connected  topics  of  dispute.  If  the  jurisdiction 
attached  from  the  nature  of  one  of  the  subjects  of  contest,  it  may  embrace 
all  of  them,  for  equity  abhors  a  multiplicity  of  suits. 


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GWINN  v.  LEE.  647 

1898.]  Statement  of  Facts. 

Argued  May  6, 1897.  Appeal,  No.  187,  April  T.,  1897,  by 
plaintiffs  from  decree  of  C.  P.  Clarion  Co.,  Aug.  T.,  1894,  No.  2, 
dismissing  plaintiffs'  bill  as  to  certain  defendants  and  refusing 
certain  relief  asked  for.  Before  Rice,  P.  J.,  Wickham,  Bba- 
VBR,  Reedeb,  Orlady,  Smith  and  Poeter,  J  J.    Affirmed. 

Exceptions  to  referee's  report. 

It  appears  from  the  record  that  John  B.  Gwinn  filed  a  bill  in 
equity  against  Lee  and  others  as  copartners  praying  for  the 
appointment  of  a  receiver  for  the  beneficial  association,  for  an 
accounting  and  contribution  and  general  relief.  An  answer 
was  filed  and  the  case  sent  to  a  referee.  The  referee  reported 
in  favor  of  granting  the  prayers  of  the  bill  to  which  certain 
exceptions  were  filed,  as  follows : 

2.  Equity  has  no  jurisdiction  to  warrant  the  referee  in  his 
report  and  proposed  decree. 

3.  The  referee  erred  in  finding  that  the  transfer  of  stock 
made  the  transferees  members  of  the  original  company. 

5.  The  referee  erred  in  finding  John  A.  Magee  liable  for 
$247.67,  E.  M.  Lee  liable  for  $87.69,  J.  L.  Hunter  liable  for 
$119.27,  and  D.  M.  Anderson  liable  for  $34.62,  and  in  recom- 
mending that  they  be  compelled  to  pay  these  amounts. 

6.  The  referee  erred  in  finding  that  the  plant  of  the  Bonanza 
Oil  &  Gas  Company  was  liable  for  and  could  be  confiscated  to 
pay  the  claim  of  plaintiff,  and  in  recommending  that  a  receiver 
be  appointed  to  take  charge  of  and  sell  the  same. 

7.  The  referee  erred  in  finding  that  Frank  Gwinn  had  the 
right  to  intervene  and  compel  the  payment  of  the  aforesaid 
sums,  which  were  sustained  by  the  court  below  in  the  following 
decree : 

"  And  now,  April  2,  1897,  in  accordance  with  our  opinion 
filed  in  above  stated  case,  and  having  heard  the  parties  by  their 
counsel,  and  on  due  consideration  had,  it  is  hereby  ordered  and 
decreed,  that  the  plaintiff's  bill  be  dismissed  as  to  John  A. 
Magee,  D.  M.  Anderson,  J.  L.  Hunter  and  S.  B.  Eisenhuth,  at 
the  cost  of  the  plaintiff,  and  that  the  relief  prayed  for  by  the 
plaintiff  and  Frank  L.  Gwinn  as  to  said  Anderson,  Hunter, 
Magee  and  Eisenhuth,  defendants,  be  refused;  and  that  the 
relief  prayed  for  by  the  plaintiff  and  Frank  L.  Gwinn  as  to 
E.  M.  Lee,  defendant,  in  the  1st  and  2d  paragraph  of  plaintiff's 


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64«  GWINN  v.  LEE. 

Statement  of  Facts— Arguments.  [6  Pa.  Superior  Ct. 

prayer  be  refused;  and  the  bill  is  referred  back  to  S.  K. 
Clarke,  Esq.,  Referee,  for  further  proceedings  against  such  of 
the  defendants  as  were  copartners  with  plaintiff  when  the  debt 
now  held  by  him  was  contracted.  The  question  of  costs  as 
between  the  plaintiff  and  said  remaining  defendants  to  be  con- 
sidered and  disposed  of  by  the  refei*ee  and  the  court  at  the  final 
hearing." 

Other  material  facts  appear  in  the  opinion  of  the  court 

JErrora  assigned^  among  others,  were,  in  sustaining  the  fifth, 
sixth  and  seventh  exceptions.  (4)  In  ordering  and  decreeing 
that  plaintiffs'  bill  be  dismissed  as  to  John  A.  Magee,  D.  M. 
Anderson,  J.  L.  Hunter  and  S.  B.  Eisenhuth,  and  that  the  re- 
lief prayed  for  by  the  plaintiff  and  Frank  L.  Gwiim  as  to  said 
defendants  be  refused.  (6)  In  ordering  and  decreeing  tliat 
the  relief  prayed  for  by  plaintiff  and  Frank  L.  Gwinn  as  to 
appointment  of  receivers  and  accounting,  be  refused. 

B.  J.  Reid,  with  him  J.  T.  Maffett,  F,  R.  Hindman,  J,  A.  F. 
Hoy^  and  F,  J".  Maffett^  ior  appellants. — The  court  below  regards 
Uie  cases  of  Christy  v.  Sill,  181  Pa.  492,  and  Powell's  Appeal, 
2  Pa.  Superior  Ct.  618,  as  ruling  this  case.  Our  contention 
here  is  not  in  conflict  with  the  rulings  in  either  of  the  cases 
referred  to,  and  it  is  in  exact  accordance  with  the  principles 
laid  down  in  Baker's  Appeal,  21  Pa.  76,  which  was  approved 
in  later  cases. 

The  equities  of  partnership  creditors  depend  on  the  equities 
of  the  partners,  and  as  long  as  a  partner  continues  to  have  an 
interest  in  the  partnership,  so  long  do  the  equities  of  the  firm 
creditors  continue  :  Richard  v.  Allen,  117  Pa.  199.  See  also 
Menagh  v.  Whitwell,  52  N.  Y.  146. 

Don.  C.  Corhett^  W.  A.  Hindman  and  Harry  R.  Wilson^  with 
them  W.  H.  Hockman  and  Cadmus  Z,  Gordon^  for  appellees. 

Where  one  of  several  partners  pays  the  debt  of  the  partner- 
ship the  joint  liability  is  thereby  extinguished.  It  then  becomes 
a  question  of  accounting  between  the  partners.  The  partner 
paying  the  debt  is  confined  to  his  claim  for  contribution:  Booth 
V.  Farmers  and  Mechanics  Nat.  Bank,  74  N.  Y.  228. 

The  cases  of  Christy  v.  Sill,  131  Pa.  492,  and  Powell's  Appeal, 


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GWINN  V.  LEE.  649 

1898.]  Arguments — Opinion  of  the  Court. 

2  Pa.  Superior  Ct.  618,  are  abundant  authority  for  the  raling 
of  the  court  below. 

Opinion  by  Orlady,  J.,  February  19, 1898  : 

The  facts  in  this  case  have  been  found  by  a  referee,  and  no 
exception  has  been  taken  to  any  fact  found  by  him.  In  1889  a 
number  of  persons  organized  a  company  to  drill  a  well  for  oil 
and  gas,  and  as  a  written  declaration  of  their  purpose  signed  an 
agreement,  as  follows :  "  We  whose  names  are  hereto  subscribed 
do  hereby  agree  to  take  and  pay  for  the  number  of  shares  set 
opposite  to  our  respective  names,  for  a  formation  of  a  company 
to  operate  for  oil  and  gas.  Shares  to  be  $20.00  each,  and  the 
company  to  be  known  as  the  Bonanza  Oil  and  Gras  Company  of 
CurllsviUe,  Pa.  When  forty  shares  are  taken  the  company  will 
flieet,  organize,  choose  a  president,  secretary,  and  treasurer,  and 
procure  a  charter  for  the  company  in  accordance  with  the  laws  of 
the  commonwealth  of  Pennsylvania.     Shares  limited  to  ." 

The  two  persons  named  as  plaintifif,  with  thirty-five  others, 
joined  in  the  agreement  and  specified  the  number  of  shares 
desired  by  each.  These  subscriptions  ranged  from  one  to  five, 
and  aggregated  seventy-five  shares,  so  as  to  make  a  ce^ital  stock 
of  $1,600,  all  of  which  was  paid  in  cash  to  the  treasurer.  The 
organization  was  not  perfected  into  a  corporation  as  suggested 
in  the  subscription  to  the  capital  stock. 

In  March  and  April,  1889  several  meetings  of  the  stockholders 
were  held ;  certificates  of  stock  were  issued  to  the  various  mem- 
bers ;  a  constitution  was  adopted  and  subsequently  amended ; 
officers  were  regularly  elected  until  December,  1891,  after  which 
time  no  meeting  of  directors,  executive  committee  nor  stock- 
holders was  held. 

In  the  constitution  it  was  provided,  "all  shareholders  by 
transfer  are  to  be  considered  members  of  the  original  company ; 
and  each  share  of  stock  is  to  be  entitled  to  one  vote.  Transfers 
of  stock  shall  only  be  made  by  a  vote  of  two  thirds  of  the  stock ;  *' 
the  later  provision  was  afterwards  changed,  so  that  any  member 
had  a  right  to  make  sale  or  transfers  of  his  stock  at  will. 

Numerous  transfers  of  the  stock  were  made  by  assignments 
noted  on  the  books  of  the  company  and  others  by  indorsements 
on  the  certificates  alone.  The  dates  of  these  transfers  are  very 
uncertain,  but  at  the  date  when  the  indebtedness  mentioned  in 


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650  GWINN  V.  LEE. 

Opinion  of  the  Court.  [6  Pa.  Supericr  Ct. 

the  bill  was  ihcurred  the  seventy-five  shares  of  stock  were  held 
by  thirty-nine  persons,  and  at  the  conclusion  of  taking  the  tes- 
timony the  seventy-five  shares  were  held  by  seven  persons. 

One  of  the  appellees  purchased  seventy-two  shares  of  stock 
after  the  debt  was  incurred.  Three  of  the  appellees  were 
members  of  the  original  company  and  still  own  stock.  Both 
of  the  appellants  were  members  of  the  original  company,  and 
one  of  them,  Frank  L.  Gwinn,  retains  his  stock,  and  is  a  defend- 
ant in  the  bill  in  equity.  Three  of  the  original  stockholders 
advanced  of  their  personal  funds  certain  money  to  develop  the 
business,  and  for  the  money  so  used  by  and  for  the  association, 
J.  B.  Gwinn,  the  then  president,  and  R.  H.  Urser,  the  secretary, 
on  September  20, 1889,  gave  a  judgment  note  for  $1,529.71,  to 
the  creditor.  The  interest  on  this  debt  was  regularly  paid  by 
the  association  until  October  1, 1892.  On  October  24, 1893,  a 
personal  judgment  was  entered  against  J.  B.  Gwinn  and  R.  H. 
Urser  on  the  note  given  for  the  indebtedness  of  the  association 
Payment  was  demanded  by  the  holder  of  the  judgment,  and  on 
March  27, 1894,  J.  B.  Gwinn  paid  the  amount  of  said  judgment 
($1,708.06)  and  had  the  judgment  assigned  to  him.  We  do 
not  have  the  testimony  adduced  before  the  referee,  but  in  the 
opinion  of  the  learned  judge  who  made  the  decree  it  is  stated, 
"  The  plaintiff  was  one  of  the  original  members  of  said  com- 
pany, being  the  holder  of  four  shares.  He  sold  one  share  to 
his  son,  Frank  L.  Gwinn,  on  April  80, 1889,  leaving  him  still 
the  owner  of  three  shares,  which  he  continued  to  hold  a  consid- 
erable length  of  time  after  the  judgment  note  was  given  to  the 
Newells  for  the  indebtedness  of  the  company,  which  three 
shares  he  finally  transferred  to  E.  M.  Lee  along  in  1891  or 
1892." 

On  June  29, 1894,  J.  B.  Gwinn  filed  a  bill  in  equity  against 
fifty-three  persons,  in  which  the  organization  of  the  association, 
some  of  the  transfers  of  stock  and  subsequent  management  of 
the  business  was  detailed,  and  prayed : 

1.  That  a  receiver  be  appointed  to  take  charge  of  the  plant 
and  assets  of  the  association  and  convert  the  same  into  money, 
if  found  necessary  in  the  liquidation  and  payment  of  debts  of 
tlie  association. 

2.  That  an  account  may  be  taken  and  stated  of  the  receipts 
and  expenditures  of  said  association  by  its  successive  officers 


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GWINN  V.  LEE.  651 

1898.]  Opinion  of  the  Couit. 

and  managers,  and  that  any  balances  found  in  the  hands  of 
such  officers  or  managers,  be  ordered  to  be  applied  under  the 
direction  of  the  court  to  the  payment  of  said  debts. 

3.  That  the  said  defendants  may  severally  be  ordered  to  pay 
over  to  your  orator,  in  liquidation  of  the  debt  represented  by 
the  judgment  note,  and  the  judgment  thereon  mentioned  in  the 
third  and  fifth  paragraph  of  the  bill,  such  sums  as  in  equity 
may  be  f otind  due  from  them  to  your  orator  by  way  of  contri- 
bution towards  any  balance  of  said  indebtedness  not  covered 
by  the  proceeds  of  the  property  and  assets  of  said  association. 

4.  And  that  your  orator  may  have  such  further  and  other 
relief  as  the  circumstances  of  the  case  may  require,  etc. 

No  demurrer  was  filed,  the  appellees  answered  the  bill,  and 
after  a  replication  was  filed,  S.  K.  Clarke,  Esq.,  was  appointed 
a  referee,  to  take  testimony  and  report  the  facts,  law  and  form 
of  a  decree. 

During  the  progress  of  the  hearing  before  the  referee,  when 
an  objection  was  made  to  the  right  of  J.  B.  Gwinn,  to  ask  for 
the  appointment  of  a  receiver,  as  he  had  parted  with  his  inter- 
est in  the  association,  and  was  only  its  creditor  as  of  the  date 
he  took  an  assignment  of  the  Newell  judgment,  Frank  L. 
Gwinn  was  brought  on  the  record  as  a  plaintiff  to  urge  the  re- 
lief asked  for  in  the  first  prayer,  by  filing  in  court  a  paper  called 
"Joinder  of  Frank  L.  Gwinn  in  plaintiffs  application  for  a 
receiver,"  as  follows — "  And  now,  February  13, 1895,  Heinman 
&  Hoy,  attorneys  for  Frank  Gwinn,  one  of  the  defendants  and 
a  stockholder  in  the  Bonanza  Oil  and  Gtus  Company,  at  the 
time  the  debt  in  this  case  was  contracted,  and  still  a  stockholder 
therein,  and  as  attorneys  for  other  defendants  joins  in  the  ap- 
plication of  the  plaintiff  for  the  appointment  of  a  receiver ; " 
which  was  indorsed  by  the  court,  viz,  "  June  28, 1895,  the  within 
motion  presented  in  open  court,  and  upon  due  consideration 
thereof,  the  same  is  referred  to  the  referee  for  hearing  and  to 
report  the  facts  and  the  law  in  the  premises,  and  to  make  such 
recommendation  to  the  court  as  he  may  believe  just  and  equit- 
able ;  and  if  the  applicants  are  entitied  to  have  a  receiver  ap- 
pointed," to  which  order  the  attorneys  for  appellees  excepted. 

The  referee  made  report  and  suggested  a  decree,  to  which 
exceptions  were  filed,  and  after  argument  in  the  court  below 
a  decree  was  entered  dismissing  the  plaintiff's  bill  as  to  four 


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652  GWINN  V.  LEE. 

Opinion  of  the  Court.  [6  Pa.  Superior  Ct. 

of  the  five  appellees  at  the  costs  of  the  plaintifiE,  and  the  relief 
prayed  for  by  the  plaintiff  and  Frank  L.  Gwinn  as  to  the  four 
named  defendants  was  refused,  as  well  as  to  the  other  appellee 
in  the  1st  and  2d  paragraphs  of  the  prayer,  and  the  bill  was 
referred  back  to  the  referee  for  further  proceedings  against 
such  of  the  defendants  as  were  copartners  with  the  plaintiff 
when  the  debt  now  held  by  him  was  contracted.  To  which 
decree  only  the  plaintiff  and  Frank  L.  Gwinn  excepted. 

Under  tiie  undisputed  facts  John  B.  Gwinn,  at  the  time  of 
filing  the  bill  in  equity,  was  only  a  creditor.  The  fact  that  he 
had  been  a  former  member  of  the  partnership  did  not  change 
his  status.  He  withdrew  from  the  association  in  1891  or  1892, 
and  on  March  27, 1894,  he  took  an  assignment  of  the  Newell 
judgment.  He  does  not  aver  who  the  partners  were  at  the 
time  the  liability  was  created,  but  does  say  that  changes  oc- 
curred in  the  membership,  by  persons  who  were  not  original 
shareholders  purchasing  the  stock  at  different  periods  between 
the  organization  of  said  association  and  the  filing  of  the  bill. 

Following  Christy  v.  SiU,  131  Pa.  492,  and  Powell's  Appeal, 
2  Pa.  Superior  Ct.  618,  we  must  hold  that  this  association 
was  a  mere  partnership ;  that  upon  a  transfer  of  stock  the  as- 
signee acquired  the  rights  and  became  subject  to  the  obliga- 
tions of  a  partner  as  fully  as  an  original  member  of  the  firm 
or  holder  of  the  stock,  or  which  is  the  same  thing,  acquired 
such  rights  and  became  subject  to  such  obligations ;  the  retire- 
ment of  one  member,  or  the  admission  of  a  new  member,  works 
a  dissolution  of  the  partnership.  If  the  business  is  continued 
the  creditors  of  the  former  firm  have  no  equity  attaching  to  the 
partnership  effects  of  that  firm  which  passed  to  the  succeeding 
partnership.  The  new  firm  has  absolute  dominion  over  the 
property,  unhampered  by  any  lien  or  trust  in  favor  of  the  cred- 
itors of  the  former  firm.  The  fact  that  the  interests  of  the 
partners  are  represented  by  shares  of  stock  which  are  transfer- 
able like  shares  in  a  corporation,  and  after  such  transfer  the 
business  is  conducted  as  before,  without  separation  or  distinc- 
tion made  between  past  and  future  liabilities,  does  not  change 
these  rules.  The  stockholders  in  such  a  copartnership  have 
the  rights  and  responsibilities  of,  and  in  their  relation  to  the 
public  and  each  other  are  general  partners.  The  equities  of 
tiie  creditors  must  be  worked  out  through  the  equities  of  the 


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GWINN  V.  LEE.  663 

1898.]  Opinion  of  the  Coui-t. 

partners,  and  if  none  of  the  partners  has  an  equity  to  have  a 
preference  in  the  distribution,  then  of  course  none  of  the  cred- 
itors has  any. 

The  provision  in  the  constitution  in  regard  to  the  effect  of 
transferring  stock  cannot  be  credited  with  any  further  purpose 
than  the  similar  but  stronger  one  in  Powell's  Appeal,  supra,  and 
it  only  secured  the  purchasers  admission  into  the  new  firm  and 
prevented  a  winding  up  of  the  business. 

Under  the  facts  found  by  the  referee,  neither  the  plaintiff  in 
the  bill  nor  Frank  L.  Gwinn  had  any  equity  which  would  en- 
title him  to  have  the  assets  of  the  partnership,  as  it  existed  at 
the  time  the  bill  was  filed,  applied  to  the  payment  of  debts  in- 
curred before  John  A.  Magee,  D.  M.  Anderson,  J.  L.  Hunter 
and  S.  B.  Eisenhuth  became  members  of  it. 

It  cannot  be  permitted  under  our  system  of  administering 
equity  that  on  a  mere  motion  of  a  defendant,  new  facts  could 
be  urged  which  would  qualify  the  original  statements,  and, 
without  affidavit,  notice  to,  or  service  upon  the  other  defend- 
ants, a  new  party  plaintiff  could  be  substituted  to  urge  grounds 
for  relief  wMch  the  present  plaintiff  could  not  press.  No  action 
was  taken  by  the  referee  of  this  motion,  but  he  treated  it  a^ 
effective  for  its  intended  purpose.  The  case  should  have  pro- 
ceeded as  if  this  application  had  not  been  made :  Equity  Rules, 
60,  51,  62,  63 ;  Cassidy  v.  Knapp,  167  Pa.  305. 

It  has  been  frequently  held  that  when  a  court  of  equity  takes 
cognizance  of  a  litigation  it  will  dispose  of  every  subject  em- 
braced within  the  circle  of  contest,  whether  the  question  be  of 
remedy  or  of  distinct  yet  connected  topics  of  dispute.  If  the 
jurisdiction  attached  from  the  nature  of  one  of  the  subjects  of 
contest,  it  may  embrace  all  of  them,  for  equity  abhors  a  multi- 
plicity of  suits :  Myers  v.  Bryson,  158  Pa.  246.  The  reason  is 
that  the  parties  are  properly  in  court  in  a  case  of  which  the 
court  has  jurisdiction  of  the  parties  and  subject-matter.  It  will 
sometimes  happen  that  the  precise  form  of  relief  prayed  for  is, 
upon  a  view  of  the  facts  as  presented  in  the  evidence,  either 
impossible  or  inapplicable ;  and  a  court  of  equity  will  in  that 
case  extend  such  other  form  of  relief  as  may  be  appropriate  on 
a  consideration  of  the  case  presented.  This  is  done  to  prevent 
a  failure  of  justice  from  defective  pleading,  and  to  prevent  a 
multiplicity  of  actions  for  the  same  act  or  omission :  Ahl's 
App^  129  Pa.  49. 


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654  GWINN  V.  LEE. 

Opinion  of  the  Court.  [6  Pa.  Superior  Ct 

Equity  oyer  looks  to  great  principles  rather  than  special 
modes  of  procedure,  which  latter  must  always  give  way  when 
they  come  in  conflict  with  the  application  of  these  principles  to 
cases  embraced  within  them :  Hudson  v.  Barrett,  1  Parsons, 
414. 

A  doubt  as  to  equitable  jurisdiction  will  not  prevail  after  a 
full  hearing  and  after  heavy  costs  have  been  incurred:  Drake 
V.  Lacoe,  157  Pa.  17;  Searight  v.  Bank,  162  Pa.  604;  Evans 
V.  Goodwin,  132  Pa.  136. 

The  parties  are  in  court.  Considerable  costs  have  been  in- 
curred, and  as  in  Schuey  v.  Schaeffer,  130  Pa.  23,  a  decree  such 
as  law  and  equity  would  require,  and  which  would  be  binding 
upon  all  parties  ought  to  be  made.  The  assignments  of  error 
are  overruled.  The  plaintiff  was  not  entitled  to  have  a  re- 
ceiver appointed  for  a  partnership  of  which  he  was  not  a  mem- 
ber nor  creditor,  nor  to  an  account  based  on  its  receipts  and 
expenditures.  He  may  or  may  not  be  entitied  to  the  relief 
asked  for  in  the  third  and  fourth  prayers,  all  of  which  depends 
on  the  facts  adduced  in  the  evidence  which  is  not  before  us. 

The  decree  of  the  court  is  affirmed  and  the  record  remitted  f  oi 
further  proceedings. 


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INDEX. 


ABORTION,  see  Criminal  law: 

ACTIONS. 

1.  JEvidence — Treapasa — Bes  gestCB^Meamre  of  damages^Title  bj/ 
possession — Burden  qf  proof  on  d^endant.  Omensetter  T*  Kemper, 
309. 

2.  Bqftlevin,  Is  a  remedy  for  illegal  distress.  Bogrert  T*  Batter- 
ton,  468. 

3.  Trespass  for  trying  title.  The  right  exists  to  bring  trespass  for 
an  original  tort  for  the  purpose  of  trying  title,  and  the  judgment  in 
such  an  action  has  the  same  effect  on  the  question  of  title  as  a  judg- 
ment in  ejectment    Smacker  t*  B*  B«  Co*,  521. 

4.  Trover  and  Conversion — Way  going  crop.  The  absolute  and  un- 
qualified denial  of  goods  to  him  that  hath  the  right  to  demand  them, 
is  an  actual  conversion  and  not  merely  the  evidence  thereof,  and  trover 
will  lie  immediately  upon  such  deniaL 

An  out  going  tenant  has  the  right  to  the  way  going  crop,  and  the 
refusal  by  the  new  tenant  to  permit  him  to  enter  upon  the  land  and 
harvest  it  is  a  conversion  of  the  crop.  A  subsequent  permission  given 
by  the  tenant  in  possession  to  the  owner  of  the  crop  to  harvest  the 
same  after  the  prior  refusal,  does  not  destroy  the  right  of  action,  the 
crop  in  the  mean  time  having  become  injured  by  the  delay  in  harvest- 
ing the  same.    McKay  t*  Pearson,  529.     . 

AMENDMENT. 

1.  Practice,  C,  P. — Amendment  to  statement,  the  cause  of  action  being 
the  same,    Adams  t*  Moll,  380. 

2.  Statutes  liberally  construed.  The  acts  regulating  amendments  are 
to  be  liberally  construed  and  an  amendment  will  be  allowed,  the 
effect  of  which  simply  is  to  make  clear  what  was  imperfectly  indicated. 
Phila.  T.  Christman,  29. 

APPEAI5. 

1.  Application  for  new  trial — After-discovered  testimony — Discretion 
of  court.  Applications  for  new  trial  based  on  allegations  of  after- 
discovered  testimony  are  addressed  to  the  sound  discretion  of  the  trial 
court,  and  only  in  clear  cases  of  abuse  of  discretion,  if  ever,  is  the 
refusal  of  the  application  assignable  for  error.  McNeile  T.  Cridland, 
428. 

2.  Certlorari—Beview  qf  order  striking  off  judgment.  There  is  no 
statutory  api>eal  from  an  order  of  the  common  pleas  striking  from  the 

(666) 


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656  INDEX. 

APPEALS— conWnuccL 

record  an  entry  of  satisfaction  of  a  judgment.  The  effect  of  an  appea. 
therefore  is  equivalent  to  a  common  law  writ  of  certiorari  which  hrings 
up  the  record  only;  the  errors  to  be  corrected  must  api>ear  upon  the 
face  of  the  record,  the  merits  cannot  be  inquired  into;  they  are  left 
to  the  judgment  of  the  court  below.  Neither  the  evidence  nor  the 
opinion  of  the  court  forms  any  part  of  the  record  proper,  and  for  that 
reason  cannot  be  examined  into.    C^ilmore  &  Doff y  T.  BonleaTyy  603. 

3.  Credit  ghen  to  findings  qf  auditing  judge — Vomicil.  Where  the 
principal  question  before  the  orphans^  court  was  one  of  fact,  namely, 
the  domicil  of  the  decedent,  and  the  auditing  judge  found  that  he  had 
not  lost  his  domicil  of  origin  by  residence  abroad,  which  finding  was 
sustained  on  exception  by  the  court  in  banc;  the  appellate  court  will 
not  disturb  the  conclusion  in  the  absence  of  manifest  error,  there  being 
sufficient  evidence  to  sustain  the  finding  and  decree  of  the  court  below. 
Lowry's  Est.,  143. 

4.  DiHcretion  qf  court— Rrfusal  to  open  judgment  There  is  no  abuse 
of  discretion  in  a  refusal  to  open  judgment  when  it  appears  from  the 
depositions  that  the  entry  of  a  final  judgment  in  favor  of  the  defend- 
ant would  be  more  than  doubtfuL    McKeone  T«  Christmaiiy  569. 

6.  Evidence — Effect  of  admitmon  qf  incompetent  testimony.  The  fact 
that  sufficient  competent  testimony  was  admitted  on  the  trial  to  sus- 
tain the  verdict,  is  no  antidote  for  the  error  of  admitting  incompetent 
testimony,  since  an  appellate  court  cannot  determine  either  the  effect 
given  by  the  jury  to  that  which  should  not  have  been  before  them,  or 
whether  the  verdict  was  not  due  wholly  t<»  the  incompetent  testimony. 
eerier  T.  Homestead  Borough,  542. 

6.  Interlocutory  order — Praciicey  Superior  Court,  Anderson  Y.  Mc- 
Michael,  114. 

7.  Judgment — Motion  to  strike  off — Laches — Review,  Keenan  y. 
Qoigg,  58. 

8.  Jurisdiction,  Q.  8, — Payment  of  money  into  court.  On  an  appli- 
cation for  transfer  of  license  the  court  made  the  following  order:  **  On 
paying  into  court  $2,000,  the  balance  of  purchase  money  to  abide 
the  further  order  of  court,  the  license  maybe  transferred."  Judg- 
ment creditors  of  the  vendor  united  in  petitioning  for  the  appointment 
of  an  auditor  to  distribute  the  fund.  After  participating  in  the  pro- 
ceedings before  the  auditor  certain  creditors  appealed,  alleging  want 
of  jurisdiction  in  the  quarter  sessions  to  order  the  money  into  court. 
Held,  that  the  whole  proceeding  must  be  regarded  as  a  common  law 
reference  and  that  the  appellate  court  will  not  review  the  decree  of 
distribution  made  in  such  an  anomalous  proceeding,  but  will  quash 
an  appeal  taken  by  a  participating  creditor.  Queried :  Whether  the 
vendor  might  not  have  had  the  right  to  an  appeal.  Transfer  of  Li- 
cense, 130. 

9.  Liquor  law — Abuse  qf  discretion — Review  by  appellate  court.  Dis- 
tiller's License,  87. 

10.  Liquor  law — Standing  qf  remonstrant  to  appeal,  Wacker's  Li- 
cense, 323. 

11.  Practice,  Superior  Court — Amendments — Municipal  lien.  An 
appeal  does  not  lie  from  the  refusal  to  strike  off  a  municipal  lien  for 


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INDEX.  657 

APPEALS— continued. 

the  reason  that  there  is  no  definttiye  decree,  nor  from  an  order  permit- 
ting an  amendment,  the  action  being  still  pending.  Phlla*  T.  Christ- 
man,  29. 

12.  Practice,  Superior  Court — Appeal  quashed  in  aJ)8ence  of  asHgn- 
ments  qf  error.    Fornej  T.  Hantingdon  Co.,  897. 

13.  Practice,  Superior  Court — Assumption  ba^ed  on  motive  dehors  the 
the  record.    Hires  A  Co.  t.  Norton,  457. 

14.  Practice,  Superior  Court — Got\firmation  of  appointment  of  keeper 
of  prison,    McHenry's  Petition,  464. 

15.  Practice,  Superior  Court—D^ectioe  assignment,  Shanahan  T. 
Ins.  Co.,  05;  Taylor  t.  Sattler,  229. 

16.  Practice,  Superior  Court — Evidence  admitted  without  objection — 
Drfectioe  assignment  of  error — Review — Refusal  to  grant  new  trial — 
Lack  of  exceptions.    Com.  T.  Speneer,  256. 

17.  Practice,  Supenor  Court — Refusal  to  open  judgment  after  term 
expired,    Abeles  t.  Powell,  123. 

18.  Practice,  Superior  Court — Sufficiency  of  bail — Practice,  C,  P, — 
Execution  for  costs.    Irwin  T.  Han  thorn,  165. 

19.  Practice,  S.  C. — Discretion  of  court — Opening  judgment  Leader 
T.  Banlap,  243. 

20.  R^usal  of  judgment — Practice  on  review — Practice,  C,  P. — Suffi- 
ciency of  affidavit — Landlord  and  tenant — Sheriff* ^  sale  of  leased  prop- 
erty,   Bldg.  Assn.  T.  Wampole,  238. 

21.  Review — Appellant  may  not  shift  theory  of  the  case.  Where  the 
yerdict  of  the  jury  established  the  liability  of  the  defendants  upon 
the  theory  of  the  case  by  which  they  chose  to  have  it  tested,  they  can- 
not be  permitted  on  appeal  to  change  their  ground  and  allege  that  the 
case  should  haye  been  treated  in  accordance  with  a  yiew  not  presented 
on  the  trial    Taylor  y.  Sattler,  229. 

22.  Review — Theory  qf  trial  below  followed,  A  case  will  be  treated 
in  the  appellate  court  as  it  was  tried  below.  It  must  be  regarded  as 
the  trial  judge  was  led  to  yiew  it  from  the  pleadings,  the  eyidence  and 
the  contentions  of  counsel  The  appellate  court  ought  not  to  consider 
whether  it  might  or  should  haye  been  tried  on  some  theory  that  would 
haye  led  to  a  different  result;  when  no  radical  error  is  manifest  the 
appellate  court  will  adhere  to  the  theory  of  the  case  which  the  par- 
ties adopted,  and  in  yiew  of  which  the  court  instructed  the  jury. 
Taylor  t.  Sattler,  229. 

23.  Weight  to  be  given  to  referef^s  findings  of  fact.  The  appellate 
court  cannot  go  behind  the  findings  of  fact  by  a  referee,  except  where 
the  assignment  of  error  is  such  as  could  be  heard  and  determined  if 
the  trial  had  been  according  to  the  course  of  the  common  law, — ^before 
a  jury.  If  the  eyidence  is  releyant  and  proper  and  the  findings  of 
fact  are  reasonably  inferable  therefrom,  the  court  must,  in  the  absence 
of  fraud,  accept  the  report  as  correct.    Newlin  T.  Aekley,  337. 

ASSIGNMENT  FOR  CREDITORS. 

L  Sale^Parol  evidence,    Taylor  t.  Paul,  496. 

Vol.  VI— 42 


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658  INDEX. 

ATTACHMENT  ACT  OF  1869. 

1.  Bond — Action — Damages.  An  action  may  be  maintained  on  a 
bond  given  in  an  attacliment  proceeding  under  the  Act  of  March  17, 
1869,  P.  L.  8  as  amended  by  the  Act  of  May  24,  1887,  P.  L.  197,  where 
there  has  been  a  failure  to  prosecute  the  action  with  effect  or  where 
the  attachment  has  been  quashed,  but  recoyery  in  such  action  is  lim- 
ited to  legal  costs,  fees  and  damages  sustained  by  reason  of  the  at- 
tachment   Taylor  t.  Sattler^  229. 

ATTORNEY  AT  LAW. 

1.  Mortgage — Attorney^ 8  commission — Demand — Usury,  A  demand 
before  the  issuance  of  a  scire  facias  sur  mortgage  is  not  necessary  in 
order  to  recoyer  attomey^s  commissions. 

The  fact  that  a  portion  of  the  mortgage  covers  usurious  interest 
does  not  defeat  the  right  to  recover  attomey^s  commissions  on  the 
amount  actually  due.  It  is  not  unlawful  to  contract  for  or  to  receive 
more  than  six  per  cent.    Kennedy  T*  Qnigg»  58. 

BANKS  AND  BANKING. 

1.  Promissory  note — Rights  cf  indorsers.  Where  a  bank  holds  the 
fimds  of  a  maker  at  the  maturity  of  the  note,  it  is  bound  to  consider 
the  interests  of  the  indorsers  as  sureties;  and  if  it  allows  the  maker 
to  withdraw  his  funds,  after  protest,  and  the  indorsers  are  losers 
thereby,  the  bank  is  liable  to  them.    Newbold  Y*  Boon,  511 

BENEFICIAL  ASSOCIATIONS. 

1.  Sick  benefit  association — Claims  qf  members — Proper  tribunal — 
Jurisdiction,  C,  P.  The  constitution  and  by-laws  of  an  unincorporated 
sick  benefit  association  derive  their  force  from  assent  either  actual  or 
constructive,  and  are  binding  on  its  members.  Courts  are  without 
jurisdiction  to  inquire  into  the  merits  of  questions  which  have  been 
passed  upon  by  the  organization  in  the  regular  course  of  business, 
provided  those  questions  are  within  the  scope  of  its  powers. 

A  member  of  a  sick  benefit  association  cannot  recover  in  the  courts 
a  sum  alleged  to  be  due  him  when  the  regular  tribunal  constituted  by 
the  constitution  to  pass  on  such  claims  has  reported  adversely  after 
regular  proceedings  and  opportimity  for  a  full  hearing.  Myers  T. 
Fritchman,  580. 

BILL  OF  EXCEPTION. 

1.  Practice,  C,  P. — Exceptions — Testimony— Charge  cf  court  Heyer 
Y.  Piano  Co.,  504. 

BILL  OF  LADING. 

1.  Contract — Shipping  receipt.  When  a  shipping  receipt  provides 
that:  **  The  acceptance  of  this  receipt  for  goods  made  subject  to  the 
provisions  of  the  bill  of  lading  of  this  company  makes  this  an  agree- 
ment between  the  M.  D.  T.  Co.  and  carriers  engaged  in  transporting 
said  goods  and  all  parties  interested  in  the  property,^'  such  provision 
in  the  receipt  requires  the  shipping  receipt  and  the  bill  of  lading  to 
be  read  together  as  constitutiug  the  agreement.  Goodman  Y«  Trans- 
portation  Co.,  168. 


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BROKER. 

1.  Beal  estate  broker — CommUidonM — Action  without  license — Burden 
of  proof.  Where  a  person  claims  for  seryices  rendered  about  the  sale 
of  real  estate  under  a  contract  and  not  as  a  real  estate  broker,  it  de- 
Yolyes  on  the  employer,  if  he  relies  on  the  fact  that  plaintljff  was  a 
real  estate  broker,  to  show  that  fact,  and  the  question  when  properly 
raised  is  for  the  jury.    Tedinskey  T*  Stroase,  587. 

CASE  STATED. 

1.  PracticCy  C.  P. — Case  stated  must  show  Jurisdiction.  Forney  T. 
Huntingdon  Co*,  d97. 

CHARGE  OF  COURT. 

1.  Biased  and  extravagant  charge.  It  is  reversible  error  for  the  court 
to  import  into  its  charge  reference  to  matters  which  have  no  bearing 
on  the  case  and  to  use  extravagant  expressions  which  tend  unduly  to 
inflame  the  minds  of  the  jury.    Breibilbis  v*  Esbenshade*  182. 

2.  Comments  on  evidence — Entire  charge  to  he  weighed.  The  charge 
of  the  court  does  not  disclose  reversible  error  when,  if  the  assignments 
of  error  to  the  charge  are  weighed  in  connection  with  the  entire  con- 
text, it  appears  that  all  controverted  questions  resting  in  parol  were 
submitted  to  the  jury,  and  when  the  charge,  in  its  reference  to  the 
evidence,  is,  as  a  whole,  entirely  fair.    Heyer  T.  Piano  Co.^  504. 

8.  Comments  on  testimony — Ilffect  qf  charge  as  a  whole.  The  charge 
of  the  court  is  not  open  to  exception  when  the  effect  of  his  comments, 
taken  as  a  whole,  was  to  lead  the  jury  to  the  conclusion,  not  that  the 
plaintiff^s  version  of  a  conversation  was  the  more  probable,  but  that 
his  version  did  not  differ  in  legal  effect,  upon  the  question  at  issue, 
from  that  of  the  defendant. 

It  is  not  error  for  the  trial  judge  to  comment  on  the  testimony  of  a 
witness  and  to  call  attention  to  its  inherent  probability  or  improba- 
bility, provided  he  does  it  fairly,  and  leaves  the  question  of  his  credi- 
bility to  the  jury. 

Where  i>articular  instructions  are  not  asked  for,  and  the  complaint 
is  that  the  charge  was  inadequate  or  one-sided,  the  court  will  be  re- 
viewed on  the  general  effect  of  the  charge  and  not  upon  sentences 
or  paragraphs  disconnected  from  the  context  which  qualifies  and 
explains  tliem;  if,  as  a  whole,  the  charge  was  calculated  to  mislead, 
there  is  error  in  the  record;  if  not,  there  is  none.  McNeile  T.  Crid- 
land,  428. 

4.  Criminal  law — Abortion — Adequate  charge — Answer  to  point — 
Question  for  Jury.    Com.  v.  Page,  220, 

5.  Criminal  law — Befusal  of  new  trial — Adequacy  qf  charge.  Com* 
V.  Mitchell,  369. 

6.  Erroneous  consb'uction  of  evidence.  It  is  error  for  a  trial  judge 
to  instruct  the  jury  that  alleged  slander  is  proven  by  defendant's  own 
admission  when  the  testimony  of  the  defendant  denied  the  slander  as 
laid  and  where  his  admissions  were  of  a  radically  different  statement. 

It  is  error  for  a  judge  to  assume  jnore  than  is  warranted  by  the  tes- 
timony.   Breibill»i8T.E9bon8hadef*182. 

7.  Instructions  as  to  scrutiny  of  evidence.    In  a  case  where  there  ia 


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6G0  INDEX. 

CHARGE  OP  COJTRT—conHnued. 

conflicting  or  contradictory  oral  tOBtimony,  it  Ib  proper  for  the  trial 
judge  to  instruct  the  jury  as  to  their  duty  of  carefully  scrutinizing  and 
dispassionately  weighing  the  evidence.    GrAj  T«  Hartmaiiy  195. 

8.  Practice — Beview — Comment  on  evidence.  The  question  turning 
on  the  accuracy  of  certain  n:iea8urements  made,  on  the  one  hand  by 
trained  surveyors  and  on  the  other,  by  imskilled  persons,  it  was  not 
error  for  the  court  to  call  the  attention  of  the  jury  to  the  fact  that 
defendant's  measurements  were  made  by  **  a  baker  attended  by  a  tin- 
smith under  the  supervision  of  a  lawyer."  This  is  not  such  departure 
from  j  udicial  gravity  as  to  call  for  a  reversal  Omense tier  T.  Kemper, 
309. 

9.  Practice^  C  P.—^^  Clear  and  aatirfactory  evidenee,^^  Where,  even 
in  the  absence  of  special  request  for  instruction,  the  court  undertakes 
to  instruct  the  jury  as  to  the  measure  or  quality  of  proof  required 
having  stated  the  rule  by  which  the  jury  should  be  governed  in  deter- 
mining the  issue,  error  may  be  assigned  if  the  true  rule  is  not  given. 
To  instruct  the  jury  that  a  fact  must  be  established  by  the  ^^  weight 
of  the  evidence  "  is  not  equivalent  to  saying  that  it  must  be  established 
'* by  clear  and  satisfactory  evidence."  The  latter  implies  a  higher 
degree  of  proof  than  the  former.    Taylor  T«  Panl^  496. 

10.  Province  qf  court  and  jury — Inadequate  charge  oa  ground  for 
reversal.  Where  the  trial  judge  fails  to  give  the  jury  proper  instruc- 
tions as  to  the  vital  question  in  the  case  and  either  entirely  overlooks 
or  disregards  the  same,  it  is  ground  for  reversal.  Bothschilds  Son's 
Co.  T*  McLaaghliuy  347. 

11.  Bight  and  propriety  qf  comment  on  evidence.  It  is  always  the 
right  and  often  the  duty  of  the  court  freely  to  discuss  the  evidence. 
Comments  kept  within  bounds,  are  entirely  legitimate,  they  aid  the 
jury,  frequently  prevent  unjust  and  absurd  verdicts,  and  thus  help  to 
preserve  the  respect  of  the  people  for  the  jury  system.  Smacker  T« 
B.  B.  Co.,  521. 

CHARITY. 

1.  College,  when  a  public  charity,  A  college  is  a  charity  if  it  is  con- 
ducted in  a  way  beneficial  to  the  public  at  large.  Whether  a  partic- 
ular college  is  a  public  charity  is  a  question  of  fact,  and  the  test  is 
that  it  is  not  confined  to  privileged  individuals  but  is  open  to  the 
Indefinite  public.    Haverford  College  t.  Bhoads,  71. 

2.  Public  charity — Revenue  from  heneflciarieB  does  not  destroy  status. 
There  may  be  a  revenue,  arising  in  the  operation  of  a  charity,  derived 
from  its  beneficiaries,  to  aid  in  its  maintenance,  without  removing  its 
status  as  a  public  charity;  but  this  revenue  must  not  exceed  its 
expenses.    Haverford  College  y.  Bhoads,  71. 

8.  Taxation — Exemption— Public  charity — Church  school,  A  school, 
the  title  to  which  is  in  an  individual,  which  is  under  the  domination 
and  control  of  the  Roman  Catholic  Church,  is  not  a  public  charity 
within  the  meaning  of  the  constitution  so  as  to  be  exempt  from  taxa- 
tion by  virtue  of  the  facts  that  no  tuition  fee  is  charged,  and  that  up 
to  the  present  time  all  children,  whether  members  of  the  church  or 
not,  are  received  and  taught. 


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INDEX.  661 

CHARITY— continued. 

The  property  cannot  be  said  to  be  regularly  and  permanently  devoted 
to  purely  charitable  purposes.    Mnllen  T»  Joenet^  1. 

COLLEGE. 

1.  When  a  public  charity — Haverford  college  non  $ectarian,  HaTer* 
ford  College  t.  Bhoads^  71. 

COMMON  CARRIER. 

1.  Misdelivery  qf  goods— EHdence^Questlon  for  jury,  Ctoodman  T. 
Transportation  Co*,  168. 

2.  Negligence  in  delivery  qf  goods— Qttestion  for  Jury,  Cfoodman  T* 
Transportation  Co.,  168. 

CONFLICT  OP  LAWS. 

1.  Lex  loci — Lex  fori — Promissory  note  ^Irregular  indorsement 
Cooke  T.  Addieks,  115. 

CONSPIRACY,  see  Criminal  Law. 

CONSTABLE,  see  Public  Officers. 

CONSTITUTIONAL  LAW. 

1.  Contract—Lex  loci—Cor{flict  cf  laws.  If  a  citizen  of  Pennsylvania, 
by  a  contract  validly  made  outside  if  its  boundaries,  incurs  a  liability, 
no  law  of  this  state,  can  under  the  constitution  of  the  United  States, 
prevent  his  fulfilling  that  obligation,  even  by  an  act  done  within  the 
state.    Ins.  Co.  t.  Storage  Co.,  288. 

CONTRACT. 

1.  Affidavit  of  defense— F erf <mnance  qf,  Loaehhelm  T*  Magaire, 
686. 

2.  Assent  to  written  contract  evidenced  otherwise  than  by  signing.  If 
both  parties  assent  to  the  terms  of  a  contract,  embodied  in  writing, 
their  assent  creates  a  valid  contract  without  reference  to  signature, 
except  where  signing  is  expressly  required  by  law.  Heyer  v.  Piano 
COm504. 

3.  Assertion  cf  untruth — Uescission — Defense,  To  assert  for  truth 
what  one  professes  to  know  and  may  fairly  be  supposed  to  know,  but 
does  not  know  it  to  be  so,  is  equivalent  to  the  assertion  of  a  known 
falsehood,  and  may  be  so  treated  in  determining  the  right  of  the  other 
party  to  rescind  the  contract,  or  if  the  falsity  of  the  declaration  be 
discovered  too  late  for  that,  to  defend  an  action  upon  it.  Lake  T* 
Weber,  42. 

4.  Building  contract — Submission  to  architect — BuXecf  mason^s  work- 
manship— Evidence,  A  building  contract  provided  that  all  the  mason 
work  shall  be  measured  by  the  architect  according  to  rule  of  mason's 
workmanship.    Ueid,  in  a  controversy  as  to  the  amount  due  the  mason, 

i  that  the  contract  properly  interpreted  imposed  upon  the  architect  the 
duty  to  observe  the  rule  of  mason's  workmanship  in  his  measurement, 
and  offers  of  evidence  tending  to  show  that  the  measurements  certified 


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662  INDEX. 

CONTRACT— continucei 

by  the  architect  had  failed  to  apply  the  rale,  are  admissible.  In  order 
to  oust  the  jurisdiction  of  the  courts  it  must  clearly  appear  that  the 
subject-matter  of  the  controversy  is  within  the  prospective  submission. 
The  right  of  trial  by  jury  is  not  to  be  taken  away  by  implication. 
Koch  T.  KahnSy  186. 

5.  Construction  qf— Province  qf  court  and  Jury.  Klmbroagh  T» 
Hoffman,  60;  Bixler  A  Correll  t.  Lesh,  450. 

6.  Construction  of  written  and  printed  parts.  When  the  written  and 
printed  parts  of  a  contract  cannot  be  reconciled,  the  former  is  pre- 
sumed to  have  been  separately  and  particularly  considered  by  the 
parties,  and  to  express  their  exact  agreement  on  the  subject.  Heller's 
Est,  246. 

7.  Contracts  with  the  aged — Scrutiny  and  policy  qf  law.  The  law  is 
especially  solicitous  and  careful  of  childhood  and  old  age.  The  rights 
of  the  latter  are  to  be  guarded  with  as  much  of  carefulness  and  solici- 
tude as  the  former.  A  contract,  made  with  an  aged  woman,  who  is 
imadyised  as  to  her  rights,  a  waiver  of  which  is  imputed  from  the 
execution  of  such  contract,  will  be  closely  scrutinized  and  strictly 
construed  in  her  favor.    Potter's  Est*,  627. 

8.  Default  under  rules  qf  the  exchange — Notice  construed.  Where  a 
rule  of  the  exchange,  of  which  the  parties  to  the  suit  are  members, 
required  a  vendor,  on  receiving  written  notice  that  a  default  on  a  cod- 
tract  was  intended,  to  sell  on  or  before  the  first  open  board  thereafter, 
a  letter  from  the  vendee  to  the  vendor,  which  states,  ''So  far  as  we 
are  concerned  deal  is  off,'^  is  a  notice  under  this  rule  irrespective  of 
the  reasons  given  for  such  default.  The  vendee  was  not  bound  to 
give  any  reasons,  hence  the  reasons,  when  given,  do  not  enter  into  the 
case  for  either  consideration  by  the  jury  or  construction  by  the  court. 
GiU  &  Fisher  t.  O'Boarke,  605. 

9.  Epistolary  contracts — What  amounts  io,  in  law.  When  a  contract 
is  epistolary,  consisting  of  a  series  of  letters,  containing  inquiries, 
propositions  and  answers,  it  is  necessary  that  some  point  should  be 
attained,  at  which  the  distinct  proposition  of  the  one  party  is  unqual- 
ifiedly acceded  to  by  the  other,  so  that  nothing  further  is  wanting  on 
either  side  to  manifest  that  aggregatio  mentium,  which  constitutes 
an  agreement,  and  that  jimction  of  wills  in  the  same  identical  man- 
ner, offered  on  one  side  and  concurred  in  by  the  other,  bringing 
everything  to  a  conclusion  which  in  contemplation  of  law  amounts  to 
a  contract. 

It  is  not  a  contract  where  an  offer  is  made  to  buy  a  monument  at 
9600  adding  ''  we  would  like  to  have  your  derrick  to  set  up  monument. 
We  will  pay  freight  on  derrick  to  return; "  to  which  plaintiff  replied 
asking  that  115.00  more  be  allowed,  and  added:  ''I  have  entered 
your  order — Now  as  to  derrick,  you  would  hardly  want  one  sent  from 
here,  as  that  would  be  too  exi>ensive  for  you.  Why  not  get  one  from 
Philadelphia  or  Harrisburg  ?  ^^  This  was  but  an  acceptance  in  part; 
there  could  be  no  contract  without  an  acceptance  in  fulL  A  contract 
is  not  created  by  proposals  and  counter  proposals;  it  arises  only  from 
the  acceptance  of  a  proposal 
An  offer  is  not  converted  into  a  contract  by  a  response  proposing  a  devia- 


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INDEX.  663 

CONTRACT— conMnwed. 

tion  from  its  terms;  it  becomes  a  contract  only  when  accepted  in  pre- 
cise accordance  with  its  terms.    Clements  t«  Bolster,  411. 

10.  Evidence— Parol  evidence  to  rrform  written  contract — Quantity 
and  quality.    Rothschilds  Son's  Co*  t»  McLaagrhlin,  347. 

11.  Evidence— Written  agreement— Modification  thereof  by  oral  agree- 
ment   Bassell  t.  Glass  Works,  118. 

12.  Implied  contract — Extra  wages — Rebuttable  presumption  of  pay- 
ment, A  contract  to  do  extra  work  may  be  implied  from  a  request 
to  do  such  work,  and  the  subsequent  performance  thereof  and  the 
presumption  of  payment  arising  from  a  delay  in  presentation  of  a 
claim  for  extra  compensation,  coupled  with  a  regular  receipting  for 
regulation  wages  may  be  rebutted  by  evidence  which  is,  if  believed, 
clear,  complete  and  convincing.    Snyder  t.  Steinmetz,  841. 

13.  Landlords  breach  qf  contract — Measure  cf  damages,  Jackson  r* 
Farrell,  31. 

14.  Lex  loci— Conflict  cf  laws— -Constitutional  law.  Ins.  Co.  Y.  Stor- 
age Co.,  288. 

15.  Rescission  for  fraud — Evidence— Province  cf  court,  Zineman  A 
Bro.  T.  Harris,  303. 

16.  Rescission  for  fraud — Requisite  proof.  In  order  to  rescind  a 
contract  on  the  ground  of  fraudulent  representations  by  the  seller,  it 
must  be  established  by  clear  and  decisive  proof  that  the  alleged  rep- 
resentation was  made  in  regard  to  a  material  fact;  that  it  was  false; 
that  the  maker  knew  that  it  was  not  true;  that  he  made  it  in  order 
to  have  it  acted  on  by  the  other  party  to  his  damage  and  in  ignorance 
of  its  falsity  and  with  a  reasonable  belief  that  it  was  true.  Zinemau 
A  Co.  T.  Harris,  303. 

17.  Rescission  of— Question  for  Jury.    Jones  Y.  Cleveland,  640. 

18.  Rescission  of — Stock  subscription — Misrepresentation,  Benefits- 
to  be  derived  from  the  foimding  of  an  institution  to  the  stock  of 
which  the  defendant  was  invited  to  subscribe,  may  or  may  not  result 
as  alleged,  but  disappointment  as  to  the  result  cannot  be  set  up  in 
defense  to  a  suit  to  recover  a  subscription  to  stock  when  the  sub- 
scriber had  quite  as  good  opportunities  of  judging  as  the  person  who 
solicited  and  secured  the  subscription.  Phila.  Bourse  T.  Downing,  500. 

10.  Shipping  receipt— Bill  cf  lading,  Goodman  T.  Transportation 
Co.,  168. 

20.  Statute  cf  frauds— Original  undertaking.    Kelly  v.  Bann,  327. 

21.  Time  is  of  essence  qf  a  contract  to  deliver  chattels.  In  mercan- 
tile transactions,  such  as  the  sale  of  goods,  time  is  generally  held  to 
be  of  the  essence  of  the  contract;  and  where  one  of  the  terms  of  the 
contract  provides  a  date  for  the  shipment  or  delivery,  shipment  or 
delivery  at  the  time  fixed  will  usually  be  regarded  as  a  condition  prec- 
edent, on  the  failure  to  observe  such  date  the  other  party  may  repu- 
diate the  entire  contract.    Heller's  Est.,  246. 

CORPORATION. 

1.  Charity — College;  when  a  public  charity.  Haverford  College  t* 
Bhoads,  71. 


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664  INDEX. 

COSTS. 

1.  Taxation — Practice  C.  P.  Conceding  that  the  court  has  the  in* 
herent  power  to  determine  in  a  summary  way  the  legality  of  costs,  the 
orderly  and  usual  method  of  inyoking  the  exercise  of  the  power  is  by 
filing  exception,  entering  a  rule  to  have  the  costs  taxed  or  retaxed  be- 
fore the  prothonotary,  and  appealing  from  his  decision  to  the  court  of 
common  pleas.    Irwin  r.  Hanthoni)  165. 

CRIMINAL  LAW. 

1.  Abortion — Adequate  charge — Answer  to  point — (Question  for  jury. 
Com.  T.  Page^  220.  * 

2.  Conspiracy — Jurisdiction.  Conspiracy  is  a  matter  of  inference 
deducible  from  the  acts  of  the  parties  accused,  done  in  pursuance  of 
an  apparent  criminal  purpose,  in  common  between  them,  and  which 
rarely  are  confined  to  one  place  and  if  the  parties  are  linked  in  one 
community  of  design  and  of  interest  there  can  be  no  good  reason  why 
both  may  not  be  tried  where  any  distinct  overt  act  is  committed;  for 
he  who  procures  another  to  commit  a  misdemeanor  is  guilty  of  the 
fact,  in  whatever  place  it  is  committed  by  the  procuree.  Com.  T. 
Spencer,  256. 

3.  Conviction  defined.    Com.  T.  Miller^  36. 

4.  Evidence — Procfof  independent  crimcy  when  admissible — Pertinent 
cross-examination — Scope  of  cross-examination  cf  defendant — Testimony 
cf  defendant  atformei'  trial  admissible — Method  ofproof-^Practice,  C.  P. 
— Proof  (\f  admissions  on  former  trial.    Com.  T.  Hoase,  92. 

5.  Evidence  qf  letters,  etc.,  indicating  an  expected  meeting.  Com.  T» 
Mitchell,  369. 

6.  Fraudulent  removal  qf  goods — Pleading — Act  qf  1885.  Com.  T. 
Lewis,  610. 

7.  Indictment  —  Misrecital  qf  date — Variance.  Where  the  crime 
charged  in  the  indictment  is  not  based  upon  a  record  or  other  official 
writing,  a  variance  of  one  day  between  the  indictment  and  proof  in 
fixing  the  date  of  the  crime  is  not  a  fatal  variance;  time  not  being  of 
the  essence  of  the  offense.    Com.  T.  Miller,  35. 

8.  Malicious  prosecution — Essential  grounds.    Aner  v.  Manser,  618. 

9.  Perjury — Evidence — Competency  qf  witness.    Com.  T.  Miller,  35. 

10.  Perjury — False  swearing  in  examination  for  bail.  False  swearing 
in  a  matter  before  a  magistrate  touching  the  sufficiency  of  bail  offered 
for  a  man  charged  with  a  criminal  offense,  is  perjury  at  common  law 
and  under  the  statutes.  Whether  the  inquiry  touching  the  bail  be 
made  at  the  examination  of  the  charge  or  afterward  is  immateriaL 
Com.  T.  Miller,  35. 

11.  Practice — Additional  instructions  in  cibsence  qf  drfendant — Ad- 
journment.   Com.  T.  Honse,  92. 

12.  Practice,  Q.  8. — Suspension  qf  sentence — Order  when  equivalent 
to  final  sentence.  An  order  of  the  court  of  quarter  sessions  which  sus- 
pends sentence  as  to  a  part  of  the  penalty  prescribed  by  law  for  an 
offense,  and  imposes  a  pecuniary  penalty  upon  the  defendant,  where 
fine  and  imprisonment  constitute  the  penalty  affixed  to  the  crime,  is, 
to  all  intents  and  purposes,  a  legal  sentence,  compliance  with  the  terms 
of  which  renders  it  illegal  for  the  court  to  alter  or  reform  the  sentence, 


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INDEX.  665 

CRIMINAL  IjXW— continued, 

after  the  term  at  which  trial,  conviction  and  the  said  partial  sentence 
occurred,  and  any  sentence  subsequent  thereto  is  illegal  and  void. 
Com.  T.  Keeper  of  Workhoase^  420. 

13.  Brfuaal  qf  new  trial — Adequacy  of  charge.  Com.  T.  Mitchell^ 
869. 

14.  Slander — Evidence — Hearsay — Irrelevant  testimony.  In  an  action 
for  slander  it  is  error  to  admit  proof  by  plaintiff  of  what  one  of  his 
witnesses  had  told  him  that  defendant  hi^L  said  the  same  evening  the 
alleged  slanderous  words  had  been  uttered.  Breibiibis  T.  Esbenshade^ 
182. 

15.  Solicitation  to  commit  crime  when  an  indictable  offense.  Solicita- 
tion to  commit  a  felony  is  a  misdemeanor.  But  the  classification  of  a 
crime  as  a  felony  or  a  misdemeanor  being  wholly  arbitrary,  and  gov- 
erned by  no  fixed  or  definite  principles,  it  is  not  the  criterion  by  which 
to  determine  the  question  whether  solicitation  to  its  commission  is  an 
offense  in  law.  The  true  test  is  to  be  found  in  its  effect  on  society, 
since  all  acts  that  injuriously  affect  the  public  police  and  economy  are 
indictable  at  common  law.  Solicitation  to  bum  a  store  building  is 
such  an  act;  incitement  to  incendiarism  being  a  direct  blow  at  secu- 
rity of  property  and  even  of  life.  It  is  therefore  indictable  as  a  mis- 
demeanor.   Com*  T.  Hotchinsoiiy  405. 

DAMAGES. 

1.  Attachment  under  act  qf  1869 — Bond — Action,  Taylor t.  Sattler^ 
229. 

2.  Measure  qf— Claim  property  bond  in  sheriff^ s  interpleader.  The 
true  measure  of  damages  in  a  proceeding  on  a  forthcoming  claim  prop- 
erty bond,  given  under  sheriff^s  interpleader  proceedings,  where,  on 
determination  of  the  issue  against  the  claimant,  the  goods  have  not 
been  returned  and  the  bond  has  thereby  become  forfeited,  is  the  value 
of  the  goods,  with  interest,  from  the  time  the  goods  were  forthcom- 
ing according  to  the  tenor  of  the  bond,  and  not  from  the  date  of  the 
bond.    Reger  v.  Brass  Co.,  375. 

8.  Measure  of — BiviMon  fence — Consentahle  line,  Omensetter  y. 
Kemper,  809. 

4.  Measure  cf-— Evidence — Road  law,  A  witness  in  a  land  damage 
case  must  give  his  estimate  of  the  money  value  of  the  injury,  by  con- 
trasting the  market  value  of  the  property,  as  it  was  before  the  injury 
was  infiioted,  with  its  value  immediately  after  the  injury;  and  the  jury 
should  be  instructed  that  the  difference  in  these  values  is  the  measure 
of  damage.    €(rier  t.  Homestead  Boroagh,  542. 

5.  Measure  qf  landlord''s  breach  qf  contract.  The  measure  of  damages 
where  a  landlord  fails  to  keep  a  covenant  to  move  or  do  something 
to  or  about  a  leased  building  is  the  difference  between  the  worth  of 
the  premises  in  the  condition  in  which  they  remained  and  that  which 
they  would  have  been  in,  had  the  landlord's  covenant  been  i>erformed; 
or  so  much  as  they  would  have  rented  for  without  the  covenant.  Sup- 
posed loss  of  trade  and  possibly  resulting  profits  are  not  to  be  consid- 
ered.   Jacksou  T.  Farreliy  31. 

6.  Measure  of— Libel,    Collins  T.  News  Co«y  380. 


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666  INDEX. 

DAMAGES— continued. 

7.  Measure  of— -Master  and  servant — Illegal  discharge.  When  an 
employee  is  discharged,  without  sufficient  cause,  before  the  end  of  hi^ 
term  of  employment,  he  is  prima  facie  entitled  to  recover  his  wages 
for  the  full  term.  He  may  hold  himself  in  constant  readiness  to  per- 
form  and  recover  as  for  performance.  Even  if  bound  to  make  reason- 
able effort  to  obtain  other  employment,  the  burden  of  proof  is  on  the 
employer  to  show  that  he  obtained  or  might  have  obtained  it.  Heyer 
T.  Piano  Co.,  504. 

DEBTOR  AND  CREDITOR 

1.  Salefor  payment  of  particular  debts — Fraud.  A  sale  by  a  debtor 
at  a  full  price,  intended  by  both  buyer  and  seller  for  the  payment  of 
particular  debts  of  the  vendor  is  a  lawful  sale  and  none  the  less  so 
because  other  creditors  may  be  prevented  or  hindered  by  it  from 
obtainmg  payment.    Peck,  Phillips  &  Wallace  Co.  t»  Storeasoiif  536. 

DECEDENT'S  ESTATE. 

1.  Appeals — Credit  given  to  findings  of  auditing  judge— Domicil. 
Lowry^s  Est.,  143. 

2.  Contract  qf  decedent — Mispayment  to  widow — Set-^ff-^Quasi  admin* 
istration.  An  executory  contract  was  made  by  decedent  to  deliver 
pork  to  defendants.  After  his  death,  pork  belonging  to  the  estate, 
was  delivered  by  the  widow  and  payment  made  to  her  and  not  to  the 
administrator.  Held,  in  a  suit  by  the  administrator  to  recover  the 
price  of  the  pork,  that  a  verdict  for  the  plaintiff  would  have  been 
properly  directed  had  allowance  been  made  for  a  set-off  of  so  much  of 
the  money  received  by  the  widow  as  was  applied  in  quasi  administra- ' 
tion  by  her  for  the  payments  of  debts  due  by  the  decedent,  and  which 
payments,  if  properly  made,  were  in  relief  of  the  estate.  Cooper  t« 
Eyrich,  200. 

3.  Distribution — In  absence  of  creditors,  heirs  may  distribute  among 
themselves.  The  mere  legal  estate  passes  to  the  administrator  of  a 
decedent,  the  equitable  descends  upon  the  parties  entitled  to  distribu- . 
tion.  If  there  be  no  creditors,  the  heirs  have  a  complete  equity  in  the 
property,  and  if  they  choose,  instead  of  taking  out  letters,  may  distrib- 
ute it  by  arrangement  made  and  executed  amongst  themselves.  Fit- 
ler's  Est.,  364. 

4.  Distribution  by  family  settlement — Presumption  as  to  nonexistence 
cf  creditors.  George,  a  son,  owed  his  father,  Samuel,  the  decedent, 
$2,000,  represented  by  four  bonds  of  $500.  The  son's  widow  as  admin- 
istratrix of  her  husband  paid  his  four  brothers  $100  each  on  account 
of  above  debt  in  anticipation  of  distribution,  and  received  two  bonds, 
one  in  consideration  of  the  payment,  and  one  for  services  rendered  by 
her  individually  to  decedent's  wife.  No  letters  were  taken  out  on  the 
estate  of  the  father,  until  sixteen  years  after  his  death  and  long  after 
the  above  family  settlement,  when  one  of  the  sons  administered.  The 
account  of  Greorge's  estate  showed  a  balance  of  $478.51.  The  father's 
administrator  recovered  judgment  against  the  administratrix  of  his 
brother  Greorge  for  the  $1,000,  and  sought  to  recover  the  full  amount 
of  the  balance  phown  by  her  as  administratrix  of  G^rge.    Held^  that 


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INDEX.  667 

DECEDENTS  ESTATE— continued. 

the  decree  against  the  administratrix  was  properly  limited  to  the 
amount  shown  to  have  been  in  her  hands,  as  such,  less  tlie  $400  paid 
in  distribution  under  the  family  settlement  to  the  sons  Burviving  the 
father,  or  in  fact  to  178.51,  and  that  the  lapse  of  sixteen  years,  with 
other  circumstances,  raised  a  presumption  of  the  nonexistence  of  cred- 
itors of  the  father  Samuel,  which  sustained  the  family  settlement  by 
way  of  informal  distribution.    Filler's  Est*)  364. 

5.  Widow^s  exemption — Slffect  cf  liens  existing  against  decedent  and 
widow.    Potter's  Estate,  633. 

6.  Will — Bequest  of  interest  a  bequest  of  the  fund — Life  estate.  Fell's 
Est.,  192. 

DISCRETION  OF  COURT. 

1.  Appeals — Application  for  new  trial — After-discovered  testimony, 
McNelle  t.  Cridland,  428. 

2.  Appeals — Practice,  8.  C. — Opening  judgment.  An  application  to 
open  judgment  is  addressed  to  the  discretion  of  the  court  which  has 
not  been  taken  away  by  the  Act  of  May  20,  1891,  P.  L.  101. 

It  is  not  an  abuse  of  discretion  for  the  court  to  refuse  to  open  a 
judgment  entered  on  a  verdict  after  a  regular  trial,  where  defendants 
counsel  did  not  notify  him  of  the  time  of  the  trial,  and  where  the 
defendant  had  actual  notice  that  the  case  would  likely  be  placed  on 
the  trial  list  at  the  term  it  was  tried,  but  gave  no  personal  attention 
to  the  matter.    Leader  t.  Dnnlap,  243. 

3.  Appeals — Refusal  to  open  judgment,    McKeone  T.  Christman,  569. 

4.  Liquor  law — Petition  for  a  license  is  to  the  discretion  qf  the  court 
— Judicial  discretion  not  reviewable,  arbitrary  discretion  is — Abuse  of 
discretion — Beview  by  appellate  court.    Distiller's  License,  87. 

5.  Opinions.  It  is  the  duty  of  the  court  below  to  file  an  opinion  in 
cases  appealing  largely  to  the  discretion  of  the  court.  Skinner  t. 
Cliase,  279. 

DOMICIL. 

1.  Appeals — Credit  given  to  findings  of  auditing  judge.  Lowry'g 
Est.,  143. 

EASEMENT. 

1.  Easements  founded  upon  grant  subject  to  permanent,  visible  service. 
Where  the  owner  of  land  subjects  part  of  it  to  an  open,  visible,  per- 
manent and  continuous  service  or  easement  in  favor  of  another  part, 
and  then  aliens  either,  the  purchaser  takes  subject  to  the  burden  or 
the  benefit  as  the  case  may  be.  This  is  founded  on  the  principle  that 
a  man  shall  not  derogate  from  his  own  grant,  and  its  enforcement  is  a 
fortiori  where  the  vendee  purchases  the  dominant  land.  Koons  T. 
McNamee,  445. 

2.  Prescription  does  not  run  pending  unity  of  titles.  There  can  be 
no  adverse  user  upon  which  to  base  a  prescription  of  easement  while 
the  title  to  the  properties  is  held  by  a  single  owner,  for  no  man  can 
have  an  easement  in  his  own  property.    Koons  t.  McNamee,  445. 

3.  Way — Reservation  qf  moiety  of  spring — Access  therito.    A  reser- 


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668  INDEX. 

EASEMENT— continued. 

yation  in  a  conveyance  of  one  half  a  spring  and  a  moiety  of  the  spot 
of  ground  whereupon  it  arises  implies  access  to  the  spring  in  some 
manner  for  the  purpose  of  taking  water;  but  with  an  existing  chan- 
nel, natural  or  artificial  conducting  the  water,  the  parties  must,  in 
the  absence  of  any  provision  for  a  different  mode  of  conveyanoe  be 
imderstood  as  contemplating  the  use  of  such  channel  for  that  pur- 
pose. No  implication  arises  that  will  warrant  the  grantor  or  his  suc- 
cessors in  title,  in  laying  a  pipe  over  grantee's  lands.  Myton  t*  Wll- 
Mn,  293. 

ELECTION  LAW. 

1.  Public  officers — Sheriff-^Advertisement  af  elections — "  General 
election^^  d^ned^Statutes,  Wilkes-Barre  Becord  t*  Lazeme  Co»> 
600. 

EMINENT  DOMAIN. 

1.  Etidence — Ex  parte  drafts  made  by  commonwealth,  Smneker  T. 
B.  B.  Co.,  521. 

EQUITY. 

1.  Judgment— Motion  to  strike  off— Laches.  Althoase  r.  Hansber- 
ger,  160. 

2.  Jurisdiction  once  attaching  embraces  all  points  in  contest.  Equity 
ever  looks  to  great  principles  rather  than  the  special  modes  of  pro- 
cedure, which  latter  must  always  give  way  when  they  come  in  con- 
flict with  the  application  of  these  principles  to  cases  embraced  within 
them,  and  a  doubt  as  to  equitable  jurisdiction  will  not  prevail  after 
a  full  hearing  and  after  heavy  costs  have  been  incurred. 

When  equity  takes  cognizance  of  a  litigation  it  will  dispose  of  every 
subject  embraced  within  the  circle  of  contest,  whether  the  question 
be  of  remedy  or  of  distinct  yet  connected  topics  of  dispute.  If  the 
jurisdiction  attached  from  the  nature  of  one  of  the  subjects  of  con- 
test, it  may  embrace  all  of  them,  for  equity  abhors  a  multiplicity  of 
suits.    Gwinn  t.  Lee,  646. 

8.  Mistake  cf  law — Equity  will  not  relieve  when  mixed  with  imposi- 
tion or  fraud — Widow^s  exemption — Waiver  obtained  by  undue  if\flu' 
ence.    Potter^s  Est.,  627. 

ESTOPPEL.  . 

1.  Insurance — Bffective  proqf  qf  loss — Notice — Duty  of  the  company 
— Waiver  by  estoppel.    Taengling  A  Sons  t.  Jennings,  614. 

2.  Partnership — Partner^ s  authority  to  bind  his  copartner.  Boyle 
T.  Longstreth,  475. 

EVIDENCE. 

1.  Appeals — Effect  qf  admission  of  incompetent  testimony.  €(rier  Y. 
Homestead  Borough,  542. 

2.  Building  contract — Submission  to  architect — Bule  as  to  mason'^s 
workmanship.    Koch  r.  Kahns,  186. 

8.  Charge  qf  court — Instructions  as  to  scrutiny  qf  evidence.  GrtLj  r. 
Hartman,  195. 


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INDEX.  660 

EVIDENCE— continued. 

4.  Charge  qf  court — Right  and  propriety  of  tomme:n,t  on  ecidence. 
Smacker  y.  B.  IU  Co.,  521. 

6.  Common  carrier — Misdelivery  cf  goods — Question  for  Jury,  Good- 
maa  t.  Transportation  Co.y  168. 

6.  Conflicting  presumptians  of  marriage  and  legitimacy — Policy  qf 
law.  A  valid  marriage  once  established  is  presumed  to  continue  until 
the  contrary  is  shown  or  until  a  different  presumption  is  raised.  Of 
necessity  resort  must  often  be  had  to  presumptive  evidence,  and  it  is 
not  too  much  to  say  that  the  burden  of  proof  is  often  placed  and 
shifted,  not  only  because  of  the  convenience  of  proving  or  disproving 
a  fact  in  issue,  but  also  upon  grounds  of  public  policy. 

The  presumption  of  the  continuance  of  a  valid  marriage  will  yield 
after  long  desertion  of  a  wife  by  her  first  husband  and  after  a  second 
marriage  by  the  first  husband  and  by  the  wife,  in  favor  of  the  pre- 
sumption of  legitimacy  of  the  wife^s  child  by  the  second  marriage; 
and  the  burden  of  proving  the  continuing  validity  of  the  first  mar- 
riage is  imposed  by  the  policy  of  law  upon  those  contesting  the  legiti- 
macy of  the  child  of  the  wife  by  the  second  marriage  even  to  the 
extent  of  compelling  the  production  of  proof  that  the  first  marriage 
had  not  been  terminated  by  divorce  during  the  long  years  of  desertion 
by  the  husband  during  which  he  had  sojourned  in  many  states,  had 
married  again  and  had  declared  that  his  marriage  with  the  mother  of 
the  child  in  question  was  void.    Wile's  Est.^  435. 

7.  Conspiracy — Evidence  cf  general  motives.  In  order  properly  to 
comprehend  the  nature  and  circumstances  of  a  particular  conspiracy, 
charged  in  an  indictment,  evidence  as  to  the  motives  and  conduct  of 
the  alleged  conspirators  in  promoting  a  conspiracy  of  the  same  kind 
to  defraud  the  public  generally,  is  properly  admissible.  Com.  T* 
Spencer,  256. 

8.  Construction  of  writings — Province  qf  court.  Gill  &  Fisher  t« 
O'Boarke,  605. 

9.  Contract  —  Rescission  for  fraud  —  Province  qf  court  —  Requisite 
proof,    Zineman  A  Co.  v.  Harris,  303. 

10.  Credibility  qf  witness — Question  for  jury,  Smncker  T.  B«  B. 
Co.,  621. 

11.  Criminal  law — Evidence  qf  letters,  etc.,  indicating  an  expected 
meeting.  Where  the  crime  of  abortion  is  charged  as  incident  to  the 
meeting  of  two  people,  which  is  admitted  to  have  taken  place,  evi- 
dence Is  admissible  as  tending  to  prove  a  step  in  the  commonwealth's 
case  of  the  fact  that  deceased  addressed  and  mailed  a  letter  to  defend- 
ant, and  subsequently  wired  him  to  meet  her  on  a  certain  train;  such 
evidence  being  admissible  as  tending  to  prove  that  these  two  persons 
had  been  in  communication  prior  to  the  subsequent  meeting  on  the 
train  designated  in  the  telegram.    Com.  t.  Mitchell,  369. 

12.  Criminal  law — P&rjury — Competency  of  witness,  A  person  found 
guilty  by  a  verdict  of  the  jury  of  perjury  but  not  sentenced,  is  a  com* 
potent  witness  in  a  trial  of  others  on  a  charge  of  subornation  of  per- 
jury incident  to  the  same  perjury  for  which  the  witness  was  tried. 
Com.  T.  Miller,  35. 

13.  Criminal   law — Pertinent   erosB-^xaminaUon,     Evidence   being 


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670  INDEX. 

EVIDENCE— conftnued. 

giyen  by  defendant,  charged  with  embezzlement  of  public  funds,  that 
his  alleged  false  representations  made  to  the  officers  of  the  city  were 
innocently,  if  mistakenly  made,  it  was  compentent  for  the  common- 
wealth to  cross-examine  him  on  this  subject  and  admissions,  made  by 
him,  that  he  was  receiving  interest  on  the  money  in  question  from 
banks  of  deposit,  are  relevant  testimony  as  tending  to  rebut  the  theory 
of  mistake  set  up  in  his  direct  examination,  and  as  tending  to  show  a 
personal  interest  to  be  served  in  making  the  false  and  misleading 
statements  and  in  withholding  the  money.    Com*  T«  Hoase^  92. 

14.  Criminal  law — Proof  of  admissions  on  former  trial.  When  the 
commonwealth  desires  simply  to  prove  certain  admissions  of  a  defend- 
ant made  on  a  former  trial,  it  is  not  necessary  to  put  in  evidence  his 
whole  testimony;  but  if  anything  is  omitted  which  may  tend  to  ex- 
plain or  qualify  those  admissions  the  defendant  may  call  it  out  upon 
cross-examination.    Com.  T.  Honse^  92. 

15.  Criminal  law  —  Procf  qf  independent  crime,  when  admissible. 
Generally  evidence  of  the  defendant's  commission  of  another  distinct 
and  independent  crime  cannot  be  received  for  the  purpose  of  proving 
his  commission  of  the  offense  for  which  he  is  being  tried;  yet  under 
some  circumstances  such  evidence  may  be  given :  To  establish  iden- 
tity; to  show  that  the  act  charged  was  intentional  and  wilful,  not 
accidental;  to  prove  motive;  to  show  guilty  knowledge  and  purpose, 
etc.    Com.  T.  House^  92. 

16.  Criminal  law — Scope  of  cross-examination  of  d^endant.  Where 
defendant  in  a  criminal  case  goes  upon  the  stand,  admissions  made 
by  him  are  not  inadmissible  because  elicited  under  cross-examination; 
by  consenting  to  take  the  stand  and  by  swearing  to  tell  the  truth,  the 
whole  truth,  he  waives  his  constitutional  privilege  and  may  be  cross- 
examined,  not  only  the  same  as  any  other  witness,  but  he  cannot 
object  to  legitimate  cross-examination  upon  the  ground  that  his  an- 
swers will  tend  to  criminate  him.    Com.  T.  House^  92. 

17.  Criminal  law — Testimony  qfd^endant  at  former  trial  admissible. 
The  testimony  of  defendant  can  be  used  against  him  on  a  second  trial 
of  the  same  indictment  even  if  he  elects  not  to  go  upon  the  stand. 
His  constitutional  privilege  as  far  as  tliat  testimony  is  concerned  has 
been  waived,  and  cannot  be  reclaimed  in  any  subsequent  trial  of  the 
same  indictment.    Com.  v.  HoasOf  92. 

18.  Cross-examination  cf  unwilling  witness  by  party  calling  him.  It 
is  proper  for  the  trial  judge,  in  the  exercise  of  sound  discretion,  to 
permit  a  cross-examination  of  an  unwilling  witness  by  the  party  call- 
ing him  to  show  that  his  previous  statements  and  conduct  were  at 
variance  with  his  testimony,  where  such  statements  made  at  a  pre- 
liminary examination  induced  the  calling  of  the  witness  and  were 
material  to  the  issue.    €(ray  T.  Hartmaiiy  195.* 

19.  Depositions  regularly  taken  and  filed.  Where  depositions  regu- 
larly taken  are  filed  by  order  of  the  court  they  thereupon  become 
proper  evidence  for  either  party.    Lowry's  Est.^  143. 

20.  Eminent  domain — Ex  parte  drafts  made  by  commonwealth.  In 
order  to  fix  the  location  of  land  appropriated  by  the  state  to  publio 
uses,  a  draft  attached  to  ^the  report  of  the  inquisition  appointed  to 


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INDEX.  671 

EVIDENCE— continued. 

assess  the  damages,  together  with  all  the  explanatory  memoranda 
attached  thereto  is  admissible  in  evidence  to  show  the  location  of  the 
canal  because  it  forms  part  of  the  record:  Pennsjlyania  Canal  Co.  y. 
Dunkel,  101  Pa.  103;  but  an  ex  parte  draft  offered  to  show  the  loca- 
tion of  a  canal  which  was  not  used  in  and  which  did  not  pertain  to, 
either  an  amicable  or  adverse  proceeding  between  the  state  and  the 
landowner,  made  after  the  canal  was  finished,  without  knowledge  or 
consent  of  the  owners  and  long  subsequent  to  the  settlement,  had 
with  a  number  of  the  owners  of  distinct  parts  of  the  locus  in  quo,  is 
inadmissible.    Smncker  t.  R.  lU  Co.,  521. 

21.  Evidence  qf  crime  not  charged  but  cognate,  when  admissible. 
While  an  independent  crime  having  no  connection  with  that  charged 
cannot  be  shown,  evidence  may  be  given  of  one  so  connected  with  the 
offense  for  which  the  defendant  is  on  trial  as  to  show  motive,  pur- 
pose, identity  or  guilty  knowledge. 

The  evidence  tending  to  show  that  a  defendant,  charged  with  solicit- 
ing another  to  bum  a  building,  at  or  about  the  time  of  such  alleged 
solicitations,  addressed  similar  solicitations  to  other  persons,  is  prop- 
erly admitted.  Such  testimony  does  not  fall  within  the  rule  exclud- 
ing evidence  of  other  offenses  than  that  laid  in  an  indictment.  Com. 
T.  Hatehinsoiiy  405. 

22.  Inadmissibility  qf  post  contractual  representations  in  deceit.  In 
an  action  on  a  contract  evidence  was  properly  rejected  which  was 
offered  in  support  of  alleged  representations  made  by  the  plaintiff's 
agent  after  the  contract  in  controversy  had  been  entered  into;  such 
representations  even  if  false  would  not  legitimately  tend  to  establish 
the  defense,  which  was  deceit.    McNeile  T.  Cridland^  428. 

28.  Land  damage  cases — Competency  cf  witness.  In  land  damage 
cases  the  positive  requirements  for  a  competent  witness  are :  personal 
knowledge  of  the  property  and  of  its  market  value  at  the  time  it  was 
taken.  In  order  that  a  witness  may  be  competent  to  testify  intelli- 
gently as  to  the  market  value  of  the  land  he  should  have  some  special 
opportunity  for  observation;  he  should  in  a  general  way  and  to  a 
reasonable  extent  have  in  his  mind  the  data  from  which  a  proper  esti- 
mate of  the  value  could  be  made.    Grier  r*  Homestead  Boroagh)  542. 

24.  Landlord  and  tenant — Degree  of  proof  to  establish  a  surrender. 
Where  a  case  turns  on  whether  there  has  been  a  surrender  by  a  lessee 
of  his  term  and  an  acceptance  thereof  by  the  lessor,  the  proof  requi- 
site to  establish  such  surrender  must  establish  a  clear  and  explicit 
agreement,  and  the  landlord's  acceptance  of  the  surrender  also  must 
be  established  by  a  fair  and  full  preponderance  of  evidence.  It  is  error 
however,  for  the  trial  judge  to  instruct  the  jury  that  a  defendant 
lessee,  in  order  to  meet  the  burden  of  proof  cast  upon  him,  must,  to 
establish  a  surrender,  prove  all  the  terms  and  conditions  of  the  alleged 
rescission  or  surrender  and  acceptance  by  evidence  that  is  **  dear,  pre- 
cise and  indubitable.'* 

There  is  no  reason  for  requiring  the  exceptionally  high  measure  of 
proof  necessary  to  take  the  case  out  of  the  statute  of  frauds,  or  to 
reform  a  writing.    Bohbock  r»  McCargo^  134. 

25,  Legitimacy  qf  children^Burden  and  quality  qf  proqf-^Policy  of 


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672  INDEX. 

EVIDENCE— continued. 

law.  The  presumption  and  charity  of  the  law  are  in  fayor  of  the 
legitimacy  of  a  child,  and  those  who  wish  to  bastardize  him  must 
make  out  the  fact  by  clear  and  irrefragable  proof.  The  presumption 
of  law  is  not  lightly  repelled;  it  is  not  to  be  lightly  broken  in  upon 
nor  shaken  by  a  mere  balance  of  probabilities;  the  evidence  for  repel- 
ling it  must  be  strong,  satisfactory  and  conclusive;  such  presumption 
can  only  be  negatived  by  disproving  every  reasonable  probability. 
Wile's  Est,,  436. 

26.  Libel — Measure  c(f  damages — Privileged  communication — Burden 
qf  proof,    Collins  ?•  News  Co.,  330. 

27.  Malicious  prosecution — Conversations  between  prosecutor  andjus^ 
tice.  Evidence  of  conversations  between  the  prosecutor  and  the  jus- 
tice after  the  prosecution  had  been  instituted,  in  the  absence  of  the 
defendant  in  the  prosecution,  are  inadmissible  to  rebut  the  presump- 
tion of  malice.    Aner  t.  Mauser,  618. 

28.  Municipal  law — Proof  qf  ordinance — Burden  of  proof.  It  is  not 
necessary  to  prove  the  preliminary  steps  taken  in  passing  and  publish- 
ing a  municipal  ordinance,  the  ordinance  book  is  prima  facie  evidence 
of  the  validity  of  the  ordinance,  and  if  anything  essential  to  its  valid- 
ity has  been  omitted  in  passing  or  publishing  it,  it  devolves  upon  the 
party  resisting  it  to  show  such  invalidity.  Grier  t.  Homestead  Bor- 
ough, 542. 

29.  Parol  evidence  to  explain  purpose  of  a  note  admissible — Accom- 
modation paper — Burden  of  proof.  Parol  evidence  Is  admissible  to 
explain  a  receipt  or  entry  in  a  bank  book  or  accoimt  book,  or  to  show 
the  purpose  for  which  a  note  is  given. 

Plaintiff  sued  to  recover  the  amdunt  paid  by  him  to  take  up  a  note 
alleged  to  have  been  given  as  accommodation  for  defendant.  Defend- 
ant claimed  the  note  to  have  been  given  as  payment  for  a  horse  sold 
by  him  to  plaintiff.  The  court  having  charged  the  jury:  **  The  plain- 
tiff must  convince  you  of  the  truth  of  his  statement  by  the  weight  of 
evidence,  and  his  imsupported  oath  is  not  sufficient,  ^^  defendant  can- 
not complain.    Moore  T.  Phillips,  570. 

30.  Parol  evidence  to  reform  written  contract — Quantity  and  quality. 
To  reform  or  contradict  a  written  contract  the  evidence  of  fraud  or 
mistake  must  be  sufficient  to  move  the  conscience  of  a  chancellor  to 
reform  the  instrument;  that  is  as  to  quantity,  there  must  be  the  tes- 
timony of  two  witnesses  or  one  witness  with  corroborating  circum- 
stances equivalent  to  a  second,  and  as  to  quality,  the  evidence  must 
be  clear,  precise  and  indubitable.  Rothschilds  Son's  Co*  r.  Mc- 
Laughlin, 347. 

31.  Probable  cause  and  malice — When  implied — Presumption  from 
acquittal — Question  for  Jury,    Auer  t.  Mauser,  618. 

32.  Question  for  jury — Credibility  of  witness.    Coble  T.  Zook,  597. 

33.  Sale — Assignment  for  creditors — Parol  evidence.  An  assignment 
of  property  by  an  insolvent  debtor,  although  absolute  on  its  face,  may 
be  shown  by  parol  evidence  to  have  been  intended  to  create  a  trust 
for  creditors.    Taylor  y.  Paul,  496. 

34.  Slander— Hearsay— Irrelevant  testimony.  Breibilbis  T.  Esben- 
shade,  182. 


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INDEX.  678 

EVIDENCE— continued. 

86.  Surrender  of  lease — Burden  (^prw^  as  to  acceptance,  Lipper  T. 
Boay^f  Crawford  k  Co.,  462. 

86.  Trespass — Bee  gestce — Measure  cf  damages.  The  question  being 
one  of  trespass  in  illegally  closing  plaintiff ^s  window  overlooking 
property  belonging  to  wife  of  defendant,  evidence  is  properly  admis- 
sible as  to  conduct  and  declarations  of  the  defendant  in  regard  to  con- 
senting to  the  erection  of  the  windows  as  bearing  on  a  license  from 
the  wife  as  well  as  to  alleged  bad  faith,  recklessness  or  oppression  of 
the  defendant;  the  evidence  being  pertinent  in  any  event,  irrespective 
of  the  wife^s  title  and  defendant's  inability  to  bind  her,  if  it  appeared 
that  plaintiff's  property  was  built  within  her  own  line,  tending  as  it 
did  to  furnish  some  guidance  as  to  the  measure  of  damage.  Omen* 
setter  t.  Kemper,  309. 

37.  Trespass — Title  by  possession  —  Burden  of  proof  on  defendant. 
Mere  possession  is  in  itself  a  form  of  title,  and  he  who  interferes  there- 
with must  be  prepared  to  show  a  better  title.  Plaintiff  having  been 
in  i>ossession  of  her  house  and  defendant  having  invaded  her  posses- 
sion, by  obstructing  her  windows,  the  burden  devolved  upon  him  to 
explain  or  justify  his  acts.    Omensetter  v.  Kemper,  309. 

88.  Wife  claiming  against  creditors— Burden  and  quality  of  proof. 
Taylor  v.  Paul,  496. 

89.  Will — Testamentary  capacity — Degree  of  proof.  Vague  and  in- 
definite indications  of  mental  weakness  will  not  suffice  to  deprive  a 
man  of  his  dominion  over  his  estate,  or  defeat  his  right  to  dispose  of 
it  by  will.    Boyer's  Est,  401. 

10.  Witness  cannot  be  made  the  arbiter.  Where  the  issue  turned  on 
the  proper  division  line  between  two  properties  a  question  is  properly 
excluded  when,  to  have  allowed  the  witness  to  have  answered  it,  would 
have  made  him  the  arbiter  of  the  whole  question  of  title,  including 
the  application  of  the  statute  of  limitation.  Omensetter  t.  Kemper, 
809. 

41.  Written  agreement — Modification  thereof  by  oral  agreement.  A 
written  agreement  may  be  modified  or  set  aside  by  parol  evidence  of 
an  oral  promise  or  undertaking,  material  to  the  subject-matter  of 
the  contract,  made  by  one  of  the  parties  at  the  time  of  the  writing, 
which  induced  the  other  party  to  put  his  name  to  it;  but  where  the 
parties  met,  discussed  the  contract  and  separated,  with  instructions 
to  plaintiff  to  write  out  the  agreement  subsequently  made,  and  both 
parties  signed  the  agreement  thus  prepared  without  objection,  no 
evidence  of  what  was  said  at  the  first  meeting  will  be  admitted.  It 
is  not  error  for  the  court  to  exclude  from  the  consideration  of  the  jury 
negotiations  which  the  parties  themselves  excluded  from  the  contract. 
Bnssell  t.  Glass  Works,  118. 

EXECUTION. 

1.  Debtor^s  exemption— Laches.    Tmst  Co.  T.  6N>achenaaer,  209. 

2.  Execution  must  follow  judgment  and  be  warranted  by  the  record. 
A  writ  in  execution  must  follow  the  judgment  and  be  warranted  by 
it.    Griffin  v.  Davis,  481. 

8.  Judgment — Funds  in  sheriff* s  hands — Standing  qf  junior  Judgment 

Vol.  VI— 43 


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674  INDEX. 

EXCUTION— conttnucd. 

creditor.  The  proceecU  of  a  sheriff^s  sale  of  a  defendant's  personalty 
under  a  judgment  in  the  hands  of  the  sheriff,  are  bound  by  an  execu- 
tion issued  by  a  bona  fide  creditor,  upon  a  judgment  obtained  after 
the  sheriff's  sale ;  such  judgment  will  bind  such  proceeds  and  give 
such  creditor  a  standing  to  contest  the  validity  of  the  prior  judgment, 
on  the  ground  of  fraud.    Toung,  Smyih^  Field  A  Co*  Y.  LeTy^  23. 

4.  Landlord  and  tenant — Way  going  crop — Sale  under  ft,  fa.  and 
vend.  ex.  qf  landlord'a  interest.    Loose  r.  Schaiff ^  153. 

6.  Standing  of  Judgment  creditor  to  contest  prior  execution.  A  judg- 
ment creditor  whose  execution  has  been  issued  on  a  transcript  from 
the  judgment  of  a  magistrate,  has  no  standing  to  resist  the  right  of 
a  prior  execution  creditor  to  take  the  fund  out  of  court  when  an  appeal 
has  been  regularly  taken  in  due  time  from  the  judgment  of  the  mag- 
istrate.   Belber  t.  Belber,  361. 

EXECUTORS  AND  ADMINISTRATORS. 

1.  Contract  qf  decedent — Mispayment  to  widow — Set-off— QuaH  ad- 
ministration.   Cooper  T.  Eyrich)  200. 

EXEMPTION. 

1.  Debtor^ s  exemption — Execution — Laches.  The  claim  for  the  debt- 
or's exemption  must  not  be  unnecessarily  delayed  until  costs  have 
been  incurred  which  otherwise  readily  might  have  been  avoided. 
Moore  v.  McMorrow,  5  Pa.  Superior  Ct.  559,  followed. 

A  claim  on  the  proceeds  of  land  sold  under  a  vend,  ex.,  made  after 
the  sheriff's  sale,  is  too  late  when  the  land  had  been  levied  on  and 
condemned  under  the  fi.  fa.  the  year  previous  and  when  the  sale  took 
place  two  years  after  an  assignment  for  the  benefit  of  creditors,  the 
assignor  in  the  meantime  having  taken  no  stei>s  to  have  his  exemption 
set  aside  out  of  the  real  estate  by  the  assignee.  Trust  Co.  T»  6N>ache- 
naaer,  209. 

2.  Landlord  and  tenant — Property  on  premises  liable  to  distress— Ex- 
emption not  claimed  by  a  stranger.    Bogert  r.  Batterton^  458. 

FALSE  RETURN. 

1.  Public  officers — Constable^ s  liability  for  false  return — Act  qf  1772. 
Pollock  T.  Ingram^  556. 

FAMILY  SETTLEMENT. 

1.  Decedent's  estate — Distribution  by  family  settlement — Presumption 
as  to  nonexistence  qf  creditors.    Filler's  Est.^  364. 

FENCE. 

1.  Division  fence — Consentable  line — Statute  qf  limitations — Burden 
of  proof.  The  mere  calling  a  fence  a  division  fence  does  not  make  it 
one.  It  is  the  duty  of  a  party,  relying  on  a  fence  as  a  division  one, 
to  supply  the  jury  with  the  requisite  facts.  A  consentable  line  is  not 
established  merely  by  an  existing  fence  when  its  character  is  only 
accounted  for  during  ten  or  twelve  years.  Omensetter  T.  Kern- 
per^  309. 


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INDEX.  675 

FRAUD. 

1.  Contract — Resciasion  for  fraud — Evidence — Province  of  court — 
Requisite  proof.    Zineman  A  Co.  t.  Harris^  308. 

2.  Fraudulent  misrepresentation — Credulity  of  other  party  no  defense, 
Howeyer  negligent  a  party  may  have  been  to  whom  an  incorrect 
statement  has  been  made,  yet  that  is  not  ground  upon  which  the 
party  making  the  incorrect  statement  can  stand.  No  man  can  com- 
plain that  another  has  relied  too  implicitly  on  the  truth  of  what  he 
himself  stated.    Lake  T.  Weber^  42. 

3.  Misrepresentation — Expression  qf  opinion.  The  essential  element 
of  fraud  arising  out  of  a  misrepresentation  is,  that  it  must  be  of  a  fact» 
and  not  the  mere  expression  of  opinion.  Peek)  Phillips  A  Wallaee 
Co.  T.  Stevensoii)  536. 

4.  Sale — Consignment  for  sale — Fraudulent  possession — Question  for 
jury.    €(attle  Bros.  r.  Krempy  514. 

5.  Sale — Rule  qf  Smith  v.  Smith  to  he  strictly  construed.  The  inten- 
tion of  the  buyer  of  goods  at  the  time  of  purchasing  them,  not  to  pay, 
together  with  his  insoWency  at  the  time  and  his  knowledge  of  it  not 
communicated  to  the  seller,  will  not  avoid  the  sale  after  the  delivery 
of  the  property  sold.  This  is  the  rule  of  Smith  ▼.  Smith,  21  Pa.  3d7, 
recently  recognized  and  followed  as  authority  in  Pennsylyania,  but  it 
is  a  rule  which  is  declared  to  be  not  in  harmony  with  that  of  a  major- 
ity of  other  states,  nor  with  sound  policy  or  the  principles  of  business 
honesty,  and  the  courts  will  construe  it  strictly  and  will  not  go  a  step 
beyond  it.  Any  additional  circumstance  which  reasonably  involyes 
a  false  representation  will  be  held  sufficient  to  take  the  case  out  of 
the  rule. 

Wliere,  in  addition  to  insolvency  known  to  the  buyer  and  undis- 
closed to  the  seller,  the  buyer,  before  the  delivery  of  the  goods  con- 
fesses a  judgment  enforceable  at  once,  knowing  that  the  effect  of  its 
enforcement  will  be  to  disable  him  from  continuing  his  business,  and 
it  is  so  used,  these  additional  circumstances  are  sufficient  to  take  the 
case  out  of  the  strict  rule  of  Smith  v.  Smith.  Claster  Bros.  r. 
Kati,  487. 

GRANT. 

1.  Restrictive  application  qf  the  grant  not  favored.  A  construction 
of  a  grant  which  would  restrict  the  grantee  to  the  specific  use  for 
which  the  grant  is  first  applied  is  not  favored,  and  will  not  be  adopted 
unless  the  language  of  the  grant  immistakably  indicates  an  intention 
to  restrict  the  use.    Daris  r.  Hamilton^  562. 

2.  Waters  and  watercourse — Grant  not  restricted  to  primary  uses. 
Davis  T.  Hamilton,  562. 

HUSBAND  AND  WIFE. 

1.  Wife  claiming  against  creditors — Burden  and  quality  qf  proof. 
The  property  of  a  husband  is  not  to  be  covered  up  or  withheld  from 
creditors  upon  equivocal  suspicions  or  doubtful  evidence  of  a  wife^s 
right  to  it.  The  family  relation  is  such,  and  the  probabilities  of  own- 
ership so  great  on  part  of  the  husband,  that  a  plain  and  satisfactory 


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676  INDEX. 

HUSBAND  AND  WIFE— conttnued. 

case  should  be  made  out  before  the  wife  can  be  permitted  to  hold 
property  against  honest  creditors.  The  burden  of  proof  is  upon  the 
wife  claiming  under  such  circumstances  and  such  proof  must  be  clear 
and  satisfactory.    Taylor  t.  Paul,  496 

ILLEGAL  ARREST. 

1.  Liability  qf  justice  cf  peace^Act  of  March  21,  1772.  Boss  T. 
Hadson,  552. 

INSURANCE. 

1.  Clerical  error  in  description^Queation  for  jury,  Shanahan  T» 
Ins.  Co*9  65. 

2.  D^ectite  proqfoflosa — Notice — Duty  of  the  company — Waiver  by 
estoppel.  If  the  insured,  in  good  faith,  and  within  the  stipulated  time, 
does  what  he  plainly  intends  as  a  compliance  with  the  requirements 
of  his  policy,  good  faith  equally  requires  that  the  company  shall 
promptly  notify  him  of  their  objections,  so  as  to  give  him  the  oppor- 
tunity to  obviate  them;  and  mere  silence  may  so  mislead  him  to  his 
disadvantage  to  suppose  the  company  satisfied,  as  to  be  of  itself  suffi- 
cient evidence  of  waiver  by  estoppel  Taengling  A  Hons  T«  JenningSy 
614. 

3.  Error  in  policy — Act  cf  agent — Laches,  An  erroneous  description 
having  been  inserted  in  a  policy  by  the  act  of  the  agent  of  the  insur- 
ance company,  the  defendant  cannot  be  released  from  its  contract 
because  the  plaintiff,  acting  in  good  faith,  accepted  without  examina- 
tion the  policy  written  by  its  agent    Shanahan  t.  Ins.  Co«9  65. 

4.  Foreign  companies — Lex  loci — Prohibitive  Pennsylvania  statutes. 
The  issuance  and  deliverance  of  insurance  policies  in  Massachusetts 
makes  the  contract  a  Massachusetts  contract  to  be  governed  by  the 
laws  of  that  state  free  from  the  taint  of  illegality  by  reason  of  the 
existence  of  penal  or  prohibitive  legislation  in  Pennsylvania.  Com.  v. 
Biddle,  139  Pa.  605,  followed. 

Policies  for  property  in  Pennsylvania  were  issued  in  Massachusetts. 
These  policies  were  canceled  and  the  insured  received  a  return  pre- 
mium. Heldj  in  a  suit  to  recover  assessments  imposed  for  losses,  etc. , 
incurred  by  plaintiff  company  while  the  policies  were  in  force,  that 
an  affidavit  was  insufficient  which  set  up  as  a  defense  that  **  the  plain- 
tiff being  a  foreign  company  had  not  prior  to  placing  the  insurance 
complied  with  tlie  acts  of  assembly  of  Pennsylvania  regulating  the 
way  in  which  foreign  insurance  companies  should  undertake  the  in- 
surance of  property  in  Pennsylvania.    Ins.  Co«  T«  Storage  Co.,  288. 

5.  Mutual  aid  society — Construction  of  policy — Belay  in  payment — 
Province  qf  court,    Phillips  T.  Aid  Sooiety,  157. 

6.  Mutual  insurance — Cancelation  of  agreement — Assessments — Pre- 
mium note.  A  policy  of  insurance  and  the  premium  note  given  there- 
for constitute  a  contract  which  the  parties  may  rescind  by  mutual 
agreement,  and  when  such  agreement  is  made  in  good  faith  the  par- 
ties are  as  much  bound  as  if  the  policy  had  been  marked  canceled  and 
the  premium  note  given  up. 

If  a  policy  be  in  fact  canceled,  there  can  be  no  recovery  of 


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INDEX.  677 

INSIIRANCE— continued. 

ments  on  a  premium  note  given  by  the  insnied  unless  a  liability  ex- 
isted for  losses  sustained  by  the  company  prior  to  such  cancelation. 
Matten  t.  Liehtenwaliiery  575. 

ISSUE  D.  V.  N. 

1.  Will— When  to  be  awarded  or  not  An  issue  d.  y.  n.  is  of  right 
when  the  fact  arising  and  in  dispute  is  substantiye  and  material  to 
the  inquiry,  unless  the  whole  evidence  of  the  fact  alleged  be  so  doubt- 
ful and  unsatisfactory  that  a  verdict  against  the  validity  of  the  will 
should  not  be  permitted  to  stand.    Beyer's  Est.^  401. 

JUDICIAL  SALE. 

1.  Partition — Divestiture  cf  liens.  Where  proceedings  in  partition 
result  in  a  judicial  sale  of  the  land,  the  lien  which  had  been  created 
by  one  of  the  tenants  is  divested  from  the  land  but  continues  on  the 
money  raised  by  the  sale.    Com*  T*  Bodgers,  284. 

JUDGMENT. 

1.  Appeals — Certiorari — Review  qf  order  striking  offJudgmenU  Gil- 
more  k  Duffy  t.  Dnoleayy,  603. 

2.  Appeals — Discretion  qf  cowrt — Refusal  to  open  Judgment,  Mc- 
Keone  t.  Chrlstmaiiy  569. 

8.  Appeals — Practice^  8,  C, — Discretion  of  court — Opening  Judgment. 
Leader  t.  Dnnlapy  248. 

4.  Execution — Funds  in  sherifTs  hands — Standing  qf  Junior  Judgment 
creditor.    Tonng,  Smyth,  Field  A  Co.  t.  Levy,  23. 

5.  Judgments  as  set  off.  Judgments  are  set  off  against  each  other 
by  the  inherent  powers  of  the  court  immemorially  exercised.  Skin- 
ner T.  Chase,  279. 

6.  Landlord  and  tenant — Lease  signed  by  tenant  only — Statute  qf 
frauds— Opening  Judgment.    Schnlts  T.  Barloek*  578. 

7.  Mistaken  name — Service  of  process.  If  a  party  is  sued  by  a  wrong 
or  fictitious  name,  or  by  some  designation  which  includes  a  part  only 
of  his  name,  and  is  personally  served  with  process,  and  fails  to  urge 
the  misnomer  in  any  way,  judgment  entered  against  him  by  such  mis- 
taken, fictitious  or  imperfect  name,  is  valid  and  enforceable. 

Catharine  M.  Hunsberger  was  sued  as  Mrs.  James  B.  Hunsperger* 
was  served  with  process  and  allowed  judgment  to  be  entered  against 
her  by  default  under  that  name.  Held,  that  Catliarine  M.  Hunsperger 
is  not  in  position  to  urge  this  misnomer,  or  use  of  a  fictitious  name  as 
constituting  a  defect  vitiating  the  judgment  as  between  herself  and 
the  holder  of  it.    Althonse  T.  Hansberger,  160. 

8.  Motion  to  strike  off^Laches — Review,  Where  the  defendant  took 
no  appeal  from  a  judgment  and  failed  to  proceed  with  a  rule  to  strike 
off  same  for  some  eighteen  months,  such  laches  is  manifested  that  the 
appellate  court  will  not  disturb  the  action  of  the  court  below  in  dis- 
charging a  second  rule  to  strike  off  the  judgment  and  stay  proceed- 
ings, taken  after  execution  had  proceeded  to  a  venditione  expoBhA, 
Keenan  t.  <{aigg,  58. 


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678  INDEX. 

JUDGMENT— continued. 

9.  Practice,  Superior  Court — Appeal — Brfuaal  to  open  c^fter  term  ex- 
pired.   Abele»  t.  PoweD,  123. 

10.  Restricted  lien — General  verdict  on  act  fa,  to  revive.  A  judg- 
ment on  single  bill  specifically  restricted  to  certain  property  desig- 
nated to  the  exclusion  of  all  other  estate,  real  and  personal,  is  not  ex- 
tended by  a  general  verdict  for  the  plaintiff  on  a  scire  facias  to  revive, 
and  judgment  will  be  entered  thereon  so  as  to  conform  to  the  original 
proviso  in  the  bill  single.    Carson  T.  Ford,  17. 

11.  Revival — Brfense  on  original  merits.  In  an  action  to  revive  a 
judgment,  it  appearing  that  defendant  had  been  duly  served  with 
process  in  the  original  proceedings  which  had  been  prosecuted  to 
judgment,  which  had  never  been  appealed  from,  defendant  must  be 
understood  to  have  waived  her  right  to  question  its  validity.  Aithonse 
v.  Hansberger,  163. 

12.  Set-off — Assignment  qf  Judgment  —  Discretion  as  to  conflicting 
equities.    Skinner  y.  Chase,  270. 

13.  Standing  of  Judgment  creditor  to  contest  prior  execution.  Belber 
T,  Belber,  861. 

14.  Transcript  Jiled  pending  time  cf  appeal — Practice^  C.  P.  Belber 
T.  Belber,  361. 

15.  When  application  to  set  aside  maintained.  An  application  to 
vacate  and  set  aside  a  judgment  can  be  maintained  only  on  the  ground 
of  defects  apparent  on  the  face  of  the  record.  Aithonse  r*  Hnns- 
berger,  160. 

JURISDICTION,  C.  P. 

1.  Sick  hen^t  association  —  Claim  of  members  —  Proper  tribunal. 
Myers  t.  Fritohman,  580. 

JURISDICTION,  Q.  S. 

1.  Criminal  law — Conspiracy.    Com*  T*  Spencer,  256. 

2.  Transfer  cf  license — Payment  cf  money  into  court — Appeals.  Trans- 
fer of  License,  ISO. 

JUSTICE  OF  PEACE. 

1.  Illegal  arrest — Liability  of  Justice  of  peace — Act  (f  March  21, 1772. 
A  justice  of  the  peace  who  illegally  orders  or  causes  the  arrest  of  a 
citizen  may  be  made  liable  in  an  action  for  damages;  but  to  be  so  held 
liable  the  statute  requires  the  preliminary  notice  to  be  given,  so  that 
proper  amends  may  be  made  and  expensive  litigation  avoided. 

Wherever  a  magistrate  has  acted  honestly,  although  mistakenly, 
where  he  supposed  he  was  in  the  execution  of  his  duty,  although  he 
had  no  authority  to  act,  he  is  entitled  to  the  protection  of  the  Act  of 
March  21,  1772,  1  Smith's  Laws,  364.    Ross  y.  Hudson,  552. 

2.  Jurisdiction,  J.  P. — Reduction  of  municipal  claim  by  remission  qf 
the  penalty.  A  mimicipality  having  cause  of  action  to  recover  a  muni- 
cipal assessment  and  penalty  thereon,  may  throw  off  the  penalty  and 
thus  bring  the  claim  within  the  jurisdiction  of  an  alderman.  Chester 
T.  McGeoghegan,  358. 

3.  Practice,  C.  P. — Proceedings  under  act  of  1810 — Record  of  Justice. 
Chiffin  T.  D&Tis^  481. 


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INDEX.  679 

LACHES. 

1.  Executiorir—Debtor's  exemption.    Trust  Co.  Y.  Oonchenaner,  209. 

2.  Insurance — Error  in  policy — Act  qf  agent  Shanahan  T.  Ins. 
Co.,  65. 

3.  Judgments-Motion  to  strike  off— Equity,  Where  the  record  shows 
that  defendant,  being  serred  with  process  in  a  suit  before  an  alderman, 
failed  to  defend  the  same  but  suffered  judgment  by  default,  and  neg- 
lected to  take  an  appeal  or  certiorari  by  one  or  the  other  of  which 
every  right  she  subsequently  alleged,  in  a  petition  to  strike  off  the 
judgment,  might  have  been  adequately  protected,  the  court  will  not 
exercise  its  equitable  power  to  stay  execution  or  interfere  with  the 
judgment.    Althonse  T.  Hansberger,  160. 

4.  Judgment — Motion  to  strike  off—Reziew.     Keenan  y.  (^nlgg,  58. 

5.  Widow* s  exemption — Waiver  cf.  There  can  be  no  fault  or  laches 
committed  by  a  widow  as  to  claiming  her  exemption  until  she  has 
knowledge  of  her  rights,  and  there  is  a  proper  officer  from  whom  she 
can  claim  it  or  until  she  can  compel  the  appointment  of  such  an  offi- 
cer. An  ignorant,  aged  and  illiterate  widow  had  no  knowledge  of  her 
right  to  the  exemption  until  several  years  after  his  death.  Her  claim 
for  exemption  was  presented  to  the  administrator  eighteen  days  after 
letters  issued.    JETeZd,  that  there  was  no  laches.    Potter's  Est.,  627. 

LANDLORD  AND  TENANT. 

1.  Actions — Illegal  distress — Proper  remedy  is  replevin.  Replevin  is 
the  proper  remedy  to  be  used  by  a  person  whose  goods  have  been 
improperly  distrained  upon  by  a  landlord  for  rent  due  by  a  tenant, 
and  where  such  person  receives  notice  of  the  distress  and  the  landlord 
I>ostpones  the  sale  to  give  him  an  opportunity  to  replevin  which  he 
refuses  to  do,  he  cannot,  after  sale,  bring  trespass  against  the  landlord 
for  the  value  of  the  goods,  nor  replevin  against  a  purchaser  of  the  same 
at  the  constable's  sale.    Bogert  v.  Batterton,  468. 

2.  Apportionment  of  rent  qf  land  diminished  by  sale.  Where  by  the 
terms  of  a  lease  the  landlord  reserved  the  privilege  of  selling  off  por- 
tions of  the  land,  the  rent  to  be  apportioned  accordingly,  in  the  ab- 
sence of  an  agreement  between  the  parties  as  to  the  precise  amount  of 
the  reduction  to  be  made  after  each  sale,  the  tenants  remain  liable  for 
the  payment  of  such  proportion  of  the  whole  rent  as  the  rental  value 
of  the  parts  unsold  bear  to  the  whole.    Doyle  T.  Longstretli,  475. 

3.  Evidence — Degree  of  proof  to  establish  a  surrender.  Bohboek  T. 
McCargo,  134. 

4.  Exercise  qf  option  for  additional  term — Tenancy  from  year  to  year, 
A  holding  over  by  a  tenant  who  has  an  option  for  an  additional  term 
is  notice  to  his  landlord  of  his  election  to  exercise  his  privilege;  the 
actual  continuance  of  such  occupation  is  the  best  and  most  conclusive 
evidence  of  the  intention  to  continue. 

A  lease  was  for  a  year  with  an  option  of  two  years^  renewal,  and  a 
provision  for  tenancy  from  year  to  year  on  three  months^  written 
notice.  The  tenant  held  over  the  first  year,  and  toward  the  end  of  the 
second  year  gave  three  months'  written  notice  of  intention  to  termi- 
nate the  lease.  Held^  that  the  option  having  been  exercised  the  term 
became  certain  in  duration,  and  that  a  tenancy  from  year  to  year  would 


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680  INDEX. 

LANDLORD  AND  TENANT— cowiinued. 

not  arise  before  the  expiration  of  the  term.    Upper  T.  Boarly  Craw- 
ford &  Co.,  452. 

6.  Landlord's  breach  cf  contract — Mecmire  qf  damages — Practice^ 
C.  P,-^Affldavit  cf  d^ense-^Breach  qf  landlords  covenant,  Jaekson 
T.  Farrell,  81. 

6.  Landlords  duty  as  to  leasing  abandoned  premises,  A  landlord  is 
not  bound  in  relief  of  his  tenant  to  lease  abandoned  premises  to  any  one 
who  may  apply;  and  he  clearly  is  not  bound  to  consider  a  proposition 
of  a  third  person  to  rent  them  prior  to  and  in  anticipation  of,  the  ten- 
ant's removal.  Any  efforts  which  he  may  make  are  in  the  interest  and 
for  the  benefit  of  the  tenant  and  do  not  of  themselves,  discharge  the 
tenant  from  his  covenant  to  pay  rent.  Lipper  y*  Boaye,  Crawford 
A  Co.,  452. 

7.  Lease  signed  by  tenant  only — Statute  qf  frauds — Opening  Judgment, 
A  lease  signed  only  by  the  lessee  is  not  in  contravention  of  the  statute 
of  frauds,  one  of  the  purposes  of  which  was  for  the  protection  of  land 
owners  and  was  intended  to  g^uard  them  against  prejudice  in  the  proof 
of  parol  contracts;  hence  the  requirements  of  the  statute  are  answered 
by  a  memorandum  in  writing  signed  by  the  party  to  be  charged  there- 
with. 

A  lease  signed  and  executed  by  the  tenant  and  accepted  by  the  land- 
lord sustains  a  judgment  in  an  amicable  action  in  ejectment  entered 
under  the  agreements  of  the  lease,  and  there  is  no  abuse  of  discretion 
in  the  refusal  of  the  court  below  to  open  the  judgment.  Schultl  y* 
Burloek,  573. 

8.  Leased  setolng  machines  not  exempt  from  distress.  A  sewing 
machine  leased  to  the  tenant  of  a  dwelling  house  is  not  exempt  from 
distress  for  rent  under  the  Act  of  March  4,  1870,  P.  L.  35.  Bogert  y* 
Batterton,  468. 

9.  Practice,  C,  P, — Sufficiency  cf  cffidatoit — Sheriff's  sale  qf  leased 
property,    Bldg*  Assn.  y.  Wampole,  238. 

10.  Property  on  premises  liable  to  distress — Exemption  not  claimable 
by  a  stranger.  Property  of  a  stranger  found  upon  leased  premises  is 
liable  to  distress  for  rent  in  arrears.  The  claim  for  exemption  is  a 
personal  privilege  and  must  be  claimed  by  the  person  entitled  thereto. 
It  cannot  be  assigned  to  or  claimed  by  a  stranger.  Bogert  y*  Batter- 
ton,  468. 

11.  Surrender  qf  lease — Burden  qf  proof  a«  to  acceptance,  A  surren- 
der of  demised  premises  by  the  tenant,  in  order  to  be  effectual,  so  as  to 
release  him  from  liability  for  the  rent,  must  be  accepted  by  the  lessor 
and  the  burden  of  proof  is  on  the  lessee.  Lipper  y*  Boay$,  Crawford 
A  Co.,  452. 

12.  Way  going  crop — Sale  under  Jl,  fa,  and  vend,  ex,  qf  landlords 
interest.  Where  a  crop  of  winter  grain  sown  by  the  way  going  tenant 
is,  by  virtue  of  a  local  custom,  the  property  of  the  landlord,  a  sale 
under  a  fi.  fa.  of  the  landlord's  interest  in  the  growing  grain  before 
actual  severance  does  not  of  itself  work  such  an  implied  severance  as 
will  pass  the  landlord's  title  to  the  purchaser  under  the  fi.  fa.,  as 
against  a  subsequent  purchaser  of  the  land,  at  sheriff's  sale,  who 
obtains  a  deed  before  the  tenant's  lease  expires.    Loose  y*  Scharf f ,  153. 


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INDEX.  681 

LANDLORD  AND  TENANT— con«ntied. 

13.  Way  going  crop — Trwer  and  eonoersion — Cause  of  acUon,  Mc- 
Kay T.  Pearsoiiy  520. 

LEGITIMACY. 

1.  Evidence — Cor^icting  presumptions  of  marriage  and  legitimacy — 
Policy  of  law — Legitimacy  of  children — Burden  and  quality  of  proof. 
Wile's  Est,,  436. 

LEX  LOCI. 

1.  Contract — Conflict  of  laws — Constitutional  law — Insurance — For- 
eign companies — Prohibitive  Pennsylvania  statutes,  Ins.  Co*  T«  Stor- 
age Co.,  288. 

2.  Lex  fori — Promissory  note — Irregular  indorsement.  The  right  to 
introduce  proof  dehors  the  instrument  for  the  purpose  of  showing 
what  in  fact  the  contract  was,  is  an  essential  part  of  the  contract 
itself,  and  is  not  a  mere  incident  to  the  remedy.  Such  right  being 
secured  to  a  New  Jersey  contract  the  lex  loci  goyems  and  not  the  lex 
fori.    Cooke  t.  Addicks,  115. 

UBEL. 

1.  Evidence — When  record  cf  a  crime  charged  inadmissible.  Where 
the  libel  charged  plaintiff  as  indicted  for  a  criminal  offense,  eyidence 
tending  to  show  that  plaintiff  was  on  the  bail  of  the  real  offender  is 
properly  excluded,  it  not  being  pretended  that  the  publication  was 
based  upon  knowledge  of  the  facts  as  shown  by  the  rejected  testi- 
mony. The  excluded  record  would  have  shown  conclusiyely  that 
eyery  material  fact  stated  in  the  publication  was  untrue.  Collins  T* 
News  Co.,  330. 

2.  Measure  of  damages.  Where  there  is  no  eyidence  that  defendant 
in  a  libel  suit  had  actual  malice  in  publishing  the  article  complained 
of  by  the  plaintiff,  compensation  for  the  injury  done  to  the  plaintiff ^s 
character  is  the  only  legal  measure  of  damages  for  which  recoyery 
can  be  had.    Collins' T.  News  Co.,  330. 

3.  Privileged  communication — Burden  of  procf,  A  communication 
to  be  priyileged,  must  be  made  on  a  proper  occasion,  from  a  proper 
motiye,  and  be  based  upon  reasonable  or  probable  cause.  The  immu- 
nity of  a  priyileged  communication  is  an  exception,  and  he  who  relies 
upon  an  exception  must  proye  all  the  facts  necessary  to  bring  him- 
self within  it. 

It  is  not  a  priyileged  communication  when  a  newspaper  publishes 
that  plaintiff  **was  arrested  on  a  bailpiece,^^  when  an  examination 
of  the  record  would  haye  disclosed  that  it  was  plaintiff  who,  as  bail, 
had  surrendered  the  real  offender.    Collins  y*  News  Co*,  330. 

4.  Probable  cause — Failure  to  examine  record.  Probable  cause  is 
not  shown  where  a  newspaper  publishes  a  libelous  charge  against  a 
citizen  on  information  from  the  attorney  in  a  criminal  case,  where 
such  information  made  further  information  necessary  to  warrant  a 
cautious  man  in  belieying  that  the  plaintiff  was  guilty  of  any  offense. 

A  cursory  and  insufficient  examination  of  the  record  will  not  ex- 
empt from  the  charge  of  carelessness  when  a  more  particular  inyes- 


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682  INDEX. 

LIBEL — continued. 

tigation  would  have  elicited  the  whole  truth;  still  more  is  defendutt 
responsible  if  he  neglects  to  examine  an  aTailable  record  choosing 
rather  to  remain  in  ignorance  when  he  might  have  obtained  fall  in- 
formation.   Collins  T*  News  Oo«,  330. 

LIEN. 

1.  Judgment — Restricted  lien — Cfeneral  verdict  on  sci.  fa.  to  revive. 
Carson  y.  Ford,  17. 

2.  Partition— Divestiture  of  liens  by  Judicial  sale.  Com.  T«  Bod- 
gers9  284. 

3.  Widovo'e  exemption — I^ect  of  liens  existing  against  decedent  and 
widow.    Potter's  Est,  633. 

LIFE  ESTATE. 

1.  Will — Bequest  of  interest  a  bequest  qf  the  fund.  A  bequest  of 
the  interest  of  a  fund,  without  limitation  as  to  time,  is  a  bequest  of 
the  fund  itself,  unless  there  is  something  to  show  a  different  inten- 
tion. 

In  cases  of  doubt  or  indefiniteness  the  fact  that  there  is  no  bequest 
or  limitation  oyer  is  usually  held  decisiye  in  fayor  of  the  yiew  that 
the  first  taker  is  entitled  to  an  absolute  estate  in  the  fund. 

The  bequest  was  of  interest  on  a  certain  bond  to  Leah  and  Bachel 
during  their  liyes,  and  in  case  of  death  of  either  of  them  the  suryiyor 
to  haye  all  it  draws  for  life.  Held,  on  the  death  of  the  suryiyor  the 
principal  was  payable  to  her  administrators  and  not  to  the  next  of 
khi  of  the  decedent    Fell's  Est,  192. 

LIQUOR  LAW. 

1.  Abtiee  cf  discretion — Review  by  appellate  court.  The  Act  of 
June  0,  1891,  .P.  L.  257,  excludes  the  determination  of  the  question  of 
the  necessity  of  a  brewer^s  or  distiller^s  license  from  the  requirements 
to  entitle  a  license,  and  where  the  license  court  assigns  the  absence  of 
necessity  for  a  distiller^s  license  as  a  reason  for  refusing  the  license, 
he  not  only  goes  beyond  the  requirements  of  the  statute  in  quest  of 
a  reason  for  refusal  but  rests  his  decision  on  a  reason  which  the 
statute  expressly  excludes  from  consideration.  Such  a  ruling  there- 
fore is  a  marked  instance  of  the  exercise  of  an  arbitrary  discretion, 
and  presents  such  abuse  of  discretion  as  requires  correction  by  the 
appellate  court.    Distiller's  License,  87. 

2.  Appeals — Standing  of  remonstrant  to  appeal.  The  right  of  ap- 
peal belongs  to  every  person  in  a  legal  sense  aggrieved  and  whoever 
stands  in  a  cause  as  the  legal  representative  of  interests  which  may  be 
injuriously  affected  by  the  decree  made  in  a  license  case  is,  within  the 
meaning  of  the  law,  aggrieved.  One  who  is  properly  before  the  lower 
court  as  a  remonstrant  and  who  is  heard  by  that  tribimal,  is  a  proper 
appellant.    Wacker's  License,  323. 

3.  Intervention  of  volunteers  as  appellants — Record.  Where  the  rec- 
ord fails  to  show  that,  during  the  pendency  of  proceedings  for  the 
granting  of  a  liquor  license  by  the  court  below^  any  person  was  present, 
either  in  person  or  by  counsel,  in  accordance  with  the  third  section  of 


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INDEX.  683 

LIQUOR  LAW— conWnued. 

the  act  of  May  13,  1887,  no  right  of  appeal  is  lodged,  either  by  the 
provisions  of  the  said  act  or  otherwise  in  a  person  who  voluntarily 
intervenes  subsequently  for  the  purpose  of  appealling.  Schellenberg's 
License,  26. 

4.  Judicial  diacretion  not  reviewable^  arbitrary  discretion  ia.  The 
appellate  court  can  inquire  into  nothing  but  the  regularity  of  the  pro- 
ceedings and  the  character  of  the  discretion  exercised  by  the  license 
court.  The  findings  of  fact  and  conclusions  of  judgment  by  which 
the  discretion  of  the  license  judge  is  to  be  regulated,  when  within  the 
field  of  investigation  assigned  to  him  by  law,  are  not  subject  to  review. 

YHien,  however,  the  judge  passes  beyond  this  field  he  quits  the 
sphere  of  judicial  discretion.  The  law  having  fixed  the  standard  by 
which  the  right  of  a  petitioner  for  a  distiller^s  license  is  to  be  judged 
a  discretion  not  regulated  by  this  standard  but  determined  by  tests 
unknown  to  the  law,  is  not  judicial,  but  an  arbitrary  abuse  of  discre- 
tion which  the  appellate  court  should  review.    Distiller's  License,  87. 

5.  Petition  for  a  license  is  to  the  discretion  of  the  court  A  petition 
for  a  license  is  addressed  to  the  judicial  discretion  of  the  license  court, 
a  discretion  resting  on  reasons  to  be  foimd  in  the  line  of  inquiry 
marked  out  by  the  statute  from  which  it  is  derived.  Distiller's 
License,  87. 

6.  Statutory  period  for  acceptance  of  license  cannot  be  extended.  An 
applicant  for  a  liquor  license  has,  under  the  statute,  fifteen  days  within 
which  to  accept  or  refuse  his  license  when  allowed.  This  time  being 
definitely  fixed  by  the  statute  cannot  be  extended  by  the  court. 
Wacker's  License,  323. 

7.  Trawler  of  license — Jurisdiction^  Q.  8, — Payment  of  money  into 
court.  The  court  of  quarter  sessions  has  no  jurisdiction  to  order  the 
payment  into  court  of  the  proceeds  of  a  proposed  sale  of  a  hotel  as  a 
condition  to  the  approval  of  the  transfer  of  the  license,  nor  will  the 
consent  of  all  parties  confer  such  jurisdiction.  Transfer  of  License, 
130. 

MALICIOUS  PROSECUTION. 

1.  Essential  grounds.  The  grounds  on  which  an  action  for  malicious 
prosecution  must  rest  are  well  settled;  it  must  appear  to  have  been 
commenced  maliciously  and  without  probable  cause;  these  essentials 
must  coexist.    Aner  y.  Manser,  618. 

MARRIAGE. 

1.  Evidence — Conflicting  presumption  of  marriage  and  legitimacy — 
Policy  of  law.    Wile's  Est,  435. 

MARRIED  WOMAN. 

1.  Promissory  note — Married  woman  as  guarantor — Affidavit  of 
drfense.  In  a  suit  on  a  promissory  note  signed  jointly  by  husband  and 
wife  an  affidavit,  on  behalf  of  the  wife,  is  sufficient,  which  avers  cover- 
ture, no  indebtedness  to  the  plaintiff,  and  that  the  wife  signed  the 
note  upon  which  suit  is  brought  as  a  guarantor.  Abeles  T*  Pow- 
eU,  123. 


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684  INDEX. 

MASTER  AND  SEBYANT. 

1.  Illegal  discJutrge^Meamre  cf  damages.  When  an  employee  is 
discharged,  without  sufficient  cause,  before  the  end  of  his  term  of 
employment,  he  is  prima  facie  entitled  to  recover  his  wages  for  the 
full  term.  He  may  hold  himself  in  constant  readiness  to  perform  and 
recover  as  for  performance.  Even  if  bound  to  make  reasonable  effort 
to  obtain  other  employment,  the  burden  of  proof  is  on  the  employer 
to  show  that  he  obtained  or  might  have  obtained  it.  Heyer  y.  Piano 
COm<^04. 

2.  Negligence— '(iu£8tU>n  for  Jury,    Hoffner  t*  Pretty  man,  20. 

MECHANIC'S  LIEN. 

1.  Mechanic's  lien  for  alterations^  etc, — Notice — Statutes  construed, 
Clark  T.  Koplin,  462. 

MISREPRESENTATION. 

1.  Contract — Rescission  qf— Stock  subscription — Practice^  C,  P, — 
In9^fficient  <\ffldavit,    Phlla.  Bonne  t.  Downing,  590. 

2.  Misrepresentation  as  defense  to  a  contract,  A  misrepresentation, 
which  possibly  might  not  be  sufficient  ground  of  an  action  for  dam- 
ages, may  be  sufficient  to  entitle  the  party  deceived  to  rescind  the 
contract  or  to  defeat  or  to  defend  pro  tanto,  an  action  upon  it  Lake 
T.  Weber,  42. 

MISTAKE. 

1.  Mistake  of  law — Equity  will  relieve  when  mixed  with  imposition  or 
fraud.  Where  with  a  mistake  in  law,  there  is  found  mixed  up  other 
ingredients  showing  misrepresentations,  stating  that  which  is  not  true 
or  concealing  that  which  ought  to  have  been  made  known,  where  im- 
position, undue  influence,  mental  incapacity  or  surprise  are  estab- 
lished, relief  will  be  afforded  to  one  who  has  thus  been  imposed  upon 
and  induced  to  do  that  which  is  contrary  to  equity  to  maintain.  Pot- 
ter's Est.,  627. 

MORTGAGE. 

1.  Usury — Bight  of  mortgagor  to  drfend  when  he  has  sold  property 
with  an  agreement  so  to  do — Attomey^s  commission— Demand,  Ken- 
nedy T.  <{nigg,  63. 

MUNICIPAL  LAW. 

1.  Evidence— Proqf  qf  ordinance — Burden  qfproqf.  Grier  T.  Home- 
stead Borough,  642. 

2.  Power  to  compromise  claims.  Municipal  officers  may  compromise 
claims  or  remit  them  in  whole  or  in  part  when  delay  and  exi>ense  may 
be  saved  by  so  doing;  they  are  responsible  at  the  proper  time  and 
place  for  so  doing,  but  a  debtor  being  sued  as  such  is  not  in  position 
to  call  them  to  an  account.    Chester  t.  McGeoghegan,  868. 

MUNICIPAL  LIEN. 

1.  Appeals— Practice,  Superior  Court — Amendments,  Phila*  r. 
Christman,  29. 


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INDEX.  685 

NBGUGEKOE. 

1.  Common  carrier — Negligence  in  delivery  cf  goods — C^aention  for 
Jury,    €K>odmaii  y.  Transportation  Co.^  168. 

2.  Contributory  negligence  cf  parent — Question  for  Jury,  A  father 
left  his  little  child  of  two  and  one  half  years  of  age  on  the  front  steps 
of  his  house  facing  a  public  street  where  electric  cars  and  wagons 
were  passing,  while  he  took  a  smaller  child  in  to  its  mother.  There 
was  a  hand  organ  playing  upon  the  opposite  side  of  the  street  and  the 
child  was  enjoined  not  to  leave  the  step.  While  the  father  was  absent 
the  child  had  wandered  upon  the  track  and  had  been  killed.  The 
parents  were  people  in  humble  circumstances  and  had  no  one  else  to 
take  care  of  the  children  but  themselyes.  Held^  that  the  action  of 
the  parent  was  not  such  as  compelled  the  court  to  pronounce  it  to  be 
such  contributory  negligence  on  his  part  as  to  require  the  withdrawal 
of  the  case  from  the  jury.    Karahnta  t*  Traetlon  Co*f  319. 

3.  Duty  of  driver  approaching  crossing — Question  for  jury,  Kleinert 
T.IoeACoalCo.,594. 

4.  Master  and  servant — Questionforjury,   Hoff  ner  T*  Prettyman,  20. 
6.  Question  for  Jury — Street  railways — Duty  qf  motorman.    Kara- 
hnta T.  Traction  Co.,  310. 

6.  Street  railways — **  Stop,  look  and  listen  " — Questionforjury,  Safe 
Deposit  Ck>«  T«  Railway  Co.^  204. 

NBW  TRIAL. 

1.  Appeals— Application  for  new  trial — After-discovered  testimony 
—Discretion  of  court,    McNeile  T.  Cridland^  428. 

2.  Criminal  law — B^fusal  of  new  trial — Adequacy  of  charge.  The 
refusal  to  grant  a  new  trial  in  a  criminal  case  is  not  error  where,  on 
the  whole  eyidence,  if  believed,  no  reasonable  doubt  is  raised  as  to 
the  defendant's  guilt  and  where  the  trial  was  conducted  with  great 
care,  the  attention  of  the  jury  directed  to  the  measure  of  proof  neces- 
sary and  to  the  presumption  of  innocence,  and  where  the  evidence 
was  submitted  in  a  clear  and  impartial  manner.    Com.  T.  Mitchell^  369. 

NOTICE. 

1.  Assignment  qf  cJiose—Subject  to  d^ense.    Skinner  t.  Cliase,  279. 

2.  Contract — Drfault  under  rules  cf  the  exchange — Notice  construed, 
9m  k  Fisher  t.  O^Ronrke,  605. 

3.  Insurance— Defective  proof  qf  loss — Duty  qfthe  company — Waiver 
by  estoppel.    Tnengling  A  Sons  t.  Jennings^  614. 

4.  Mechanic's  lien  for  alter ations,  etc, — Statutes  construed,  Clark 
T.  Koplin,  462. 

PARTIES. 

1.  Practice,  C.  P.— Parties  to  record,  Tonng,  Smyth,  Field  ft  Co. 
T.  Levy,  23. 

PARTITION. 

1.  Distribution  of  proceeds — Lien  creditors  cf  heir — Trustee'' s  respon- 
sibility. Where  the  orphans'  court  in  distribution  of  the  proceeds  of 
the  sale  of  land  by  a  trustee  in  partition  proceedings,  awards  to  an 


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686  INDEX. 

PARTITION— conttnucd. 

heir  only  what  would  remain  of  her  share  of  the  fund  after  payment 
of  the  record  liens  against  her  interest  the  trustee  having  given  bond 
to  appropriate  the  proceeds  of  such  real  estate  according  to  the  trust 
and  decree  of  the  court,  the  trustee  cannot  ignore  a  lien  creditor  of 
the  heir  and  settle  with  the  latter  who  has  no  authority  to  release  the 
trustee  from  his  duty  to  pay  such  creditor  under  the  decree  of  the 
court    Com.  y.  Bodgers,  284. 

2.  Judicial  sale — Divestiture  cf  liens.  Where  proceedings  in  parti- 
tion result  in  a  judicial  sale  of  the  land,  the  lien  which  had  been 
created  by  one  of  the  tenants  is  divested  from  the  land  but  continues 
on  the  money  raised  by  the  sale.    Com.  T«  Bodgers^  284. 

3.  Sale  by  trustee — Duty  of  trustee  to  take  searches  brfore  distribution. 
A  trustee  who  sold  real  estate  under  a  decree  in  partition,  and  settled 
with  one  of  the  heirs  without  taking  out  searches  for  liens  of  record, 
is  liable  to  a  mortgagee  whose  mortgage  was  discharged  by  the  sale. 
Com.  T.  Bodgers,  284. 

PARTNERSHIP. 

1.  Equity  qf  partners  and  creditors^ Itffect  cf  death  or  trantfer.  The 
equity  of  creditors  must  be  worked  out  through  the  medium  of  that 
of  the  partners. 

In  the  absence  of  an  agreement  a  legal  dissolution  is  effected  by 
death  of  a  partner  or  the  transfer  of  a  partnership  interest.  Gwinn 
T.  Lee,  646. 

2.  Partner^ s  authority  to  bind  his  copartner — Estoppel.  A  property 
which  had  been  leased  to  copartners  was  reduced  in  extent  by  sales, 
by  the  landlord  imder  agreement  with  the  tenants,  of  portions  of  the 
demised  farm.  One  of  the  cotenants  and  partners  settled  and  paid 
the  rent  for  several  years  upon  the  basis  of  an  annual  reduction  of 
$50.00  on  account  of  land  sold.  The  copartnership  was  dissolved,  the 
other  partner  continuing  as  tenant.  Heldf  in  an  action  of  replevin  by 
the  tenant  that  the  former  partner  in  making  the  settlement  or  appor- 
tionment of  rent  acted  within  the  apparent  scope  of  his  authority  and, 
in  the  absence  of  fraud  or  collusion,  the  plaintiff  could  not  be  permitted 
to  allege,  as  against  the  landlord,  that  the  abatement  claimed  and 
allowed  was  too  small,  and  therefore,  that  over  payments  were  made 
which  should  be  applied  upon  the  rent  for  the  years  of  his  sole  ten- 
ancy.   Doyle  T.  Longstreth,  475. 

8.  Tranter  cf  shares— Liability  for  pre-existing  debts.  The  transfer 
of  a  partner^s  interest  or  shares  in  an  unincorporated  banking  asso- 
ciation and  a  continuance  of  the  business  without  any  separation  of 
past  from  future  liabilities,  or  discrimination  between  past  and  future 
profits  will  not  make  the  new  concern  liable  for  a  pre-existing  indebt- 
ness  of  the  bank.  The  creditors  of  the  former  firm  or  firms  which 
may  have  constituted  the  banking  association  have  no  claim  attaching 
to  the  partnership  effects  which  have  passed  to  the  succeeding  part- 
nership; the  latter  firm  may  sell  unhampered  by  any  lien  or  trust  in 
favor  of  the  creditors  of  the  former  firm  or  assign  for  the  benefit  of 
creditors,  and  in  that  case  the  only  persons  entitled  to  participate  in 
the  distribution  are  the  creditors  of  the  firm  to  which  the  property 
belonged  at  the  time  of  the  assignment.    Gwinn  v*  liee,  646. 


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INDEX.  687 

PARTY  WALI^S. 

1.  Liability  qf  next  builder— Act  of  1721.  Liability  arises  for  use  of 
a  party  wall  under  the  Act  of  February  24,  1721,  2  Sm.  L.  124,  where 
ownership  exists  in  the  plaintiff  and  where  the  defendant,  the  next 
builder,  supported  the  roof  of  his  building  on  timbers,  the  ends  of 
which  rest  in  holes  in  said  party  walls.    Trast  Co.  r.  Uaf  ner,  48. 

PERJURY,  see  Criminal  Law. 

PLEADING. 

1.  Criminal  law — Frai^ulent  removal  of  goods — Act  of  1885.  The 
substantive  offense  aimed  at  by  the  Act  of  June  23,  1885,  P.  L.  136,  is 
the  fraudulent  removal  of  a  debtor^s  goods  by  placing  them  beyond 
the  reach  of  creditors.  The  reference  in  the  act  to  methods  of  re- 
moval which  might  more  particularly  affect  debts  of  a  certain  status 
was  not  designed  to  exclude  the  claims  of  other  creditors  from  its 
provisions.  The  act  was  intended  to  embrace  all  fraudulent  methods 
of  removal  of  property  beyond  the  reach  of  creditors.  The  inclusion 
of  several  methods  or  phases  of  removal  in  one  count  is  not  forbidden 
by  the  principles  of  criminal  pleading,  although  the  removal  might 
have  been  accomplished  by  one  or  more  of  these,  to  the  exclusion  of 
others.    Com.  T.  Lewis,  610. 

2.  Practtce,  C,  P,— Effect  of  failure  to  demur.    Coble  T.  Zook,  597. 
8.  Practice^  O.  C. — Equity — Effect  of  replication — Hearing  on  bill, 

answer  and  replication.  Proceedings  in  the  orphans^  court  must  have 
the  substance  of  equitable  form  if  not  its  technical  nicety.  The  proper 
mode  of  proceedings  is  by  petition,  answer  and  replication,  in  which 
the  substantial  requisites  making  out  a  case  should  appear.  A  repli- 
cation in  equity  is  the  plaintiff^s  answer  or  reply  to  defendant's  plea 
or  answer.  If  it  be  a  general  denial  of  the  truth  thereof,  matter  al- 
leged in  the  answer  must  be  proved.  If  it  confines  the  denial  to  aver- 
ring that  the  answer  was  untrue  in  certain  particulars,  but  omits  to 
deny  or  demand  proof  of  material  facts  set  out  in  the  answer,  an 
agreement  that  the  case  be  disposed  of  on  petition,  answer  and  repli- 
cation warrants  the  court  in  treating  relevant  facts  averred  in  the 
answer  and  not  denied  in  the  replication  as  admitted.  Worthingion's 
Est.,  484. 

POLICY  OF  THE  LAW. 

1.  Contracts  with  the  aged — Scrutiny  and  policy  of  law.  Potter's 
Est,  627. 

2.  Evidence — Conflicting  presumptions  of  marriage  and  legitimacy — 
Legitimacy  qf  children — Burden  and  quality  cf  proqf.  Wile's  Est., 
435. 

POSSESSION. 

1.  What  constitutes  possession — Trespass  for  trying  title.  A  mere 
discontinuance  of  actual  occupancy  of  town  lots,  without  an  intention 
to  abandon,  does  not  put  the  true  owner  out  of  legal  possession.  To 
hold  possession  of  a  town  lot  once  occupied,  it  is  not  necessarily  re- 
quired that  the  owner  should  build  on  it  or  even  fence  it.    When 


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688  mDRX. 

POSSESSION—coneinued. 

there  is  no  actual  possession  in  another,  the  owner  is  to  be  deemed  in 
actual  possession,  and  trespass  will  lie  against  a  wrongdoer,  it  is  the 
close  of  him  who  has  the  right    Smacker  t*  B.  B.  Co.^  521. 

PRACTICE. 

1.  Judgment — Beeival — D^enBe  on  original  merits.  Althonse  T« 
Hnnsberger,  163. 

PRACTICE,  C.  P. 

1.  Affidavit  cf  defense — Construed  against  d^endant.  An  affidavit 
of  defense  is  to  be  taken  most  strongly  against  the  defendant;  it  is  to 
presumed  that  he  has  made  it  as  favorable  to  himself  as  his  conscience 
would  allow.    Comly  &  Co.  t.  Simpson,  12. 

2.  Affidavit  of  defense — Contract  cf  performance.  In  an  action  to 
recover  on  a  contract  for  putting  down  cement  pavements,  it  appears 
that  the  contract  specifically  provided  that:  **  The  party  of  the  second 
part  hereby  guarantees  all  work  done  and  all  materials  furnished  by 
the  said  party  of  the  second  part,  under  and  by  virtue  of  this  agree- 
ment for  a  period  of  five  years  from  the  completion  of  said  work, 
against  all  defects,  whether  in  work,  labor  or  materials;  and  said 
party  of  the  second  part  agrees  on  notice  in  writing  from  said  party 
of  the  first  part,  or  a  duly  authorized  agent  of  the  same,  to  repair  said 
work  and  keep  it  in  good  order  and  condition  for  said  period  of  five 
years,  reasonable  wear  and  tear  excepted.  ^^  The  defendant  filed  an 
affidavit  of  defense  expressly  denying  that  the  contract  was  substan- 
tially performed,  and  averring  defects  in  coping  and  curbing,  and  in 
the  foundations,  and  an  insufficient  quantity  of  cement  used;  that 
the  contractors  were  notified  of  the  defects  and  requested  to  repair 
them,  to  which  notice  they  paid  no  attention,  and  that  by  reason  of 
the  failure  of  the  contractors  to  complete  the  work  in  accordance 
with  the  contract  and  agreement  defendants  have  been  and  will  in 
future  be,  compelled  to  pay  out  large  sums  of  money  to  repair  the 
same  and  place  it  in  proper  order  and  condition,  and  in  so  doing  ex- 
pend a  much  larger  sum  of  money  than  that  for  which  this  suit  is 
brought.  Held^  the  affidavit  was  sufficient  to  prevent  judgment. 
Lonchheim  t.  Magalre,  635. 

3.  Affidavit  of  d^ense — Insufficiency — Running  account.  An  affida- 
vit of  defense  is  insufficient  which,  alleging  payments  on  an  alleged 
running  account,  suggests  an  hypothesis  that  if  a  statement  were 
made,  showing  all  credits  and  debits  between  the  parties,  affiant  could 
determine  what  was  due  by  him  if  anything,  and  fails  to  aver  that  the 
amount  claimed  is  not  correct.    Comly  &  Co*  Y«  Simpson,  12. 

4.  Affidavit  cf  defense — Landlord  and  tenant — Breach  of  landlord's 
covenant.  The  nonperformance  by  the  landlord  of  a  covenant  to  move 
a  building  cannot  be  set  up  as  a  defense  for  nonpayment  of  rent.  The 
tenant  could  have  moved  the  building  and  defalked  the  cost  or  he 
could  have  surrendered  possession,  or  if  retaining  possession  he  is 
only  entitled  to  deduct  the  rental  value  of  the  building  unmoved  from 
what  it  would  have  been  if  moved.  An  affidavit  is  defective  which 
does  not  allege  such  difference  of  rental  value  as  the  measure  of  ten- 
ant's damages.    Jaekson  t.  Farrell,  31. 


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INDEX.  689 

PRACTICE,  C.  v.— continued, 

5.  Affidavit  qf  d^enae — Pi-omissory  note — Married  woman  as  guarau" 
tor.    Abeles  t.  Powell,  123. 

6.  Affidavit  qf  drfense — Sufficiency— Essentials,  An  affidavit  of  de- 
fense should  state  the  facts  specifically  and  with  sufficient  detail  to 
enable  the  court  to  say  whether  they  amount  to  a  defense,  and  to 
what  extent  they  amount  to  a  defense  and  also  to  inform  the  plain- 
tiff, with  some  degree  of  certainty,  what  will  be  interposed  to  defeat 
his  claim.    Killen  T«  Brown,  15. 

7.  Amended  statement  and  second  rule  for  Judgment.  It  is  not  error 
to  permit  a  plaintiff  to  withdraw  his  original  statement  and  to  file 
another,  averring  the  elements  of  damage  with  greater  particularity 
and  verified  by  affidavit  as  required  by  rules  of  court  No  new  cause 
of  action  being  introduced  such  action  is  a  proper  exercise  of  the 
power  to  permit  amendments.  Nor  is  there  error  in  granting  a  sec- 
ond rule  for  judgment  after  the  defects  in  the  original  statement 
have  been  cured  by  amendment.    Com.  T*  Teisley,  273. 

8.  Amendment  to  statementj  the  cause  of  action  being  the  same.  Plain- 
tiff properly  is  allowed  to  amend  his  statement  where  the  foundation 
of  the  action  remains  the  same. 

In  the  case  at  bar,  being  trespass  for  wrongful  diversion  of  waters, 
the  amendment  was  properly  allowed;  the  water  affected  was  the 
same;  the  means  employed  to  effect  the  diversion  are  set  out  with 
more  particularity  in  the  first  than  in  the  second;  the  fact  of  the  di- 
verting and  obstructing  remained  the  same  in  each;  the  use  of  the 
supply  of  water  is  the  same;  and  the  alleged  injury  the  same.  Adam 
T.  Moll,  380. 

9.  Appeal — Execution  for  costs.  An  appeal  will  not  be  sustained 
assigning  error  in  an  execution  for  costs  based  on  the  assumption 
that  they  had  not  been  taxed  by  the  prothonotary  where  the  record 
of  the  proceedings  prior  to  the  execution  has  neither  been  printed  nor 
brought  up,  and  where  there  is  no  allegation  that  the  appellant  filed 
exceptions  or  made  any  effort  to  have  the  legality  of  the  costs  adjudi- 
cated in  the  regular  way.    Irwin  ¥•  Hanthom,  165. 

10.  Bills  of  exception — Exceptions — Testimony — Charge  of  court.  Ex- 
ceptions to  evidence  are  required  only  ivhen  the  question  of  its  admis- 
sibility is  presented,  when  there  is  no  objection  there  is  no  groimd 
for  an  exception.  Instead  of  authentication  by  bill  of  exceptions, 
both  evidence  and  charge  are  placed  on  the  record  as  directed  by  the 
act  of  1887.  The  procedure  in  this  respect  has  been  repeatedly  stated 
by  the  Supreme  Court.    It  may  be  thus  summarized : 

1.  It  is  the  duty  of  the  stenographer  to  take  complete  and  accurate 
notes  of  the  proceedings,  evidence  and  charge,  and  to  transcribe,  for 
filing,  a  longhand  or  typewritten  copy;  but  this  transcription  may  be 
omitted  in  the  discretion  of  the  court,  with  the  consent  of  counsel. 

2.  Exceptions  noted  by  the  stenographer,  by  direction  of  the  judge, 
are  equivalent  to  the  formal  sealing  of  a  bill  of  exceptions. 

3.  The  stenographer  has  no  authority  to  note  an  exception  except 
by  direction  of  the  judge. 

4.  To  become  part  of  the  record,  the  copy  of  the  stenographer's 

Vol.  VI— 44 


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690  INDEX. 

PRACTICE,  C.  T,— continued, 

notes  must  be  certified  to  by  the  stenographer,  and  approved  b}  the 
judge  and  filed  by  his  direction. 

5.  The  stenographer's  certificate  must  set  forth,  in  substance,  tliat 
the  proceedings,  evidence  and  charge  are  contained,  fully  and  accu- 
rately, in  the  notes  taken  by  him  on  the  trial,  and  that  the  copy  filed 
is  a  correct  transcript  of  the  same.  It  must  be  signed  by  the  stenog- 
rapher, and  not  in  a  firm  name  or  by  deputy. 

6.  The  judge's  certificate  must  show,  in  substance,  his  belief  that 
the  transcript  is  correct,  and  that  it  is  filed  by  his  direction. 

7.  Transcripts  of  the  proceedings  and  evidence,  and  of  the  charge, 
with  the  requisite  cei*tificates,  may  be  filed  together  or  separately. 
Heyer  t.  Piano  Co.^  504. 

11.  Case  stated  must  show  jurisdiction.  A  case  stated  must  show 
the  jurisdiction  of  the  court  over  the  parties  and  that  it  is  a  real  dis- 
pute, not  a  colorable  one,  to  obtain  an  opinion  from  the  court. 

A  case  stated  is  defective  where  it  fails  to  set  forth  the  nature  of 
the  judgment  to  be  entered  in  case  the  court  should  find  the  law  to 
be  for  the  plaintiffs.    Forney  y.  Huntingdon  Co.^  397. 

12.  Charge  qf  court — "  Clear  and  satisfactory  evidence"  Taylor  y. 
Pan!,  496. 

18.  Charge  of  court — Comments  on  testimony — I^ffect  qf  charge  as  a 
whole,    MoNeile  t.  Cridland,  428. 

14.  Constable's  bond — Proper  entry  qf  judgment — Power  qf  court  to 
control.  While  there  may  be  force  in  the  contention  that  in  strict 
practice  two  judgments  should  be  entered  in  a  suit  on  a  constable^s 
bond  one  in  favor  of  the  commonwealth  for  the  amoimt  of  the  bond 
and  one  in  favor  of  the  plaintiff  for  his  damages,  it  does  not  appear 
that  the  constable  has  reason  to  complain  that  judgment  was  not 
entered  for  the  penalty  and  in  any  event  the  court  would  have  power 
to  correct  the  judgment  so  as  to  make  it  conform  to  the  statute  had 
the  question  been  raised  by  the  assignments  of  error.  Com.  T*  Teis- 
ley,  273. 

15.  Discretion  qf  court — Duty  qf  filing  opinion.  In  cases  appealing 
largely  to  the  discretion  of  the  court  below  where  oral  testimony  of 
witnesses  is  frequently  heard  and  passed  upon,  an  opinion  should 
always  be  filed  by  the  court  setting  forth  at  least  briefly,  its  findings 
of  fact  and  the  grounds  of  its  decision :  Gump  v.  Goodwin,  172  Pa. 
276.    Skinner  t.  Chase,  279. 

16.  Ilffect  qf  failure  to  demur.  If  a  statement  is  defective  defendant 
should  demur;  having  joined  issue  and  gone  to  trial  he  is  bound  by 
the  evidence  as  shown  in  the  testimony  at  the  trial,  especially  when 
the  same  is  received  without  objection  on  his  part;  it  is  then  too  late 
to  set  up  want  of  consideration  in  the  agreement  sued  upon.  Coble 
T.  Zook,  597. 

17.  Evidence — Testimony  qf  former  trial — Method  qf  proof ,  The 
proper  method  of  proving  what  was  said  by  a  witness  on  a  former 
trial  is  by  the  official  stenographer.    Com.  T.  Honse^  92. 

18.  Insufficient  affidavit  —  Contract — Misrepresentation.  An  affida- 
vit is  insufficient,  which,  setting  up  two  distinct  representations  as 
inducing  a  subscription  to  stock  of  a  corporation,  is  indefinite  in  its 


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INDEX.  691 

PRACTICE,  C.  P.— continued. 

allegations  as  to  which  is  false;  it  is  insufficient  moreoyer,  when 
alleging  mere  expressions  of  opinion,  it  fails  to  aver  a  distinct  state- 
ment of  material  fact  known  to  the  solicitor  and  unknown  to  the 
subscriber,  which  if  false  would  justify  a  rescission  of  the  contract. 
Phila.  Bourse  r.  Doiming,  590. 

19.  Insufficient  affidavit — Subscription  to  stock — Alleged  inducing 
promises.  An  affidavit  is  insufficient  which  sets  up  alleged  unfulfilled 
promises  and  unrealized  expectations  as  a  defense  to  clearly  express 
obligations  of  a  written  contract. 

In  a  suit  on  a  sealed  contract  to  recover  a  subscription  to  stock,  in 
terms  an  imqualified  agreement  to  pay  fifty  per  centum  of  the  price 
down  and  the  balance  as  called  for  by  the  corporation,  the  affidavit  of 
defense  held  insufficient  which  rested  the  defense  on  certain  alleged 
parol  promises  upon  which  the  subscription  was  induced  and  which 
had  not  been  fulfilled.  Held,  insufficient  also  in  that  it  did  not  allege 
that  the  promises  were  omitted  from  the  written  contract  by  fraud, 
accident  or  mistake,  that  part  of  the  written  contract  itself  had  been 
violated,  that  it  did  not  specify  wherein  the  alleged  promises  were 
false  or  fraudulent,  or  state  any  specific  loss.  Lights  Heat  A  Power 
€o.  T.  Beek,  584. 

20.  Judgment — Transcript  filed  pending  tirne  of  appeal  An  appeal 
from  the  judgment  of  a  magistrate  regularly  taken,  ipso  facto,  destroys 
a  judgment  obtained  by  filing  a  transcript  in  the  common  pleas.  A 
plaintiff  cannot  prevent  this  result,  by  hurriedly  taking  a  transcript  to 
the  prothonotary's  office,  provided  the  defendant,  within  the  time  al- 
lowed by  law,  take  and  enter  his  appeal    Belbor  v.  Belber,  361. 

21.  Parties  to  record.  No  man  can  make  himself  a  party  to  pending 
litigation  between  others  by  his  own  act  or  statement  on  the  record; 
it  follows,  therefore,  that  a  senior  judgment  creditor  has  no  standing 
to  intervene  by  petition  to  have  set  aside  a  levy  made  on  a  jimior  exe- 
cution.   Toongy  Smythy  Field  ft  Co.  r.  Levy^  23. 

22.  Proceedings  under  act  of  1810 — Record  of  justice.  Where  the 
transcript  from  the  justice  discloses  only  an  action  in  assumpsit  and 
judgment  thereon,  such  record  does  not  disclose  such  a  proceeding 
and  judgment  under  the  Act  of  March  20,  1810,  5  Sm.  L.  161,  as  will 
sustain  a  writ  of  ca.  sa. ;  the  record  if  not  perfect  must  at  least  pur- 
port to  be  a  proceeding  to  enforce  a  liability  in  the  mode  there  pre- 
scribed.   Giiffin  V.  BaviSy  481. 

23.  Province  qf  court  and  jury  —  Construction  qf  contract.  Kini" 
broogk  T.  HoffmaBy  60. 

24.  Railroads — Eminent  domain — Practice — Res  judicata — Construc- 
tion of  charter.    Bobinson  v.  B.  B.  Co.»  383. 

25.  Reservation  of  point  of  law — Province  of  court.  Koons  v.  Mc- 
NameOf  445. 

26.  Statement — Affidavit — Effect  on  d^ective  statement.  A  statement 
must  be  self-sustaining;  that  is  to  say,  it  must  set  forth  in  clear  and 
precise  terms  a  good  cause  of  action. 

A  statement  which  alleged  the  indorsement  and  delivery  of  a  note 
to  plaintiff,  that  he  is  the  present  holder  and  that  the  note  has  not 
been  paid,  does  not  necessarily  require  an  affidavit  of  defense,  but  the 


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692  INDEX. 

PRACTICE,  C.  T.—coiitinued, 

defendant  having  chosen  to  answer  it  by  affidavit,  waives  the  incom- 
pleteness of  the  statement  and  must  rely  upon  his  affidavit.  Lonoli- 
heim  r.  Magraire,  635. 

27.  Sufficiency  of  affidavit — Landlord  and  tenant — Sheriff* a  sale  qf 
leased  property.  The  plaintiff^s  statement  showing  liability  for  rents 
accruing,  subsequent  to  sheriff  ^s  sale,  by  tenant  to  sheriff  ^s  vendee, 
who  was  also  assignee  of  the  lease  from  the  former  owner,  an  affidavit 
is  insufficient  which  admits  notice  of  plaintiff *s  claim  for  rent,  a  pay- 
ment of  rent  after  such  notice  and  a  notice  of  intended  discontinuance 
after  expiration  of  the  current  year,  and  which  attempts  to  limit  and 
modify  the  effects  of  such  acts  by  stating  reasons  which  influenced 
such  conduct  at  the  time.  Intentions  in  such  cases  are  not  the  subject 
of  inquiry.  The  court  can  only  inquire  into  the  legal  effect  of  admit- 
ted facts.    Bldg.  Assn.  v.  Wampoley  238. 

28.  Sufficiency  of  affidavit — Promissory  note — Fundamental  defence. 
An  affidavit  which  distinctly  avers  that  plaintiff  is  not  a  bona  fide 
holder  for  value  before  maturity,  but  that  he  has  taken  the  note  since 
maturity  for  purposes  of  collection  and  in  the  interest  of  the  payee 
for  the  purpose  of  avoiding  the  defense  which  the  defendants  have 
thereto,  is  sufficient  to  put  plaintiff  upon  proof  of  bona  fide  holding. 
When,  therefore,  the  affidavit  alleges  fundamental  defenses  which  go 
to  the  f oimdation  of  the  right  of  the  promisee  to  recover,  a  question 
is  raised  for  the  jury.    Loochheim  j.  Magaire^  635. 

20.  Sufficiency  qf  affidavit  alleging  fraud.  An  affidavit  is  sufficient 
which  alleges  representations  which  were  in  effect  fraudulent,  made 
by  plaintiff  for  the  purpose  of  inducing  the  defendant  to  execute  a 
contract  and  a  rescission  of  alleged  contract  upon  discovery  of  the 
alleged  fraud.  Such  affidavit  raises  questions  of  fact  which  cannot  be 
determined  by  an  appellate  court.    Ferree  v.  Toang^  307. 

30.  Sufficiency  of  affidavit  qf  defense — Conditional  sale.  Under  a  con- 
tract, in  form  a  bailment,  but,  as  between  the  parties  at  least,  a  con- 
ditional sale,  an  affidavit  is  sufficient  which,  admitting  a  default  in 
the  payment  of  instalments  of  purchase  money  due  under  the  contract, 
averred  a  surrender  of  the  chattel  in  controversy,  that  it  was  at  the 
time  of  such  return  worth  more  than  the  balance  due  by  defendant 
thereon,  and  finally  that  the  vendor  plaintiff  accepted  the  organ  in  full 
settlement  and  satisfaction  of  any  claims  against  the  affiant.  Hortll 
ft  Co.  T.  Torke»  354. 

31.  Suit  on  constable* 8  bond  demands  affidavit  of  defense.  An  action 
on  a  constable^s  official  bond  conditioned  for  the  performance  of  col- 
lateral acts  or  official  duties  is  within  the  affidavit  of  defense  act. 
Com.  T.  Toisley,  273. 

PRACTICE,  EQ. 

1.  Pleadings — Injection  df  one  drfendant  as  supplemental  plaintiff. 
While  in  a  sense  both  parties  in  equity  are  plaintiffs  and  a  decree  may 
in  some  circumstances  be  entered  in  favor  of  the  defendant  without 
a  cross  bill,  yet  the  necessity  for  proper  and  formal  pleadings  is  not 
destroyed.  It  is  not  permitted  on  mere  motion  after  replication  filed 
in  the  regular  way  and  after  reference  of  the  case  that  one  defendant 


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INDEX.  693 

PRACTICE,  "EQ,— continued, 

may  on  mere  motion  urge  new  facts  which  would  qualify  the  original 
statement  and  without  affidavit  or  service  of  notice  to  other  defend- 
ants inject  a  new  plaintiff  to  urge  grounds  of  relief  which  the  other 
party  plaintiff  could  not  press.    Gwinn  T«  Lee^  646. 

PRACTICE,  O.  C. 

1.  Equity — Pleading — Effect  of  replication — Hearing  on  6iW,  answer 
and  replication.    Worthingtoii's  Est.^  484. 

PRACTICE,  Q.  S. 

1.  Criminal  law — Additional  instructions  in  absence  of  d^endant — 
Adijourmnent.  It  is  reversible  error  where  the  trial  judge,  after  ad- 
journment of  court,  permits  the  jury  to  come  in  for  additional  instruc- 
tions which  he  gives  in  the  absence  of  defendant  and  his  counsel  and 
without  notice  to  either.  A  person  under  trial  for  a  crime  has  the 
right  to  be  present  during  the  entire  trial;  he  has  a  right  to  assume 
that  no  further  instructions  will  be  given  during  the  adjournment  of 
court.  No  waiver  or  consent  can  be  implied  from  his  absence  under 
such  circumstances. 

While  the  court  has  the  discretionary  power  to  recall  the  jury  for 
further  instructions  or  to  withdraw  or  to  correct  erroneous  instruc- 
tions such  instructions  should  be  given  in  open  court.  Com.  T*  Honse^ 
92. 

2.  Criminal  law — Suspension  of  sentence — Order  when  equivalent  to 
final  sentence.    Com.  r.  Keeper  of  Workhoasey  420. 

PRACTICE,  SUPERIOR  COURT. 

1.  Appeals — Amendments — Municipal  lien.  Phila.  v.  ChristmaDy 
29. 

2.  Appeals — Assumption  housed  on  motive  dehors  the  record.  The  ap- 
pellate court  is  not  warranted  in  going  outside  of  the  record  in  search 
of  questions  of  fact  not  fairly  raised  by  the  evidence.  Where  under 
the  admitted  facts  a  plaintiff  has  made  out  a  prima  facie  case  on  a 
mechanic's  claim,  and  the  defendant  offers  in  evidence  a  single  clause 
of  a  contract  between  him  and  the  contractor,  the  appellate  court  will 
not  assume  it  was  the  contract  under  which  the  buildings  were  erected. 
Hires  ft  Co.  v.  Nortoii»  457. 

3.  Appeals — Comjirmation  qf  appointment  cf  keeper  of  prison.  Mc- 
Henry's  Petition,  464. 

4.  Appeals — B^ective  assignment.  An  assignment  of  error  is  defec- 
tive under  Rule  15  of  the  Superior  Court  which  assigns  for  error  the 
whole  charge  without  further  specification. 

The  purpose  of  an  assignment  of  error  is  to  place  upon  the  records 
of  the  appellate  court  the  specific  ground  of  complaint  on  the  part  of 
the  appellant.    Taylor  v.  Sattler,  229. 

5.  Appeals — D^ective  assignment.  Assignments  are  defective  under 
Rule  XVII.,  which  allege  error  in  admitting  or  refusing  evidence  but 
which  fail  to  quote  the  full  substance  of  the  bill  of  exceptions  or  to 
copy  the  bill  in  immediate  connection  with  the  assignment.  Shana- 
ban  T.  Ins.  Co«f  65. 


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694  INDKX. 

PRACTICE,  SUPERIOR  COURT— continued. 

6.  Appeals— Jnterlocutari/  order.  No  appeal  lies  from  an  order  of 
the  common  pleas  refusing  a  rale  to  show  cause  why  an  appeal  from 
a  magistrate  should  not  be  dismissed,  appellants  having  failed  to 
make  an  affidavit  required  by  the  Act  of  July  14,  1897,  P.  L.  271,  pro- 
vided that  the  proper  affidavit  is  made  within  fifteen  days.  Such  order 
is  interlocutory  and  is  neither  a  final  judgment  nor  an  order  in  the 
natore  thereof,  and  an  independent  appeal  does  not  lie.  Yost  v.  Davi- 
son, 5  Pa.  Superior  Ct.  469,  followed.    Anderson  T.  MeMieliaely  114. 

7.  Appeals — Practice,  S.  C, — Discretion  of  court — Opening  judgment. 
Leader  j.  Danlap^  243. 

8.  Appeals — R^usal  qf  judgment — Practice  on  review.  The  appel- 
late court  will  not  interfere,  where  rules  for  judgment  have  been  re- 
fused, in  doubtful  and  uncertain  cases,  but  will  do  so  where  the  case 
is  clear  and  free  from  doubt.    Bldg*  Assn.  T*  Wampole^  238. 

9.  Appeal — Refusal  to  open  after  term  expired.  The  court  below  is 
without  authority  to  open  a  judgment  after  the  end  of  the  term  at 
which  it  was  rendered,  unless  it  be  a  judgment  by  default  or  confes- 
sion, which  every  court  has  power  to  open  without  limit  of  time,  in 
order  to  give  the  parties  a  hearing  or  trial. 

A  judgment  for  want  of  a  sufficient  affidavit  of  defense  is  not  a  judg- 
ment by  default  or  confession.    Abeles  T.  Poweliy  123. 

10.  Appeals — Sufficiency  cf  bail.  Under  the  act  of  1895  an  api>eal  to 
the  Superior  Court  was  not  effectual  unless  bail  for  the  costs  of  the 
appeal  be  given,  and  an  appeal  was  dismissed  where  the  judge  of  the 
court  below,  on  exception  taken  to  the  sufficiency  of  the  bail  bond, 
made  the  following  order:  **  After  hearing  I  decline  to  approve  within 
bond,  because  not  signed  by  the  plaintiff,  and  the  insufficiency  of  the 
security  offered.    Irwin  r.  Hanthoniy  165. 

11.  Appeal  quashed  in  absence  of  assignments  of  error.  Where  there 
are  no  assignments  of  error  the  appeal  will  be  quashed. 

The  appellate  court  will  decline  to  roam  at  will  over  the  wholie  do- 
main of  law  and  fact  and  enter  such  judgment  at  law  or  decree  in 
equity  as  it  might  conclude  the  plaintiffs  might  have  been  entitled  to. 
Forney  v.  Huntingdon  Co.,  397. 

12.  Defective  assignment — Rule  XVI.  Where  the  error  assigned  is 
to  the  charge  of  the  court,  the  part  of  the  charge  referred  to  must  be 
quoted  totidem  verbis,  as  provided  by  Rule  XVL  of  the  Superior  Court. 
Lamb  t«  Leader,  50. 

13.  D^ective  assignment  cf  error.  An  assignment  of  error  as  to  ad- 
mission of  evidence  is  defective  under  Rule  17  which  neither  quotes 
the  full  substance  of  the  bill  of  exceptions  nor  copies  the  bill  in  imme- 
diate connection  with  the  assignment.    Com*  T.  Spencer,  256. 

14.  D^ective  assignment  cf  error — Rule  XVII.  Defective  assign- 
ments of  error  which  are  in  direct  violation  of  Rule  XVII.  of  the  Su- 
perior Court  will  not  be  considered.  Orier  y«  Homestead  Borongh, 
542. 

15.  Evidence  admitted  without  objection.  Where  evidence  is  offered 
and  admitted  without  objection  in  the  court  below  it  is  improper  to 
assign  such  admission  for  error.    Com.  r.  Spenoer,  256. 

16.  R^usal  of  judgment  on  affidavit.    The  appellate  court  will  not 


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INDEX.  695 

PRACTICE,  SUPERIOR  COURT— continued. 

reyiew  the  action  of  the  courts  below  in  diBcliarging  a  rale  for  want  of 
a  sufficient  affidavit  of  defense  unless  it  be  a  very  plain  case  of  error 
of  law.    Ferree  y.  Toangr^  307. 

17.  Beview—R^usal  to  grant  new  trial — Lack  qf  exceptions.  Errors 
to  the  refusal  of  the  court  below  to  grant  a  new  trial  will  not  be  con- 
sidered when  no  exception  was  taken  to  this  action  of  the  court. 

A  new  trial  is  properly  refused  where  on  the  motion  therefor  the  eyi- 
dence  adduced  upon  the  trial  is  not  shown  to  be  incorrect  in  any  mate- 
rial matter  by  anything  subsequently  made  to  appear,  don.  T*  Spen- 
cer, 256. 

18.  Review — R^usal  qf  new  trial.  The  appellate  court  will  not, 
except  in  clear  cases  of  abuse  of  discretion,  reyiew  the  discretion  of 
the  trial  court  in  refusing  a  new  trial.    Sbanalian  y*  Ins.  Co.,  65. 

19.  Unfair  assignment — Excerpt  from  charge.  An  assignment  of 
error  is  unfair  and  defectiye  which  complains  of  an  excerpt  from  the 
charge,  wrested  from  its  context,  when,  if  all  that  was  said  in  the 
instruction  complained  of  had  been  quoted,  it  would  appear  that 
the  matter  in  dispute  had  been  left  entirely  to  the  jury.  Omensetter 
y.  Kemper,  309. 

PRESCRIPTION. 

1.  Waters  and  watercourses — Obstruction  and  diversion^Prescrip- 
tion.    Adam  y.  Moll,  380. 

PRESUMPTION. 

1.  Decedent's  estate — Distribution  by  family  setUement^PresumpHon 
as  to  nonexistence  of  creditors.    Fitler's  Est*,  364. 

2.  Promissory  notes  as  payment  of  debt — Question  for  jury.  Blxler 
A  Correll  y.  Lesh,  459. 

3.  Rebuttable  presumption  of  payment — Contract — Implied  contract — 
Extra  wages.    Snyder  y.  Steinmets,  341. 

PRINCIPAL  AND  AGENT. 

1.  Insurance— Error  in  policy—Act  of  ag'entr—Laehes.  Sbanahan  T. 
Ins.  Go.,  65. 

PRISON  KEEPER,  see  Public  Officers. 

PROBABLE  CAUSK 

1.  Province  of  court  and  jury — What  constitutes  for  the  court — Exist- 
ence for  the  jury.    Aner  y«  Manser,  618. 

PROMISSORY  NOTE. 

1.  Accommodation  papers — Equities  after  maturity.  The  holder  of 
a  promissory  note,  discounted  after  maturity  and  protest  with  full 
knowledge  of  its  history,  can  only  use  it  subject  to  the  equities  arising 
out  of  the  transaction  and  connected  with  the  note  itself;  he  has  no 
higher  right  to  recoyer  against  the  defendant's  indorsers  than  had  tlie 
maker  of  the  paper  with  whom  he  acted. 

The  defendants  were  liable  as  indorsers  on  a  note  made  by  B.  and 


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696  INDEX. 

PROMISSORY  NOTE— contmucd. 

discounted  by  the  plaintiff.  B.  offered  as  a  renewal  another  note  with 
the  same  indorsers;  this  plaintiff  refused  to  accept  as  a  renewal,  but 
in  point  of  fact  retained  it  in  his  possession  without  any  consideration, 
as  a  mere  memorandum  of  a  rejected  offer,  but  after  its  maturity  and 
protest,  discounted  the  second  note  and  credited  the  proceeds  to  B»'8 
account  in  settlement  of  the  prior  note  and  other  accounts  with  B. 
HHcL,  in  a  suit  against  the  indorsers  on  the  second  note,  that  plaintiff 
could  not  recorer.    Newbold  t«  Boon^  511. 

2.  Evidence — Parol  evidence  to  explain  purj)ose  qf  a  note  adminsible — 
Accommodation  paper — Burden  of  proof,    Moore  Y.  Phillips^  570» 

3.  Irregular  indorsement — Lex  loci — Lex  fori.  An  irregular  indorse^ 
ment  of  a  promissory  note  executed  in  New  Jersey  may  in  a  suit  on 
said  note  in  Peunsylvania  be  shown  to  be  a  contract  of  surety  in  accord^ 
ance  with  lex  loci.    Cooke  T.  AddickSy  115. 

4.  Married  woman  as  guarantor^Affidavit  of  drfense,  Abeles  T« 
Powell,  128. 

6.  Practice,  C  P. — Sufficiency  qf  affidavit — Fundamental  d^entte, 
Looohkeim  y.  Magnire)  635. 

6.  Promi^ory  notes  as  a  payment  cf  debt — Presumption — Question  for 
jury,    Bixler  k  Correll  r.  Lesk»  459. 

PROVINCE  OF  COURT  AND  JURY. 

L  Contracts — Construction,  If  a  contract  is  verbal,  it  is,  of  course, 
the  exclusive  province  of  the  jury  to  ascertain  what  the  parties  meant; 
if  it  is  in  writing,  its  construction  is  for  the  court.  The  sense  of 
words  used  in  connection  with  what  the  parties  intended  to  express 
by  them  is  exclusively  for  the  jury.    Bixler  k  Correll  T.  Leak,  459. 

2.  Inadequate  charge  as  ground  for  reversal.  Botksckilds  Soh'h 
Co.  T.  MeLaugkliOy  347. 

3.  Practice,  C.  P. — Construction  qf  contract.  The  province  of  the 
jury  is  to  settle  disputed  questions  of  fact.  If  no  disputed  facts 
exist  there  is  nothing  for  them  to  do,  and  it  is  for  the  court  to  deter- 
mine the  legal  effect  of  the  contract.    Kimbrongh  T.  Hoffmaiiy  60. 

4.  Province  qf  the  court — Contract — Rescission  for  fraud — Evidence. 
The  trial  judge  is  justified  in  excluding  from  the  jury  the  question 
of  alleged  fraud  when  the  testimony  of  the  witness  called  to  corrob- 
orate the  defendant  was  vague. and  uncertain  and  where  all  the  testi- 
mony taken  together  failed  to  answer  the  test  of  being  clear,  precise 
and  indubitable.    Zineman  &  Co.  t.  Harris,  303. 

5.  Province  of  court — Ecidence — Construction  qf  writings.  Where  a 
printed  rule  of  the  commercial  exchange  and  a  written  notice  pur- 
porting to  be  given  thereunder  are  in  the  case,  it  is  the  duty  of  the 
•court  to  construe  them  and  determime  the  rights  and  duties  arising 
therefrom.    GiU  k  lisker  t.  O'Bonrke,  005. 

6.  Province  of  court — Insurance — Mutual  aid  society — Construction 
qf  policy — Belay  in  payment.  Where  members  of  a  mutual  aid  soci- 
•ety  are  classed  as  nonbeneficial  if  in  arrears  for  dues  for  more  than 
three  weeks,  and,  even  when  reinstated,  remain  nonbeneficial  for  five 
weeks  thereafter,  the  beneficiary  of  a  member  so  in  default  cannot 
recover  death  benefits.    The  fact  that  the  receipt  book  of  decedent 


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INDEX.  697 

PROVINCE  OF  COURT  AND  JVKY— continued. 

shows  acceptance  of  dues  by  the  company  at  irregular  times  is  no 
eyidenoe  of  an  intent  of  waiver  by  the  company  of  any  rights  secured 
to  it  by  the  policy  or  to  change  its  terms.  The  facts  being  undis- 
puted, the  question  was  for  the  court,  and  it  should  have  directed  a 
Terdict  for  the  defendant.    Phillips  t«  Aid  Society^  157. 

7.  Province  of  court — Practice^  C,  P. — Reservation  of  point  of  law. 
Where  a  point  of  law  is  reserved,  the  facts  out  of  which  it  arose  must 
be  stated  on  the  record;  the  court  cannot  draw  inferences  of  fact 
from  the  evidence.  It  must  be  a  pure  question  of  law — such  as  rules 
the  case, — not  a  mixed  question  of  law  and  fact. 

Where  there  has  been  an  improper  reservation  the  case  will  be  sent 
back  for  a  new  trial,  in  order  that  the  facts  may  be  found  by  the  jury 
or  distinctly  put  on  the  record  in  some  other  recognized  way.  Koons 
T.  McNamee^  445. 

8.  Province  qf  court  as  to  whether  there  is  a  question  for  the  Jury, 
It  is  true  that  there  is  in  all  cases  at  law  a  preliminary  question  for 
the  court  whether  there  is  any  evidence  of  the  facts  sought  to  be 
established  that  ought  reasonably  to  satisfy  the  jury.  If  there  is 
evidence  from  which  the  jury  can  properly  find  the  question  for  the 
party  on  whom  rests  the  burden  of  proof,  it  should  be  submitted.  If 
not  it  should  be  withheld  from  the  jury.    Snyder  T*  StelnmetZy  341. 

9.  Province  of  court  as  to  whether  there  is  question  for  Jury.  There 
is  in  all  cases  at  law  a  preliminary  question  for  the  court  whether 
there  is  any  evidence  of  the  facts  sought  to  be  established  that  ought 
reasonably  to  satisfy  the  jury;  if  there  is  evidence  from  which  the 
jury  can  properly  find  the  question  for  the  party  on  whom  rests  the 
burden  of  proof,  it  should  be  submitted.  If  not,  it  should  be  with- 
held from  the  jury.    Bothehllds  Sou's  Co.  r.  McLaoghlln,  347. 

10.  Question  for  Jury — Common  carrier — Misdelivery  of  goods — Evi- 
dence. A  suit  was  brought  by  plaintiff  against  a  transportation  com- 
I>any  for  alleged  misdelivery  of  goods,  consigned  to  R.  of  Tyler,  Texas, 
by  delivering  same  to  H.  at  Dallas,  Texas.  Jleld^  that  the  question 
was  for  the  jury  under  the  terms  of  the  contract  as  entered  into 
between  the  transportation  company  and  the  consignor,  as  evidenced 
by  the  shipping  receipt  and  bill  of  lading,  whether  the  company  had 
shown  a  good  excuse  other  than  negligence,  for  not  having  delivered 
the  goods  to  R.  the  consignee;  whether  it  did  all  that  a  prudent,  rea- 
sonable, commonsense  business  man  would  have  done  to  insure  a 
proi)er  delivery  to  the  proper  person;  and  whether  the  transportation 
company  had  shown  that  it  was  not  negligent.  Qoodman  J.  Trans- 
portation Co.y  168. 

11.  Question  for  Jury — Common  carrier — Negligence  in  delivery  of 
goods.  In  a  question  of  negligence  arising  from  an  alleged  misdelivery 
of  goods  by  a  transportation  company,  held,  that  the  jury  may  take 
into  consideration  the  conduct  of  consignor  toward  the  person  to  whom 
the  goods  were  delivered  after  receipt  by  him  and  any  delay  which 
may  have  occurred  in  notifying  the  transportation  company  of  such 
alleged  misdelivery  and  the  relation  of  the  recipient  of  the  goods 
towards  the  consignee.    Goodman  T«  Transportation  Co*^  168. 


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698  INDEX. 

PROVINCE  OF  COURT  AND  JVRY— continued, 

12.  Question  for  Jury — Consignment  for  sale — Fraudulent  possession. 
A  jeweler  of  Reading,  Pa.,  indebted  to  a  New  York  creditor,  whose 
claim  was  being  pressed,  met  him  by  appointment  at  a  place  in  Read- 
ing other  than  the  debtor^s  store;  at  this  meeting  the  claim  was  ad- 
justed by  the  return  of  a  portion  of  the  goods  originally  bought  from 
the  creditor  and  the  delivery  of  certain  other  goods  belonging  to  the 
debtor  merchant.  These  goods  were  actually  delivered  to  the  cred- 
itor by  the  debtor,  and  the  indebtedness  of  the  latter  canceled.  At 
the  same  time  and  place  and  almost  immediately  after  the  adjust- 
ment of  the  accounts  the  creditor  delivered  the  goods  so  received  by 
him  in  satisfaction  of  his  debt  to  his  former  debtor  to  be  by  him  sold 
as  a  consignment  for  the  account  of  the  New  York  merchant,  the  for- 
mer creditor.  Subsequently  another  creditor  obtained  judgment  on 
a  debt  which  had  accrued  prior  to  this  transaction,  and  issued  execu- 
tion. Held  on  an  issue  arising  under  a  sheri£f^s  interpleader  that  the 
question  of  fraudulent  possession  by  the  debtor  in  possession,  or  bona 
fide  consignment,  was  for  the  jury.    Oattle  Bros*  T.  Krempy  514. 

18.  Question  for  Jury — Contract — Presumption  of  payment.  Where 
there  is  more  than  a  scintilla  of  evidence  in  the  case,  from  which  a  con- 
tract reasonably  might  be  inferred,  and  a  presumption  of  payment  is  not 
conclusive,  and  where  if  all  the  testimony  of  the  plaintiff  is  believed  such 
contract  is  established  and  such  presumption  of  i>ayment  is  rebutted, 
the  question  of  credibility  is  for  the  jury.   Synder  y.  Steiiimets»  341. 

14  Question  for  Jury — Contract — Uescission  qf.  In  an  action  to  re- 
cover for  goods  sold  and  delivered  an  alleged  rescission  of  the  contract 
'  becomes  the  vital  point  in  the  case,  and  there  being  some  evidence  of 
rescission  it  was  reversible  error  to  affirm  plaintiff's  point  as  follows: 
**  There  is  no  proof  that  the  contract  of  sale  ever  was  rescinded  and 
abrogated  by  the  consent  of  the  parties."    Jones  T*  Clevelandy  640. 

16.  Question  for  Jury — Credibility  qf  witnesses.  There  being  evidence, 
though  conflicting,  sufficient  to  sustain  a  verdict  either  way  on  the 
issue  raised  according  as  credibility  is  accorded  to  the  testimony  of 
one  side  or  the  other,  the  question  is  properly  for  the  jury.  Coble  T* 
Zook,  697. 

16.  Question  for  Jury— Criminal  law — Abortion — Adequate  charge — 
Answer  to  point.  Where  the  question  is  whether  the  defendant  did  or 
did  not  commit  an  abortion  in  manner  and  form  as  indicated  it  is 
exclusively  for  the  jury,  the  issue  being  dependent  upon  the  credi- 
bility of  the  witnesses  for  the  commonwealth  and  accused  respec- 
tively. The  appellate  court  will  not  disturb  the  verdict  of  the  jury 
on  the  ground  that  the  charge  of  the  court  and  answer  to  defendant's 
point  were  unfavorable  to  the  defendant,  and  inadequate  in  the  pre- 
sentation of  the  case  for  the  consideration  of  the  jury,  when  the  point 
in  question  is  ingenious  but  argumentative  and  composed  in  part  of  a 
skilful  combination  of  fact  and  inference  which  did  not  admit  of  an 
unequivocal  answer;  and  where  the  charge  was  fair,  impartial,  ade- 
quate and  sufficiently  guarded  the  rights  of  the  defendant.  Com.  T« 
Page,  220. 

17.  Question  for  Jury —Easements  whether  apparent  and  continuous. 
Whether  an  easement  or  servitude  is  apparent,  continuous  or  the  con- 


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PROVINCE  OF  COURT  AND  JURY— continued. 

trary,  inyolves  questions  of  fact  resting  in  parol  which,  when  the  facts 
are  in  dispute,  is  for  the  jury,  the  court  cannot  reserve  to  itself  the 
power  to  decide  them.    Koons  T*  McNameef  445. 

18.  Question  for  Jury — Eminent  domain.  The  question  whether  or  not 
a  i>articular  strip  of  land  was  or  was  not  taken  by  the  state  for  the 
location  of  a  canal  is  for  the  jury,  there  being  more  than  a  scintilla 
of  evidence  that  the  state  left  some  land  above  low  watermark,  unap- 
propriated, the  land  between  high  and  low  watermarks  being  the  land 
in  question.    Smacker  v.  B«  B«  Co.^  521. 

19.  Question  for  Jury — Evidence— :Cr  edibility  of  witness.  It  does  not 
follow  because  a  witness  is  not  directly  contradicted  by  another  wit- 
ness, that  his  testimony  is  undisputed.  His  manner  on  the  stand,  his 
lapses  of  memory,  the  improbability  of  his  story,  its  self-contradiction, 
the  evidence  afforded  by  circumstances,  all  these  or  some  of  them  may 
rightly  lead  the  jury  to  reject  his  testimony.  The  credibility  of  a 
witness,  whether  it  is  directly  or  indirectly  involved,  is  for  the  jury. 
Smucker  t.  B.  B.  Co.,  521. 

20.  Question  for  Jury — Evidence— Probable  cause  and  malicc^When 
implied — Presumption  from  acquittal  Malice  may  be  implied  from 
want  of  probable  cause  and  may  be  rebutted  by  evidence  showing  its 
absence;  but  want  of  probable  cause  cannot  be  implied  from  malice, 
and  may  exist  without  it.  The  inquiry  as  to  both  must  relate  to  the 
commencement  of  the  prosecution  and  the  circumstances  leading  to 
it.  It  is  permitted  to  show  how  the  prosecution  terminated  as  bear- 
ing on  the  existence  or  nonexistence  of  cause  and  malice.  An  acquittal 
or  lawful  discharge  of  the  defendant  is  prima  facie  evidence  of  want 
of  probable  cause,  and  therefore  sufficient  to  carry  the  case  to  the 
jury. 

In  an  action  for  malicious  prosecution  the  case  is  for  the  jury  where 
it  appears  that  the  plaintiff  in  the  action  as  defendant  in  the  prosecu- 
tion, was  lawfully  discharged,  although  there  was  evidence  tending 
to  establish  probable  cause  and  to  rebut  presumption  of  malice.  Aaer 
T.  Maaser,  618. 

21.  Question  for  Jury  —  Insurance  —  Clerical  error  in  description. 
Where  by  a  clerical  error  of  the  agent  of  an  insurance  company  the 
description  of  the  property  insured  designated  one  stable  instead  of 
two,  and  where  it  was  the  intention  of  the  insured  and  insurer  to  cover 
two  stables  instead  of  one,  such  clerical  error  will  not  enable  the 
defendant  company  to  avoid  the  policy  to  the  injury  of  the  insured. 
The  question  as  to  how  the  error  arose  was  one  purely  of  fact  and  was 
properly  for  the  jury,  the  evidence  being  ample  to  warrant  a  verdict 
for  the  plaintiff.    Shanahan  v.  Ins.  Co.^  65. 

22.  Question  for  Jury — Mutual  insurance — ^ect  of  cancelation.  In 
a  suit  by  a  receiver  to  recover  on  a  premium  note,  an  assessment 
authorized  by  the  court,  where  the  defense  is  that  the  policy  had  been 
canceled  by  agreement,  and  there  is  evidence  which  if  believed  would 
justify  the  jtiry  in  finding  that  such  agreement  had  been  made,  the 
court  properly  left  the  case  to  the  jury  to  be  controlled  by  their  find- 
ing of  two  facts,  namely,  cancelation  of  the  policy  and  nonliability  at 
the  time  of  such  cancelation  by  reason  of  the  fact  that  the  company 


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700  INDEX. 

PROVINCE  OF  COURT  AND  JURY— continued. 

had  collected  assessments  with  which,  or  had  the  means,  to  pay  losses 
for  which  insured  was  liable  as  a  member  of  the  company  at  the  time. 
Matten  t.  Lichtenwalnery  576. 

23.  Question  for  Jury — Negligence — Duty  qf  driver  approaching  cross- 
ing. It  is  the  duty  of  drivers  of  wagons  to  approach  street  crossings, 
recognizing  the  fact  that  people  may  attempt  to  cross  at  that  street, 
and  it  therefore  becomes  a  duty  to  have  the  team  in  such  condition 
as  to  be  able  to  stop  it. 

A  driver  of  an  ice  wagon  turned  so  suddenly  from  Arch  to  Juniper 
street  that  the  near  horse  struck  a  woman  just  stepping  from  the  curb 
upon  the  crossing.  The  evidence  of  negligence  was  clear  and  abimd- 
ant,  although  to  some  extent  denied.  Ueld^  that  the  question  of  neg- 
ligence was  properly  left  to  the  jury.    Kleinert  y.  loe  &  Coal  Co.y  594. 

24.  Question  for  jury — Negligence — Master  and  servant.  Builders 
under  contract  to  furnish  the  necessary  scaffolding  for  a  subcontractor 
are  liable  for  injuries  resulting  from  its  negligent  construction. 

The  evidence  being  conflicting  on  the  question  of  negligence,  the 
case  is  properly  for  the  jury.    Hoffner  y.  Prettyman^  20. 

26.  Question  for  Jury — Negligence — Street  railways — Duty  <jf  motor- 
man.  Where  there  is  evidence  of  the  failure  to  ring  the  bell  and  of 
failure  to  i>erceive  the  approach  of  the  child  who  was  killed  by  a 
trolley  car,  and  that  the  motorman  was  engaged  in  conversation  with 
one  of  the  passengers  just  before  the  accident  and  that  his  face  was 
at  one  time  turned  away  from  the  track,  the  case  is  for  the  jury  on 
the  question  of  the  defendant's  negligence.  Karahota  y.  Traction 
Co.,  319. 

26.  Question  for  Jury — Promissory  notes  as  payment  of  debt — Pre- 
sumption. If  one  indebted  to  another  gives  his  negotiable  promissory 
note  for  the  amount  without  any  new  consideration,  the  acceptance 
of  the  note  does  not  operate  as  payment  or  satisfaction,  unless  so 
intended  by  the  parties,  and  this  is  a  question  for  the  jury  if  there  be 
any  evidence  going  to  show  such  intention.  Bixler  &  Correll  y* 
Lesh,  459. 

27.  Question  for  Jury  —  Replevin — Evidence.  The  evidence  being 
undisputed  that  the  title  of  an  engine  replevied  by  plaintiff  was  in 
him,  the  court  was  clearly  correct  in  leaving  to  the  jury,  as  the  only 
question  for  their  consideration,  the  value  of  the  property  in  contro- 
versy.   Lamb  y.  Leader,  50. 

28.  Question  for  Jury — Street  railways — Negligence — **  Stop,  look  and 
listen,'^  In  an  action  for  damages  resulting  from  an  accident  at  a  rail- 
way crossing,  the  case  is  for  the  jury  where  the  evidence  submitted 
by  the  parties  is  contradictory  in  most  important  particulars. 

Plaintiff's  evidence  tended  to  show  that  he  stopped,  looked  and 
listened  and  could  see  no  car  approaching,  and  that  his  horses  were 
struck  by  a  car  approaching  over  an  undulating  track  at  the  rate  of 
thirty-five  miles  an  hour.  Defendant's  testimony  tended  to  show  that 
the  wagon  was  visible  for  a  long  distance  from  the  car,  and  was  going 
in  the  same  direction  and  turned  suddenly  to  cross  the  tracks  without 
any  effective  attempt  to  **stop.  look  and  listen,"  which  must  have 
disclosed  the  approaching  car  clearly  visible  from  the  crossing;  that 


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PROVINCE  OF  COURT  AND  JVBY-^ontinued. 

the  motorman  had  the  current  off  and  brake  on  and  had  sounded  his 
belL  Held,  that  for  the  court  to  determine  which  of  these  statements 
is  true,  would  be  an  usurption  of  the  power  lodged  in  the  jury.  Safe 
Deposit  Co.  T.  Baiiwaj  €0.9  204. 

29.  Question  qf  reasonable  time.  The  question  of  what  is  reasonable 
time  or  undue  delay,  when  the  facts  are  undisputed,  is  a  question  of 
law  to  be  determined  by  the  court.    Zineman  A  Co.  T.  HarriSy  808. 

80.  What  constitutes  for  the  court — Existence  for  the  Jury.  What  cir- 
cumstances constitute  probable  cause  is  for  the  court;  whether  they 
have  been  shown  in  a  particular  case  is  for  the  jury.  Auer  t*  Mauser^ 
618. 

PUBLIC  OFFICERS. 

1.  Appeals  —  Practice,  Superior  Court — Prison  keepers — Statutes — 
Acts  of  1790  and  1860.  An  order  of  court  was  made  confirming  the 
appointment  of  a  keei>er  of  a  county  prison,  and  no  appeal  being 
taken  to  the  order  within  the  time  allowed  by  law,  the  appellate  court 
cannot  go  behind  the  order  and,  upon  an  inquiry  into  the  facts,  treat 
it  as  a  nullity.  So  far  as  the  appellate  court  has  authority  to  deter- 
mine, the  order  was  valid  until  it  was  rescinded,  and  until  that  time 
the  keeper  was  entitled  to  receive  compensation;  he  is  entitled  to 
have  the  appeal  determined  by  the  record  proper.  McHenry's  Peti- 
tion, 464. 

2.  Constables — When  demand  requisite  under  act  cf  1T72.  The  written 
notice  or  demand  required  to  be  made  by  the  act  of  March  21,  1772, 
1  Sm.  L.  865,  only  applies  where  the  constable  acts  in  obedience  to  his 
warrant  or  writ;  it  has  no  application  where  the  cause  of  action  is 
based  on  his  open  contempt  of  and  disobedience  to  his  writ.  Com. 
T.  Teisley,  273. 

3.  Constable'^s  bond — Cause  qf  action  for  neglect.  In  an  action  of 
assumpsit  on  a  constable^s  official  bond  a  sufficient  cause  of  action  is 
disclosed  where  the  breach  alleged  was  that  an  execution  was  placed 
in  the  constable^s  hands  by  virtue  of  which  he  had  made  levy  upon 
goods  of  the  debtor  which  would  have  sold  for  more  than  enough  to 
satisfy  the  execution  but  that  he  neglected  and  refused  to  sell  them 
but  made  return  **no  goods  found  subject  to  levy  and  sale.^^  Coin. 
T.  Teisley,  273. 

4.  Constable^ s  liability  for  false  return^ Act  of  1772.  Where  a  con- 
stable, after  he  had  a  sufficient  levy  and  had  accepted  a  sufficient 
bond  of  indemnity,  abandons  his  levy  and  returns  his  writ,  he  is  neither 
justified  by  his  writ  nor  protected  by  the  Act  of  March  21, 1772,  1  Sm. 
L.  864.  The  object  of  the  sixth  section  of  the  act  of  1772  was  to  pro- 
tect constables  and  inferior  officers  from  suffering  injury  for  acts  done 
strictly  in  obedience  to  their  warrants,  by  reason  of  irregularity  or 
for  want  of  jurisdiction  in  the  magistrate.    Pollock  y.  Ingram,  556. 

5.  Necessary  furnishing  cf  public  office.  The  furnishing  of  ice  is  not 
one  of  the  **  things  necessary  for  the  proper  furnishing  of  the  offices 
of  the  register  of  wills  and  orphans'  courf    Ice  Co.  T.  Phila.,  299. 

6.  Sheriff— Advertisement  qf  elections — ^^  General  election^^  defined — 
Statutes,    The  sheriff  is  not  authorized  or  required  to  give  notice  by 


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702  INDEX. 

PUBLIC  OFFICERS— continued. 

adyertisement  of  the  annual  spring  munioipal  election  as  proTided  in 
sec.  10  of  the  Act  of  June  26,  1895,  P.  L.  892,  for,  in  cases  of  general 
elections,  sach  municipal  elections  are  not  general  elections  within 
the  meaning  of  said  section.  Wilkes-Barre  Booord  r.  Laierne  Co., 
600. 

RAILKOAU 

1.  Eminent  domain — Practice — Bes  judicata — Construction  of  char- 
ter. The  uniyersal  practice  upon  well  settled  law,  under  mode  pointed 
out  by  the  supplement  to  charter  of  the  Pennsylvania  Railroad  Com- 
pany, has  been  to  assess  all  the  damages  done,  or  likely  to  be  done, 
to  the  premises  through  which  a  railroad  passes,  including  materials 
taken  from  adjoining  land,  and  at  a  different  time,  although  the  bond, 
for  appropriation  of  the  strip  for  right  of  way,  and  the  petition  in  the 
proceedings,  set  forth  and  are  for  damages  for  right  of  way  only,  and 
not  for  damages  for  materials  so  taken  from  adjoining  lands. 

Under  said  supplement,  a  different  cause  of  action  does  not  exist 
for  materials  so  taken,  and  a  petition  for  the  appointment  of  a  jury 
to  assess  such  damages  will,  on  motion,  be  stricken  off,  as  res  judi- 
cata.   Bobinson  y.  B.  B.  Co.,  388. 

2.  Street  railways — Negligence — ^^  Stop,  look  and  W«£en" — Question 
for  Jury.    Safe  Deposit  Co.  y.  Bail  way  Co.^  204. 

8.  Street  railways — Q^estion  for  jury — Negligence — Duty  of  motor- 
man — Contributory  negligence  qf  parent.  Karahata  y.  Traction  Co.f 
319. 

RAILROAD  RELIEF  ASSOCIATION. 

1.  Contractual  liability — Words  and  phrases — Connected  and  associ- 
ated or  affiliated  companies.  Where  the  whole  project  and  intend- 
ment of  a  railroad  relief  association  is  based  upon  the  control  of  the 
business  by  persons  who  are  interested  in  the  contributions  and  bene- 
fits and  where  membership  is  limited  to  employees  of  railroads  con- 
nected and  associated  with  the  Reading  Railroad,  the  term  **  connected 
and  associated  ^^  is  to  be  construed  as  applicable  to  railroads  so  recog- 
nized by  representation  in  the  relief  association;  it  cannot  be  forced 
by  strained  construction  to  coyer  companies  **  affiliated  ^^  with  the 
Reading  Company  in  a  limited,  special  and  contractual  manner,  the 
employees  of  which  were  neyer  recognized  as  eligible  to  membership 
in  the  relief  association.    Klmbroagh  y.  Hoff man^  60. 

REAL  ESTATE. 

1.  Bight  to  recover  for  sale  under  contract — Broker.  Any  person  may 
lawfully  employ  one,  who  is  not  a  real  estate  broker,  to  buy  or  sell 
real  estate,  and  when  such  employment  takes  place  and  labor  is  done 
under  the  employment,  it  must  be  paid  for.  Yedinskey  y*  Stronse^ 
587. 

RECORD. 

1.  Liquor  law — Intervention  qf  volunteers  as  appellants.  Schellen- 
berg's  License^  26. 


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INDEX.  703 

1.  Appeal— Weight  to  be  gU>en  to  referee^ %  findings  qffact.  Newlln 
T.  Aeklej,  897. 

REPLEVIN. 

1.  Actions — Illegal  distress — Proper  remedy  is  replevin.  Bogrert  T. 
Batterton,  468. 

2.  Evidence--Question  for  Jury.    Lamb  T.  Leader,  60. 

RES  ADJUDICATA. 

1.  Railroads — Eminent  domain — Practice — Construction  of  charter. 
Bobinson  t.  B.  B.  Co.,  388. 

RES  GESTAE. 

1.  Trespass — Evidence.  Illegal  closing  of  plaintiff's  windows.  Omen- 
setter  T*  Kemper^  809. 
• 
RIPARIAN  RIGHTS. 

1.  JQfcci  of  survey — Land  bounded  by  stream.  A  survey  returned  as 
bounded  by  a  navigable  river  vests  in  the  owner  the  right  of  soil  to 
ordinary  low  watermark  of  the  stream  subject  to  the  public  right  of 
passage,  etc.,  between  ordinary  high  and  low  watermark  and  where 
there  is  nothing  more  in  the  case,  the  successors  in  the  title  hold  oo- 
extensively.    Smneker  t.  B.  B*  €o.»  521. 

ROAD  LAW. 

1.  Evidence — Measure  of  damages.  €frier  y*  Homestead  Borongh^ 
542. 

RULE  OF  COURT. 

1.  Practice^  Superior  Court — Defective  assignment  —  Rule  XVI. 
Lamb  r.  Leader^  50. 

SALE. 

1.  Assignment  for  creditors— Parol  evidence.    Taylor  v.  Paul^  496. 

2.  Consignment  for  sale — Fraud.  It  has  been  the  policy  of  the  law 
and  the  aim  and  trend  of  all  the  decisions  to  prevent  fraudulent  im- 
position on  creditors  by  a  misleading  possession;  but  open,  notorious 
and  exclusive  possession  being  destructive  of  all  sales  under  con- 
signment is  not  the  test  where  there  has  been  a  bona  fide  and  honest 
consignment  of  goods  to  be  sold  as  the  property  of  the  consignor. 
The  honesty  of  the  transaction  and  the  intention  of  the  parties  while 
not  the  sole  tests,  are  important  and  constituent  parts  of  it  in  deter- 
mining whether  a  transaction  is  a  sale  or  consignment,  with  a  view  to 
determining  the  liability  of  the  goods  to  execution  creditors  of  the 
consignee  or  vendee.    Oattle  Bros*  T.  Kremp,  514. 

8.  Fraud — Rule  cf  Smith  v.  Smith  to  be  strictly  construed.  Claster 
Bros.  T.  Katzy  487. 

4.  Practice,  C.  P. —Sufficiency  of  affidavit  of  d^ense.  North  k  €©• 
V.  Torke^  854. 


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704  INDEX. 

SERVICE  OF  PROCESS. 

1.  Judgment^Mistaken  name.    Althoase  T.  Hunsberger,  100. 

SET-OFF. 

1.  Assignment  qf  chose — Subject  to  defense — Notice.  An  assignee 
of  a  chose  in  action  not  negotiable  takes  it  subject  to  all  the  defenses 
to  which  it  was  subject  in  the  hands  of  an  assignor  including  the  right 
of  the  debtor  to  set  off  any  claim  against  the  assignee  before  notice  of 
the  assignment.    Skinner  r.  Chasoy  279. 

2.  Contract  of  decedent — Mispayment  to  widow — Quoai  administra- 
tion.   Cooper  T.  Eyrlcliy  200. 

3.  Judgment — Assignment  qf  judgment — Discretion  as  to  cof\flicting 
equities.  The  equity  of  a  defendant  to  set  off  a  judgment  purchased 
by  him  against  a  judgment  acquired  by  the  plaintiff  against  him  is 
equal  to  the  secret  equity  of  an  assignee  of  plaintiff ^s  judgment  prior 
in  time  to  defendant's  acquisition  of  judgment  sought  to  be  set  off 
where  said  assignee  has  neglected  the  precaution  jof  having  the  judg- 
ment marked  to  use.  The  appellate  court  therefore  will  not  disturb 
the  exercise  of  the  discretion  of  the  court  below  in  making  absolute  a 
rule  to  permit  defendant  to  set  off  the  judgment  against  the  plaintiff 
acquired  by  him  after  suit  brought.    Skinner  y.  ChasOf  279. 

4.  Judgments  as  set  off.  Judgments  are  set  off  against  each  other 
by  the  inherent  powers  of  the  court  immemorially  exercised.  Skin* 
ner  t.  Cliasey  279. 

SHERIFF,  see  Public  Officers. 

SHERIFF'S  INTERPLEADER. 

1.  Measure  of  damages — Claim  property  bond  in  sheriff^ s  interpleader. 
Beger  r.  Brass  Co.»  375. 

SHERIFF'S  SALE. 

1.  Practice^  C.  P. — Sufficiency  qf  affidavit — Landlord  and  tenant 
— Sheriff's  sale  of  leased  property.    Bldg*  Assn.  T.  Wampoley  238. 

SLANDER,  see  Criminal  Law. 

STATUTES. 

1.  Amendments — Statutes  liberally  construed.  Phila*  T*  Christ* 
man,  29. 

2.  Construction — Repeal  by  nonuser.  An  act  of  the  legislature  can- 
not be  repealed  by  nonuser.  A  statute  can  be  repealed  only  by 
express  provision  of  a  subsequent  law  or  by  necessary  implication. 
To  repeal  by  implication  there  must  be  such  positive  repugnancy 
between  the  new  law  and  the  old  that  they  cannot  stand  together  or 
be  consistently  reconciled.  Only  so  far  as  the  later  statute  is  repug- 
nant to  the  prior,  does  it  operate  as  a  repeal.  McHenry's  Peii* 
tion,  464. 

3.  Criminal  law — Abortion — Adequate  charge — Answer  to  point  — 
Question  for  jury.    Com.  v.  Page,  220. 

4.  Criminal  law  —  Fraudulent  removal  qf  goods — Pleading^ Act  qf 
1885.    Com.  V.  Lewis,  610. 


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INDEX.  705 

STATUTES— continued. 

6.  Inmrance^ Foreign  companies — Lex  loci  —  Prohibitive  Pennsyl- 
vania statutes.    Ins.  Co.  t.  Storage  Co.f  288. 

6.  Mechanic's  lien  for  alterations,  etc. — Notice — Statutes  construed. 
The  Act  of  May  18,  1887,  P.  L.  118,  extending  the  local  law  of  May  1, 
1861,  P.  L.  550,  relative  to  liens  for  repairs,  alterations  and  additions 
is  a  substitute  for  the  latter  act  and  the  latter  act  must  yield.  The 
same  interpretation  applies  to  its  effect  on  the  Act  of  August  1,  1868, 
P.  L.  1168,  which  permitted  liens  to  be  filed  in  the  city  of  Philadel- 
phia, but  contained  no  requirement  as  to  notice,  and  the  act  of  1868 
must  be  considered  as  superseded,  so  far  as  the  duty  to  give  notice 
under  the  act  of  1887  is  concerned.    Clark  r.  KopliUy  462. 

7.  Prison  keepers — Acts  qf  1790  and  1860.  There  is  no  such  incon- 
sistency and  repugnancy  between  the  28th  section  of  the  Act  of 
AprU  6,  1790,  2  Sm.  L.  539,  and  the  Act  of  March  31,  1860,  P.  L.  427, 
as  requires  the  courts  to  hold  that  keepers  of  jails  or  prisons  may  not 
be  appointed  in  counties,  where,  in  the  opinion  of  the  court,  suitable 
prisons  have  been  erected  for  imprisonment  of  convicts  at  labor. 
McHenry'g  Petition,  464. 

8.  Taxation — General  and  local  laios  construed  and  sustained.  Com. 
y.  Commissioners,  211. 

STATUTE  OF  FRAUDS. 

1.  Contract — Original  undertaking.  Where  the  paramount  purpose 
moving  a  promisor  in  making  a  promise  was  to  subserve  his  own  inter- 
ests, it  becomes  an  original  undertaking  and  is  not  within  the  statute 
of  frauds,  although  the  promise  incidentally  includes  the  payment  of 
the  debt  of  another. 

Where  plaintiff  and  defendant  were  creditors  of  B.,  and  plaintiff  bid 
in  certain  goods  at  a  sheriff  ^s  sale  of  B.^s  business  which  was  pur- 
chased by  defendant,  a  promise  by  defendant  that  in  consideration  of 
a  transfer  of  plaintiff ^s  bid  that  he,  the  defendant,  would  pay  B.'s 
debt  to  plaintiff,  because  he  could  not  run  the  place  without  the  goods 
purchased  by  plaintiff,  such  promise  although  in  form  an  assumption 
of  B.^s  debt  is  what  is  termed  an  original  undertaking  and  is  not  within 
the  statute.    Kelly  v.  Bann,  327. 

2.  Landlord  and  tenant — Lease  signed  by  tenant  only — Opening  judg- 
ment.   Schnltz  T.  Barlocky  573. 

STATUTE  OF  LIMITATIONS. 

1.  Division  fence — Consentable  line — Burden  of  proof.  Omensetter 
V.  Kemper,  309. 

STOCK. 

1.  Contract — Rescission  of — Stock  subscription — Misrepresentation. 
Pliila.  Bourse  v.  Downing,  590. 

2.  Practice,  C.  P. — Insufficient  affidavit — Subscription — Alleged  in- 
ducing promises.    Ligbt,  Heat  A  Povrer  Co.  v.  Beck,  584. 

TAXATION. 

1.  Exemption— Public  charity-^Church  school.    MoUen  Y.  Jaenet,  1. 

Vol.  VI— 46 


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706  INDEX. 

TAXATIOK— con^inuccf. 

2.  Public  charity — Haverford  College  nonsectarian.  Haverford  Col- 
lege, being  a  college  open  to  all  persons,  educationally  qualified,  upon 
the  same  terms,  its  funds  not  being  diverted  to  the  education  of  the 
children  of  any  sect  in  preference  to  others,  is  a  public  charity  and  as 
such  is  exempt  from  taxation. 

The  fact  that  its  board  of  managers  is  controlled  by  members  of  the 
Society  of  Friends  is  immaterial,  as  is  also  the  fact  that  certain  free 
scholarships  are  restricted  to  Friends,  since  others  are  free  to  all  who 
apply,    HaYeiford  College  t.  Bhoads,  71. 

3.  Statutes — General  and  local  laws  construed  and  sustained.  The 
local  law  of  April  13,  1868,  P.  L.  1017,  providing  for  the  collection  of 
taxes  in  the  county  of  Bedford  recognized  and  retained  by  the  Act  of 
June  24,  1885,  P,  L.  187,  is  not  repealed  by  the  Act  of  June  6,  1893, 
P.  L.  833,  entitled  **  An  act  to  authorize  the  election  of  tax  collectors 
for  the  term  of  three  years  in  the  several  boroughs  of  this  common- 
wealth." 

There  is  no  inconsistency  between  these  local  and  general  acts  which 
can  be  enforced  at  the  same  time  without  in  any  material  way  interfer- 
ing with  each  other.    Com.  y.  Commissioners)  211. 

TIME. 

1.  Contract — Time  is  of  essence  of  a  contract  to  deliver  chattels. 
HeUer'8  Est,  240. 

2.  Province  of  court  and  Jury — Question  of  reasonable  time.  The 
question  of  what  is  reasonable  tin^  or  undue  delay,  when  the  facts  are 
undisputed,  is  a  question  of  law  to  be  determined  by  the  court. 
Zineman  &  Co.  t.  Harris,  30a 

TITLE. 

1.  Actions— Trespass  for  trying  title.    Smoclcer  T.  B.  R«  Co.,  521. 
"2.    Trespass — Title  by  possession — Burden  qf  proof  on  defendant. 
^teiensetter  t.  Kemper,  300. 

TRESPASS,  see  Actions. 

TROVtEB,  see  Actions. 

TRUSTS  AND  TRUSTEES. 

1.  Partition — Distribution  of  proceeds — Lien  creators  of  heir — TVua* 
tee^B  resipoHsiJbility  —  Judicial  sale  —  Divestiture  qf  liens.  Com.  T. 
Bodgrerft,  284. 

USURY. 

1.  Mortgage — Right  of  mortgagor  to  defend  when  he  has  sold  property 
with  an  agreement  so  to  do.  The  act  of  assembly  expressly  gives  a  bor- 
rower the  fight  to  defend  against  a  claim  for  interest  in  excess  of  the 
legal  rate,  and  courts  will  not  permit  a  creditor  to  defeat  this  right 
through  a  confusion  of  legal  principles. 

A  mortgagor  sold  lihe  premises  subject  to  a  mortgage  covering  usuri- 
ous interest,  cavenanting  with  his  vendee  to  defend  against  the  mort- 


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USURY— continued. 

gage  to  the  extent  of  the  usury.  Held,  that  the  filing  by  the  mortgagee 
of  a  written  release  of  the  mortgagor  of  all  personal  liability  and  restrict- 
ing the  lien  of  the  judgment  and  execution  to  the  real  estate  bound 
by  the  mortgage  will  not  defeat  the  mortgagor's  right  to  defend  nor 
operate  in  evasion  of  the  statute.    Kennedy  t.  ({nigg^  53. 

WATERS  AND  WATERCOURSES. 

1.  Grant  not  restricted  to  primary  uses,  A  grant  gave  the  grantee 
and  his  heirs  and  assigns  *Hhe  free  use  and  privilege  of  a  certain 
stream  of  water  that  now  runs  through  other  lands  '^  of  the  grantor, 
**  and  the  unobstructed  right  of  conveying  the  said  water  in  an  open 
race  or  watercourse  to  the  saw,  plaster  and  feed  mill  as  it  is  now  run- 
ning, with  the  right  of  entering  upon  said  premises  at  any  and  all 
times  to  cleanse,  scour  and  repair  the  said  race  and  watercourse. '^ 
Held,  that  the  successors  in  title  of  the  grantor  have  no  right  of  ac- 
tion against  the  grantee  or  his  successor  in  title  for  changing  the  use 
to  which  the  water  is  put  after  he  receives  it,  nor  for  trespass  on 
grantor's  land  to  maintain  and  repair  the  watercourse  to  supply  water 
for  such  changed  use.    Davis  T.  Hamilton,  562. 

2.  Obstruction  and  dhersion — Prescription.  Where  the  obstruction 
of  a  watercourse  is  complained  of,  instructions  to  the  jury  are  proper 
to  the  effect  that  if  the  natural  flow  of  a  watercourse  had  remained  as 
alleged  for  twenty-one  years  then  the  plaintiff's  right  to  the  water  be- 
came absolute.  The  testimony  being  contradictory  as  to  the  responsi- 
bility of  defendant  for  the  alleged  diversion  it  was  properly  left  to  the 
jury,  with  directions  to  reconcile  it  if  they  could,  and  if  not  to  deter- 
mine on  which  side  the  truth  lay.    Adam  t«  Moll,  380. 

WAY. 

1.  Easement— Reservation  cf  moiety  qf  spring — Access  thereto.  My- 
ton  T.  Wilson,  293. 

WIDOW'S  EXEMPTION. 

1.  Effect  qf  liens  existing  against  decedent  and  widow.-  A  widow  tak- 
ing under  a  will  subsequently  claimed  her  exemption  out  of  proceeds 
of  sale  of  certain  real  estate.  Judgments  existed  which  were  liens  on 
the  husband's  estate  and  also  a  personal  judgment  against  her.  Held, 
that  the  judgments  were  only  a  lien  upon  the  interest  acquired  under 
the  will,  and  they  did  not  bind  the  proceeds  of  the  sale  of  the  real  es- 
tate claimed  by  the  widow  as  her  exemption.    Potter's  Est*,  633. 

2.  Waiver  obtained  by  undue  influence — Equity.  A  paper  purporting 
to  be  a  waiver  of  a  widow's  right  to  exemption  executed  by  an  aged 
widow  in  ignorance  of  her  rights  and  of  the  significance  of  the  paper 
at  the  solicitations  of  her  husband's  creditor  without  advice  or  oppor- 
tunity to  seek  advice,  will  not  be  permitted  to  interfere  with  her  rights 
to  claim  the  benefit  of  the  act  of  1851.     Potter's  Est.,  627. 

WILL. 

1.  Bequest  qf  interest  a  bequest  qf  the  fund—L^fe  estate.  FelFs  Est., 
192. 


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708  INDEX. 

WILL — continued. 

2.  Testamentary  incapacity — Issue  d.  v.  n.  An  issue  wili  not  b6 
awarded  where  the  evidence  showed  that  while  the  testator  was  ad- 
vanced in  years  at  the  time  of  making  the  will,  and  not  exempt  from 
the  infirmities  of  age  or  the  impairment  of  the  mental  faculties  inci- 
dent thereto,  disclosed  no  positive  mental  disability  or  incompetence 
to  act  understandingly,  and  where  the  sole  act  complained  of  was  the 
displacement  of  the  appellant  as  executor  who  was  then  eighty-seven, 
and  the  substitution  of  a  younger  man  of  unquestioned  fitness. 
Eoyer>8  Est,,  401. 

WORDS  AND  PHRASES. 

1.  "  Clear  and  sati^actory  evidence.^'    Taylor  y.  Paal,  496. 

2.  "  Connected  and  associated  or  affiliated  companies^^*  as  applied  to 
a  railroad  relief  association.    Kimbrongh  T.  Hoffman,  00. 

3.  ^^  Conviction^''  defined.  When  the  law  speaks  of  conviction,  it 
means  a  judgment,  and  not  merely  a  verdict  which  in  common  par- 
lance is  called  a  conviction.    Com.  y.  Miller,  35. 

4.  **  Necessary  furnishing  of  public  office.''''    Ice  Co.  y.  PhlUu^  200. 

5.  **  Rule  of  mason's  workmanship,''''    Koch  v.  Kahns,  186. 

0.  "  Stop,  look  and  listen''— Question  for  jury.  Safe  Deposit  Co.  y. 
Railway  Co.,  204. 


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