Volume 136 — Pennsylvania State Reports

No. 399 January Term 1889, Sup. Ct.; court below, No. 121 November Term 1883, C. P. On October 18,1883, Philip Keller brought ejectment against George W. Ford and James A. Beaver for a tract of land containing 300 acres and six per cent allowance, etc. The defendant’s plea was not guilty. On February 1, 1886, the death of George W. Ford being suggested, Mary P. Over and others, his heirs at law, were substituted as defendants.

No. 137 July Term 1889, Sup. Ct.; court below, No. 669 December Term 1888, C. P. No. 1. On December 31, 1888, Richard B. Sheridan filed a bill in equity against Francis Sheridan and others, praying for partition of a tract of land in the city of Philadelphia, containing about twenty-two acres.

<p>No. 166 July Term 1889, Sup. Ct.; court below, No. 414 January Term 1889, O. C.</p> <p>On April 2, 1889, the account of the Fidelity etc. Company, 'administrator of the estate of Emeline L. Bucknor, deceased, exhibiting a balance for distribution, was called for audit before Penrose, J., who on April 18, 1889, filed an adjudication in part as follows:</p> <p>The decedent died, as represented to the court, January 30, •1887, intestate, a widow leaving five children: Marion B. James, Virginia B. Wonnley, William H. Bucknor, Charles Bucknor, and Mrs. Annie E. Starr; and grandchildren and gleat grandchildren:.....</p> <p>In January, 1886, Mrs. Annie E. Starr received from the decedent $1,000, and gave to her the following paper:</p> <p>“1886.</p> <p>“ Received of Mrs. E. L. Bucknor one thousand dollars $1,000 January Thursday 14th will pay $50 dollars a month—also six per cent interest. ,\ * . - 0. „ r (Signed) Annie E. Starr.</p> <p>At the foot of this paper is written in lead pencil: “ Rec. from Mrs. Starr $30 interest on Thursday 10th. E. L. Buck-nor.”</p> <p>There is no allegation that the money so received was ever returned by Mrs. Starr; but she was at the time and still is the wife of Henry C. Starr, and now sets up her coverture as a reason for not charging her in distribution with the amount.</p> <p>It is said on her behalf, first, that the doctrine of advancement does not apply to the distribution of the estate of a mother; and second, that a debt cannot be changed, in cases of intestacy, into an advancement.</p> <p>1. Under the English statute, grounded on the Custom of London, which never, it is said, affected a widow’s personal estate, it was decided by Lord King, in Holt v. Frederick, 2 P. Wins. 357, though as the reporter says “ without much debate,” that if a mother, being a widow, advances a child, and dies intestate, leaving many children, the child advanced shall not bring what he has received from his mother into hotchpot; and on the strength of this case, the law is so stated in Williams on Executors, 1607. This, however, does not seem to have been the understanding in Pennsylvania: See Murphy v. Nathans, 46 Pa. 508, though the auditing judge is not aware of any case in the state where the question has been directly raised. Our statute [act of April 8, 1833, P. L. 315], unlike the Custom of London referred to by Lord King, is general, and provides for the division and enjoyment of the “ real and personal estate of a decedent, whether male or female; ” and, though the sixteenth section relating to advancements uses the masculine pronoun, this is evidently in a generic sense; just as in the thirteenth section, which provides that “ descendants and relatives of an intestate begotten before his death and born thereafter shall in all cases inherit and take in like manner as if they had been born in the lifetime of such intestate; ” and § 2, clause III., where it is declared that “ if such intestate shall leave descendants in any other degree of consanguinity, however remote from him and all in the same degree of consanguinity to him, the estate shall descend to and be distributed among such descendants ; ” and clause IV.: “ If such intestate shall leave descendants in different degrees of consanguinity to him, the more remote of them being the issue of a deceased child, grandchild, or other descendant, the estate shall descend to and be distributed among them as follows,” etc. No one will contend that these sections do not relate to the descent of the estates of females as well as of males.</p> <p>The precise point has been decided under the New York statute, which differs in no essential respect from ours, in Kurtz v. Friday, 4 Dem. K.., where the doctrine of Holt v. Frederick is rejected, in an elaborate and well considered opinion by the surrogate, Judge Adlington.</p> <p>2. The cases in which it is said that a debt cannot be changed into an advancement are cases where the liability of the child, as debtor, has been suffered by the parent to become barred by the statute ofTimitations. In such cases, it is manifest that the parent did not intend at the outset to deal with the child in any other relation than that of debtor and creditor; and the relation thus established cannot subsequently be changed without the consent of both parties .to the contract. But here, one of the parties being incapable of entering into a contract and now setting up that incapacity, there never was any contract at all.</p> <p>It is clear that the decedent did not intend that her daughter should keep the amount received by her as a gift; [and the daughter repudiates the idea that it was received by way of loan.] 4 The result was that the property remained in the mother and continued hers, though in the hands of the daughter. The contract having been void ab initio, there never was a debt at all, and the principle that what was once a debt cannot be treated as an advancement, has no application. It is a familiar doctrine that one who avoids a contract by setting up his or her inability to enter into it, must return the consideration: Badger v. Pbinney, 15 Mass. 359; 2 Kent Com., 240. This, as was said in Fulton v. Moore, 25 Pa. 478, applies to the contracts of married women no less than those of infants: “ Whether the contract be void or voidable, or whether it be made by an infant or feme covert, is immaterial, because its validity depends not so much upon ratification as upon honestjr and conscience, which will not permit airjf one to unjustly enjoy both the thing itself and its value.” The principle was applied to its fullest extent in the recent cases of Fryer v. Rishell, 84 Pa. 521, and Grim’s App., 105 Pa. 376.</p> <p>Having got $1,000 of her mother’s property by her contract to return it, and the contract, as she now asserts, being one which she had not the right to make, Mrs. Starr’s position is simply that of a person holding the custody of that to which she has no title; and, while at law there would, perhaps, be difficulty in enforcing the return to the estate, the property being money which cannot be followed (it would be otherwise if she had purchased an article for which replevin could be brought), a very different condition of affairs is presented when she comes into a court" of equity asking for her share of an estate of which she thus already holds a part. Certainly every principle of morality is against the attempt on the part of the daughter to secure to herself, through the fiction of her want of capacity, a larger share of her mother’s estate than can be had by her brother and sisters. In this view of the case, the question whether the doctrine of advancements applies to a mother’s estate becomes immaterial: the'money was not given, and [there was no contract of loan; the daughter, therefore, held merely as custodian or bailee, and will retain what she so holds as part of her share of the entire estate.] 3</p> <p>The $1,000 in the hands of Mrs. Starr, will, for the purpose of distribution, be added to the balance and charged against her distributive share.</p> <p>—Thereupon the auditing judge made a distribution of the fund in the accountant’s hands, in accordance with the foregoing conclusions.</p> <p>To this adjudication, Annie E. Starr filed exceptions, alleging that the auditing judge erred in finding that the due-bill for $1,000 was an advancement and not a debt;1 in deducting the amount of it from the distributive share of the exceptant,3 and in reporting the findings embraced in [ ] 3 4</p> <p>After argument of the exceptions before the court in banc, the following opinion was filed, Ferguson, J.</p> <p>The decision of the auditing judge, in this case, was so manifestly equitable and just that, if it were necessary, we would, perhaps, be justified in straining a point to sustain him in the conclusion which he has reached; but there is no necessity to do this, as we think he is sustained by abundant authorities.</p> <p>A daughter of the decedent had received from her the sum of $1,000, for which she gave an acknowledgment in writing, and during her lifetime made at least one payment of interest on the same. ‘ In the distribution of the decedent’s estate it was sought to charge this sum against her distributive share. This was resisted, upon the ground that it was not an advancement, because a mother cannot make an advancement, and, also, because it was a debt; and it was not a debt, because the daughter was at the time a married woman, and, therefore, incapable of contracting any debt. It was not alleged that it was a gift, and if it was, the paper signed at the time, and the payment of interest, negative any claim of this kind. In a word, this daughter holds $1,000 belonging to the estate of her mother, without any consideration. Tins she claims to keep, so that, in the distribution of this small estate, she receives $1,000 more than each of the other five children.</p> <p>It is needless to discuss the question whether this money is to be considered as an advancement or a loan, because the daughter repudiates both of these positions, for the reason that to admit either leaves no room to escape from her share being charged with it. The honest and proper thing to do is what she desires to avoid doing; and, to accomplish this desire, she invokes all the technicalities which her coverture throws around her.</p> <p>Does her coverture permit her to be dishonest? This is the question which this case presents for our consideration.</p> <p>There is no doubt but that when this money was given to the daughter, it was intended by both parties to the transaction as a loan. The daughter received the money with that understanding. She now says, “ I was a married woman and incapable of making a contract, and it is therefore void.” She repudiates the contract, but keeps the money which was the fruit of it. This position is so unconscionable that no court of equity would sustain it for a moment.</p> <p>It is well settled that one who avoids a contract by setting up his or her inability to enter into it, must return the consideration. This was held in Fulton v. Moore, 25 Pa. 468, to apply to the contracts of married women as well as those of infants. In the very recent case of Bigham’s App., 123 Pa. 262, the Supreme Court say: “Married women have no license to do such unconscionable and unreasonable things as this, especially when they have enjoyed the fruits of the judicial action, which they solicited and procured, for nearly half of a century. Courts of justice are not convenient playthings to be used by designing persons for their private purposes, even though they be married women. Such tribunals cannot be expected to stultify themselves in order to gratify the wrongful or dishonest purpose of a litigant, because she has a husband.” In Grim’s App., 105 Pa. 382, the court say that “ A married woman should be held to the observance of that good faith in her dealings with the world to which others are bound. Her protection is for the prevention of fraud. She should not thereby be enabled with impunity to defraud others.” To the same effect, see also Couch v. Sutton, 1 Gr. 114; McCullough v. Wilson, 21 Pa. 436; Fryer v. Rishell, 84 Pa. 521; Brown’s App., 94 Pa. 362; Powell’s App., 98 Pa. 403.</p> <p>In this case, the contract of loan having been repudiated by the exceptant on account of her coverture, it is at an end, and the money should have been returned. As this has not been done, and the money still remains in her possession, we agree with the auditing judge that in order to accomplish justice [she must be considered as holding it as custodian or bailee for the estate, and in the distribution it should be deducted from her share thereof.] 5</p> <p>The exceptions are dismissed and the adjudication confirmed.</p> <p>—The exceptant then-took this appeal, assigning for error:</p> <p>1-4. The dismissal of the exceptions to the adjudication.1 to 4</p> <p>5. The conclusion of law set forth in [ ] 5</p>

No. 285 January Term 1890, Sup. Ct.; court below, No. 97 June Term 1889, C. P. No. 1. On May 31, 1889, Harry A. Limbert brought assumpsit against Joseph L. Jones, guardian of Ada L. and Charles O. Herman, minor children of Abraham Herman, deceased. Issue.

No. 361 January Term 1889, Sup. Ct.; court below, number and term not given. On December 1, 1887, Helen E. Robeno and Andrew T. Robeno, minor children of Andrew Robeno, Jr., deceased, by their guardian, Robert E. Pancoast, brought ejectment against Mary H. Marlatt, Sallie A. Marlatt, Mary Kennedy and Thomas Kennedy. Issue.

No. 418 January Term 1889, Sup. Ct.; court below, No. 582 April Term 1887, O. C. On December 5, 1888, tbe first account of James B. Chandler and Catherine M. Held: other meetings shall be called, and each stockholder shall be entitled to one vote for every share held by him, etc.

No. 175 July Term 1888, Nos. 77,109,110, 111, 112 January Term 1889, Sup. Court. Held: at which the foil iwing resolution was adopted: “ Resolved; That the capital stock of this company be increased $1,000,000, by the issue of one hundred thousand shares at par to the stockholders, in proportion of one share for each two shares held by them on the day they shall respectively subscribe for the same,—they subscribing an…

No. 440 January Term 1889, Sup. Ct.; court below, No. 524 December Term 1887, C. P. No. 4.

No. 106 July Term 1889, Sup. Ct.; court below, No. 332 December Term 1883, C. P. No. 2. On December 29, 1883, Jesse Gyger filed a bill in equity against the Philadelphia City Passenger Railway Company and the West Philadelphia Passenger Railway Company, setting forth that he was the owner of thirty-six shares of the capital stock of the first named company, and further averring in substance as follows: 2. That the Phila. City Pass. Ry.

No. 155 July Term 1889, Sup. Ct.; court below, No. 65 June Term 1887, C. P. No. 2. On May 5, 1887, John Wischam brought trespass against Charles A. Blessing and George Rickards, to recover damages for injuries received through the alleged negligence of defendants. Issue.

No. 57 January Term 1890, Sup. Ct.; court below, No. 609 March. Term 1889, C. P. No. 4.

No. 81 January Term 1890, Sup. Ct.; court below, No. 26 October Term 1879, O. C. An account, settled by the Girard Life Insurance, Annuity and Trust Company,… Held: citing Ralston v. Wain, 44 Pa. 279; Earp’s App., 75 Pa. 119; Dodson v. Ball, 60 Pa. 492, and Bacon’s App., 57 Pa. 509, that the trust must be sustained for the protection and benefit of the remainder-men, and awarded the balance, being the corpus of the estate, to the accountant, as trustee under the will.

No. 62 July Term 1889, Sup. Ct.; court below, number and term not given. On May 5, 1888, Peter C. Hollis and John S. Wise, executors of the will of Franklin A. Comly, deceased, filed their account showing a balance due the estate, of income $6,334.13, and of principal, consisting of securities and cash, $149,066.51. Thereupon, no exceptions having been filed, Mr. Montgomery Evans was appointed auditor to report a distribution.

No. 283 January Term 1889, Sup. Ct.; court below, number and term not shown. On August 10, 1887, John W. Shaak administrator of the estate of George Fisher, deceased, brought assumpsit against Charles H. Meily for money had and received. Issue.

No. 12 January Term 1889, Sup. Ct.; court below, No. 4 January Term 1883, C. P. in Equity. On September 28, 1883, Isaac Gaines filed a bill in equity against Margaret Brockerhoff, widow, Andrew J., Plenry W., and Joseph M. Brockerhoff, heirs, and Margaret Brockerhoff and Andrew J. Brockerhoff, administrators, of Henry Brockerhoff, deceased.

No. 54 January Term 1890, Sup. Ct.; court below, No. 194 May Term 1881, C. P. On April 4, 1881, J. C. Lance and Anna Lance, his wife, in right of said wife, brought ejectment against Edward Gorman and Mary Gorman for a lot of ground in Mahanoy City. The defendants pleaded not guilty.

Nos. 162,163 January Term 1890, Sup. Ct.; court below, No. 5 March Term 1889, C. P. To the number and term in the court below David Light, Jr., administrator d. b. n., c. t. a., of David Light, deceased, settled an account exhibiting a balance in his hands of $8,485.15. The account having been confirmed, the court appointed Mr. J. Cr. Adams auditor to make distribution of said balance among the persons legally entitled thereto.

Nos. 134,140,141 January Term 1890, Sup. Ct.; court below number and term not given.

No. 308 January Term 1890, Sup. Ct.; court below, number and term not given. On April 8,1889, David and William Miller, administrators of the estate of Mahlon Miller, deceased, settled their first account in said estate, which on June 3,1889, was called for audit before Schwartz, P. J. At the hearing, Israel Miller presented a claim against the estate for $5,000, upon an alleged contract with the decedent, for services rendered and to be rendered by the claimant.

No. 310 January Term 1890, Sup. Ct.; court below, No. 74 November Term 1889, C. P. To tbe number and term in tbe court below, there was… Held: in so far as the articles may be intended to be taken to markets in other states or to foreign markets, to be a tax directly upon the goods, and upon their removal either to other states or for export; in a word, a regulation of inter-state commerce in the one case, an impost upon exports in the other, a violation of the constitution…

No. 183 July Term 1889, Sup. Ct.; court below, No. 7 February Term 1886, C. P. On January 4,1886, Stroud Burson brought debt against the Fire Association of Philadelphia upon a policy of insurance against fire, issued by the defendant company to the plaintiff. Issue.

No. 47 January Term 1890, Sup. Ct.; court below, No. 28 August Term 1889, C. P. On July 18, 1889, John Eyerman brought an action against John J. Detwiller, John Knecht and Jesse Lines, for the partition of a lot of ground in Easton, whereon was erected a building known as the Able Opera House, the plaintiff declaring for the undivided one fourth of said property. On August 19, 1889, upon confession of the defendants, judgment quod partitio fiat was entered.

No. 153 January Term 1890, Sup. Ct.; court below, No. 16 December Term 1887, C. P. On October 24, 1887, Francis Weiss entered his appeal from the report of viewers, appointed by the Court of Quarter Sessions of Northampton county, to assess the damages arising from the opening of Front street as a public street of the borough of South Bethlehem, which report awarded “ no damages.” Issue.

Nos. 330, 330½ January Term 1889, Sup. Ct.; court below, No. 34 October Term 1878, O. C. On November 12, 1888, the account of the Fidelity Insurance, Trust & Safe Deposit Company, substituted trustee under the will of Dominick B. Batione, deceased, was called for audit, when the following facts were made to appear: Dominick Batione died September 5,1878, leaving a widow, Constance L. Batione, and two children, Modesta and Benicia, both of whom were minors.

No. 336 January Term 1889, Sup. Ct.; court below, No. 47 June Term 1878, O. C. On April 15, 1871, William Oswald Dundas presented a petition, praying for a decree that a certain deed conveying and assigning to Agnes Dundas Lippincott, the interest of the petitioner as one of the residuary legatees of James Dundas, deceased, in the estate of said decedent, be set aside, upon the ground that said deed was obtained from the petitioner for an inadequate consideration, through…

No. 112 January Term 1890, Sup. Ct.; court below, No. 518 October Term 1885, O. C. On January 11,1886, the account of Grace M. Coffman, surviving executrix of the will of Charles B. Miller, deceased, was called for audit when George A. Miller presented a claim for 116,000.61, alleged to be due to the claimant as the surviving partner of the decedent, on a statement of partnership accounts between them.

No. 118 January Term, 1890, Sup. Ct.; court below, No. 53 April Term 1889, O. C. On April 20,1889, on petition of Ann E. A. Griffin, the court below awarded a citation to Elizabeth H. Appleton and others, requiring the respondents to show cause why the Union Trust Company should not be appointed trustee under the will of John Lawrence, deceased, in accordance with an appointment prescribed by the will of Ann Appleton, deceased, in pursuance of provisions contained in the…

No. 87 January Term 1890, Sup. Ct.; court below, No. 105 March Term 1886, C. P. No. 1. On March 27,1886, William C. Crooks brought case for libel against William M. Bunn. Issue. At the trial on December 31, 1886, it was made to appear that the libelous matter complained of was the publication of certain defamatory articles in the Sunday Transcript, of which it was alleged that the defendant was editor and proprietor.

No. 133 January Term 1890, Sup. Ct.; court below, number and term not given.

No. 172 January Term 1890, Sup. Ct.; court below, No. 204 December Term 1886, C. P. No. 3. On December 1, 1886, Charles P. Sloan brought trespass against Henry C. Schomaker and Henry W. Gray. The plaintiff subsequently filed a narr charging, in the first count, a false imprisonment, and in the second, an assault and battery of the plaintiff by the defendants. The defendants pleaded not guilty.

No. 159 January Term 1890, Sup. Ct.; court below, No. 956 June Term 1887, C. P. No. 3. On September 3, 1887, Dennis J. Holland brought trespass against Richard H. Townsend and Mary S. Townsend, his wife, trustees, to recover damages for an alleged illegal distress and sale of goods of the plaintiff, and for an alleged eviction of the plaintiff from premises demised to him by the defendants. Issue.

No. 167 January Term 1890, Sup. Ct.; court below, No. 52 December Term 1886, C. P. No. 1. On December 31,1886, an action of covenant brought in the names of James Clarke, Terrence P. Smart and Francis P. Murray, trading as Clarke, Smart & Co., against the Slate Valley Railroad Company, was instituted by Mr. De Forrest Ballou, as the attorney of the plaintiffs.

No. 182 January Term 1890, Sup. Ct.; court below, No. 698 June Term 1888, C. P. No. 2. Held: that there should be previous notice given..... It does appear in this case, from the evidence of the defendant, that when this wall was taken down, or this frame partition, that the line was straightened; that is, Mr. Steel tells you that he ran a straight line, and that these people substantially conformed to it.

No. 207 January Term 1890, Sup. Ct.; court below, No. 741 December Term 1885, C. P. No. 4. On December 22, 1885, Jesse Rapp, Jesse Y. H. Rapp and Reuben B. Rapp, trading as Jesse Rapp & Sons, brought assumpsit against the National Security Bank of Philadelphia, to recover a balance alleged to be due to the plaintiffs, as depositors in the defendant bank. The pleas were non-assumpsit, set-off, and payment with leave. Jesse Rapp, Sr., one of the plaintiffs died before trial.

No. 235 January Term 1890, Sup. Ct.; court below, No. 118 March Term 1886, C. P. On February 23, 1886, Dr. J. N. Rice brought assumpsit against John R. Davis. Issue.

No. 18 January Term 1890, Sup. Ct.; court below, No. Ill A.pril Term 1885, C. P. To tbe first Monday of April, 1885, the Midland Mining Company brought ejectment against the Lehigh Valley Coal Company, Charles F. Berwind, Allison White and Edward F. Berwind, for four contiguous tracts of land in Snow Shoe township, Centre county, described in the writ as having been surveyed December 13, 1792, in pursuance of warrants dated July 31, 1792, in the names of Andrew Bayard,…

No. 306 January Term 1890, Sup. Ct.; court below, No. 12 January Term 1889, Q. S. On December 3, 1888, certain electors of the county of Lackawanna filed in the court below a petition contesting the election of Owen Cusick to the office of clerk of the courts of said county. The petition specified certain election districts, in which, as the contestants averred, fraudulent and illegal votes had been cast for the respondent.

No. 106 January Term 1890, Sup. Ct.; court below, No. 90, Eq. D., C. P. In the court below, Peter S. Duncan, Sarah F. Duncan and John W. Duncan filed their bill in equity against the Hollidaysburg & Gap Iron Works, showing their title to certain ore lands under tbe will of Peter Shoenberger, who died in 1854, and, averring that tbe defendants were “ constantly, continuously and daily ” trespassing upon said lands and taking ore therefrom, prayed: 1.

No. 360 January Term 1890, Sup. Ct.; court below, No. 136 January Term 1888, C. P. On December 12,1887, Katharine Shadier and David Shadier, by his guardian, D. Moyer, brought trespass against the county of Blair, to recover damages for the death of Henry Shadier, husband of said Katharine and father of said David Shadier, alleged to have been caused by the negligence of the defendant.

<p>Nos. 382 and 383 January Term 1890, Sup. Ct.; court below, Nos. 244 June Term 1879, 581 September Term 1887, C. P..</p> <p>On May 12, 1879, there was entered in the court below, by appeal from the judgment of a justice of the peace, an action brought by the Susquehanna Mutual Fire Insurance Company against James L. Leavy, to recover the amount of an assessment levied by the plaintiff, upon a premium note given by the defendant to the plaintiff in consideration of a policy of insurance. The defendant’s pleas were non-assumpsit and payment with leave.</p> <p>On August 24, 1887, the same plaintiff brought assumpsit against the same defendant for the amounts of several additional assessments upon the same premium note. In this action the defendant pleaded non-assumpsit.</p> <p>The two cases were tried together on May 15,1889, when the following facts were shown upon the part of the plaintiff:</p> <p>On September 21, 1876, the defendant made application in writing to the plaintiff company for a policy of insurance against fire and lightning, to continue for three years, on his hotel property in Curwensville, in the sum of $2,500. Attached to the application was the following premium note:</p> <p>“$825.00. For value received, in Policy No. 1006, risk commencing the 21st day of September A. D. 1876, issued by the Susquehanna Mutual Fire Insurance Company, I promise to pay to said company, or their treasurer, for the time being, the sum of Eight Hundred and Twenty-five Dollars, in such portions and at such time or times as the directors of said company may, for the purpose of paying losses by fire or lightning and the necessary expenses of said company, agreeably to the act of assembly governing insurance companies, with the various supplements thereto, and the by-laws of the company, require, payable within thirty days after notice and demand.</p> <p>“Witness my hand at Clearfield the 21st day of September a. d. 1876. James L. Leavy.”</p> <p>At the time of making the application the defendant paid to the plaintiff $49.50.</p> <p>On September 23, 1876, the policy applied for was issued by the company, was numbered 1006, and contained the following clauses:</p> <p>“In addition to the cash premium, the insured has deposited a premium note subject to the payment of six per cent interest annually; and agrees to pay all such assessments as may be made thereon for the purpose of paying losses and the necessary expenses of the company, occurring during the term of this policy, in conformity with Application No. 1006, signed by the assured and on file with this company, which is made a part of this policy; . . . .”</p> <p>“ And it is moreover agreed and declared, That this policy is made and accepted in reference to the by-laws of this company ; also the application and the conditions hereto annexed, which are made a part of this policy, and to be used and resorted to, in order to explain the rights and obligations of the parties hereto.”</p> <p>Among the conditions of insurance, referred to in the policy and indorsed upon it, was the following :</p> <p>“5. No insurance shall be considered as binding until the actual cash payment of the premium; and should the annual interest, or any assessment that may be levied on the premium note given for this insurance, be in arrears and unpaid for the space of thirty days after notice and demand, then, and in every such case, this policy shall cease.”</p> <p>The by-laws of the company, in force at the time the policy was applied for and issued, provided as follows:</p> <p>“ Sec. 25. If any assessment that may hereafter be levied on a premium note be and remain unpaid after the day fixed by the secretary for the payment of the same, shall render absolutety void all policies on which the assessment may remain unpaid as above, and be a full bar against such defaulting member for all losses that may occur during the time the assessment may so remain unpaid; and the directors shall retain such premium note or notes and collect thereon all such sum or sums as may be due or become due thereon, during the term for which it has originally been given.” •</p> <p>“ Sec. BO. If at any time hereafter an assessment shall be made, the amount to be levied on premium notes shall be rated according to the following classification, to wit:</p> <p>“ First. All premium notes in force at the time the assessment may be declared, shall be liable to assessment for all losses unadjusted and unpaid at that time, subject to abatement as hereinafter specified.</p> <p>“ Second. All premium notes which have expired and are not in force at the time such assessment is declared, shall, nevertheless, be liable to assessment for all unpaid losses which existed at the time of the expiration of such premium note or notes, pro rata with all other premium notes then in force, and the amount thus ascertained and levied upon such expired premium notes to be deducted from the gross amount of liabilities of the company, for which such assessment is to be made, and balance of liabilities then remaining to be assessed upon the premium notes then in force.</p> <p>“ Third. Notes subject to the payment of annual interest, and deposit notes upon which the interests have been paid in advance, shall not be assessed until all other notes held by the company, liable to assessment, shall have first paid in assessments an amount equal to the interest paid and to be paid within the six months next succeeding the date of such assessment ; any deficiency then existing may be equitably assessed on all the notes held by the company.”</p> <p>The following amendment was adopted on April 3,1877 :</p> <p>“ Hereafter all assessments by this company, to be made in conformity with the ‘ all cash ’ rates on properties, of similar character, and that the secretary be required to adjust or fix the basis, for the purpose of assessing, at twenty times the annual ‘ all cash ’ premiums, irrespective of the amount of the premium notes held by the company on property insured, and on-which assessments may be made.”</p> <p>A new set of by-laws, adopted January 21, 1879, contained the following provisions:</p> <p>“ Sec. 26. All persons insuring in this company, or who may have policies assigned to them, shall thereby become members of this company during the term of their policy or policies, and shall stand bound and obliged to pay all such assessments as may be made on their premium notes or policies of insurance, in accordance with these by-laws. All assessments that may be made, shall be based on the annual ‘ all cash ’ or ‘ schedule * premiums, and the basis for assessments shall be fixed at twenty times such ‘ all cash ’ or ‘ schedule ’ premium.</p> <p>“ Sec. 27. If, at any time hereafter, an assesssment shall be made, the amount to be levied on premium notes, or policies of insurance, shall be rated according to the following classification, to wit:</p> <p>“First. All members whose policies are in force at the time the assessment may be declared, shall be liable to assessment for all losses adjusted, unadjusted and unpaid, and all other liabilities then existing against the company, subject to abatement as hereinafter specified.</p> <p>“ Second. All members whose policies have expired and are not in force at the time such assessment is declared, shall, nevertheless, be liable to assessment for all unpaid losses and other liabilities which existed at the time of the expiration of such policy or policies, pro rata with those then in force, and the amount thus ascertained and levied upon such expired policies, to be deducted from the gross amount of liabilities of the company for which such assessment is to be made, and balance of liabilities then remaining to be assessed upon the policies then in force.</p> <p>“Third. Notes received previous to Februaiy 1st, 1879, subject to the payment of annual interest, and deposit notes upon which the interests have been paid in advance, shall not be assessed until all other notes held by the company, liable to assessment, shall have first been assessed an amount equal to the interest paid, and to be paid, within the six months next succeeding the date of such assessment; any deficiency then existing may be equitably assessed on all the notes held by the company.</p> <p>“Sec. 28. If any member neglects or refuses.to pay any assessment that may be levied on a premium note, policy of insurance or adjusted basis, on or before the day fixed by the secretary for the payment of the same, then, and in every such case, the policy given upon such note, or other obligation, shall be void until the assessments be or are actually paid; and no member shall be entitled to recover from this company for any loss that may happen under a policy on which the assessment may or shall so remain unpaid; nevertheless, such member or members shall be liable for all assessments which may be levied during the suspension of such policy on account of the nonpayment of a previous assessment; and the directors shall retain such premium note, or other obligation, and collect the amount so assessed.”</p> <p>“Sec. 80. Policies issued after February 1st. A. D. 1879, on the ‘interest plan,’ shall be exempt from all assessments beyond the amount of interest on the deposit notes, at the rate of six per cent per annum, during the term of each and every policy, and the admission premium of five per cent on the deposit notes for either a three or five year policy, and of seven and one half per ■ cent for a ten year policy. The deposit notes for such policies are to be taken for fourteen times the annual cash rate premium.”</p> <p>At various times between July 13, 1877, and June 4, 1887, assessments were levied upon the defendant’s premium note, to provide for the payment of expenses and losses incurred duriftg the term of his policy. Those assessments aggregated $866.25. The suit at No. 244 June Term 1879, was brought to recover an assessment, designated as regular assessment No. 4, levied September 13, 1878, for $97.50. The suit at No. 581 September Term 1887, was for the amounts of seven others, designated as regular assessments Nos. 7 to 14, aggregating $341.25, levied at intervals between August 15, 1881, and June 4,1887. Upon the levying of each of these assessments, notice thereof was given by the company to the defendant.</p> <p>The method of calculating and levying the assessments pursued by the company, was described by its secretary, B. K. Huntzinger, testifying for the plaintiff, in substance as follows :</p> <p>The company issued two kinds of assessment policies, known respectively as “ regular assessment ” and as “ interest ” policies. In the case of the former, premium notes were taken usually for a sum equal to the whole amount of the insurance. In the case of the latter, the principal of the premium notes was fixed at eleven times the “premium note,” which varieel with the character of the risk, and such note would bear interest, payable annually. In order to make an equitable apportionment of the assessments between the different kinds of policies, the amount of the assessment levied on each particular policy was fixed, not by a percentage of the face of the premium note, but upon the basis of the premium rate for the risk. What was known as the “ assessment basis ” was calculated for each policy by multiplying the premium rate by twenty, and the assessments were then made by percentages of the assessment basis, so ascertained. Thus, the premium rate upon the defendant’s policy was 3 per cent, and the amount of his insurance was $2,500 ; 3 per cent of $2,500 is $75, and that .sum, multiplied by twenty, gives, as the assessment basis for that policy, $1,500. Assessment No. 4, above mentioned, was laid at the rate of 6-^ per cent. The defendant’s proportion of it was therefore 6¿ per cent of $1,500, making the amount payable by him $97.50. The other assessments sued for were levied in the same manner.</p> <p>These different assessments were laid, proportionately, according to the assessment basis, upon all the regular assessment policies in force at the time oE the losses to be provided for, and upon all interest policies, in force at the same time, the holders of which had not paid up the interest thereon, except certain policies the holders of which were insolvent at the dates of the assessments. In any case where the interest was paid up, it would be a credit on the assessment in favor of the policy holder. The defendant’s policy was an interest policy, but as he had never paid any interest, his policy was assessed in the same manner as a regular assessment policy.</p> <p>At the close of the testimony for the plaintiff, the court, Krebs, P. J., on motion of the defendant, entered judgments of compulsory nonsuit, stating as the grounds thereof, (a) that, under the testimony for the plaintiff, the assessments sued for were not so levied as to be in compliance with the terms of the contract between the parties; and (5) that the condition of the policy providing that it should cease if the annual interest or any assessment should “ be in arrears or remain unpaid for the space of thirty days after demand and notice,” was a bar to the recovery of the assessments in suit.</p> <p>Rules to take off the nonsuits, after argument, were discharged, Krebs, P. J., filing an opinion which, after reciting the facts, and holding that the by-laws of 1879 could not affect the legal rights of the parties to the contract, inasmuch as there was no evidence that the defendant had ever received notice of or assented to the change, citing on this point Insurance Co. v. Connor, 17 Pa. 136, proceeded as follows:</p> <p>The question for consideration is, does the contract between the parties authorize this method of assessment ? "</p> <p>The policy is admitted by the company to be an interest-bearing policy, and the premium note accompanying the policy is an interest-bearing note, the amount of the note being fixed by rates and rules differing widely from the method of fixing the amount of the note accompanying a regular assessment policy. But in addition to this, the policy and the premium note both provide that the by-laws shall be taken as part of the contract; and the note particularly declares that the assured shall pay “ the sum of $825 in such portions and at such time or times as the directors of the company may for the purpose of paying losses by fire -or lightning and the necessary expenses of the company, agreeably to the act of assembly governing insurance companies, with the various supplements thereto, and the hy-laws of the company, require, within thirty days after notice and demand.”</p> <p>As has been seen, the third clause of § 80 of the by-laws of June, 1876, makes distinct provision for this class of policy, interest-bearing. It is admitted by the secretary of the company that the assessments sued for, were not levied in accordance therewith. By what right or authority in law has the company the power to levy assessments, other than according to the letter of the contract between the assured and the company ? It is alleged that the assured did not pay the interest on this premium note, and therefore the company assess it as a “ regular assessment” policy. But there is no provision anywhere that I can find in the papers and by-laws, which go to make up the contract between the parties, that confers this power on the company. The assured by the terms of the note agreed to pay $825 in such portions as the directors might determine. How ? In accordance with the statutes regulating insurance and the by-laws of the company; and the company is as much bound by the contract thus made and entered into as the assured. These assessments are not made on the note of $825, hut upon an adjusted basis of $1,500. The assessment No. 4 is $97.50, or 6* per cent on $1,500; while on the note it would be $58.62*.</p> <p>In the case of Insurance Co. v. Connor, 17 Pa. 142, Lewis, J., says: “ If he (Connor) neglected to pay interest on his note, the remedy provided was to call in the principal. Poverty, accident, illness, and various circumstances beyond his control, may prevent the payment of interest without any wilful default. Under such circumstances, the remedies existing at the time of the contract, or such as the law may provide for enforcing the payment, are all that can be resorted to.” It was no more difficult for the company to levy the assessment in the method pointed out by the third clause of by-law, 1876, § 30, and sue the assured, than it was to levy the assessment in the manner admitted by the testimony of Mr. Huntzinger. Their attempt to change the mode would in effect change the entire form of contract, and cannot be permitted.</p> <p>As has been already noticed, all the assessments sued for are levied in the same way as if upon a “ regular assessment ” policy, and not, as in fact they should have been, upon an ■interest-bearing policy. Nor, can it make the slightest difference in reaching a decision of the question, that the amount of assessment should he the same by both methods. In the very nature of things, under the by-laws this could not be so, for the notes on the different policies vary largely in amount. These assessments not having been made in accordance with the by-laws as pointed out, cannot be recovered in these actions.</p> <p>Another reason stated for entering the nonsuit at the trial, was that the by-laws applying to these eases, namely, June 6, 1876, fell within the construction placed upon what was before the Supreme Court in Susquehanna Ins. Co. v. Gackenbach, 115 Pa. 492. As has been remarked, the by-laws of this company that w'ere before the Supreme Court in the case, Susquehanna Ins. Co. v. Stauffer, 125 Pa. 416, and there construed by Mitchell, J., are the by-laws of January 21, 1879, not applicable to this case. They differ in some parts; whether materially or not, it is not necessary to discuss, under the foregoing views we have reached in this case.</p> <p>There is, however, a condition annexed to this policy which was noticed at the trial. The policy provides: “ And it is moreover agreed and declared, That this policy is made and accepted in reference to the by-laws of this company; also the application and the conditions hereto annexed, which are made a part of this policy,” etc. On the back of the policy are found indorsed these words: “ Conditions of insurance,” and under the fifth paragraph or clause are found these words: “ No insurance shall be considered as binding until the actual cash payment of the premium; and should the annual interest, or any assessment that may be levied on the premium note given for this insurance, be in arrears and unpaid for the space of thirty days after notice and demand, then, and in every such case, this policy shall cease.” The interest on the premium note is made payable annually. It does not say in advance, and therefore we infer the first annual interest fell due on September 21,1877; and if the company made demand then, it became due under this condition on November 21, 1877, and nothing being paid under this condition of the contract, which the assured had before him, and the only one he had, the policy ceased.</p> <p>It is true that § 25 of the by-laws of June 6, 1876, provide this: “ If any assessments that may hereafter be levied on a premium note be and remain unpaid after the day fixed by the secretary for the payment of the same, shall render absolutely void all policies on which the assessment may remain unpaid as above, and be a full bar against such defaulting member for all losses that may occur during the time the assessment may so remain unpaid; and the directors shall retain such premium note or notes and collect thereon all such sums as may be due or become due thereon, during the term for which it has originally been given.” Now, then, the policy, with the condition referred to, was put into the hands of the assured. He knew, therefore, that if be did not pay his interest or assessments, be forfeited his policy and the contract ceased. The company was absolved from all liability and he lost his advance premium. But we are met with the contention that the by-law must also be taken into consideration. This cannot and ought not to be so held. The company puts one condition before the assured, and says to him: “ This is our contract; if you do not pay, the policy ceases,” and withholds from him the other. Good faith, good morals, and good law, all require that the whole of the by-law should be put into the conditions on the policy and not a part only.</p> <p>It is frequently found, indeed, all reputable mutual insurance companies that have this by-law, print it as a condition on the back of the policy, and thereby put it within the full knowledge of the assured. It is true, that the assured is a member of the company, but we all know that these mutual insurance companies are run and controlled entirely by the directors and officers, and that the membership, scattered far and wide, are no more actual participants in the management of the company than if they were not insured therein. This membership is a mere fiction in law.</p> <p>We say, then, that this company is bound by this condition of the policy, and if there was a default in payment of assessment or interest, this policy ceased and ended, and assessments could not legally be made after that date. But conceding, for the sake of argument, that the condition of the policy and by-law are to be read together, then this policy, under the testimony, would cease on November 21, 1877, and, under the by-law, it could be assessed only upon the plan or method relating to interest policies.</p> <p>It is contended also, on the part of the defendant, that there is no evidence of the delivery of the policy to the defendant. He denies that he ever accepted it. We do not think it necessary to notice this point now. For the reasons given, we must decline to take off the nonsuit in this case. We have discussed the case at some length, so that upon a review by a higher court, the exact controversy here may be settled, and whatever that may be we shall gladly accept it as final.</p> <p>Now, February 26, 1890, motion to take off compulsory nonsuit refused.</p> <p>Thereupon the plaintiff took these appeals, specifying, inter alia, that the court erred:</p> <p>1. In directing the judgments of nonsuit.</p> <p>2. In refusing to take off the nonsuits.</p>

No. 76 May Term 1889, Sup. Ct.; court below, No. 4 August Term 1884, C. P. in Equity.

No. 275 January Term 1890, Sup. Ct.; court below, number and term not given. On May 14, 1889, Catharine E. Kieffer, administratrix of S. B. Kieffer, deceased, filed her first and final account, which was referred to Mr. Duncan M. Graham, as auditor, to report a distribution.

No. 367 January Term 1890, Sup. Ct.; court below, No. 386 April Term 1887, C. P. On March 27, 1887, F. F. Bushey brought trespass q. c. f. against the South Mountain Mining & Iron Company, to recover for timber cut and removed by the defendant from the plaintiff’s lands. The pleas were liberum tenementum and not guilty.

<p>No. 416 January Term 1889, Sup. Ct.; court below, No. 76 September Term 1884, C. P.</p> <p>On August 2,1884, by virtue of a warrant of attorney contained in a written lease of land for oil production, a copy of which was filed, a judgment in ejectment for the land demised, to wit, a tract containing 212 acres in Sheffield township, was entered bjr confession in favor of J. H. Palmer, C. C. Hill, Emma L. DeCondres, and Bertha. Hill against John Truby, and also E. P. Allen and Melvina Allen, partners as Allen & Co., and a writ of habere facias possessionem at once issued. On August 5th, on motion of defendants’ attorney, a rule to show cause why the writ of habere facias possessionem should not be set aside and the judgment opened was granted, proceedings to stay-in the meantime.</p> <p>On May 9, 1885, pending the proceedings pn the foregoing rule, by agreement of the parties Mr. W. D. Hinckley was appointed receiver to take charge of the property in controversy.</p> <p>On September 5,1885, an opinion of the court was filed, whereby the pending rule to set aside the writ and open the judgment, etc., was refused; whereupon the defendants took a writ o'f error to the Supreme Court, on which, on October 4, 1886, the judgment and order of the court below were affirmed: See Truby v. Palmer, 4 Cent. R. 925. Soon afterward, the writ of habere facias was executed and the plaintiffs put in possession of the demised premises. The terms of the lease, upon which said proceedings were had, appear in the report of the case referred to and in the opinion of the Supreme Court in the present case.</p> <p>On November 10, 1886, Mr. Hinckley, as receiver, filed his final account, which was confirmed nisi exceptions were filed within ten days.</p> <p>No exceptions having been filed, on November 22,1886, Mr. Hinckley presented his petition praying that an order be made directing him to make disposition of the moneys in his hands, and that he be discharged from the responsibilities of his appointment, etc. Thereupon, the court made the following order: “ The receiver is directed to pay to the plaintiffs the sum of $2,400, and that the amount of $88.49 be paid into court to await further order, and that thereupon the receiver be discharged.”</p> <p>On the same day, to wit, November 22,1886, the defendants, by their attorney, moved the court “to rescind the order this day granted, allowing the plaintiffs to receive the sum of $2,400 • of the fund in the receiver’s hands, the same having been granted without sufficient notice of the application to the defendants, and without sufficient consideration of the equities of the defendants to payment, out of said fund, of the expenses of improvements made by them; and for an order on said plaintiffs to restore said fund, if the same has been paid over to them.”</p> <p>The rule was granted as prayed for, and on December 16th, the defendants presented a formal .petition, in which it was averred, inter alia, that in the drilling of a well on the demised premises from which the gas was produced from the sale of which the fund in the hands of the receiver accrued, and in the other operations necessarily connected with drilling and operating on said premises, a large sum had been necessarily expended, which should have been paid by the receiver out of the funds in his hands, and that the reasonable cost of said mining operations amounted to $2,000; that said receiver, upon motion made in court, and without notice to defendants, gave a check for the entire fund, less a small sum, to the plaintiffs; that, as the petitioners were informed, said plaintiffs and their attorneys, before said fund was received by any of them, were notified that an application would be made to have the order allowing said receiver to pay said sum to plaintiffs rescinded, and to have the fund retained until the rights of the parties to said fund should be determined. Wherefore, etc.</p> <p>To this petition the receiver and the plaintiffs made answer. In the answers it was averred, inter alia, that when the receiver presented his petition for the order made on November 22, 1886, the attorneys for the plaintiffs and attorneys representing the defendants were present and were heard by the court upon the question as to what order should be made, and that the order made was without objection or exception by the counsel for defendants, but by and with their advice and concurrence ; that, after the making of said order, the receiver paid out the money as he was thereby directed, without notice to him that there was any objection to the payment on the part of the defendants, and that the money received by the plaintiffs was at once divided among them in proportion to their several interests therein. Other averments were made, in reply to the averments of the defendants’ petition relating to the cost of operations upon the leasehold.</p> <p>On February 6, 1888, the cause having been argued upon the petition, answers, and testimony filed, the court, Brown, P. J., filed the following opinion and decree:</p> <p>It is very certain that had the counsel for the defendants been apprised of the equitable claim to the fund which the defendants now set up, so that he could have asserted the same, or had the court been apprised in any way of the existence of the claim of defendants, the order of November 22d would not have been made, until the claim of defendants and their right to.the whole or a portion of the fund had been adjudicated. At'the time the order was made, the only question raised was in regard to certain costs which the defendants, by their counsel, asserted should be paid from the funds, and to meet this, the sum of $88.49 was ordered into court.</p> <p>It appears by the depositions, and the answers filed, that the plaintiffs were notified after they had received the check or checks for the funds, and before the same were paid by the bank, that application would be made to rescind the order directing the fund to be paid to them, but it further appears that before such application was in fact made, the checks had been presented to the bank and the fund paid over to the plaintiffs.</p> <p>That the plaintiffs made haste to get the money from the bank where it was, as we understand, deposited by the receiver, before the order of court should be rescinded, is probably true, but nevertheless they did so receive it. Having thus received it from the receiver, who paid it under the order of the court, it seems clear that the receiver is exempt from any further liability. The fund has passed from the control of the court and from its officer. Can the court, upon motion, order the plaintiffs to pay the money received by them into court, to the end that any equitable claim of the defendants thereto may be determined? We think not. The parties and the subject matter are out of court. The court has lost its grasp on the fund. Whatever equitable claim the defendants may have for their expenditures on the property recovered by the plaintiffs, we think, can now only be shown in an independent proceeding. We are reluctantly brought to the conclusion that we are powerless, in this proceeding, to order the plaintiffs to pay into court the money received by them.</p> <p>The rules mentioned in the heading of this decision are discharged.</p> <p>Thereupon, the defendants took this appeal, specifying that the court erred:</p> <p>1. In discharging the rule to show cause granted November 22, 1886.</p> <p>2. In dismissing the petition of the defendants.</p> <p>8. In not rescinding its order of November 22,1886, and in not ordering the plaintiffs to restore the fund received by them to the custody of the court or of its officer.</p>

No. 68 July Term 1889, Sup. Ct.; court below, No. 545 November term 1886, C. P. On December 1,1886, Mary C. Dexter and John M. Dexter, her husband, in the right of said Mary 0. Dexter, brought trover against C. C. B. Walker and Austin Lathrop, Jr., and on January 11, 1887, filed a statement of claim which closed: “ This action of trover is brought to recover treble damages, under § 3 of the act of March 29,1824, [8 Sm.

No. 341 January Term 1890, Sup. Ct.; court below, No. 6 March Term 1888, C. P. On December 1, 1887, Maiy S. Logan brought ejectment against S. A. Gardner and others, for three acres of land in Mead township. The defendants pleaded not guilty.

<p>No. 347 January Term 1890, Sup. Ct.; court below, No. 16 June Term 1886, C. P. in Equity.</p> <p>On March 6, 1886, Charles C. Duffield filed a bill in equity against F. P. Hue and D. L. Gerould. The bill averred that on January 20, 1882, Thomas and H. W. Brown leased to one F. M. Pratt, for oil producing purposes, a part of tract 497 in Mead township, Warren county, which, however, by mutual mistake was described in the lease as part of tract No. 498. A copy of the lease was appended to the bill as an exhibit, and its subject matter was thus described therein:</p> <p>“ All that certain lot or piece of land, situated in the township of Mead, county of Warren, and state of Pennsylvania, bounded and described as follows, viz., being a part of- tract number four hundred and ninety-eight, according to George O. Cornelius’ survey, and containing an area of -, according to a division of said tract into numbered sites made by first said party, each site situated on lots numbered respectively on map, one hundred and fifty-one Mill street, one hundred and ninety-three Centre street, one hundred and sixty and one hundred and thirty-four on Piston street, and also sites for three wells situated per plat number one, south side of Philadelphia and Prie Pail-road, to be designated and mutually agreed upon by both parties, to have and to hold the said premises unto the said party of the second part, his executors, administrators and assigns, for and during the term of fifteen years from the date hereof, with the sole and exclusive right and privilege, during said period, of digging and boring for oil and other minerals on said lot, and of removing the same, together with the right to put up and keep tanks thereon, and such other buildings as may be necessary to the production, storage and transportation of oil and gas. It is understood that this lease includes no land south of Pobert Thompson’s line; and further said party of the second part to have the privilege of drilling on premises hereinbefore mentioned other wells, if said first parties determine to have more wells drilled, at the same terms and conditions mentioned in this lease, upon the following terms and conditions, viz.: ”.....</p> <p>The words printed in italics were in writing in the original lease, the remainder of the foregoing extract being a printed form.</p> <p>The bill averred, further, that Pratt, the lessee, entered in' pursuance of the lease and drilled wells thereunder; that on December 16,1883, by divers conveyances the plaintiff became the owner of the leasehold and entered into possession thereof, and thereafter he continued operations for oil thereon with the knowledge, consent and approbation of the lessors, and had upon the leased premises six producing wells, and was engaged in drilling a seventh, upon a location mutually agreed upon between the plaintiff and the agent of the lessors or their grantees. The bill then made the following charges:</p> <p>“ 6. And yonr orator avers that said defendants, with full knowledge of the possession of your orator and of the terms and conditions of said lease, and of his sole and exclusive right and privilege of. drilling and boring for oil in said lot or land mentioned, and of his additional right and privilege of drilling other wells on said premises, should said lessors or their assignees or grantees so determine, under some pretended authority or right from said lessors or their assignees or grantees, as your orator is informed, have entered upon said land and premises and have located two wells and erected derricks and other buildings and structures thereon, and are drilling wells for the purpose of mining or producing oil therefrom, notwithstanding they were notified of the rights of your orator and ordered by him to desist and to leave said premises.</p> <p>“ 7. That said defendants have persisted and still continue to persist in their trespassing on said premises, and have a well near completion which, if said defendants find oil in paying quantities, will, from its location, interfere with and materially injure the wells of your orator on said premises, and decrease the productiveness of his said wells, and may likewise, by any carelessness on part of defendants or their employees, cause irreparable injury to your orator’s wells, and irreparable loss and injury to your orator’s leasehold, and cause him to suffer such damage as cannot be estimated.</p> <p>“ 8. Your orator further avers that the said defendants are trespassing upon his premises to the great and lasting injury of his estate therein and rights and property and contrary to law, and that unless defendants desist he has well founded reason to apprehend great injury and damage to his leasehold and its value to him; that the trespasses committed by defendants and the injury likely to result therefrom are liable to cause him irreparable injury, and such as will be permanent in its nature and character and be productive of lasting waste, and for all which there is no adequate remedy at law.”</p> <p>The prayers for relief were: For an injunction restraining the defendants from further drilling the wells commenced by them, and from further operating for oil upon the premises leased to the plaintiff, or interfering with his possession and enjoyment thereof; for an account for all waste committed by the defendants upon said premises, and a decree that the proceeds of all oil whicli the defendants might obtain from said premises, prior to final decree, be paid to the plaintiff; and for general relief.</p> <p>The defendants filed an answer to the bill admitting the lease from the Browns to Pratt and the mistake of description therein, mentioned in the bill, but averring upon information that any rights acquired by the plaintiff thereunder had been forfeited by reason of a failure to perform conditions therein contained; denying that defendants were drilling upon premises embraced in said lease, and averring that the wells which the defendants were drilling were located upon two acres of ground which formed no part of the Pratt lease, but were leased to the defendants on January 16,1886, by Lewis Rosenzweig; and averring that the plaintiff had an adequate remedy at law for injuries that might result from any carelessness in the operation of the defendants’ wells.</p> <p>Issue having been joined, the court on April 5, 1886, appointed Mr. B. I. Ball, examiner and master, who subsequently reported in part as follows:</p> <p>We are met at the threshold of this case with the question of jurisdiction. Tim defendants did not demur to the plaintiff’s bill, but “ at all times saving and reserving to themselves, and each of them, all benefit and advantage of exception which can or may be had to the many errors, uncertainties, and other imperfections in the said plaintiff’s bill contained,” they proceeded to answer the plaintiff’s bill at length, and after replication the cause was proceeded with by testimony on both sides and argument before the master. Upon the argument, the defendants strenuously urged the want of jurisdiction in a court of equity to determine the questions raised by the plaintiff’s bill.</p> <p>The question of jurisdiction may be raised at any stage of the proceedings: Musselman’s App., 101 Pa. 165. While this is true, the court will not permit an objection to its jurisdiction to prevail, in doubtful cases, after the parties have voluntarily proceeded to a hearing on the merits, but will administer suitable relief: Adams’s App., 118 Pa. 449. And it seems this jurisdiction is to be determined by what appears on the face of the plaintiff’s bill: Adams’s Appeal, supra. If it be reasonably clear that a court of equity has no jurisdiction of the plaintiff’s cause, then the court ought not to entertain it, and even the legislature could not clothe a court of equity with power to hear it, or deprive the defendants of their right to have a jury pass upon controverted questions of fact: North Penna. Coal Co. v. Snowden, 42 Pa. 492; Tillmes v. Marsh, 67 Pa. 508; Norris’s App., 64 Pa. 275; Haines’s App., 78 Pa. 169. It is settled beyond controversy that if the plaintiff’s bill be but an ejectment bill, the court of equity has not jurisdiction, and the bill should be dismissed: Tillmes v. Marsh, supra; Long’s App., 92 Pa. 171; Messimer’s App., 92 Pa. 168; North Penna. Coal Co. v. Snowden, supra; Gloninger v. Hazard, 42 Pa. 389; Washburn’s App., 105 Pa. 480; Schlecht’s App., 60 Pa. 172.</p> <p>What, then, is the character of the grievance alleged by the plaintiff ? The sixth and seventh paragraphs of his bill chai’ge the wrongs and injuries, alleged to be committed by the defendants, for which he seeks redress in this court as follows: .....</p> <p>The sixth paragraph shows more than repeated and continued trespass; it shows an open, adverse and continued possession, and occupancy, and use of the premises by the defendants, under a claim of right from the plaintiff’s lessor, in spite of the demand of the plaintiff upon them to desist and leave the premises. The trespassing, alleged in the seventh paragraph, is merged in the possession and occupancy already shown, and adds nothing more to the facts to be weighed in considering the question of jurisdiction.</p> <p>Upon the face of the bill, a declaration in ejectment may be drawn. It sets forth the title in the plaintiff to the land in dispute, and his right to the possession thereof, and shows what is in fact an adverse occupancy of the same by the defendants. What does it signify that the plaintiff calls it trespassing, when he shows the act complained of to be an actual, open, continuous, indivisible,adverse and hostile possession and occupancy? In his own language, “they have entered upon said land and premises, and have located two wells, and erected derricks, and other buildings and structures thereon, and are drilling wells for the purpose of mining or producing oil therefrom..... That said defendants have persisted and still continue to persist in their trespassing on said premises, and have a well near completion.” Clearly, so far, the plaintiff shows a wrong which can be remedied by an action of ejectment, and for which that action is the only remedy.</p> <p>The further allegations contained in the seventh paragraph and the averments of the eighth paragraph are not sufficient to give jurisdiction. With the exception of the allegation of waste, the consequences of putting down these wells would be incident to any well drilled by the owner upon land adjoining plaintiff’s lease, and close to any of his wells. I have never heard of any remedy at law being invoked for any injury sustained because of a well drilled close to the line upon the land of an adjoining owner. It is possible some injury might arise from the negligence or careless use or mismanagement of such a well to the owner of adjoining oil territory, for which the law might furnish a redress, but when can a court of equity intervene to prevent apprehended injury from carelessness of owners or employees in the management of oil wells upon adjoining lands, while prosecuting the business of producing oil in the usual and ordinary manner? Nothing else is made to appear upon this branch of the case, except that the land, upon which these operations are carried on, is in dispute between the plaintiff and defendants under what the plaintiff calls a “pretended” claim of right. The diminution in the production of oil to one person from the well of another, close to the boundary line, furnishes no ground for either a legal or equitable remedy.</p> <p>One more element of the plaintiff’s case upon the subject of jurisdiction remains for consideration, the question of waste. Whatever oil may be taken by the defendants from the disputed premises is so much taken from the corpus of the estate. But is the taking of it, in the manner charged, such waste as to give jurisdiction to a court of equity ? In Grubb’s App., 90 Pa. 234, it is said that “waste is spoil or destruction done or allowed to be done to houses, woods, lands or other corporeal hereditaments by the tenants thereof, to the prejudice of the heir, or of those in reversion or remainder.” See also Denny v. Brunson, 29 Pa. 382. The injuries complained of do not seem to come within that technical meaning of waste, which courts of equity have jurisdiction to restrain the commission of. But it was well argued before the master, that, from the nature of oil and the character of oil lands, courts of equity are called upon to exercise their efficient powers to protect the owners of that kind of property from injuries to their estate in the nature of waste. These considerations have moved the legislature to apply more effective remedies for this kind of property. Those remedies, however, do not affect our question of jurisdiction. The Supreme Court have said, when appealed to upon these considerar tions, “We can draw no distinction between a farm and an oil well.”.....“It may be that the peculiarity of the property in an oil well is such that an injunction to stay waste, or a writ of estrepement, will not be an adequate remedy for an owner out of possession. But that will not authorize a court of equity to assume jurisdiction to try the title upon what is merely an ejectment bill, and thus, in effect, deprive the parties of their constitutional right of trial by jury: ” Enterprise Transit Co.’s App., 9 W. N. 227.</p> <p>Allison’s App., 77 Pa. 221, is confidently cited by the plaintiff as an authority for maintaining this bill. At the first blush, it appears to go the full length of sustaining all that the plaintiff asks for. Upon a closer examination, I think it is distinguishable from this case. In that case, the plaintiff had a lease for oil purposes of three acres and one hundred and twenty-three perches of land. The lease contained the following stipulation: “ And it is further agreed between said parties that there are ten rods of protection on the east side of said lease, also protection on the north side eight rods to orchard fence.” At the point at the comer of this lease where the lines of this protection met, a subsequent other lessee of this lessor bored an oil well. The bill filed was for an injunction restraining the further operation of this well and for an account of the oil produced, both of which were sustained by the Supreme Court. It is apparent that while Evans and Allison had a right to the “ protection ” provided by their lease along the sides of their leasehold, and that no other person should operate thereon for oil, they had no right to the possession of it. Without a right of possession they could not maintain ejectment, which is founded upon the right of possession. The “trespass” mentioned by Justice Williams, at page 227, would seem to be the tort arising from the violation of the terms of the lease by the lessor or parties under him. This being so, equity was the only adequate remedy for Evans and Allison. If I am correct in this analysis of that case, then Allison’s Appeal is not an authority to govern this case.</p> <p>If we turn to the defendants’ answer, there is nothing to help the plaintiff out on the question of jurisdiction. On the contrary, the answer contains a square denial of the plaintiff’s, rights in the land in question.</p> <p>For the foregoing reasons, I am constrained to recommend to your Honors the dismissal of the plaintiff’s bill. In doing so, it is proper that some portion of the costs made with and since the filing of the answer should be paid by the defendants, since, instead of demurring to the plaintiff’s bill, they answered it and proceeded to proofs and final hearing. The plaintiff might well suppose that under such circumstances they accepted his challenge in the tribunal he had selected. If he made a mistake in his selection, they contributed to it in the proceedings subsequent to the filing of the bill, by their answer. I think they have no just cause for complaint if they are let off with one half the costs, beginning with and subsequent to the filing of their answer; and I think in compliance with approved practice they should in the first instance pay all the costs, with a right to collect over from the plaintiff all but the one half above indicated: Thomson’s App., 11 W. N. 414; Lowenstein v. Biernbaum, 8 W. N. 301; Girard N. Bank’s App., 13 W. N. 102; St Joseph’s Orphan Asylum’s App., 38 Pa. 535.</p> <p>I might with propriety consider my duties as master as ending here upon preparing a decree. But if in the subsequent prosecution of this case, I should be convicted of error in recommending a dismissal of the bill, it is right to the parties and to the court that I pass upon all the questions raised by the pleadings and evidence in the case.....</p> <p>By lease dated January 20,1882, Thomas Brown and Henry W. Brown executed to F. M. Pratt the lease set forth in full by plaintiff as exhibit A to his bill. It is admitted that the number of the tract described in the lease as 498, is in fact 487, and that the title and possession of the Pratt lease is in C. C. Duffield, the plaintiff, and was at the time of bringing this suit, subject to the terms and conditions of the lease. It is further admitted that the Elston leasehold, of which the premises in question form a part, was sold by the sheriff to L. Rosenzweig upon certain writs of execution issued upon the judgments given in evidence against Thomas Brown, and Thomas Brown and others, doing business as Brown Brothers & Co., and that the title of the Browns in the Elston lease was in L. Rosenzweig, at the time of the execution of the lease to sjdue and Gerould, the defendants. This later lease bears date January 16, 1886, and is for about two acres of land, which the plaintiff claims is included in the Pratt lease, and which the defendants deny. Both parties therefore claim from the same source of title, and one of the questions they present to me is the construction of the Pratt lease as to the extent of the territory covered by it.....</p> <p>—The master then found that upon a proper construction of the description in the Pratt lease, it embraced, not only the sites designated for wells, but the whole, of the tract embraced in the lease as far as the line of the Robert Thompson land mentioned therein, and therefore included the two acres, known as the mill lot, claimed by the defendants, and proceeded:</p> <p>The defendants further contend that the plaintiff, under the terms of his lease, forfeited all rights under the lease, except to the six wells drilled on six of the sites mentioned therein, because the seventh well was not drilled within the time required by the lease. The consideration of this question of forfeiture requires the determination of the competency of certain witnesses who testified upon the subject, and in this connection I will consider the questions raised as to the competency of the witnesses, F. M. Pratt, C. C. Duffield, L. Rosenzweig and Thomas Brown, generally, under the act of May 23, 1887, P. L. 158.</p> <p>The testimony in chief of the plaintiff was taken prior to the passage of said act, and the remaining testimony was taken after its passage, and the case argued before the master after the act went into effect. There were eighty-two pages of testimony taken prior to the time when the act went into effect on July 1, 1887. The act, by the terms of § 12, applies to the testimony taken before its passage, as well as to that taken after the act went into effect and while the proceedings were pending and undetermined.</p> <p>H. W. Brown, one of the plaintiff’s lessors, died before the beginning of this suit. The time of his death does not appear in the evidence, but it was before number seven well was drilled, and apparently about the time of the sheriff’s sale. How does his death affect the competency of the witnesses named? Clause (e), § 5, of the act of May 28,1887, provides: “ Nor where any party to a thing or contract in action is dead, .....and his right thereto or therein has passed, either by his own act or by the act of the law, to a party on the record who represents his interest in the subject in controversy, shall any surviving or remaining party to such thing or contract, or any other person -whose interest shall be adverse to the said rights of such deceased.....party, be a competent witness to any matter occurring before the death of said party.” This act does not exclude any witness from testifying to matters occurring since the death of the party to the thing or contract, nor to transactions occurring between the surviving partner to the thing or contract; and apparently it does not exclude any one not a party to the thing or contract, although interested, from testifying in favor of the interest of the deceased party. It does exclude parties to the thing or contract, or who have an interest adverse to the deceased party, from testifying to any matter occurring before the death of such p’arty. These rules manifestly exclude Mr. F. M. Pratt, Mr. C. C. Duffield, the plaintiff, and Mr. Thomas Brown, a witness for the defendants, in so far as their testimony relates to matters taking place anterior to the death of H. W. Brown; as to anything since that event they are competent. The act does not exclude Mr. Rosenzweig’s testimony, as his connection with the lease and the subject matter of his testimony are subsequent to the death of H. W. Brown.</p> <p>—Recurring to the question of forfeiture, raised by the defendants, the master reported, in substance, that the plaintiff’s rights under his lease, except as to the wells drilled and a proper amount of territory in connection with each of them, to be set off by the lessor in accordance with its stipulations, had been forfeited by a failure to comply with certain conditions thereof. He therefore reported, recommending a decree dismissing the plaintiff’s bill, without prejudice to his right to prosecute a suit at law, and directing that the costs be paid in the manner suggested in the previous part of his report.</p> <p>The plaintiff filed exceptions to the report, alleging that the master erred: 1. In excluding the testimony of Pratt and the plaintiff.1 2. In not finding that the forfeiture of the plaintiff’s lease was waived and suspended.8 3. In holding that a court of equity had no jurisdiction under the facts proved.3</p> <p>On June 25, 1888, the exceptions having been argued, they were dismissed by the court and a final decree entered dismissing the plaintiff’s bill and directing the costs to be paid as recommended by the master.* Thereupon in March, 1890, the plaintiff took this appeal, specifying that the court erred:</p> <p>1-3. Ip dismissing the plaintiff’s exceptions.1 to 3</p> <p>4. In dismissing the bill for want of jurisdiction.</p>

No. 13 July Term 1890, Sup. Ct.; court below, No. 8 December Term 1888, C. P. On October 1, 1888, Mary L. Titus brought trespass against the Bradford, Bordell & Kinzua Railroad Company, to recover damages for the death of the plaintiff’s minor son.

No. 94 July Term 1889, Sup. Ct.; court below, number and term not given.

No. 152 July Term 1889, Sup. Ct.; court below, No. 895-September Term 1887, C. P. On September 12, 1887, G. Newton Horn brought trespass against Samuel Miller and others, for an alleged wrongful diversion of water from the plaintiff’s mill. The defendants pleaded not guilty, and afterwards added a plea averring adverse user.