53 Pa.

Volume 53 — Pennsylvania State Reports

99 opinions

53 Pa. 9Commonwealth ex rel. Attorney-General v. Atlantic & Great Western Railway Co. (1866)
This was an information and suggestion in nature of quo warranto, filed December 1865, by the Attorney-General against The Atlantic and Great Western Railway Company, in the Supreme Court, Middle District. The suggestion sets out that the defendant claims without any lawful warrant to have the franchises, &c., following, to wit:— To be a body politic and corporate by the name of the Atlantic and Great Western Railway Company. To lease, operate and maintain, in conjunction with the Western Central Railroad Company of Pennsylvania,- the Catawissa Railroad, extending from Milton, in Northumberland county, Pennsylvania, to its junction with the Little Schuylkill Railroad, in the county of Schuylkill. To have, in conjunction with' the Western Central Railroad Company of Pennsylvania, the corporate powers, &c., granted to the Catawissa Railroad Company. The defendants, January 19th 1866, pleaded that:— 1. The Atlantic and Great Western Railway Company claim to be a body politic and corporate by virtue of a contract, agreement and act of consolidation and merger made August 19th 1865, between the Atlantic and Great Western Railway Company in New York; the Buffalo extension of the Atlantic and Great Western Railway Company — corporations created and operated under the laws of New York ; the Atlantic and Great Western Railroad Company of Pennsylvania, a corporation created under the laws of Pennsylvania; and the Atlantic and Great Western Railroad Company, a corporation created and operated under the laws of Ohio: New York, Pennsylvania and Ohio being adjoining states, the laws whereof respectively authorize such consolidation, and the railroads of said companies forming a' continuous line of railroad with each other and crossing the boundary line of New York, Pennsylvania and Ohio at the same point; the contract having been first duly submitted to and adopted by a vote of more than two-thirds of all the stockholders of each of said corporations; and that fact certified by the secretary of each of the same companies under the seals thereof, was on the 3d day of October, A. D. 1865, filed with the secretary of state of New York and Ohio respectively, and with the secretary of the Commonwealth of Pennsylvania, as provided bylaw; which said contract, &c., with said certificates, the defendants now here in court produce. 2. The railroad of the Atlantic and Great Western Railway Company being connected with the railroad of the Catawissa Railroad Company by the intervening railroad of the Philadelphia and Erie Railroad Company, they claim to lease, &c., the said Catawissa Railroad, and to have, &e., the corporate powers, &c., granted to the Catawissa Railroad Company under and by virtue of a contract and agreement made and entered into between the Atlantic and Great Western Railway Company, the Western Central Railroad Company and the Catawissa Railroad Company, dated the 1st day of November, A. d. 1865, which contract the said defendants now here in court produce, &c. The Attorney-General craved oyer of the contract, agreement and act of consolidation and merger and certificates mentioned in the defendants’ first plea; and a contract between the corporations mentioned in the plea, with this preamble, was set forth:— “ Whereas, The line of railroad made and in the process of construction by the aforesaid corporation companies respectively, so unite as to form a continuous line 'for the passage of cars from the city of Buffalo and Salamanca, in the said state of New York, to the city of Dayton, in the said state of Ohio, crossing the boundary lines of the said several adjoining states of New York, Pennsylvania and Ohio, at one and the same point:” — the other material parts being as in the plea. The Attorney-General replied that “ there is no record of the said supposed contract, agreement and act of consolidation and merger in the first plea mentioned, remaining among the records of the Commonwealth, in the office of the secretary of the Commonwealth, at Harrisburg, &c.” The defendants demurred to the replication. By the Act of March 24th 1867, § 1 (Pamph. L. 49), any railroad company organized under the laws of Pennsylvania and operating a railroad in whole in this state or partly within this and partly without this state, under the authority of this and of any adjoining state, may consolidate its capital stock, franchises, &c., with any other railroad company whenever such railroads form a continuous line with each other or by means of an intervening road: provided that the laws of the state of any such other railroad authorize the like consolidation. By § 2, the directors of the several companies may enter into an agreement prescribing the terms of consolidation, the name of the new corporation, &c., with such other details as may be necessary to perfect the organization: the agreement to be submitted to the stockholders of each company called separately, for the purpose, due notice to be given by publication in a newspaper where the company has its principal office and also delivered to each stockholder or sent by mail, when his address is known, and if two-thirds of all the stockholders of each company shall be for adopting the agreement, this shall be certified by the respective companies under the corporate seal, and the agreement or a certified copy of it shall be filed in the office of the secretary of the Commonwealth, and a copy thereof certified by him under the seal of the Commonwealth, shall be evidence of the existence of the new corporation. By § 8, upon perfecting the act of consolidation and filing it with the secretary of the Commonwealth, the several corporations shall be one under the name agreed on. The other sections relate to the powers and liabilities of the new corporation. The defendants by their first plea claim to be a corporation by virtue of an agreement of merger and consolidation made in pursuance of an Act of Assembly, and alleged to have been filed in the office of the secretary of the Commonwealth. The parties to the agreement are four railroad companies, two of them incorporated by the state of New York, one by Ohio and one by Pennsylvania. To this plea the Attorney-General replies “ nul tiel record,” and the defendants demur to the replication. The question is thus raised whether the filing of the said agreement is matter of record. The 2d section of the act referred to (Act of 24th of March 1865, Pamph. L. 49), provides that the agreement, or a certified copy thereof, shall be filed in the office of the secretary of the Commonwealth, and shall from thence be deemed and taken to be “the agreement and act of consolidation of the said companies,” and a copy of said agreement and act of consolidation, duly certified by the secretary of the Commonwealth, under the seal thereof, shall be evidence of the existence of the said new corporation. The 3d section provides that “ upon the making and perfecting the agreement, &c., as provided, &c., and filing the same, or a copy, with the secretary of the Commonwealth as aforesaid, the,, several corporations parties thereto shall be deemed and taken to be one corporation, possessing within this Commonwealth all the rights, privileges and franchises, and subject to all the restrictions, disabilities and duties of each of such corporations so consolidated.” It will be observed that the filing of the agreement is a condition precedent to the existence of the corporation. The place of filing is the rolls office of the Commonwealth, where all the laws and other records of the state are filed and kept. The creation of every corporation, whether by the legislature or the courts, appears somewhere of record, either in the secretary’s office, or among the records of the courts authorized to grant charters. There is no authority for supposing that the grant of a franchise by the sovereign power is not matter of record. It has always been so held in England: Doctor and Student, chap. 8, p. 31,14th ed. The king’s grants are matters of public record, 2 Bl. Com. 346-48, and shall be tried by the king’s writ or patent only, which is matter of record : Countess of Rutland’s Case, 6 Rep. 53 a. In'this state it never seems to have been questioned that a grant of corporate .privileges is a matter of record. No case is found in the books in which it has been doubted. The Act of 6th of April 1791 (Purd. Dig. tit. Corporation), authorizing the grant of charters in certain cases, by the Supreme Court, made it the duty of the governor to transmit the charter to the Master of the Rolls with an order endorsed, requiring him to enroll the same at the expense of the applicants; and upon the enrolment thereof, and not before, the persons associated became a corporation. The office of Master of the Rolls was abolished by Act of 29th March 1809, and the powers and duties of that office were transferred to the secretary of the Commonwealth, so far as the same related to laws, resolutions, acts and proceedings of the legislature. The secretary is required also by the constitution to keep a fair register of all the official acts and proceedings of the governor. By Act of 4th of April 1792 he is required to collate with, and correct by the original rolls, the proof-sheets of the printed copies of the laws: Dunlop’s Dig. 195. Every volume of the laws contains his certificate that he has collated with and corrected by the original rolls on file in his office, the proofs of the printed copies of the acts and resolutions therein contained. It is plain, therefore, that all acts and resolutions of the legislature, and all official acts and proceedings of the governor, are matters of record. This of course includes letters patent issued to persons to whom franchises are granted by law. In the case in hand the law expressly provides that the agreement authorized, or a certified copy of it, shall be filed in the office of the secretary of the Commonwealth. The filing is a condition precedent, and as much matter of record as the enrolment under the Act of 1791. When filed it becomes a law ; and the filing or enrolment, which is the same thing, is the only evidence of its existence. “ A copy of said agreement and Act of Consolidation, duly certified by the secretary of the Commonwealth, under the seal thereof, shall be evidence of the existence of the said new corporation.” These are the very words of the act under which the defendants claim to be a corporation. The certified copy, under the seal of the Commonwealth, is a substitute for letters patent, which are always matter of record. If there is no record, there can be no corporation. Secondly. The. defendants having demurred to the replication, the court will consider the whole record. If the replication be bad, and a substantial fault be found in the plea, judgment must be given for the Commonwealth: 1 Saund. PL & Ev. 431. The defendants, by their plea, claim to be a body politic and corporate, by virtue of the agreement therein recited, of which proferí is made, and oyer has been had. The Commonwealth asks judgment on this the plea, on the following grounds:— 1. The 1st section of the Act of Assembly, in pursuance of which the agreement purports to have been made, is unintelligible. 2. It does not authorize contracts of merger between corporations of this state and those of other states. It allows railroad companies created hy this state, on certain conditions, to make such contracts with railroad companies created by any other state. The plain meaning of the act is, that when the road or roads of a company or companies created by this state form a continuous line by connection with the road of a company created by another state, such companies may be consolidated. A company created by a third state cannot be a party to the contract; but the agreement here is made between one corporation of this state, two of New York and one of Ohio. The effect of it is to make our territory a mere thoroughfare for the benefit of the corporations of two other states, which was not intended. The act belongs to that class of statutes which are strictly construed: Packer v. S. & E. Railroad Co., 7 Harris 218 ; Penna. Railroad v. Canal Commissioners, 9 Id. 22; Commonwealth v. Erie & N. E. Railroad Co., 3 Casey 351. 3. The 1st section of the act provides that nothing therein “ shall be taken to authorize the consolidation of any company or corporation of this Commonwealth with that of any other state whose laws shall not authorize the like consolidation.” It is not alleged in the plea that the laws of either of the states of Ohio or New York, “ authorize the like consolidation,” nor does it appear by the agreement. It must be presumed that they do not; otherwise, the fact so vital to the defendant’s claim would have been shown or averred. 4. The act provides that the consolidation shall be made under certain conditions, provisions and restrictions. The agreement must be submitted to the stockholders of each company at a meeting thereof, called for the purpose of taking the same into consideration. It is required that due notice of the time and place of holding such meeting, and the object thereof, shall be given by written or printed notices, addressed to each of the persons in whose names the capital stock of the said company stands on the books thereof, and delivered to such persons respectively, or sent to them by mail, &c., and also by general notice published in some newspaper, &c. It is not alleged by the pleas, nor does it otherwise appear, that the agreement was submitted to any meeting of stockholders called under the provisions of this act, and upon the notice required, except in the case of the A. & Gr. W. Company of Ohio. The plea avers simply that it was duly submitted to, and approved and adopted by a vote of more than two-thirds of all the votes of all the stockholders of each and every one of the said companies or corporations. It is not sufficient to aver that a meeting of stockholders was held, in pursuance of due notice required by law, as in some of the certificates annexed to the agreement. What notice was given must be set out specially. It is for the court, and not for the defendants, to decide whether it was “due notice required by law :” Rex v. Blogden, 10 Mod. 289 ; Strata Marcella, 9 Rep. 28 a; 2 Inst. 281; 12 Mod. 225 ; 1 Sid. 86; 5. The act applies to companies whose railroads are completed, and form a continuous line of railroad with each other, or by means of any intervening railroad. It does not appear by the plea that the railroads of the several companies are completed; the agreement, on the contrary, shows that the roads are only in process of construction It recites as follows:— “ Whereas, the line of railroad made, and in the process of construction, by the aforesaid corporation companies respectively, so unite as to form a continuous line for the passage of cars, from the city of Buffalo and Salamanca, in the state of New York, to the city of Dayton, in the state of Ohio, crossing the boundary lines of the said several adjoining states of New York, Pennsylvania and Ohio, at one and the same point.” Iiow the “ Buffalo extension of the A. & G. W. Railway,” a corporation of New York, authorized to make a railroad from Buffalo to Salamanca, can be a party to this agreement, the defendants may be able to explain. Their road, when constructed, will be wholly within the state of New York. If they are embraced by the act, and are lawfully parties to this agreement, then it must be held to apply as well to all corporations similarly situated, incorporated by other states. If they are not within the act, then the agreement is not authorized by law, and the Commonwealth is entitled to judgment. 6. The agreement, instead of consolidating the capital stock of the several parties to it, creates a corporation with a new capital stock of thirty millions of dollars, for which there is no authority whatever. 7. The agreement is no evidence of a corporate existence under the act. The act expressly provides that “ a copy of said agreement and act of consolidation, duly certified hy the secretary of the Commonwealth, under the seal thereof, shall be evidence of the existence of said new corporation.” The plea makes profert of the original agreement, with the certificates of the secretaries of the four companies, that it was approved by their respective stockholders. There is no certificate of the secretary of the Commonwealth of its having been filed in the office, and until filed it cannot be “ deemed and taken to be the agreement and act of consolidation of the said companies.” It is therefore not only no evidence of the existence of the corporation, but for the purposes of this case, it is no evidence of anything. The only question in the cause arises on the pleadings, and is presented to the court. It is not a question of fact or of evidence. Defendants answer the demand of plaintiff by setting forth the wherefore of their'Claims to be a body politic and corporate, which by all sound rules of pleading and practice is there -now upon the record in full, closing up with an averment of the last requisite of the Act of Assembly; that the recited contract, agreement and act of consolidation duly certified, “ was on the 3d day of October, A. D. 1865, filed with the secretary of state of thé states of New York and Ohio respectively, and with the secretary of the Commonwealth of Pennsylvania, as authorized and provided by law.” The plaintiff does not traverse this or any other fact pleaded. The averment of these facts is therefore to be taken as admitted. The replication is simply that now, “ April 15th 1866, there is no record of the said supposed contract, agreement and act of consolidation and merger, * * remaining among the records of the. Commonwealth in the office of the secretary of the Commonwealth at Harrisburg.” . This reply if insufficient in law, defendants claim to be a yaiver of the plaintiff’s further pursuit of his action, and entitles them to the judgment they pray. The Act of Assembly demands one thing, and the Attorney-G-eneral another. The 3d section of the act, Pamph. L. of 1865, p. 50, prescribes the time the consolidation shall take effect: “ Upon the making and perfecting the agreement and act of consolidation as provided in the preceding section, and filing the same or a copy with the secretary of the Commonwealth as aforesaid, the several corporations parties thereto, shall be deemed and taken to be one corporation by the name provided in said agreement and aot, possessing within this Commonwealth all the rights, privileges and franchises, and subject to all the restrictions, disabilities and duties of each of such corporations so consolidated.” It may be eminently proper, and undoubtedly is, for the secretary of the Commonwealth to enroll or record the agreement in his office, but it is not by the Act of Assembly made a point or duty, upon the performance of which the consolidation becomes effectual, or the corporation exists. In the preceding section, the 2d, of the act under consideration, it is said: “ And the agreement so adopted, or a certified copy thereof, shall be filed in the office of the secretary- of the Commonwealth, and shall from thence be deemed and taken to be the agreement and act of consolidation of the said companies; and a copy thereof duly certified by the secretary of the Commonwealth, under the seal thereof, shall be evidence of the existence of said corporation.” This last was necessary, for it might be a copy of a copy merely, and not a copy of the original, and hence without special enactment would not be evidence. However, it is not made the exclusive evidence. But, as already observed, we are not called upon to furnish evidence here now; non constat, but we have it. In pleading, a party is not required to set forth his evidence, but only the fact, as the legal result or effect of his evidence. This replication by the plaintiff is not very dissimilar in effect to a demurrer by him to the plea, but is somewhat more to defendant’s advantage. The proper filing is averred by defendants, and not traversed by plaintiff. The defendants occupy the position of a plaintiff' setting forth his claim in general terms, which puts the onus on the other party to make the particular objections or traverse the same. If the particular objections made are immaterial in affecting the general claim, a demurrer thereto covers the whole case: 1 Chitty’s Pl. 538, 700, ed. of 1837. The plea here is sufficient in substance to establish defendants’ warrant to be a body politic and corporate under the law. The agreement and contract after profert and oyer as in this case is a part of defendants’ plea, and all the averments in either are to be considered as so pleaded in hcec verla: 1 Chitty’s Pl. 468, 705 ; 1 Saund. 317. The defendants deny that there is any substantial default in the plea or answer which can deprive them of the judgment they ask. The legal purport of every material fact is fully stated; that is to say, the parties to this act of consolidation were respectively corporations of the several states named, and as such were operated therein under the laws thereof respectively ; that said states are adjoining states, and the laws thereof respectively authorize this act of consolidation; that the railroads of the several companies form a continuous line of railroad with each other for the passage of cars, and cross the boundary-line of the said respective states at one and the same point; that the contract was made on a given date; that it was duly submitted to the stockholders of each company separately, at meetings duly called and held for the purpose of taking the same into consideration, in pursuance of due notice of the time, place and object,, given as provided for by law; that it was read and considered by said stockholders and a vote by ballot given by them thereon of’ more than two-thirds of all the votes of all the stockholders of each corporation for the adoption thereof; that this was certified thereon by the secretary of each of the several corporations under their respective seals; and all thereof filed with the secretary of state of the states of New York and Ohio respectively, and with the secretary of the Commonwealth of Pennsylvania, as authorized and provided by law: thus, as it were, merging the old corporations or amalgamating them and forming a new one, and vesting in and transferring to this new organization all their franchises, and subjecting it to all their liabilities and inabilities^. Would not this plea or answer to plaintiff’s writ upon traverse, and issue formed, enable defendants to prove to a jury all the facts necessary in law to entitle them to the verdict ? If it would, there is then no substantial omission or default in the plea, and the judgment ought to be given for defendants. According to the Act of Assembly the work of consolidation belongs exclusively to the several boards of directors, the stockholders, and the secretaries, respectively. All others are passive until the conversion is so complete that' “ All and singular the rights, privileges and franchises of each of said corporations * * and all the property, real, personal and mixed; and all debts due * * and other things in action belonging to each of such corporations, shall be taken and deemed to be transferred to and vested in such new corporation, without further act or deed:” §§ 2, 8 and 4. There is no act required of the secretary of the Commonwealth precedent to the time these several already existent corporations “ shall be deemed and taken to be” (not created) “ one corporation by the name provided in said agreement:” § 3. The analogies set up by plaintiff are not pertinent. It is not a new creation, or grant of franchises, in the sense claimed; but simply providing another form for operating those already exercised in another name and style. The chief questions discussed by him do not arise upon this record. The authorities cited by plaintiff show emphatically that when the legislature have required an act to be done by the secretary of the Commonwealth, or an enrolment, as a condition precedent, they say so: Purd. Dig. 194-5, tit. Corporation, pi. 1, 2, 11, 628, 631, &c.; tit. Land Office, pi. 63, 64, 79, 80, 81, 85. And when the legislature mean the simple act of the party shall give the right, or authorize the exercise of one, they use the appropriate language adopted here: Id., tit. Justice, pi. 28, 72, 73, 80, 92; Id., tit. Mechanics’ Lien, pi. 4, 18, 20. Where notice may be necessary to give priority over others, or adversely affect innocent parties, the requirements may be otherwise; but that question has no application. So it is in same: tit. Railroad, pi. 15, 16, 49, 50, 52, 55. By the word filed is simply meant deposited with the secretary of the Commonwealth, in order to complete or consummate the consolidation. The remaining objections offered by plaintiff result from a too technical view of the Act of Assembly; entirely dispelled by a general examination of the whole subject and provisions of the law. It is distinctly averred on this record that the laws of the several states named authorize the agreement, and this not being traversed in the pleadings, the question is not before the court. The public are not affected by and cannot take advantage of want of notice to stockholders being specifically set out. The fact material to be certified is that two-thirds of all the stock approved, which is now fully and clearly done. The facts are pleaded in full form. The evidence of the facts is not required by the rules of pleading: 1 Chitty’s PI. 244. The dry allegation of the fact without the circumstances constituting the evidence of it suffices : Id. 258.
53 Pa. 20Philadelphia & Erie Railroad v. Catawissa Railroad (1866)
These were bills in equity, filed in the Nisi Prius, in December 1865, Nos. 28 and 40 to January Term 1866. On the 11th of January 1866 the Philadelphia and Reading Railroad Company and the East Pennsylvania Railroad Company were, on their petition, made defendants by order of the court, and on the 28th of March the Atlantic and Great Western Railway Company of Pennsylvania were by agreement of counsel made defendants. The first bill set out the lease of the Philadelphia and Erie Railroad to the Pennsylvania Railroad ; the construction and use by the Catawissa Railroad Company of a railroad commencing and connecting with the Philadelphia and Erie Railroad at Milton, Penna.; a contract, October 31st 1860, between the Philadelphia and Erie Company and the Catawissa Company for twenty years, for the nse of part of the road of the former by the latter; the creation, by Act of April 2d 1860, of the Western Central Railroad Company, and by Act of May 20th 185T of the Atlantic and Great Western Railroad Company of Pennsylvania; that the last-mentioned company, pretending to act under some law of Pennsylvania, alleges that it has been consolidated with certain corporations of New York and Ohio, and claims to be the Atlantic and Great Western Railway Company of New York, Pennsylvania and Ohio ; but the complainants do not admit the validity of such consolidation; that said last-mentioned company have in use in Pennsylvania a railroad connecting with the Erie Railway at Salamanca, New York, and extending by continuous railway into Ohio; that the Western Central Company have not constructed nor have in operation any part of a railway within Pennsylvania; that the Atlantic and Great Western , Railway being of six feet gauge, cannot, connect with any road connecting with the Catawissa Railroad, nor with the Philadelphia and Erie Railroad, both being of four feet eight and a half inches gauge ; that the Catawissa Company, without notice to the complainants, with a view to form a line of railroad in opposition to the Philadelphia and Erie road, to deflect trade from Philadelphia to New York, have entered into a contract leasing for nine hundred and ninety-nine years all their railroad from Milton to its other terminus, &e., with the appurtenances, &c., to the Atlantic and Great Western Company and Western Central Company; that the Catawissa Company have given public notice that the lessees will take possession of their road December 1st 1865; that the Catawissa Company and their lessees claim that their lessees are entitled to the benefit of the above-mentioned contract between the Philadelphia and Erie Company and the Catawissa Company; that the complainants deny that said lessees are so entitled, because the contract between the Catawissa Company and the Atlantic and Great Western and Western Central Companies is void, neither of said companies having authority to enter into it; because, by transferring said contract with the Philadelphia and Erie Company, they have put an end to it; because, being entered into to make a through route to New York, said contract cannot.be transferred without the assent of complainants, nor they be compelled to-fulfil it in aid of a rival work; and because the lessees have no right to enjoy any of the privileges granted by the ■ contract to the Catawissa Company ; that the Philadelphia and Erie Company, on learning of the contract between the defendants, resolved 'that they would not permit the lessees to exercise any of the -privileges contracted for, and served notice thereof on the defendants.; that they are ready to transport on their own road persons and property to and from the Catawissa road; that the Catawissa Company has no rolling stock, except such as is pretended to be leased to said lessees. The complainants prayed that the contract between the defendants be declared void; that the contract between the Philadelphia and Erie and Catawissa Companies is at an end, that none of the defendants can claim any privilege under it, and that it be delivered up to be cancelled; that an injunction restraining defendants from exercising any right under the contract with the Philadelphia and Erie Company, and an injunction restraining the Catawissa Company from transferring said contract be granted. The other bill, besides matters averred in the first, sets out that complainant Scott is a stockholder in the Atlantic and Great Western Company, owning thirty shares of stock; that by reason of the unlawful act of defendants in entering into the contract (specified in the other bill), the charter of said company is imperilled and he exposed to loss, and that the Attorney-General of Pennsylvania has filed an information in nature of quo warranto against said corporation, with a prayer for substantially the same-relief as in the first bill. The answers of defendants aver the legality of the consolidation and valid existence of the Atlantic and Great Western Company, admit the gauges of the roads are different, but aver a connection at Corry, and their purpose to lay a narrow track over the whole length of their road ; admit the new line may be a rival to the Philadelphia and Erie road, but aver their line will throw a large amount of trade to Philadelphia which would go to New York, and that the Pennsylvania Railroad discriminates in favor of New York against Philadelphia. They also aver that the complainants by their acts are estopped from denying that there is a connection between the Atlantic and Great Western Railway and the Philadelphia and Erie Railroad. They deny that Scott is exposed to any loss and offer to indemnify him; they aver he has allowed his name to be used at the instance of the complainants, and his bill to be filed in their interests and not in his own interest or the. interest of any stockholder of the Atlantic and Great Western Company, but in collusion with the complainants and under their direction. By way of demurrer they insist, that the complainants having made the Atlantic and Great Western Railway Company of Ohio, New York and Pennsylvania a party, they cannot object to its corporate existence, or ask any decree except as against said corporation; that by the contract set forth in the bill the defendants are vested with all the rights of the Catawissa Company under their contract with the Philadelphia and Erie Company, and the Pennsylvania Railroad Company is bound by the obligations therein; that complainants cannot object to the corporate existence of the Atlantic and Great Western Railway Company, nor the Western Central Railroad Company, nor allege usurpation of corporate franchises by them ; that complainants have no authority to ask a decree that the contract between the defendants is void and that it be can-celled ; that difference of gauges does not prevent railroads from making 'a connection, and that the statutes authorizing the leasing of one railroad to another, do not require both to be of the same gauge. The following are the material sections of the Act of March 24th 1865 (Pamph. L. 49), under which the companies were consolidated:— “ Sect. 1. It shall and may be lawful for any railroad company or corporation organized under the laws of this Commonwealth, and operating a railroad either in whole within or partly within and partly without this state, under authority of this and any adjoining state, to merge and consolidate its capital stock, franchises and property of any other railroad company or companies or corporations organized and operated under the laws of this or any other state, whenever the two or more railroads of the companies or corporations so to be consolidated, shall or may form a continuous line of railroad with each other, or by means of any intervening railroad: Provided, That railroads terminating on the hanks .of any river, which are or may be connected by ferry or otherwise, shall be deemed continuous under this act: And, provided further, That nothing in this act contained shall be taken to authorize the consolidation of any company or corporation of this Commonwealth with that of any other state whose laws shall not also authorize the like consolidation.” Sect. 2 provides for the mode of consolidation and converting the stock of the several uniting companies. “ Sect. 3. Upon the making and perfecting the agreement and act of consolidation, as provided in the preceding section, and filing the same or a copy with the secretary of the Commonwealth, as aforesaid, the several parties thereto shall be deemed and taken to be one corporation by the name provided in said agreement and act, possessing within this Commonwealth all the rights, privileges and franchises, and subject fo all the restrictions, disabilities and duties of each of such corporations so consolidated.” On the 9th of September 1865 the secretary of the Atlantic and Great Western Railway Company forwarded the Act of Consolidation to the secretary of the Commonwealth of Pennsylvania at Harrisburg. It was returned to him under date of October 3d, with the following reply from the secretary of the Commonwealth :— “ Upon examination of the agreement enclosed in your letter of 29th September, I would respectfully state that I can find no authority for the- execution of such an agreement, and cannot consequently sanction it by filing it among the records of this department.” It was again, on the 6th of October, forwarded to the secretary .of the Commonwealth, referring him to the foregoing act as authority for filing. The secretary of the Commonwealth again returned it on the 15th of November with the following reply:— “ The attorney-general of the state having advised against the filing of the enclosed papers, I herewith return them to you.” On the 3d of May 1859 a contract was made between the Sun-bury and Erie and the Atlantic and Great Western Companies, by which they made “ connections and arrangements in the general business of their respective roads,” * * “ for the. purpose, in part, of forming railroad connections between Meadville and Erie,” &c. There are three main questions: Is the Atlantic and Great Western Company a corporation ? Is the lease of the Catawissa Railroad to that company and the Western Central Company valid? Has the Catawissa Company put an end to the contract with the Philadelphia and Erie Company ? . 1. The certificate of consolidation was filed with the_ secretary of the Commonwealth. It was sent to him September 29th, returned October 3d; again sent October 6th, and kept forty days without objection. This was filing. The secretary’s duties were purely ministerial. By filing the paper with him the corporation was created without any act of his. The certified copy of the secretary under the act is not a condition precedent, it is only one species of evidence. As against the Commonwealth on quo warranto, it would be a good answer that defendants were misled by the secretary of the Commonwealth, her agent, and in consequence great interests had become vested. Besides, the Commonwealth has received and published the company’s annual report, and has received taxes from it; and is therefore estopped. The plaintiffs cannot inquire into-the validity of the charter in a collateral proceeding: Commonwealth v. Allegheny Bridge Company, 8 Harris 185; Irvine v. Lumbermen’s Bank, 2 W. & S. 190; Commonwealth v. P. G. & N. R. Company, 8 Hands 518 ; Dyer v. Walker & Howard, 4 Wright 157; Commonwealth v. Jones, 2 Jones 365 ; Murphy v. Farmers’ Bank, 8 Harris 415; Mechlin v. Kittanning Bank, 1 Grant 416. By suing the Atlantic and Great Western Railway Company they cannot say there is no such person. 2. The Act of April 23d 1861 (Pamph. L. 410, Purd. 844, pl. 41), authorizes the leasing of railroads by other railroad companies where their roads “ shall be directly or by means of intervening railroads connected with each other.” The Catawissa road connects with the Philadelphia and Erie road, and that road connects with the Atlantic and Great Western road. Identity of gauge is not required. The legislature knew that railroads in this state were of different gauges, and that by law a company could adopt any gauge and change it at pleasure. Railroads forming a junction or coming in any manner in contact, are connected in the sense used in the act. The term is so understood by the general railroad community, as appears by the numerous affidavits, by the complainants, who advertise as connecting with the Atlantic and Great Western Railway, selling tickets to points on the latter road, and resolutions recognising the connection with it — and by the legislature in various Acts of Assembly authorizing connections of railroads with'canals, plank-roads, &c.; when the connection was to be made to allow cars to pass from one road to another the intention has been expressed. The allowing the connection by “ intervening roads,” shows that it was not intended that cars and engines should pass from one road to another, for the intervening road might not allow the cars to pass over their road, or after the -lease might change the gauge. Nor could cars, &c., pass over the length of a road bisected by a river without a bridge. Improvements have been made to run cars over gauges of slight difference ; and may not improvements be attained for the difference between six feet and four feet eight inches ? But cars may be run on both roads by putting a correspondingly narrow track on the Atlantic and Great Western Railway, and the court will decree in its favor, on condition that the company does so within a certain time. The complainants cannot inquire into the legality of the contract. The deflection of trade is the result of legitimate competition; the complainants are not entitled to a monopoly of the trade of Pennsylvania. They are besides estopped from denying the existence of a connection by the contract of May 8d 1859 between the Sunbury and Brie and Atlantic and Great Western Companies, and upon the faith of the other acts of the complainants, the defendants have been so far misled that it would be a fraud on the defendants to deny what they have so asserted. As to Scott’s bill. — A stockholder may file a bill to enjoin against acts ultra vires, if he is acting in good faith, and for the interest of the stockholders of 'his own company. But if he is using his position to injure his own company, and in the interest of a rival company, his bill will be dismissed. The bill here is filed by the solicitors of the other complainants, who are seeking to destroy his company. It will not do for him to say that he is not a stockholder of the old Atlantic and Great Western Railroad Company of Pennsylvania. Having failed to have his stock appraised, &c., under the merger act, he has acquiesced in the consolidation, and is merely an equitable owner of stock in the new company. A court of equity will not make a decree to guard against anticipated evils of a judgment on quo warranto. Stockholders acting for rival interests cannot be heard: Ffooks v. S. W. Railway Company, 1 Sm. & Gif. 162, and 19 Eng. L. & Eq. Rep. 7; Rogers v. Oxford, W. & W. R. Co., 2 De G. & J. 674; Forrest v. Manchester Railway Co., 30 Beav. 40 ; Hare v. London & N. W. Railway Co., 2 Johns. & Hemm. 120. 3. The contract of October 31st 1860 may be transferred, because it is for an easement and passes to an assignee. It is not void upon transfer under its terms, because the 14th section relates to a judicial sale or transfer. Clauses against alienation are strictly construed. The use of that portion of the Philadelphia and Erie Railroad mentioned in the contract was annexed to the Catawissa Railroad. Such contracts pass by assignment of the railroad: Great Northern Railway Co. v. Manchester, &c., Railway Co., 10 Eng. L. & Eq. Rep. 11; London & S. W. Railway Co. v. S. E. Railway, 20 Id. 417. But if it does not pass by the assignment it is still valid for the Catawissa Company, which is still in existence. The Pennsylvania Railroad and the Philadelphia and Erie Railroad Companies have no right to investigate the charters, nor interfere with the contracts of the defendants, to which they are not parties. The' Commonwealth alone can investigate the matters complained of: 1 Redf. on Railroads, ed. 1867, ch. 4, § 1, pl. 9, p. 66; Dyer v. Walker, 4 Wright 157; Irvin v. Lumbermen’s Bank, 2 W. & S. 204; Angell & Ames on Corp., § 94; Commonwealth ex rel. Banning v. Philadelphia, &c., Railroad Co., 8 Harris 518; Murphy v. Farmers’ Bank of Schuylkill Co., Id. 415; Commonwealth v. Allegheny Bridge Co., Id. 185; Mechlin v. Bridge Co., 1 Grant 416; Commonwealth v. Jones, 2 Jones 365. Scott has no standing in a court of equity, because from the face of the bill he is neither protecting his own interests nor trying to prevent a violation of the charter of his own company, but is striving to advance the interests of a rival at the expense of his own company: 1 Redf. on Railways, ch. 4, § 3, pl. 14, p. 75. In Sandford v. Railroad Co., 12 Harris 378, the plaintiff was endeavoring to obtain a benefit for himself, by preventing his corporation from making a contract forbidden by law. In Gratz v. Pennsylvania Railroad Co., 5 Wright 447, there was nothing to throw suspicion on the plaintiff’s motives. As a stockholder he was endeavoring to prevent a contract, appearing to him unconstitutional and disastrous, and not to have the charter declared void. “ Connection” does not mean a mechanical connection, so as to form practically but one road. The word is not so limited by lexicographers. The popular meaning, as applied to railroads, is such a proximity of tracks, without regard to gauge, as enables passengers, baggage and freight to be readily transferred, or to pass from one train to another in connection with it: the testimony of experienced railroad engineers shows this to be the professional meaning. Besides, a mechanical connection may be accomplished between cars and locomotives of different gauges. Further, legislative use of the word in numerous acts shows, that a mechanical connection was not intended. ’ But the Atlantic and Great Western Company are willing to lay a narrow track, and a court of equity will put a party in default on terms, rather than do him a great injury, or deprive him of a vested interest: Northampton Bridge Co. v. L. & S. Railway Co., 1 Railway Cases 653; Jones v. Great Western Railway Co., Id. 684; Attorney-General v. East Counties Railroad, 3 Id. 337 ; 4 Id. 69; Lehigh Valley Railroad Co. v. Lehigh Coal and Navigation Co, at Nisi Prius, February 10th 1865. As to the charter of the Atlantic and Great Western Company, the secretary of the Commonwealth assumed power which he did not possess. He should have filed the paper, not decided on the validity of the act under which the filing was required. But the paper was in fact filed by delivering it to him: 1 Bouv. Law Dict. 524; 13 Vin. Abr. 21 h. See also Hilliard on Injunction, p. 420, ed. 1865, in note, citing Stockholders v. Galena and Chicago Railroad. The court will consider the paper always to have been on file. Is the Act of March 24th 1865 insensible ? Some word in the first paragraph has been used incorrectly, or some word omitted, but its meaning is beyond doubt. The object is to authorize any railroad company of this Commonwealth to merge and consolidate its stocks, franchises and property with those of any other railroad companies organized under our laws, or those of any other state, when such roads form a continuous line with each other, or by means of an intervening road. This is manifestly the intention of the makers, and according to that the act is to be construed: Dwarris on Stat. 689, 690; Brown v. Carey, 7 Wright 495, 503. As to the contract of October 31st 1860. The provision in the 14th section is against an assignment for the benefit of creditors, and a judicial sale only, neither of which exists here. Courts of equity have long disregarded the rule against the assignability of choses in action: London and S. W. Railway Co. v. S. E. Railway Co., 20 Eng. L. & Eq. 417 ; Redfield 419; Great Northern Railway Co. v. Manchester, Sheffield and London Railway Co., 10 Eng. L. & Eq. 11 ; West London Railway Co. v. L. & N. W. Railway Co., 18 Eng. L. & Eq. 481; Parsons on Contracts, vol. 1, pp. 223, 224, and cases there cited. The reporter received no brief of their argument. 1. There has been no lawful consolidation of the Atlantic and Great Western Railroad Company of Pennsylvania with the companies of Ohio and New York, and therefore the Atlantic and Great Western Railway Company (party to the agreement of November 1st 1865) is a foreign corporation, which is not within the provisions of the Act of 1861, and has no connection with the Catawissa road by means of an intervening road. The existence of the corporation is not denied, but it is denied that it is a Pennsylvania corporation. The corporation is made a party by the name it assumes. 2. The right to lease and contract is purely statutory, and the statute requires that the roads shall be connected with each other. A connection cannot exist where the difference of gauge prevents the rolling-stock from passing from one road to the other and traversing it. The connection must be either a mechanical or a practical business connection. That there can be no mechanical connection is manifest. The expense, delay and damage in the transhipment of goods take away the practical business value. This is shown by the affidavits of engineers. 8. The agreement declares that by a connecting road, the Philadelphia and Erie road is not meant, but a road not built; and no Act of Assembly authorizes the building of such road. A court of equity will not permit the defendants to set up that their right to connect is founded upon the existence of a road which is intended to be antagonized to the utmost extent. The Act of 1861 requires the roads to be such as “ are connected,” not such as purpose to become so. 4. As to the appellees recognising these as connecting roads, there is no proof that the advertisements on this subject were authorized by them; the advertisements are of connecting trains, not roads ; nor can the appellees be bound by their exposition of the law. 5. As to Scott’s bill — there is no proof that his bill is filed from improper motive, or in the interest of a rival company. He is not complaining of the consolidation, but of other acts ultra vires. 6. There are no words in the contract of October 1st 1860 making it assignable ; by a fair interpretation of the 14th article it has become null. The court must inquire into the validity of the lease of November 1st 1865, to ascertain whether it was capable of transferring the rights of the Catawissa road under the agreement of October 31st 1860. The counsel also submitted the authorities and comments following: On the right of a stockholder to file a bill of injunction: River Dun Navigation Company v. The North Midland Railway Co., 1 English Railway Cases 114, 150 ; Walford on Railways 153, 171 ; Bagshaw v. The Eastern Union Railway Co., 6 Eng. Railway Cases 119 ; Ware v. The Grand Junction Waterworks Co., 2 Russ. & My. 461; Munt v. The Shrewsbury and Chester Railw. Co., 3 Law & Eq. 144; Coleman v. The Eastern Counties Railw. Co., 4 Eng. Railw. Cases 382, 563; Beman v. Rufford, 6 Law & Eq. 106; Winch v. The Birkenhead Railr. Co., 13 Law & Eq. 518; Columbus & Piqua Railroad v. Indiana & Bellefontaine Railroad, 5 McLean 450 ; Sanford v. The Catawissa Railroad Co., 12 Harris 378 ; Mott v. The Penna. Railroad Company, 6 Casey 9. Such a bill is maintainable when the action in restraint of which the injunction is prayed is ultra, vires, where the stockholder’s interest is very small, and even where he is acting directly in the interest of a rival company: Sandford v. The Catawissa Railroad, 12 Harris 378 ; Beman v. Rufford, 6 Eng. Law & Eq. 106 ; Coleman v. Eastern Counties Railroad Co., 4 Railw. Cases 382, 563, and 10 Beav. 1, S. c. Winch v. The Birkenhead Railroad Co., 13 Eng. L. & Eq. 506 ; Bagshaw v. Eastern Union Railroad Co., 6 Railway Cases 119, 14 Jurist 491; Walford on Railways 371, 153 ; Manderson v. The Commercial Bank, 4 Casey 279. The cases of Hare v. The London and North Western Railway Co., 2 Johnson & Hemming 80, Forrest v. The Manchester Railway Co., 30 Beav. 40, Ffooks v. The South Western Railway Co., 1 Smale & Gifford 162, and Rogers v. The Oxford, Worcester and Wolverhampton Roads, 2 De Gex & Jones 674, are all cases in which the action sought to be restrained was expressly held not to be ultra vires. Sandford v. The Catawissa Railroad, 12 Harris 378, is a Pennsylvania case directly in point, in which the bill was filed on behalf of a rival express company, and in which this objection was taken. This case has never been overruled or even doubted; on the contrary it is confirmed by Manderson v. The Commercial Bank, 4 Casey 279. In Mott v. The Pennsylvania Railroad Company, 6 Casey 9, the stockholders’ bill was not maintained only because the Act of Assembly provided compensation for a dissatisfied stockholder. Here Scott, the complainant, has no such remedy to protect him when dissatisfied with the lease he complains of. On the construction of charters: Com. v. Erie and N. E. Railroad, 3 Casey 351; Com. v. Franklin Canal Co., 9 Harris 128 ; Charles River Bridge Case, 11 Peters 544. Meaning of words “ at or near” when used in charters: Mohawk Bridge Company v. The Utica and Schenectady Railroad Co., 2 Am. Railw. Cases 570. That the Atlantic and Great Western is to be a rival road is alleged in the bill and in the argument: but rivalry is not a ground of equity jurisdiction. The Commonwealth alone can complain of the alleged violations of the law by this company: Murphy v. Farmers’ Bank, 8 Harris 415 ; Beaver Meadow Railroad Co. v. Lehigh Coal and Navigation Co. As to Scott’s bill. — His is not a real ease; he complains of injury to him as a stockholder by the act of the defendants, and is urging a suit which, if successful, will destroy his corporation. The Act of March 13th 1847 (Pamph. L. 337), provides, that either of two companies whose railroads “ are connected” with the consent of the other, may run its cars, &c., upon the other road. This act does not apply to this case. The Act of March 29th 1859 (Pamph. L. 290), provides, that the Aet of 1847 shall be construed to authorize companies owning connecting railroads to enter into leases, &c., with each other, in respect to the use of their several railroads. This is not, as is said, a merely supplementary aet, but is an independent act, differing entirely from the Act of 1847. The Act of April 23d 1861 (Pamph. L. 410), authorized any railroad companies, however numerous, to hold stock and bonds in any other company, “ and to enter into contracts for the use or lease of any other railroads; * * * provided that the roads * * * shall directly or by means of intervening railroads be connected with each other.” There is nothing in this act about the cars of one road running on the other: that has been dropped. The great point in this case is the meaning of “ connection.” The phrase is not, connecting gauges, nor connecting rails, nor connecting traelcs, but connecting roads. There are two considerations to be presented here:— 1st. Cars can run from one road on to another where the gauges are not the same, for it is done on roads of 4 ft. 10 in., and 4 ft. 8J in. gauges, and the progression of science may overcome a much greater difference of gauge ; 2d. Gauges may be the same and the rails united, and cars may not be able to go from one to the other on account of the angle of connection, or the steepness of the connecting grade — with other features, as closeness of tracks, width of tunnels, &c., &c. In addition to this is the right the directors of any company have to change its gauge. The word is to be interpreted by its popular meaning, which embodies the sense of all mankind, while the knowledge of a technical meaning is confined to a few experts. The meaning assigned to an expression in a law, should be that which is popularly given to it; for the body of the people are those who are to be affected by a law, and the meaning of its words should be according to their understanding of them. A line of boats may be connected with a line of stages; but they are not the same: so a turnpike may be connected with a railroad, the ocean with a river, and the like. The complainants also use “ connect” in their reports, on their tickets, their contracts with the defendants, &c., in a sense incon sistent with uniformity of gauge. The legislature has used “ connection” in numerous Acts of Assembly, showing that they did not contemplate uniformity of gauge as necessary to constitute a connection between two roads. Especially the Act of March 24th 1865, § 1 (Pamph. L. 49), which provides that, where railroads terminate on the banks of a river, and “ are connected by a ferry, they shall he deemed continuous.” As to the contract of October 31st 1860, the meaning of the 14th section of that contract is, that it shall be abrogated only when there is a transfer for the benefit of creditors: it means a transfer by a sort of judicial proceeding under a claim for indebtedness. The word “judicial” is connected with both the transfer and sale. ’ But the contract here is no sale or transfer at all, it is a lease; and it may be transferred to another company: London & S. W. Railway Co. v. S. E. Railway Co., 20 Eng. L. & Eq. 417 ; 1 Redf. on Railways 589, ch. 22, § 1, pl. 2; Great Northern Railway Co. v. Manchester, Sheffield & London Railway Co., 10 Id. 11; W. London Railway Co. v. L. & N. W. Railway Co., 18 Id. 481; 1 Pars. on Cont. 223-24, and cases cited. The delivery of the act and agreement of consolidation to the secretary of the Commonwealth, and its remaining with him for forty days without objection, certainly -was filing it, and it was not in the power of the secretary to undo it. But the office of the secretary of the Commonwealth is not a place of record for the copy of a paper, and in this case there could be no plea of nul tiel record. The mere order of an Act of Assembly to deposit an agreement or other paper with the secretary does not make it a record. And although an Act of Assembly is a most solemn act of record, yet directing such a copy as this to be filed does not make it part of the act. The requisition in the Pennsylvania act, that to give effect to the contract of consolidation, the other states shall “ authorize a like consolidation,” does not mean like legislation.” The consolidation is to take-effect in a particular way; and the object was that our legislation should not clash with that of the other states. Consolidation may be effected by a general iaw in Pennsylvania and special law in New York — applying to all companies in Pennsylvania, and to individual companies in New York, as each particular case arises.
53 Pa. 62Commonwealth v. Cross Cut Railroad (1866)
This was an information in the nature of a quo warranto, filed November 29th 1865, in which the attorney-general suggested, that the defendant claimed without warrant the following franchises, &c., viz.: — To be a body politic, &c., by the name of The Cross Cut Railroad Company; to construct a railroad from a point on the Oil Creek Railroad, at or near Corry, &c., to a point on the northern boundary of Erie county; to construct a railroad from a point, &c., of a different gauge from that of the Philadelphia and Erie Railroad, to a point on the northern boundary of Erie county; to construct a railroad from a point, &c., to connect with a railroad constructed or to be constructed in the state of New York, at a point on the northern boundary of the county of Erie; to construct a railroad from a point, &c., to form part of a continuous line of railway crossing the northern boundary of the county of Erie, extending through part of the state of New York, and connecting with other railroads in the said state of New York. The defendants pleaded: — 1. That by virtue of an Act of Assembly of May 3d 1864 (annexed and made part of the plea), commissioners were appointed to receive subscriptions for stock of a company to be organized as therein directed ; that the commissioners received subscriptions for 1117 shares of stock, on each of which $5 were paid, and the facts being certified to the governor letters patent were issued June 15th 1864, incorporating a company by the name of The Cross Out Railroad Company; with a profert of the letters. 2. That they are constructing a railroad from a point on the Oil Creek Railroad, &e., to a point on the northern boundary of Erie county, and that they are authorized to do so by their act of incorporation. 3. That they are constructing a railroad of four feet nine-and-a-quarter inches gauge, known as the compromise gauge, which will admit the cars of the Philadelphia and Erie Railroad to be run over it, and cars adapted for it can be run over the Philadelphia and Erie Railroad, and that the act provides that the gauge of said road shall not exceed four feet ten inches. 4. That they are not constructing a railroad in New York, and their railroad is not connected with any railroad in that state ; but that they are authorized to connect with any railroad constructed or to be constructed at any point on the northern boundary of Erie or Warren county. 5. That their railroad does not connect with any road in New York, and extends only from its terminus near Corry to its terminus on the northern boundary of Erie county, which termini are authorized by the act of incorporation. The attorney-general put in a general demurrer. The act of incorporation (Pamph. L. 1864, p. 733) by §§ 1 and 2, appoints commissioners to receive subscriptions and organize a railroad company under the Act of 1849; fixes the capital-and authorizes the borrowing of money, &c. Ey § 3 the company is authorized to make “ a railroad from a point on the Oil Creek Railroad, at or near Corry, &c., to connect with any railroad constructed, or to be constructed, at any point on the northern boundary of Erie or Warren county: Provided that the gauge of said road shall not exceed four feet ten inches; and said company shall be subject to the provisions of the 5th section of the act incorporating the Meadville Railroad Company.” This section (Pamph. L. 1857, p. 802) provides, “ that the Meadville Railroad Company shall make the same or equal connections, and afford equal facilities to the Sunbury and Erie Railroad as to any other railroadthe Sunbury and Erie road to carry the freight and passengers of the Meadville road, at the rate charged on the Meadville road, and the Meadville road to carry freight and passengers of the Sunbury and Erie at their rates. The northern terminus of the defendants’ road must be at a point on some other railroad constructed within this state, on the northern boundary of Erie or Warren county, with which it must connect. If the defendants have the power they claim, the words “ connect with any railroad constructed or to be constructed,” have no force; But it was intended to limit the power of the company to making a road to form a connecting link between two other railroads. They are disregarding this limitation. Powers not clearly granted to corporations are withheld: Commonwealth v. Franklin Canal Co., 9 Harris 125. It is not to be presumed that the legislature designed to authorize the construction of a road through our territory for a foreign corporation. The act contemplates the existence or future construction of a road on the northern boundary of Erie or Warren county. This is not averred: N. Passenger Railroad Co. v. City Passenger Railway Co., 2 Wright 361. . It is a misconstruction of the act to say, that the “ said road” refers to the defendants’ road ; it has reference to the road “ constructed or to be constructed.” The defendants’ interpretation makes nonsense of that part of the proviso which says, “ and said company shall be subject to the 5th section of an act incorporating the Meadville Railroad Company, “ because the 5th section of the Meadville Act requires, “that the said Meadville Railroad Company shall make the same or equal connections, and afford equal facilities to the Sunbury and Erie Railroad for the convenience of trade and travel, as it makes with and affords to any other railroad,” &e. This means that the Meadville road shall conform to the gauge of the Sunbury and Erie, which is known to be four feet eight inches — the Pennsylvania gauge. The meaning of the proviso is, that the Cross Cut Railroad shall not connect with any railroad on the northern boundary of Erie or Warren county, the gauge of which shall exceed four feet ten inches, and shall conform to the gauge of the Sunbury and Erie road. And this construction of the act accords with the Act of the 22d April 1863, Pamph. L. 534, which provides: “ That the gauge of all railroads, heretofore or hereafter authorized to connect with the Philadelphia and Erie Railroad, and on which the track is not now wholly or partly laid, shall conform to and be the same as the gauge of the said Philadelphia and Erie Railroad.” The 4th and 5th pleas at most amount to no more than non usurpavit, and are therefore bad as pleas: Rex v. Leigh, 4 Burr. 2243 ; Queen v. Blagden, 10 Mod. 296 ; Bull. N. P. 207, 1st ed.; 2 Selwyn N. P. 1185, 9th ed. The defendants must either justify, or disclaim, or they may demur to the information. These pleas are in fact disclaimers, and the Commonwealth is entitled to move for judgment upon them: Grant on Corporations 299; Co. Lit. 527, 530; 2 Willcocks on Corporations 499, &c.; Commonwealth v. Gill, 3 Wh. 249. The legislature intended to authorize the defendants to build a railroad from a point near Corry to the- state line. If so, there must be a northern terminus on the state line : this terminus was at any point on the line where there could be a connection with a road constructed or to be constructed. The company had full power to select this terminus, and when selected it was fixed as precisely as if named in the act. The company need not declare its intentions : intention is not usurpation : Commonwealth v. Delaware and Hudson Canal Co., 7 Wright 302. The proviso in the Meadville Act was not to regulate gauge, but to prevent discrimination in rates of charge. The Act of April 22d 1863 relates only to roads connecting with the Philadelphia- and Erie road: the defendants’ road is not authorized to connect with the Philadelphia and Erie road. The charter should receive a reasonable construction: Stormfeltz v. Turnpike Co., 1 Harris 560; People v. Lambier, 5 Denio 15; Same v. Utica Insurance Co., 15 Johns. 379 ; Same v. Manhattan Co., 9 Wend. 384; Clev., P. and Ashl. Railroad Co. v. Erie, 3 Casey 387. The 4th and 5th pleas are sufficient: People v. Thompson, 16 Wend. 655 ; King v. Ponsonby, 1 Ves. Jr. 1; King v. Sheppard, 4 T. R. 381.
53 Pa. 71Commonwealth ex rel. Alliance Petroleum & Coal Co. v. Slifer (1866)
1. The title is no part of an act; and can be resorted to only when'there is doubt aa to the meaning of the enacting words. 2. The Act of April 9th 1856 does not restrict the power of the Courts of Common Pleas to dissolve corporations, to any class of corporations; the Act of July 18th 1863, for incorporating companies for mechanical and other purposes, expressly confers power on those courts to dissolve such corporations. 3. It is the duty of the secretary of the Commonwealth to file and record in his office the decrees of those courts dissolving such corporations. 4. The county in which the corporation has its principal office is “ the proper county,” and the Court of Common Pleas of that county has jurisdiction to decree a dissolution.
53 Pa. 74McKeehan v. Wilson (1866)
1. When the omission or insertion of words has left unexpressed or wrongly-expressed what, from the whole tenor of the will, was the intention of the testator, the court will permit the will to be read as if the words had been inserted or omitted. 2. But this is to be done only when such intention is clear beyond a reasonable doubt, by the will itself, except in some cases of latent ambiguity. 3. The rule applies to a defectively expressed, intent; if from the will the intent cannot be gathered, words cannot be supplied to disclose an intent. 4. The word “children” may include “grandchildren” where succession is evidently intended. 5. A devise was “ to my beloved wife and my three children all the proceeds of my farm during her natural life, and my wife the privilege of living with the family in the dwelling-house as long as she does live.” * * “If all my children should die before my wife, I allow my wife one half of my real estate, and the other half to be divided equally amongst the heirs of my sister, at the time being.” Held, to be a life estate per auter vie, in the children, and in the wife for her own life, and a contingent fee by implication to the children conditional on their surviving their mother.
53 Pa. 79Wilson v. McKeehan (1867)
This was a writ of error by tbe plaintiff below to the judgment of the Court of Common Pleas of Cumberland county, which was reviewed in the preceding case (McKeehan v. Wilson), and was taken out after the former decision of the Supreme Court, under the Act of March 22d 1850, § 2, Purd. 410, pi. 5. See also Ormsby v. Ihmsen, 10 Casey 462.
53 Pa. 81Adams v. McKesson's (1866)
Error, to the Court of Common Pleas of JFramMin county. A judgment was entered, .March 4th 1861, against William Adams, in favor of Louisa'McKesson, executrix, &c., of S. K. McKesson, deceased, on a single bill, dated January 21st 1861, for $1000, given to the decedent, on which $500 remained due July 17th 1862. On the application of Adams the court opened the judgment and let him into a defence. Jacob and Catharine Reinhart were the owners of a tract of land encumbered by a number of judgments ; after a venditioni exponas had been issued on one of them, Mrs. Reinhart agreed verbally with one. Foreman “to put out from twenty-five to thirty acres of the farm in wheat; Foreman to have two-thirds of the crop, and Mrs. Reinhart one-third.” The land was sold by the sheriff to S. R. McKesson and conveyed to him November 2d 1860. On the 21st of January 1861, McKesson conveyed the land to Adams by deed with general warranty, the above-mentioned single bill being for part of the purchase-money. Foreman at' the next harvest cut the grain against Adams’s notice to him not to do so. The whole crop amounted to 584 bushels, of which Foreman delivered to Adams one-third. Adams as a defence to the bill claimed to defalk from it the value of the other two-thirds less the expenses of gathering it, &c. The defendant submitted the following points, viz.:— 1. That inasmuch as the grain now in question was growing on the premises, w'hen by the articles of agreement, 7th December 1860 and deed of 21st January 1861, McKesson sold to defendant, the defendant was entitled to the crop, and as Foreman took away two-thirds of it, amounting to $828.48, the defendant is entitled to a credit on the balance of the judgment to that extent. 2. That if McKesson did not acquire a title to the two-thirds of the crop claimed by Foreman, that fact cannot affect the right of Adams to have the deduction made for the two-thirds as against McKesson on the judgment. King, P. J., answered these points, and concluded his charge as follows:— “ In answer to the 1st point we say, that if it be, as here assumed, that the defendant was entitled to the crop, and that Foreman took it away, still it does not follow that the defendant in this case can look to the estate of'McKesson for indemnity. If it is meant that Adams was entitled to the crop because it was transferred to him by the deed from McKesson, then, in order to establish his right to the credit claimed, it should be made to appear that Foreman had a legal title to two-thirds of the crop and had a right to take the same off the premises. But we have already decided that Foreman had no such right, and consequently the position of the defendant is not sustained. “ If we understand the 2d point correctly, it takes the position that McKesson by his deed to Adams transferred not only the land but the grain growing upon it, even although he only acquired by the purchase at the sheriff’s sale the landlord’s share of the crop, and that in order to protect himself against any claim for the wheat crop, he should have reserved it in his deed. We think this position to be correct; but having settled that Foreman had no legal title to the crop, this point is of no consequence in the case. “ Upon a view of the whole case, we are of opinion that the defendant is not entitled to defalk the value 'of the two-thirds of the crop, and that the plaintiff is entitled to a verdict for the whole amount of her demand.” The jury having found a verdict for the plaintiff for $605.42, the foregoing parts of the charge were assigned for error. The paper-book of the plaintiff in error was not signed, and no cases were cited. cited Bittinger v. Baker, 5 Casey 65, as overruling Sallade v. James, 6 Barr 144, and Groff v. Levan, 4 Harris 179.
53 Pa. 84McGowan v. Ahl (1866)
This was an action of trespass brought to April Term 1864, by-Stewart McGowan against Cary W. Ahl, Daniel V. Ahl, John Musselman, J. J. Fleming, and John Wolf, for breaking and entering the plaintiff’s close, “ situate in the township of South Middleton,” and cutting, &c., timber to the value of $4000. The writ was issued to April Term 1864.
53 Pa. 93Glamorgan Iron Co. v. Rhule (1866)
In the court below Jonatban Rhule brought an action of assumpsit against the Glamorgan Iron Company, and declared on a special contract for erecting a trestle-work railroad, and also on the common counts. He laid his damages at $8000. There was no affidavit that the claim was beyond $100. The pleas were “ non assumpsit and payment.” The jury rendered a verdict for the plaintiff for $83.
53 Pa. 94Shirk v. Bucher (1866)
Appeal from the decree of the Court of Common Pleas of Lancaster county, in Equity. Reuben Bucher brought his bill, December 31st 1864, against Joseph Shirk and others, school directors of West Cocalico township, and Jesse R. Pannebacker, constable, setting forth that the school directors levied a tax on said township, to pay bounties to volunteers; that the tax levied on the complainant amounted to $96.40, which was more than he was responsible for; that the directors proceeded irregularly in not assessing the tax on. the valuation of his property returned by the assessors for state and county purposes for the year 1864, but substituted their own valuation, and assessed a tax on $3000, not included in the valuation returned by the assessors; that the tax thus assessed against him is $72 more than is due by him, and praying that the defendants may be restrained from collecting the illegal portion of the tax assessed against him. To this bill the defendants demurred. Hayes, A. J., April 15th 1865, delivered the following opinion and judgment:— “ The question raised upon this demurrer is, whether the defendants, school directors of Cocalico township, were authorized in levying and raising a bounty'tax for the year 1864, to levy and assess the same upon property not included in the adjusted valuation and assessment made by the lawful assessor and adjusted by the commissioners for the same year and township, or not. “ By the terms of the Act 25th March 1864, § 7, they were authorized ‘ to levy and assess on all property, professions, trades and occupations subject to taxation for state and county purposes,’ &c., ‘which taxes shall be collected as county, city, ward and borough taxes are now levied and collected,’ &c. “ It is contended that this act invested the school directors with a new power not connected with the interests of education, and unrestricted by any words of limitation, they are ‘ to levy and assess all property, professions, trades and occupations,’ and therefore they are empowered to assess any property of a resident citizen existing at the time, whether it had been assessed by the legally appointed assessor or not, or whether or not it existed at the time of the legal and regular assessment. “ But this view does not appear to be sustained by reference to the act which authorizes them to assess, &c., on all property, &c., ‘ subject to taxation for state and county purposes? which is a material limitation, because if the $3000 in this case were not subject to taxation for state and county purposes, the school directors were not authorized to levy and assess them. The $3000 were not included in the assessment made for state and county purposes, because they were received after that assessment was made; they were not at the time, therefore, taxable for such purposes, and were not in fact taxed. “ The school directors were a legally constituted body, and this new duty was devolved upon them. Under the law by which they were constituted they were invested with large powers in regard to the levying of taxes for the purposes of the common schools; and to enable them to perform the duty, the county commissioners are required to furnish them with a correct copy of the last adjusted valuation of subjects and things made taxable for state and county purposes, and the same are by the Act of Assembly made taxable for school purposes. The school directors are to proceed to levy and apportion the school-tax accordingly. “It would be extraordinary, if in regard to this anndally recurring duty, the legislature deemed it proper to give them as a basis the adjusted valuation of assessed property for levying a school-tax, with respect to which the citizen had exercised the privilege of correcting any errors by the appeal allowed him, they should have in relation to this bounty-tax given them, -instead of that safe criterion, the arbitrary power of assessing whatever property or things the directors might think proper, and at whatever value they should choose to assign, without appeal or redress to any party injured by their mistakes. “ Unless the enactment were in such indisputable terms as made such interpretation unavoidable, it would be difficult to accept it as the true meaning. But I think the clause, subject to taxation for state and county purposes, explains the intention of the legislature of 1864, and places the provision of the act of that year with respect to the levying of bounty-tax, in harmony with the Act of 1854, in regard to the basis of taxation — the adjusted valuation of the commissioners. “We think the judgment on the demurrer should be for the complainant.” The defendants appealed, and assigned for error, that “ the court erred in deciding that the sum of $3000 was not liable to levy or assessment for county purposes, and in giving judgment on the demurrer for the complainant.” cited Act of March 25th 1864, § 7, Pamph. L. 77; Act of August 25th 1864, Pamph. L. 987 ; Act of April 15th 1834, § 48, Pamph. L. 518 ; School Directors v. Carlisle Bank, 8 Watts 296. cited Act of May 8th 1854, § 29, Pamph. L. 624; Act of August 25th 1864, § 4, Pamph. L. 987 ; Dwarris on Stat. 300.
53 Pa. 97Noel v. Karper (1866)
1. An inquisition finding that a party is a lunatic or habitual drunkard, is prim& facie evidence of incompetence at any time covered by the finding, and the burden is upon the party setting up a contract of the lunatic or habitual drunkard to show that he was sane at its execution. _ King, P. J. _ 2. In such case it must be shown that the lunatic or habitual drunkard had memory and judgment enough to understand the character of the act, and the legal responsibility entailed thereby. Id. 3. The presumption in favor of sanity is changed by the fact that there was such inquisition. Id. 4. Proof of fixed habits of intemperance for two years would not, aside from such finding, shift the burden of proof so as to require the party setting up the contract to prove competency at the time of its execution. Id. 5. Evidence that “about the time” a lunatic or habitual drunkard signed a note as surety,"the principal was treating him to drink, &c., is inadmissible. 6. Evidence that the lunatic or habitual drunkard was, when he signed the note, security for the principal in a large amount, and that the principal had no means or credit, is inadmissible.
53 Pa. 102Commonwealth v. Eckert (1866)
53 Pa. 106Shreiner's Appeal (1866)
Appeal of John Shreiner, executor, &c., of George Shreiner, deceased, from the decree of the Orphans’ Court of Lancaster county.
53 Pa. 108Miller v. Hartle (1866)
1. A father bought and paid for a tract of land which was conveyed to himself, declaring that he intended it for his son. The deed was found in the son’s possession. Held, no evidence of title in the son. 2. There was no evidence that the son was induced to take possession of the land as a gift, or that he held exclusive possession or made improvements. Held, that declarations by the father, not made to the son, of what he meant to do for him, were not evidence of a present gift and were inadmissible. S. The clearest evidence of a present gift accompanied by exclusive possession,,and valuable improvements not to bo compensated in damages, is necessary to establish a valid parol gift between father and son. 4. It is for the court to say whether the evidence is sufficient to raise an equity, and for the jury to say whether it be true.
53 Pa. 112Huber v. Reily (1866)
Error, to the Court of Common Pleas of Franklin county. This was an action on the case, commenced October 11th 1865, by Henry Reily against Benjamin Huber, in which the following case stated was afterwards filed:— “ It is admitted that Henry Reily (the plaintiff) was a citizen of the township of Hamilton, in the county of Franklin, and was liable to military service in the army of the United States.
53 Pa. 122Wheeler v. Winn (1866)
1. A bill of exceptions under stat. 13 Edw. 1 is founded on some objection in point of law to the opinion of the court, as to the competency of witnesses, the admissibility of evidence or its legal effect, or some matter of law on facts not denied, in which either party is overruled by the court. 2. A bill of exceptions is not to draw the whole matter into examination a^ain, it is only for a single point; t'he truth of it cannot be controverted alter the bill is sealed. 3. If the exception be not stated in writing and tendered at the trial, it is waived; the party shall not resort to his exception after verdict against him; if to the charge it may be tendered at any time before the delivery of the verdict. 4. Error may be assigned on any point material to the issue appearing on the bill, although it was not particularized in stating the exceptions below. 5. Judges on return of a writ of error finding on the record palpable errors in a charge written or filed under the statute of 1806, are equally bound to take notice of them, as if in a bill of exceptions. 6. In either the modes — by the statute of Edward 1, or the filing the whole charge or points and answers filed under Pennsylvania statutes — the matter to be reviewed is brought upon the record, and the writ of error brings it into a court of error, whore errors may be assigned to any part of the record, and it is the duty of the court to notice them. 7. The practice on a writ of error stated in this case. 8. Possession of an improvement used only to herd cattle, and abandoned every year'when the pasture season ended, is not a possession for the purposes of the Statute of Limitations, although corners and lines were marked and cabins built upon it. 9. Possession of an improvement under the statute must bo hostile, continued and exclusive, and also for purposes of residence or cultivation. 10. An annual entry on another man’s land to cut timber, feed cattle, hunt or fish, with the cultivation of a truck patch in the summer, as incidental to the other pursuits, can never give title. 11. A claimant under such circumstances is a mere intruder, and cannot raise objections to a tax title under an assessment and sale by the treasurer, whose deed is conclusive against an intruder without color of title. 12. A treasurer’s deed for unpaid taxes due more than a year before the sale, is not defective because a tax included in the sale had been assessed within a year. 13. The exemplification of a deed conveying land in two counties and recorded but in one, is evidence in ejectment for lands in the county in which it is not recorded.
53 Pa. 132Commonwealth v. Stump (1866)
1. Where there is no proof of actual marriage, — cohabitation and reputation are necessary to ground a presumption of marriage; proof of cohabitation alone is insufficient. 2. Reputation consists of the speech of the people who have an opportunity to know the parties; to be proved by them and not by the wife. 3. Marriage is in law a civil contract, not requiring any particular form of solemnization before officers of church or state, but must be evidenced by words in the present tense, uttered for the purpose of establishing the relation of husband and wife, and should be proved by the signature of the parties or by witnesses present when it was made. 4. Therefore, where the evidence of the contract was the declaration of the wife that, “ about 31 years since she went to the house of A. S. to live with and keep house for him, under a mutual promise and agreement that they would sustain towards each other the relation of husband and wife, and that they did thus live and cohabit together,” it was held that there was not proof of marriage in fact. 5. An Act of Assembly legitimating children of a testator after-a devise to them had vested, did not relieve the devise from collateral inheritance tax. 6. The court below rejected evidence of declarations of the father, made out of the presence of his wife, that they were not married till after the children were born. Held, not to be error.
53 Pa. 138Forscht v. Green (1866)
Error to the Court of Common Pleas of York county. This was an action of assumpsit, commenced May 7th 1865, by Samuel Forscht' v. Arthur N. Green, to recover $220, money deposited with the defendant as stakeholder, being the plaintiff’s stake in a bet with John R. Donnell, on the Congressional election in the York district, in 1862. Forscht, the day after the election, claimed the money from the defendant, and gave him notice not to pay it to the other party; the defendant paid it over on an indemnity. The plaintiff having waited the two years allowed by the Act of July 2d 1839, § 115, Pamph. L. 544, Purd. 380, pi. 83, for the directors of the poor to bring suit, brought this action. The court below (Fisher, P. J.) instructed the jury, that the plaintiff could not recover and directed them to find a verdict for the defendant, saying, amongst other things- “ By giving the guardians or directors of the poor the right of action the legislature in fact declare the money bet forfeited to them. The two years does not divest their right to the thing forfeited; but limits the right of action. The right of property continues in them. They may sue for it after the expiration of the two years and recover it if the statute is not pleaded; for it must be pleaded to be used as a defence. If pleaded the right of action is barred; but the property is not for that reason revested in the original owner.” There was a verdict for the defendant; the instructions to find for the defendant were assigned for error. cited Act of March 24th 1817, Purd. 380, pl. 82; Act of July 2d 1839, Id., pl. 86; McAllister v. Hoffman, 16 S. & R. 147 ; Scott v. Duffy, 2 Harris 19; Spiese v. McCoy, 6 W. & S. 487; App v. Coryell, 3 Penna. R. 494 ; Waggonseller v. Snyder, 7 Watts 343; Conklin v. Conway, 6 Harris 330 ; Mytinger v. Springer, 3 W. & S. 405; Lloyd v. Leisenring, 7 Watts 294; Reichly v. Maclay, 2 W. & S. 59 ; Waters v. Hixenbaugh’s Administrator, 1 Casey 131. cited Shearer v. Nickens, 3 Penna. L. J. 388; Mills v. Western Bank, 10 Cush. 22; Act of March 21st 1806, § 13, Purd. 41, pl. 5; Downer v. Downer, 9 Watts 60; Strickler v. Sheaffer, 5 Barr 240; Thomas v. Simpson, 3 Id. 60; Taylor v. Birmingham, 5 Casey 306; Ashford v. Ewing, 1 Id. 214; Commonwealth v. Garrigues, 4 Id. 9; Craven v. Bleakney, 9 Watts 19 ; Criswell v. Clugh, 3 Id. 330 ; Spigelmoyer v. Walter, 3 W. & S. 540; McKinney v. Mon. Nav. Co., 2 Harris 65 ; Commonwealth v. Straub, 11 Casey 137 ; Commonwealth v. Cope, 9 Wright 161.
53 Pa. 141Kinney v. Glasgow (1866)
1. Under the 9th section of Act of April 8th 1833, a devisee whose estate is a mere gratuity is not a purchaser. 2. At common law a devisee taking by will what he would by descent, is not a purchaser, and clogging his estate with conditions or encumbrances does not change him to a purchaser; 3. Under the Act of 1833, the quantity of the devise makes no difference in the descendible quality, the legislative intent being that the entirety and not parts only, shall be subject to the rule of blood. 4. If the testator plainly indicates his intention to treat his devisee as a vendee and to increase the burden because he has increased the quantity devised, the case would be different. 5. Independently of an express intent, the charge of a legacy on a devise greater than the devisee would take by descent, will not convert a devise into a purchase.
53 Pa. 146McLean's Executors v. Wade (1865)
Error to the Court of Common Pleas of Crawford county. This was an action of account render, issued June 13th 1856, by Thomas M. Wade and Mary G. Wade, his wife, in her right, against James G. McLean, William McLean and Anderson McLean, executors, &c., of Daniel McLean, deceased. The plaintiffs in the 1st count of their declaration averred, that Mrs. Wade was seised in fee of a tract of 100 acres of land, and that the decedent for twenty-five years had the care of the premises, to receive the rents, &c., as her bailiff, and render an account, &c.; that he received all the rents, &c., and had refused to render an account. In the 2d count it was averred, that the decedent was bailiff of Mrs. Wade of certain goods, chattels and moneys to render an account, &e., which he had refused to do. At the trial, February 20th 1862, another count was filed by leave of the court, substantially like the 2d count, but specifying the kind of chattels. The testator was the owner of a farm of 100 acres adjoining his homestead, on which he had placed his son John; who lived on it till he died in 1833, leaving a widow and one child, now Mrs. Wade, one of the plaintiffs, who, at the time of her father’s death, was about six months old. About four years afterwards the widow married Dr. Guthrie, and was dead at the institution of the suit. There was evidence that the decedent had pointed out the farm and the line-fence, and said, he had given it to John before his marriage; that John had built a spring-house and had done other improvements ; and had worked on the farm whilst he, the testator, was spending money for his other sons; after John’s death he called it “Mary’s (Mrs. Wade’s) farm:” that John on his death-bed told his father, that he had not made him a deed for the farm; and he replied, “ I know I have neglected to give you a deed for the farm I have given you, but I wish you to make a statement of how you want your affairs managed, and I will carry it out to the letter and that John then told him to take care of the property for his wife and child: that after the death of John, he had taken his personal property into possession, had kept some at the appraisement, had sold some, and taken notes in the name of “ the heirs of John McLean:” that “ he had rented her (Mrs. Wade’s) farm,” and after repairs and taxes had put the balance at interest for her use. The decedent had, with the consent of the mother, taken her, at about seven years of age, to live with him— agreeing, that she should be no charge to the estate during her minority:” he had also said, that he did not take out administration as it was a family matter, and would save costs; and he would take care of it for the use of John’s wife and child; that he “ kept the money of John’s heirs separate from his own.” In 1837 he paid the widow of his son her interest in her husband’s estate in full. James Glover, the grandfather of John, by his will, dated May 6th 1843, had given to Mrs. Wade, equally with the brothers and sisters of her father, a lot in Pittsburgh. Daniel McLean died in May 1855, and by his will and codicil gave to his son James the farm John had occupied, on condition that he paid Mrs. Wade $1300, by conveying to her his interest in the devise of his grandfather at $600, and the remainder in annual payments of $100. James tendered to Mrs. Wade an assignment of his interest under Glover’s will, in fulfilment of the condition of his father’s devise to him; she refused to accept it. The defendants submitted a number of points:— 1. An executor de son tort is not a trustee for the heirs of an intestate, so as to enable them to sue him for goods, &c., of the decedent, or their proceeds. 2. The heirs cannot proceed for the estate except in the Orphans’ Court. , 3. The defendant is not liable to plaintiff in account render for her distributive share. 4. To support this action, there must be a contract with testator on a sufficient consideration, of which there is no adequate proof. 5. If the assets came into the testator’s hands as administrator, the defendants are liable only in the Orphans’ Court. 6. If the assets came to the testator’s hands as bailiff, See., it would be for the joint benefit of the widow and daughter, and the plaintiff is not entitled to an account in this case. 7 and 8. The defendants are liable in a common-law form of action only to the representatives of John McLean, to whom on his death his personal estate passed. 9. The defendants are not liable for the rents, &c., no title to them being shown in the plaintiff, and no consideration to support a contract. 10 and 11. The plaintiffs can in no event recover any other judgment than quod computent; but if she can recover a specific sum, it can be but two-thirds of the amount received by the testator. The court (Johnson, P. J.) affirmed the 1st point and denied the others ; he said in conclusion: “ We decide, then, that Daniel McLean having received by his own volition money belonging to the plaintiff or which he called hers, and farmed it out as hers for more than twenty years for her benefit, in pursuance of a previous undertaking so to do with her deceased father, he and those representing him are now estopped from saying it was not hers, and are liable to be called on to account. If liable to a judgment quod computent under the pleadings, the jury may then go on and liquidate the amount due from them.” The jury found for the plaintiff $1977.54. The errors assigned were the answers to the points, and charging that the jury might liquidate the amount due. cited Act of April 22d 1856, § 4, Purd. Dig. 497 ; Barnet v. Dougherty, 8 Casey 371; Sample v. Courson, 9 W. & S. 62, 66; Act of April 8th 1833, § 2, Purd. Dig. 562, pl. 7; Lee v. Gibbons, 14 S. & R. 110; s. c., 1 Rawle 149 ; Humphreys v. Humphreys, 3 P. Wms. 349; Shollenberger’s Appeal, 9 Harris 342; Gratz v. Phillips, 5 Binn. 568. cited McFadden v. Sallada, 6 Barr 284; Lee v. Gibbon, 14 S. & R. 105; Moses v. Murgatroyd, 1 Johns. Ch. 118; Tritt v. Crotzer, 1 Harris 455 ; Brown v. Dysinger, 1 Rawle 408; Denison v. Goehring, 7 Barr 175 ; Bredin v. Kingland, 4 Watts 420; Johnston v. Humphreys, 14 S. & R. 395 ; Act of April 4th 1831, Purd. Dig. 29 ; McFadden v. Erwin, 2 Wh. 37.
53 Pa. 151Smith v. McKenna (1865)
This was a suit brought by William McKenna against William Smith, before a justice of the peace, who gave judgment for the plaintiff for $30 ; from which the defendant appealed to the Court of Common Pleas. During the raid of the traitors into Pennsylvania in 1863, a number of citizens of Pittsburgh, under the command of General Bernard, an officer in the service of the United States, engaged in building fortifications for the defence of the city.
53 Pa. 153Morgan v. Negley (1865)
Error to the Court of Common Pleas of Allegheny county. This was an action of debt, to March Term 1863, by Felix C. Negley against James B. Morgan, on an injunction bond in the penal sum of $2500. Morgan sold to Negley “ certain coal, with incline and railroad.” The agreement of sale authorized the shifting of “ the incline and railroad,” in pursuance of A^hich, Negley commenced to build a railroad upon the surface of Morgan’s land. Morgan, denying that the agreement gave the right so to build, filed a bill to restrain Negley, and the court awarded a preliminary injunction, upon Morgan entering into bond in the penal sum of $2500. The injunction was served January 11th 1861. On final hearing, the court dismissed the bill, and the decree was affirmed in the Supreme Court January 5th 1863. After the dissolution of the injunction, Negley took no steps towards building the road; and, in March 1863, sold his purchase to Dickson & Co., who constructed a road on a new plan, with a different route and grade. Negley having brought suit on his injunction bond, on the trial, before Sterrett, P. J., the plaintiff, under objection, was permitted to prove the difference between the cost of building the railroad when the injunction was laid and when it was dissolved. The defendant submitted this point, “ As it appears from the evidence that the plaintiff never constructed his proposed railroad, and that no road upon the plaintiff’s plan has been built, the jury in their assessment of plaintiff’s damages are not to include the supposed difference, to wit, $500 between the cost of such road in the winter of 1861 and the cost of such road after the injunction was^raised.” On this point the court charged: “ As to the second point, you have the testimony of John Dickson, who testifies in substance that * * it would cost $500 more to construct the road immediately after the injunction was dissolved than it would have done to construct it when the plaintiff was stopped by the injunction. And, in order that we may distinguish between the items of damage hereafter, if deemed necessary, we request you to add to your general verdict the amount which you may find under this second head, viz., the difference betAveen the cost of constructing the road after the injunction was dissolved, say in October 1862, and the cost when the plaintiff was stopped in January 1861.” The verdict was for the plaintiff for “ $2347.16, which sum includes $500, which we find as the difference betAveen the cost of constructing the road immediately after the injunction was dissolved and the cost of constructing when the plaintiff Avas enjoined.” Judgment was entered on the verdict for $2347.16 ; and Morgan took a writ of error, assigning for error the admission of the evidence and the part of the charge above given, besides other assignments of error, which were not considered by the Supreme Court. cited Hoy v. Gronoble, 10 Casey 9.
53 Pa. 156Hoffer v. Miller (1866)
Error to the Court of Common Pleas of Westmoreland county. This was an ejectment by Daniel M. Miller against John Hoffer and Jacob Hoffer, for a tract of land described as containing 100 acres, more or less. The land in dispute belonged to Jacob Shaffer, who devised it to his daughter, the wife of Andrew Hoffer, and died in March 1830. In April 1834, Hoffer bought of one Bonbright about 75 acres of land adjoining the tract devised to his wife: she died in 1847, leaving two sons, the defendants. Andrew Hoffer died in 1859. In 1860 the interest of Jacob Hoffer, one of the defendants, in his mother’s land, was sold by the sheriff to the plaintiff, who brought this ejectment for its recovery. On the part of John Hoffer evidence was offered, that “ prior to the death of the wife of Andrew Hoffer, and after his purchase of the Bonbright tract, he ran a line by the consent and agreement of his two sons, Jacob and John, which was marked on'the ground in their presence, and by which he laid off to Jacob 20 acres of the land devised to their mother and the tract purchased from Bonbright, and to John .the residue of the land devised to their mother, containing an equal number of acres ; that said line was agreed to by all the parties, and from that time the sons have occupied their respective portions so laid off, and each has made valuable improvements ; that after their mother’s death this line was adopted by them, and agreed to as a division-line between them; and they have always held up to it, always recognising and agreeing to it as their boundary.” The court rejected the evidence. There was a verdict for the plaintiff for an undivided half of the tract devised to Mrs. Hoffer. The rejection of the evidence was assigned for error. In the argument were cited Calhoun v. Hays, 8 W. & S. 127; Thorn’s Appeal, 11 Casey 49; Darlington’s Appeal, 1 Harris 430 ; McMahan v. McMahan, Id. 380.
53 Pa. 158Gamble v. Woods (1866)
Error to the District Court of Allegheny county. Robert Woods, holding a judgment against Robert S. Foster, deceased, issued a fi. fa. against his executor, on which certain real estate of the decedent was levied on, and, being about to be sold by the sheriff, Gamble, Slacker & Co., on the 25th of November presented a petition to the District Court of Allegheny county, setting forth the levy, and that they were interested in the judgment in this: “ That in the lifetime of the defendant, Robert S. Foster, Foster united with Peter Haberman in granting to your petitioners a right of Avay, in fee, over said land, together with other privileges therein, by deed dated February 9th 1864; that the judgment in this case was entered before said grant, and that a sale thereunder will divest the interest of your petitioners in the rights and privileges granted by said deed; that the said Foster, at the tjme this judgment was granted, owned other land than that now levied on, part of which, by voluntary deed, without pecuniary consideration, and subsequent to the grant of said right of way, to wit, September 22d 1864, the said Foster conveyed to Margaret Scott. Your petitioners therefore claim that in any sale of the lands bound by this judgment, the sheriff should be directed by the court to sell, first the tract now levied on, subject to the rights and privileges conveyed to them by said Foster, as aforesaid; second, that conveyed, as aforesaid, to Mrs. Scott; and should such sales not discharge the judgment —and your petitioners believe they will — then, thirdly, the rights and privileges granted by said Foster, as aforesaid. “ Your petitioners further represent that the personal assets of the said Foster are insufficient to pay all just demands upon his estate, and that William Curry, his executor, at December Term 1864, applied to Orphans’ Court for an order to sell the real estate of his testator, which was granted January 21st 1865. Under this order, said executor, on March 4th 1865, sold a part of said real estate, the proceeds of which sale, viz., $1975, are applicable to this judgment; but the land now levied on was returned July 8th 1865 unsold, for want of bidders, after it had been advertised and offered for sale on several occasions. “ All the above facts were well known to the plaintiff in the judgment and his attorney ; and they were frequently requested that in making any levy on the said judgment they would have regard to your petitioners’ rights, and sell the lands bound by the judgment, in the inverse order as above set forth, but they have refused.” The petitioners prayed the court to stay all proceedings on this execution, and to grant a rule on the plaintiff to show cause why he should not pay the costs of the execution, and why, in any future levy and sale under said judgment, the sheriff should not be directed to sell the land conveyed to Mrs. Scott, before selling the land now levied on, except as subject to all rights of way, and other interests or estates therein granted by said Foster prior to his deed to said Margaret Scott; and also to grant a rule on the executor, &c., to show cause why he should not be ordered to make application to the Orphans’ Court for a renewal of the former order directing him to sell his testator’s real estate. The court refused the application, and also discharged a rule to set aside a sheriff’s sale of the land. The petitioners then removed the proceedings to the Supreme Court, and assigned the following errors:— The court erred: 1. In refusing to stay proceedings on the fi. fa. 2. In refusing to grant a rule on the executor of Foster to make application to the Orphans’ Court. 3. In refusing to direct the sheriff, in selling under the judgment of Woods, to levy on and sell the land conveyed to Mrs. Scott, before selling the forty-one acres, except as subject to the right of way. 4. In refusing to set aside the sheriff’s sale when made. cited Act of February 24th 1838, §§ 35-36, Purd. Dig. 288, pl. 101, 102, Pamph. L. 79-80; Harger v. Commissioners, 2 Jones 251; Barnet v. Ihrie, 1 Rawle 44; Hanover T. Co. v. Craighead, 5 Barr 470 ; Rogers v. Whitely, 2 Wright 137. cited Chadwick v. Patterson, 2 Phila. R. 275; Elliott v. McGowan, 10 Harris 198; McFee v. Harris, 1 Casey 103; Rees v. Berryhill, 1 Watts 263; Crawford v. Boyer, 2 Harris 383; Renninger v. Thompson, 6 S. & R. 1; Wellock v. Cowan, 16 Id. 318 ; Harker v. Elliott, 7 Id. 284; Burns v. Thornburgh, 3 Watts 78.
53 Pa. 161Webster v. Webster (1866)
This was an action of ejectment, commenced January 24th 1865, by Samuel II. Webster and Lucinda I. Clark, heirs of William Webster, deceased, against John Webster, for the undivided seventh part of 50 acres of land. Joseph Webster died in 1836, seised of the whole tract, leaving seven children, of whom the defendant and William Webster, the father of the plaintiffs, were two.
53 Pa. 165Barnhill v. Haigh (1866)
This was an aetion on the ease, commenced January 15th 1866, by Joseph P. Haigh against William Barnhill, A. Hartuper, David Brenneman, Levi Brenneman and George Brenneman, owners of the steamboat Gipsey, to recover for the loss of a flatboat and its cargo of coal.
53 Pa. 167Dunham v. Wright (1866)
The deed of a married woman in which her husband does not.join, is invalid and passes no estate.
53 Pa. 168Forsyth v. North American Oil Co. (1866)
1. The defendants contracted to deliver to the plaintiffs a quantity of oil “ to be paid for in lots as delivered, the delivery to be commenced immediately and pursued with all due diligence till completed.” Both parties having taken groat latitude in delivery and payment, without manifesting an intention to hold each other to a strict performance, it was held not to be error to instruct the jury that the defendants,-upon a payment not being made on demand, could not rescind the contract without warning the plaintiffs of their intention to insist on a literal compliance. 2. If the contract had been previously performed literally and the plaintiffs had refused payment, the defendants might have rescinded the contract. 3. The refusal of the defendants to deliver the oil, excused the plaintiffs from tendering payment. 4. A contract for so many barrels of a liquid is presumed to be made on the basis of the statutory number of gallons in a barrel; but where there is evidence that barrels of a different content were in contemplation of the parties, it is proper to leave the question to the jury.
53 Pa. 175Cowles v. Cowles (1866)
This was an amicable action and case stated, filed September 8th 1866, in which Frederick Cowles and Henrietta his wife, in her right, were plaintiffs, and Henry Cowles defendant, to recover $1415, part of the purchase-money of a lot in South Pittsburgh, under the following facts:— ' Franz Vondera, by his will, proved December 2d 1865, devised as follows: “ I give, devise and bequeath to my beloved wife Henrietta all my property, real, personal and mixed, of what nature…
53 Pa. 176McGovern v. Hoesback (1866)
This was an action of debt by John Hoesback against Thomas McGovern and George Fisher. \ McGovern having been arrested at the suit of Hoesback, was discharged by the order of court, upon giving bond to Hoesback in the penalty of $500, conditioned for his appearance at the next court, and presenting his petition for the benefit of the insolvent laws.
53 Pa. 180School District v. Learn (1866)
1. Tbe 3d section of Act of August 25th 1864, relating to bounties, imposes no obligation on a township; it simply transfers the right which a substitute may have to a local bounty to the person whose substitute he is. 2. The law did not make it the duty of a district to pay bounties or contract to pay them. It merely authorized such payments to be made in certain cases, if the officers of the district chose to make them. 3. That public meetings were held to promote filling the quota, committees appointed to obtain recruits and donations and at one of the meetings some of the school directors present reported that a sum of money in the treasury should be used to fill the quota, did not constitute a contract by the district to pay. 4. A resolution of a school board that the “moneys on hand be appropriated to volunteers under the present call, &c., until the money is all expended,” was not a contract with anybody. 5. It was intended to operate prospectively alone; a proposition binding on the district when accepted; it was not a promise to pay the bounty to any who had previously entered the service.
53 Pa. 185Knapp v. Duck Creek Valley Oil Co. (1866)
These were several writs of error to the Court of Common Pleas of Allegheny county.
53 Pa. 192Haws v. Tiernan (1866)
This was an action of assumpsit, by P. H. Tiernan, endorser of George N. Smith, against A. J. Haws, founded on the following note:— “ Burning Springs, Wirt Co., Va., March 20th 1861. Sixty days after date, I promise to pay to the order of GL Nelson Smith, two hundred dollars, for value received, without defalcation. $200. A. J. Haws. Endorsed Gr. Nelson Smith. Received, March 21st 1861, twenty-five dollars on the within note. $25.00. Gr.
53 Pa. 194Gilmore v. Wilson (1866)
Error to the Court of Common Pleas of Allegheny county. This was an action on the case, brought March 23d 1866, by Ann Wilson against James Gilmore and William Gilmore, for nuisance in obstructing an alley. During the trial a nonsuit was entered as to James Gilmore. The nuisance complained of was erecting a wall on the alley. There had been a former action in 1854, between the same plaintiff and William Gilmore, for the same nuisance, and a recovery against the defendant. Afterwards the plaintiff agreed with the defendant that he should have the use of the alley for $30 per annum. On the 30th of December 1861, the plaintiff gave defendant notice “ to surrender the alley and remove all obstructions from the samewhich he disregarded, and maintained the obstruction till April 1866. On the trial, before Stowe, A. J., the plaintiff proposed to prove by H. M. Hersberger, that he had agreed to pay the plaintiff $50 for the use of the alley, the agreement being in writing. This was objected to, on the ground that the writing was the best evidence ; but it was admitted by the court. The defendant gave in evidence a deed from James Wylie and wife to James McCully (defendant’s landlord) for the ground occupied by the alley, no title in Wylie and wife having been shown. He also offered to prove, “ that previous to bringing the former action, Foster Graham, under her direction, caused the alley in question to be closed, and objected to its use, for the purpose of showing that plaintiff has no right to its use, and therefore cannot recover in this suit, and also by deeds to show that the right of plaintiff was a mere license to use alley of defendant’s landlord, upon conditions which had not been complied with previous to the former suit.” This was rejected on the ground that the judgment in the former case is conclusive of plaintiff’s right. Amongst other points the defendant submitted the following:— 1. If the jury believe that the plaintiff rented the property in 1857 to defendant, by the year, and held and occupied the alley as her tenant by the year, and paid the rent from time to time, he was tenant by the year, and defendant having held over after notice given by plaintiff on December 30th 1861, and so held until the bringing of this suit, the plaintiff cannot recover in this suit. 2. That having leased the alley with the obstruction on it, and defendant having paid the rent for several years, she (plaintjff) had no right to notify her tenant to take off an obstruction which was on at the time the lease was made. 4. That this suit not being for injury to the reversion, and Hersberger being in possession as tenant during all the time, the plaintiff cannot recover. All of which were refused. The court also charged:— “ The plaintiff, under the evidence, has a right to the use of this so-called alley, and the defendant, if he used it, so as to prevent her or her tenants from having the use of it, is bound to pay damages, whatever that may be, for his act. If, however, the plaintiff and defendant by any arrangement agreed that defendant should have the use of the alley for a stipulated sum, then so far as the plaintiff is concerned she cannot recover for such time in this action, whether the rent was paid or not. So, if she rented to Hersberger and received pay for it, she cannot recover damages from defendant for that time; but if there was any time within six years after plaintiff had terminated this arrangement, by the notice in evidence, which we hold sufficient, with defendant for the use of alley, and previous to the lease to Hersberger, plaintiff is entitled to recover whatever the damages may have been for that. The amount, if plaintiff is entitled to recover more than nominal damages, should be whatever the property would have rented for more with the use of the alley than without it.” There was a verdict for the plaintiff for $>94.06. The errors assigned were, the decision of the court on the admission of evidence and the charge. cited Kilheffer v. Herr, 17 S. & R. 319; Smith v. Elliott, 9 Barr 345; Marsh v. Pier, 4 Rawle 273 ; Man v. Drexel, 2 Barr 202; Kean v. McKinsey, Id. 31; Bratton v. Mitchell, 3 Id. 44; Merrick’s Estate, 5 W. & S. 9.
53 Pa. 198Power v. Graydon (1866)
1. The bond given by an insolvent under the Act of July 12th 1842 for his appearance, &c., being a statutory bond and having for its object his release from arrest, is compulsory, and if it exacts more than the statute requires cannot be enforced. 2. Omitting from the condition, the clause, “ or to a judge thereof if the court shall not within that time be in session,” does not increase the obligation and make the bond inoperative, if the court be in session within 30 davs. 3. On an arrest under the act, — ordering a warrant of commitment by the judge at the hearing, is an adjudication that the allegations against the debtor were substantiated. 4. A debtor having been arrested gave bond for his appearance to take the benefit of the insolvent laws, and on hearing was bound over to the Quarter Sessions and.convicted of fraudulent insolvency; a motion for a new trial and in arrest of judgment was made, and defendant’s recognisance was forfeited; the motion for a new trial was overruled, but there was no record as to the arrest of judgment; his petition was dismissed by the Common Pleas, but he did not surrender himself and suit was brought on his bond. Held, that it was not premature for want of decision on the motion in arrest of judgment. 5. Pinal action on an insolvent’s petition is suspended after his committal for trial in the Quarter Sessions, but not after he came into default in disobeying the orders of the court, &o.
53 Pa. 204Lance v. Griner (1866)
This.was an action on the case, by Maria Griner against H. J. Lance. The defendant was a dyer and scourer in Pittsburgh. On the 9th of March 1864, the plaintiff left with him some articles of clothing to be dyed. The defendant gave to her on receiving them a ticket in his usual form, viz.:— “ H. J. Lance, dyer and scourer, Nos. 135 & 137 Third street, Pittsburgh, Pa.
53 Pa. 206Huff v. McCauley (1866)
1. The rule that a license to do something on the licensor’s land followed by expenditure on the faith of it is irrevocable, rests upon the principle of estoppel, because the parties cannot be placed in statu quo. 2. Equity treats the license thus executed as a contract giving absolute rights. 3. Where there has been only a consideration paid, there is nothing in the way of restoring the parties to their original condition. 4. A license is not converted into a contract giving irrevocable interests in land, by the mere fact that a consideration was agreed to be paid for it. 5. A contract that one may take coal for his works from the land of another, is a right of profit a prendre, is incorporeal and incapable of creation except by grant or prescription. 6. An easement cannot exist in parol. 7. An interest in land or arising out of it, corporeal or incorporeal, must lio in grant. 8. Agreements for the sale of growing timber, not made with a view to immediate severance, are contracts for the sale of interests in land and within the Statute of Frauds.
53 Pa. 211Kepple's Appeal (1866)
The contract and all the facts set out in the bill were by the answer admitted to be true ; but the answer averred that the title to the land was derived to the complainants under the will of George Pifer, deceased, and the respondent feared that there could not be made to him such title as the article called for, and declaring a willingness to perform his part of the agreement, submitted himself to the judgment of the court, reserving a right of appeal.
53 Pa. 212Hartley Appeal (1866)
Appeal from the .Orphans’ Court of Greene connty, by Samuel Hartley and John Minor. Hannah D.‘ Gallion, on the 30th day of June 1866, made to Hartley and Minor a power of attorney to collect and receive all money and property coming to her as heir of John Douglass, deceased, with power to convey her interest in the real estate of the decedent, &c., “ the said Hartley and Minor to receive as compensation for their services herein one-half of the net proceeds of my interest in said estate which may be collected or received by them as my attorneys, after paying all costs and expenses, they to receive no further compensation for any service they may render or expenses they may incur or pay as my attorneys.” On the 20th of July 1866, she gave another power of attorney to Livingston Howland for the same purpose, and in it revoked that to Hartley and Minor. On the 29th of September 1866, Hartley and Minor, as attorneys of Hannah Gallion, petitioned the Orphans’ Court of Greene county for a citation to the administrator, &e., of Douglass to settle his account. This was objected to because of the power of attorney to Howland. On this ground the court refused to award the citation, and dismissed the petition. Hartley and Minor appealed from this decree, and assigned it for error. cited Walsh v. Whitcomb, 2 Esp. R. 565; Smyth v. Craig, 3 W. & S. 14; Bancroft v. Ashhurst, 2 Grant 513; Hunt v. Rousmanier, 8 Wheat. 174. cited Hunt v. Rousmanier, 8 Wheat. 174; Bancroft v. Ashhurst, 2 Grant 513.
53 Pa. 214Debolt v. Dunkard School District (1866)
Both eases were writs of error to the Court of Common Pleas of O-reene county. The first was an action of assumpsit, brought July 3d 1865, by John H. Debolt against Dunkard School District, to recover $300 bounty. The plaintiff was drafted September 19th 1864, and on the 4th of October he put in a substitute, who was mustered into service for one year, and credited to the quota of Dunkard township: he paid the substitute $800. On a reserved point the court entered judgment for the defendant, Gilmore, P. J., delivering the following opinion:— “We think the plaintiff is not entitled to recover. The 3d section of the Act of the 25th of August 1864, Pamph. L. 987, applies only to persons liable to draft. This was the only provision in reference to putting in substitutes, at the time the plaintiff put in his substitute. He was then a drafted man, and did not belong to the class proposed to be relieved. Afterward by the third proviso of the 1st and only section of the Act of the 25th of March 1865, Pamph. L. 25, the provisoes of the provisions of the Act of the 25th of March 1864, were extended ‘ to any person furnishing a substitute;’ but the act came too late for the plaintiff’s purpose, the substitute was furnished before that date, and the provisions therein made cannot reach to him!” The other case was for a similar cause of action, brought May 2d 1866, by D. W. Gray against Richhill School District. The plaintiff was drafted, and on the 20th of September 1864 procured a substitute, to whom he paid $600, and who was mustered into the service for one year, and credited to Richhill township. On a reserved point, the court (Gilmore, P. J.) entered judgment for the defendant for the reasons given in the first case. In each case, so rendering judgment was assigned for error. cited Act of August 25th 1864, § 2, Pamph. L. 987 ; Act of Congress July 4th 1864, § 1, Brightly’s Dig. 46, pl. 293 ; Kerlin v. Bull, 1 Dallas 478 ; Levering v. Philadelphia and Germantown Railroad Co., 8 W. & S. 459 ; Dreddrick v. Wood, 3 Harris 9; Stormfeltz v. Manor Turnpike Co., 1 Id. 555 ; Stewart v. McMinn, 5 W. & S. 100 ; Bones v. Booth, 2 W. Black. 1226; Wolcott v. Pond, 19 Conn. 597; Bryan v. Dennis, 4 Florida 445; Speer v. School Directors of Blairsville, 14 Wright 150 ; Commonwealth v. Hartman, 5 Harris 118 ; Commonwealth v. Penn. Ins. Co., 1 Id. 166 ; Commonwealth v. Chomtre, 4 Dallas 144; Moore v. Houston, 3 S. & R. 184; United States v. Wiltberger, 7 Wheat. 76; People v. Utica Ins. Co., 15 Johns. 380 ; Whitney v. Whitney, 14 Mass. R. 92 ; Gibbons v. Ogden, 9 Wheat. 189; 4 Kent’s Com. 511, 515; Dwarris on Stat. 726 ; Douglass v. Howland, 24 Wend. 45 ; Act of March 1864, Pamph. L. 85; Schenley v. Commonwealth, 12 Casey 29; Lycoming v. Union, 3 Harris 166 ; Harvey v. Thomas, 10 Watts 63; Hepburn v. Curtz, 7 Id. 300; Bolton v. Johns, 5 Barr 145 ; Hess v. Werts, 4 S. & R. 361; Booth v. Woodbury, 5 Am. Law Reg. N. S. 202; Sharpless v. Mayor, 9 Harris 147; Kirby v. Shaw, 7 Id. 260; Commonwealth v. Maxwell, 3 Casey 456; Commonwealth v. McCloskey, 2 Rawle 374; Stuber’s Road, 4 Casey 199; Weister v. Hade, 2 P. F. Smith 474; Tyson v. Halifax, 1 Id. 9. cited Almstead’s Case, Brightly’s R. 9 ; Commonwealth v. Penn. Ins. Co., 1 Harris 166; Braddee v. Brownfield, 2 W. & S. 279.
53 Pa. 217Meek v. Bayard (1866)
This was an action of trespass, to December Term 1865, by Samuel P. Bayard against James Meek, William Graham, J. M. Scott and John Brewer, to recover the value of a yoke of oxen.
53 Pa. 219Crawford v. Burrell Township (1866)
This was an amicable action entered July 13th 1866 between the school directors of Burrell township and R. P. Crawford, in which the following case was stated for the opinion of the court:— “ In the month of June 1865, the school directors of Burrell township levied and assessed 2 per cent, on the adjusted valuation of the taxable property in the said township, in pursuance of the Act of Assembly for the payment of bounties to volunteers.
53 Pa. 221Foulke v. West Bethlehem Township (1866)
Error to the Court of Common Pleas of Washington county. This was an action of assumpsit, commenced November 18th 1865, between David Foulke and The School Directors of West Bethlehem township, in which the parties agreed upon the following facts in the nature of a special verdict:— “ Under the requisition of the President of the United States for 300,000 men, for the purpose of establishing the lawful authority of the government, West Bethlehem township, in said county, was called upon to furnish a number of her male citizens between the ages of twenty-one and forty-five. This call was made by the President on the 19th day of December 1864, and was the last call made for the purpose mentioned as aforesaid. “ The plaintiff is a citizen of said township between the ages aforesaid, and on the 16th day of March, A. d. 1865, furnished a substitute to the United States, who was duly mustered into the service for one year, and placed to the credit of the said township, the said plaintiff paying to the said volunteer substitute the sum of $600. “The school board of said township, at a public meeting at the urgent solicitation of citizens of said township, met on the 11th day of March 1865, at Hillsborough, and passed unanimously a resolution to levy a tax to the full extent of the law, for the purpose of paying a bounty to volunteers to be credited to said township, provided that a sufficient amount should be raised by voluntary contributions to make up the sum of $600 ; which amount, as believed by the board, was raised. At a meeting of the said board on the 13th day of March 1865, the former action of the board’was reconsidered, but not rescinded. All action in reference to the said levy was simply postponed, in order to ascertain certain facts. “ In the month of March 1865, after the 17th day of said month, the board met and resolved to issue bonds in place of levying a tax, as mentioned in the first resolution, with the understanding that if a sufficient amount of money was not raised by the sale of said bonds to make $400 to each and every volunteer of the entire quota of said township, then all action in reference to the matter to he rescinded. “ The bonds aforesaid were not sold. “ That the plaintiff has made demand of the said school directors for the said sum of $400, or a bond therefor, payable with interest from the 16th day of March 1865 ; which demand has been refused. If the court should be of opinion that the plaintiff is entitled to a bond for $400, or that amount, with interest from the 16th day of March 1865, then judgment for plaintiff for the amount aforesaid; otherwise, judgment in favor of defendants for costs.” The court (Ewing, P. J.) entered judgment on the case stated for the defendants; which was assigned for error. cited Acts of March 25th 1864, Pamph. L. 85 ; August 25th 1864, Id. 1022 ; March 15th 1865, Pamph. L. 24; Act for Washington Co., April 23d 1864, § 1, Pamph. L. 553; Weister v. Hade, 2 P. F. Smith 474.
53 Pa. 224Farmers' Railroad v. Reno, Oil Creek & Pithole Railway Co. (1866)
In Equity. . On the 10th of J uly 1866, The Farmers’ Railroad Company of' Yenango county filed a bill setting out, that they were a corporation organized by an Act of Assembly of April 10th 1862, under the general railroad laws of this Commonwealth; that the Kersey Oil and Mineral Company, a corporation with railroad privileges, was on the 12th of February 1866, the owner of a railroad from Oil Creek up Cherry Run to the Humboldt works, a distance of about four miles ; that…
53 Pa. 226Smith v. Frazier (1866)
Error to the Court of Common Pleas .of Jefferson county. This was an action of covenant by Nathan C. Smith to the use of Newton Taylor against John and Geo'rge Frazier, in which the writ issued June 3d 1863. The defendants pleaded “ covenants performed absque hoe, and payment with leave, &c.” After the evidence was all in, the plaintiff claimed the right of concluding to the jury, which was refused by the court (Campbell, P. J.). The verdict was for the defendants. The refusal to permit the counsel of the plaintiff to conclude to the jury, was assigned for error. cited Wilkinson v. Pittsburgh F. & M. Turnpike Co., 6 Barr 398; Martin v. Hammon, 8 Id. 270. cited Neave v. Jenkins, 2 Yeates 108 ; Farms. & M. Turnpike Co. v. McCullough, 1 Casey 304; School Directors v. McBride, 10 Harris 215 ; Marsh v. Pier, 4 Rawle 284; Hartman v. Ins. Co., 9 Harris 475.
53 Pa. 229Funk v. Haldeman (1867)
This was an appeal, by A. B. Funk, the complainant below— from the decree of the Court of Common Pleas of Venango county, in Equity. In that court Funk filed his bill against Levi Haldeman et al., praying for an injunction to restrain the defendants from interfering with complainant’s working of certain valuable oil tracts leased, as complainant alleged, to him. The defendants alleged a forfeiture by sub-letting. Hon. James Campbell, P. J., granted the special injunction. The defendants filed a cross-bill, alleging that complainant had forfeited his right by sub-letting, and, after answers filed to the original bill and cross-bill, and testimony taken, the case was heard before Hon. Isaac G. Gordon, P. J., who delivered an opinion dismissing the original bill, and declaring a forfeiture as averred in the cross-bill. From this decree Funk appealed. The question involved was the proper construction to be given to the papers, under which Funk claimed the right to dig for oil upon the lands. He contended that he was lessee with right to assign. The landlords contended that Funk held under a mere license— that his letting other parties in was a surcharge, and worked a forfeiture. It was stated that upwards of $9,000,000 depended upon the decision. The title was thus described in the pleadings:— The bill set forth that, October 8th 1859, David McElheny was the owner of a farm, originally consisting of two pieces; one situated in Cornplanter township, the other in Cherry Tree township, "Venango county — the said pieces together constituting the farm of said McElheny, on each side of Oil creek; and on that day McElheny and wife made with Funk an agreement, bargaining and selling, in consideration “ of $200, to Funk, his heirs and assigns, the free and uninterrupted use, privilege, &c., to go on any part of the 200 acres for the purpose of prospecting, digging, &e., to find any ore, oil, salt, coal or other minerals, and of taking the same out of the earth,” and the exclusive use of one acre of land at each well, with free ingress, &c., over said land by Funk, his hands, teams, tenants and under-tenants, occupiers or possessors of said wells, &e. Funk bound himself to commence operations the next spring— to put a steam-engine in operation — to use energetically all reasonable efforts to obtain the oils, &c. — to give one-third of all that should be taken out to McElheny — that if the experimenting failed the “premises should revert back” to McElheny, and McElheny to have the privilege of tilling the land, subject to the rights of Funk. The bill further alleged the payment of the $200 by Funk, a conveyance of the land by McElheny to Hussey, McBride & Halderman in fee, subject to the above agreement, and an agreement between them and Funk, March 26th 1860, confirming the former agreement, with power to subdivide and sub-let the land in whole or in part. The bill also averred that Hussey, McBride & Haldeman, March 29th I860., granted to Funk the oil and mineral right to said land. The bill averred a performance by Funk of all his covenants — ■ that Hussey, McBride & Haldeman pretended to doubt his right to subdivide and sub-let the land, and that for the purpose of removing said pretended doubts Eunk surrendered a strip of land to them, and they expressly gave him the right to assign and transfer the privileges granted to him, and to subdivide said lands, &c. The complainant charged, therefore, that he had the exclusive right to dig for oil, &c., and the right to sub-let, but that the defendants pretended that they had the right in common with the plaintiff to work any portion of the land not actually operated upon by plaintiff, and that in pursuance of said pretended right the defendants had entered on the premises, and commenced digging for oil, building houses, &c. The bill concluded with the usual prayer for an injunction to restrain defendants from operating for oil, and from using any portion of the premises except for agricultural purposes, &c. To this bill the defendants filed, answers and a cro'ss-bill, in which they alleged that the right to subdivide and underlet was given by them in the agreement of March 26th 1860, gratuitously and without advice from counsel, and they denied that large expenditures had been made by Eunk before the conveyance to him. They admitted that they had entered on the land to search for oil, that they had laid out lots, and had given parol licenses to build, but they denied that plaintiff’s agreements gave him the exclusive right to dig, mine, &c., and averred that said instruments were mere licenses to search in common with defendants. They further denied the plaintiff’s right to subdivide or underlet, and insisted that he had surchai'ged the tenancy of certain lots, and forfeited all right to the same. An answer was filed by Eunk to the cross-bill, and a large amount of testimony was taken. The various agreements are recited at length in the opinion of the court. After the preliminary injunction had been granted, Eunk sold his interest in the lands to the McElheny Oil Company, who were substituted as plaintiffs. Upon final hearing, as already stated, the court dismissed the original bill, decreed a forfeiture as to two lots, and the complainants appealed. The complainants were represented by Messrs. R. Biddle Roberts, Thomas M. Marshall, JSli K. Price and Hon. Walter B. Lowrie. F. Carroll Brewster, representing one of the sub-tenants, was allowed by the court to take part in the argument. The appellees were represented by Messrs. C. Beydrick, F. T. Backus and Creorge R. Snowden, The ease was argued at Pittsburgh, November 9th 1866. argued that the cases relied upon by the court below did not justify the decree entered. They referred to those cases, viz.: Lord Mountjoy’s Case, 4 Leon. 147; Moore 174; Godbolt 171; And. 307; Co. L. 164 b; Cheetham v. Williamson, 4 East 469; Doe v. Wood, 2 B. & Ald. 724; Grubb v. Bayard, 2 Wal. C. C. R. 81; Id. v. Guilford, 4 Watts 223; Johnstown Iron Co. v. Cambria Iron Co., 8 Casey 241: and showed that they differed from this, for in those cases, 1st. No present consideration had been paid. 2d. There was no word excluding the grantor. 3d. There was no covenant binding the grantees to take ore. 4th. There was no reservation of a right of tillage, as here. Fxpressio unius exolusio alterius. 5th. There was no clause in any one of those cases under which the lands, as here, were to “ revert back.” They further argued that this case was not to be ruled by Clement v. Walter, 4 Wright 341, for there the grantee had only paid a nominal consideration of $1. He had never put up the works, and “ what he was bound to take, and when, was uncertain.” And that Huff v. McCauley, ante, p. 206, decided by this court since this appeal, did not rule this case, for in that case there was merely a verbal agreement by McCauley that Huff should take as much coal from McCauley’s land as he wanted for his salt-works. ' They relied upon the recital of Punk’s lease in the deed under which appellees acquired their title. They argued that Eunk’s rights were not those of a mere licensee, for, 1st. In a license there is no exclusive holding; here there is exclusion. 2d. A licensee is not bound to proceed; here, Punk was bound to use diligence. But even if the court should construe this as a license, it could not be forfeited for doing that which the appellees had expressly permitted. That Eunk’s interest was expressly made divisible and exclusive in him and his assigns. If exclusive, there could be no surcharge, and no forfeiture for subdivision. There is nothing strange or unusual in such a claim. Claims perfectly analogous to it abound in life and in juridical administration. Such are rights of coal, stone, gravel, salt, water, ways, pasture, fore-crop or prima tonsurá, after-crop, fishery, oystery, ferry, water-power, flowage by drains, growing timber, growing crops, warren, turbary; — many of them are very common, in our state. The right to the land may be in one and these other rights in any number of others. No special forms are necessary in assuring such rights. In some cases they are real and in others they are incorporeal. Trespass and ejectment will lie where the right is exclusive. Judicial sagacity never allows the rules of legal art to set aside the common sense of the people. Here two-thirds of the oil belong to Funk, and one-third to the owners of the land. Oil, like water, is essentially indivisible, and taking it in one place draws it off from all others; and as the owner cannot take oil from our wells, he cannot steal the fluid-rights by tapping at a distance. They cited Wilson v. McKreth, 3 Burr. 1825; Caldwell v. Fulton, 7 Casey 476; Harlan v. The Lehigh Coal and Navigation Co., 11 Id. 287 ; 2 Washburn on Real Property 89; Woolrych 116, 117; 5 Burr. 2816 ; 2 W. Bl. 1151; 8 Q. B. 1000 ; Cro. Jac. 150 ; 7 East 200 ; 2 Wend. 524, 517 ; 17 Pick. 23 ; 9 Cow. 279 ; 17 Mass. 298; 8 Burr. 383 ; Angell 108 ; Butz v. Ihrie, 1 Rawle 218; 6 Cow. 677 ; 13 Pick. 323; 4 Id. 54; Tyler v. Williamson, 4 Mason 403 ; Bird v. Smith, 8 Watts 440 ; 14 S. & R. 267; 2 Story’s Eq. § 927; Brightly’s Eq. §§ 215, 296, 299, 300. argued that the admiration of the appellants’ counsel for the opinion delivered by Judge Campbell, had led them into error. The indenture of March 29th 1860 had been confounded with the indenture of March 26th 1860. The indenture of March 26th 1860 related to a tract in Cornplanter township. The indenture of March 29th 1860 related to a tract in Cherry Tree township. Two questions arise out of the several agreements:— 1. Were the privileges granted to Funk exclusive of his grantors, or to be enjoyed in common with them: and 2. If not exclusive, were they divisible as to the Cherry Tree township tract beyond the extent of the liberty expressly granted in the indenture of March 29th 1860. The first question is common to all the agreements or deeds; the second arises only under the indenture of March 29th 1860. 1. As to the Cornplanter township tract. This was the only tract covered by the agreement of October 8th 1859 and the indenture of March 26th 1860. There was therein no grant of the oil or minerals and nothing to exclude the owner of the soil from searching and experimenting there also. The language does not even purport to grant the right to take any oil out of the earth. It is but a liberty to experiment and strictly an incorporeal hereditament: Johnstown Iron Co. v. Cambria Iron Co., 8 Casey 246. The grant of the exclusive use of one acre of land, around each well, does not enlarge the privileges before granted. The previous grant would carry with it the right of ingress and egress and the exclusive use of a reasonable curtilage appurtenant to each well. The exclusive enjoyment was to be after appropriation, but before that, the privileges were to be in common. Looking at all the parts of the agreement, we have a grant of the privilege of making an experimental search for oil in consideration of $200, and constructively — not expressly — a grant of the privilege of taking any oil the grantee might find for another consideration, to wit, one-third part of all that he might under the liberty granted find and take out of the earth and no more. The title to the oil did not pass in fee under this grant. The $200 was no part of the consideration for the oil, it was intended as compensation for disturbance arising from the exercise of the license to search and dig. In this the court below are sustained by Grubb v. Guilford, 4 Watts 423. The agreement does not require Punk to take any oils out of the earth, and after boring one well he might have refused to proceed. So, too, after having operated with one en gine, he could not be required to multiply his operations. He is the judge of the indications which are to justify him in operating and of the circumstances under which the enterprise might be abandoned as provided for in the agreement. It is, therefore, manifest that Funk’s covenant does not require him to take all the oil, and, therefore, he is not bound to pay for all. If McElheny then sold all the oil it would be “ a sale without consideration,” and, as such, “ is not to be held as intended by the parties, unless the language of the instrument shuts us up to such a conclusion Clement v. Youngman, 4 Wright 346. Oil is not the subject of grant as a corporeal hereditament. It is a movable, wandering, fugitive thing in the bowels of the earth, and must, of necessity, continue common like water, so that one can only have a usufructuary property therein: 2 Blackst. 18. Lord Mountjoy’s Case, 4 Leonard 147, is in close analogy to this case, but stronger in favor of an exclusive right. In Cheetham v. Williamson, 4 East 469, the grant is quite as comprehensive as to the one under consideration and similar to it. Doe v. Wood, 2 B. & Ald. 724, has been misunderstood by appellants’ counsel. See also, Grubb v. Bayard, 2 Wall. Jr., 96 ; Gillett v. Treganza, 6 Wisconsin 343. Caldwell v. Fulton, 7 Casey 476, sustains the appellees. The other cases cited are inapplicable, 1. Because the deeds purport to demise the land. 2. Because the landlord was necessarily excluded. 3. Leases for tillage are favorably construed on grounds of public policy. They further cited Bittinger v. Baker, 5 Casey 66. Funk could not divide any lot and assign the smaller lot. This is shown by the cases already cited and by Van Rensselaer v. Radcliff, 10 Wend. 639; Leyman v. Abeel, 16 Johns. 30. It is no objection to the decree on the cross-bill that it enforces or declares a forfeiture: 1 Smith’s Ch. Pr. 460; Story’s Eq 389, 391 ; 3 Daniel’s Ch. Pl. and Pr. 1744-45; Del. & Hud. Canal Co. v. Penna. Coal Co., 9 Harris 131—146.
53 Pa. 250Pittsburgh, Fort Wayne & Chicago Railroad v. Evans (1867)
1. It is essential to a special verdict that it contain all the facts upon which the judgment of the court is to rest. Nothing is to be taken by implication or intendment; whatever is not found in it is supposed not to exist. 2. In an action against a railroad company for injuries to the plaintiff whilst crossing the road, the jury did not find that he was crossing on his lawful business. Seld, that there was not sufficient in the finding on which to enter judgment, for unless he was a traveller he was unlawfully on the track of the road. 3. It is not sufficient that the special verdict found that there was negligence in the railroad company, unless it was found that the plaintiff was lawfully on the road, and not guilty of negligence. 4. The court, in 'charging on the question of negligence, did not say what negligence would and what- would not make the party liable. Seld, that this was error. 5. In railroad cases special verdicts are better than to leave to the jury the application of the law to the facts; the whole question of negligence should not be committed to the jury. 6. A year after judgment was entered on a verdict the court allowed an amendment in the name of the defendants to be made. Seld, that such amendment was not within the Acts of Assembly.
53 Pa. 256Barr v. Reitz (1867)
Error to the Court of Common Pleas of Jefferson county. This was an action of trespass, commenced May 27th 1865, by Andrew Barr against M. W. Reitz, who was sheriff, for seizing and selling under an execution against one Brown goods claimed by Barr. Brown occupied a house of Darrah’s; he had leased it for a year, — which expired April 1st 1865, — and held over without any further contract. On the 3d of May, he sold his personal property to Barr by bill of sale ; part of the consideration was a debt due to Barr for labor, the remainder was paid in money. All the property was in the house, except a cow and a few articles on the outside. Some of the articles which were outside were put into the house by Barr. Brown gave him the key. Barr locked the house and kept the key. Barr had been recently married, but had not been at housekeeping. Brown being about to leave the neighborhood, remained in the house till the 7th or 8th of May, when he moved from the county. There was evidence that the key given to Barr was retained by him and that the key by which Brown afterwards entered the house was a different key. Jacob Kroh entered judgment May 10th 1865 against Brown on a note from Brown to him; issued an execution on the same day and levied on the property sold to Barr. At the levy and subsequent sale, Barr notified the sheriff that the property was his, and warned the sheriff against levying and selling. The court below affirmed the following point of the defendant: “ The hill of sale from Brown to Barr is fraudulent and void as to creditors of Brown, because the property therein mentioned was not delivered at the time of sale and there being a verdict for the defendant, this answer was assigned for error. cited Levy v. Wallis, 4 Dallas 159; Waters v. McClellan, Id. 196; Carpenter v. Mayer, 5 Watts 483 ; McVicker v. May, 3 Barr 224; Hugus v. Robinson, 12 Harris 9; Dunlop v. Bournonville, 2 Casey 72. cited Carpenter v. Mayer, 5 Watts 483; Streefer v. Eckert, 2 Wh. 302; Hoffner v. Clark, 5 Id. 545; Hoofsmith v. Cope, 6 Id. 53; McBride v. McClelland, 6 W. & S. 94; Jordan v. Frink, 3 Barr 442; Chase v. Ralston, 6 Casey 539 ; Milne v. Henry, 4 Wright 358 ; Brawn v. Keller, 7 Id. 106; Steelwagon v. Jeffries, 8 Id. 411.
53 Pa. 259Greer v. Shriver (1867)
Error, to the District Court of Allegheny county. This was an action of assumpsit, commenced April 2d 1864, by Samuel P. Shriver and John S. Dilworth, partners as Shriver & Dilworth, against Wesley Greer, in which the following case was stated:— “ On the 3d and 11th of December 1860 and 15th of January 1861, respectively, the defendant purchased certain merchandise from plaintiffs, amounting in all to the sum of $1486.86. As additional security for the payment of these goods, the defendant gave three promissory notes to the plaintiffs, falling due, respectively, March 18th 1861, April 7th 1861 and April 13th 1861, none of which were paid, but remained till after maturity in plaintiffs’ hands. In the spring of 1861, the defendant professing to be unable to pay his debts, attempted to get his creditors to sign an article, agreeing to take 50 per cent, of their respective claims, to be in full. The plaintiffs signed the article with the proviso attached, that all of defendant’s creditors should likewise sign. In point of fact all the creditors did not sign the article ; several of them refused to do so, and were paid in full. On the 29th of April 1861, defendant paid plaintiffs $720, which was just one-half of their claim, and at the same time the plaintiffs delivered to defendant the promissory notes above referred to. This suit was subsequently brought to recover the remaining half of plaintiffs’ claim, on the ground that the proviso under which they had signed the article had not been complied with by defendant, and was therefore not binding upon them. The declaration was on the common counts, and also on the promissory notes, copies of book entries being filed under the rule of court. The defendant pleaded non assumpsit, payment and set-off. If upon the foregoing facts the court is of opinion that the plaintiffs are entitled to recover, judgment is to be entered for the plaintiffs for the sum of $720, with interest from the 29th of April 1861, and costs. But if otherwise, then judgment to be in favor of defendant.' And it is also agreed that if the court be of opinion that the facts above set forth are insufficient to warrant an opinion in law, upon the question, whether the delivery to defendant by plaintiffs of the promissory notes was a waiver of the proviso to the article, and that such question should be submitted to the jury as a question of fact, then this case stated is to be annulled and the ease ordered for trial.” The court entered judgment for the plaintiffs for $720, and interest according to the case stated; this was the error assigned.
53 Pa. 261Lyon v. Gormley (1867)
Error to the Court of Common Pleas of Allegheny county. This was an action of trover, to October Term 1862, by William A. Lyon aga.inst Samuel Gormley, executor, &e., of A. Kirk Lewis, to recover the value of 36,000 bushels of coal, taken and sold by the decedent, but claimed by Lyon to be his property, under the following circumstances:— Lewis, the decedent, under the Act of May 5th 1862, Purd. 846, had constructed an underground railroad on the land of Lyon. The viewers reported on the subject of damages, that they estimated and found “ that the damages that will be sustained, taking into consideration the advantages to be derived y the said William M. Lyon by the opening, constructing, completing and using the said underground railroad, with two tracks as aforesaid, will amount to the sum of $1100 which sum'was paid to Lyon. In opening the road Lewis dug out and sold the coal, which is the subject of this suit. This occurred in 1859. The plaintiff’s points were :— 1. The proprietor of an underground lateral railroad, constructed through the lands of other parties, has no right to appropriate to his own use, and sell coal or other valuable minerals of said parties, which he may displace in opening his road. 2. The defendant’s testator did not acquire title to the coal of the plaintiff, lying within the lines of the proposed lateral railroad, in virtue of the proceedings for constructing his road. 3. The coal in controversy in this case, when mined by the defendant’s testator, in the opening of his road, became the personal property of the plaintiff. íü * $:■ & 5. The plaintiff’ is entitled to recover the price which the defendant’s testator received for the coal in question, and interest. The defendant’s points wore : — 1. When a party, by virtue of proceedings under the Lateral Railroad Act and its supplements, constructs a railroad underground, through the coal-vein of another party, and pays all damages assessed'by the viewers, he thereby acquires ownership of the coal necessarily mined by him, in making his entry through such coal-vein. 2. If he does not acquire ownership of such coal, an action of trover will not lie by the original owner of the coal, against the party constructing such railroad, to recover the value of such coal. 3. If such action would lie, it would not survive against the executor of the party. * * * * * * * 5. If the court are of opinion that the present action is properly brought, the proper measure of damages is the value of the coal in the hill, at the time when mined by the defendants. The jury found “ for the plaintiff under the instruction of the court, and subject to the opinion of the court, upon the questions of law raised' by the several points propounded by counsel, and reserved by the court; “ And assess the plaintiff’s damages at the sum of $171.70, in case the court shall be of opinion that the measure of damages is the value of the coal in place ; “ And at the sum of $981.12, in case the court shall be of opinion that the measure of the damages is the value of the coal at the mouth of the pit.” The court (Stowe, A. J.) below entered judgment for the defendant non obstante veredicto, which was assigned for error. as to the ownership of the coal—cited Act of May 5th 1832, § 1, Purd. 846, pl. 49, Pamph. L. 501, § 5, p. 847, pl. 54; Chambers v. Furry, 1 Yeates 167; Lewis v. Jones, 1 Barr 336 ; Angell on Highways, § 302, et seq.; Jackson v. Hathaway, 15 Johns. 447. As to the form of action: Forsyth v. Wells, 5 Wright 291; 1 Ch. Pl. 146, 147-48 ; Martin v. Porter, 5 M. & W. 351; Higgins v. Mortimer, 6 Car. & P. 616 ; Backenstoss v. Stahler, 9 Casey 251; Sanderson v. Haverstick, 8 Barr 294; Kier v. Peterson, 5 Wright 359 ; Act of February 24th 1834, § 28, Purd. 286, pl. 90, Pamph. L. 77. As to the measure of damages: Martin v. Porter, 5 M. & W. 351; Wild v. Holt, 9 Id. 671; Salmon v. Horwitz, 28 E. L. & Eq. 175.
53 Pa. 266Blackstone v. Buttermore (1867)
1. It is only when a power of attorney constituting a mere agency is coupled with an interest in the thing itself, or the estate which is its subject, that it is irrevocable. 2. A more power is in its nature revocable when, it concerns the interest of the principal alono; even if there be an express declaration of irrevocability. 3. An interest in the proceeds to arise as compensation for executing the power will not make it irrevocable. 4. To make an agreement for irrevocability in a power to transact business binding, there must be a consideration independent of the compensation to be rendered for the services to be performed. 5. If the agent has expended money, time or labor upon the business, the principal, on revocation, would be liable to him on his implied assumpsit.
53 Pa. 268Harrold v. Lane (1867)
Under proceedings in partition, land of a decedent was sold by'order of the Orphans’ Court to one of the heirs. On ejectment for its possession by the purchaser, the defendant, another of the heirs, gave evidence that there had been an arrangement made that it should loe purchased for four of the heirs, that she paid the purchaser as part of the purchase-money a sum which, with her interest in the estate, would more than pay her one-fourth. Held, that such evidence was sufficient to establish a resulting trust, unless negatived in the belief of the jury.
53 Pa. 271Hill v. Sewald (1867)
Error to the District Court of Allegheny county. This was an action of trover, commenced September 30th 1865, by William H. Hill against Christian Sewald and Peter Sewald, to recover the value of two boilers, &c. On the 1st of April 1859 the Sewalds conveyed to J. M. Snodgrass a piece of ground, on which was a steam-mill, and took a mortgage from him for $2500 of the purchase-money. In the fall of 1861 the boilers, &c., in the mill being worn out and unfit for use, were removed, and Hill, by agreement with the wife of Snodgrass, who was then in the army, had boilers belonging to himself put into the mill, under an agreement with her that he was to be paid $4 a month for their use, and have the'right to remove them whenever he pleased. They could be removed without other injury than taking down the boiler-wall, which was built of brick, and stood under a shed outside of the mill. They remained attached to the mill and continued to be used as part of its motive power until January 1865, when the premises were sold by the sheriff and repurchased by the defendants, upon a judgment against Snodgrass for the unpaid purchase-money due on said mortgage. The sheriff’s deed for the premises was acknowledged and delivered on the 15th of the same month, and the defendants thereupon entered into possession. At the time of said sheriff’s sale, and before the bidding commenced, the plaintiff gave public notice of his claim to the boilers, &c. ; and about two weeks after the sale, he demanded them of the defendants, who refused to deliver them to him or to permit him to remove them. The jury found for the plaintiff for $133, subject to the question reserved by the court, whether, under the facts in the case, the plaintiff could maintain the action and recover damages. The court (Williams, A. J.) afterwards entered judgment for the defendants, notwithstanding the verdict; which was the error assigned. The question is, whether the agreement for the removal of the fixtures could be enforced, not only against Snodgrass, but against the defendants: 2 Smith’s Lead. Cases 259. Such agreement is binding, not only on the owner of the freehold, but those claiming under him: Shell v. Haywood, 4 Harris 523 ; Piper v. Martin, 8 Barr 206 ; Goddard v. Gould, 14 Barb. 662; Russell v. Richards, 1 Fairf. 429; 2 Id. 371; Osgood v. Howard, 6 Greenl. 452; Smith v. Benson, 1 Hill 176; Doty v. Gorham, 5 Pick. 487; White’s Appeal, 10 Barr 252; 2 Am. Lead. Cases 747, 3d ed. Fixtures, whether attached to the realty or not, may, by consent of the parties having control of the property, be treated as personalty: Shell v. Haywood, 4 Harris 530 ; White’s Appeal, 10 Barr 252; Mitchell v. Freedly, Id. 198; Mott v. Palmer, 1 Comst. 564. Trover lies for fixtures before severance from the realty, by any person by whom they had been set up, subject to an express or implied agreement for their removal: Smith v. Benson, 1 Hill 176 ; Gould v. Goddard, 14 Barb. 662; Russell v. Richards, 1 Fairf. 429 ; Osgood v. Howard, 6 Greenl. 452; Taply v. Smith, 18 Me. 12. The property'in dispute is in the abstract fixtures: Roberts v. Dauphin Deposit Bank, 7 Harris 71; Christian v. Dripps, 4 Casey 278; Harlan v. Harlan, 3 Harris 516. It follows that unless there is some circumstance that changes its character into personal property, as between the parties to this action, the plaintiff cannot recover against the defendants, who purchased the land and all belonging to it. Trover will not lie for realty: Mather v. The Trinity Church, 3 S. & R. 509; Powell v. Smith, 2 Watts 126. The notice at the sheriff’s sale could have no effect to change the rights of the parties: Heaton v. Findley, 2 Jones 309. Machinery fast or loose, if necessary to constitute the manufactory, is its fixtures : Gray v. Holdship, 17 S. & R. 413 ; Voorhees v. Freeman, 2 W. & S. 116; Oves v. Oglesby, 7 Watts 106; Harlan v. Harlan, 3 Harris 507; Overton v. Williston, 7 Casey 155.
53 Pa. 276Pennsylvania Railroad v. Allen (1867)
1. In actions for personal injuries, damages may be assessed beyond those that are merely compensatory. Such compensation is denied to those who sue for injuries to relative rights. 2. In actions for personal injuries sustained by a passenger by negligence of the carrier, the plaintiff is entitled to recover pecuniary compensation for pain, which the jury may consider an element in assessing damages. 3. The court below charged: “ The law is that the plaintiff is only entitled to recover the pecuniary value of the injuries sustained, and so we lay it down to you. In its application to the question of damages for the physical pain suffered by the plaintiff, you must exercise your own discretion, governed by your own sense of justice and right, taking care not to indulge in your imaginations or sympathies so as to be led into an assessment of damages that would be unjust or oppressive to the defendant.” Held, not to be error.
53 Pa. 280Borough of Greensburg v. Young (1867)
1. The charter of a borough authorized its council to make ordinances, rules and regulations for improving and keeping streets in repair, &c., ‘‘and also” to assess and collect a tax for such purpose. Held, that general taxar tion was not the exclusive mode for doing this. 2. There is nothing to restrain the authorities in regard to the rules, &c., except the constitution and laws of the Commonwealth, and the common law, which requires the by-laws of a corporation to be reasonable and not a burden without some fair equivalent. 3. An ordinance of a borough requiring lot-holders to bear the expense of paving, curbing, &c., opposite their lots, is not unreasonable. 4. The lot-holder.is not entitled to be paid by the borough for fences fallen, in making pavement, nor for expenses in grading his lot to conform to the grade of the pavement.
53 Pa. 284Armstrong v. Caldwell (1867)
Trespass, commenced August 12th 1863, by William S. Caldwell against Charles Armstrong, for breaking and entering the close of the plaintiff and carrying away 20,000 bushels of coal.
53 Pa. 289Tanner v. Hughes (1867)
Error to the Court of Common Pleas of Grreene county. ■ This was an action of assumpsit by James P. Tanner against James Hughes and William M. Kincaid, trading as Hughes & Kincaid, to recover the amount of a bill of goods sold to the defendants by the plaintiff. The plaintiff was a merchant in Pittsburgh and the defendants merchants at Windridge, Greene county. On the 11th of October the plaintiff sold to the defendants a bill of goods amounting to $582.30, on four months’ credit. At the time of the sale it was arranged that the invoice of the goods together with a note for the signature of the defendants was to be forwarded to them. The invoice and note were sent to defendants, and there was evidence that the note was signed by them and enclosed in a letter addressed to the plaintiff at his place of business at Pittsburgh. On the trial the defendants alleged payment and as proof of it produced the note, with their name erased from it. The plaintiff gave evidence to show that the note was never received by -him from the defendants, and that the goods had not been paid for. There was much other testimony on the question of payment. The point upon which the Supreme Court decided the case makes it unnecessary to give more than is given above. The defendants submitted a number of points, the 1st of which was : “ If the jury believe that the defendants signed the note of October 14th 1863, for the bill of goods for which this suit is brought, and placed the same, by the hand of Valentine Nichols, in the post-office at Jefferson, Greene county, Pa., directed to ‘ James P. Tanner, Pittsburgh, Pa.,’ the place where he usually receives his letters and transacts his business, the law presumes it was received by Mr. Tanner, by due course of mail, and being so in possession of Mr; Tanner and now found in the possession of the defendants, it is evidence of the payment of the note by defendants to the plaintiff and the plaintiff cannot recover.” This was affirmed by the court (Gilmore, P. J.), and the verdict was for the defendants. The affirmance was assigned for error. cited Ireland v. Kip, 11 Johns. R. 232; Smedes v. Utica Bank, 20 Id. 385; 1 Parsons on Cont. 407; Dunlap v. Higgins, 1 House of Lords Cases 381; Jones v. Lewis, 8 W. & S. 15; Greenfield Bank v. Craft, 4 Allen 447. cited Jones v. Lewis, 8 W. & S. 15; Smith v. Bank of Washington, 5 S. & R. 322; Weakly v. Bell, 9 Watts 273; 1 Greenl. on Ev. § 40.
53 Pa. 292Miller v. Porter (1867)
Appeal from the decree of the Court of Common Pleas of Allegheny county, in Equity, by Benjamin Miller and others, executors and trustees under the will of John M. Porter, deceased, respondents below; John Porter, Sr., and others, the next of kin and heirs at law of the decedent, being the appellees and complainants below. John M. Porter, the testator, died on the 3d of December 1865, having made his will on the 30th of November in the same year. By his will, besides other legacies and devises, he gave as follows: “ I also give and bequeath the sum of $50,000 to be expended in the purchase of a lot or lots, and the erection of a college or university with library-rooms, &c., to be located in or near Tarentum, together with my library, and $6000 additional to be expended in the purchase of useful books for the library, and it is my wish that the said college or university be known as the Porter University or College. And I do hereby appoint Rev. Joseph Iiorner, R. S. P. McCall, Rev. W. W: Roup, Rev. George Ormond, W. Y. Evans, John A. Miller and John E. Humes, trustees to purchase said lot or lots, and for the erection of the buildings, procuring a charter and library, with the general management of the whole concern, with power if necessary to add to their number, and devise suitable ways for the election or appointment of their successors. ******* “ It is my wish and intention and I also direct, that after my real estate is sold and conveyed, the several bequeathments by me made from my estate paid, that there be a proportionate amount expended in the further improvement of the cemetery lots before mentioned, and also a proportionate amount expended in the college or university buildings, library, &c. “ Also I direct, that after the death of the said N. J. P. McCall, the house and lots bequeathed to her for and during her natural life, be sold and conveyed by my executors, the proceeds of such sale be applied to the benefit of the said college or university, including the library in and for the use of said university.” After the testator’s death, an Act of Assembly was passed— April 3d 1866 — reciting the devise, and incorporating the trustees named in it, as the “ Porter University of Tarentum,” with power “ to grant and confer such degrees in the liberal arts and sciences or branches thereof, to such students or graduates of the university, or other persons, as they may deem justly entitled to such honors, and such as are usually granted by universities and colleges to persons of either sex; and to grant diplomas or certificates under their common seal, as may authenticate and perpetuate the memory of the degree so conferred, and generally do every other thing or act necessary to carry into effect the provisions of this act, and to promote the objects and design of said corporation: Provided, That the net annual income of said corporation shall not exceed the sum of $15,000, exclusive of the income from students : Provided also, That the trustees, or their successors, as aforesaid, shall have no power to put or place the said university under the patronage, control, direction, or in possession or management as the property, or for the use, in whole or in part, of any religious denomination or denominations, church or churches, sect or sects, as such, nor shall ever in any way be constituted, construed or deemed to be denominational or sectarian institution, or be at any time or in any way transferred, aliened, made the property in fee simple or otherwise, in whole or in part, of any church or churches, or religious denomination or denominations, sect or sects, as such, or be in any way whatever placed in subjection or subordination thereto as such. “ The objects and design of said corporation shall be the erection of a suitable building or buildings as they may determine therefor, and the establishment of a university within the limits of the county of Allegheny, in or near the borough of Tarentum, in which are to be taught the various branches, elementary and advanced, of science, literature, modern and ancient languages, and all the various branches of education, to the extent and in the manner and to the persons that may from time to time be determined on by the said corporation, and as the same may be set forth in their constitution, by-laws and regulations as aforesaid. # >K “The executors of said will of John M. Porter, Esq., be and they are hereby directed to pay over, from time to time, all moneys in their hands devised for the uses and purposes of said university, to the said trustees and their successors, and their receipts given in the form by them directed, shall be good and sufficient vouchers for said executors in the settlement of their-accounts.” On the 29th of January 1866, John Porter and others, next of kin and heirs at law of the testator, filed a bill against the executors and trustees under the will, averring that the devises being for charitable uses were void, and that the respondents were procuring an Act of Assembly to validate the devises ; and praying that “ the executors be decreed to account to the heirs and next of kin of John M. Porter, for the estate devised or bequeathed as aforesaid, * * and that they be enjoined from paying over to said trustees any portion of the estate,” and for general relief. A plea and answer were filed raising mainly the question, whether the devises were for “ charitable uses,” within the Act of April 26th 1855, § 11, Pamph. L. 332. The cause was heard on bill, plea and answer. On the 12th of September 1866, the court below decreed:— 1. That the devises made in the last will and testament of John M. Porter, deceased, for the purchase of a lot or lots, and the erection of a college or university, with library-rooms, &c., to be located in or near Tarentum, and for the purchase of books, being for charitable uses, and having been made by will less than one calendar'month, to wit, four days before the decease of said testator, contrary to the Act of Assembly of Pennsylvania, entitled “ An act relating to corporations and to estates held for corporate, religious and charitable uses,” approved April 26th 1855, are unlawful and void. 2. That the executors named in said last will and testament of John M. Porter, deceased, defendants in this suit, shall account for and pay over to the heirs and next of kin of John M. Porter, deceased, all moneys and property, so as aforesaid devised for the uses and purposes of the said college or university and library, and that they, the said executors and trustees named in said last will and testament (defendants in this suit), be and they are hereby enjoined and restrained from paying, applying or appropriating any moneys or property of the estate of the said John M. Porter, deceased, to and for the uses and purposes of the said college or university and library, or to and for the uses and purposes of “ Porter University,” incorporated by an Act of Assembly of the Commonwealth of Pennsylvania, entitled “ An act to incorporate Porter University of Tarentum, in the county of Allegheny,” approved the 3d day of April, A. n. 1866. 3. That the said executors of said will of John M. Porter, deceased, he and they are hereby enjoined and restrained from paying to the trustees named in said will (defendants in this suit), any portion of the estate of said decedent, and that the said defendants do pay to the said plaintiffs their costs of this suit, to be taxed by the prothonotary.” This decree was assigned for error. The Act of April 26th 1855, in most of its sections, prescribes rules for religious, charitable and literary institutions: the 11th section, embracing the prohibitory ban, applies only to “ religious and charitable” institutions, omitting “ literary institutions.” The omission was designed to relieve literary institutions from the restrictions imposed on others. The law was intended to operate as a statute of mortmain, to defeat bequests made to the clergy for superstitious uses. The statute of 43 Elizabeth exempted “ schools of learning, free schools, and scholars of universities.” Before our Act of 1855, gifts were sustained as charities, under the doctrine of oy pres, to prevent failures in carrying out the intention of donors. It is true a literary institution may be so intermixed with religion and charity, as to lose its identity as a purely literary organization: Price v. Maxwell, 4 Casey 23. Where a grant is free from the taint of personal advantage, it is a charity: Binney arguendo, Girard Will Case, 2 Howard 127. But this bequest is for the personal, but worthy, pride and ambition of the testator, to perpetuate his name and memory. No part of this gift was for gratuitous education, for the salary of teachers, or for the poor. The word “ literary” in the act, was intended to embrace universities, colleges, academies and schools ; it would be a stretch of construction to draw within the term “ charitable” the bequest for the Porter University. The corporation created by the legislature in reference to this gift, is a civil corporation, being for the advancement of learning : Angell & Ames on Corp. 28, 29; 1 Bl. Com. 471, 472; 1 Kyd on Corp. 26. A college founded by private benefactors for the distribution of private contributions is eleemosynary : Dartmouth College v. Woodward, 4 Wheat. 542. In the Porter University the trustees can do nothing but buy grounds, erect buildings, and purchase a library: it is, therefore, not eleemosynary. To make it eleemosynary the charity must be the object, not an incident; the consequence direct, not remote: Attorney-General v. Hewer, 2 Vern. 387 ; Morice v. Bishop of Durham, 9 Ves. 399 ; s. c. 10 Id. 522; Doe v. Copestake, 6 East 328; Babb v. Reed, 5 Rawle 151; Hinde v. Bishop of Chester, Cro. Ch. 239; Kirk v. King, 3 Barr 436; Doe d. Thompson v. Pitchey, 6 Taunt. 359. The testator piust either specifically declare the bequest to he a charity, or must so specify the object and bring it within what a Court of Chancery has decreed to be a charity, otherwise it is not to be so considered. Nothing in this will comes within those principles. The counsel cited also the Religious Society Act of 1731; Act of February 17th 1717, 1 Sm. Laws 43 ; Act of April 6th 1761; Act of February 12th 1850, § 31; Act of May 8th 1850, § 32, Purd. 43 ; Id. 819, pl. 8 ; Id. 107, pl. 15-22. In England a college or university is a charity: Bright. Eq. Ch. 21, § 399. The stat. 43 Eliz. c. 4 provided for the protection of charitable uses ; it did not create them: 2 Kent’s Com. § 287-88, and note, p. 342 ; 1 Rose Will. N. Y. 78, 79; Tiffany & Ballard’s Law of Trusts 232-33; Magill v. Brown, Bright. R. 347; Zimmerman v. Anders, 6 W. & S. 220. The statute 9 Geo. 2, c. 36, from which our statute is modelled, recognises “ universities, colleges and houses of learning” as charities. In England a school for gentlemen’s sons is a charity: Attorney-General v. Lonsdale, 1 Sim. 109. The principles adopted by chancery, obtain here as part of our common law: Witman v. Lex, 17 S. & R. 91; Wright v. Linn, 9 Barr 435; Morice v. Bishop of Durham, 9 Ves. 399; Martin v. McCord, 5 Watts 493; Stallman’s Appeal, 2 Wright 203; Morrison v. Beirer, 2 W. & S. 86; Barr v. Weld, 12 Harris 84; Pickering v. Shotwell, 10 Barr 26, 27 ; City of Phila. v. Bicknell, 11 Casey 125 ; McGirr v. Aaron, 1 Penna. R. 49; Cresson’s Will, 6 Casey 425; Cresson’s Appeal, Id. 438, 450; Pepper’s Will, 1 Pars. 450; Thomas v. Ellmaker, Id. 98; McLain v. School District, 1 P. F. Smith 196. A remedial statute must be construed in view of the old law, the mischief and the remedy: Dwarris on Stat. 694, 695. The mischief to be remedied was the weakness of death, seeking to live in name by founding universities and popular institutions. The argument, from the omission of “literary” in the 11th section, was met by the opinion of the court in Price v. Maxwell, 4 Casey 23 ; McLean v. Wade, 5 Wright 266. “ Charitable use” has a definite meaning in law; and technical words used, in a statute must receive a technical construction: Sedgwick on Stat. 261; U. S. v. Jones, 3 W. C. C. R. 209; Fleming v. Insurance Co., Bright. R. 106 ; Dwarris 696.
53 Pa. 302Kelly v. Creen (1867)
Error to the Court of Common Pleas of Mercer county. Ejectment by John Kelly against Richard Creen, commenced April 4th 1864: The plaintiff was the owner of the land in dispute, on the 27th of August 1840, when a judgment was entered against him at the suit of John Mitcheltree, on which a fi. fa. was issued to December Term 1842: to this writ the sheriff returned “ levy made, inquisition held and property condemned.” A venditioni exponas was issued to March Term 1845, but the writ itself was not to be found. The sheriff, on the 25th of June 1845, for the consideration of $600, executed a deed to John Mitcheltree, the plaintiff in the execution, for the land levied on (that in dispute), this deed was acknowledged August 5th 1845: it recited, amongst other things: “ And whereas, by a certain writ of venditioni exponas, issued out of said court, bearing teste at Mercer aforesaid, the 27th day of December last past, and to the said sheriff directed, he was commanded, that the said land, with the appurtenances, so by him seized and taken in execution as aforesaid, he should expose to sale, and that he should have the moneys arising from such sale, at the Court of Common Pleas, to be holden for the said county of Mercer, the fourth Monday of March then next, to render, &c., and, whereas, the sheriff, having given due and legal notice of the time and place of sale of the said land, and, after adjournment, on Thursday the 8th day of May 1845, did expose the same to sale, by public vendue or outcry, and sold the same to John Mitcheltree, of Shenango township, for the sum of $600,” &c. The next return day of the court, after the issuing of the venditioni, was the second Monday of March 1845. Kelly continued in possession until the fall of 1848, when he was removed by the sheriff under a warrant from two justices, after proceedings instituted by the purchaser to obtain possession under the sheriff’s sale. Mitcheltree, the purchaser at sheriff’s sale, entered into articles of agreement with Creen, the defendant, to sell him the land, and having died, the agreement was executed on the 30th of December 1856, by his administrator, under a decree of the Orphans’ Court. Creen paid all the contract price and made valuable improvements. The sheriff’s deed was delivered to the administrator of Mitcheltree in 1860. The plaintiff submitted several points, the decision, however, turned upon the following, viz.:— “ The sheriff’s sale made to the plaintiff in the execution under the Act of 1836, after the return day thereof, is void for want of authority in the sheriff, and the owner of th'e land may assert his title after the acknowledgment of the sheriff’s deed:” which the court below negatived, and instructed the jury to find for the defendant, and they so found. This instruction of the court Ayas assigned for error. The sale was made six Aveeks after the return day, whilst the Act of 1836 requires that it shall be made before: McClenahan v. Humes, 1 Casey 88. The decisions from Burd v. Dansdale, 2 Binn. 90, to Blythe v. Richards, 10 S. & R. 264, Avere made under the Act of 1705, but those cases held that an adjournment from day to day Ayas indispensable. The recital in a sheriff’s‘deed is not sufficient to establish the fact of adjournment: Wilson v. McVeagh, 2 Yeates 87. The objection here goes to the authority of the sheriff, and the acknowledgment of the deed does not conclude those interested: Porter v. Neelan, 4 Yeates 108; Glancy v. Jones, Id. 212; Cash v. Tozer, 1 W. & S. 529; Dale v. Medcalf, 9 Barr 109. The sheriff’s deed may be considered a return to the venditioni: Hinds v. Scott, 1 Jones 19; Smull v. Mickley, 1 Rawle 95. Parties interested must take advantage of irregularity at the acknowledgment of the sheriff’s deed: Shields v. Miltenberger, 2 Harris 78 ; Elliott v. McGowan, 10 Id. 201; McFee v. Harris, 1 Casey 105. The Act of April 16th 1845, Pamph. L. 538, was passed to stop the practice of selling after the return day. This is evidence of the validity of such sales before that time: the decisions prove its validity under the Act of 1705, 1 Sm. L. 57 ; Burd v. Dansdale, 2 Binn. 91; McCormick v. Meason, 1 S. & R. 98; Blythe v. Richards, 10 Id. 265; McClenahan v. Humes, 1 Casey 85.
53 Pa. 306Roadarmel's Estate (1867)
1. A father largely indebted conveyed land to his sons who had no property, taking from them a bond for the consideration payable in two years; creditors pressing him, shortly after, he assigned the bond for a payment in cash and a debt due by him to the assignee. Held, that the sale was an actual fraud against creditors and did not pass the land to the vendees. 2. Judgment on the bond was recovered by the assignee against the sons. Held, although the assignment may have been boná, fide, and without notice of the fraud, the judgment was not a lien on the land.
53 Pa. 310Musgrave v. Beckendorff (1867)
Error to the Court of Common Pleas of Allegheny county. This was an action of assumpsit, by Daniil E. Beckendorff against Benjamin S. Musgrave, to October Term 1865. The suit was for fourteen bonds of Missouri State Stock of $1000 each, loaned on the 26th of March 1861, by the plaintiff to the defendant, to enable the defendant to raise money on them.. The defendant was to return the identical bonds within two years, and in the mean time to pay interest on them. The bonds were not returned. The proof was that the market price of these bonds had varied much from the time of the loan until the time of the trial, January 16th 1866 — the lowest price having been about 40 per cent., and, in September 1865, about 78 per cent. — this was the latest time of which there was testimony. Several questions were raised in the Court of Common Pleas, but the only one considered in the judgment of the Supreme Court was as to the measure of damages. On that question Judge Stowe charged the jury:— “ The standard of damages is the highest market price, from the time the defendant was bound to return the bonds up to the time of trial.” The jury found a verdict for the plaintiff for $11,620, estimating the bonds at their latest value proved before the trial. Bank of Montgomery v. Reese, 2 Casey 143, and Reitenbaugh in Ludwick, 7 Id. 131, upon which the court below ruled the question of damages, were cases of trustees who would not account. They do not resemble this case. This stock could have been replaced after it was to have been returned, and the defendant would then have been liable for the price paid, and interest. A party who violates a contract is liable only for the damages which result necessarily from his act before suit is brought. The rule contended for by the plaintiff in error is the rule ordinarily applicable to the case of a failure to deliver personal property under a contract of sale. In Pennsylvania the following late cases have settled the law: Bank of Montgomery v. Reese, 2 Casey 143; Reitenbaugh v. Ludwick, 7 Id. 131. The distinction is between articles of: determinate value and unlimited production, and those, like bank stock or state bonds, subject to rapid fluctuation in the market, and not necessarily to be found in the market at any given time. Another distinction has been taken, and is applicable to a case like the present. Where the plaintiff has paid for the articles sold, the proper standard of his damages is the highest market price up to the time of trial, because, having parted with his money, he has no means with which to go into the market and buy at the time of the breach; so here, the plaintiff, whose money is locked up in his bonds, which are in the possession of the defendant, cannot be expected to have the ability to buy bonds at the time of the breach, even if there were such bonds in the market at that time — of mhich there is no proof. He cited also, West v. Wentworth, 3 Cowen 82; Clark v. Pinney, 7 Id. 681; Greening v. Wilkinson, 1 C. & P. 625; Shepherd v. Johnson, 2 East 211; McArthur v. Seaforth, 2 Taunt. 257 ; Harrison v. Harrison, 1 C. & P. 412.
53 Pa. 313Rifener v. Bowman (1867)
1. If a grantee of land alter or destroy his title deed, his title to the land is not gone, but the estate remains in him until it has passed from him by some mode of conveyance recognised by law. The instrument is made void, not the estate. 2. In an action of trespass q. c. f. of unimproved land, if the locus in quo was not within the lines of the plaintiff's deed, he had neither constructive nor actual possession and could not maintain trespass whether the defendant had title or not, it was therefore immaterial whether the defendant's deed had been destroyed by alteration or not. 3. In official surveys of vacant land, the lines on the ground constitute the true survey; rejected lines prove nothing and should be obliterated; more so in erroneous lines run in an effort to make an equal division of his land by a father between children. 4. If the courses and distances in the deeds from the father made an equal division and the lines on the ground did not, the jury might presume that some of the lines first run were rejected, and those in the deed adopted. 5. Where one of the distances in the deed differed from the plot of the survey from which the deeds were drawn, the jury might correct it by the survey. 6. To maintain an actual possession of woodland as such, it is indispensable that the intruder take actual possession by residence or cultivation of part of the tract to which the woodland belongs; occasional trespasses to take timber' constitute no possession under the statute.
53 Pa. 319Kreutz v. McKnight (1867)
Error to the District Court of Allegheny county. This was an action of ejectment by Louis Kreutz against William McKnight and Sarah his wife, Jane Morgan and Oliver Ormsby, heirs of Jane Ormsby, deceased, H. Burg win and John Hartman, for 10 acres of land. The writ was served March 6th 1861 on the McKnights, Burgwin and Hartman, and returned “ nihil” as to Mrs. Morgan and Ormsby. The case was tried April 29th 1865, and a verdict found for the plaintiff; the defendants took a writ of error, and on the 16th of July 1865, before the hearing in the Supreme Court, a nolle prosequi was entered as to Mr. Burgwin. The judgment was reversed by the Supreme Court (1 P. E. Smith 232), and again tried in the District Court April 6th 1866. The plaintiff claimed possession under a lease from the heirs of Jane Ormsby, deceased, by H. Burgwin, their attorney in fact, dated January 21st 1861, by which they let to the plaintiff, for four years from the succeeding 1st of April, all the coal under a piece of land containing 10 acres — the plaintiff to dig and take away as much coal as he might deem proper; but being bound to take away 72,000 bushels per annum, and pay for the coal at the rate of 75 cents per hundred bushels, “ and to produce at the end of each month a statement in writing signed by him, and sworn to by him before any magistrate, showing the amount due to said parties of the first part at the rate aforementioned. But if Kreutz should fail to pay the sum due at the end of each month in cash, he shall have the privilege of giving a note for such sum with sufficient security thereon, to be approved by H. Burgwin, and in such case parties of the first part shall have to wait for said money two months from the date of such note with interest. If, however, Kreutz should neglect or fail to comply with the conditions now recited in regard to payment for said coal, parties of the first part shall have full power to dissolve, terminate and annul this article of agreement or lease entirely.” The plaintiff on the trial gave his lease in evidence, and gave evidence also that he worked in the mine four or five months (a large portion of which time was employed in cleaning and fixing up the mine, which was an old one), and got out some coal; that the pit was left on one night locked and in the morning the door was found broken open, and Hartman, one of the defendants, was in possession of the mine working it. There was no evidence that the plaintiff had possession afterwards. Plaintiff gave also in evidence a sworn return made to Mr. Burgwin, showing that up to September 21st 1861 he had taken out 6064 bushels of coal; there was no evidence of any other return. He also gave in evidence receipts from Mr. Burgwin, dated July 15th and 26th, and September 21st 1861, for payments for coal, amounting to $43 in the whole; and proved that another person in 1861 had offered to Mr. Burgwin to raise $50 for plaintiff to pay for coal, “ and go bail for whatever amount might be necessary.” After the plaintiff had closed his case, the court, on motion of defendants’ counsel, directed a nonsuit to be entered. This was the error assigned.
53 Pa. 322Corbett v. Lewis (1867)
This was an action of replevin by Samuel Lewis and William Nelson against Warfield W. Corbett, for twelve creek-rafts of boards, containing about 600,000 feet, valued at $18,000. The writ was issued April 8th 1865, and served the same day. The defendant gave a claim-property bond and retained the lumber, and pleaded property in himself.
53 Pa. 332McGibbeny v. Burmaster (1867)
Ejectment by Joseph McGibbeny against Preston Burmaster for forty perches of land. The writ was issued to December Term 1865.
53 Pa. 335Schmertz v. Dwyer (1867)
In the Court of Common Pleas of Allegheny county, to which the writ of error was issued, this case was an action of assumpsit, brought February 4th 1864, by James Dwyer against R. C. Schmertz and James Blakely, trading as Schmertz & Blakely.
53 Pa. 339Holmes's Appeal (1867)
Appeal by Lefcitia Holmes from the decree of the Orphans’ Court of Allegheny county, distributing the estate of William J. Holmes and Letitia C. Holmes, minor children of James Holmes, deceased, in the hands of William B. Holmes, their guardian.
53 Pa. 343Fitzgerald v. Stewart (1867)
1. In an action for slander, where the general issue only was pleaded, it was right for the court to refuse to charge, “ that if the defendant did no more than repeat a report which originated from the plaintiff’s levity and carelessness, the plaintiff could not recover.” 2. The rule in Pennsylvania is, that while the general character of the plaintiff in slander may be assailed, particular reports or reports of particular offences may not be given in evidence for any purpose. 3. After the verdict was rendered there was a motion for a new trial, pending which the plaintiff died: the court overruled the motion and entered judgment nunc pro tunc on the verdict. Held, that this was regular. 4. In order to do justice, the court has power to enter judgment at their discretion, as of a time when it ought to have been entered.
53 Pa. 348Maple v. Kussart (1867)
Error to the Court of Common Pleas of Greene county. This was ejectment by Stephen Maple and others, heirs at law of Elizabeth Maple, deceased, against Philip Kussart and George Weaver. The land in dispute was, on the 27th day of February 1849, conveyed “ to Thomas Maple and Elizabeth his wife, and to their heirs and assigns.” Thomas Maple died September 12th 1849, having made his will, dated August 20th 1849, by which, after a number of bequests, he provided::— “ And my will is that all the remainder of my estate be disposed of as soon after my decease as convenient, and to be disposed of to the best advantage of the heirs, either by keeping it in the family at a fair valuation or selling it publicly or by private sale as may be judged best, and the division of the proceeds to be as follows : “ I give and bequeath to my wife Elizabeth two shares, to my son Stephen two shares, to my son Thomas two shares, to my son John two shares, to my son Simon two shares, to my son Joseph two shares, to my son Lewis two shares, to my son Andrew I. two shares, to my daughter Rebecca Parrish one share, to my daughter Nancy Orr one share, to my daughter Sarah McGuire one share, to my daughter Elizabeth Ray one share and to my daughter Lydia Maple one share, and further, each single share to be of the same amount, each of my sons receiving just twice as much as each of my daughters. “ And further, I do constitute and appoint Stephen Maple, Jonas Maple and Samuel C. Orr, executors of this my last will and testament.” As no person was named in the will to execute the power of sale, the executors applied to the Orphans’ Court for an order to sell, which was granted, and by virtue of it they sold the land in controversy to William S. Paul for $6410. The sale was confirmed May 14th 1850 ; the next daj^ the executors delivered Paul a deed and on the same day he conveyed the land, for the same consideration, to Thomas Maple, a son, and Samuel C. Orr, a son-in-law of the testator and Elizabeth Maple, his widow ; — Orr being also one of the executors of the will, which was the reason the conveyance was made in the first instance to Paul. It appeared that the widow, Elizabeth Maple, urged the purchasers to buy so that the land might remain in the family and that she might have a home there; — -that they bought it with some reluctance, at her request; — that she declared her satisfaction with the sale after it was made, and received from the executors her share of the proceeds, in accordance with her husband’s will, and gave them receipts for the money as her “ distributive share.” The other legatees also received their shares of the purchase-money from the executors. After the executors’ sale, Thomas Maple and Orr took possession of the property and occupied the whole of it; the widow lived on the place till her death in 1855. Thomas Maple and Orr conveyed the land in 1860, and the defendants derive title under this conveyance. . The paper-book does not show when the writ in the case was issued, nor what were the names of all the plaintiffs ; from the evidence it appeared that all did not join in the suit. In answer to points of the plaintiffs, the court below (Gilmore, P. J.) charged, “ that the title to the land survived to Elizabeth Maple, on the death of her husband ; [¡hat if the evidence satisfied the jury ‘ that the acts and declarations and receipt of the money by the widow was restricted to the interest of her husband,’ they ‘ did not divest her title nor estop her or her heirs from asserting her title to the land.’-” In answer to another point of the plaintiffs the court charged, “ If the evidence is believed, it is sufficient to work an estoppel.” There was a verdict, June 16th 1866, for the defendants. The answer to the plaintiffs’ 4th point was assigned for error. cited Co. Litt. 187, 2 Bl. Com. 183; Doe v. Parratt, 5 T. R. 652, 2 Vern. 233; Johnson v. Hart, 6 W. & S. 322 ; Stuckey v. Keefe, 2 Casey 397; Martin v. Jackson, 3 Id. 504; Bates v. Seely, 10 Wright 248; Auman v. Auman, 9 Harris 343; Robb v. Beaver, 8 W. & S. 107; Fairchild v. Chastelleux, 1 Barr 177; Hamm v. Meisenhelter, 9 Watts 349; Frankenfield v. Gruver, 7 Barr 448; Diehl’s Appeal, 9 Casey 406; Paul v. Squibb, 2 Jones 296; Riddlesberger v. Mentzer, 7 Watts 141; Shurtz v. Thomas, 8 Barr 359; Thomas v. Harris, 7 Wright 231; Bashore v. Whisler, 3 Watts 490; Robinson v. Justice, 2 Penna. R. 19. cited Wilson v. Bigger, 7 W. & S. 127 ; Smith v. Warden, 7 Harris 424; Stroble v. Smith, 8 Watts 280; Crowell v. Meconkey, 5 Barr 176; Spragg v. Shriver, 1 Casey 287; Commonwealth v. Shuman, 6 Harris 346; Paul v. Squibb, 2 Jones 299 ; Robinson v. Justice, 2 Pa. R. 19.
53 Pa. 353People's Insurance v. Spencer (1867)
Error to the Court of Common Pleas of Allegheny county. Joshua Spencer and James McKay brought an action of debt to'March Term 1866, against The People’s Insurance Company, to recover for a loss by fire of their stock of barley, malt and hops contained in the Phoenix Steam Brewery. The plaintiffs declared, that on the 2d of December 1864, they were the owners of a stock of barley, malt and hops in the Phoenix Steam Brewery, and that the defendants then made an insurance on said stock for $5000, against loss by fire, for one year from the 29th of November 1864, and on the 5th of December 1864, by endorsement on the policy, insured $5000 more; and averred that the stock was destroyed by fire on the 5th of June 1865. On the trial, March 8th 1866, on objection that the policy was not admissible in an action of debt, the plaintiffs, by leave of the court, filed another count, alleging, that on the 2d of December 1864, they were owners of a “ stock of barley, malt and hops” in the Phoenix Steam Brewery, and the defendants made a policy of insurance “ on the plaintiffs’ said barley and malt to the amount of $5000,” for one year from November 29th 1864; that on the 5th of December 1864, by endorsement on the policy, they insured the plaintiffs “on said barley and malt” the further sum of $5000; and that on the 10th of December 1864, the defendants, by writing across the face of the policy, agreed that the insurance “ should also attach and cover on hops and averring the loss by fire on the 5th of June. 1863. The plaintiffs then offered in evidence a policy issued to them by defendants, dated December 2d 1864, for $5000, with endorsement of increase of $5000, and writing across the face as set out in the narr.: to the admission of this policy the defendants made the same objection as before the amendment, but it was admitted by the court and an exception taken. The plaintiffs having proved the loss of their stock by fire and its value, rested.. The defendants then offered to prove, that at and before the fire the plaintiffs had no license from the government as distillers of spirituous liquors, for the purpose of showing that they were then acting in violation of law; also, that all insurance companies in the city have classifications of risks, and the rates of insurance vary in articles in the same class; also, that they had effected insurance in other companies without disclosing their business as distillers, and made false representations to other companies: all which offers were objected to by plaintiffs and rejected, and exception taken. The defendants gave evidence by their secretary, W. F. Gardner, that in December 1862 he went to the brewery to examine with reference to insurance ; was shown through the whole building, and neither saw nor was told anything that would lead him to suppose that any business but brewing was carried on; and that he took the insurance for a year ^solely on his inspection of the premises: the policy was renewed November 29th 1864 for a year more, 44 without information or intimation of a change.” When the second policy was nearly out, November 29th 1864, McKay asked for an additional insurance of $5000, which was taken, and the policy sued on issued — the secretary having no knowledge of the distilling. The policy of December 1862 was renewed December 1863 : he 44 endorsed the renewal on the policy dated November 29th 1864 — at this time, December 1864, he had no knowledge of distilling being carried on.” He testified also, that it was not likely he would have taken the risks if he had known of the distilling, or, if he had, it would have been al double the rates. There was other evidence that a distillery would increase the risk. The defendants gave evidence that in November 1863, Gardnei vras at the brewery; was shown the distilling apparatus, and told that plaintiffs were going to distil. It appeared also by the evidence, that there were two barrels of whiskey near the still, and thirty or forty barrels in the cellar at the time of the fire. The defendants submitted a number of points, the 3d, 4th, 5th, 8th, 9th and 10th of which, together with their answers, are as follows, viz.:— 3d point. The policy sued on * * declares, that 4 if the risk shall be increased by any means whatever within the control of the assured, during the continuance of the insurance, and notice thereof be not given to the company, and such increased risk be allowed, and endorsed thereon,’ then the 4 policy should be of no force,’ and it appears by the policy offered in evidence, that no such allowance of increased risk was or is endorsed thereon. If the jury believe from the evidence that the plaintiffs, during the continuance of the policy, carried on in their brewery the addi tional business of distilling spirituous liquors or whiskey, and stored a large quantity of whiskey on said premises, and that by means of said distillation and storage of whiskey in said brewery,. the risk and peril of the property insured by defendants for the plaintiffs therein was increased, then the contract of insurance has been broken and violated by the plaintiffs, and they cannot recover. Answer: “ This point is affirmed, if the jury find that before or at the'time the policy in suit was issued, the company did not know that the brewery buildings wepe used for distilling and storing whiskey. But if the company, at or before the date of the policy in suit, knew that the brewery was used for these purposes, in connection with brewing and malting, the law would be otherwise, as explained more fully in the general charge.” 4th point. The policy or policies sued on are, under the evidence in this case, to be considered and treated as a renewal and increase of previous existing policies issued by said defendants to said plaintiffs. Answer: “ This point is affirmed; but it must not be understood that the policies issued in 1862 and 1863 are to be taken as parts or parcels of the contract upon which the plaintiffs seek to recover. If the plaintiffs have a right to recover at all, it is upon the policy issued in December 1864, and the enlargement thereof by the endorsement on the policy, but the original insurance in December 1862, and the renewal in December 1863, and what occurred in connection therewith, may shed some light as to the knowledge possessed by the parties, at the time the policy in suit was issued, and the understanding they each had of the circumstances connected with the risk. The testimony shows that the policy in December 1862 was issued after a survey and inspection of the premises by Mr. Gardner, the agent of the company, and appears to have been based entirely upon the personal knowledge thus acquired by him. The defendants claim that it was renewed in December 1863, upon the assumption that the building was used in the same manner and for the same purposes as when first insurance was taken; and that the policy in suit was issued and enlarged under the same circumstances, neither • the company nor its secretary knowing anything about the introduction of distilling until after the fire.” 5th point. The proviso against increase of risk by acts of the insured, contained in the 10th condition annexed to the policy, is not to be controlled or limited by the other conditions and specifications of hazard annexed to said policy, but is an independent condition of itself, and therefore if the jury believe that the introduction by the plaintiffs into their brewery of the business of distilling whiskey, increased the risk and peril of the property insured for the plaintiffs by the defendants, then such increase of risk makes the policy void, and bars the plaintiffs’ right to recover upon it, without regard to the specification of risk annexed to said policy. Answer: “ This point is affirmed, if you find that the insurance company did not know that the brewery building was to be used in. part for distilling spirituous liquors until after the policy in suit was issued; but if you find that the company did know that fact, and issued the policy afterward with a full knowledge of the distilling, &c., the law would be otherwise, and the plaintiffs may recover.” 8th point. The property insured by this policy, viz., ‘ barley, malt and hops,’ being such as is used for brewing alone, and the building in which said property is said, in said policy, to be situated, being therein described as a ‘■Malt-House and Brewery’ only, the use by the plaintiffs of said building in any manner otherwise than as a ‘Malt-House and Brewery,’ was per se a violation of the contract of insurance, and bars the plaintiffs’ right to recover. Answer: “This point is affirmed, unless you find that the company knew that the building was to be used for distilling, and assumed the risk with this knowledge and understanding; if so, the plaintiffs may recover.” 9th point. Inasmuch as the policy prescribes and requires a particular mode by which increase of risk is to be allowed, viz., by endorsement thereof on the policy, such allowance of increased risk can be proved only in that way; and inasmuch as no such endorsements are found on said policy, the allowance of such increased risk, even if made by defendants’ agent in some other and unauthorized way, is to be treated as invalid and not binding on the defendants; and the jury should dismiss from their consideration all the parol evidence offered by plaintiffs on that point, and render their verdict as though no such allowance or permission had been granted. Answer: “ This point is refused. There is no evidence that the plaintiffs ever applied to the company for the allowance of increased risk. The point is not applicable to the evidence in the cause.” 10th point. That if the jury believe from the evidence that the plaintiffs had, at the time of the fire, a large number of barrels of whiskey stored on said premises, and the fact of such whiskey so stored increased the risk and added to the violence of the fire, and increased the difficulty of extinguishing it, such conduct of the plaintiffs was a violation of the contract of insurance, and they cannot recover. Answer: “This point is affirmed, with the explanation and qualification given in answer to the 5th point. If the defendants issued the policy knowing that distilling whiskey was part of the business carried on in the brewery, a natural and necessary incident of this business would be to have some of the manufactured article — whiskey—on hand, and the Gompany under such circumstances could not avoid liability on the ground assumed in this point, viz., the storage of whiskey in barrels in the brewery building.” The court (Sterrett, P. J.), after recapitulating the evidence, further charged:— “ If, after effecting the insurance on the stock in the brewery, then used as a brewery and malt-house, the plaintiffs, without the knowledge or consent of the insurance company, introduced a still, and commenced the manufacture of whiskey in connection with the brewing, and the jury is satisfied that by so doing the risk was increased, the plaintiffs cannot recover; nor can they recover if by any other means whatever, within their control, the risk was increased without the knowledge or consent of the company. “ But the evidence, if believed by the jury, shows that the still was introduced into the brewery before the policy of December 1863 was issued; that in point of fact the risk was not increased during the period covered either by the policy of 1863 or 1864. If the company was not otherwise informed that distilling had been introduced in connection with brewing, what was the duty of the plaintiffs when they went first to insure after the change of business ? manifestly, it was their duty to make it known to the insurance company. The secretary himself examined the building in 1862, and would of course presume, when applied to for a renewal of insurance, that the building continued to be used as a brewery and malt-house as when he inspected it. “ If the risk was increased by the introduction of distilling, it was clearly the duty of the plaintiffs to inform the company of the change, and if they failed to do so, whether intentionally or not, it was a concealment which would avoid the policy. The law on this subject is well settled, not only the law as arising out of the special provisions of the policy in suit, but the general law of insurance. “ There must be the most perfect fairness in obtaining a policy of fire insurance, in disclosing all circumstances material to the risk, even the reasonable grounds of apprehension on the part of the insured must be stated. Good faith forbids either party, by concealing what he privately knows, to draw the other into a bargain from his ignorance of that fact, and his believing the contrary ; concealment is regarded as a species of fraud, a suppression of truth. The reason of the rule against concealment is to prevent fraud and encourage good faith. In every kind of insurance it is held to be one of the plainest principles of equity, that a contract which one party has been induced to enter upon, from his ignorance of the thing concealed, shall not be enforced against him by the other who has concealed it. The contrary would lead to frequent and fraudulent suppression of information. All the authorities concur in the position, that if the concealment is mate rial it will avoid the policy, notwithstanding the party insured did not intend to commit any fraud. The suppression of the truth may happen by mistake, and be entirely without fraudulent intention; still the underwriter is deceived, and the policy is void, for the reason that the risk run is really different from the risk understood, and intended to be run, at the time of the agreement. “ A concealment which is only the effect of accident, inadvertence or mistake, is equally fatal to the contract as if designed. By a material fact is meant one, which, if communicated to the insurer, would induce him either to decline the insurance altogether, or take it, if at all, at a higher premium. “ Whether the matter or fact concealed is material or not in any particular case, is for the consideration of the jury.” The jury found for the plaintiffs $10,300. The errors assigned were the rulings of the court as to the evidence, the answers to the defendant’s points given above and the charge. cited Lawall v. Rader, 12 Harris 283; Lehigh C. and N. Co. v. Harlan, 3 Casey 430 ; Desilver v. State Mut. Ins. Co., 2 Wright 130 ; Fire Association v. Williamson, 2 Casey 196; Trask v. State F. and M. Ins. Co., 5 Id. 198; Inland Ins. Co. v. Stauffer, 9 Id. 397; Sykes v. Perry County Mut. Ins. Co., 10 Id. 79. cited 1 Chitty’s Pl. 108, 110; Angell on F. and L. Ins. §§ 324, 355; Cumb. Valley Ins. Co. v. Schell, 5 Casey 31; U. S. v. Colt, 1 P. C. C. R. 149 ; Franklin Ins. Co. v. Massey, 9 Casey 221; Howard Ins. Co. v. Bruner, 11 Harris 50; Girard Ins. Co. v. Stephenson, 1 Wright 298.
53 Pa. 362Millingar v. Hartupee (1867)
Error to the District; Court of Allegheny county. This was an execution attachment, issued December 27th 1864, by Andrew Hartupee against Charles Gearing, on a judgment against the latter, the debt being $5026. James Millingar was the garnishee ; he pleaded nulla bona. The circumstances under which the questions in this case arose are the following: About 1860 Charles Gearing, the defendant, had contracted 'debts at Pittsburgh amounting to nearly $25,000; one of his creditors was Millingar, the garnishee. Gearing went to Texas in 1860, and remained there, with the exception of a short visit home, until 1864. He there purchased a schooner, changed her name to “ Reindeer,” and put on board of her 288 bales of cotton. The vessel sailed from the Brazos river to run the blockade. She was captured and proceedings were instituted in the District Court for the Southern District of New York, for the condemnation and forfeiture of the vessel and cargo. On the 27th day of February 1863, in that court, it was “ orderéd that proceedings herein be discontinued, so far as relates to 73,533 pounds of cotton, being a portion of the above-named cargo, belonging to James Millingar, of Pittsburgh, Pa., and that the marshal release and deliver the same to the said James Millingar or his attorney.” The vessel and the rest of the cargo were afterwards condemned. The cotton thus released to Millingar was sold by him, and after deducting expenses and allowances claimed by him, there remained in his hands the sum of $25,949.70. The plaintiff alleged and gave evidence to show that the cotton had been purchased by Gearing with the intention of shipping it to Havana or New York, selling it and having the proceeds transmitted to Millingar to pay Gearing’s debts, if enough, in full, if not, pro rata, and should there bé a balance to pay it to Gearing’s wife for the use of his family. Millingar alleged, and gave some evidence on the point, that he agreed with Charles Gearing, through his son and agent, Frank' Millingar, that Charles should invest the amount of his indebtedness to Millingar in cotton at eight cents per pound, that the cotton released to him by the government was cotton which had been so bought for him and claimed it as his own. The grounds upon which the parties stood in the court below are fully set out in the charge of Hampton, P. J., approved by the Supreme Court. After stating the facts, Judge Hampton charged:— “ The plaintiff alleges that this cotton was purchased by Gearing with the intention of sending it to Havana, there to be sold, or if it would command a higher price in New York, it was to be taken there and sold, and the proceeds sent to' Millingar to be appropriated to the payment of his, Gearing’s debts, and if not enough to pay the whole, then pro rata, and the balance, if any, to be handed over to Gearing’s family, to be kept till he came home. That his debts amounted to from $20,000 to $25,000. That Millingar, who was one of his creditors, assented to this arrangement, by virtue of which he procured this cotton, sold it and received the proceeds, some $50,000, and therefore he is bound to carry the arrangement into effect, by reason whereof the plaintiff issued this execution attachment and attached the money in his hands. “ The defendant interposes three objections to the plaintiff’s right to recover. Two of them involve questions of law — and the other a question of fact. “ 1. That the plaintiff has shown no title to this cotton in Gearing, or to the proceeds thereof at the time of the service of the attachment or ■ since. In support of this position he contends that this vessel carrying this cotton having run the blockade, was subject to seizure and confiscation by the government, and having been captured, Gearing’s right to the cotton in dispute was forfeited, and by the proceedings in the United States District Court, the cotton was condemned, and the subsequent release by the government of this cotton to Millingar, vested the title absolutely in him, and as the plaintiff in this proceeding must claim through Gearing, if he has no title, there can be no recovery. ££ 2. Admitting the plaintiff’s allegations to be true that this cotton was purchased and sent North by Gearing to pay his creditors, and that the defendant received it from the government in trust for those creditors, the proceeds thereof when sold to be distributed amongst them, such alleged trust cannot be enforced by execution attachment, the only remedy of the creditors being by a bill in equity for an account. ■' ££ 31 That he never agreed to receive the cotton or its proceeds for the benefit of the other creditors of Gearing. But that in January 1861, Frank Glaring, son of Charles Gearing, came here from Texas with a power of attorney from his father to settle up his business, and under and by virtue of that authority he agreed with Mr. Millingar to invest in cotton at eight cents a pound, in Texas, the amount of his claim against his father, and advise Millingar of the investment. It was to be held in the name of Charles Gearing until the Federal forces should take the place, and then be turned over to them for him (M.). That from the time Millingar was advised of the investment, the cotton was to be at his risk. He further alleges that the same arrangement was made with G. W. Coffin, another of Gearing’s creditors, at the same time. ££ Let us now consider the defendant’s first ground of defence. ££ It will be readily conceded by all, that the vessel with its cargo, being owned by a person resident in Texas, which was one of the states in rebellion, whether he were friend or enemy, loyal or traitor, in attempting to run the blockade, after its owner was fully apprised of the fact that a blockade had been legally declared and established, was liable to capture and condemnation by the authorities of the United States as a prize of war. _ See The Prize Cases, 2 Black 635. And if the government had proceeded to exercise its authority in the condemnation, forfeiture and sale of this cotton in dispute, as it did the remaining portion of the cargo and vessel, all parties would have been bound thereby. Thus far there is no dispute about the law. The learned counsel, however, differ as to what was done by the court in the premises. The defendant’s attorney alleges the action of the court on the 17th of February 1863, was a judgment by default against all claimants, and equivalent to a formal decree of condemnation against the vessel and cargo, by which, the title of Gearing was divested, and the same was ipso facto vested in the United States, or in the United States and the captors jointly. Whilst the plaintiff’s counsel denies the correctness of this position, and contends that no judgment nor decree whatever, affecting the title to the property captured, was pronounced on that day, nor until after this cotton had been released and delivered to the garnishee, and therefore Gearing’s title, if he had any before, remained in him, unimpaired by that proceeding: 1 Curtis 359. A brief review of this record will be sufficient to settle this question beyond doubt or cavil.” The judge then details the proceedings in the Prize Court, and proceeds:— “ On the 27th of February 1863, the following order was made by the court, viz.:— “ ‘ On reading and filing the consent of E. Delafield Smith, United States District Attorney, and F. H. Upton, of counsel for the captors, it is hereby ordered that proceedings herein be discontinued as far as relates to 73,533 pounds of cotton, being a portion of the above-named cargo, belonging to James Millingar, of Pittsburgh, Pennsylvania, and that the marshal release and deliver the same to the said James Millingar or his attorney.’ * ' % % % * * “ That portion of the decree, in reference to the condemnation, is as follows, viz.:— “ 6 This cause having been heard on the libel, and proofs and testimony taken in preparatario, no claim having been interposed, and the default of all parties having been taken in open court, and due deliberation being had in the premises, now, on motion of E. Delafield Smith, Attorney of the United States, It is ordered, adjudged and decreed by the court, that the schooner “Reindeer,” formerly the “Jefferson Davis,” her tackle, &e., and that portion of her said cargo not heretofore released, be condemned and forfeited to the United States, on the ground that the said captured property is lawful prize of war, &c., &c.,’ and a writ of venditioni was ordered. “ By these records, which impart absolute verity, it clearly appears that while this case was pending in the Prize Court, and before any decree or sentence of condemnation or forfeiture was pronounced, a discontinuance of the proceedings, so far as they related to the cotton now in controversy, at the instance of the proper officers of the government, and the counsel for the captors, was allowed and entered of record by the court. This discontinuance took place on the 27th of February, and the decree of condemnation and forfeiture on the 18th of March, in which this cotton is expressly excepted. From all which it follows that Charles Gearing’s title to this cotton, if he ever had any, remained the same after the capture and after its delivery to Millingar as before. The only parties, to wit, the government and the captors, who had a right to claim the forfeiture, expressly waived their right, and all others are concluded thereby: 2 Conklin 522. “ Millingar, therefore, must stand 'in the same position, precisely, as if there had been ho blockade, and he had received the cotton from the Reindeer, at the hands of her supercargo, under the bill of lading. “ Chancellor Kent lays down the law as follows:— “ By the modern usage of nations, neither twenty-four hours’ possession, nor the bringing the prize infra prcesidia, is sufficient to change the property in the case of a maritime capture. A. judicial inquiry must pass upon the case, and the present enlightened practice of commercial nations, has subjected all such captures to the scrutiny of judicial tribunals, as the only sure way to furnish due proof that the seizure was lawful. The property is not changed in favor of neutral vendee or recaptor, so as to bar the original owner, until a regular sentence of condemnation has been pronounced by some'court of competent jurisdiction, belonging to the sovereign of the captor; and the purchaser must be able to show documentary evidence of that fact to support his title. Until the capture becomes invested with the character of prize by a sentence of condemnation, the right of property is in abeyance, or in a state of legal sequestration. It cannot be alienated or disposed of, but the possession of it by the government of the captor is a trust for the benefit of those who may be ultimately entitled. This salutary rule, and one so necessary to check irregular conduct and individual outrage, has been long established in the English Admiralty, and it is now everywhere recognised as the law and practice of nations: 1 Kent’s Com. 102-3. “ In this proceeding by execution attachment, the plaintiff is placed in the position, and acquires the rights of his debtor, as regards the garnishee ; and after an answer filed and issue joined, the same presumptions of law arise upon the trial from any particular evidence, as if there had been no attachment, and the suit had been by the creditor of the garnishee against him: Fessler v. Ellis et al., 4 Wright 248. Whenever a party has a right of action, his creditors may attach it, unless it be for wages : Park v. Matthews, 12 Casey 28. An attaching creditor stands in the shoes of his debtor ; and any equities that could be set up against him are equally available against the former: 10 Casey 299 : 1 Wright 491. “ These and many other cases, decided by the Supreme Court, show conclusively that the present plaintiff, being an attaching creditor of Charles Gearing, stands in his shoes, with all the rights he would have in an action brought by him against Millingar to recover the proceeds of this cotton; and the only inquiry is, could he maintain such an action ? In examining the question, we must not be led astray by false names. We must look at the true character of the transaction rather than to the name by which it may be called. In order to test the correctness of the defendant’s position, we will suppose Charles Gearing was indebted to sundry persons here, including the defendant, in the sum of $25,000; that he and James Millingar went to Texas together, and after some time Millingar being about to return home, Gearing placed in his hands $30,000, with directions, when he reached home, to take out of this sum, say $5000, the amount of his own claim, and pay to the other creditors $20,000, the amount of their claims, and hand over the remaining $5000 to his wife, to be kept by her until his return. This Millingar agreed to do, took the money, came home, and instead of performing his promise, neither paid a dollar to any one of the creditors, nor handed over a dollar to Mrs. Gearing, but put the whole in his pocket. When Gearing comes home and ascertains that Millingar has violated every promise he made when he received the money, he brings an action against him for money had and received to his use. Millingar sets up as a defence that he is not the agent of Gearing, but a trustee for the creditors, and, therefore, he cannot recover; the creditors must proceed against him by bill in equity for an account. Who can doubt for a moment that such a defence would be unavailing, if not frivolous ? “In such a case he would simply be the agent of Gearing, rather than the trustee for the creditors, and liable to be sued as such for a breach of his contract to pay over the money. “ But again, suppose the creditors, who were no parties to this alleged trust, would refuse to file a bill against Millingar, and proceed to collect claims from Gearing, as they might do, what then would become of' the money in Millingar’s hands ? The creditors refuse to collect it from him, and Gearing, as the defendant now says, cannot sue him and collect it, and as a consequence he puts the money in his own pocket. Such case would be rather a novel chapter in our jurisprudence. “ And how would such a case differ from the present, if the plaintiff’s theory be correct ? He alleges that Gearing, being indebted to sundry persons here in the sum of $20,000 or $25,000, went to Texas, purchased some 288 bales of cotton, and, in pursuance of an agreement with Millingar, who was one of his creditors, that he would receive the cotton or its proceeds if sent to him, and after paying himself and the other creditors, hand over the balance to his wife, to be kept for him until his return; sent the cotton to Millingar, who received over 70,000 pounds of it, sold it for over $49,000, and after paying all expenses, actually has in his pocket over $25,000, and refuses to pay over a dollar of it either to Gearing himself or to any of his creditors, and now, when this execution-attachment is issued by one of these creditors, who, as we have shown, stands in Gearing’s shoes, entitled to all his rights if he were the plaintiff, sets up the defence that this proceeding cannot be sustained; that he must be called upon by bill in equity for an account, although he says he is not bound to account. What defence would be then set up to the bill ? That he had faithfully executed his trust by paying out all the money that came to his hands in pursuance of his instructions ? He could have pleaded that fact in this action if true, and if proved, it would have constituted as good a defence here as in a bill in chancery. But he has neither pleaded nor proved, nor attempted to prove any such fact. On the contrary, he has denied, both by his plea and by proof, that ho has any money in his hands belonging to Gearing; that he ever agreed to act in this matter, either as the agent of Gearing or the trustee for the creditors. The law will not permit him to avail himself of the advantages of a position which he utterly denies he ever occupied. We therefore instruct you, that in this proceeding, Hartupee, the attaching-creditor, stands in Gearing’s shoes, and if Millingar is indebted to Gearing in any amount, upon a fair settlement of their accounts, the plaintiff is entitled to your verdict. “ The only remaining question in the case is a question of fact, to be determined by the jury, viz., What was the agreement between Gearing- and Millingar about the purchase of this cotton, and the disposition to be made of the proceeds ? And as you find that fact to be, so will be your verdict. And this question divides itself into two branches, viz.:— “ 1st. If, as the defendant alleges, Franklin Gearing, acting as the agent of his father, made an absolute bargain with Millingar, without any condition about submitting it to his father for his approval, that Charles Gearing should invest the amount he owed Millingar, in cotton, in Texas, at eight cents a pound, for his own use ; and this cotton, now in dispute, was purchased' under that agreement, and only amounted to what Gearing owed Millingar, at eight cents a pound, then the cotton belonged to Millingar, and the plaintiff cannot recover. “ 2d. But if, as the plaintiff contends, this cotton was purchased by Gearing for the benefit of all his creditors, and sent to Millingar with instructions to sell the same and apply the proceeds to the payment of their claims, if sufficient to satisfy all, and the surplus, if any, to be handed over to his wife for him; and if not sufficient to pay the full amount, then to be divided pro rata among them ; if this was the arrangement under which the cotton was sent and received, the plaintiff is entitled to recover in this form of proceeding, and the only remaining question is, what amount is, or ought to be, in his hands liable to attachment ? “ In order to answer this question, we must ascertain whether anything, and, if so, how much, the defendant is entitled to retain out of the money in his hands for costs., expenses, time, trouble, care, &c., in procuring and selling the cotton. “ By the 26th section of the Act of 14th June 1836, Purd. 971, it is provided that, ‘ it shall be lawful for any court having jurisdiction as aforesaid, whenever compensation shall not have been otherwise provided, to allow such compensation to assignees and other trustees, out of the effects in their hands, for their services, as shall be reasonable and just.’ Here we have the rule given üs by statute in this state for compensation to all trustees who act honestly and are disposed to deal fairly by the trust-fund; but this compensation is merely matter of grace and will be withheld whenever the conduct of the party merits such punishment: Ex parte Oassel & Spayd, 3 Watts 443-5. And in Swartswalter’s Account, 4 Id. 77, it was held that an administrator or trustee, who in the management of the funds acts unfaithfully and dishonestly towards his cestui que trust, will be allowed no compensation on the settlement of his account, and Mr. Justice Kennedy, in delivering the opinion of the court, says : ‘ Now, it is entirely inconsistent with every principle of retributive justice, that a trustee who betrays j the confidence reposed in him and attempts to defraud the cestui que trust by appropriating the trust-funds to the discharge of a pretended claim of his own, should receive the same reward that is due to virtue only, and given as a remuneration for services rendered with a view to advance the interests of the cestui que trust. On principles of policy, as well as those of morality and justice, in order to insure a' faithful and honest execution of the trust as far as practicable, it would be inexpedient to allow to the trustee who has acted dishonestly and with an intent fraudulently to convert the trust-funds to his own use, the same compensation with him who has acted uprightly in all respects and with a single view to promote the true interests of his cestui que trust. The withholding compensation altogether in the. first case, and bestowing it only in the latter, may have a tendency to deter trustees from attempting anything unfair in the execution of the trust, and induce them at the same time to perform their duties with common honesty at least, if not with all the skill and diligence that might possibly be applied ;’ and to the same point are the cases of Say v. Barnes, 4 S. & R. 116; Aston’s Estate, 5 Wh. 228; Dyott’s Estate, 2 W. & S. 566; Fournier v. Ingraham, 7 Id. 31; McCahan’s Appeal, 7 Barr 59 ; Drysdale’s Appeal, 2 Harris 537. In Stehman’s Appeal, 5 Barr 414, it,w7as said by the court below whose judgment was affirmed by the Supreme Court, ‘ An opinion seems to prevail that a trustee is always, and under all circumstances, to be paid a commission upon the funds which pass through his hands. * * * It is time that it should be distinctly understood that a trustee may not only be made to pay the cost of litigation improperly carried on for his own benefit, but that he can receive no compensation for* his services, when he has shown a want of good faith and ordinary care and diligence in the execution of the trust.’ The same salutary principle was applied to the case of an attorney who neglected to pay over money received for his client until sued: Bredin v. Kingland, 4 Watts 420 ; 2 Lead. Cas. in Eq., Hare & Wallace’s Notes 443-4. “ These are but a few of the cases in Pennsylvania with which our reports abound, all going to show that when a trustee, or any person acting in a fiduciary capacity, fraudulently withholds money in his hands belonging to his cestui que trust, he thereby forfeits all claim to compensation for any service he may have rendered in regard to the trust fund. “ And it is equally well settled that every agent or trustee is bound to keep-an account of the funds intrusted to his care, and render the same whenever properly called on, and if he fails to do so every fair presumption may be made against him. Now, according to the foregoing authority, when no compensation is fixed by the party creating the trust, any compensation allowed by the law is mere matter of grace, falling under the equitable powers of the court, and consequently, as we have already seen, it being unequitable and against good morals to allow compensation to one who has acted fraudulently, no allowance whatever can be made in such a case for services. “ Let us now apply this rule to the case before us. “ If you find that Millingar in this cotton transaction was acting as the agent or trustee of Gearing and his creditors, or as the agent of Gearing alone, without the knowledge of his creditors, and if his conduct has shown, not only a want of good faith, but an evident attempt to defraud those who trusted, him, by trumping up a claim to this cotton or its proceeds which is false and unfounded, then we instruct you that he is entitled to no compensation for his services, nor for any alleged expenditures of money without clear and satisfactory proof as to how and for what purpose, and how much was necessarily expended. And if he has failed to satisfy your minds in regard to these points, if you find for the plaintiff at all, you may charge him with what the cotton was worth at the time it came into his hands, and, after deducting the amount of the two attachments that precede this, and Gearing’s indebtedness to him, you may find the balance to be in his hands, liable to be attached.” The jury found for the plaintiff, and also that Millingar had in his hands as garnishee liable to attachment $27,336.60. There were a number of exceptions taken by the defendant to the decisions of the court on questions of evidence, to the answers to points submitted, and to the charge and the rulings of the court in them. These were assigned for error. What is given will sufficiently present the case as it was- considered and decided in the Supreme Court. cited Riddle v. Etting, 8 Casey 412; 3 Wallace 419; 2 Black. 674; Vattel, B. 3, ch. 9, § 164; 1 Bouv. L. Dict. 205, tit. Captor ; 1 Kent’s Com. 59, 101, 102; Wheat. Internat. L., pt. 4, ch. 2, § 11, p. 408, § 16, p. 431; McDonough v. Dannery, 3 Dal. 188 ; Clark v. Prot. Ins. Co., 1 Story 109-134; United States v. Bags of Coffee, 8 Cranch 398; 2 Bouv. L. Dict., tit. Prize; 3 Wash. C. C. 183; 2 Conkling’s Adm. Pr. 132 ; 1 C. Robinson 67-80 ; 2 Id. 64; Lestapies v. Ingraham, 5 Barr 81; Dunlap’s Adm. Pr. 161, 166, 411; Upton’s Mar. Warf. and Prize Law 404; Story Confl. of L., ch. 15, § 592; Bonnea v. Dinsmore, 24 Law Rep. 381; 19 Leg. Int. 108; 10 Pitts. Leg. J. 97 ; Dennison v. Goehring, 7 Barr 175 ; Bright. Eq., § 131; Reeside v. Reeside, 13 Wright 325. cited Brown v. United States, 8 Cranch 140; 2 Bouv. L. Dict. 384; 1 Kent’s Com. 102-3; Slocum v. Mayberry, 2 Wheat. 1; Havelock v. Rockwood, 8 T. R. 268 ; Smith’s Merc. L. 170 ; Stevens v. Bagwell, 15 Ves. 139; The Margaretta, 2 Gallis. 563; Wheat. Internat. L. 434-439; Bay’s R. 471; Rose v. Himili, Bee’s Adm. R. 304 ; Wheelwright v. Depeyster, 1 Johns. 471; Jenkins v. Putnam, 1 Bay 8; Miller v. Ship Resolution, 2 Dallas 1; Gelston v. Hoyt, 3 Wheat. 248; United States v. Bags of Coffee, supra; Act of July 7th 1862; 26th June 1812; 2 Conkling’s Adm. Pr. 456, 459, 526 ; Fessler v. Ellis, 4 Wright 248; Park v. Matthews, 12 Casey 28; 2 Grant 136; Driesbach v. Becker, 10 Casey 152; Riley v. Hirst, 2 Barr 346; Reed v. Penrose, 12 Casey 214; Reeside v. Reeside, 13 Wright 322; Childs v. Digby, 12 Harris 27 ; Breading v. Siegworth, 5 Casey 396; Garrigues v. Harris, 5 Harris 350; Peterson v. Speer, 5 Casey 479; Frederick v. Gray, 10 S. & R. 182; Barnhart v. Pettit, 10 Harris 135; Evans v. See, 11 Id. 88; Williams v. Williams, 10 Casey 312; Lacy v. Arnett, 9 Id. 169; Burns v. Sutherland, 7 Barr 103 ; Dennis v. Alexander, 3 Id. 50 ; Wright v. Woods, 11 Harris 120; Newman v. Edwards, 10 Casey 32; Weamer v. Juart, 5 Id. 257; Reeves v. Del. L. W. Railroad Co. 6 Id. 454; Raush v. Miller, 12 Harris 277.
53 Pa. 373Brown v. Finney (1867)
Error to the Court of Common Pleas of Allegheny county. In the court below Robert Finney brought an action of assumpsit against William H. Brown, to December Term 1864, and declared on a contract for the delivery in Cincinnati of 100,000 bushels of coal. To prove his case Finney gave evidence that on the 22d of November 1864, he and Brown with others were in an eating-house in Pittsburgh; whilst waiting for dinner, the conversation turned on the prices of coal; Brown, who was a coal merchant, said he could deliver coal as cheaply in Cincinnati as in Pittsburgh, that he could deliver there at sixteen cents per bushel. Finney asked him if he would deliver him 100,000 bushels at Cincinnati at that price Brown said he would and that it was to be cash, to which Finney said “ Certainly,” and drew a cheek for $16,000 on his banker. Brown said it made no difference about the check, he would prepare the papers next day ; and said, also, that he must have $10 per day per barge for the time they should be detained after delivering the coal. The coal was then in barges ready to start. One of the witnesses said that he thought, from his conversation, that Einney “ bantered” Brown. There was evidence also, on the part of Brown, that he said, in that conversation, that Einney would have to be in Cincinnati to receive the coal and have it promptly unloaded and return the barges, and to carry out that, Brown required security; that a memorandum was prepared by Einney “ in the shape of a receipt,” which Brown refused to sign: the matter was talked over and it was agreed that Einney should meet Brown next day, at the office of Brown, who said he would then have the article of agreement ready. On the next day Einney went to Brown’s office, where there was something said about the contract and the security, which Brown said should be in the sum of $25,000. Einney said he would give him a check for the money; Brown replied that he did not want the money for the barges, but security for their return, and that Einney had proposed to give as sureties Mr. Shoenberger or Mr. Bagley ; Einney then said, “ You refuse to deliver the coal.” Brown said, “ I did not refuse to deliver the coal, but I want security that you will fulfil your part of the agreement.” The parties became irritated and separated, and Einney brought suit soon after. The 1st and 2d points of the defendant were :— 1. If the jury believe that all the terms of the contract were not finally arranged the first day, but that the entire contract was to be arranged and reduced to writing the next day; there was then no binding contract between the parties, and no contract having been proved to have been made the next or any subsequent day, the plaintiff must fail in this action. 2. That either party in arranging the terms of a contract has the right to require that it be reduced to writing and signed before becoming obligatory, and in such case the contract does not become binding on either party unless reduced to writing and signed by him, or unless he refused to sign it when tendered by the other party. To which the court (Mellon, A. J.) answered: — “ 1. This 1st point is answered in the affirmative, if it is intended thereby to assert that if all the material terms of the contract were not agreed to on the first day, or afterwards, the plaintiff must fail in this action. In other words, a contract to be binding, or to constitute a contract at all, must be an entire or complete thing — a consenting or agreement by the parties — its terms may be few or many. Whatever they are, if terms are required by either party before agreeing to the contract, they are material and essential, and where any one of the required terms is not agreed on, the contract is not made and none exists. “ But if it is intended by this proposition that where a contract or agreement is made on terms proposed at the time, but the adjustment of these terms in the contract, and reducing them to writing is postponed till the next day, and then neglected, or refused to be done by either party, that in such case the contract is not binding, I would answer in the negative. To allow the non-reduction to writing, or non-arrangement of the terms of a contract after it was entered into, to work its rescission, they should be made part of its terms, at the time it was made, conditioned not to be binding unless these things were done. The arrangement of the terms which have been once agreed to is not essential unless made so. A contract entered into with the proviso when reduced to writing, and the arrangement of the terms hereafter agreed on, would not be perfect or binding until the arrangement was made and written, but a contract and its terms agreed on and their adjustment postponed to another time, and one of the parties afterwards refusing to assent to any adjustment, he would not be relieved because such was not made a condition of his being bound when the contract was made. “ 2. This point is partly answered in my answer to the 1st. Either party, in making a contract, can make it conditional or dependent, upon all being reduced to writing: he has a perfect right to require that it shall be put in writing before becoming binding upon him, so that he may see its terms in a definite shape ; but this must be a condition or one of the terms of the contract itself, or a reservation on his part in entering into it. If it is intended by this 2d point that after a contract is made and its terms subsequently come to be arranged for the purpose of carrying it into execution or otherwise, either party may then require it to be reduced to writing or be off, I would answer the point in the negative. How the fact is in the present case is, of course, for the jury.” There was a verdict for the plaintiff for $2000. „ The answers of the court were assigned for error. cited Keeler v. Schmertz, 10 Wright 135; Robison v. Tyson, Id. 286. cited 1 Parsons on Cont. 8 ; 2 Id. 188 ; Chitty on Cont. 365, 366, 631; Cort v. Railway Co., 6 Eng. L. & Eq. R. 230, 235; Borden v. Borden, 5 Mass. R. 67; Hibblewhite v. McMorine, 5 M. & W. 462; Sedg. on Damages 260 et seq.; Smethurst v. Woolston, 5 W. & S. 106.
53 Pa. 379Reed v. Palmer (1867)
1. Avery conveyed land to Shinn, to pay the proceeds to Mrs. Palmer •whilst the provisions of his will remained unimpeached by his wife, and after his wife’s death to convey the land to MrS. Palmer in fee. The wife accepted under the will. Mrs. Palmer died leaving a child, then Avery died, and then Shinn conveyed to the child, the wife still living. Held, that the child took by purchase from Shinn, not by descent from her mother. 2. The Court of Common Pleas had jurisdiction under the Act of 1853 (Price Act), to decree a sale of the land by .the guardian of the child. 3. The guardian by leave of the court made a private sale of the land provided he could convey a good title. Held, that the purchaser could not object that Shinn had conveyed the land in the life of Avery’s wife. 4. If the conveyance was a violation of the power, it was cured by the wife’s death.
53 Pa. 382Warfield v. Fox (1867)
1. A will was proved in 1843; one daughter of the testator was then a minor and attained full age in 1855; another was covert and became discovert in 1851. A suit was brought in 1864 to contest the will. Held, that the plaintiffs were barred by the 7th section of the Act of April 22d 1856. 2. This section includes all persons whether under disability or not. 3. The Act of 1856 does not purport to be a supplement to the Act of 1785, and the two are not to be construed as one. 4. No other exception from the operation of the 7th section was intended, than the one expressed. 5. A saving from the operation of statutes for disabilities must be expressed or it does not exist. A law general in its nature binds minors and femes covert. 6. Miller v. Pranciscus, 4 Wright 339, overruled. 7. The probate of a will devising real estate is conclusive on all persons whether infants, femes covert, non compotes mentis or not, unless contested within five years, as pointed out by the 7th section of the Act of 1856.
53 Pa. 387Boyd v. Negley (1867)
Appear from the decree of the District Court of Allegheny •county. In Equity. Felix C. Negley, being the owner of coal-mines in Allegheny county, presented his petition to the court for leave to construct a lateral railroad from his mines, through land^ of Mary M. Boyd, to the Allegheny Yalley Railroad, the petition setting forth the beginning, courses and distances, &c., as required by the Act of Assembly: there was also filed with the petition a plot showing the location of the proposed road. Yiewers were appointed by the court, who assessed damages to Mrs. Boyd at $800. Both parties appealed, and on the trial of the appeal the jury assessed the damages of Mrs. Boyd at $830. After final judgment, Negley and his contractor entered upon Mrs. Boyd’s land to construct the road. Mrs. Boyd with her husband then filed the bill, which is the subject of the decree appealed from, against Negley and Martin Howland, the contractor for building the road. The subpoena, was issued February 11th 1862. The bill, after reciting the title of Mrs. Boyd and the proceedings of Negley in relation to the lateral railroad, including the assessment of damages and the entry upon Mrs. Boyd’s lands, sets out that the road “ is on a location entirely different from that set forth in the petition and plot — and upon grades different from those represented on the pins.;” that the grades fixed by Morley, a surveyor of Negley, marked on the stakes — shown to the viewers, and proved to court and jury — brought out the lateral road at grade on the Allegheny Yalley road; but that the grade adopted by Negley brings the lateral road out 16 feet higher than the Allegheny Yalley Railroad, and that the viewers assessed no damages for the increased grade, which greatly augmented the damages ; the bill then set out in detail the particulars in which the location is changed, and that the lands on the new location are more valuable, and prayed that the defendants might be restrained from constructing the road, except as set out in the petition, &c., and the grades as marked on the pins. The defendants answered, that Negley himself being an engineer, located the part of the road complained of. Negley denied that he marked the grades on the pins, or pointed out such grade to the viewers or jurors, or that he has changed the grade where it is complained of: he admitted that the grade to which he was working, and on which he intended temporarily to construct the road, was not that originally intended or ultimately to be adopted, denying that the grade is material, and averring his right to change it; denied that the change damaged the plaintiff; that they are working on a location different from that marked on the ground, and indicated in the petition and plot, and avers that the location is that shown to the traverse jury ; they admitted that one distance of about 26 feet may have been by mistake omitted on the plot, but denied that the deflection amounted anywhere to 30 feet, and averred that it fell within the 20 feet allotted for the road ; they averred, if there was any mistake it was immaterial and was known to the plaintiff at an early stage of the proceedings, but not known to Negley, and that it was the belief that the mistake was caused by Boyd removing the defendants’ stakes. A replication was filed, and a master ajDpointed to take testimony and report. The master reported that the road was not on the location of Negley’s petition and diagram, and gave the variation in detail, both as to change of location and grade ; that the ground occupied is more valuable than that mentioned in the petition; and that Mrs. Boyd’s damages are thus increased. Upon exceptions by the defendants, the case was “ referred back to the master, with instructions, to find and report upon the testimony already taken, and such other proofs as the parties may bring before him, whether the railroad, as built by the defendant, is or is not constructed on the line run and marked on the ground by the defendant, and shown to the jury, and that for which they assessed damages; and if not, what and where are the deviations from said line.” The master made a supplemental report, with the testimony jaken by him. He reported, amongst other things, that several lines were run for Negley — one by Morley before the view; one by Duncan after the view and before the trial; both of which differed from the location in the petition; that Duncan’s line was pointed out to the jury on the appeal, as that upon which damages were to be assessed; thát a new line was run by Brady, surveyor for defendant, differing from all the others ; that on or near this the road is built; that the viewers and jurors viewed a line upon or near the line upon which the road is actually built, “ upon or near which line they assessed the damages.” Exceptions were filed to this report, one of which was: — the master erred in not finding unconditionally, that the lateral railroad of defendant is built upon the ground viewed by the viewers and jury, and that upon which the damages were assessed by them. On the 23d of September 1865, the court made an interlocutory decree, that “ the road in question is built substantially on the line upon which damages were assessed, both by the viewers and the jury: — it is ordered that the report be so corrected and confirmed.” On the 19th of June 1866, by leave of the court, Mrs. Boyd filed an amended bill, which set out that since filing the original bill, defendants had built the lateral road upon the location and in the manner set forth in the master’s reports ; and prayed that they be ordered to remove the road from its present location to the location called for in the petition; to alter the grades to conform to those originally adopted by Negley, and to restore the lands illegally encroached upon, &c. Upon hearing, the court, August 11th 1866, dismissed the bill with costs. The plaintiff appealed, and assigned this decree for error. cited Hays v. Risher, 8 Casey 174; Lateral Railroad Act of May 5th 1832, § 1, 3, Purd. 846 ; Neal v. Connellsville Railroad Co., 7 Casey 19; Redfield on Railw. 192; Commonwealth v. Erie & N. E. Railroad, 3 Casey 355; 21 E. L. & Eq. 620; Lee v. Milner, 1 Eng. Railway Cases 635; Id. 101; Commonwealth v. Pittsburgh and Connellsville Railroad, 12 Harris 159 ; Boyd v. Negley, 4 Wright 383. cited Lateral Railroad Act, May 5th 1832, Purd. 846 ; Hays v. Risher, 8 Casey 174; Boyd v. Negley, 4 Wright 377.
53 Pa. 391Blood v. Mercelliott (1867)
1. “ An act to increase the boundaries of Forest county,” provided for extending the borders of the county, locating the seat of justice, and accepting donations for the public buildings. Held not to be contrary to article 11 | 8 of the constitution, either as to its title or as containing more than one subj ect-matter. 2. The change of a county seat is within the power of the legislature.
53 Pa. 396Marsh v. Marshall (1866)
Error to the Court of Common Pleas of Erie county. F. E. Marshall brought an action of assumpsit on the 22d of February 1866, against A. T. Marsh and W. L. Cleveland, as endorsers of a note held by him, a copy of which he filed, exhibiting his claim, as follows:— “ $1500. “ Erie, Pa., Dec. 4th 1865. “ Sixty days after date, I promise to pay to the order of A. T. Marsh and W. L. Cleveland Fifteen Hundred Dollars, at the Marine National Bank of Erie. Yalue received. [Signed] “F. Gr. Irwin.” [Endorsed] “ A. T. Marsh, “W. L. Cleveland.” The defendants filed the following affidavit of defence made by F. Gr. Irwin, the maker of the note:— “ The said F. Gr. Irwin saith that there is a just, full and legal defence to the whole of the plaintiff’s claim, of which said defence he has personal knowledge of the facts, and is as follows The said note was made by him the said affiant to the said defendants, Marsh & Cleveland, for the use and benefit of one ——■ Gray, late of the state of Kentucky, that there was no consideration whatever given or paid to him the said Irwin, the maker of said note, by said Cleveland and Marsh ; but that said note was made to them that they, the said Marsh and Cleveland, might become accommodation endorsers; and that said note was the property of said Gray, and was given to him in consideration of an agreement made with said Gray and one A. H. Gray, F. F. Farrar and others, to convey or transfer to him, said affiant, the one fifty-sixth interest in the lease or leases in 11,800 acres of oil lands in the state of Kentucky, and the one fifty-sixth interest in fee simple in 200 acres of oil lands in the said state of Kentucky; and this affiant said that the said parties have not conveyed to him said interests, although he has often requested them to do so ; that this note in suit was taken by said Gray for his part, or in part payment of his interest in said sale, made by said aforementioned parties, of which he the said Gray, was one ; that he, this affiant, has already paid $1000 on said purchase, that he has received no consideration whatever for said note, and that said note was obtained from him by false and fraudulent representations by said parties ; that said parties had not the oil lands and leases they represented, and this affiant saith that said note belonged to said Gray at and after its maturity, as he was informed by said plaintiff, F. F. Marshall; and that said Gray, or said Gray and A. H. Gray and F. F. Farrar, are yet the owners of said note, and that said plaintiff F. F. Marshall is only the nominal owner and plaintiff, as he is informed and believes.” The rules of the Erie Common Pleas allow the affidavit of defence to be made by the defendant, “ or some one for him, who has personal knowledge of the matters and things to which he deposesand require that the “ nature and character of the defence shall be duly and distinctly set forth.” The court below entered judgment against the defendants for want of a sufficient affidavit of defence. This was the error assigned. cited Hunter v. Reilly, 12 Casey 509; Hutchinson v. Boggs, 4 Id. 294; Sitgreaves v. Mechanics’ Bank, 13 Wright 359.
53 Pa. 400Curry v. Bott (1866)
Error to the Court of Common Pleas of Armstrong county. This was an action of ejectment by Andrew Bott and Sophia his wife, against Peter Curry and others, brought on the 4th of October 1864. The land in dispute contained about 140 acres and' had belonged to David Kelly. On the 23d of January 1853 Kelly entered into an article of agreement for the sale of 100 acres of the tract to Curry for the consideration of $900, possession to be given on the 1st day of April then next. On the article of agreement the following are inscribed:— “ February the 24th, received of Peter T. Curry $600, by taking 57 acres of land, more or less, in Cherry Tree township, Venango county, being his interest as an heir attached to him, witness my hand. “ David Kelly, [l. s.] “ March 1st 1854, this day David Kelly and me has rescinded this contract or conveyance, given under my hand and seal. “ Peter Curry.” On the same day (March 1st), Kelly conveyed the 100 acres to Esther Curry, wife of Peter Curry, in consideration of $300. On the deed is endorsed “ March 1st 1854, received of Esther Curry $300, the consideration-money within mentioned, in full. David Kelly.” This deed was recorded September 13th 1854. On the 28th of December 1864, after the commencement of the suit, Kelly conveyed to Mrs. Curry the remaining 40 acres of the land in controversy, for the consideration of $25. On the deed is endorsed “ December 28th 1864, received of Esther Curry $25, being in full of the consideration within mentioned. David Kelly.” On the trial the plaintiff proved the service of the writ in ejectment on Curry, his possession of the premises and that no other person was in possession: also that Curry and his family had lived there since the fall of 1854. The plaintiff also proved a judgment against Curry in favor of Evan Evans & Co., execution on it and levy and sale by the sheriff of his right in the land, deed to the purchaser December 9th 1861 and conveyance from the purchaser, July 11th 1864 to the plaintiff Sophia Bott, wife of Andrew Bott, and rested. The defendant having shown title in Kelly, gave in evidence the foregoing deed from him to Mrs. Curry for the 100 acres. He also offered in evidence the deed from Kelly to Mrs. Curry for the 40 acres, which was objected to by the plaintiff, rejected by the court and a bill sealed. He also called Kelly, who testified that he. got a note from Mrs. Curry for $300, the consideration of the 100 acres ; that he received from Mrs. Curry $48 derived from wood which she had sold from the land, and $30 more ; that he never got any other payment, that he “ gave her up the note for the balance and said he would take her word for it.” The deposition of Evan Evans was taken by the defendant. It contained the following, which was rejected by the court and an exception taken: “ Did not Huston Gibson and others tell you that you had better make yourself safe, as Kelly was about issuing on the property ? Answer by Evan Evans: Yes. Question : Who sold Bott the deed ? Answer: My partner, Richard Jennings, who closed the sale and transferred the deed to Mrs. Bott.” The court affirmed the plaintiff’s point “ that upon the whole evidence in this case the plaintiff is entitled to recover.” The defendant’s counsel asked the court to charge:— 1. That the defendant has shown a perfect legal title in his wife, Esther Curry, to the land in dispute as her own separate property, and the. defendant can defend his possession under her title, and the plaintiff cannot recover in this case. 2. If the jury believe that Peter Curry, as vendee of David Kelly, had become insolvent and unable to pay the balance of purchase-money, and David Kelly, his vendor, was about to sue him and recover back the land or enforce the payment of the balance of purchase-money, and Curry knowing these facts threw up the land to Kelly and rescinded the contract of purchase, then the conveyance of David Kelly to Esther Curry is good, and the verdict must be for the defendant. 3. If the jury believe from the evidence that Peter Curry was insolvent and unable to pay the balance of purchase-money, then the conveyance to Esther Curry puts her in the position of the vendor, David Kelly, holding the legal title and entitled to the $300, balance of purchase-money and interest, and the plaintiff cannot recover without tendering the balance of purchase-money. 4. That Evan Evans & Co., as creditors of Peter Curry, had the right, and should have protected their rights, by paying the balance of purchase-money to David Kelly before he conveyed the land to Esther Curry, or by.paying the same to her after the conveyance to her, and the plaintiff cannot recover without doing so. 5. That the deed of David Kelly to Esther Curry, whether fraudulent or not as to creditors of Peter Curry, is valid as between David Kelly and Esther Curry, and gives her not only the legal title to the land but also the balance of purchase-money, giving her all legal remedies to recover said purchase-money, and the plaintiff in this case cannot recover without having first paid her the same. 6. That if the jury believe from the evidence of David Kelly, that he, David Kelly, gave up the note of Esther Curry, which he took from her for the purchase-money of the land, and released her from the payment of the same, then it is a gift and the plaintiff cannot recover. The court answered these points in the negative. There was a verdict for the plaintiff. The defendant took a writ of error and assigned for error the rejection of his offers of evidence, the affirmance of the plaintiff’s point and the denial of his points. cited McElfatrick v. Hicks, 9 Harris 402; Barncord v. Kuhn, 12 Casey 383 ; Ogle v. Lichterberger, 1 Am. L. Jour. 121; Bradley v. O’Donnell, 8 Casey 278; Gore v. Kinney, 10 Watts 140; Pusey v. Harper, 3 Casey 469. cited Bowman v. Fry, 1 Yeates 22; Culberson v. Martin, 2 Id. 443; Stahle v. Spohn, 8 S. & R. 325; Eisenhart v. Slaymaker, 14 Id. 153 ; Green et al. v. Watrous, 17 Id. 393; Young v. Algeo, 3 Watts 223; Snavely v. Wagner, 3 Barr 275; Dunlap v. Cook, 6 Harris 454 ; McElfatrick v. Hicks, 9 Harris 402; Walker v. Reamy, 12 Casey 410 ; Aurand v. Schaffer, 7 Wright 363 ; Gault v. Saffin, 8 Id. 307 ; Parvin v. Copewell, 9 Id. 89 ; Gross v. Reddig, Id. 406 ; Robinson v. Wallace, 3 Id. 129 ; Baringer v. Stiver, 13 Id. 129 ; Hoffman v. Toner, Id. 231.
53 Pa. 404Lucas's Appeal (1867)
Appeal from the decree of the Orphans’ Court of Greene county in the distribution of the estate of Thomas Lucas, Sr., deceased. The decedent died on the 19th of February 1861, seised and possessed of real and personal estate, and leaving twelve children, of whom Swan Lucas was one. Administration of his estate was granted to Thomas Lucas and Charles Lucas. Immediately on the death of the decedent, William Kincaid and others, creditors of Swan Lucas, entered judgments against him. On the 18th of September 1861, an inquisition in partition on the real estate was confirmed, and the heirs having refused to take it at the valuation, the administrators were ordered to sell it, which they did, and their report of the sale was confirmed March 18th 1862. An auditor was appointed on the 28th of March to distribute the fund arising from the sale. On the 11th of April 1862, Swran Lucas gave to the administrators a receipt for $428.20, “ on account of his distributive share in the personal and real estate of his deceased father,” this sum being to reimburse them for money they had paid-for Swan as his sureties. The auditor made a report, which, on exceptions, was recommitted. On the 15th of June 1864, the account of the administrators was confirmed, and R. W. Downey, Esq., was afterwards appointed auditor on Swan Lucas’s share. The auditor reported that Swan was indebted to his father’s estate to an extent which absorbed all his share of the personal estate, and so much of his share of the real estate as to leave due him a balance of $641.49. The auditor, after stating the facts, reported:— “ There are three claimants for this fund, Thomas and Charles Lucas, administrators of Thomas Lucas, deceased, on the ground that they were sureties for Swan Lucas to the amount of $428.20, and that they received from the said Swan Lucas a receipt on the 11th day of April, A. D. 1862, for $428.20, on account of his distributive share in the personal and real estate of his deceased father. If Swan Lucas, however, had the control of this fund, the testimony does not disclose that he appropriated it before that date, at which date he gave the receipt aforesaid. But it is contended that, as no application had been made for an auditor to ascertain liens, &c., as is provided by the Act of 29th of February 1832, § 49, the administrators had the right to apply the fund to those primá facie entitled, and if such payment was made, that it was a good and valid payment or disbursement of the balance due Swan Lucas, out of 'his father’s real estate. On examination of this section, your auditor is of the opinion that it is not compulsory but permissive. That an executor or administrator might invoke its provisions to protect himself against a mispayment, or secure to him the benefit of all the facts, a full hearing and an impartial decision. The section does -not authorize the auditor to create or declare liens, but simply to ascertain them, and when ascertained the court may order the amount of money that may be payable to any of the parties against whom liens existed, to be paid into court, which has power to distribute it as it would have in the case of a sheriff’s or coroner’s sale. Besides, it appears from an inspection of the above receipt and the judgments claiming the-fund, that the judgments are prior in point of time to the receipt. It may also be observed that the receipt was a personal matter of the said Thomas and Charles Lucas, and in which the estate of Thomas Lucas, Sr., was in no wise interested. The auditor, therefore, declines to appropriate the fund or any part thereof to that claim, but appropriates it to such judgments as were entered against Swan Lucas after his father’s death according to their priority, which your auditor finds and appropriates as follows:” He then details the judgments and his appropriation of the fund to them. “ In relation to the attachments which Avere served on the administrators to attach the interest of Swan Lucas in his father’s estate, your auditor is of the opinion that as they are subsequent in date to the judgments to which the money has been applied, they could have no claim on the fund as against prior judgment-creditors.” The court confirmed the report, and upon appeal by Thomas Lucas and Charles Lucas, the decree of confirmation was assigned for error. cited Ebbs v. Commonwealth, 1 Jones 374; Acts of March 29th 1882, §§ 37, 42, 49, Purd. 294, 297, 299, Pamph. L. 201, 203, 206 ; March 21st 1772; April 4th 1798; March 26th and 29th 1827; March 23d 1829. cited Act of 29th March 1832, § 49 ; 6 Harris 199.
53 Pa. 408Kelley v. Tibbals (1867)
Error to the Court of Common Pleas of Erie county. In the court below this was an amicable scire facias on two judgments, Charles M. Tibbals against William Kelley, considered in the same, proceeding by consent. The agreement for the entering of the scire facias was filed August 24th 1865. The judgments had been originally entered to August Term 1856, one for $355.53 and the other for $315. Attachment executions had been issued on them, as well as on judgments of other creditors of Kelley, and judgment obtained against Neiler & Warren, the garnishees, that they had in their hands $1334.25 liable to the attachments. An auditor appointed to make distribution of this fund awarded $226.90 to Tibbals, on account of his judgments. On the trial of this scire facias the defendant offered to prove that stocks and bonds exceeding $14,000 were attached under the execution process, and by the connivance of the garnishees and Tibbals, they were converted to their own use, to the defendant’s prejudice, and, but for which there would have been sufficient to satisfy the plaintiff’s judgments if disposed of according to law. Also, that Neiler & Warren held $14,000 of securities in their hands of Kelley’s, as collateral security for the payment of $2000 he owed them, which were the same that were attached on the execution process in their hands. That by an agreement between Neiler & Warren and Tibbals, they were sold at private sale, without authority from Kelley or notice to him, for less than one-half their marketable value, and therefore the plaintiff’s claim' was discharged. The offer was objected to and rejected, the court (Derrickson, A. J.) saying:— “ It having been referred to an auditor, to make distribution of the amount for which Tibbals obtained judgment against the garnishees ; and this report having been confirmed and acted upon by those in interest, and no charge of record appearing, it is clear that we cannot in this collateral manner review what was done.” The plaintiff obtained a verdict for $936.74. The rejection of the evidence was assigned for error. Kelley was no party to the proceedings in the attachment, and is not concluded by them. It was not proposed to review the proceedings, but to show that the plaintiff’ by his acts had received satisfaction: Hunt v. Breading, 12 S. & R. 37 ; Taylor’s Appeal, 1 Barr 393. The evidence was not set off, for there was no mutuality. Kelley could have sustained no suit against Tibbals for what it is alleged he had done. On the admission of the evidence, the question as to the amount of Kelley’s injury would have arisen, and it would have involved the inquiry to assess the damages between them.
53 Pa. 411Tanner v. Oil Creek Railroad (1867)
Error to the Court of Common Pleas of JSrie county. This was an action of assumpsit, in which the writ was issued December 2d 1864, by A. F. Tanner against The Oil Creek Railroad Company. The plaintiff declared for the loss of six bales, containing 1230 pounds of hops, delivered by him to the defendants to be carried from Corry to Shaffer. The proof showed the delivery of the goods to the defendant at their depot at Corry, to be delivered at Shaffer, another station on their road, 36 miles distant. The evidence of the plaintiff was that the railroad agent agreed to ship them the next day or the next day but one ; that they had not arrived at Shaffer the third day afterwards ; that the agent of the plaintiff went on foot from Corry to Shaffer, and examined every switch and siding, but could find no car of the number 6979, in which the railroad agent had informed the plaintiff’s agent the goods were shipped; that he again demanded the goods from the freight agent at Shaffer, who said they had not arrived, but agreed to give him notice of their arrival. The plaintiff had not received the goods at the time of the cause, November 2d 1865. On the part of the defendants the evidence was that -the hops were first put into car 6979, which was broken, and they were changed to car 1566; that the business on the road increased rapidly in 1864, and that locomotives in sufficient numbers could not be obtained, as they had been taken by the government from the machine shops ; that the hops arrived at Shaffer on the 28th of November 1864, and were put into the warehouse, but no notice of their arrival was given to the plaintiff; that it was against the custom and rules of' the office to give notice of the arrival of goods. A verdict was rendered for the plaintiff for $450, and a new trial ordered; on the second trial, February 1st 1866, the plaintiff had a verdict for $242.40, and he took out this writ of error. The plaintiff on the trial submitted a number of points, some of which related to the duty of the company to give notice of the arrival of the goods; on this subject the court (Johnson, P. J.) charged:— “ That the plaintiff did not know the hops were there, was the result of his own negligence, quite as much as that of the company. It was his duty to inquire, and ascertain whether the, goods had arrived. If it was not convenient to go there, the mail or telegraph would have brought him the information for a trifle. If he relied on the promise of any employee of the company to give him notice of their arrival, he did so at his peril. The duty was not one the company was bound or accustomed to perform, nor one which they imposed on their employees, or which they wrere authorized to bind the defendant to perform. If any such ai-rangement was made, it may have imposed a personal duty on the party making it. There is neither evidence nor presumption that he had authority to bind the company by any such contract. The freight agent at Shaffer testifies, that no such arrangement was made by him or any one within his knowledge; that he had not the plaintiff’s address, who was himself the consignee, and made diligent inquiry but failed to ascertain where he lived.” The plaintiff’s 9th point, which was answered in the negative, was:— “ If the hops were misplaced or could not he found, and the plaintiff was so informed by the defendants, the plaintiff would have a right to bring his suit for their value, and the finding of the hops, either before or after the suit brought, without notice to the plaintiff of their being found and arriving at their destination, would be no defence to this action for their value, and the plaintiff would be entitled to recover.” These instructions were assigned for error ; the answer to the 9th point being the 10th assignment. cited 1 Smith’s Lead. Cases 319; Angell on Carriers, § 284. cited McCarty v. New York and Erie Railroad Co., 6 Casey 247; Angell on Carriers, p. 319; Wilbert v. New York and Erie Railroad Co., 2 Kernan 245.
53 Pa. 418Lukehart v. Byerly (1867)
1. Words laid in a count for slander, which are not actionable of themselves and have no colloquium to connect them with extrinsic circumstances, are not helped by the innuendo of larceny. 2. W ords are actionable in themselves only where they impute an offence, indictable and punishable at common law or by statute. 3. It is sufficient to state the substance of the words spoken; but the imputation, whether in substance or lime verba, must be of a distinct criminal offence or it is not slanderous per se. 4. When words per se do not import a crime, a colloquium, is necessary to couple them with facts which give a particular hue to the meaning, and by the help of innuendoes designate the persons and things alluded to, and disclose the charge of guilt. 5. Words that the plaintiff “had ‘taken apples/ or had ‘stolen apples/ or had ‘taken apples without asking for them', or words to that effect, and in substance, that the plaintiff had committed larceny/' are not actionable. 6. Words are not to be received in mitiori sensu, but in the plain and popular sense in which the world in general understands them. 7. Where the general issue only is pleaded, the defendant may assail the general character of the plaintiff, but cannot give evidence of particular reports, nor of the general currency of the particular charge which he took up and endorsed. 8. A general judgment in slander when some of the counts are bad is erroneous.
53 Pa. 422Cambria Iron Co. v. Tomb (1867)
Ejectment against tkree, one confessed judgment “ as to kimself alone,” tke others, took “ defence for the undivided two-thirds:” a verdict “for the defendants” generally was a proper verdict.
53 Pa. 424Stephens v. Downey (1867)
Error to the Court of Common Pleas of Gfreene county. This was an action of assumpsit, by Barzilla Stephens and Commodore P. Morris against Robinson W. Downey, alleging neglect of professional duty as attorney at law in relation to the collection of a judgment. The plaintiffs were the executors of James Stephens, deceased, and employed Mr. Downey as their counsel in settling the estate. Amongst other matters, a claim of the estate against one Isaac Shull was put into his hands for collection. The case was submitted by agreement to the final determination of three referees. By a rule of the Court of Common Pleas of Greene county, in reference to “ Amicable Arbitrations,” it is provided that “ when the award of arbitrators or referees is filed, a judgment nisi may be entered in vacation by the prothonotary, or in term time, on motion, according to the terms of the submission, and notice thereof shall be given by the party intending to enforce the award to the adverse party or his attorney; and the judgment shall become absolute and final unless reasons for setting aside the award shall be filed within four days after service of such notice,” &c. The referees reported in favor of the plaintiffs for $971.90. Their report was filed on the 18th of February 1854; same day judgment nisi was entered on the award and transferred to the judgment-docket. Notice was given of filing the award, and no exceptions having been filed, the prothonotary marked the judgment “ absolute,” on the appearance-docket, but did not note it on the judgment-docket.' Shull sold his real estate to John B. Gordon on the 8d of March 1857, and a scire facias was issued by Mr. Downey, on the judgment, February 28th 1859, with notice to Gordon. After the sale by Shull to Gordon a number of judgments were entered against Gordon, under one of which the land was sold. The proceeds of sale having been .brought into court for distribution, were appropriated to liens subsequent to the plaintiffs’ judgment, which the auditor and court excluded. The decree of distribution was affirmed by the Supreme Court (Stephens’ Executors’ Appeal, 2 Wright 9), on the ground that the judgment was not a lien “ as against subsequent judgment-creditors without entry on the lien-docket or actual notice.” The suit was commenced against Mr. Downey more than six years after February 28th 1854, and the default alleged was that he should have seen that the judgment had been duly entered on the judgment-docket after it had become absolute. On the trial the defendant submitted the following as his 3d point:— “ The scire facias was issued within five years and in time to revive the judgment as it stood on the appearance-docket. But as the time was lost by the failure of the prothonotary to enter the judgment absolute on the award on the judgment-docket and the sale of the property to Gordon and intervention of judgments against him, the defendant is not liable for the loss occasioned by such failure, sale and intervention of other judgments.” The court (Gilmore, P. J.) affirmed the point, and there being a .verdict for the defendant, the affirmance was assigned for error. cited Wood v. Reynolds, 7 W. & S. 406; Dearborn v. Dearborn, 15 Mass. R. 316. cited Act of June 1836, relating to arbitrations, Purd. 50 et seq., Pamph. L. 717; Britton v. Stanley, 1 Wh. 267; 1 Troub. & H. 553; Stephens’ Executors’ Appeal, 2 Wright 14: Act of March 29th 1827, § 3, Purd. 575; 9 Sm. L. 319; Mann’s Appeal, 1 Barr 24; Updegraff v. Perry, 4 Id. 291.
53 Pa. 427Burford v. McCue (1867)
1. It was error to submit to the jury without other proof, the question whether “ R. P. O'Neil” who executed a deed was Rev. Patrick O’Neil, the owner of the laud. 2. Burford and McCue each had surveys returned on the same land; Bur-ford's was rejected and MeCue's accepted by the board of property, and Bur-ford appealed. Held, that although Burford was in actual possession, yet he must stand as other plaintiffs in ejectment on the strength of his own title, not on the weakness of the defendant's. 3. The successful party before the board of property is to be considered as in possession on an appeal, and showing an outstanding title would be a sufficient defence. 4. Presumption of abandonment by neglect to return a warrant for twenty-eight years, is rebutted by the possession of the land by the warrantee and tenants during the time. 5. The possession is notice of the appropriation of so much land, as the settlor may include by his settlement. 6. The warrantee is presumed to have paid the purchase-money on obtaining the warrant, on the ground that the law requires the payment then to be made, and the presumption that the state officers have done their duty. 7. When the testimony is not brought up by bill of exceptions, it should be certified to be correct by the judge who tried the case; the practice of counsel making different presentations of the evidence is erroneous.
53 Pa. 436McGrew v. Stone (1867)
1., Where a party is dealing with a subject full of risk, greater caution and diligence are required to prevent injury by reason of it. 2. The general rule is that a man is answerable for the consequences of a fault which are natural and probable; if his fault happen to concur with something extraordinary and not likely to be foreseen, he will not be answerable. 3. The law gives no redress for inevitable accidentsjand those resulting from mutual negligence; when the injury comes from the exclusive negligence of one party, he cannot shield himself from liability by calling it an accident. The maxim, causa próxima non remota spectatur, means this. 4. One engaged in an act which the circumstances indicate may be dangerous to others; and the event whose concurrence is necessary to make the act injurious, can be readily seen as likely to occur under these circumstances and unite with the act to inflict the injury, is liable if he does not take all the care which prudence would suggest to avoid the injury. 5. Morrison v. Davis, 8 Harris 171, and Scott v. Hunter, 10 Wright 192, commented on and compared.
53 Pa. 445Pennsylvania Railroad v. First German Lutheran Congregation (1867)
1. Railroad Co. v. Hiester, 8 Barr 445, is exceptional and tends to mislead as to the Supreme Court reviewing matters which are not part of the record. 2. The Court of Common Pleas has a supervisory power, to see that the proceedings of viewers assessing damages for property taken by the Pennsylvania Railroad Company, are regular. 3. It may set aside the report for gross errors or misconduct in the viewers, or for gross inadequacy or excessiveness in the damages. 4. No appeal is given to the Supreme Court; the judgment of the lower court is final, except for errors manifest on the record. 5. A citizen has no right to trial by jury, in proceedings by the state under her powers of eminent domain. 6. Thp Common Pleas has power to allow amendments to a petition for viewers to assess damages against railroad companies. 7. Where a lot is common both to a church building and its parsonage, the parsonage is within the Acts of April 23d and August 12th 1864, allowing the Pennsylvania Railroad Company to tunnel under “ places of public worship,” and providing for assessing the damages. 8. Damages are presumed to be assessed as of the date when they were done, when the contrary does not appear on the record.
53 Pa. 453Caldwell v. Brown (1867)
1. An employer is not bound to indemnify an employee for losses in consequence of the ordinary risks of the business, nor of the negligence of another person employed by the same employer in the same general business, unless he has neglected to use ordinary care in the selection of the culpable employee. 2. The damages for death by negligence, are the pecuniary loss sustained by the parties entitled to maintain the action. 3. In an action against the employers for the death of an operative in a mill by the bursting of the boiler, it was not error to charge, “ We cannot say that the negligence of the engineer would entitle the plaintiff to recover, provided he was a skilful engineer and a man of good character as such.” Nor, “ If the water was too low in the boiler * * it was not the fault of the defendants but of the fireman or engineer; and if so, for the death of the boy, being a co-laborer, the plaintiffs cannot recover.” 4. Parents in an action for the death of a minor child, can recover only the pecuniary value of his service during minority; not for their agonized feelings or loss of the son’s society.
53 Pa. 460Eckels v. Stewart (1867)
1. Eckels made a contract to purchase land, paid §50, took possession and died without paying the balance of purchase-money, leaving a widow and children. One of them took out administration and having more of the estate than would pay the purchase-money, paid it, took a deed from the vendors “ for himself and in trust for the heirs,” &c. The widow and children made an arrangement that the administrator should hold the land as his own and pay the plaintiff, a minor, and others, their shares of the estate. Held, that plaintiff’s remedy for her share was not in the Orphans’ Court, the contract having been specifically executed by the deed from vendors. 2. The son who took the deed could be proceeded against as trustee for the heirs; he was not the representative of a deceased vendee. 3. The deed did not create a technical trust in the son, but a use which the statute executed, and the legal title passed to all the heirs of the vendee. 4. The plaintiff could use her legal title, to enforce the payment of the money due her under the arrangement, and should recover on filing a release of her right in the land.
53 Pa. 464Brendlinger v. Yeagley (1867)
Error to the Court of Common Pleas of Cambria county. A judgment was entered by confession in favor of David Brendlinger against Henry Yeagley, on the 29th of April 1862, for $1110. On the 10th of February 1864, upon an affidavit of the defendant, the court opened the judgment and let him into a defence ; and directed an issue “ to determine what amount is due from defendant to the plaintiff upon the judgment in this case.” The parties afterwards entered into the following agreement of reference:— “ Article of agreement between David Brendlinger, of Rich-land township, Cambria county, Pennsylvania, of the first part, and Dr. Henry Yeagley, of Johnstown, of the second part, as follows: Whereas a lawsuit is now pending, and for trial at June Term 1864, between the said parties, wherein the said David Brendlinger is plaintiff, and the said Henry Yeagley defendant, we do hereby agree and covenant with each other, that they, the said David Brendlinger and the said Henry Yeagley will stop all further proceedings at law, and leave it to Lewis Fisher and J. R. Stull, who shall select a third man, and whatever decision they make shall be binding and final of all former transactions between the said parties. In witness whereof we have hereunto set hands and seals this third day of June, A. d. 1864. “David Brendlinger, [l. s.] “ H. Yeagley. . [l. s.] “ Signed, sealed and delivered in the presence of “ Lewis Fisher, “ J. R. Stull. The referees awarded: “In the case of Brendlinger v. Yeagley, we find for plaintiff three hundred and twenty-three dollars and six cents, and each party pay his own costs.” The award was signed by the two referees selected and a third person; but there was nothing else showing the choice of the third person. The award was filed. The plaintiff afterwards filed exceptions to it, one of which was: The agreement purports to refer a cause pending in court to arbitrators, yet it is not provided in the submission that it shall be made a rule of court; and no rule of court having been issued, the proceedings are irregular, erroneous and void. The exceptions were overruled, and judgment was entered on the award. The plaintiff took out a writ of error. The error considered in the opinion of the Supreme Court was the overruling the above exception. cited Acts of June 16th 1836, §§ 1, 2, 3, 6, Pamph. L. 717; March 21st 1806, §§ 1, 2, 3, 4 Sm. L. 326; 1705, Id. 50; Purd. 50 et seq. pl. 1, 2, 3, 6, 9, 10, 11, 14; Williams v. Craig, 1 Dall. 314; Stokely v. Robinson, 10 Casey 316 ; Okison v. Flickinger, 1 W. & S. 257 ; Marshall v. Bozorth, 5 Harris 411; Wall v. Fife, 1 Wright 394; Stevens’s Appeal, 2 Id. 13 ; Graham v. Hamilton, 1 Binn. 461; Brink v. Bell, 4 Yeates 491; White v. Shriver, 2 Watts 473; 1 Bac. Ab. Arb. and Award; 2 Saunders on Pl. & Ev. 1282, 1295; 2 Greenl. on Ev. § 71, note 2; Tidd’s Pr. 826, 830-831; Bayne v. Gaylord, 3 Watts 305 ; Falconer v. Montgomery, 4 Dall. 232; Passmore v. Pettit, Id. 272; Richardson v. Cassily, 3 Watts 320 ; Gallup v. Reynolds, 8 Id. 424; Guier v. McFadden, 2 Binn. 587 ; Lewis v. England, 4 Id. 5; Clark v. McKisson, 6 S. & R. 87; Holdship v. Alexander, 13 Id. 230; Carson v. Coulter, 2 Grant 121; Buckley v. Durant, 1 Dall. 129; Russell v. Gray, 6 S. & R. 145. cited Gallup v. Reynolds, 8 Watts 426; McAdams v. Stilwell, 1 Harris 96 ; Ford v. Keen, Id. 179; Buckman v. Davis, 4 Casey 214; White v. Shriver, 2 Watts 473; Chase v. Miller, 5 Wright 411.
53 Pa. 467Keeler v. Taylor (1867)
1. The general rule is that all restraints of trade, if nothing more appear, are bad. 2. Contracts in restraint of trade to be good at law, must be founded in a valuable consideration, be reasonable and impose no general restraint on trade and industry. 3. Equity will not enforce such contracts although good at law, if their terms be at all hard or even complex; such decrees are of grace, not of right.
53 Pa. 470Commonwealth ex rel. Shaffner's Administrator v. Rogers (1867)
Error, to the Court of Common Pleas of Fayette county. This was an action of debt at the suit of the Commonwealth to the use of the administrator, &c., of Jacob Shaffner, deceased, against Thomas Sloan and Robert Rogers. The writ issued July 14th 1858, and was returned “ summoned” as to Rogers, and “ nihil” as to Sloan. Philip Shaffner died in May 1844, having made his will,'proved on the 81st day of that month, by which he gave the residue of his personal estate to his four children, Catharine, wife of Thomas Sloan, Mary Ann, wife of Charles Greenawalt, Jacob and Alfred ; he also directed the residue of his real estate to be sold, and gave one-fourth to each of his daughters Catharine and Mary Ann, and gave “ one-fourth thereof to my son Jacob in manner following, that is to say: the said one-fourth is to be put out on interest by my executors, who are hereby required to pay over annually to my son Jacob the interest arising from said one-fourth, during his lifetime, and at his decease then to distribute the said one-fourth equally among the children of my said son Jacob.” The other fourth he gave for the benefit of his son Alfred, and appointed Thomas Sloan and Charles Greenawalt executors of his will. Greenawalt renounced, and letters testamentary were granted to Sloan alone. On the 3d of March 1845, Alfred presented a petition to the Orphans’ Court, charging that Sloan was wasting and mismanaging the estate, and praying that Sloan might be required to give security or be dismissed. On the 6th of June 1845, the court directed Sloan to give security in the sum of $8000. He accordingly, on the 7th day of July, filed a bond with Rogers the defendant as his surety in the sum of $8000 — conditioned that Sloan as “ executor of the last will and testament of Philip Shafi'ner, deceased, shall well and truly discharge the trust as executor as aforesaid, and shall well and. truly pay over all moneys that may come to his hands as executor as aforesaid, according to the directions contained in the will of the said Philip Shafi’ner.” The bond was approved by the court and filed. On the same day a judgment was entered in the Court of Common Pleas of Fayette county by confession, in favor of Robert Rogers against Thomas Sloan and William Baker as his surety in the sum of $8000 — conditioned to indemnify Rogers as surety for Sloan in the bond given by order of the Orphans’ Court. On the 2d of June 1846, Thomas Sloan petitioned the Orphans’ Court, that Rogers might be discharged as surety and another surety substituted. Sloan’s account as executor was confirmed September 10th 1846, showing in his hands a balance of $13,337, of which $10,255.76 were the proceeds of the real estate. An execution was issued to December Term 1846, on the judgment of Rogers against Thomas Sloan, and on the 21st of January 1847, before the day of sale, $8506, the debt and interest, were paid to the sheriff. In March 1847, the declaration of the assent of Sloan and his wife to the substitution of William Sloan as Thomas Sloan’s surety in place of Robert Rogers, was filed in the Orphans’ Court. By this they bound themselves that in case such “ security should eventually prove inadequate to protect all of said legatees, that the claims which we' or either of us and our heirs, executors and administrators may have upon the same, shall be postponed to the claim of the said other legatees, or their heirs and legal representatives.” Greenawalt and wife also gave their assent to the substitution of William Sloan for Rogers. The following declaration of Alfred was, at the same time, filed : — ■ “ I, Alfred P. Shaffner, for myself and my brother Jacob Shaffner, do hereby declare my and his assent to the substitution by the Orphans’ Court of Fayette county, Penna., of the bond of Thomas Sloan and William Sloan for that of Thomas Sloan and Robert Rogers — as security for the faithful performance, by Thomas Sloan, of the duties of executor of the last will and testament of Philip Shaffner, deceased.” The bond of Thomas and William Sloan, conditioned that “ Thomas Sloan, executor of the last will and testament of Philip Shaffner, deceased, shall well and faithfully do and perform all and singular the duties and trusts to the said office appertaining,” was, March 8th 1847, “ approved and accepted in lieu of the bond of the executor, with Robert Rogers as security, which is released.” On the same day the court made the following order: — “ The defendant, Thomas Sloan, having, by the substitution of another bond, released the plaintiff from his suretyship as executor of Philip Shaffner, deceased, that the money in the hands of the sheriff he shall dispose of as follows: 1st. That he pay into court $867.65, an amount claimed by plaintiff. 2d. Pay to William Barkman, attorney in fact of Charles Greenawalt and wife, $1386.46. 3d. Pay Alfred P. Shaffner $1838.71. 4th. Pay the residue to Thomas Sloan.” By the testimony of Alfred Shaffner, it appeared that he had no authority to give the assent of Jacob Shaffner to the substitution of William Sloan for Rogers. Thomas Sloan was afterwards, May 6th 1857, discharged from the executorship. On the trial the record of Rogers’s judgment and the proceedings under it, as before stated, were offered in evidence by the defendant and objected to by the plaintiff, but received by the court and exception taken. The court (Gilmore, P. J.) to the jury, charged: — “ I am of opinion, and so instruct you, that the plaintiff is not entitled to recover. “ The Orphans’ Court, on a proper application or suggestion, have full and exclusive authority to take such a bond as is now in suit, and to hold it for the purposes expressed in its defeasance. That jurisdiction also comprehends the right to release the bond, or substitute another in its stead, arid we think this may be done without a citation to the parties interested in the bond. The taking of the bond and its approval is purely the act of the court. The instrument is brought into being by the fiat of thé court, as a guarantee for the faithful performance of a trustee acting under the jurisdiction of the court. This power to compel such a guarantee, implies a corresponding power to change, enlarge or entirely release it. If the court were bound to give notice of intention to change a security to all interested, the delay it might occasion would in some instances work to the prejudice of those for whose benefit it was intended. The bond is merely auxiliary to the court, enabling them to enforce a faithful discharge of duty. To what purpose should those interested be summoned ? The power of the court could neither be enlarged or limited, delayed or hastened, by their assent or dissent. It is the province and duty of the court to see that her trustees act with fidelity, and from this duty she cannot be released. Their action in this respect is independent of all.” * * * “ In this case we have also the fact that the whole amount of the bond was brought into court by the surety. The court was informed as to the nature of the fund, and they undertook to distribute it. In doing so, they made a decree discharging the bond. It was the right of the surety to have it discharged. He would have no other object in causing the money to be brought into court, than a release of his obligation. His judgment of indemnity by the proceeding had been extinguished, and it was not his fault if the money was disposed of by the court so as eventually to occasion loss. The principal, Thomas Sloan, would have had a right to the cancellation of this bond upon bringing the money into court; and we cannot see why the surety is not entitled to the same privilege.” There was a verdict for the defendant, October 12th 1864. The errors were the admission of the evidence objected to, and charging that the plaintiff was not entitled to recover. cited Newcomer’s Appeal, 7 Wright 43; Act of March 29th 1832, §§ 22, 28, Purd. 305, 307, pl. 202, 209, Pamph. L. 194,197; McKee v. McKee, 2 Harris 237 ; The Mary, 3 Peters’ Cond. R. 35; Commonwealth v. Greene, 4 Wh. 568; Ege v. Sidle, 3 Barr 124; Ragan’s Estate, 7 Watts 440 ; Jackson v. Brown, 8 Johns. R. 459. cited Newcomer’s Appeal, 7 Wright 43 ; Erb’s Appeal, 2 Penna. R. 296; Himes v. Barnitz, 8 Watts 45; Gardner’s Appeal, Moore’s Appeal, and Cornwell’s Appeal, 7 W. & S. 295, 298, 305 ; Carman v. Noble, 9 Barr 366; Kramer & Rahm’s Appeal, 1 Wright 75; Hatz’s Appeal, 4 Id. 212.
53 Pa. 477Craig v. Mayor of Allegheny (1867)
1. Under the Internal Improvement Acts of February 25th and April 10th 1826, a grant of land to the Commonwealth for the use of the canal, is absolute and in perpetuity. 2. The acquisition of land by the Commonwealth by right of eminent domain is necessarily in fee and the alternative mode, by agreement with the owner, must be the same. 3. “Purchase” in the act applies to land for permanent use; “use and occupation” to that used temporarily in the construction of the works. 4. In the absence of qüalification, the general intent of the law that the Commonwealth should acquire an absolute title should prevail, where the words of the instrument will carry a fee. 5. When the canal was abandoned, the land did not revert to the former owner; an absolute and perpetual estate in the land is neither revocable or reversionary.
53 Pa. 482County of Allegheny v. McClung (1867)
Error to the Court of Common Pleas of Allegheny county. This was an action of debt by John McClung against The County of Allegheny ; the writ was issued September 4th 1865. By the Act of March 19th 1813, 6 Sm. L. 377, the Commonwealth gave her consent to the purchase by the United States of a tract of 30 acres of land in the county of Allegheny, now in the borough of Lawrencevillo, “ for a site for a military station and establishment for the ordnance department: Provided, That nothing herein contained shall extend, or be construed to extend, so as to impede or prevent the execution of any process, civil or criminal, under the authority of this state.” An arsenal, in which there was a laboratory, was erected on the land purchased. On the 17th day of September 1862 an explosion took place in the laboratory, by which seventy-two persons were killed. McClung, who was coroner of the county of Allegheny, held an inquest super vision corporum ; -and returned an inquisition finding the cause of the death, &c. The officers of the county having declined to pay the coroner’s fees, this suit was brought for their recovery. The jury found a verdict of $233 for the plaintiff, subject to a reserved question whether under these facts the plaintiff could recover. Afterwards the court (Stowe, A. J.) delivered an opinion, sustaining the plaintiff’s right to recover, and entered judgment, August 6th 1866, for the plaintiff on the verdict. The errors assigned were :— “ The court erred in determining the reserved question in favor of the plaintiff below, and in entering judgment on the verdict. “ The coroner of Allegheny county had no power to hold an inquest, super visum, corporis, within the limits of the Allegheny arsenal ground, the same being within the exclusive jurisdiction of the United States, and his proceedings were altogether without the authority of the law and void.” cited U. S. v. Cornell, 2 Mason 60, 91; Commonwealth v. Young, Brightly 302 ; People v. Godfrey, 17 Johns. 225; U. S. v. Traver, 2 Wh. Cr. Cases 490; People v. Lent, Id. 548 ; U. S. v. Weese, 2 Wallace, Jr. 722.
53 Pa. 485Citizens' Insurance v. McLaughlin (1867)
. 1. A policy of insurance on a patent leather manufactory allowed keeping benzole in no place but in a shed detached from the building; the insured in conducting their business used benzole and carried it as needed into the factory in an open can. Held, not to be a breach of the conditions of the insurance. _ _ 2. Benzole being ordinarily used in such manufacture, the presumption was that it was intended that it might be used as it is ordinarily used in similar factories. 3. In a policy on a “tannery and patent leather manufactory,” it must be intended that there was included whatever, not expressly excepted, is necessary and essential in conducting such a business. _ _ 4. A witness familiar with the mode of using benzole in such factories in Newark, was asked as to the mode, &c., of using benzole in the factories with which he was acquainted. Held, that the question was proper.
53 Pa. 490Stearns v. Merchants' Bank (1867)
This was an action of assumpsit, commenced October 14th 1862, by the Merchants’ Bank of Cleveland against Edward H. Stearns and William R. Stearns, trading as Stearns & Son. The suit was on a promissory note for $288.85, at three months, made by the defendants to Champlin & Co., endorsed by them to George Carey & Co., and by them to the plaintiff.
53 Pa. 500Hughes' Minors' Appeal (1867)
Appeal from the decree of the Orphans’ Court of Allegheny county, confirming the account of George Weyman, guardian, &e., of Wyoming Hughes, Missouri Hughes, Lambert Hughes and Edward McDonald Hughes, minor children of Edward Hughes, deceased. Weyman, the guardian, on the 20th of November 1862, filed his guardianship account, which was confirmed nisi, December 22d following. The account was long, contained numerous items, and extended from November 1851 to the time of filing. It included two general statements — one to July 1856, the other to November 1862 — of receipts and expenditures of what appeared to be the whole of the decedent’s estate, including the widow’s interest. It contained also distinct statements of receipts and expenditures for each minor up to the same periods. The accompanying extract will exhibit the manner in which the account was stated. “Final account of George Weyman, Guardian of Wyoming, Missouri, Lambert, and Edward McDonald Hughes, minor children of Edward Hughes, deceased, late of Allegheny county, state of Pennsylvania. Amount of cash received per account rendered November 1851 - $3343.10 Amount of cash paid for expense account, as per account rendered November 1851, $1052.90 Amount of cash paid widow, as per account rendered November 1851 - 868A0 Amount of cash paid to children, as per account rendered November 1851 838.02 Amount of balance per account 583.48 , 3343.10 $9246.40 Amount of cash received, per account rendered July 1856 - - - $2415.02 Amount of cash paid out, per account rendered July 1856 - 2277.12 Widow’s one-third - 1188.56* Wyoming’s one-quarter - 1138.56* Missouri’s one-quarter - 1138.56* Lambert’s one-quarter - - - - 1138.56* Edward McD.’s one-quarter - --$9246.40 follows: — Wyoming’s George Weyman charges himself as account rendered July 1856. $145.87 To amount of balance from first account 1138.56 “ “ “ “ “ second “ --- $1284.43* George Weyman, guardian, craves credit as follows:— By amount of cash paid to Wyoming, per account rendered July 1856 - - $805.56 Balance to Wyoming’s credit - - 478.87* —---$1284.43*” The account further showed, due November 1862:— From Wyoming ------- $448.32 “ Missouri.....- - - 360.57 To Lambert ------- - 79.56 “ Edward.......- 254.73 Exceptions to the account on behalf of the minors were filed, December 31st 1862; the evidence before the auditor related only to the following:— 1. That the guardian had not charged himself with the rent for eight years of a brewery and two acres of land, property of the minors in Pittsburgh. 2. That he was chargeable with the loss in value of the improvements on the premises and dilapidation, on account of his refusal to rent them. 5. That he should be charged with money due by A. & A. Wood to said estate. 7. That the account is irregular, and should be itemized from the first account and a general exhibit of the whole made. The account and exceptions were referred to B. F. Lucas, Esq., as auditor, “to restate the account and report thereon.” The auditor reported that shortly after the guardian’s appointment he had rented the brewery to A. & A. Wood for four years, ending October 1st 1856, at a rent averaging $1350 per annum. The Woods had failed, and for eighteen months or more of their lease had been doing business as agents for others ; they removed without paying the rent for the last two quarters ; no effort was made to collect it until January 28th 1857, when a suit was brought against them, which had not been prosecuted to judgment. The Woods left the property in so bad repair that it was difficult to rent it at all, and impossible to lease it for nearly the rent which has been paid by them. Rhodes & Verner about that time offered to rent the brewery for a term of seven or ten years, to put the property in repair and pay a small money rent. The guardian declined the offer, because they would not agree to leave the property in as good a condition as they were to put it in. W. H. Garrard offered to rent the brewery for from $600 to $800, which amount did not clearly appear; this offer was declined. ’The guardian made efforts to lease the property at a high rent from the expiration of the Woods’ lease. He was advised by his counsel Mr. Wood to lease it for the best price he could get. The auditor surcharged the accountant with the two quarters’ rent due from Woods, 'with rent for four years and a half, at $600 per annum, as the amount which would have been received under the offer of Garrard also with interest upon the rent from both these sources, to December 31st 1862 ; he also charged him with interest on money in his hands beyond disbursements up to the same date. He also stated separate accounts between the guardian and the several wards, and found that there was due to Wyoming Hughes, - $556.10 Missouri Hughes, ... - 617.86 Lambert Hughes, - - - 1,018.00 Edward McD. Hughes, - 1 - 1,311.17 The wards excepted to the report of the auditor as allowing the guardian too much compensation; not charging him with enough interest, and not charging him with what would have been received in money and improvements under the offer of Rhodes & Werner. The guardian excepted for charging him with rent for the full term of the Woods and with rents subsequent to its end ; for not allowing certain items of credit in his account and for charging him with interest. The Orphans’ Court, October 6th 1866, overruled the exceptions of the wards, sustained the exceptions of the guardian, confirmed his account and directed the exceptants to pay the costs. The wards appealed and assigned for error the decree of the Orphans’ Court overruling their exceptions and confirming the guardian’s account. cited Landis v. Scott, 8 Casey 503 ; Yeager’s Appeal, 10 Id. 175 ; Carskadden v. McGhee, 7 W. & S. 140; Guthrie’s Appeal, 1 Wright 1; 2 Kent’s Com. 229 ; Konigmacher v. Kimmel, 1 Penna. R. 213; Moore’s Appeal, 10 Barr 438.
53 Pa. 505Torrance v. Torrance (1867)
1. The Supreme Court will not reverse on a question not fairly raised, although it may be covered by a point put in the general terms, that “ under the evidence the plaintiff cannot recover.” 2. A testator directed that legacies, after exhausting the personalty, should be charged on land devised. The' executor having a balance in his hands, paid the legacies in part to more than the amount of this balance: a judgment had been recovered for one legacy. Without showing other liabilities on the land than the unpaid legacies, he obtained from the Orphans’ Court an order to sell the land for payment of the judgment and such other debts as were an encumbrance. Held, that the sale was void for want of jurisdiction and the purchaser took no title. 3. Want of jurisdiction in the Orphans’ Court is as fatal to its proceedings as to those of any other court. 4. The purchaser was bound to look beyond the entry of the clerk, that the petition was for payment of debts; the facts set out in the petition determine the jurisdiction. 5. An executor has no authority to apply for a sale of land to pay legacies under the will of his testator. 6. A man’s land cannot be sold in a proceeding against another, when his estate is not condemned and he not made a party and the party applying has no authority to demand a sale.
53 Pa. 512Pittsburgh, Fort Wayne & Chicago Railway Co. v. Hinds (1867)
1. It is not more the duty of railroad companies to transport their passengers safely, than it is of the passengers to behave in a quiet and orderly manner. 2. There is no such privity between a railroad company and a passenger as to make them liable for that passenger’s injury to another, upon the principle of respondeat superior. 3. A train having stopped at a regular station, a riotous crowd rushed upon the cars in such numbers as to defy the power of the conductor to resist. They commenced a fight in the cars, in which the plaintiff was injured. Held, that the fact that the conductor knew that the crowd were improper persons was immaterial. 4. It would be improper for the conductor voluntarily to admit such persons upon the train. 5. It is the duty of railroad companies to provide men enough for the ordinary demands of transportation, but not to provide a police force adequate for such emergencies. 6. Passengers take the risks of injury from mobs by the way, and cannot throw them upon the transporter. 7. Allowing undue numbers to enter a car is a great wrong, and in proper cases would be punished. 8. A conductor of a train has large powers at his disposal to preserve order in the car and expel disturbers of the peace. Ilis official character is a power. lie may stop the train, call to his assistance the fireman and all the brakesmen and such passengers as are willing to help. Until he puts forth these forces he has no right to abandon j;he conflict. 9. A conductor falls far short of his duty when he keeps his train in motion, or is busy in collecting fare in one car whilst a general fight is raging in another. 10. Calling on the passengers to throw the fighters out is riot enough, he should lead the way, stop the train, and expel the rioters, or demonstrate by an earnest experiment that it was impossible.