73 Pa.

Volume 73 — Pennsylvania State Reports

76 opinions

73 Pa. 13Imperial Fire Insurance v. Murray (1873)
Writs of error to the Court of Common Pleas of Columbia county: Of September Term 1872, No. 2 and 5. The cases in which these writs of error were taken, were tried together in the court below, and heard together on error in the Supreme Court. Both actions were brought to September Term 1870 of the court below, by William Murray, Richard. Winlack and Walter Randall, trading as Murray, Winlack & Randall, on two policies of insurance: the first against The Imperial Eire Insurance Company; the second against The North British and Mercantile Insurance Company. They were tried June 13th 1871, before Elwell, P. J. Each policy was dated September 18th 1869, for “ $2500 on frame coal-breaker structure, schutes, plane, trestling, engine and boiler-house, and all wood work connected ; $2500 on breaker engine, rollers, screens, belts, plates, pulleys, shafting and all connected machinery contained in breaker structure, situate in Locust Mountain, in Conyngham township, Columbia county. This to insure all their working interest. Rate 3 per cent.; premium $150 ; term one year from September 17th 1869. Also another policy of $5000.” The foregoing was written in the blank of the printed policy. Richard Winlack, one of the plaintiffs, testified: “ Mr. Silly-man represented the defendants, and came to me to get the insurances; the office was in Pottsville; E. E. Bodey represented both companies; the fire occurred January 19th 1870, in the night; I didn’t know it till the 20th, and on the morning of the 21st I went up to the breaker; on the same day I notified Mr. Bodey; I told him the property was destroyed, and he should notify his companies at once; he said he would; I took the notices to Mr. Bodey, he read them over, and said ‘ The papers are all right.’ This was the date of first paper; I executed the paper in duplicate, one copy to Mr. Bodey, and one to be forwarded to the company. About sixty days after the first, I received a letter from Mr. Bodey. I took the letter to Mr. Kaercher, and he and I went to Mr. Bodey, to see what papers in addition he wanted; he gave a memorandum of what he wanted; the papers were made out, and I took them to Mr. Bodey, and he said he would forward them to the company the same day. Duplicates were mailed to the company the same day. The first notice was a verbal notice; the first written notice was on January 24th 1870 ; gave no other notice until March; Bodey requested that the notice of March be given; he said the papers were all right; he told me he was agent for both companies to effect insurances. I made my application to Bodey, and got the policies; they were handed to me by Mr. Sillyman; I had nothing direct to do with Bodey in effecting the insurances.” The following letters were given in evidence by the plaintiffs:— “Pottsville, January,25th 1870. “ Imperial Eire Insurance Company of London; Office No. 40 Pine street, New York. “ E. M. Archibald, Esq. “ Dear Sir: — Please, find enclosed ;a copy of the notice and proof of loss this day served upon the agent of the company, E. E. Bodey, by the insured, Messrs. Murray, Winlack & Randall, with instructions to forward the same to the company. Should any further notice or proof be required the insured will cheerfully furnish the same if desired by the company. Please acknowledge receipt of this and enclosure and oblige “ Yours respectfully, “ Geo. R. Kaercher, “ Att’y for Murray, Winlack & Randall.” A letter precisely similar was addressed to the New York agent of the North British and Mercantile Insurance Company. “Pottsville, Pa., March 15th 1870. “ Messrs. Murray, Winlack & Randall: “ Gentlemen: — Your papers purporting to be proofs of loss under policy No. 36 in the Imperial Eire Insurance Company of London, and No. 506 in the North British and Mercantile Insurance Company, are entirely incorrect and insufficient, and are not in pursuance of your policies, and are not in accordance with the conditions thereof. We call your attention to said policies, and to the printed conditions in relation to loss, &c. Until you comply with such conditions in this respect I can give you no answer as to what our course of action will be. Yours truly, “ E. E. Bodey, “ Agent for N. Bt. Mercantile and Imp. Eire Ins. Cos.” “Pottsville, March 19th 1870. “Bear Sir: — We have this day furnished Mr. E. E. Bodey, agent of the company at Pottsville, additional information concerning our loss by fire of our working interest insured under policy No. 506, with directions to forward the same to the company. It was only yesterday that we ascertained, through Mr. Bodey’s letter to us, that the company desired any further information to determine ‘ its course of action,’ though we signified our willingness to comply with any requirements the company might desire, in our communication of January 25th 1870; besides, the same statement was made to Mr. Bodey, the agent, at the time the proofs were handed to him, when he, after examination of them, replied that they were sufficient and correct. Hoping that in justice to all parties concerned the company will speedily determine upon its course of action, we are very respectfully, Murray, Winlack & Randall.” Addressed to each of the New York agents. Conrad Sillyman testified: “ I was canvasser for insurance for Mr. Bodey; he was agent for the companies; I procured Murray, Winlack & Randall necessary papers; they were executed by Bodey; he filled the policies; the applications were filed in his office; kept them as references; were not sent abroad as I know of; Bodey paid the losses when they occurred, but not in this case.” Richard Winlack further testified: “ I called with Mr. Kaercher on Mr. Bodey, before tbe first notice, and asked for tbe printed form of the policies, to put it in the notice; he said it was not necessary to put it in only the written portion of the policies, and after they were made out showed them to Bodey. He said they were al'1 right.” The plaintiffs, under objection and exception, gave in evidence the following written notices, being those referred to in the testimony of Richard Winlack. The notice was addressed to each of the insurance companies. It set out the issuing of the policy in each case to the plaintiffs by the company, “ countersigned by their agent at Pottsville; the written body of said policy, with its immediate context, is as below specified, said insurance terminating on the 17th day of September, A. D. 1870, at 12 o’clock, noon.” * * * “ By this policy of insurance the North British and Mercantile Insurance Company, in consideration of the receipt of one hundred and fifty dollars, do insure Murray, Winlack & Randall to the'amount of five thousand dollars, as follows, viz.: $2500 on frame coal-breaker structure, schutes, plane, trestling, engine and boiler-house, and all wood work connected; $2500 on breaker engine, rollers, screens, belts,. plates, pulleys, shafting, and all connected machinery, all contained in breaker structure, situate at the Locust Mountain Colliery, Conyngham township, Columbia county, Penna. This insurance to cover their working interest in the above-insured property. $5000, similar insurance.” “That in addition to the amount covered by the above policy there was other insurance made thereon to the amount of $5000, as specified in the accompanying schedule, showing the name of such company and the written portion of said policy, besides which deponents had no insurance thereon. That on the 19th day of January, A. d. 1870, a fire occurred by which the property insured was injured and destroyed to the amount of ten thousand dollars and upwards, which deponents declare to be a faithful and just and true account of their loss as far as they have been able to ascertain the same. “ That the actual cash value of the property so insured amounted to the sum of ten thousand dollars and upwards at the time immediately preceding the fire. That the character and nature of the property so destroyed is set forth in the above-mentioned part of said policy. “ That the property insured belonged and was leased to said Murray, Winlack & Randall, and that the property above insured, and which was destroyed, was used in the mining and preparation of anthracite coal for market, and for no other purpose whatever. “ That the fire originated from causes unknown to deponents, and, after diligent inquiry, they have been unable to ascertain the cause of said fire. “ That the amount of their claims against The North British and Mercantile Insurance Company is five thousand dollars each, and the said deponents further declare that the said fire did not originate by any act, design or procurement on their part, or in consequence of any fraud, or evil practice, done, or suffered by them, and nothing has been done by or with their privity or consent, to violate the conditions of insurance, or render void the policy aforesaid. Sworn and subscribed before me, the 1 William Murray, 24th day of January A. D. 1870. j R. Winlack.” * * * * Accompanying the foregoing was the affidavit of a resident “most contiguous” to the property insured, that he was not interested as creditor, &c., and that he believed the loss sustained by 'the plaintiffs was “$10,000 and upwards.” Also, a schedule of the additional insurance by the other company. ■ The notice of March 18th, referred to in Winlaek’s testimony, set out the insurance, the fire, &c., and stated that full proofs of the loss and circumstances of the fire had been furnished to Bodey January 19th 1870, and a copy forwarded to the company; that on the 17th of March the plaintiffs received a letter from Bodey requiring further information, and the nature of such information “having been this day made .known by the said E. Bodey,” the plaintiffs presented additional proofs, viz.: — “ That the real estate upon which the property insured was erected, is owned by the Locust Mountain Coal and Iron Company, that a leasehold estate therein was conveyed by the said company to the Mammoth Vein Consolidated Coal Company, and that the said leasehold estate became vested in W. W. Goddard and O. Ditson, that the interest of O. Ditson became vested in J. W. Draper, and that a sub-lease was made by the said Goddard & Draper to Murray, Winlack & Randall; that the value of the breaker, engines, improvements (their working interest in which was insured) was between thirty-five and forty thousand dollars; that the estate of Goddard & Draper was to continue until December 31st 1874; that the sublease of Murray, Winlack & Randall was to continue until March 31st 1870, with privilege of renewal for one year from that date, in default of which renewal the said Goddard & Draper were to pay to the said Murray, Winlack & Randall the amount expended by them in and upon said breaker, amounting to $7500; that the said improvements and addition to said breaker had been made at the time of said insurance and are part of the property, the working interest therein of which was insured by said policy ; * * * that the whole of the property mentioned in the above policy (worth between $35,000 and $40,000) was destroyed by said fire, and the entire working interest of the said Murray, Winlack & Randall was destroyed; that the actual cash value of the working interest so insured and destroyed amounted to fifteen thousand dollars and upwards at the time immediately preceding the fire; that the amount of the claim of Murray, Winlack & Randall against the Imperial Eire Insurance Company, of London, is five thousand dollars.” The plaintiffs gave in evidence lease dated in 1864, from the Locust Mountain Coal and Iron Company to the Mammoth Vein Consolidated Coal Company, by which the lessors granted, &c., to the lessees “ a certain coal breaker, with its appurtenances, situate at the colliery known as the Big Run Colliery, * * * steam-engine, boilers, pumping and' hoisting machinery and apparatus at the slope known as the ‘Mammoth Vein,’ and the house covering said steam-engine, &c.,” and other colliery improvements; the lessors also leased to the lessees “ for a term commencing at the date of this lease, and terminating on the 31st of December 1874, the right, &c., to mine and take away coal as their own property,” in the manner described in the lease, the lessees to pay 25 cents per ton; the lessees to keep the breaker, including the engine and fixtures, insured for not less than $10,000, and the engine-house and machinery therein insured for not less than $5000, the payment, in case of loss, to be made to the lessors ; the breaker and fixtures belonging to lessees to remain on the premises until the end of the term, and be kept in repair by the lessees ; at the end of the term to be valued, and if not taken at the valuation by the lessors to be removed by the lessees. Plaintiffs gave in evidence sheriff’s sale November ■ 25th 1867, under an execution against the Mammoth Vein Company of all their leasehold interest, including fixtures, to William W. Goddard and Oliver W. Ditson. Also, lease W. W. Goddard and John W. Draper to Winlack, Murray & Randall, the plaintiffs, dated April 1st 1868, granting and demising the premises held under the foregoing lease, and sold by the sheriff, as above stated, to Goddard & Ditson, the interest of Oliver Ditson in which has since become vested in the said John W. Draper.. Also, the •right to use the machinery, fixtures, &c., erected at the colliery until March 31st 1870; the plaintiffs to pay the rent reserved by the Locust Mountain Company, and an additional rent of 20 cents per ton on coal mined; to keep the covenants, &c., to be kept by the Mammoth Vein Company; to keep the movable personal property in good condition, and deliver the possession to the lessors at the end of the term in good condition, and if it should “be destroyed by accident, or otherwise, to replace the same with others of equal value,” &e., and to keep the improvements, &c., in good order; with right of re-entry by lessors on breach of condition, &c. The plaintiffs gave in evidence, under objection and exception, an agreement dated December 9th 1868, between J. W. Draper and plaintiffs, reciting that plaintiffs were working the colliery under an agreement with Goddard & Ditson, and contemplated putting in a steam-pump, and agreeing that plaintiffs should be allowed 15 cents per ton on all coal mined until the pump should be paid for, “ from after the first of January 1869, the cost not to exceed $5000at the end of the agreement with Goddard & Ditson the plaintiffs to have the privilege of removal for one year, “if not so allowed,” then all permanent improvements by the plaintiffs to be paid for by Goddard & Ditson, who were to have the privilege of selling the colliery at any time by paying the plaintiffs for the improvements. Plaintiffs gave evidence tending to show that after the. sheriff’s sale Goddard & Draper had the control of the colliery. Winlaek testified that Ditson was never at the colliery, and made no claim on plaintiffs; they had always paid rent either to Draper or to an agent of Draper & Goddard. The plaintiffs shipped coal till December 18th 1869; they were not working the pump when the breaker was burned; the slope had caved in when the machinery was burned. Plaintiffs gave evidence that the amount expended by them for improvements was $8200. Under objection and exception Winlaek testified: “the market value of our working interest at the time of the fire, with the privilege of removal for one year, was between $20,000 and $30,000and that it would have cost not less than $30,000 to restore it as it was before the fire; the breaker at the time of the fire was worth $18,000 or $20,000 ; plaintiffs did not apply for a renewal of the lease; nor was it renewed; they had possession until the time of the fire; had a watchman there and afterwards, until the 1st of April; plaintiffs were sold out by the sheriff; until then they had houses, &c. Before the fire the slope had fallen in; it was not opened; it would cost about $5000 to open it; plaintiffs made no effort to open it; it would be useless to open the slope unless they had a breaker; it would not pay to open it for the property in the mines, unless they could get out the coal. Plaintiffs gave evidence also of the character and extent of the injury by the falling in of the slope, and of the expense and time necessary to open it. The defendants gave in evidence a judgment against the plaintiffs on January 12th 1870, for $3259, in favor of a trustee for wages, under which their personal property was sold for.$2041.75. They gave in evidence the deposition. of Draper, in which he said that the plaintiffs gave up the possession in January 1870; that the permanent improvements belonged to the Locust Mountain Company, having been erected before plaintiffs took possession, including breaker and slope, house and ordinary machinery about it. Plaintiffs did not remain in possession until tlie end of tbeir lease; the slope fell in about the last of December 1869, and that destroyed the colliery; deponent gave up the colliery to the Locust Mountain Company; plaintiffs did not ask to renew the lease under its provisions, and gave as reasons for abandoning it, that they could not put in the money necessary to re-open it. “ The working interest in the breaker and fixtures. after the slope fell in, and before it was re-opened, was worth nothing.” The plaintiffs never surrendered the sublease formally, and did not leave possession till the breaker was burned. Winlack said plaintiffs would have to give up the place, if they could not get money to re-open it. The possession plaintiffs had from the time the slope fell in till the fire was a nominal possession, and they had not given up possession,-nor.had Goddard & Draper given it up. The defendants gave evidence that it would cost- $10,000 or more to repair the slope, and that it would occupy twelve months to. open it. The defendants offered to prove that in the spring of 1870, before the institution of these suits, The Locust Mountain Company took possession of the demised premises ; had continued in possession since; had cancelled the lease to Mammoth Vein Company with the consent of Goddard & Draper, and promised to release all the covenants in the lease, and any right of action thereon. On objection by the plaintiffs the offer was rejected and a bill of exceptions sealed for defendents. The evidence was conflicting as to the cost of repairing the slope and also as to the time that it would take to do the work. The defendants submitted a number of 'points, which with their answers follow the charge of the court. The court charged:— * * * [“ By the terms of the policies it was incumbent upon the assured to give immediate notice of the loss. “ Was this condition performed ? If not, was it waived by the defendants? Were the particulars of loss and other matters of which the «plaintiffs were required to give notice, furnished to the defendants, or was more full notice waived by them ? If such notice was not given nor waived the plaintiffs .are not entitled to recover. “If, however, you believe from the evidence that the fire occurred at night on the 19th of January 1870, and that the plaintiffs did not hear of if till some time the next day, and that on the 21st one of the plaintiffs went to ascertain the extent of the loss, and that on the next day he notified the local agent of the companies, E. E. Bodey, whose name appears upon the policies as such agent, and if on the 24th of January written notices were served upon him, which he pronounced right, duplicates whereof were forwarded to the general offices of the companies, and if proofs of loss were served upon the agent the next day, and if no notice was given to the plaintiffs Or their attorney of any defect in the notices until the 15th day of March, at which time it was complained that the notices were insufficient, and that action would not be taken until they were made correct, and if the plaintiffs then applied to know wherein they were deficient and what further was required, to which no reply was made, the jury may consider such facts in determining whether the defendants waived further notice than that received. “ If the agent informed the plaintiffs that the notices were right, and the companies were silent for nearly two months and complained only in general terms, it is some evidence that they did not insist upon an objection that the notice was not in time. “ When the insured is desirous to comply with the contract in regard to notice, fairness towards him required that the companies should not mislead him by declaring that his notices were right, and afterwards be allowed to make defence and refuse to pay because they were wrong or not in time, especially if accompanied with an offer to perfect them at any time on notice of a defect. “We refer the question of waiver as to time and particulars of loss to your consideration, under the evidence.] “ In order to understand the rights of the parties, it is necessary to ascertain what insurable interest the plaintiffs had in the property insured, at the time of effecting these insurances, and at the time of the fire. “ On the 1st of June 1869, the Locust Mountain Coal Company executed a lease to the Mammoth Vein Consolidated Coal Company of this coal breaker and other improvements mentioned, together with the colliery, for the term of ten years. By the terms of this lease' the lessee was bound to keep the demised premises insured to the amount of fifteen thousand dollars, and was also bound to pay a yearly rent upon not less than 40,000 tons of coal, and to keep the improvements, machinery, fixtures, &c., in good repair. On the 25th of November 1867, the title of the lessees passed by sheriff’s sale to W. W. Goddard and 0. W. Ditson. On the 1st of April 1868, W. W. Goddard and J. W. Draper executed a lease to the plaintiffs of this property, until the 31st of March 1870, the lessees agreeing to pay as rent certain sums per ton for all coal mined, and to perform all the covenants of the original lease. [In this lease it is recited that the interest of O. W. Ditson had become vested in J. W. Draper. If he put the plaintiffs in possession, and received rents,'and the other rents were paid to the agent of Goddard & Draper, Ditson having made no claim, the jury may, if they think the facts warrant it, conclude in connection with the testimony of Draper himself, that he had the interest claimed by. him.] “ On the 9th of December 1868, J. W. Draper entered into a further agreement with the plaintiffs giving, as we construe the writing, the right to the plaintiffs to require a renewal for another year. Prior to the date of the policies the plaintiffs had, as they allege, made large improvements about the colliery, in trestling, constructing railroads and putting in screens, rolls, &c., to an amount of nearly $8000. Considerable evidence has been' given upon this subject, from which the amount of expenditures, as far as it is material, can be ascertained. “ When the insurances in question were applied for and effected the colliery was in working order, and it would seem the plaintiffs intended to have their lease renewed. But on the 29th of December 1869, the slope fell in and the work was stopped, and remained so until the fire on the 19th of January. “ Much evidence has been given upon the subject of the condition of the mines and the length of time it would take to restore them to working order. The estimates of the witnesses are wide apart — varying from twenty-five days to one year. It is claimed by the defendants that although the contract of insurance was for one year from the 18th of September 1869, that .the plaintiffs had in fact but the interest of a tenant for a year, and that such interest expired on the 81st of March 1870.; and further, that this interest, at the time of the fife, was of no value. On the part of the plaintiffs it is claimed that the insurance was upon specific property, in which they had an insurable interest, not only merely as tenants, having the right to use the property during their present term, but that they had a right to have it renewed ; that they were bound to keep it insured, and also to maintain and keep the property in good order and condition at their own expense, and also to pay the royalty or rent upon 40,000 tons of coal, and that their interest in the breaker and other property described, was more than equal to the whole amount of insurance in both policies. [“ The term ‘working interest,’ used in these policies, does not appear tobe a technical term. What was intended by it? We think the parties intended that it should, and that it does comprehend the entire insurable interest which the plaintiffs had in the property, under the provisions of the lease to them from Goddard & Draper, and the further agreement, signed by Draper, of the 9th of December' 1868. They were liable by the terms of their lease,’ and under the law, to surrender the premises at the end of their lease, having kept and maintained the improvements, machinery and fixtures in good order, and in case of their destruction, to replace them. They were also bound to keep upon it an insurance of $15,000. Their insurable interest in the demised premises was, therefore, to the extent of the value of the property, which they were bound to replace. “ The plaintiffs were bound to pay a yearly rent upon not less than 40,000 tons of coal, and were also hound to perform and keep all the covenants of the original lease from the Locust Mountain Coal and Iron Company; they, therefore, had an insurable interest in the demised premises to the extent of their liabilities upon their covenants in these respects. “ If, therefore, the jury believe from the evidence that it would have cost the plaintiffs ten thousand dollars, or upwards, to have replaced the insured buildings and property destroyed by fire in as good order and condition as before, at the date of the lease, then the plaintiffs are entitled to recover against each of the defendants the sum of five thousand dollars, with interest from the time the same was payable by the terms of the policies read in your hearing. But if you find their damages would be less than ten thousand dollars, such damage is to be equally divided between the defendants.] You will understand that this is subject to the instructions before given upon the question of notice and the question of fraud hereafter submitted.” The defendants’ points and their answers were:— 1. The plaintiffs in these cases held the leasehold premises under and by virtue of their lease from Goddard & Draper, bearing date the 1st day of April 1868, which expired on the 31st of March 1870 ; their interest in the breaker and machinery belonging thereto, consisted only in the right to occupy and use the same for the purpose of preparing coal, which might be taken from the demised premises. Answer: “ We decline to answer as requested.” 2. The policies of insurance effected on the 17th day of September 1869, to run until the 17th day of September 1870, upon the coal breaker, the breaker engines and machinery mentioned and described in the policies, which were, by the terms thereof, to cover the working interest in the property mentioned in the policies, can only apply to the breaker and machinery mentioned in said policies, and the working interest thereby insured embraces nothing more than the right of the plaintiffs to use the breaker during the unexpired term of their lease in preparing coal mined from the demised premises. Answer: “ This point is not affirmed. The term 1 working interest,’ under the circumstances of the case, covers all the interest which the plaintiffs had in the property, including both its use and their liabilities in regard to it as stated in the general charge.” 3. Under the evidence in the case, the plaintiffs had no insurable interest in the property mentioned in the said policies of insurance, after the 31st day of March 1870, and if the jury believe that the slope fell in on the 24th day of December, A. D. 1869, and by reason thereof the plaintiffs had no use for that breaker, from that time until the 31st day of March 1870, the interest insured was of rio value to them, and the verdicts must be for the defendants. 4. As the insurances in these cases were effected upon the breaker and the property described in the said policies,, which consisted of only a portion of the property leased to the plaintiffs, the insurance cannot be construed to cover any liability which the plaintiffs were subject to by reason of any of the covenants which they had undertaken to perform. And whatever covenants and obligations they might have been under to rebuild the breaker cannot affect the measure of damages, if any, in ■ these cases, and are to be disregarded by the jury in arriving at their verdict. Both, these points were refused.. 5. The improvements put upon the breaker and demised premises, claimed by the plaintiffs to have amounted to $7000 and upwards, and made in pursuance of the contract of December 1868, which contract provided that their landlords should pay the actual value thereof, were, under said agreement, the property of said landlords, and the plaintiffs had no other interest in them except their use thereof, until the expiration of their lease, and the cost to the plaintiffs of said improvements cannot be taken into consideration by the jury in arriving at their verdicts. Answer: “ The jury may consider the improvements mentioned in this point in so far as they affect the value of the working interest of plaintiffs, but not as a distinct item, to be compensated for under the policies.” 6. Inasmuch as the plaintiffs did not renew their lease for an- * other year after the expiration of the term expiring on the 31st day of March 1870, and made no effort so to do, their term as tenants expired on the 31st day of March 1870, and the jury in estimating the damage to the plaintiffs, if any, are to take into, consideration only the working interest of the plaintiffs from the time of the fire until the 31st day of March 1870, and if they find that within that period of time the plaintiffs had no coal to- prepare over that breaker, their verdict must be for the defendants. This point was refused. 7. Where lessees effect an insurance of their working interest in a breaker and the machinery belonging thereto, which are only part of the demised premises, consisting of a colliery and the right to mine coal, held under a lease for a term of years, and the breaker and machinery are destroyed by fire during the term, the measure of damages is not to be ascertained by proof of the value of the unexpired term to the tenant, but by ascertaining what proportion the value of the working interest in the property insured' and destroyed bears to the value of the whole premises devised, and the proportion thus ascertained constitutes the true measure of damages. Answer: “ This is correct as a general rule, but is no.t applicable to this case, where there are duties and liabilities beyond the mere use of the structure insured.” 8. - The plaintiffs having produced no evidence by which the damages can be so assessed by the jury, they are not entitled to recover. 9. If the jury believe that it would have required several months to rebuild the slope and to remove the water from the mines, and that the expense thereof, together with the rentals at 45 cents per ton for the prepared coal that they might have mined, would have equalled or exceeded the value of thé unexpired term of the lease, the verdict of the jury must be for the defendants. 10. If the jury believe, under all the evidence of the case, that there was no value in the plaintiffs’ working interest in the property- insured from the time when the slope fell in until the, expiration of the lease on the 31st of March 1870, the verdict of the jury must be for the defendants. 11. If the jury believe that from the time the slope fell in the plaintiffs did not intend to re-open it and work the colliery, there was no value in the working interest insured, and the plaintiffs are therefore not entitled to recover. These four points were refused. 12. The policies of insurance cover only the working interest of the plaintiffs in the properties described in said policies, and all evidence relating to expenditures made by plaintiffs in improvements, is to be excluded by the jury in their estimate of the plaintiffs’ loss, if any, resulting from the fire. Answer: “We have already instructed upon the matters here mentioned. The value of the improvements made by-the plaintiffs is not to be considered otherwise than as forming part of the property which the plaintiffs were bound to keep in repair, and surrender up at the expiration of the term.” 13. The evidence having shown that a portion of the property insured, consisting of the trestling, the iron thereon, the boilers and engine, screens and rollers, were not destroyed, but only partially injured, the plaintiffs, by the terms of the North British insurance policy, were bound to make an inventory, naming the quantity and cost of each article, and appraise the damage done to each article, and having failed to make such appraisement, there can be no recovery against such company, and the verdict of the jury must be for the said defendants. Answer: “If the North British Insurance Company had notice of the fire, as required by the policy, or' if a more particular notice was waived, it was as much the business of the company to move in the matter of an appraisement of the property damaged, but not wholly destroyed, as it was of the plaintiffs. “ The insurance was upon specific property, partaking of the character of realty — a coal breaker and fixtures ; the clause in the policy relating to personal property damaged does not apply, and the plaintiffs were not bound to have an inventory and appraisement and furnished, with the truth of loss. Notice that the property was destroyed by fire, if that was substantially correct, was all that was required.” 14. The plaintiffs having represented in their application that their lease had to run one year from the 1st day of March 1870, such representation being material to the value of the property insured and a warranty, and being shown by the evidence in the case to be a misrepresentation, the policies are void, and the verdicts must be for the defendants. Answer: “ The plaintiffs made their agreement on the 9th of December 1869, with Draper, in regard to a renewal of their lease. Did they believe at the time of effecting the insurance that this gave them the right to hold the property for another year ? If they so believed and fairly represented, but were mistaken, it would not defeat their action. It was not such a statement of a material fact as amounted to a warranty. If, however, the representation was fraudulent, it would render the contract void, and there could be no recovery.” 15. If these policies of insurance cover the liability of the said lessees to repair and renew the property demised, and to mine 40,000 tons of coal during each year of the said term, or to pay therefor, and there being no evidence that said covenants were communicated to the said insurance companies when the said policies were applied for, then, by reason of such non-communication, the plaintiffs cannot recover upon the said policies. Answer: “ The entire interest of the plaintiffs in the insured property is covered by the terms used in the policies. The defendants were informed by the application that the plaintiffs held the property as tenants, under a lease. It does not appear that they required to be informed as to the covenants and conditions contained therein. The policies are, therefore, binding, although the defendants did not know the full extent of the interest of plaintiffs under the lease. Bearing in mind the law as we have given it to you in the' general charge, and also in answer to these points, you will ascertain the facts for yourselves, under the testimony. If you find that the plaintiffs have failed to comply with the conditions in- regard to notice, and the defendants did not waive them, or, if the plaintiffs were guilty of a fraudulent representation in regard to the time their lease had to run, the defendants are entitled to your verdict. If, however, upon the principles before laid down, you find that the plaintiffs are entitled to recover, you will ascertain their actual damage within the sum of ten thousand dollars, and divide the amount equally between the defendants, rendering separate verdicts in each case. The verdict was for the plaintiffs in each case for $5312.50. The defendants took out writs of error and assigned twenty-three errors. 1-5. The rulings on the offers of evidence. 6-8. The parts of the charge in brackets. 9-15. The answers to the defendants’ points.
73 Pa. 29Danville, Hazleton & Wilkesbarre Railroad v. Commonwealth (1873)
1. The rights, &c., enjoyed by the Sunbury and Erie and the Pennsylvania Railroad Companies “ for settling and obtaining the right of way,” do not include the mode of settling differences between township authorities and a railroad company which had taken possession of a public road. 2. Such settlement and acquisition relates to private property, which under the Constitution cannot be taken by a corporation without compensation. 3. An act gave a railroad company power to construct its railroad on a public road, and provided that if in its construction it should be necessary to change a public road, &c._, they should “cause the same to be reconstructed in the most favorable location and in as perfect a manner as the original road.” This does not require that the making of the new road shall precede the occupying of the old road. 4. The legislature may authorize building a railroad on a public road. 5. A railroad company occupying a portion of a public road not exceeding the extent allowed by law, and obstructing public travel on such portion, is not guilty of nuisance.
73 Pa. 39Gass's Appeal (1873)
1. A German Reformed congregation and a Lutheran congregation built a church together, in which by their articles of association “ Divine Service ” only was to be held ; for many years there were no meetings in it except for public worship: Held, under the facts in this case, Sabbath Schools were not included in “ Divine Service.’’’ 2. The meaning of “ Divine Service,” like a word of art, is to be determined by the sense in which it was used by the parties. 3. Courts must interpret written instruments, but they follow the meaning attributed to the terms by those whose custom it is to use them. 4. "Where a contract may have two interpretations courts will follow that which the parties have put upon it and acted upon. 5. Two congregations built a church for their joint use in Divine Service; against the protest of one and their articles of association,the other introduced a Sabbath School into the church. Held, that equity had jurisdiction to restrain the latter congregation. 6. Parties in such case are not governed by the ordinary rules of a tenancy in common.
73 Pa. 49Vought v. Sober (1873)
This was an action of debt, commenced October 29th 1868, by John Nought against Isaac J. Sober. The cause of action was this note:— “100 Six months after date, for value received, I promise to pay to the order of Wm. M. Ellis one hundred dollars, without defalcation or stay of execution. Dated, Paxinos, June 8th 1867. Isaac J. Sober. Endorsed — Wm.
73 Pa. 52McNinch v. Trego (1873)
1. J. and E., partners, purchased two lots which were paid for by firm goods. The deed was made to I. He, his widow and a minor child, continued in possession for more than seven years: and the widow made improvements with the knowledge of E., who afterwards recovered in ejectment against a tenant of the child. The child brought ejectment against E. Held, that without an acknowledgment in writing of a trust in E., or notice of his claim, the limitation in the Act of April 22d 1856, sect. 6, barred E., although in possession at the issuing of the writ. 2. When the cestui que trust is in possession during the running of the statute, the limitation does not apply, the possession being a continued claim of the trust. 3. Clarke v. Trindle, 2 P. P. Smith 492, recognised.
73 Pa. 59Bank of Commerce's Appeal (1873)
1. The members of a building association were entitled to a loan on each share. One assigned his stock in the association and delivered the certificate to a bank for a loan, with power of attorney to transfer. He borrowed from the association the full amount to which he was entitled and transferred his stock to it. the bank still holding the certificate. The stock was not transferred to the bank on the books of the association — there was no provision in the charter for such transfer. The association expired and the assets were distributed by the officers amongst the stockholders shown by their books, including the association, without notice from the bank. Held, that the officers were not liable to the bank on the certificates held by it. 2. As between a corporation and corporator, the stock-book is evidence of their relation ; the certificate is secondary evidence. 3. Assignment of a certificate is only an equitable transfer and must be produced to the corporation and a transfer made.
73 Pa. 65Danzeisen's Appeal (1873)
1. The plaintiff being embarrassed, upon defendant’s advice conveyed to him real estate, on defendant’s parol promise that he would obtain from a building association, on the security of the real' estate, a loan, with which he would pay plaintiff’s liabilities, repay the loan from the rents and reconvey to plaintiff- when the loan should' be repaid. Held, that the transaction was a mortgage. 2. The purpose not being to sell, but convey as security, it is immaterial that defendant was to procure the money at a future time and from a third person. 3. The defendant received the deed without consideration, except his promise to raise the money for plaintiff; if it was not intended to be raised it would be a fraud and the defendant a trustee ex maleficio. 4. The plaintiff’s bill charged that defendant held in trust for him; did not allege that-he was mortgagee, and prayed for account and reconveyance; it was dismissed below on the ground that there was no trust. The facts set out showing it to be a mortgage, the Supreme Court sustained the bill, to reach the justice of the case, disregarding the use in the bill of inappropriate terms. 5. Barnet v. Dougherty, 8 Casey 371, distinguished. Haines v. Thomson, 20 P. F. Smith 434 ; Harper’s Appeal, 14 Id. 320: Sweetzer’s Appeal, 21 Id. 264, followed.
73 Pa. 72Union Railroad & Transportation Co. v. Riegel & Co. (1873)
Certificate from Nisi Prius: To January Term 1870, No. 404. This was an action brought March 4th 1870, by Jacob Reigel, Samuel G. Scott and others, trading as Jacob Reigel & Co., against The Union Railroad and Transportation Company, for negligence in the wrongful delivery of goods, sent by the plaintiffs to the defendants, to be transported by them to Indianapolis. The plaintiffs’ allegations were that they had been negotiating with Eurniss & Co., of Indianapolis, for the sale of dry goods, but being doubtful of the solvency of Furniss & Co., they agreed with the defendants to transport the goods to that place, to defendants’ agent there, not to be delivered to Furniss & Co. without further instructions; that the agent delivered them to Furniss & Co. notwithstanding. After the delivery Furniss & Co. failed, and the plaintiffs were never paid for the goods. The case was tried at Nisi Prius, February 7th 1871, before Read, J. S. G. Scott, one of plaintiffs, testified: — • “ In December 1869, a member of the firm of Furniss & Co., of Indianapolis, called in our store to purchase goods. There was nothing concluded between me and Furniss. I sent for Mr. Welsh, agent of the Union Railroad and Transportation Company. He came to see me on December 10th 1869. I told him we had goods to ship to Furniss & Co. They were not to be delivered until we instructed the Union line to deliver them. Mr. Welsh told me not to put Furniss & Co. on the boxes, but to mark them F, Indianapolis, care of S. F. Gray, agent.” He said he would write to the agent next day not to deliver the goods until we instructed them. I told Mr. Welsh the reason, which was, because our salesman was anxious that Furniss & Co. should have the goods so that they might have them for sale during the holidays. After the 10th of December 1869, the first time I saw Mr. Welsh was after the delivery of the goods to Furniss & Co. The plaintiff proposed to ask what Welsh then said: This was objected to by defendant. Judge Read admitted the question, saying: “ I think that what this agent would say within a reasonable period after the transaction would be evidence.” A bill of exceptions was sealed. Witness: “I told him in the following month that I was surprised that the goods were delivered without our instructions. Mr. Welsh was also surprised. I told him we would have to look to the railroad company. I saw him a few days after. He then said we had given the consignees’ name on the shipping receipt, and the company would not be responsible. I asked him whether he had given us any directions as to drawing the shipping receipt. He said he had not. The receipt was kept by us. The receipt did not go from Philadelphia. It was brought back by our dray-man. This shipping receipt is in the handwriting of Fenner, our shipping clerk, who is now in our employ. It was written by our clerk, and sent by us to Thirteenth and Market ¡streets, and brought back by our drayman.” John W. Emmet testified: — “ I was salesman of Jacob Riegel & Co. in December 1869. I sold' Furniss goods about this time. * * * I went to Indianapolis. I got there in the first part of January 1870 ; I went to the depot of the Union Line, and asked if any goods were there for Furniss & Co. They said no. • The shipping agent opened a book and showed me some goods that were shipped to Furniss & Co., marked F I think, to care of Gray. He said they had been delivered. I told him they ought not to have been delivered until Jacob Riegel & Co. had sent instructions, as the goods were not paid for.” James M. Fenner testified :■ — “ In December 1869, I was in the ■ employ of Jacob Riegel & Co., as clerk in the store. My business was to receive goods sold, and send them out on drays. I took place of shipping clerk. These boxes, when I first saw them, were marked John Furnish & Co., Indianapolis. ‘John Furniss & Co.’ was planed off, and ‘F, care of S. F. Gray,’ put on before they left the store. 1 gave them to drayman. The drayman brought back this slip receipt. The writing, ‘ Jacob Riegel & Co., ’‘ John Furniss & Co.,’ ‘F,’ and everything in writing but signature, is in my handwriting. I knew of no arrangement Scott had made with Welsh. Scott told me to plane off ‘John Furniss & Co.’ These blanks are supplied by the railroad company.” Scott, recalled, testified: — “Mr. Welsh told me he had written to Gray about the goods, after I had heard of delivery of goods to Eurhiss. He said he had written to Gray not to deliver the goods. The goods have never been paid for; they are insolvent.” Eor the defendant James D. Welsh testified: “I am the agent of the Union Railroad and Transportation Company. On the 10th of December 1869, Mr. Scott told me he had six cases of dry goods he wanted to ship to parties in Indianapolis, and he was not sure they were good. I suggested to him to mark [E] care of S. E. Gray, agent, Indianapolis, and give no other consignee. They were to be consigned to S. E. Gray, agent; so that our agent in Indianapolis would not know to whom to deliver them. I said I would write to Mr. Gray, telling him what was done. He would have asked who was the consignee; to avoid this I wrote to him to allow them to remain in his depot. I simply told Mr. Scott to mark the goods. I did not say to Mr. Scott that I would write to Mr. Gray not to deliver the goods, as that would have been foolishness. Mr. Gray would not know to whom to deliver. I wrote to Mr. Gray on the 11th day of December. I told Mr. Scott to mark the packages [E] care of S. E. Gray, agent, Indianapolis, Indiana. I wrote to Mr. Gray that as to six cases of goods, marked as I said before, to hold them subject to our order. This was to prevent him asking for a consignee.” D. Buist, the slip clerk of the Pennsylvania Railroad Company, testified that the manifest on which these goods were entered went with the car which took the goods. The defendants gave in evidence the receipt for the goods and the manifest. The receipt, which was in a printed form, was:— “ This receipt, properly filled up hy the Shipper, must accompany the Freight. Pennsylvania Railroad Company’s Freight Station, * * * Received Philadelphia, Dee. 10th 1869, of J. Riegel & Co., the following articles, contents and condition unknown, to be carried and delivered upon the terms and according to the agreement as specified on the back of this receipt. Marked [El Indianapolis, Ind. Eor J. Eurniss & Co., care S. E. Gray, Agt. Number and description of packages. — Six (6) boxes dry goods. Buist.” On the back of the receipt was printed, among other things, as follows: “It is agreed, and is part of the consideration of this contract : “ 1. That all goods received for transportation shall be properly packed, and distinctly marked with the name of the consignee and the station where and to whom consigned.” * * * The manifest was: “ Manifest of Merchandise forwarded by the Union R. R. Transportation Co. to Pittsburg from Philadelphia, Dec. 10th 1769. Samuel F. Gray, agent of defendant at Indianapolis, testified: “We did receive six packages mentioned on manifest, and delivered them to Furniss & Co. I received a letter from Mr. Welsh, dated 24th of January, stating he had sent me a letter on the 11th of December. The letter of December 11th was never received by me or subordinates. Mr. Emmet first called between the 27th of December 1869, and first week in January 1870, to see me. He made inquiry concerning these six packages. I informed him they had been delivered to consignees, J. Furniss & Co. He said, had you no word from Philadelphia to hold goods ? I said I had not.” * * * M. Horace McKay, a member of the firm of J. Furniss & Co., testified: “ I remember the purchase of goods from Riegel & Co.; remember the receipt of the bill. I made no contract about the goods. These goods were received by our firm, and delivered from line by our draymen. We received bills from this firm by due course of mail. There were conditions at same time as bills were received. We received notice from Riegel & Co. There were no directions not to receive the goods; but after they were received, certain conditions were to be complied with. Goods were received about middle of December. Emmet’s first visit was after the holidays, and about the 1st of January I saw him ; visited store several times; came in in a friendly way. He did not tell us we ought not to have received goods, and found no fault with us for receiving them. We closed our house on the 26th of January, the day our failure took place. Emmet’s next visit was two, three, or four days after this.” * * * The defendant proposed to ask witness : “ What would your firm have done if you had received hotice from the company, within a reasonable time, that the delivery to you had occurred through any mistake or alleged mistake of the company ?” This was objected to by plaintiff, overruled by the court, and a bill of exceptions sealed. Welsh again testified: “On the 22d of January 1870, Scott notified me of the non-delivery of goods. I went up to the depot, and found the name of consignee on manifest, receiving book, and slip receipt book ; came down and told Scott they must have put consignee on slip receipt. I then wrote to Gray. Scott did not then tell me he would hold the company responsible.” Read, J., charged: — “ This is an action between Jacob Riegel & Co., the plaintiffs, and the Union Transportation Company, the defendants, on a contract under which the defendants were to hold goods until further orders. [The contract depends entirely upon a verbal arrangement, of which you are the judges. The goods were not sent according to the usual and ordinary terms by which this company sends goods, but they were sent under a special contract.] The first question is, what the contract is ? The second, whether the plaintiff has complied with the terms of the contract. If the plaintiff complied, and the defendants did not, then the defendants are answerable. One of the parties to the arrangement was a member of the firm of Riegel & Co., and I will read portions of his testimony. Then I will read a portion of the testimony of Mr. Welsh.” (Judge Readhere read Scott’s testimony), £££Isent for Mr. Welsh on 10th of December 1869.- I told him I had six packages to send — that they were not to be delivered until we instructed the Union Transportation Company to deliver them. Mr. Welsh told me not to put the name of the firm on the packages; he told me to mark F, care of S. E. Gray, agent, Indianapolis, Indiana. He said he would write to ‘ the agent there. I told Mr. Welsh the reason, and that I wanted goods to arrive in time for the holidays. I do not know whether I told him the terms of the sale.’ ££ Then in a subsequent conversation, £ I think it was. in January, I said I was surprised, and said I would look to the company.’ Mr. Welsh said we had given the name of the consignee in the [slip receipt], then I said ‘ Did you give any directions in regard to the shipping receipt ?’ He said £ No.’ “Then Mr. Welsh said: £I am agent of the Union Transportation Company, my office is at No. 415 Chestnut street. In December 1869, Mr. Scott sent for me to come to his store. I went. He said he had goods to send to Indianapolis, to Eurniss & Co., who were not so good. I told him he had better mark the goods F, and give no other consignee, and then the agent would not know to whom the goods were to be delivered. I said I would write. I did write to our agent there. ’ “ [There is the contract — there is no difference between them, in their recollection. It would appear, then, that the contract was specially to take these goods to Indianapolis, and not to deliver them to Eurniss & Co. Did Mr. Scott follow the instructions of Mr. Welsh?] “It is in evidence that the name ‘Eurniss & Co.’ was planed off [the boxes.] It is in evidence that they were marked exactly as Mr. Welsh directed, so that the name of the station and name of consignee on the boxes was in accordance with Mr. Welsh’s directions. If this be the case, then, Mr. Scott so far complied with the instructions of Mr. Welsh. “ [Then comes another element, that of the shipping receipt, which, as I understand it, is not a bill of lading, but merely a shipping receipt, given by the company to the drayman who delivers the goods, to show that the goods have been received. It is returned to the shipper, and does not go on with the goods. Where there is a special contract, such as this was, it is a question whether that receipt formed any part of the contract at all. The evidence is that Mr. Scott subsequently asked Mr. Welsh whether any instructions were given in regard to the shipping receipt, so that what was done with the shipping receipt does not make any difference in regard to the contract that was made.] Then this item of direction is on the back of the receipt. (Article 1 from the printed matter on the back of the receipt.) “ [The question is, whether Mr. Scott performed his part of the contract. If he did defendants are undoubtedly liable, for they have not performed their part; they did not keep the goods until instructions. If they made this contract, no matter whether the communication to their agent was made or not, they were bound to keep the goods.] ■ “Now there was another part. In order to make this more certain, there was a letter to be written. No doubt it was written. There is no doubt it never arrived. Whether it was not mailed by the agent or clerk of the transportation company, or whether it was mailed or miscarried, we have no evidence. It never was received. [If it was not put into the post-office, it was the negligence of the parties; and perhaps there should have been some testimony to show that that letter went into the post-office; because, when a party writes a letter and intended to send it, and it never arrives, it is proper to trace the letter into the post-office, if anyone knows anything about it.] We can only assume that the letter was written, and that it did not arrive. There is a good deal in the other parts of the case, that have formed food for argument, that have nothing to do with the case. Did Riegel & Co. comply with their part of the contract ? If they did the defendants are liable. • . “I am requested to charge on the following points by the defendants :— “ ‘ 1. The terms set forth in the receipt of 10th December 1869, superseded the arrangement made with Mr. Welsh respecting the consignee of goods.’. “I decline'so to charge. “ f 2. On the arrival of the goods at Indianapolis, the agent there was authorized by the terms of the said receipt to deliver them to J. Furniss & Co.’ “ I decline so to charge.” The verdict was for the plaintiffs for $1944.69. The defendants took a writ of error and assigned for error:— 1, 2. The rulings on the offers of evidence. 3. The part of the charge first enclosed in brackets. 4. The part of the charge secondly and fourthly so enclosed. 5. The part of the charge thirdly so enclosed. 6. The answer to the 1st point. 7. The answer to the 2d point. Declarations of an agent, made not at the time of entering into a contract, but after the transaction is past, are not admissible in evidence against the principal : Hough v. Doyle, 4 Rawle 291; Hannay v. Stewart, 6 Watts 487; Hubbard v. Elmer, 7 Wend. 446; Stiles v. The Western Railroad Corporation, 8 Metc. 46; Clark v. Baker, 2 Whart. 340. The receipt was a contract between the shipper and the transporters : Bates v. Todd, 1 Moody & R. 106; Babcock v. May, 4 Hamm. (Ohio) 345; Ide v. Sadler, 18 Barb. 33. Previous conversations between Scott and Welsh were merged in the writing: Monongahela Navigation Co. v. Fenlon, 4 W. & S. 208; Mumford v. McPherson, 1 Johns. 414; Vandervoort v. Smith, 2 Cain. 161; Howes v. Barker, 3 Johns. 506; Creery v. Holly, 14 Wend. 26 ; La Farge v. Rickert, 5 Id. 187; Barber v. Brace, 3 Conn. 9. The receipt authorized the agent at Indianapolis to deliver the goods to Furniss: Bristol v. Rensselaer & S. R. R., 9 Barb. 158. Declarations of an agent acting as such, within a reasonable period of time after a transaction, are competent testimony against his principal : Stockton v. Demuth, 7 Watts 39; Hannay v. Stewart, 6 Watts 487; Clark v. Baker, 2 Wharton 340 ; McCotter v. Hooker, 4 Selden 407 ; Dodge v. Bache, 7 P. F. Smith 421. Parol evidence of what occurs at or shortly before the execution of a written instrument to control its effect is admissible: Bank v. Fordyce, 9 Barr 275; Rearich v. Swinehart, 1 Jones 238; Chalfant v. Williams, 11 Casey 212; Lewis v. Brewster, 7 P. F. Smith, 410 ; The Baltimore & Philadelphia Steamboat Co. v. Brown, 4 Id. 77 ; McCotter v. Hooker, 4 Selden 497; Blossom v. Griffith, 3 Kernan 569 ; Purcell v. Southern Express, 34 Georgia 315; Hutchins v. Ladd, 16 Michigan 493; Michaels v. N. Y. Central R. R., 30 N. Y. 164; Reed v. Spalding, Id. 630.
73 Pa. 80Connery v. Brooke (1873)
1. Hatcher being owner of two lots used a lane from the back lot over the other to a turnpike with a gate there. In 1858 he conveyed the back lot, the gate remaining, “ with the free use, right and privilege of a passageway * * * extending from the * * * turnpike to the hereby granted premises with free ingress and regress at all times for ever.” Through divers conveyances, all reciting the grant of the passage, Brooke became the owner of the back lot in 1867, and Connery of the front lot in 1869 ; the gate had been used in common by the owners of both lots till 1870, when Brooke took it down and Connery put it up. In an action against Connery for obstructing the passage : Meld, that the grant of the privilege did not per se make the gate a wrongful obstruction; it was a question for the jury in connection with the circumstances. 2. If the gate was not a practical hindrance and an unreasonable obstruction to plaintiff's use of the passage, it was not illegal. 3. Generally a grant is to be taken in its natural and ordinary sense; and if there be doubt, most strongly against the grantor. 4. A grant is to receive a reasonable construction which will accord with the intention of the parties, and the court must look at all the circumstances under which it was made. 5. Contemporánea exposiiio est optima etfortissima in lege, applied. .6. The plaintiff took down the gate, defendant sued him in trespass before an alderman and obtained judgment against him. Held, not to be a bar to an action for the obstruction. 7. Cox v. Freedley, 9 Casey 124, recognised.
73 Pa. 85Macky v. Dillinger (1873)
1. Dillinger consigned goods to Moorehead for sale; he pledged them for a loan to Macky, who knew they were owned by Dillinger: Held, that under the Factor Act of April 14th 1834, Dillinger could recover in replevin without tendering repayment of the loan. 2. Moorehead had advanced to Dillinger on the goods before pledging them; Dillinger demanded them from Macky, who declined to deliver without payment of his loan, saying nothing of Moorehead's advance. Dillinger might recover the goods without payment of the advance. 3. Macky gave a property bond and retained the goods; Held, that the amount due on the advance might be recouped from Dillinger’s damages. 4. When a party declines to accept payment or performance, except in a way to which he is not entitled, he cannot insist that the action is prematurely brought. 5. There is no set-off in replevin, but if the goods are subject to a charge, it can be enforced by way of recoupment. 6. The Factor Act construed.
73 Pa. 93Hacker v. National Oil Refining Co. (1873)
1. By the Act of July 18th 1863 (Manufacturing Companies), a note given after the organization of the company for additional stock, is valid notwithstanding the provision in the act that “ no note given by a stockholder be payment of any part of the capital stock.” 2. A note was given for additional stock in a manufacturing company; Held, that evidence of a parol agreement when the note was executed that it was not to be paid except on a contingency, was inadmissible. 3. Hacker subscribed for additional stock in a corporation and she gave her note for the amount; a certificate was tendered her and refused and no credit was given her in the stock ledger: Held, the note was not without consideration ; she had the right to demand and receive the stock. 4. Anspach v. Bast, 2 P. F. Smith 356 ; Erie & W. Plank Road v. Brown, 1 Casey 156; Phila. & W. C. R. R. v. Hickman, 4 Casey 318, followed. Hibernia Turnpike v. Henderson, 8 S. & R. 219; Leighty v. Susquehanna, &c., Turnpike, 14 S. & R. 434, distinguished.
73 Pa. 98McLoon's Administrator v. Cummings (1873)
1. General average is a contribution by all the parties in a sea adventure to make good the loss of one of them for voluntary sacrifices of part of tKe cargo to save the residue and the lives of those on board from an impending peril, or for extraordinary expenses necessarily incurred by one or more for the genoral benefit of all the interests in the enterprise. 2. General average extends to the loss of the ship when the cargo is saved; and the loss of the cargo when the ship is saved. 3. When after abandonment of the vessel the cargo is sent to the port of destination, as a general principle the parties are bound by an adjustment fairly made by an adjuster at that port, according to the rules, &c., there. 4. This rule does not obtain in case of fraud or gross mistake ; or when a voyage is broken up and ended, where a final separation between the vessel and cargo has taken place and the relations of the parties have terminated: then the port of disaster would generally become the place of adjustment. 5. Where the cargo is sent from the port of disaster to the port of destination by another vessel at a higher rate of freight than under the original contract, the contribution is to be on the basis of the value of the cargo at the port of destination. 6. Where the deviation is justified, in case of disaster by a peril of the sea, disabling the vessel from proceeding, the master becomes the agent of all the parties in interest; the subject of the interests are the vessel, the cargo and the freight. 7. If the vessel cannot proceed, it is the duty of the master to reship the cargo if he can, to the port of destination, to protect all interests, doing what he fairly and conscientiously believes is for the interest of all. 8. If the master can save part of the freight to the owner, he will be considered his as well as the shipper’s agent; if he can save nothing for the owner he will be agent of the shipper alone. 9. A vessel chartered at Baltimore to carry coal to San Francisco, having met with disasters at sea, bore away to Rio, where after the proper proceedings she was abandoned and the master shipped the cargo to San Francisco by another vessel at higher freight, by the bill of lading “ to be delivered * * * unto order or-, assignees, he or they paying freight,” &e. The bill was endorsed to Wright, who endorsed it deliverable to Cummings, San Francisco. The master of second vessel would not deliver the coal except on payment of freight, &e., and Cummings would hot so receive it; the coal was sold for less than the freight and expenses. The acts of the master were ratified by the owner of the ship. Held, that under the circumstances, the separation of interests was not complete at Rio, but continued until the arrival at San Francisco, and the sale of the cargo there. 10. The freight and charges at San Francisco having consumed the value of the cargo, in a suit by the owner against the shipper, it was Held, that theré was nothing upon which the general average could be charged ; and the recovery was confined to the special charges on the coal. 11. The master paid a premium for gold drafts at Rio to pay the expenses there; Held,.bh&b verdict should be for the amount found in gold, not for the premium paid.
73 Pa. 109Krier's Private Road (1873)
1. The Act of April 21st 1846, vacating private roads by prescription, is constitutional.. 2. Roads by prescription rest upon uninterrupted adverse user for twenty-one years, in analogy to the Statute of Limitations and not on the fiction of a grant. 3. An owner divided his land into lots and laid out a road for their use; the road was used for more than twenty-one years by an adjoining owner; all the lots afterwards vested in one person, upon whose petition the road was vacated under the Act of 1846. Held, that the adjoiner had no easement secured by grant taken from him, it was one originating in a wrongful use of another’s land. 4. Stuber’s Road, 4 Casey 199, recognised and followed.
73 Pa. 112Piper's Appeal (1873)
1. A testatrix owned a tract of land in Springfield township, Montgomery county, on which was a mill, and adjoining which was a lot in Philadelphia, which had always been used with it. She also owned, by a different title, another tract in the same township, about a mile distant, which had never had any connection with the first. She devised “ all that certain grist-mill in Springfield township, Montgomery county, and all the real estate in the county of Montgomery, and lot of land in Philadelphia now used, with the mill property * * * to my nephew, William. * * * And as to the balance or residue of my estate, I order and direct to be divided equally between my brother John and my nephew William share and share alike.” Held, 1. That the other lot did not pass to William by the specific devise. 2. That it passed by the residuary clause to John and William.
73 Pa. 116Baker v. Chester Gas Co. (1873)
1. Oornog owning land encumbered it by a judgment, laid it out in lots and streets and sold to Baker one lot described as bounded on Evans street, one of those laid out. The remaining lots were sold under a prior mortgage; some described as on Evans street were sold to Campbell; some also described as on Evans street were sol§. to Baker; Evans street as a lot and other lots, described as on Evans street, were sold by the sheriff to Hannum. Campbell conveyed to defendants, describing Evans street as a boundary; IIannum’s title to Evans street became vested in the defendants ; in all the sales by sheriff or individuals, Evans street was recognised. Held, that the description was in the line of defendants’ title and it showing that Bvans street had been dedicated to public use they could not close it. 2. The general rule is, that upon a sheriff’s sale different lots should be sold separately; notwithstanding they are covered by a common encumbrance. 3. By the sheriff’s sale of the lots as bounded on Evans street the purchaser obtained title to the middle of Evans street. 4. Cox v. Freedley, 9 Casey 124; Grier v. Sampson, 3 Casey 183; Paul v. Carver, 2 Casey 223, followed.
73 Pa. 121Philadelphia & Reading Railroad v. Yerger (1873)
1. A party is not answerable in damages for the reasonable exercise of a right, unless upon proof of negligence, unskilfulness or malice. 2. Buildings were burned by sparks, from a locomotive engine used in the ordinary way on a railroad; in a suit against the company by the owner, Held, there being no evidence to justify an inference of negligence, that the jury should have been instructed to find for the defendants. 3. Howard Express Co. v. Wile, 14 P. F. Smith 201, followed.
73 Pa. 127Springfield Road (1873)
110, of January Term 1873. In the matter of a public road in Springfield township.
73 Pa. 129Bartolett v. Dixon (1873)
1. In an action for backing water, all matters in variance were submitted to three referees, “who shall go upon the ground, hear the parties, their proofs,” &e., and determine whether the water had been maintained too high. “ They shall fix one or more permanent marks” : the award of any two of them to be final. The referees reported; that they all met, examined the premises, heard the evidence, &e., and adjourned; that two again met and adjourned : that two again met, the third being sick, and adjourned: that two again met and awarded that the defendant had the right to raise the water to the point named. Held, that the award could not be sustained, it appearing on its face that but two heard and deliberated. 2. Exceptions to the award were filed in the' court below, they were after argument, overruled and the award was confirmed : the court filed an opinion setting out the facts. Held, that the opinion and facts in it were not part of the record and could not be considered in the Supreme Court. 3. It is not necessary where a majority have power to make an award, that it should appear on the face of the award that all the referees heard and deliberated ; the presumption is where not made by all, that the minority refused to join.
73 Pa. 134Youngman v. Walter (1873)
1. Plaintiff sued on a note; the rules of court required only that the affidavit of defence should set out “ the nature and character ” of the defence ; in his affidavit defendant averred, that he and plaintiff were partners and he was induced to sign the note, upon the representation, that the plaintiff had received for the firm twice the amount of the note of a ward’s money; defendant averred, for reasons stated in the affidavit, that he believed that amount had not been received: Held, that this was an averment that the note was executed on a false statement and judgment should not have been entered against defendant for the full amount of the note.
73 Pa. 137Menges v. Frick (1873)
• Error to the Court of Common Pleas of Union county: No. 77J, to July Term 1872. This was an action of assumpsit brought October 6th 1868, by John Menges and Solomon Menges against Henry Frick and others, trading as Frick, Billmeyer & Co. The cause of action was a book-account for lumber furnished by the plaintiffs to the defendants.' The declaration was in the common counts; the plaintiffs also filed a copy of their account, charging defendants with lumber furnished them.
73 Pa. 140Richard v. Brehm (1873)
1. Richard cohabited with a woman as his wife for many years ; they addressed each other as husband and wife; spoke of each other, and executed deeds with acknowledgments as such ; she made a will calling herself his wife and devising to him as her husband. In ejectment against him by a devisee under a subsequent will, he, claiming by the curtesy, testified: “the marriage ceremony never was performed only by mutual consent, we lived- as man and wife. I promised to marry her.” Held, to be evidence of marriage as between themselves as well as to third persons. 2. The consent of the' parties is all that is required for a valid marriage. 3. If the contract be made per verba defuturo and be followed by consummation, it is a valid marraige. 4. Marriage may be proved by reputation, declarations and conduct of the parties: and other circumstances usually accompanying the relation. 5. Cohabitation and reputation are necessary to establish a presumption of marriage where there is no proof of actual marriage.
73 Pa. 146Blaylock's Appeal (1873)
1. B. was a special partner in the firm of H. & S. who owned the real estate, which was about to be sold by the sheriff, it was agreed that if B. would buy the property at sheriff's sale, S. would procure D. a lien-holder to accept from B. a mortgage on the property for his debt and if B. should sell at an advance he would apply the excess to the payment of the firm debts and would divide any further excess with S. Z. purchased for B. for enough to pay D’s lien and costs, which were paid in cash: the deed was made to Z. Meld, that the property was in trust for the purposes of the agreement, and, the firm debts having been paid, Z. was ordered to convey to B. for the trust. 2. The income until the sale was to be applied to reimburse B. for the purchase-money: and when sold B. to account for the rents. 3. S. was not entitled to a conveyance of the moiety subject to B.’s advance ; but B. was enjoined from selling at private sale without the consent of S. or at public sale without notice to S.
73 Pa. 153Ashton's Appeal (1873)
1. The assignee of a mortgage, unless the mortgagor has estopped himself, holds it subject to all the equities to which it was liable in the hands of the assignor. 2. The mortgagor having given a certificate that he has no defence, is estopped from setting up a defence against an assignee. 3. Any subsequent assignee may avail himself of a certificate of “ no defence,” given to the first, if he shows that he or a prior one under whom he claims was an assignee for value without notice. 4. A purchaser with notice of fraud or trust may protect himself under a prior purchaser without notice. 5. A creditor taking a chose in action as collateral security for a preexisting indebtedness is not a purchaser for value. 6. - Although a rule to open a judgment and let the defendant into a defence, has been discharged in a court of law; the defendant is not precluded from resorting to a court of equity for relief. 7. Burns, through an agent of a trust company, borrowed from them^on a note and assigned stocks, &c., as collateral; the agent borrowed from Ashton who afterwards took an assignment of Burns’s note and collaterals. Held, That Ashton took the collaterals subject to the equities between Burns and the company. 8. Stock was pledged as collateral for a note, the pledgee took a mortgage as further security, the stock at the time was of greater value than the amount of the mortgage ; the pledgee had not the stock during the pledge, so as to redeliver on redemption. The mortgage was to be credited with the value of stock when executed. 9. Gilpin v. Howell, 5 Barr 41, distinguished. Wistar v. McManus, 4 P. F. Smith 318, followed.
73 Pa. 164Mayer's Appeal (1873)
1. A party-wall erected by Simpson projected unintentionally in several places slightly beyond the proper line, over land of Mayer who was erecting a building at the same time, by contract with a builder who was to pay for the party-wall. He knew the wall was projecting, but went on and paid for it; Simpson completed his building without correcting the projection. The court under the circumstances refused a decree to take down the wall. 2. This occupation of part of plaintiff’s lot did not give defendant any title to it nor affect plaintiff’s right to damages. 3. Yollmer’s Appeal, 11 P. F. Smith 118, recognised.
73 Pa. 169Haines's Appeal (1873)
1. The legislature cannot give a tribunal, acting without a jury, power to determine legal rights unless there be some equitable ground of relief. 2. To sustain the chancery power to order deeds, &e., to be delivered up to be cancelled, there must be some danger of future litigation, when the facts will not be capable of proof, or have been become obscured by time. 3. The Act of April 28th 1868, authorizing the court upon petition on “due proof” that aground-rent has “been extinguished by payment or presumption of law,” &c., to decree that such ground-rent is extinguished, is unconstitutional; it violates the right of trial by jury. 4. A party is not concluded by the decision of a court not having jurisdiction to decide the controversy. 5. Norris’s Appeal, 14 P. F. Smith 275 ; North Pennsylvania Coal Co. v. Snowden, 6 Wright 488; Tillmes v. Marsh, 17 P. F. Smith 507, considered.
73 Pa. 173Leaming v. Wise (1873)
1. Plaintiffs sued defendants for the price of oil-stock, alleging that it had been bought on false representations as to the cost of the land ; there was evidence that plaintiffs knew the cost in November and afterwards paid an assessment; subsequently the project failed; in March plaintiffs tendered the stock and offered to rescind. The court charged that if the jury found these facts and any unfavorable circumstance occurred between plaintiffs’ knowledge and tender which left defendants in a worse condition than if the tender and rescission had been at the time of the knowledge, the verdict should be for defendant. Held, to be correct. 2. If there had been fraud, the plaintiffs could rescind and recover hack] the price; hut the tender should be in a reasonable time after discovery of L the fraud. 3. By an uudue delay in tender and rescission the contract would be affirmed. 4. When the facts are undisputed, what is reasonable time or undue delay f is for the court. ~ 5. Negley v. Lindsay, 17 P. F. Smith 217; Pearsoll v. Chapin, 8 Wright; 9, recognised. \
73 Pa. 177Dillin v. Wright (1873)
73 Pa. 179Cannon v. Boyd (1873)
49, to July-Term 1871. This was an action on tbe case brought October 28tb 1870, by John Boyd against Patrick Cannon, for closing an alley oyer which tbe plaintiff claimed he bad a right of passage. On tbe 17th of November 1845, Francis McCabe bought an unimproved lot on Cotton street, Philadelphia, and gave a mortgage for part of the purchase-money. He divided it into three lots, and shortly afterwards built a house on No. 2.
73 Pa. 182Zane v. Kennedy (1873)
1. Husband and wife conveyed land in trust, amongst other things empowering the trustee to sell such parts as the wife by writing might request, and pay the purchase-money to the wife. Held, that the trustee had power on request in writing of the wife to mortgage the land. 2. At the request of the wife, the trustee sold the property to A., in order that he might mortgage it as collateral security for money to set up her son in business. Held to be a valid execution of the power in the trust-deed. 3. The wife having the entire control of the money raised by the mortgage, might give it to her son. 4. An absolute and unrestricted power to sell included a power to mortgage. 5. The mortgage was given to secure the payment of notes of the son; their times of payment were extended by the holders. There being no evidence of a consideration for such extension, Held, that this did not discharge the wife if she were surety. 6. An agreement without consideration to give time to a debtor is not binding on the creditor and would not prevent the surety from paying the debt and seeking reimbursement from the principal. 7. The trust provided first for the payment of debts of the husband ; the land having been sold under the mortgage; in ejectment against the purchaser by the wife as cestui que trust to recover her equitable estate, she could not set up these debts; that could be done only by the husband’s creditors or the trustee for their use. 8. Lancaster v. Dolan, 1 Rawle 231, affirmed.
73 Pa. 194Collins v. Society for Relief of Distressed & Decayed Pilots (1873)
1. The Act of March 24th 1851, provides that a vessel licensed to coast not taking a pilot shall pay half pilotage and one not licensed full pilotage:— “ and all half pilotage, forfeitures and penalties in nature thereof, accruing by virtue of this act * * * shall be recovered in the name and for the use of the society,” for relief of pilots, &c. Held, that a forfeiture oí full pilotage was for the use of the society. 2. The appropriation of the penalty is not part of the penal provision and is to be construed reasonably to ascertain the intent of the legislature. 3. The penalty not being a tax, its appropriation to a private corporation is not unconstitutional. 4. Imposing full pilotage on vessels in foreign commerce and half pilotage on coasting vessels is not in conflict with sect. 10 of art. 1 of United States Constitution. 5. Association v. Wood, 3 Wright 73, distinguished; Cooley v. Wardens, 12 Howard 299, followed.
73 Pa. 198Holt v. Green (1873)
1. A commercial broker cannot recover commissions unless he has taken out a license under the 71st sect, of the Act of Congress of June 30th 1864. 2. An action cannot be maintained in Pennsylvania founded on a violation of an United States law. 3. Although a contract may not be declared by the statute void; and a penalty may be imposed for its violation; an action cannot be maintained on a contract in violation of a statute. 4. There is no difference whether the contract is malum prohibitum or malum, in se. 5. The test is whether the plaintiff requires the illegal transaction to establish his case. 6. Public policy will not allow courts to aid one grounding his action on an illegal or criminal act. 7. Maybin v. Coulon, 4 Dall. 298, followed.
73 Pa. 202Robinson v. Hodgson (1873)
1. The owner of negotiable securities which have been stolen may follow them and reclaim them in whose hands soever they may be found, and when shown that the securities had been stolen from the owner, the burden is upon the holder to show that he took them in the usual course of business and for value. 2. In trover for such securities, merely showing that they were in possession of another from whom defendant or his immediate bailor received them is not a defence. 3. A holder’.s possession in primS, facie evidence of ownership, because the presumption is that it was honestly acquired.
73 Pa. 211Philadelphia v. Lockhardt ex rel. Pyle & Hansell (1873)
1. A contract for building a school-bouse in Philadelphia was made in the name of The Controllers of Schools, signed by the Mayor, under the corporate seal; it, with the sureties for its performance, was approved by ordinance of councils, and payments made on account of it. Reíd, that the city was estopped from denying that she was a party to the contract. 2. The contractor assigned the contract. Reid, that the assignment was not within the Act of May 28th 1715, relating to assignment of bonds, &e. 3. An executory contract may be assigned before performance has been begun, or anything be due on it, and although the debtor be a municipal corporation. 4. Notice of the assignment given to the Board of School Controllers was notice to the city. 5. Notice to an agent, bound, in the discharge of his duty, to act upon it and to communicate it to his principal, is notice to the principal. 6. Danville Bridge v. Pomroy, 3 Harris 151, recognised.
73 Pa. 218Dickey's Appeal (1873)
1. A testator devised lands in trust for a charity; and made a residuary devise. The residuary devisees and heirs at law commenced proceedings to have the devise declared void, and agreed as a family arrangement to avoid dispute amongst themselves, that in case of success it should be treated as intestate property. The court below decided the devise good, an appeal was taken under the same agreement; the husband of one of the heirs having means, (the others being poor), agreed to pay the expenses, &e., to he taken out of the land and the balance to be divided between his wife and the other heirs. Held, that these facts constituted a sufficient consideration for his agreement. 2. This agreement constituted the wife a tenant in common in equity with the other heirs in the title if any to the lands : and the husband was bound to proceed with the appeal until released by all the parties. 3. Any purchase of the lands made by the husband on behalf of his wife would enure to the benefit of the other heirs. 4. The appeal pending, the husband purchased the lands from the trustees in the devise and sold them at an advance. Held, that he was trustee for the heirs and must account for the profits. 5. The husband sold the lands and some of his own adjoining of greater value for an aggregate sum. Held, that he was entitled to be credited in his account with the excess of value of his own lands.
73 Pa. 249Williams's Appeal (1873)
Appeal from the decree at Nisi Prius: No. 1, to July Term 1871. In Equity. The proceeding in this case was by a bill filed April 11th 1871, by The Library Company of Philadelphia, against Henry J. Williams. The questions in the case arose under the will of Dr. James Rush and its codicils. The will was dated February 26th 1860, and contained the following provisions: * * * “ It is my intention, by a codicil or codicils to this my will, to give considerable legacies, annuities, and devises to different persons, but as I desire to take some time for reflection on this subject, and as I have made up my mind as to the disposition of my residuary estate after the payment of these legacies, annuities, and devises; now, therefore, I do hereby give, bequeath and devise my whole estate, real and personal, legal and equitable, whatsoever and wheresoever the same may be, unto my brother-in-law, Henry J. Williams, of the city of Philadelphia, his heirs and assigns, to be'held by him for and upon the following trusts and purposes, and for and upon no other use, trust, or purpose whatever — that is to say:— * * * “ In trust, to select and purchase a lot of ground not less than one hundred and fifty feet square, situate between Fourth and Fifteenth and Spruce and Race streets, in the city of Philadelphia, and thereon to erect a fire-proof building sufficiently large to accommodate and contain all the books of the Library Company of Philadelphia (whose library is now at the corner of Fifth and Library street), and to provide for its future extension according to plans, directions, and specifications which I shall hereafter make or give; but if I should not make or leave any such plans, directions, or specifications, then to erect the same according to his best judgment and to the views which I have expressed to him. It is my wish that this building should be exceedingly substantial, completely fire-proof, without any large, lofty, or merely ornamental halls or lecture-rooms; the whole interior to be divided in such a way as to contain the greatest number of books, to be well lighted, and so arranged as to be of easy and convenient access. “ And upon this eurther trust, so soon as this building is completed and ready for occupation, then in trust to convey the same, with the lot of ground whereon it is erected, unto ‘ The Library Company of Philadelphia’ aforesaid, and their successors, for the uses and purposes of their library, and for no other use or purpose whatever. “ Provided, however, that before any such conveyance shall be made to the said Library Company, they shall, either by an alteration in their charter, or in some other way satisfactory to my executor, bind themselves and their successors to conform to and comply with the following express conditions, and any others I may hereafter impose, under which they are to hold the said property and all other bequests and devises herein or hereafter given to them:— “ First. That the said Library Company shall not cause, allow, or permit any lectures, * * * “ These are objects foreign to and inconsistent with the legitimate purposes of a public library, and it is only for the preservation, extension, and free and convenient use of such a library, without any ambitious or pretentious display, that it is desired to make provision. “ Second. That all the accounts of the receipts and expenditures from the estates aforesaid, real and personal, shall be kept separate and distinct from all other accounts of the said Library Company, and shall all be headed and kept as the accounts of ‘ The Ridgway Branch or the Library Company or Philadelphia, ’ so that it may be always easily and certainly ascertained whether the application of those estates and the income derived therefrom has been in accordance with the provisions of this my will. “ And I further will, direct, bequeath, and devise that whenever the said building shall have been completed and transferred to the said Library Company, and the preliminary conditions complied with, then my said executor shall assign, transfer and convey, by one or more deeds and instruments, all the rest and remainder of my residuary estate not laid out and expended in the purchase of the, lot and the construction of the building aforesaid, and in the legal and customary charges and expenses, unto the said Library Company, to be held and used by them and their successors for the following uses, trusts and purposes:— “First. In trust to keep the whole of the real estate granted and conveyed to them by my executor, in good order and repair, and to make from time to time such additions to the library, building as may be found necessary for the extension and preservation and convenient use of the said library and all additions thereto. “ Second. In trust, after paying all necessary taxes, charges and expenses incident to the said property, to set aside annually ten per cent, of the clear net income, to form a contingent fund, to be invested, and the interest added to the principal, which fund, or so much thereof as may be required, shall be applied:— “ First. To build upon, improve, alter, and renew any lands and tenements hereby devised to the said company, so as to increase the income derived therefrom. “ Second. To make good and replace any losses from the failure of any investments made of or from the property hereby bequeathed for the said company; and, “ Third. Whenever the said contingent fund shall amount to $30,000, then to pay over and apply the whole surplus beyond the said $30,000 for the general purposes to which the income of this residuary estate is herein directed to be applied. “ Third. In trust to pay all necessary salaries, &c. * * * “ Fourth. And in trust, after complying with and fulfilling the previous trusts and purposes hereinbefore contained and expressed, to apply the remainder or surplus of the said net annual income, or so much thereof as may be necessary or desirable, to the increase and extension of the said library. * * * “ Lastly. I hereby appoint my brother-in-law, Henry J. Williams, executor of this my last will and testament.” By a codicil dated May 16th 1866, the testator provided: * * “ Whereas, By my said last will and testament, I have provided that the bequests and devises to the Library Company of Philadelphia are to be held under the conditions and restrictions therein contained, and any others which I might thereafter impose now, therefore, in accordance with, and in execution of that provision, I add and impose the following conditions, restrictions and directions :— “ First. One of my objects in giving my residuary estate for the use of the said Library Company was to express my respect and regard for my father-in-law, the late Jacob Ridgway, and my affection for and gratitude to his daughter, Phoebe Anne Rush, by erecting to their memories a monument which I hope will prove more durable than any other grateful record I could make, and be infinitely more useful to the community. As it was from them I derived the greater part of my property, which has enabled me to devote happily, and undisturbed, the latter part of my life to pursuits of scientific inquiry, which I have designed to be more beneficial than the more common enjoyment of an ample fortune, it is both just and proper that I should thus employ it, the more especially as Mrs. Rush had led me to believe that if she had survived me, she would have applied it to a similar 'purpose. Now, in order to carry out this intention in a public and permanent form, I direct my executor to have a marble slab, with the following inscription: * * * “ Sixth., I give and bequeath all my pictures, my private library, my manuscripts, copyrights and papers, and also those of my father, Dr. Benjamin Rush (in my possession) to the Library Company, to be by them placed in a room in the new building, and there safely kept. The books may be used as the other books of the Library Company, but this room is not to be opened to gratify idle or objectless curiosity. “ Seventh. I will and direct that the building to be erected for the Philadelphia Library Company, under the provisions of my will, shall have a basement story, of a height not less than eight feet six inches above the level of the pavement at its front. * * * “ Eighth. If the Philadelphia Library Company should omit or decline to accept my residuary estate on the terms and conditions in my will and codicils contained, or fail to comply with any of the preliminary stipulations and directions therein mentioned, then I give and devise the whole residue of my estate, real and personal, whatsoever and wheresoever the same may be, after paying and securing all annuities, bequests, legacies and devises, other than those to the said Library Company in this, or any future codicil contained, unto Henry J. Williams, my executor, in mj said last will named, his heirs, executors and administrators in trust therewith, to found and endow a public library entirely distinct from and independent of the Philadelphia Library Company, to be named and called the Ridgway Library, under the rules, regulations, conditions and stipulations in my said last will, and the codicils thereto expressed and contained. I wish that the greater part of my estate may be spent in completing the new library building. The annuities as they expire and fall into my residuary estate will be amply sufficient for all the legitimate purposes of a library. * * * “ Twenty-eighth. I desire my executor to be allowed a commission of three per cent, upon the administration of my estate; and, in the case of the death of my brother-in-law, Henry J. Williams, whom I have named as my executor in my last will, either before or after me, I nominate and appoint Colonel Alexander Biddle and Thomas Craven to be my executors in his room. They are not, however, to assume the executorship, or be qualified therefor, until after his death, resignation or refusal to act.” By another codicil dated April 18th 1867, the testator provided: * * * “ First. I have given and devised the greater part of my estate to my executor for the purpose of erecting for the Library Company of Philadelphia a building not only large enough to contain their present books, but also their probable increase for many years to come. Now, as I do not desire that the Library Company shall have an income greater than is required to provide for the legitimate (not a competing) increase of the library and their current expenses (not to be so large as to invite extravagance and waste), for which purposes the sums to be set apart to secure the legacies and annuities given by my said will and testament will be sufficient, I hereby authorize and direct my said executor to expend the whole remainder of my estate in the purchase of a lot and the erection of the library building, construction of bookcases, &c., leaving the said company only an income sufficient to defray the ordinary and strictly appropriate expenses of such an institution. * * * “ Second. I have in my will limited the extent of the lot to he purchased for the library building, as well as its locality; but as I desire that it shall have not only strength, durability and accommodation, but also be of sufficient magnitude for any future or contingent, but not an ambitious or competing, increase of the library; in order to prevent, if possible, its being torn down in twenty years, and the lot sold at a speculative profit to suit the hyperbole of the times, I authorize and allow my executor, under a broad and thoughtful foresight, to increase the size of the lot, and select any situation he may deem most expedient, without regard to any provision of my will or codicils. * * * “ I’ourih. In order to insure, as far as is in my power, the application of the various devises and bequests which I have made for the use and benefit of the Library Company, in accordance with my wishes and directions, I hereby devise, direct, will and declare that the whole and every part of my estate, real and personal, given or devised for the use and benefit of the said Library Company, and all the books and furniture purchased by them with the income and proceeds thereof, shall be taken and held by them (whenever the same by the provisions of my will, or of any codicil thereto, shall come into their possession, and become subject to their control), as trustees, for the uses, objects, trusts and purposes in my said will, and any codicil thereto mentioned and expressed.” * * * The bill set out the incorporation of the plaintiffs by the proprietaries on the 25th of March 1742, &e., and that by the will of James Logan and from other donors they had become the owners of the Loganian Library and other libraries. After setting out the purposes of their incorporation they averred that they were a corporation for charitable and literary uses, and were entitled therefore to the aid of a court of chancery for preserving and protecting their rights. They further averred that for the safety of their books, &c., and the better to accommodate the community, they had taken steps to procure means to change the location of their library building, and to erect one more secure against fire, &c.; that Dr. James Rush, an active stockholder in the library, was interested in it, and knew the anxiety of the company as to their books, &c. The bill further set out: that for carrying out that end Dr. Rush u conceived the munificent design of providing such a building for said libraries.” The bill then goes on, and in the 8th, 9th 10th and 11th paragraphs sets out in substance the provisions of the will and codicils, so far as they relate to the library, and proceeds:— “XII. Your orators are advised and charge, that, from the tenor of the said will, it is clear that the testator expected and designed that the building he directed his executor to put up would be used, if the Library Company were willing to accept the conditions imposed upon them, as a place of deposit of their own books, as well as those purchased with the funds provided by him. “ They aver that there is nothing in the will of the testator tending to show a desire to interfere with, or trammel the corporation in the use of its books as a circulating library — that is, lending them for use at the homes of the members — or to confine either the present library, or the library bought with his funds, to being used within the building, or to encourage that mode of user. “ They aver and charge that the discretion given to his executor to select the site of the intended building is in the nature of a trust for the benefit of your orators as a charitable corporation, and that the whole tenor of the will indicates that it was the intention of the testator to found a charity which should be beneficial to your orators as a library company having a collection of books, by affording or providing them a building for that purpose — that this general intent was clogged with no conditions, saving such as have been already distinctly set forth, and that the power to select the site was merely incidental to the execution of that main purpose — that, on complying, or being ready to comply with such regulations and conditions, your orators have the right to have the said powers exercised in aid of that general object and intention; and that, as it was incompetent for the testator, by verbal or unsigned directions, to revoke or vary the said gifts and trusts, so it was incompetent for him to change or affect the general intent of the will, or to qualify the powers thereby given to carry out that general purpose. “ XIV. On the 29th of June, at a special meeting, the shareholders appointed a committee on the devise to report at an adjourned meeting of the shareholders. “XV. At an adjourned meeting held on the 5th of October 1869, the committee reported, among others, the following resolution :— “Resolved, That the stockholders of the Library Company of Philadelphia do hereby accept the legacy of Dr. James Rush, according to the terms expressed in his will.” This resolution was adopted at a subsequent meeting of the stockholders held October 19th, and another committee appointed to recommend what further action should be taken. XVI., XVII. At a meeting of the shareholders, held May 25th 1870, the committee reported that an Act of Assembly had been passed February 23d 1870, authorizing the Library Company1 to act as trustees of the Ridgway Branch of the Philadelphia Library, and the trusts pertaining thereto,’ under the will and codicils of Dr. Rush; and the company was further authorized to apply from time to time to the Court of Common Pleas of Philadelphia for such amendments to their charter as might be necessary to carry the provisions of the will and codicils into effect. The company accepted the provisions of the act, and applied to the Court of Common Pleas for certain amendments (set out in the paragraphs) to their charter, which the court decreed should be made. “ XIX. Shortly after your orators had heard of the dispositions of the testator’s will, they also learned that the defendant, his executor, had formed the intention to select, as the site of the building to be erected under the terms of the trust, a lot of ground at the south-east corner of Broad and Christian streets, in the city of Philadelphia. * * * “ XX. This site was, in the general opinion both of the directors and shareholders, an undesirable one for the purpose. It was especially undesirable as a site for a building which should contain the collection of books of the Library Company. It was believed by all to be very inconvenient for the purposes of the said company as established and used up to this time, and it was believed by much the larger number that such a site would be injurious, if not destructive, to the interests and future prospects of the company, as the remoteness of the location from the residences or places of resort of all the shareholders, or persons accustomed to make use of the books, would, practically, prevent the library being used for the purpose for which it had been founded and had always been maintained, — and hence the income derived from contributions of shareholders, without which the institution could not be supported or continued, would cease. And your orators expressly show to the court that the said proposed site is not less than half a mile south of the usual places of resort of nearly all their shareholders, and more than a mile out of the line of travel of the large majority using, or entitled to use the library. “XXII. Your orators, therefore, deeply impressed with the great advantages that might be derived from a proper use of the discretion given by the testator to his executor, — the desirableness of having a proper building for the preservation and use of their library in a convenient location — the waste of money consequent on the erection of two buildings so remote from each other, for one common object — the still further waste in the maintenance of two distinct establishments therefor, and the apparent violation of the cardinal intent of the testator by so doing, used all the influence they possessed to prevent such a selection of the site by the defendant.” XXIII. When the company had accepted the bequest and the amendments to their charter had been allowed, on the 10th of December 18T0, the directors passed resolutions to notify Mr. Williams, the executor, that the amendments had been allowed and that they were “ now ready to undertake the performance of their duties as trustees of the Ridgway Branch of the Library.” They also adopted resolutions that in their opinion, the erection of the library building on the lot on the corner of Broad and Christian streets would be destructive of the interests of the library and against the wishes of a large majority of the stockholders, and that they expressed to Mr. Williams “ their earnest hope and request that he would reconsider his intention of building on the site named.” They also appointed Dr. Willing, Judge Hare and Mr. Lea to communicate these resolutions to Mr. Williams and to confer with him on the subject. “XXIV., XXV. At and before this time, your orators had learned that the defendant, in making the selection of the said site at Broad and Christian streets, was not acting either under the directions of the testator as contained in his will, nor in the proper and legal exercise of the discretion which the will had given to him, but that before and at the time when the said will was admitted to probate, he had disqualified and disabled himself from exercising any discretion whatever in the premises; by a most solemn verbal promise, made to the testator in the extremity of his last illness, and within a month of his death, not to exercise any discretion at all, but to use a particular piece of ground, and no other, as the site of said building. “ XXVI. At a meeting of their shareholders, held on the 29th of June 1869, the defendant was present, and he then verbally mentioned his determination to place the said library on the Broad street lot. After the meeting, being strongly urged by the committee to change that site for another equally good, and in a more central location, he assigned, among other reasons for his determination, that a loss to the estate would ensue if the lot was not used for that purpose. In answer to this, it was at once arranged that any such loss would be met by voluntary contributions in relief of the estate; whereupon the defendant declined the proposition, and announced his final determination to place the building upon that lot, under all circumstances and regardless of all consequences, unless prevented by a court of competent jurisdiction. “ XXVII. In answer to a letter from Dr. Willing, the chairman of the committee appointed on the 10th of December 1870, the following communication was received from the defendant:— “ Chestnut Hill, Dee. 30th 1870. “ My Dear Doctor: — I did not intend my note of the 17th instant to be a formal reply to the resolutions of the directors of the Library Company, nor to .prevent the committee from having the conference they requested. So far from it, that I mentioned both time and place at which I would have been happy to meet them. I cannot, however, conceal my conviction, that nothing they would say would change my intention of placing the Ridgway branch of the Philadelphia Library on the lot purchased by Dr. Rush for its site; and, after all that has taken place, I must confess I am a little surprised that they should again asK me to do so. Judge Hare and yourself must both he fully aware of the circumstances connected with the selection of that lot for this purpose ; but, as Mr. Lea, one of your committee, is a new member, I shall repeat them, even at the risk of being unnecessarily tedious in my answer; for I cannot believe the directors could expect me to make the change they desire, if they fully appreciated my position. “ Some weeks before Dr. Rush’s death he was very anxious to have the location of the intended building finally fixed and settled; and he desired me to ascertain the size and cost of all the vacant lots on Broad street, on which'street he desired it to be placed. I procured statements of the sizes and prices of all I thought at all suitable, from Vine to South street, but he was satisfied with none of them. Another gentleman brought him a plan of the lot on Christian street, and he was so much pleased with it that he directed me to buy it at once. I did so ;■ and when the contract was signed and a part of the' consideration paid, he expressed great pleasure that it was concluded, as it relieved his mind from all anxiety. Some days after, he recurred again to this subject, as it had probably occurred to him that he had given me an absolute discretion as to the situation of the library by the terms of his will, and that I-might be induced to overrule his decision after he was gone. He called me to his bedside and asked me to give him a promise that I would build the library on that lot, and nowhere else. I gave him this promise as fully and solemnly as language could express it, and he then thanked me and said he could now die in peace. Now, do you think it would be at all consistent with truth and honesty for me voluntarily to violate a pledge given under circumstances which render it as sacred as an oath, and made to a dying man who had confided to me the management of his whole estate ? Would you, with your well-known delicacy and sensibility to all honorable engagements, feel yourself justified in doing so, were the case your own, and should I not lose your respect and regard (which I value very highly) were I to hesitate for a moment as to what was my duty ? “ And what is the reason assigned why I should do this ? — ‘ to gratify the wishes of. the shareholders.’ But have these shareholders shown such an appreciation of the magnificent gift of Dr. Rush (which is only subject to their future acceptance) as to render his representative very desirous to comply with their wishes, in opposition to the repeatedly and earnestly declared intentions of Dr. Rush, and to his own deliberate judgment ? When the question was first presented to them, these shareholders, by a majority of five, accepted his bequest, but, by a very much larger majority, refused to pass a resolution expressing their gratitude for his gift. True, at a subsequent meeting they adopted such a resolution, but it was only on second thoughts; and it may be doubted whether it was not agreed to because of the extraordinary position in which they would be placed, if they were to take his money and refuse to admit they were obliged to him. “ I have said that to assent to the wishes of the shareholders would be in opposition to my own deliberate judgment, and I mean this in its fullest extent. I think that, considering its size, its price, and the description of library Dr. Eush intended to endow, there is not an attainable position on Broad street, of sufficient size to meet his views, which is preferable to the one he has himself selected. “Now, the Library Company give me notice that the company ‘ are now ready to undertake the performance of their duties as trustees for the Eidgway branch of the Library,’ — duties and trusts which I understand commence only when the building is finished; but I am not aware that they have shown, in any one instance, a disposition to comply with the last instructions of one whom I shall always consider as their munificent benefactor. Very truly yours, H. J. Williams. Dr. Ch. Willing, Chairman. “XXVIII. While your orators are ready to appreciate the high moral conviction which the defendant feels, of his duty to abide by the promise thus made by him to his testator, and to fulfil the same, yet they are advised that it cannot be thus fulfilled to the prejudice of your orators, for the following reasons:— “ They are advised, and they so submit to the court, that all discretionary powers given to trustees are themselves trusts, and that in the exercise thereof the trustee is bound to use the same for the furtherance of the purpose for which they were given, and not otherwise; that, in the exercise of discretionary powers, the donee thereof cannot and must not act under the influence of motives other than such as should of right direct him in dealing with property not his own, and intrusted to him for a special purpose, and that if he be disabled from using his natural, unbiassed discretion or judgment in the exercise of the power, from any cause which binds or warps, or has a manifest tendency to warp the same, a court of equity will interfere to restrain such abuse of the trust, and to direct what should be done by such trustee according to a sound and unbiassed discretion. “And they are further advised that the discretionary power given to the defendant by the will and codicils of the testator was in the nature of property of your orators, inasmuch as its exercise will vary and modify their rights, and will certainly, if exercised according to the defendant’s expressed intention, destroy or greatly impair the usefulness of the literary charity to be administered by .them — that the verbal directions of the testator, varying the nature of the trust and confidence reposed by him in the defendant, and the rights which your orat.ors, as devisees, had in the beneficial enjoyment of the exercise of that power,, were as absolutely null and void as those of a stranger — first,, by reason of being made within one calendar month prior to the death of the testator, and, therefore, void under the statute in such case provided — and, secondly, by reason of their not being in writing and signed by the testator at the end thereof,, in accordance with the statute-relating to wills. “And they are further advised that, under the circumstances of this case — while it is true that a court of equity will not interfere with a trustee in the exercise of a discretionary power (save to see that a discretion is really exercised), yet, that looking to the fact that the object of this testator was to found a charity of this particular sort — a literary charity — by furnishing it with books and maintaining said building, and that it was certainly designed that your orators should administer that charity in connection with their own, and under one management, and, it was probably intended, in one building, and with one corps of servants and assistants — a court of equity, having control, of charities, would, even if the donee had not so surrendered and bound his discretion before the trust had vested in: him, interfere to prevent its improper exercise. “ XXIX. Your orators aver that nothing but the high moral conviction under which the defendant labors — of his duty to abide by his promise — blinds him to these consequences. And although, true it is that the promise so made by him to his testator was wholly illegal and could not lawfully bind the former nor be enforced against him, yet your orators charge that the defendant did: and does believe that his conscience was and is bound thereby, and that he would be doing a dishonorable act if he made any other selection. “ XXX. But the defendant at times insists that he has selected the said site in the exercise of his own discretion, unbiassed by said promise; but your orators charge that the defendant, having made the promise and believing himself bound by it, was and is utterly unable to determine what line of conduct he would have followed if he had not made such promise, and that a, court of equity will not regard any assertion of what might or would, have- been the defendant’s determination, had no such influence existed. “ XXXI. At other times the defendant alleges, as an excuse, that, as the testator agreed to buy the said lot for the purpose of having a library building erected thereon, he, the testator, did thus himself select the site for the building; and that he, the defendant, as trustee, had not the less a right to select voluntarily the same lot which the testator had thus selected, or else that the testator’s alleged selection, in some way or other, took the place of that to be made by the defendant, and was either binding, or could, at his option, be made binding, and, in fact and law, has been made binding, on all claiming under the will; the contrary whereof your orators charge to be true, and they aver that, by his own showing, it was not possible for the defendant, after the testator’s death, to make a voluntary selection of that or any other site, because he had already, in the testator’s lifetime, bound himself by his promise not to exercise the discretion which the will had given him, but to build the library on that site, and nowhere else. * * * “ XXXVII. Wherefore they pray equitable relief as follows:— “ 1. That the rights of your orators and of the defendant in the premises may be ascertained and declared. “ 2. That it may be declared and decreed that the powTer conferred on the defendant by the will of the testator was a trust to be administered by him only in the manner in which all trusts can or of right ought to be administered. “ 4. That the court may decree and declare that the defendant, being, at and before the time when the said trust vested in him, or supposing himself to be, under an obligation which bound his discretion as to the selection of a site for the said building, was and is thereby disqualified from and incapable of exercising the power and trust in that behalf given to him by the Said will, and that the same may be exercised by this court having jurisdiction in the premises. “ 5. That it be referred to a master, to inquire and report what would be a proper and fit location for the said building, to the end that the true intent and purpose of the testator, as contained in his will, may be carried into full effect. “ 6. That the court may, from time to time, give such further instructions, and make such further orders and decrees in the administration of the trust as to them shall seem fit; and especially that it may declare how much of the corpus of the estate shall or ought to be expended and employed in the purchase of a convenient lot of ground, and the erection of a suitable building thereon. “ 7. That the defendant may be restrained by injunction, preliminary until the hearing and perpetual thereafter, from proceeding to erect the said building on the said lot situate on the southeast corner of Broad and Christian streets. “ 8. General relief.” In his answer the defendant set out:— 1. The wills and codicils and proceeded: * * * “ This will was proved on the 31st May 1869, on which day I took an oath to perform my duties as executor in accordance with law. I have, from the outset, acted under advice of counsel. Until his appointment to the Bench of the Supreme Court of the United States, the Hon. William Strong was one of my legal advisers. I have never, since assuming the executorship, in act or thought, done anything contrary to what I believed to be my legal duty, as such executor, and I have taken no important step without first obtaining the advice and approbation of my counsel. “ The. testator knew that the Library Company had, for very many years, been striving to secure funds sufficient to erect a fireproof building large enough to contain all their books, and their probable increase, and his provision that such a building should be erected in accordance with his views, was, with him, a favorite and constant matter of thought. “ He made many inquiries for eligible lots and as- to proper places for building. He ascertained that the lot which, in 1860, he had thought sufficient would be too small, and that there would be a great difficulty if not an impossibility in obtaining with the funds he could leave, within the area first designated, such a one as would be required, and therefore, in 1867, removed all restriction as to limits. He was very anxious to have the matter of site determined before his death, and desired me and others to ascertain the size and cost of vacant lots on Broad street, on which street he particularly desired the building to be placed. I procured descriptions and prices of all I considered suitable, between Yine and South streets, but he was satisfied with none of them. Another gentleman brought him a plan of the lot at Broad and Christian streets, and he was so much pleased with it, that he instructed me to buy it, and I did so. The contract was signed on the 18th day of May 1869, and the title papers were directed to be sent immediately to Mr. Henry Wharton for his opinion thereon. A few days after this, the testator inquired whether I thought the Library Company would make any objection to the site, and I answered that from what I knew of the board, I believed they would not. He asked me to ascertain to a certainty their feelings on'this subject, but not being willing that his testamentary intentions should be generally known, he only authorized me to communicate them to two of the managers, viz., Mr. Henry Wharton and Colonel Alexander Biddle, whose opinions I was requested to ask. I desired Colonel Biddle to accompany me to Mr. Wharton’s office, and then stated to them that Dr. Rush had given almost his whole fortune, amounting to a •million of dollars, to build a library at Broad and Christian streets, and asked them if they thought the Library Company would object to that location. They declared that, considering the magnificence of the gift, the Library Company ought not, and they believed would not, make any objection to his wishes as to its position. Dr. Rush, to whom I immediately returned, was informed of the result of the interview — was greatly pleased, and having obtained the views of three members of the board, appeared entirely satisfied. Had he known that his wishes, thus approved, would have been disregarded when he was gone, he would most unquestionably have embodied them in a form legally binding. It was after this, that the promise stated in my letter of 30th December 1870, was made to him. This was given with a knowledge of almost every circumstance which led subsequently to my decision, when, as his executor, it became my duty to determine the site of the library. Knowing, as I do, that this promise is not binding upon me the trustee in law, however it may be in morals and good faith upon the beneficiaries, I aver that I have never heard any reason assigned which would justify me in changing my opinion as to the propriety of this site. I have certainly seen none assigned in the bill which has been filed. “ If there had been a conflict between my sworn duty under my oath as executor, and my promise to the testator, I could have ended it by resignation of my executorship: but as no such conflict ever arose, it has never become necessary for me to determine what course, under such circumstances, it would be right for me to pursue. “ I selected the Broad and Christian street lot when I had assumed the executorship, after calm, careful and deliberate consideration — having thought of it in every shape, favorable and unfavorable, in which it had been presented — because it was, in my judgment, the best I could obtain for the objects and purposes of Dr. Bush’s will — and because it combined adequate dimensions with cheapness and position. I announced my selection at the meeting of shareholders of the Library Company on the 29th of June 1869, and at the meeting held on the 5th of October 1869, the resolutions, alleged to have been resolutions of acceptance, were adopted. “ I was advised by my counsel in writing on the 9th of July, !869;— “ ‘ As executor you are guided by the written will. In the exercise of the discretion reposed in you by that instrument, you may regard Dr. Bush’s views and wishes orally expressed, but, after all, your judgment, however it may be made up, must be your guide in matters left to your discretion.’ “ In pursuance of this advice — for I have felt, and still feel, under the obligation of my oath of oflice, bound to perform my duty in accordance with the law — I considered, in all its bearings, without any bias, the matter of the site, but my conviction that it was the one by far the most expedient remained, and still remains, unchanged. “ Though protesting that the complainants have no concern with or control over my reasons for this decision so long as they are honest, which is not, I believe, denied, .yet, in deference to the court, I will state some of those which influenced me at the outset, and govern me still.” (The answer then sets out these reasons very much in detail.) “ The testator’s ‘ cardinal intent’ was, that a building should be erected by me sufficiently large to accommodate for all time the books of the Philadelphia Library, such as would be an ornament to the city, and a lasting monument to his wife and her father. Broad street, in my opinion, is infinitely preferable as a site for such a building, because of the handsome private and public structures already upon it, and of the probability of many more being erected there in the future; because of its length and centrality, and of its great width, which furnishes an opportunity for architectural display that our narrow streets fail to afford. In this preference my testator shared. A location of the library upon any other street in the city would be decidedly against my judgment.” The answer then specifies a number of lots examined by him and the reasons for declining to take them. “Neither the company nor the court can interfere with me in the selection of a site without cramping me in the matter of the building, over which I have a control that I believe has not been questioned. “ The site which I have selected is within easy reach of all parts of the city. South of it is an immense population which is annually increasing, and, in the opinion of many — an opinion in which I join — this portion of Broad street will ultimately be filled with magnificent residences. The facilities afforded by passenger railways are such, that to those north of it who may wish to use the library, a ride of a few squares additional will make no difference in cost and but little in time. * * * The city through which the 900 stockholders are scattered is sixty miles in circumference. “ The great size of this lot will always protect the library from the noise and bustle of the more crowded portions of the city, and from all danger from fires or nuisances in its neighborhood. “ I have chosen this site for these, among other reasons:— “ 1. It is on the finest street of our city. “ 2. It is, so far as I know, the only lot on that street sufficiently large for the building I must erect, which I can obtain at a reasonable cost. “ 3. If compelled to purchase a lot elsewhere, I will not be able to erect the building ordered- by the testator. “ 4. I know of no suitable lot on any other street which can be had at the same cost. “ 5. It is but little distant from the centre of the city, and is withim easy reach, by car, of all portions of it. “ 6. It will not be necessary to have the library building torn down in twenty years and the lot sold because of its limited dimensions. “ 7. Its size insures, for all time, light, air, retiremeni, quiet, and safety from external dangers. “ 8. It already belongs to the estate. “ 9. It is exactly suited for the kind of library Dr. Rush proposed to endow — not a reading-room, nor one containing the light and ephemeral literature of the day, but one for readers and students of a higher grade. “ 10. It will carry out the cardinal intent of the testator as he understood it, because it is the one he selected himself. “I adhere to this choice and to my determination to build thereon notwithstanding the opposition which has been raised, because it was to my judgment, and not to that of others, Dr. Rush confided the performance of his testamentary dispositions. My judgment being at variance with that of others, I would lay myself open to charges which might be made in another bill, if I abandoned that which I have deliberately formed and announced. I may be wrong, and they may be right, and the testator might • well have chosen many very much better fitted than myself to do the work imposed upon his executor, but he did not think so. We had been friends and connections from early manhood through lives so long protracted that almost all those whom he had known and trusted had gone. For twenty-five years I had been the trustee of himself and his wife. For upwards of half a century I had been his counsellor and adviser, and for these reasons he preferred me. Because I knew his legally expressed wishes, and intended, to the utmost of my ability, faithfully to execute them, I accepted the trusts he confided to me. * *’ * “ Since the filing of this bill I have consulted with the gentlemen who are named in the will as my successors — Alexander Biddle and Thomas Craven — and I have ascertained that they agree with me in the opinion that the site I have selected is the ‘ most expedient’ which could be chosen. * * * “ 3. I am advised, and therefore aver, that the complainants are not a corporation for charitable uses, as charged in the fifth paragraph, and that they are not as such entitled to the aid of a court of chancery for preserving and protecting their rights. “ 5. * * * I am advised, and therefore aver, that the complainants are not a charitable corporation, and that the discretion given me to select a site for the library building is not therefore in’ the nature of a trust for them; but that if the law and the facts are as stated in the bill, then as the will speaks as of the day of the testator’s death, if, in his lifetime, by his own act, he disqualified me from the exercise of the discretion given to me by the will, the bequest to the Library Company being dependent upon the exercise of that discretion as a condition precedent to the vesting of the estate, no court of chancery can dispense with the performance of that condition. “ I am advised, and therefore aver, that my disqualification to exercise my discretion, supposing it to exist, having-arisen from acts of the testator himself, the complainants can take no benefit» under his will conditioned upon a prior exercise of my discretion, however ready they may be to comply with all the ‘ other conditions and regulations.’ * * * “ 11. I deny that I have ever disqualified or disabled myself from exercising a discretion as to the site of the library building. I aver that in making selection of the site at Broad- and Christian streets, I acted under the direction of the testator as contained in his will, and in the proper and legal exercise of the discretion thereby given to me. “ 12. I deny the truth of the averments in the 25th paragraph, in the form in which they are put. I admit that I did, at his request, ‘ not in the extremity of the testator’s last illness,’ but whilst his intellect was as clear and strong as ever, within a month of his decease, promise him verbally, to use the said lot of ground at Broad and Christian streets as the site of the library building; and I aver, that at the time I made said promise I thought it the best lot for the purchase which could be obtained; and I aver, that after careful reflection and subsequent examination, I still entertain this opinion. I deny that I ever made ‘ a promise not to exercise any discretion at all ’ in reference to the site, or that any such words ever passed between Dr. Rush and myself. “ I said nothing which deprived me of the full power to form a judgment or opinion in reference to the propriety or expediency of selecting that situation. A promise to do a particular act does not prevent the formation or the expression of an opinion in relation to its propriety or expediency, and I believe that I am just as able to determine whether the site at Broad and Christian streets is proper or beneficial, as if I had made no promise at all. * * * I believe I can determine the question as to the eligibility-of the site as correctly as if the subject had never been mentioned by Dr. Rush. “ I am sworn to execute the provisions of the will. One of ' these requires me to exercise an honest discretion, and I believe I have done so. If, however, my discretion under my oath had been in opposition to my promise, then I would have been obliged to reflect upon the course I should pursue; but as my oath — my opinion — that of the^estator — and my promise all point to the same conclusion, I conceive my way to be clear, and my discretion not to be subject to be limited or controlled. “ When I gave my promise I was fully acquainted with most of the facts upon which I have since, under the will, formed my opinion. I was aware of the power I would be called upon to exercise if I became the executor, and believed that, in the proper exercise of that discretion, I would be able to fulfil my promise. “ 16. I do insist, as charged in the 80th paragraph, that I have selected the said site in the exercise of my own discretion, unbiassed by any promise; and I deny that any promise, however it may be felt to be morally binding, did prevent or can prevent my exercising, or knowing that I have exercised, my judgment. I aver, that I am now able to say what line of conduct I would have followed if I had never made a promise, and that I would have selected the site at Broad and Christian streets, if Dr. Bush had been silent as to his wishes. “ 17. I do aver, as alleged in the 31st paragraph, that I had a right to select voluntarily the same lot which the latter had selected, ‘ none the less ’ because he had selected it; and I admit my infinite satisfaction at being able conscientiously, and in fulfilment of his written requests, made ‘ more than one calendar month before his decease,’ to gratify his wishes as to the manner in which his money should be expended.” * * * The defendant also demurred to the bill:— 1 and 2. That there had been no-valid acceptance of the bequests ; as there could be no binding acceptance until the building should be completed none of the preliminary conditions of the will had been complied with — (setting out these conditions.) 4. The plaintiffs are not a charitable corporation, nor within the protection afforded by courts of chancery to charities. 6. The court had no jurisdiction to control the defendant’s discretion in selecting a site or exercising any of the trusts of the will. A general replication having been filed, Bichard S. Hunter, Esq., was appointed examiner. ■ Upon the filing of his report P. Pemberton Morris, Esq., was appointed master. The master, after having given the will in full and other undisputed preliminary matters in his report, found as follows:— “ The testator, on the 18th of May 1869, eight days before his death, agreed, through Mr. Williams, for the purchase of a square of ground situate at Broad and Christian streets, intending that the library building should be erected on that lot. The conveyance was not executed until some time after the death of Dr. Bush. “ Between the 18th of May, the day the contract for the purchase bore date, and the day of the death of Dr. Bush, some conversation passed between Dr. Bush and Mr. Williams as to whether the Library Company would approve of the location. “ After this conversation, and in consequence of it, as it would seem, Mr. Williams called upon Mr. Henry Wharton and Mr. Alexander Biddle to obtain their views on the subject. “ They failed to understand each other, owing, probably, to the fact that the conversation was hurried, and Mr. Williams and Mr. Wharton, at least, were looking at the matter from different standpoints, and were on an unequal footing so far as their knowledge of Dr. Bush’s will was concerned. “ Mr. Wharton, under the impression that the lot at Broad and Christian streets was to be given for the building, with a large endowment fund to' extend and increase the library (meaning the books), expressed it as his personal opinion that the. directors ought to advise the stockholders to accept this gift, rather than that such a munificent gift should be lost to the city of Philadelphia. “ Mr. Williams, knowing the contents of Dr. Rush’s will, and what he himself intended to say, had a different impression of the conversation, and takes the result of the conversation 'to be an absolute approval by Messrs. Wharton and Biddle of the projected purchase, and on the strength of that conviction, reported the conversation in that sense to Dr. Rush. “ About the second day after the interview with Messrs. Wharton and Biddle, when he was seated by Dr. Rush’s bedside, the doctor turned and said, ‘ Harry, now you will promise me to put the building on that lot.’ I said, ‘ Certainly, doctor, if you desire it, I will promise you that I will put it there, and nowhere else.’ The doctor merely expressed his satisfaction.” * * * Amongst other correspondence reported by the master was the following:— “916 Spruce Street, December 18th 1870. “ Dear Sir: — I take this opportunity of enclosing a copy of resolutions passed by the Board of Directors of the Philadelphia Library Company, and to ask when it will suit your convenience to give the committee an interview to confer with you upon the subject to which they refer. I remain with great respect, &c., Charles Willing. Henry J. Williams, Esq.” “ My Dear Sir: — ■ “ I shall be happy to meet the gentlemen named in your note either as a committee or as individuals, but I must say that I feel it impossible to make any change in the location of the library upon the lot selected by Dr. Rush himself. It seems to me a sacred duty to carry out the clearly and repeatedly expressed wishes of the testator, and to perform what he undoubtedly understood to be a fundamental condition of his bequest. I moreover fully believe that, a few years hence, the position selected by him for his library building will be in all respects admirably suited to the objects which the doctor had in view, and which he has expressed in his will. * * * With sentiments of great esteem and regard, believe, me, &c. Henry J. Williams. Dr. Ch. Willing. December 17 th 1870.” Also the letter of December 30th 1870, from Mr. Williams to Dr. Willing, set out at large in the bill. The master having considered the facts and discussed the reasons df demurrer proceeds:— “ It thus appears that at the time of Dr. Rush’s death the defendant was under a pledge, given under circumstances which rendered it ‘ as sacred as an oath,’ to put the building on a particular site. “ Did that disqualify him from exercising the discretion which the testator had confided to him, and to the exercise of which the complainants were entitled by the terms of the will ? * * * “ The discretion which the complainants were entitled to, was, the free, voluntary, untrammelled judgment on the question of site of a gentleman long a member of the Library Company, familiar with its wants and wishes. No single individual could have been named upon whose spontaneous opinion as to site the complainants would probably have been more willing to rely. But it was that they were entitled to, and nothing less. That was Dr. Rush’s will. The will spoke from May 26th 1869, the day of Dr. Rush’s death: Potts v. Britton, Law Rep. 11 Eq. Cas. 438. * * * To give effect to Dr. Rush’s parol wishes as his wishes, declared a few days before his death, would be to alter his will contrary to the Statute of Wills. The keeping of the promise to Dr. Rush is not what: the plaintiffs are entitled to. That promise was upon Mr. Williams with all the solemnity of an oath, when the duty of exercising an untrammelled discretion was cast on him by the will. Had he at that date any discretion to exercise ? He says he had. It is a question, perhaps, on which he is incompetent to judge. In passing upon it, the character and person of the present defendant must be put out of view. Was his discretion free in the view of a court of equity ? Cases somewhat analogous will, perhaps, afford us a clue to the answer. * * * “ Mr. Williams avows his intention to carry out the testator’s wishes and directions; he denies being a passive instrument, but asserts that in the selection of this site he exercises an untrammelled discretion, which, happily for him, enables him to carry out the testator’s instructions, and his counsel insist that this statement being in the answer, and in response to the bill,, must be taken to be the fact, unless overthrown by two witnesses, or on,e witness and sufficient circumstances, “ The master is of opinion that this is not a case for the application of that principle of equity evidence. “ It is impossible for any man, however cool and, unimpassioned he may be, to know exactly how far his judgment would be influenced by a promise so solemnly given as that given by the respondent in this case. * * * “We come, then, to the third question, how is the will to be carried out. “ The answer is, that the court will, either through a new trustee to be appointed by them, or by a decree framed after a report from a master, carry out the intention of the donor if it can be ascertained. * * * ' “ The conclusions then to which the master has come upon the questions submitted are that the will was not affected by the promise; that the trustee, by his promise, has so crippled his discretion as to make it impossible to say how much his preference for the lot in question is due to his unbiassed opinion that it is the most expedient for the purpose, and how much to his promise to Dr. Rush ; that his action in the premises' must therefore be under the direction of the court. “ That the complainants have an interest in the selection of the fittest site, which gives them a standing in a court of equity to ask that the selection be made under the supervision of the court; that this course is not to be viewed as an expression of opinion adverse to the site proposed by the executor; that it be referred to a master to inquire and report to the court whether the proposed site is a proper and expedient location for the said building, and if not, what would be such a site? and that the defendant be restrained by injunction from proceeding to erect the said building on the said lot on the south-east corner of Broad and Christian streets until further order. Of course the last specification of demurrer fails with the rest.” The master submitted a form of decree drawn in conformity with his report. Exceptions were filed to the master’s report by the defendant, which after argument, were dismissed December 31st 1872. Mercur, J., delivered the following, opinion:— . “ This case comes before me upon exceptions to the report of a master. He was directed to report the law, the facts, and a decree proper to be made therein. Twenty-two exceptions have been filed to his report. The very able arguments of counsel, however, have not been directed to each exception separately, but rather to the discussion of two questions, which may be stated to be covered by these, to wit:— “ First. What powers were vested in the defendant under the trust created by the will of Dr. James Rush in regard to the location and purpose of the library building ? “ Secondly. Has he properly executed those powers in selecting the lot at Broad and Christian streets as the site for said library building ? “ The first question can be more satisfactorily answered by referring at some length to different portions of the will. “The testator, by his will of the 26th of February 1860, devised and bequeathed the whole of his real and personal estate to his brother-in-law, Henry J. Williams, his heirs and assigns, in trust, to pay certain legacies, annuities, gifts and bequests, to be thereafter expressed in codicils, and then to hold the residue and remainder of his estate ‘ in trust, to select and purchase a lot of ground, not less than one hundred and fifty feet square, situate between Fourth and Fifteenth and Spruce and Race streets, in the city of Philadelphia, and thereon to erect a fire-proof building, sufficiently large to accommodate and contain all the books of the Library Company of Philadelphia.’ And upon the further trust, ‘ so soon as this building is completed and ready for occupation, then in trust to convey the same, with the lot of ground whereon it is erected, unto ‘ The Library Company of Philadelphia ’ aforesaid, and their successors, for the uses and purposes of their library, and for no other use or purpose whatever.’ Providing, however, before such conveyance should be made to the said' Library Company, they should, either by an alteration in theip charter or in some other way satisfactory to his executor, bind themselves and their successors to conform to, and comply with, certain express conditions therein specified. One of the conditions was ‘ that all the accounts of the receipts and expenditures from the estates aforesaid, real and personal, 'shall be kept separate and distinct from all other accounts of the said Library Company, and shall all be headed and kept as the accounts of ‘ The Ridgway Branch of the Library Company of Philadelphia.’ ’ “ He also appointed Mr. Williams executor of said will. “ By a ‘ first codicil ’ thereto, dated the 16th of May 1866, he imposed additional restrictions upon the Library Company, and designated the beneficiaries of the legacies, annuities and gifts indicated in his original will. “ In his ‘ additional codicil ’ of the 18th of April 1867, he says, ‘ I authorize and allow my executor, under a broad and thoughtful foresight, to increase the size of the lot and select any situation he may deem most expedient, without regard to any provision of my will or codicils.’ “ On the 18th of May 1869, Dr. Rush purchased by contract a lot at Broad and Christian streets in the city of Philadelphia, for the avowed purpose of having the library building erected thereon, and made a payment of $1000 upon the contract. He held this lot subject to the payment of the residue of the purchase-money at the time of his death. That occurred on the 26th of May 1869. The defendant has selected this lot as the site for the library building. Had he the power in equity so to do ? He says, he had: that the will left it to his sole judgment and discretion, and not to the judgment and discretion of anybody else; and in the exercise of that judgment and discretion he has made the selection. Superadded to the power given him in the will he points to the purchase of this identical lot by the testator, after the execution of his will, with the express object of having the library building located thereon, and claims that was an ademption pro tanto. “ I, however, am of the opinion that the doctrine of ademption or double portion cannot be applied to the facts in this case. The defendant must fall back upon the will, and rely upon that alone, for his authority. By that instrument he was authorized to select any lot which commended itself to his own free, unbiassed judgment as most suitable. If no improper influences were operating upon his mind and warping Ms judgment in the exercise of Ms discretion, and he acted in good faith, a court of equity will not interfere with that discretion : Hill on Trustees 489; Grochenauer v. Froelich, 8 Watts 19; Chew v. Chew, 4 Casey 17; Pulpress et al. v. Af. M. E. Church, 12 Wright 204. But discretionary powers like other authorities must be exercised in the manner prescribed by the trust instrument: Hill on Trustees 488. “ To the defendant was given by this instrument the power to select any lot which ‘ under a broad and thoughtful foresight ’ commended itself to his judgment. The selection must be made under and by the exercise of the defendant’s judgment entirely free from any obligation imposed upon it by the testator other than those contained in the will and codicils. Such a discretion the defendant must bring to the discharge of his trust, and then it only marks the limits of the power given to him. The exercise of such a discretion the claimants have a right to demand. They can require no more, and may not submit to any less. “ Secondly. Did the defendant properly use his own discretion, and execute the power intrusted to him in the selection of the lot in question ? The complainants aver that this site will be prejudicial to the interests of the library, utterly destructive of the trusts which they have hitherto administered, and which they claim it was the manifest design of the testator to promote. They further allege that the defendant assumed the trust under such a trammelled and crippled discretion that he was thereby disabled from using his natural unbiassed judgment in the selection of the lot. The master concurred in this, and in his'very able report has found * that the trustee, by his promise to the testator, had so crippled his discretion as to make it impossible to say how much his preference for the lot in question is due to his unbiassed opinion that it is most expedient for the purpose, and how much to his promise to Dr. Rush ;’ and that the action of the defendant should be subjected to the control of the court. “ This presents the controlling question in the ease. Do the facts and the law justify the master in his conclusions ? “ The evidence shows that some weeks before the death of the testator he became very anxious to have the location of the intended library building fixed and settled; and he desired the defendant to ascertain the size and cost of all the vacant lots on Broad street (upon which street he desired it to be placed). The defendant procured statements of the sizes and prices of all he thought suitable, from Vine to South street; but Dr. Rush was not satisfied with any of them. Some other gentlemen brought him a plan of the lot on Christian street, and he was so much pleased with it that he directed the defendant to buy it at once. The defendant did so; by the aforesaid contract of May 18th 1869. The doctor thereupon expressed great pleasure that it was concluded, as it relieved his mind from all anxiety. ‘ Some days after,’ says the defendant (in his letter of the 30th December 1870, to Dr. Charles Willing, chairman of a committee appointed by the complainants), “ the doctor recurred again to this subject, as it had probably occurred to him that he had given me an absolute discretion as to the situation of the library by the terms of his will, and that I might be induced to overrule his decision after he was gone. He called me to his bedside and asked me to give him a promise that I would build the library on that lot, and nowhere else. I gave him this promise as fully and solemnly as language could express it, and he then thanked me, and said he could now die in peace.’ “ In his testimony taken before the examiner on the 17th of April 1872, he says': ‘I think it was about the second day after the interview with Mr. Wharton (which he had just stated was on the 20th or 21st of May 1869), when I was seated by Dr. Rush’s bedside. I think the lot had been the subject of conversation between us, when the doctor turned to me and said, “ Harry, now you will promise me to put the building upon that lot ?” I said, “ Certainly, doctor, if you desire it; I will promise you that I will put it there, and nowhere else.” The doctor merely expressed his satisfaction. I think he said, as near as I can recollect, “ Well, I am very glad of it; it is now all settled.” ’ “ The docter died within five or six days thereafter. This promise, then, was demanded and given a very few days prior to his death. It was two years after the last codicil to his will had been executed. It was demanded of a brother-in-law to whom he was about to intrust more than a million of dollars — I say about to intrust, for there was yet time for him to revoke the will and all of its trusts. He was unwilling to pass all his vast estate into the hands of the defendant upon the implied assurance that the library building would be located upon the lot which he had purchased for its site. Hence he made the specific demand. What his action would have been, had the defendant’s answer not been in accord •with his judgment, is left to conjecture. He suffered his will to remain unchanged. He passed from this earth, there is every reason to believe, in an abiding faith that he had restrained the free choice of the defendant, and that he had secured the erection of the library building upon the lot designated by himself. “ What was the position of the defendant ? He knew that he had been named in the testator’s will as his trustee and executor. Sitting by the bedside of his dying friend and brother — recognising the doctor’s right to control his own property — wishing to relieve his mind from all doubt upon the subject that troubled him, the defendant then and there promised, as fully and as solemnly as language could express it, to put the building on that lot and nowhere else. Ho not all the attendant and surrounding circumstances impress the mind of every conscientious and reflecting person with the very strong moral obligation thereby imposed upon the defendant ? I can scarcely conceive one stronger. The greater the integrity, the higher the moral sense, the stronger would be' the obligation upon the conscience. That the defendant possesses both in a high degree is manifest in his letter of the 30th of December before referred to. When asked, in behalf of the claimants, to reconsider his intention of building on said lot, and locate the building elsewhere, his answer was such as did credit alike to his conscience and to his heart. After repeating the promise which he had made, and the circumstances under which it was made, he says: — ‘ Now, do you think it would be at all consistent with truth and honesty for me voluntarily to violate a pledge given under circumstances which render it as sacred as an oath, and made to a dying man who had confided to me the whole of his estate ? Would you, with your well-known delicacy and sensibility to all honorable engagements, feel yourself justified in doing so were the case your own, and should I not lose your respect and regard (which I value very highly) were I to hesitate for a moment as to what was my duty ? ’ “ Therein and thereby he proves the indelible stamp made upon his mind. Conscience, resting under an obligation strong as an oath, bound him to the observance of his promise. With that deep recognition of moral obligation resting upon his conscience, he assumed the duties of the trust. He thinks he executed the power and discharged the trust under the written will alone, wholly uninfluenced by his promise. “ The well-known integrity and the high moral character of the defendant do not permit me to doubt that he honestly thinks so. If, however, he be correct, there must have been a time when his conscience was absolved from this deep moral obligation — a time when he threw it off, and when the lawful one took exclusive possession of his judgment. I understand the answer to be that it was at the time he was obligated to take the usual oath in order to assume the duties of executor. This was on the 31st of May 1869. This latter oath, he says, created a legal as well as a moral obligation. Did it, however, wholly eradicate the moral obligation, ‘sacrecl as an oath,’ under which he had rested up to that time? In his letter of 30th December 1870, he refers to it as still resting strongly upon him, and that his duty required him to be influenced thereby. “ It is contended, however, inasmuch as the defendant has sworn in his answer, and again before the examiner, that he has considered and decided the question as to the site of the library building entirely irrespective of and uninfluenced by any promise made by him to Dr. Rush, that the complainants have failed to make a case in which a court of equity will interfere with the discretion which he has exercised. “ In considering the act which the defendant has committed, or is about to commit, we must look at the position of the donor, the donee, and of the beneficiaries of the power. The beneficiaries have the right to require the power to be executed according to the terms of the written instrument creating it. If the donor induced the donee to accept the trust under a pledge that he would execute it otherwise than was provided in the instrument, he committed, in equity, a fraud upon the power. If the donee accepted it under such pledge and so executed it, he committed a fraud upon the power. It is not necessarily a moral fraud. A wilful departure from the terms of the power is a fraud upon it, without regard to whether the motive thereto was good or bad: Topham v. The Duke of Portland, 1 De Grex, Jones & Smith 571. Nor does it change the rule of law in regard to the agreement to pervert the trust from the original purpose for which the power was intended, whether that influence be exerted before the appointment or after it, provided that in both eases it secures the consent of the appointee to fulfil the wishes of the appointer: Topham v. Portland, 31 Beav. 539, 540. “ No American authority has been found which covers the case under consideration, but in Topham v. The Duke of Portland, reported in Law Rep. 5 Ch. App. 40, it is held that although the donor and the donee both swore that the power was not executed to carry out any agreement between them, other than those specified in the written instrument, yet that a chancellor might look beyond the oaths and see whether the presence of a moral obligation did not at the date of the appointment, and when the trustee came to act, weigh upon her mind with such force as to make her a passive instrument of the donor’s intentions. “ A judge or juror is forbidden .to sit in a case wherein a party litigant is closely related to him by blood or marriage. He will not be permitted to purge himself of his disqualification by answering that he can, and will act wholly uninfluenced by such relationship. “ Certain facts, which the wisdom of ages has recognised as influencing the judgment of mankind generally, create a conclusion of law that they will influence the judgment of each individual. “ Applying the law and reasons to this case, testing the uncontradicted evidence by all those principles which I have ever been taught to believe influence the human mind, and control the actions of men, it does establish such a state of facts as would naturally and reasonably restrain and trammel the free judgment of the donee of a power. Such a general presumption cannot be removed by the honest opinion of a donee that in his particular ease he is not influenced thereby. Hence I am unable to conclude that the defendant had, when he made the selection of the lot in question, or has now, such a free discretion and unbiassed judgment as the complainants are entitled to invoke and a court of equity bound to provide. It should, therefore, be referred to a master to inquire and report what will be the most expedient location for said library building, without my indicating any opinion .as to whether or not the lot at Broad and Christian streets is a suitable one. “ The exceptions to the report are dismissed, the report of the master is confirmed, and decree accordingly.” The decree was:— “ And now, this 31st day of December, A. D. 1872, this cause came on to be heard upon bill, answer, replication and proofs, and was argued by counsel; whereupon, in consideration thereof, the court are of opinion and so declare, First, that the complainants are competent to, and of right may, when the proper time shall arrive, assume the trust confided to them by the will of the testator, Dr. James Rush ; Secondly, that all the powers to that end conferred on the defendant by the will of the said testator are trusts, in which the complainants have an interest in the nature of property, and which are to be administered by the defendant only in the manner in which all trusts can, or of right ought to be administered; and it appearing to the court as well by the written admissions of the defendant as by his answer and testimony in this cause, that at and before the time when the said trust vested in him, he had absolutely bound the discretion intended to be given to him by the said will as to the selection of a site for the building proposed by the testator to be erected, and was and is thereby disqualified from, and incapable of exercising the power and trust in that behalf given to him by the said will, and that, in order to carry out the true intent and meaning thereof, the said trust may, and should be now exercised under the supervision of this court according to the course and practice of chancery; it is, therefore, ordered and decreed that it be referred to Esq., as master, to inquire and report what would be the most expedient situation for the said building, to the end that the true intent and purpose of the testator, as contained in his will, may be carried into full effect. And that he have authority to take testimony in addition to that taken before the examiner ; And that the defendant be restrained, until further order, from proceeding to erect the said building on the lot situate at the south-east corner of Broad and Christian streets; And the court reserves all questions of costs and expenses for its further consideration.” The defendant appealed to the court in banc and assigned the decree for error.
73 Pa. 286Heist v. Hart (1873)
Court of Common Pleas of Bucks county: No. 220, to January Term 1873. This was an action of assumpsit brought August 16th 1871, by Josiah Hart, survivor of the firm of J. Hart & Co., against Allen H. Heist and Thomas H. Heist, trading as Allen H. Heist & Co. The cause of action was the following note: “$2000. Philadelphia, October 19th 1870. Seven months after date we promise to pay, to the order of ourselves, Two Thousand Dollars, without defalcation, for value received.
73 Pa. 290Knapp v. Hartung (1873)
1. A declaration in trespass q. c. f. d. b. a. complained of breaking his close, cutting and taking oak, ash, beech and chestnut trees ; by leave of the court he filed another count, complaining of entering another close and taking eordwood and railroad sills; by leave he filed a third, which without alleging a breach of close, complained of taking with force and arms, &c., oak logs and hickory logs. Held, that the amendments did not change the original cause of action. 2. The cause was called for trial and jury sworn when the amendments were allowed, on application of defendant the cause was continued at the costs of plaintiff, defendant pleaded to the counts ; when the cause was again called the court struck off the first additional count and “ hickory logs ” from the- other, as being for a different cause of action. Held to be error. 3. A plaintiff may add a count substantially different from the declaration, if he adheres to the original cause of action. 4. The rule applies to actions ex delicto as well as actions ex contráctil.
73 Pa. 295Faust v. Haas (1873)
1. In a suit at law to administer equity, the judge sits as chancellor, assisted by the jury, who are to determine the credibility of witnesses and conflicting testimony; but the conscience of the chancellor must be satisfied of the sufficiency of the evidence. 2. If the evidence be-too vague, uncertain or doubtful to establish the equity set up, the judge must withdraw it from the jury. 3. Faust’s property was about to be sold by the sheriff, an attorney by arrangement with Faust and a judgment-creditor agreed to buy it for Faust; under this it was struck down to the attorney ; it was afterwards agreed that Haas, another judgment-creditor whom the proceeds would reach, should pay the purchase-money to the sheriff, take the deed and give Faust a time named to repay him. Under this arrangement the deed was made to Haas under the direction of the purchaser; Haas claimed to hold the property. Held, that he was trustee ex maleficio for Faust. 4. Where artifice or trick are resorted to to procure property at sheriff’s sale at an under value, the purchaser takes as trustee for the person misled.
73 Pa. 302Heffner v. Lewis (1873)
1. Plaintiff and defendants leased adjoining coal-lands to the same lessees ; a tunnel was made through plaintiff's land to reach defendants', on which was the outlet of the slope; rails were laid by lessees on the track in the tunnel. Their leasehold interest in the defendants’ land was levied on, with the appertenances, consisting of a breaker, &c;, “ and railroads in and about and connected with said mines.” The rails had been removed from the track, and plaintiff claimed that they had been delivered to him for rent. In an action of trover for them, Held, that whether the rails were included in the levy was properly submitted to the jury. 2. Machinery erected by a lessee to carry on his business is personal property during his term ; it may_ be sold on execution, and the purchaser may remove it before the expiration of the term.
73 Pa. 310Manhattan Coal Co. v. Green (1873)
1. A younger Hock of surveys called for older Hocks on the north and on the south; there not being sufficient vacancy to answer the calls of all, the younger must give way. 2. No mistake in the calls of the younger survey could affect the location of the older; it could not be changed by the calls of the younger. 3. To locate the younger the proper way was to run out the older blocks; the first surveys of the younger would be entitled to the vacant land. 4. Precisely descriptive warrants are those which so clearly describe the land that it can be readily identified and the warrant applied; they take title from their date. 5. A vaguely or loosely descriptive warrant ascertains only propinquity, and the land must be surveyed in order to identify it and render it certain; it takes title from the survey. 6. A warrant to My'er was “ 400 acres on a branch of Big Schuylkill called ‘Big Run,’ adjoining lands surveyed on a warrant to John Hartman, down the said creek one mile, near the Tory path, Berks county.” There was no survey for John Hartman earlier than- the warrant; but one later. Held, that the Myer warrant took title only from the survey. 7. A survey without a warrant is void, excepting surveys allowed to actual settlers under Act of April 3dl792. 8. Hubley Van Horne, 7 S. & R. 185 ; Norris v. Monen, 3 Watts 469 ; Patterson v. Ross, 10 Harris 340, followed.
73 Pa. 321Brown v. Commonwealth (1873)
Error to the Criminal Court of Schuylkill county: No. 78, to January Term 1873. * At April Term 1872 of the court below, the grand jury found a true bill against Joseph Brown for the murder of Daniel S. Kraemer. On the 27th of May 1872, he challenged the array of jurors, “ for the reason that the sheriff and jury commissioners of Schuylkill county, at the time of the selecting and placing in the wheel the names of jurors, did not secure the jury-wheel in the manner required by law, they having failed to secure the said wheel by sealing the same with their respective seals, the said wheel being sealed with only one seal, if any.” On the same day the prisoner moved to quash the indictment, for the same reason as that given for challenging the array. The court (Green, P. J.) heard the testimony of the jury commissioners and the sheriff on the challenge and the motion to quash. The evidence was that after the wheel was filled it was locked and placed in a box, which was also locked with a padlock, tape drawn across the lid of the box, tied and sealed; there was but one seal put on the box, that was the private seal of one of the jury commissioners; both jury commissioners were present when the box was locked and sealed ; the sheriff was not present; the key was obtained from him and returned to him; the box had always been kept in that way, and had always been found by the jury commissioners intact and where they left it. On the 28th of May the court sustained the challenge and ordered the sheriff and jury commissioners to take all the names of jurors from the wheel, and deposit new names, &c. On the 29th of May the court revoked the foregoing order, “no action having been taken as yet by the said sheriff and jury commissioners in the premises.” On the 27th of August the court overruled the motion to quash the indictment. At the request of the prisoner, the court sealed bills of exception. The prisoner was indicted at the same time for the murder of Annetta Kraemer, the wife of Daniel S. Kraemer. The prisoner pleaded to the jurisdiction of the court, alleging that the Act of April 18th 1867, establishing the Criminal Courts of Dauphin, Lebanon and Schuylkill, and its supplement of April 21st 1870, were unconstitutional.' The court overruled the plea. The indictment was tried August 27th 1872. The evidence was that the deceased was found on the 26th of February 1872, in a lane about three hundred yards from his house, and that the wife shortly before, on the same day, was found on her bed in the house, with her head beaten badly; she died from the injuries on the 4th of March. The husband was about sixty years old, and the wife about fifty. Daniel M. Kraemer, a son of the deceased, not living at home, ’testified that his father was alive on Sunday, the 25th of February. He went to the house on Monday morning before 7 o’clock, and in a back room found his mother lying on her bed insensible; he found blood around the front room ; she was covered with blood so that her face could not be seen; she had her day clothes on; he then went out and found his father lying on his back in the road; there was blood on his face and in the road; he, with some neighbors, then returned to the house, they found a chest and desk in the front room broken open. Other witnesses testified to similar circumstances, and also to the bruised and wounded condition of Mrs. Kraemer; also, that they found coin in a secret drawer which was unopened, of'the chest and also in the bottom of an old-fashioned clock. There was a large amount of evidence tending to connect the prisoner with the murders. Sophia Fehr, a sister of Mrs. Kraemer, testified that she came to the house on Monday morning and found Mrs. Kraemer lying on the bed, bloody and bruised; she was then conscious. The witness testified much in detail as to the condition of her sister and also as to there having been money in the house. The Commonwealth having examined a great number of witnesses and having shown that one Isaac Hummel had been arrested with the prisoner upon suspicion of being connected with the murder, called B. B. McCool, Esq., a member of the Schuylkill county bar, who testified:— “ I was present at the examination of Charles Ewing before ’Squire Reed in this court-house. ’Squire Reed is a justice of the peace in the borough of Pottsville. Charles Ewing is dead. He was killed on the 14th day of April last on Market street, in the borough of Pottsville. Joseph Brown was present at that hearing and represented by counsel. There were two members of the bar, Messrs. Farquhar and Strouse, there. They represented Brown and Hummel. It was on a preliminary hearing before the committing magistrate. I took notes of the testimony as given by Charles Ewing; (notes shown witness) these are the notes. These notes are correct of Charles Ewing’s testimony. Mr. Ewing was very much excited and embarrassed, and not very coherent. I took down nearly every word he said, and the order in which he said it, and I think in his language. I will say that I think the notes contain the exact words of the witness. In taking the notes I made the question and answer to conform to the exact words of' the attorney and witness. I had not time to write down the questions, but took questions and answers together. I was not acting as counsel, but as clerk for the district attorney, at his request. I am now counsel in the case, retained for the Commonwealth. I think'my notes contain the exact words of the witness.” The Commonwealth then offered to read the testimony of Ewing, from the notes of Mr. McCook The offer was objected to by the defendant, admitted by the court, and a bill of exceptions sealed. The Commonwealth recalled Sophia Eehr, and proposed to examine her as to dying declarations of Mrs. Kraemer on Monday and Tuesday, upon the subject of the murder of her husband. The defendant objected, amongst other things, that the dying declarations of Mrs. Kraemer, as a part of the res gestee, or surrounding circumstances, proposed to be offered, on Monday following, are inadmissible, because not accompanying the transactions, not concomitant with the murder of Daniel S. Kraemer, on Sunday evening, preceding, but are mere hearsay evidence, not made in the presence of the prisoner; and they are irrelevant in this issue as to the murder of Daniel S. Kraemer. The court admitted the offer and sealed a bill of exceptions. The Commonwealth then gave in evidence the declarations of Mrs. Kraemer tending to connect the prisoner with the murder. In the course of the trial a number of exceptions were taken to the rulings of the court on questions of evidence, and also to the charge of the court; none of which were considered by the Supreme Court. The jury found the prisoner guilty of murder in the first degree. A motion for a new trial was made; it was overruled; and on the 7th of October 1872, the prisoner was sentenced to be hanged. The prisoner sued out a writ of error. He assigned for error that the court erred— 1. In not quashing the indictment, because the grand jury was drawn from a wheel not secured according to law. 2. In revoking the order directing the sheriff and jury commissioners to make a new selection of jurors, &c. 3. In overruling the motion to quash the array of petit jurors. 4. In overruling defendant’s plea to the jurisdiction of the court. 5. In admitting the notes of the testimony of Charles Ewing, a deceased witness, before the committing magistrate to be read in evidence. 14. In admitting evidence of the dying declarations of Annetta Kraemer, the wife of deceased.
73 Pa. 330Rigoney v. Neiman (1873)
Error'to the Court of Common Pleas of Schuylhill county: No. 294, to January Term 1872. This was an action of assumpsit to June Term 1868 of the court below, brought by Herman Neiman against Peter Rigoney and Johanna Rigoney his wife.
73 Pa. 333McCue v. Ferguson (1873)
1. It is not competent in slander to prove by the opinion of the -witness, the averment that words spoken in the third person, were spoken of the plaintiff. 2. When the words are spoken in the second person, to whom they were addressed of a number present is a question of fact, and if the.name of the person is not used it is necessarily dependent upon opinion. 3. In slander the defendant put in a plea of justification and afterwards withdrew it; on a second trial he testified that he had not said that the words were true. The withdrawn plea of justification was not evidence in contradiction of his statement. 4. Rangler v. Hummel, 1 Wright 130, affirmed and distinguished.
73 Pa. 336Bolin v. Connelly (1873)
1. Benedict sold land in 1850 to Timmons, who in same year sold part to Burns, he in same year assigned to Connelly, who paid all the purchase-money of the part to Timmons in 1854 but did not takepossession. Benedict conveyed to Timmons in 1855; he conveyed to Whitmore in the same year. In 1865 Connelly brought ej ectment on his equitable title against Whitmore, which was indexed under the Act of April 22d 1856. Whitmore conveyed to Bolin pendente lite; Connelly obtained a verdict. In ejectment by Bolin against Connelly, held, that Bolin was concluded by the one verdiet against Whitmore, being in privity with him and the former ejectment being notice. 2. Peterman v. Huling, 7 Casey 432; Seitzinger v. Ridgway, 9 Watts 496, followed.
73 Pa. 339Palmer v. Wilkinson (1873)
1. In a scire facias on recognisance of bail in an appeal from an award of arbitrators, under “ nul tiel record,” the defendant cannot set up that the costs of the suit were not paid when the appeal was taken. 2. This plea puts in issue only the existence of the record recited in the wi'it. 3. When the non-payment of costs on appeal is by the exclusive fault of the prothonotary in withholding a knowledge of part of them, the payment of the omitted part may be enforced by attachment. 4. If no objection be made to the irregularity of the appeal and the appellant secures another trial, it is too late for him or his surety to interpose that to a recovery on the recognisance.
73 Pa. 342Farmers' Mutual Insurance v. Taylor ex rel. Grow (1873)
1. An application was made to the agent of an insurance company for a risk of $4000 ; the agent in forwarding the application said if the company would not take $4000, he would place $1000 in another company of which he was agent; the secretary said he would take but $3000, which was placed in the first company and $1000 in the other, both policies being issued at the same time: the conditions of first company avoided the policy unless other insurance were immediately notified to the secretary and endorsed on the policy; eight months after and before any loss, the agents endorsed the other insurance on the policy and notified the company, who made no objection ; the agents wrote policies for the company, to be countersigned by the agents. Held, in an action to recover for a loss, there was evidence for the j ury that the company had notice of the additional insurance when their policy was issued. 2. The company could not with knowledge of the facts retain the premium and withhold their objections till after a loss. 3. A policy was to be void if assigned without the written approval of the secretary. It was assigned and an approval signed by the agent “for secretary,” the agent was accustomed to approve assignments and report monthly to the company on blanks furnished for that purpose by the company ; this assignment was immediately reported in addition to the monthly reports. Held, that the policy was not avoided after loss, by the assignment. 4. The agent informed the secretary the next day after the loss. This was sufficient notice. 5. A statement of loss may be waived by the company, and if there be evidence from which a waiver may be inferred it is for the jury. Evidence of waiver in this case sufficient to go to the jury. 6. If a company expressly gives an agent powers outside his written authority, or encourages him to exercise them for a long time and ratifies them, so as to induce the public to rely on his enlarged agency, they cannot after a loss fall back upon his written authority to avoid acts done by their encouragement in the general scope of the business. 7. The public is justified in presuming that such continued acts are within the agent’s authority. 8. The acts and declarations of the general agent and adjuster of an insurance company in the scope of his employment communicated to the insured, are admissible in evidence.
73 Pa. 354Connay v. Halstead (1873)
1. The Act of February 24th 1806, sect. 28 (Judgments), does not give the prothonotary all the powers of an attorney at law to confess judgment. 2. The prothonotary can confess judgment on warrant, only when on the instrument the amount due appears, or can be rendered certain by calculation from its face. 3. A contract was for the sale of land at $10 per acre, the quantity to be ascertained by a survey, with warrant to enter judgment. Meld, that the prothonotary could not enter judgment on the instrument. 4. On a rule to strike off a judgment entered on the instrument, the court upon plaintiff filing a statement of the survey and affidavit of the amount due, discharged the rule. Held, to be error; such judgment could not be aided by evidence outside the instrument.
73 Pa. 357Bowen v. Goranflo (1873)
76, to July Term 1872. This was a feigned issue to try the validity of a paper writing, purporting to be the will of Hannah E. Bowen, déceased. The issue was framed November 10th 1871; William A. Goranflo, the executor named in the will, was plaintiff, and Thomas Bowen, who was husband of the decedent, was defendant. William Goranflo was brother of the decedent.
73 Pa. 359Seibert's Appeal (1873)
1. At the time of a levy the defendant claimed of the sheriff his exemption ; no appraisement, &c., was made by the sheriff, who shortly afterwards went out of office. At the request of defendant made the day before the sale on the vend, ex., the next sheriff, on the day of sale, had the defendant’s real estate appraised. Held, that the defendant was entitled to his exemption from the proceeds of the real estate. 2. When the sheriff wrongfully allows an appraisement, the remedy of the plaintiff is to move to set it aside.
73 Pa. 362Swift's Executors v. Beneficial Society (1873)
1. A beneficial society whose benefits and benevolence are confined exclusively to its contributing members is not a charitable use within the 11th sect, of Act of April 26th 1855 (Bequests to Charities). 2. Babb v. Reed, 5 Rawle 155, approved.
73 Pa. 365McHose v. Fulmer (1873)
165. This was an action of assumpsit, brought January 25th 1872, by Henry Pulmer and Peter Uhler, trading as the Eastoli Iron Manufacturing Company, against Samuel McHose and others, trading as Samuel McHose & Co. The cause of action was the following note :— “$1237.25. Allentown, Oct. 27th 1871. Sixty days after date we promise to pay to the order of Easton Iron Manufacturing Co., twelve hundred and thirty-seven dollars and twenty-five cents, at Pirst Nat.
73 Pa. 368Meitzler's Appeal (1873)
1. The wife or a member of the family of an absent defendant in an execution may claim his exemption for him?. 2. There was conflicting evidence before an auditor, whether at the time of the levy the wife of an absent defendant had made a claim for the exemption, no appraisement was made under the claim. The auditor holding that if the claim had been made by the wife, the remedy was by action against the sheriff, declined to decide the question of the claim. Held to be error, and the record was remanded with directions to refer the matter to an auditor to determine the facts.
73 Pa. 370Weber v. Reinhard (1873)
71, to July Term 1871. This case was commenced March 5th 1870, before a justice of the peace, at the suit of James Reinhard and Benjamin Eisenhard, supervisors of Upper Saucon township, against Charles B. Weber, for the recovery of taxes imposed by the Act of April 14th 1868 (Pamph L. 1127).
73 Pa. 378Worman v. Kramer (1873)
1. A sale of goods in the hands of a bailee is good against an execution-creditor, if the vendor do not retake possession. 2. Kramer bought an omnibus and horses from Berkenstock, whom he immediately employed as driver; the horses were kept at the stable of a third person. Held, that this was not per se fraud, if the stock was really kept by the bailee in an open and notorious manner, and this was for the jury. 3. The court charged, “ a concurrent possession exists only where the person in actual possession has some interest in it as part owner.” Held to be error. 4. Where the control and use of goods by vendor and vendee are so confused and mixed, as to leave the question of possession uncertain, the sale however honest, cannot be sustained. 5. A constable levied on horses, &c., of a vendee for the debt of the vendor; he offered to return one horse as taken in mistake, and it was refused unless with the return of all. lie returned the horse to the stable whence he had taken it. Held, that this was evidence in mitigation of damages. 6. The horse being offered back in a reasonable time in good plight, it was the duty of the vendee to receive him.
73 Pa. 387Laubach v. Laubach (1873)
1. J. sold stock to T., and agreed that when T. should desire it, he would take it back and repay the price. Held, that upon tender of the stock T. might recover the price with interest. 2. On a refusal by a vendee to accept goods sold him, the measure of 7 damages is the difference between the contract and the market price at the time of refusal. 3. Where the contract is that the vendee may rescind the contract, the vendor to pay back the price, or the contract is rescinded by the vendee by reason of inherent vice, the measure of damages is the price paid and interest. 4. Where there is a general objection to evidence and part is admissible, it is not error to overrule the objection, although part of the offer be inadmissible. In such case there must be a special objection to the inadmissible part.
73 Pa. 393Kistler's Appeal (1873)
1. A sheriff’s sale is made against the will of the defendant, and he has no control of the direction the title is to take, and if there be no fraud practised by the bidder, the defendant can obtain a title only by repurchase. 2. Saeger’s property being to be sold by the sheriff, he consulted with German, Kistler and others, and it was understood that Kistler should purchase for his benefit. At the sale Kistler was absent, the property was struck down to German for the benefit of Saeger at its full value, and at Saeger’s request deed made to Kistler, who paid the money, he agreeing to hold it for Saeger that he might have a home. Saeger was insolvent and continued to be unable to refund the money. Held, not sufficient to make Kistler trustee ex maleficio for Saeger. 3. Such agreement is within the Statute of Frauds and cannot be enforced. 4. The evidence to establish a resulting trust, especially one ex maleficio, should be clear, explicit and unequivocal.
73 Pa. 400Ritter v. Singmaster (1873)
192. This was an action of assumpsit, commenced January 24th' 1871, by James Singmaster and others, trading as the Millerstown Savings Bank, against John M. Ritter and Peter Marck.
73 Pa. 404Allentown v. Henry (1873)
249, of January Term 1873. On the 13th of May 1872, the city of Allentown brought an action before a justice of the peace against William Henry for water-rent, for two houses of defendant in the city. The justice gave judgment for the city for $11; the defendant appealed to the Court of Common Pleas.
73 Pa. 406Allentown v. Kramer (1873)
1. A municipal corporation has a right to raise its streets and bridge them in order to improve their usefulness. 2. When a municipality exercises its lawful authority derived from the state, it is not liable for collateral injuries from the exercise of its power. 3. For negligence in the construction or repair of public works (when repair is a duty), the corporation is responsible for special damage caused by its negligence.
73 Pa. 410Kaul v. Lawrence (1873)
1. Plaintiffs having given evidence of a treasurer’s sale and of diligent and fruitless search for his deed, the record from the prothonotary’s docket of the acknowledgment of the deed, was admissible to prove its contents. 2. Ejectment was brought by two for a whole tract of land; it appearing ^hat one-twentieth was owned by another, an amendment adding his name proper. 3. Amendments should not be allowed so as to deprive the opposite party of any right. 4. A party will not be allowed by amendment to shift or enlarge his ground by introducing an entirely new cause of action, especially when by reason of the Statute of Limitations, an injury would result to the opposite party. 5. In ejectment a name was added as plaintiff after suit brought; upon request, the court should charge, that if at the time of the amendment the title of the new party was barred by the Statute of Limitations he could not recover. 6. Payne, a surveyor, located a warrant on a wrong tract; the land as under the warrant was sold according to his location, improvements made, &c. He became owner of the tract on which he located the warrant; he sold. Held, that his successors in title were not estopped- by his mistake from claiming the land. 7. Every owner is presumed to know the identity of his own land.
73 Pa. 418George v. Messinger (1873)
1. Residence without cultivation, or cultivation without residence, will prevent land from being sold as unseated. 2. Cultivation is sufficient without regard to the value of the product or its adequacy to discharge the taxes. 3. Residence or cultivation commences at the moment of entry, and if continued seats the tract; but a residence may bo so short or the cultivation so slight as to make the intention a controlling element. 4. Timber land was used for lumbering, the owner erected buildings, barns, &c., for those employed, there was some cultivation arid there were wagons, teams, &c., on the premises. Held, that the land could not be sold for taxes as unseated. 5. That the land was decreased in value by the lumbering did not alter the case. 6. Lackawanna Iron Co. v. Fales, 5 P. F. Smith 98, followed.
73 Pa. 423Green v. Brennesholtz (1873)
1. A warrant and survey were in the name of McNair; after his death, a patent was made to the plaintiff reciting that the land had been conveyed to him by the executor of McNair; there being no evidence of authority in the executor to sell, the recital was not evidence of plaintiff’s title against one in possession. 2. Plaintiff having a patent sued in trover under Act of March 29th 1824, for timber cut from the land before the date of the patent, not showing that he then had the title of the warrantee. Held, that he could not recover. ■ 3. The defendant’s liability was fixed to the owner at the time of the conversion. 4. Gingrich v. Foltz, 7 Harris 38 ; Penrose v. Griffith, 4 Binney 231, followed.
73 Pa. 427Bower v. McCormick (1873)
1. When a plaintiff's claim before a justice is reduced below $100 by payments or dealings which are actual payments, the justice has jurisdiction; but jurisdiction cannot be given by merely remitting a part. 2. Interest being an incident, may be waived, but no part of the principal can be thrown away in order to give jurisdiction. 3. Where, as in trover, the value of goods has no fixed standard, but depends on circumstances and opinion, it seems, a plaintiff, in an action before a justice, may fix the value on his own belief. 4. Plaintiff before a justice claimed the value of logs, “ measuring 20,310 feet at $6 per thousand, from which he deducts $22, leaving a balance now claimed of $99.86. Held, that this did not give the justice jurisdiction. 5. Collins v. Collins, 1 Wright 387 ; Evans v. Hall, 9 Id. 235, approved.
73 Pa. 431Haffey v. Carey (1873)
1. A wife may mortgage her estate to secure future as well as present indebtedness of her husband. 3. The provision of the Married Woman’s Act (April 11th 1848), that her property shall not be sold, &c., by her husband without her written consent acknowledged before a judge, &c., does not apply where the husband and wife unite in the sale, &c.; the law as to that is as before the Act of 1848. , 3. Moore v. Cornell, 18 P. F. Smith 320, explained.
73 Pa. 433Warren Borough v. Daum (1873)
1. A borough council resolved to levy tax sufficient to pay each person who should enlist, a bounty not exceeding $300. This was not an offer to pay a bounty to volunteers. 2. The resolution gave no right to any one to enlist and demand the bounty. 3. The plaintiff enlisted in Virginia in 1864 as a veteran; on the muster-roll his place of residence was stated to be “ Warren, &e.” Held, that the Act of May 1st 1866, enacting that the place of residence named in the muster-rolls shall be considered the place of credit, did not create an obligation against Warren, if one did not exist before. 4. The re-enlistment of itself was not notice to the defendant. 5. To establish a contract by acceptance of a proposition, it must appear that the one making it was notified of the acceptance.
73 Pa. 438Hess v. Herrington (1873)
1. Assessors did not value unseated land returned by them, and the com- . missioners assessed a tax at a valuation of $1 per acre, which was the uniform valuation of all unseated lands in the county. Held, that this was at most an irregularity which was cured by the Act of 1815. 2. Unseated land may be sold for taxes on an assessment without the intervention of the assessor. 3; Tho curative provisions of the Act of March 13th 1815, do not apply to a sale by commissioners of unseated land bought by them at treasurer’s sale. ' 4. The act does not require that the book to be kept by the commissioners of lands bought by them at treasurer’s sale, shall be a separate book without other entries. ' 5. A plaintiff in ejectment must show a primé facie title, whether his claim be by a tax sale or otherwise; or whether against an intruder or one setting up a right of possession. 6. Land surveyed as 111 acres was assessed in the warrantee name in three tracts, one of 60 acres and two 40 each; one 40 acre tract was sold for taxes and conveyed as a tract of 40 acres, giving township, &c., surveyed to J. Coleman; there was no evidence that the other two parts were seated or any evidence of distinct identification. Held, that there was no evidence of identity for the jury. 7. Coxe v. Blanden, 1 Watts 533, distinguished.
73 Pa. 448Butler's Appeal (1873)
j. An Act of Assembly must violate some prohibition of the State or Federal Constitution, expressed or clearly implied, before it can be declared unconstitutional. 2. The legislative power of taxation may be delegated to a municipal corporation, to be exercised within its corporate limits. 3. The legislature may exempt classes of property as well as classes of persons from taxation. 4. The Act of April 2d 1872, supplement to the charter of Wilkesbarre, is constitutional. 5. An act authorized the councils of Wilkesbarre to impose a tax for police purposes “ on bowling alleys, and billiard tables, * * * and also auctioneers or other vendors of merchandise or articles by outcry, * * * and all other places of business or amusement conducted for profit.” This did not authorize a tax on merchants, bankers, brewers, &c. 6. "Other places of business or amusement,” should be of the character of those specifically designated. 7. The ordinance of councils enacted that after notice and failure to pay in ten days, the party should “ upon conviction pay a fine not exceeding ¡glO’O, or imprisonment not exceeding thirty days or both at the discretion of the mayor.” This being without'authority in the act could not be enforced.
73 Pa. 453Boynton v. Housler (1873)
1. Where a parol contract for purchase of lands has been carried on maid fide, there is a resulting trust and equity will decree a conveyance. 2. Equity will not permit one to hold a benefit which he has obtained by fraud, either of himself of another. 3. A decedent’s estate was to be sold on execution, the widow having an interest to the extent of her exemption ; her friends agreed to purchase the land for her; the execution-creditor agreed with her that if they would not bid against him he would convey a portion to her ; they refrained from bidding and he bought the property at an undervalue. Held, that he was p, trustee ex malefioio for the widow. 4. The widow having an interest in the land under the exemption laws, the agreement was not void as to the creditors of the decedent. 5. Beegle v. Wentz, 5 P. F. Smith 369 ; Seichrist’s Appeal, 16 Id. 237, approved ; Slingluff v. Eckel, 12 Harris 472, distinguished.
73 Pa. 459Frow, Jacobs & Co.'s Estate (1873)
1. Foresman sold out his interest in a firm to the remaining members, who covenanted jointly and severally to pay the debts, and indemnify him against them; the remaining members continued in the same business as a partnership, took all the first firm's assets and took upon themselves the debts, without any division of Foresman’s interest. Foresman paid debts of the first firm, the second firm afterwards assigned for the benefit of creditors. Held, that Foresman was entitled to come in as a creditor. 2. The distribution of firm assets is governed by the equities of the partners not the rights of creditors. 3. In insolvency the firm assets go to discharge the firm creditors before the individual property of the members can be taken. 4. The other partner, having bought Foresman out and indemnified him, he became their surety, and having paid debts was subrogated to the rights of the creditors. 5. Cottrell's Appeal, 11 Harris 294 ; Kyner v. Kyner, 6 Watts 221 ; McCormick v. Irwin, 11 Casey 111; Snodgrass’s Appeal, 1 Harris 471, followed.
73 Pa. 467Reading v. Finney (1873)
Error to the Court of Common Pleas of JElh county: Of January Term 1873, No. 22. This was an action of ejectment, brought December 17th 1870, by John G. Reading and Charles Bartles against A. C. Einney and others, for a tract of land in Jay township, containing 154 acres more or less. The tract is part of warrant No. 4896 to Wilhelm Willink, surveyed July 18th 1794, as 990 acres, in Clearfield county. The survey was interfered with by other warrants surveyed in 1785, known as the “ Creek Surveys,” so that warrant and survey No. 4896 could hold but 790 acres. The plaintiffs claimed the 154 acres under one Joel Woodworth, who they alleged had marked off from the east side of the 790 acres and occupied this tract which he estimated to contain 150 acres; it was sold for taxes in 1852, in Elk county, in which it then was; Elk county having been erected in 1844 and this part of Clearfield county included in it, the plaintiffs claimed under that sale. Warrant No. 4896 had been assessed as 559 acres in Clearfield county, sold for taxes in 1832, bought by the commissioners of that county; in 1838 the commissioners sold it to Josiah W. Smith, by metes and bounds, describing the whole of warrant No. 4896, except that part covered by the “ Creek Surveys.” The defendants claimed the 150 acres as part of warrant No. 4896, and as included in the tax sale to the commissioners, and the sale of the commissioners to Mr. Smith. The question was whether the 150 acres were so separated from the rest of the survey, as to exclude them from the operation of the tax sale of the warrant as 559 acres in 1832. The case was tried August 6th 1872, before Vincent, J. The plaintiffs gave in evidence the warrant and survey to Willink, of No. 4896; assessment in Clearfield county for 1826, No. 4896; 150 acres to Joel Woodworth and for 1829, same. They gave evidence that this 150 acre tract was sold for taxes for the years 1845 and 1846 in the name of Peter Clark, and treasurer’s deed to Selah Morey, acknowledged September 25th 1847. Deed, November 22d 1847, Selah Morey to Erasmus Morey; assessment 1846, 1847, in the name of Peter Clark, 150 acres, No. 4896; taxes paid by Erasmus Morey. Assessment 1850, 1851, Erasmus Morey 150 acres, No. 4896, sold for taxes June 14th 1852, and treasurer’s deed October 8th 1852, made to William P. Luce; assignment May 6th 1854, Luce to Charles W. Blake. Deed, December 29th 1854, Blake to John Gibson, all for the same 150 acres. Will of Gibson proved March 21st 1865, authorizing his executors to sell his land in Elk county. Deed, July 11th 1866, executors of Gibson to plaintiffs for same land. The assessments given in evidence in Clearfield county of No. 4896, were as follows:— 1813. No. 4896 990 acres Owner unknown. Val. $125. 1821. “ Wilhelm Willink. “ 249. 1823. a k ii “ 742. 1826. 159 Joel Woodworth. “ 119. 559 Gilliam Demorest. “ 137. 1829. 350 Joel Woodworth. “ 54. 559 Alexander Boyd. “ 205. 1832. 150 (No name.) “ ' 37. 1833. 150 Joel Woodworth. 37. 1838. 150 Peter Clark. 38. 1841. 559 Wilhelm Willink. 278. 1842. 150 Peter Clark. “ 150. 1843. Il It “ 150. (I It “ 150. Plaintiffs gave evidence further, by the deposition of Oliver Gardner that Woodward claimed to own the 150 acres about 1820; a man named Gellatt claimed to own afterwards and sold to Clark. Erasmus Morey’s testimony was about the same; he testified also that he did not know from whom Woodworth bought. Charles Webb testified that between 1823 and 1831, he met Woodworth, who said he was going to make an improvement in the north-east part of No. 4896; witness had not heard of his claiming the land before that time. Plaintiffs gave evidence that Woodworth whilst he claimed to own the land said it had been surveyed off. They gave evidence also, of a survey counting from 1822, which contained 157 acres strict measure. The defendants gave in evidence, assessment 1813 of No. 4896, in Clearfield county, “ owner unknown” 990 acres. Deed, Alexander Boyd to Gilliam Demorest, of No. 4896, 1050 acres. Assessment in 1821, 1823 in the name of Willink, 990 acres, 1826, No. 4896, 559 acres; “Demorest,” 1829,No.4896, 559 acres, “Alexander Boyd.” From treasurer’s unseated land book from 1822 to 1832 inclusive: “ 1830 Alexander Boyd, No. 4896, 559 acres, Gilliam Demorest.” Sold to county commissioners at sales of 1832, Gilliam Demorest, No. 4896, 559 acres and conveyed to them by treasurer’s deed, acknowledged January 2d 1833. Deed, commissioners of Clearfield county dated February 3d 1838, to Josiah W. Smith; the boundaries in the deed include all No. 4896, except the part cut off by the “ Creek surveys” ; the recital was, “ being part of a larger tract of land which was surveyed 18th of July 1794, in pursuance of a warrant dated February 3d 1784, granted to William Willink and known by No. 4896, containing 990 acres, &c. Assessment, 1838. No. 4896 559 acres Willink. “ 1841, 1842, 1843. “ “ J. W. Smith. Taxes paid by J. W. Smith March 19th 1844. No. 4896, 1841, 1842,1843 — “ Willink.” “Taxes paid by J. W. Smith, 559 acres.” Elk county, 1844, No. 4896, 559 acres “paid in full March 9th 1848, by J. W. Smith.” Smith conveyed to William Woodman, June 14th 1847, all the tract No. 4896 as described in the deed from the county commissioners to him. The title of Smith was admitted to be in the defendants. The defendants gave in evidence also surveys of the whole of No. 4896, as claimed by them. The plaintiffs, in rebuttal, gave evidence by 0. Gardner, that he had lived near the property since 1828; the first owner of the 150 acres of whom he had knowledge was Potter Goff; he conveyed to Joel Woodworth; he to Richard Gellatt; he sold to Clark, and the land for several years was called Clark’s land; witness did not recollect any survey of the 150 acres; had no pfersonal knowledge of the boundaries; Woodworth exercised acts of ownership over the 150 acres and paid taxes on it. The following are points of the parties with their answers:— Plaintiffs’: “5. If the jury believe that the hemlock, and line running south therefrom of 1822 (or 1828) were marked for the western boundary of the 150 acres, assessed successively to Wood-worth, Clark and Morey, the plaintiffs are entitled to recover all the land east of said boundary.” Answer: “This is correct, if you believe that Woodworth had any title from the original warrantees, or that he could assert against them, and that Smith did not acquire by deed from the commissioners their title to the whole, as we have explained in our general charge.” • “ 6. If the jury believe that Joel Woodworth’s claim to 150 acres, was designated by marks on the ground severing it from the remainder of the warrant, leaving 559 acres and upwards remaining, and that the assessment of warrant 4896, in two parts, of 150 acres and 559 acres respectively, prior to 1852, as well as since, had reference to such a division, then defendants have no title to the land in controversy, and the plaintiffs must recover.” Answer: “ It does not follow that plaintiffs can recover even if you find the facts as stated. It may be that defendants have no title to this 150 acres, but it does not follow that plaintiffs have; and in such a case, the defendants being in possession, have the best position, as we have explained in our general charge.” Defendants’: “ 2. The deed from the commissioners to Josiah W. Smith gave to him and to those holding under him, such a title as entitled them to be treated by the assessors and commissioners, as owners of said lands within said boundaries, and entitled them, so far as respected taxation of said land, to all the rights of owners, and especially so as against the present plaintiffs, whose title originated by tax sale long after the Smith title had been acquired and put on record.” Answer: “ This is correct, unless the plaintiffs have a title good as against original warrantee, as we have explained to you.” “ 4. The assessors and commissioners of Elk county, could not under the circumstances in evidence, lawfully make a separate assessment and sale of 150 acres out of the piece which was assessed as 559 acres, without the knowledge and consent of the owners of that piece, and such assessment and sale, if made, conferred no title.” Answer: “ This is correct, but we leave to you as a fact who was the owner of the 150 acres as explained in our general charge.” In charging the jury the court said: * * * “ The whole title held by Smith to the land in dispute, by virtue of his deed from the commissioners of Clearfield county, is now vested in the present defendants, and it is a good prima; facie title against anybody, except, perhaps, the original warrantees, or their heirs or grantees. * * * 4< The plaintiffs must recover on the strength of their own title, and not on the weakness of the defendants’, and until they show such a title in Woodworth as could be asserted against the real owner of the land, they cannot recover.” The verdict was for the defendants. On the removal of the record to the Supreme Court, the plaintiffs assigned for error the answers to the points and the foregoing portions of the charge. Sale of unseated land for taxes passes the title to the purchaser in whose name soever taxed: Strauch v. Shoemaker, 1 W. & S. 166. It was the duty of the owner to return the correct amount of his land, and he cannot complain that the part omitted is taxed separately and sold: Williston v. Colkett, 9 Barr 38. There was an actual separation of the 150 acres; it could therefore be taxed and sold by itself: Biddle v. Noble, 18 P. F. Smith 279. Woodworth was an intruder and could not question the validity of the treasurer’s or commissioners’sale: Troutman v. May, 9 Casey 455; Dikeman v. Parish, 6 Barr 210; Shearer v. Woodburn, 10 Id. 512. The severance must be by the owner of the tract: Brown v. Hays, 16 P. F. Smith 229.
73 Pa. 474Dundas's Appeal (1873)
1. The Orphans’ Court alone has authority to ascertain the amount of a decedent’s property and order its distribution. 2. The Orphans’ Court in the distribution of an estate amongst legatees, next of kin and heirs has power to inquire into and determine all questions standing directly in the way of distribution. 3. The Orphans’ Court has jurisdiction for the recovery of a legacy although not charged on land. 4. A residuary legatee before the amount of his share was ascertained, assigned it to the wife of an executor for a sum much less than was ascertained to be its value. He petitioned the Orphans’ Court for a decree against the executors to pay him Ins legacy, setting out the assignment and alleging that it was obtained by fraud. Meld, that the Orphans’ Court had jurisdiction. 5. In the distribution of an estate in the Orphans’ Court, each must be heard in support of his claim and in opposition to every claimant interfering with it; the power to decide all questions, essential to distribution follows the power to distribute. 6. Kittera’s Estate, 5 Harris 416 ; Whiteside v. Whiteside, 8 Harris 473, followed.
73 Pa. 483Seventh National Bank v. Cook (1873)
1. A check was drawn to Cook, Barnes endorsed Cook’s name without his authority and received the money ; the bank deducted the check from the drawer’s account and settled with him on that basis. Held, that Cook could recover the amount of the check from the bank. 2. The conduct of the bank was an acceptance and bound it as a certified check would.
73 Pa. 485Riesz's Appeal (1873)
1. Specific performance of an agreement to sell real estate will not be de- ' creed against a vendor, a married man, whose wife refuses to join in the conveyance, unless the vendee is willing to pay the full purchase-money and accept the deed without the wife; if not, he must resort to his action at law for damages. 2. No abatement which can be made in the price on the ground of the wife’s right of dower, will be just to both parties without making anew contract for them. 3. Bitner v. Brough, 1 Jones 127, referred to as to damages.
73 Pa. 491Pennsylvania Railroad v. Patterson (1873)
73 Pa. 502Hosie v. Gray (1871)
73 Pa. 504Pennsylvania Railroad v. Beale (1873)
Error to the Court of Common Pleas of Juniata county: No. 22, to May Term 1873. This was an action on the case brought to December Term 1871, by Elizabeth Beale, widow and others, children of Thomas Beale, deceased. It was to recover damages for the death of Thomas Beale, occasioned as the plaintiffs alleged, by the negligence of the defendants. The cause was tried September 3d 1872, before Bucher, P. J., of the Twentieth District. On the 2d of September 1871, the deceased was driving with his son in a “spring wagon,” near the borough of Patterson, in Juniata county; the road on which he was travelling crossed the Pennsylvania Eailroad at right angles at the east end of the borough; in passing over the railroad, the carriage of the deceased was struck by the locomotive engine of the fast line going east, and he was killed. The single question considered in the Supreme Court, was as to the concurrent negligence of the deceased. James Beale, son of the deceased, testified: “We left home early, in a spring-wagon.' I drove. We came down the hill on a very slow walk, so that we could hear if any trains were coming. When we came to opposite the cave we stopped almost a dead stop. We both listened, and we could hear no train. Father told me to go on. We went on, and could see nothing until we got on to the track that the train was to go down on. Just as we got on the track we both looked up and saw the train. He told me to hit the horse a cut quick and go on. Just as I raised the whip the train struck the wagon, and that is the last I remember. Could not see up the road on account of the trains and the fog. There is a turn just above the cave. The hill is just above the cave. I did not measure from the cave to railroad. We did not stop entirely. Neither of us got out and went to the railroad. I was driving. The hill obstructs the view from the cave, so we could not see the railroad except right straight before us. The first time after we left the cave and looked up the track, was right when we were on the track and train was coming. Then I was alarmed and did not see much else. We did not drive from cave to the track on a trot. When he saw the cars he told me to give the horse a cut. I did so, and the horse jumped forward on the track. Just then the train struck, and that is all I know. Could not see up the track till I got on it.” George W. Jacobs testified: “ Am acquainted with the crossing. In approaching it from the west we first come in sight of it seventy yards from south siding. From this point can see only a few steps up the road above crossing — that is, when the track is clear. At thirty-five yards from rail on south siding can see about seven yards above crossing, except through a small opening between the high bank extending along railroad and the watch-box. Through this can see fifteen yards above crossing. At sixteen yards from same track can see ten yards above crossing, past south end of watch-box, and twenty yards up through the opening before mentioned. At ten yards from south crossing can see up the track eighteen yards on down track, and about eighteen yards to the small aperture at watch-box. At seven yards from same crossing can see above crossing twenty-eight yards on east track. At three yards from same track cannot see up to the curve at upper end of Patterson on account of wood-shed covering the view. Wood-shed now removed. Can’t say liow far I could see up from three yards point. • From the crossing on railroad I could see up to curve — about five hundred yards. If cars are on south siding you would have to pass it to see up the track. I have tested that. I measured distance from crossing to tool-house; it is fourteen hundred feet. Standing in the road near the cave, nothing can be seen but the hill. There is a space of about ten feet from foot of bluff between it and watch-box. I could not see up through that space west along the track if there was a train on the south siding, unless I could see between the cars. I am not prepared to say whether, if sitting in open wagon on this open space and looking west towards the Patterson House, I could see stack of locomotive coming east. I don’t think I ever- did stand on level ground between track and bluff and look west to see cars coming.” There was evidence in. the case bearing on the questions of negligence by the deceased and by the defendants ; what has been given, with the charge of the court below and the opinion of the Supreme Court, will sufficiently present the case. The plaintiffs’ second point which was affirmed, was:— “ It is not the duty of one lawfully attempting to cross a railroad to stop and look both ways and listen for approaching trains, where, by reason of the nature of the ground and permanent or temporary obstructions and noises by the railroad company, the approach of trains to the crossing could not be discovered in time to avoid danger by stopping, looking and listening.” The defendants’ 'points which were denied, were:— 1. Before there can be a recovery in this case, the plaintiffs must show that Thomas Beale stopped before he reached the track and looked along the same and saw no approaching train; and, as there is no evidence whatever to sustain a finding that he so stopped, it is in law negligence on his part, and the verdict must be for the defendant. 2. As the uncontradicted evidence in the case shows that Beale did not stop before driving on the track, the verdict must be for the defendant. 3. Beale was bound, as every man crossing a railroad, in ordinary prudence, is bound, to look in all directions in which trains may approach, and to pause until he found he could cross with safety; and, as the evidence here shows he did not do so, there can be no recovery, and the court is requested to give binding instruction to that effect to the jury. 4. Upon the whole evidence of this cause the law of the case is with the defendant, and the plaintiffs cannot recover. Judge Bucher having spoken of the evidence and law as bearing upon the question of the defendants’ negligence, said:— “ The second question, then, is, was the deceased guilty of any negligence or carelessness that in any manner contributed to his death ? If he was, there is an end of the case, and the plaintiffs cannot recover; for then he was not injured by the defendant, but the accident would be laid to the door of the deceased, and would be his own misfortune or fault. The duty of a traveller, in passing along a public road or highway where the same crosses or intersects a railroad, has been declared by the Supreme Court in numerous decisions. It has been held that it is the duty of one lawfully attempting to cross a railroad, to stop and look both ways, and listen for approaching trains, before he ventures upon the track, and that the omission to do this is negligence. Did the deceased do that in this case ? The only evidence in the cause bearing upon this point, as to how the deceased approached the crossing, that I remember of, is the evidence of James Beale, the boy who was with the deceased at the time of the accident. He testified as follows:— * * * “From this evidence it is manifest, that deceased did not come to a full or complete stop, and, although he listened for the approach of cars whilst he was slowly going in the direction of the crossing, yet he did not look for any approaching train, save immediately in front and in the direction he was travelling. You will remember, the proof is, there was a high bluff or hill that intercepted or shut out the view of the cars in approaching the crossing from the west, at the cave, the point where the deceased slackened the pace of his horse and listened. This point was about seventy-five feet from the track. It is manifest, that if deceased had looked from this point for a train approaching the crossing, that it would have done him no good, for the bluff or hill obscured it from view. Whilst the law is fixed and settled, that it is the duty of the traveller, in crossing a railroad along a highway, to stop, look and listen before he goes upon the track, yet we do not understand the rule to be of such universal application as to control a case where stopping, listening and looking would have been in vain. The law does not demand vain and impossible things. Cases of this kind must necessarily rest upon the peculiar facts and circumstances. If you are satisfied, from the evidence, that there was any point along the public road upon which deceased was travelling, before he struck the railroad, from which he could have seen or heard the approach of this train, if he had stopped, looked and listened, we instruct you that it was his imperative duty to do so, and if he did not so stop, look and listen, there can be no recovery. On this branch of the case, then, to wit, the negligence of the deceased, we submit to you this question : Was there any point along the highway, upon which deceased was travelling, from which, if he had stopped, looked and listened, he might have heard or seen the approach of the train. If there was, there is an end of the case, and plaintiffs cannot recover ; for it was the manifest duty of the deceased to stop, look and listen before he went upon the track, if the ground and situation of the place allowed him to do so. The evidence is uncontradicted, that there was a level space of ground, about ten feet wide, between the hill or bluff and the first track or siding, on the approach to the track from the valley, upon which deceased was travelling. It was the plain duty of the deceased to have stopped there, and to have looked and listened for the approach of the train, if you find, from the evidence, that the approach of the train might have been seen or heard from there. Now, how is this ? Plaintiffs contend that deceased could not have seen or heard the train from this point, if he had stopped, looked and listened. This the defendant denies. The plaintiffs have called witnesses who have described the situation on the morning of the accident, and who state that the train could not have been seen or heard from this point, and the defendant has called witnesses to prove the opposite. You will bear in mind all the evidence upon this point upon the one side and the other — that of Mr. Jacobs and others for plaintiffs, and Mr. Black and others for defendant. Are you satisfied, from all the evidence in the cause, that the deceased, in approaching the crossing, acted as a prudent and careful man would have done under all the circumstances? It is conceded that the crossing was a dangerous one. The effect of this was to quielcen the diligence of both parties to avoid doing injury to each other. If you find that deceased did all a prudent, careful man could do, under all the circumstances, to inform himself of the whereabouts of the train before going upon the track, then he would not be guilty of negligence in going upon, the same, and your verdict should be for the plaintiffs, provided you find the defendant was guilty of negligence.” * * * The verdict was for the plaintiffs for $1000. The defendants sued out a writ of error. They assigned for error the denial of their points, the affirmance of the plaintiffs’ second point and the charge of the court. A traveller crossing a railroad must stop and look up and down, because the presumption is that a train may be approaching : Penna. Canal Co. v. Bentley, 16 P. F. Smith 30. Where, as in this case, the negligence of the deceased is clear, the court should so determine as matter of law: Pittsburg & C. R. R. v. McClurg, 6 P. F. Smith 294; West Chester & Ph. R. R. v. McElwee, 17 Id. 311; Catawissa R. R. v. Armstrong, 2 Id. 286; Pennsa. R. R. v. Ogier, 11 Casey 71. Not looking for a train is an entire failure of performance of duty’: Penna. R. R. v. Heileman, 13 Wright 64; Hanover R. R. v. Coyle, 5 P. F. Smith 396; Reeves v. Del., L. & W. R. R., 6 Casey 464. The obstructions to vision and hearing being such as that the stopping of the deceased would have been of no avail, there was no obligation on him to do so ; the question of negligence was for the jury : Philada. & Trenton R. R. Co. v. Hagan, 11 Wright 244; Hanover R. R. Co. v. Coyle, 5 P. F. Smith 396; Pa. R. R. Co. v. Goodman, 12 Id. 329; West Chester & Philada. R. R. Co. v. McElwee, 17 Id. 311.