77 Pa.

Volume 77 — Pennsylvania State Reports

90 opinions

77 Pa. 15Krugh v. Lycoming Fire Insurance (1874)
124. This proceeding arose on an application by Adam Krugh, to strike off a judgment which was entered against him in favor of the Lycoming Eire Insurance Company for if192.50.
77 Pa. 20Ballentine v. White (1874)
1. The 4th sect. of Act of April 22d 1856 (Frauds), requiring declarations be in writing, is prospective. 1. The 4th s of trust, &e., t 2. The 4th sect. of Act of. 1856 made no alteration in the rule theretofore existing, which allowed a deed absolute on its face to be shown by parol to be a mortgage. 2. The 4th ¡ 3. The words “ to enforce an equity of redemption,” in the 6th section of the Act of 1856, are confined to such an equity, “ after re-entry made for any condition brokenthey do not apply to the equity of redemption of a mortgagor. 4. Under the Act of April 15th 1869, a wife may be called by her husband as a witness, notwithstanding she may be compelled on cross-examination to give testimony against him ; the act provides for the competency of the witness, not for the effect of her testimony. 5. The refusal of a nonsuit is not a subject of review in the Supreme Court. 6. After direct evidence has been given as to the genuineness of writings, the testimony of experts is admissible, either to attack or support the instruments. 7. In equitable ejectments, the judge acts as chancellor, with the assistance of the jury, to determine the credibility of witnesses and questions of fact on conflicting evidence. 8. The character of the whole case must satisfy the chancellor that the equity is clearly, not doubtfully, established by the evidence, if believed. 9. As parties are now witnesses, if their testimony is in direct conflict: whether the chancery rule, that when the equity is distinctly denied by the defendant, the denial must prevail unless there be other evidence than the testimony of the plaintiff alone, shall operate; not decided. 10. Harper’s Appeal, 14 P. F. Smith 320; Maffitt «. B.ynd, 19 Id. 387, recognised.
77 Pa. 27Hanna v. Wray (1874)
1. Where one partner is dead, in a suit against the survivor for a claim against the firm, the plaintiff is not a competent witness, under the Act of April 15th 1869. 2. When a party to a thing or contract is dead and his rights have passed by his own act or that of the law to another representing his interest in the controversy, the survivor to that subject cannot testify to matters occurring in the life of the deceased party. 3. The rights and liabilities of a deceased partner under the partnership, devolve upon the surviving partner. 4. In the settlement of the partnership account of the survivor with the representatives of the deceased partner, the survivor would be entitled to credit for a judgment for a firm debt recovered against him without his collusion or neglect. 5. Whether plaintiff was competent under a special, offer to testify as to matters between him and the surviving partner only, riot decided. 6. Karns v. Tanner, 16 P. F. Smith 297, adopted.
77 Pa. 31Realf v. Realf (1874)
16, of October and November Term 1874. This was a proceeding in divorce by Richard Realf against Catharine L. Realf. The libel was filed and the subpoena awarded, August 1st 1872.
77 Pa. 34Kenney v. Altvater & Co. ex rel. Marks (1874)
1. Altvater and Marks, being partners as stone-masons, and having contracts for buildings, were purchasing stone for their business; Altvater sold tools to the defendant, owning a stone-quarry, under a contract that they should be paid for in stone ; the stone was delivered at the time specified, the firm having been dissolved previously; Altvater used them for his own purposes. Held, that the payment for the tools by delivery of stone to Altvater was good, although after dissolution, if defendant did not know of the dissolution. 2. The purchase of stone by Altvater was within .the scope of the firm’s business, and the payment by delivery of the stone to him was in fulfilment of the contract. 3. The misapplication by Altvater of the stone did not impair the validity of the payment. 4. A delivery in good faith to one partner, according to a contract, is a delivery to both ; each having authority to receive it. 5. A person dealing with a firm must have actual notice of dissolution, in order to avoid his transactions with one of the partners after dissolution. 6. A letter stating the dissolution, of a firm, sent by mail properly directed to defendant, with evidence that the letter was not returned from the Dead Letter office, is not sufficient, without other evidence of its receipt, to charge defendant with notice of the dissolution. 7. With slight corroboration a jury might find such notice. 8. The rule that letters properly directed and marked are evidence as of the dishonor, &c., of negotiable paper, is restricted to commercial paper.
77 Pa. 39Killbuck Private Road (1874)
87. The proceedings in this case were for a private road, upon the petition and for the use of James M. Graham, Benjamin Waters and F. H. Anderson, in Killbuck township. The petition was presented April 26th 1873, representing that the petitioners labored under “inconvenience for want of a private road to lead from the end of a private road (granted by IT.
77 Pa. 43Porter's Estate (1874)
200, to October and November Term 1874. In the estate of John M. Porter, deceased. The decedent died in December 1865, on or before the 4th of that month,having made a will, dated November 30th 1865, and seised and possessed of a large real and personal estate. He directed a large portion of his land designated to be divided into ten lots and sold by his executors.
77 Pa. 50Holmes's Appeal (1874)
No. 83, to October and November Term 1874. The proceeding in this case commenced November 7th by a bill filed by William Holmes against John A. Heckler; it set out:— 1.
77 Pa. 53Lockhart v. Bonsall (1875)
1. Bonsall bought from the plaintiffs for Ms firm. 5000 barrels of oil, to be delivered at buyer’s option before December 31st, on ten days’ notice, in bulk cars or bulk boats at Pittsburgif delivered by A. V. or AV. P. Railroad, buyer might designate any other point on those roads ; payment to be made as lots were gauged and delivered. He bought also for Mmself from plaintiffs 5000 barrels on precisely the same terms. On the 21st of December Bonsall gave plaintiffs two notices in the same terms to deliver the respective lots of oil, at such point or landing as he might designate, &c. The plaintiffs shipped all the oil to Pittsburg on 30th of December, had it inspected and gauged, and on 31st told Bonsall they would give him the numbers of the cars that he might examine ; he made no reply, but shortly after-wards, on the same day, gave plaintiffs notice to deliver at the Anchor works on A. V. Railroad; plaintiffs directed the oil to be delivered there, there not being room for all on that siding, the nearest sidings were filled, ready to put on Anchor siding as the others were emptied; they tendered to Bonsall 5981 barrels in bulk, the extra 981 to be on his own contract. He refused to receive, giving no reason. Held, that it was for the iurv whether the tender was sufficient. 2. It was Bonsall’s duty to give reasonable notice of the place of delivery and to be there ready to receive and pay for the oil. 3. The Anchor siding not having room to hold the cars, it was sufficient if the plaintiffs put the oil on the nearest sidings ready to be moved on the Anchor siding as it was emptied. _ 4. The sufficiency of the tender is to he determined by all the facts and circumstances connected with it and the motives of the parties. 5. Bonsall was not bound to accept more or less than his contract, but if there was a larger quantity, from which he might separate the 5000 barrels, it not being plaintiffs’ engagement to pump the oil from the cars, it was sufficient. 8. If the plaintiffs offered in good faith to deliver the oil, they were not hound to set apart the precise quantity named in the contract before offering to deliver. 9. Stevenson v. Burgin, 13 Wright 36, distinguished.
77 Pa. 62McArthur v. Kitchen (1875)
1. McArthur owned a seated, tract interfering with No. 1541; he recovered the interference from an intruder, who then abandoned the possession, and McArthur afterwards cut timber on it; all the interference was within the boundaries of 1541. Held, these circumstances did not make 1541 seated so as to prevent it from passing by a sale for taxes as unseated, nor give McArthur such constructive possession as to protect him under the Statute of Limitations. 2. To make 1541 seated, there should have been an actual entry and residence upon it, or clearing and fencing it, or cultivation on it, so as to arrest the attention of the assessor. 3. The intruder’s abandonment after the recovery against him, did not aifect the title of the true owner of 1541. 4. The owner could be affected by such act only as would compel him to take notice of the possession of a disseisor ; this would be nothing less than actual possession within the lines of 1541, with such use of the woodland within the interference as farmers usually make of their woodland, followed by a continued notorious and visible possession for twenty-one years. 5. To be effective, the possession of the woodland must be exclusive; cutting wood by the owner also, made it a mixed possession.
77 Pa. 71Vensel's Appeal (1874)
Appeal from the Court of Common Pleas of Clarion county: In Equity. Of October and November Term 1878, No. 132. The proceedings in this case were commenced February 12th 1872, by bill filed by Barney Yensel, assignee of Susan Yensel, widow of Jacob Yensel, deceased, against Lewis Coiner. Under various proceedings in the Orphans’ Court, the defendant had become the owner of real estate of which Jacob Yensel had died seised: his widow assigned to the plaintiff all her rights as widow in the rents and profits of the land; this bill was brought against the defendant for an account. The facts in the case, shown by the report of David Lawson, Esquire, master, were as follows: Jacob Yensel died on the 19th day of September 1845, intestate, seised of a farm containing about 100 acres, the same real estate referred to above; he left a widow, Susan Yensel above-named, and nine children (John Yensel and Jane Fink being two of them), and the children of a son deceased: six of the children conveyed their interests in the real estate to John Yensel. On the 7th of September 1852, he presented a petition to the Orphans’ Court, setting out the foregoing facts, the widow being named in the petition, and praying the court to award an inquest to make partition of the above-mentioned tract of land to and amongst the children and representatives of the intestate, or to value and appraise the same, &c. The inquest was awarded on the same day. The writ recited the petition, the widow being named in the writ. The inquest returned that having gone to the premises “ and the parties in said writ named, being served, warned and as many as chose being present,” the jurors found that the premises could not be divided, and therefore they valued them at $1000. The widow had notice of these proceedings. The record shows the following entry as to this inquisition: “December 22d 1852, approved, and rule on the heirs to appear at the next term and accept, or show cause why the same should not be sold.” This rule was directed by name, to all “the lineal decedents of Jacob Yensel, deceased, and to all other persons interested.” It cited them to appear at the Orphans’ Court, the first Monday in February 1853, “ to accept or refuse to take the real estate of Jacob Yensel, deceased, situate, &c., at the appraised value put upon it by an inquest, &c., returned, &c., on the first Monday of December last past, to wit: the entire premises at the sum of $1000.” The sheriff returned, without affidavit of service, that he had served the rule on all the children, and the guardian of those who were minors, “ personally and by copy.” The rule was not served on the widow ; the rule itself was not filed, but a copy of it and the return appeared on the record. On the 8th of February 1853, the court appointed D. B. Hamm, sheriff, trustee to sell the property. The record does not show any other action with reference to the rule upon heirs, except as is found in the recitals of subsequent proceedings. An order of sale was issued to Hamm on the 23d of February 1853. It recited the return of the inquest; that the court “having confirmed the same and none of the representatives having appeared to take” the real estate at the valuation, “ the court granted a rule on all the heirs and legal representatives of the said Jacob Yensel, deceased, requiring them to appear at the then next Orphans Court, &c., to accept and refuse the same at the valuation, and to show cause, if any they have, why the said real estate should not be sold. At which time due proof being made of the service of said rule according to the Act of Assembly, as appears by the return of the sheriff, and none of the heirs appearing to take the said (land), &c., at said valuation, it was considered by the court that they had relinquished their respective rights to take the same, and therefore at the instance of Jane Fink, one of the heirs,” &c., the court ordered Hamm to sell. The sheriff returned to the order of sale : “ April 30th 1853, cried the within property and sold the same to John Yensel for $700. The sale was confirmed May 7th 1853, and on the same day a deed was executed and delivered by the trustee to John Vensel the purchaser. It recited at large the petition for an inquest; the return of the inquest appraising the land at $1000, the confirmation of the inquisition; the rule upon the heirs and its service; also that none of the heirs appearing to accept or refuse, “ it was considered by the court that they had relinquished their respective rights to take the same;” it recited also the order of sale to the trustee. No reference was made in the deed to any interest of the widow, nor did the record show that her interest was in any way secured, or that she had notice of the proceedings after the inquisition. John Yensel having died seised of the 100 acres of land conveyed to him. as above stated, his administrators, Barney Yensel and Nelson Yensel, on the 5th of December 1860, petitioned the Orphans’ Court for an order of salé of his real estate, including the 100 acres above-mentioned, for the payment of debts. The petition set out that in this tract, “ Susan Yensel, widow of Jacob Yensel, deceased, has a dower of-one-third.” Ou the 8th of December an order of sale was awarded. The order recited as ip the petition, that the widow of Yensel “ has a dower of one-third;” and the order w*as to expose the real estate, “as set forth in said petition,” to sale. The conditions of sale stated that in this tract “ Susan Yensel, widow of Jacob Yensel, deceased, has a dower of one-thirdthis was also in the advertisement and handbills giving notice of the sale. The administrators returned, that they had sold this tract to Lewis Coiner for $1205, and on the 4th of February 1861, the court confirmed the sale and ordered a deed to be made to the purchaser. The administrators’ deed to Coiner made no reference to any interest of the widow of Jacob Yensel. The widow continued to reside on the property, farming it, and taking the products until the death of John Yensel. Previously to the sale to Coiner he was informed that the property was to be sold subject to the widow’s dower, and after the sale he frequently said that “ he had to give the widow the one-third of all that was raised on the farm.” She continued to live on the farm until the spring of 1871, when she left it. During this time the place was farmed by Coiner, and she received one-third part of all the grain and hay raised on the farm, also a third part of the fruit; after she left it Coiner gave her one-third of the crops until the fall of 1871. From the early part of 1871 until October 1872, Coiner made a number of leases of oil wells on which he received a royalty; he made coal leases also, from which he received a royalty, and there were perhaps additional sums of profit from the land other than those usually derived from farm land. The claim of the plaintiff was for one-third of the rents and profits of all kinds, including the receipts from the oil and coal leases, during the life of the widow of Jacob Yensel. The defendant’s defence, amongst other things was, that under the proceedings in partition, &c., in the Orphans’ Court, the widow’s dower was fixed by law, and that she was concluded by the inquisition and appraisement and approval of the proceedings by the court and these proceedings could not be inquired into collaterally. The master reported as his opinion, that the widow was entitled to notice of the rule on heirs in order to divest her interest under the intestate laws, and that although not entitled to take the land at the appraisement, she was a party in interest and should have been named in the petition, decree and notices. He therefore held that the Orphans’ Court had no jurisdiction over her interest and the proceedings in partition did not affect that interest. He stated an account finding that there was due from the defendant to the plaintiff the sum of $9000.69. The defendant filed exceptions to the master’s report. After argument the court, Jenks, P. Js; overruled the master’s finding and dismissed the bill. The plaintiff appealed to the Supreme Court and assigned for error, the decree dismissing the bill.
77 Pa. 77Allegheny County Home's Case (1874)
Appeal from the Court of Quarter Sessions of Allegheny county: Of October and November Term 1874, No. 228. The question in this case was the constitutionality of an Act ■ of Assembly, approved May 25th 1871 (Pamph. L. 1138). Its title was, “ An Act providing for an equitable division of property between the county of Allegheny and the city of Pittsburg.” The act recited, that certain parts of Allegheny, viz.: The borough of Lawrenceville and the townships of Pitt, Oakland, Collins, Liberty and Peebles, had been under Act of April 5th 1867, consolidated with the city of Pittsburg; that before the consolidation, the said borough and townships formed part of the poor district of Allegheny county, known as the Allegheny County Home, and had an interest in the property belonging to the Home; that by the Act of Consolidation, &c., the said borough and townships “ became a part of the poor district, under the care of the • guardians for the relief and employment of the poor of the city of Pittsburg.” By Sect. 1, it was enacted that the Court of Quarter Sessions of Allegheny county, on the petition of the guardians, &c., of the poor of Pittsburg, with notice to the Home, should appoint three commissioners, to perform the following duties:— 1. To inquire and ascertain the value of all the property belonging to the Home at the time the consolidation was consummated. 2. To inquire and ascertain what interest in said property the said borough and townships had as part of the poor district, known as the Allegheny County Home, at the time of the annexation to the poor district of Pittsburg, &c. 3. To inquire and ascertain what sum should be paid by the Home to the guardians of the poor of Pittsburg, for the interest of the said borough and townships in the property of the Home at the time of the consolidation. The commissioners to report to the Court of Quarter Sessions. Sect. 2. The Court of Quarter Sessions to make such decree on the report of the commissioners as justice might require, with the right to a certiorari or writ of error from the Supreme- Court to the decree. Sect. 3. The provisions of the act were “ extended to the city of Allegheny and consolidated districts thereof, in like manner as provided for the city of Pittsburg and consolidated districts thereof. On the 19th of August 1871, “ the guardians of the poor of the city of Pittsburg,” petitioned the Court of Quarter Sessions of Allegheny county to appoint commissioners to perform the duties required by the Act of May 25th 1871. Commissioners were accordingly appointed. The committee reported, making a distinct finding on each matter referred to them; they found that the value of the interest of the borough of Lawrenceville, and the annexed townships in the Home property at the time of the consolidation was $6085.72, which they reported the Allegheny County Home should pay to the guardians, &c., of the poor of Pittsburg, with interest from the date of consolidation. The court, after exceptions, corrected the report by striking off the interest, and with that correction confirmed the report. The Allegheny County Home took out a certiorari and assigned for error that the Act of March 25th 1871 was unconstitutional, because the bill contained more than one subject, which was not clearly expressed in the title.
77 Pa. 81McGunnigle v. McKee (1875)
Error to the Court of Common Pleas of Allegheny county: Of October and November Term 1874, No. 107. This was an action of ejectment, brought to the September Term of the court helow, by Maria Louisa McGunnigle and John A. McKee against Nettie Adelia McKee, for a tract of land in Stowe township, on the south side of the Ohio river, containing about 400 acres. Both parties claimed under James McKee; he died in June 1834, having made his will dated January 31st 1834, which was. proved June 14th 1834. Two of the clauses in the will were the following :— “ I give and devise to my son Thomas McKee, the lower end of a tract of land owned by me on the Ohio river, in the county of Allegheny, to be cut off and bounded by a line beginning on the top of'rock at the Ohio river and running in a north-westerly direction until it reaches the foot of said rock hill, thence to a marked black oak tree near McCoy’s corner, to have and to hold, to him and his heirs and assigns, subject to the legacies hereinafter mentioned and charged upon the same, provided, that if my said son Thomas should die without an heir, then all bequeathments hereinbefore made by me to him, shall be equally divided between my son Alexander and his children, to have and to hold to them, their heirs and assigns for ever. “ I give and devise to my son Alexander McKee and his children, all the upper end of the before-mentioned tract of land owned by me in the county of Allegheny, including the mouth of Char-tiers creek, and bounded on the lower side by a line hereinbefore designated as the upper boundary of that devised to my son Thomas, with all the improvements thereon erected, to have and to hold to them, their heirs and assigns for ever, provided, that if my son Alexander should die without an heir, then all bequeathments hereinbefore made by me to him shall be equally divided between my son Thomas and his child or children, to have and to hold to them their heirs and assigns for ever.” The land devised by the former of these clauses is the tract in dispute. Alexander McKee died September 9th 1867, leaving to survive him, a daughter, Maria Louisa McG-unnigle, now a widow, and a son, John A. McKee, the plaintiffs in the case, and also the children of two children who had previously died. Thomas McKee having’, married, had issue one son who died in Thomas’s lifetime without issue. Thomas survived his wife. Nettie Adelia McKee, the defendant, was born in 1853; she was an illegitimate child of Jeannette Andrews. This child, according to the evidence, lived in the house of Thomas McKee and he always kept her as a member of his family; she was maintained and educated, and taken into society and in every way recognised by him as his daughter. In 1858 Thomas McKee procured the passage of the following Act of Assembly, which was approved February 27th 1858. “ That Nettie Adelia McKee, of Manchester, Allegheny county, daughter of Thomas McKee and Jeannette Andrews, shall have and enjoy all the rights and privileges of a child born in lawful wedlock, and shall be able and capable in law to inherit and transmit any estate whatsoever, as fully and effectually as if she had been bom in lawful wedlock.” Thomas McKee died July 1st 1873, without other children. Ry his will, dated March 2d 1870, he devised the land in dispute, describing it by metes and bounds, with a large quantity of other land of his own acquisition, to, “ my beloved daughter Nettie .Adelia McKee.” He made two codicils to his will, in both which he devised other land to the defendant, describing her as “ my daughter Nettie Adelia McKee.” The case was tried March 25th 1874, before Stowe, J. The facts above .stated were given in evidence, and a number of points were submitted by the defendant. The third and sixth were affirmed and are as follows:— 3. “ Under and by virtue of the will of James McKee, and of the Act of .Assembly approved the 27th day of February, A. D. 1858, entitled's An Act to confer on Nettie Adelia McKee thn rights and privileges of a child born inlawful wedlock,’ the defendant, Nettie A. McKee, is entitled to the possession of the land in dispute, as the lawful heir and devisee of Thomas McKee. 6. “ Under the pleadings and evidence, the defendants are entitled to the possession of the land in dispute, and the jury should so .find.” The verdict was for the defendant. The answers to defendant’s points were assigned for error on the removal of the record to the Supreme Court by writ of error by the plaintiffs. One of the questions discussed in the Supreme Court related to the character of the estate which passed to Thomas McKee by the will of James McKee. The plaintiff in error contended that he took an estate but for life or at most an estate-tail which had not been barred. The defendants in error contended that Thomas took an absolute estate in fee; if not — then a fee, with executory devise over to Alexander in tail, with no determinate period in which the failure of issue was to take place, and the devise over therefore was void. The other question was as to the effect of the act legitimatizing the defendant. The arguments of counsel were very exhaustive and able, but so extended that it is impracticable to do them justice by such synopsis as the space that could be properly appropriated to them here would allow'.
77 Pa. 86Gibbs v. Peck (1875)
1. The provisions of the Act of February 17th 1858 (Mechamos' Liens on Leaseholds), so far as they relate to the verifying of liens, the time of filing and their continuance, are repealed by the Yenango Act of April 8th 1868, extended to Crawford county ; that act requiring the claim to be verified by affidavit, and scire facias issued within three months after filing the claim. 2. A lien on a leasehold, not verified by affidavit, was filed in Crawford county, December 23d 1871; scire facias issued to April Term 1873, and affidavit of defence filed. January 10th 1874, motion to strike it off; lien struck off April 6th 1874. Held, to be correct, the lien having been discharged by non-compliance with the provisions of the Act of 1868.
77 Pa. 89Keating v. Orne (1875)
1. Barney, being about to buy land from Vensel, and hearing that Keating had a claim to part of it, asked Keating, without saying he wished to buy, if he claimed any of the land. Keating said “he thought he claimed part, but it did not amount to much, and he did not calculate to give Vensel much trouble about it.” Prom this Barney thought the title was good, and after-wards bought it. Held, that in this there was neither such fraud, encouragement nor silence as would estop Keating from recovering the land from Barney’s vendee. 2. Keating stating that he had a claim should have put Barney on inquiry; omitting to do so, he took the risk of the claim. 3. Whether an estoppel results from established facts is a question for the determination of the court. 4. An estoppel operates to hold one to facts as he alleges them, although false; and not for the purpose of proving the facts different from the statement. 5. A naked declaration of an intention, made to one giving no reason for the inquiry, will not prevent- the assertion of a right contrary to such intention. 6. The affirmance of a point which leaves to the jury to determine both law and facts is error.
77 Pa. 94Bronson v. Silverman (1875)
48. This was an action of assumpsit, brought July 24th 1873, by Lazarus Silverman against Alfred H. Bronson. The cause of action was a promissory note, a copy of which was filed with the declaration; and is as follows:— “$2750. Titusville, Pa., June 29th 1872. June 30th 1873, after date, for value received, I promise to pay to the order of the Chicago Petroleum and Mining Company, twenty-seven hundred and fifty dollars, at the Citizens’ Bank of Titusville.
77 Pa. 96O'Hare v. Second National Bank (1875)
Writs of error to the Court of Common Pleas of Crawford county: Of October and November Term 1874, No. 40 and 41. On the 25th of June 1873, the Second National Bank of Titus-ville commenced an action of assumpsit against Hugh O’Hare. The action was upon two notes, one for $1500, drawn by Paul W. Gatfield, dated January 21st 1873, payable in four months, to the order of the defendant and endorsed by him ; the other for $1300, drawn by H. A. Spear and C. Irwin, payable in sixty days, to W. H. Wallace, and endorsed by him and the defendant; also, for an over-draft by the defendant on the plaintiff for $1437.07. Appended 'to the declaration was a statement of the plaintiff’s claim, to wit:— “ Plaintiff claims amount of Spear and Irvin note, $1300.00 Interest from March 5th 1873. Protest fees, ..... 1.65 Amount of Garfield note, . . . 1500.00 Interest from May 24th 1873. Protest fees, ..... 1.65 Abaount of open account, . . . 1437.07 Interest from June 16th 1873.” The “ open account ” was sworn to and also appended, as follows :— “ Hugh O’Háre, Esq., Titusville, In account with Second National Bank, Titusville,. Dr. 1873. ' Or. May 19, $1325.00 “ 20, $2739.40 500.00 “ 21, 1000.00 “ 22, 1517.65 June 16, Interest on over-drafts for May, 5.02 4262.07 $2825.00 2825.00 $1437.07 Balance due, On the 22d of July 1873, the defendant filed an affidavit of defence as follows :— “ The plaintiff is a banking association, organized and incor-* porated under the Act of Congress approved June 3d 1864, commonly called the National Currency Act, and this suit is founded, inter alia, on a certain promissory note for fifteen hundred dollars, dated January 21st 1873, made by Paul W. Garfield, payable to the order of said defendant, four months after date, and delivered to said Paul W. Garfield, who negotiated the same in plaintiff’s bank as a means of obtaining credit and borrowing money- in said bank. Affiant further says that he was only an accommodation endorser on said note, and received no value therefor from the said bank or said Paul W. Garfield, and further that when said note was discounted or negotiated in said bank, the indebtedness of said Garfield in said bank was then and previously in excess of one-tenth part of the amount of the capital stock of said banking association actually paid in, exclusive of the note in suit; that said note was not commercial or business paper actually owned by the said Paul W. Garfield, and the negotiating and discounting of said note by plaintiff was in violation of the 29th section of the aforesaid Act of Congress. This affiant further saith, that on the 17th of December 1872, the said Paul W. Garfield made his certain promissory note for fifteen hundred hundred dollars, payable to the order of the defendant, four months after date, which note was endorsed by defendant, and delivered to said Garfield, who negotiated the same in plaintiff’s bank as a means of obtaining credit and borrowing money in said bank. Affiant further says that he was only an accommodation endorser on said noté, and received no value therefor from said bank or said Garfield, and that when said note was discounted or negotiated in said bank the indebtedness of said Garfield in said bank was then and previously in excess of one-tentb part of the amount of the capital stock of said banking association actually paid in, exclusive of said note last-mentioned, and that said note was not commercial or business paper actually owned by the said Garfield; and that the negotiation and discounting of said note by plaintiff was in violation of the 29th section of the aforesaid Act of Congress. Said last-mentioned note has never been paid by the defendant, but on the 22d of May last the plaintiff’s officers, without authority from defendant, sent him said note by mail, and charged up to his account in said bank the sum of $1517.65, being for the face of the said note, with $16 for interest thereon from April 20th to May 22d, at one per centum per month, and $1.65 protest fees. At that time affiant had a balance in his favor of $85.60 cash in said bank on deposit account, but by said illegal and unauthorized aot of charging up said note, interest and cost, an apparent balance of $1432.05 stood on the books of the bank against affiant. Said apparent balance against affiant was termed by the officers of said bank an ‘over-draft,’ and on the 16th of June 1-873, said bank made a further illegal charge against defendant of $5.02 for ‘interest on over-draft for May,’meaning the said illegal'overdraft of $1432.05, making a total of $1437.07 of alleged overdraft, for which affiant is sued (inter alia) in this case. Said proceeding of plaintiff is an attempt to collect said illegal note, interest and costs, amounting to $1522.67 by an indirect means, and under another name; and affiant claims a set-off to the amount of $85.50 of balance in his favor against any valid claim plaintiff may have against him in this suit. Affiant further says that when he endorsed the two notes aforesaid he had no knowledge that the plaintiff had over discounted or loaned or was about to over discount or loan to said Garfield, contrary to the provisions of said Act of Congress. Affiant further says plaintiff has knowingly reserved and is seeking to collect in this suit interest on the said two loans or discounts to Paul W. Garfield upon the notes aforesaid in excess of the rate of interest allowed by the 30th section of said Act of Congress, said interest having been charged and reserved at the rate of .one per centum per month. Affiant admits to be due to plaintiff in this suit and hereby tenders a judgment for $1232.52, with interest thereon from May 22d 1873, and costs.” On the 10th of December 1873 the defendant filed a supplementary affidavit of defence, as follows:— “ That the indebtedness of Paul W. Garfield to the plaintiff, referred to in said affidavit of defence, at the time of the discount and negotiation of the note in question, on which defendant is sued as endorser, and of the other note referred to as sent to defendant by mail ■ and charged, was for money borrowed of said Garfield by plaintiff, and did not include the discount of bond, fide bills of exchange drawn against actually existing values, nor the discount of commercial or business paper actually owned by said Garfield.” On the 5th of January 1874 the court entered judgment against the plaintiff for want of a sufficient affidavit of defence, and the damages were afterwards liquidated at $4343.46. On the 19th of August 1873 another action of assumpsit was commenced between the same parties. This action was on two promissory notes drawn by Garfield to the defendant’s order and endorsed by him, one dated March 3d 1873 at four months for $1000; the other dated March 26th 1873 at four months for $1500. On the 2d of October 1873 the defendant filed an affidavit and supplemental affidavit of defence, averring that the notes were not business paper, but used and discounted as means of borrowing money, and that Garfield was indebted to the bank to an amount in excess of one-tenth of the capital; substantially as in the affidavits in the first case. The court entered judgment against the defendant, for want of a sufficient affidavit of defence, for $2573.55. The defendant took a writ of error in each case; assigning for error that the court entered judgment against him for the whole amount of the claims.
77 Pa. 103Titusville Novelty Iron Works' Appeal (1875)
227, of October and November Term 1874. In the distribution of the' proceeds of the sheriff’s sale of the property of James L. Johnson. Johnson was the owner of thirteen-sixteenths of a leasehold on what was known as the land of “ Dittman’s heirs,” in Richland township, Clarion county. On the 15th of November 1873, the Titusville Novelty Iron Works issued a fi. fa. on a judgment held by them against him and E. D. Hamilton for $1351.
77 Pa. 107Sullivan's Appeal (1874)
A cook in a hotel is not within the Act of April 9th 1872, securing a lien for the wages of laborers, &e.
77 Pa. 109McLaughlin v. City of Corry (1875)
Error to the Court of Common Pleas of Erie county: Of October and November Term 1874, No. 224. This was an action on the case, commenced February 7th 1872, by John McLaughlin against the City of Corry. The declaration contained two counts :— The first was that on the 14th of January 1871, and for weeks before, the sidewalk on the south side of Main street, in the city of Corry, near its intersection with Second avenue, in the said city, was greatly out of repair and covered in many and divers places with a large accumulation of ice, and permitted to remain in an unsafe condition: yet the said. defendant, well knowing the condition aforesaid of the said sidewalk, and while the same was greatly out of repair and covered with a large accumulation of ice, wrongfully permitted it to remain out of repair, and for’want of repair and by reason of the accumulation of ice and snow, the plaintiff, who was on the evening of the said 14th of January, passing along the sidewalk, unavoidably slipped and fell therefrom into a ditch, and thereby his left shoulder was dislocated and he much injured and continued so for a long time, w-as rendered incapable of attending to his business, and had to pay large sums of money in endeavoring to be healed, &c. There was a second count which need not be noticed. The case was tried April 16fch 1874, before Wetmore, P. J. The case on the first count having been taken from the jury on the ground that the evidence was insufficient, it is necessary to give the evidence somewhat at large. The plaintiff testified: “I reside in Corry, in west end of the city; I am master-mason for Oil Creek & A. R. Railroad; am mason and stone-cutter; on evening of 14th January 1871 I was coming from depot home; at corner of Main street and Second avenue there was a hard track in centre of sidewalk; the end of plank wras bare; the street is six to eight inches lower than the walk, and there is a ditch towards building two feet six inches deep; it is a barn and store-house; it is two feet eight inches across; there is a bridge in front of the building over the ditch, leading into the building; the bridge starts from sidewalk; I had a foot on the ridge and a foot on end of plank that was bare; the rain had made the hard snow oval; the ice was six to eight inches high in the middle; the sidewalk is five feet three to four inches. My foot slipped and I fell forward, and my right hand struck on top of bridge, and my left hand struck against the end of the plank of the bridge ; I got up and my left arm dropped, and my fingers were numb.” * * * Plaintiff then stated the character of his injuries ; his inability to work as he had done, the reduction of his income from his earnings, &e. Peter McNally testified: “ The sidewalk on Main street, opposite Corry shops, was bad; boards bad; old and sometimes would float; there was a ridge of ice on sidewalks all winter; I cannot tell how it was; the snow and ice were not cleared off; the Corry shops cleared off opposite their office; the sidewalk was very bad where plaintiff fell; it was slanting and difficult to walk over; it was about as McLaughlin said; it was from one inch to what he said; some places worse than others ; it was about two winters in that condition, before and after he fell; it was dangerous for foot passengers ; it was in that sloping condition about two winters.” M. Curry testified: “ I generally take Main street coming to town ; this is the route the people generally come ; there are quite a number of people west of Second avenue; about five streets west of this avenue ; I saw plaintiff the day after he was hurt; where he fell there was a ridge of snow in the centre and the snow was off the sides, thawed off; this ridge of snow was five to six inches ; there was a strip of six to eight inches at end of sidewalk bare; there was a space over two feet between sidewalk and barn, the ditch was two feet or over; there is a bridge leading from sidewalk into the barn ; it was nearly two feet from sidewalk to ground on side towards street; there was snow on the sidewalk all winter; there was a thaw about this time and heavy rain and thawed away the snow except this ridge; * * * the corner of Second avenue and Main street, where plaintiff fell, is not far from business parts of city.” John King testified: “I live near plaintiff; I noticed the sidewalk, corner Second avenue and Main street; the centre of walk all ice and a bare place on each end; it was a dangerous ridge of ice five to six inches high ; the sidewalk above the ground; there is a space between sidewalk and building, and the bridge crosses it to barn; I did not know it cleaned off except opposite Oorry machine-shops. * * * Peter Burns testified : “ At the time plaintiff was hurt there was a ridge of ice in centre of sidewalk; the margin was from eight to ten inches; I noticed the sidewalk three to four days after he was hurt; it was damp weather; the sidewalk was very bad near Lemon street; the side of walk next street had given way and it was sidling and dangerous. It required attention to walk on the sidewalk with ridge of ice, and at night would be somewhat dangerous ; one-sixth of population is west of Second avenue.” The defendants gave evidence as to the character of the walk. They also gave evidence that the plaintiff had been kept on the pay-rolls of the railroad company at full pay from January 1871 to December 1873. The following were points of the plaintiff:— 2. If the ice ridge which caused the fall of the plaintiff, January 14th 1871, was in a thickly-populated or frequently-travelled portion of the city, and the defect was so notorious as to be observable by all, the corporation would be chargeable with constructive notice, and be liable for damages, the same as though actual notice were proved. 3. In the particular location in the city, as described, where plaintiff fell, January 14th 1871, five or six days’ continuance of an obvious obstruction upon the sidewalk would be sufficient time to create constructive notice to the city. 6. The difference in his capacity to earn wages being one of the measures of plaintiff’s damages, the fact that he may have received and may now be receiving regular pay from the A. Railroad Co., which pay is liable to cease at any time, is no defence as to the liability of the defendant to respond in damages, more especially as to future compensation. 7. In estimating damages the jury should allow not only for the direct expenses incurred by the plaintiff by reason of the injury, but also for the privation and inconveniences he is subjected to, and for the pain and suffering, bodily and mental, already experienced and likely to be yet experienced, as well as for the pecuniary loss he has sustained and is likely to sustain during the remainder of his life, from the disabled condition of his arm, and the difference it has occasioned in his ability to earn wages at his trade. The court answered these points as follows:— “ The second point is not answered, as it is not relevant to the case. “ The third point is disposed of in the answer to the second point. “ The sixth point is not relevant to the issue before the jury. “ The seventh point is not answered because it relates in part to facts not in issue before the jury.” The court further charged, “ The evidence relating to the accident that occurred on the 14th day of January 1871, and the condition of the sidewalk at the place where it occurred, is not sufficient in law to render defendant liable, and there can be no recovery for the injury then sustained.” The verdict was for the defendant on the first count. The plaintiff took a writ of error and assigned for error the answers to his points and the instructions to the jury.
77 Pa. 114Dingman v. Amsink (1875)
1. In a suit on negotiable paper, after the defendant has proved that it was obtained from him and put into circulation by fraud, he may call upon the plaintiff under notice to show that he-is a bona fide holder for value. 2. The want of consideration between the original parties is not sufficient for that purpose. 3. The failure of the consideration will not affect the negotiability of a note. 4. The plaintiff sold goods to defendant under a contract that if unsatisfactory they were to be returned; defendant gave a note for the whole amount; he returned some goods. In a suit on the note by an endorsee, this would not be a defence after notice ; the presumption was that the note being in commercial form was intended for circulation, and the defendant relied on his contract for security against defect in the goods. 5. One of joint debtors died pending a suit in which both were served ; on motion of plaintiff the administrators were substituted and the suit proceeded to trial and judgment against the administrators and surviving defendant jointly. Reid to be correct, under the Act of March 22d 1861. 6. The execution against decedent’s estate, as to the goods in the hands of the administrator or to charge his real estate, would be subject to the provisions of the 33d and 34th sections of Act of February 24th 1834. 7. Albrecht v. Strimpler, 7 Barr 476, remarked on.
77 Pa. 118Moorehead v. Gilmore (1875)
Error to the District Court of Allegheny county: No. 117, to October and November Term 1874. This was an action of assumpsit, brought January 13th 1873, by D. & H. Gilmore against James K. Moorehead, Maxwell K. Moore-head and John L. Boyd, impleaded with Calvin Adams, late partners as Moorehead, Adams & Co. The suit was brought on a note, of which the following is a copy:— “$2500. Pittsburg, August 23d 1872. Four months after date, I promise to pay to the order of Whit-ten & Co., twenty-five hundred dollars, without defalcation, for value received. Calvin Adams. Endorsed, Whitten & Co. Moorehead, Adams & Co.” The defence was that the note had been drawn and fraudulently endorsed with the firm name, by Adams, and the proceeds appropriated to his own use, without the knowledge of his partners. The case was tried, February 16th 1874, before White, J. When the case was called, by agreement judgment was entered against Adams, who made no defence, and the jury was sworn as to the other defendants. The plaintiff gave the note in evidence and rested. The defendants gave in evidence articles of partnership, dated November 27th 1869, between J. K. Moorehead, Calvin Adams and M. K. Moorehead, in the business of the “ Pittsburg Novelty Works,” the interests of the partners being in unequal shares as specified in the articles. By the articles, Adams was to have control of the manufacturing part of the business, the employment of hands, &c. J. K. Moorehead to have control of the commercial and financial part of the business, and power “ to use the name of the firm in the legitimate business thereof, and not otherwise,” the name of the firm “ not to be used for endorsements by either party at any time or under any circumstances,” “no money to be drawn out by either of the partners beyond his portion of the profits really earned.” By a supplement appended to these articles and signed by all the parties, dated March 3d 1870, John L. Boyd was admitted a partner into the concern. He was to act as cashier and business manager, under the direction of J. K. Moorehead, and to have a salary of $2000 per annum; and by the supplementary articles Adams was to have a salary of $1000 in addition to his dividend from the profits. The defendants gave evidence also, that the signature “ Calvin Adams,” and the endorsement “ Moorehead, Adams & Co.,” were in the handwriting of Adams; that the firm of Whitten & Co. was composed of R. Q. Whitten and Adams; that their business was manufacturing and selling vinegar; that the business of the defendants did not require the use of vinegar; that they never had any dealings with the firm of Whitten & Co.; the proceeds of the note in suit never went to the defendants, nor did they receive any benefit from it; and that they knew nothing of its existence until they received notice of its protest. They further gave evidence that the note was made at the place of business of Whitten & Co., and the endorsement “ Whitten & Co.,” was written by R. Q. Whitten. After the note was made and endorsed, it was placed in the hands of John T. Patterson, a note-broker, to negotiate for Whit-ten & Co.; he took the note to the plaintiff, who bought it from him at a discount of one per cent, per month. At the time the plaintiffs purchased the note he made no inquiries about it. Patterson handed it to him and told him it was good. The plaintiff had on several occasions previously bought notes from Patterson in a similar manner. Neither on this or any other occasion did the plaintiff inquire or Patterson tell him who had put the note into his hands for sale. The plaintiff submitted the following points:— 2. The form of the note was not notice to the plaintiff that the name of the defendants was not endorsed in the regular course of business, and if the plaintiff before maturity became its bond fide owner for value he was entitled to recover. 3. There was no evidence from which the jury could infer that Patterson was the agent of the plaintiff in the purchase of the note. These points were affirmed. The defendants’ points were:— 1. Under the whole evidence the plaintiff was not entitled to a verdict against them. This point was refused. 2» The endorsement of a partner of his separate accommodation-note with the name of the firm is sufficient indication of the nature of the transaction to put the party who discounts the note on inquiry as to the authority of the partner to use the firm’s name for the occasion unless there be circumstances from which this authority can be implied. The court answered:— “ This is true if the party at the time he discounts the paper has actual knowledge that it is for the accommodation of the individual partner who has endorsed it in the firm name; but the paper itself is not evidence of the fact.” 3. If the jury find from the evidence that the signature, “ Calvin Adams,” and the endorsement, “Moorehead, Adams & Co.,” are in the handwriting of Adams, the character of the paper was sufficient to put the plaintiff upon inquiry as to the authority of Adams so to endorse the firm names, and if this endorsement was the unauthorized act of Adams for his own accommodation, without the consent, knowledge or ratification of his partners and in fraud of the firm, and no part of the proceeds of the note was received by the firm, the plaintiff cannot recover against the firm. 4. A bill-broker selling a promissory note is the agent of both vendor and purchaser, if the latter knows that in the transaction he is acting in the capacity of a bill-broker; and if Whitten delivered the note to Patterson, a bill-broker, for sale, Patterson was visited with notice that the endorsement of Moorehead; Adams & Co., was an accommodation endorsement, and the plaintiff, through Patterson, was visited with like notice and was bound to make inquiry for the authority for the endorsement, if the jury find that at the time of the purchase plaintiff knew Patterson was acting as a bill-broker. 5. If the jury find that the signature “ Calvin Adams,” and endorsement “Moorehead, Adams & Co.,” are in the handwriting of Adams, and the endorsement was without authority and in fraud of his partners and without their knowledge or ratification, and the note was placed by Whitten in the hands of Patterson, a bill-broker, for sale, and the plaintiff purchased the note from Patterson, and then knew that he was acting in the transaction as a bill-broker to sell the note, plaintiff was bound to make inquiry into the facts and the authority of Adams to endorse the name of Moorehead, Adams & Co.; not having done so he is not entitled to recover against the firm. 6. If the plaintiffs can recover at all against the firm, he can recover only the amount paid by plaintiff for the note with interest. These points were refused. Judge White delivered an elaborate charge, and in conclusion said to the jury:— “ If I am correct in my views of the law in the case, there is no question of fact to be submitted to the jury. You are therefore instructed to find for the plaintiff the amount of the note, with interest from maturity and costs of protest. The verdict was for the plaintiff for $2674.14. The defendants took a writ of error and assigned eleven errors; they all related to the answers to the points, and the charge of the court.
77 Pa. 124Vansyckel v. Stewart (1875)
1. A special verdict requires the jury to find all the material facts from which the law is to arise, including both disputed and undisputed facts. 2. AVhatever is not found in a special verdict is to be considered as not existing ; it cannot be aided by intendment or by extrinsic facts appearing on the record — it must be self-sustaining. 3. An award under the Act of Api’il 6th 1870 (Legal Arbitration), must have all the requisites of a special verdict.
77 Pa. 127Smith v. Vasbinder (1875)
Error to the Court of Common Pleas of Jefferson county: Of October and November Term 1874, No. 127. Alexander Smith and others brought an action of ejectment on the 30th of November 1870, against Andrew Vasbinder, for 518 acres of land in Warsaw township. The case was tried, May 21st 1873, before Trunkey, P. J., of the Twenty-eighth district. The facts in the case are as follows:— On the 24th of December 1873, warrant No. 4546 for 1100 acres “ in district No. 6 in the late purchase on the east side of the Allegheny river,” issued to John Nicholson. On this warrant Ennion Williams, deputy-surveyor, on the 1st of April 1874, surveyed 1100 acres with allowance of six per cent. This survey was returned into the Land Office by Williams on the 2d of August 1794. The records' of the surveyor-general’s office show no further action on this survey. In 1837 and 1838 the defendant made a settlement on the same survey, and marked his boundaries, excluding a portion of it containing about 26 acres. On the 17th of August 1855, Seth Clover became the owner of the Nicholson warrant No. 4546, and on the 24th of September had it located on the land in dispute, duly returned and accepted. A patent for the land was issued to Clover, December 28th 1855. On the 27th of September 1867, the defendant took out a warrant for the land he claimed by settlement right, and included in the survey under the warrant, made January 18th and 19th 1870, by James Caldwell, the 26 acres which he had excluded when he marked the boundaries of his settlement. On the 13th of February 1868, the plaintiffs became the owners of Clover’s title. On the 22d of April 1873, a patent issued to the defendant for the land set out in his survey, including the 26 acres. The only question considered in the Supreme Court was as to the title to these 26 acres. The defendant’s fourth point was :— The Nicholson warrant was filled by the survey made thereon in 1794, and the subsequent survey and patent to Seth Clover conveys no title to him or his vendees, and hereon plaintiffs cannot recover. To this the court answered:— “ This point, if affirmed, is conclusive against the plaintiffs’ right to recover, and is reserved. You will determine upon the facts under the instructions given, and if you find for the plaintiffs, your verdict will be subject to the opinion of the court as to their right to recover upon the point reserved.” The jury found for the plaintiffs “for the land included by defendant in the official survey made by J. Caldwell January 18th and 19th 1870, which was outside of the original line which was marked by defendant, being about 26 acres on the north-west corner, as shown by plot filed, and for the defendant all the land included in said official survey except 26 acres, subject to the opinion of the court as to plaintiffs’ right to recover upon the point reserved.” The court afterwards entered judgment on the reserved point for the defendant, non obstante veredicto. The plaintiffs took a writ of error and assigned for error, entering judgment for defendant on the reserved point.
77 Pa. 131Sweeney v. Thickstun (1874)
1. A note payable to order with interest, with an addition “ in case of non-payment at maturity, five per cent, collection fees to be added with warrant of attorney to enter judgment for amount of the note and the five per cent., with costs of suit, release of errors, without stay of execution, waiving exemption, inquisition and condemnation, and to sell on fi. fa.” Held, not negotiable, by reason of the warrant of attorney contained in it. 2. Overton v. Tyler, 3 Barr 346, adopted. Zimmerman v. Anderson, 17 P. P. Smith 421, remarked on.
77 Pa. 134Payne's Adm'r v. Patterson's Adm'rs (1874)
1. Payne’s land was sold by the sheriff to McClane, and deed delivered; afterwards, at Payne’s request, Patterson, by parol, agreed to buy the land for Payne from McClane, to convey it to Payne upon his paying the purchase-money and interest, or if the land were sold for more than the purchase-money and interest, to pay Payne the overplus. Patterson sold the land for more than the purchase-money and interest. In an action by Payne to recover the “ overplus,” held, that there was no resulting trust nor a trust ex maleficio for Payne, and he could not recover the “ overplus,” 2. The transaction was not a mortgage, Payne having no interest in the land to mortgage, at the time of the agreement, and when McClane conveyed to Patterson. 3. The agreement being by parol, the Statute of Frauds prevented any interest in the land passing to Payne. 4. The defeasance is essential to a mortgage, whether by writing in the mortgage or separate from it, or it be established by parol 5. Without a valid agreement binding the grantee to reconvey or yield up to the grantor when the condition shall have been performed, it is not a mortgage. 6. Houser v. Lamont, 5 P. F. Smith 311, Maffitt v. Rynd, 19 P. F.'Smith 380, distinguished. Penna. Life Ins. Co. v. Austin, 6 Wright 257, adopted.
77 Pa. 138Stephens v. Black (1875)
Error to the Court of Common Pleas of Greene county : Of October and November Term 1874, No 59. This was an action of ejectment brought September 6th 1870 by Charles A. Black and Norman Worley against Washington Stephens and Jehu Martin, tenant of Stephens, to enforce the payment of the balance of the purchase-money for a tract of land sold under articles of agreement, dated February 17th 1863, between the plaintiffs and David Keys. The title to the land had been originally in John Rogers. The case was tried February 13th 1874, before Wilson, P. J. The plaintiff gave in evidence deed dated May 3d 1855, from John Rogers to Hiram J. Rogers; recorded December 3d 1857. Judgment E. Chalfant against Hiram J. Rogers for $400, entered September 22d 1856; deed Hiram J. Rogers to Joseph Rogers, dated July 27th 1857. Sale under a vend. ex. on the judgment against Hiram J. Rogers to O. A. Black (plaintiff) and David A. Worley and sheriff’s deed acknowledged June 3d 1860; deed April 28th 1862, Joseph Rogers to C. A. Black and David A. Worley ; deed May 28th 1862, David A. Worley for his interest to Norman Worley (plaintiff); articles of agreement, February 7th 1863, between plaintiffs and- David Keys, for the same'tract of land for the consideration of $800, possession to be given on the 1st day of April then next, when $400 were to be paid and $100 annually thereafter with interest until the whole should be paid; Endorsed on the article was a receipt by plaintiffs dated March 27th 1863 for $355 from Mrs. Martha Keys. The plaintiffs then offered in evidence the article of agreement, hereafter stated, between Martha Keys and Washington Stephens, to be followed by proof that the plaintiffs were in exclusive possession of the land when they sold to Keys ; that he took possession under the contract, held it till his death ; that his widow, Martha Keys, remained in possession till she sold to Washington Stephens, who got possession from her under his purchase; to be followed by proof that she paid what money was paid on the article between the plaintiffs and Keys. Defendant objected that the evidence was irrelevant, having no tendency to show any better title in the plaintiffs than they have already shown, nor to strengthen their right to recover purchase-money, if any such they have. The evidence was admitted and a bill of exceptions sealed. The plaintiffs then gave in evidence the article of agreement dated October 3d 1865, between “ Martha Keys, wife and widow of David Keys,” and Washington Stephens, for the sale of the same tract, for $300, to be paid on the 1st of November 1865; Stephens agreeing not to pay to plaintiffs “ any money on contract between David Keys and said Black and Worley in any cases whatever.” There were $30 paid on this article, October 23d 1867. _ . . • . _ . . . N. Worley testified that the plaintiffs were in possession by their tenants, at the date of their article with Keys, who took possession under the article: his wife remained in possession after his death and delivered possession to Stephens under their article; the credit of $355 on plaintiff’s article was Mrs. Keys’ money; when it was paid, Keys directed the deed to be made to his wife ; plaintiffs obtained possession after the sheriff’s sale by a proceeding under the Landlord and Tenant Act. . There was other evidence that the $355. were Mrs. Keys’ money, and that at the time it was paid Keys directed the deed to-be made to his wife. The plaintiff Black also testified, that the plaintiffs had no knowledge of a sale of the land by II. J. Rogers to John Rogers, by article of agreement at the time of the sheriff’s sale. The plaintiffs having rested, the defendants offered in evidence article of agreement dated February 28th 1856 between Hiram J. Rogers and Washington Stephens, as agent of John Rogers, for the saleof the same land to John Rogers, to befollowedby evidence that John Rogers ratified the agreement by taking possession of the land,and otherwise; the death of John Rogers intestate, the sale of the land by his administrators to B. Stephens and by him to the defendant Washington Stephens for $200, the payment of this purchase-money, and that the plaintiffs and those under whom they claim had notice of the sale of H. J. Rogers to John Rogers ; “ this for the purpose of showing that the plaintiffs are not entitled to recover on the agreement between the plaintiffs and Keys, but only, if at all, on the agreement between Hiram J. Rogers and John Rogers.” Plaintiffs objected on the ground that the defendants in the above offer claimed the possession of the land under title hostile to that of plaintiff, and not under the sale to Keys, and as it has been proved that the defendants took possession under Martha Keys, plaintiff’s vendee, and the offer did not deny that allegation, the evidence is incompetent. The defendants renewed the offer, for the further purpose of showing such a default in the vendor’s title as entitled them to an abatement in the purchase-money, on the agreement between Black and Worley and David Keys, to the extent of the unpaid purchase-money upon the agreement between said Hiram J. Rogers and John Rogers. Plaintiffs objected to the offer, so far as it would entitle the defendants to an abatement or credit on the purchase-money claimed in this suit on the article between H. J. Rogers and John Rogers. Both offers were rejected and several bills of exceptions were sealed. The defendants’ grounds of defence were: that plaintiffs could not recover on their agreement with David Keys; or if they could, the recovery would be subject to the unpaid purchase-money on the agreement between H. J. Rogers and John Rogers. The verdict was for the plaintiffs “ for the premises described in the writ, to be released on the payment by defendants of the sum of $738.25, as follows, viz.: one-half on 'the 1st day of April 1874, and one-half on the 1st day of October 1874, with interest from this date.” The defendants took a writ of error; their assignments of error were:— 1. Admitting the plaintiffs’ evidence, which was objected to. 2-3. Rejecting the defendants’ offers of evidence.
77 Pa. 143Townsend v. Long (1875)
1. Long sold his interest in a firm to his partner for §700, the partner to pay all the debts of the firm; the §700 being unpaid, the partner sold to Townsend, who, by parol, agreed to pay the amount clue Long as the consideration. Meld, that the promise was not within the Act of April 26th 1855, sect. 1 (Frauds), and Townsend was liable to Long on his promise. 2. The general rule is that a parol promise to pay the debt of another is within the statute where it is collateral to a continued liability of the original debtor. - 3. If a parol promise be to pay absolutely or conditionally the debt of another, due or to become due on an existing contract, it is generally within the Statute of Frauds. 4, The consideration for the promise is important only where it is a transfer of the creditor's claim to the promissor, making the transaction a purchase, or where it is a transfer of a fund pledged, set apart as held for the payment of the debt.
77 Pa. 151Long's Appeal (1874)
1. A mortgagee of an interest in an undivided estate is not entitled to be made a party to a proceeding in partition, and cannot do any act affecting the title or estate of his mortgagor. 2. A mortgagee of an undivided interest cannot object to partition by the parties themselves 5 if competent they are not bound to go to law to make the partition. 3. When partition is made, the security of the mortgage follows the separation and attaches to the estate held in severalty. 4. The mortgagee may object to fraud or unfairness affecting his interest; but if the partition be fairly made he cannot gainsay it.
77 Pa. 154Commonwealth ex rel. Butler v. Hartranft (1874)
1. Under section 3d article 5tli of the Constitution of 1873, the jurisdiction of the Supreme Court in mandamus is expressly restricted to courts of inferior jurisdiction. 2. The 11th sect, of the Schedule to the new Constitution does not continue the jurisdiction of the Supreme Court in the cases mentioned in sect. 3d, art. 5th, of the new Constitution, until December 1st 1875. 3. The courts whose jurisdiction by the Schedule is to remain unabridged, are those only whose existence is to continue until December 1875, and which are “ courts of record and existing courts not specified in the Constitution.” 4. The Supreme Court, the Common Pleas, Oyer and Terminer, Quarter-Sessions and Orphans’ Court, are permanent courts, to continue whilst the Constitution is unchanged.
77 Pa. 156Beeson v. Breading (1875)
1. A devise of a lot was to Jacob, Jonathan and Henry in fee ; “ all the balance of my property, both real and personal, I direct to be sold by my executors * * * and the proceeds,’after paying just debts, s * * I divide as follows making pecuniary legacies and a general residuary clause. By a codicil “ the bequests” to Jonathan were revoked. Henry’s devise lapsed by his death in the life of testatrix. Held, that under the direction to sell, “the balance of my property,” the executors had no authority to sell the portions of the lot devised to Jonathan and Henry. 2. The direction to sell worked an absolute conversion of all her property but the lot. 3. A revocation of a devise by a codicil, would not operate to authorize a sale of “ the balance ” directed by the will to be made. 4. The testatrix not having intended by the will to convert the lot into money, a power to sell cannot arise from a subsequent event; unless such power were expressed or necessarily implied. 5. Downer v. Downer, 9 Watts 60, approved.
77 Pa. 160Cox v. Rogers (1874)
Error to the Court of Common Pleas of Washington county: of October and November Term 1874, No. 80. This was an action of ejectment, commenced March 28th 1872, by Rose Ann Cox and a number of others, against Patrick Rogers, for seven undivided ninth parts of a tract of 800 acres of land in Donegal township. The -plaintiffs and the defendants were the children and descendants of children, of Francis Rogers and Elizabeth Rogers, his wife; the plaintiffs representing seven of nine. John IIupp, Sr., some time before the beginning of this century, was the owner of several adjoining Surveys, making in the whole about 1375 acres, the land in dispute being part of these surveys. John Hupp, Sr., died about the time above mentioned, intestate, leaving to survive him four children, viz.: John Hupp, Jr., Margaret, intermarried with John Titus, Mary, intermarried with Thomas Smith, and Elizabeth, intermarried with Francis Rogers. Francis Rogers was in possession off the land in dispute about the year 1800; he lived on it till his death, about May 1829, leaving his wife and nine children to survive him. By his will, dated November 17th 1825, and proved May 29th 1826, he provided, amongst other things, as follows:— “ I do will and bequeath to my beloved wife Elizabeth, the whole of my real estate as long as she remains my widow, for the benefit of my young children, and to enable her to raise, school and provide for, and they are to get each of them when they get married as much as my daughters got when they left me; and my ’ wife is to have the whole of my personal property to enable her to raise, support and provide for the younger part of my family as above stated; and at the death of my wife what part of my personal property is then to be had shall be equally divided among my daughters, which is now nine in number; and I wish to be fairly understood that my personal property should descend and be equally divided among my daughters. “ Item second. I do will and bequeath to my son John Rogers, and his heirs and assigns, my plantation in Findley township, that I bought from Charles Mays, containing 100 acres, strict measure, subject to my wife’s third during her natural life, if she sees fit to call on him or stand in need of it. “ Item third. I do will and bequeath to my son Patrick Rogers, and his heirs and assigns, my farm in Donegal township, that I now live on, subject to my wife’s thirds during her natural life; and my wife is to have my mansion house to live in so long as she remains my widow; and I do constitute my wife, Elizabeth Rogers, and my son, John Rogers, in whose fidelity I very much confide, my executors,” &c. John Rogers died shortly after the testator; his descendants are not included amongst the plaintiffs. On the 80th of December 1829, Elizabeth Rogers “ exhibited into the register’s office ” her account as executrix, &c., of Francis Rogers, deceased. She charged herself with all the goods, &c., according to am inventory, filed June 23d 1829, '. $1100.60 Also with sundry notes due said estate, . ■ . . 752.39 $1852.99 She took credit for sundry payments amounting to...... $60.68|* Also: “ By balance of personal property retained by the executrix according to the will,” 1792.30f --$1852.99 This account was signed by her and sworn to before the register. He also certified, under his seal of office, that the account had been duly examined, passed, &c., and that he had given notice of the settlement of the estate to all legatees and others concerned, or agreeably to the Act of Assembly, &c„ Elizabeth Rogers died intestate in 1866, and the plaintiffs alleging that the land was her property, claimed the seven-ninths as her heirs-at-law. The principal questions in the case was whether the acts of Elizabeth Rogers were an acceptance of the legacy to her under her husband’s will, and if so whether the plaintiffs were therefore estopped to claim the land, it having been devised by Francis Rogers to the defendant. Some time in 1855, Vankirk, a surveyor, at the request of the children and heirs of John Hupp, Sr., made a survey of the whole body of land; at that time the heirs produced to him a plot of an original amicable division of the land amongst the heirs of John Hupp, Sr., Elizabeth being at the time of the survey in possession of that part in dispute; the heirs made mutual conveyances in fee to each other of their respective parts, by quit-claim deeds; one of the deeds was to Elizabeth Rogers for the part in dispute; the deeds were dated January 8th 1856. The case was tried, February 23d 1874, before Acheson, P. J. The plaintiffs gave evidence that Mrs. Rogers had possession of the land from her husband’s death till her own; the defendant, with others of the children, lived on the land with their mother, the defendant, until about 1839, he then married and lived elsewhere for about four years; his wife having died he returned to this land; again married, and again left there and lived on other property of his own till his mother’s death; after her death he took possession of this land. They gave evidence also of a lease of the land to the defendant from his mother; also, that the balance of the personal estate of Elizabeth Rogers in the hands of her administrator was $3092.47, and that she had no revenue except that derived from the farm. They gave evidence that the defendant had declared that his mother would never make a deed to him for the land; that she had said that the land was to be divided amongst the heirs equally. Isaac Deeds testified that defendant said to him that he never claimed the land as his own; witness told Mrs. Rogers she had better will the land to Patrick; she said, “ Never, never — he shall not have the farm; she wanted all her children to become equal;” she said she would let witness know if she desired to make a will; that if defendant wanted it he might buy it from her. The defendant testified that he had not had such conversation with Deeds as had been spoken of. In the course of the trial, there were offers by plaintiffs to prove that while Mrs. Rogers was in possession of the land, she declared she was holding it as her own, that it belonged to her; for the purpose of showing the character of the possession and also of showing title under the Statute of Limitations. The offers were rejected and bills of exception sealed. The plaintiffs submitted a number of points, amongst others:— 1. The conveyance in 1856 by the heirs of John Hupp, Sr., to Mrs. Rogers then vested the title in her, and the plaintiffs were entitled to recover. The court answered : “ This is true; and if there were nothing more in the case, the plaintiffs would be entitled to recover on their title as exhibited; but the question of election arises by which they may be estopped.” 2. “If the jury believe that Elizabeth Rogers, deceased, for more than twenty-one years prior to her death, in 1867, occupied the land in dispute, claiming it as her own, and that said occupation was notorious, hostile, continued, exclusive, and adverse to all other alleged title or right to said land, and that the plaintiffs are the heirs at law of said Elizabeth Rogers, then their verdict should be for the plaintiffs.” The court answered: “ If Mrs. Rogers made no valid election under the will of her husband, Francis Rogers, this would be true.” 5. “There is no sufficient evidence in the case to-show that Elizabeth Rogers did elect to take under the will of Francis Rogers, deceased, in such manner as would estop her from setting up title to the land in dispute.” This point was refused. 11. “ If the jury believe that the defendant, with the knowledge that his mother, Elizabeth Rogers, was acting under the will of Francis Rogers, in ignorance of the effect of her said acts upon the title to the land in dispute, and that said defendant at the time knew the legal effects of such acts, yet purposely refrained from informing his mother of the same, he cannot claim now that her said acts were such an election under said will as to estop her heirs from claiming the land in dispute.” The court answered : “ If the facts proven warranted any such conclusion, it might be so; but if she acted freely and without constraint in making the settlement and taking credit for the balance of the personal estate bequeathed to her in the will, her act was binding and irrevocable.” Judge Acheson concluded his charge, saying:— “We are therefore of the opinion, upon the evidence, that Mrs. Rogers elected to take under the will of her husband, Francis Rogers, and the plaintiffs are estopped from maintaining their present ejectment suit.” The jury found for the defendant. The plaintiffs took a writ of error and assigned 11 errors. The 5, 6, 7 and 9 were the answers to the plaintiffs’ 1, 2, 5 and 11 points: the 11 was to the portion of the charge of the court above given.
77 Pa. 170Mercer Mining & Manufacturing Co. v. McKee's Adm'r (1875)
1. McKee, by written agreement, sold the coal on his farm to defendants for 10 cents for each ton ‘‘ of screened coal mined and removed from his land.” The defendants mined and screened and removed both lump and nut coal. Held, that evidence was inadmissible to show that “ screened coal ” is understood amongst coal merchants and miners to include only lump coal; or to prove the relative value and quality of lump and nut coal for the purpose of showing that nut coal is not “ screened coal,” in its common acceptation ; that at the time of the contract there was no market for nut coal, and that it was removed from necessity and did not pay expenses. 2. The meaning of a term used in a contract and applied to an article in a trade or business, may be proved by persons engaged in it. 3. The defendants having screened and removed both kinds of coal, were estopped to allege that either was not “ screened coal.”
77 Pa. 173Pittsburg & Connellsville Railroad v. South-west Pennsylvania Railway Co. (1875)
Appeal from the Court of Common Pleas of Fayette county: In Equity. Of October and November Term 1874, No. 255. This proceeding commenced by a bill filed April 25th 1874, by The South-west Pennsylvania Railroad Company against The Pittsburg and Connellsville Railroad Company. The bill set out:— 1. The plaintiffs were incorporated by Act of March 16th 1871, to construct a railroad by such route as the directors might select, from a point on the Pennsylvania Railroad at or near Greensburg, by way of Uniontown, to the line of the state of West Virginia, and to construct branches; the company to be regulated by the Act of February 19th 1849 (General 'Railroad Law), and its “ supplements, and entitled to the advantages thereof and of all other general laws of the Commonwealth’s relative to railroad companies, with like privileges as if organized thereunder.” 2. Plaintiffs had already constructed and had in operation, that portion of its road from Greensburg to Connellsville, Fayette county, and had surveyed, permanently located, graded and ballasted ready for the ties and rails, an additional part of their road from the present terminus at Connellsville to its intersection with the defendants’ railroad, “ near the mouth of Mount’s Creek, some distance below defendants’ depot at Connellsville, which road it is proposed to cross at grade at that point, and said road had been graded from the road of the defendant southward to the Youghiogheny river.” 3. At the time of the location and partial construction of plaintiffs’ road to the aforesaid point, the defendants had at that place but one track; but they have since then laid one or more additional tracks. 4. The plaintiffs proposed at once to extend their road from its present terminus at Connellsville towards Uniontown and across defendants’ road at grade, and had endeavored, without success, to agree with the defendants in relation thereto; on the contrary the defendants expressed a determination to resist such crossing and to prevent the plaintiffs from so doing; plaintiffs therefore feared interference with their work and resistance by the defendants, in attempting to make the crossing. 5. Any other proposed place and manner of crossing the defendants’ roads, would cause plaintiffs great injury, inconvenience, delay and additional expense, and a complete alteration of much of their road already constructed, and would render the further extension of their road at present impracticable. The prayers were:— 1. For a decree authorizing, &e., the plaintiffs to proceed to construct, &c., their road over and across defendants’ road at the place and in the manner aforesaid. 2. For an injunction to restrain the defendants, their officers, &c., from interfering with, &c., the construction, &c., of the plaintiffs’ road over and across the defendants’ road as aforesaid, an:l all molesting, &e. 3. For general relief. The defendants answered:— 1. They held their charter under an Act of Assembly of Pennsylvania of April 3d 1837 and its supplements, under which their road had been built and operated for more than twenty years. 2. Their depots, turn-table, engine-houses, &c., were located at the northern end of Connellsville, within a very short distance from where the plaintiffs proposed to cross their road. 3-4. Under a contract with The Connellsville Mutual Building and Loan Association they had become owners of a lot of ground immediately below their depot and above and below the proposed crossing, for the purpose of erecting thereon carpenter, car, and other shops, and as a yard in which to stand and change their cars and locomotives; part of the buildings are erected and the others in process of construction ; they are to be erected as a condition of the contract before April 1st 1873, and the lot is to revert to the association if not so erected, &c. 5, 6, 7. The proposed crossing of plaintiffs, and extension west of defendants’ road, passed through the lot, cutting it nearly in the middle over the ground where the main car-shop was located, rendering it inaccessible and utterly destroying the whole for the purpose intendedthe lot is absolutely necessary to defendants for conducting their business, securing the safety of passengers and property, &c., and the crossing proposed by plaintiffs was where defendants shifted their cars and locomotives, while they had several tracks, so that a crossing at grade with safety to either company would be impossible. 8. The grading mentioned in the second paragraph of the bill, was a trespass and done surreptitiously. 9, 10, 11. The Acts of Assembly authorizing a railroad to cross another at grade, did not intend to allow the crossing of depot or shop grounds ; and it was “ reasonably practicable for the plaintiff to avoid a grade crossing ” by crossing over defendants’ road a very short distance from the proposed crossing, to which defendants make no objection, &c. Defendants resisted the crossing at grade as destructive of its property. A replication was filed, and John D. Roddy, Esq., appointed examiner. A number of witnesses on each side were examined before him. The substance of the evidence by defendants’ witnesses was, that the grading had been done by the plaintiffs in the spring of 1872 through defendants’ lot, and between defendants’ road and the river; defendants owned between 6 and 7 acres between their track and the river; they had it for the purpose of erecting shops; had some shops and dwelling-houses for their hands erected less than 100 feet from plaintiffs’ road, and the location of the road crossed the foundation of additional buildings proposed to be erected; the land without improvements was worth $10,000 ; over $8000 had already been expended in the buildings plaintiffs proposed crossing, and extension would render the land useless for the purposes for which it had been purchased; it was absolutely necessary for defendants; they had on the lot six tracks necessary for the business of the road; if compelled to abandon the lot it would cost $50,000 to give them a favorable location elsewhere. Grade crossings were dangerous with all proper signals; whenever it is possible to cross above grade it should be done; it is expensive in construction and continually in want of repairs; there is a great difference in the wear of rolling stock. It was reasonably practicable for the plaintiffs to make a crossing above grade, about midway between the depot and the proposed crossing; the only difference would be a question of expense. The grade crossings proposed would be especially dangerous because the sight was short approaching it from all directions; the difficulty would be almost insurmountable, in consideration of defendants’ shops, &c. The business of defendants was increasing every month; a full freight train was about 1000 feet long; the crossing proposed by plaintiffs would be dangerous and expensive to both parties. The buildings were commenced in 1872 and finished in 1873;' about two-thirds of the lot lay between plaintiffs’ road and Mount’s Creek, and would require cutting and grading to make it useful in the upper part; the proposed buildings would cover from 5 to 7 acres; including this lot the defendants had about 29 acres of land; this lot was naturally better situated for shop purposes than the other; the crossing proposed by plaintiffs would render that portion west of the track useless for standing cars on; the tracks'west would be injured by a grade crossing, and could not. be extended without erecting a bridge at Mount’s Creek. The crossing overhead would require a longer connection with defendants’ road; it would not interfere with the business of the town of New Haven, which is opposite Connellsville; an ordinary grade near a depot is not a serious inconvenience. The cost to plaintiffs of a change to a crossing over a grade would not exceed $25,000; to cross at grade would cost $•5000 ; there would have to be a watchman night and day, and a signal station there; this crossing would be a great trouble and expense to defendants on account of the stopping of their trains, and would be especially so, so near the station and shops; the large part of the shop grounds could not be reached from below, but must be approached from above. The substance of the testimony of plaintiffs’ witnesses was: that the route of plaintiffs’ road crossed the river immediately below the town of New Haven, passing through that town at grade, about 400 feet from the proposed crossing; the right of way through that town had been procured; if plaintiffs’ road crossed defendants’ road above grade it would injure property in that town very much, and the damages would be large; the change could not be made without great cost and delay, and would be very detrimental to the coke trade which expected to pass over plaintiffs’ road, and would not be satisfactory to those expecting to do business over the road as it then was. To cross the defendants’ road above grade would necessitate a new bridge over Mount’s Ci'eek ; the crossing above grade Avould cost $24,500 more; the bridge then over Mount’s Greek Avas ready for the superstructure; an overhead crossing Avould require a heavy embankment at NeAV Haven and the removal of several houses; the then location crossed the river at grade; the bridge would be longer and have a less permanent foundation than the presént; the distance for an overhead crossing Avould shorten the line several hundred feet. In the judgment of the witnesses a crossing above grade Avas not reasonably practicable and would be injurious to the interests of the road and the business community. When the final location of the extension of plaintiffs’ road and crossing Avas made defendants had but one track; the present grade crossing was a good one, there was no objection to it and it Avould be no disadvantage to either road owing to the speed necessarily run from the proximity to the depot. This synopsis, with the opinion of the court beloAV, will sufficiently present the facts of the case. The case was argued on the pleadings and evidence before Sterrett, P.'J., of the Fifth district; he delivered the folloAving opinion:— “ When the case came on to be heard Ave Avere under the impression that it Avas before us on a motion for a preliminary injunction, but at the close, of the argument the learned counsel for the parties informed us that they had agreed to treat the hearing as final, on a bill, answer and testimony, and. desired the court to make a final decree. It Avas suggested that this mode of procedure was irregular, that before a final hearing the case should be referred to a master to find and report the facts. The counsel again stated that they had agreed and desired to submit the case, in its present shape, to the court, to determine the facts, so far as they may be deemed material, and enter a final decree. With some hesitation as to the propriety of such a course, we acquiesced in the request, and have examined the bill, answer and testimony with a view of entering a final decree. “The facts of the case, so far as they are deemed material, are found to be as follows, to wit:— “ The South-west Pennsylvania Railway Company was duly incorporated on the 16th day of March 1871, and authorized to 'construct a railroad with one or more tracks, by such route as the directors might select, from some point on the Pennsylvania Railroad at or near Greensburg, in Westmoreland county, by way of Uniontowm, in Fayette county, to the boundary line of West Virginia, and to construct branches. The charter also provides that, in all respects, other than those therein specified, the company shall be regulated by the Act of February 19th 1849, and the several supplements thereto, and shall he entitled to all the advantages thereof and of all other general laws of the Commonwealth relative to railroad companies, with like privileges as if organized thereunder. “ The plaintiff company was duly organized under its charter, and in pursuance of the authority contained therein constructed, and has been operating that portion of its road between the Pennsylvania Railroad at Greensburg and its present terminus at or near Connellsville in Fayette county. It has also surveyed, permanently located and proceeded to construct an additional portion of its road, extending from its present terminus at Connellsville to the intersection with the defendant company’s road, near the mouth of Mount’s Creek, a short distance below said company’s depot, in Connellsville, and thence southward towards Uniontown. The preliminary survey of the last-mentioned portion of the plaintiff company’s road, viz : from the present terminus at Connellsville, and across the defendant company’s railroad and lands to the Youghiogheny river, 'was made on the 14th day of June 1871, and the final location of the same was made on -the 28th of July following. At the time of the survey, permanent location and partial construction of its road to and at the point of the intersection and crossing of the defendant company’s road, the said company defendant had at that place but one track, but since that time it has constructed additional tracks. “ It has been the intention of the plaintiff company, as speedily as possible, to extend and construct its road from the present terminus thereof at Connellsville, southward, towards Uniontown, across the defendant company’s road, at grade and across its land, lying between its road and the Youghiogheny river; and in pursuance of this purpose it has already graded and ballasted, ready for the cross-ties, the portion of its road between the present terminus and the proposed crossing, and has also graded its roadway through said land of defendant company to said river. “ It has also permanently located and partially graded its roadway from said river, southward, for several miles towards Union-town. “The location of the plaintiff company’s road at, and for some distance on each side of the proposed crossing, was judiciously made with reference to the interests of said plaintiff company, and the convenience of trade and travel on its road at that point, and will involve much less expense in construction and do much less damage to private property than any other.route that could have been selected. The plaintiff company might have selected a route by which it could cross the road of the defendant company above grade, but such route is not reasonably practicable, on account of the greatly enhanced cost of construction — amounting to at least $25,000 or $30,000 — the greater damage to private property, the necessity of constructing the bridge across the Youghiogheny river at the point of crossing, with a heavy descending grade southward, the greater expense and difficulty of making a connection with the defendant company’s road, and affording convenient accommodations for the public trade and travel on its road at that point. “ The proposed crossing of the plaintiff company at grade, will not be as safe as an over grade crossing, but under proper regulations the crossing and connection with defendant company’s road can be effected with reasonable safety and convenience to the trade and travel of both companies, and by permitting the plaintiff company to cross at grade and connect with defendant company’s road on the location selected and adopted, a large and unnecessary outlay and expense to the company plaintiff will be avoided and public convenience promoted. “ The Pittsburg and Connellsville Railroad Company was incorporated by an Act of Assembly, approved the 2d day of April 1837. In pursuance of the authority conferred by this act, and the several supplements thereto, the company located and constructed its present line of railroad, and has been operating the same for many years before the plaintiff company was incorporated. “ The freight and passenger depot, turn-table, switches, sidings and engine-house, of the company defendant, are located at the lower or north end of the borough of Connellsville, a short distance south-east of the point where the plaintiff company has located its crossing. “ On the first day of June 1871, the defendant company entered into an agreement with the Connellsville- Mutual Building and Loan Association, whereby it acquired the right to occupy and use for the purposes and upon the terms and conditions in said agreement mentioned, a piece of land containing about seven acres, lying immediately below its depot in Connellsville, and extending northwardly between its track and the Youghiogheny river to Mount’s Creek. This agreement was acknoAvledged by the president of The Connellsville Mutual Building and Loan Association, on the 31st day of October 1871, and by the president of the defendant company on the 10th day of November following, and recorded on the 13th day of the same month. “ In pursuance of this agreement the defendant company took possession of the lot of ground therein described, and proceeded to improve and use a part thereof as contemplated by the terms of the contract. “ The line of the plaintiff company’s road as located crosses said lot in such a way as to cut about tAvo acres off the upper or southeasterly end thereof,'as shown on the accompanying plot. This end or portion of the lot south of the proposed crossing is mostly high ground, elevated considerably above the grade’of the railroad. It has not been used by the defendant company, and cannot be until it is graded. “ The other or northerly portion of said lot contains all the improvements made by the company defendant, and has been approached and entered by a switch and bridge across Mount’s Creek. This approach and the use of the larg'er or northerly end of said lot as the same has hitherto been used, will not he materially interfered with by the proposed crossing of the plaintiff company. “ The location of the plaintiff company’s road across said lot partly embraces ground intended by the company defendant, as a location for a round-house, which said company has contemplated erecting thereon, as shown by the plot presented by defendant company. “ If the southerly end of the said lot Avas graded down to the level of the railroad track, with the view of using the same in connection with the northerly portion of the lot, the proposed crossing of the plaintiff company Avould materially interfere with such use. “ The defendant company has acquired about 22 acres of land on the line of its road on the southerly side of Connellsville (not more than half a mile distant from the lot above referred to), for the purpose of erecting thereon machine-shops, round-house, foundry, &c., &c., for the construction and repairing of engines, &c. This land, in connection with the portion of the first-mentioned lot north of the proposed crossing, Avill be amply sufficient and convenient for all the necessary uses and operations of the company defendant; and the crossing of the first-mentioned lot by the plaintiff company’s road, as proposed, AA'ill not seriously embarrass or interfere with the company defendant in the convenient and successful operation of its railroad. “ The plaintiff company has been unable to come to any understanding or agreement with the defendant company in relation to the proposed crossing of its railroad and ground, and the defendant company has expressed a determination to resist and prevent such crossing. “ The plaintiff company tendered and presented for approval a bond to the defendant company and to the Counellsville Mutual Building and Loan Association, conditioned for the payment of such damages as may be duly ascertained, and awarded to them, which was approved by the court on the 11th day of April 1872, and filed at No. 36 of June Term 1872. “ The question which arises upon the foregoing facts is, whether the plaintiff company has the right and should be permitted to cross at grade the road and lands of the company defendant, on the location selected and adopted. “ Under our extended system of railway communication, it is absolutely necessary for railroads to cross other public highways, and sometimes to appropriate them in part at least; and it will not be contended that railroads themselves can claim exemption from being crossed by other railroads, provided they are not deprived by such crossing, of property necessary to the proper conduct of their own business. “ It must be admitted that the crossing of one railroad by another will cause some inconvenience and more or less injury, and is susceptible of compensation in damages, and if the property taken or occupied by such crossing is not essential to the proper conduct of the business of the road, there can be no good reason for prohibiting the crossing. In the case of roads rhnning in different directions and sometimes in the same general direction, crossings become a reasonable and sometimes an absolute necessity. The Act of June 19th 1871, recognising this necessity, provides that it shall be the duty of courts of equity to ascertain and define by their decree the mode of such crossing which will inflict the least practicable injury upon the rights of the company owning the road to be crossed, and if in the judgment of the court it is reasonably practicable to avoid a grade crossing, they shall by their process prevent a crossing at grade. “Again, the first section of article 17, of our present Constitution, goes further, and provides that ‘ Every railroad company shall have the right, with its road to intersect, connect with or cross any other railroad, and shall receive and transport each the other’s passengers, tonnage and cars, loaded or empty, without delay or discrimination.” “ It is not to be expected that such intersection, crossing or connection can be effected without at times doing some injury to the company whose road is intersected or crossed, but if it be an injury that does not deprive the company of the means of freely exercising its corporate rights and franchises, or seriously embarrass or interfere with its operations, and is susceptible of compensation in damages, there is no reason why a railroad should claim immunity from such injury, any more than other corporations or individuals. “ The public good, for the promotion of which all corporate powers are conferred, rises higher than private interests or the interests of other .corporations. “ It has been found that it is not reasonably practicable for the plaintiff company to cross the road of the defendant company above grade; and so far as the matter of crossing at grade is concerned, we have no difficulty in reaching the conclusion that the crossing under, under proper regulations, should be permitted. As to the location on and occupancy of defendant company’s land, between its roadway and the river, we have had some difficulty, but in view of the fact that the appropriation and use of the land in question by the plaintiff company will not deprive the company defendant of adequate facilities for the proper conduct of its business, and any injury it will sustain can be easily compensated in damages, we have been led to the conclusion that, under all the facts of the case, the plaintiff company should be permitted to proceed with the construction and operation of its road on the location selected and adopted by it. . “ As we have already seen, the plaintiff company tendered a bond for the payment of damages, which was presented to and approved by the court. If this bondis deemed insufficient the defendant company can apply for such additional security as may be deemed necessary.” * * * The decree was:— “ That the plaintiff company has the right and should be permitted to construct and operate its railroad across the roadway and tracks of the defendant company, at grade, and across the adjoining land of the company defendant, on the location adopted by the plaintiff company, and also to connect with the defendant company’s road at or near said crossing. Subject, however, to the payment (when duly ascertained) of such damages as the defendant company may appear to sustain by reason of the crossing of its roadway and the taking of its land aforesaid. Subject, also, to the provisions hereinafter made for construction, maintenance and government of said crossing. < “ And it is ordered and decreed, that the crossing of the roadway and tracks of the defendant company shall be constructed by the plaintiff company, at its own proper cost, under the direction of a competent engineer of the company defendant, in such manner as will do the least practicable damage to the defendant company, and cause the least possible interruption in the running of its trains, and that the said crossing shall be kept and maintained in perpetual good order and repair by the company plaintiff at its own proper cost. “ And it is further ordered and decreed, that the company plaintiff shall at all times, at its own proper cost, keep and maintain a W'atchman at said crossing, to signal and warn approaching trains or engines, and keep said crossing clear of obstructions. “And it is further ordered and decreed, that the said crossing shall be governed by the following regulations, to wit:— “ All trains or engines passing over either of said roads, shall come to a full stop, not nearer than two hundred feet, nor farther than eight hundred feet, from said crossing, and shall not cross until signaled so to do by the watchman, nor until the way is clear. “ When two passenger or freight trains come up at the same time, the train on the road of the company defendant shall have the precedence in crossing, provided said trains are both on main tracks, over which all passengers and freights are transported; but if only one is such main-track and the other is a side or depot track, then the train on the main track shall have the precedence, and engines with cars attached shall take precedence over engines without cars. “The right is reserved to either of the parties, upon notice to the other, to apply to the court for such addition to or modification of these regulations as the safety of persons and property may seem to require. “And it is further ordered and decreed, that the defendant company, its officers, agents and servants, shall be enjoined from preventing or interfering, with the plaintiff company, its officers or employees, in the construction of its railway at grade, across the roadway and adjacent land of the defendant company, otherwise than hereinbefore provided. “ And it is further ordered and decreed, that one-half of the costs in this case' be paid by each of the parties, plaintiff and defendant.” The defendants appealed to the Supreme Court, and in several specifications assigned the decree for error.
77 Pa. 187Chartiers Railway Co. v. Hodgens (1875)
1. In a suit by the C. railway company to recover subscriptions to their stock, the affidavit of defence averred that a railroad company had been chartered to make a road, one terminus to be Pittsburg the other Washington ; that the railroad was sold under a mortgage, and the purchasers were chartered under the Act’of April 8th 1861 as the C. railway company, and defendant subscribed to the stock of that company ; the plaintiffs had completed their road, but to neither of the terminal points designated in the charter of the railroad company, and had abandoned the construction of the road towards Pittsburg, stopping eight miles short of it, and also 2000 feet distant from Washington. Held, primfi, facie a good defence. 2. Under the Act of April 18th 1874, providing for writs of error where judgment is refused for want of a sufficient affidavit of defence, if the decision below is sustained, the writ of error is to be dismissed without prejudice, and the case retried as if no writ of error had been taken.
77 Pa. 191Coughenour's Adm'rs v. Stauft (1875)
1. Where the intent of a contract for sale of land is clearly to make a sale by the acre as the means of determining the price and the contract is in fieri, the rule is to compel payment of purchase-money, according to the quantity; and a survey to ascertain the quantity is presumed to have been intended without an express provision for it. 2. In some cases equity will relieve where the difference in quantity is so great that it strikes the mind as evidence of gross mistake or fraud. 3. When a contract, whether executory or executed, is with reference to an official survey, it will be construed to be a sale according to the quantity stated in it, unless there be express provision for remeasurement; ■ or fraud or such palpable mistake as is evidence of it. 4. Where the contract is executed by deed, or by bond or other security taken for unpaid purchase-money, the rule is not to open such contract to allow a deficiency or recover for an excess; even if the sale be by the aero. 5. The rule that a sale by the acre calls for a survey to fix the quantity, will yield always to the intent of the parties to abide by the quantity stated in the agreement or referred to in other writings. 6. The sale being of a defined tract, the quantity named being said to bo “ more or less,” these words are of great force in determining the intent of the parties to stand upon the quantity stated. 7. A contract was to sell a piece of land, naming adjoiners, &c., “ containing 91f acres more or less, being the same and all the land whereon (vendor) now resides,” for $10,500, payable, &e., “ the remaining unpaid balance to be paid * * * at the rate of $114.40 per acrethe $10 500 was about $4 more than 91f acres at $114.40 The land, by a subsequent survey, contained 118 acres, held, that the $10,500 was the sum fixed to be paid as the purchase-money, and the vendor could not recover for the excess above 91|- acres ; although the contract was executory.
77 Pa. 197Butterfield's Appeal (1874)
Appeal from the decree of the District Court of Allegheny county: No. 161, to October and November Term 1873. In the distribution of the proceeds of the sheriff’s sale of the real estate of Philip Weyman and Catharine'Weyman, his wife. The real estate of the defendants was sold by the sheriff under a municipal claim at the suit of the borough of Sharpsburg for $2100. The sheriff returned his distribution of the proceeds of sale. Exceptions to part of the distribution of the proceeds of sale were filed by Catharine Weyman, and the sheriff by order of the court paid the proceeds of sale into court. W. E. Austin, Esq., was appointed auditor to pass upon the exceptions; after-wards certain undisputed claims were paid out by agreement, leaving to be passed on by the auditor the sum of $1288.34, the sum awarded by the sheriff to the executors of Jonas Butterfield, deceased, and $104.32 awarded to Weyman and wife, the defendants in the execution. Philip Weyman was afterwards allowed to join in and prosecute the exceptions filed by his wife. The auditor reported the following as the facts in the case: About the year 1847, Philip Weyman, one of the defendants, by his wife Catharine, agreed to buy from James O’Hara the lot of ground sold by the sheriff in this case. The bargain was verbal, no papers drawn nor money paid at the time. The price agreed upon for the lot was $400. Before any money was paid, and some time after the bargain was made, Weyman dug a cellar and began to build upon the lot; did a part of the work himself, and employed Lewis Dengler to do the carpenter work on the house, for which Dengler obtained judgment against Weyman. Weyman and his family occupied the house, with the exception of three years, when he rented it, until his separation from his wife, four or five years ago. * * * It does not appear, however, that Mrs. Weyman had anything to do with the building of the house, Weyman’s wife paid, after the house was built, ten dollars in money to Mr. O’Hara on account of the lot, and Weyman worked for Mr. O’Hara, to the amount of thirty or forty dollars, all which were credited as payments by Mr. O’Hara. Weyman collected the rent of the house during a tenant’s occupancy, and was always treated as its owner.- * * * On April 15th 1867, after the separation of Weyman and his wife, O’Hara made a deed of the property to Catharine Weyman, who was accompanied by Jonas Butterfield, Sr., since deceased, and who paid the money for the property, but took no part in the transaction further than to pay the money, for which he took a receipt in the name of Catharine Weyman. It is not disputed that the money thus paid was the largest part of the sum for which Mrs. Weyman afterwards gave a mortgage to Jonas Butterfield, and which is hereafter mentioned. ■ When O’Hara delivered the deed to Mrs. Weyman, Philip Weyman was not present, nor is there any evidence to show that he had released his claim to the property. On January 23d 1869, Catharine Weyman was declared a feme sole trader by the Court of Common Pleas. On May 7th 1870 she executed a mortgage, as feme sole trader, to Jonas Butterfield, Sr., deceased, for $1117.50, which included the money paid hy Butterfield to O’Hara, interest, bonus, and some other indebtedness incurred by her to Butterfield. Philip Weyman having previously refused to join in a mortgage for the same debts -to Butterfield. * * * To December Term 1871, Butterfield issued 'a scire facias against Catharine Weyman on the mortgage thus executed by her, and on the 12th of December 1871 recovered a judgment on it for $1290.71. The auditor further reported, sustaining the exception to the appropriation by the sheriff of the $1288.34 to the payment of the judgment on Butterfield’s mortgage, on the grounds that the real estate was the husband’s, and the wife had no power to give a mortgage binding it, and awarded this sum, less costs of audit, together with $104.32 appropriated by the sheriff to the defendants, to Philip Weyman as owner of the real estate sold, to the exclusion of his wife and Butterfield claiming under her. The executors of Butterfield filed exceptions to the auditor’s report; they were overruled by the court, the report confirmed, and distribution decreed in accordance with it. The executors appealed to the Supreme Court, and in several specifications assigned the decree for error.
77 Pa. 201Tindle's Appeal (1873)
Appeal from the District Court of Allegheny county: Of October and November Term 1874, No. 24. In the distribution of the proceeds of the sheriff’s sale of the real estate of John Campbell. On the 14th of May 1868 John Campbell made a mortgage to the Dollar Savings Bank to secure the payment of $3000. The mortgage was duly recorded and was the first lien on Campbell’s estate. After this were two judgments in the Court of Common Pleas of Allegheny county against Campbell in favor of John J. House ; then followed a mortgage from Campbell to Minas Tindle, recorded November 16th 1869. On the 23d of September 1871 the Dollar Savings Bank, in a scire facias on their mortgage, obtained a judgment in the District Court against Campbell for $3364.50. A levari facias was issued and the real estate covered by this mortgage, and all the above-mentioned liens, were sold to De Lange & Co. for $8210 ; they paid to the sheriff, on account of the purchase $850, but having failed to pay the remainder of their bid the sheriff returned the land unsold for want of buyers. On the 6th of February 1872, De Lange & Co. assigned all their assets of every kind to F, H. Eaton. A fi. fi. was issued out of the Court of Common Pleas of Allegheny county on the House judgments, and the same real estate was sold by the sheriff for $3900, subject to the mortgage of the Dollar Savings Bank, which at that time amounted to $3460, thus making the whole amount for which the property sold $7360. This sale divested the lien of Tindle’s mortgage, which then amounted to $2104.60. By the sale under the fi. fa. all the liens prior to his mortgage were paid ; on account of it he received from the proceeds of this sale $1239.20. Upon the application of Tindle, the $850 paid by De Lange & Co. were ruled into court, and David Reed, Esq., appointed auditor to report distribution. The fund was claimed by Tindle and by the assignee of De Lange & Co. . ' The auditor awarded the fund to Tindle. Eaton, the assignee of De Lange & Co., filed exceptions to the report of the auditor, amongst which were the following:— I, 2. The auditor erred in awarding the fund to Tindle and not to expeptor, as assignee of De Lange & Co. 3. The auditor erred in deciding- summarily that the fund was damages ; this should have been determined by an action. 4. The auditor erred in deciding that it made no difference that the two sheriff’s sales were under process from different courts. The District Court overruled the report of the auditor and decreed the fund to F. H. Eaton, assignee of De Lange & Co. Tindle appealed to the Supreme Court and assigned the decree for- error.
77 Pa. 205Lynch v. Commonwealth (1873)
Error to the Court of Oyer and Terminer of Allegheny county: Of October and November Term 1873, No. 31. In this case Ambrose E. Lynch was indicted at the June Sessions 1872, of the Oyer and Terminer of Allegheny county, for the murder of William Hadfield. The precept of the Judges of the Court of Oyer and Terminer, to the clerk of the court, &c., commanded him to “ issue a venire facias to the sheriff and commissioners of the county aforesaid,” to proceed to select twenty-four persons to serve as grand jurors, &c. The precept was dated April 2d 1872, and signed by the three judges. The venire bearing the same date was directed “ to the sheriff and commissioners of said county.” To the return to the venire, to which was annexed a list of the jurors, was the following certificate :— “ We do hereby certify that the foregoing is an accurate list of persons drawn by the sheriff and jury commissioners to serve as grand jurors,” &c. This was signed “ Hugh S. Fleming, Sheriff. ‘■'A. B. Hayden, John Young, Jr., Jury Commissioners.” The precept of the judges to the clerk to issue a venire for traverse jurors, the venire, the return to the venire, and the certificate, were all in a similar form. The jury to try the indictment was empannelled on the 8th of July 1872, and the cause proceeded to trial before Starrett, P. J. and Stowe J., no objection having been made to the precepts, &c., in relation to the jurors. The evidence was that the prisoner lived with his sister, who was a married woman, in Allegheny city; that on the 11th or 12th of June 1872, about midnight, the deceased was found by George Smithson, in a street in Allegheny city, wounded; shortly after-wards the defendant came up with a knife in his hand; said he had killed that man, he had cut him; he saidif he had had a larger knife he would have put him through faster.” To an officer of the peace who took him to the mayor’s office, the prisoner said whilst going there, “ I was only at home a few minutes when I heard a noise, I listened and heard a creaking, took out my knife and said that they can’t fool me on that business.” Prisoner said he then took out his knife and opened it; he put his shoulder to the door and shoved it; it did not go in the first time; he put his shoulder to it the second time and it went in; just as the door went open, his sister was getting out of bed undressed; he struck the deceased twice with the knife whilst on the bed; deceased got up and “ went for me on the floor,” and prisoner gave him another stroke in the breast. To another witness prisoner said, he had “ given it to him twice in the bed and once afterwards;” he said he had found the deceased in his sister’s bed. These statements were all made oh the night of the killing. The deceased was taken to the mayor’s office, and died about 1 o’clock of the same night. The sister, examined by the Commonwealth, testified that her husband had been away about five weeks; that she and the deceased were sitting in the room together, but denied that there was any impropriety between them. Whilst sitting there the prisoner bursted into the room and knocked her down; when she came to, the deceased was gone. Her brother asked her if she was in "bed with a man; her brother “ was clear crazy; he acted more like a crazy man than a drunken one.” The defendant’s points were:— 1. If on the night of the killing the defendant found or supposed he found, the deceased in bed with defendant’s married sister, and was thereby so much excited as for the time to overwhelm his reason, conscience and judgment, and cause him to act from an uncontrollable and irresistible impulse, the law will not hold him responsible. The court, Starrett, P. J., answered:— “ As this point seems to amount to the proposition, that if the prisoner was temporarily insane at the time he did the cutting, he is not guilty of any legal offence, it is affirmed as an abstract proposition of law. If the defendant was actually insane at the time, this, of course, relieves him from criminal responsibility from whatever cause the insanity arose. But the jury must not confound anger or wrath with actual insanity, because however absurdly or unreasonably a man may act when exceedingly angry, either with or without cause, if his reason is not actually dethroned, it is no legal excuse for the violation of law.” 2, If the jury have a reasonable doubt as to the condition of defendant’s mind at the time when the act was done, he is entitled to the benefit of such doubt, and they cannot convict. The court answered :— “ The law presumes sanity when an act is done if no insanity is shown by the evidence; and when it appears that a man was sane shortly preceding the act and shortly after, the presumption exists of sanity at the time of the act; and no jury has a right to assume otherwise, unless the evidence in connection with the act fairly convinces them that the defendant was actually insane at the moment the act was committed. “ This point is refused.” Judge Starrett, in a charge of great ability, having given instructions to the jury as to their duties, and having defined murder at common law, and under the Acts of Assembly of Pennsylvania, proceeded:— * * *■ “ In the case before us we have to deal only with that kind of murder in the first degree described as wilful, deliberate and premeditated. Many cases have been decided under this clause in all of which it has been held that the intention to kill is the essence of the offence; therefore if the intention to kill exists it is wilful; if this intention be accompanied by such circumstances as evidence a mind fully conscious of its own purpose and design, it is deliberate; and if sufficient time be afforded to enable the mind fully to frame the design to kill, and seléct the instrument or to frame the plan to carry the design into execution, it is premeditated. The law fixes no length of time as necessary to form the intention to kill, but leaves the existence of a fully formed intent as a fact to be determined by the jury from all the facts and circumstances in the evidence. If there be time to'frame in the mind, fully and consciously, the intention to kill and to select the means or weapon of death, and to think and know beforehand the use to be made of it, there is time enough to deliberate and premeditate, though that may be very short. The proof of the intention to kill and the disposition of mind constituting niurder of the first degree, under the Act of Assembly, lies on the Commonwealth; but this proof need not be express or positive ; it may be inferred from the circumstances. If from all the facts attending the killing the jury can reasonably and satisfactorily infer the existence of the intention to kill and the malice of heart with which it was done, they will be warranted in doing so. He who uses on the body of another at some vital part with a manifest intention so to use it, a deadly weapon, such as an axe, a pistol or a knife, must, in the absence of qualifying facts, be presumed to know that his blow is likely to kill; and knowing this, must be presumed to intend death, which is the ordinary and probable consequence of such an act, Hence he who takes the life of another with a deadly weapon and with a manifest design thus to use it upon him, with sufficient time to deliberate and form the conscious purpose of killing, and Avithout any sufficient reason or cause of extenuation, is guilty of murder in the first degree. When the act is done deliberately, Avith a deadly weapon, and is likely to be attended with dangerous consequences, the malice requisite to murder Avill be presumed, for the law infers that the natural or probable effect of any act deliberately done, is intended by the actor. When the killing then is malicious and the evidence shows a Avilful, deliberate and premeditated purpose to take life, it is murder in the first degree, “ Manslaughter is defined to be the unlawful killing of another without malice, expressed or implied; which may be voluntary, done in a sudden heat, or involuntary, but in the commission of an unlawful act. Voluntary manslaughter often so nearly approaches murder that it is necessary to distinguish it clearly. The difference is this *. manslaughter is never attended by legal malice or depravity of heart — that condition or frame of mind, before spoken of, exhibiting Avickedness of disposition, recklessness of consequences or cruelty. Being sometimes a wilful act (as the term voluntary denotes), it is necessary that the circumstances should take away every evidence of cool depravity of heart or Avanton cruelty. Therefore to reduce an intentional blow, stroke or wounding, resulting in death, to voluntary manslaughter, there must be sufficient cause of provocation and a state of rage or passion Avithout time to cool, placing the accused beyond the control of his reason and suddenly impelling to the deed. If any of these be wanting, if there be provocation without passion or passion without legal provocation, or if there be time to cool and reason has resumed its sway, the killing Avill be murder. But it is not every cause of provocation that is regarded as sufficient or legal. Insulting or scandalous words are not sufficient cause of provocation; nor are actual indignities to the person of a light and trivial kind. Whenever the act evidences a deadly revenge and not the mere heat of blood; whenever it is the result of a devilish disposition and not merely the phrensyof rage, it is not manslaughter but murder. Passion arising from sufficient legal provocation is evidence of the absence of malice. “ [It is claimed by the prisoner in this case that on going to his sister’s house at a late hour in the night, he heard a noise in his sister’s room, and thought that something wrong was going on there; listened aAvhile and becoming convinced that his suspicions Avere well founded, he took out his knife and opened it, put his shoulder to the door, forced it in and found his sister there in her night-dress and the deceased in the room with her; that he was greatly excited and enraged, and in the heat of passion thus generated, he stabbed the deceased twice m the back and once in the breast. Assuming all this to be true, does it amount in law to sufficient cause of provocation to reduce ■ the killing to manslaughter ? We are of opinion that it does not; that there is nothing in these circumstances, as they are claimed to exist by the prisoner, that would reduce the grade of the offence to'voluntary manslaughter.] It is the duty of the court to say, as matter of ¡aw, what fact or facts will amount to sufficient legal provocation, if they are found by the jury. In other words, it is for the jury to find what the facts are and for the court to say what effect shall be given them. Assuming then the facts to be as claimed by the prisoner in this regard, we say, that they do not amount to sufficient or legal provocation, such as would reduce the grade of a felonious homicide to manslaughter. * * * “ It is not denied, nor could it be successfully, that the prisoner inflicted the wounds which were found on the body of the deceased, William Hadfield, and which caused his death. There is no serious conflict as to the time, place and circumstances under which the mortal stab was inflicted. There is no evidence to show and we do not understand that it is claimed by the prisoner, that the mortal wound was inflicted in self-defence. Instead of being attacked he himself was the assailant. It is proven by his own admissions, that he suspected the infidelity of his sister, and after listening at her door a few minutes, he took out his knife, opened it, and broke the door leading into her room, and then'thrice stabbed the deceased. What did he open his knife for before he forced open the door ? Was it for the purpose of aggression or defence ? What did he intend to do with the open knife? What did he do with it ? These are all pertinent inquiries, and doubtless you will find answers to all of them in the evidence before you. We have no means of judging as to the motives of men except by their actions and declarations. What then did the acts of the prisoner m taking out and opening his knife, and then forcing open the door of his sister’s room, and then burying the knife almost to the hilt in the body of Hadfield, indicate as his intent and purpose ? In the same connection his declaration to the witness Smithson, soon after the cutting, that if he had had a larger knife he would haye put him through faster, should be considered as bearing upon the intent with which the stabbing was done; and in the same.connection also you will remember the impious and blasphemous expression of the prisoner when he was informed Hadfield was dead. It is from these and other circumstances in evidence to which I have not referred, that you are to determine the state of his mind at the time the stabbing was done; whether he was actuated by malice and whether he intended to do what he actually did accomplish, viz.: take the life of Hadfield. “ The general rule is that all homicide is presumed to be malicious —that is, murder of some kind — until the contrary appears in evidence. Hence the burden of reducing the crime from murder to manslaughter, where it is shown that the prisoner committed the deed, lies on him. He' must show all the circumstances of alleviation or excuse upon which he relies to reduce his offence from murder to a milder kind of homicide, unless indeed where the facts already in evidence show it. But though the homicide without the circumstances of alleviation or excuse is presumed to be murder, it is not always presumed to be murder of the first degree: it must be shown by the Commonwealth to be murder of the first degree. The jury must be satisfied as to the facts and circumstances which indicate the intention to kill, and the depravity of heart and conscious purpose which constitute, as already explained, the crime of murder of the first degree. “It is said that immediately after the commission of the deed, the prisoner looked like a crazy man. Is there anything remarkable in this ? When a man permits his angry passions to become aroused; when he resolves upon deeds of violence and carries them into exécution, even to the taking of the life of a fellow being, it would be singular indeed if the vengeance that rankled in his breast would not clearly manifest itself by outward expressions. If such manifestations of a wicked heart, bent upon vengeance and the gratification of malicious passion, are to be seriously considered as sufficient evidence of insanity, how are deeds of violence and bloodshed ever to be punished ? A learned author has said that the mind is always greatly troubled when it is agitated by anger, bewildered by jealousy, or corrupted by an unconquerable desire for vengeance. Then, as is commonly said, a man is no longer master of himself; his reason is affected; his ideas are in disorder; he is like a madman. But in all these cases the man does not-lose his knowledge of the real relation of things; he may exaggerate his misfortune, but this misfortune is nevertheless real, and if it carry him to commit a criminal act, this act is perfectly well motived. In such case it will generally be found that revenge, anger and kindred emotions of the mind, constitute the real motive which’ has occasioned the homicidal act, if such act has been committed.” * * The court then read and answered the defendant’s points, as before stated; and instructed the jury as to the character and effect of “a reasonable doubt.” The jury, July 10th 1872, found the prisoner guilty of murder in the first degree. After a motion for a new trial, which was overruled, the prisoner was, on the 18th of January 1873, sentenced to be hung. The prisoner removed the record to the Supreme Court by writ of error, and there assigned for error:— 1, 2. The alleged irregularities in the precepts, return, &c., of the venires. 2, 3. The answers to his points. 5. The part of the charge in brackets. 6. The ingredients necessary to constitute murder in the first degree were not proved to exist.
77 Pa. 214Poor v. McClure (1874)
Error to the Court of Common Pleas of Allegheny county: Of ' October and November Term 1873, No. 97. This was an action of trespass, q. c. f., brought January 2d 1373, by Levi Poor, John W. Dunn and W. J. Poor, against W. G. McClure. The plaintiffs declared for tearing down a fence, &c., on the locus in quo. The defendant pleaded not guilty, and pleaded specially, that at the time of the committing of the alleged trespasses, the title to the locus in quo was not in the plaintiffs, but in the city of Pittsburg. On the trial, January 22d 1872, before Starrett, P. J., it appeared : — • That on the 31st of December 1787, a patent was issued by the Commonwealth to Conrad Winebiddle, for a tract of land containing 121 acres, on the Allegheny river, in Pitt township, Westmoreland county (now in Allegheny county). On the 22d of July 1806, a patent issued to George Wallace, for an island called “ Cork’s Island,” in the Allegheny river, opposite the tract granted to Winebiddle. This island was afterwards also known as “ Wainwright’s Island.” In 1806, Wallace conveyed “ Cork’s Island ” to Wainwright. Wainwright became the owner also of part of the Winebiddle tract on the mainland; the remainder of that tract had in 1814 become vested in W. B. Foster. On the 12th of August 1844, McCullough obtained an equitable title under articles of agreement, to Cork’s or Wainwright’s Island. McCullough then constructed a dam across the channel between the island and the mainland, to give him mill power. Prior to this time there had been a navigable channel betwmen the island and the mainland; there was evidence that this channel before,' and especially after the erection of the dam, had gradually been filling up. On the 11th of May 1853, an Act of Assembly was passed authorizing McCullough to raise his dam three feet. Under this act McCullough raised his dam; it obstructed the navigation of that branch of the river, and caused a more rapid filling up of the channel, until there was very little channel left. The locus in quo was the filled-up channel between the mainland and the island, &c.; it was at that time in the borough of Lawrenceville (afterwards incorporated into the city of Pittsburg). On the 16th of April 1858, an Act of Assembly was passed, authorizing the District Court of Allegheny to appoint commissioners to examine the shores, to survey and make thereon lines of ordinary low-water and lines of ordinary high-water along the Monongahela, Allegheny and Ohio rivers; the lines to be such as would secure and perpetuate the navigable channels of those rivers, &c., and as would be most suitable for the benefit of the public at large. The commissioners to return their survey to the District Court of Allegheny county. The act further enacted that all riparian rights then vested in the Commonwealth, between the high-water lines and the rivers should be vested “ in the several corporations within whose limits the same now is or hereafter shall lie.” Under the authority of this act, the commissioners ran the lines and made report according to law. On the 12th of April 1867, the burgesses and council of Lawrenceville were authorized by Act of Assembly to extend certain streets “ across that portion of the Allegheny river lying between Wainwright’s Island and the main shore, and fill up or embank that portion of said river occupied by the extension of the aforesaid streets so as to make a uniform grade.” The streets were accordingly extended and filled up from the mainland to the island; this closed the channel altogether, and the locus in quo had ceased to be part of the bed of the river. On the 6th of April 1867, by virtue of an Act of Assembly, the borough of Lawrenceville became part of the city of Pittsburg. On the 16th of March 1868, Dunn and W. J. Poor, two of the plaintiffs, obtained a warrant for 15 acres of land, being the locus in quo. A survey was made and patent issued to the warrantees, December 8th 1868. On the 8th of April 1870, an Act of Assembly was passed, •which recited the grant by the Commonwealth of Wainwright’s Island and of the land on the mainland; and the making of high and low-water lines on the Allegheny and the other rivers, by virtue of the Act of April 16th 1858; and the Act of April 12th 1867, authorizing the municipal authorities of the borough of Lawrence-ville to extend their streets across the Allegheny river to Wainwright’s Island, &c., “ and by means thereof, the said portion or branch of said river between the said island and the main shore, has been vacated, and has ceased to be a part of said river.” The act then enacted that the bed, &c., of the river so vacated, should be vested in the city of Pittsburg, “the boundaries of said bed on each side * * * are the low-water lines established, &c., under the Act of April 16th 1858, and the same shall be held and improved by said city for public purposes as a street, in the same manner as other streets are held and improved by said city, and the rights of the owners of land on each side thereof shall extend to said low-water lines severally, and said owners shall hold up to said low-water lines without any let, &c., by the Commonwealth, the public, or the city of Pittsburg,” &c. The plaintiifs erected a' fence on the locus in quo ; the defendants, acting under the city of Pittsburg, took the fence down; this was the trespass complained of. The folloAving are points of the plaintiffs:— 3. If the channel of the Allegheny river between Wainright’s Island and the southern shore was filled up, not by natural causes, but wholly or mainly in consequence of the erection of the dam and bridges across the same, the ground thus made belonged neither to the owner of the island nor to the owners of the mainland, but the title to the same remained in the Commonwealth. 4. If at the dates respectively of the Avarrant to Dunn and Poor, the survey made pursuant thereto and patent to them, the waters of the Allegheny river flowed Avholty northwardly of Avhat was formerly Wainwright’s Island, and the space betAfeen the said former_ island and the main shore was filled up from the causes mentioned in the third point, and at said dates was dry land and had a soil susceptible of cultivation, and in point of fact had ceased to be a part of the bed of the river, it was subject to appropriation, survey and patent. The court instructed the jury if they believed the facts to be as stated in plaintiffs’ third and fourth points, to find a verdict in their favor, and requested that the damages be assessed separately for the trespass committed on the land between the low-Avater lines as fixed by the commissioners, and that betAveen the original low-water lines of the Wmebiddle and the island patents; subject to the opinion of the court on the question of law reserved, to wit, whether, under the facts established by the verdict, the plaintiffs acquired any title at all under the patent to Dunn and Poor. The jury found for plaintiffs, subject to the opinion of the court on the reserved question. The court afterwards entered judgment for the defendant on the reserved question non obstante veredicto. The plaintiffs took a writ of error, .and assigned for error that the court entered judgment for the defendant non obstante veredicto.
77 Pa. 221Allison's Appeal (1875)
Appeals from the Court of Common Pleas of Clarion county: In Equity: No. 176 and 179, to October and November Term 1874. The bill in this case was filed July 1st 1872 -by J. W. Allison and A. Evans, against R. W. Porterfield and M. C. Treat. ■ It set out that Joseph Foust, on the 15th of July 1871, leased for twenty years to Philip Foust and William Spencer, by metes and bounds, which were stated in the bill, a lot of ground containing 3 acres and 123 perches of land, “ for the sole and only purpose of mining and excavating for petroleum, coal, rock or carbon oil,” and also a “protection of 10 rods on the east side” of the lot, “and 8 rods on the north side;” the lessees to deliver to the lessor one-eighth of the petroleum, &c., raised on the premises; the lessor to use the premises for tillage, except such part as may be necessary for mining purposes, and a right of way to the places of mining, &c.; that on the 29th of March 1872 the lessees transferred their interest in the lease unto A. Evans, one of the plaintiffs, and on the 19th of July 1872, Evans transferred seven-eighths to J. W. Allison, the other plaintiff; that the defendants had entered on “the protection,” and after notice from the plaintiffs to desist, had erected machinery on “the protection,” and “were boring and drilling thereon for carbon and petroleum, in violation of said notice and the rights of the plaintiffs.” The prayers were:— 1. For an injunction. 2. For an account of all waste, &c., “and in the event of their obtaining oil prior to the judicial determination of this case, to account for all oil so obtained from the premises.” The defendants answered, that they entered on the land mentioned in the bill under a lease from Joseph Foust, the plaintiffs’ lessor, and denied that they were in “the protection” set out in the bill; they averred that the land leased by them from Joseph Foust lies northeast of the northeast corner of the plaintiffs’ leasehold; that their lease from Joseph Foust was bounded by lines which were merely an extension of plaintiffs’ north and east lines beyond their northeast corner; they further averred that they believed that the land leased to them was not covered by “ the protection ” mentioned in the bill, and that they were advised as matter of law that “ the protection ” did not extend to any land included in their lease. The question as to the land within “the protection” was, whether the north and east lines of “the protection” were to be extended until they met, or whether “the protection” on the north side extended no farther than to the east line of the leased land, and on the east side no farther than to the north line of the leased land; in the latter case the defendants might sink wells, &c., immediately outside of plaintiffs’ leasehold. The annexed diagram may more clearly indicate the respective claims of the parties:— James Boggs, Esq., was appointed examiner and master. He took testimony in the case and as master reported, amongst other things, that the plaintiffs commenced sinking an oil-well on the premises leased to them, and completed it on the 14th of January 1872 ; the well produced from 90 to 100 barrels of oil daily; that on the 28th of March 1872, Joseph Foust leased to the defendants a lot lying northeast from plaintiffs’ lot, containing about two acres, and shortly afterwards commenced sinking a well on the disputed part. The plaintiffs commenced a second well on their lot, which was completed July 15th 1872, and produced about 50 barrels of oil daily. The defendants’ well was completed about the middle of August 1872, and then produced about 65 barrels of oil daily. The product of oil from the plaintiffs’ wells decreased, and at the hearing before the master the aggregate product of both their wells was about 16 barrels daily. He also reported the amount of oil which the defendants had obtained from their well, its value, &c.; that the sinking of the well was an injury to the plaintiffs, and that the amount of damages was one-half of the whole production of the well. He further reported his opinion in the case as follows :— * * * “This protection was to prevent-Joseph Foust or any other person under him from putting down an oil-well at any place within the prescribed limits. At no place could Joseph Foust, or any other person under him, put down a well on the north side of this Evans and Allison lease within 8 rods of the actual line thereof, nor on the east side within 10 rods ; nor could Evans and Allison bore at any place within their protection outside of the actual lines of their lease, but could bore up as near their lines as they could erect their buildings for the purpose. The chief object of this protection appeared to be to secure to the lessees the exclusive chance for oil under their lease, or at least in so far as 8 rods additional north and 10 rods on the east would do that. As to whether the protection extended around the corner, the language of the agreement is somewhat ambiguous and doubtful, which ambiguity and doubt are to be taken most strongly against the lessor, Joseph Foust, and his subsequent lessees with notice. * * * It is our opinion that the intention of the parties at the making of the lease was to secure to it the same protection at the corner as at the sides, and that the protection lines at the northeast corner extended until they intersect each other. * * * If we are correct in our interpretation, the well of Porterfield and Treat is within the plaintiffs’ protection.’’ * * * The master found also that the entire production from defendants’ well to July 19th 1873 was $18,777.79, and therefore $9388.89 would be the measure of damages to the plaintiffs. He therefore recommended a decree in favor of plaintiffs for $9388.89, and for an injunction to restrain defendants from further damage to the plaintiffs’ leasehold. The defendants filed exceptions to the report: that the master erred in not holding that the bill laid no ground for equitable relief ; that a bill for an account would not lie, the remedy being at law; and in finding that the defendants’ well was within “ the protection” mentioned in the plaintiffs’ bill. There were exceptions also as to the amount of damages and the mode of computation. The court (Jenks, P. J.) overruled the exceptions as to the right of the plaintiffs to an injunction to restrain the defendants from further operations on the premises in dispute, and decreed an injunction accordingly; and sustained the exceptions as to the question of damages as not being cognisable in equity, and as to that; dismissed the bill without prejudice. Both parties appealed to the Supreme Court, and assigned for error the portions of the decree against them respectively.
77 Pa. 228Morgan v. McKee (1875)
Error to the Court of Common Pleas of Allegheny county: Of October and November Term 1874, No. 7. This was an action of assumpsit, brought to February Term 1871, of the court below, by John A. McKee against B. W." Morgan and S. A. Morgan, partners as B. W. Morgan & Co. The plaintiffs claim, as set forth in his declaration and affidavit of claim, was on three similar instruments of writing, all dated March 5th 1870, each of which was for the sale by the plaintiff to the defendants of 500 barrels of petroleum; one for the delivery of 500 barrels between the 16th and 31st days of October, at buyer’s option; one for the delivery of 500 barrels between the 16th and 30th days of November; and the third for the delivery of 500 barrels between the 16 th and -31st days of December 1870, to be paid for on each delivery at 30 cents per gallon; with the stipulation in each paper that if no call was made by the defendants, or if the call should be for delivery on the last day, the plaintiff should have the privilege of delivery on either of the last three days. These contracts were accepted by the defendants, and when the plaintiff tendered them the oil on the days stipulated for the delivery, they refused to accept and pay for it. On the trial, before Starrett, P. J., February 13th 1873, after the plaintiff’s claim had been read, the defendants offered to prove, that on the 5th of March 1870, the plaintiff and defendants entered into a contract for the sale and purchase of 4000 barrels of petroleum, for the price, &c., as set out in the instruments above given, and deliverable in monthly quantities of 500 barrels; “ that the broker who acted for the parties after the contract was entered into, prepared and had executed eight papers of the tenor of those in evidence, for the delivery of the said monthly instalments; that this was done merely as a matter of convenience and in accordance with the custom of the trade; that said papers were all executed at one time; that the contract for said 4000 barrels was one entire contract, and so understood and agreed on by the parties, and the object in preparing and executing said eight papers was not to sever said contract, or to interfere with its entirety, and this was well understood by both parties at the time said papers were signed and executed; that under said contract the plaintiff delivered, and the defendants accepted and paid for, 500 barrels of said petroleum in the month of May 1870, and the like quantity for each of the months of June, July and August 1870, and upon said oil, so delivered and accepted, the defendants sustained a heavy loss; that the 500 barrels to be delivered by plaintiff to defendants under said contract in the month of September 1870, were not so delivered, but the plaintiff made default in the delivery, and refused to deliver the same, although it was duly demanded; that the defendants subsequently, to wit, when the October delivery .was tendered, notified the plaintiff that by reason of his previous default, the defendants elected to treat the contract as rescinded, and for like reason the defendants declined the subsequent deliveries ; that neither the plaintiff nor the defendants would have entered into separate contracts for monthly deliveries, nor would the former have sold, nor the latter have purchased, less than 4000 barrels of said petroleum, but it was the contemporaneous understanding and agreement when said eight papers were executed, that they constituted one transaction or entire contract for 4000 barrels; that the papers for the months of October, November and December, in evidence, are three of the eight papers mentioned in a previous part of this offer, and they cover but a portion of the aforesaid 4000 barrels.” The offer was rejected and a bill of exceptions sealed. The verdict was for the plaintiff for $5840. The defendants removed the record to the Supreme Court, and there assigned the rejection of their offer for error.
77 Pa. 232Kelly's Appeal (1875)
Appeal from the Court of Common Pleas of Crawford county: No. 54, of October and November Term 1878. In the distribution of the proceeds of the sheriff’s sale of the real estate of Robert Lafferty, deceased. So far as could be ascertained from the statement in the paper books and the auditor’s report, tlie facts in this case appear to .be as follows:— On the 21st of January 1871, Emanuel Ecker commenced an action of assumpsit in the Court of Common Pleas of Allegheny county against James D. Kelly, administrator, &c., of Robert Lafferty, deceased, with notice to Susanna Lafferty, his widow, and James Lafferty and others, his children. The sheriff returned “summoned” as to.Kelly, and “nihil” as to the widow and children. The declaration was on a number of promissory notes, set out in it, made by the decedent, the first dated on the 14th of May 1868, and the last dated July 23d 1868, and also in the common counts. The whole amount due January 1st 1871 on the plaintiff’s claim, as filed, was $1740. The administrator pleaded uplene administravit.” An arbitration was had under the compulsory arbitration law, and on the 10th of March 1871 the arbitrators made an award as follows:— “We do find and award in favor of the plaintiff the sum of $1755, and we further find that the sum of $650, part of the above principal sum, was contracted by defendant’s intestate in his lifetime, A. D. 1863. And we further find that the defendant has administered fully all the personal estate of the intestate, and all the real estate standing in the name of said deceased, so far as has come to the knowledge of said defendant. But wTe do find that the defendant’s intestate purchased, in 1864, certain real estate, in the county of Crawford, and the title to the same was placed in the name of his wife, Susanna Lafferty, by deed from R. R. Johnson and wife, dated September 16th 1864, as recorded (&c.). Also, deed from Frederick Wightman, dated October 19th 1864, as recorded (&c.). And that $2000, at least, of the purchase-money thereof was paid by said Lafferty upon one or both of the said tracts of land, out of his own money and estate.” Judgment was duly entered on the award; the plaintiff transferred the judgment to Crawford county. In that county, to August Term 1871, a scire facias on the judgment was issued, with notice to the widow and children of decedent. The sheriff returned “scire feci” as to the widow and Mary J. Lafferty, one of the children, and “ nihil ” as to the other children and the administrator. An alidg scire facias was issued to the children not served in the original, and the sheriff returned “nihil;” judgment was entered on the scire facias, which was liquidated February 23d 1872 at $1851.56. A fi. fa. was issued against the administrator, widow and children, and the real estate mentioned in the writ, but being in the name of the widow of the decedent, was levied on and condemned. Under a venditioni, the property named in the fi. fa. and the inquisition, was sold on the 5th of August to John Phillips for $2150, the proceeds of sale paid into court, and Thomas Roddy, Esq., appointed auditor to report distribution. Before him the money was claimed by Ecker, the plaintiff in the execution, and by the administrator of Lafferty. In connection with the foregoing statements, the auditor found:— That in the distribution of the assets which had previously come into the hands of the administrator, and which were insufficient to pay all the decedent’s debts, Ecker received a pro rata dividend as a creditor of the decedent; that in the suit by Ecker against Kelly, as administrator of Lafferty, it had been shown that a large portion of the purchase-money of the land sold under the execution had been furnished by the decedent. The grounds of Ecker’s claim w'ere:— 1. The administrator claimed to'have settled the whole estate. 2. The claims of other creditors were barred by the Statute of Limitations, so far as the land sold on Ecker’s judgment is concerned. 3. The intestate did not die seised of the land from which this fund is raised, nor had he any title ; his administrator, therefore, could not sell the land, and could not control the fund raised from the sale of it by another. 4. If Lafferty had owned the land, with title in himself, but conveyed it to another in his lifetime, even if he were indebted at the time of the conveyance, his administrator could not sell the laud for the payment of such debts. Under such circumstances the land would be bound only by such debts as were liens at the time of the conveyance. The auditor also reported as his opinion, amongst other things, that “ the fund being derived from the sale of the decedent’s interest in the real estate, it must be distributed as such.” He awarded the whole of the fund to Kelly, the administrator, &c., of the decedent. One of the exceptions by Ecker was that the fund in court should have been appropriated to his judgment. The court (Lowrie, P. J.) sustained the exceptions and ordered the money in court to be paid to Ecker. The administrator appealed to the Supreme Court, and assigned the decree of the court below for error.
77 Pa. 238Hays v. Millar (1870)
1. The owners of a tow-boat are not common carriers ; in an action by them for towing barges, where, under a plea of set-off and payment, the defendant alleged that the tow was lost by the negligence of the owners of the boat, the burden was on him to show such negligence. 2. A common carrier is an insurer against all losses that do not arise from the act of God or the public enemy, and the burden is on him to bring himself within the exceptions. 3. The defendant having given evidence tending to show that the loss was from the negligence of the plaintiff's pilot and engineer, evidence that those officers were competent, skilful and careful, was inadmissible. 4. A master is responsible for the negligence of his servants in the course of their employment, without regard to their character for care or skill: except in the case of fellow-servants, or of a servant employed by him in some independent work. 5. When an act or omission of defendant is proved, whether it be actionable negligence, is to be determined by the character of the actor omission, not by the defendant’s character for care and caution.
77 Pa. 243Datesman's Appeal (1875)
1. Heckel recovered judgment against William; afterwards Martin recovered a judgment against William & Heckel, as partners, who became insolvent ; Heckel afterwards assigned his judgment to John as collateral; William’s separate real estate was sold by the sheriff; in the distribution of the proceeds of sale, held, Martin was to be paid on his judgment, in preference to John on Heckel’s judgment assigned to him. 2. John took Heckel’s judgment subject to every disability and equity which would have affected Heckel. 3. Martin’s judgment was defectively indexed; if that gave precedence to liens subsequent to it, although Heckel’s judgment would take in preference to these liens, it could not be benefited by the disability of Martin’s judgment as to them, so as to claim the fund. 4. Erb’s Appeal, 2 Penna. R. 296 ; Himes v. Barnitz, 8 Watts 39 ; Huston’s Appeal, 19 P. E. Smith 485, followed.
77 Pa. 250Tryon v. Munson (1875)
1. Indescriptive warrants on which the purchase-money had been paid, were mortgaged June 14th, describing them as u all those tracts of land surveyed or to be surveyed by virtue of the warrants,” &c. The surveys were made June 30th. Held, the mortgage bound the land when surveyed : “ to be surveyed ” being a covenant that the land should be surveyed.' 2. An indescriptive warrant gives no title to any particular land until survey, and therefore none can be seized on execution. 3. A warrant upon which the purchase-money has been paid is authority to survey vacant land to the person taking it out, and is a contract between the Commonwealth and the warrantee to permit him to elect .to survey unappropriated land where he shall designate. 4. When the survey was made on the warrants mortgaged, the title enured to the use of the mortgagee in virtue of the warrantee’s covenant to survey; equity treating that as done which ought to be done. 5. A mortgage was for warrants not specified, but it stated that there were annexed lists containing receipts for the purchase-money, the names of the warrantees, &c. The mortgage was recorded, but the lists were omitted. Held, even if the mortgage were a defective instrument, it was not defectively recorded, and a scire facias on it was not on an unrecorded mortgage. 8. If an unrecorded mortgage, scire facias was the proper remedy; the 6th section of Act of 1705, giving the remedy by scire facias, does not refer to a recorded mortgage; it being on the mortgage and not on the registry. 7. Scire facias on a mortgage under the statute is original process provided for on the default of the mortgagor, and lies on all mortgages recorded or unrecorded. 8. Under the Act of 1705, a scire facias against the administrator of the mortgagor is regular; since the Act of Eebruai-y 24th 1834 it is not necessary to make the heirs or terre-tenants parties; a proceeding under a scire facias against the administrator is binding on heirs. 9. Scire facias on a mortgage is a local action and must issue in the county where the land lies, and two returns of “ nihil ” are equal to a return of “ scire feci.” 10. A mortgage passes to the mortgagee the title and right of possession to hold till payment shall be made; and he may enter, take actual possession, use the land and receive its profits, until the debt secured is paid ; he needs no legal remedy to enforce this right. 11. The title by deed good against the mortgagor is good against his heirs who are volunteers and take the place of the ancestor. 12. A sale on a judgment in a scire facias on a mortgage, although to be treated as unrecorded for want of sufficient description of the subject, was good against the heirs of the mortgagor, after thirty-three years from his death.
77 Pa. 265Conyngham School District's Appeal (1875)
Appeal from the Court of Common Pleas of Columbia county : In Equity: Of September Term 1874, No. 21. On the 29th of August 1874, the Locust Mountain Coal and Iron Company filed a bill against John Curran and others, directors of the School District of Conyngham township, and Martin Purcell, collector of school taxes of the same district, setting forth, amongst other things, that under the Act of May 8th 1854, sects. 29, 31 (Pamph. L. 617,1 Br. Purd. 245, 246, pi. 63, 64), the county commissioners are required to furnish to the school boards a copy of the last adjusted valuation of the subjects and things made taxable for state and county purposes, and that the same subjects and. things are made taxable for school purposes, and that the directors should annually levy and apportion the school tax, “ not exceeding the amount of county and state taxes authorized by law on all objects * * * made or to be made taxable for state and county purposes;” that the amount of county taxes that can be assessed on real estate is limited to ten mills, and by the Act of February 23d 1866, sect. 4 (Pamph. L. 82), real estate is exempted from taxation for state purposes; that about the 1st of July 1874 the directors of Conyngham School District illegally assessed a school tax of thirteen mills on all real estate, &c., being ten mills on the county rate and three mills on the state rate, in the township of Conyngham, for the year 1874, and issued their warrant to Purcell to collect the tax; that the plaintiffs own real estate in that township assessed at $173,070, on which the tax at the rate of thirteen mills would be $2249.91. The plaintiffs averred that they were not liable to pay the three mills which were assessed under the Act of 1854, which is changed by the Act of 1866; but they had been and were ready and willing to pay the ten mills. The prayers were that the assessment of three mills be declared contrary to law; that the defendants be restrained from collecting the tax and the directors from assessing plaintiffs for more than ten mills for school purposes, and from issuing a warrant to collect any greater tax, and for general relief. The defendants answered, admitting the levy of the tax of thirteen mills, but denying that such levy, &c., was without authority of law or that the Act of 1854 was changed by the Act of 1866. Under the Act of May 15th 1841, sect. 7, Pamph. L. 394, the rate of county taxation was limited to ten mills on the dollar of the adjusted valuation; and under the Act of April 29th 1844, sect. 34, Pamph. L. 497, the rate of state taxation was limited to three mills on the dollar of the adjusted valuation (2 Br. Purd., pp. 1360, 1381, pi. 13, 148). This rate of taxation was in force at the passage of the Act of 1854 ; the Act of 1866 enacted that real estate should thereafter “ be exempt from taxation for state purposes.” The court (Elwell, P. J.) ordered that a preliminary injunction issue, restraining the defendants from collecting more than ten mills on the dollar of the last adjusted valuation of plaintiffs’ real estate. The defendants appealed to the Supreme Court, and assigned the decree for error.
77 Pa. 270Simpson & Brother's Appeal (1874)
16. to January Term 1872. The bill in this case was filed November 6th 1871, by Arthur S. Simpson and Adam M. Simpson, partners, as A. S. Simpson & Brother, against The Philadelphia and Southern Mail Steamship Company and A. P. Colesberry, harbor master. The averments of the bill were as follows: — • John L. Neill and James Simpson were seised in fee as tenants in common of a certain wharf property, including one pier which extends into the river Delaware.
77 Pa. 274Donnelly v. Graham (1875)
Error to the District Court of Philadelphia: Of January Term 1873, No. 5. This was an action of assumpsit, brought June 3d 1871, by Walter Graham & Co., against W. E. Willard, James Donnelly, Patrick Rafferty and William Monaghan, trading as William Willard & Co. The sheriff returned “ ‘Nihil,’ as to William E. Willard, and summoned as to the other defendants.” The declaration, filed October 23d 1871, was, “James Donnelly, Patrick Rafferty and William Monaghan, who were sued with William P. Willard, trading,” &c., were attached to answer the plaintiffs, &c.; the declaration being in the common counts. Donnelly and Monaghan, two of the defendants, pleaded non-assumpserunt. Donnelly pleaded also that there was no partnership between himself and the other defendants. Rafferty did not appear or plead. A jury was called January 12th 1872, and sworn generally as to all the 'defendants declared .against; the verdict was for the plaintiffs against all the defendants for «§439.42. The defendants moved in arrest of judgment; the motion was denied. The defendants took a writ of error. They assigned for error that the 'court erred: 1. In swearing the jury as against Rafferty, who had not appeared or pleaded. 2. In denying the motion for arrest of judgment. 3. In entering judgment against the defendants generally.
77 Pa. 276Susanna Root's Case (1875)
Certiorari to the Court of Quarter Sessions of Philadelphia: No. 43, to January Term 1873. In the matter of the assessment of damages to Susanna Root for land taken for the Eairmount Park, Philadelphia. On the 8th of March 1869, the Eairmount Park Commissioners presented their petition to the Court of Quarter Sessions, of Philadelphia, for the appointment of viewers to assess to Susanna Root damages, by reason of their having taken land belonging to her for the park, under the Act of Mai’ch 26th 1867, Pamph. L. 547. By that act an area of ground in the city of Philadelphia, particularly described in the act, was vested in the city,, to be laid out and maintained for ever as an open public park, and the act authorized the appointment of commissioners of the park. On petition of the commissioners the Court of Quarter Sessions was required to appoint viewers to ascertain the value of land taken for the park, when the commissioners could not agree with the owners and in assessing the damages ; the viewers were to “ estimate the advantage to property adjoining or in the vicinity, the award to be enforced as in opening of roads in Philadelphia. The court appointed viewers accordingly. The viewers reported that Mrs. Root’s land taken for the park contained 2.9-10th acres ; they further reported:— “ It appeared before them that the premises above described are part of a larger tract of land, containing 12.8-10th of an acre; of Avhich larger tract the folloAving described remain outside the park, and adjoining the same, to wit:— “ All that certain tract of land, with the buildings and improvements thereon erected, situate, &c., containing 9 acres more or less. After full advisement and consideration they find the value of the ground taken for Fairmount Park, as first herein described, to be $7000. They do also determine that the tract of land last herein described is benefited by the opening of said park to the amount of $18,000. They do therefore assess the premises last above described, for the benefit and advantage of opening said park, to the said amount of $13,000. And they do determine that the said Susanna Root shall pay the difference between the said sums, to wit, $6000 of the damages awarded by the undersigned, jurors, in their partial reports heretofore submitted to and confirmed by this court,” &c. ’ On the 15th of June 1871, an Act of Assembly was passed, (Pamph. L. 392) enacting, “ that in all cases of the appropriation of land for public use other than for roads, streets or highways, it shall not be lawful to assess, apportion or charge the Avhole or any portion of the damage done to or value of the land so appropriated, to, among or against the other property adjoining or in the vicinity of the land so appropriated nor the owners thereof; and all acts or parts of acts, inconsistent herewith, are hereby repealed.” Exceptions were filed by Mrs. Root to this report, as follows:— Susanna Root, claiming the benefit of the said report, so far as it assesses at $7000 the damages to her for the taking of her parcel of land, containing two acres and nine-tenths of an acre, excepts to and prays the court to reject so much of the said report as claims to charge the sum of $13,000 on the tract or parcel of land lying outside of the boundaries of the said Fairmount Park, containing about nine acres, more or less, for the folloAving reasons:— 1. Because the power of the jury to make the said charge of $13,000, on the last-mentioned tract, was taken away by the Act of Assembly of this Commonwealth, approved 15th June 1871. 2. Because the jury fulfilled all the duty imposed on them when they assessed the damages for the first-described lot of land, included within the park boundaries; and the residue of their finding, in respect to the lot lying outside the park, is surplusage and beyond their authority, and should be rejected. December 2d 1871, exceptions sustained and the report referred back to the jury. The viewers again reported : * * * “ That after further and full advisement and consideration, taking into consideration as well the value of the piece of ground taken, as the value and advantage of the park to the piece of ground left outside and adjoining the park, they find that the said Susanna Root has sustained no damage.” Mrs. Root filed exceptions to this report, amongst others the following:— 3. Because the jury have assumed to set off the value of the land taken, which in their original report .they fixed at $7000, from the supposed advantage accruing by reason of the park, to another parcel of land which no longer bounds on the park, but is separated therefrom by Thirty-third street, 100 feet in width, and which other parcel of land does not belong to the said Susanna Root, but to George Root, who was proved before the jury to have become owner thereof before the original report was filed. 4. Because the supplemental report of the jury is an attempt to absorb or set-off the $7000 which their original report finds to be the value of the land taken, by an assessment of an equivalent amount on the land lying on the east side of Thirty-third street, formerly of the said Susanna Root, and now of the said George Root, and such assessment is forbidden by the Act of 13th January 1871. 7. Because the failure to award the claimant any damages for her land taken, which was proved to be worth $3000 per acre and upwards, is a violation of the spirit and intent of the Act of June 13th 1871, which was designed to put all owners of land upon the same footing, and if the power to assess on land lying outside be taken away by the legislature, it should not be done directly, as attempted in the first report, or indirectly, as attempted in this supplemental report. July 6th 1872. The exceptions were dismissed and the report confirmed. Mrs. Root removed the record to the Supreme Court and assigned for error the dismissing the exceptions and confirming the report of the viewers.
77 Pa. 282Stover's Appeal (1875)
1. A testator in Philadelphia gave to his nephew an annuity “ chargeable upon and yearly payable out of my estate during his life. And I do further order, that said sum shall be paid to him in person only and upon his personal application therefor and to no other person for him ; and in caso the said (nephew) shall not for five years apply for the payment of the said yearly sum after the same shall become due, then I order each such annual sum uncalled for to become part of my residuary estate/’ The nephew died in California within five years after the testator’s death, not having made personal application for the annuity. Held, that the payments which had accrued passed into the residue. 2. The intention of a testator gathered from the whole will prevails over technical rules. 3. The legacy was contingent upon the legatee’s applying personally for it. 4. McClure’s Appeal, 22 P. IT. Smith 419, followed.
77 Pa. 286Carter v. Philadelphia Coal Co. (1875)
Error to the District Court of Philadelphia: No. 166, to January »Term 1873. This was an action of assumpsit, brought January 25th 1871, by the Philadelphia Coal Company against William T. Carter and Charles E. Schoener, partners as William T. Carter & Co. Prior to 1867 the firm of G. W. Huntzinger & Co., consisting of G. W. Huntzinger and Harry L. Cake, were mining and shipping coal from Girard lands, in Schuylkill county, leased by them. In 1867, this firm was incorporated as the Philadelphia Coal Company: Cake becoming president, Huntzinger, treasurer, and George C. Mitchell, secretary; the company consisted of five directors. Huntzinger & Co. and the plaintiffs, who were coal miners and shippers, before and after the incorporation had had business transactions with the defendants, and as the result of these transactions, on the 1st of July 1867, they owed defendants $60,000. In November 1867, by arrangement, the defendants became directors in the corporation ; Cake, Huntzinger and D. B. Brown, three of the old directors, being continued in the direction. Carter was chosen president, and continued president for about two years. The defendants sold coal for the company to the Philadelphia & Reading Railroad Company, and in doing so, employed Shoemaker & McIntyre, coal brokers, and paid them commissions, which th'ey charged to plaintiffs and settled their transactions with them November 20th 1868. This suit was brought to recover back these commissions from the defendants. The plaintiffs gave evidence by G. W. Huntzinger, that the “ Carter party,” were ¡in the minority in the board of directors. The whole stock of the company was $350,000, and $200,000 were transferred to the defendants as collateral security for the debt of Huntzinger & Co. due to them; the indebtedness in 1868 amounted to $100,000. In November 1868, the plaintiffs settled finally with defendants, who accepted from them notes which they held, and their own notes at long dates, in payment. The stock was retransferred to plaintiffs as the debt was paid off; the first complaint as to the commissions was in November or December 1868. The accounts with defendants were kept in the books of the plaintiffs by Gr. W. Mitchell, the secretary. On re-examination of witness, the plaintiffs proposed to ask him when and why Mitchell was removed from the secretaryship. Defendants objected to the question; it was admitted and a bill of exceptions sealed. The witness said, “ Mitchell was removed on the 6th of November 1868, because we could no longer live under this rule of William T. Carter & Co.” ' H. L. Cake testified that he first had knowledge of the charge of the commissions in July 1868; he had never examined the books of the plaintiffs. On November 4th 1868, he found that Mitchell had made the entry allowing commissions to defendants for sales as made by Shoemaker & McIntyre, which witness himself had made to the railroad company. Witness received orders from that company every month for coal. The president of the railroad company, testified that they had made no purchase through Shoemaker & McIntyre. There was other evidence in support of their case. For the defendants, Carter testified that during his presidency of the company the accounts were regularly entered, and that he gave the secretary no special- instructions about entering the accounts. Huntzinger always had access to the books; all the money paid Shoemaker & McIntyre was earned by them; “ commissions” was the only item objected to at the settlements; witness proposed to Cake to carry a balance of $30,000 or $40,000, for from three .to fifteen months, and Cake said in consideration of that offer he withdrew all objection to the commissions and settled in full; the defendants had a controlling vote at the stockholders’ meetings. The defendants then offered to show by a miner and shipper of coal that during the years from 1867 to 1871 inclusive, “ it had been the usual and customary method of the Philadelphia coal trade, to sell their coal through the agency of brokers, to the railroad company, to whom a commission was paid ; that witness sold largely to the Reading Railroad Company, through Shoemaker & McIntyre, and that the sales .so effected, could not have been effected in any other way.” The offer was objected to, rejected and a bill of exceptions sealed for defendants. The defendants gave evidence of the manner in which they had conducted their agency in selling coal for plaintiffs, and in keeping their accounts ; that Huntzinger agreed to the propriety of selling the coal through Shoemaker & McIntyre; that he said it was better to pay them commission than have coal sold by them for other persons. Henry F. Shoemaker, of the firm of Shoemaker & McIntyre, testified that his firm had an order from the Philadelphia & Beading Bailroad Company to buy coal; that it was desirable to sell coal to that company; the firm agreed with Carter & Huntzinger, who represented the-plaintiffs, to sell all plaintiffs’ coal for 15 cents per ton; but for this arrangement the plaintiffs’ collieries would have been idle. Carter was again called, and defendants offered to show by him that coal could not be sold except to the Philadelphia & Beading Bailroad Company. This was rejected, after- objection by the plaintiffs, and a bill of exceptions was sealed. There was evidence tending to show that the principal amount of coal sold by the plaintiffs was to the Philadelphia & Beading Bailroad Company. At the final settlement, a receipt was given as follows:— “Beceived, Phila., Nov. 20th 1868, of Messers. Gr. W. Hunt-zinger & Co., their two accejotances of H. L. Cake’s drafts, as follows : One dated November 30th 1868, 4 months after date, for $10,000, the other dated November 20th 1868, for $5809.22 ; also check No. 2406, on First National Bank, for $14,000, being the balance due us, as per settlement made this day. “ W. T. Cartee & Co. “$10,000.00 5,809.23 14,000.00 $29,809.23” The court (Mitchell, J.) charged :— “ This is an action to recover back commissions alleged to be improperly contained in accounts between the parties. “ The plaintiffs’ case is that the commissions were not earned by Shoemaker & McIntyre; sales having in fact been made by Cake, and coal taken from the car by the Beading Bailroad Company ; and that the charges are inserted in the defendants’ accounts in violation of duty and good faith. The defence is:— “ 1. That the commissions were earned by Shoemaker & McIntyre. That they were paid in good faith by defendants to Shoemaker & McIntyre. That the commissions were moderate. That sales could not have been otherwise made. “ 2. That plaintiffs knew of the payment of these commissions, and acquiesced therein at the time. “ 3. That any objections that may have been subsequently raised thereto, were abandoned in November 1868, at the final settlement. “ [The defendants held a large majority of the stock; therefore,the control of the company was entirely in their hands.] They were bound to strict and peculiar fidelity. “ The defendants, Wm. T. Carter & Co., were composed of the president and one director of the plaintiffs’ company, and their accounts were entered and passed by themselves. The jury, therefore, will examine closely these accounts, as the parties were under special obligations to good faith and careful dealing. “ The plaintiffs’ company were, in fact, G. W. Huntzinger & Co. The evidence is that Huntzinger & Co. owned the stock and handed it over as collateral, and on payment of their debt it was returned to them. While therefore Carter, as president, and Schoener, as director, were bound to conduct the affairs of the company with good faith, and to show this in the clearest manner in their dealings with themselves as Wm. T. Carter & Co., yet they had a right to treat G. W. Huntzinger & Co. as the coal company; and if G. W. Huntzinger & Co. were satisfied with the management and with the things that were done, Carter & Co. were not bound to look for a more formal approval by the coal company as such. “ 1. The first question for your consideration is, whether these sales were made by Shoemaker & McIntyre ? * * * “ 4. If Huntzinger & Co. knew of the payment of these commissions and acquiesced in them, they would be bound. Upon this point you have the testimony of these parties, and also of Mr. Shoemaker and Mr. Mitchell, and the fact of the entries on the company’s book, to which Mr. Huntzinger, at least, always had access.” * * * The verdict was for the plaintiff for $2000. The defendants took a writ of error, they assigned for error : — > 1. Allowing the plaintiffs to give evidence why Mitchell, secretary of the company, was removed. 8. Refusing to allow the defendants to prove that it was the custom of the Philadelphia coal trade to sell by the agency of brokers. 5. Refusing to allow defendants to prove that the plaintiffs’ coal could not have been sold to the railroad cpmpany except through. Shoemaker & McIntyre. 7. The part of the charge in brackets.
77 Pa. 291Wistar v. Ollis (1875)
1. In a proceeding under the Landlord and Tenant Act of March 21st 1772, the record of the justices being regular, it is error for the Common Pleas on certiorari to hear evidence aliunde that there was irregularity in summoning the jurors. 2. To establish fraud or want of jurisdiction, the court may hear facts by affidavit; but not to show irregularity which would contradict the records. If heard by the court below, on removal of the record to the Supreme Court they will be disregarded. 3. If there be irregularity in summoning the jurors, and the defendants appear before the inquest and are heard on the merits, they will he held to have waived all irregularities. 4. Ayers v. Novinger,“8 Barr 412; McMasters v. Oarothers, 1 Id. 324, remarked on and criticised.
77 Pa. 295In re Sheppard's Contested Election (1875)
Certiorari to the Court of Quarter Sessions of Philadelphia, at the instance of Charles Gibbons, in the matter of the contested election of Eurman Sheppard as District Attorney: Of January Term 1873, No. 197. In 1868, Furman Sheppard was returned elected district attorney for Philadelphia for three years, at the general election held in October in that year. On the 23d of October 1868, the petition of a number of citizens of Philadelphia was presented to the Court of Quarter Sessions, contesting the election, on the ground that a number of votes had been illegally counted for Mr. Sheppard, sufficient to reduce his aggregate vote below that of his competitor, Charles Gibbons, who, the petitioners averred, was therefore duly elected. On the 16th of October 1869, the court decreed that Mr. Gibbons had been duly elected. On the 19th of October Mr. Sheppard removed the proceedings to the Supreme Court by certiorari; the writ being brought into the Court of Quarter Sessions on that day. On the 25th of October 1869 Mr. Gibbons was sworn into office. On the 28th of October 1869, Mr. Sheppard, by leave of the court, filed a petition in the Quarter Sessions, setting out the decree, and representing that it was based on “ certain principles which were announced in the opinion then delivered,” and on a table and estimate embraced in the opinion; this table also was set out in the petition, and showed that Mr. Gibbons had received a majority of sixty-eight votes over Mr. Sheppard. The petition proceeded:— “ Your petitioner has made a careful examination of the above table and estimate, and has found in it a number of omissions and arithmetical and clerical errors, to the extent of one hundred and twelve votes, showing that Charles Gibbons, Esq., was not elected by a majority of sixty-eight votes, as was adjudged by your honorable court, but that, upon the principles adopted in the said decision and judgment, your petitioner was elected by a majority of not less than forty-four votes. “Your petitioner’s computation is based upon the figures and calculations of the contestant alone, without any reference to the respondent’s view of the testimony in the case, which figures and computations will be found set forth in the several paper-books of the contestant, and exhibit the petitioner’s case in the most unfavorable light in which it can be viewed.” * * * Then follow the omissions and errors alleged, showing the result he had stated. The prayer was that the court would re-examine and reconsider the count and the judgment entered on it, and declare the true vote, &e. On. the 4th of November 1869, Mr. Sheppard filed another petition alleging further errors in the count, &c. On the 3d of January 1870, the certiorari, with the record of the Quarter Sessions, was returned to the Supreme Court. On the 23d of March 1870, the remittitur from the Supreme Court was filed, with the judgment of the Supreme Court: “ Decree affirmed.” On the 28th of March 1870, Mr. Gibbons filed a paper, objecting to any further proceedings on the petitions of Mr. Sheppard :— 1. Because the court on the 16th October 1869 decreed that he was duly elected district attorney. 2. Because he had taken the oath of office on the 25th of October 1869; had then entered on the duties of the office and had continued to perform them ever since. 3. And because the proceedings in the case which had been removed to the Supreme Court by certiorari had been affirmed. After hearing — the opinion of the Court of Quarter Sessions was delivered by Allison, P. J. It was of great length and exhaustive. It concluded as follows:— * * * “ We can claim to have given the case a most careful examination, with all these lights to aid us. In this examination we have adhered firmly to the principles contained in the opinion of the court, which was delivered by Judge Brewster. In nothing have they been varied or departed from. We have confined ourselves to the correction of the account, where figures have been required to be placed in it, in consequence of accidental oversight; with an abandonment of an admitted error in the mode of stating the account in purging a poll, and with the revision of our judgment upon the evidence as to whether votes to be received or rejected are legal or illegal votes. “ The strictest line of proof has been applied to every voter, and the result of the investigation will be stated in summing up the corrected tables of the divisions to which our attention has been directed. “We have refused credits, which have been claimed in every instance, in which the testimony as to the voters, who were primd, facie illegal, did not show that, at the time at which they offered to deposit their ballots, the offer was supported by the proof which the law demands. The vouching by election officers, without making the requisite proof in each case, we rejected. “ We hold that to enter upon the list of voters that a voter was vouched for hy a person whose name is written upon the list, is not in itself a full compliance with the law. In no case has a vote been counted as legal where the proof showed that a person who was assessed as residing at a place designated upon the assessment list had removed therefrom before the election, unless it was established by evidence that he had not removed from the election division. “ We place to the credit of Mr. Sheppard thirty of the thirty-six votes of naturalized citizens, which were refused because the voters held certificates of naturalization issued by the Supreme Court. This credit of thirty-six is reduced by six, because it is admitted by the petitioner. The full credit was given to Mr. Eox in the decision of the court which was made in October last. The thirty-six votes were allowed because we regarded the polls, as to those voters, closed against them. They offered to vote, and were in place to be challenged upon every ground of qualification, bnt were turned away from the polls upon the single objection that they had been naturalized in the Supreme Court. The proofs were that they intended to vote for the petitioner. As to these voters, Judge Brewster remarks : ‘ It is established by thirty-six persons that their votes were rejected, although they were duly naturalized, and that they would have voted for the respondents.’ “ Beyond all question these votes should now be credited to the incumbents. The papers they produced were genuine certificates, issued by the prothonotary under the seal of the highest court of our state. Ño other tribunal should or can impeach its judgments, and they established the right of each of these witnesses to his vote, if otherwise qualified. And if they were not otherwise qualified, under the peculiar circumstances which surrounded them, we hold that this ought to have been shown by the contestants. “ It was not pretended but that the admission of these votes was exceptional, and rested upon a different ground from that upon which other votes had been credited to the incumbents. We decided to place them in the count, unless they were shown to be illegal, giving to them all the presumption which belongs to those whose legal prima facies are established. Of the hundreds who were claimed by the incumbents as wrongfully rejected, for the same reason, thirty-six are all who were called, and the fair presumption is they were all who could,, with safety to the incumbents, be called to testify that they intended to vote the Democratic ticket. These thirty-six were allowed. The rest of this claim, which, as Judge Brewster remarked ‘ was founded on multiplication of guesses,’ we rejected. In our judgment no good reason has been presented which would require us to alter our opinion as to' these votes. The oversight as to this credit, to the number of thirty votes, is now allowed to Mr. Sheppard. “In the Eighth division of the Ninth Ward there was error in charging fourteen illegal votes too many to Mr. Sheppard. The testimony shows that nineteen fraudulent and fourteen unassessed votes were polled during the last three hours. The vote of these hours was.purged to the number of forty-seven. It should have been thirty-three. There was charged fourteen fraudulent votes in addition to the nineteen, but the evidence fails to satisfy us of the correctness of this conclusion. On the contrary, we are convinced that they are included in the nineteen false personations of the three hours, the vote of which has been purged. There is an admitted error in Mr. Sheppard’s favor of five votes in the Sixteenth division of the Twentieth Ward. “ The laborious portion of the duty which we have been required to perform was the labor of re-examining and carefully weighing the testimony as to the individual votes which were claimed by the petitioner, in a readjustment of the account of debit and credit, in the Eighth division of the Ninth Ward, the Seventh division of the Seventeenth Ward, the Fourth division of the Twenty-fifth Ward, and in the Sixth division of the Seventeenth Ward. “ The credits which we give to Mr. Gibbons consist of error in striking out the hourly return from the Second division of the First Ward of seven votes; and a similar error in the Tenth division of the First Ward of eleven votes. “We reduce the charge against him of fifty-two illegal votes to forty-one, a credit of eleven votes. “ To this is to be added the credit of six, deducted from the thirty-six votes of naturalized citizens credited to Mr. Fox. “We do not allow the credit of five votes claimed by Mr. Gibbons in his statement submitted to the court, of an error which, Mr. Gerhart states, is to be found on the tally-list for the ninth hour of the Sixth division of the Seventeenth Ward. An examination of the tally-list shows there is no such error. “ The result of our investigation is stated as follows:— “ If we confine ourselves to the petition and do not look at anything outside of it, Mr. Sheppard’s majority is thirty-five votes. But to restate the account on the basis of mistakes of omission and overcharge, as well as errors in purging the polls, it will stand thus— * * * [Then follows a statement showing the election of Mr. Sheppard by a majority of thirteen votes.] The court therefore decreed: “ That the said Furman Sheppard received the greatest number of the legal votes cast at the election held in the city and county of Philadelphia on the 2d Tuesday of October 1868, for the office of district attorney, and was duly elected to the said office, and that the order and decree of the 16th of October 1869, be annulled and set aside.” Mr*. Gibbons removed the record to the Supreme Court by certiorari. He assigned for error that the court erred:— I, 2. In allowing the petitions of Mr. Sheppard to be filed after the writ of certiorari sued out by him had been filed in the court below. 8. In the decree of May 3d 1870, that Mr. Sheppard had received the largest number of votes for district attorney; in annulling the decree of October 16th 1869; the decree of May 3d 1870, “having been entered after the expiration of the term at which, by the order and decree of October 16th 1869, it had been adjudged and decreed by the said court that, * * * Charles Gibbons was duly elected to the office of district attorney, and after the said last-mentioned judgment and decree had been affirmed by the Supreme Court on a writ of certiorari sued out by the said Eurman Sheppard, whereby the record of the said judgment and the proceedings whereon it was founded had been removed to the Supreme Court, and after the record of the decree of the Supreme Court, affirming the judgment and decree of the court below, had been remitted to the court below.”
77 Pa. 305Loucheim Bros. v. Henszey (1875)
1'. A creditor sued a debtor and obtained judgment by default under winch his goods were sold by the sheriff; within four months, proceedings in bankruptcy were commenced against the debtor, who was adjudged a bankrupt. These proceedings were not per sein fraud of the bankrupt law, although the creditor had reason to believe that the debtor was insolvent at the time. 2. In an action against the marshal for the sale of goods claimed to be the plaintiff’s, although the uncontradicted evidence of plaintiff showed a clear case of fraud in fact, the question of fraud was for the jury. 3. Actual collusion or fraud in fact is always for the jury.
77 Pa. 308Fawcett v. Fell (1875)
123, to July Term 1873. This was an action of assumpsit, brought June 16th 1873, by Morris L. Fell and others, trading as Morris L. Fell h Co., against Emmor Fawcett and Daniel D. Fawcett. ■' The plaintiffs’ statement of claim as filed was as follows:— “ The following is a statement of the claim of the plaintiffs in the above-stated action.
77 Pa. 310Carter v. Tinicum Fishing Co. (1875)
1. Title to a fishery was in Sanderlin in 1748 ; partition of his estate was had; James, the husband of Mary, one of his heirs, deceased, being a party ; it was adjudged in 1754 to “ the representatives of Mary, late wife of James,” subject to a ground-rent, the whole estate being divided into five shares. Elizabeth and others, reciting that they wer'e heirs of “James, who was an heir of Sanderlin,” conveyed in 1805 to Carter; the deed also recited the proceedings in partition; also, prior deeds reciting the partition and that the grantors were heirs of other heirs of Sanderlin, and conveying to Carter their interest in two-fifths of the fishery. There was no other evidence of the pedigree of the grantors, nor of any claim, by the descendants of Sanderlin for the fishery. Held, sufficient to raise a presumption of any grant, &e„ to make a good title to Carter of the fishery. 2. Presumptions arising from great lapse of time and non-claim are sources of evidence which a court is bound to submit to a jury as the foundation of title by conveyances long since lost or destroyed. 3. Acts of ownership over incorporeal hereditaments, corresponding to the possession of corporeal, are deemed a foundation for a presumption.
77 Pa. 317Township of Newlin v. Davis (1875)
Error to the Court of Common Pleas of Chester county: No. 105, to July Term 1874. This was an action on the case, brought February 11th 1875, by Aaron Davis against the township of Newlin, for injuries to his horse and carriage, which had been thrown into the Brandywine creek, in consequence of a defect in the bridge, which he alleged it was the duty of the township to maintain. On both sides of the Brandywine, where the bridge crosses it, are public roads; near the point of crossing there had been a road which crossed the creek by a ford. Some five years since, the Wilmington and Reading Railroad was constructed; the company then made this bridge across the stream and closed up the fording; the travel was thus compelled to pass over the bridge; subsequently a road was laid out by order of the Court of Quarter Sessions over the bridge. The plaintiff Was the owner of a horse and carriage which were being used by another person, to whom he had lent them when the accident occurred. The case was tried February 10th 1874, before Butler, P. J. There was evidence that the bridge had no side rails; that -in driving across the bridge the horse had frightened at a piece of plank nailed over a hole in the bridge ; he commenced backing, and before he could be prevented, backed over the bridge into the creek, by which the horse, Carriage and harness were injured. There was much evidence bearing on the question of negligence; amongst which was, that the railroad company had not put any railing on the bridge, and that the township had frequently repaired the bridge. The defendant’s point was : The defendant is not responsible for the condition of the bridge, not being liable for its maintenance or repair, and therefore upon the law and the evidence in the case, the verdict must be for the defendant. The court answered the point in the negative. In his charge Judge Butler said: * * * “ Did the defendant'fail in its duty as charged? The defendant denies first, that any duty whatever rested upon it respecting the bridge — that it was in any way responsible for its condition; and second, denies that the bridge was not in proper condition. [The first position, just stated, is covered by a point presented to the court, which will be more maturely considered hereafter. At present we instruct you that (if the undisputed testimony bearing on this question is believed) the defendant is responsible for the condition of the bridge. It is true, the township could not have been required to build it; nor to replace it if swept away. If it had not been built, or was so removed, the public would pass through the water, as at other fords. But with the bridge there, the public travelling that road must pass over it; the ford is obstructed. It is unimportant that they could cross above, or elsewhere ; it is their right to pursue this road, and in doing so they are compelled to pass over the bridge. It was built before the road was laid out (in anticipation of it); but this also is unimportant. The defendant by keeping and maintaining it there, has adopted it as, and made it, a part of the highway, inviting and compelling those travelling there to pass over it.] Under these circumstances the duty is imposed on the defendant to keep it while there, in proper condition for use, as safe, considering all the circumstances, as it is reasonably practicable to make £.j. »» % ^ The court then submitted the question of negligence to the jury. The verdict was for the plaintiff for f 83, and the court after-wards entered judgment for the plaintiff on the verdict. The defendant took a writ of error and assigned for error the answer to the point and the part of the charge in brackets.
77 Pa. 321West Chester & Philadelphia Railroad v. Jackson (1875)
Error to the Court of Common Pleas of Chester county: Of July Term 1874, No. 38. This was an action of assumpsit, brought July 15th 1873, by Mary Jackson, executrix, &c., of Gibbons Gray, deceased, against The West Chester and Philadelphia Railroad Company. After the suit was brought the parties agreed upon and filed a case stated which showed the following facts :— The defendants were organized as a corporation some time early it the year 1850, under an Act of Assembly approved April 11th 1848. On the 30th March 1855 (Pamph. L. 157) a supplement to the act of incorporation' was passed; it recited that the company would require for the completion and equipment of their road more money than could be realized tby the sale their bonds and stock then authorized; and that making a floating debt for that purpose would be onerous to the management of the road and probably unduly hazard the interest of the stockholders. The act enacted :— Sect. 1. That for the purpose mentioned in the preamble, the company should be empowered to create a preferred stock of 8000 shares of $50 each, the act to be accepted by a majority in value of the stockholders at a meeting called for the purpose. Sect. 2. Gave preference in taking the stock to the old stockholders. Sect. 4. That the holders of the preferred stock should be entitled to receive a dividend of 8 per cent per annum on its par value, payable semi-annually, from the time of payment therefor, before any interest or dividend should be paid to the holders of unpreferred stock, and no dividends on the preferred stock should at any time be paid except out of the net earnings of the road, nor until all interest on the debts of the road should have been first paid or provided to be paid out of the net earnings. Sect. 5. That at any time after one year from the acceptance of this act, the president and managers should have the right, and when the profits of the road should justify it and one-fourth of the unpreferred stock should require it, it should be their duty, to redeem all the preferred stock by paying the holders the full amount of their stock at its par value, “together with a sum which with all dividends and interest theretofore paid thereon, shall amount to 8 per centum per annum from the time of the original payment to the company therefor, and if not so redeemed, the preferred stockholders shall be entitled to only pro rata dividends with the unpreferred stockholders.” Sect. 7. That when the preferred stock should have been paid or redeemed, or the holders neglect or refuse to receive such payment upon its being tendered, the holders of the unpreferred stock should be reinstated, in all their rights, &c. The company accepted the Act of Assembly and issued 5764 shares of preferred stock; after this issue there remained 7858 shares of the common or unpreferred stock, a number of shares of that having been absorbed in the purchase of preferred stock. Gibbons Gray, the plaintiff intestate, subscribed for 30 shares of the preferred stock and paid for it in full on the 7th of June 1855 ; one-half in cash and one-half in common stock and received a certificate for the 30 shares October 27th 1855 ; he afterwards purchased from a holder four shares of preferred stock, for which a certificate was issued to him on the 20th of March 1856 ; these four shares had been paid for by the original owner on the 7th of June 1855, one-half in cash and one-half in common stock; he also purchased from another holder, two shares of preferred stock, for which a certificate was issued to him December 16th 1858; this had been paid for in like manner, June 11th 1855. The road went into operation for its whole length from West Chester to Philadelphia in 1859 and has continued in operation ever since. By an Act of April 13th 1871 (Pamph. L. 1507), for the purpose of relieving the indebtedness of the railroad company and providing for the advantageous operation of the road, the company were authorized to issue not exceeding 35,000 additional shares of preferred stock, “ the total aggregate of that issued and to be issued not to exceed $2,000,000,” and also for the same purpose to issue bonds to an amount not exceeding $2,000,000, at an interest of 7 per cent, per annum, to be secured by mortgage, &c. By an Act of April 3d 1872 (Pamph. L. 821), the preferred stock under the Act of 1871, was authorized to be used for improving the road, &c., and “ for retiring and cancelling all the stock heretofore issued, upon such terms as the managers may deem advisable; the said stock shall be called consolidated preferred stock and the holders thereof shall receive dividends up to 8 per cent, per annum, commencing from July 1st 1872, before the holder of any stock thereafter issued or otherwise authorized shall receive any dividends; and the holders of said consolidated preferred stock shall receive all arrears of dividends at the rate of 8 per cent, per annum before any dividend is made on the other stock.” By authority of these last two acts the company “ have issued 16,388 shares of consolidated preferred stock, all which has been used in retiring and cancelling the preferred and common stock of the company, with the consent of the holders thereof. In so doing they have issued to each holder of preferred stock, three shares of consolidated preferred stock for every two shares of preferred stock previously held by him; and to each holder of common Stock as many shares of consolidated preferred stock as he had previously held of common stock, no money being paid or received by the company except in adjusting fractions of shares. In this manner all the preferred and common stock of the company has been retired and cancelled, except 42 shares of preferred stock (in which are included the said 36 shares of the plaintiff) and 49 shares of common stock. “ No dividend upon any of the stock of the said company was ever declared or paid prior to the 7th of July 1873, on- which day a dividend of 4 per cent, upon the preferred and the consolidated preferred stock, as it should stand upon the books of the said company, on the evening of the 10th day of the same month, payable on the 16th of the same month, was declared, and subsequently paid, and the defendant on the said 16th day of July 1873, paid to the plaintiff $72, being 4 per cent, on said 36 shares of preferred stock held by her. The entire number of shares of preferred stock on the books of the company, on the evening of the 10th of July, were the 42 shares before mentioned; and the entire number of consolidated preferred stock on the books of the company, was 16,388. The said dividend of 4 per cent, was declared and paid out of the net earnings of the road within the preceding two years, after all interest due on the debts of the company had been first paid out of said net earnings. * * * “ On the 9th day of July A. D. 1873, the plaintiff gave notice to the defendant in writing, that she would on the 16th day of the same month demand payment from the treasurer of the said company of all dividends which had accrued upon the 36 shares of preferred stock standing on the books of the said company, in the name of the said Gibbons Gray, from the time of the original payments therefor, and in pursuance of said notice the plaintiff did on the said 16th day of July 1873, demand of the treasurer of the said company payment, as aforesaid, which payment was refused. “ The questions for the consideration of the court are: “ 1. Whether the defendant is liable in this action to pay the plaintiff such a sum as with the dividend of 4 per cent, already paid shall amount to 8 per cent, per annum upon the par value of the said 36 shares of preferred stock from the time the same was originally purchased from the company to the 16th day of July A. D. 18?3, the date of bringing this action. “ 2. Whether the defendant is liable in this action to pay any sum whatever to the plaintiff as interest or dividends on the said 36 shares of preferred stock. “If the court shall be of opinion that the defendant is liable in this action to pay to the plaintiff, as in the first question above-stated, then the court well render judgment in favor of the plaintiff for the sum of $2634.59 with interest thereon, from July 15th 1873, with costs. “ If the court shall be of opinion, that the plaintiff is entitled in this action to recover of the defendant any other sum of money, then the court shall render judgment for the plaintiff, for such sum as the court shall consider she is entitled to recover, with costs. “ If the court shall be of opinion, that the plaintiff is not entitled to recover in this action from the defendant any sum of money whatever, then judgment shall be rendered for the defendants with costs.” The opinion of the court was delivered by Butler, P. J. After showing that the company was liable to pay the arrears of the eight per cent, per annum on the preferred stock, as claimed by the plaintiff, he proceeded: * * * “ It follows that the plaintiff’s rights have been disregarded; her preference taken from her. The money which belonged to her has been given to others. “ For the injury thus inflicted can she maintain assumpsit ? We j believe she can. In Massachusetts, in Williston v. Michigan Railroad Co., 13 Allen 400, it is held that a stockholder cannot sue at law for an undeclared dividend. There are many reasons why this should be so, but whether we will follow Massachusetts need not be considered now. This suit is not for an undeclared dividend, but for damages resulting from breach of duty, as in Reese v. The Bank of Montgomery County, 7 Casey 78. The defendant has declared a dividend, amounting in the aggregate to $33,000. Ascei’taining the net profits, it set aside a dividend fund of this amount, which it resolved should be distributed. But, instead of distributing to the plaintiff her just proportion, the defendant gave part of what belonged to her to others, in violation of its duty. The extent of her injury is the difference between what she received and what she should have received. Now why may not this sum be recovered in assumpsit ? The action lies for breach of trust, breach of duty, arid violation of other equitable rights: Coleman v. The Columbia Oil Co., 1 P. F. Smith 74; Crossgrove v. Himmelrich, 4 Id. 203 ; McCullough v. McCullough, 2 Harris 295; Forrest v. Campbell, Leg. Int., Sept. 4th 1874. Here is no question involved respecting the receipts, disbursements and liabilities of the company, nor the discretion of directors, as where the suit is for an undeclared dividend. Every fact is ascertained, the fund applicable to distribution set aside, and a dividend declared. The fault is simply in withholding a part of the plaintiff’s just proportion and giving it to others. “ She must therefore be allowed to recover. But how much was withheld ? What should she have received ? This depends on the number of shares of preferred stock to participate in the distribution. The case finds that there are but forty-two, all others having been redeemed and cancelled. That this redemption was effected by means of other stock is unimportant. The result is the same as if it had been accomplished by returning the money. The preferred stock was given up, and all rights and obligations created by it are gone. The holders sold out, and in turn became purchasers of a different stock, creating other and different relations to the company. There are hut the forty-two shares remaining, all besides is common stock, no matter by what name called. The dividend ascertained and set apart was sufficient to pay eight per cent, on the par value of this from the time it was issued. And this sum, deducting the amount received, is what the plaintiff should have had. The parties agree that the balance is $2534.59. Eor this we therefore direct judgment to be entered, adding interest from July 15th 1873, when it should have been paid, as the case provides for.” Judgment having been entered in accordance with the order of the court, the defendants took a writ of error; they assigned for error, that the court erred: 1. In not entering judgment for the defendant. 2. In entering judgment for the plaintiff for more than $134.10, even if she be entitled to recover in this action.
77 Pa. 328Helfenstein's Estate (1875)
1. A note was, “ One year after date I promise to pay to the order of *.*, treasurer of the Theological Seminary, &c., the sum of $400U, at 6 per cent, interest, to be paid yearly, value received. The condition of the above donation is that the said $4000 is to form a library fund” for the Seminary, “ the principal to be preserved intact, and the interest to be annually devoted to the purchase of books,” &c., the selection to be made by the professors or by Professor Good, so long as he remains in the Seminary.” The note was handed to Good in the makers life; after his death Good notified the trustees of the Seminary that he had received the note; they resolved to accept it on the conditions named, and to buy books to the amount of one year’s income. Held, that the note was but an offer, and the death of the maker before acceptance by the Seminary was a countermand, and the amount was not recoverable. 2. Had the Seminary accepted the note before the death of the maker, they would have assumed the duties under the condition; this would have been a sufficient consideration to sustain the promise.
77 Pa. 332Lewisburg, Centre & Spruce Creek Railroad v. Stees (1875)
Error to the Court of Common Pleas of Union county: Of January Term 1874, No. 227. This was an action of debt, brought December 9th 1871, by the Lewisburg, Centre and Spruce Creek Railroad Company, for the use of J. E. Herr, D. H. Miller and Oliver P. Mensch, against Samuel Stees. The suit was on a guaranty signed by the defendant, D. H. Miller and J. E. Herr, two of the beneficial plaintiffs, Abraham Mensch and fifty-seven others, under their seals, of which the material parts are : “We the undersigned, for value received, do hereby jointly and severally bind ourselves, our heirs, &c., to the Lewisburg, Centre and Spruce Creek Railroad Company, and do hereby guaranty to said company good and valid subscriptions to the stock of said company to the amount of $45,000 * * *, to be applied: 1. To pay for what right of way cannot be obtained, and to grading said road * * * from the western boundary of the borough of Lewisburg to the western boundary of the borough of Mifflinburg. Said subscriptions to be paid as the work progresses for grading said line, and if any instalments are not paid as called for by said company to pay estimates for contractors, then the guarantors to this agreement will pay the same on ten days’ notice. The work of grading said road to be commenced within three months, and to be completed and cars running within one year from the date of this guaranty. The said company to proceed with track-laying as rapidly as the road is graded from Lewisburg depot west to Mifflinburg. "VYe further guaranty to said company as much of the right of way between Lewisburg and Mifflinburg as lies in our power, in the following manner: 1. To procure general releases gratis as far as they can be obtained. 2. To procure from such other landholders as we can, an agreement to take stock in said company for the right of way and damages, in all cases to be made as reasonable as can be. We further guaranty to said company ground sufficient for freight and passenger depots, near or within the borough limits of Mifflinburg, in a location satisfactory to said company and suitable for said purpose. Also a general release for the right of way through the entire limits of our borough of Mifflinburg, both to be free of all charges whatsoever. Witness our hands and seals this 14th day of July, A. D. 1870.” The declaration set out the guaranty in totidem verbis, and averred, “ that said guaranty has not been complied with by said Samuel Stees, or any other of the guarantors, in this, that the $45,000 of good and valid subscriptions to the capital stock of said railroad company has not been procured or paid, nor has the guaranty been paid, as the work of grading, &c., progressed and money was needed, though due notice was given, nor have instalments been paid as called for by said company for contractors, nor have the guarantors paid, though duly notified, nor has defendant or other guarantors procured or endeavored to procure right of way since date of said guaranty. The said guaranty, not having been fulfilled by defendant or any other of the guarantors to said paper, and there being a large deficiency, the said defendant has become liable to pay plaintiff the same,” &c. The defendant pleaded a special plea, which after setting out the guaranty, proceeded: ■ “ That on the 11th day of November 1872, the plaintiffs brought suit on the same guaranty, &c., against the aforesaid Abraham Mensch, one of the aforesaid joint and several co-obligors with the defendant, &c., upon which the plaintiff has declared in this suit, before (x. N. Youngman, Esq., one of the justices of the peace, &c., whereupon the same guaranty was given in evidence in the cause before the said justice, and a hearing was had upon the merits, and after such hearing the justice gave judgment for the said Lewis-burg, Centre and Spruce Creek Railroad Company, for the use of the said D. H. Miller, J. E. Herr and Oliver P. Mensch, for the sum of $72.50, with costs, &c., and that on the 16th day of November 1872, the said Abraham Mensch took an appeal from the said judgment of the said justice, to the Court of Common Pleas, &c., which appeal was entered in said court on the 18th day of November 1872. That on the 5th day of December 1872, the plaintiff in said sitit filed in said court his declaration against the said Abraham Mensch, in which he declared upon the same guaranty upon ■which he has declared in this suit against him, the said Samuel Stees. That the said Abraham Mensch entered a rule, &c., to have arbitrators chosen in said suit, according to the provisions of'the compulsory arbitration laws, &c., * * * and plaintiffs and the said Abraham Mensch agreed upon Jesse Schreyer, &c., as the arbitrators, * * * whereupon the said arbitrators after hearing the parties, * * * rendered an award against the said Abraham Mensch, for $74.43, which award so found, the said plaintiffs, on the said 26th day of April 1873, did enter in the Court of Common Pleas, &c., and had judgment entered on the same against the said Abraham Mensch, for the amount of the aforesaid award, &c. That on the 17th day of May 1873, the said Abraham Mensch paid to the plaintiffs in said suit $74.43, and all interest then due thereon, in full satisfaction and payment of the aforesaid award, and also paid costs of said suit. * * * And -this the said Samuel Stees is ready to verify; whereupon he prays judgment if the said Lewisburg, Centre and Spruce Creek Railroad Company, for the use of the said D. H. Miller, J. E. Herr and Oliver P. Mensch, ought to have or maintain their aforesaid action therefor against him, after having brought suit as aforesaid against the said Abraham Mensch, upon the said guaranty as aforesaid, as is declared upon in this suit, and recovered judgment in the same; and the said judgment, interest and costs being paid by him, the said Abraham Mensch, in full as aforesaid.” In another plea defendant averred that the plaintiffs had been paid in full for all claims against them. The replication was: “ That the guaranty was executed and delivered by the obligors therein set forth, to said railroad company, not only as a joint obligation, but as joint and several, leaving it optional with plaintiff to bring separate suits against the obligors who signed the same, the defendant being one of them. That the obligors failed to make up the amount of $45,000, good and valid subscriptions to the stock of said railroad company, in accordance with the terms and conditions of said writing, leaving a large deficiency on the subscription, say some $16,000. Upon a fair and equitable division among the solvent obligors to said writing, it was agreed that each obligor’s share of the deficiency of said guaranty, so far as relates to the subscription to be made, was $230. That when that part of the Lewisburg, Centre and Spruce Creek Railroad extending from Lewisburg to western boundary of Mifflinburg was completed, said company refused to run their locomotives and cars thereon until the balance of said $45,000 was paid or advanced; and the obligors to said instrument of writing, including the defendant, being very anxious to have the cars run on said road, D. H. Miller, J. E. Herr and O. B. Mensch were induced to advance to said railroad company the balance of the $45,000, with the agreement that said obligation should stand for their use, and to collect thereon from such of the guarantors who might refuse to pay up their share, the defendant and other obligors assenting and agreeing thereto. That the said railroad company, being so advanced, did commence and continue running their locomotives and freight and passenger cars on said railroad mentioned in the bond of guaranty. That the defendant, having neglected to pay his share of said deficiency, suit was brought to recover his share of the same, to wit, the amount agreed upon as aforesaid. That Abraham Menseh, the obligor referred to in said special plea of defendant, agreed also to pay his share, $230, and did pay thereon, so as to reduce it to $72.50, but neglected to pay that balance, although frequently promising so to do, he was sued before George N. Youngman, Esq., a justice of the peace, to recover the same. In said suit before said justice nothing was embraced or passed upon, but the balance of said Abraham Mensch’s own share of the deficiency of $45,000, good and valid subscriptions to said railroad company, nor was any claim made in that suit in relation to procuring right of way between Lewisburg and Mifflinburg, nor in relation to grounds for'depots. That there was nothing investigated before George N. Youngman, Esq., the justice of the peace aforesaid, but to ascertain the balance due by said Abraham Menseh on his share of said deficiency of subscription, which share was found to be $74.43, for which said justice entered judgment, and from which judgment defendant appealed and entered a rule to have arbitrators chosen. Arbitrators were chosen, plaintiff’s claim established, and defendant making no defence, the arbitrators, on the 26th of April 1873, filed their report, finding in favor of the plaintiff and against Abraham Menseh, $74.43, which was for balance of said share of Abraham Menseh. • That amount of said award was paid over to George B. Miller, one of the firm of George F. Miller & Sons. This arbitration arrangement was evidently a manoeuvre on part of some of the obligors in said guaranty to try to get clear by some imagined technicality from paying their honest proportion of the deficiency of said guaranty of stock. It is denied by plaintiff that the suit against Abraham Menseh, referred to in defendant’s special plea, was for the same matter for which the present suit against Samuel Stees was brought.” In reply to defendant’s second special plea filed, plaintiffs say, “ that said railroad company has not been paid in full prior to the institution of this suit or since by the obligors, but have been advanced by Dr. D. II. Miller, J. E. Herr and Oliver P. Menseh, with the understanding and agreement that said guaranty should stand for their use to collect from such of the obligors who should neglect to pay. That defendant, Samuel Stees, has not paid one cent on said guaranty; and this the said plaintiffs are ready to verify, therefore judgment is prayed for damages,” &c. There was no rejoinder. The case was tried December 18th 1873, before Bucher, P. J. D. H. Miller, one of the beneficial plaintiffs, testified, that after the execution of the guaranty, work on the road proceeded quite rapidly and calls were made for money in pretty quick succession. The subscribers failed to pay the instalments, but the company finished the road nearly for the cars to run; at this time there was a considerable deficiency. The president of the company, on the 20th of September 1871, said the road was done, but the company would not run it until the subscribers paid the deficiency of their subscription, amounting to $7000 or $8000. On that day, O. P. Mensch, Iierr and witness gave their obligations for the deficiency, supposing each guarantor would pay his proportion. A meeting of the guarantors was held; the defendant was present; the amount each guarantor was to pay was discussed; it was not known what the share of each would be; it was agreed each should pay $175 ; defendant had given his note for this sum, but it was claimed it was more: all agreed to pay the amount of their shares of the deficiency; the only question was the amount. The amount was fixed at $220 for each guarantor to pay on the settlement. Defendant did not agree that his liability on the guaranty was $220. The beneficial plaintiffs gave their obligations to the railroad company for between $7000 and $8000; the company accepted it; $3700 were paid in cash, and the company accepted the note of the beneficial plaintiffs for the balance as cash; the company never assigned the guaranty to the beneficial plaintiffs. J. E. Herr, one of the beneficial plaintiffs, testified that the defendant agreed to pay whatever the amount might be, whenever they were satisfied what it was; it was ascertained his quota would be $230. There was other evidence that the beneficial plaintiffs had paid the deficiency in the $45,000, and that “ every exertion was made to collect to the stock.” The defendant gave in evidence the record of a suit, plaintiff against Abraham Mensch, originally before a justice of the peace, showing that the same breaches were alleged in that suit as in this, and judgment against Mensch, as set out in the plea. Plaintiffs, in rebuttal, gave evidence that Mensch made no defence in the suit before the justice against him, but an appeal was taken. The court instructed the jury to find for the defendant; the jury so found. The plaintiffs took a writ of error and assigned this instruction for error.
77 Pa. 338Wheeler v. Philadelphia (1875)
1. The Supreme Court, under the Constitution of 1873, has jurisdiction in equity to restrain a municipal corporation from doing acts contrary to law and prejudicial to the interests of the community. 2. The provision in sect. 3, art. 5, of the New Constitution, that the Supreme Court shall have original jurisdiction where a corporation is defendant, applies to municipal as well as private corporations. 3. It is optional with the Supreme Court to exercise original jurisdiction in equity, where the lower courts may entertain it. 4. A statute relating to persons or things as a class is a general law; one relating to particular persons or things of a class is special. 5. Sect. 7, art. 5, of the Constitution of 1873, prohibiting local or special legislation, does not prevent classification of municipal corporations with reference to taxation, and the Act of May 23d 1874, classifying cities according to -their population, is constitutional. 6. The Gas Works of Philadelphia are property belonging to the city, not for speculation, but for the comfort of all the people ; the debts contracted therefor must be paid by the city. 7. Sect. 7, art. 9, of the Constitution, that the legislature shall not authorize any city, &c., to become a stockholder in any corporation, &c., or to loan its credit, &c., to any corporation, &c., was to prevent a city from becoming jointly interested as stockholder with any company, &c., and from appropriating, &e., money, or loaning its credit to any corporation or individual.
77 Pa. 356Pleasants' Appeal (1875)
Appeal from the Orphans’ Court of Philadelphia: No. 168, to July Term 1872. In the estate of Austin Montgomery, deceased, sur account of The Pennsylvania Company for Insurance on Lives, &c., administrators d. b. n. c. t. a. of said deceased. The controversy in this case arose under the will of John Bowen, who died March 4th 1835, having made his will, dated November 20th 1830, and proved June 17th 1835; letters testamentary were issued to Martha P. Bowen and Austin Montgomery, the executors named in it. At the date of his will and at the time of his death, the testator was domiciled in Philar delphia. The will contained these provisions: “ I give, &c., unto my wife, Martha P. Bowen, all my real and personal estate and property in the island of Jamaica, * * * during her natural life, provided that she continue unmarried; but if my said wife should again marry, then my will is * * * she shall receive only one-third part of the income thereof during her life. Upon the death of my said wife or her marrying again, I give, &c., my said real and personal estate and property in the island of Jamaica to my son, Austin Montgomery Bowen, and my daughter, Isabella M. Bowen — my son to take two third parts, * * * and my daughter to take one third part as tenants in common, subject, however, should my wife have married again, to the payment to her during her life by my said son and daughter, of one-third of the income thereof. * * * But, notwithstanding the foregoing devises and bequests, I hereby authorize and empower my executrix and executor, and the survivor of them, whenever they or the survivor of them, at any time before my said son shall attain the age of twenty-one years, shall think it expedient so to do, to sell my said real and personal estate and property in the island of Jamaica.' * * * “ Should such sale be made, * * * I order and direct that the proceeds of such sale shall be invested by my executrix and executor, &c., in some safe and productive stock, mortgages or other real security, either in Jamaica or the United States of America; and if my said wife shall then be living and unmarried, that the whole of the income of the said proceeds of sale so invested (after deducting expenses) be paid to my said wife for her use while she continues unmarried. But if my said wife should at the time of the said sale .be again married, or should subsequently marry, then my will is, * * * she shall receive only one-third of the income or interest thereof, tobe paid to her annually, during her life.” * * [Upon the marriage or death of his wife the proceeds of sale were to be divided between his son and daughter, as was directed as to the real estate.] “It is my will, that if either of my said children should die under the age of twenty-one years, unmarried, and without issue, the share * * * bequeathed to the child who shall so die, shall go to my surviving child, * * * but if both of my said children should die under the age of twenty-one years, unmarried, and without issue, then * * * the real estate and property in the island of Jamaica, and the proceeds thereof, if sold, * * * I hereby give to my sister, Isabel B. Montgomery, wife of Austin Montgomery, to hold the same to her for her own use during her life, and, upon her death, then to my brothers, Ralph W. Peacock and George S. Peacock, their heirs, executors, administrators and assigns, share and share alike, as tenants in common. “ All the rest, residue and remainder of my estate, both real and personal, I give, devise and bequeath to my beloved wife, _ Martha P. Bow'en, to hold to her, her heirs, executors, administrators and assigns.” At the date of the will, the testator owned a plantation, with 130 slaves thereon, called the Bowen Hall estate, and situate in the parish of Yere, in the island of Jamaica. This is variously described in his will, above recited, as “ all my real and personal estate and property in the island of Jamaica,” or “ the real estate in Jamaica,” or “ the real estate and property in the island of Jamaica.” Under the laws of Jamaica slaves were real estate. On the 28th of August 1833, the British Parliament passed “ An Act for the abolition of slavery throughout the British colonies, &c.-, 3 & 4 Wm. IY., c, 73, wherein it was provided that on and after the 1st day of August 1834, all persons held in slavery within any British colony should become and be, to all intents and purposes, free and discharged of and from all manner of slavery, and be absolutely and for ever manumitted; and that in order to compensate the persons entitled to the services of the slaves for the loss of such services, 20,000,0007 should be set aside, and, by commissioners to be appointed by the crown, apportioned amongst the several slave colonies, and afterwards divided amongst the holders of the slaves. The material clauses of the Act of Parliament, are given at lai’ge in the opinion of Judge Mercur. The slaves were set free August 1st 1834. The commissioners were authorized to frame rules, regard being had to the laws and usages of the respective colonies, for securing the just and equitable distribution of the funds, &c.; the rules to be submitted to the Privy Council, and upon being confirmed by them, to be certified to the Court of Chancery, there to remain of record and be of the same validity as if made by Parliament. Rules were accordingly prepared, submitted and confirmed by the Privy Council, March 10th 1835. Amongst others, were the following: That in respect to all persons who, as owners or creditors, legatees or annuitants, may have any joint or common interest in any slave or slaves, or may be entitled to or interested in any slave or slaves, either in possession, remainder, reversion or expectaucy, the compensation-moneys to be awarded in respect of such slave or slaves shall be deemed to be of the same nature and impressed with the same character for all purposes whatsoever, so far as the same can be so taken and applied, as the slave or slaves in respect of whom such moneys shall be allotted, and'shall be subject to the same rules of distribution, and to the same charges and liabilities as the same slave or slaves respectively would have been subject to, according to the several estates and interests of the parties entitled thereto, and agreeably to the law an<J usages of the particular colony in which such slave or slaves may be registered or settled. That the compensation-moneys to be awarded in respect of any slave or slaves subject to any trusts or powers whatsoever, shall be subject to the same trusts or powers in all respects as the same slave or slaves were subject to. That in ease of the death of any person entitled to such compensation-moneys who may die intestate before the award of such compensation, the succession to such moneys shall be the same as the succession to the interest in the slave or slaves in respect of whom the compensation shall be allotted according to the law of the particular colony in which such slave or slaves were registered or settled. The testator did not live to receive the compensation-money. All the devisees and legatees named in his will survived him ; but his two children died under the age of twenty-one years, unmarried and without issue. On the 19th June 1835, the executors filed an “ inventory of the household goods and furniture of the late John Bowen,” their appraised value amounting to $2384.50. No other inventory was filed. On the 5th of October 1835, the commissioners of compensation awarded'to Martha P. Bowen and Austin Montgomery 2751Z. 3s. Id. for the slaves. On the 12th of March 1836, the amount of this award, with interest, $13,767.69, was paid to the executors ; of this sum they invested on the 7th of July 1836, $12,950.79 in the stock of the Bank of the United States, chartered by the Commonwealth of Pennsylvania on the 7th of July preceding. The bank suspended specie payments in May 1837, and failed in February 1841; the whole investment was lost. The executors of Mr. Bowen never filed an administration account. Mrs. Bowen died unmarried on the 15th of July 1849, leaving a will by which she directed as follows : “ I direct that so much of my. six per cent, bonds of the city of Cincinnati as may be necessary for the purpose be sold, and the proceeds thereof to be applied as a repayment to the Bowen Hall estate in the island of Jamaica for certain moneys received from the sale of land belonging to the estate, and which moneys have been used in the management of the said estate.” And she appointed J. Fisher Learning and John Bowen, late Ralph W. Peacock, executors. The auditor of Mr. Learning’s accounts, reported as to the power of sale given to her and her co-executor by the will of John Bowen; “ The power of sale appears to have been partially exercised (whether adequately or not the auditor does not undertake to determine), and the proceeds, amounting to about $2600, received by Mrs. Bowen. Austin Montgomery, surviving executor of John Bowen, and husband of Mrs. Isabel B. Montgomery, claimed the.sum of $2639.32, with interest from July 5th 1849, for moneys received from the Bowen Hall estate by Mrs Bowen during her lifetime, and which she directed to be repaid to that estate by the clause in her will, already recited. This claim was admitted to be correct by the executor of Mrs. Bowen.” After Mrs. Bowen’s death, Mrs. Isabel B. Montgomery the next life-tenant, found the Jamaica estate in a very low condition, the buildings dilapidated, &c., and stock wanting. ' She did not make any repairs to the houses, but authorized her agents in Jamaica to expend money for wages of labor, and restocking the place, so as to bring it into cultivation. On a settlement with her agents, on the-23d of September, she was found to be indebted to them $2286.37; her husband, Austin Montgomery, paid this amount to the agent on the 9th of December 1850. On the 21st of May 1851, Mr. Learning, the executor, &c., of Mrs. Bowen, paid to Austin Montgomery, as executor, &c., of Bowen, $2929.51 in full, principal a,nd interest of the amount directed by Mrs. Bowen’s will to be repaid to her husband’s estate. On the final settlement' of Mrs. Bowen’s estate, it was ascertained that it would not pay its creditors in full, and on the 18th of August 1854, the auditor reported that Mr. Montgomery, the executor, should refund $431.93 of the $2929.61 which had been paid to him as surviving executor of Mr. Bowmn’s will; it was accordingly repaid. At this audit, John Bowen (whose name had been changed by Act of Assembly from Ralph W. Peacock), one of the remainder-men, in his own right, and as administrator, &c., of George S. Peacock, the other remainder-man, claimed indemnity for losses from the investment of the funds of Bowmn, the testator, in the stock of the Bank of the United States; the auditor dismissed the claim, chiefly for reasons not involving the question of the propriety of the investment. On the 29th of January 1855, Austin Montgomery, as surviving executor, &c., of Bowen, the testator, executed to Learning, the executor, &e., of Mrs. Martha P. Bowen, the other executor, ce release of all demands which he might have against him individually or as executor, or by reason of the claim of the remainder-men, set forth in the above-mentioned auditor’s report. Austin Montgomery died November 5th 1855, having made his will, dated January 27th 1851, giving all his estate to his wife, Isabel B. Montgomery; he appointed her his executrix; letters testamentary were issued to her November 13th 1855, but she never filed any inventory or account. She died December 16th 1865, having made a will, of which John T. Montgomery and Edward E. Law were appointed executors, to whom, after some controversy as to the validity of the will, letters testamentary were issued July 11th 1866. After the death of Austin Montgomery, letters of administration, d. b. n. c. t. a. of Bowen the testator were issued to James Pleasants ; he was also administrator, &c., of John Bowen (late Peacock) and George S. Peacock, the remainder-men under the testator Bowen’s will. On the 31st of April-1868, the executors, &c., of Isabel B. Montgomery filed their administration account. Before the auditor to whom it was referred, Pleasants presented claims for the $13,477.77, compensation received for slaves, arid the $2929.61 repaid under Mrs. Bowen’s will with interest. The executors of Mrs. Montgomery having in their hands a balance of about $119,000, by consent of all the parties, $20,000 were set aside to meet these claims, and the remainder of the balance distributed to the parties entitled under her will. About July 10th 1869, administration d. b. n. c. t. a. of the estate of Austin Montgomery was granted to “ The Pennsylvania Company for Insurance on Lives,” &c. ” Upon the application of parties interested under the will of Bowen, the testator, the Orphans’ Court appointed an auditor to state an account of the administration of Isabel B. Montgomery of the estate of Austin Montgomery, and to report the amount of assets which had come into her hands from his estate. The auditor reported, February 19th 187 0, that Mrs. Montgomery had received from Austin Montgomery’s estate an amount beyond all allowances, exceeding the sum set aside to meet the claims for the investment in United States Bank stock and the money repaid under Mrs. Bowen’s will, and that Mrs. Montgomery’s executors should be charged with the sum so set aside, which then amounted to $21,111.93. This sum was afterwards transferred to The Pennsylvania Company for Insurance on Lives, &c., as administrator, &c., of Austin Montgomery, deceased. So far as can be gathered from the report of the auditor — in which the foregoing facts were found — and the history of the case in the appellant’s paper-book, The Pennsylvania Company, &c., administrator d. b. n. c. t. a. of Austin Montgomery, deceased, settled the account of their administration, which was referred to an auditor to report distribution. He found that the accountants were chargeable with $21,111.93. The claims which were specially before the auditor were by the representatives of R. W. Peacock (now John Bowen) and George S. Peacock, for the amount of compensation paid for the slaves; also, for the $2929.61, repaid under the direction of Mrs. Bowen’s will, to Austin Montgomery as surviving executor of Bowen tbe testator’s will. The auditor reported that the Act of Parliament was an equitable conversion of the slaves into personal property, citing Richard v. Attorney-General of Jamaica, 6 Moore’s Privy Council Cases 331, a case in which the effect of the same Act of Parliament as to conversion was considered. He further reported that there being a conversion, the property, thus being personal estate, did not pass under the specific gift of all his “ real and personal estate and property in the island of Jamaica,” but had no locality apart from the person of the owner : it therefore followed the law of the pei’son and passed to the widow as residuary legatee. As regards the investment in United States Bank stock the auditor, quoting the clause in Bowen the testator’s will, said that the executors “ were bound to invest the money in some safe and productive stock, mortgages or other real security, either in Jamaica or the United States of America.” This duty they fulfilled as far as the bulk of the fund was concerned, by investing the same in said stock of the Bank of the United States. In July 1836, when said purchase of stock was made, the stock of said bank was generally regarded as a good and safe investment by the community — by business men; was selling at about the price at which the said executor and executrix bought, viz.: $123, which was $23 above its par value; that it sold for as much as $122.50 in October 1838, the fluctuations not being very great between 1836 and 1838. The bank was paying specie, and continued to do so, until about the 11th of May 1837. Not only was its reputation good, but its character was good so far as any ordinary person, cautious and seeking for information, could then discover, if he had scrutinized its affairs ; * * * The dividends on the stock were such as to characterize^the stock as “ productive” also. * * * It would be altogether contrary to equity to hold that Austin Montgomery, having power to invest in a “ safe and productive stock,” was not authorized to invest in the United States Bank stock in July 1836. And having once made a proper investment, he could not be held liable for not selling it at a loss before the bank failed. * * * Upon the foregoing hypothesis, that portion of the compensation fund which was not invested, the said Austin Montgomery would be obliged to account for. In reference to the balance of the sum $2929.61 repaid under the directions of Mrs. Bowen’s will, he reported : “ It must be assumed that the sale of land spoken of by Mrs. Bowen in her will, was one made during the minority of her son, and a valid one. It is further submitted that the direction to repay money to Bowen Hall estate was not intended as a gift but an honest restoration by Mrs. Bowen to the estate of her husband of a sum equal to the principal money she had received from a sale of part of his estate in Jamaica, and which she, as life-tenant, had used in the management of said estate. The said $2929,61 being the proceeds of sale of land under the will of John Bowen, it was the plain duty of Austin Montgomery, under the Sd clause of said will, upon receiving said money, to invest the “ same' in some safe and productive stock, mortgages or other real security either in Jamaica or the United States of America and not having done so, he became responsible for the amount to all parties interested. * * * This claim is allowed after deducting from the amount thereof the $431.93 refunded by order of court towards paying her debts, as hereinbefore mentioned, the interest to be computed on the balance from the death of Mrs. Isabel B. Montgomery. * * * The auditor cannot say that the estate of Austin Montgomery is liable for more than he received and was finally allowed to hold, viz., $2497.68, with interest. * * * He reported therefore that the estate of Austin Montgomery was liable for the balance of the amount paid him, which arose from the money repaid under the direction of Mr. Bowen’s will and was paid to him. This sum, with interest to February 16th 1872, amounted to $3421.82, the remainder (after deducting costs and expenses), amounting to $17,765,21, he awarded to the executors, &c., of Isabel B. Montgomery, deceased. James Pleasants filed exceptions to the report of the auditor ; they were quite voluminous, but raised the following questions : Who were the persons entitled under the will of John Bowen, the testator, to the money received as compensation for his slaves; was the Act of Parliament a conversion into real estate, and if so, was the gift of his property in Jamaica specific, so that, whether real or personal, the compensation passed under it ? The other question was whether the executors were responsible for the loss arising from the investment in the stock of the Bank of the United States. The Orphans’ Court dismissed the exceptions and confirmed the report of the auditor. Pleasants appealed to the Supreme Court, and assigned for error, that the Orphans’ Court erred in dismissing the exceptions and confirming the report of the auditor.
77 Pa. 370Montgomery's Appeal (1875)
1, Bowen authorized his real estate in Jamaioa to be sold by his executors, who were his wife and Montgomery; he gave her a life-estate in the land or its proceeds, and after her death a life-estate to his sister, the wife of Montgomery, with remainder over. The wife died in 1849, and by her will directed the repayment to the Jamaica estate of “moneys received from the sale of land belonging to the estate, which moneys have been used in the management of the estate.” The money was paid to Montgomery as surviving executor in 1851. He died in 1855, leaving all the estate to his wife; upon its distribution in 1872: Held, that Montgomery had received the money as executor of Bowen, and as proceeds of his real estate, and the remaindermen were entitled to receive it in preference to his wife. 2. By his will Bowen directed the proceeds of the sale of the land to be invested; Montgomery did not invest, his wife being entitled to it for life : Held, there were no laches in the remaindermen in not claiming sooner than at the distribution, although they had been aware of Montgomery’s breach of trust.
77 Pa. 373Pepper's Appeal (1875)
Appeal from the District Court of Philadelphia: Of January Term 1873, No. 199. This case arose under the following facts: On the 16th of February 1869, Mary J. Pennypacker executed a bond and mortgage to David F. Schuler for $2000. On the 27th of the same month, Schuler executed a power of attorney to Raimond D. Fox, to sell, assign, &c., all his real and personal property, &c.; by virtue of this power of attorney, Fox assigned the mortgage to Carroll Neide, on the 28th of May 1869. The assignment was recorded the same day. The mortgage and bond, with the assignment, were left in the possession of Fox, who was Neide’s conveyancer and agent, had acted for him in the purchase of the mortgage, and had been his intimate friend for a long time. Fox had the reputation also of being a man of integrity, and a responsible conveyancer. On the 7th of February 1870, Fox having the bond and mortgage in his possession; under the same power of attorney, assigned them to David Pepper, and delivered them to him with the assignment. Pepper was a boná fide purchaser, and had no actual notice of the assignment to Neide. Pepper’s assignment was recorded February 9th 1870. . On the 13th of December 1871, Neide issued a scire facias on the mortgage, and judgment being recovered on it, by agreement of parties the amount, $2070.25, was paid into court, to be paid to the party who the court should determine was entitled to it. The matter was referred to W. W. Weighly, Esq., who found the foregoing facts. He reported also, as his opinion, that the assignment of a mortgage is not within the recording acts, so as to make its record notice to a subsequent assignee. He further reported that Neide was guilty of gross negligence in selecting as his agent, the agent of the mortgagee, and leaving the bond and mortgage in his possession, knowing that he had a power of attorney to assign, &c., from the mortgagee. He therefore awarded to Pepper the money in court, $1818.50, after deducting expenses. Neide filed exceptions to the report of the auditor: 1. That he had found there was gross negligence on the part of Neide. 2. That the assignment of the 'mortgage was not within the recording acts, and therefore its record was not notice to Pepper. The Act of April 8th 1849, sect. 14, Pamph. L. 527, 1 Bright. Purd. 471, pi. 66, provides that “All assignments of mortgages * * * may be recorded in the office for recording of deeds in the county in which the mortgage assigned * * * may be, or shall have been recorded; and the record of such instrument, or a duly certified copy thereof, shall be as good evidence as the original assignment.” * * * The District Court, Mitchell, J., sustained the exception, and awarded the fund to Neide. Pepper appealed to the Supreme Court, and assigned the decree of the District Court for error.
77 Pa. 378Pratt's Appeal (1875)
The facts in this case were as follows : On the 6th of April 1871, judgment was entered in the Common Pleas of Chester county, on bill single and warrant of attorney to confess judgment, dated the same day for $500, in favor of Nimrod Strickland, Jr., against Abraham Mosteller; the bill single and warrant, which constituted one instrument, were after the entry of the judgment, in accordance with the practice of that county, handed back to Strickland.
77 Pa. 383Twitchell v. McMurtrie (1875)
1. The plaintiff, assignee of an assignee of a mortgage by husband and •wife on her property, issued after the husband’s deathaseire facias and filed with it declarations of mortgagees — under seal and duly acknowledged on ’ the wife’s separate examination — of no set-off and knowledge of each assignment ; her affidavit of defence was that the mortgage was made whilst they were in prison, at the request of O’Byrne, without consideration, assigned to him without consideration, as security for expenses of husband and wife’s trial, with the agreement that he would never assign it; that he entered the mortgaged premises, and from the rents and other sources had received more than the principal of the mortgage and had assigned it to plaintiff for §1, as stated in the assignment; that she never knowingly signed or acknowledged the declarations, and was not made acquainted with their contents: Held, these allegations were sufficient to allow the defendant to go to a jury. 2. A reasonable intendment is to be made in favor of affidavits of defence. 3. If the circumstances make out a primá facie case of fraud on the maker even of negotiable paper, the holder must establish his title to it. 4. Although an assignment under seal imports a consideration, the assignee must prove it if there be even slight evidence to impeach the transaction. 5. An assignee of a mortgage takes it -subject to all defences unless he ascertain from the mortgagor that there are none. 6. The assignee of a mortgage is affected by facts invalidating the acknowledgment, as to which it is for the jury to pass on the testimony the parties may submit. 7. A mortgagee may be treated as a purchaser as regards the recording acts; but the parties hold the relation of debtor and creditor. 8. Quaere, whether the declarations of no set-off would have any effect to control a decision by the court, if there were a defence on other grounds.
77 Pa. 389Freeman v. Husband (1875)
1. Land, was sold by the sheriff on. the condition that §50 of the bid should be paid when it was struck down, and the remainder in ten days; if not then paid, it might be sold again, and the bidder should pay any deficiency. The bidder failed to comply ; the land was exposed under an alias execution, with the condition that §500 was to be paid when struck down ; it was sold for a smaller sum than the first bid: Held, there was a change of conditions, and the first bidder was not liable for the deficiency. 2. In an action against a purchaser at sheriff’s sale refusing to comply with the conditions, for a difference of bid at a second sale, the suit must be in the name of the sheriff. 3. Adams v. Adams, 4 Watts 162: Banes.«. Gordon, 9 Barr 426 ; Gaskill «. Morris, 7 W. & S. 32; Paul v. Shallcross, 2 Bawle 326, followed.
77 Pa. 392Tenbrooke v. Jahke (1875)
Error to the District Court of Philadelphia: Of January Term 1873, No. 227. This was a scire facias sur mortgage, issued October 26th 1871, at the suit of William E. Tenbrooke against Henry Jahke. The mortgage was dated September 20th 1869, and was given to secure $1000, part of the purchase-money of a lot of ground in the Twenty-fourth ward, Philadelphia, marked as No. 10, the plaintiff having purchased it with lot No. 8, on the 9th of March 1869, at a master’s sale, under proceedings in partition of the estate of Pritchett. The defence wms that after the purchase of the lot by the defendant, Baring street had been opened through it; that the plaintiff had not given the defendant, when he bought, notice of the street; that the plaintiff had received the damages for opening the street, and that there should be defalked from the mortgage the amount of injury sustained by the defendant in consequence of the opening of the street. The case was tried December 12th 1872, before Briggs, J. The plaintiff gave m evidence the mortgage on which the scire facias issued. The defendant then gave in evidence a deed from plaintiff to him, dated September 20th 1869, for the ground mentioned in the mortgage; also, under objection and exception, the record of proceedings in the Quarter Sessions of Philadelphia, commenced February 6th 1856, upon petition of residents of the Twenty-fourth ward, for the opening of Baring street, and for a jury to assess damages; the appointment of a jury who reported their assessment October 25th 1856, inclusive of damages to lots of the Pritchetts; and report confirmed at March Term 1860. Defendant called Abraham Heston, who testified that he had seen the plaintiff, at the request of defendant. Under objection and exception he further testified, that he brought the parties together a week before the deed was made; the defendant was to pay $1000 cash; $1000 to be secured by mortgage. Defendant said he would get the searches made ; plaintiff said he would prepare the papers for $7.50. When defendant purchased he lived about 20Ó feet from Baring street. The defendant testified that in 1870 he received notice from the highway department of the opening of Baring street; he had attended the public sale of the lot and bid for it; the auctioneer did not say that Baring street was over it, nor that the purchaser would be entitled to the damages. Defendant did not know that the street was laid over the lot when he bought it. The deed and mortgage were drawn by plaintiff. Under objection and exception, the defendant gave evidence by Jerome Carty, Esq., the master in chancery who sold the land, that he had collected the damages awarded to the Pritchetts and paid them to plaintiff, who had become purchaser; witness could not tell the amount of damages awarded to lot No. 10, sold to defendant. Witness collected $1600 for damages awarded to Pritchetts, for lots 8 and 10, both which had been sold to plaintiff; damages were paid to plaintiff, because as master, witness had an arrangement with the owners and with notice at the sale, that Baring street when opened would pass through both lots and the purchaser would be entitled to the damages awarded; the damages were paid to plaintiff by authority of the owners. T. W. Hancock, under objection by plaintiff and exception, testified as to the value of the land taken from defendant’s lot by opening the street. The court, on cross-examination, refused to allow witness to answer the question whether defendant had not built a house on Baring street worth $10,000, and sealed a bill of exceptions for plaintiff. The defendant, under objection and exception, gave evidence by George Carter, of the relative value of the deficiency of the lot compared with the whole lot. The plaintiff, in rebuttal, testified that he attended the master’s sale. A plan was exhibited, showing that Baring street was laid over these lots ; it was announced that the purchaser would be entitled to the damages; defendant told plaintiff that he was bidding against him. $1600 were paid to plaintiff for damages; at the sale by plaintiff to defendant, plaintiff said nothing about the street. Plaintiff offered to show that defendant had put valuable improvements on lot No. 10. This was objected to by defendant, rejected and a bill of exceptions sealed. Plaintiff further testified that when defendant complained of the opening of Baring street and of plaintiff receiving the damages, plaintiff told him if he was dissatisfied he would repay him the money with interest and take a reconveyance of the land ; defendant said he did not wish to sell and would not accept the offer. The plaintiff submitted eight points: the sixth and seventh were : 6. By the conditions of sale, as testified to by the master, the right to claim the damages when paid, was given to the first purchaser and would not enure to the vendee of that purchaser on a sale by him. 7. If the jury find from the evidence that the defendant when he made his purchase from the plaintiff, knew that Baring street had been laid out on the plan of the city, over the lot conveyed to him, he cannot now allege a failure of title as to that part of the lot taken by Baring street, and for which damages were awarded. The court charged: “ [The plaintiff, according to Ms own testimony, knew that Baring street would pass through lot No. 10, and such knowledge was material for the defendant to know at the time he purchased, and it was the duty of the plaintiff to impart to him such information, and the failure of the plaintiff to do so was the suppression of a material fact, which entitles the defendant to set off in this action in dollars and cents the injury that the opening of the street through the lot has caused to the lot.] In estimating such injury you should confine your inquiry as to the extent of the injury, as it existed at the time the city took possession of the street part of the lot and threw it open to the public, that being the time the defendant lost the use of so much of his property. Notwithstanding what I have just said, if the defendant had knowledge at the time he received his deed that the street when opened would pass through his lot, then he purchased the lot with full knowledge, and has no defence on this ground. “ [I say upon this ground, for the defendant may rest upon a second ground of defence, and that is, the damages which were awarded for lot No. 10 were not payable till the street was actually opened, and till then they were not severable from the lot, and were then payable only to the person owning the land. And the fact being undisputed, that the defendant at the opening of the street was the owner of the lot, he is the one and not the plaintiff entitled to the damages.] The fact is alike undisputed, that such damages as were paid, were paid to the plaintiff and [you should allow the defendant as an offset in this action against the mortgage, the amount of damages the plaintiff received on account of lot No. 10.] If no damages were awarded to the lot, of course the defence fails on the second ground, and if the defendant had knowledge at the time he received the deed, that the street would pass through the lot, his defence fails entirely, and your verdict should be for the plaintiff, for the amount of his mortgage with interest. “ I refer the parties for answer to their points to what I have here said, and further answer is declined.” The verdict was for the plaintiff for $275.33.- He removed the record to the Supreme Court by writ of error, and assigned for error: 1-6. The rulings of the court on the questions of evidence. 7. The refusal of the court to answer plaintiff’s points. 8. The portion of the charge first enclosed in brackets. 9. The portion of the charge secondly enclosed in brackets. 10. The portion of the charge thirdly enclosed in brackets.
77 Pa. 397McAuley's Appeal (1875)
1. In the Reformed Presbyterian Church, the General Synod, its highest judicatory, is bound by its system of religious principles with the same force as individual members. 2. A congregation, organized and holding its property as a constituent part of any particular religious denomination, or in subordination to its government, which, without just cause, severs such connection or government, forfeits its rights and property to those who maintain the original status. 3. If such severance be alleged, the burthen is upon those alleging to show that the others voluntarily, by their own act and without sufficient cause, renounced their connection with the general organization and invaded the chartered rights of their fellows to the church property. 4. A Presbytery of the Reformed Presbyterian Church, deeming that acts of the Synod were in disregard of the constitutional rights and jurisdiction of the Presbytery, resolved to suspend its “relations to Synod until such action be revoked, or (it) obtain further light, and in the meantime remain in the Reformed Presbyterian Church,” &e. If the allegations were correct, the Presbytery was justified. 5. The resolution having been laid before Synod, it, without notice or trial, resolved that the officers and members of the Presbytery were out of the jurisdiction of the Synod; and such officers and members of the Fifth Congregation (and others) who might not identify themselves with the act of Presbytery, &c., be declared the Fifth Congregation, &c.: Held, that this action of Synod did not unchurch the Fifth Congregation, &c. 6. By the Presbyterian polity, offi.cers and members of a church cannot be unchurched by an arbitrary decree of Synod without notice or trial, although the admitted act complained of be contumacious and worthy of censure. 7. A Presbyterian congregation does not select its representatives to its higher courts ; the pastor is a delegate by virtue of his office, and the lay representative is chosen by the Session ; a congregation cannot be chargeable with the acts of its delegates. 8. The excision of the Presbytery could not work the deposition of officers in the church previously called and oi'dained. 9. Under its legislative powers Synod may dissolve a Presbytery and assign its churches to some other Presbytery ; under its judicial powers, it may, for proper cause and in due form, depose a presbyter, dissolve churches and reorganize them. 10. A legislative act of Synod which forfeits the franchises and property of a congregation, is in the nature of a judicial sentence and inoperative; it is ultra vires. 11. Synod has no more power to exscind a church than a state legislature to exscind a county; the forfeiture of its rights by the church must be made to appear by a regular judicial decree. 12. The only constitutional method by which a congregation can express itself is by congregational meetings regularly called. 13. The decree of excision of the Synod amounted at most but to a dissolution of the original compact of union, leaving the several churches free to seek their own connections or to arrange themselves as might seem meet, provided they did not radically depart from the faith or doctrines under which they were organized. 14. Commonwealth v. Green, 4 Whart. 001, distinguished; Lutheran Congregation v. St. Michael’s Church, 12 Wright 20; Schnorr’s Appeal, 17 P- F. Smith 138; Presbyterian Congregation «.Johnston, 1 W. & S. 9; Winebrenner «. Colder, 7 Wright 244, referred to.
77 Pa. 420Lippincott v. Leeds (1875)
1. A married woman is liable for repairs to her separate estate made at her request, and necessary for its preservation and enjoyment. 2. Her liability is the result of her rights and the disabilities of her husband under the Act of April 11th 1848; her rights of property imply a power to repair. 3. Lippincott v. Hopkins, 7 P. F. Smith 328, followed; Moore v. Cornell, 18 Id. 323, distinguished.
77 Pa. 423Fretton v. Karcher (1875)
1. A court has the right to direct a jury to return a special verdict. 2. It is the right of a party to ask the court to submit to the jury all the material and controverted facts on which evidence has been given, and to withhold all alleged facts of which there has been no evidence. 3. If a seizure be made under a landlord’s warrant when no rent is due, the landlord issuing the warrant is a trespasser ab initio. 4. The Act of March 21st 1772, giving double damages under an illegal distress, applies to the persons distraining, not to those in whose name the distress was made. 5. In an action to recover double damages the action must be under the Act of 1772 ; not trespass at common law.
77 Pa. 429State Line & Juniata Railroad Company's Appeal (1875)
Appeal from Nisi Prius: In Equity: No. 15, to January Term 1873. This proceeding was commenced by bill filed by Jackson Lyons against The State Line and Juniata Railroad Company. The bill set out that the defendants were incorporated under an Act of Assembly approved April 5th 1870 (Pamph. L. of 1871, p. 1484), entitled “ An act to incorporate the State Line and Juniata Railroad,” which authorized the defendants to construct a railroad from a point where the Maryland line crosses Licking creek in Franklin county, Pennsylvania, thence, &c., to connect with the Pennsylvania Railroad near Mount Union, in Huntingdon county, with authority to connect with or cross any other railroads in Huntingdon or the adjacent counties, built or to be built, and to extend its road to Lake Erie. A supplement was approved May 18th 1871 .(Pamph. L. 935), entitled “ A supplement to an act entitled ‘An act to incorporate the State Line and Juniata Railroad.’ ” The supplement authorized the company to locate their road and branches without reference to the terminal and intermediate points mentioned in the original act, and to extend their road as the directors might judge would enable them to make proper connections with other railroads and to erect a telegraph line. “ A further supplement to an act entitled ‘ An act to incorporate the State Line and Juniata Railroad,’ ” approved March 6th 1872 (Pamph. L. 230), gave the company power to build such branches, by such routes and to such points as the directors might deem expedient, to commence the main line and branches at any points the directors might determine, cross other roads at grade, build and maintain bridges, &e. On the 7th of September 1872, the directors of the defendants instructed the chief engineer to locate their railroad; the main line to commence, &c., and extend the line through Chester, Delaware and other counties, by way of Newtown Square, &c., with branches, &c., “the second to commence at or near Newtown Square, in Delaware county, and extend,” &c. The defendants, without plaintiff’s consent, entered into a tract of land belonging to him in Delaware county, and had surveyed through it a piece of ground of the width of sixty feet, containing an acre and a half, and had notified the plaintiff that they intended to take and construct a railroad on it. The defendants had given bond as security for the damages to the plaintiff in consequence of locating their railroad, &c. The prayers were to restrain the defendants from taking the land, &e., and that the above-mentioned Acts of Assembly “ be decreed to be unconstitutional and void.” The defendants demurred to the bill on the ground of want of equity, “ in that the defendants are authorized by said statutes to do the acts complained of.” The court at Nisi Prius decreed the Acts of Assembly unconstitutional and void, and that the defendants be enjoined from taking the land, &c. The defendants appealed to the court in bane and assigned for error: decreeing that the Acts of Assembly were unconstitutional and void, and enjoining defendants from locating, &c., their road on plaintiff’s land.
77 Pa. 432Chestnut Hill & Spring House Turnpike Co. v. Piper (1875)
1. Defendants, sued in trespass q. c. f., pleaded “not guilty," and that they had an easement of drainage into the close. Held, that the plaintiff might give evidence that defendants had opened the drain larger than it had formerly been. 2. Under the general issue the defendants could have given evidence of their easement without reference to the special plea. 3. The defence set up by the plea of “ liberum, tenemenium, ” can be given in evidence under the general issue. 4. Mere permissive enjoyment of a privilege does not make adverse user. 5. Darlington v. Painter, 7 Barr 473, followed.
77 Pa. 437Seeger v. Pettit (1875)
Error to the District Court of Philadelphia: Of July Term 1873, No. 6. This was an action on the case, commenced January 16th 1872, by Ann Pettit against Rowland Seeger. The complaint of the plaintiff was that the defendant, being her tenant of premises No. 45 North Front street, Philadelphia, removed from there a coal-bin, gas fixtures, walnut railing, walnut stairs and bannisters, closet, walnut shelves and platform scales. The defence was, that the articles removed had been put into the premises by the tenant during the tenancy, for his own convenience and use. The case was tried February 17th 1873. The evidence was that the defendant, with one John Pettit, had rented the premises in 1864 from one Bonnafon, and occupied them as partners in the business of selling drugs, &e. The partnership continued two years; during that time the gas fixtures, platform scales and railing were put in. After the dissolution, John Pettit continued business alone. In July 1867, John Pettit purchased the property, and in December of the same year, sold it to the plaintiff, his mother. In 1868 John Pettit again entered into partnership with the defendant, and the firm continued as tenants of the same premises. John Pettit representing his mother in renting them; he always represented her as to the premises up to 1872 ; the rent was paid to him and he accounted to her for it. The walnut staircase and railing were put in by the last partnership in 1870. The firm was dissolved in January 1871, the defendant having bought the interest of John Pettit. The plaintiff gave evidence that the staircase was a permanent one; built into the house like any other stairway; the floor had been cut out for the staircase and a temporary trimmer for support put in. After the removal of the staircase, the screw-holes were there; the shelves were fastened to the partition. John Pettit, for plaintiff, testified that the scales, stairway railing and gas fixtures, had been put in by Seeger and himself as a firm, and when the property belonged to the plaintiff; the bin had been put in when he was there alone; the shelving was put in by the last firm ; after the dissolution the defendant retained possession of the premises. On cross-examination, the defendant offered to ask witness, “ Were not these articles included in the inventory and appraisement of the property of the first firm on its dissolution ?” The question was objected to by the plaintiff, rejected by the court and a bill of exceptions sealed. There was evidence also that the removal of the stairway tended to weaken the building; that the stairway was a support. The plaintiff having closed, it was proposed to ask defendant, “ When the firm was dissolved in January 1871, were these fixtures included in the assets for which you paid Mr Pettit?” The question was objected to by the plaintiff, rejected by the court and a bill of exceptions sealed. The defendant gave evidence for the purpose of showing that the fixtures had been put up for convenience of the tenants, and were but slightly and temporarily attached to the building. The court (Thayer, J.) charged: “ [The general rule applicable to the subject is that the tenant, if he has affixed anything to the freehold, during the term, cannot remove it without the consent of the landlord. To this rule, however, there are many exceptions.] The tenant has a right to remove trade fixtures which he has set up — that is, fixtures set up for the purpose of carrying on his trade advantageously. This is on account of the encouragement afforded to trade by public policy. So also may ornamental fixtures and- fixtures put up for convenience, and only slightly attached. to the freehold, and such as may be removed without any serious injury, be removed. The gas fixtures mentioned in this case fall under this description. The tenant, if he put them in, had a right to remove them. [Where the utensil or thing attached is an accessory to the carrying on of a trade, it is to be considered a chattel which may be removed — a trade fixture. Where it is a necessary accessory to the enjoyment of the inheritance, it becomes a part of the inheritance or freehold, even though it may incidentally conduce to the convenience of the tenant in carrying on his trade.] Now, to apply these principles to the things removed by the tenant, in this case:— [First. As to the stairway: — If that was affixed to the freehold in the manner described by the witnesses, being fastened to the floor and wall and a hole cut through the joists and floor of the second story, to admit access from it, then the defendant had no right to remove it, and is responsible for doing so.] * * * [Fourth. As to the coal bin: — If that was fastened to the freehold in a permanent manner, I do not see how it could be removed on the ground of its being a trade fixture; because a coal bin is not only useful in a house where a trade is carried on, but is useful, no matter for what purpose the house may be occupied. Wherever fires are used and coal is used, coal bins are useful.] [Fifth. As to closets and shelves: — I do not see how they can be fairly regarded as trade fixtures, if they are built on the wall and permanently fastened, so that they cannot be removed without injury to the freehold. If they were let into the wall and securely fastened to the building, the tenant could not remove them.] * * * The verdict was for the plaintiff for $300. The defendant took a writ of error; he assigned for error : 1, 2. The rulings on question of evidence. 3-7. The portions of the charge in brackets.
77 Pa. 441Smith v. Bellows (1875)
1. This was an action on the case, brought February 5th 1870, by William H. Bellows against Henry H. Smith. The plaintiff declared in assumpsit for money had and received, and in the other, common counts ;' the defendant pleaded “non-assumpsit.” The case came on for trial and a jury w‘as called. After some progress had been made in the trial, a nonsuit was entered against the plaintiff.
77 Pa. 448Craig's Administrator's Appeal (1875)
1. Retention of possession by the former owner of a chattel sold at sheriff's sale is not an index of fraud, the sale being the act of the law, not of the person retaining. 2. A judicial sale being conducted by an officer of the law, is deemed to be fair till proved to be otherwise! 3. A chattel purchased at a judicial sale may be left in the possession of the former owner, on any contract of bailment which the law allows in other cases. 4. A judgment was confessed by Shoemaker, execution issued on it, and furniture, &e., of Shoemaker, who was tenant of an hotel, bought at sheriff's sale by Craig, the plaintiff. He afterwards bought the lease of the hotel, and after a year from the sale of the personal property, put Shoemaker into the hotel as his agent; he occupied it for four years, when he died : Craig was his administrator. On the settlement of the administration account, creditors of Shoemaker asked to surcharge the account with the value of the furniture, &c., on the ground that the judgment and sheriff's sale were fraudulent. Held, that after so long delay, nothing short of clear, decisive and unmistakable evidence should avoid the transfer of title by the sheriff’s sale. 5. The payment by Craig of debts contracted by Shoemaker whilst he kept the hotel, was consistent with Craig’s ownership and Shoemaker’s agency. 6. Inadequacy of price of property sold at sheriff’s sale, will not alone affect proceedings conducted in accordance with the forms of law. 7. After a report by an auditor that the sale was fraudulent, the Orphans’ Court directed an issue to .the Common Pleas to try that question; the jury found that it was not, and a rule for a new trial was discharged. The Orphans’ Court disregarded the finding of the jury and confirmed the report of the auditor. Held, that the verdict should have controlled the decree of the Orphans’ Court; 8. In questions of fraud, evidence of acts done before any rights of the parties charging fraud had supervened, which tend to illustrate the conduct of the parties, and develop their relations, is admissible. 9. Myers v. Harvey, 2 Penna. R. 478, recognised.
77 Pa. 460Lawrance v. Fussell (1875)
1. Under the Act of March 28th 1855, the plaintiff in actions on notes, &e., may enter judgment by default on the third Saturday after the return, unless the defendant have filed an affidavit of defence ; provided that no such judgment shall be entered, unless the plaintiff shall within two weeks after the return-day of the writ, file a copy of the instrument on which the action is brought. A copy filed with the praecipe was a compliance with the requirements of the act. 2. The object of the act was to designate a time beyond which a copy of the instrument could not be filed. 3. Defendant made a note payable to plaintiff; he endorsed the note to a bank, which endorsed it to another bank; there was no averment in the affidavit of defence that the note had been taken up by plaintiff, or that he had any interest in it. Held, that there was not shown any right of action on the note in the plaintiff. 4. If the note had been endorsed in blank, the possession by drawer would have been sufficient evidence of his ownership and that he had taken it up. 5. If a note be specially endorsed, its negotiability is ended, and it is incapable of being sued on, except by the special endorsee. 6. The note was endorsed by the Media Bank, the first endorser, to the second endorsee “for account” of the Media Bank. This was a restrictive endorsement, and the holder could not sue the drawer on it.
77 Pa. 464Ashhurst's Appeal (1875)
1. An unmarried woman conveyed in trust all her property to be invested, with authority to sell and reinvest and collect the rents and income, and after deducting taxes, &c., to pay it to her or her appointee during life, if she should so long be unmarried; in case of marriage, to pay the rents and income, to her or her appointee, during her life, for her separate use, but not to be subject to the debts or control, &c., of her husband; upon her death to such persons and use as she by will should appoint; and for want of appointment to such persons and for such estate as her property would go under the intestate laws; .with authority to the trustees to sell absolutely or on ground-rent, the proceeds of sale and ground-rent to be for the same trusts, after paying her for her separate use $1500, and on her request to mortgage the property for $3000, in prospect of her marriage. She married and survived her husband. Held, that the trust continued. 2. The trust for the woman was only of the income, and her interest was but that of a tenant for life. 3. If the beneficiary of a trust be a woman the benefactor can protect her from her own debts and improvidence, as well as from those of her husband. 4. One may make an irrevocable trust for himself for life, and remainder for his children, if the rights of creditors do not intervene, and it be an active one, if so drawn that the entire equitable iuterest does not vest in the cestui que trust. 5. A spendthrift trust may be created as well for a woman as a man. 6. Earp’s Appeal, 25 P. E. Smith 119, followed; Koenig’s Appeal, 7 Id. 352, distinguished.
77 Pa. 468Baxter v. Allen & Needles (1875)
Error to the District Court of Philadelphia: Of July Term 1873, No. 87. This was a scire facias, issued May 27th 1872, by Allen & Needles, against John Baxter, executor, &c., of William Kerrigan, deceased, he being also devisee of said deceased; to revive judgment, No. 400 to December Term 1854. William Kerrigan died in December 1865. He devised real estate to John Baxter, the defendant, who pleaded in bar: “ That the said William Kerrigan died on the 6th day of December 1865, and the said plaintiffs are precluded from reviving the judgment against him as devisee of the said William Kerrigan, because he saith that before said writ of scire facias issued, more than five years had elapsed from the date of said death, and this he is ready to verify.” To this plea “ plaintiffs demur, and for cause of demurrer show that the said plea doth not set up any good defence in law why the said judgment should not be revived as against the said devisee.” The court entered judgment in favor of the plaintiffs on the demurrer. The defendant toot a writ of error, and assigned for error: That the court below erred in entering judgment in favor of the plaintiffs on their demurrer.
77 Pa. 470Wright v. Commonwealth (1875)
163. This was an indictment found at the April Term 1871, against Jonathan Wright, that he “ did unlawfully and maliciously carry on and about (his) person, a certain concealed deadly weapon, commonly called a pistol, with intent, with the pistol aforesaid, unlawfully and maliciously, to do bodily harm to some other person, to the inquest unknown, &c.” The defendant pleaded “Not guilty.” The jury found the defendant “Not guilty, the defendant to pay the costs.” ' The…
77 Pa. 471Brown v. Schock (1875)
Error to the Court of Common Pleas of Schuylkill county: No. 198, to January Term 1874. This was an action of assumpsit, brought to June Term 1869, of the court below, by Wesley Brown against Adam Schock. The plaintiff sued as endorsee of the following note: “ $125.00. Schuylkill Tp., Sept. 4th 1867. Six months after date, I promise to pay E. D. Simpson, or order, $125, for value received, with interest, waiving the right of all valuation, appraisement, stay and exemption laws. Given for Geo. W. Benton’s Patent Washing-Machine, township Schuylkill. Adam Sci-iook.” Endorsed: “E. D. Simpson.” The defence was that the payee had fraudulently obtained the note from the drawer with the knowledge and by the aid of the plaintiff. The case was tried May 7th 1873, before Pershing, P. J. At the same time, and by the same jury, a suit between the plaintiff and Conrad Reitler was tried. The cause of action was on a precisely similar note, and the defence was the same. The principal question in the cases was the identity of the plaintiff with the person who aided the payee in perpetrating the fraud on the drawer of the note. At the trial, the defendant admitted that the signature to the note was his, reserving the right to show that the note Avas not in the same condition as Avhen signed. The plaintiff admitted that the washing-machine for Avhich the note Avas given was worthless to the defendant, and that the consideration for the note entirely failed. The plaintiff gave the note in evidence and rested. The defendant testified, that on the 4th of September 1867, two men came to his house in a two-horse carriage — Simpson, the payee in the note, was one of them. He got out of the carriage and offered to sell defendant a washing-machine; defendant declined to purchase. He then asked defendant to become agent for selling the machines, and if defendant became agent, he should have half the profit. After further solicitation, the defendant consented to become agent. Simpson then dreAV up a paper that defendant was not to pay anything till he had sold §250 worth of machines. Pie then gave defendant a paper that he Avould be back in six months, and if defendant could not sell any machines, he would take all back without cost. “ He then drew up an agreement ; in that was mentioned I Avas to pay §125 to him as his half, provided t sold §250 worth; because he said I need not pay anything till I sold §250 worth, I signed it, or else I would not have signed it. * * * I don’t know the name of the man who stayed in the carriage. I did not ask Simpson nor the man himself. * * * The agreement by Avhich I was not to pay till I sold §250 worth of machines, and the note I signed, were all one papep.” Printed papers were shown to defendant, Avhich he said were like those which were shown him. One of them retained by defendant, and given in evidence in connection with defendant’s testimony, Avas as follows: “ Receipt of Membership. Sept, 4th 1867. “ Received of Adam Schock one hundred and tAventy-five dollars, for the right of Greo. W. Benton’s Improved Washing-machine, patented April 30th 1865, for, to and in the toAvnship of Schuylkill, county of Schuylkill and State of Pennsylvania, for which this is a full and sufficient receipt. É. D. Simpson.” “ September 4th 1867. “I hereby agree that the said Adam Schoek need not pay for the said township until the profits on the said township are two hundred and fifty dollars, or more; and if, after trying six months, he wants, I will take it back free of charge, if he uses due diligence. E. D. Simpson.” The defendant then called Christian Koch, and proposed to prove by him, that’upon the next day (Sept. 5th 1867), after the transaction with the defendant, the same E. D. Simpson was in company with another person driving a two-horse team, selling the same patent-right in township rights, using the same printed agreements and receipts and forms of notes, and that the name of the other person who was with said Simpson was there given as Mr. Brown, and that he answered that name and entered the house of the witness as that person, and that this occurred within five miles of defendant’s. Offered for the purpose of connecting the plaintiff with E. D. Simpson, the payee of the note in this suit, and for the purpose of showing that the plaintiff had knowledge of the transaction between the defendant and payee of note, and is therefore a party to the fraud alleged. The plaintiff objected to the offer; it was admitted and a bill of exceptions sealed. Witness testified: “ I live in East Brunswick. I know about E. D. Simpson. He was there 5th September 1867. There were two in the carriage. One wrote his name on the paper as E. D. Simpson. Simpson called the other one Mr. Brown. The one called Brown was not off the carriage till Simpson called him off. Everything was done; they were ready to leave ; the witness and papers were done ; they were ready to leave the house.;* * * He turned around and said, ‘ Mr. Brown, come in.’ That is the way he came to name him ; Brown got off the carriage, fastened the horses, and followed Simpson into the room. (Paper shown witness.) This is my signature. It was signed the day it was dated. It is not the same as when I signed it. There was more paper attached to it. (Paper shown witness.) This paper was given to me at the same time; the man called himself E. D. Simpson.” (Paper shown witness.) The papers shown to witness, and identified by him, were a note from himself to Simpson, and “ Beceipt of Membership,” in same terms as those of defendant. Also a “patent deed,” elated September 5th 1867, signed “ Greo. W. Benton,” yvith his seal, witnessed by “ Lorretta D. Koch,” conveying to Christian Koch, Jr., the right to sell and use the patent washing-machine in New Brunswick township ; the consideration was $125. The defendant then offered these papers in evidence to show that they were the same forms as those used in the transaction with defendant, E. D. Simpson being one of the same persons. The plaintiff objected to the offer ; it was admitted by the court and a bill of exceptions was sealed. Defendant then called Abram Sheip, and offered to prove by him the same facts as those testified to by Christian Koch, to show the identity of the plaintiff. The plaintiff objected to the offer; it was admitted by the court and a bill of exceptions was sealed. The witness testified: That parties came to him in West Brunswi ck township, Schuylkill county, to sell a patent-right; it was in September 1867, the day he signed the note to E. D. Simpson; there were two in a carriage with two horses. “ The name Brown was used there, but I don’t know whether he called him Wesley Brown. * * * I was to pay nothing till I sold enough to make $150 or $200; half was to be mine and the other half he was to get. I signed papers to that effect. (Papers shown.) He left this paper with me. (Note shown.) I signed this note; when I signed it I think it was a foot length; on a sheet of paper.” The note of this witness was dated September 7th 1867. The other papers were substantially the same as the former papers. It was admitted that the plaintiff in this case was plaintiff in suits against Koch and Sheip on their notes. W. E. Shepherd, Esq., of counsel with plaintiff, testified that plaintiff resided in Allegheny county, New York; the case was continued several times for the purpose of plaintiff being at the trial. “ I notified him of the times when this case and Reitler’s were on the list, and desired him to be present; Brown is not here. I informed him what the witnesses said in the Sheip case. Brown’s answer was it was false, and the reason he was not here was, after due deliberation on the evidence adduced before, I did not consider it legal evidence, and as he-was engaged in business and it would be a loss to him to come here, I informed him in my opinion it was not necessary for him to come ; that the'evidence was illegal. I knew the court had admitted all these papers in the Reitler case before I gave Brown the information.” John Boyer testified that he was at defendant’s when two men with a carriage and two horses wrere there with the washing-machine. One, who was in the house, called himself E. D. Simpson ; he asked witness to put his name to the paper as witness. Defendant rested. The plaintiff gave in evidence the deposition of Simeon Anthony, the father-in-law of plaintiff. He testified that he saw E. D. Simpson endorse to plaintiff notes given by Sheip, Adam Schock and Conrad Reitler, and deliver them to plaintiff; it was done October 5th 1867; he saw the consideration for the sale of the notes to plaintiff paid by him to Simpson; it was 80 per cent, of the face of the notes; both Simpson and plaintiff resided in Almond, Allegheny county, New York; there were then ten other notes of the same kind, the drawers of which the witness named, sold to Brown at the same time and endorsed by Simpson; there were no printed agreements to the notes when sold, and none cut off in the presence of witness. There was evidence by a number of witnesses that the plaintiff was in Almond on the 4th, 5th and 7th of September 1867. M. L- Major testified that in September 1867, he was in Schuylkill county, employed by Simpson and E. K. Robinson, selling Benton’s washing-machines. • He effected sales to Abram Sheip, Adam Schock and Conrad Reitler; the sale to Schock was made September 4th, the others September 7th. Robinson was with him when he effected the sales, and all gave their notes payable to Simpson’s order. The plaintiff was not with him at the time of making any of the sales. The following are points of plaintiff, with their answers: 2. There has been no legal identification of the plaintiff in this suit as to his connection with the negotiation and sale of the washing-machine or patent right to the defendant; that, although the consideration failed between the original parties to the note, yet no knowledge has been traced' to the plaintiff of said failure of consideration before the taking of the note by him from Simpson, or at the time of the taking of the note and it being proved by the plaintiff, which proof is uncontradicted in the cause, that he gave consideration for the note, and that it passed to him before maturity, he is entitled to recover the full amount of the note, with interest from date. The court answered: “We cannot affirm this point in terms, as that would be to take questions of fact from your consideration. We have said to you that the identification of Wesley Brown, as one of the parties present when the notes were made, is very slight, and that he has a right to recover, if an innocent holder for value; that he gave value is in evidence before you.” 3. The rules of evidence, established by the decisions of the Supreme Court, allowing great latitude in questions of fraud, have no application in the case at issue against the plaintiff, he having in no way been identified as having connection with it. The court answered: “ We cannot answer this point affirmatively. If you find the plaintiff has in no way been identified with the fraud of Simpson, your verdict should be in his favor.” 4. Even though the evidence on the part of the defendant should be considered as tending to identify the plaintiff, it would be only primá facie, and after the evidence given by the plaintiff in this case without further proof on the part of the defendant, the plaintiff is entitled to recover. The court answered: “We decline to answer this point as requested. The whole evidence on this subject is for your consideration. We have already stated where we think the weight of the evidence lies.” 6. Under all the evidence in the case, the plaintiff is entitled to recover. The court answered this point in the negative. The court charged: * * * “It is agreed that the consideration for these notes as between the original parties entirely failed, and had suits been instituted by Simpson against these defendants, he could not have recovered under the evidence in these cases. That a fraud ivas perpetrated upon Schock and Reitler is not disputed. Wesley Brown, however, claims to recover in these actions on the ground that he is an innocent holder of these notes for value, and if he is, he should have your verdicts, however gross the fraud perpetrated by Simpson upon these defendants. If Brown was not a party to the fraud, and knowledge of it was not brought home to him before, or at the time he claims to have purchased these notes, ho has the right to recover. The taking of a negotiable note under circumstances which ought to excite the suspicion of a prudent man, was held in Phelan v. Moss, 17 P. E. Smith 59, not sufficient to prevent the recovery of a boná fide holder for value; nor will gross negligence avail to defeat an innocent holder for value, as held in State Bank v. McCoy, 19 P. E. Smith 204: It is claimed on the part of the defendants that Wesley Brown was along with Simpson at the time these notes were given and was therefore a party to the fraud.” The court then recapitulated the evidence bearing on the question of the identity of the plaintiff with the man who was with Simpson, and proceeded: [“ The direct evidence of identification is very slight and is met by the depositions of six or seven witnesses, who state that on the 4th, 5th and 7th days of September 1867, Wesley Brown was at home in Almond, Allegheny county, New York. The weight of evidence therefore is that Wesley Brown was not in the county of Schuylkill on the dates at which the notes payable to E. D. Simpson were given.] The deposition of M. L. Major was also read on the part of the plaintiff to show that Wesley Brown was not in this county at the time the notes were given. Major states that he was in Schuylkill county in September 1867, part of the time in company with a man by the name of Robinson ; that he, Major, sold washing-machines to Schock, one of the defendants, on the 4th of September; and to Reitler, the other defendant, on the 7th of September, that he took the notes from the parties, and cannot recollect that any one was with him; that Wesley Brown was not along. This evidence is in conflict in some of its statements with other evidence in the case. The other witnesses swear that two men were along when the notes were given; the one called himself E. D. Simpson, in whose name the notes were taken, and John Boyer testifies that he happened to come to Koch’s when the two men were there, and at Simpson’s request he witnessed one of the papers. It would rather appear either that Major was not here at the time he mentions, or if in this county he went by some other name than that of Major.] * * * You have heard the statement of Mr. Shepherd, counsel of Mr. Brown, voluntarily made, as to the reason of Mr. Brown’s absence. Mr. Brown is himself a lawyer, as appears by the evidence, and therefore capable of deciding on the advice given him by his attorney. He had a right to follow that advice. It may be a matter for regret that he has not appeared here, as, had he seen proper to come and testify, the question of identity would in all probability have been satisfactorily settled.” The jury found for the defendant. The plaintiff took a writ of error, and assigned for error: 1-4. The answers to the points. 5-7. The rulings on the questions of evidence. 8, 9. The parts of the charge in brackets.
77 Pa. 479Whitney v. Moore (1875)
Error to the Court of Common Picas of Schuylkill county: Of January Term 1873, No. 178. This was a feigned issue, under the Sheriff’s Interpleader Act, made up January 8th 1868, to March Term 1868, of the court below, between William D. Moore et al.. plaintiffs, and Lawrence F. Whitney et al., defendants. Prior to January 1867, John H. Bracken, by virtue of a sheriff’s sale, had become the owner of a coal lease of the Charter Oak Mutual Coal Company, including the fixtures and personal property used about the colliery. On the 11th of February 1867, Bracken, for the consideration of $10,000, by writing under his hand and seal, sold an undivided one-third of the lease, fixtures, &c., to William D. Moore. On the 1st of November 1867, by a similar writing, he sold the remaining two-thirds of the colliery, &c., to Moore. To December Term 1867, Whitney, one of the defendants in the issue, obtained two judgments against Bracken, amounting together to $8091.55, and on the 17th of December 1867, issued executions on them to March Term 1868. Under these executions, the sheriff levied, amongst other things, on mules, cars, iron, &c., as the property of Bracken. The property was claimed by Moore,' and, on the application of the sheriff, this issue was framed. The issue was tried April 23d 1872, before Walker, J. The plaintiff gave in evidence the writings conveying the coal-lease, fixtures, &c., to him as, above stated. He then offered in evidence execution — Morgan to the use of Oliver against Moore, issued June 12th 1868, No. 39, to September 1868 — and return of sheriff, “Leasehold fixtures, &c., sold to Whitney for $12,000also execution — Amerling to the use of Oliver against Moore, issued June 16th 1868 — to which the sheriff returned, “ Defendant’s personal property levied on and sold for $1200 as per fi. fa., No. 39, to September 1868.” The defendant objected to the offer; it was admitted by the court, and a bill of exceptions sealed. Plaintiff then offered landlord’s warrant for $591.23 rent, issued against Bracken, and sale under it of divers articles of personal property to Whitney, the defendant. This offer was objected to by defendant, admitted by the court, and a bill of exceptions sealed. There was evidence that the property sold under the executions and landlord’s warrant was the same as that purchased by Whitney under his executions. The defendant gave evidénce for the purpose of showing that the sale of Bracken to Moore was colorable and fraudulent as to creditors. The court charged: “ Under the ruling of the court upon the first offer of the plaintiff, the whole case turns upon a question of law. If you believe the evidence as admitted by the court in that offer, that L. F. Whitney purchased tbe articles in question as the property of William D. Moore, at public sale, and the other evidence in the cause, then for the purpose of this case we direct you to find a verdict in favor of the plaintiff, and we propose to dispose of that question (which is purely one of law) upon a motion for a new trial.” The verdict was for the plaintiff. A rule was granted to show cause why judgment should not be entered, for defendant non obstante veredicto. The rule was afterwards discharged, and judgment entered for the plaintiff on the verdict. The defendant took a writ of error and assigned for error the rulings on questions of evidence, the charge of the court and entering judgment for the plaintiff on the verdict.
77 Pa. 482Moyer's Appeal (1875)
Appeal from the Court of Common Pleas of Berks county: Of January Term 1875. In the distribution of the estate of Simon Moyer, assigned for the benefit of his creditors. On the 8th of March 1870, Simon Moyer assigned his estate to Peter D. Wanner, for the benefit of his creditors. The assignee, on the 23d of June 1871, filed an account of his administration of the trust. Wharton Morris, Esq., was appointed auditor to distribute the balance in the hands of the assignee. He found that, after deducting the expenses of audit, &c., the balance for distribution was $3748.07. Amongst the claims presented to the auditor, was that of Mary Moyer, wife of the assignor, upon the following note : “ $1780. April 1st 1850. “ I promise that I became indebted to Mary Moyer in the sum of $1780 — money that is current in Pennsylvania, and this I promise to pay when or to whom it may be assigned, with lawful interest, as a lien-note for the property for her inheritance money. “ With my hand and seal, Simon Mover, [l. s.] “Elizabeth M Hoch.” In support of this claim, S. Moyer, the assignor, testified before the auditor: * * * “ The first I got was about $1000; I did not get it all in one sum. Before spring had come, I got $800. Stanly Kirby paid it to me. In the spring I got the balance. I think I was married in 1836. Stanly Kirby was my wife’s guardian. My wife was seventeen or eighteen when I married her. My wife did-not want to let me have the money without a note. I told her I would give her a note, but I put her off. My wife gave Kirby a release. Before she released, she said she would not do it without I gave her a note, and I promised to do so. Kirby gave me the money, $800,. at his house. I gave her the note because I owed her the money. The $200 I got also from Kirby, the spring after I got the $800. I also paid that on account of the land. My wife and I agreed the note should be for $1780, at the time it was given; we reckoned out the interest on the amount I had received, and it all came to more than that; hut she was satisfied with that. She has had the note in her possession ever since. I paid on it occasionally; the payments are endorsed on the note. The reason I gave the note at the time I did, was, she had been insisting upon giving a note from the time when I got the money. At the time I gave the note, I had bailed some person at court. This made her restive, and she insisted absolutely on a note. She wanted to have a right for the money — a note (security) that would bind the land. While we were going over to the justice’s to get the money and release for it, my wife demanded a note, and I promised to give it to her. This was about 1837, and then I got the money.” Mary Moyer, the wife, testified : “ This note was given on the day it bears date. * * * There was some difficulty between us. He went bail, for whom I can’t say. Then we were agreed that the amount he received was $1000, at first, and that the interest would amount to this note. He really got something more than $1000. I think he got it in 1837. * * * The reason I did not take a note in 1837, when I gave him the money, was, he promised to do it, but did not. I was young at the time. Stanly Kirby was my guardian, and there he got it. I never saw the money. Can’t say for sure how much it was. It must have been $1000, something more, but whether he got it all at once I don’t know. * * * This was out of my first inheritance.” The auditor reported * * * “At the time of Mrs. Moyer’s marriage, her guardian, Stanly Kirby, had in his hands upwards of $1000 belonging to his ward, from her father’s estate. This money Moyer received from the guardian in several payments. It appears that Mrs. Moyer did not want her husband to have this money without a note, and refused to join in a release to her guardian, unless he would give her a note; that she constantly importuned him to fulfil his promise, but in his own words, he £ put her off,’ until, becoming alarmed by his having bailed some persons, she renewed her entreaties, and insisted positively on having a note, and then he gave the note on the day it bears date, the amount being made up of what he had received from Kirby, with the interest thereon added. Some interest was paid on the note, which Moyer says he had paid to keep it.alive. ££ The allowance of this note, is objected to on the ground that Moyer having received and used this money, there is nothing to rebut the presumption that he intended to assert an- absolute title to it. The auditor thinks the evidence is insufficient to repel this presumption. If Moyer liad given a note at the time he received the money, or even shortly afterwards, the question of intention would be easily solved, but this note was not given until some fourteen years afterwards. His wife, by her perseverance, made it impossible for him to defer the matter longer, without affecting the marital relations and disturbing its peace.” * * * The auditor rejected the claim of Mrs. Moyer. On exceptions by Mrs. Moyer to his report, the Court of Common Pleas, Hagenman, J., dismissed the exceptions, and confirmed the report. Mrs. Moyer appealed to the Supreme Court and assigned for error, the decree of the Court of Common Pleas dismissing her exceptions and confirming the report of the auditor.
77 Pa. 487Care v. Keller (1875)
7. This was an action of dower unde nihil habet, brought September 22d 1868, by Sarah Keller against Eli Keller and others, heirs of George Keller, deceased. The plaintiff having died, Nathan Care, her administrator, was substituted on the record. The defendants pleaded ne unques seisie que dower and the Statute of Limitations. The plaintiff claimed dower as the widow of John Keller, deceased, out of about 80 acres of land in Union township.
77 Pa. 493Collins v. Freas (1875)
50. This was an action of debt, brought February 9th 1871, by Hiram B. Freas and Margaret his wife, in her right, against Peter F. Collins. The action was upon an award which was filed with praecipe. On the 1st of May 1871, judgment was entered against the defendant for want of an affidavit of defence, and damages assessed at $2000.
77 Pa. 498Gordonier v. Billings (1875)
1. In an ejectment the defence was equitable arising from a parol exchange of land, the verdict was for the plaintiff, “to be taken off and entered for.defendant,” if he filed a deed for the land claimed, and paid the costs on or before April 1st, the plaintiff to file a deed for defendant’s land, before he should receive the other title. The defendant not having filed his deed, &c., the plaintiff on the 2d of April issued an habere. A rule was granted to set the habere aside ; the rule was discharged. Held, that the Supreme Court could not review the decision. 2. In such conditional verdict time is of the essence of the contract. 3. Quaere. Whether when the delay has been occasioned by unavoidable accident or misfortune, and not through the party’s supineness or neglect, equity will not relieve. 4. The time named is nob so absolute that it cannot be varied by the power of the court. 5. The defendant has a remedy by audita querela to obtain a decision as to his rights if his defence to the execution be legal: a writ of error lies to a judgment in such proceeding. 6. If the ground of defence be purely equitable, such as rvould entitle him to an injunction, upon bill filed and proceedings thereon, an appeal would lie to the Supreme Court. , 7. Chew v. Phillippi, 8 Casey 205 ; Creigh v. Shatto, 9 IV. & S. 584, referred to.
77 Pa. 504Von Storch v. Griffin (1875)
1. In an action for breach of promise of marriage, the defendant’s point was: “if the jury believe that the plaintiff is, and was, a person of lewd and immoral character, she is not entitled to recover unless they find that the defendant, with a knowledge that such was her character, expressly agreed to marry her.” Held, that the point should have been affirmed. 2. An agreement to marry may bo established by evidence of a formal undertaking by positive words, or of circumstances from which it may be inferred. 3. A man is not bound by a contract to marry a lewd woman, if he has entered into it in ignorance of her character. „ 4. The sufficiency and legality of the consideration of a contract are put in issue by the plea of non-assumpsit, and the defence that a woman with whom a contract of marriage is made was lewd, directly reached the consideration.
77 Pa. 507American Life Insurance & Trust Co. v. Rosenagle (1875)
1. The stringency of the rule requiring search for documents and pi’oof of their loss to admit evidence of their contents, is proportioned to their character and value. 2. Slight proof of such loss, &c., is sufficient where the documents from their nature would have only transitory interest and there was no rational motive for keeping them. 3. A deposition will not be rejected because the witness speaks of papers not produced, if it appear they were received a long time before the deposition was taken, and are such as would not probably be preserved for so long, or are not in the power of the witness or the party; especially if family letters, received by the witness in a foreign country. 4. The law of a foreign country on a given subject may be proved by any person, though not a lawyer, or not having filled a public office, who has been in a position to render it probable he would make himself acquainted with it. 5. A pastor of a church in a foreign country testified, that church records of marriages, births, &e., had been kept according to the laws of the country, and he was the proper custodian of them and received by him from his predecessor. Held, that extracts from the records giving the genealogy of a family, sworn by him to be correct, were evidence in a question of identity. 6. Where proof is by a copy, an examined copy duly made and sworn to by any competent witness, is always admissible. 7. Pedigree includes not only descent and relationship, but also the facts of birth, marriage and death, and the times these events happened. 8. Such facts may be established by general report in the family, proved by a surviving member of it, where they occur incidentally and in relation to pedigree. 9. Evidence in this case by foreign depositions and documents of pedigree, to prove identity.
77 Pa. 516Adams Express Co. v. Sharpless & Sons (1876)
1. A condition in a bill of lading of an express company, was that they were not to be liable for loss by fire in transit unless from, gross negligence of the company or their servants. Held, that they were not responsible to owner of goods for loss by fire unless occasioned by negligence. 2. In this case goods were placed in a wooden car about five years old, well finished and in good order; having sliding doors in the middle of the sides with a crevice between the doors and the side of the ear through which a spark might pass; the car was placed next to the tender of the engine, which was wood-burning, and the messenger was in the first passenger car, with another car between him and the first car, so that he could not see it, and the engine was omitting a stream of sparks from the time the train started. The court below referred to these facts in their charge and told the jury, if they found “ in view of all the facts and evidence that the defendants omitted to do what a man of reasonable care and caution would have done under the circumstances to protect this car from fire, then it was negligence. Held, to be error. 3. In answer to a point of defendants, the court, referring to the same facts, said; “ If you find in any of these particulars the absence of such care and precaution as a prudent man would exercise in the business of a common carrier, you will find negligence,” in the defendants. Held, to be error; there being no evidence that it was unsafe and improper to transport the goods in a wooden car, &e., or to use a wood-burning locomotive. 4. Placing the car next to the tender, or permitting the messenger to ride in the front passenger car, was not evidence of want of reasonable and ordinary care. 5. Negligence as a general rule is a question of fact for the jury, but they cannot find negligence from facts and circumstances not tending to show want of reasonable and ordinary care. 6. To charge that negligence as regards a common carrier would be the omission of such reasonable and ordinary care and precaution as would have averted the loss, is error.