author: Mr. Justice Paxson

text:
    The Domestic Sewing Machine Co. versus Saylor.
    1. An unliquidated account, not between partners, may be set off under our Defalcation Act, although it arises out of a different cause of action.
    2. Whether a-surety can be proceeded against, before proceeding against his principal, depends to some extent upon the form of his obligation, but where he becomes liable in a joint and several contract to pay money, which his principal owes, he may be proceeded against in the first instance, and the amount of his principal’s indebtedness ascertained in an action against him as surety.
    3. A party having such right to proceed against the surety for an indebtedness of the principal, can avail himself of the same cause of action, by way of set-off.
    February 13th 1878.
    Before. Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Trunkey, JJ. Woodward, J., absent;
    Error to the Court of Common Pleas, No. 1, of Philadelphia county: Of July Term 1877, No. 20.
    Assumpsit by John L. Saylor against The Domestic Sewing Machine Company. The defendant, among other pleas, pleaded “set-off,” and gave notice of a joint and several bond in the sum of $5000, executed to the defendants by plaintiff and others.
    On the trial, before Biddle, J., the plaintiff produced evidence to show that the defendants were indebted to him in the sum of $1800, the price of thirteen wagons sold and delivered to them. Under the .plea of set-off, the defendants offered in evidence a joint and several paper in writing, signed by the plaintiff and another, whereby they became sureties to the defendants for the faithful conduct of one Hippard as agent. The plaintiff objected to this writing on the ground that it was not under seal and was at variance with the notice of special matter, which described the instrument as a bond, and that it was therefore inadmissible.
    The defendants then, by leave, filed special pleas, setting up this instrument as a contract, and accruing indebtedness under it, when it was admitted, and as proof of indebtedness three promissory notes of Hippard to the defendants were given in evidence. The defendants also alleged an indebtedness of Hippard over and above the amount of these notes. The plaintiff denied the indebtedness.
    It was conceded that the evidence did not establish a settled account between the defendants and Hippard, resulting in a balance, which they agreed on.
    The plaintiff asked the eourt to charge:—
    Such set-off cannot be allowed, because the account between the company and Hippard, its agent, for whose liability, it is alleged, the plaintiff is liable under the writing in evidence, has not been settled and adjusted. Hippard alleges that the company is indebted to him; this the company denies, and it cannot now be said with certainty how the account stands.
    The court charged:—
    “ The defendants also, in answer to plaintiff’s claim, present a counter claim or set-off against him, arising from an instrument of writing, which amounts to an agreement by the plaintiff to become surety for Hippard for indebtedness due or to be incurred by him to the defendants.
    “ The surety has a right to be satisfied that there is a debt owing before he can be called on to pay. There must be a settlement and adjustment of accounts between Hippard and the defendants, before Saylor can be held responsible, and you must be satisfied that there was a settlement of accounts and balance struck, before you can give defendants a verdict.

      “ Unless you believe that there was a final adjustment of accounts between Hippard and the company, and a balance, struck between them in favor óf defendants, you must disregard the question of set-off.”
    This ruling was excepted to by defendants.
    The verdict Avas for the plaintiff for $1890.88, and, after judgment thereon, the defendants took this writ, and assigned for error the refusal of the court to charge as requested, and the portion of the charge noted.

      E. Ooppee Mitchell, for plaintiffs in error.
    — Our Defalcation Act of 1705 is much more SAveeping in its terms than the English statute. Under our act unliquidated damages arising from any bargain may be set off, whenever they are capable of liquidation by any known legal standard: Hunt v. Gilmore, 9 P. F. Smith 450; Steigleman v. Jeffries, 1 S. & R. 477; Shaw v. Badger, 12 Id. 275; Hubler v. Tamney, 5 Watts 51; Nickle v. Baldwin, 4 W. & S. 290; Thomas v. Shoemaker, 6 Id. 179; Phillips v. Lawrence, Id. 152; Ellmaker v. Fire Ins. Co., Id. 439; Speers v. Sterrett, 5 Casey 192; Halfpenny v. Bell, 1 Norris 128.
    The question raised here is then could the sewing machine company have maintained an action upon their bond against Saylor, without first ascertaining the exact amount due them by Hippard ? The court charged the jury that they could not. This, we submit, was plain error. The obligation given by Saylor and others, to the defendants, is expressly joint and several by its terms — on breach of the condition either one of the obligors might be sued. Each one is severally indebted to the obligors in the whole amount. They can have but one satisfaction, it is true, but they can have it all from "any one they choose, and leave them to settle equities between themselves: Walters. Ginrich, 2 Watts 204.
    The fact that one or more of the obligors were sureties can make no difference: Bank v. Barrington, 2 P. & W. 27; McCaraher v. Commonwealth, 5 W. & S. 21; Wayne v. Bank, 2 P. F. Smith 352; Beyerle v. Hain, 11 Id. 226.

      Josiah Funds and William H. Idvingood, for defendant in error.
    — The set-off was not within the letter or spirit of the statute. That provides that “ if two or more dealing together be indebted to each other,” &c.
    The plaintiff was not indebted to the defendant. The corporation alleged it had an unliquidated claim against Hippard; it was this claim which was offered as a set-off.
    It is clearly settled that the debts which can be set off must be such as are due in the same right: Ex’rs of Darroch v. Adm’rs of Hay, 2 Yeates 208; Wain v. Hewes’s Ex’rs, 5 S. & R. 468; Potter v Burd, 4 Watts 15; Steel’s Ex’rs v. Steel, 2 Jones 64; Wolfersberger v. Bucher, 10 S. & R. 10. As to this, our statute is the same in effect as the British: Stuart v. Commonwealth, 8 Watts 74; Carman v. Garrison, 1 Harris 158; McCracken v. Elder, 10 Casey 239; Milliken & Co. v. Gardner, 1 Wright 456; Lorenz’s Administrators v. King, 2 Id. 93; Jackson el al. v. Clymer, 7 Id. 79; Russell v. Miller, 4 P. F. Smith 163; Wharton v. Douglass, 26 Id. 275.
    A contract by parol, which includes an unsealed writing, needs a consideration to support it: Kennedy’s Ex’rs v. Ware, 1 Barr 450; Whitehill v. Wilson, 3 P. & W. 413; Campbell’s Estate, 7 Barr 100; Crawford’s Appeal, 11 P. F. Smith 52. The word “ bond,” ex vi termini, imports a sealed instrument: 1 Bouvier’s Law Dictionary 186. Mutual promises to ground an action must be both made at the same instant of time; Whitall v. Morse, 5 S. & R. 361, A mere voluntary compliance by one who had not previously agreed to it, does not render the other liable: Johnston and Lyon v. Fessler, 7 Watts 48; Shupe v. Galbraith, 8 Casey 12; Snyder v. Leibengood, 4 Barr 307. If regarded in the nature of an offer to become responsible for the payment of Hippard’s future liabilities to the company, if he himself would not do so, then Saylor should have had notice of its acceptance : Patterson v. Reed, 7 W. & S. 144; Emerson v. Graff, 5 Casey 358; Kellogg v. Stockton & Fuller, Id. 460; Kay v. Allen, 9 Barr 320; Unangst v. Hibler, 2 Casey 150.
    March 11th 1878.
   Mr. Justice Paxson

delivered the opinion of the court,

This record presents but a single question. John L. Saylor brought suit’against the Domestic Sewing Machine Company (defendants below) to recover the contract price for thirteen wagons which he alleges he constructed for them. The defendants claimed a set-off, and gave in evidence a joint and several contract in the form, of a bond, signed by Saylor with other parties, the condition of which was “that if the above bounden, Emanuel Plippard, his heirs, executors and administrators, shall well and truly pay or cause to be paid any and every indebtedness or liability now existing, or which may hereafter in any manner exist, or be incurred on the part of the said E. Hippard to the said Domestic Sewing Machine Company, whether such indebtedness or liability shall exist in the shape of book accounts, notes, renewals, or extensions of notes or accounts, acceptances, endorsements or otherwise. * * Then this obligation to be void ; but otherwise to remain in full force and virtue.” This instrument, although in form a bond, and designated as such in defendants’ notice of set-off, was not sealed, and. was objected to for that reason. The defendants then changed their pleas to meet the exigencies of their defence, and introduced evidence tending to show consideration. It was then properly admitted in evidence. The plaintiff denied that' Hippard was indebted to the company, and there was conflicting evidence upon this point. The learned judge practically withdrew the question of fact from the jury by instructing them that “the surety has a right to be satisfied that there is a debt owing before he can be called upon to pay. There must be a settlement and adjustment of accounts between Hippard and the defendants before Saylor can be held responsible, and you must be satisfied that there was a settlement of accounts and balance struck before you can give defendants a verdict.” We think this instruction was erroneous. It would undoubtedly have been more convenient for the purposes of the trial had there been a settlement of accounts between Hippard and the company and a balance struck. This, however, is but the argument ab inconvenienti, as such prior settlement is not required by any rule of law. It was not a question between partners where a balance can only be ascertained by a settlement or an action of account render The contract being several as well as joint the company could have sued Saylor upon it either with or without joining the other parties. That he was a surety can make no difference in this respect. Whether a surety can be proceeded against in the first instance depends to some extent upon the form of the obligation which he signs. If then the company could have sued Saylor and recovered for the indebtedness of Hippard, there seems no good reason why they may not avail themselves of the same cause of action by way of set-off. The practical difficulties upon the trial could be no greater than in the case of unliquidated damages for breach of contract, and it has been repeatedly held that such damages may be set off: Shaw v. Badger, 12 S. & R. 275; Steigleman v. Jeffries, 1 Id. 477; Hubler v. Tamney, 5 Watts 51; Nickle v. Baldwin, 4 W. & S. 290; Thomas v. Shoemaker, 6 Id. 179; Phillips v. Lawrence, Id. 152; Ellmaker v. Fire Ins. Co., Id. 439; Speers v. Sterrett, 5 Casey 192; Hunt v. Gilmore, 9 P. F. Smith 450; Halfpenny v. Bell, 1 Norris 128. Our Defalcation Act is very broad in its terms. It allows the defendant to give any “bond, bill, receipt, account or bargain in evidence.” But I do not propose to discuss this act at length. It has been in force since 1705, and ought by this time to be generally understood. Here, in answer to the suit, the defendants allege that the plaintiff is indebted to them upon this bond. That such indebtedness may be set off is too plain for argument.

Judgment reversed and a venire facias de novo awarded.


source: Caselaw Access Project

author: Chief Justice Agnew

license: Public Domain

text:
    Bagby et al. versus The Atlantic, Mississippi and Ohio Railroad Co., Defendant, and The Pennsylvania Railroad Co., Garnishees.
    1. Where a receiver has been appointed by the courts of another state, the courts of Pennsylvania, on the ground of the comity existing between the states, will recognise his appointment, provided his claims thereunder do not come into conflict with the rights of citizens of our own state.
    2. Where a receiver of a corporation has been appointed by a court of competent j urisdiction in another state, a creditor who resides in that state and is bound by the decree of its .court appointing said receiver, cannot, in an attachment execution, recover assets of the corporation in Pennsylvania, which the receiver claims.
    February 14th 1878.
    Before Agnew, O. J., Sharswood, Mercur, Gordon, Paxson and Trunkey, JJ. Woodward, J., absent.
    Error to the Court of Common Pleas, No. 3, of Philadelphia county: Of January Term 1878, No. 167.

      Foreign attachment, issued by Bagby & Rogers against the Atlantic, Mississippi and Ohio Railroad Company, defendants, and the Pennsylvania Railroad Company, garnishees. A case was stated for the opinion of the court, substantially as follows:—
    On June 5th 1876, a writ of foreign attachment issued, with an endorsed order to attach the goods, chattels, &c., of the defendant company, in the hands of the Philadelphia, Wilmington and Baltimore Railroad Company. Plaintiffs were residents and citizens of Virginia, and the defendant a corporation of that state, having its principal office at Petersburg, Virginia.
    Upon June 10th 1876, the endorsement on the writ of foreign attachment was amended so as to direct the sheriff to also attach the estate, rights, credits and effects of the defendant in the hands of the Pennsylvania Railroad Company; and upon June 12th 1876, the writ was served on said company. Judgment was afterwards duly entered against the defendant company for want of an affidavit of defence, and damages assessed at $855.07, as of October 7th 1876.
    A scire facias was issued against the Pennsylvania Railroad Company as garnishee, and a plea of nulla bona filed thereto.
    Upon March 13th 1876, a bill in equity was filed in the Circuit Court of the United States for the Eastern District of Virginia, at Richmond, Virginia, against the said Atlantic, Mississippi and Ohio Railroad Company, by trustees, praying for the foreclosure of a certain mortgage theretofore made by said railroad company to said trustees, and for a receiver of the mortgaged premises.
    Upon June 6th 1876, an order was made in said cause, appointing receivers, and their bond was filed upon June 12th 1876. The receivers took actual possession of the railroad upon and from June 13th 1876.
    The defendant company and the Pennsylvania Railroad Company had had business transactions together, arising out of the sales by each, upon account of the other, of through passenger tickets over the roads of the two companies and others connecting the same. A settlement of the accounts between said companies of this business showed that upon June 6th 1876, there was in the hands of the Pennsylvania Railroad Company a net balance of $1154.89, due by it to said Atlantic, Mississippi and Ohio Railroad Company.
    The receivers claimed from the Pennsylvania Railroad Company the above amount as part of the property of the Atlantic, Mississippi and Ohio Railroad Company, of which they are receivers.
    If the court, upon this statement, should be of the opinion that the plaintiffs are entitled to recover, judgment -was to be entered in their favor for $855.07, with interest from October 7th 1876, otherwise judgment to be entered for the garnishee.
    The court said: “ Under the facts stated in this record, we adhere to our opinion, expressed in 3 W. N. O. 457. This is, in our opinion, a case in which we ought not to exercise our discretion in favor of the attaching creditor. The general principles stated by the court, in Mulliken v. Aughinbaugh, 1 P. & W. 117, seem to direct our judgment to this conclusion.

      “ Judgment for garnishees.”
    This judgment was assigned for error by the plaintiffs.

      F. F. and F. O. Brewster, for plaintiffs in error.
    — The only question is : Can the receiver of a foreign corporation, appointed in a foreign state, make good his claim to a fund in this state, belonging to the corporation, which fund had been attached by a foreign creditor of the corporation defendant ?
    As the receiver was simply the officer of the court that appointed him, and had no extra-territorial jurisdiction, his claim to the fund in this state was not good, as against the rights of the attaching creditors: High on Receivers, sect. 47: Hoyt v. Thompson, 5 N. Y. 320; Willets v. Waite, 25 Id. 577; Taylor v. Columbian Ins. Co., 14 Allen 853; Hunt v. Columbian Ins. Co., 55 Maine 290; Booth v. Clark, 17 Howard 322.
    It is contended by the receiver that though he has no extra-territorial jurisdiction, yet inasmuch as the plaintiffs in error are residents of the state of Virginia, the court, upon considerations of comity, should recognise the receiver, no detriment being thereby caused to citizens of Pennsylvania. In answer to this, it is submitted that having sued for their claim in a court in this state, and having invoked the aid of its process, they should be considered quoad hoc citizens of this state, as against the receiver, who has no status whatever: Warren v. Union National Bank, 7 Phila. R. 156.

      Thomas Hart, Jr., and Ghapman Biddle, for defendant in error.
    —There is no question of the protection of Pennsylvania citizens involved. On the contrary, the case is the bare one of an attempt by a citizen of Virginia to reach, through the attachment laws of this state, a fund which had theretofore passed to the receivers of his debtor, appointed by a court of the same state as the creditor, and thus to obtain a preference over other creditors of the defendant. Mulliken v. Aughinbaugh, 1 P. & W. 117, is in point.
    The appointment of a receiver in one state is now recognised as a matter of comity in others, unless his claims come in conflict with those of citizens of the state in which the proceedings arise: High on Receivers, sect. 47; Runk v. St. John, 29 Barb. 585.
    Where the pursuing creditors are not citizens of the state whose process is invoked, the courts thereof will not sustain their claim in preference to that previously acquired by a receiver, trustee or assignee, obtaining title under the laws of another state: Bentley v. Whittemore, 4 C. E. Green 462; Burlock v. Taylor, 16 Pick. 335; Moore v. Bonnell, 2 Vroom 90; Sanderson v. Bradford, 10 N. H. 265.

      February 25th 1878.
   Chief Justice Agnew

delivered the opinion of the court,

It is true that the plaintiffs below had a right to sue in this state, just as one of our own citizens might, as we held in Morgan v. Neville, 24 P. F. Smith 52. But while suit for the debt may be maintained, it is not a legal consequence that the extra-territorial act of an appointment of a receiver in Virginia, must be rejected as a defence against these plaintiffs. Such an act, like an assignment by operation of extra-territorial law, rests upon the doctrine of comity, to which our state courts lend their aid when not in conflict with the rights of our own citizens.. But this comity should not be exercised where the Virginia court would not itself justify its enforcement. Now it is clear that as to these plaintiffs, who were citizens of Virginia, the appointment of a receiver ivas not extra-territorial, but was an act binding on them, which the Virginia court would enforce as to them, had their action been brought in Virginia. Then certainly they have no right after the appointment of a receiver, by a court within their own state, binding on them there, to attempt to avoid its effect by escaping from its jurisdiction and coming here to ask us to infringe the comity we owe to the acts of their own courts within their jurisdiction. Instead of comity, this would be unfriendliness, for they ask us to aid them in a violation of their own law. Our own citizens would be protected against the extra-territorial act in a proper case, because they are not bound by it, and our assistance given to the extraterritorial act, resting only in comity, would not be given at the expense of injustice to them. The case does not-fall within the first clause, second section, of the fourth article of the constitution of the United States, that “ the citizens of each state shall be entitled to all privileges and immunities of citizens of the several states.” As to a citizen of Virginia, the appointment of a receiver in Virginia, binding on him there, is not set aside by this clause of the constitution. The equitable transfer of the debt there is binding on him here.

Judgment affirmed.


text:
    Hunt’s Appeal. Jackson’s Estate.
    1. Co-habitation and reputation are not marriage, but only circumstances from which a marriage may be presumed, and this presumption may be rebutted and wholly disappears, in the face of proof that there has been no marriage in fact.

      ^ ^ re]at;on between a man and a woman, which was illicit at the commencement, is presumed to continue so until proof of change, and a marriage therefore will not be presumed, from co-habitation and reputation where the relation between the parties was of an illicit origin, in the absence of proof of a subsequent actual marriage. >
    February 14th 1878.
    Before Agnew, O. J., Sharswood, Mercur, Gordon, Paxson and Trunkey, JJ. Woodward, J., absent.

      Appeal from the Orphans’ Court of Philadelphia county: Of January Term 1876, No. 144.
    Appeal by Catharine Hunt, guardian of Leonora Jackson, minor child of James Jackson, deceased, from the decree of the court in the matter of the account of the administrator of said decedent.
    At the audit'of the estate before Hanna, J., Mary Jane Jackson claimed to be allowed $300, under the Act of 1851, and also one-third of the estate, as the widow of said decedent, who had died intestate. It was denied that she had ever been his wife. It appeared that decedent was married to the claimant in 1871, and cohabited with her until 1874, being generally reputed to be man and wife. At the same time he had a wife living, from whom he had been separated several years, and who had instituted proceedings in divorce against him, which was not obtained until December 1873. It Avas not shoAvn that the claimant had any knowledge of the first wife. After the divorce and up to the time of his death, the decedent continued to live with the claimant, but they Avere never actually married. In an opinion the auditing judge said:—
    “ Under these facts, notwithstanding the second marriage of decedent Avas illegal, yet, after the decree of divorce, he Avas at liberty to marry again ; and although no actual marriage again took place with her who now alleges herself to be his Avidow, yet the cohabitation and reputation of herself and decedent, from the date of the divorce to the day of his death, are sufficient in law from which to presume a marriage betAreen them, and entitle her to a share in his estate. The claim made by her must therefore be allowed; her claim to the $300 exemption being in time.”
    Mrs. Hunt filed exceptions to this adjudication Avhich were dismissed by the court (DAvight, J., dissenting), and the adjudicátion confirmed when she took this appeal.

      Q-eorge H. Van Zant and Elijah J. Fox, for appellant.
    — A connection once shown to be illicit is presumed to continue illicit: Cuningham v. Cuningham, 2 Dow. P. C. 482. Evidence that parties had the “habit and repute” of marriage are, when conjoined, not marriage, but simply evidence, from which a presumption of marriage, may arise : Hantz v. Sealy, 6 Binn. 409; Yardley’s Estate, 25 P. F. Smith 212. But this presumption may always be rebutted by evidence to shoAV a counter presumption : SenserAu Bower, 1 P. & W. 452; 2 Greenleaf on Evidence, §| 462-464. And a man having a wife in full life, as in this case, is utterly incapable of making a valid contract of marriage : Heffner v. Heffner, 11 Harris 104; Kenley v. Kenley, 2 Yeates 207.

      Albert S. L. Shields, for appellee.
    — Appellee’s share in the marriage was certainly innocent, and it is questionable if she could not rest here and assert her rights as the widow of the decedent: Physick’s Estate, 2 Brewst. 195. But her case is stronger ; for after the divorce of decedent from his first wife he became legally competent to contract marriage, and his treatment and introduction of her as his wife for a period of two months thereafter, was a sufficient marriage : Fenton v. Reed, 4 Johns. 52; Rose v. Clark, 8 Paige 574. A subsequent marriage may be inferred from acts of recognition, continued cohabitation, and general reputation, even' when the parties originally came together under a void marriage: Wilkinson v. Payne, 4 T. R. 468; In re Taylor, 9 Paige 611; Senser v. Bower, supra; Yardley’s Estate, supra. Two months of cohabitation after the divorce is not too short a time to warrant the presumption of a subsequent marriage. In Guardians v. Nathans, 2 Brewst. 148, the time was two months; in Wilkinson v. Payne, supra, three weeks. The burthen of proof to rebut such a presumption rests on those who dispute the marriage: Goodman v. Goodman, 28 L. J. Rep. 745; Doe v. Fleming, 4 Bing. 266.
    March 11th 1878.
   Mr. Justice Paxson

delivered the opinion of the court,

Mary Jane Jackson, the appellee, claimed $300 out of the balance in the hands of the accountant, under the Act of 1851, and also one-third of the estate as widow, the decedent having died intestate. Her claim was allowed by the Orphans’ Court; hence this appeal.

The facts have been clearly found by the learned judge of the Orphans’ Court. They are as follows: The decedent was married to Mary Jane Dongcake (alleged widow), July 23d 1871. At that time decedent had a wife living, from whom he had been separated for several years. After his second marriage, he and the said Mary Jane went to keeping house together, and lived and cohabited together as husband and wife until the death of the latter, February 16th 1874. They were known and reputed as man and wife among their mutual relatives, friends and neighbors. Two years or more before decedent’s death, his first wife commenced proceedings to obtain a divorce from him. It was during the pendency of these proceedings that he married the said Mary Jane Longcake. The decree in divorce was granted December 13th 1873, and the decedent died February 16th 1874. During the period intervening between the said decree and his death, he continued to reside with the said Mary Jane as his wife, but no actual marriage took place. From this state of facts the learned judge of the court below held that “the cohabitation and reputation of herself and decedent from the date of the divorce to the day of his death, are sufficient in law from which to presume a marriage between them, and entitle her to a share in his estate.” The presumption to which the learned judge refers is entirely demolished by his finding of facts. Cohabitation and reputation are not marriage: they are but circumstances from which a marriage may be presumed: Yardley’s Estate, 25 P. F. Smith 207. The presumption of marriage arising from such facts may always be rebutted, and wholly disappears in the face of proof that no marriage in fact had taken place. Again, the cohabitation was illicit at its commencement. It may not have been meretricious, so. far as the appellee is concerned. There is evidence to show that she was deceived, but it was clearly illegal. The general rule is, that, a relation shown to have been illicit at its commencement is presumed to continue so until proof of change. Such a relation raises no presumption of marriage. In the ease at bar the fact is found that the cohabitation was illicit at its commencement, and necessarily continued so down to the decree of divorce, and that there was not a marriage in fact between the date of the divorce and death of the decedent. This is conclusive against the appellee. She has failed to establish her claim as widow, and has of course no right io participate in the distribution of the decedent’s estate.

The decree is reversed, and it is now ordered and decreed that the balance in the hands of the accountant, $812.88, be paid to the guardian of Leonora Jackson; the costs of this appeal to be paid by the appellee.


text:
    Gould versus McKenna.
    1. "Where the owner of premises so constructs his roof that the rain-water collecting thereon flows against the wall of his neighbor, penetrating the same and causing damage, he cannot relieve himself of the responsibility for damage thus occasioned by showing that if the wall had been well built the water would not have entered. •"
    2. The contributory negligence which bars a recovery for an injury, is that which co-operates in causing the injufy; some concurring act or omission of the other party to produce the injury, not the loss merely, and without which the injury could not have happened.
    3. Negligence which has no operation in causing the injury, but which merely adds to the damage resulting, is no bar to a recovery, though it will detract from the damages, and the jury must, in the assessment of damages, properly distinguish between the amount of damage arising from each cause and give a verdict for the damage arising from the defendant’s negligence only.
    February 14th 1878.
    Before Agnew, C. J., Mercer, Gordon, Paxson and Trunkey, JJ. Sharswood and Woodward, JJ., absent.
    Error to the Court of Common Pleas, No. 4, of Philadelphia county: Of January Term 1876, No. 146.
    Action on the case for negligence, brought by Patrick E. Mc-Kenna, trading as Allen, Scott & Co., against John H. Gould, trading as Gould & Co.

      At the trial, before Elcock, J., it appeared that the plaintiff occupied a store on Second street, Philadelphia, adjoining one to the north, owned and occupied .by the defendant. McKenna’s building had a one-story back building, extending about one hundred feet to the rear, in which he kept his carpets, which were a part of his stock of goods. In 1871, Gould built a similar one-story hack building, running back the same distance, in which he used the plaintiff’s party-wall, and making his roof pitch southward or towards the plaintiff’s. At the end of this building was a stable, which forms the eastern boundary of this rear building, and rises about twenty feet above the roof of it. The Avails of the front building were also higher than the hack building, and the roof of the latter was therefore converted into a sort of tank, enclosed on all four sides, first, by the wall of plaintiff’s four-story building on the west; second, by the Avail of plaintiff’s four-story building on the north; third, by the stable to the east, and fourth, by the party-wall on the south, the battlement-wall of which rises about three and a, half feet from the lowest point of the roof of plaintiff’s rear building. Eor any accumulation of water upon the roof proceeding from a rain-fall, there was no possible escape, except either through the party-wall of defendant and plaintiff or a discharge-pipe, located at the southeast corner of said roof. The roof of plaintiff’s back building Avas about seventeen feet in width, and sloped southward towards the party-wall between defendant and plaintiff, at a grade of betAveen three-quarters of an inch or an inch to the foot. The roof was covered. Avith tin, which, at its junction with the battlement-wall, was turned up at right angles and along the battlement-wall as an apron or flushing, to the height of about twelve inches.
    On the 12th of August 1873, there Avas a very heavy rain-storm, and the water entered the plaintiff’s building and damaged his goods. The plaintiff claimed that the water had risen above the apron or flushing, and had run over and through it and entered through the party-wall.into the plaintiff’s store, causing the damage of which complaint was made.
    On the part of the defendant, it was contended that the water had entered the plaintiff’s building by reason of defects in the wall, and that if the plaintiff had not placed his goods against the wall they would not have been damaged.
    There was evidence, on behalf of the plaintiff, that the shelves on which the carpets were placed were about two inches from the party-wall, and that the water, trickling down the uprights, had occasioned the damage to the goods. There was also evidence that the goods of plaintiff had been once before injured by the rain in a similar way.
    The plaintiff submitted the following points, which the court affirmed:—
    3. That it was the duty of the defendant, the owner of premises adjoining those of the plaintiff, to prevent a concentration of rainwater upon his roof which might or could penetrate into plaintiff’s premises, and the failure so to do rendered_him liable.
    4. That it was incumbent on the defendants to provide that no greater injury or damage should be inflicted upon the plaintiff through the concentration or accumulation of rain-water upon defendant’s roof than if the said rain had fallen naturally upon his grounds, and that his failure so to do renders him liable.
    5. That if the defendant failed to provide a sufficient drainage for rain-water falling on his roof adjoining the plaintiff’s premises, he is guilty of negligence and therefore liable.
    The following, among other points, were submitted by defendant, to which'are subjoined the answers of the court:—
    1. If the jury find that the water flowed into plaintiff’s store through the wall above the apron or flushing of defendant’s roof, owing to the open, loose and dilapidated condition of that part of said wall, they must give a verdict for defendant.
    Ans. “ I affirm that, if the apron or flushing of defendant was constructed as a prudent man in view of all the circumstances would construct such an apron or flushing.”
    2. If they so find the verdict must be for defendant, even though the water rose on defendant’s roof above said apron or flushing owing to its inability to escape by the channél.
    Ans. “Refused.”
    3. The defendant was not obliged to repair or take down the party-wall above the apron or flushing of his roof, however dilapidated it may have been, or to apply to the building inspectors to have it removed, nor was he liable for any injury which might arise from the dilapidated character of the wall.
    Ans. “ That I affirm; but he was obliged to protect the wall from injury in consequence of water falling from his roof.”
    4. If the jury find that the roof on defendant’s store was constructed in such a manner as to drain and carry off without injury to his neighbors the water from all ordinary rains, and further find that the rain which caused this injury was a very extraordinary and unusual raiñ, they must find for the defendant, though they find that the injury arose in whole or in part from the backing up of the water on defendant’s roof above the- flushing by reason of its' inability to escape in the way provided for it.
    Ans. “ That I affirm ; if you find the flushing was constructed in such a manner as a prudent man would have constructed it.”
    In their general charge the court, inter alia, said
    “ The question, I think, practically narrows itself to a determination of the question, was the apron sufficiently high and sufficiently strong so that water could not flow through or over it ? If it was, then the defendant is not liable, for it malees no difference as to the size of the pipe which was connected with the roof for the water to escape ; or whether, in fact, there was any there or not, if the defendant protected this party-wall in a manner in which a prudent or cautious man would for the purpose.”
    The jury, after retiring, came bade into court and asked for instructions upon the following questions, to which are appended the answers of the court:—
    1. If part of the water which damaged plaintiff’s goods came from the top of the wall, can he recover ?
    Ans. “ The plaintiff cannot recover for any injury occasioned by water from the top of the wall.”

      2. If yes, ought not the amount of damages claimed be reduced proportionately as the goods have been damaged by the quantity of water passing through the top of the wall ? That is, if one-fourth, one-third, or one-half of the water that passed into plaintiff’s store, damaging his goods, came from the top of the wall, ought the award of damages not be one-fourth, one-third or one-half less in proportion ?
    Ans. “You are sworn to determine the case according to the evidence. You must determine how the damage was occasioned. If by water from the top' of the wall, plaintiff cannot recover. If the water came through the wall in consequence of the negligent or improper construction of defendant’s roof, the plaintiff is entitled to damages — the amount you must determine from the evidence. If you can, from the evidence, determine that the water came from both sources, then you may award damages in proportion to the quantity which you find flowed from the source of the negligence. This you must determine upon the evidence.”
    The verdict was for the plaintiff for $1019.25, and after judgment the defendant took this writ, assigning for error the answers to the foregoing points and the portion of the charge noted.

      John O. Grady and M Spencer Miller, for plaintiff in error.—
    The wall was open at the top and on both sides. It permitted not only the water from defendant’s roof but the rain to enter, both at the top and the sides. If it .had been well constructed, well pointed and tight, the water, if any, which rose on defendant’s roof above the flushing would probably have done no harm. The plaintiff knew of the danger, for the year before a similar, though not so serious a loss had been sustained, and yet he did not choose to take any precaution whatever to guard against it. This has always been held to be negligence : Penna. Railroad Co. v. Weber, 26 P. F. Smith 157; Penna. Railroad Co. v. Beale, 23 Id. 504. In refusing the second point the court in effect decided that if the water from defendant’s roof uniting with that which fell directly upon or against plaintiff’s wall, both together, through plaintiff’s negligence in regard to his wall, entered into his store, and through his negligence in the storage of his carpets, jointly injured them, then the defendant is still liable. How is the damage to be apportioned? There can be no contribution between wrongdoers. The plaintiff has done part of the damage which cannot be distinguished and cannot ask for contribution. It is impracticable for a court of law to apportion the damages: Railroad v. Norton, 12 Harris 465; Stiles v. Greesey, 21 P. F. Smith 439. How can the damage done by the accumulated water be distinguished from that done by the rain which fell directly against the wall and entered, and if the damage they respectively did cannot be apportioned, how can this action be maintained ?

      P. Puffy and John O’Byrne, for defendant in error.
    — It was the duty of the plaintiff to guard against such an accumulation of water upon his roof as might reach the top of the battlement-wall. It was possible to foresee that the reservoir, surrounded as it was by four brick walls, might easily, in the event of the discharge-pipe being clogged up, or inadequate in size for its purpose, be filled with water from a heavy rain, which might rise even as high as the top of the battlement-wall;
    If, therefore, the battlement-wall were in any sense defective or imperfect, it became more imperatively the duty of the plaintiff to protect McKenna’s store_-fi=onr"th'e'"possible filtration of water through the wall springing from its augmentation upon plaintiff’s roof. The tin apron of plaintiff should and ought to have been made to cover and protect^the..whole of the battlement-wall, and also ought to have Overlapped at least one-half of the top thereof. That apron, moreover, should have been itself water-tight.
    The co-operating negligence which deprives one party of any right of action against the other, is, where the act which produced the injury would not have occurred but for the combined negligence of both.
    When the effect of the negligence of one party is to produce injury to a certain extent in any event, even if the other party had been guilty of no negligence at all, then, though the negligence of the other party may have rendered the loss or injury greater than it would otherwise have been, still they are not the joint authors of all that has taken place, and it is possible to distinguish the amount of injury caused by the negligence of the one from the amount of injury caused by the negligence of the other. And in such a case the jury have a right to discriminate, and to hold a defendant responsible for damage arising from causes with which the plaintiff had no agency: Thomas v. Kenyon, 1 Daly 132; Bellows v. Sackett, 15 Barb. 96; Shearman and Redfield on Negligence, §§ 28, 29, 32; Phila. & Reading Railroad Co. v. Hendrickson, 31 P. F. Smith 182; Wharton on Negligence, §§ 131, 843.
    February 25th 1878.
   Chief Justice Agnew

delivered the opinion of the court,

As a whole, there was no error in the charge and answers to points. The instruction substantially was, that the defendant was liable for any insufficiency of the apron or flushing raised along the plaintiff’s wall to carry off the water sent down against it by the defendant’s roof. Having pitched his roof so as to carry the rainfall against and into the wall, it was his duty to raise the apron or flushing so high as effectually to protect the plaintiff’s store from being flooded by the water thus brought down. He had no right to carry the rain-fall on his premises into and upon the premises of the plaintiff. This was a wrongful act, which he could not justify by averring the openness of the 'wall of the plaintiff. But for the rain coming through the top of the wall, and not from the defendant’s roof, he was mot answerable. Any loss from that cause belonged to the. plaintiff. Nor was the defendant liable for the flow-age of an extraordinary rain, such as no experience or prudent forethought could have expected or guarded against, provided he had erected a sufficient apron or barrier against such as might be expected: Railroad Co. v. Gilliland, 6 P. F. Smith 445.

Coming to the question of contributory negligence, it is equally plain that the openness of the wall above the apron had nothing to do with the defendant’s illegal act in casting the flowage of his roof against and into the wall. The wall was there before, and when the defendant pitched his roof against it his duty required him to protect the plaintiff against an act wholly his own. If the apron or barrier were insufficient to prevent the flow of the water through the wall into the plaintiff’s store, the injury was one for which the defendant was alone responsible. It is true, the openness of the wall above an insufficient apron would increase the damage done to the goods in the store, but it did not cause the roof to be built or the pitch to be given to it, which threw the rainfall from the roof into the wall, and it did not, therefore, contribute to the act which produced the injury. But for the water falling through the wall above, and not brought down by the defendant’s roof, the plaintiff alone was answerable, for the defendant had no part in causing it to flow there. Each cause of injury was independent of the other. Hence the instruction was proper to allow no damages for the water running into the store through the wall above, provided the apron or flushing was sufficient. True, it is difficult to apportion the damages arising from the insufficiency of the apron; but this cannot exempt the defendant from a positive injury done by casting the flowage of his roof into his neighbor’s store. The rain-fall through the wall above a sufficient apron or barrier did not contribute to produce this injury, though it did add to the damage sustained by the plaintiff’s goods. Hence it was the duty of the jury to apportion the loss according to the actual injury of the defendant, by separating it, as well as they could upon the evidence,, from the loss arising from the openness of the wall above a sufficient apron. The evidence is a matter for the parties to consider and to produce. The contributory negligence which prevents recovery for an injury, is that which co-operates in causing the injury — some act or omission concurring with the act or omission of the other party to produce the injury (not the loss merely), and without which the injury would not have happened. A negligence which has no operation in causing the injury, but which merely adds to the damage resulting, is no bar to the action, though it will detract from the damages as a whole. Now, it is clear the open wall of the plaintiff bore no part in causing the defendant to build his roof and give it the pitch against the wall. The building of the roof and its pitch were the sole act of the defendant, and caused the injury to the extent of the flow of water from the roof. It was against this he was bound to protect the plaintiff. The difficulty of separating the damage from each independent cause may be great, but it does not change the nature of the tortious act of the defendant or relieve him from liability : Little Schuylkill Nav. Co. v. Richards’s Adm’r, 7 P. F. Smith 146-7; Seely v. Alden, 11 Id. 302. The qualifications complained of in the answers to the points were necessary to keep before the minds of the jurors the liability of the defendant for the insufficiency of the apron of barrier put up by him along the wall.

Upon the whole, we discover no error to correct.

Judgment affirmed.


author: Mr. Justice Sharswood

text:
    Cake versus First National Bank of Lebanon.
    1. Where a bank receives and retains notes offered in renewal of other overdue notes held by it, in an action to recover on the original notes, it is error to withhold from the jury the question whether the notes thus received were not accepted as payment or in renewal thereof.
    2. Where a national bank has charged usurious interest on a series of renewal notes, the taint of usury follows through the whole line, and the bank forfeits all the interest paid on the whole series.
    3. llart v. Boiler, 15 S. & R. 162; Overholt v. National Bank, 1 Norris 490, followed.
    February 15th 1878.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Trunkey, JJ. Woodward, J., absent.
    Error to the Court of Common Pleas, No. 4, of Philadelphia county: Of January Term 1876, No. 164.
    Assumpsit by the First National Bank of Lebanon against Henry L. Cake, to recover from the defendant the amount of a draft, dated December 27th 1872, for $3150, at four months, 'and a note, dated May 1st 1873, for $650, at two months, on which defendant was an accommodation' endorser. These instruments had been discounted by the plaintiffs for Simon J. Stine, in renewal of similar paper, the original debt having been created at least two years prior to the date of the draft, and renewals having taken place every few 'months ; interest at the rate of twelve per cent, per annum having been paid by Stine during the whole time. About the dates at which the respective instruments in suit fell due Cake endorsed other notes of Stine to take up those in suit, and Stine sent the new notes to the bank for that purpose, the note to renew the draft being sent after protest of the draft. The bank made no response to the request to renew the credit, though it had been common for them' to renew protested paper for Stine, but they retained the notes. Calce always thought the instruments in suit had been renewed by the new notes until this suit was brought. Stine was insolvent at the time of suit brought; but when the instruments sued on were protested, and the note renewing the draft fell due, he had enough property to save Cake harmless. The bank’s cashier told Stine, some time after the receipt of the new notes (Stine said after the note renewing the draft fell due), that they would not renew the instruments in suit, hut they did not return the notes sent them for the purpose of effecting a renewal.
    At the trial, before Thayer, P. J., the foregoing facts were disclosed, and the defendants submitted, among others, the following points, all of which the court refused :—
    3.' If the jury believe that the note and draft in suit were paid by other notes, the plaintiff cannot recover.
    5. If the jury believe that the defendant had reasonable cause from the conduct of plaintiff’s officers, to believe that the draft and note in suit had been renewed by other notes, and that in consequence of such belief the defendant had lost his opportunity of recovering the amount of the note and draft in suit against Simon J. Stine, the principal debtor, or of securing himself against loss thereon, the plaintiffs cannot recover.
    8. If the jury believe that the plaintiff knowingly received, reserved, or charged a rate of interest greater than 6 per cent, per annum on the draft and note in suit, or either of them, or on any paper, for which the principal debtor, Simon J. Stine, was liable, and of which the draft and note in suit are renewals, either immediately or remotely, the plaintiffs can only recover the sum or sums loaned at the date of the original usurious charges, less the whole amount of interest paid on and after the last-mentioned date or dates, respectively.
    In their general charge the court said, [“ It was Stine’s duty to ascertain whether the notes of April and July 1873 were accepted by the hank in renewal of the draft and note in suit or not, and the defendant is in no better situation. There is no evidence that the bank agreed to accept the notes in payment or renewal of the note and draft.]
    “But the Act of Congress provides that the taking of illegal interest by a national hank shall work a forfeiture of all the interest they would otherwise be entitled to. The plaintiffs, therefore, are not entitled to recover any interest at all, if you find that more than six per cent, was charged on the note and drafts in suits. [But the Act of Congress only applies to the instruments in suit, and not to prior transactions between the parties, although the instruments in suit may have grown out of them, and have been in whole or in part renewals of them. Mr. Stine, however, would have a defence to the extent of the usurious interest charged, not only on these notes, but other transactions out of which these have come.] Whatever he has paid as usury goes to reduce the amount of the principal, .and the endorser has the same defence, to the extent of the usurious interest, as the maker would have.”
    The verdict was for the plaintiff for the amount of the draft and note without interest.
    Defendant took this writ and assigned for error 1, 2 and 4, the refusal of his 3d, 5th and 8th points; and 3 and 5, the portions of the charge embraced in brackets.

      Sharp §■ Alleman, for plaintiff in error.
    — In view of the facts, and the amount of dealing between the bank and Stine, the former having frequently renewed paper after protest, it was a fair inference that the proposition to renew had been accepted. Their silence and the retention of the notes justified that conclusion. • And if it did, the question of renewal should have been submitted to the jury, and the court erred in taking it from them : Slaymaker v. Gundacker’s Exec., 10 S. & R. 75; Hart v. Boller, 15 Id. 162. As it was the act of the bank, therefore, that has deprived Cake of the means of saving himself from loss, they are estopped from recovering against him: Smith v. McNeal, 18 P. F. Smith 167; Commonwealth v. Moltz, 10 Barr 530; Chapman v. Chapman, 9 P. F. Smith 214; Beaupland v. McKeen, 4 Casey 124. The question of the amount of interest to be deducted is ruled by Overholt v. National Bank of Mount Pleasant, 1 Norris 490.

      A. L. Smith, for defendant in error.
    — The endorser cannot make the defence of the maker on the ground of usury.
    [Mercur., J. — The rule is that he can make any defence the maker could.]
    The facts of this case are plainly distinguishable from Overholt v. Bank, supra.

    February 25th 1878.
   Mr. Justice Sharswood

delivered the opinion of the court,

We think the first, third, fourth and fifth assignments of error must be sustained, but not the second.

The defendant below was accommodation endorser for Stine on two notes, which had been discounted by the bank, and being unpaid at maturity were duly protested. Stine procured Cake to endorse renewal notes and sent them to the bank, who retained them, until at least after one of them had fallen due, and then informed Stine that they had not accepted them. No notice of non-payment was given to Cake on these notes. This suit was instituted on the first notes. It is the very case of Hart v. Boller, 15 S. & R. 162, in which this court held that it was error to take from the jury the question whether the renewal notes were accepted in payment.

We think, too, that Overholt v. The National Bank of Mount Pleasant, 1 Norris 490, is directly in point on the question raised as to the usurious interest received by the bank. It was there decided that where there has been a series of renewal notes given for the continuation of the same original loan, the taint of usury in the first transaction follows down the descent through the whole line, and when, therefore, a national bank sues to recover its debt on the last of the series of renewal notes, the borrower is entitled to credit for all the interest he has paid from the beginning on the loan, and not merely to' the excess above the lawful rate.

Judgment reversed and venire facias de novo awarded.


author: Pee Curiam.

text:
    Donohugh’s Appeal. Donohugh versus The Library Company of Philadelphia.
    1. A purely public charity within the meaning of art. 9, sect. 1, of the constitution, which provides that the legislature may exempt from taxation, ‘‘institutions of purely public charity,” is not necessarily one solely controlled and administered by the state, but extends to private institutions for purposes of purely public charity and not administered for private gain.
    2. The Library Company of Philadelphia permits the use of its library: 1. By all persons within the library building, free of charge or fee pf any kind ; 2. By all persons who desire to take out books for a small 'hire and leave a deposit as security therefor; 3. By members who pay an annual fee for the privilege of taking oht books. These members have the further privilege of voting for the managers, and are nominally the owners of the library. No dividends are paid, but the entire income is dedicated to the expenses and purchase of books: Held, that such an institution is a purely public charity within the meaning of the constitution.
    3. The essential features of a public use are, that it is not confined to privileged individuals, but is open to the indefinite public. It is this indefinite or unrestricted quality that gives it its public character.
    4. The Act of May 14th 1874, providing that “ all hospitals, universities, * * * and institutions of learning, benevolence or charity, with the grounds thereto annexed, and necessary for the occupancy and enjoyment of the same, founded, endowed or maintained by public or private charity, shall be exempt from taxation,” is constitutional, and The Library Company of Philadelphia is clearly within the exemption therein provided.
    February 18th 1878.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Trunkey, JJ. Woodward, J., absent.
    Appeal from the Court of Common Pleas, No. 2, of Philadelphia county: Of January Term 1878, No. 136.

      This was a hill in equity, filed by The Library Company of Philadelphia, against William J. Donohugh, Collector of Delinquent Taxes of the city of Philadelphia, for an injunction to restrain defendant from proceeding to levy and collect an amount equal to the legal tax rate for the year 1876, on the library and library building of the complainant.
    The bill set forth that the corporation complainant was founded in 1731, by Benjamin Franklin, James Logan and others, as an institution for the advancement of learning and the more useful dissemination of knowledge; that, in 1742, John, Thomas and Richard Penn, proprietaries of Pennsylvania, by letters-patent, created the company complainant a corporation; that complainant is a trustee under the will of James Logan of certain real estate and a collection of books known as the “ Loganian Librarythat this collection of books exceeds ten thousand volumes, and is one of the most valuable of the kind in the United States, and is absolutely free to the public; that additions have also been made to the library of complainant by its association with other library companies, and by numerous gifts and bequests of books from time to time, so that the collection therein now exceeds 100,000 volumes; that the corporation is composed of members, and is maintained by their annual contributions, and from the income derived from such property as has been given to it, and from fees paid for the use of the books from persons not members; that all the profits and income of the corporation,' after defraying the necessary expenses of maintenance, are applied to the purchase of books; that the institution is managed by twelve directors, annually chosen by the members, who receive no compensation for their services; that the use of the books is given, 1. Without chai’ge or compensation to all persons using them within the library building; 2. To all members, with certain limitations as' to the number of volumes that may at any time be taken for use without the building; 3. To all persons, for a small. compensation, who wish to use the books without the building, and give security for their return; that the original purpose for which the corporation was created was the collection and use of books by the members at their homes, as a circulating library; that it was the first of that kind in this country, and has ever since preserved its character; that the profits arising from subscriptions and other sources are devoted exclusively to the expense'of the library and to its increase, and are not employed for the pecuniary use or benefit of the members ; that complainant is a corporation for charitable and literary uses, and from the first organization of the library to the present time has not been considered a proper subject of taxation, apd that its building, which is used exclusively for library purposes, has been specially exempted by the Board of Revision of Taxes, from whose decision no appeal was taken, and that it is therefore conclusive.

      The bill then prayed that it may be declared that the complainant is a purely public charity, as well as an institution of learning, benevolence or charity; or, in the alternative, that it be decreed that the exemption as aforesaid declared by the Board of Revision is binding and conclusive upon the defendant; and for an injunction.
    The affidavit of Mr. Lloyd P. Smith, librarian, on behalf of plaintiff, repeated the allegations of the bill. There was annexed to it a copy of the memorial of the Library Company to the Board of Revision of Taxes, upon which they rested their decision exempting the library building.
    There was an affidavit by the defendant of the properties which, in his opinion, are to be classed as institutions of purely public charity, and therefore exempt.
    • There was also a letter by the late city solicitor to the counsel for plaintiff, and the reply to it, and a copy of the rules of the library, which, by agreement, were treated as affidavits. . They show the present number of shares to be about 960, which cost originally $40 each. The market value is less, being from $25 upwards. Transfers are subject to the approval of the directors. The annual subscription is $8, if paid promptly, producing annually $7800.
    The rules of the library were also in evidence, showing the terms on which the books can be used;
    No answer wás filed by the defendant.
    The court,- Mitchell and Fell,. JJ., awarded the injunction. H'are, P. J., who is a director in the library, did not sit in the case. In the opinion of the court, Mitchell, J., said:—
    “Article 9, section 1, of the new constitution of Pennsylvania, declares: ‘ All taxes shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax, and shall be levied and- collected under general laws; but the General Assembly may, by general laws, exempt from taxation public property used for public purposes, actual places of religious worship, places of burial not used or held for private or corporate profit, and institutions of purely public charity.’
    “The Act of May 14th 1874, Pamph. L. 158, passed to carry into effect this constitutional provision, provides that ‘ all churches, meeting-houses, or other regular places of stated worship, with the grounds thereto annexed, necessary for the occupancy and enjoyment of the same ; all burial-grounds not used or held for private or corporate profit; all hospitals, universities, colleges, seminaries, academies, associations, and institutions of learning, benevolence or charity, with the grounds thereto annexed, and necessary for the occupancy and enjoyment of the same, founded, endowed, and maintained by public or private charity,’ together with public school-houses, court-houses, jails, &c., are hereby exempted from all and every county, city, borough, road, and school tax, with a proviso that the exemption shall not extend to property not in actual use for the purposes specified,'and from which any income or revenue is derived.
    “ This is the legislation, constitutional and statutory, by which this case must be decided. The constitution does not, of itself, exempt any property; it merely permits the legislature to do so within certain limits. The first question, therefore, is whether the complainant’s case is within the Act of 18-74, and this we think so clear that it may be considered and dismissed briefly. The complainant is an ‘association or institution of learning.’ The educational influence of great libraries has been recognised by all civilized people in all ages. They have been the refuge and preservers of knowledge in the darkest times of ignorance and superstition; the source and’rallying point of awakened interest in philosophy and science, wherever the human mind has aroused itself to a new search for intellectual light; and the glory and pride of nations, in exact proportion as they have attained a higher plane of enlightened and progressive civilization. It is the concurrent and universal opinion of scholars that no single event in recorded history has been so great a misfortune to the interests of pure learning as the destruction of the Alexandrine Library.
    “The complainant was founded in 1731, by Benjamin Franklin, James Logan, and others, not only as an institution of learning, but undoubtedly as a charity, within- the long-settled and clearly-defined legal meaning of that term. In 1742, it was incorporated by letters-patent from the proprietaries of Pennsylvania, who recited in their patent that the founders had, ‘at a great expense, purchased a large and valuable collection of useful books, in order to erect a library for the advancement of knowledge and literature in the city of Philadelphia.’ This library subsequently received the accession of the library of James Logan, in its time, and for many years afterwards, the most valuable collection of books in’ America, and has, from time to time, been added to and endowed by gifts, bequests, and accumulations from various sources, including subscriptions and annual payments by members of the corporation. We do not think it admits of doubt that it is not only an institution of learning, but that it is also founded, endowed, and maintained by charity, within the meaning of the Act of 1874.
    “ But there remains the further and more important question, whether the Act of 1874 is constitutional. It is conceded that the legislature cannot go outside of the class of cases in which the constitution permits exemption from taxation, but it is to be remembered that the provision of the constitution is not a grant of power to the legislature, which belongs elsewhere, and is therefore to be strictly construed as in derogation of the people’s right. On the contrary, it is a restriction upon a legislative power which -would otherwise be unlimited and unquestionable. It is a tying up of the legislative hand, and, therefore, to be. construed in a liberal spirit to remedy the mischief at which it was aimed, and not further unnecessarily to fetter the proper governmental powers of the people’s representatives.
    “ The power of a court to set aside the legislative will is unknown, except in American jurisprudence. . The authority of an Act of Parliament is supreme and unquestionable in- the country from which we derive our laws and the fundamental principles of our political liberty, and in the early days of the republic, it was not without grave doubts and serious opposition, that the judicial power was carried to this extent even here. And though it is now firmly settled that the courts are the ultimate interpreters of the constitution, and that all acts or legislation which are forbidden by the constitution are to be declared void, yet it is equally well settled that this power can only be exercised where there is a clear and undoubted infringement of the constitution. In all cases the presumption is in favor of the validity of the legislative act, and where there is room for doubt, this presumption must prevail. Especially is great respect due to the legislative construction of a constitutional provision where, as in the present case, it is a question, not of private right, but of public policy. For the preservation of individual rights, whether as between man and man, or between the citizens and the public, or the government, the courts are the natural guardians, with special advantages of training and modes of procedure for the attainment of justice, but for the preservation, as well as for the determination in the first instance, of matters of state policy, the proper tribunal is the legislature; and its construction of a constitutional mandate upon this subject, must be held binding and conclusive until shown clearly and beyond all question, to be in violation of the intention of the people in their sovereign expression of their will through the constitution.
    “These principles are trite; but the haste and crudity of.much recent legislation has required such frequent exercise of the judicial power to keep it within constitutional bounds, that the delicacy and exceptional nature of the power is too commonly lost sight of, and I have thought it proper to recall its true limits, familiar as they are, because of the tone of argument for the defendant in the present case, which assumes that as exemption from taxation is a special privilege, it must be clearly shown, and that it is, therefore, sufScient for the defendant to show a doubt to defeat the complainant’s case. Such certainly is the rule in determining whether or not exemption' has been granted to any particular claimant by an Act of Assembly. The sovereign power of taxation is never to be taken away except by a clear grant. But where the legislature has clearly intended the exemption, the validity of that act must be assumed like all others, until clearly shown to be beyond the legislative authority.

      “Bearing these principles in mind, let us proceed to the examination of the section of the constitution upon this subject. As already-said, it exempts nothing, but it authorizes the legislature, by general laws, to exempt, speaking generally: First, public property; second, actual places of religious worship; third, burial-places not for profit; and fourth, ‘institutions of purely public charity.’ The last is the only class with which we are directly concerned, though, as we shall see, some light can be had from the language used in describing the others.
    “Looking at this provision in the light of Lord Coke’s rules for the interpretation of statutes — what was the old law, what was the mischief in it which was meant to be remedied, and what was the remedy prescribed — we can have little doubt that this clause was intended to abolish favoritism in the form of special legislative grants of exemption from taxation. The learned counsel for the complainant have collected together a list of the one hundred and thirty acts of the state’legislature, passed between 1850 and 1873, exempting private or corporate property from taxation, and they have been summarized as follows :—
    1. Institutions of public benevolence for the poor, . . 20
    2. Hospitals, ....... .16
    3. Literary, scientific and educational institutions, . . 19
    4. Religious — churches and parsonages, . . ... 32
    5. Cemeteries or burial-places, . ■ . . . .15
    6. Military institutions, ’ . . . .6
    7. Institutions of private benevolence, ... .13
    8. Miscellaneous and doubtful, .... .9
    Total, ........ . 130
    “ Some of'these -were, at best, only private charities, and some of them, notably in the fifth class — cemeteries—were not charities at all, but mere trading corporations for private and individual profit. The large majority, however, were true charities, both in the legal and popular sense, and were worthy objects of legislative aid; but it was felt to be a hardship that that aid should be rendered as a matter of individual favoritism granted to one and withheld from another, as the views of successive legislatures might be more or less liberal on the subject. To remedy this evil, the new constitution provided, first and chiefly, that all exemptions from taxation should be by general laws; and secondly, that those laws should include only the classes of property named. Bearing in mind that institutions of public benevolence for the poor, hospitals, literary, scientific and educational institutions, and most of the military institutions in class 6 above (being like the Lincoln Institute and Soldiers’ Orphan Schools), are all included under the general class of public charities, it is plain that, tried even by.the standard of the present constitution, the long list of exemptions in the one hundred and thirty acts referred to would still he valid, except so for as they include church property not used for public worship, cemeteries for private profit, and institutions of private benevolence. This comparison of the legislation of the last quarter of a century on the subject, with the legislation still permitted under the present constitution, demonstrates clearly that the primary intent of this constitutional provision, as of so many others in the same instrument, was not so much to limit the scope of exemptions to charities as to destroy the obnoxious feature of favoritism by special legislation ; the key-note to the whole clause is in the permission to exempt only by general laws.
    “ But' though this Avas certainly the main purpose, it is also equally clear that the provision does go a step farther, and put a limit upon the legislative power to exempt which Avas before unlimited. It remains, therefore, still to be considered Avhether the legislature, in extending the exemption to institutions of learning, such as the complainant, has transgressed the limits laid down by the words ‘ institutions of purely public charity.’
    “ That the complainant is a charity in the legal sense of the word does not admit of question. It is equally clear that it is also a charity in the somewhat narrower and more popular sense in which we must interpret the words of a popular instrument like the constitution. The commonest and most familiar; meaning of charity is almsgiving, but that narrow definition is not the primary or most important one given in the dictionaries or sanctioned by the usage of English-speaking people. The moment the word is used in connection with the present subject-matter of charitable gifts or charitable institutions, the popular as -well as legal mind' takes in at once its wider scope of good-will, benevolence, desire to add to the happiness or improvement of our fellow-beings. It is in this sense that, not to mention the numerous other illustrations, our own local gifts of Elliott Oresson, for the planting of shade trees in the streets of Philadelphia (Cresson’s Appeal, 6 Casey 437), and a gift to a volunteer fire company for the protection of the property of the citizens (Thomas v. Ellmaker, 1 Pars. 98), have been recognised as charities, both in the legal and in the popular estimation.
    “ But is the complainant a public charity ? To answer this question Ave must look to the facts of the case.
    “ By the original rules of Franklin and the other founders, the librarian was.required to permit ‘ any civil gentleman to peruse the books of the library in the library-room,’ and in the same spirit the charter, which is the fundamental law of the corporation, and the by-laws made under it, permit the use of the library: 1. By all persons Avithin the library building free of charge or fee of any kind. 2. By all persons who desire to take out books, and for that privilege pay a small hire, and leave a deposit as security for the return of the books. 3. By members or commutors, who pay an annual sum instead of a separate hire for each time of taking out a book.
    “ The essential feature of a public use is that it is not confined to privileged individuals, but is open to the indefinite public. It is this indefinite or unrestricted quality that gives it its public character. The smallest street in the smallest village is a public highway of the Commonwealth, and 'none the less so because a vast majority of the citizens will certainly never derive any benefit from its use. It is enough that they may do so if they choose. So there is no charity conceivable which will not, in its practical operation, exclude a large part of mankind, and there are few which do not do so in express terms, or by the restrictive force of the description of the persons for whose benefit they are intended. Thus, Girard College excludes, by a single word, half the public, by requiring that only male children shall be received; the great Pennsylvania Hospital closes its gates'to all but recent injuries, yet no one. questions that they are public charities in the widest and most exacting sense.

      “ Tried by this standard, it would seem clear that the Philadelphia Library is public so far at least as regards the use of the books within the building; that is free to all alike without charge. Is its public character destroyed by any special privileges to members or other individuals? -We cannot see that it is. Some system of government, some regulations of administration, are necessary in all large bodies; provided they be reasonable and not repugnant to the general purpose, they are valid and do not affect the character of the institution. The general privilege of reading the books within the building, and under the supervision of the librarian, being conceded freely to all, the further privilege is sought of taking books away to be read at home, and this we find is also conceded'to all persons alike, on the condition that a deposit shall be made of the value of the book to insure its return, and a sum paid for its hire or loan. A step farther brings us to the third and last privilege, that of members, who, instead of paying the hire of each book from time to time, as they take it out, pay a single annual sum as an equivalent. The principle of commutation is familiar. It is as old as the history of tithings in England, as universal as the convenience and the necessities of business everywhere. The law prohibits a common carrier from discriminating between persons; it requires him to carry all men the same journey for the same price; yet there is probably no railroad in the country that does not issue season or mileage tickets, or commutation in some form or other, to its local customers, and this has never been held to impair or infringe upon its public character as a common carrier. Such regulations, within reasonable limits, are mere administrative details, necessary in all but the most insignificant business, and not in any way affecting the general character of the institution.
    “ One other privilege of the members, besides this commutation of book hires, may also be included in the same class of administrative details — the privilege of voting for the managers who conduct the affairs of the library. Some form of government is necessary. The managers are trustees, and some mode must be' provided for their appointment. The particular mode selected is a matter for the founders or the state in granting a charter; but having been adopted, it does not in any way affect the public character of the corporation.
    “Next, and last, we have to consider the force to be given to the word ‘purely’ in the constitutional phrase, ‘purely public charity.’ In this connection, and.in its ordinary sense, the word' purely means completely, entirely, unqualifiedly, and this -is the meaning we must presume the people to have intended in adopting it in their constitution. Plainly, then the charities authorized to be exempted are those that are completely and entirely public. The phrase is intended to exclude those charities which are private or only quasi public, such as many religious aid societies, and also those Avhich, though public to some extent or for some purposes, have, like Masonic lodges and similar charities, some mixture of private with their public character. The true test is to be found in the objects of the institution. Are they entirely for the accomplishment of the public purpose, or have, they some intermixture of private or individual gain? We get a clear and strong light on this subject from the words of the same clause of the constitution descriptive of burial places which may be exempted, to wit, those ‘not used or held for private or corporate profit.’ Such places .are unquestionably public charities, and the specification of them might have been omitted without impairing the force of the provision. But, as we have seen, the exemption of cemeteries had been recently abused by including some that were wholly for private profit, and the constitution was made to emphasize its prohibition of such acts by specifically naming those burial-places which alone might be exempted. Having done this, it passed on to name concisely and collectively all .other institutions of purely public charity. The phrase might have been expressed, ‘places of burial and other institutions of public charity, not for private or corporate profit.’ The language used, taken as a consistent and consecutive whole, shows that this is its plain meaning.
    “ Is the complainant within this description ?
    “ The library is a trust, and while it is the property of the corporation, and therefore in a certain sense of the corporate stockholders, yet it is not their property in any full, legal or commercial sense. They cannot sell it and divide the proceeds among themselves as individuals — that would be a violation of the trust, which a court of equity would be bound at once to restrain. Being then a trust, its purpose and scope must be looked for in the grant. It is not a question of how the revenue is derived, but to what purpose and with what intent is it devoted. The purpose of this trust is clearly set forth in the charter; it is ‘to'erect a library for the advancement of knowledge and literature in the city of Philadelphia,’ and we fail to discover in it any taint of private profit.
    “ I have already discussed the members’ privilege of commutation by annual payment for the hire of books, and it is said in the charter that this payment shall be ‘ for the increase and preservation of said library.’ I have endeavored to show that this privilege, almost the only one in which any distinction is made between the members and the general public, is not an undue privilege or justly obnoxious to the charge of being a private profit. But even this privilege is a regulation, Hot a part of the fundamental law of the corporation; and if it were held to be an undue privilege, repugnant to the public character of the charity, the result would be, not that the charity would become less purely public, but that the privilege would be void.
    “ I have not thought it necessary to notice in detail the authorities cited by the learned counsel on either side. Some of them are very close and decisive upon the points made in the case; but the subject is extensive, and this opinion has already reached a very great length, and I have therefore preferred to rest the case upon .general principles, which I believe to be unquestionable.
    “ It results from the foregoing that we hold that the complainant is exempted from taxation, as an institution of learning, by the Act of May 14th 1874, and that as to such exemption the act is within the terms of the constitution, and is valid and binding upon the taxing power of the city of Philadelphia.
    . “ The injunction prayed for is awarded.”
    From this decree the defendant appealed.

      J. Howard G-endeTl, Assistant City Solicitor, and Wm. Nelson West, City Solicitor, for appellant.
    — The duties of the Board of Revision are confined to mere valuations, and have no relation. whatever to questions of liability to or exemption from taxation: Act of March 14th 1865, Pamph. L. 320, Purd. Dig. 1375, p/l. 123; Act of February 2d 1867, Pamph. L. 137, Purd. Dig. 1378, pi. 137; Act of April 12th 1873, Pamph. L. 715, Purd. Dig. 1821, pl. 4. All the acts of exemption were repealed by the new constitution : Londonderry v. Berger, 7 Legal Gazette 231. The Act of 1874 is an enabling act, and to be construed strictly against exemption: Academy of Fine Arts v: Philadelphia, 10 Harris 496. That act was intended to limit exemptions to charities of a “ purely public character.” This library is not a charity within the meaning of the constitution and the act, because it is endowed by the sale of stock and maintained by annual subscriptions, and has a profit or revenue derived from the hire of books. And as the members have privileges not enjoyed by the general public, the institution is to that extent for private advantage. It is not exclusively for the public benefit: School Directors of Upper Darby v. Directors of St. Stephens’ Church, 34 Leg. Int. 291; Swift v. Easton Beneficial Society, 23 P. F. Smith 362; Academy of Fine Arts v. Philadelphia, supra; St. Mary’s College v. Crowe, 10 Kansas 442; Cincinnati College v. The State, 19 Ohio 110; Carne v. Long, 2 DeGex, Fisher & Jones 75. There is a distinction between a charitable gift and a charitable institution. It does not make this library a charity because it is the trustee of certain books or libraries, given it by will or otherwise. The public must have the same use as the stockholders. It cannot confer special benefits on members and claim exemption. The corporation derives a profit from the hire of its books, and it is not material that there is no cash dividend. The stock is also bought subject to the approval of the board of directors, and under such a Regulation every one could not become a member, for if a member object, how could, the stock be transferred ? If the decision of the court below is sustained, there are a number of institutions which will claim exemption.

      Wm. Henry Rawle and R. O. MeMurtrie, for appellee.
    — This library is a “purely public charity,” within the meaning of the constitution. Charity, in its legal sense, includes not only gifts for the poor, but endowments for the advancement of learning or for any useful and public purpose which lessens the burthen of government : Vidal v. Girard’s Ex’rs, 2 Howard 128; President of the United States v. Drummond, 7 H. L. C. 141 n.; Trustees of the British Museum v. White, 2 Sim. & Stu. 595; Jones v. Williams, 2 Amb. 652; Jackson v. Phillips, 14 Allen 539; American Academy of Fine Arts and Sciences v. Harvard College, 12, Gray 583; Gerke v. Purcell, 25 Ohio St. 229. Gifts to establish libraries are clearly such: Drury v. Inhabitants of Natick, 10 Allen 169. The appellee is an institute of learning within the Act of 1874. It is true statutes of exemption are to be strictly construed, hut this rule does not apply where a statute merely carries put a provision of the constitution and does not grant anything not before possessed by the citizen. It is the duty of the state to provide for her poor, to encourage religion, and educate the children within her borders, and if any body of citizens contribute to these objects and assume the place of the state they are entitled to be subrogated to her rights so far as taxation is concerned. The test of a public charity is whether it is, to any reasonable extent, open to the indefinite public. Location and means of support and the exclusion of a part of the public are immaterial: Drury v. Natick, supra; Thomas v. Ellmaker, 1 Pars. Eq. Cas. 98; Attorney-General v. Heelis, Id.; 2 Perry on Trusts 707 n.; Miller v. Porter, 3 P. F. Smith 292; Warde v. Manchester, 56 N. H. 508. In twelve of the United States legislatures have enacted that public libraries come within the scope of provisions similar to those in our own constitution. In Gerke v. Purcell, 25 Ohio St. 229, the exact question now under discussion, whether the statute was broader than the'constitution, was decided in our favor. It is state policy to foster such institutions as these libraries. If they are taxable, they are liable to confiscation, for their income is wholly inadequate to the purpose of taxation. The words “purely public charity” are a direction to the legislature to prohibit what was an old and flagrant abuse, the exemption of private property, such as Odd-fellows’ halls. These words are terms of art, and are as technical a definition of a class of property as a freehold. This library is a charitable use, and it is the duty of the state to see that it is administered for. the charity. The ground upon which this charity was granted exemption was that of “being a public beneficial use for the benefit of the community as a community.”
    [Chief Justice Agnew. — Is there any discussion in the debates of the constitutional convention in relation to this word “ purely” ?]
    I believe not.
    [Chief Justice Agnew. — Article 3, sect. 17, of the constitution, provides that no appropriation shall be made to any charitable or educational institution not under the absolute control of the Commonwealth, &c. Can this clause and that of article 9, sect. 1, be construed together so as to ascertain the kind of public institutions which were referred to in the use of the word “purely” ?]
    We think there is an obvious difference. The first was intended to punish the abuse of special appropriations of money for particular institutions; the last only intended to limit exemption to those institutions from which the general public derived a benefit. It is contended likewise that the decision of the Board of Revision cannot be reversed in this collateral proceeding.
    March 4th 1878,
   The judgment' of the Supreme Court was entered,

Pee Curiam.

— The exemption claimed in this case falls-clearly •within that clause of the Act of May 14th 1874, Pamph. L. 158, which exempts from taxation all “ associations and institutions of learning, benevolence or charity, with the grounds thereto annexed, and necessary for the occupancy and enjoyment of the same, founded, endorsed and maintained by public or private charity.” This leaves the true question upon that clause of the 9th article of the new constitution, which authorizes the General Assembly to exempt “institutions of purely public charity.” On this, the pivot of the case, the opinion of the learned judge of the Common Pleas is so full, clear and accurate, we deem it unnecessary to add anything to what he has said so well.

One point, perhaps, we should notice. The word “purely” must be interpreted so as to confine its qualification of a “public charity” to those institutions solely controlled and administered by the state herself, or so as to extend it to private institutions for purposes of purely public charity, and not administered for private gain. We prefer the latter interpretation, as declaring the true meaning of the constitution, and subserving best the public interest. On this point, in its application to the Library Company, the opinion of the learned judge fully sustains the claim of the company to be an institution of this character.

Decree affirmed, with costs of the appeal, and the record ordered to be remitted for further proceedings.