text:
    City of Allegheny versus Zimmerman.
    1. Any unreasonable obstruction of a highway is a public nuisance for ............. • - - - which an indictment will lie. It is not, however, every obstruction on a highway that constitutes a nuisance per se. When it is not, and whether a particular use is an unreasonable use and a nuisance, is a question of fact to be submitted to a jury.
    2. The right to partially obstruct a street is not limited to a case of strict necessity; it may be extended to purposes of convenience or ornament, provided it does not unreasonably interfere with public travel.
    3. The erection of “ liberty poles” is a custom sanctioned by a hundred years and interwoven with the traditions, memories and conceded rights of a free people, and unless forbidden by the authorities, has been considered the exercise of a lawful license incident to citizenship.
    4. If it had been a uniform custom for the people to erect such poles in the streets of a city from its earliest history, under the implied assent of the municipal authorities, and if the one in question was so carefully erected, having due regard to the material of which it was formed, and the manner in which it was secured, so that a careful and prudent person would have apprehended no danger therefrom, it was not a nuisance per se.

    5. As a general rule one is answerable in damages for the consequences of his faults only so far as they are natural and proximate and may. therefore, have been foreseen by ordinary forecast, and not for those arising from a conjunction of his own faults with circumstances of an extraordinary nature.
    November 6th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson and Trunkey, JJ. Sterrett and Green, JJ., absent.
    Error to the Court of Common Pleas No. 1, of Allegheny county: Of October and November Term 1879, No. 89.

      Case by George Zimmerman, by his father, Jacob Zimmerman, against the City of Allegheny,-to recover damages for injuries sustained by plaintiff, a lad eight years of age, who ivas injured by the fall of a pole erected on East street, near the corner of Second street, in the city of Allegheny.
    During the political campaign of 18T6, the Republicans of the vicinity of said streets, erected a pole about 150 feet high. The pole was about 14 X 14 inches at the base. It was composed of three sticks firmly bound together with iron bands, and its top was secured by ropes attached to chimneys of neighboring houses. To all appearances it was strong. It stood for some three or four weeks, when in a wind of unusual violence, it broke some forty feet above the ground. A portion of the upper end fell across the street, falling on one of the houses and breaking the pole into several pieces. One of the pieces it is supposed struck George Zimmerman, a- lad of eight years, who wras standing upon the sidewalk, some little distance away from his father’s house, which was nearly opposite, on East street, from where the pole was erected. The boy’s arm was fractured, and it was contended that his spine was injured.
    East street is sixty feet wide and well lighted with gas. The travel upon it is local merely. The pole was erected in front of the property of John Meyer, and located about fifteen feet back from Second street, at a point about eight feet out from the curb. The neighbors of the Republican party participated generally in the pole raising, and in the evening a public meeting was held at its base. No complaint was made by any one as to the pole, nor was any doubt had as to its strength. No permission to erect the pole was asked or given.
    At the trial before Stowe, P. J., defendant offered to prove by Henry Nesmith, the street commissioner, the reason why he allowed this pole to remain; that other poles had been erected there and stood, and that a hickory pole had been erected within a square or two of this place, and the next he knew of it this particular pine pole was put up and he didn’t want to interfere, having allowed the one and seeing nothing dangerous in the character of the pole.
    Also to prove by said witness the uniform custom of the city of Allegheny, running back to within his recollection to 1840, for parties to erect poles in the street without asking permission of the municipal authorities, and that there was nothing in this pole to make it an exception to the general rule.
    Objected to as incompetent and irrelevant. Objection sustained by the court. (Sixth assignment of error.)
    The defendant submitted the following points, which the court refused:

      1. That under all the evidence in this case the verdict should be for the defendant.
    2. The erection of the pole not having been the act of the city, there is no presumption of negligence on its part, and the burden of proving negligence is on the plaintiff.
    3. If the jury believe from the evidence that the pole was sound, and that its fall was caused by a wind of unusual violence, the hurt of the boy resulted from the act of God, and there can be no recovery against the city in this case.
    4. If the jury believe from the evidence that the fall of the pole was caused by a defect in it, which could not be discovered by a careful examination of it as it stood, and the city had no actual 'notice of such defect, their verdict should be for the defendant, plaintiff’s remedy being against those who erected the pole.
    The refusal of these points constituted, respectively, the fifth, first, second and third assignments of error.
    The duty of the street commissioner was prescribed by ordinance as follows: It shall be his duty to carry into effect, as far as may be in his power, all ordinances of the select or common councils relating in any way to the streets, lanes, alleys and commons within the bounds of the said city. And he shall pass over the same to detect and prosecute all violations of the same: to remove or cause to be removed therefrom, at the expense of the city, all obstructions or nuisances; and he shall have full power to enter into or upon any lot, house or private property, and remove therefrom, at the expense of the owner or occupier of the same, any and all common nuisances.
    In the general charge the court, inter alia, said:
    “ The city of Allegheny has control of all her streets. Under her charter and under the ordinances in evidence, it has become the duty of the street commissioner to prevent the streets being obstructed by nuisances, and wherever a nuisance is found upon the street and the proper official becomes aware of that fact, it is his duty to remove it, and if he does not remove it and anybody is injured by reason of its being there, or having been put there and allowed to remain, the city becomes primarily liable. * * * The plaintiff’s right of recovery depends, first, on whether or not you are satisfied that this pole was put in the body of the street. There is no doubt about that. The witnesses all agree that there was a large pole — large in thickness and in height — put on the street. If that were all, and the accident had occurred immediately, without any evidence that the city officials knew of it, the city would not be liable, because she must have express or implied notice of an act of this kind; it is not the act of the city. The city only becomes liable when her officials fail to do something they ought to do, and if they have no knowledge, or could not have had knowledge of any obstruction of this kind, or of any kind put on the street and somebody is hurt, of course the city not having knowledge, and it not being possible that she should have knowledge of any act of that kind, cannot be held liable because the city officials and the city are guilty of no negligence under the circumstances of the case.
    “ So far as the facts of this case are concerned we have the street commissioner testifying that he knew the pole was in the street sometime before the accident occurred, and also stating very candidly that he did not remove it. We have then this obstruction on the street with the knowledge of the city officials whose duty it was to remove it. We have the fact that the pole fell, and I suppose you will come to the conclusion that this boy was hurt by the pole. If so, the plaintiff is entitled to recover, without the boy himself was guilty of what we term in law contributory negligence ; that is to say without he was doing something he had no right to do which contributed to the accident. Not that he was climbing the pole, but that he was where he bad no right to be at the time it fell. You have the fact that the boy was on the street, standing there. He was about to go to school, and wanting an apple, his mother went to get it, and he stopped a few feet from her own house to wait till she would get the apple. Before she got back — as she says — when she got to the foot of the stairs going down to the cellar, she heard the crash and ran up and found the boy injured. Is that such contributing negligence as would prevent the plaintiff’s recovering? We freely and unhesitatingly say it is not. Streets are made to pass over and not to stand upon, and yet standing on the streets is not necessarily a nuisance. If you and I would stand on the street — down on the corner of Fifth and Smithfield streets, and annoy people who had a right to pass and repass by putting ourselves in their way, we would become a nuisance. We might stand on some of the unfrequented streets and not commit any nuisance if we would stand there half an hour, because nobody would be inconvenienced or hurt, but the fact that even on a frequented street, a route like this, I stop for a moment for a legitimate and proper purpose and am hurt through the illegal conduct of the city will not prevent a recovery. We therefore instruct you as a matter of law that this boy was not guilty of any act that would, so far as he or his father are concerned, prevent a recovery. * * *
    “If you believe the uncontradicted evidence in this case, the pole in question was erected upon a public street in the city of Allegheny, and that after it had been there for some weeks it broke and fell. You will also perhaps be satisfied that when it fell the plaintiff’s son was struck and injured by it; and that the street commissioner was aware that the pole had been erected and had been standing there previous to the accident. If you do, we think the city is liable in damages, regardless of whether the street commissioner was aware that the pole was actually dangerous or liable to fall or not, unless you believe the plaintiff or his son was guilty of contributory negligence. Upon this latter point the evidence shows that the boy was on the street waiting for his mother to get him an apple for him to take to school. There is no evidence that he was misbehaving himself, or was playing or was doing anything out of the way, unless merely waiting upon the public highway for a few moments at the request of his mother for the purpose suggested, is such negligence as will prevent a recovery. We cannot say that such is the law. In our opinion such an act is not such concurring negligence, and upon that ground nothing stands in the way of plaintiff’s recovery unless the boy was doing something more than merely standing quietly upon the street waiting till his mother should return and give him what he wanted and which the evidence does not show. * * *
    “ For more years perhaps than some of us have lived, it has been a common practice to erect poles, even before we were born, in the days of the revolution. They were then called liberty poles, and were indicative of a disposition to resist the aggressions of Great Britain. They were scattered around the streets in town and country, and the custom has come down more or less to later days. The custom of erecting political poles originated some place in 1840, at least that is my first recollection of it, and indeed the first recollection I have of mixing in politics is of going to the woods and getting a pole and sticking it up in the streets of the town. It has been going on ever since; they are erected on the corners of many streets, but no length of time will make that legal which is in itself illegal. Every obstruction put on the street not required for municipal purposes or required by law is a nuisance, and it does not make any difference if five, fifty or five hundred years have elapsed since the thing commenced. Therefore I say the putting of the pole there was a nuisance per se.

    “ The principles which govern this case are simply these: The erection of this pole upon the street was a nuisance per se. If the street commissioner, whose duty it was under the ordinance, having knowledge of the fact, allowed it to remain instead of having it removed, as it was his duty to do, and it broke, striking and injuring the boy of plaintiff, the city is liable in damages unless the father or mother or the boy himself were guilty of some negligence or misconduct in law or in fact which contributed to bring about the injury which, under the evidence, is not shown by any fact testified to in the case.”
    Verdict for plaintiff for $1000, and after judgment thereon defendant took this writ, her assignments of error being those noted above.

      W. B. Rodgers, City Solicitor, for plaintiff in error.
    The question of nuisance or no nuisance is for the jury, to be determined with reference to all the special circumstances: Hopkins v. Crombie, 4 N. H. 620 ; Bryant v. Biddeford, 39 Me. 193; Smith v. Wendell, 7 Cush. 498; Vinal v. Dorchester, 7 Gray 421; Howard v. N Bridgewater, 16 Pick. 189; Graves v. Natick, 35 N. H. 257; 4 Id. 625; Drake v. Lowell, 13 Metc. 292; Day v. Milford, 5 Allen 98; Norristown v. Moyer, 17 P. F. Smith 355 ; Fairbanks v. Kerr, 20 Id. 86.
    January 5th 1880.
    If the province of the jury in these inquiries is as extensive as we suppose, it follows that the court erred in charging that a staunch mast, erected with the assent of the owner of the fee, outside of the travelled way, in a not much frequented and well-lighted street sixty feet wide, was a nuisance per se. And if we are upheld in our contention that the city has the right (subject to appeal to the proper judicial tribunal) to allow all such uses of the public highway as custom and the public good require (Angelí on Highways, sect. 244) then it would seem that our offers to prove a custom sanctioning these erections were relevant, and should not have been rejected.
    We admit the principle that where a person has deliberately done or sanctioned an act that necessarily creates a nuisance no amount of diligence in the manner of doing it will exonerate him from liability for all immediate and natural resuls of his unlawful act or acquiescence: 2 Sharswood’s Blackstone 152 n. What we contend for is, that he cannot be mulcted in damages for remote consequences: Meckling v. Kittanning Bridge Co., 1 Grant 416; Flanegan v. Philadelphia, 8 Phila. 110; Pennsylvania Railroad Co. v. Weber, 22 P. F. Smith 54; Norristown v. Moyer, supra; Pennsylvania Railroad Co. v. Kerr, 12 P. F. Smith 353; McGovern v. Lewis, 6 Id. 231; Morrison v. Davis, 8 Harris 171; Megraw v. Stone, 3 P. F. Smith 436; Dubois v. Glaub, 2 Id. 243 ; Davis v. Dudley, 4 Allen 557; Alger v. Lowell, 3 Id. 398; Hey v. Philadelphia, 31 P. F. Smith 44; Rice v. Montpelier, 19 Vt. 490; Hixon v. Lowell, 13 Gray 59.

      W. D. Moore, for defendant in error, cited Erie City v. Schwingle, 10 Harris 388; Norristown v. Moyer, supra, and Woods on Nuisances, p. 82, sect. 78, and p. 780, sect. 774.
   Mr. Justice Mercur

delivered the opinion of the court,

This was an action in case to recover damages for the injury which the defendant in error sustained in one of the streets of the city of Allegheny.

In September, prior to the election of 1876, a “Liberty Pole” was erected in the street by a large number of citizens, as expressive of their political convictions. The street was sixty feet wide, and and the pole stood about eight feet from the curbstone and four feet from the gutter, in front of the house of one Myers, who participated in its erection. It consisted of three pieces firmly spliced together and securely held by bands and bolts. It was otherwise secured in place by ropes tied to the chimneys of neighboring houses. It stood for some three or four weeks, when in a severe storm and gale the ropes appear to have broken, and the pole broke off some forty feet above the ground. The upper part fell, breaking into several pieces, one of which struck the defendant in error, a boy about eight years old, who was standing on the sidewalk on the opposite side of the street.

The court below held the erection of this pole on the street a nuisance per se, and if the city authorities, whose duty it was to remove it, had knowledge of its being there and allowed it to remain, and the defendant in error, without negligence on his part, was injured by its falling, the city was liable. The correctness of this view presents the main question in- the case.

Any unreasonable obstruction of a highway is a public nuisance, for which an indictment will lie. It is not, however, every obstruction in a highway that constitutes a nuisance per se. When it is not, and whether a particular use, is an unreasonable use and a nuisance, is a question of fact to be submitted to a jury. Highways are intended for, and devoted to, the purpose of public travel, and every person may exercise that right, but in a reasonable manner. Due regard must be had to other rights. Thus^ stone, brick, sand and other materials necessary to be used in building may lie placed in the street in the most convenient manner and suffered to remain for a reasonable time. This may be said to result from necessity in building. But the. right to partially obstruct a street does not appear to be limited to a case of strict necessity, it may extend to purposes of convenience or ornament, provided it does not unreasonably interfere with public travel. Thus public hacks, by authority of the municipality, may stand in particular parts of the streets awaiting passengers, although the public are thereby excluded from using that part of the street most of the time. So shade trees may stand between the sidewalk and the central part of the street without constituting a nuisance per se. They may become a nuisance by disease or decay, yet the mere partial obstruction of a part of the street, when in fact such obstruction does not interfere with the public use, does not create a nuisance. It does not work that hurt, inconvenience or damage to the public necessary to constitute the offence.

The erection of liberty poles appears to have been almost coeval with the birth of our nation. As the name imports, they were erected to symbolize our liberties and as a mode of proclaiming that we had thrown off all allegiance to the government of Great Britain. At first they appear to have been used as expressive of concurrence in the principles embodied in the Declaration of Independence. As time passed on, they began to be erected by each political party of the country to express its greater devotion to the rights of the people. As the object of their erection was patriotic and with a view of inciting a spirit calculated to advance the public welfare, they were placed on highways and public squares. The people so desired it. The municipal authorities assented to it. It is a custom sanctioned by a hundred years and interwoven with the traditions, memories and conceded rights of a free people. Unless forbidden by the authorities, it has been considered the exercise of a lawful license incident to citizenship. Hence, in this case, no permission was asked of the authorities for leave to erect the pole, and no objection was made by them. The travel on the street where it stood was merely local. It did not occupy the street to.such an extent or in such a manner that any person complained of its interfering with the public travel. To all appearance the pole was strong and sound. No doubt existed as to its strength. In the view taken by the court below, it mattered not if all these facts were proved; and further, that it was well secured : that no person had reason to apprehend any danger in its remaining therb, and that it yielded only to the severe gale, yet, having broken, the city was liable for the injury sustained by the defendant in error. If it has been a uniform custom for the people to erect such poles in the streets of the city from its earliest history under the implied assent of the municipal authorities, and if this one was carefully erected, having due regard to the material of which it was formed and the manner in which it was secured, so that a careful and prudent person would have apprehended no danger therefrom, we think it was not a nuisance per se. It is, therefore, a question for the jury whether it was erected in such a place and manner and maintained for so long a time, under all the circumstances, as to have created reason able apprehension of danger. It did not become a nuisance by reason of the brief time only that it remained, unless there was a change in its safe condition or some complaint made to, or action taken by, the city authorities in regard to it. But conceding that the city, at a moment before the injury, might have been indicted for suffering the pole to remain, which we do not admit, it does not necessarily follow that this action for damages can be sustained: Wood on Nuisances, sect. 324; Fairbanks v. Kerr, 20 P. F. Smith 86. The question still remains whether suffering the pole to remain in the street was such a probable and proximate cause of the injury as to make the municipality liable in damages. The defendant in error sustained no injury while the pole was standing there. He does not.complain that it interfered with his free use of the street for all purposes of a highway. He came in no collision with it. He complains of no injury special to himself until after it broke and fell. Even if it was a public nuisance, he could not maintain an action for damages without proving some special damage to himself: Wood on Nuisances, sect. 829; Mechling et al. v. Kittanning Bridge Co., 1 Grant 416.

As a general rule, one is answerable in damages for the consequences of his faults only so far as they are natural and proximate, and may therefore have been foreseen by ordinary forecast, and not for those arising from a conjunction of his own faults with circumstances of an extraordinary nature: Morrison v. Davis, 8 Harris 171; McGovern v. Lewis, 6 P. F. Smith 231; Pennsylvania Railroad Co. v. Kerr, 12 Id. 353; Fairbanks v. Kerr, supra ; Scott v. Hunter, 10 Wright 192. In the present ease, the breaking of the pole was the proximate cause of the injury.

If then, the jury should find from the evidence that the pole was sound and so secured and protected that careful, prudent and sagacious persons considered it safe, and it was broken by a wind of unusual violence, the injury of the boy was a result too remote from the erection of the pole to make the city liable in damages therefor. Nor did the city become liable if the breaking occurred by reason of a defect in the pole unknown to the city authorities, and which could not be discovered by a careful examination of the pole as it stood.

In so far as the first, second, third and fourth assignments are in conflict with this opinion they are sustained. There is no error in the fifth, nor, as a whole, in the sixth, although some parts of the offer, if presented separately, might be admissible.

Judgment reversed, and a venire facias de novo awarded.

Justices Gordon and Trunkey dissented from so much of this opinion as overrules the decision of the court below that the erection and continuance of the pole on the street was a nuisance per se.


source: Caselaw Access Project

author: Mr. Justice Sterrett

license: Public Domain

text:
    Lehman et al. versus Howley
    1. A rule of a Court of Common Pleas provided that upon a failure of a defendant in ejectment to file within a stated time an abstract of title or statement of facts upon which he relies, the plaintiff shall be entitled to a judgment such as is warranted by the facts set out in the abstract and statement which, under the same rule, he was required to file: Held, that it was within the power of the court to make and enforce such a rule.
    2. To entitle the plaintiff to judgment under such a rule he must exhibit in his abstract a prima facie case based upon facts distinctly averred, and where, therefore, the plaintiff’s abstract traced his title back to a deed of partition, but did not show title in the parties to said deed it was error in the court to enter judgment against the defendant in default of the latter filing the necessary statement.
    October 4th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.

      Error to the Court of Common Pleas No. 2, of Allegheny county: Of October and November Term 1880, No. 128.
    Ejectment, brought December 31st 1879, by Martin Howley against Henry Lehman and T. H. B. Patterson, for a tract of land in the possession of Lehman as tenant of Patterson.
    The praecipe contained a description of the property, and averred that the right of possession or title was in the plaintiff.
    The writ was duly served on Lehman, for whom an appearance de bene esse was entered. A return of non est inventus was made as to Patterson. Within the proper time the plaintiff filed the following abstract of title in accordance with rules of court, which rules will be found set forth in the opinion of this court:
    Thos. H. Hunter, Sheriff of Allegheny county, to Martin Howley.
    Dated October 11th 1879. Acknowledged November 8th 1879. Recorded in the Prothonotary’s Office, Court Common Pleas No. 2, Allegheny county, in Sheriff’s Deed Book, vol. 4, page 472. For property described in praecipe. Sold on lev. fa. No. 152, October Term 1879, as the property of Jacob Daniel.
    Isaac M. Pennock, for use of Martin Howley v. Jacob Daniel.
    In the Court of Common Pleas No. 2, of Allegheny county, lev. "fa. No. 152, Oct. T. 1879. Sur judgment No. 802, Apr. T. 1875.
    Isaac M. Pennock, for use of Martin Howley v. Jacob Daniel.
    'j In the Court of Common Pleas i No. 2, of Allegheny county, No. 1802, April Term 1875. Sci. fa. J sur mortgage recorded in vol. 188, page 426, Recorder’s Office of Allegheny county, to first Monday April 1875. June 2d 1875, judgment entered for $3142.67.
    MORTGAGE.
    Jacob Daniel to Isaac M. Pennock.
    Dated Sept. 3d 1874. Recorded Sept. 7th 1874, in Recorder’s Office of Allegheny county, in Mortgage Book, vol. 188, p. 426.
    On property described in praecipe.
    ASSIGNMENT OE ABOVE MORTGAGE.
    Isaac M. Pennock to Martin Howley.
    Dated Sept. 19th 1874. Acknowledged same day. Recorded in Recorder’s Office of Allegheny county, in Mortgage Book, v. 188, p. 428.
    DEED.
    William Phillips to Jacob Daniel.
    1 Dated December 1st 1858. Recorded Sepxtember 8th 1864, in the Recorder’s Office of J Allegheny county, vol. 177, page 170. For property described in the praecipe.

      DEED OE PARTITION.
    Between William Phillips, C. B. M. Smith and John Brown.
    Dated August 14th 1858. Acknowledged August 17th 1858. Recorded August 23d in Deed Book, vol. 134, 357, in Recorder’s Office of Allegheny county, in which deed property described in praecipe is allotted to William Phillips.
    The defendant having omitted to file the abstract or statement required by the same rules, the plaintiff moved for judgment, when the court made the following' order :
    “And now, to wit, April 17th 1880, it appearing to the court that the defendant has failed to file an abstract of title and statement of defence as required by the rules of court, and it further appearing to the court, from the abstract of title and statement filed by the plaintiff, that the plaintiff is entitled to recover the premises described in the writ from the defendant, it is ordered that judgment be, entered in favor of the plaintiff and against the defendant for the premises described in the writ, with costs.”
    The defendant took this writ and assigned this action of the court for error.

      W. S. Wilson and J. S. Ferguson, for plaintiff in error.
    The only appearance was de lene esse. Such an appearance does not admit a “ service agreeably to law.” However, even if the rule did apply, the judgment is erroneous, because it does not appear upon the plaintiff’s own showing that he was entitled to the possession of the premises in dispute. The mere issuing of the writ implies an adverse possession in the defendants. The plaintiff has not alleged that he or any of those under whom he claims were ever seised of the land in dispute. He does not aver that he and the defendants claim under the same title and does not trace his title back to a common source. Nor does he show title out of the Commonwealth and'vesting regularly in him. He does not allege the defendant to have been a mere intruder. He did not, therefore, upon his abstract, make out such a title as would entitle him to recover. The plaintiff must recover upon the strength of his own title and not upon the weakness of the defendant’s : Covert v. Irwin, 3 S. & R. 288.
    No Act of Assembly gave the court power in an action of ejectment to enter a judgment by default against a defendant who had appeared. While the Act of March 21st 1806 directs that “the defendant shall enter his defence, if any he hath, * * * before the next term,” it provides no penalty for not doing so. The power of the courts where there has been an appearance and no abstract or plea filed is limited by the Act of December 5th 1860, Pamph. L. 44.

      October 18th 1880.

      J. W. Over, for defendant in error.
    The plaintiff below, in his abstract, shows the title to have been in the parties under whom he claims for more than twenty-one years prior to the bringing of the suit, and in the praecipe and statement filed he avers that the . right of possession or title to the premises were in him, and not in the defendants. The court below adjudged that the facts set forth by the plaintiff were sufficient to entitle him to judgment under the rule, and this court will not interfere, as “ the Common Pleas courts are the most proper judges of the extent and application of their own rules:” Snyder v. Bauchman, 8 S. & B. 335.
    The Courts of Common Pleas have not only general powers to make rules for the regulation of their practice, but express authority is given by various Acts of Assembly: Snyder v. Bauehman, supra; Yanatta v. Anderson, 3 Binn. 417; Act of June 16th 1836, Purd. Dig. 233, pi. 136; Act May 24th 1878, Pamph. L. 135. The power of the court in ejectment is not limited by the Act of December 5th 1860. This act is not mandatory, and it leaves it optional with the court to direct a plea to be entered in default of an appearance.
   Mr. Justice Sterrett

delivered the opinion of the court,

The rule of court under which the judgment was entered provides that “in all actions of ejectment hereafter brought, it shall be the duty of the plaintiff, either by himself, his agent or attorney, to file in the office of the prothonotary of this court, on or before the first day of the term to which the writ is returnable, a statement containing a description of the land, together with the number of acres and the proportion thereof which he claims, and an abstract of the title on which he relies for his recovery, whether the same be in writing or otherwise; and where the same is matter of record, a reference thereto. And the defendant shall plead “ Not guilty,” and enter his defence, if any he hath, for the whole or any part thereof before the next term ; and at the time of entering his plea he shall by himself, his agent or attorney, file a statement containing an abstract of the title or facts on which he relies for his defence, whether the same be in writing or otherwise; and where the same is matter of record, a reference thereto, together with a specification of so much of the plaintiff’s title as he denies, and so much thereof as is not denied shall be deemed admitted, and at the trial, the evidence shall be confined to the facts respectively denied by the parties :” Eule 90, sect. 1.

“ On failure of the plaintiff to file an abstract and statement as required by the first section of this rule, judgment of non pros shall be entered by the prothonotary on, precipe of defendant’s attorney, or the like judgment may be entered on motion in open court. The failure of the defendant to file the abstract and statement required by this rule shall be deemed a confession of the truth of the facts set forth by the plaintiff, and that he has no defence thereto. And thereupon, on motion in open court, the plaintiff shall be entitled to such judgment as may be warranted by the facts set out in the abstract and statement filed by the plaintiff:” Idem, sect. 2.

The power of the court to make and enforce such a‘rule as this cannot be doubted. The right to make rules for the regulation of their practice is included in the general powers of the courts of Common Pleas: Vannatta v. Anderson, 3 Binn. 417, and Snyder v. Bauchman, 3 S. & R. 335. But, in addition to this inherent authority, express power is given by the Acts of June 16th 1836 and May 24th 1878, the former of which provides that the courts of Common Pleas shall have full power and authority to establish such rules for regulating the practice thereof respectively and for expediting the determination of suits, causes and proceedings therein, as in their discretion they shall judge necessary and proper, provided that such rules shall not be inconsistent with the Constitution and Laws of this Commonwealth; and the latter declares that said courts shall have full power to make all necessary rules and regulations for the transaction of all business brought before them.

The rule under consideration is clearly not in conflict with any of the provisions of the Constitution, or the law relating to actions of ejectment, or any other Act of Assembly. It follows, therefore, that the court had full power and authority to adopt the rule. Its provisions are just and reasonable, and their enforcement will greatly expedite and facilitate the administration of justice by eliminating matters about which there is really no dispute, and thus narrowing the controversy to such questions as are actually involved in the case. When, as is frequently the case, the plaintiff in ejectment is required to show title out of the Commonwealth and then trace it down to himself through numerous mesne conveyances, judicial proceedings, &c., much time is often consumed to no good purpose, and frequently technical difficulties unexpectedly arise and impede a fair and speedy trial on the merits. The rule contemplates that the plaintiff’s abstract will present facts which, if true, will warrant the court in adjudging that the right of possession or title is in him and not in the defendant; and if the latter appears but fails to file the required abstract, the facts properly averred by the plaintiff are taken to be true. The fact that the writ was properly served on the defendant Lehman, and so returned by the sheriff, gave the appearance de bene esse by his attorney full effect as a general appearance, and he was clearly in default in not filing the abstract and statement required by the rule. This entitled the plaintiff to judgment, provided it was warranted by the facts set out in his abstract and statement. The contention of the plaintiff in error is that a prima facie case, entitling the plaintiff to judgment, was not presented, and in this we think he is right. Upon his own showing it does not appear that the plaintiff below is entitled to possession of the premises in dispute. No principle is better settled than that a plaintiff in ejectment must recover, if at all,, on the strength of his own title and not upon the weakness of the defendants: Covert v. Irwin, 3 S. & R. 283. The foundation of plaintiff’s title, as exhibited by his abstract, is a deed of partition dated August 14th 1858, between William Phillips, C. B. M. Smith and John Bunn, by which the property in dispute was allotted to William Phillips, who, in December of the same year, conveyed the same to Jacob Daniel, who, in 1874, mortgaged the same to Isaac M. Pennock, who subsequently assigned the mortgage to the plaintiff below. It is further shown by the abstract that by proceedings on the mortgage, judgment was obtained and the premises were sold by the sheriff and duly conveyed to the plaintiff on October 11th 1879. Proper references are given to the records of the deed, mortgage and judicial proceedings which form the several links in the chain of title thus presented, but it does not appear from anything contained in the abstract how or from whom the parties to the deed of partition acquired title, or that they or any of the parties under whom the plaintiff claims were ever seised of the land in dispute or at any time in possession thereof; nor does it appear that the defendant below claims under the same title as the plaintiff, or that their titles have a common source. In short, assuming all that is presented by the abstract to be true, it fails to show title out of the Commonwealth and in the plaintiff or any of those under whom he claims. It is very clear that if all the facts set forth were proved on the trial of his action, he would not be entitled to a verdict. It is contended, however, that the statement in the prsecipe that the right of possession or title is in the plaintiff and not in the defendant is a sufficient averment. It is certainly an unqualified assertion of title in himself, but it isia legal conclusion and not a statement of facts from which the court could say that the right of possession was in him and not in the defendant. The rule of court contemplates a brief statement of facts upon which the court may base its judgment. In other words, the plaintiff must exhibit in his abstract a prima facie case, based upon facts distinctly averred.

Judgment reversed and a procedendo awarded.


author: Mr. Justice Trunkey

text:
    Fahnestock versus Wilson.
    The Act of June 11th 1879 relating-to mechanic’s liens and authorizing the amendment of the same must be construed to act prospectively. The act confers important rights on the claimant, and subjects the building to additional liabilities and its owner to increased risks, and as it is not therefore purely remedial it cannot be held applicable to cases pending at its passage.
    October 4th 1880.
    Before Sharswood, O. J., Mercur, Gordon, Paxson, Trunkey, Stbrrett and Green, JJ.
    Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1880, No. 202.
    Scire facias sur mechanics’ lien, issued by R. H. Wilson, a subcontractor, against B. L. Fahnestock, owner, and A. J. Fair, contractor.
    The claim was “ for paint and materials as set forth in the bill hereto attached, done and furnished within six months past for and about the erection and construction of the buildings hereinafter described.” The bill of particulars referred to was as follows :
    Allegheny City, October 6th 1876.
    Mr. A. J. Fair, for B. L. Fahnestock,
    To R. H. Wilson, Dr., late of the firm of J. & R. H. Wilson, House and Sign Painter, No. 147 Federal Street.
    July 26. To painting and glazing warehouses on Fourth
    Avenue for B. L. Fahnestock, by contract, $880.00
    11 lights of glass, extra, 12 + 36, 50c. . . 5.50
    To painting three,sky-lights, extra, $3 each, . 9.00
    $894.50
    On the 18th of April 1877 Fahnestock filed an affidavit of defence, wherein he denied the validity of the first item in the above bill and admitted the other two, and tendered a judgment for $4.84 with interest from 'October 1st 1876, and on the 30th of June 1877 he moved to strike off the first item on the ground of its insufficiency, which motion the court refused. A scire facias then issued, and on December 20th 1878, in response to a rule to plead, Fahnestock demurred to the first item of $880, and averred that it was insufficient in law, “ because the same does not set out the nature or kind of work done, or the kind and amount of materials furnished and the time when the materials were furnished, as required by the Act of Assembly. And as to the other two items in said lien, said defendant again tenders judgment for $5.10, being the amount for which judgment was tendered in his affidavit of defence, filed April 18th. 1877, with costs up to the time of filing said affidavit.”
    The court overruled the demurrer, when the defendant pleaded specially and set forth the insufficiency of the item objected to. On the 19th of June 1879 (after the case was at issue, but before it was called for trial) the court made the following order which was entered on the mechanics’ lien docket:
    “June 19th 1879, on motion of A. C. Patterson, attorney for the plaintiff, leave is granted to the plaintiff to amend his bill of particulars in lien filed in the above case and more fully itemize the materials and work embraced in-the lien in the above case.”
    On the 27th of June 1879, without any further order of court, the plaintiff’s attorney filed the following :
    “ Supplemental bill of items as authorized to file by leave of court granted in No. 37, July Term-, 1877, under the Act of Assembly of 1879. A. C. Patterson,
    Attorney for plaintiff.
    July 26th 1876.
    Mr. A. J. Fair, for B. L. Fahnestock’s Building,
    To R. H. Wilson, Dr. •
    1876.
    July 26th 21 Panes of Plate Glass for buildings, . . $625.00
    “ “ Pittsburgh Glass for Sky-light, . . . 35.00
    “ “ Paints, Oils, &c., ..... 165.00
    “ “ To 18J days’ work, ..... 55.00
    “ “ To re-glazing 11 lights of Glass, 50c. each, . 5.50
    “ “ To painting old Sky-lights, .... 9.00
    $894.50
    “ “ Or. by 500 lbs. of White Lead, . . . 50.00
    $844.50
    R. H. Wilson,
    Per A. C. Patterson, his attorney.”
    Before the trial, defendant’s counsel moved to strike out the above bill as having been filed without authority of law, but the court refused the motion.
    The cause came on to be tried on the 15th of April 1880, before Ewing, P. J., and a jury. There were no facts in dispute, and it being admitted that the lien as originally filed was fatally defective, counsel on both sides agreed on a special verdict, raising the questions (1) whether the amendment of June 27th 1879, was properly allowed, and (2) whether the lien as amended was sufficient.
    The court decided both these questions in favor of plaintiff, and directed judgment to be entered on the verdict. The defendant, Fahnestock, took this writ and assigned this action of the court for error.

      Rodgers & Oliver, for plaintiff in error.
    The disputed item was incurably defective until the date of the Act of June 11th 1879, Pamph. L. 122. That act can be given a prospective effect only: McCoy’s Appeal, 1 Wright 125 ; Sutton v. Clark et al., 7 W. N. C. 437; Ashman v. McIlvaine, 8 Id. 309. The act can only be construed as retrospective by reading into it words referring to past time, and so doing violence to the rules of construction, and to the property and constitutional rights of defendant: Lambertson et al. v. Hogan, 2 Barr 22; Potter’s Dwarris on Stats. 162; McCabe v. Emerson, 6 Harris 111; Bates v. Koch, 6 Barr 476; Becker’s Appeal, 3 Casey 55 ; West Branch Boom Co. v. Dodge, 7 Id. 285; Ogle ft Somerset & Mt. P. Turnpike Co., 13 S. & R. 256. This act if retrospective would operate both on the right and the remedy in a pending action: Lefevre v. Witmer, 10 Barr 505-6; Schoneman v. Fegley, 2 Harris 379; Underwood v. Lilly, 10 S. & R. 101. Even the amended specification of items is insufficient under, Lee v. Burke, supra; Russell v. Bell, supra ; Shields v. Garrett, 5 W. N. C. 120.
    October 18th 1880.

      A. C. Patterson, for defendant in error.
    The operation of the statute in this case is retroactive and should be construed as similar acts have been, so as to advance and render effective the remedy the law-maker has provided, as the court held in the case of the Commonwealth v. Dillon, 11 P. F. Smith 488. The preamble and the language of the whole act lead us at once to the fact that the legislature designed by its enactment to extend the right of claimants in mechanic’s lien, just as it did when it enacted the Act of 1806, whereby it introduced a system- of amendments into the pleadings and trials of other causes.
   Mr. Justice Trunkey

delivered the opinion of the court,

The claim was filed, October 13th 1876, and was defective. Therefore, by the terms of the statute which created the lien, it expired at the end of six months from the time the work was done and materials were furnished. More than two years after the lien died an attempt was made to restore it to life by an amendment. Whether it was competent for the court to revive the lien is the first question reserved.

A mechanic’s lien on a building is entirely statutory — a privilege not of common right — and is in addition to the common-law remedies which belong to all citizens. While the lien continues, and after it falls, the claimant, notwithstanding his special boon, is entitled to the same remedies as other laborers and vendors for recovery of his debt. These remedies remain whether the claim filed be perfect or faulty, or none be filed at all. The favor is not merely a remedy by suit, it is a lien on property from the commencement of the work — a valuable right, preferring the claimant before other creditors, and often compelling one man to pay another’s debt. Its enforcement is by proceeding in rem. Where the claimant is a sub-contractor, it is no defence for the owner of the building to show that he has fully paid the party with whom he contracted. Such a right, existing at the time the work was done or material furnished, cannot be taken from the claimant by repeal of the statute, nor impaired by pretence of changing remedies. It has been repeatedly held that the legislature has no power to take away vested rights. Like principle forbids imposing the corresponding liability on specific property, or its owner, where they are free. A defunct lien drops from the property, leaving it free as if the lien had never attached.

Prior to the Act of June 11th 1879, Pamph. L. 122, no contract was made with reference to its provisions; since, of course, it is altogether different. That act is now a part of the Mechanics’ Lien Law. In one sense it is remedial, in another it confers an important right on the claimant, and subjects the building to additional liabilities, and its owner to increased risks. Just to the extent of these rights and liabilities is the act more than remedial. If applicable to claims which existed before its enactment, this case illustrates its operation, namely, the resurrection of a lien and placing it upon a building and appurtenant land so that the owner must lose his property or pay a debt he never contracted. Aside from any constitutional question, the act comes within the rule, “ that a statute shall always be interpreted so as to operate prospectively and not retrospectively, unless the language is so clear as to preclude all question of the intention of the legislature.” “Retrospective laws generally if not universally work injustice, and ought to be so construed only when the mandate of the legislature is imperative Taylor v. Mitchell, 7 P. F. Smith 209. A statute will not be held unconstitutional if it admit of an interpretation not in conflict with the Constitution. Were this act purely remedial it might be held applicable to cases pending at its passage. Its language is by no means imperative that it shall be retroactive, and without violence may be construed to operate prospectively only. This must have been the legislative intent.

The first reserved question being decided in the negative disposes of the case, and we express no opinion upon the second.

Judgment reversed, and now judgment in favor of the plaintiff for $5.86 with interest from date of verdict, and costs accrued up to April 18th 1877.


author: Mr. Justice Green

text:
    Walter’s Appeal.
    1. A bare direction by a testator to devisees to pay money is nothing more than a personal obligation of the devisees. A charge upon the land devised is not thereby created. There must be something more, express words or necessary implication from the whole will, that such was the intention.
    2. The Orphans’ Court has not jurisdiction to compel devisees of land to have certain legacies charged on the land.
    3. Dundas’s Appeal, 23 1?. F. Smith 474, distinguished
    October 5th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Appeal from the Orphans’ Court of Allegheny county: Of October and November Term 1880, No. 60.
    Appeal of John M. Walter from the decree of the court in the matter of the estate of Adam Walter, deceased.
    Adam Walter died on the 7th of May 1875, being seised of. certain real estate and personal property situate in Allegheny county, which real estate, by his last will, he devised to his two sons, John M. and James H. Walter, in fee. In his will he directed his two sons, inter alia, to pay the several legatees mentioned therein the full amount of their legacies in the following proportions to wit: John to pay the sum of $3000 and James to pay the sum of $1400. There were seven legatees, five of whom were to receive $700 each, one $600, and one $300, aggregating $4400. None of these legacies were payable until two years after the testator’s death, or until his youngest son had attained the age of twenty-one years.
    On the 30th of June 1877, and after the legacies had become due and payable, three of said legatees, viz., Jacob H. Walter, Eliza J. Brown and Harriet McConaha, presented a petition to the Orphans’ Court, averring that their legacies were charges on the land devised to John M. and James IT. Walter, and praying for a citation on them to show cause why they should not be paid. An answer to this petition was filed on the 10th of July 1877, and on the 4th of August the court allowed the petitioners to file an amended petition. The cause then came on to be heard on the petition, answer and amended petition, and on the 16th of March 1878, the court decreed that said legacies were charged upon said land, and directed a levari facias to issue for the collection of them in case default was made in payment. After the decree of the court had been made James II. Walter paid the legacies due from him. From the decree John M. Walter took this appeal.

      W. D. Brandon, A. C. Johnston T. C. Campbell, for appellant.
    In Cables Appeal, 10 Norris 827, the same question was involved as is here raised, and the decree was no doubt based upon the same reasoning. In both cases the Orphans’ Court assumed jurisdiction upon the ground that the legacies were charged upon the lands devised by the wills before the court for construction. Neither of the wills contained more than mere directions to the devisees to pay the legacies. In neither were there express words charging the legacies upon the land, and in neither could it be implied from the whole will that such was the intention of the testator. If there is any difference between the two cases, Cable’s Appeal is the stronger in favor of the Orphans’ Court taking jurisdiction, for the land was there devised, but the devisees to pay legacies, while the will to be construed in this case devised the land and simply ordered and directed the devisees to pay the legacies.
    A mere direction by a testator that a devisee shall pay a legacy does not thereby create a charge on land; there must be something more, express words, or necessary implication from the whole will that such was the intention: Cable’s Appeal, supra ; Miltenberger v. Schlegel, 7 Barr 241; Hamilton v. Porter, 13 P. F. Smith 332; Okeson’s Appeal, Id. 99; Wright’s Appeal, 2 Jones 256; Montgomery v. McElroy, 3 W. & S. 371; Buchanan’s Appeal, 22 P. F. Smith 448; Dewitt v. Eldred, 4 W. & S. 414.

      A. M. Brown and John S. Lamlie, for appellees.
    It is not necessary to cite authority to show that the intent of the testator is to be gathered from the four corners of the will. No form of words is necessary to create a charge upon land: Ripple v. Ripple, 1 Rawle 390; Gilbert’s Appeal, 4 Norris 347; Still v. Spear, 9 Wright 168. An intent to charge has been implied, from a devise of the residue, real and personal, after payment of legacies: Tower’s Appropriation, 9 W. & S. 103. Debts and legacies not otherwise effectively or specially provided for, fall upon the residuary legatees: McGlaughlin v. McGlaughlin, 12 Harris 20. A pecuniary legacy, directed by the testator to be paid out of his estate in case of a deficiency of personal assets, is a charge on the lands devised as a residue; prima facie, a general legacy is payable out of the residuary estate, real and personal: Field’s Appeal 12 Casey 11; Riley’s Appeal, 10 Id. 291.
    In this case the testator directs certain legacies to be paid out of his personal estate. He next devises his real estate with a sufficient amount of personalty to furnish the dwelling house, and to stock and operate the farm to two sons, whom he directs to pay certain other sums of money to his “before mentioned heirs.” Although he did not, in express terms, make John M. and James H. Walter residuary legatees, yet they are in effect such.
    It seems to be admitted that if the legacies are charged upon the land, the Orphans’ Court has exclusive jurisdiction. If authority were required we could cite Pierce Administrators v. Livingstone Administrators, 30 P. F. Smith 99 ; Mohler’s Appeal, 8 Barr 26. But we are not content to rest here; we believe, upon the authority of Dundas’s Appeal, 23 P. F. Smith 474, that the Orphans’ Court has authority to decree the payment of a legacy, whether the same be charged upon the land or not.
    October 25th 1880.
   Mr. Justice Green

delivered the opinion of the court,

In Cable’s Appeal, 10 Norris 327, we said: “ It is well settled that a mere direction by a testator that a devisee shall pay a legacy does not thereby create a charge on land. There must be something more, express words or necessary implication from the whole will, that such was the intention.” This same doctrine was held in a number of other cases of which Okeson’s Appeal, 9 P. F. Smith 99, Hamilton v. Porter, 13 Id. 332, and Buchanan’s Appeal, 22 Id. 448, are examples. They have all been so recently reviewed that comment upon them is unnecessary. The force of these authorities is conceded by the learned counsel for the appellees, and they therefore argue that an intent to charge the legacies upon the lands devised to the testator’s two sons, John M. and James H. Walter, is to be gathered from a reading of the whole will. We have examined it with much care and are entirely unable to discover such an intent. The testator first gives various pecuniary legacies to several of his children and to Harriet Kuhn. These legacies are payable by the executors out of such assets as may come into their hands. Then he devises his farm to his two sons, John M. and James H., to be equally divided between them. He next directs as follows: And further, I order and direct that my said son, John M. Walter, pay to my several before-mentioned heirs the sum of $3000, and I direct that my son, James H. Walter, pay to my several before-mentioned heirs the sum of $1400.” And he follows this'with a provision that his two sons shall come into possession of the farm when they respectively arrive at the age of twenty-one years. In all this there is not the least expression of any desire or thought that these sums are to be charged upon the land. The testator next provides that his widow shall have control of the farm until the two sons arrive at majority, that sufficient stock and farming implements remain upon the premises for farming purposes, and that all repairs be paid out of the proceeds of the farm. Next he directs the executors to make a public sale of all the effects not needed in furnishing.the mansion house, and implements and live stock not needed for farming purposes, and that his said two sons shall have a reasonable education, to be paid for out of the proceeds of the farm and of the said public sale; and he further directs his áaid two sons to provide equally for the support and maintenance of his widow. In the next two clauses of the will the testator devises a piece of ground to a church for a burial place. In the final clause he directs that the bequests made to his children which are to be paid by his said two sons, are not to be paid for two years after his _decease, and then to be paid in equal proportions, if they are not able to pay the whole at that time. He closes by naming his executors. The foregoing is an epitome of the whole will, and it fails entirely in our opinion to disclose the least evidence of an intent on the part of the testator to charge the lands devised to John and James with the payment of the sums in question. There is nothing but a bare direction to them to pay the money, and this has frequently been held to import nothing more than a personal obligation of the devisées. There is no residuary devise or bequest in the will, and hence there is no warrant for the proposition that John and James are to have the residue.

It is further contended that the Orphans’ Court has jurisdiction to decree the payment of the legacy whether it is charged upon the land or not, and Dundas’s Appeal, 23 P. F. Smith 474, is cited as authority for that position. But, so far as this question is concerned, that was the case of an ordinary application to compel executors to pay legacies which it was their duty to pay: This proceeding is a special one against devisees of land to have certain legacies charged upon the land, and this can only be done under the act which authorizes it, when the legacy is, by the will of the testator, “ charged or payable out of real estate.” As that is not the case in this instance, it follows that there was no jurisdiction in the Orphans’ Court to entertain the petition for any purpose.

Decree reversed and petition dismissed at the cost of the appellees.


author: Mr. Justice Paxson

text:
    Williams et al. versus Tracey & Co.
    An attorney, in the absence of his client and witnesses when his ease was called for trial, agreed in open court to a reference to arbitrators. Prior to the meeting of the arbitrators a rule was taken upon plaintiffs to show cause why the agreement to refer should not he set aside, and the submission < stricken off, and after hearing the court discharged the rule: Held, not tobe error. The client having obtained the benefit of the delay could not repudiate the act of his attorney and deny his authority. He received a consideration for the submission, which made it irrevocable.
    October 5th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1880,' No. 137.
    Plaintiffs brought an action of trespass before a justice of the peace against Williams and others, owners of a steamboat, for alleged damage to plaintiffs’ flats, which were moored at Sewickley in the Ohio river. Defendants appealed from the judgment of the justice, and while they were temporarily at New Orleans, being engaged in the coal trade, the case was called for trial in court. The attorney for defendants objected to the case being put on the weekly list, and when the ease was reached during the week, defendants’ counsel being without witnesses agreed to a reference. Upon the return of defendants they immediately objected to the reference, and a rule was granted by the court to show cause why “ the agreement of reference should not be set aside and the submission stricken off.” This rule was taken and notice thereof given to the parties before any meeting of the arbitrators was held. Before the rule to show cause was argued the arbitrators met and made their award, the defendants not appearing.
    Upon the refusal of the court to set aside the reference, plaintiffs’ attorney filed the award. Thereupon defendants’ attorney asked for a rule to show cause why the award filed should not be set aside. The reasons in support of this rule were not deemed sufficient by the court to cause it to set aside the award, and this rule was also discharged.
    The defendants then took this writ, alleging that the court-erred in not setting aside the agreement of counsel to arbitrate and in not setting aside the award of arbitrators.

      D. D. Bruce and K. McIntosh, for plaintiffs in error.
    While this court has held that an attorney at law has power' to refer his client’s case without special authority therefor (Wilson v. Young, 9 Barr 101), yet it has also as distinctly held that the client can either revoke the submission or ask the court to set aside the reference : Millar v. Criswell, 3 Barr 449. The plaintiffs in error pursued the remedy pointed out by this court in Bingham’s Trustees v. Guthrie, 7 Harris 419, and cases therein cited, yet the court refused to set aside the reference and denied them the right of trial by jury. The application to set aside the reference. was in time.
    The award of arbitrators should have been set aside for the reasons that the rule to show cause was granted.

      Whitesell Son and McCreery & Erskine, for defendants in error.
    After an agreement for a submission has been executed, neither party can revoke it: Shisler v. Keavy, 25 P. F. Smith 79; Rogers et al. v. Playford, 2 Jones 181; McCahan v. Reamey, 9 Casey 535; Rust v. Caldwell, 25 P. F. Smith 165; Wilson v. Brown, 1 Norris 437. Every presumption will be made in favor of an award vrhen it is in pursuance of a submission made by the parties themselves. In this ease, the reference was not only made and agreed to in open court, but a written agreement was entered into. The defendants and their attorneys had due and timely notice as well as the arbitrators, and if the defendants and their attorney did not attend the three meetings, it is their own misfortune.
    October 25th 1880.
   Mr. Justice Paxson

delivered the opinion of the court,

This record presents the single question whether the court below was right in refusing to set aside the award of arbitrators. The cause was referred by agreement of counsel in open court. The power of an attorney to refer his client’s cause is settled: Wilson v. Young, 9 Barr 101, If dissatisfied, the client can revoke the submission or ask the court to set aside the 'reference before it has been executed: Miller v. Criswell, 3 Barr 449 ; Bingham’s Trustees v. Guthrie, 7 Harris 418. It appears from the record that the rule to show cause why the agreement of reference should not be set aside and the submission stricken off was taken prior to the meeting of the arbitrators. It was, therefore, in time, and had the defendant below been in a position to ask the court to strike off the submission, such order would probably have been made. This, however, the court declined to do, and discharged the rule. We cannot say this was error. While the right of a party to revoke a submission, whether entered into by counsel or by himself, is conceded, the record shows the defendant obtained an advantage by the agreement of his counsel. The cause was called for trial in the court below in the absence of defendant and his witnesses, whereupon defendant’s counsel, to avoid a judgment against his client, agreed to refer the case and thus took it out of court. Having obtained the benefit of the delay, it does not lie in the mouth of the defendant to repudiate the act of his attorney and deny his authority. He received a consideration for the submission which made it irrevocable.

Judgment affirmed.

Gordon, J., dissented.


author: Per Curiam. —

text:
    Kiern versus Ainsworth.
    1. Where a cause was tried on a plea which does not appear of record, it may be shown by parol and by the charge of the court that such a plea was allowed and not reduced to writing.
    2. Where one party to an action sets up under a plea of accord and satisfaction a note held by the other, he will be estopped from making a defence in an action on the note.
    October 4th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, J J.
    Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1880, No. 2.

      This was an action upon one of ten judgment notes brought by Elizabeth A. Ainsworth, for the use of her children, against Henry Kiern. Judgment was entered upon the notes, but upon application of Kiern they were opened and he let into a defence. The notes were given by Kiern to the husband of the plaintiff on an occasion when Kiern was detected by Ainsworth in illicit relations with the plaintiff, his wife. Ainsworth subsequently brought an action of crim. con. against Kiern, and obtained a judgment thereon for $62.50.
    At the trial of the present case, Kiern offered, without objection, the record in the action of crim. con., and proposed to show that the notes in suit were given because of the same matter, and claimed that the judgment therein constituted an absolute defence to a recovery on the notes.
    The record in said suit did not show that there was a plea of accord and satisfaction therein, but the plaintiff was permitted to offer testimony to show that by leave of court such a plea had been allowed but not reduced to writing. And also to prove the charge of the court to show that the defendant had set up the notes as a settlement of the alleged damages.
    The court instructed the jury to find for the plaintiff. The defendant then took this writ, and alleged that the court erred (fifth specification'of error) in allowing the plaintiff to introduce the testimony above referred to.

      Robert Pollock, for plaintiff in error.
    The entire claim of the plaintiff below was embraced in the issue in the crim. con. case, and the verdict and judgment in that case are conclusive in all matters embraced therein. If the defendant in the crim. con. case did not give the judgment notes in evidence on the trial, then he is not estopped from setting up the record of that case in bar in a future trial for the same cause of action, and he offered to prove this by a witness present. It cannot be urged that because the notes were offered in evidence on behalf of the plaintiff in that case, to show that the defendant acknowledged his guilt, that therefore the defendant, Kiern, was estopped from setting up the record of that case as a bar in the note cases. Yet in this one proposition lies this whole case.

      J. S. Ferguson, for defendant in error.
    In the trial of this case we claimed no technical estoppel against the defendant; but we did claim, that as he had in open court solemnly aflirmed his liability upon the note in suit, and had received the full benefit of that affirmation upon his own showing, and neither gave nor attempted to give any evidence to show that he was not liable, the plaintiff, under all the evidence, was entitled to recover.

      October 18th 1880,
   The judgment of the Supreme Court was entered,

Per Curiam. —

The first and second errors assigned are not material, and have not been insisted on. The material and only material question in the case is, whether the defendant below having relied in his action of crim. con. upon the ten notes given in favor of Mrs. Ainsworth as a settlement of plaintiff’s claim, and having filed a plea of accord and satisfaction in that case setting up these notes as received in full payment and satisfaction, wasestopped thereby from taking defence in this case that they were given under coercion, and were invalid. The rule is nemo allegans contraria audiendus est. We are of opinion on the whole evidence that the direction of the learned judge below to the jury to find a verdict for the plaintiff was right.

Judgment affirmed.


author: Mr. Justice Gordon

text:
    Watterson’s Appeal.
    1. Although a widow’s statutory interest in the lands of her deceased husband, under the Act of 1833, comes not within the definition of common-law dower, it is, nevertheless, an estate of freehold, and said interest vesting, as it does, in her at the instant of her husband’s death can only be divested by her own act, as by accepting under her husband’s will, or by her deed or writing, as prescribed by the Statute of Frauds and Perjuries.
    2. Once invested with title the widow cannot divest it by parol without consideration as against creditors, and not having parted with it prior to her bankruptcy it passes to her assignee.
    October 5th 1880.
    Before Sharswood, C. J., Mercur, Gordon, PaxsonI Trunkey, Sterrett and Green, JJ.
    Appeal from the Orphans’ Court of Allegheny county : Of October and November Term 1880, No. 165.
    Appeal of A. Y. D. Watterson, trustee cum testamento annexo of the estate of William Maloney, deceased, from thn decree of court upon the exceptions to the account of appellant as said trustee.
    On the 28th of December 1870, William Maloney died, leaving a widow and five minor children. By his will he, inter alia, made the provision in regard to his policy of life insurance which will be found in the opinion of this court.
    On June 1st 1878, John Mullin was discharged from his execu: torship of said decedent’s estate, and appellant was appointed trustee, cum testamento annexo, in his place. On October 15th 1879, appellant was cited by the assignee in bankruptcy of Mullin & Maloney, to file his account as trustee of said estate. He complied therewith; and to said account the assignee filed, inter alia, the following exceptions : 3. By the will of William Maloney Mrs. Bridget Maloney is entitled to one-third of the rents collected from the trust estate, which now is payable to exceptant as her assignee in bankruptcy, and the accountant has paid over to her all the rents collected by him except the taxes, &c., and this without an order of court. His action is excepted to, and exceptant claims the one-third of the net income from said estate, and, therefore, asks that accountant be surcharged with one-third of the amount so unlawfully paid out, to wit, about the sum of $808.35.
    4. All the items of cash claimed credit for in said account as paid Mrs. B. Maloney, guardian, are objected to as improper.
    It was claimed on behalf of the assignee in bankruptcy of Mrs. Maloney, that she must be presumed to have elected to take under the intestate law as widow, and that he was entitled, by virtue of the assignment to her interest so derived.
    On the contrary it was alleged that Mrs. Maloney elected to take, ..and actually received the insurance money, in lieu of her dower and interest in said estate, a short time after the decease of her husband, the contents of the will having first been fully and satisfactorily explained to her. This claim, it was contended, was supported by the testimony. Mrs. Maloney testified, “ I did not want any of the real estate; there was very little for the children at the time : I was very well satisfied. I decided at the time,” (of her husband’s death) “ and when Mr. Fetterman read the will to me, I told him I would take the money; he said that if I so decided I would not have anything under the will; 1 told him I did not want anything else under the will.” Also, “ I was perfectly satisfied ; I had knowledge of the will before my husband’s death : he told me what he was going to do; I was perfectly satisfied.” The question having been asked her, “ Bid you ever change that decision afterwards and claim any part of the estate ?” She replied, “No, sir; never! never claimed any.” She, in fact, never received anything from the executors or trustee, as widow, under the intestate law, and during the lapse of years between the death of her husband and the bankruptcy proceedings never claimed anything. On the contrary, she frequently asserted that she desired nothing else from her husband’s estate. “ I decided to take nothing at all of the real estate; it (the insurance money) was enough for me at the time ; I considered I had a .very good share at that time; it was enough for me at the time — even more than my share.”
    G. L. B. Fetterman, testified : “ I told her, unquestionably, and my recollection is — I may be mistaken — but my recollection is that I explained to her also the effect of her election upon the intestate law; I am satisfied that she knew from the conversations, and I endeavored to make the conversations as clear as possible to her, that she knew what her rights were under that will and under the intestate law. I told her if she took the $10,000 she was cut out from taking anything else under the will, and my impression is I told her at the same time what her rights were under the intestate laws, and she determined to take the $10,000.” And on this point John Mullin testified, as follows: “Yes, sir; she took the $10,000 ; she took it in the place of her dower; she had nothing to do with the estate; she communicated that fact to me, what she would take ; she decided she would take the $10,000.”
    Miss Mary Maloney, daughter of Mrs. B. Maloney, testified: “ She did thoroughly understand about the will, that she could take her $10,000, and besides that the law allowed her onc-third; but she said she considered the estate was small enough for the children; I wanted her to build on the lots on Robinson street at the time, and have it as a home, and take her third; she said no, that she would rather take the money; my mother took the insurance money.”
    The court, in an opinion, inter alia, said:
    “ There was no contrivance by which William Maloney could have deprived his widow of the right to take both the insurance money and her interest as widow under the intestate laws in his estate, had he attempted it; but he did not attempt it. He said nothing about intestate laws directly or indirectly. He simply made it a condition of acceptance by his widow of benefits under his will, relinquishment by her of individual title to the insurance money, and consent that it become part of his estate. No one denies that he had a perfect right to impose this condition, and she to refuse the will and to take under the intestate laws. Refusal of the one necessarily involved acceptance of the other. That she did refuse acceptance of the benefits of the will, the testimony shows. Her refusal, by mere operation of law, invested her with the interest of widow in his estate. The insurance money was hers, notwithstanding and without the will. It is immaterial that she was ignorant of her right to take both the insurance money and her interest under the intestate laws. Knowledge on her part was unnecessary to vest title in her. Descent is daily cast without the knowledge of heirs, and no one doubts the validity of the title so derived. So, valid deeds may be made without the actual knowledge of the vendee: Reed v. Robinson, 8 W. & S. 329. Acceptance of title in such cases is presumed. Once invested with title, Mrs. Maloney could not divest it by parol without consideration as against creditors. Not having parted with it prior to her bankruptcy, it passed to her assignee: Thomas v. Simpson, 3 Barr 60. In what position, then, stands the trustee ? He made distribution without the authority of this court at his peril. He did not even make inquiry of the widow in w'hat relation she stood to the estate, but assumed-that she was entitled to the whole net income as testamentary guardian, and is, therefore, entitled to the less sympathy for the loss which must result to himself therefrom. The assignee was clearly entitled to the widow’s interest from the date of bankruptcy.”
    The court then made a decree which contained, inter alia, the. following direction:—
    “ That the third exception be sustained, and accountant is surcharged with one-third oí ttie rents received and included in account, less one-third taxes, repairs, &c., $389.74. That the fourth exception be sustained, and that the amount surcharged as above, viz., $565.66, be paid by the said trustee to the assignee in bankruptcy of the firm of Mullin & Maloney, less the clerk’s costs in this proceeding.”
    From this decree this appeal was taken.

      A. M. Brown and A. V. D. Watterson, for appellant.
    Mrs. Maloney knew „the nature and extent of her husband’s estate, and is bound by her election. An election may be by parol as well as in writing, and it may be evidenced by long acquiescence: Cauffman v. Cauffman, 17 S. & R. 16. For a period of ten years Mrs. Maloney neither received nor claimed any interest in her husband’s estate, nor does she now. Any testamentary provision, clearly intended to be in lieu of dower if accepted deliberately and understandingly, will be a bar to a claim for dower : Duncan v. Duncan, 2 Yeates 302; Hamilton v. Buckwalter, Id. 389; Herron v. Hoffner, 3 Rawle 393 ; Allen v. Martin, 2 P. & W. 310; Cox v. Rodgers, 27 P. F. Smith 160; 4 Kent’s Com. 57; Kennedy v. Mills, 13 Wend. 553. Lapse of time renders an election absolute and precludes the right to avoid it by a tender of compensation : Fulton v. Moore, 1 Casey 468, 476; vide note to Streatfield v. Streatfield, Leading Cases in Equity, vol. 1, part 1, 541, 573.
    As to what acts determine an election, vide Ardesvife v. Bennet, 2 Dick 463; Butrick v. Broadhurst, 1 Vesey 170; 2 Story Eq. Jur., sects. 1097, 1098; Frank v. Frank, 3 Myl. & Cr. 171; Brice v. Brice, 2 Malloy 21; Thurston v. Clifton, 21 Beavan 447; Earl of Northumberland v. Earl of Aylesford, Ambler 540; Blunt v. Gee, 5 Cal. 481; Clay v. Hart, 7 Dana (Kentucky) 1, 6; Thompson v. Hoop, 6 Ohio 480; 1 Leading Equity Cases 302, 320, 321, and cases there cited.

      Barton $ Sons, Josiah Cohen and H. H. MeCormiclc, for assignee.
    All the decisions cited by the counsel on the other side go to show that when the widow takes something under the will of the husband which she was not entitled to under the intestate laws, that then she is estopped from afterwards repudiating the will and claiming under the intestate law ; but in this case she did not receive anything under the will, the insurance money was her own. But as she took nothing under the will, it left her as if no will had ever been made, and entitled to take, under the intestate laws. Her interest at that time was a vested interest in her deceased husband’s real estate, of which she could only divest herself by writing, signed by her, the party to be bound.
    November 8th 1880.
    [Watterson’s Appeal.]
    The assignee was such, not only of the firm, but also of John Mullen and Bridget Maloney individually. His title to the assets dates back to December 3d 1877, the date of their adjudication as bankrupts. And, of course, whatever title Bridget Maloney then had in this estate passed to her assignee or the use of creditors.
   Mr. Justice Gordon

delivered the opinion of the court,

Though a widow’s statutory interest in the lands of her deceased husband, under the Act of 1833, comes not within the definition of common-law dower, it is, nevertheless, an estate of freehold: Schell’s Appeal, 4 Wright 170; Gourley v. Kinley, 16 P. F. Smith 270; Bachman v. Chrisman, 11 Harris 162. Moreover, this interest, vesting as it does in her at the instant of her husband's death, can only be divested by her own act, as by accepting under her husband’s will, or by her deed or writing, as prescribed by the Statute of Frauds and Perjuries. Mrs. Bridget Maloney, immediately on the death of William Maloney, her husband, had vested in her an estate for life in the one-third of the realty of which he died seised, which, in due course of law, passed to the assignee in bankruptcy of the firm of Mullin & Maloney, of which firm she was a member, unless previously to the bankruptcy of that company she had, by some means, been divested of that estate.But this effect could not be produced by her oral declarations to Mr. Fetterman and others, that she had no interest in her husband’s estate, and that she desired the whole of it to go to her children. The Statute of Frauds and Perjuries rendered such declarations of no account whatever. Unless, therefore, her estate was barred by her acceptance under the will of her husband, that estate remains intact, and has passed to her assignee.

Now, it is hardly worth our while to examine authorities as to the effect of the acceptance, by a widow, of a testamentary provision in her favor upon her dower, for all that is definitely settled by our'Act of Assembly. If Mrs. Maloney did accept under the will of William Maloney, whether in writing or parol, or whether that will gave her little or much, the appellant has made out his case, and he must have a reversal of the decree of the court below.

Thus the case turns upon a question of fact, and about the law bearing upon it there is, or ought to be, no controversy.

Let us, then, consider the provisions of the will and her action upon them. The eighth item provides as follows: “ Whereas, I have a policy on my life in the Ætna Life Insurance Company, of Hartford, Connecticut, No. 47,986, for the sum of ten thousand dollars, for the benefit of my wife, Bridget Maloney, and, whereas, it is my desire that the same should be considered as part of my estate, and follow the directions hereinafter, in item ninth, provided for my residuary estate, I hereby direct my. executors, with the consent of my wife, to invest the amount of said life insurance, when collected, in good productive real estate fór the benefit of my family, the same to follow the dispositions hereinafter provided in item ninth for my residuary estate. But in the event of my wife refusing to consent to said investment and disposition thereof, and requiring the whole insurance money to be set apart for her sole and separate use and benefit, then and in such case, I hereby will and direct that she take under this will nothing but the said sum of ten thousand dollars insurance money, and that all the devises and bequests to her under this will be null and void and of no effect.”

It will be observed that whether the policy above mentioned, and which belonged to Mrs. Maloney, should become the subject of the devise or not depended upon her assent. If she refused to agree to his wishes, the policy dropped out of the will, since of himself he had no power to make it the subject of devise.

She did refuse to have her own property thus disposed of, and by this refusal she was as effectually put out of the will as though she had never been mentioned in it, or as though she had formally refused to accept under it.

What, then, did she take by virtue of the will ? ’ For in order to bar her dower she must have received something by force of that instrument. “I hereby direct,” says the testator, “that she take under this will nothing but the said sum of ten thousand dollars insurance money.”

This, however, confessedly, she took not by virtue of the will, but by virtue of her own right. He certainly could not give to her what he had not to give. In fact he made no such attempt. He but provided that should she allow.her property to come into his will, she should have the - benefit of certain devises which included that property, but if she would not so agree, ,she was to be wholly excluded from the provisions of that instrument, and left to her legal rights.

It is, then, as we have already said, manifest that she took nothing under the will by which her dower could be barred. What she got was her own property, and this she would have had had the will never been written. It is therefore idle to say that, by keeping her own property, she elected herself out of her dower.

The doctrine of election would have applied had she chosen to take under the will; for, by that act, she would have at once surrendered her right both to the life policy and to dower, but there could be no such effect when she refused to accept the devise in her favor. It would, indeed, be monstrous if a husband could thus devise a wife out of her dower, and that in spite of her legal right of election. As in the present case, a husband devises to his wife her own property, and, as to her, it is all loss and no gain; if she accepts her dower is gone, but if she refuses to accept, and elects to retain her own property, she also loses her dower. This will not do; a devise of this kind has not even the recommendation of ingenuity; it is a mere fraud on the rights of married women, and a gross perversion of the laws provided for their protection.

Decree affirmed, appeal dismissed, and it is ordered that the costs be paid by the appellant.

Chief Justice Sharswood dissented.


author: Mr. Justice Mercur

text:
    Stabler versus The Commonwealth.
    1. The mere delivery of poison to a person and soliciting him to place it in the spring of a certain party is not “ an attempt to administer poison,” within the meaning of the 82d section of the Act of March 31st 1860.
    2. The act proved did not approximate sufficiently near to the commission of murder to establish an attempt to commit it within the meaning of the statute.
    October 5th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Error to the Court of Quarter Sessions of Allegheny county: Of October and November Term 1880, No. 188.
    Indictment of Alois Stabler for an attempt to administer poison and solicitation to commit a felony.
    The first count charged that the defendant feloniously did attempt to administer a certain poison, commonly called Paris green, * * * to one Richard E. Waring, * * * with intent to commit the crime of murder, and to feloniously kill and murder the said Richard F. Waring, &c.
    The sixth count charged that defendant did falsely and wickedly solicit and invite one John Neyer, a servant of the said Richard E. Waring, to administer a certain poison and noxious and dangerous substance commonly called Paris green, to the said Richard E. Waring, and divers other persons whose names are to said, inquest unknown, of the family of the said Richard F. Waring, &c.
    There having been no official notes of testimony taken on the trial of the case in the court below, it was agreed that this court should treat the following as being all the testimony bearing on the first count of the indictment.
    “ The only witness sworn was John Neyer, who testified that he had a conversation with Alois Stabler, over a year before the information was made against him, in which Stabler stated his grievance against Waring, and stated his (Stabler’s) determination to be revenged, and then solicited Neyer to put poison in Waring’s spring, so that he and his' family would be poisoned, and offered the witness a reward therefor, and gave him directions how to administer the poison, and gave him the poison to so administer. That the witness refused to administer the poison, and said he would not have anything to do with it, and handed the poison back to Stabler. That the witness had his coat off when the two were talking together. Three or four days after this conversation, the witness, upon putting on his coat, found a package in his coat pocket, which he believed was the same package that Stabler had handed him. That the witness shortly after left the city of Pittsburgh and went to Toledo, Ohio, where he remained several months. That he again returned to Pittsburgh, about a year after the conversation with Stabler, and then, for the first time, told a party about what had taken place, and handed this party the package of poison.
    “That the witness never had any intention of administering the poison, and never did anything towards it, and never had any other conversation with Stabler about the matter except the one stated.”
    The court, Ewing, P. J., charged the jury:—
    “ That, if they believed the testimony of John Neyér, and found that the defendant, Stabler, in a conference with him had stated his grievance against Waring, and his determination to be revenged, and solicited Neyer to put poison in Waring’s spring or well, so that he and his family would be poisoned thereby, and offered him a reward therefor, giving him directions how to administer the poison, and gave him the poison to so administer, which having been handed back, was, in the same conference, put by Stabler, the defendant, into the coat pocket of Neyer, and left'there, expecting and believing that he would place the poison as requested, it constituted an attempt, and they might find the defendant guilty on the first count of the indictment.”
    The jury found a verdict of guilty on both the above counts. The defendant moved for a new trial and in arrest of judgment. The court overruled both motions and pronounced a separate sentence on each count. No complaint was made of the conviction on the sixth count, but the defendant took this writ and alleged that the court erred, inter alia, in charging that the testimony of Neyer was sufficient to sustain a verdict of guilty on the first count

      W. C. Moreland and Newton C. Cook, for plaintiff in error.
    An attempt to commit a crime is an endeavor to accomplish it, carried beyond mere preparation, but falling short of the ultimate design. In Kelly v. Commonwealth, 1 Grant 488, &c., under an indictment for murder, in which the Commonwealth charged that the crime was committed in an attempt to commit rape, Thompson, C. J., says: “ An attempt is an ineffectual offer by force. Acts are necessary to constitute an attempt. It should be actual, not constructive. The intent is not equivalent to an act demonstrative of an attempt.” The proof here did not sustain the allegation. The Act of 1860, sect. 82, Pamph. L. 403, under which the indictment was drawn, follows the statute of 1 Vict. c. 85, sect. 3, which has received the construction for which we contend : Regina v. Williams and Ross, 1 Car. & K. 586 ; s. c. 1 Dennison s Crown Cases 40. Whilst it is true that foreign cases cannot override the express words of a Pennsylvania statute, it is equally true that where a foreign statute agrees with our own, and such statute has received a judicial construction, the latter will be accepted as some authority upon the true interpretation of the statute, and what is intended to be directed or prohibited by it.
    October 25th 1880.
    The case of People v. Bush, 4 Hill 134, on which the court below relied, was decided on a statute of New York differing materially in some of its language from the Act of 1860.

      John S. Robb, District Attorney, for -the Commonwealth.
   Mr. Justice Mercur

delivered the opinion of the court,

This indictment contains six counts. A conviction was had on the first and sixth, and sentence was pronounced on each separately. The first charges a felonious attempt to administer poison to one Waring with intent to commit the crime of murder, and feloniously to kill and murder him; the sixth, with wickedly soliciting one Neyer to administer poison to said Waring. No error is now alleged to the conviction and judgment on the sixth count. The conviction on the first, and the judgment thereon, are assigned for error. This count is framed under sect. 82 of the Act of March 31st 1860, Purd. Dig. 340. It declares, “ If any person shall attempt to administer any poison or other destructive thing, or shall attempt to cut or stab or- wound, or shall shoot at any person, or shall, by drawing a trigger or in any other manner, attempt to discharge any kind of loaded arms at any person, or shall attempt to drown, suffocate or strangle any person, with intent, in any of the cases aforesaid, to commit the crime of murder, he shall, although no bodily injury be effected, be guilty of felony, and be sentenced to pay a fine of $1000, and undergo an imprisonment, by separate or solitary confinement, not exceeding seven years.”

All the testimony to prove the first count was the evidence of Neyer. He testified to a conversation which he had with Stabler more than a year before the information was made against' him. His testimony is substantially this. Stabler stated his grievance against Waring, and a determination to be revenged. He solicited witness to put poison in Waring’s spring so that the latter and his family would be poisoned, offering him a reward for so doing. He handed witness the poison, and directed how it should be administered. Witness replied he would have nothing to do with it, and handed the poison back to Stabler. While they were conversing the coat of witness was off; on putting it on three or four days thereafter, he found a package in the pocket, and believed it to be the one that Stabler had handed him. Soon after this witness left the state, and did not return until about a year thereafter. He then for the first time related the conversation to a person, and handed him the package of poison. He further testified that he never had any intention of administering the poison, and never did anything towards it, and had no other conversation with Stabler about the matter.

Is this evidence sufficient, within the meaning of the statute, to prove an attempt on the part of Stabler, to administer the poison ? The act recognises a distinction between intent and attempt. The former indicates the’ purpose existing in the mind, the latter an act to be committed. Merely soliciting one to do an act is not an attempt to do that act: Rex v. Butler, 6 C. & P. 368 ; Smith v. Commonwealth, 4 P. F. Smith 209. In this last case it was said, “ in a high, moral sense it may be true that solicitation is attempt; but in a legal sense it is not.” In some cases it has been held, although a solicitation to commit a misdemeanor, does not constitute an attempt to commit the misdemeanor; yet a solicitation to commit a felony does constitute an attempt to commit the felony. This view does not appear to have been adopted in Pennsylvania. The case of Kelly v. Commonwealth, 1 Grant 484, was an indictment for murder charged to have been committed in an attempt to commit a rape. It was held that acts were necessary to constitute an attempt. That an attempt to commit a rape was an ineffectual offer by force with intent to have carnal knowledge. If such acts, with such intent, were not proved, the prisoner could not be convicted of the attempt; that it should be an actual, not a constructive attempt. An intent to commit fornication was insufficient.

In the present case it is contended that putting the poison into the pocket of the witness was an act sufficient to constitute the attempt, if Stabler expected and believed it would be used as he had requested. The uncontradicted evidence is, that it was so put' without the knowledge of the witness, and after his positive and unqualified refusal to use it. He swears he never used it or attempted to use it, or had any intention of so doing. To submit to the jury to find that Stabler expected and believed the witness would administer it, was not only without evidence but against the evidence. If, however, it was actually delivered with that intent, we do not think it constituted an attempt to murder under the 82d section of the Act of March 31st 1860. This section is substan tially a copy of third section of the Act of 1 Victoria, chapter 85. In an indictment under that act, in Regina v. Williams et al., 1 C. & K. 589, it was held, that the delivery of poison to an agent, with directions to him to cause it to be administered to another, was insufficient to establish an attempt to murder. So on an indictment under the same chapter for attempting to discharge loaded firearms at a person, it was held, in Regina v. Lewis, 9 C. & P. 523, that some act must be shown to prove the person did attempt to discharge the firearms, and merely presenting them was not sufficient. Upon an indictment for attempting to discharge a pistol loaded with powder and ball with intent to murder, a witness testified,

the prisoner took out a small pistol and said, ‘ I will settle you,’ or ‘I will do you,’ and either half or full cocked the pistol, and pointed the muzzle at my brother,” with his finger on the trigger; yet it was held the charge of felony could not be supported, as it was not proved that the prisoner drew the trigger: Reg. v. St. George, Idem 483 (38 E. C. L. R.). Parke, B., said, “ here a trigger was to be drawn, and it is not drawn. It seems to me thobject of this act was to furnish proximate attempts, that is those attempts which immediately lead to the discharge of loaded arms.” It is true, in People v. Bush, 4 Hill 133, a conviction was sustained for an attempt to commit a felony, where the ant proved was as remote from the crime intended to be perpetrated, as the act proved is in the present ease. That ruling, howeven. rests on a statute of New York, which contains language not in the Act of 1 Victoria, cited, nor in our own statute. It has the additional words, and in such attempt shall do any act toward the commission, of such offence.” In giving construction to a statute containing such language, a conclusion may well be reached, that would be forced and unjust in construing our statute which is so different.

The conduct of the plaintiff in error, as testified to by the witness, undoubtedly shows an offence for which an indictment will lie without any further act having been committed. He was rightly convicted, therefore, on the sixth count.

We, however, think, all that occurred at the interview with the witness, and the legal inference deducible therefrom, followed by no other act, are not sufficent to justify a conviction for an attempt £o commit the felony as charged. The act proved did not approximate sufficiently near to the commission of murder to establish an attempt to commit it within the meaning of the statute.

The seppnd and third assignments.are sustained; and on the first count

Judgment reversed.

Sterrett J, diggsnted.