author: by Agnew, J.

text:
    Patterson versus Clyde.
    1. A railroad company which had carried goods to Alexandria, shipped them on Clyde’s steamer to be delivered to Patterson in Philadelphia, and took from Clyde a bill of lading and receipt in the name of the company. "Whatever contract of carriage was made with Clyde -by the company, became the contract of Patterson.
    2. The company were the agents of Patterson, and in a suit by Patterson against Clyde for the loss of' the goods, evidence of the terms of the contract between the company and Clyde was ’proper.
    3. The receipt of Clyde for the goods, excepted “ the dangers of fire while on, board the vessel,” &c. In an action by Patterson for the loss of the goods, it was admitted that the steamer and the goods were burned on her voyage. Meld, that the onus was on Patterson to show negligence in Clyde.
    4. Pire was the thing excepted against and when a loss by fire was shown the thing éxeepted was proved.
    5. Parnham v. Camden and Amboy Railroad, 5 P. P. Smith 53, adopted.
    February 21st 1871.
    Before Thompson, C. J., Agnew, Sharswood and Williams, JJ. Read, J., at Nisi Prius.
    Certificate from Nisi Prius: No. 83, to January Term 1867.
    This was an'action on .the case by Robert Patterson against Thomas Clyde and Thomas H. Pierce.
    The declaration set out that the defendants were the owners of the steamboat “ Liberty,” on the Potomac river, bound for Philadelphia, and were common carriers of goods from Alexandria on the Potomac river to Philadelphia; that the plaintiff on the 1st of January 1866, shipped at Alexandria 17 bales of cotton to be carried safely to Philadelphia; that the defendants did not safely carry the cotton nor deliver the same, but so carelessly and negligently behaved and conductéd themselves, that the cotton was wholly lost to the plaintiff.
    On the trial, before Williams, J., it was agreed:—
    1. That the defendants are and were running a line of steamers between Alexandria, Va., and Philadelphia for the transportation of goods, and were owners of the steamer “Liberty.”
    2. That on the 4th of January'1866, 17 bales of cotton, weighing each, and of the value of 47;cents per lb., were shipped by the Orange and Alexandria Railroad Company, upon the said steamer, consigned to the plaintiff, which cotton was part of a shipment from Atlanta, Na., to the plaintiff.
    3. That on the morning of the 5th of January 1866, while the said steamer was on her way from Alexandria to Philadelphia, the said steamer with all her cargo,.including said cotton, was entirely consumed by -fire.
    The “Liberty” was running on the New Express Lin'e between Philadelphia and Alexandria, &e.
    The plaintiff then closed.
    The defendants gave evidence, by the deposition of. Francis A. Reed, á partner in the firm of M. Eldridge & Co., who were agents of the New Express Line, that there was a contract for the shipment of the cotton by a hill of lading, which was issued to the Orange and Alexandria Railroad Company, who were, the shippers and the persons from whom .the cotton was received. The instructions, were to send it by the “ Liberty,” then in port, and deliver it to R. Patterson, Philadelphia.
    To a cross-interrogatory on the part of the plaintiff he answered, that the bill of' lading was written out before William- M. Reardon, clerk in the employment of M. Eldridge & Co., and by this deponent delivered to Mr. W. Y. Henry, local freight agent at that time for the 0. & A. Railroad in the office of M. Eldridge & Co., No. 4 South wharves. That said bill of lading was written out and delivered in the presence of the deponent on the 5th day of January, a. D. 1866. That the said steamer Liberty did not sail until late the previous day, and although bills of lading were duly prepared, yet owing to the lateness of the hour they were not as to most of them delivered until the following day. That at the time Mr. Henry called for his, he was not aware of the loss .of the Liberty, though this deponent believes the news had just reached the office of M. Eldridge & 'Co. through the captain.
    The defendants then gave in evidence the bill of lading, which, after- the conditions, contained the following:—

      * *■ * “ Received from 0. & A. Railroad, on board ‘ Liberty,’ seventeen bales of cotton, marked and numbered as in the margin hereof, which are to be delivered at Philadelphia (the dangers of fire while on board the vessel or on shore, accidents from machinery, -boilers, steam, or any other accidents and dangers of the seas, rivers, inland canal, and steam navigation, of whatever nature or kind, excepted), to R. Patterson upon surrendering this receipt at our office at the above port, and paying freight and charges therefor.” * * *
    "The defendant then called Francis A. Reed, above named, who, under objection and exception, said :—

      “ There was a contract with the Orange & Alexandria Railroad Co. The contract was in existence before the loss of the ‘ Liberty ;’ it was a verbal contract that the Express Line would take freight consigned by the Orange & Alexandria Railroad to Philadelphia, subject to the conditions of the bill of lading of our company.
    “ There was a distinct understanding that the company would not be liable as insurers. This is a copy of the bill of lading used by us.”
    ' " • “ I made the contract with the president of- the Orange and Alexandria Railroad Co., Mr. Andrew Jamison. Its terms were that we would take freight offered by them subject to the conditions of the bill of lading.

      “ The contract was made in the fall of 1865, at Alexandria, in front of our office. We are in the habit of- issuing bills of lading’ when the shipper calls. Our general rule is not to issue them unless called for.
    “I approached Mr. Andrew Jamison; he was the president appointed by the Board of Public Works, to take charge of the road at the close of the war. The arrangement was to apply to both our lines (to Philadelphia, and to New York); we were to take freight at fixed rates subject to the terms of our bills of lading. I have stated all that took place at the conversation with •Mr. Jamison; there was no paper or instrument of any kind before us. • „
    “ The bill of lading was not delivered because it was too late when the steamer started. Mr. Henry asked for it on the morning of January 5th (1866), after the steamer was burnt. This •cotton was the last thing to go on board. It was dark — 5 o’clock. The agent did not give us the name of the consignees, and-we could not make out the manifest. The railroad company were in the habit of asking for bills of lading.”
    Williams, J., charged the jury:—

      “ The question for the determination of the jury is, what- was the contract under which the cotton'was shipped? ' Was it the ordinary, common-law contract of a common carrier ? Or was it a contract of limited liability ?
    “ The witness Reed, whose credibility is for you, says that he had previously contracted to take all the goods from the Orange & Alexandria Railroad Co., under and subject to the defendants’ bill' of lading, which contained an exemption from liability for losses by fire. In addition to his testimony, there is .the fact that' the bill of lading delivered the next day, contained such an. ex-. emption. If this bill of lading was agreed to — if it was in pursuance .of a previous contract, under which the cotton was shipped, the defendants might well deliver it the next day — although the loss had actually occurred. The acceptance of the bill of lading by the shipper the next day is some evidence pf the contract. . It would lie upon the shipper,-when he received a bill, of lading, it seems to me, to show that it was received through some mistake or fraud, in order to defeat the presumption that it contained the contract under which the goods were shipped. If the shipper takes the bill of lading, reads it-and files it away, the presumption is that it was the contract. ' In this case there is no evidence of any fraud or mistake as it respects the delivery and receipt of the bill of lading. If you find that the cotton was shipped under such a contract as that contained in the bill of lading, your verdict will be for the defendants, otherwise it will be for the plaintiff for the value of the cotton shipped on board of the defendants’ boat.”
    The verdict was for the defendants.
    The plaintiff had the record certified to the court'in banc, and assigned for error, the admission of the evidence objected to and the charge of the court.
    ■ A. D. Oamplell and J. JE. Growen, for plaintiff in error.
    The verbal contract testified to by Reed did not amount to a contract, but merely to a notice, and that as such it was necessary to show that knowledge of it was brought home to the plaintiff: Judson v. Western Railroad Corporation, 6 Allen (Mass.) 486; Perry v. Thompson, 98 Mass. 249; Buckland v. Express Co,, 97 Id. 124. A common carrier may limit his liability by contract, notice or special acceptance, except in cases of negligence: Bingham v. Rogers, 6 W. & S. 495; Laing v. Colder, 8 Barr 479; Camden & Amboy Railroad Co. v. Baldauf, 4 Harris 67. Carriers are bound to furnish a reasonable explanation of the loss, or at least to give some account of the circumstances of the loss, before the plaintiff can be required to prove affirmatively that the loss occurred from a cause not within the exemption: Beckman v. Shouse, 5 Rawle 179; Beardslee v. Richardson, 11 Wend. 25; Clark v. Spence, 10 Watts 335; Verner v. Sweitzer, 8 Casey 208; Whitesides v. Russel, 8 W. & S. 44; Hays v. Kennedy, 5 Wright 378; Davidson v. Graham, 2 Ohio N. S. 133; Farnham v. Camden & Amb. Railroad, 5 P. F. Smith 53; Am. Exp. Co. v. Sands, Id. 140.
    March 20th 1871,

      M. O. McMurtrie, for defendants in error.
    The practice is to leave the.goods on a receipt, and then call for the bill of lading: Abbott on Shipping 321, pt. iv. ch. iv.,-§ 2.
    The onus is on the consignee to prove negligence in the carrier under a bill of lading such as this: Abbott on Ship. 390 ; Story Bail. §§ 512, 573; Marsh v. Horne, 5 B. & C. 323; Muddle v. Stride, 9 Carr. & P. 380; Lowe v. Booth, 13 Price. 329; Ross v. Hunter, 4 Term R. 33; Bell v. Reed, 4 Binn. 127; 2 Stark. Ev. 205; Farnham v. The Cam. & Amb. Railroad, supra; Butt v. The Great Western Railway, 11 C. B. 140; Harnden v. New Jersey Nav. Co., 6 Howard 344; Plate v. Hubbard, 7 Cow. 500.
   The opinion of the court was delivered,

by Agnew, J.

This 'action is directly against the defendants as carriers from Alexandria to Philadelphia. The plaintiff had no connection with them except through the Orange and Alexandria Railroad Company. The defendants not being liable for or privy to the transportation over the railroad line, and the railroad company being the only shipper known by them, whatever contract was made with them by the railroad company for the shipment from Alexandria to Philadelphia^ necessarily became the contract of the plaintiff. . It is unlike the case of a contract with a carrier to deliver at a' point beyond the termination of his own route, by which he makes himself liable for the acts of others on the terms of the original shipment.. Here the defendants contracted only for themselves, and the railroad company necessarily became the agent of the plaintiff. He is consequently bound by the terms of their shipment. Clyde v. Graver, 4 P. F. Smith 251, cited on this.point, is totally different in its circumstances. The offer of evidence to prove the terms on which the railroad company made the shipment was to provena contract and not a mere notice. It was properly allowed.

The real question tried was, whether the contract of shipment was the ordinary one for carriage, or was limited in its terms against loss by fire. The restriction has been found by the jury on sufficient evidence. The proof is clear, that all shipments by the Orange and Alexandria Railroad Company were, by express agreement, between that company and the defendants to be made upon the terms of the defendants’ bill of lading, containing an express exception of the damages of fire while on board the vessel or on shore.” The delivery of the goods was late in the evening (about dark),"and the bill of lading was made out next morning;. the vessel starting in' the .mean time, and having been burnt up the same night with all her cargo. The practice of taking receipts for the goods upon delivery on hoard, and making out the bill of lading afterward, is one of common usage, caused by the press of business, and the ordinary bustle and haste in receiving cargo. It is recognised in Abbott on Shipping, part IV. ch. 4, § 2. The contract limiting liability being established, the plaintiff raised the question of the onus of proof as to the loss, and that is the only question for our consideration. The plaintiff contends that the defendants must show not only the loss by fire, but 'that every proper precaution was taken against it, and the absence of all negligence. To determine this point properly, we must notice the precise statement of the case. To facilitate the proof of his case the plaintiff' gave in evidence the following agreement: “ It is agreed to be admitted in evidence on the trial of this case:

“ 1. That the defendants are and were running a line of ' steamers between Alexandria, Va., and Philadelphia, for the transportation of goods, and were owners of the steamer ‘Liberty.’

“ 2. That on the 4th of January 1866, seventeen bales of cotton, weighing - each, and of the value of forty-seven cents per pound, were shipped by the Orange and Alexandria Railroad Company, upon said steamer, consigned to the plaintiff, which cotton was part of a shipment from Atlanta, Georgia, to the plaintiff.

“3. That on the morning of the 5th of January 1866, while the said steamer was on her way from Alexandria to Philadelphia, the steamer, with all -her cargo, including said cotton, was entirely consumed by fire.”

Now, it is quite evident that this agreement was drawn so as to furnish proof on the part of the plaintiff of the liability of the defendants as • common carriers, if there were no restriction of their common-law liability; and so as to be proof on the part of ■the defendants of the loss by fire, if a restriction existed. The evident purpose was to leave the precise terms of the contract of shipment for further proof. The state of the case then was this: that the defendants thereby had proved a total loss of boat and cargo by fire, while on her proper voyage to the port of delivery, without any circumstances in evidence from which a jury could draw the conclusion of negligence leading to the loss. The question which the plaintiff presents is therefore whether in addition to the proof of a loss by fire in the due course of the ship’s voyage unattended by circumstances indicating negligence, the defendants are bound to prove such care and diligence at and before the time of the fire, as will exclude a presumption of negligence; or in other words, whether they must negative, negligence by affirmative evidence of diligence. This point is ruled by the case of Farnham v. Camden and Amboy Railroad Co., 5 P. F. Smith 53. The principle of that case is, that the burthen 'of the proof of the loss which brings the carrier within the restriction in his contract lies on him; but when he has proved such a loss, unattended by circumstances indicating negligence, the onus of the proof of negligence is cast upon the plaintiff. The effect is, that the carrier must begin the proof, and if he cannot make it without showing negligence, or circumstances from which it will be inferred, he is not exonerated. But when he has shown a loss within the restriction, to require more of him is to limit the restriction and destroy its chief purpose. It is the great risk of fire, not compensated by the ordinary compensation for carriage, and the difficulty of preventing it even with great care, as well as the impossibility oftentimes of proving the attending circumstances,-which constitute the great reason for the limitation of liability from this cause. When vessel and cargo have both been consumed, and the sailors have gone to the bottom, or have been scattered, over the seas in other service, no evidence remains of the attending circumstances and the limitation is useless, if, in addition, the carrier must prove due care and diligence affirmatively. When he has shown a loss within the exception of his contract, without apparent negligence, he has brought himself within the terms of his bargain. On what principle is that bargain to be nullified, by requiring of him the production of that evidence, the loss or difficulty of obtaining which was the very reason for limiting his' responsibility ? He may well say to. the shipper, if this be the rule you would put me under, pay me extra hire for the service, for I might as well omit the restriction if I am held to a measure of evidence I probably cannot furnish. To load -down his contract with this measure of proof is-simply to hold that he may not limit his responsibility. It is surely enough to say to him, if your own evidence shows your negligence you have not acquitted yourself of liability.

The presumption of self-interest as well as of honesty forbids, the idea of a voluntary or a negligent fire, which must cause so much loss to the owner and so much danger to his servant's. That the onus of establishing negligence should rest upon the plaintiff is therefore a proper consequence of the power to limit liability by a special contract, and is, I think, established by authority also: Harris v. Packwood, 3 Taunton 264; Marsh v. Horne, 5 Barn. & Cress. 322; Muddle v. Stride, 9 Carr. & Payne 380; Clarke & Co. v. Spence, 10 Watts 335; Goldey v. Penna. Railroad Co., 6 Casey 246; New Steam Nav. Co. v. Merchants’ Bank, 6 Howard 384; Farnham v. Camden & Amboy Railroad Co., 5 P. F. Smith 59, 60.

A class of cases is cited- by the plaintiff as holding the contrary, which may be illustrated by Humphreys v. Reed, 6 Wh. 435; Whitesides v. Russell, 8 W. & S. 44, and Hays v. Kennedy, 5 Wright 378, wherein the exceptions were, “the dangers of tbe navigation,” “tbe dangers of the river,” and “the unavoidable dangers of the river navigation.” It was held there that the carrier must prove not only the loss, but the manner of "it, and that actual care and diligence had been used to avoid it. But-the reason of the decision is, that without proof of the circumstances it is impossible to' say whether the loss arose from a danger of navigation. Such a peril can only be known from its facts. This is well explained by Kennedy, J., in Humphreys v. Reed. Now, he says, the striking of the boat upon a stone or rock in the canal may or may not fall within the exception. For instance, if the stone from its -position may be readily seen and avoided by those upon the boat; or although not visible, yet if its situation be generally known the loss ought to be imputed to the fault of the'captain or those having the direction of the boat. But if, on the other hand, it was not known, and was invisible to the common eye, the loss occasioned by the boat striking upon it ought-to be considered as coming within the exception,which embraces'all dangers of the navigation.

Thus it is evident that a peril of navigation is a thing having no definite fact to rest upon in the writing, but must be made to appear in the very facts of the loss. But not so as to a loss by fire, which is a specific thing and determines at once the character of the loss. The fire is the very thing provided for in the exception, and when the loss is shown to have arisen from a fire which consumes vessel and cargo, the thing excepted is proved. This excepted peril is shown to have caused the loss, and to add more to the evidence is to alter the terms of the contract.

Nothing need be said in reference to such cases as Berkner v. Strouse, 5 Bawle 179, where the plaintiff shows an ordinary case of contract for carriage, and that the goods have not been" deli* vered. There he may rest and throw upon the defendant the onus of proving the loss and how it happened, in order to discharge himself from liability. Until the exception is made to appear and that the loss fell within it, the plaintiff may rely on the general rule governing the liability of the carrier. No error being shown the judgment must be affirmed.


source: Caselaw Access Project

author: by Sharswood, J.

license: Public Domain

text:
    Tillmes versus Marsh et al.

    1. A bill set out that Huekel owned adjoining lots on which adjoining houses had been built, leaving an alley between them over which one of the houses was built, the party-wall being thus on one side of the alley. He devised one lot to one son and the other lot, being that over the alley, to another, both with the use of the alley. The plaintiff held title from the devisee of the first lot, the defendant from the other. The plaintiff claiming that the title to.the soil over which the alley, was' laid was in him, and setting out acts of the defendant interfering with his rights, asked 'for a decree to restrain defendant from so interfering, and that the boundary line should be run so as to give him the whole soil of the alley. Held, that this was an ejectment bill and could have been demurred to as such.
    2. To give chancery jurisdiction as to disputed boundary, some equity must be superinduced by the acts of the parties.
    3. The Acts of April 15th 1858 and April 5th 1859 did not vest in the courts there named more than the recognised jurisdiction of a .court of chancery in the premises, to determine equitable not legal rights.
    4. An Act of Assembly transferring any part of the jurisdiction of the common-law courts to a court of chancery., would be unconstitutional.
    5. The bill in this case set up only a legal right, for the invasion pf which ejectment is an adequate and complete remedy.
    6. Ejectment will lie to recover possession of the soil subject to either a public or [private easement.
    7. North Penna. Coal Co. v. Snowden, 6 Wright 488, Norris’s Appeal, 14 P. F. Smith 275, recognised.
    February 23d 1871.
    Before Thompson, C. J., Agnew, Sharswood and Williams, JJ. Read, J., at Nisi Prius.
    Appeal from the decree at Nisi Prius: In Equity: No. 71, to January Term 18681
    This was a bill in equity by Augustus Tillmes against tbe New York Dyeing and Printing Establishment and Samuel Marsh.
    The bill charged that Hieronimus Warner at different dates purchased two lots of ground, situate on the west side of Eighth street, in the city of Philadelphia, one of them commencing 206 feet southward from Arch street, and containing in front 20 feet, and the other adjoining on the south, and containing in front 16 feet, both of the depth of 99 feet. That on February 14th 1834, the fee simple of said lots became vested in William Huckel by deed from John F. Warner, in whom the title' had vested under proceedings in partition. That William Huckel,-by his will, duly proved September 22d 1834, devised the first-mentioned lot and the brick messuage thereon erécted, then No. 36 (now No. 42) N. Eighth street, after the decease of his wife to his son Jacob Huckel, in fee tail, and the messuage No. 34 (now No. 40), the premises second above mentioned, to his son Robert Huckel, together with the free use and privilege of a three-feet wide alley, between said properties, which alley was averred to be wholly on the side of the said lot so devised to Jacob Huckel.
    That on February 15th 1853, Jacob and Robert procured to be made by Samuel H. Kneass, city surveyor, a survey and plan of said premises, whereby the lot of said Jacob is laid down as containing 19 feet 9f inches in front, and the premises of said Robert as containing in front 16 feet If inches.
    That by deed dated October 13th 1858, Jacob Huckel, for the purpose and with the intent of barring the entail, granted unto Robert Huckel in fee the first-mentioned premises, described as follows:. beginning 87 feet Ilf inches north of north side of Filbert street, containing in front 19 feet 9f inches, and in depth 99 feet, and that Robert Huckel by deed endorsed of same date re-conveyed the same unto Jacob Huckel in fee. That Jacob Huckel by deed dated January 23d 1866, granted the premises last mentioned to' plaintiff in fee. That the title-to the premises No. 34 N. Eighth street, by divers mesne conveyances, became vested in Samuel Marsh, one of the defendants, who, it was charged, bought tbe same for the use of the New York Dyeing and Printing Establishment, who hold the same as tenants. That the main houses on said lots were originally of the depth of 20 feet, but appear to have been extended the further depth of T2 feet or thereabouts, and that access to the alley from defendants’ house was obtained through a gate or door in the fence immediately in the rear of the main building on their lot. That defendants after their purchase caused a survey of their lot to be made, tore down their fence, closed up and abandoned the opening into said alley, and, without leave of plaintiff, broke a doorway through .the party-wall further to the eastward than the old opening through the fence,- placed a door therein, and opened a window in the second story, and a window in the westernmost wall over the alley of their house, and claim to use and maintain the same. That about the same time the defendants raised the floors of the house No. 34, and let the joist for .the same into new holes made for the purpose in the wall dividing said houses. That defendants claimed a fee simple to said alley-way to the depth of 34 feet 8 inches.
    The prayers were:—
    1. That defendants be enjoined from keeping the doorway in the first story, the window in the second story and the opening in that part of the western wall overhanging t-he alley.
    2. That they be enjoined from using 'said wall for the support of said joists and said house, and that they cease overhanging the said alley with the upper stories of said house.
    3. For a decree that the boundary line between said houses commences 80 feet 11J inches north of Filbert street, and runs thence westward through the centre of the wall on. south side of • said alley to the whole depth of said lots.
    4. Other relief.
    An answer, &c., having been put in, the case was referred to James Parsons, as examiner and master.
    The principles on which the case was decided by the Supreme Court render it unnecessary to give the averments of the answer or state the testimony taken before the examiner.
    The master reported ■ that the prayers of the bill should he granted. ■
    Exceptions were filed to the report, which was confirmed- at Nisi Prius.
    The defendants appealed to the Supreme Court, assigning the decree at -Nisi Prius for error.

      March 2d 1871,

      C. D. Freeman and G. W. Biddle, for appellants.
    The bill at most sets up a case for which there is a complete remedy at' law. Equity therefore has no jurisdiction: Kerr on Injunctions 209, and cases in note U; Rhea v. Forsyth, 1 Wright 503; North Penna. Coal Co. v. Snowden, 6 Id. 490., See also Schlecht’s Appeal, 10 P. F. Smith 172; Clark’s Estate, 12 Id. 447.

      J. C. Longstreth and J. B. Townsend, for appellee,
    referred to Vollmer’s Appeal, 11 P. F. Smith 118 ; McGowin v. Remington, 2 Jones 56.
   The opinion of the court -was delivered,

by Sharswood, J.

The case presented by the plaintiff’s bill, • divested of immaterial circumstances, is this: William Huckel, by purchase, became the owner of two adjoining lots, which had been originally conveyed by two separate deeds to a person from whom he deduced title — one as of the width of 20 feet and the other of 16 feet.. Two houses had been built on these two lots, a three-feet wide alley being laid out between them, so as to leave about 16} feet upon each side of it. One of the houses was built entirely over the alley-way, and the party-wall between the two houses was accordingly on one side of the alley. The house thus built over the alley was erected on the smaller of the two lots. William Huckel devised the one messuage and lot and the house thereon erected to his son Jacob, under whom the plaintiff claims, and the other lot, messuage and tenement, being that built over the alley-way, to his son Robert, under whom the defendants claim. Both these devises were “ with the free use and privilege of the three-feet wide alley.” The plaintiff insists that the title to the soil over which the alley is laid out is in him according to the original lines of the lots, confirmed, as he alleges, by a subsequent deed from Robert to Jacob. He sets out several acts of defendants interfering with his right, under a claim of a fee simple in the said alley-way to the depth of 34 feet 8 inches, and prays for relief that defendants be enjoined from keeping the doorway in thé first story, the window in the second story and the opening in that part of the western wall overhanging the alley; that they be enjoined from using the wall for the support of their joists and house, and that they cease overhanging said alley with the upper stories of said house; and for a decree that the boundary line between the said houses shall be run so as to throw the whole soil of the said alley into the plaintiff’s lot, and be so continued to the whole depth of said lots.

It certainly does not require any elaboration to prove that this is a mere ejectment bill, and might have been demurred to as such: 2 Danl. Chan. Prac. 29. In Loker v. Rolle, 3 Ves. 4, a bill in many respects similar to this, Lord Rosslyn said: “Upon the face of the bill it is quite clear the plaintiff may draw a declaration in ejectment. The bill states the title, and that by some means or other the same persons are in possession of all the lands, and have confounded the boundaries. * * * If he had filed a bill' for discovery only, he must have prayed for the discovery; but it goes on to pray relief; that is merely an ejectment.” It will be seen in this citation that an allegation that the defendants had confused the boundaries did not help the plaintiff’s case. Indeed, nothing is better settled, than-that to give chancery jurisdiction upon a question of disputed'boundary, some equity must be superinduced by the acts of the parties: Wake v. Conyers, 1 Eden 331; 2 Lead. Cas. in Eq. 348. It is urged, however, that the Acts of Assembly of April 15th 1858, Pamph. L. 267, and April 5th 1859, Pamph. L. 359, confer upon the Supreme Court in and for the Eastern District of .Pennsylvania, and the Court of Common Pleas of Philadelphia respectively, “ All and singular the jurisdiction and powers .of a court of chancery in all cases of disputed boundaries between adjoining and. neighboring lands within the said county.” The proper construction of these acts was considered in Norris’s Appeal, 14 P. F. Smith 275, and it was there held that they conferred upon the courts therein named only jurisdiction in the determination of equitable,-not of legal, rights. Indeed, the acts, by their very language, did not purport to vest more than the recognised -jurisdiction of a court of chancery in the premises. It had been solemnly settled by this court in The North Penna. Coal Co. v. Snowden, 6 Wright 488, that an Act of Assembly which should attempt to transfer any part of the jurisdiction of common-law courts to a court proceeding according to the course of a court of chancery, and of course without a jury, would be beyond the power .of the legislature. The language of the opinion of the court, by Mr. Justice Strong, is very emphatic: “ Trial according to the course of a-court of chancery, is trial by a single judge. But if there is any right to which, more than all others, the people of Pennsylvania have clung with unrelaxing grasp, it is that of trial by jury. They brought it with them from the land of their fathers. In every constitution which has been adopted they have taken care to secure it against infringement, and put it beyond the power of the executive, the legislature or the courts, to take it away from any individual.” He proceeds to argue that the Constitution, Art: V., sect. 6, “ cannot mean that the legislature may confer upon the Supreme Court and the Courts of Common Pleas the' power of trying, according to the course of chancery, any question which has always been triable according to the course of law by a jury. If it can, then an ejectment founded solely on legal title, an action of debt on bond,, or a replevin, or an action of trespass, may be sent into chancery, all contested facts in it be decided by the judge, and the intervention of a jury be unknown.” He adds: “No power in our government-can take from the litigant the right to have his case tried by a jury, substantially in the mode and with the same effect as that which belonged to jury trials in similar cases, when the Constitution of 1776.was adopted.”

In this case complainant’s bill sets up nothing but a legal right, invaded by the defendants, and for which the remedy by an action of ejectment is adequate and complete-. The bill admits that the possession of the defendants extends over the alley. That is-a trespass on plaintiff’s close, if the title to the soil is in him. Oujus est solum ejus est usque ad ccelum. Ejectment will lie to recover possession of the soil, subject either to a public or private easement over it: Goodtitle v. Alker, 1 Barb. 133; Cooper v. Smith, 9 S, & R. 26. “ It is no bar to a recovery,” says Mr. Justice Duncan, “ that'another possesses a right of way or other easement, for the owner of the soil may maintain an ejectment for land over which a highway is laid out.” There would be no difficulty here, the defendants being in the exclusive occupation, both under and above the alley, either in the sheriff’s returning them as in possession on the summons in ejectment, or in giving possession to the plaintiff, if he should recover a verdict and judgment, upon the habere facias, subject to the right of way acknowledged to be in the defendants. . We are of the opinion that the court has no jurisdiction of this bill.

Decree reversed. And now it is ordered and decreed that the bill be dismissed at the costs of the complainant and appellee.


text:
    St. Andrew’s Lutheran Church’s Appeal.
    1. On the sale of a number of contiguous lots, the grantor and grantees covenanted with each other, that each of the lots should be subject to a that none of them should “ be used for purposes other than a dwelling-house," office, privy, coach-house or stable, the -restriction to cease only when the lot should be built on according to the spirit of the agreement.” This was a covenant running with the land and bound the successors of the parties.
    2. A court of equity will enforce the specific performance of such covenant by restraining its breach unless some good ground be shown to the contrary.
    3. The erection of a church on one of the lots is prohibited by the covenant.
    4. The occupancy of a lot adversely to the use secured by the covenant would eifectually answer a prayer for equitable interference.
    - 5. Where a party has slept on his rights for a period far less than is necessary to create a bar by the Statute of Limitations, a chancellor will not interfere.
    6. One of the lots had been occupied by owners as a coal-yard, with railroad, sheds for coal, scales and stable, for. more than twenty-one years. Meldj that this was not an adverse user.

      7. Covenants of this nature restraining a man in the free enjoyment of his property are not to he extended by implication.
    February 27th 1871.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Appeal from the decree of the Court at Nisi Prius : In Equity: No. 3, to July Term 1869.
    This was a bill filed, April 22d 1869, by William C. Ludwig against The St. Andrew’s Evangelical Lutheran Church of Philadelphia.
    The bill set out that, on the 23d of January 1837, David Winebrenner was seised of a square' of ground extending from Broad street on the east to Fifteenth street on the west, and from Arch street on the north to Cuthbert street on the south, in Philadelphia, and had divided it into a number of smaller lots; that on the same day they conveyed a number of these lots to divers persons,, amongst whom were Isaac S. Lloyd, Robert M. Lewis, Lawrence Lewis and George W. Strieker, in fee. On the same day the grantors and grantees by deed mutually covenanted that all the lots should be subject to the restriction that “no building should be built upon either of the several lots, of ground, to be used for purposes other than as and for a private dwelling-house, office, privy or necessary-house, coach-house or stable;” that the lots sold to Lloyd, the Lewises and Strieker were the three easternmost lots, which by divers mesne conveyances became vested in fee in the defendant on the 24th of September 1868. The bill further set out that the plaintiff was the owner of a lot adjoining the three lots on the west, the title to which he derived mediately from Winebrenner and Leland, and that he was entitled to the benefit of the restriction which had been an inducement to him to invest in the property as a dwelling-house, and that it added to the value of his property; that the defendants were about to erect a church building in disregard of notice from the plaintiff; that this erection would be a violation of the plaintiff’s right to have no building but a dwelling-house erected on the lots, and would destroy the symmetry of the row of houses which are all bound by the restriction, and would interfere with the plaintiff’s enjoyment of light and air; that the erection would be an irreparable injury which could not be compensated by damages.
    The prayers were — 1. For an injunction restraining the defendants from erecting or proceeding with the erection of said church.
    2. For an injunction restraining the defendants from erecting any building whatever in violation of the restriction contained in the agreement of January 23d 1837.
    3. Further relief.
    The answer denied that anything had been done or contemplated which would abridge the value or diminish the comfort, or impair the enjoyment of plaintiff’s premises. It admitted the purpose to erect a church edifice upon the lots, but denied that it would violate the spirit, true intent and meaning of the restriction, or that the restriction operated upon the premises. It averred that the “ three lots, since the autumn of 1842, and up to the taking possession thereof by the church corporation, about April 1st 1869, were used and occupied as a coal-yard. That all the requisite improvements for the business were erected as early as 1842. That the use of the premises in this way was notorious and continued, with the full knowledge of the owners under whom the plaintiff derives title, and without any steps taken to prevent the same. That in 1842 a brick counting-house was erected on the corner of Arch and Broad streets, and used continuously until 1860 in the coal business. That in January 1843 a six-ton platform-scale was erected upon said lot, and a few months afterwards a railroad track, extending from the track on Broad street, was laid upon said lot for the carriage of coal into the yard, and all the requisite shedding for storing coal was erected on said premises, and that early in 1848 a brick stable two stories high was erected upon the rear of said premises, to be used in connection with the coal business. That in February 1848 Davis Pearson and Gideon Bast, who had occupied the premises from 1842 for the coal business, purchased the westernmost of the said three lots, and thereafter continued the business for a time, and then Pearson continued the same individually until'within four or five years past, when he was succeeded by Daniel Rothermel, who there continued the business until early in 1869. That according to the plan upon which it is proposed to build the said church edifice, an open passage-way about five feet wide will be left between the said edifice and the plaintiff’s house, and that the back buildings of the plaintiff’s house face westwardly, and thus present a continuous dead-wall along the dividing line between his lot and that of the corporation defendants. They submit and insist that by reason of this open, continued, visible and notorious use of the said three lots in a manner wholly inconsistent with and adverse to the alleged restriction, without any assertion of said restriction by those who claim its alleged, benefits, all right to assert it or enforce it is wholly barred and defeated; and that the true intent, spirit and meaning of the said restriction is the prevention of nuisances by the exclusion of structures which would injuriously affect the value or the enjoyment of the dwelling-houses erected upon said square, and that the church edifice will in no way impair the enjoyment, and will in some degree add to the value of the said dwelling-houses; and they deny that the said church edifice will inflict an irreparable injury upon the plaintiff, or any injury whatever, and they say that if he suffers any injury he has an adequate remedy at law.”

      The deed in which were the covenants for the restriction, further covenanted: “ That each and all of their respective lots of ground on the south side of said Arch street, &c., shall be subject to and charged with the above-mentioned restriction and agreement as to the buildings to b& erected upon their several lots of ground, &c.; and that for the enforcement of the said agreement and restriction, and to enable the parties fulfilling and complying with the agreements to obtain immediate redress upon any infringement thereof without delay and unnecessary expense, that in case of any infringements 'of the covenants herein contained by the erection of any building or buildings upon either of their several lots of ground to be used for other purposes than as a private dwelling-house, "office, privy or necessary-house, coach-house or stable, &c., it shall and may be lawful to and for the parties who shall have complied with the said agreement, their heirs and assigns, and full power and authority is hereby given them either personally or by their agents or workmen for that purpose appointed and employed, to enter and proceed upon the lots or lot upon which such building contrary to the agreement herein contained shall be erecting. or erected, building or built, and the said building or parts of a building at once to tear or pull down and remove, and so as often as the same may be rebuilt; and that the party or parties infringing upon the provision of the agreement aforesaid-shall not claim nor receive, nor be entitled to any damages or expenses, nor right of action of trespass or otherwise therefor: Provided always nevertheless, and it is hereby expressly covenanted, understood and agreed by and between the said parties to this agreement, that whenever either of the said lots of ground shall be improved by buildings as herein above-mentioned, and which shall be built in accordance with, the spirit of this agreement, then and from thenceforth the said restrictions herein stipulated and expressed shall, so far as the lot or lots of ground so improved are concerned, be deemed and considered as of no further force and effect, yet so that the said restrictions shall still be binding and obligatory upon the lot or lots of ground that may from time to time be improved Or built on contrary to the spirit and true intent and meaning-of this agreement,” &c.
    A replication was filed, and SamueT'ítobb, Esq., was appointed examiner and master. By his report he found the title of the parties, and the purpose to erect a church building, as set out in the bill and answer; also the deed containing the restriction, &c. He further reported:—
    “ The three lots owned by the church defendants were used continuously, from 1842 to March 1869, as a coal-yard: first by Davis Pearson and Gideon Bast, then by Davis Pearson individually, then by one Baum, then by Daniel Rothermel & Brother, and finally by Daniel Rothermel alone.

      “ In 1842 Messrs. Pearson & Bast, then lessees of the said three lots, erected at the south-west corner of Broad and now Arch streets, a brick office or counting house, one story high, sixteen feet’in front and twenty feet in depth; and in 1843 they erected a six-ton platform scale on the said corner lot, and on this and'the next adjoining lot the necessary shedding for storing coal, and they laid down a railroad track extending from the tracks in Broad street into and over the said three lots for the carriage of coal into their yard for the purposes of their business.
    “ By deed dated February 29th 1848, Messrs. Pearson & Bast became the owners in fee of the westernmost of the said three lots, and shortly afterwards erected on the rear end thereof, on Cuthbert street, a two-story brick stable.
    “ The said Pearson & Bast, or Pearson alone, continued to occupy the said three lots as a coal-yard, using the office, shedding, scale and stable, until about 1856, when a Mr. Baum (as lessee) carried on the business there for awhile and was succeeded by Messrs. Daniel Rothermel & Brother (as lessees), who carried on the business for about three years, and afterwards Daniel Rothermel continued the said business, using the said buildings and improvements, until about March 1869, when the church defendants took possession of the said premises.
    ’ “ Whether or not Messrs. Pearson & Bast, or either of them, ever claimed to have the right to use the said premises as a coal-yard, in violation of the restriction contained in the agreement, does not appear; but Mr. Rothermel did not so claim. He says that he never knowingly used the said lots in violation of the said restriction, and that his occupation of the said premises was of a merely temporary character.
    “ According to the opinion of competent conveyancers, the existence of the said restriction adds to the value of the property in the said square. All of the other lots in the said square are improved in strict observance of the said restriction.” * * *
    “ It does not appear that the agreement or the restriction contained therein was referred to or mentioned in any of the deeds of conveyance of the said three lots, but the church defendants knew before their purchase that the said lots were subject to a restriction of some sort, and very soon after the purchase received notice of the particulars thereof.”
    The master concluded an elaborate opinion as follows:—
    “ In view then of the restriction contained in the deed of January 23d 1837, the master is of opinion and so reports, that the first and second prayers of the plaintiff’s bill should be granted, and that a perpetual injunction restraining the defendants as therein prayed should be awarded.”
    Exceptions to the report of the master were filed by the defendants. They were, after argument, dismissed by the court at Nisi Prius (Sharswood, J.), where it was “ decreed, that the said exceptions be dismissed, and that the defendants, and each of them, be perpetually enjoined from erecting a church edifice, or any other building, to be used for purposes other than as and for a private dwelling-house, office, privy or necessary house, coach-house or stable, as is provided for in a certain indenture of agreement between David Winebrenner et al. of the one part, and Isaac S. Lloyd et al. of the other part, dated January 23d 1837,” &c.
    The defendants appealed to the Supreme Court in banc, and assigned the decree for error.

      T. Cuyler, for appellant.
    There has been an open, visible and notorious use of the premises in a manner inconsistent with the easement claimed for a period exceeding twenty-seven years, and this has been acquiesced in by complainants or those under whom they claim, during all that time.
    Such a use was inconsistent with the covenant. Whatever the letter of the covenant may be, its spirit is the exclusion of all business uses of these lots.
    The spirit, true intent and meaning of the covenant is that none of the lots should be devoted to mercantile or business uses, and therefore it provides for dwelling as contradistinguished from business houses or stores. Moreover, it may fairly be said that its spirit would exclude whatever to the usual and common taste and judgment of their occupants would render less agreeable a dwelling-house as a place of residence, or diminish its value as an investment.
    Wherein is it threatened with violation ? A structure of great architectural beauty is intended to be erected, which will, when completed, beautify and adorn the whole neighborhood. No right-minded person could justly say that his dwelling was rendered less beautiful, or less valuable, or less peaceful and comfortable as a home, by the presence of such a church as is proposed to be erected.
    III. The plaintiff, if entitled to any remedy, had adequate remedy at law, and
    IY. The remedy in equity is discretionary under all the facts and circumstances of the case with the chancellor, and nothing in the circumstances of this case calls for the interposition of a court of equity: Washburne on Easements 577; King v. McCully, 2 Wright 76; Rhea v. Forsyth, 1 Id. 503; Van Beyen v. Van Beyen, 3 Johns. Ch. 286; Biddle v. Ash, 2 Ashmead 211; 2 Story’s Eq., §§ 925, 926 ; 1 Fonblanque Eq. 3 note; Washburne on Easements 581, § 5; Ingraham v. Durwell, 5 Metc. 118; Dana v. Valentine, Id. 8.

      S. S. Hollingsworth and Gr. W. Biddle, for appellees.
    The language of the agreement constitutes a covenant: Paschall v. Passmore, 8 Harris 307; Clark v. Martin, 13 Wright 290, 298. It is a covenant running with the land: Spencer’s Case, 1 Smith’s L. C. 145; White v. Lowry, 3 Casey 257. The court will enjoin what interferes with ordinary enjoyment of a dwelling-house: Walter v. Selfe, 4 De Gex & Sm. 315; Soltau v. De Held, 9 E. L. & Eq. R. 123. Equity will restrain violation of a mutual covenant of this kind: Barratt v. Richards, 8 Paige 351; Biddle v. Ash, 2 Ashmead 211; Commonwealth v. Rush et al., 2 Harris 186; Clark v. Martin, 13 Wright 290-8. This interference is justified, on ground of enforcing specific performance of a contract: Scott v. Burton, 2 Ash. 325; Barret v. Blagrave, 5 Vesey 555; Stuyvesant v. Mayor of New York, 11 Paige 415; Commonwealth v. Rush, 2 Harris 196; Bonaparte v. C. & A. Railroad, 1 Bald. R. 205; Jarden v. P. W. & B. Railroad Co., 3 Wharton 512. A single breach of a continuing covenant is no defence to an action for a subsequent breach: Doe d. Baker v. Jones, 5 Exch. 498; Bleecker v. Smith, 13 Wend. 533; Dumpor’s Case and Notes, 1 Smith’s L. C. 93-99. The release of part of a continuing covenant, does not work a release of the entire covenant: Smith v. Barnes, Rolle’s Abr. 472, pl. 8; Reed v. Norris, 2 Myl. & Craig 361; Williams v. Dakin, 22 Wend. 201.
    May 8th 1871,
   The opinion of the court was delivered,

by Sharswood, J.

The affirmance of the decree below might well be rested upon the clear and able opinion of the master.

It is not disputed that the covenant upon which the injunction was prayed ran with the land and was binding upon the defendants'; nor has it been pretended that a court of equity is not bound according to well-established principles and precedents to enforce the specific performance of such a covenant by restraining its breach unless some good ground can be shown to the contrary.

It has been argued but not much pressed, that the edifice proposed to be erected by the defendants, if against the letter, is not against the spirit of the covenant. It is urged that it was aimed at preventing what might be a nuisance or annoyance to the owners of other dwelling-houses on the square, and that a church in no sense would be such. It is enough to say in answer to this suggestion, that by confining the erection of buildings to private dwelling-houses, offices, privies or necessary houses, coach-houses or stables, it was evidently intended to prohibit any buildings of public resort, such as a hotel, circus, menagerie, theatre or other similar establishment; and if the plaintiff cannot prevent a church from being built in the first instance, he certainly could not after-wards prevent it from being used for any other purpose. The covenant is directed against the building alone, not the subsequent use, and when a building is lawfully erected on either of the lots, so far as that building is concerned, the covenant is at an end. There would be nowhere any power to restrain its application to any purpose not a nuisance in itself. To protect himself, therefore, from such a consequence, it was the clear right of the plaintiff to stand upon the covenant, even though the erection of a church might not prove of any actual inconvenience or annoyance to him so long as it was only used as a church.

It is plain, too, that in such a ease the amount of damage which the plaintiff may be likely to suffer from the threatened breach, ought not to enter as an element in the determination. In this respect there is a manifest distinction between cases depending on nuisance and on contract: Attorney-General v. The Railway Companies, Law. Rep. 3 Ch. Ap. 99; Hills v. Miller, 3 Paige 254. Indeed, the fact that a jury would not give probably any more than nominal • .damages is a circumstance which appeals most strongly to the conscience of the chancellor to stretch forth the strong arm of the court for the plaintiff’s relief. It is his only adequate remedy for the violation of a clear and indubitable right.

The main contention here, however, has been, that the plaintiff has acquiesced since 1842, in an use or enjoyment of the lots now in question adverse to the rights secured by the covenant. Without discussing a very interesting question which might be mooted as to the legal effect of an adverse enjoyment, upon a covenant running with the land as to which there is neither the bar of the Statute of Limitations nor presumption from lapse of time, as held by this court in Trustees of St. Mary’s Church v. Miles, 1 Whart. 229, we may concede that such an acquiescence would be an effectual answer to a prayer for equitable interference. A chancellor will not enforce the specific performance^of a contract unless the plaintiff has been always vigilant. If he has slept upon his rights for a period far short of that necessary to create a bar by the Statute of Limitations, the doors of the court of equity will certainly be closed against him.

Let us see whether in 1842, or subsequently, there was any actual breach of this covenant which would have entitled the plaintiff to enter, under the clause of entry contained in the deed, or to have maintained an action or a bill for an injunction. It may be well to remark at the outset, that according to the express terms of the instrument in which the covenant is comprehended the restrictions were only to cease “ whenever either of the said lots of ground shall be improved by buildings, which shall be built in accordance with the spirit of this agreement.” The spirit of the agreement evidently contemplated the improvement of the ground by the erection of permanent buildings. That is the popular and ordinary sense of the word “ improved.” It does not refer to mere temporary structures, intended only to answer the purposes of present use, however long that use might continue. We can easily understand the difference, without perhaps being able to draw an exact line. Every case must depend upon its own circumstances. There might be structures upon the lots, from which it would be difficult to say, whether they were thereby intended to be permanently improved. But certainly wooden sheds to cover coal from the weather, or platform scales for the purpose of weighing it, no one would-regard as within the category. If a large and liberal interpretation according to the spirit of the agreement is to be applied to this covenant, then there never was anything done upon the lots or either of them, which was in violation of it, or could be termed an adverse one. The master was perfectly accurate in saying: “ The language of the covenant plainly shows that the restriction was to apply only to the permanent buildings to be erected on the lots, whenever the owners should improve them, and until such time, the owners could use their respective lots in any way they might see fit. So long as a lot should remain unimproved, there could be no non-user of the easement, and any use of the premises other than for the erection of permanent structures could not of itself be such an inconsistent or adverse use thereof that acquiescence in it or lapse of time' would defeat the right to the easement.”

But it is not necessary to insist upon this construction. We may consider that the sheds and the platform scales were violations of the covenant. The office and stable surely were not. They were expressly named as permitted. The third lot from Broad street, that immediately adjoining the plaintiff’s, had no structure upon it whatever but the stable upon the rear. The covenant is several — applicable to each lot separately. Practically if the plaintiff has a right to the advantage of the covenant as to the third lot, all his purpose will be answered. The defendants require all three lots for the church. The railway track which was also on the same lot with the stable was certainly in no sense a building, any more than would have been a walk or road paved with brick or cobble stones.

It is contended, however, that the covenant in permitting an office, privy or necessary-house, coach-house or stable, to be built, intended thereby only such buildings as are appurtenant to a private dwelling-house. It does not say so, and it would be to import a qualification not expressed so to hold. Certainly covenants of this nature which restrain a man in the free enjoyment of his property, are not to be extended by implication. In contending hereinbefore for a liberal construction of the covenant — it was meant liberal to the covenantor — not in the sense of imposing upon him restrictions to which he had not agreed. But be it so as contended for. Non constat that the stable was not built as appurtenant to a private dwelling-house to be thereafter erected ■ on that lot. There is certainly nothing in the covenant which prescribes the order in which these buildings shall be erected— that the dwelling-house shall be built first and the office and stable afterwards — nor to prevent the grantees of the land from taking their own time and mode of putting up the improvements contemplated. Suppose when the stable was first built the plaintiff had filed a bill and prayed an injunction, could not the defendant have answered: Eventually I expect to build a private dwelling-house on Arch street, to which this stable may be appurtenant, in the mean time, however, I mean to use it in connection with my business as a coal dealer. Would any chancellor have enjoined him ? I must say that it seems to me very clear that he would not. The covenant is expressly limited to building; ■ it has not a word in it about use and occupation. The moment the lot ,is improved in accordance with the agreement by the express terms of the instrument the restrictions ceaáe. It is not intended for all time as a perpetual inhibition, but is expressly confined to the first improvement. In the mean time the grantees of the land, by virtue of their ownership, in that respect unrestricted, could use their property for any purpose not a nuisance per se — ex. gr., for a pasture lot, a garden, a board-yard, a marble-yard, a coal-yard; and if for this use in any shape they should wish to have an office, privy or necessary-house, coach-house or stable, as convenient and useful, they could put them up to be applied to the use of the dwelling-house when subsequently erected. Surely the proprietor, without infringing this covenant, could have built back buildings or kitchens, to be used in futuro in connection with houses in front, but in the mean time to be occupied or rented out as distinct and independent tenements. Nothing is more common than that mode of improvement. The sheds and other fixtures — not buildings —which were necessary for the use of the premises as a coal-yard, and the office and stable, we think, were no infringement of the covenant, and of course that there has been no adverse use which can be set up as a bar to the plaintiff’s right.

Decree affirmed and appeal dismissed at the costs of the appellant.

Agnew and Williams, JJ., dissented.


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    Buehler versus Rogers.
    1. A levy and inquisition are not acts of record but done by the sheriff in pais, and if they be wanting, and cannot be supplied by evidence, a venditioni would be without foundation and confer no authority to sell.
    2. Docket entries showed the issuing of a fi. fa.: “Beal estate levied on and condemned” without description; issuing of venditioni; praecipes for both writs were on file. The land was sold under the venditioni, deed for a lot of land described by metes and bounds, acknowledged as sold under the venditioni. In an action for the purchase-money and case stated, it appeared that the fi. fa. and venditioni could not be found. It not appearing that the land levied on was that described in the deed, the ease stated was quashed and remitted for a jury trial.
    January 16th 1871. Before Thompson, C. J., Read, Agnew and Williams, JJ. Sharswood, J., at Nisi Prius.
    Error to the Court of Common Pleas of Chester county: No. 263, to January Term' 1870.
    This was an amicable action and case stated in which Evans Rogers, administrator, &c., of Pusey J. Nichols, late sheriff of Chester county, deceased, was plaintiff, and Louisa Buehler, defendant.
    The facts agreed upon were as follows:—
    “ On the 23d day of May 1868, David W. Hutchinson, by his counsel, Wayne MacYeagh, Esq., filed a praecipe with the prothonotary, directing him to issue a writ of fieri facias against Joseph Glenn, upon a judgment in his favor against said Glenn for $930, entered in said court; a writ of fieri facias issued in pursuance of said prsecipe to August Term 1868, and was placed in the hands of Pusey J. Nichols, the sheriff of said county; the execution docket of said court shows the issuing of said writ, and that the real estate of said Joseph Glenn was levied upon and condemned, by the following entry on said docket: [Real estate levied on and condemned,’ but the said writ of fi. fa. and return thereon, cannot now be found in the prothonotary’s office or elsewhere, after diligent search. On the 20th day of August 1868, the said David W. Hutchinson, through his counsel, filed a prsecipe for a venditioni exponas, to sell the real estate of the said Joseph Glenn, levied on under the above-stated fieri facias; a writ of venditioni exponas issued in pursuance of said prsecipe to October Term 1868, as shown by said execution docket, and was placed in the hands of said sheriff.
    “In pursuance of said writ of venditioni exponas, the said sheriff exposed the real estate of said Joseph Glenn to sale, by public vendue or outcry, and sold the same on Wednesday, the 21st day of October 1868, to Louisa Buehler, the above-named defendant, for the sum of $8850.
    “ On the 29fch day of October 1868, the said P. J. Nichols, as sheriff,' acknowledged in open court a deed poll to said Louisa Buehler, for the real estate so sold, which has been since duly attested by the then prothonotary, and the seal of the court has been attached thereto, and entered in said court in the proper deed-book, a copy of which deed is hereto annexed and made part of this case, and the deed itself thus completed, is now filed with the prothonotary for the use of the defendant. The above writ of venditioni exponas, cannot be found in the office of the prothonotary or elsewhere, after diligent search.
    “ The said Louisa Buehler, the defendant, declines to accept said deed, and to pay the said purchase-money, for th$ reason that the said writs of fieri facias and venditioni exponas, and the sheriff’s returns thereon, cannot be found, and that the above-recited proceedings vest no title in her.
    “ The said Pusey J. Nichols is now dead, and the said Evans Rogers is his administrator.
    “ The question for the opinion of the court is, whether the plaintiff is entitled to recover the said purchase-money. If the court shall be of opinion with the plaintiff, then judgment to be entered in his favor for the said sum of $3850,” &c.
    The sheriff’s deed was as follows, viz.:—
    “ To all people to whom these presents shall come: I, Pusey J. Nichols, high sheriff, &c.: Whereas, by a writ of fieri facias issued out of the Court of Common Pleas of said county of Chester, to me directed, bearing teste the 14th day of May, A. ». 1868, last past, I was commanded that of the goods and chattels, lands and tenements of Joseph Glenn, &c., I should cause to be levied as well a certain debt of $930, which David W. Hutchinson, lately in the Court of Common Pleas, &c., recovered against him, &c.: Whereof the said Joseph Glenn is convict, as appeared of record, &c. And that I should have that money before the judges at West Chester, at a Court of Common Pleas, there to be held on a day certain, in the said writ contained, to render to the said David W. Hutchinson, &c. At which said day I, the said sheriff, to the judges did return, that by virtue of said writ to me directed, I had seized and taken in execution, all that certain messuage or tenement and tract of land situate in the borough of Oxford, in the aforesaid county of Chester, bounded and described as follows : Beginning, &c. (describing the land by metes and bounds). Containing 6570 sq. ft. of land, be the same more or less. Being part of the same premises which Joseph Murdagh and wife, by deed dated April 14th, A. d. 1865, &e., granted and conveyed to Dr. D. W. Hutchinson, and which said Dr. D. W. Hutchinson and wife, by deed dated April 6th, a. d. 1867, &c., granted and conveyed to said Joseph Glenn, in fee, &c., with the appertenances, late the property of Joseph Glenn, the defendant in said writ named, which remained in my hands unsold for want of buyers; so that I could not have the money, &c.; and that the residue of the execution of said writ appeared in a certain schedule or inquisition thereunto annexed, whereby it appeared, by the oaths and affirmations of the inquest therein named, that the clear profits of the said premises, with the appertenances, were not sufficient, beyond all reprises, to satisfy the debt and damages in the said writ mentioned, within the space of seven years: Wherefore, by a certain other writ of venditioni exponas, issued out of the said court, bearing teste the 20th day of August last past, I, the said sheriff, was commanded that the said premises, &c., * * * I should expose for sale, &c. In pursuance whereof, I, the sheriff, having given due and legal notice, &c., * * * sold the same to Louisa Buehler for the sum of $3850, &c. Now know ye, that I, the said sheriff, for and in consideration of the aforesaid sum of $3850, &c., have granted, &c., and by these presents, according to the directions of the last-recited writ, and by force and virtue thereof, do grant, bargain and sell, unto the said Louisa Buehler and to her heirs and assigns, all that certain messuage, tenement and lot above described,” &c. * ***
    The opinion of the court (Butler, P. J.) was delivered December 21st 1869, viz.: “ On the authority of Smull v. Mickley, 1 Rawle 95, Hinds v. Scott, 1 Jones 19, and Dalzell v. Crawford, 1 Pars. 46, 47, we think the defendant has a good title to the land, and must pay the purchase-money. Hinds v. Scott cannot, we think, be distinguished in principle from the case before us. That the necessary writs issued; that the property was levied upon, condemned and subsequently sold under the venditioni ex-ponas is shown by the record, or admitted by the defendant. The only thing wanting is the sheriff’s return, and this, according to the cases referred to, is supplied by the deed, which recites all the necessary facts, and is made under the authority of the court, as a part of the proceedings for the transfer of the title.
    May 8th 1871,
    “Judgment must therefore be entered for the plaintiff for the sum due, $3850.”
    The defendant took a writ of error, and assigned entering the judgment as above for error.

      W. Mac Veagh, for plaintiff in error.

      W. B. Waddell and J. S. Futhey, for defendant in error, cited Smull v. Mickley, 1 Rawle 95; Hinds v. Scott, 1 Jones 19.
   The opinion of the court was delivered,

by Agnew, J.

Owing to the defective statement of the case in the court below, a defect not apparent at first sight, we have experienced much difficulty in arriving at a conclusion in this case. The levy and inquisition are not so set forth in the statement as to make it certain that the identical tract sold by the sheriff to Mrs. Buehler, and described in the deed, was levied upon and condemned. Her title will depend on the levy and inquisition which are not acts of record, but were done by the sheriff in pais. The venditioni exponas would be without foundation, and confer no authority to sell, if these be wanting and cannot be supplied by legal evidence: Crowell v. Meconkey, 5 Barr 175; Shields v. Miltenberger, 2 Harris 78, 79; Gardner v. Sisk, 4 P. F. Smith 506; St. Barth. Church v. Wood, 11 Id. 96. The docket-entry of the fi. fa. merely states “ real estate levied on and condemned.” . At first it might be supposed this meant the real estate afterwards sold; but this is not admitted by Mrs. Buehler, for in the close of the stated case she denies her liability, “ for the reason that the said writs of fieri facias and venditioni exponas and the sheriff’s returns thereon cannot be found, and that the above-recited proceedings vest no title in her,” It is obvious, therefore, as the only ground of objection to the sale can be the want of authority in the sheriff to sell, she must have objected on the ground that there was nothing to show that the tract she bought at the sheriff’s sale was levied on and condemned. There is an entire absence of description and identity to support the issuing of the venditioni exponas. It is proper, therefore, that instead of deciding this cause on a statement so dubious on this point, the case should go back for a trial when proof of the land levied on and condemned can be made. Otherwise we might do injustice by a decision ; on the one hand involving the sheriff’s estate in liability for the bid, or on the other compelling Mrs. Buehler to accept a doubtful title. It is to be observed, this is not a doubt covered by the maxim caveat emptor, which applies to the title of the defendant in the writ, but a doubt of the authority to make the sale. Under the circumstances, we think it better to reverse the judgment, quash the stated ease and send the cause hack for a jury trial.

Judgment accordingly.


author: by Thompson, C. J.

text:
    Biddle’s Appeal. Murtland’s Estate.
    1. Judgments given within four or six months of the commencement of proceedings in bankruptcy, are valid if not given as preferences or taken with knowledge of insolvency or contemplated bankruptcy.
    2. A state court having the right to enforce a lien, has power to decree distribution, and the assignee in bankruptcy must come into such court to claim his preference on the fund.
    February 8th 1871. Before Thompson, C. J., Agnew, Sharswood and Williams, JJ. Bead, J., at Nisi Prius.
    Appeal No. 112 to January Term 1871 from the District Court of Philadelphia : distributing the proceeds of the sheriff’s sale of John Murtland’s estate.
    The fund in court arose from sales of real estate of defendant, under a mortgage, and of other real estate under a judgment for arrearages of ground-rent. The writs were issued respectively to May and September Terms 1869.
    James H. Castle, Esq., was appointed auditor to report distribution of the fund beyond the amount of the foregoing liens, which were not disputed.
    The claims presented to the auditor were as follows, viz:—
    Joseph Francis, judgment entered August 14th 1868, on bond and warrant to confess, &c., dated August 13th, $3036.
    Executors of A. J. Flomerfelt, deceased, judgment entered October 8th 1868, on bond and warrant, dated same day, for $1000.
    George Powell, judgment entered November 12th 1868, on bond and warrant, &c., dated November 2d, for $1437.33.
    Alonzo Gordon, judgment entered November 16th 1868, on bond and warrant, &c., dated November 11th, for $20,000.
    From the auditor’s report it appeared that Murtland had been a grain-carter in extensive business, and the owner of a large number of horses and carts, and of a considerable amount of real estate in Philadelphia. Previously to the summer and fall of 1868 there were no judgments against him; his credit was good, and he was then regarded as a man in comfortable circumstances, and by some was considered rich.
    On the 16th of November 1868, two other judgments of $2006 and $4000 were entered on judgment-notes. On the 15th of February 1869, one of Murtland’s creditors petitioned that he should be declared a bankrupt; on the 24th of the same month he was adjudged a bankrupt, and John Hunter and Craig Biddle appointed his assignees. Up to December 1869, a large number of smaller judgments were recovered against Murtland by adversary process. He died December 10th 1869.
    The assignees claimed the whole fund on the grounds, 1st, that a state court had not jurisdiction to adjudicate a bankrupt’s estate: 2d, that the judgments having been confessed within six months before filing the petition in bankruptcy,were void under the 35th section of the Bankrupt Act: 3d, that under the 39th section of the act, confessing the judgments was an act of bankruptcy, and therefore the judgments were void, and created no lien.
    The auditor reported as his opinion that the District Court had jurisdiction in the matter, and “ that before the assignees in bankruptcy can take this fund it must clearly appear that the judgments were given in fraud of the bankrupt law.”
    He found that the Francis judgment was for a bond, fide debt, and having been given more than six months before the filing of the petition in bankruptcy, was not in fraud of the bankrupt law.
    As to the Flomerfelt judgment, the executors, on the death of their testator, found amongst his assets notes against Murtland amounting to $1000. The attorney for the executors in whose hands the notes w'ere placed for collection, believed Murtland’s affairs to be in good order, but in pursuance of his duty as attorney required a judgment from Murtland, which he agreed to give.
    The auditor found this claim to be in good faith, and allowed it.
    George Powell held a note against Benjamin Sterling, and one against Charles Engle, amounting to $1437.33. Murtland was endorser on both. The notes had been discounted by Powell; when they became due, Murtland wished them renewed; Powell agreed to do so if Murtland would give a judgment to secure them; Murtland gave the judgment on which Powell’s claim was founded. Powell brought suit on the notes against the drawers; the amount of Engle’s note was recovered from him; Sterling could not be found; for the amount due on his note, $647.47, the auditor allowed the claim out of the fund, being of opinion that the judgment had been given boná fide.
    Gordon, the plaintiff in the $20,000 judgment, was a bill-broker, and for a long time before the date of his warrant had bought and sold Murtland’s paper; Murtland was considered a man whose credit was of the first class. At the commencement of these transactions with Gordon, Murtland represented that he had real estate worth $100,000, but could not collect his bills until tbe first of tbe year; be required money to meet bis maturing paper and make provision for further loans, until he could sell bis real estate; in consequence Gordon took bis judgment, and agreed to take up bis maturing paper and negotiate further loans if necessary.
    Tbe auditor further reported that Murtland was tbe owner of real estate valued for tax purposes at $71,400 ; that although tbe proceedings in bankruptcy showed that be was actually insolvent in tbe summer and fall of 1868, yet tbe witnesses “ failed to show that at that period of time they knew or believed him to be insolvent.”
    Tbe auditor reported many facts bearing upon tbe questions considered by him, and further said :—
    “ Without going more fully into tbe facts as presented by tbe evidence, tbe auditor has not been convinced that John Murtland was insolvent, or in contemplation of insolvency or bankruptcy, when be gave tbe bond and warrant of attorney to Alonzo Gordon, in November 1868, or that Alonzo Gordon, when be received this bond, or on tbe day it was filed, believed, or bad reasonable cause to believe, that John Murtland was insolvent, or acting in contemplation of insolvency, and in fraud of the Bankrupt Act. On tbe contrary, be is satisfied that Murtland at that time was tbe owner of real estate that could, by proper management, have been made to realize a large sum of money to be applied to tbe liquidation of bis debts. That be did not at that time contemplate insolvency or bankruptcy, and that Gordon believed him to be solvent. Under these impressions of the facts, and with tbe view be entertains of tbe intention of tbe Bankrupt Law, he feels justified in awarding to Alonzo Gordon tbe balance of tbe fund in part payment of bis judgment.”
    He found after deducting taxes, costs, expenses of audit, &c., that there remained $7493.99, which he distributed as follows:— To Joseph Francis ....... $3140.39
    To Susanna Flomerfelt and Absalom Taylor, Ex’rs. . 1022.50
    To George Powell . . . . . . 647.47
    To Alonzo Gordon ....... 2683.63
    Tbe assignees on bankruptcy filed these exceptions to tbe report: — ■
    1. Tbe auditor erred in not awarding tbe fund to tbe assignees.
    2. Tbe auditor erred in awarding any part of tbe fund or moneys in tbe above cases to Alonzo Gordon on account of bis alleged judgment.
    Tbe District Court confirmed tbe report of the auditor. Tbe assignees appealed and assigned for error that the court erred in decreeing any part of tbe fund to others than the assignees.

      A. Thompson, for appellants.
    Confession of a judgment in contemplation of'bankruptcy to prefer one creditor is fraudulent and void and no lien attaches: McLean v. The Bank, 3 McLean 185; Buckingham v. McLean, 13 How. 152 ; James’s Bankrupt Law 222; Gault v. McGrath, 8 Casey 392; Bank of Montgomery, 12 Id. 170; Taylor v. Cornelius, 10 P. F. Smith 187; James 159; Pavitt’s Estate, 12 P. F. Smith 498; Bletz v. Haldeman, 2 Casey 403.
    May 25th 1871,

      R. 0. McMurtrie (with whom was J. W. Paul), for Gordon, appellee.
   The opinion of the court was delivered,

by Thompson, C. J.

The money in the court below arose from a sale on a judgment for arrears of ground-rent against the bankrupt, and also upon a mortgage given by him. It was not pretended that either of these acts was affected by the bankrupt act, but the surplus after payment of them was distributed to subsequent lien-creditors, and it was contended by the assignees,

1st. That a state court could not distribute the fund among the creditors of the bankrupt.

2d. That the judgments to which it was distributed were in fraud of the 35th section of the Bankrupt Law.

As to the last of these objections the auditor fully and completely negatives them by showing that the judgments were not given as preferences, or taken by the several creditors with any knowledge of the insolvency or contemplated bankruptcy of the insolvent. He has not reported the testimony so that this court might see whether he erred in fact on this point or not. The report must therefore be regarded as conclusive as to this.

As to the first of these objections we have held, that a state court having a right to enforce a lien, it has the power to decree distribution, and it follows of course that the assignee must come into court and claim his preference on the fund if he has any, as did the appellants in this case. This view of the point like the last is also against the appellants, and the decree of distribution is affirmed, and appeal dismissed at the cost of appellants.