source: Caselaw Access Project

author: Shakswood, J. —

license: Public Domain

text:
    Douglass et al. versus Lucas.
    1. The 6th section of Act of April 22d 1856 (Trusts) is not part of a statute of limitation.
    2. When the holder of a legal title subject to a resulting trust permits the cestui que trust to occupy and enjoy the land as owner, he shall derive no benefit from the lapse of time.
    3. The Act of 1856 contemplates that an action is to be maintained by the cestui que trust against the trustee in actual or constructive possession.
    4. A bare entry by the cestui que trust without following possession will not prevent the bar of the Act of 1856.
    5. D. held the legal title to unoccupied timber land, a resulting trust being in L., who built a shanty on it, which was occupied only for lumbering purposes. Held, not to be such possession as would prevent the bar of the Act of 1856.
    6. Clark v. Trindle, 2 P. P. Smith 492, explained.
    October 21st 1869.
    Before Thompson, C. J., Reed, Agnew, Sharswood and Williams, JJ.
    Error to tbe Court of Common Pleas of Jefferson county: No. 106, to October and November Term 1869.
    This was an action of ejectment commenced December 22d 1866, by Lizzie G. Douglass and others, minor children and heirs of James Douglass, deceased, against Thomas Lucas, for 404 acres of land. On the trial, December 18th 1868, before Campbell, P. J., the plaintiffs gave in evidence receipts for the payment of the purchase-money for the land and office fees, amounting in the whole to $122.67, and patent dated March 17th 1856, to James Douglass, their ancestor, for 404 acres and 81 perches of land, the premises in controversy.
    The plaintiffs having rested, the defendant called James Moore-head, who testified: he had discovered the land to be vacant, and agreed with Douglass and Lucas to show them the vacancy for $25, each. Lucas paid him $25; Douglass paid him $5 only of the amount; the application was made in the name of Douglass only, Douglass declaring that Lucas was entitled to one-half, but that it was made in his own name, because Lucas was in debt. Both agreed that Douglass was to bear all the expenses of the warrant and patent; Lucas to do all the boarding, find all the hands for surveying, and after the patent should be obtained, Lucas was to pay Douglass $25 more, and each was to have one-half of the land. When they were about making arrangements for running the division line between them, they thought that any division line that could be conveniently run, would not make a fair division of the timber; they therefore agreed that each should take some timber from the land before making the dividing line. Douglass afterwards told witness to divide the land by a line running east and west. There was other evidence of the agreement between Douglass and the defendant, that each was to have half of the land, and of the payment by defendant to Moorehead.
    Joseph P. Lucas, a son of defendant, testified: his father claimed half the Douglass warrant, and has used it ever since; in 1854 he built a lumber shanty on it, and took about 4000 feet of lumber from it; had been lumbering on it from time to time till 1862; since then no timber had been taken off; the shanty is still there, and the defendant takes a tree whenever he wants one. Douglass said defendant had taken more than he, Douglass, had; he contended he should have half the timber. Defendant never lived on the land; the shanty has been occupied for the purpose of taking timber; there had been no cultivation of the land; witness’ brothers took timber in 1862; their families lived in the shanty with them. There was other evidence that the shanty had been occupied under defendant for taking lumber, and when that was done the occupants left: that all the occupancy of the land was for lumbering purposes. There was evidence also that Douglass claimed but half the land; that the defendant and he owned it in partnership, &c.
    The plaintiffs submitted these points :—
    “ 1. The evidence in this case is not sufficient to raise a resulting trust, and therefore the jury must find for the plaintiffs.
    “ 2. 'The possession shown by the evidence is not sufficient to toll the Aet of 1856.
    “ 3. Under the evidence in the case, they must find for the plaintiffs.”

      The court answered the points thus:—
    “1. We refuse to answer this point as requested. The evidence of the contract and the payment of the consideration rests entirely in parol. There is some evidence that the plaintiff was to take out the title, and defendant be at the expense of the surveying, and the land to belong to both. Whether the amount paid by each was equal or not, if each paid what was agreed to be his proportion of the cost and expense of procuring the title, and the land was to be the property of both, and if Douglass took out the title in his own name, it would raise a trust by operation of law.
    “ 2. We answer this point, that actual resident possession is not necessary to toll the statute of 1856. If the defendant entered upon the land in question, if he was a cestui que t?-ust, for the purpose of claiming, or if he exercised acts of ownership and dominion over the property, such as entering and cutting timber, and appropriating it to his own use, and continued such entries and acts of ownership under his claim of right, up to the commencement of this suit, it would toll the statute, although in point of fact there was no actual possession by either party.
    “ 3. That whether the plaintiff is entitled to recover or not depends on how the jury find the facts on the evidence in the case.”
    The verdict was for the defendant for “the undivided half of the land.”
    The plaintiffs removed the case to the Supreme Court, and there assigned the answers to their points for error.

      A. L. Grordon, for plaintiffs in error. —
    The possession proved would not be an answer to an ‘action of trespass even: Wheeler v. Winn, 3 P. F. Smith 122; Brower v. Fleming, 1 Id. 102; Young v. Herdic, 5 Id. 172. The facts do not raise a resulting trust. There was no fraud in Douglass obtaining title; if there had been subsequently, it would not raise a trust: Barnett v. Dougherty, 8 Casey 372. The entry and acts of ownership proved would not be sufficient to take the case out of the Act of April 22d 1856, § 6, Pamph. L. 532, Purd. 654, pi. 13; Miller v. Franciscus, 4 Wright 339; Clark v. Trindle, 2 P. F. Smith 492; Webster v. Webster, 3 Id. 164; Williard v. Williard, 6 Id. 119.

      W. P. Jenhs (with whom was Gr. A. Jenks), for defendant in error,
    referred to the Act of 1856, and the cases cited by plaintiff in error.
   The opinion of the court was delivered, May 5th 1870, by

Shakswood, J. —

It has undoubtedly been established, under the “ Act for the limitation of actions to be brought for the inhe= ritanee or possession of real property,” passed March 26th 1785 (2 Sm. Laws 299), that a formal entry, animo damandi, or an act of notorious dominion, by which the claimant challenges the right of the occupant, will avoid its operation: Altemas v. Campbell, 9 Watts 28; Hinman v. Cranmer, 9 Barr 40; Ingersoll v. Lewis, 1 Jones 212. But that is a construction required by the words of the statute : “No person shall make entry into any manors, lands, &o., after the expiration of twenty-one years next after his right or title first descended or accrued, or have or maintain any real or possessory writ or action,” &e. “ The statute,” says Gibson, C. J., “\expressly recognises the conservative properties of an entry alone, by treating it as an alternative for an action:” 9 Watts 29. But the words and the spirit of the Act of April 22d 1856, § 6 (Pamph. L. 533), do not require such a construction. “ No right of entry shall accrue, or action be maintained * * * * to enforce any implied or resulting trust, as to realty, but within five years after such * * * trust accrued with the right of entry, unless such * * * trust shall have been acknowledged by writing to subsist, by the party to be charged therewith, within the said period.” Had the words of this act been “ no entry shall be made, or action be maintained,” there would be reason for holding that the same construction should be applied. But it provides that there shall no right of entry accrue, without an acknowledgment in writing, within the five years. Nor do we understand the opinion of the present Chief Justice, in Clark v. Trindle, 2 P. E. Smith 492, as meaning to go the length contended for by the defendant in error. That opinion must be read with the facts of the case. The cestui que trust was there in actual possession when the Act of 1856 was passed, and continued to be so up to the bringing of the action. “We think,” says the opinion, “ that neither the words, nor by interpretation founded on the mischief to be prevented by the statute, is a case within it, where the cestui que trust has possession and occupancy during the period in which the statute is running.” And again, “we hold that against possession in the cestui que trust, the bar of the statute of 1856 does not run.” The question of a mere formal entry, as distinguished from entry followed by possession and occupancy, was not made, nor were any of the cases on the subject cited in the argument. Williard v. Williard, 6 P. F. Smith 119, is of the same character. The doctrine that entry would toll the Statute of Limitations, was evidently yielded to with great reluctance in Alternas v. Campbell, because of the imperative language of the act, and the general opinion of the profession, hut it was attempted, in that and subsequent cases, to guard it from some of its dangerous consequences. We are not required to adopt it in the construction of the sixth section of the Act of 1856. That section, in fact, is part, not of a statute of limitations, but of “ an act for the greater certainty of title, and more secure enjoyment of real estate” — the preamble of which declares its object to be that “ the people should acquire, bold, and improve their homesteads and estates, in the confidence that they will not be lost by secret and unknown claims, or by fraud and perjury.” There is great reason and justice in holding that when the holder of a legal title, subject to a resulting trust, permits the cestui que trust to occupy and enjoy the land as owner, that he shall derive no benefit from the lapse of time. The act evidently contemplates that “ a right of entry shall accrue, or action be maintained” on behalf the cestui que trust against tbe bolder of the legal title, and that, therefore, the trustee should be either in actual or constructive possession. To say that a bare entry shall prevent the operation of the bar, would open tbe door to the admission of those “ secret and unknown claims,” supported by fraud and perjury, after any lapse of time and death of witnesses, or loss of papers, which the statute was aimed against; for nothing would be required but to repeat such formal entry every five years, to keep them alive in perpetuum.

The evidence in tbe court below showed merely tbe erection of a lumber shanty on the tract claimed by the defendant, and the cutting and carrying away of timber, from time to time, it may be, up to 1864 — two years before this suit. There was no such possession or occupancy, taking it all to be true, as ought to save the bar arising from the lapse of time. A mere temporary occupancy, for the purpose of taking off timber, by one having no right of possession, is not such an actual possession as defeats the constructive possession which the law casts upon the owner: per Agnew, J., in Brewer v. Fleming, 1 P. F. Smith 115; Wheeler v. Winn, 3 Id. 122. We think, therefore, that there was error in tbe answer of tbe learned judge below, to tbe second and third points of the plaintiffs. In regard to the answer to the first point, there certainly was evidence to submit to the jury, which, if believed, would have authorized them to find a resulting trust, and there was, therefore, no error in refusing to affirm that point.

Judgment reversed, and venire facias de novo aAvarded.


author: Sharswood, J. —

text:
    Empire Transportation Company versus Wamsutta Oil Refining and Mining Company.
    *■1. It is the duty of a common carrier to provide a vehicle in all respects adapted to the purpose of carriage, and so constructed as to encounter the ordinary risks of transportation.
    V 2. In default of the vehicle being of such character, the carrier becomes responsible for any loss consequent on such defect, or any to which it may haye contributed.
    *<*3. When any merchandise is on the same train with cars loaded with combustible substance, easily ignited by sparks, it is the special duty of the carrier to take every available precaution against the spreading and communication of fire, should it occur.
    4. An evident and simple measure of precaution is to have the coupling of the cars in such order that any one can be easily detached from the others, in time to be saved from the consequences.
    5. The facts being that the coupling is defective and the car containing goods could not be detached from another car on fire, in time to be saved,— unless the defect was from inevitable accident, — the negligence and liability of the carrier are inferences of law from the facts.
    ¿^6. When the carriage is defective at the time of an injury, and the defect contributed to it, the onus is on the carrier to disprove negligence.
    ^ 7. The carrier must show that the defect arose, not from insufficiency of the vehicle, but from some subsequent accident beyond his control.
    j3. A carrier cannot by notice or limitation in contract or bill of lading protect himself from liability for negligence of himself or servants.
    October 21st 1869.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Venango county: No. 182, to October and November Term 1869.
    This was an action on the case by the Wamsutta Oil Refining and Mining Company against the Empire Transportation Company, to recover damages for the negligence of the defendants as carriers, by which refined oil of the plaintiffs that the defendants were carrying had been destroyed by fire. The case was tried June 5th 1869, before Trunkey, P. J. The plaintiffs gave evidence that they had shipped 67 barrels of refined oil in the defendant’s cars, and that a car of crude oil was loaded for another person at the same time; “the oil was standard light, 110° or upwards.” Standard will not ignite by flame at lower than 110°, crude oil will ignite at 65° and below; — that 2862 gallons of oil were destroyed.
    Wm. Best testified: “ I was foreman on the freight train on the 10th March 1868. On that morning about a mile and a half below Wetmore Station, I discovered fire in the front car next to the engine. There was an engine attached to the rear of the train as a pusher. We either cut the front engine from the train first or the first two cars from the rest of the train. The train was stopped and then the engineer reversed the rear engine and backed off all but the first two cars. We then tried to separate these two cars. We could not do it, because we could not get the pin out. The pin was fast in some manner, I do not know how. We then broke into the second car and unloaded all the oil we could on account of the heat. The heat was coming in from the front car. The second car caught fire from the first. I do not know how the first car caught. Know of no other cause than sparks from the engine, and I do not know that. I think the train was oh schedule time, going at its usual speed. The engine was supposed to be in good condition. The fire when I first discovered it was at the end next th$ engine. We had not much time to take the pin out before the flames interfered with us. We were going up a grade. I do not think the brakes were down on the first car. Every effort was made to save the oil after the fire was discovered. We had no difficulty in getting the pin between the second and third cars out.”
    Geo. 0. Downer testified: “Was conductor on this train. The train was going about ten or twelve miles an hour, had been on time all the way. I first discovered that the forward car on the end next the forward engine was on fire. The train was stopped. I tried to pull the pin between the first and second cars out. It stuck for some reason or other, I do not know what. We then pulled the pin between the second and third cars. The first and second cars were burned. The engine was not throwing any more sparks than usual. The first attempt to cut the train was to separate the first and second cars. The link might have slipped by, and it might be that the links were not slacked, in that case we could not take the pin out. I do not know what was the reason we could not take the pin out. I do not know whether there was any difference in this pin or coupling from other pins and couplings or not. The front engine did emit sparks. I know it took fire from the sparks from the engine.”
    Wm. H. Burton testified: “I was brakesman on this train. I tried to take the pin out between the first and second cars hut could not do it. I could not get the pin out because the link was jammed. The first or second cars were not coupled as cars are usually coupled. The coupling link could not have got in the shape it did by sudden stopping. It must have got in that shape by going around a curve.”
    The defendants gave in evidence their receipt to the plaintiffs for the oil, subject to conditions following, the third of which was “ that the owner or consignee (in consideration of the extremely hazardous nature of such merchandise, which is not covered by any extra charge for transportation), hereby assumes all risk for leakage, evaporation, and loss by fire, while in transit, or at depots or in stations, or on board boats, vessels or lighters, from any cause whatever, and all dangers and delays of railroad and water transportation to destination, and in any claim or demand, suit at law or equity, against this company or transportation company, or agent, for loss or damage thereby, this bill of lading shall be deemed and taken as a release in full therefor.” They gave evidence also that crude oil and refined oil were usually carried in the same train; that there was not enough refined oil shipped for trains exclusively of that kind. They gave evidence also by the engineer on the train, viz., “ the fire caught in rear end of front car. The train was running on time. The engine was in good condition, with new spark arrester. The fire communicated with second car so quick we could not cut it off. It was almost instantaneous.”
    The second point of the plaintiffs was: “ If the jury believe that the defendant placed the car containing plaintiff’s refined oil in a train composed in part of cars loaded with crude oil, and the said car containing plaintiff’s refined oil was coupled with a car containing crude oil, and the said crude oil was greatly more combustible than the refined oil — and the said crude oil was ignited by sparks from the engine, and communicated the fire to the car containing plaintiff’s oil, by which it was destroyed — which sparks would not have ignited the refined oil — and that the coupling of-the said refined oil car and the crude oil car in which the fire originated was defective, and that the defendant’s servants endeavored to uncouple the said cars and could and would have uncoupled the said cars and saved the refined oil but for the said defective coupling, the plaintiff is entitled to recover.”
    This point was affirmed.
    The verdict was for the plaintiffs for $678.18. The defendants took a writ of error, and assigned for error the answer to the plaintiffs’ point.

      J. Ash and S. O. T. Dodd, for plaintiffs in error. —
    The question of negligence was for the jury: McCully v. Clarke, 4 Wright 399; Penna. Railroad v. Ozier, 11 Casey 60.

      0. Seydriclc, for defendants in error. —
    A carrier is bound to provide a vehicle entirely perfect: New Jersey Railroad v. Kennard, 9 Harris 208; Hart v. Allen, 2 Watts 115. It was negligence to carry so inflammable a substance as crude oil with refined oil: Powell v. Penna. Railroad, 8 Casey 414. Under such circumstances more than ordinary care is required: Catawissa Railroad v. Armstrong, 2 P. F. Smith 286. The facts were such as required the court to pronounce that they were negligence: Glassey v. Hestonville Passenger Railway, 7 P. F. Smith 174; Pittsburg and Connellsville Rairoad v. McClurg, 6 Id. 294.
   The opinion of the court was delivered, January 3d 1870, by

Sharswood, J. —

As a common carrier cannot, by a special notice or limitation in the contract or bill of lading, protect himself from liability for the negligence of himself or his servants, Pennsylvania Railroad Co. v. Henderson, 1 P. F. Smith 315, the only question in this cause was, whether the defendants had been guilty of such negligence. The error assigned is, that the court below took that question from the jury, by affirming the plaintiff’s second point, by which they were instructed, that if they were satisfied that certain facts were proved, the plaintiffs were entitled to recover. The rule upon this subject was very clearly laid down in McCully v. Clarke, 4 Wright 399, in which it was said: There are some cases in which a court can determine that omissions constitute negligence. There are those in which the precise measure of duty is determinate, the same under all circumistances. When a duty is defined, a failure to perform it, is, of ’¡course, negligence.” Other cases fully corroborate this doctrine: Powell v. Pennsylvania Railroad Co., 8 Casey 414; Pennsylvania Railroad Co. v. Ozier, 11 Id. 60; Pittsburg & Connellsville Railroad Co. v. McClurg, 6 P. F. Smith 294; Glassey v. Hestonville Passenger Railway Co., 7 Id. 172.

The duty of a common carrier is, to provide a vehicle in all' respects adapted to the purposes of carriage, and so constructed as to be able to encounter the ordinary risks of transportation: Story on Bailments, § 509. It must be perfect in all its parts, in default of which, he becomes responsible for any loss that occurs in consequence of any defect, or to which it may have contributed: Hart v. Allen, 2 Watts 114; New Jersey Railroad Co. v. Kennard, 9 Harris 204. When merchandise, of whatever character, is carried on the same railroad train with cars loaded with a combustible substance, easily ignited by sparks from the locomotive engine — it is the special duty of the carrier to take every available precaution against the communication and spreading of the fire, if it should occur. An evident and simple measure is, to have the coupling of the ears in such perfect order that any one or more of them can be easily detached from the others, in time to be saved from the consequences. If the fact be that the coupling was defective, unless such defect was the result of an inevitable accident, and, in consequence of it, the car containing the plaintiff’s merchandise could not be detached in time to be saved, the negligence and liability of the carrier, are inferences of law, from the facts.

But it is said that the onus in this case was on the plaintiffs below, to show that the defect of the coupling arose from the negligence or want of care of the defendants. We think not. When the carriage is proved to have been defective at the time of the injury, and that the defect contributed to the loss, the onus is then necessarily shifted to the carrier. He must rebut it by evidence that the defect arose, not from the insufficiency of the vehicle, into which the goods were loaded, but from some subsequent accident, beyond his control. This puts the burthen where it ought most properly to rest. The carrier ought to be able to show, with ease, by his servants, that the vehicle was inspected before the commencement of the trip, and everything found to be in good order. It would be very difficult for the plaintiffs to prove the contrary — that it had not been examined, or that it was in bad order when it started. On the trial of this case, in the court) below, there was no evidence to show when, or how, the links of the coupling of the cars became jammed, so that they could not be separated in time. It was surmised by one of the witnesses, that it must have got into that shape by going around a curve. Even admitting this to be so, the important question remains unanswered, and which it was incumbent on the carriers to answer, when did this occur ? Had it been shown to have happened during the course of the same trip in which the fire took place, and that it was not known to, or discovered by the carriers, or their servants, in time to be remedied, then, indeed, there might have been a question of negligence for the jury. But without any evidence as to this point, there was nothing for them but that which was submitted, whether the coupling of the car was defective, and that defect contributed to produce the loss.

Judgment affirmed.


author: Agnew, J. —

text:
    Trunick versus Smith.
    1. A railroad being a public highway, every owner of cars on it is in possession of his own cars on w.hat part soever of the track they may be; such cars are not in possession of the company.
    2. The right of the cars to remain on the track cannot be denied, subject to the regulations of the company as to the place they shall occupy when not in use.
    3. McCormick owned a car, which was on a siding in charge of an agent of the company; he sold it to Truniek, -who requested the agent to take charge of it for him, which the agent did, the car remaining on the siding as before. Held, that there was not such change of possession as would protect the car from McCormick's creditors.
    4. The agent of the company did not beeome bailee of Truniek.
    5. Deposit, as a bailment, implies an actual delivery of possession for a special purpose.
    6. Leaving a car on a siding is not such a delivery as constitutes a bailment ; it is only a constructive delivery, and this requires more to be done.
    7. It must appear that there was an intention to transfer the possession.
    October' 25th-and 26th.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Indiana county: No. 158 to October and November Term 1868.
    This was an action of trespass, d. b. a., by James Truniek against Joseph R. Smith (sheriff), issued July 24th 1862, for seizing and selling under an execution against John Gr. McCormick, a railroad truck claimed by the plaintiff to be his property.
    The plaintiff gave evidence that about June 1st 1858 he had bought the truck from McCormick, who at that time lived in tAllegheny county but had previously lived in Indiana county, carried on the lumber business there, and had used the truck for carrying lumber on the Pennsylvania Railroad and its Indiana branch. At the time of the sale to Trunick it was on a siding at Homer, Indiana county, and William Wilson, an agent of the Pennsylvania Railroad Company had charge of the truck for McCormick.
    The plaintiff gave in evidence the following correspondence with Wilson:—
    “ Pittsburg, April 5th 1858.
    Mr. Wilson,
    Dear Sir: — As I intimated to you when I was at your place, I have sold my truck to Mr. James Trunick of Temperanceville. He requested me to inform you to that effect.
    Yours truly, John Gr. McCormick.
    N. B. You will please inform me by return mail whether you received Mr. James Trunick’s letter or not.”
    “ Temperanceville, April 5th 1858.
    Mr. Wilson,
    Dear Sir: — I have purchased of John Gr. McCormick his eight wheel railroad truck, now standing on the siding at Homer Station, Indiana Branch, Pennsylvania Railroad. I therefore constitute you my agent. You will please hold the same in your possession, subject only to my order.
    Yours respectfully, James Trunick.”
    “ Homer, Pa., April 13th 1858.
    John Gr. McCormick, Esq.,
    Dear Sir: — I drop you a line to let you know that Mr. James Trunick’s letter of the 5th inst., was duly received, and the truck we will hold subject to his orders.
    Yours respectfully, Wesley Wilson.” (son of William Wilson.)
    “ Pittsburg, May 26th 1858.
    Mr. Wilson,
    Dear Sir I have this day sold the railroad truck you have had in your care for me, to Mr. Alvin Pratt of this city, to whom or his order you will deliver the same, and if you will send to me a bill of your charges for your trouble of taking care of said truck you will oblige me.
    Respectfully yours, James Trunick.”

      “ Pittsburg, May 3d 1858.
    Mr. William Wilson, Esq.,
    Dear Sir: — There appears to be some difficulty respecting the railroad truck; the sheriff of Indiana county notified McCormick that he had levied on the truck, I gave him notice that I had bought the truck from McCormick and that I would hold him responsible if he sold. You will please inform me what action if any there has been taken in the matter.
    • Yours respectfully, James Trunick.”
    The defendant as sheriff levied on the truck and was notified by the plaintiff that it was his property.
    The defendant gave in evidence three executions against McCormick to June and September Terms 1858 respectively amounting in the whole to $1226 and judgments in addition amounting to $265, besides costs. He also gave evidence that the truck lay at the Homer siding in the winter and spring of 1858 and remained there till the. levy, when it was taken to Indiana by direction of the sheriff to be sold. There was evidence on both sides as to the bona fides of the sale by McCormick to the plaintiff.
    The court, Buffington, P. J., after referring to the evidence and discussing the question of actual fraud; charged:
    * * * “ The remaining question is one of legal fraud. When there is a sale of personal property, susceptible of actual delivery, it must be removed in order to give notice to the world and especially to creditors of the vendors. The retaining of possession without any change in the situation or condition of the property, is a conclusive badge of fraud, so far as regards the claims of creditors. It is as a general rule a visible and notorious indication that there has been no change in the ownership. Fraud in the sale of personal property is frequently of difficult proof, and such sales are often resorted to, especially among confidential friends and near relatives, as a means of covering up the property from creditors. Where there is no fact to manifest a change of ownership it is eminently calculated to embarrass creditors and officers in their efforts to collect honest claims, and its tendency thus to hinder and embarrass has been adjudged to be within the provisions of the statute against fraudulent conveyances. A secret collusive sale may be easily proved by willing witnesses, hut where exclusive possession has been transferred in pursuance of a sale, it is such a notorious act as puts the creditor upon his ^iard.
    [“ But is said that this truck, both before and after the sale by McCormick, was in the possession of the railroad company as a bailee, and therefore an actual change was not necessary. We cannot agree to this. The company cannot in any sense be considered a bailee. There was no privity of contract whatever between the owner and the company. It is further contended that Mr. Wilson was a bailee. The witnesses say he was an agent and from the proofs as to the nature of his employment, we think that was his position, and that he did not occupy the character of a special bailee, having any right to control it, but merely to look after its safety.] * * *
    [“ The jury will, therefore, say whether there was any change of the situation of the truck from where it was placed by McCormick or his order, or whether after such sale there was an actual transfer of the possession and position of the truck, or whether it remained as it had been before.]
    “ If there was no change of possession (and the jury will judge of this fact) the law pronounces it a legal fraud as to creditors, and the plaintiff cannot recover. There is very little discrepancy in the evidence as to the continuing situation of the truck. [It remained on the siding for months and continued so until levied upon by the defendant as sheriff. If the jury so believe and find the fact we think it was a legal fraud, and if so the verdict will be for the defendant.] If the jury, however, think differently and find the sale to have been a fair bonfi fide sale, with consequent change of possession, and that the contract with Pratt was after the levy, the plaintiff ought to recover.”
    The verdict was for the defendant.
    The plaintiff removed the case to the Supreme Court and assigned the parts of the charge in brackets, for error.

      S. W. Weir (with whom was W. Banks), for plaintiff in error.—
    Wilson was the bailee of Trunick of the truck: 2 Kent’s Com. 723; the possession was therefore m Trunick as much as the nature of the chattel was susceptible of. He cited also Tompkins v. Saltmarsh, 14 S. & R. 275; Commonwealth v. Chathams, 14 Wright 181; Linton v. Butz, 7 Barr 89; Young v. McClure, 2 W. & S. 150; McBride v. McClelland, 6 Id. 94. The truck was in its nature cumbersome and all the change possession required by the law was made. Dunlap v. Bournonville, 2 Casey 72; Chase v. Ralston, 6 Id. 541; Steelwagon v. Jefferies, 8 Wright 407; Benford v. Schell, 5 P. F. Smith 393.
    ■ZT. White and II JD. Forster, for defendant in error
    cited Milne v. Henry, 4 Wright 358; Dornick v. Reichenbach, 10 S. & R. 84; Carpenter v. Mayer, 5 Watts, 483.
   The opinion of the court was delivered, January 3d 1870, by

Agnew, J. —

Under the charter of the Pennsylvania Railroad Company, Pamph. L. 1846, p. 323, the railroad is made a public highway, which may be used by persons owning their own cars, the company furnishing the motive power. It is stated by the plaintiff in error, that the motive power had been furnished to McCormick and his partner, by special contract with the railroad company. Now, it is very clear, that the railroad, being a public highway, every owner of cars is necessarily in the possession of his own car, no matter on what part of the track it may happen to be. It cannot be deemed to be in possession of the railroad company, which only furnishes the motive power to haul the car over the track. Nor can the right of the truck or car to remain on the railroad be denied, subject to the regulations of the company as to the place it shall occupy when not in use. It was, therefore, the undoubted right of McCormick to leave the truck onLthe siding at Homer, in charge of the agent of the company, if not objected to by the company. The possession was clearly in McCormick, as the owner of the truck, when he ran it upon the siding at Homer, and it continued in him, unless it was changed by some notorious act, placing it under the control of some one else. The creditors of McCormick, finding that he had left it on the siding, in October 1857, had a right to believe the possession was still in him. Such was the nature of the property, and the right of its owner to the use of the railroad track, no other inference could be legally drawn; unless by removal and passing into the control of another, by some notorious act, the creditors were put on their guard that the possession was no longer in McCormick.

This brings us to consider the attitude of Wilson towards the property. Was he a bailee, in any proper sense ? 'We think not. He was the employee or agent of the railroad company. The company must keep servants along the route of the road to enforce its rules and regulations, and see that cars at rest occupy proper places. Now, when McCormick left this truck-car on the siding, in care of Wilson, this was no delivery of possession to him. It was hut an oversight or charge, to see that it remained in its proper place. He could not have maintained trespass or replevin for an injury or removal. The truck was left for no special purpose in Wilson’s hands, but it remained on the track as it had formerly done, in the proper possession of McCormick. Had a creditor gone to Wilson, after January, and before April, and asked him whose truck it was, he must have replied McCormick’s. Had he been asked if it were in his possession, or whether he had any special property in it, by delivery to him, he must have answered, he had not. He would have said, that McCormick had left the car standing on the siding. Blackstone, in his Commentaries, vol. 2, 451, defines a bailment to be a delivery of goods in trust, upon a contract, expressed or implied, that the trust shall be faithfully executed on the part of the bailee. This definition is adopted by Mr. Story, Bailments, s. 3, with the addition, that it must be for some special object or purpose. Chancellor Kent, in his Commentaries, vol. 2, sect. 40, gives the definition of Blackstone, with the addition: “ and the goods restored by the bailee, as soon as the purpose of the bailment shall be answered.”

Now, can it be said, with any propriety, that such a peculiar property as a railroad car, having a qualified right of possession of the railroad track, and incapable of being taken elsewhere, unless it might be to a private siding, is the subject of a bailment, in any just-sense, by its being merely left on the siding of the railroad company, in charge of one of its servants ? It is not possible for it to be a bailment of any species, unless it should be a deposit without reward. But, certainly, there was no intention to make a deposit with Wilson, in leaving the truck on the siding. Deposit, as a species of bailment, implies an' actual delivery of possession, for a special purpose, as where the owner delivers for safe-keeping or for carriage to some person or place. It is evident, that to leave a railroad car on the siding, is not in itself a delivery. Delivery, in such a case, caft only be constructive, and this requires something more to be done. It must appear that there was an intention to transfer the possession, but of this there is no evidence in the case, unless we hold that a mere oversight of the truck by the agent of the railroad company is to produce this effect. But, clearly, this was not the intention of McCormick. He was in possession, and he left the truck on the siding, just as an owner ordinarily would. He made no delivery to Wilson, formal or otherwise. The possession continued in him, after the sale to Trunick, in January. Nothing was done to evidence a change of possession until April, and then no removal took place, no notorious act of dominion was exercised by Trunick, but the truck remained just as it had been, on the siding, and so far as the world knew, the possession still continued in McCormick. Under these circumstances, we perceive no error in the charge of the judge.

Judgment affirmed.

Thompson, C. J., and Sharswood, J., dissented.


author: Asnbw, J. —

text:
    Wallace versus Hussey et al.

    1. Iiays sold land to 'Wallace,*who gave a mortgage for the purchase-money. A balance being unpaid, Wallace offered to pay on condition that Hays would assign it to Nixon. Hays refused, and issued a sci. fa., which Wallaee defended on the ground of misrepresentation as to the land. Held, that evidence by Hays was admissible that at the time of the offer of payment Wallace made no objection on the ground of set-off, or that the whole balance was not due.
    2. Prior to the sale by Hays, he issued a pamphlet, containing a description of the property, of which he made no other representations. Held, that this was in the nature of an advertisement, and not like a representation of fact made directly to a purchaser.
    3. Hays agreed that the payment of the mortgage should be postponed for eighteen months after it became due. Held, that this was not within the act forbidding the issuing of a sci. fa. for a year after the mortgage was due.
    4. The agreement was a covenant not to sue, but was no part of the mortgage.
    October 26th 1869.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Westmoreland county : Of October and November Term 1869, No. 11.
    In the court below Curtis Gr. Hussey, William B. Hays and Thomas Mellon, on the 8th of December 1866, issued a scire facias sur mortgage against Henry E. Wallace.
    The case was tried, November 19th 1868, before Buffington, P. J. The plaintiffs gave in evidence a mortgage from the defendant to them, dated December 19th 1864, to secure the payment of $100,000 on the 19th of March 1865, on a tract of land, known as the Shafton Coal Works; $75,000 of the mortgage had been paid on the 6th of April 1865. The defendant gave evidence by W. O. Leslie that under a power of attorney from the plaintiffs he sold the property covered by the mortgage to the defendant and others for $150,000; it was situated on the Pennsylvania Railroad in Westmoreland county, between Grreensburg and Irwin station, and about 20 miles east from Pittsburg; the defendant resided in Philadelphia; at the time of negotiating the sale, witness gave to the purchasers a pamphlet containing a schedule and description of the property, but gave no description of the property to the buyers other than was in .the power of attorney and pamphlet. The title of the pamphlet was: “ Shafton Coal Mines and Lime Works * * * situate, &c., * * comprising the following property.”
    The schedule following contained a detailed statement of the property in items describing their condition with a value in dollars, to each; the whole estimate amounting to $254,680.
    The conclusion was as follows :—
    “ We would invite attention to this property, and .especially a personal examination of it, as we think a personal examination would make a more favorable impression of its advantages than anything we could say on the subject. These mines are now in operation. Their working can be inspected any day; and it will be seen that, with slight outlay, .they can be made to pay a very handsome monthly dividend at once.
    “Wm. B. Hays & Co., Pittsburg, Pa.
    “ Parties negotiating for purchase are required to examine the foregoing schedule and statement,-and exercise their own judgment as to its correctness.”
    Before and at the time the deed was delivered, $50,000 of the purchase-money were paid, and $100,000 the remainder secured on the property by the mortgage in suit. The purchasers were afterwards incorporated as The Shafton Coal Company. The defendant further gave in evidence a receipt of Hays, one of the plaintiffs, for $75,000 on account of the mortgage, balance to be paid July 1st 1865 with interest from the 10th of April; also an agreement dated May 5th 1865 between the plaintiffs and “ the Shafton Coal Company and Henry E. Wallace, mortgagor,” stipulating that the balance of $25,000 of the mortgage-debt remaining unpaid “shall not be payable for -the term of eighteen months from the 1st day of May 1865, interest being paid thereon at the lawful rate, every six months, and that no process shall issue upon the said indenture of mortgage, or the bond and warrant accompanying the same, until the expiration of the said term of eighteen months.”
    He also gave evidence for the purpose of showing that the mines, buildings, machinery, &c., of the property sold to him had been misrepresented in the pamphlet and schedule, and were inferior to the description there given.
    The plaintiffs in rebuttal gave evidence as to the value of the property, the condition of the mines, machinery, &c. They proposed to prove that “ on the 3d December 1866 Henry E. Wallace, defendant, met Mr. Hays at the office of II. C. Marchand, and offered to pay to Mr. Hays the balance due on the mortgage, if he would assign a portion of the mortgage to Mr. Nixon; Mr. Hays declined to receive it on the terms proposed.” The defendant objected to the evidence as being to prove an offer of compromise not accepted. The evidence was received, and a bill of exceptions sealed.
    Mr. Marchand testified, “ 3d December 1866, Wallace and Hays met in my office; Mr. Wallace proposed to pay the balance, $25,000, and interest, on condition that he, Hays, would transfer a certain portion to Mr. Nixon, president of the company; this Mr. Hays refused to do; no set-off, objection, or any defence to any portion of the unpaid amount due on mortgage, was made by Mr. Wallace at the time. I was present on 6th April 1865, when the $75,000 were paid to Mr. Hays; Messrs. Nixon, Wallace and Dellaven were present; Nixon produced the certificate delivered to Mr. Hays, and he signed receipt and duplicate; no talk about any off-set in payment of this money.”
    The defendant requested the court to charge:—
    “ 1. That the sale of the real and personal property in this case being made in Philadelphia, when the vendors had no opportunity to inspect the same, and the vendors having furnished them a printed description of the same, with the values attached to the various items; then if the jury believe that this statement or description is not true, in whole or in part, and that the vendors knew it was not true at the time, they were guilty of a fraudulent misrepresentation to the purchasers, and the jury may set off the damages the latter sustained on account of the property not being as described, against the purchase-money claimed here.

      “ 2. That from the printed description furnished by the plaintiffs the defendant had a right to believe the property was in good repair, and in reasonable good working order; that it could do the work the description asserted it could do, and that, therefore, if the jury believe that it was not in such repair, or working order, and could not do the work according to the description, the measure of the defendant’s damages would be the amount necessarily expended by him in order to repair and make it do so.
    “ 3. This scire facias having issued within one year from the time when the money became due, which the mortgage was given to secure, it is premature, and the plaintiff cannot recover.
    “ 4. That no presumption arises from the silence of the defendant at the instant of time when the payment on the mortgage was made or offered to be made that he had no defence to the payment, or did not intend to make any, he was not bound to make objections at that time more than at another.”
    The court answered: — ■
    “ 1. This point is answered in the affirmative, with these explanations :
    “ As a general principle there is no implied warranty of quality in the sale of personal property, even a full price does not necessarily insure a sound article, especially when it is open to the inspection and examination of the purchaser. If a person wants to. be secure in getting personal property of a certain specified quality of which he has the opportunity of judging, he may demand a warranty or refuse to purchase; but if he has the means of reasonably ascertaining the character of the articles, and buys without any warranty, or assurance, he has no remedy; he has made his own payment the ground of his bargain and must be content. If, however, he is not in a condition or situation to judge of its quality, not being within reasonable access, of which the jury will judge, and he buys upon the faith of the vendor’s representations alone, these representations must not be false and fraudulent. If the vendor, under such circumstances, falsely represents the quality of the property, with a knowledge of the facts of such falsity, and with the fraudulent purpose of deceiving and cheating purchasers, he may be indemnified against such fraud, by a reduction in the price to the standard of the real value. This fraud must be proved to the satisfaction of the jury, and cannot be presumed on slight grounds. As in this ease, if the jury believe that the property was not within the reasonable reach or power of the purchasers to examine it, and he bought on the faith of the plaintiff’s representation, the plaintiff was bound to deal fairly, and if he misrepresented the quality, knowing the fact that his representations were false, and so represented and so representing, with a fraudulent intent to deceive the purchaser, then he would be entitled to a reduction of the amount the property lacked to come up to the representations of its quality and value.
    “ 2. The point is answered in the negative), unless the jury believe there was such fraud as mentioned in our answer to the 1st point, the mere representation and purchase in pursuance of this, unless so false and fraudulent, and known to be such by the vendor, would not afford any ground of complaint.

      “ 3. This point is answered in the negative, as the scire facias was not issued till after twelve months from the time of the payment mentioned in the mortgage, and, although the time of payment was by a subsequent agreement extended, that contract was not part of the mortgage, and not within the Act of Assembly.
    “4. This point is answered in the negative. If the $75,000 were paid, and the $25,000 offered upon conditions and no objection made to the quality of the property sold, some presumptions would arise, but, being only a presumption, it may be rebutted.”
    The verdict was for the plaintiffs for $28,833.33.
    The defendant took a writ of error, and assigned for error the admission of Mr. Marchand’s testimony and the answers to the points.

      <x. 1). Budd (with whom were J. A. Hunter and H. Oowan),
      for plaintiff in error. —
    As to the evidence, cited Slocum v. Perkins, 8 S. & R. 296 ; Sailor v, Hertzogg, 2 Barr 186; Thomas v. Brady, 10 Id. 168. As to misrepresentation of the 'quality of the property: Fisher v. Worrall, 5 W. & S. 478; Pennock v. Til-ford, 5 Harris 456; Miles v. Stevens, 3 Barr 21; Horbach v. Gray, 8 Watts 497; Goepp’s Appeal, 3 Harris 428; Cochran v. ■Cummings, 4 Dallas 250; Duncan v. McCullough, 4 S. & R. 487; Borrekins v. Bevan, 3 Rawle 23; Hogens v. Plympton, 11 Pick. 97; Hastings v. Lovering, 2 Pick. 214; Osgood v. Lewis, 2 Har. & Gill 495; Hunt v. Moore, 2 Barr 105; Haycraft v. Creasy, 2 East 103; Moens v. Heyworth, 10 M. & W. 155; Fitzherbert v. Mather, 1 T. R. 15; Addison on Contr. 127; Schneider v. Heath, 3 Campb. 508; Pawson v. Watson, Cowp. 788; Adamson v. Jarvis, 4 Bing. 73; Bishop v. Reed, 3 W. & S. 265; Risney v. Selby, 1 Salk. 211; Mummery v. Paul, 1 C. B. 316; Taylor v. Green, 8 C. & P. 319; Grant v. Munt, Cooper’s Chan. 6, 173; Callem v. Blantern, 2 Wilson 347; Davis v. Symonds, 1 Cox 405; Holmes v. Sixsmith, 7 Exeheq. 807; Schneider v. Heath, 3 Campb. 508; Fletcher v. Bowsher, 2 Starkie 561; Baglehole v. Walters, 3 Campb. 155. As to the premature issue of scire facias: Walker v. Tracy, 1 Phil. R. 225.

      II. D. Foster (with whom were II. O. J. A. Maroh'and), for defendants in error,
    cited: As to the evidence: Sailor v. Hertzogg, supra; Wallace v. Small, 1 M. & M. 446; Watts v. Lawson, Id. 447; Thompson v. Austen, 2 Dowl. & Ry. 358; Slack v. Buchanan, Peake’s Cases 5, 6. As to issuing scire facias: Partridge v. Partridge, 2 Wright 78. As to misrepresentation: Chitty on Contracts 528, 529; 1 Story’s Eq. Jur. § 215-16; 2 Kent’s Com. 484; Phipps v. Buckman, 6 Casey 402; Fisher v. Worrall, 5 W. & S. 478.
   The opinion of the court was delivered, January 3d 1870, by

Asnbw, J. —

We discover no error in admitting the testimony of Mr. Marchand. The offer was not of compromise, but of payment. It was to pay the balance of $25,000, owing upon the mortgage, without a claim of abatement, or an allegation of a want of consideration. Clearly this was an inferential admission that the defendants owed the whole sum. The condition on which the offer of payment was made, to wit, that Hays should assign this portion of the mortgage to Mr. Nixon, did not relieve the offer to pay the entire amount, from the presumption that it was all equitably due to Hays, without further explanation. It might be that the defendant was willing to pay a debt, part of which he considered unjust, on condition of his liability being transferred to another, and he might have good reasons for so doing, but this it was his business to explain. Certainly, as a primá facie presumption, when he offered to pay to his creditors the whole sum without any claim of abatement, it was some evidence that he had no defence. How much, it was for the jury, not the court, to say.

The second and third assignments of error involve the doctrine of the vendor’s liability for false representations of the quality of the property sold. The second is not insisted on, but the third is, on the ground that the second point of the defendants did not raise the question of fraud, but a misrepresentation of the quality of the property sold, innocently made it might be, but for which the vendor must answer in damages. But this question was not fairly raised by the evidence. There was no evidence given of any representations of the vendors except those contained in the pamphlet attached to Leslie’s power of attorney. Now this was a document in the nature of an advertisement only, addressed to all persons who might feel inclined to buy, and inviting their attention to the property and its supposed advantages. It is not like a representation of a fact made directly to a purchaser in the act of negotiating a bargain ; but it is always looked upon with many grains of allowance for florid description, and as a mere invitation to bring in purchasers. But the pamphlet itself warned all persons desirous of purchasing not to rely upon its terms. After inviting a personal examination of the property, it concludes by saying — “ Parties negotiating for purchase are required to examine the foregoing schedule and statement, and exercise their own judgment as to its correctness.” Thus the defendants cannot say they were misled, for they were warned not to take the schedule and statement as true. If they did so, it was their own negligence, for it is only when the purchaser ought to rely on the vendor that he can be misled. And in this case there was no difficulty in the way of a personal examination. The property lay right upon the railroad and but half a day’s ride from the residence of the purchasers. In view of the evidence, therefore, the court very properly submitted the case to the jury on the ground of a fraudulent misrepresentation only. For if the pamphlet was made by the vendors to play a part in a scheme of fraud, the invitation' to examine the property and test the correctness of the description would not rescue it from the influence of the fraud. Indeed that seeming fairness would only assist to make the fraud more effective.

We are of opinion that the agreement of May 5th 1865, postponing the payment of the balance unpaid on the mortgage for eighteen months, did not bring the case within the Act of Assembly forbidding a scire facias to issue on the mortgage until the expiration of one year after the last instalment fell due. This agreement amounted to a covenant not to sue on the mortgage until the expiration of eighteen months, but was no part of the mortgage. It was a new credit for a new consideration, and the covenant that no process should issue on the mortgage until the expiration of the new period, fixed the time when process should issue. This was the final agreement of the parties, quite as binding and far more reasonable than a waiver of the legal period (a common clause in mortgages) and an agreement that a scire facias shall issue as soon as the debt becomes payable.

The fifth assignment of error needs no more elucidation, than what has been said upon the first assignment.

Finding no error in the record, the judgment is affirmed.


author: Siiarswood, J. —

text:
    Aiken versus Stewart et al.

    1. The onus is on a plaintiff in error to make out his assignment of error affirmatively, he must furnish in the record and on his paper-book, all that is necessary for that purpose.
    2. It is an established rule of the Supreme Court not to reverse on account of the reception or rejection of written evidence without having the paper or a copy of it.
    3. There is no legal right to insist upon the repetition by a witness of a former part of his testimony; it is within the discretion of the court below.
    4. The court has a right to interpose when a witness is asked to repeat, though no objection be raised by the opposite party.
    5. Justification under a private way must be specially pleaded, and cannot be given in evidence under the general issue.
    6. In an action of trespass in which the defendant pleaded that the locus in quo was a public highway, it was error so to charge that the jury might infer that proof of either a public or private way would be a justification of the trespass.
    October 29th 1869.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Armstrong county: Of October and November Term 1869, No. 153.
    This was an action of trespass q. c. f. brought September 24th 1866, by James 0. Aiken against Isabella Stewart and others. The defendants pleaded “Not Guilty” and that the locus in quo was “ a certain common and public highway.”'
    There was no evidence on the paper-books, but it appeared in the assignment of errors that on the trial, the court (Buffington, P. J.), had admitted, on the part of the defendants, a deed “ for the purpose of showing that they resided adjoining and own a tract of land contiguous to the plaintiff;” and also a draft of defendants’ land, made by Thomas Armstrong, to show its location ; also, that after the examination of a witness by defendants’ counsel, the plaintiff proposed to ask him “ if he did not state on his cross-examination that until Morrow came to his farm there was no road to the place where the defendants’ house now is, and if such statement is not true.” The court overruled the question as to what the witness had already stated as being a repetition and irrelevant, but admitted the latter part of the question. To these rulings exceptions were taken, and several bills of exception sealed.
    The defendants’ 1st, 2d and 6th points were:
    1. A continued, uninterrupted and adverse enjoyment of a way over another’s land, with his knowledge and acquiescence, for twenty-one years or upwards, will justify a jury in finding in favor of a party who sets up the right arising out of such use.
    2. If the jury believe, from the evidence, that the defendants, or the occupiers of their farm, or those under whom they claim title, have used a way uninterruptedly upon and over the lands of the plaintiff, for twenty-one years or upwards, they have the right to presume a grant, whether the ground over which the way has been used, be improved or unimproved, closed or unenclosed land.
    6. If the jury believe the defendants had a right of way over the road in dispute, and in passing along this way, at the times of the alleged trespass, exercised no other rights than those belonging to them, the jury should find for the defendants.
    The court affirmed these points, and charged: * * *
    “ The parties in this case owned and occupied contiguous pieces of land. By reason of an intervening and impassable bluff, or hill, the defendant could not reach his meadow, lying in the northeastern end of his tract, without passing around the point of this bluff, which extended into the land of the plaintiff. The plaintiff had erected a substantial fence all around his tract, including the woodland where the alleged road is; and the defendants contend that this road is a public highway, dedicated to the use of the public and all persons desiring it; and as such, was used and enjoyed by the public for such a length of time as amounts to a presumption that it was laid out by competent authority, or dedicated to public use, and thus became a public highway. This is the question, as the defendants do not seriously deny their entry on the ground, and use of it as a passage way, without the consent of the plaintiff.
    “ We are therefore to inquire whether, from the evidence in the case and the established rules of law, this was a highway for all persons to use and occupy at pleasure.
    “ It is not pretended that it was laid out by any public authority, and there is no evidence of it. Nor is it pretended that it was dedicated to public use by any act of the owner of the land. It rests simply upon presumption from lapse of time.
    “ There is no doubt that a public right of way may be acquired by an uninterrupted and adverse use of it as such for a period of twenty-one years. Such use affords a conclusive presumption of an original dedication, unless by non-user or abandonment it ceases to be such. If it be so abandoned, then the rights of owners re-attach and resume all their original qualities.

      “ The law does not determine the character or the capacity of a road established by mere user and presumption, as every case must depend upon the nature of the country, its population, business, and habits of intercourse. It therefore becomes a question of fact for the jury. * *
    “ From this evidence referred to, and all other evidence in the case, the jury will decide whether this alleged road was a public highway; whether it was so used by the public generally, continuously for twenty-one years, and of such character as was suited to the wants of the community, and as public roads are constructed and used in the state of the population and the wants and exigencies of public intercourse. If the jury so find it, it. was a public highway.” * *
    The verdict was for the defendants. The plaintiff took out a writ of error and assigned for error the ruling of the court as to the evidence and the answers to the defendants’ points.

      B. S. Gfolden and J. B. Neale, for plaintiff in error. —
    A defence that there was a private right of way over the locus in quo must be specially pleaded: 2 Saunders Plead, and Ev. 381: 1 Chitty on Plead. 554, 545; Johnson v. Carter, 16 Mass. 443; Spear v. Bicknell, 5 Id. 125; Strout v. Berry, 7 Id. 385; Waters v. Lilley, 4 Pick. 148; Riggles v. Lesure, 24 Id. 187.

      J. Boggs, for defendants in error. —
    The whole charge and the answers to points must be taken together: Peirce v. Cloud, 6 Wright 102; Oakland Railway v. Fielding, 12 Id. 321; Davenport v. Wright, 1 P. F. Smith 292.
   The opinion of the court was delivered, January 3d 1870, by

Siiarswood, J. —

This was an action of trespass quare clausum fregit. The defendants pleaded not guilty, and a special plea of justification of the trespass on the ground of a common and public highway over the locus in quo.

The 1st assignment of error is to the admission in evidence on the part of the defendants of a deed which was offered, as stated, for the purpose of showing that the defendants reside adjoining and own the tract of land contiguous to the plaintiff. Under the issue upon the special plea it is not easy to see the relevancy of the purpose of it as set forth in the offer. But we are not furnished with the evidence, and it is impossible to say that it might not have been relevant under the issue joined upon the plea of not guilty. The onus is upon the plaintiff in error to make out his assignment affirmatively, and he must furnish in the record and on his paper-book all that is necessary for that purpose. Besides which, it is an established rule of practice in this court not to reverse on account of the reception or rejection of written evidence without being furnished either with the paper in question or a copy of it: Gratz v. Gratz, 4 Rawle 411; Stafford v. Stafford, 3 Casey 144.

The same reasons dispose of the 2d assignment of error. We have not the evidence to show who Thomas Armstrong was, by whom the draft which was received in evidence was made, nor the draft itself, nor a copy of it.

The 3d error assigned is, that the court refused to allow the plaintiff’s counsel to ásk a witness on the stand if he did not state in his cross-examination a certain fact. It nowhere appears in our paper-books whether this witness was called by the plaintiff or the defendants; and such being the case, how can we decide whether the question was proper or improper ? Besides, although it may sometimes be important to ask a witness to repeat a former part of his testimony, there is no legal'right to insist upon this. If there were it would be without limit. It is evidently a matter entirely within the sound discretion of the court below, whose duty it is to take care that the public time is not needlessly consumed in mere repetitions: and they have an undoubted right to interpose in such a matter, though no objection be raised by the opposite party. There is the less reason for any exception in this instance, as the learned judge allowed the witness to be asked whether the fact about which he was asked, whether or not he had stated it before, was not true. It is not easy to see what injury was done to the plaintiff in this.

The 4th, 5th and 6th assignments are to the affirmance by the court below of the defendants’ 1st, 2d and 6th points. These points in different forms asked the court to instruct the jury that if they believed from the evidence that the defendants had a right Of way over the plaintiff’s land they were entitled to the verdict. They point unmistakeably to an uninterrupted user by the defendants or the occupiers of their farm or those under whom they claim title, and that whether the land were closed or unenclosed, which could scarcely be predicated of a public highway or of a user in common with the public. The use by those under whom they claimed title would have no pertinency to such a question. It is clear that a justification under a private right of way as well as a public highway must be specially pleaded, and cannot be given in evidence under the general issue: 2 Wms. Saund. Rep. 402, n. 1; Hawkins v. Wallis, 2 Wils. 173. The affirmance of these points had an evident tendency to mislead the jury from the true question in issue. They may have been true as abstract propositions, but they had no relevancy to the issue on trial. It is urged however that the question was rightly stated in the general charge, and Oakway Railway Co. v. Fielding, 12 Wright 321, is relied on as establishing that where the law is correctly stated in the charge this court will not reverse if a point in which the same thing is stated in exceptionable language is affirmed. In that case however there was really no substantial variance; the language of the court in the charge was only more precise and accurate than the point; and there was no reason to suppose that the jury were misled by the difference. In the case before us there was no distinct and explicit instruction that the jury could not base their verdict upon a mere private right of way in the defendants themselves or the occupiers of their farm or those under whom they claimed title, and they might well have inferred from the charge and the affirmance of the points taken together that the proof of either a public or private way would be a justification of the trespass by the defendants.

Judgment reversed, and venire facias de novo awarded.


author: Read, J. —

text:
    The Commonwealth versus Jessup.
    1. The Act of May 8fch 1854, furnishing liquor to minors, &e., is not repealed by the Act of April 17th 1867, for enforcing order in licensed houses, &c.
    2. An indictment for furnishing liquor to minors did not charge that it was “ for use as a beverage.” The defendant pleaded “ guilty.” Meld, that under the criminal procedure act the defect in the indictment was cured by the plea.
    October 29th 1869.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Quarter Sessions of Armstrong county : No. 120, to October and November Term 1869.
    At June Sessions 1868, of the Court of Quarter Sessions of Armstrong county, 0. C. Jessup was indicted for that he did “knowingly and wilfully furnish, sell and give, and cause and permit to be furnished, sold and given, intoxicating drinks, to wit, whiskey, brandy, gin, wine, ale and beer, to a certain George Bellas and others, they, the said George Bellas, &c., at that time being minors under the age of twenty-one years, and the said C. C. Jessup, knowing them, the said George Bellas, &c., to be minors as aforesaid.” The indictment did not charge that the sale was for use as a beverage. On the 8th of September 1868, the defendant pleaded “ Guilty.” On the 5th of March 1869, judgment was arrested; this, on a writ of error by the Commonwealth, was assigned for error.

      J. Q. Barrett, District Attorney, for the Commonwealth,
    referred to Act of May 8th 1854, § 1, Pamph. L. 603, Purd. 666, pi. 31, against wilfully furnishing intoxicating drinks to minors, &c., “ for use as a beverage.” The punishment for the first offence is a fine from $10 to $100; for a subsequent offence a fine from $25 to $100, and imprisonment in the discretion of the court, with forfeiture of license.

      ¶. MeoMing, for defendant in error. —
    The Act of 1854 is repealed by the Act of April 17th 1867, which, in section 2, provides that no person shall sell, &c., any intoxicating liquors, &c., to any minor, &c., without consent given in writing by his father, &e. By section 9, a person selling to one to whom it is unlawful by the act to sell, shall be liable to all damages occasioned by such sale. By section 10, persons violating the provisions of this act shall be fined not more than $25, or in default of payment, imprisonment not more than five days. This act was repealed by the Act of April 6th 1868, § 1; but it does not reinstate the Act of 1854, because that being a penal act, is not revived by the repeal of the repealing act: Commonwealth v. King, 1 Wharton 460; Anonymous, 1 Wash. C. C. Rep. 84; Commonwealth v. Duane, 1 Binney 601; Norris v. Crocker, 13 Howard 435.
   The opinion of the court was delivered, November 4th 1869, by

Read, J. —

The defendant was indicted under the Act of the 8th May, 1854, for wilfully furnishing intoxicating drinks, by sale or gift, to minors, arid on the 8th September 1868, he pleaded guilty, and on the 3d March 1869, the court arrested the judgment. No reason was assigned, but the counsel for the defendant says the Act of 1854 was repealed by the Act of the 17th April 1867. But this is a clear mistake, for the acts are not inconsistent, and it contains no repealing clause, and the Act of 1867 is itself repealed by the Act of the 6th April 1868, and the of-fence is charged to be committed on the 18th April.

Any formal defect in the indictment was cured under the Criminal Procedure Act by the plea.

Arrest of judgment reversed, and Court of Quarter Sessions ordered to proceed to sentence.

Sharswood, J., dissented, being of opinion the indictment was substantially defective in not charging that the sale was for use as a beverage.


author: Agniw, J. —

text:
    McCausland et al. versus Fleming et al.

    1. In trespass q. c.f, £<not guilty” puts the plaintiff's possession in issue, which the defendant may disprove by proving his own ancient and continued possession of the locus in quo.

      2. Pedigree and boundary are the excepted cases wherein reputation and hearsay of deceased persons are received in evidence.
    3. Ancient maps • and surveys are evidence to elucidate and ascertain boundary and fix monuments.
    4. No drafts when offered for title will be received except they bear an official character; and in this they differ from those offered to show boundary.

    5. A party claimed to what was known as the “ Taylor line.” On the trial he offered a draft dated forty-five years previously, proved to have been in the possession of a former owner, who claimed by it thirty-five years before, and proved also to be the handwriting of Taylor, who was a surveyor, and was dead. Held, to be evidence of boundary.
    October 29th 1869.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Armstrong county: No. 147, to October and November Term 1869.
    This was an action of trespass q. c. /., brought May 15th 1867, by Lydia M. McCausland and others against William A. Fleming and others. The defendants pleaded “ Not guilty” and “ Liberum tenementum.”

    It appeared from the history of the case by the plaintiff in error, that the plaintiffs owned a tract surveyed in 1784 to John D. Mercier, and the defendants owned an adjoining tract, surveyed in the same year to James Dundas; the question in dispute was the location of the line between these two tracts.
    On the trial before Buffington, P. J., the defendants showed that the title to the land claimed by them had formerly been in John Montgomery; also, a deed from John Montgomery to David Devinney and James Montgomery, and from them by a regular chain of title to the defendants. They proved that John Montgomery, about 1883, had a survey made of his tract, and claimed to what the witness called the “ Taylor line.” A witness went on the land in 1833, having got a paper from John Montgomery purporting to be a draft of John Taylor’s survey, and found the marked lines on the tract; there was evidence by other witnesses of marks on the Taylor line. David Devinney testified, that in 1833 he went on the land, and there was a marked line around the tract. The draft being shown to the witness, he said that he had received it from John Montgomery. Dr. Taylor, a son of John Taylor, being shown the draft dated in 1823, with the signature “ John Taylor,” testified “ this was made by my father; the signature is his ; he has been dead twenty years.” The draft was then offered in evidence, and admitted by the court, against the objection of the plaintiff, and a bill of exceptions was sealed. The verdict was for the defendants. The plaintiff took out a writ of error, and assigned for error the admission of the draft in evidence.

      N. S. G-olden (with whom were J. B. Neale and J. Boggs), for plaintiffs in error. —
    The draft was not made by Taylor in an official capacity, and therefore not evidence: Meehan v. Williams, 12 Wright 238 ; Wood v. Ege, 2 Watts 335; Blackburn v. Holliday, 12 S. & R. 140; Urket v. Coryell, 5 W. & S. 60; Sample v. Robb, 4 Harris 305; Kirkland v. Thompson, 1 P. F. Smith, 216; Bender v. Pitzer, 3 Casey 333.

      J). Barclay, for defendants in error. —
    The draft was evidence to show the extent of the defendants’ claim and possession: Aughenbough v. Johnston, 4 Yeates 317; Miller v. Keene, 5 Watts 349; Hoey v. Furman, 1 Barr 295; Cauffman v. Congregation of Cedar Spring, 6 Binney 59; Buchanan v. Moore, 10 S. & R. 275; Commonwealth v. Philadelphia, 4 Harris 79.
   The opinion of the court was delivered, January 3d 1870, by

Agniw, J. —

So far as the bill of exception to the admission of Judge Taylor’s draft in evidence, might depend upon the state of the evidence, at the time of its admission, we have no means of testing its correctness, the evidence not being furnished. In the bill itself the purpose of the offer is not stated; so that if the draft be evidence for any proper purpose, it was rightfully received.

The action was trespass vi et armis, with the plea of not guilty as well as that of liberum tenementum. The plea of not guilty put in issue the plaintiff’s possession, which the defendants had the right to disprove by proving their own ancient and continued possession of the locus in quo. This they endeavored to do by proving an ancient boundary line run by Judge Taylor, and .a possession corresponding thereto. To identify clearly and locate this line they next offered Judge Taylor’s own draft of survey of this boundary line. Preliminary to this, they proved by the testimony of Daniel Devinney, the possession of this draft (bearing date in 1823) in John Montgomery, a former owner of the land, under whom they claim title, as early as 1833, and that he was in possession of the tract claiming to this line. The handwriting of the draft was also proved to be that of Judge Taylor, who had been deceased twenty years. Under these circumstances the draft was clearly competent evidence, corroborative in its nature, of the extent of the defendants’ possession: that is of the boundary of his possession. “ A second exception (says Mr. Greenleaf, in his Law of Ev., vol. 1, § 141) to the rule rejecting hearsay evidence, is allowed in cases of ancient possession, and in favor of the admission of ancient documents in support of it. Care must be taken (he continues) to ascertain first the genuineness of the document, and that it came from proper custody.” That was done here by proving the handwriting of the deceased Judge Taylor, and the possession of the paper by the former proprietor, who would most probably have and be entitled to its custody. Then the document was fortified by proof of a line marked on the ground, bearing the ancient reputation of a survey made by Judge Taylor, and by evidence that the defendants claimed and held possession to and by this boundary.

Pedigree and boundary are the excepted cases, wherein reputation and hearsay of deceased persons are received as evidence. The statements of deceased persons relative to boundaries of which they spoke from actual personal knowledge, have been frequently received as evidence in this state: Cauffman v. Cedar Spring Congregation, 6 Binn. 62, 63; Buchanan v. Moore, 10 S. & R. 281; Bender v. Pitzer, 3 Casey 335. And ancient maps and surveys are evidence to elucidate and ascertain boundary and fix monuments: Penny Pot Landing, &c., v. City of Philadelphia, 4 Harris 91; Sample v. Robb, Id. 319. The distinction is stated by Coulter, J., in the last case, to be between drafts when offered for title and when offered for boundary. For the former purpose none but such as are shown to bear an official character will be received. These must be traced to the possession or office of the surveyor, and appear to have been made in an official character : Urkett v. Coryell, 5 W. & S. 79; Woods v. Ege, 2 Watts 336-7; Blackburn v. Holliday, 12 S. & R. 140. The question here being one of the possession and the extent of it by the boundary known as Taylor’s line, the draft being properly proved and traced, was competent evidence to aid in ascertaining and identifying that boundary.

Judgment affirmed.