text:
    Hugus & Hacke versus Dithridge Glass Company.
    1. A judgment by a personal action can be ootained against a married woman only for necessaries contracted for by herself, or in some of the cases enumerated in the Act of Assembly ; and the facts to fix her liability must affirmatively appear on the.record, otherwise the judgment is void.
    2. Where an attachment execution issued upon a judgment against a married woman, which was void for the above reasons, and the defendant in the attachment pleaded nulla bona, the defendant in the judgment can, nevertheless, come in at the trial and show that the judgment is void and so prevent the married woman’s money or property being taken by the attachment.
    3. Hecker v. Haak, 7 Norris 238, followed.
    November 8th 1880.
    Before Sharsavood, C. J., Merour, Gordon, Paxson, Trunket, Sterrett and Green, JJ.
    Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1880, No. 228.

      Attachment execution issued by Hugus & Hacke against William Ihmsen and James E. Ledlie, and Elizabeth McLaughlin, wife of William F. McLaughlin, formerly Elizabeth Ihmsen, executors of Charles T. Ihmsen, deceased, partners as C. Ihmsen & Sons.
    This was an attachment execution issued on a judgment for $502.81, and was recovered on the 10th of August 1875, upon a note of which the following is a copy:
    “$499j2A Pittsburgh, Pa., May 21, 1875.
    Sixty days after date, we promise to pay to the order of Hugus and Hacke four hundred and ninety-nine dollars without defalcation. Value received. C. Ihmsen & Sons,
    Per James E. Ledlie, Attorney.”
    A number of parties were summoned as garnishees in the above attachment, all of whom pleaded nulla bona, but this case was tried only as to the Dithridge Glass Company, Limited, who admitted on the trial that they had in their hands $437.52 due to Mrs. Elizabeth McLaughlin, one of the defendants, individually, being part of the rent of the Mulvaney estate, to which she was entitled as heir-at-law and legatee under the will of her father, Patrick Mulvaney, deceased.
    It was also admitted that Charles T. Ihmsen, one of the firm of Ihmsen & Sons, died on the 29th of May 1870. The said garnishees, to maintain the issue on their part, offered in evidence the last will and testament of Patrick Mulvaney, deceased, the father of the said Elizabeth McLaughlin, and especially the eighth clause of said will, which is as follows :
    “ Eighthly. — All the rest, and residue of my estate, real, personal and mixed, I devise and bequeath to my four daughters, to be divided between them equally, share and share alike, for their sole and separate use and benefit, and not to be subject to any contracts, debts, or other liabilities of their husbands; and upon the decease of either of my said daughters, her share is hereby devised over to her children.”
    It was admitted, in this connection, that Mrs. Elizabeth McLaughlin, one of the defendants, was one of the four daughters named in the above will, and that she was the wife and widow of Charles T. Ihmsen, deceased, who was a member of the firm of C. Ihmsen & Sons, and the present wife of Wm. F. McLaughlin, who was joined with her as defendant.
    The garnishees also offered in evidence the will of the said Charles T. Ihmsen, deceased, dated March 1st 1870, and which contains the following direction:
    “ Whereas, by an agreement between my brother William and myself, bearing even date herewith, the business of the firm of C. Ihmsen & Sons, composed of my brother William Ihmsen and my- . self, is to be continund for the period of six months subsequent to the'death of either of us, when the said business is to be wound up and the partnership dissolved. I wish it clearly understood, that in the event of my dying first, I hereby authorize and fully empower my executors, if to them it shall seem meet and for the best interests of my estate, to continue the said business of manufacturing and selling glass and glassware, after the said period of six months from my death as aforesaid, at their discretion, for such period as they may deem for the best interests of my estate; but if they do not deem -it advisable to carry on said business for any longer period,than the six months aforesaid, then, on the expiration thereof, to settle and finally close up the business of said copartnership.”
    It was also admitted that the note upon which the original judgment in the case was obtained, was given for an obligation of the firm of 0. Ihmsen & Sons. Also admitted, that the said Elizabeth Ihmsen, widow of the said Charles T. Ihmsen, was married on the 17 th of October 1874, to Wm. E. McLaughlin. No facts being in dispute, it was agreed on the trial, between the counsel of the respective parties, that a verdict should be rendered for the plaintiffs, subject to the opinion of the court, whether, under the facts admitted and the record evidence, the plaintiffs were entitled to recover. The jury, accordingly, found as follows :
    “We find for the plaintiffs in the sum of $499.89, that being the sum in the hands of the garnishees due Mrs. McLaughlin, subject to the opinion of the court on the question of law reserved; which is, whether, under the facts admitted and the record evidence, the plaintiffs are entitled to recover. If the court should be of opinion that the law is with the plaintiff, then judgment to be entered for them; but if the court should be of opinion that the law is with the defendants, then judgment to be entered for them non obstante veredicto.”

    On the 17th of July 1880, judgment was entered for defendants non obstante veredicto, the court filing the following opinion :
    “ There are two questions raised by the record in this case : 1st. Is the judgment in evidence a judgment against Mrs. McLaughlin personally, or against her as executrix ? On this question we are inclined to take the view of the learned counsel for the plaintiffs. Mrs. McLaughlin was a member of the firm of C. Ihmsen & Sons, under the provision of her husband’s will, and she authorized the execution of the note, upon which the judgment was had, by her attorney-in-fact, James E. Ledlie. Judge Parsons, in his work on Contracts, ch. 8, sect. 109, says: ‘ If an executor or administrator receives as such a promissory note or bill of exchange of the deceased, and endorses the same, he is liable upon it personally. If he make a note or bill, signing it as executor, he is personally liable, unless he expressly limits his promise to pay by the words ‘ out of the assets of my testator, ’ or ‘ if the assets be sufficient, ’ or some equivalent. ’ No limitation of liability appears in the note in this case. It is simply the note of the firm of C. Ihmsen & Sons, of which Mrs. McLaughlin, as executrix, was a member. -We, therefore, think that the judgment is a judgment against her personally. .
    “But suppose the judgment against Mrs. McLaughlin is a personal judgment, upon which she would be liable as any other partner; what does the record show ? It is an admitted fact that at the date of the making of the note, and at the date of the entry of the judgment, she was, and still is, a married woman. She was married to W. F. McLaughlin, her present husband, on October 17th 1874. The note is dated May. 11th 1875, and the judgment upon it is entered on August 10th 187 5. The record does not show that her husband was joined, or that it was had for necessaries contracted for by her, or for any of the causes for which a married woman can be held liable. This raises the second question —Is the judgment void.? We think it is. A judgment by a personal action can be obtained against a married woman only for necessaries contracted for by herself, or in some of the cases enumerated in the Act of Assembly; and the facts to fix her liability must affirmatively appear on the record, otherwise the judgment is void: Hecker v. Haak et al., 7 Norris 238. But the plaintiffs’ counsel contends that'the plea of the defendants being ‘nulla bona,’ the question cannot be raised in this action. While it is true that, generally, the plea of ‘ nulla bona’ waives all irregularities in the process, yet we think that the defendant in the original judgment may come in at the trial and show that the judgment is void, and so prevent his money or property from being taken by attachment. At any rate, the question is raised in this case, for the question of law reserved is; ‘ whether under the facts admitted and the record evidence, the plaintiff is entitled to recover?’
    “We are of opinion that judgment should be entered for the defendants, non obstante veredicto, which is now ordered to be done.”
    The plaintiffs took this writ, alleging that the court erred in entering judgment for the garnishee, The. Dithridge Glass Company, Limited, on the question of law reserved, and in not directing judgment to be entered for the plaintiffs on the verdict, and on the question of law reserved.

      Thos. C. Lazear for plaintiffs in error.
    Upon the question whether the judgment on which the attachment in this case was issued is to be treated as a personal judgment against Mrs. McLaughlin, we refer, in addition to the authorities cited by the learned judge of the court below in the affirmative of this question, to the following Pennsylvania decisions, all holding that in cases of promises, expressed or implied, made by an executor after the death of his testator, he is liable personally. Grier v. Huston, 8 S. & R. 402; Beeson v. McNabb, 2 Watts 106 ; Solliday v. Berry, 12 Id. 347 : Aughinbaugh v. Roberts, 4 W. N. C. 181; Seip v. Drach, 2 Harris 352.
    The only plea in the case being “nulla bona,” the defence was limited to the issue thus raised, and the validity of the original judgment could not, therefore, be questioned: Poor v. Colburn, 7 P. F. Smith 415. In Butterfield’s Appeal, 27 Id. 197, it was held that where a judgment was against a married woman, though it might be absolutely void and such as could be set aside and reversed at her instance, its validity could not be inquired into or impugned collaterally, except for fraud. To the same effect is Hartman v. Ogborn, 4 P. F. Smith 120. If a feme covert be sued as a feme sole, the sheriff shall take her in execution, though she be a feme covert and have another name, because she is estopped by the judgment until it is reversed: 1 Rol. 869 ; 4 Com. Dig. 204. A judgment on warrant of attorney against a feme covert must be reversed on error, and not otherwise: 3 B. & P. 128, 220 ; Bing. Inf. 238; Warden v. Eichbaum, 3 Grant 42.

      Barton & Sons, for defendants in error.
    The eases cited by the plaintiffs in error are actions which were brought to charge executors personally or defence was made that the defendant was acting as executor, which is not this case. This is an attachment execution upon a judgment already obtained, and in the trial thereof they cannot go behind the original action and say the suit was on a note on which Mrs. McLaughlin might have been held personally liable. The suit is hot on the note. The question is can the rent accruing to Mrs. McLaughlin, under the will of her father, set aside for her separate use, be attached on a judgment against her as executrix of her former husband — a debt of her former husband contracted by authority under his will.
    Whether they sued her personally or as -executrix, or whether the judgment already entered is judgment against her individually, or against her as executrix, we think we were entitled to judgment on both grounds. The court holds that as she was a married woman, and the note was not for necessaries, that the judgment against her is void; on this he is justified by a very recent case, Hecker v. Haak, 7 Norris 238, where it is held that a judicial sale of a married woman’s real estate upon a judgment that does not show affirmatively on its face that it was for necessaries, &c., passes no title. But we repeat and insist that this record does not only not show that it is upon a cause of action for which she is made liable under the statute, but that it does show a judgment against her as executrix of the estate of Charles T. Ihmsen, in her representative capacity, precisely the same as if it had been obtained upon a note of the firm of 0. Ihmsen & Son, issued by that firm before the death of Charles T. Ihmsen.
   The judgment of the Supreme Court was entered, November 22d 1880,

Per Curiam.

This judgment is affirmed upon the opinion of the court below on the question of law reserved.

Judgment affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Rowand et al. versus Smiley et ux.
    An insolvent’s bond was conditioned “ that if the said E. shall, within thirty days, apply by petition to the Court of Common Pleas, for the benefit of the insolvent laws of this Commonwealth, and if he will comply with all the requirements of the said law and abide all orders of the said court in that behalf, or in default thereof, and if he fail in obtaining his discharge as an insolvent debtor, that he shall, on the day of his so failing, surrender himself to the jail of the said county, then this obligation to be void, otherwise to bo and remain in full force and virtue.” The debtor presented his petition for a discharge under the Acts of June 12th 1842, and June 16th 1836 and the terms of the bond. Exceptions were filed to the discharge, which on hearing were sustained and the debtor, on the same day, surrendered himself and was lodged in jail. He subsequently filed a new petition under which he was regularly discharged. In an action upon the bond, held, that there was suohfa compliance with the acts as would suffice to discharge the sureties.
    November 8th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1880, No. 135.
    Debt by John Smiley and Elizabeth, his wife, in right of said wife, against A. T. Rowand, A. H. Rowand, Jr., and William F. Hope, on an insolvent bond given by A. T, Rowand, with the other two defendants as sureties. The bond was conditioned “ that if the said A. T. Rowand shall within thirty days apply by petition to the Court of Common Pleas of Allegheny county, or to a judge thereof, if the court shall not within that time be in session, for the benefit of the insolvent laws of this Commonwealth; and if he will comply with all the requirements of the said law, and abide all orders of the said court in that behalf, or in default thereof, and if he fail in obtaining his discharge as an insolvent debtor, that he shall on the day of his so failing surrender himself to the jail of the said county, then this obligation to be void, otherwise to he and remain in full force and virtue.”
    On February 26th 1877 A. T. Rowand presented his petition for a discharge as an insolvent debtor, under the Acts of Assembly of July 12th 1842, Pamph. L. 339, Purd. Dig. 777, and June 16th 1836, Pamph. L. 731, Purd. Dig. 777, and the terms of his bond ; and the court directed the same to be filed, and fixed a day for a hearing of the said application, and directed that “fifteen days’ notice of the said hearing be given by the said petitioner to his creditors personally of the time and place of said hearing.”
    Exceptions were filed to this discharge, which, after a hearing, were sustained on June 30th 1877, when Rowand surrendered himself and was lodged in jail. He afterwards filed a new petition under which he was regularly discharged.
    The court instructed the jury as follows: “ The question now arises, which is really the only question in the case, whether such a surrender relieves him and his sureties from liability on the bond. In order that the matter may be thoroughly tested by a consideration of the whole question by the court in banc, as has been suggested to the counsel in your hearing, we instruct you for the purposes of this case that the surrender did not operate to the discharge of the condition of the bond; we will, therefore, take what is called a special verdict in this case, to wit, that you find for the plaintiffs in the sum of $15,000, the penalty of the bond, to be released upon the payment to the plaintiffs of $9773.33, being the amount of the judgment with interest, in No. 271, July term 1877, subject to the opinion of the court as to the effect of the surrender of A. T. Rowand to the warden of the county jail, and his imprisonment on the 30th day of June 1877, which we found to be the fact. And if the court should be of the opinion that the said surrender should operate as a legal bar to recovery on the part of plaintiffs, then judgment should be entered for defendant non obstante veredicto.''

    The jury found accordingly, and the court entered judgment on the verdict for the plaintiffs, when defendants took this writ, and alleged that the court erred in this entry of judgment; in framing the foregoing verdict and instructing the jury to find the same, and in entering judgment thereon, 1. Because if the finding of the jury was intended to be a special verdict then it did not find all the facts from which the court could intelligently arrive at a conclusion; and 2. If it was intended to be the reservation of a point of law then also the facts upon which the point was reserved are not found or stated upon the record.

      D. T. Watson and Robb & Fitzsimmons, for plaintiffs in error.
    —The only conclusion, under a fair construction of the Act of Assembly under consideration, is, that after the petition of the insolvent, containing all things necessary under the Act and properly sworn to and filed, and a hearing for a discharge fixed by the court, the failure to give notice to a creditor, when urged as an exception to the discharge of the insolvent, and a refusal by the court to discharge the insolvent for that cause, the bond is not forfeited if the insolvent, upon the day so failing, surrenders himself to the jail of the proper county. An offer by the defendant in open court to surrender himself, and his afterwards going to and remaining in prison, will discharge his surety, and his subsequent release does not revive the liability of the surety : Mullen v. Wallace, 2 Grant 389; Power v. Graydon, 3 P. F. Smith 202; McDonough’s Case, 1 Wright 276; Bartholomew v. Bartholomew, 14 Id. 200. These two latter cases establish the position that the surrender of the insolvent of his person saves the bond.

      Carnahan & Miller, for defendants in error.
    Is it not necessary for the petitioner, having given bond and filed his petition, to further comply with the Act of Assembly in that behalf and present a schedule of his property and his debts — a statement of the cause of his insolvency verified by affidavit, execute an assignment and give notice of the time and place of hearing to his creditors— and neglecting all these requirements of law, or any one, can he save his bond by surrendering himself to jail ? We contend he cannot: Wolfram v. Strickhouser, 1 W. & S. 379; Detwiler v. Casselberry, 5 Id. 179. One of the most important requisites of the act is that the debtor is to give notice to his creditors. This the petitioner, omitted to do, and went on to final hearing, although exceptions on that account and for that reason .had been filed ten days before the last hearing.
   Mr. Justice Gordon delivered the opinion of the court, November 22d 1880.

The principal defendants in this case are A. H. Rowand and W. F. Hope, sureties in the insolvent bond of H. T. Rowand. Their liability depends upon his compliance or non-compliance with the conditions of that bond. It was approved January 31st .1877, and was conditioned for his compliance with the provisions of the 6th section of the Act of June 16th 1836. The preliminary requirements of presenting his petition and filing schedules of assets and debts were complied with, but upon final hearing by the court on the 30th of June 1877, it was adjudged that the evidence was insufficient to show that the defendant had given personal notice to all his creditors in pursuance of the previous order of the 26th of February, and, in consequence, his application for discharge was refused. Thereupon he, the defendant, being then in court, surrendered himself and was remanded to jail. From this, it would seem to us, though the court below took a different view of the matter, that there was such a compliance with the act as would suffice to discharge the sureties. Here, as we have said before, was a faithful performance of the necessary preliminaries; he was present on final hearing, and failing to obtain his discharge, he immediately surrendered himself to jail. With so literal a compliance with the insolvent act, we fail to understand how it comes that the obligation of the bond was not discharged. If, in a case like this, the alternative provision of the statute does not apply, we would like to know when, or under what circumstances, it does apply. If it be said the judgment of the court resulted from the default of the insolvent, we answer, true; but when is it that the refusal of a discharge does not result from such default ? If he makes no default; if he complies with all orders and conditions imposed upon him, he is entitled to a discharge, and there is no necessity for a surrender. It is thus manifest that the doctrine of the court below destroys an important provision of the statute, a result which we cannot sanction.

This case is met in point by Mr. Justice Black, in Mullen v. Wallace, 2 Grant Cas. 389, where he says, where the petition is dismissed for non-compliance with some order, as where he docs not appear at the time appointed, or fails to give his creditors notice, it is the debtor’s right to determine whether his creditors shall have his body or his bond, and that this privilege, which the insolvent has of relieving his sureties by going to jail, cannot be taken from him by any act of the court. As far back as the case of Potter v. Norman, 4 Yeates 388, and under the Insolvent Act of 1798, we have it said by Chief Justice Tilghman, that the creditor had a right to have an account of the debtor’s property and a surrender of it, and if he did not comply with the law by exhibiting his petition with a schedule annexed to it, containing an account, on oath, of all his property, he was obliged to surrender himself to prison. Thus, it would seem, that this eminent jurist was of opinion that the alternative ran through all the proceedings, and that the defendant might save his sureties by a surrender of his person at any time. This statement is probably broader than subsequent decisions will sustain, for, in Kelly v. Stepney, 4 Watts 69, it was held that a surrender before the day of appearance would not discharge a surety, but it is there admitted that it would be otherwise werej the debtor remanded on hearing. A similar ruling was had in Wolfram v. Strickhouser, 1 W. & S. 379, w.here it was determined that the want of an appearance forfeited the bond, though there was a surrender. Detwiler v. Casselberry, 5 Id. 179, carries the ruling as far, and perhaps farther, against the insolvent than any other case. It is, indeed, extremely harsh and technical; rejecting the petition because the affidavit was made before the prothonotary, who was not empowered to administer the oath, and holding the bond not discharged by the surrender to jail of the principal, yet, even this case does not support the ruling of the court below in the action now before us.

To us, the reasonable rule seems to be that held in McDonough’s Case, 1 Wright 275, that, in order to save his bond, the insolvent must, on the day fixed for hearing, ask for his discharge, surrender himself to jail or procure a continuance.

As there was a compliance with this rule by A. T. Rowand, in that he appeared on the day fixed for hearing, asked for a discharge, and failing to obtain his request, surrendered himself to prison, we can but hold that the conditions of the bond were complied with and the sureties released.

Judgment reversed, and judgment on the special verdict for the defendants.


author: Mr. Justice Trunkey

text:
    Margaret A. Patton et al. versus The Pittsburgh, Cincinnati and St. Louis Railway Company.
    1. In a suit by a widow and her minor children to recover damages for the death of her husband, who, while in the employ of a railroad company, was killed in West Virginia, the court, in the language of plaintiffs’ point, instructed the jury that the action could be maintained if the statute in force in West Virginia, relating to cases of death caused by negligence was similar to or substantially the same as the statute on the same subject in Pennsylvania, and at the close of the charge said, “ The question of law as to the effect of the statute of West Virginia we will reserve for future consideration.” The jury found for plaintiffs “ subject to the opinion of the court on a question of law reserved. Subsequently in an opinion the court stated two questions of law as reserved. 1. “Can the plaintiffs recover under the West Virginia statute?” and 2. “Is there sufficient evidence of negligence to justify a verdict against the defendant?” and on these questions so stated as reserved judgment was entered for defendant: Held, that if it was material to determine whether the statutes were substantially alike it was for the court; that there was no reservation of either the fact or the question of law set forth in the point; that every reservation of a question should place distinctly upon the record what the point is which is reserved and state the facts out of which it arises.
    2. After verdict and before judgment the plaintiffs moved to amend the record by adding the name of the legal plaintiff, which was refused: Held, to have been error. Under the Act of 1852, the courts have power in any stage of the proceedings to change or add the names of parties so as to make the record conform to the issue that was tried, and no verdict ought to be set aside when there has been a full trial upon the merits, and the formal addition of a party will cure the defect in the record.
    3. Ferguson v. Wright, 11 P. F. Smith 258, and Wilde v. Trainor, 9 Id. 439, followed.
    November 8th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1880, No. 286.
    Case by Mrs. Mary Ann Patton, widow of William Patton, deceased, Mary Bertha Patton, Bridget Patton and William Charles Patton, minor children and heirs of said William Patton, deceased, who sued by their next friend, John McNulty, against the Pittsburgh, Cincinnati & St. Louis Railway Company, to recover damages for the death of said William Patton, a brakeman in the employ of the defendant company, who was run over and killed while in the discharge of his duties as brakeman, by reason of the handhold on the roof of the car giving away when the deceased grasped it in attempting to mount to the top of the car and whereby he was thrown under the wheels of the car. The accident occurred in West Virginia. It was in evidence that under the statute of that state such actions must be brought in the name of the personal representatives of the deceased.
    The third point of the plaintiffs, which the court affirmed, was as follows:
    That if the statute in force in West Virginia provides that an action can be maintained in that state to compensate the plaintiffs for the loss sustained" by them in case of death caused by negligence of defendants, and said statute is similar to or substantially the same in its import, as the Act of Assembly in such case made and provided in the state of Pennsylvania, under the evidence in this case, and the amended declaration, this action can be maintained for the recovery of damages alleged to have been sustained by the plaintiffs in the premises.
    In charging the jury the court, Collier, A. L. J., instructed them that if there was such neglect on the part of the defendant company in the inspection of the car as amounted to negligence, and there was no negligence on the part of the deceased, the plaintiff could recover, and at the end of the charge said: “ The question of law as to the effect of the statute of West Virginia we will reserve for future consideration.”
    The verdict was for plaintiffs for $4900, “subject to the opinion of the court on a question of law reserved.” After the verdict a motion was made “ to allow' an amendment of the writ, record and pleadings on the part of the plaintiffs, by adding as plaintiff Mrs. Mary Ann Patton, administratrix of William .Patton, deceased, for use of Mary Ann Patton, widow et al., as appears of record,” which motion the court refused.
    Subsequently the court filed the following opinion :
    “ The husband and father of the plaintiffs was killed in the state of West Virginia by the alleged negligence of the defendant company while in its employ; and the questions of law reserved are : 1. Can the plaintiffs recover under the West Virginia statute; and 2. Is there sufficient evidence of negligence to justify a verdict against the defendant?
    “ Considering for the present that by the comity of states or nations an action may be maintained in this state for an injury (like the one in this case) done in another state if that other state has given a remedy by a statute similar to our own, I do not think the statutes are substantially alike. In this state the right of action by our statute is in the widow or children or parents. In the West Virginia statute the right of action is in the administrator. We think this is decisive of the question, and as the action is by the widow and children, it cannot be maintained. Was there sufficient evidence of negligence on the part of the defendant to justify the verdict? The only evidence of negligence shown on on the trial was on the part of the car inspector, whose duty it was to inspect the cars, or of the brakeman -whose duty it was to report defects, &c. In either case' the negligence was the negligence of a co-employee of the deceased father, for whose death this action is brought. Judgment must be entered on the question of law reserved for the defendant.”
    Plaintiffs took this writ and alleged that the court erred in entering judgment as above and in refusing the foregoing amendment.

      A. M. Watson and R. B. Parkinson, for plaintiffs in error.
    Taking the record as it stood, all the questions raised on the trial were finally disposed of, and the defendant should have moved for a new trial; and having failed therein, the court should have ordered judgment to be entered on the verdict. But we find two reserved questions, irregular as to time and defective in form and substance. The sécond question decided as reserved was ruled in answer to the defendants’ point and an exception sealed, and yet we are now called upon to grapple with it as a question of law ruled against the plaintiffs. If we regard this as a question reserved, then it is submitted, it is not properly reserved, and presents a mixture of law and fact which vitiates it. The court cannot withdraw the decision of the facts from the jury, reserving as a point whether under the evidence in the case the plaintiff is entitled to recover: Clark v. Wilder, 1 Casey 314; Irwin v. Wickersham, Id. 316; Wilson v. Steamboat Tuscarora, Id. 317. Every reservation of a question should place distinctly upon the record what the point is which is reserved and the state of facts out of which it arises: Klett v. Claridge, 7 Casey 107 ; Wilde v. Trainor, 9 P. F. Smith 439; Campbell v. O’Neill, 14 Id. 290; Commonwealth v. McDowell, 5 Norris 379; Miller v. Bedford, Id. 457; Furgeson v. Wright, 11 P. F. Smith 262. Under our Acts of April 16th 1846, Pamph. L. 353, May 4th 1852, Pamph. L. 574, and April 12th 1858, Pamph. L. 243, the amendment was proper, and'as it was a question whether under the Penns}dvania acts the parties of record ought to follow the Virginia statute, that was sufficient to warrant the court in making the amendment in aid of justice, and to preserve the cause of action : Cochran v. Arnold, 8 P. F. Smith 100. Strong, J., says that amendments of parties “ where no change is wrought in the cause of action, is a matter of right, and in a proper case that the court is bound to allow amendments under the Acts of 1852 and 1858” : Kaylor v. Schaffner, 12 Harris 489 ; Druckenmiller v. Young, 3 Casey 97; Kellogg v. Datisman, 2 Phila. R. 111; Richter v. Cummings, 10 P. F. Smith 441; Pennsylvania Railroad Company, v. Keller, 17 Id. 300; Bigley v. Bigley, 21 Pitts. Leg. Jour. 99, in which case the record of the trial was not changed. The manner in which the court undertook to reserve questions that were ruled on trial, and especially the second question, involving the law and facts on the merits of the case, after the facts had been submitted to and passed upon by the jury in favor of the plaintiffs, places them in a position to ask to be relieved from a predicament not of their own seeking. And it is submitted that the only way to set them right is to reverse the judgment below, and order judgment to be entered on the verdict.

      Hampton & Dalzell, for defendant in error.
    Whether the questions of law were properly reserved or not, or an amendment improperly refused, do not seem very material questions, considering the state of the record. It is manifest that the plaintiffs had no action in a Pennsylvania court. If they have a remedy it is in West Virginia, where it is to be be assumed they can obtain such remedy as the justice of their case may demand.
   Mr. Justice Trunkey

delivered the opinion of the court, November 22d 1880.

In answer to the plaintiffs’ third point the jury were unqualifiedly instructed that this action can be maintained if the statute in force in West Virginia, relating to cases of death caused by negligence, is similiar to or substantially the same as the statute on the same subject in Pennsylvania. The only statute of West Virginia given in evidence, is the fifth and sixth sections of an act relating to actions where death of a person was caused by wrongful act, neglect or default, which provides, among other things, that “ every such action shall be brought by and in the name of the personal representative of such deceased person ; and the amount recovered in every such action shall be distributed to the parties, and in the proportions provided by law in relation to the distribution of personal estates left by persons dying intestate.” What the law provides in relation to said distribution was not proved. The learned judge in the charge said it was his impression that the statute in West Virginia was so different from the statute in this state that the action would not lie ; but instructed the jury that the fact of Mr. Patton having been killed in West Virginia made no difference so far as they were concerned. At the close of the charge he adds these words: “The question of law, as to the effect of the statute of West Virginia, we will reserve for further consideration.” The verdict was for the plaintiffs for $4900, “ subject to the opinion of the court on a question of law reserved.” In an opinion subsequently filed two questions of law are considered as having been reserved, 1. Can the plaintiffs recover under the West Virginia statute, and 2. Is there sufficient evidence of negligence to justify a verdict against the defendant ?” Neither of these are shown by the record. Of the first it is said, “ I do not think the statutes are substantially alike. In this state the right of action by our statute is in the widow and children, or parents. In the West Virginia statute, the right of action is in the administrator. We think this is decisive of the question; and as the action is by the widow and children, it cannot be maintained.”

Before the argument of the question a motion had been made for amendment by adding the name of the administratrix as legal plaintiff, for use, in the writ, record and pleadings, and at present will be considered as having been allowed. If it were material to determine whether the statutes were substantially alike, it was for the court; but it was submitted to the jury to determine, and if they were, it was ruled that the action could be maintained. Neither the fact nor question of law set forth in plaintiffs’ third point was reserved. The verdict was as indefinite as the remark at the close of the charge. Every reservation of a question should place distinctly upon the record what the point is which is reserved, and the state of facts out of which it arises: Ferguson v. Wright, 11 P. F. S. 258 ; Wilde v. Trainor, 9 Ibid. 439. All the legal propositions had been absolutely ruled. And what was distinctly stated in the so-called reservation ? It may be conceded that the court intended the precise question subsequently stated in the opinion, but the record does not show that. On the contrary, it shows that question was affirmed, if the jury found the two statutes substantially of the same import. Judgment might be entered upon the verdict, but in most cases which have been reviewed in this court when the point was not well reserved, the cause has been sent back for another trial. A judgment upon this verdict for the reason that the record shows no definite point on which the verdict depends, is not what was intended.

The record reveals nothing of what is called the second reserved question. It is error to submit a fact to the jury and after its finding enter judgment for the defendant on the ground that the evidence was insufficient to establish it: North American Oil Co. v. Forsyth, 12 Wright 291.

After verdict and before judgment the plaintiffs moved to amend by adding the name of the legal plaintiff, which was refused. The 'cause had been tried and the evidence, under the instructions, warranted the verdict. In all actions, in any stage of the proceedings, the courts have power to permit amendments by changing or adding the name or names of any party, plaintiff or defendant, whenever it shall appear to them that a mistake or omission has been made in the name or names of any such party. Act 1852, P. L. 574, sect. 2. It very clearly appeared there was a mistake in omitting the name of the administratrix of William Patton, deceased, for the statute under which the action was brought directed it should be by and in the name of the personal representative. Legislation and adjudication have favored amendments to the end that causes may be speedily tried on the merits, or when so tried that the result shall be preserved. Thus, the act of 1872, P. L. 25, provides that no verdict shall be set aside for defectiveness or indefiniteness in its form, or by reason of the want of a declaration or plea, but the court shall have power at any time to direct the filing of a declaration, the entering of a plea, or filing a'description if in ejectment, as shall make the pleadings and record conform to what was tried before the jury and found by the verdict. Under the act of 1852 the courts have power, in any stage of the proceedings, to change or add the names of parties so as to make the record conform to the issue that was tried, and no verdict ought to be set aside where there has been a full trial upon the merits and the formal addition of a party will cure the defect in the record. When the amendment is a formal one, introducing no new or different cause of action, depriving the'opposite party of-no substantial right, and which ought to have been made in the court below, it will be considered in this court as having been made. Fritz v. Heyl, 8 W. N. C. 874. This case was tried just as if the legal plaintiff had brought suit and was upon the record, and the amendment ought to have been allowed. When it was moved a year had not elapsed from the date . of the decedent’s death. It was within the terms of the statute, prejudiced the rights of no one, and if the trial was free of error, it would have saved the verdict. Were nothing else in the way of entering judgment upon the verdict we would treat the motion as having been granted, but as the cause goes back to the Common Pleas the amendment will there be made nunc pro tuno.

The important question to the plaintiffs, whether this action can be maintained in Pennsylvania, is not and cannot be raised by them for decision, upon the record as it comes; aud we expressly exclude an inference, from the disposition of the assignments of error, that we are of opinion that the action will lie..

Judgment reversed and venire facias de novo awarded.


author: Mr. Justice Mercur

text:
    The National Tube Works Co. versus Bedell.
    1. A manufacturing company had leased a rolling mill which was out of repair. J. was the general manager and superintendent of the company. 12., a millwright and machinist, was in the employ of the company under daily pay. J. sent him to take charge of the repairs, and as an inducement to hasten the work was to pay him an extra §50 therefor. B., a carpenter, was employed by E., and directed by him, but paid by the company. While thus employed he was injured. Held, that he was a fellow servant of E., and could not recover damages from the company for his injuries.
    2. There was no evidence that .the company had any notice that E. was not a careful and competent person to perform the work, nor was there any evidence that he was not careful and competent. Held, that the company was not negligent in putting him in charge of the work.
    3. The fact that E. was temporarily absent when the accident occurred was not negligence which would affect the company.
    November 9th 1880.
    Before Sharswood, 0. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1880, No. 125.
    Case by Abner M. Bedell against the National Tube Works Company, to recover damages for injuries alleged to have been caused by the negligence of the defendant.
    The facts will be found stated in the opinion of this court.
    The verdict was for the plaintiff for $3500. The company took this writ and alleged that the court, Kirkpatrick, A. L. J., erred, inter alia, as follows :—
    1. The court erred in their answer to the third point submitted by plaintiff: If the jury find from the evidence that the chain, the breaking of which caused the injury to plaintiff, was not of sufficient strength and unfit for the purpose for which it was used, that the selection and use of such a chain would be negligence, on the part of the defendant, and the verdict should be for the plaintiff.
    Ans. “Affirmed, if the jury further find that in putting it to the use they did, the defendants, in the selection, &c., did not use ordinary care and caution ; for if they did, i. e., use ordinary care and caution in the selection, use, &c., the facts suggested by the point, even if they should all be found by the jury, do not constitute negligence in law, and the point must be considered by the jury as disaffirmed. The facts are for the jury, reviewing and carefully considering'all the evidence in the ease.”
    2. In their answer to defendant’s first point: Under all the pleadings and evidence in the case, your verdict should be for the defendant.
    Ans. “ Refused.”
    3. In their- answer to defendant’s point numbered 1J-, as follows: There is no evidence of want of care in the selection by defendant of George Eardly, and no evidence that he was a vice-principal, and your verdict should be for'the defendant.
    Ans. “Refused. We leave this to the jury from all the evidence — saying, however, that we recall no testimony in the case showing want of care upon the part of defendant in the selection of George Eardly to perform the duties imposed upon him. All of this, however, is for the jury, who will not be controlled or influenced by our recollections as to the evidence submitted upon either side.”
    5. The court erred in the following portion of the general charge included in brackets :—
    “We say to you, that as is charged [a defective hook is all that is claimed, but whilst this is all that is claimed or suggested by the declaration and by the evidence in the case, it will be borne in mind by you, as it was argued by counsel, that Eardly was alleged to have been guilty of negligence in not remaining, and himself giving the order to stop the winding; and the ground for this argument, if I understood the counsel, was that on account of the great danger and liability to accident, he was guilty of negligence in leaving the work, even for a single instant, at that crisis in its consummation. We, therefore, affirm the proposition as put by the learned counsel for the plaintiff], and say to you that you will say, under all the evidence, considering the character and kind of machinery in use, the circumstances under which the machinery was put into use, the dangers incident to its use, and the circumstances concerning the whole operation of the placing of the timbers in place, whether or not Eardly was guilty of negligence.”

      Rodgers & Oliver and W. A. Dunshee, for plaintiff in error.—
    The only negligence we can be held responsible for in this action, is the provision of defective appliances, when we knew' or ought to have known them to be defective. This is the sole issue, and the burden of proving the assertion that we were in fault, rests upon the plaintiff: Wharton on Negligence, sect. 421; Sherman and Redfield on Negligence, sect. 12. Eardly was either a competent independent contractor for the work, or else a co-seryant with the plaintiff, in the same “circle” of employment under Jackson: Lehigh Coal Co. v. Jones, 5 Norris 432; Philadelphia & Reading Railroad Co. v. Heil, 5 W. N. C. 91; Mullan v. Steamship Co., 28 P. F. Smith 25; Mansfield Coal and Coke Co. v. McEnery, 10 Norris 185; Canal Co. v. Carroll, 8 Id. 374; Wood on Master and Servant, sect. 426, et seq.; Barkinshill Coa 1 Co. v. Reid, 3 Macq. 266; Burke v. N. & W. Railroad, 34 Conn. 474.
    Our request for a charge that “ there is no evidence of want of care in the selection by defendant of George Eardly,” was incorporated in point No. IJ, not because we thought such evidence admissible under the issue, but in order to prevent the jury from giving weight to Mr. Eardly’s testimony (much dwelt upon by plaintiff’s counsel) to the effect that he was absent during the accident.

      Thomas M. Marshall and Thomas H. Davis, for defendant in error.
    Jackson, the superintendent, was the person to whom the defendant company committed this particular department of its business, and he was in person supervising and directing the performance of the labor or work in and about which the plaintiff was employed at the time he received his injury.
    Where the employer leaves everything in the hands of a middle man, reserving to himself no discretion, then the middle man’s negligence is the master’s negligence, for which the master is liable: Wharton on Negligence, sect. *229 ; Grizzle v. Frost, 3d Foster & Finlayson 622; Mullan v. Phila. Southern Steamship Co., 28 P. F. Smith 25 ; Brothers v. Carter et al., 52 Mo. 372.
    The employer is bound to furnish and maintain suitable instrumentalities, for the work or duty which he requires of his employees, and failing in this, he is liable for any damages flowing from such neglect of duty: Patterson v. Pittsburgh & Connellsville Railroad, 26 P. F. Smith 393.
    Special complaint is made of the answer of the court below to point No. 1-J, submitted by the defendant, and the instructions thereon. The point asked the court to say that as there was no evidence of want of care in the selection by the defendant of George Eardly, and no evidence that he was a vice-principal, the verdict should be for the defendant. To have done otherwise than refuse this point the court would have committed an error. As no evidence was offered to show want of care on the part of the defendant in selecting Eardly, or that Eardly was a vice-principal, it would have been a manifest error for the court below to have said to the jury that, therefore, the verdict should he for the defendant.
   Mr. Justice Mercur

delivered the opinion of the court, January 3d 1881.

This was a suit by the defendant in error for injuries received by him while in the employment of the company. The declaration charges that they were caused by the negligence of the company in not using proper, secure and safe implements and appliances in raising and lifting a heavy piece of timber.

The company had leased a rolling-mill which was out of repair. Jackson was the general superintendent and manager of the company. Eardly, a millwright and machinist, had been for some time, and then was, in the employ of the company under daily pay. Jackson sent him to take charge of the work in repairing, and as an inducement to its more speedy completion was to pay him aD extra sum of $50 therefor.

A part of the repairs required was the adjustment of the flywheel and the putting a heavy timber upon each wall of the pit in which the wheel was to revolve. The longer timber had been raised and put in place by means of a rope and chain tackle, and crane worked by a windlass. The same machinery was used in raising the shorter timber. One end of this timber rested on the top of a finished part of the wall, the other end inclined down into the pit and rested on blocks built from the bottom thereof. After it should be raised to a horizontal position, it was to be secured by bolts, fastened in the foundation, that were to pass up through holes in the beam.

The defendant in error is a carpenter. He was employed by Eardly and directed by him, but paid by the company. He and one other were stationed at the higher end of the timber for the purpose of screwing nuts on the ends of the bolts when they passed sufficiently through the timber. While the lower end of the timber was being slowly raised the defendant in error thought to expedite it by pressing down the upper end. With this view he threw a jackscrew on the end of the timber, rested one hand on the top of the timber, and with the other picked up a block to put on the screw. Just at that moment the hook of the chain broke, the lower end of the timber fell, the upper end. flew up crushing his hand between it and the block on which the cylinder plate rested.

This action was based on a tort. It rests on the alleged negligence of the company. The burden of proof was on the defendant in error to establish the negligence. There is no evidence that the company had any notice that Eardly was not a careful and competent person to perform the work to which he was assigned. Nor do we find any showing that in fact, he was not careful and competent. It therefore follows the company was not guilty of negligence in putting him in charge of the work. The general superintendent did not direct in what manner nor with what appliances the timber should be raised. The company had other chains and of larger size than the one used. Eardly selected one which he thought suitable. He testified that he made an examination of “ every link and ring and hook” of the chain. The body of the chain was about nine-sixteenths of an inch. The hook was one and one-eighth inches in diameter. The witnesses for the defendant in error testified that the chain was rusty, and that Eardly was told it was too weak for the purpose. Both these facts were denied by the witnesses of the plaintiff in error. No witness swears that any doubt was expressed as to the sufficient strength of the hook, but it was to the chain generally. It was the hook only which broke, although it was twice as large as the other part of the chain. The smaller part stood the test, and showed no failure of strength. The evidence is that the timber weighed less than four tons. About one-third of it rested on the wall, so that only two-thirds of its weight were to be raised by the tackle. The hook exhibited no flaw, and in the opinion of experts its tensile strength was such that it ought to have stood a strain of 60,000 pounds, or thirty tons. This is fully ten times the weight of the part of the timber raised by the tackle. Thus it appears no one did doubt, or had any reason to doubt, that the strength of the hook was sufficient for the purpose to which it was applied.

Eardly and the defendant in error were co-laborers in the work. They were fellow servants in the same common employment. Although Eardly was permitted to select some of the men who were to assist in doing the work, yet he, as well as they, and all engaged therein, were hired by the day and paid by the company. A master is not liable to his servant for the negligence of a fellow servant while engaged in the same common employment: Sherman & Red-field on Negligence, sect. 86. The master does not warrant the competency of any of his servants to the other: Id. It matters not that they are of unequal grade if the services of each in his particular labor is directed to the same general end. And although the inferior in grade is subject to the control and directions of the

superior whose act caused the injury, the rule is the same : Whart. Law of Neg., sect. 229; Lehigh Valley Coal Co. v. Jones, 5 Norris 432; Priestley v. Fowler, 3 M. & W. 6; Wonder v. B. & O. Railroad Co., 32 Md. 410. If then, as we have shown, Eardly and the defendant in error were fellow servants, even if the former .was negligent on the occasion of this injury, that fact is insufficient to charge the company with negligence in appointing the negligent employee: Whart. on Neg., sect. 240; Feltham v. England, L. R., 2 Q. B. 33.

We think .the learned judge erred in not affirming the points covered by the second and third assignments.

The point covered by the first assignment should have been refused. The qualification is insufficient to justify its affirmation. The seventh assignment is to a part of the charge which appears to be in answer to a verbal point made by the counsel for defendant in error, based on the temporary absence of Eardly at the moment of the accident. We think the learned judge erred in affirming it, and in holding there was negligence, to affect the plaintiff in error, in Eardly being absent a single instant at the moment of the injury. We discover no error in the fourth assignment.

Judgment reversed.


author: Per Curiam.

text:
    Orrell versus Van Gorder & Shepard.
    1. A husband lived with his wife hut neglected or refused to provide for her, and was idle, profligate and worthless. The wife carried on business on her own account, and personally purchased goods for said business, which were charged to her. Meld, that she could be sued for the price thereof as a feme sole trader, under the Act of May 4th 1885, and that a decree declaring her to be such a trader was not necessary before suit could be brought.
    2. Elsey v. McDaniel, 14 Norris 472, followed.
    November 9th 1880.
    Before Sharswood, 0. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Error to the Court ■ of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1880, No. 31.
    Assumpsit by Yan Gorder & Shepard against Louisa Orrell, for goods sold and delivered. The plaintiffs brought this action against defendant as a feme sole trader- to recover the value of produce furnished to her in her business. It appeared that Mrs. Orrell was a huckster, and bought and sold on her own account; that her husband lived with her and occasionally worked for her, but was idle, intemperate and worthless, and made no provision of any kind for his wife, but that on the contrary she supported him; that she personally ordered the goods, except in a few instances, when her husband acted as her messenger, and that they were all- charged to her upon the books of the plaintiffs. There was no evidence of a decree that she had been declared a ferns sofe'trader.
    At the trial, before Bailey, A. L. J., the plaintiffs presented the following points, which with the answers of the court will be found in the assignments of error below,, which were to the verdict and judgment in favor of plaintiffs :—
    1. The court erred in affirming the plaintiffs’ second point: That no formal decree of a court is necessary to constitute a woman a feme sole trader under the Act of May 4th 1855.
    2. In their answer to the plaintiff’s first point: That if the .jury are satisfied from the evidence that defendant’s husband refused or neglected to provide for her, and that she was merchandising on her own account, and under such circumstances bought the goods for the price for which this suit is brought, then their verdict should be for the plaintiff, for such sum as they may find due and owing.
    Ans. “ Affirmed. If the jury are satisfied from the evidence that the husband of the defendant neglected or refused to provide for her, and that she dealt with the plaintiffs or other parties, openly, and permitted them to deal with her upon the idea that her business was being carried on by her, on her.own account and for her own benefit and apart from her husband, then the plaintiffs would be entitled to recover in this action, notwithstanding she was a married woman.”
    3. In charging the jury: “ These are the points you will determine in this case, under the circumstances and facts that have been given in evidenóe. Are you satisfied that the defendant’s husband either neglected or refused to provide for her ? and that the plaintiffs dealt with her, with her knowledge and consent, as carrying on business in her own right and for herself independently of her husband ? If so, the plaintiffs are entitled to your verdict.”

      A. Blakeley, for plaintiff in error.
    The legislative intent in the Act of May 4th 1855 was that a married woman could lose no status under said act until she has obtained a decree according to said act: Hentz v. Clemson, 34 Leg. Int. 5; Hyde v. Hesser, 3 Phila. 508. A distinct remedy and security being pointed out by the Act of 1855, there is no hardship in binding a married woman to a compliance with its provisions.
    In actions upon a statute to charge the estate of a married woman, the court should follow the statute. Here the statute starts out with a statement of facts which must be found to exist before she can pass from her common-law status.
    There must be drunkenness, or profligacy or other cause, and other cause in this connection means other like cause, and the jury should have been instructed as the essential starting point, that they must find from the evidence, drunkenness, profligacy or other cause of desertion, and if the jury should fail to find these, or either of them, they need go no further. The court only said if the husband “neglected or refused to provide for her.”

      Greo. Elphinstone, for defendants in error.
    The court did not hear argument for defendants in error, saying that the main questions in the case had been decided at the -present time in Elsey v. McDaniel. (See 14 Norris 472.—Rep.)
   The judgment of the Supreme Court was entered November 22d 1880,

Per Curiam.

This case is ruled by Black v. Tricker, 9. P. F. Smith 13, and Ely v. McDaniel, 14 Norris 472, decided at this term. In this last case it was held that the deed of a feme sole trader, without any decree and without her husband, was valid as against her, which goes much further than the case presented on this record.

Judgment affirmed.


text:
    Milling versus Becker.
    1. The declaration of a landlord that his tenant had given up his lease, accompanied by an unsuccessful attempt to lease to another, is not conclusive evidence'that the relation has ceased. There must be an agreement to rescind or the lease continues in force.
    2. Mere removal of a tenant with an unaccepted offer to deliver the key is not evidence of the termination of the lease.
    3. Taking care of the key and cleaning the windows of a house after the tenant had left, are not conclusive evidence of the landlord’s acceptance of a surrender.
    4. If the relation of landlord and tenant has not ended by contract the landlord is not bound to rent to another during the lease, for the benefit of his tenant.
    5. If a tenant rents by the month he has the right to terminate the lease at the expiration of any month, but he is bound to pay the rent for that month, unless there was a surrender. The tender of a half month’s rent is not sufficient, although the premises have not been Qccupied for that portion of the month.
    November 9th 1880.
    Before Sharswood, C. J., Mbrcur, Gordon, Paxson, Trúnkey, Sterrett and Green, JJ.
    Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1880, No. 163.
    Case by Charles Milling against Annie Becker.
    The action was to recover rent from October 1st 1878 to April 1st 1879, for certain premises in the city of Pittsburgh, of which the plaintiff was the owner, and which he alleged the defendant rented from him by a verbal lease from May 1st 1873 to April 1st 1874, ata rent of $20 per month, payable monthly, and that after the 1st of April 1874 the defendant held over and continued to occupy the premises. Plaintiff further alleged that about April 1st 1876, additional rooms were rented by him to the defendant, ' and her rent increased to $25 per month, payable monthly, as before, and that she continued, tinder the terms of the original lease, to occupy the premises until October 7th 1878, when she removed therefrom, paying the rent to October 1st 1878.
    The defendant alleged that when she rented the premises in 1873 she told Milling she was a stranger in the city and did not know whether she would be able to pay the rent or not, and that therefore she would not rent the premises in any other way than by the month, and that plaintiff readily agreed to this arrangement, and that thereunder she moved in and remained his tenant, without any change in the lease, until October 7th 1878. That at that time she paid the rent in full to October 1st 1878 ; tendered to plaintiff over half a month’s rent for the seven days she occupied the premises after the 1st of October, and left the key with the plaintiff in person and removed from the' house. It also appeared that plaintiff never made any demand, on defendant for the rent as it fell due, and that there were other acts to show an acceptance of the surrender tendered. It also appeared by plaintiff’s own testimony that he not only did not try to rent the premises after defendant removed, but that he positively refused to rent the same to several parties who called upon him for that purpose, and that he did not report these parties to defendant, but gave to them all an unqualified refusal.
    The verdict was for defendant, and after judgment plaintiff took this writ and alleged that the court erred as follows:
    1. In charging the jury: “She claims that she rented by the month, and only by the month, stating that she was a stranger; : that she did not know how her business would succeed; that she would not involve herself for a longer period than a month, and that-she rented by the month, to be payable monthly, and on no other terms, and for no fixed' time. I might say just here that if that is discovered to be the fact, then if you find that all the rent has either been paid or tendered at the time this key was left with Mr. Milling, there can be no recovery, and there ought not.”
    2. In charging the jury: “It all devolves upon the question whether she was simply a monthly renter, without any fixed time to such monthly rental. If there was a contract to that effect agreed upon by the parties without limit as to how long it would run, I then say to you that if she tendered all the rent that was due, and you so find, she had a right -to go out as a monthly renter at the expiration of any month that she might see proper.”
    3. In chai’ging the jury: “ If it be as Mr. Milling claims, why then she ought to pay and must pay until the end of the year, unless Mr. Milling was guilty of neglect and might have rented but did not.”
    4. In affirming defendant’s first point: “ That if. the jury find from the evidence that when defendant first leased from plaintiff the premises in question, that she rented them by the month, and that no agreement changing this tenancy was afterwards made; that defendant continued to occupy said premises as a monthly tenant up until the date she moved, and that their verdict must be for the defendant.
    5. In affirming defendant’s second point: If the jury find from the evidence that at the time plaintiff accepted the key of the premises and demanded and received the month’s rent necessary to balance accounts in full to October 1st 1878, he intended to accept the surrender so made, defendant was then and there released, and no subsequent act of plaintiffs at any time performed could again make her liable, and that the verdict must be for defendant.
    6. In affirming the defendant’s third point, that plaintiff was bound to use his utmost endeavors to rent the premises in question between November 12th 1878 and April 1st 1879 for the relief of defendant. '

      Robb & Fitzsimmons, for plaintiff in error.
    If Mrs. Becker was a monthly renter, then she could not remove in the middle of a month without payment of rent for a month, unless the landlord released her. If she was a tenant by the year, and left the premises after an occupancy of the same for several months, what principle of law can be invoked that will compel the landlord to submit to her unlawful acts, and compel him to diligently search for some one who would occupy the premises for the balance of her term, pay the rent she was obligated to pay, and relieve her entirely of liability. In the fifth assignment of error the court was led to say, in the point submitted by defendant’s counsel, “that Milling accepted the key of the premises.” There is nothing further from the facts in the case. The key was left by the tenant with the landlord, Milling,' who neither received nor accepted the key. The agents of the defendant, when they paid the rent to November 1st 1878, left the key on plaintiff’s table when they left, with their receipt for the said payment. It is well settled that a delivery of the key is not a delivery or surrender of the premises. There was nothing said by the defendant or her agents that by leaving the key she surrendered the premises, or' that Milling, when the key was left with him, said or otherwise indicated that he accepted the surrender of the premises, and relieved the defendant from the payment of the rent.

      Burleigh & Harbison, for defendant in error.
    All the testimony sustains the allegation of defendant that she was a monthly tenant. During the whole of these six months, for which plaintiff now claims to hold the defendant liable, he deliberately and persistently refused to rent these premises, even when many parties came to him and desired to rent from him. He made no personal demand on defendant for the rent as it fell due month by month, or at any time, and by taking the key, by acting as if in possession, by failing to demand her rent monthly, as he had done for' six years prior to this time, he caused defendant to almost forget that she formerly was his tenant. Certainly his actions had been such as to daily inform her that he had ceased to regard her as his tenant, and the many other facts in the case prove an acceptance of a surrender, show conclusively that this plaintiff’s actions deceived the defendant and threw her entirely off her guard.
   Mr. Justice Trunkey

delivered the opinion of the court, November 22d 1880.

These parties disagree on the question whether the letting of the premises was by the month or year, and on this the conflicting testimony was fairly submitted. But the testimony on. all controverted questions might as well not have been submitted at all, for the jury were instructed that on the case, as claimed by the plaintiff, the defendant ought to pay rent until the end of the year, unless the plaintiff was guilty of neglect and might have rented, but did not, and that he was bound to use his utmost endeavors to rent the premises for the reliéf of the defendant; and, if the renting was by the month, the verdict must be for the defendant. Now, the parties agreed that the plaintiff made no effort to rent the premises to another till the end of the year; also, that the rent was paid up to the first of October. Therefore, the affirmance of defendant’s first and second points was decisive against the plaintiff.

A vital point to a complete defence was to establish a rescission of the lease by mutual agreement. Three witnesses on part of defendant said that when the last rent was paid, a few days after her removal from the premises, the plaintiff took the key without saying a word; and three witnesses on plaintiff’s behalf testified that he absolutely refused to accept the key. Probably the testimony was sufficient to warrant submission of the question; but it was far from conclusive, and by no means justified instructions as if it were an indisputable fact that there was a surrender. The declaration of a landlord that his tenant had given up his lease, accompanied by an unsuccessful attempt to lease to another, is not conclusive evidence that their relation had ceased. There must be an agreement to rescind or the lease continues in force, and the acts and declarations of the parties tending to prove such agreement are for consideration of the jury. Mere removal by a tenant with unaccepted offer to deliver the key, is not evidence of a termination of the lease: Kiester v. Miller, 1 Casey 481. Taking care of the key of the house and repairing the floor after the tenant had voluntarily left, were no eviction. He would have been entitled to enter if he had returned : Pier v. Carr, 19 P. F. Smith 326. So, taking care of the key and cleaning the windows of a house after the tenant had left, would not be conclusive evidence of the landlord’s acceptance of a surrender.

The effect of a surrender is to pass the estate of the tenant to the landlord, which results in extinguishment of the rent reserved and accruing out of the less estate not due at the time of the surrender : Greider’s Appeal, 5 Barr 422. Hence, if there was an agreement for surrender' made in October between Milling and Mrs. Becker, no rent which was not then due can be recovered; but if there was no such agreement whether the term was for a month or a year, the plaintiff was entitled to the rent until the end of the term. In case of a surrender, it was immaterial whether the plaintiff did or did not rent the premises to another; and if the relation of landlord and tenant was not ended by contract, he was not bound to rent to another during the term for relief of the defendant. Nothing in the original contract obligated him to seek another tenant, and had he done so and put one in possession of the premises, he could recover no rent of the defendant accruing thereafter. That, indeed, would have relieved the defendant — a most absurd thing for him to do if he wished to hold his contract with her. She alone had as little power to terminate her obligation to pay rent until the end of the term as she had to make the léase. It takes as many persons to rescind a contract as it took to make it, unless it contains a stipulation that it shall become void upon a contingency.

The third and sixth assignments are well taken; and the first and second must also be sustained. True, if the defendant rented by the month, she had a right to end the lease at the expiration of any month, but she would be bound to pay the rent for that month unless there was a surrender. The tender of a half-month’s rent at the time the key was left, was vain. If the jury found the facts mentioned in the defendant’s first point, without more, the defendant was not entitled to a verdict. She moved after the first of October, and in any view, was liable for the rent of that month if the contract was not rescinded. The defendant’s second point assumes that the plaintiff accepted the key of the premises, and for that reason ought to have been refused. .

Judgment reversed, and venire facias de novo awarded.


author: Mr. Justice Gordon

text:
    White versus Ballantine.
    1. The Act of February 24th 1871 was passed for the protection of municipal claims. They are a charge against the property alone, and the proceedings on them are not personal but in rein.

    2. The Act of 1871 is a valuable one and should be enforced according to its intent and purpose. By it ample provision is made whereby the property owner may protect himself, and if he neglects to do so it is at his own peril.
    3. Emriek v. Dicken, 11 Norris 78, followed.
    November 9th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1880, No. 184.
    Ejectment by E. 0. White against James W. Ballantine.
    E. 0. White, the plaintiff, was the owner of three lots of ground situate in Temperanceville, now Thirty-sixth ward, city of Pittsburgh. On or about the 1st of April 1855, he and his wife con veyed them to one Nathaniel Ballantine, by deed absolute upon its face, but accompanied by a parol defeasance, which made it a mortgage for the security of money loaned or to be advanced by Ballantine to White to an amount not-exceeding $2000. The parol defeasance stipulated that Ballantine should have possession of the property, collect the rents thereof until reimbursed, and then to reconvey to White. In pursuance of this agreement, Ballantine took possession and received the rents until 1867. White, at that time, alleged that Ballantine was fully reimbursed, and demanded a reconveyance according to agreement. Ballantine then denied the parol defeasance, claimed his deed to be an absolute purchase, and refused to reconvey. On the 25th of March 1867, White brought ejectment to No. 371, April Term 1867, to enforce the parol agreement and recover possession. This suit was tried on the 2d of December 1872, and resulted in a verdict for White. Ballantine removed it to this court, when the judgment of the court below was affirmed on the 9th of November 1874. (See case reported in 27 P. F. Smith 20.)
    On the 16th of June 1873, White conveyed to J. W. Donaldson, Esq. Afterwards, on the 6th of April 1875, Donaldson reconveyed the property back to’.White. The deeds were duly recorded in the recorder’s office. The deed of Donaldson to White was also registered in the City Registry office, on the 26th of May 1875, as required by the Act of 24th February 1871. On the 4th of May 1875, Ballantine brought another action of ejectment against White and Donaldson, to No. 1010 of-June Term 1875, for the same property, .alleging that the judgment in the former ejectment was not conclusive. This action was tried in the court below on the 20th of April 1876, and also resulted in a verdict for White. Ballantine took this case to the Supreme Court likewise, and on the 23d of October 1876, the judgment of the lower court was affirmed.
    On the 2d of April 1872, Temperanceville was consolidated with the city of Pittsburgh, and made part thereof by special act of that date. In the summer of 1873, Main and Walnut streets, which bounded two sides of this property, were graded and paved by the city. For this improvement the property was assessed by the city with the sum of $1068.96. To secure the payment of this assessment, the city filed a municipal lien on the 30th day of January 1874, to No. 2, of April Term 1874, for the said sum of $1068.96,’ with interest from the 1st of August 1873. The said Nathaniel Ballantine, being in possession during the making of the improvements, and at the time the lien was entered, it was filed against him as defendant. Afterwards a scire facias by the city as plaintiff was issued against the said Ballantine as defendant to No. 2 of April Term 1874. And, on the 8th of July following, judgment was entered against the defendant for the sum of $1127.75. On this judgment a levari facias was afterwards issued, and the property was sold by the sheriff on the 5th day of January 1877, and-purchased, by James W. Ballantine, the defendant in error, and son of said Nathaniel. The sheriff, in pursuance of said sale, executed and delivered to him a deed. White then surrendered possession and afterwards brought this action of ejectment against the said J. W. Ballantine to No. 469 of April Term 1878, Issue was joined and the case was tried on the 4th of June 1880, which, under peremptory instruction by the court, resulted in a verdict for the defendant.
    The case turned upon a question of law, which involved the construction of the 20th section of the Act of 6th of January 1864, entitled, “ An act concerning -streets and sewers in the city of Pittsburgh,” Pamph. L. 1864, sect. 20, p. 1131. And the 8th section of the Act of 24th of February 1871, entitled, “ An act providing for the registry of lots in the city of Pittsburgh,” Pamph. L. 1871, sect. 1, p. 126.
    The 20th section of the Act of 1864 provides,. “ that a sale upon a levari facias shall convey only the interests of those who are defendants in the writ.”
    The lien in this case was entered against Nathaniel Ballan'tine alone; the scire facias was issued against and served upon him alone as defendant; the judgment was entered against him alone as defendant; the levari facias was issued against him alone as defendant, and the property was sold by virtue thereof as his property. In view of this record evidence, and the 20th section of the above recited acts, plaintiff’s counsel asked the court, in their second point, to charge that the sheriff’s sale of the property in dispute in this action conveyed only the estate or interest therein of the said Nathaniel Ballantine, the defendant in the writ.
    This prayer was refused, and the refusal thereof is the first error complained of.
    Plaintiff’s counsel, in their third point, requested the court to further charge that at the date of the aforesaid sheriff’s sale, to wit: January 5th 1877, N. Ballantine, the defendant in the writ, had no interest or estate in the property, and that J. W. Ballantine, the purchaser at said sheriff’s sale, took no title by virtue of his purchase. .
    This point was also declined, and the refusal thereof is the second error complained of.
    Plaintiff’s counsel, in their fifth point, requested the court to further charge, that under and in view of the deeds and records in evidence, the sheriff’s sale of the property on the execution against N. Ballantine did not divest the plaintiff’s title acquired by virtue of the final judgments in his favor in the two actions of ejectment above recited. This request was also refused, and its refusal is the third error complained of.
    The aforesaid Act of 24th February 1871, creates a registry department for the city, and requires books to be kept, wherein deseriptions of the real estate situated within the city limits shall be entered by the respective owners thereof. And furthermore requires purchasers who may acquire title to houses or lands in said city, after the passage of said act, to furnish to the officers in charge of said registry department a description of the real estate so acquired, &c. The eighth section is in the following words: “If neither the seller or buyer, devisee or heir, or other party, who has acquired a title to houses or lands in said city, nor the officers above named shall have furnished the description of the property, sold as aforesaid, both he who may have parted with, and he who acquired title, shall be liable for the taxes and assessments thereafter assessed thereon, without right or reclamation or contribution therefor either against the other-; and if the lands or houses sold be afterwards sold for taxes or assessments thereafter accruing as a lien by record, before said duty shall have been performed, with the name of the former owner, the purchaser shall acquire the title of said owner, and all claiming under him; but if the said duty of making the return as required by this act shall have been discharged by the party who shall have acquired title in whatsoever manner béfore the tax accrued as a lien of record for which the same shall have been sold, the purchaser at a tax sale shall not acquire the title of such persons who shall have performed said duty, or of his heirs or assigns, unless the sale shall have been made in the name of such owner, after service of process upon him as in the case of suit by summons, scire facias, or other appropriate writ. Provided, however, that such owner shall repay to such purchaser within one year from date of deed, with ten per cent, added; such owners not complying with this provision shall have no right or title to such property, but the title shall remain good in the purchaser.”
    In view of this section, defendant’s counsel requested the court to charge in their first point:—
    “ That it appearing in evidence in this case that the lots for which this ejectment was brought were not registered, as required by the Act of 24th February 1871, prior to the filing of the lien, and the entry of judgment thereon at No. 2, April Term 1874, and the legal title at that time was in N. Ballantine, the sheriff’s sale thereon was effective to convey the title of the real owner, subject to redemption within one year by repayment of the purchase-money, and there being no evidence of such repayment, or offer to repay, the title of the purchaser became absolute, and their verdict should be for the defendant.”
    The court affirmed this point, and this is the fourth error assigned.
    Touching this branch of the case, the plaintiff’s counsel in their fourth point requested the court to charge: That under the record and deed in evidence, the provisions of the Act of 24th February 1871, relied upon by the defendant, do not apply, and that the sheriff’s deed, under which the defendant claims, does not confer upon or vest in him a valid title, and the plaintiff was therefore entitled to recover.
    This instruction was refused, and the refusal thereof is alleged to be another and fifth error.
    Defendant’s counsel, in their third point, prayed further instruction : That under all the evidence in this case, the verdict should be for the defendant. This point was affirmed. The affirmance of this point is also alleged to be error.
    Verdict for defendant, and after judgment, plaintiff took this writ and alleged that the court erred, as set forth in the above assignments of error.

      Weir Gibson, Robert Robb and D. T. Watson, for plaintiff in error.
    We contend, 1. That in view of the evidence disclosing the nature and circumstances of White’s ownership and his recovery of possession, he is not embraced within the provisions of the 8th section of the Act of 1871.
    2. That if he is he was not bound to perform the duty imposed thereby until he recovered possession by virtue of a final judgment of the Supreme Court in his favor; that having obtained such judgment on the 9th of April 1875, and having after-wards, on the 26th of May 1875, filed a description of the property in the city registry as required, was a sufficient compliance with the law to preserve his title.

      T. O. Lazear and Slagle Wiley, for defendant in error.
    It surely was nbt the intention of the Act of 1871 to change the law so far as it related to city assessments, and impose upon the city authorities the duty of amending the liens every time there might be a change in the title, even after judgment obtained or execution issued. This construction of the act would complicate the proceedings of the city rather than simplify,, which was the evident intention of the act. But the meaning of the act is not doubtful. It requires the city officers to procure registry books; all owners of property to register their titles, and that all subsequent transfers be registered.
    That the plaintiff is not saved by this act is perfectly clear. He acquired title by judgment of April 9th 1875. The lien was filed on record January 30th 1874, and judgment entered thereon July 8th 1874. The assessment therefore did not accrue after the acquisition of title. The only registry made by White was on the 26th day of May 1875, and therefore the duty of registering was not performed before the “tax accrued as a lien of record.”
   Mr. Justice Gordon

delivered the opinion of the court, November 22d 1880.

The property in dispute was sold to James W. Ballantine, the defendant, on a levari facias issued on a judgment, obtained on a municipal claim for grading the street or streets adjacent to this property, which claim was filed January 30th 1874. At that time Nathaniel Ballantine was in the possession of the property, and against him the scire facias was issued and judgment obtained. It seems, however, as was afterwards determined by an action of ejectment, that the fee of the property was in E. C. White, the plaintiff, and that the possession of Ballantine was only that which he had acquired as White’s mortgagee. • This then is a summary of the facts upon which.this case rests, and the question involved in, and arising from them is, what title did the defendant acquire by his purchase at the judicial sale ? The plaintiff contends that inasmuch as the scire facias and judgment were in the name of Nathaniel Ballantine, the tenant of the property, the sale falls within the provisions of the Act of 6th January 1864, and passes to the purchaser no more than Ballantine’s title, whatever that may be. On the other hand, it is insisted by the defendant that he thereby acquired the entire title by virtue of the terms of the Act of 24th February 1871. We think, then, that this contention must be determined by the construction put upon this last named act. If this statute does not cover the case, then the hypothesis of the plaintiff must prevail, and, in that event, since there was no service of the scire facias upon White, the owner, the purchaser took nothing but Ballantine’s interest. The question thus presented is not a new one, and our task is rendered light by the opinion of our brother, Mr. Justice Paxson, in the case of Emrick v. Dicken, filed on the 5th of January last, and reported in 11 Norris 76. The case here cited is full in point, for the claim filed, the scire facias and judgment, were against an “ unknowm owner,” and though George Emrick, the owner, was without notice, and, at the time, resident upon the property, it was nevertheless held that the purchaser took a good title under the Act of 1871. That was a case where the equities of the owner were much stronger than in the case in hand. There, there was no notice to the owner; here the assessment was against the plaintiff’s mortgagee, and there is no pretence that he was without notice. But even were he without notice, we cannot see any hardship in a law which makes the result complained of possible only through the negligence of the owner. Had the plaintiff complied with the requisitions of the.statute, as in good faith he was bound to do, personal notice of the sci. fa. must have been given to him, or the sale un'der it would as to him have been worthless. Who then was to blame if the plaintiff’s property was assessed in a wrong name ? Not the city officers, for there was no registration of the premises to which they could refer. They did what they could — what was proper under the circumstances — they assessed the property in the name of the person in possession, and who at that" time claimed to own it. And, indeed, if we should concede to the plaintiff what his counsel contends for, in his fourth point to the court below, that is, that he had no title when the assessment was made, then, of course, Nathaniel Ballantine was in fact the owner, and there can be no exception taken to that assessment on any ground. But as, even in the face of such an admission, we can scarcely suppose that it was intended thus to cut up the plaintiff’s case by the roots, especially as the verdict in ejectment, rendered in December 1872, determined the case in White’s favor, we prefer to rest the case on the Act of 1871.

. This act was passed for the protection of these municipal claims. They are, as was said in the case above cited, a charge against the property alone, and the proceedings on them are not personal but in rem. Previously to the passage of the act above mentioned, if a property was assessed in a wrong name, and the owner could avoid notice, he wholly escaped from his legitimate share of public burden; his property was improved and enhanced in value at the expense of the city.

The Act of 1871 is, therefore, a valuable one, and should be enforced' according to its intent and purpose. By it ample provision is made whereby the property owner may protect himself, and if he neglects to take care of his own interests he has no one to blame but himself.

Judgment affirmed.