text:
    The Union Passenger Railway Company versus The City of Philadelphia.
    1. By the charter of a railway company incorporated in 1864, the .company was made subject to all ordinances of the city of Philadelphia regulating the running of passenger railway cars, and a further clause provided that the company should pay such license for cars run as was paid by the other passenger railway companies of the city. When the company was incorporated this ■license tax was fixed at §30 per car. An ordinance of 1867 increased this tax to §50, and the Act of April 11th 1868 enacted that the various companies should pay annually to the city §50 per car run as “ required by their charters.” After paying this tax until 1875, the company refused to pay the same any longer, and this suit was brought to recover it: Held, that the company having paid the tax of §50 without protest up to 1875, it is a legal conclusion that it accepted the Act of 1868, in order to obtain the benefit of the legislation which forbade the city from making regulations affecting it unless authorized by a law referring in express terms to these railways.
    2. The terms of the charter which provided for the payment of such a license of §30 as was then paid by other passenger railway companies in the city do not negative all right of the Commonwealth to impose the tax of §50 contained in the Act of 1868.
    3. The right of the state to impose such a tax, rate, or imposition in future cannot be taken away by a more implication arising from a direction to pay a certain sum. To establish a relinquishment of this power the indications of such an intention must be plain, and the terms of the charter must therefore be regarded as conferring an authority only upon the city to receive and imposing an obligation upon the company to pa.y this sum, but not as a contract on the part of the Commonwealth for the relinquishment of her own power to impose a further burthen.
    4. And if this be not so, the amendment to the Constitution of 1857 subordinated charters thereafter granted to the power to make alterations therein, provided no injustice be done the incorporators.
    February 1st 1877.
    Before Agnew, O. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ. Williams, J., absent.
    Error to the Court of Comihon Pleas, No. 2, of Philadelphia county: Of July Term 1876, No. 30.
    Debt by the City of Philadelphia against the Union Passenger Railway Company, in which the following case was stated for the opinion of the court, with the right to either party to sue out a writ of error to the judgment
    That by “ An ordinance supplementary to an ordinance entitled. ‘An ordinance to regulate passenger railways,’ approved July 7th 1857,” approved April 1st 1859, and by the third section thereof it is provided:—
    “ That each and every passenger railway company shall pay into the office of the chief commissioner of highways, in the month of January of each year, for the use of the city, the sum of thirty dollars for each car intended to be run upon any road; and for each and every car placed upon any road before the time herein provided for paying the license, a proportionate sum shall be paid until the succeeding January,.and that no car shall be placed or run upion any road or street until it shall be regularly licensed and a certificate duly numbered hung in a conspicuous place in said car.”
    That the defendants were created a body politic by an act jiassed April 8th 1864, Pamph. L. 297, with the authority to construct a railway on certain named streets in the city of Philadelphia. Among other things in said act, it is enacted:—
    “ Sect. 4. * * * Said railway shall conform in gauge to the passenger railways now laid in the city of Philadelphia. * * *
    “Sect. 8. * * * And the said company is hereby authorized and empowered to construct and lay the said railway, without obtaining the consent of the city councils of the city of Philadelphia; but whenever the said railway shall be laid and used, by running passenger cars thereon, the said company shall be subject to the ordinances of the city of Philadelphia'regulating the running of passenger railway cars.
    “ Sect. 10. That the said company shall pay annually into the treasury of the city of Philadelphia, for the use of said city, whenever the dividends declared by said company shall exceed six per cent, per annum, on the par value of the. capital stock thereof, a tax of six pier cent, on such excess over six pier cent., * * * and the said company shall also pay such license for each car run by said company, as is now paid by other passenger railway companies in the city of Philadelphia.”
    By “ A further supplement to an ordinance to regulate passenger railways, approved July 7th 1857,” approved January 2d 1867, it is enacted:—
    “ That each and every passenger railway company shall pay to the chief commissioner of highways the sum of fifty dollars for each car run upon their respective roads. * * *”
    That by “ An Act to define the duties and liabilities of passenger railway corporations in the city of Philadelphia,” approved April 11th 1868, Pamph. L. 849, it is enacted: “ That the several passenger railway corporations in the city of Philadelphia shall pay annually to the said city, in the month of January, the sum of fifty dollars, as required by their charters, for each car intended to be run- over their roads during the year, and they shall not be obliged to pay any larger sum; and said city shall have nó power, by ordinance or otherwise, to regulate passenger railway companies, unless authorized so to do by the laws of this Commonwealth, expressly in terms relating to passenger railway corporations in the city of Philadelphia. * * * ”
    That in. each year previous to the year 1875, the defendants paid the said plaintiff the sum of fifty dollars for each of the cars run by them during said year.
    The defendants, in the month of January 1875, ran seventy-nine cars on their road, and admit their liability to pay to the plaintiffs, for each car, the sum of thirty dollars, and no more.
    If the court shall be of opinion that the plaintiffs are entitled to recover the sum of fifty dollars for each car, then judgment to be entered for the plaintifFs at that rate; if not, then judgment to be entered for the plaintiffs at the rate' of thirty dollars for each car. The damages to be assessed by the prothonotary.
    It is agreed, that any Act of Assembly or ordinance of the city of Philadelphia whieh may be pertinent to the case here stated, shall be considered as embraced herein.
    The court entered judgment for the plaintiff at the rate of fifty dollars on each car.
    The defendants took this writ and the assignments of error were:
    1. The court below erred in entering judgment at the rate of $50 each car.
    2. The judgment below impairs the obligation of the contract created by the charter of the Union Passenger Railway Company, and is in conflict with sect. 10 of art. 1 of the Constitution of the United States.
    3. The court below erred in not entering judgment on the case stated at the rate of $30 each car.

      David W. Sellers and F. Carroll Brewster, for plaintiffs in error.
    — By the Act of 1864 which gave the defendants their corporate existence the company was made subject to the ordinances of the city of Philadelphia then regulating the running of passenger railway cars, and it was provided that the said company should pay such license for each car as “ is now paid by other railway companies.” Other railway companies were paying $30 per car in accordance with the only ordinance in force on this subject, that of 1859.
    The Act of 1867 being passed after the date of defendant’s charter and upon which plaintiff bases her right to tax defendants, does not apply to this company.
    It is further contended that this law impairs the obligation of the contract created by said charter of the railway company, and is in conflict with sect. 10 of art. 1 of the Constitution of the United States: Dartmouth College v. Woodward, 4 Wheat. 656.
    In the contract or charter granted to the company, the state could say nothing about a special tax, or she could stipulate for a particular charge. If the Commonwealth had remained silent, then, of course, the defendants would have become liable to all taxes, then or thereafter to be imposed. But the state having said in the charter, you shall pay a certain tax on a particular franchise, a contract is made which requires the full and free consent of the two parties thereto, either to make or unmake. It being clear that the defendants are a party to a contract, made with them by the Commonwealth, the obligations arising from the said contract cannot be impaired without violating the Constitution of the United States.
    Neither does the Act of 1868 apply for like reasons.
    The power of repeal is not reserved by the state in defendant’s charter.

      Robert W. Willson and Charles S. T. Collis, City Solicitor, for defendant in error.
    — The act of incorporation subjected the company to the duty of paying the same amount which was paid by other similar companies, and this had been fixed by ordinance at- the sum named..
    This provision of the statute, it is evident, was intended to define precisely what the obligation of the company should be with reference to the payment of the license charge, at the time of its assumption and exorcise of the franchises conferred. The requirement was not intended to be the gift of a right or privilege to the corporation, but the imposition of a duty. It was not a tax directed to be paid, but a charge in favor of the city in the exercise of her police powers : Frankford & Phila. P. Railway Co. v. City, 8 P. F. Smith 119, and Johnson v. Philadelphia, 10 Id. 445. The plain purpose of the act was to bring the new corporation under the same restrictions w'hich were applied to the other passenger railway companies, not to give it an exemption from duties which might be imposed upon them. Besides, a surrender of the Commonwealth’s power over the corporation will not be implied: Erie Railway Co. v. Commonwealth, 16 P. F. Smith 84. The charter itself says the company “ shall be subject to the ordinances of the city,” &c., thus subjecting the company to the payment of .such increased license fees as should lawfully be imposed thereafter.
    At the time the company Avas incorporated, sect. 2-6, art. 1, of the Constitution gave to the legislature the poAver of repeal. By. reason of the nature of this constitutional provision, it became engrafted into every charter granted while it was in existence, with as much effect as if it had been made in very words a part thereof, and, therefore, it became a part of the charter of the company in question.
   The judgment of the Supreme Court was entered, February 12th 1877,

Per Curiam.

— When the case of the Frankford Passenger Railway Co. v. Philadelphia, 8 P. F. Smith 119, was before this court, the power of the city to collect a license-fee was necessarily found in the exercise of the police power, and under the provisions of the Act of 15th April 1850, for “the regulation of omnibuses or vehicles in the nature thereof,” for the reason that then no express power had been conferred by law to impose a tax directly upon the cars of the company. This power, however, has been supplied by the Act of 11th April 1868, Pamph. L. 849, enacting “ that the several passenger railway corporations in the city of Philadelphia shall pay annually to the said city, in the month of January, the sum of fifty dollars, as required by their charters, for each car intended to be run over their roads during the year, and they shall not be obliged to pay any larger sum.” Stress is Mid on the words “as required by their charters,” as if the obligation was to be contained therein, to pay fifty dollars. That this was not the meaning of the law is obvious, for if it were a charter obligation to pay this sum the law would be unnecessary. Its reference was clearly to the duty to pay, not to the sum to be paid. These charters require obedience to the lawful ordinances of the city, under its municipal powers. This is rendered evident by the remainder of the section of the law just quoted, which as a set-off to or consideration for the payment-of the fifty dollars tax, took away from the city all power, by ordinance or otherwise, to regulate passenger railways, unless authorized by the express terms of laws referring directly to these corporations. It appears that in each year previous to the year 1875, the defendants paid to the city the sum of fifty dollars for each car run during the year. Now as this was not done under protest, or in any other way reserving the right of the company to object to the Act of 1868, it is a legal conclusion that this company accepted of that act in order to obtain the benefit of the legislation that forbade the city from making regulations affecting it unless authorized by a law referring in express terms to these railway corporations. This puts an end to all controversy as to the power of the legislature to pass the Act of 1868. But we áre not even disposed to regard that act as unconstitutional. We do not think the terms of the charter which provided for the payment of such a license-fee of thirty dollars as was then paid by other passenger railway companies in this city, negatives all right of the Commonwealth to impose the tax of fifty dollars contained in the Act of 1868. The right of the state to impose such a tax, rate, or imposition in future, cannot be taken away by-a mere implication arising from a direction to pay a certain sum. To fetter her power to levy moneys for public purposes, it needs a plainer negation of her own power. There might be indications of this intention found in other provisions sufficient with the direction to pay, taken together as a whole, to establish a relinquishment of the power, but this must be plain, when it is sought to establish disability to exercise one of the great functions of government. We therefore regard the 10th section of the charter as conferring an authority only upon the city to receive, and imposing an obligation on the company to pay this sum, hut not as a contract on part of the Commonwealth for the relinquishment of her own power to impose a future burthen.

. And if this be not so, still we think the amendment to the Constitution of 1857 subordinates charters of incorporation thereafter granted to the power to make alterations therein, provided no injustice be done the corporators. Now, a general law, such as the Act of 1868, which imposed the duty on_all these corporations in this city alike, to pay a reasonable sum of money as a tax or rate for the use of the city, whose streets are used by these companies in such a manner as to be often detrimental to their use by the citizens, cannot be said to be injurious to the corporators. In the use of the public streets the balance of convenience over inconvenience is undoubtedly in favor of these railways, else they would not be allowed. Nevertheless, there is a counter weight of inconvenience very serious to the citizens in the use of vehicles, the delivery of heavy articles and portage of goods in narrow streets, which must be taken into account, while the profit taken by the stockholders for the use of these railways is often great, and forms a consideration for reasonable burthens.

Upon the whole case, we think the judgment of the court below was right, and must be affirmed. Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Gordon

license: Public Domain

text:
    Weichardt et al. versus Hook.
    II. sold. W. certain shares of stock and took notes for a part of the purchase-money with a pledge of a part of the same stock as collateral. Afterwards, trouble having arisen between the parties, it was agreed verbally that their respective counsel should settle the differences. The latter agreed thqt II. should return the notes and pay "W. a certain sum of money, and that, simultaneously with such return and payment, W. should return the stock, so that the parties should be put in statu quo. Neither party took any .step towards carrying out this agreement, not even by way of a tender of performance. H. then brought suit on the notes ; an affidavit of defence set up the above facts: Held, that the agreement of counsel was not an award, because there had been no definite submission. Held, that as the conditions of this agreement were mutual and dependent neither party could set it up without at least a tender of performance, and therefore the affidavit of defence was insufficient.
    February 2d 1877.
    Before Agnew, 0. J., Sharswood, Mbrcur, Gordon, Paxson and Woodward, JJ. Williams, J., absent.
    Error to the Court of Common Pleas, No. 2, of Philadetyhia county: Of July Term 1876, No. 45.
    Assumpsit by Henry W. Hook against W. F. Weichardt, J. L. Luckenbach and A. S. Pendleton, on twenty-three promissory notes.
    Hook sold the defendants certain shares of the Plook Smelting Company, and received in part payment for them the notes in question, with a part of the shares as collateral security. The notes contained a provision for the sale of the collateral in case they were not paid at maturity. The agreement under which these notes were given provided, that upon default in the payment of any one note all the notes should be considered as due and payable., The note maturing first was not paid at maturity, and the plaintiff thereupon sold the collateral and brought this action to recover the amount remaining unpaid. An affidavit and a supplemental affidavit of defence were filed, which set up the following facts: That differences had arisen between the parties, which were referred to E. Hunn Hanson and Edward R. Worrell, counsel for the respective parties, “with full power and authority to settle and adjust such differences and to enter into any agreement” in behalf of the parties; and that “after numerous consultations” those gentlemen agreed upon the following settlement: That the business affairs of the Hook Smelting Company should be examined on behalf of Hook, and if it appeared that the business had been properly conducted and that the company was solvent, &c., then Hook should cancel and deliver up the notes which he held, and pay the defendants $20,000, which was the amount of cash originally paid by the.defendants to Hook, and simultaneously with such payment and delivery the defendants should transfer back to Hook the shares of stock they had bought from him. It was further averred that this “ agreement was not intended to be a technical award, but an agreement to remit the parties to their position” at the time of the sale of the stock, if the affairs of the company should be found to have been managed in substantial compliance with law.
    There was no averment of a formal submission or award, or that the referees had been sworn, or had taken any testimony, or of any agreement having been, made between the parties, excepting the one made by their counsel, as above, nor was there an averment that this settlement of counsel, whether it was an award or an accord, had been carried out or performed in any respect by either party, or that either party had tendered a performance of it to the other.
    The court below was of the opinion that the- agreement between the parties was an award, but that the affidavit was insufficient, because it did not aver performance of the award, and entered judgment for the plaintiff for want of a sufficient affidavit of defence, to which the defendants took this writ of error.

      JSdward R. Worrell, for the plaintiffs in error.

      Nathan N. Sharpless, for the defendant in error.
   Mr. Justice Gordon

delivered the opinion of the court, March 5th 1877.

The defendants below, plaintiffs in error, complain that an error was committed by the Court of Common Pleas, in entering judgment against them for want of a sufficient affidavit of defence. Whether such complaint be well or ill founded depends upon the character of the facts set forth in the affidavit. If a case is thereby-made out which ought to have been submitted to a jury, or which, upon demurrer, would have warranted a judgment for the defendants, then the decision of the court was wrong; but if such a case be not made out, the complaint is without merit. The notes in suit were given by the defendants to. the plaintiff in part consideration for the transfer of thirteen hundred shares of the stock of the Hook Smelting Company, as set forth in the agreement of the parties, dated January 1st 1875. The affidavit alleges nothing involving the bona fides of these notes, but sets up, by way of estoppel or defence, an agreement made for the parties by Messrs. Hanson and Worrell, their attorneys, who, it is said, had full power and authority to make such agreement and to adjust and settle their disputes and differences. The agreement thus referred to, provided that the papers, books, business and affairs of the Hook Smelting Company should be examined by the plaintiff, and if he should find that the business of the company had been conducted according to law, and that its stock and assets corresponded truly with the showing of the books, and that the company was solvent, the plaintiff, in such case, was to cancel the notes and to refund the money paid; on the other hand, the defendants were, simultaneously with such delivery and payment, to transfer to Hook the thirteen hundred shares of capital stock mentioned in the agreement of January 1st 1875, discharged of all claims of them, the said defendants, and of any and all other persons on their account.

As a defence, this showing is open to several objections. The paper set forth can be operative only as an agreement; for, as an award, it is defective for want of a definite submission; but,' as an agreement, its execution nowhere appears, either by the signatures, assent or acts of tho parties. As, therefore, what is not stated in an affidavit of defence is to be presumed not to exist (Lord v. Ocean Bank, 8 Harris 384), we must set it down as a fact that neither the plaintiff nor defendants ever took a single step in the direction of its execution, and that it is, therefore, void for want of ratification. Passing this, the conditions therein contained are mutual and dependent, and it thence follows that neither party can set it up without at least a tender of performance. This contract, in itself, neither satisfied the nótes nor toansferred the stock. Either of these things could result only from a performance of its conditions, and without this it was inoperative. As the plaintiff had no right in or to the stock until he tendered payment of the money and cancellation of the notes, so the defendants had no right to such money or cancellation until they tendered a transfer of the stock. Hence it would be manifest injustice for a court to treat the notes in suit as cancelled, and thus give the defendants the advantage of a contract with which they have never complied.

The judgment is affirmed.


author: Mr. Justice Woodward

text:
    Warren et al. versus Philadelphia Coal Company.
    1. In an ordinary contract of sale of personal property the vendor is subject to no implication of a warranty of the quality of the articles sold, but there is nothing in this rule to forbid a vendor from making a contract stipulation that he will be answerable to the purchaser for the quality.
    2. Where, therefore, the vendees alleged the existence of a contract with vendors that defined their rights and there was evidence from which the jury might have inferred an agreement on the part of the vendors to be answerable for the quality of a lot of coal they were to deliver, it was error to withhold evidence of this warranty from the jury.
    February 2d 1877.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ. Williams, J., absent.
    Error to the Court of Common Pleas, No. 3, of Philadelphia eounty : Of July Term 1875, Ño. 58.
    Assumpsit by the Philadelphia Coal Company against a firm, trading as E. C. & P. H. Warren, on a book account to recover the price of a cargo of coal.
    At the trial, it appeared that Spofford & Clark, the agents of the Coal Company, sold the coal to defendants and it was delivered at the wharf of the latter and partly placed upon some other coal lying thereon. The defence, chiefly, was that the coal delivered was not such as plaintiffs’ agents had agreed to furnish and that it was useless for the purposes of defendants.
    The plaintiffs offered in evidence the books of original entries of Spofford & Clark, which offer the court overruled because they were not the books of the company. Subsequently, in the course of the examination of Spofford, defendants offered in evidence a bill rendered to them which was taken from the books of Spofford & Clark, to show that they were general shippers of coal and not agents of the company.
    This bill it seemed was the only evidence in the case of the number of tons of coal sold and delivered to defendants. The defendants neither disputed nor admitted the correctness of the bill. The admission of this bill in evidence, to charge the defendants with the coal after the books of said agents had been ruled out, constituted the first assignment of error.
    To sustain an alleged warranty of the quality of the coal one of defendants testified as follows:—
    “ 1 had bought considerable coal from Spofford & Clark. I don’t think I bought this cargo. After I had bought all that I expected to buy Spofford came and asked me to relieve him by taking a cargo he had afloat. I inquired particularly of the quality of this coal. He assured me that it was of the same quality as I had been buying. I told him if so to put it on the wharf at f 4 per ton, but if it was not good coal I would not have it.”
    The defendants then offered to show, “that the coal sold by plaintiffs injured, hindered and delayed the defendants in the prosecution of their business and that they suffered loss and damage thereby “that the defendants use their coal for the purpose of raising steam at their paper mill; that the plaintiffs knew the purjeose for Avhich it Avas intended to be used; and that it was unfit for that purpose;” “ that a large portion of the coal on Avhich this coal Avas placed, was Philadelphia Coal Company’s coal, sold to the defendants by Spofford & Clark, and that this cargo was not as good.” These three offers Avere all rejected by the court, and the refusals to admit them constituted the third, fourth and fifth assignments of error.
    The deposition of G-. W. Montgomery, a coal dealer, Avas offered on behalf of defendants, wherein he stated in substance that the coal on Warren’s Avharf looked precisely like the coal he had received from Spofford & Clark, which Avas very bad and had to bo taken out of the cellars of parties to Avhom he had sold it. He saw the coal on the Avharf and examined it, and in his judgment it was the same coal. The coal he bought was purchased from the same parties and the bill of lading said it was shipped by the Philadelphia Coal Company.
    The court ruled out this deposition, which Avas the sixth assignment of error.
    On the cross-examination of Spofford, one of the agents, defendants proposed to ask him, “ Had not Mr. Warren, on several occasions and repeatedly, told you that if you did not send him good coal that he Avould not pay for it, and you must take it away ?” Avhich the court refused to allow, and this Avas the seventh assignment.
    The verdict was for the plaintiffs for $604.90.
    The defendants took this writ, and the assignments of error, inter alia,Avere those noted above.

      Harvey C. Wairen, for plaintiffs in error.
    — The defence belovv was not that the coal was comparatively bad, but that it was practically useless, and that its use Avould hinder and delay defendants’ business, and hence that plaintiffs ought not to recover.
    The offers in this direction should have been admitted at least to reduce plaintiffs’ claim. The evidence showed that there was a distinct contract that the coal should be of the same quality as that Avhich defendants previously bought, and Avhich had been satisfactory and fitted for their uses. Defendants’ uses were known to Spofford, and the offers in the 4th and 5th assignments were to shoAV that the coal Avas not fit for those purposes and not as good as that before delivered.

      George M. Dallas, for defendants in error.
    — The fact that the coal had been represented as being well adapted for the purpose of raising steam, and that by reason of its impure quality a larger quantity was required, Avould be insufficient to constitute a warranty: Whitaker v. Eastwick, 25 P. F. Smith 229.

      To constitute a warranty that the thing sold is fit for a special purpose, it must have been ordered of the manufacturer, and supplied and sold for that purpose. Where a special thing is ordered, even for a special purpose, no warranty arises ; nor from mere statements and assertions concerning what the article will do: 1 Pars. Cont. 587, and cases cited in notes; Weimer v. Clement, 1 Wright 149.
    The evidence was conflicting as to quality, and was all admitted. There was nothing in the case to make the especial comparison proposed by the 5th assignment a proper subject for the jury’s consideration. The offer (7th assignment) to show what had been said by one of the plaintiffs in error to the witness Spofford, about other coal, at other times, was equally objectionable, and was, it is submitted, rightly excluded.
   Mr. Justice Woodward

delivered the opinion of the court, March 30th 1877.

No rule is more firmly imbedded in our jurisprudence than that which governs the rights of vendors and purchasers in an ordinary contract of sale of personal property. In such a contract the vendor is subject to no implication of a warranty of the quality of tile article sold. The doctrine of the common law, as it was settled in Chandelor v. Lopus, Cro. Jac. 4, has been constantly and uniformly applied. In the language of Mr. Justice Duncan in Jackson v. Wetherill, 7 S. & R. 480, “ with regard to the goodness of wares purchased, the vendor is not bound to answer unless he expressly warrant them to be sound and good, or there has been a fraudulent representation — an affirmation of the quality known to the vendor to be false.” - Chief Justice Gibson and Mr. Justice Kennedy dissented even from the judgment in Borrekins v. Bevan, 3 Rawle 23, which decided that in all sales of goods a warranty was to be implied that the article delivered should correspond in specie with the commodity sold. That case introduced a distinction between quality and essential character which was a novelty at the time, but has since been generally maintained. In the dissenting opinion the Chief Justice said: “I prefer the rule of the common law to the modern approximations towards that of the civil law; not only because it is the rule of the common law, but because it seems to be more convenient and just. * * * The object of the rule is to encourage trade by preventing actions against all in-turn through whose hands the article has passed in a course of dealing. The doctrine of Borrekins v. Bevan has never been extended. The common-law rule has been enforced so lately as in the reported case of Whitaker v. Eastwick, 25 P. F. Smith 229, and in the case of Boyd v. Wilson (ante, p. 319), decided at the present term.

On the grounds thus stated, the court below was justified in rejecting the offers of the defendants specified in the third and fourth assignments of error. The purpose was to show, first, that the character of the coal shipped to. them injured their business, and secondly, that it was defective and not adapted for the uses to which it was designed to. be applied. The evidence was offered not in view of the special circumstances of the case as they were alleged to exist, but upon the assumption of a legal implication of a warranty arising from a single fact of the sale itself. Coal had previously been received from the plaintiffs. Under a general contract for a fresh supply, the defendants-would be required to accept from the plaintiffs the current product of their mines, and for that product the plaintiffs, acting in good faith and in the accustomed course of their business, would be entitled to be paid.

But there is more in this case than the questions raised by the third and fourth assignments. Nothing in the common-law rule on this subject stands in the way of a contract stipulation as to quality between a vendor and a purchaser. And it was insisted on the trial that such a stipulation had been entered into by these parties. When the offers specified in the fifth and seventh assignments were made, Parker IT. Warren had testified that Spofford, the agent of the plaintiffs, had asked him to take the cargo of coal, the price of which is the subject of this controversy. “ I inquired particularly,” the witness had said, “ of the quality of this coal. He assured me it was of the same quality I had been buying. I told him if so, to put it on the wharf at $4 per ton, but if it was not good coal I would not have it.” In view of this testimony, the defendants proposed “to show that this cargo of coal was placed on a large pile of coal, a great portion of which was Philadelphia Coal Company’s coal, sold to the defendants by the agent of the plaintiffs, and this cargo was not as good.” It was proposed also to ask Mr. Spofford, on cross-examination, this question: “Had not Mr. Warren on several occasions, and repeatedly, told you that if you did not send him good coal, he would not pay for it, and you must take it away ?” Both these offers of testimony were rejected. They ought to have been received. The defendants alleged the existence of a contract that defined their rights, and there was evidence from which the jury might have inferred an agreement on the part of the plaintiffs to be answerable for the quality of the coal they were to deliver. To constitute an express warranty no special form of words is requisite. The word warrant, though it is the one generally used, is not so technical that it may not be supplied by others. It is enough if the words used are not dubious or equivocal, and if it appears from the whole evidence that the affirmant intended to warrant, and did not express a mere matter of judgment or opinion: Jackson v. Wetherill, supra. A contract to deliver goods of a quality, as well as of a species, defined and fixed, is as capable of enforcement as any other contract.

So much of Mr. Montgomery’s deposition as contained a description founded on his personal knowledge of the coal. delivered to the defendants should have been admitted. The evidence that his own coal had been received from the plaintiffs was scarcely distinct enough to warrant a characterization of that of the defendants by a comparison of his with theirs. It does not appear clearly from the record how the transcript from the books of the agents of the plaintiffs became part of the evidence in the cause after the books themselves had been excluded. It was legitimately before the jury if, as the plaintiffs assert, it was produced and offered by the defendants. If there was error it can be avoided in a future .trial. The second assignment was withdrawn on the argument. The eighth assignment refers to a matter of mere detail, which for any purpose to be served hereafter it would be unprofitable to discuss.

Judgment reversed, and venire facias de novo awarded.


text:
    Appeal of Passyunk Building Association et al.

    1. A decree in equity to be supported by a prayer for general relief must be consistent with the case presented by the pleadings and the relief specifically sought.
    2. Where the accounts are all on one side and no discovery is sought equity will not entertain jurisdiction.
    February 5th 1877.
    Before Sharswood, Mercur, Gordon, Paxson and Woodward, JJ. Agnew, C. J., and Williams, J., absent.
    Appeal from a decree of the Court of Common Pleas, No. 4, of Philadelphia county: Of January Term 1876, No. 263. ' In Equity.
    This was a bill in equity, filed by Dennis Hamilton against the Passyunk Birilding Association and James P. McCloskey, which set forth that the building association was a body corporate, created by the Court of Common Pleas and having the powers of a building -and loan association, under the Act of April 12th 1859, Pamph. L. 544; that plaintiff has held ten shares in said association since 1868; that by article 7 of its by-laws each member is bound to pay one dollar per month to the treasurer, and that the plaintiff had thus paid in $620 ; that article 2 of the charter provides that stockholders having taken no loan, and wishing to withdraw from the association, shall be entitled to receive from the treasurer the amount of dues actually paid in by them, first deducting all fines and forfeitures and a portion of all losses incurred; “ and also, that stockholders wishing to withdraw shall give one month’s notice to the board of directors of such intentionthat plaintiff had taken no loan and gave such notice, yet no action has been taken thereon, and he has not been repaid the sum due him ; that said association has not met for six months, and its assets and books are in the possession and under the control of McCloskey, its president, who refuses to deliver the same, or apply said assets to the purposes of the association, and to disclose what said assets are; that said assets are sufficient to repay the plaintiff and other withdrawing parties, if any such there are.
    The prayer Ayas:—
    1. That an account be taken betAveen the defendant, James P. McCloskey, and said association, and he be decreed to pay to them what, if anything, shall be found due to them upon such account.
    2. That the said association be decreed to pay to the plaintiff the sum due to him as a Avithdrawing member, and that an account be taken betAveen said association and plaintiff for that purpose.
    3. Such other and further relief as shall seem meet.
    The ansAver of defendants, in substance, Ayas that the court had no jurisdiction of the subject-matter set forth in the bill, the claim of the plaintiff consisting of a single item, for Avhich he had an adequate remedy at laAV; that there are no funds in the treasury applicable to the demands of Avithdrawing stockholders; that plaintiff did not give notice of his Avish to AvithdraAv; that all the moneys of the association are in the hands of three borrowers, Avho severally gave their bonds and mortgages to repay the same, and who have refused’to pay their monthly dues and interest, and have conspired to defraud the association of the amounts due by them, and in pursuance of this combination had filed a bill in equity to have said mortgages cancelled, which had subsequently been discontinued; that the present suit is brought by the plaintiff acting in concert with these three borroAvers and others, Avith the intention of destroying the association and of defrauding the members thereof out of their just dues; that it is true the association had not met for six months, but this Avas OAving to the default of these conspiring parties and of the plaintiff in not attending the meetings; that said McCloskey has never refused to deliver up the assets, and no demand Avas made for the same, nor has he refused to apply the assets to the legal purposes of the association, &c.
    By the report of the master to Avhom the bill and ansAver Avere referred to take testimony and report, it appeared: That the association had, what the Avitnesses termed, a “ break-up,” in December 1872; that previous thereto a large number of persons gave notice of their intention to AvithdraAv, and that after their withdraAval and the amounts duo them Avere paid there remained in the hands of the treasurer about $2300, which Avere handed over to Mr. McCloskey. After the “break-up” several meetings were held, at Avhich sums amounting to $617.57 Avere received, and also paid to McCloskey, and that a Mr. Carney OAvned a house upon Avhich a mortgage was held by the association, the amount of AYhich, $775, Ayas paid over to McCloskey after the “break-up.”
    McCloskey himself testified before the master, that the plaintiff never gave notice to AvithdraAv; that he, McCloskey, never refused
      to disclose the amount of the assets; that the association was indebted to him; that he had nothing in his hands to pay these parties, and there were no funds in the treasury.
    The master reported that he was of opinion that sufficient evidence was produced for the purpose of tracing a large sum of money to the possession of McCloskey, from which he awarded plaintiff’s full claim, with interest from the date of his last payment to the association.
    The defendants filed a number of exceptions to this report, among which were the following: That such an account as was prayed for by the bill was not taken, nor stated by the master; that the master does not report that the required notice was given; that he erred in making a decree that McCloskey should pay the plaintiff’s claim, and not that the same should be paid by the association, it appearing to have sufficient assets; that the court had no jurisdiction, and could confer none upon the master, as plaintiff had his remedy at law.
    The court dismissed the exceptions, and made a decree that McCloskey should pay the $620, with interest, together with the fee of the master.
    From this decree this appeal was taken.

      Robert P. Dechert, for appellants.
    — Equity will not entertain jurisdiction where the plaintiff has an adequate remedy at law: Gloninger v. Hazard, 6 Wright 389; Butler v. Ardis, 2 McCord C. R. 71. Nor where the accounts are all on one side and no discovery is sought or required: Brightly’s Eq., sect. 125; Bank of U. S. v. Biddle, 2 Pars. 54; 1 Story’s Eq., sects. 458-9; Bispham’s Eq. 483. To sustain a bill for an account there must be mutual demands: Porter v. Spencer, 2 Johns. C. R. 169; Pearl v. Corporation of Nashville, 10 Yerger 179; Phillips v. Phillips, 9 Hare 471; Padwick v. Hurst, 18 Beav. 575.
    The decree of the court does not follow the prayer of the bill. It orders McCloskey to pay directly to plaintiff. The relief to be granted under a general prayer, must not only be consistent with the prayer for specific relief, but must be sustained by the case made by the bill: Thomas v. Ellmaker, 1 Pars. 98; Delaware & Hudson Canal Co. v. Penna. Coal Co., 9 Harris 131.
    The suit should be in the name of the corporation where there is a misapplication of the corporate funds by the officers of a company: Brightly s Eq. 534; Robinson v. Smith, 3 Paige 233. And if they refuse by collusion or otherwise, then it must appear that the relief sought by the suitor is in its nature beneficial to all concerned, or his bill will be dismissed: Hill v. Commissioners of Kensington, 1 Par’s. 501.

      Andrew J. Maloney, for appellee.
    — The plaintiff had no adequate remedy at law. The association had disbanded; there were no directors or officers in existence, and no proper process could be had against any one at law. McCloskey held the moneys, not as treasurer or other officer authorized by law, but arbitrarily became the custodian of them, and as such he was liable to account to plaintiff and others to whom the moneys belonged.
   Mr. Justice Woodward

delivered the opinion of the court, May 7th 1877.

In the condition of the Passyunk Building Association existing when this bill was filed, the necessity for a proceeding in equity to adjust and secure the rights of its members was manifest. ' Dissensions had grown up, arrears of monthly dues were increasing, and no meeting had been held during the preceding six months. Payments on account of loans they had obtained were refused by the debtors of the association, and its cash means were alleged to be wholly in the possession of James McCloskey, its president, and the individual defendant in this suit. The collusive neglect or refusal of the managers of a corporation to proceed against officers who have wasted or misapplied its funds, justifies the individual stockholders in filing a bill in their own names: Robinson v. Smith, 3 Paige 233. And if stockholders are so numerous as to make it impossible or very inconvenient to bring them all before the court, a part may file a bill in behalf of themselves and all others standing in the same situation: Langolf v. Seiberlitch, 2 Pars. 64. This bill was filed by the plaintiff alone, and not on behalf of other stockholders, and its special purpose was to recover the amount of the monthly payments ho had made. The prayer for relief, however, asked for an accouAt between McCloskey and the association, and the payment of any amount that should be found in McOloskey’s hands. Whether equity can be administered under the pleadings as they stand, or amendments may be required to introduce new parties and enlarge the prayer for relief, will be for the consideration of the Common Pleas after the record shall be remitted.

While the pleadings and the facts disclosed in the master’s report presented at least the frame of a case warranting the intervention of a court of equity, the decree was for the payment of a sum of money that could have been made the subject of a legal action. It was an entire departure from the theory on which the suit was based. The bill had asked, 1. That an account should be taken between McCloskey and the association, and that he should be decreed to pay what, if anything, should be found due on such account; 2. That the association should be decreed to pay to the plaintiff the sum due to him as a withdrawing member, and that an account should be taken between the association and the plaintiff for that purpose; and 3. “ Such other and further relief as should be deemed meet.” The terms of the decree required McCloskey to pay the plaintiff the sum of $620, with interest from the 9th of September 1873, and costs of suit. This was too divérgent from the case which the pleadings presented, as well as from the relief specifically-sought,to be supported under the prayer for general relief. “ The rule on this subject is, that although, where the prayer does not extend to embrace all the relief to which the plaintiff may at the hearing show a right, the deficient relief may be supplied under the general prayer; yet such relief must be consistent with that specifically prayed, as well as with the case made by the bill:” King, President, in Thomas v. Ellmaker, 1 Pars. 98.

If, individually and directly, McCloskey was liable to the plaintiff for the amount of this claim, the liability could have been enforced in an action at law. The claim involved no such question growing out of disputed accounts as would give a court of equity jurisdiction. “ It may be laid down as a general doctrine that in matters of account arising from privity of contract, courts of equity have a general jurisdiction where there are mutual accounts (and a fortiori, where those accounts are complicated); and also when the accounts are on one side only, but a discovery is sought, and is material to the relief. And, on the other hand, where the accounts are all on one side, but no discovery is sought or required, courts of equity will decline to take jurisdiction:” 1- Story’s Eq., §§ 458-9. So far as the claim of the plaintiff here was established by the decree, it consisted of a single cash item of $620 against the association. Discovery was neither sought nor required, nor, as the decree stands, could it have been material to the relief. It is a manifest perversion of the machinery of a court of equity to employ it for the production of such a result as this proceeding reached.

It was objected at the argument that the requisite notice by the plaintiff of his intention to withdra-sy from the association was not shown to have been given. The fact of notice was asserted in the bill and denied by the answer and by Mr. McCloskey’s testimony before the examiner. The master did not pass on the question. His decision was rested on the ground that “sufficient evidence was produced for the purpose of tracing a large sum of money to the possession of McCloskey.” The report was inadequate to meet the exigencies of the cause, and the question of notice, with the other questions presented, will go before a master hereafter to be appointed.

The decree is reversed, the master’s report set aside, and the record remitted for further proceedings.


author: Mr. Justice Sharswood

text:
    The American Steamship Company versus Bryan.
    1. An ocean steamship company is not responsible as a common carrier or an innkeeper for the baggage of a passenger which he keeps in his own possession in his state-room, but must answer in such cases for its negligence, like other bailees for hire.
    2. B., a passenger on the defendant’s steamship, had his baggage in his state-room, which was kept open, according to the custom of the vessel, for purposes of ventilation. The state-room opened into a passage way, which in turn opened into the cabin. A light was always kept burning, and a watchman on duty at night in the cabin. The duty of keeping watch was performed by the stewards and waiters of the vessel and was in addition to their daily duties. The watchman on duty was required by the rules to report every hour to the officer on the bridge. B.’s two valises were stolen from his room while he was asleep. It appeared that on the night in question the watchman, when reporting at the bridge, had stopped to get a cup of coffee; and that state-rooms on both sides of the cabin were robbed on the same night; there was slight evidence tending to show that the theft was committed by a passenger. In an action by B. against the company to recover the value of his baggage, the jury found a verdict for the plaintiff, subject to a reserved point as to whether there was any evidence of negligence. Judgment was entered below on the reserved point for the plaintiff: Held (Agnev, C. J., and Paxson, J., dissenting), that there was evidence to go to the jury of negligence.
    February 7th 1877.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ. Williams, J., absent.
    Error to the Court of Common Pleas, No. 3, of Philadelphia county : Of January Term 1877, No. 50.
    This action was brought by Walter H. Bryan against the American Steamship Company, to recover the value of certain personal effects alleged to have been stolen from his state-room while a passenger on one of the defendant’s vessels.
    At the trial before Lynd, J., these facts appeared: The plaintiff occupied, by himself, a state-room opening upon a passage-way or alcove, which, in turn, opened into the cabin. He had never had a key to his room, and it was customary, for purposes of ventilation, to leave the state-room doors open at night. He would have been furnished with a key if he had asked for one. A light was always kept burning in the cabin, and a watchman was always on duty there at night. This was the rule of the ship, and was in accordance with the Act of Congress of February 28th 1871 (Rev. Stats., § 4477). The duty of keeping watch in the cabin was performed by the stewards and waiters on the vessel, and was in addition to their regular daily duties. Besides this, the officers of the vessel were in the habit of visiting the cabin to see that the watchmen attended to their duties. One of the rules of the vessel required that the watchman on duty should report every hour during his watch to the officer on the bridge. On the night in question the watchman, who was one of the stewards, while making one of his hourly reports to the officer on the bridge, stopped at the cook’s galley to get a cup of coffee. The property stolen consisted of wearing apparel, &c., contained in two valises, and was taken from the plaintiff’s state-room while he was asleep. It appeared that three other state-rooms were robbed on the same night, and that two of these were on the opposite side of the vessel from the plaintiff’s state-room. It did not appear clearly who committed the robbery, though there was evidence that one of the passengers, named Sprungli, who appeared to be a professional thief, and who had occupied a state-room across the alcove from the plaintiff’s, was arrested on suspicion, but was, after three months’ confinement, discharged for want of evidence to connect him with this transaction.
    The court refused to charge as requested by the defendant (though substantially affirming the same principles in the general charge).
    1. “That no liability as carriers exists on the part of the defendant for baggage of a passenger not delivered into the custody of the defendant,” and 2, that “as to articles of baggage retained by the passenger in his own custody and under his control, no liability exists for their loss or theft, without wilful negligence on the part of the carrierand charged as follows:—
    * * * “I instruct you, that as to ordinary wearing apparel and ornaments of dress required for daily use, which the passenger takes into his own state-room, the company does owe the duty of protection to the extent of ordinary care against loss by theft. The plaintiff contends that the thief was one who had access to the saloon, and that if it had been lighted and guarded properly it could not have happened.
    “ The defendant contends that it was done by a passenger named Sprungli, who had the room on the opposite side of the passageway to the plaintiff.
    “You must ascertain how this theft was perpetrated, for on this depends the question of negligence.
    “ The negligence set up by the plaintiff was, that ordinary care and caution were not used in lighting and guarding the saloon, and that from the fact that 'state-rooms upon opposite sides of the saloon were robbed, the theft must have been committed by some one who was allowed to roam at will in the saloon.
    “ The duty was that of ordinary care and caution. If the lighting and watching of the saloon was such as an ordinarily prudent person would have adopted, then there was no negligence.
    “ If you find, however, that the robbery was committed by this man Sprungli, who had only to step out of his own door across the alcove into the room opposite, you may then find that no care or caution on the part of the steamship company could have prevented it. If Sprungli stole it, and it could not have been prevented by any ordinary care on the part of the defendant, then your verdict should be for the defendant.”
    The question as to whether there was any evidence to charge the defendant with negligence was reserved for the court in banc. There was a verdict for the plaintiff in $586.71. Judgment was after-wards entered on the reserved point for the plaintiff, whereupon the defendant took this writ of error, assigning for error the refusal of the defendant’s points, as given above, and the entry of judgment for the plaintiff on the reserved point.

      Morton P. Henry, for the plaintiff in error.

      P. P. White, for the defendant in error.
   Mr. Justice Sharswood

delivered the opinion of the court, March 5th 1877.

The learned judge below substantially affirmed the points made by the plaintiffs in error — that they were not responsible as common carriers or innkeepers, but that they must answer for negligence as other bailees for hire. To this ruling certainly the plaintiffs could take no just exception. He left the case to the jury, reserving the question whether there was any evidence of negligence. The jury found that there was negligence, and the court in banc — after the death of the learned judge before whom the cause had been tried — entered judgment upon the verdict.

Were there any facts in evidence tending to show want of ordinary care which, in the judgment of any reasonable person, might be so considered ? The question is not whether the court considers the facts to amount to negligence — what they would have decided sitting as jurymen — for that would entirely usurp ^he province of the jury. Whether there is any evidence is for the court; whether and to what extent the witnesses are to be believed, and whether the circumstances are sufficient to satisfy the mind in finding the fact in issue, is for the jury.

The jury in this case might very well conclude that the theft had been perpetrated by an employee of the company. Valises are not articles which can easily be secreted by a passenger, or thrown overboard after they have been rifled, without observation. It may very easily bo accomplished by a servant on board acquainted with all the holes and corners of the vessel. The baggage of the passengers is taken on to the wharf immediately on- arrival, and is open and subject to inspection. The servants remain on board, and can watch their opportunity to slip such things ashore or throw them overboard. One of the passengers on this occasion was suspected, arrested and detained a considerable time and then discharged, as no evidence could be produced against him.

A watch was kept during the night in the saloon; but was it of such a character as to amount to the ordinary diligence which the company owed to their passengers ? This surely was a question for the jury. It was not a watchman, who by taking his natural rest during the day might be expected to be watchful at night. The stewards or waiters on board took their turns at this duty. As the means of securing their vigilance, they were required every hour to report to the officer on deck, and of course for this purpose had to leave their post. They might be expected to take some time to do this, to loiter on their way, to stop and have a few words with the officer about the weather and the speed of the vessel — and on the morning the larceny was committed it appeared that the steward ,on watch had stopped on his way at the cook’s galley and drunk a hup of coffee. There was ample time in the interval, as the fact showed, for some one to enter the state rooms of the defendant and other passengers and carry off several valises. Was this ordinary and proper diligence? Could not some other mode have been adopted of watching the watchman, than this which might leave the saloon entirely unguarded at considerable intervals ? In many of our public institutions a very simple electrical machine registers the rounds of the watchman during the night at the appointed times. We do not say that every passenger ship should have and use such a register, but we do say it was for 'the jury to determine whether this apparent deficiency in the mode of watching the saloon might not have been remedied. Even as a precaution against fire they might well argue that the continuity of the watch was essential. A fire might begin from accident or carelessness in one of the state-rooms, and. make such headway in five minutes before discovered that the ship would be imperilled. On the whole we are of opinion that there was evidence to go to the jury, and that the court committed no error in entering judgment in favor of the plaintiff below on the reserved point.

Judgment affirmed.

Paxson, J., filed a dissenting opinion, in which Agnew, C. J., concurred.


author: Mr. Justice Mercur

text:
    Seyfert versus Bean.
    1. Where an agent, without disclosing his principal, executes a lease of a house in his own name, the tenant holds under the agent; and it makes no difference that the agent in signing the lease wrote the word “ agent” after his signature.
    2. In an action to recover damages for a wrongful eviction from real estate occupied by the tenant as a school, and for a wrongful distress and sale of goods found on the premises, in order to prove the amount of the damages, evidence was admitted of the number of teachers and pupils in the school, and of its condition, and of the sums paid by the plaintiff m advertising the school, and the bills for the goods wrongfully distrained and sold were admitted in evidence : Held, that all of this evidence was admissible.
    3. In an action by B. against S. for wrongful eviction from real estate, it appeared that S., two months after he had gone into possession, began proceedings before an alderman under the landlord and tenant Act of 7th April 1825 to recover possession, and the transcript of these proceedings was put in evidence ; the transcript showed that no judgment had been entered, but that counsel had appeared for B. and relinquished possession of the property: Held, that evidence was admissible to show what really occurred before the alderman and that such evidence did not contradict any finding of the alderman: Held, that evidence was admissible to show that B.’s counsel had'no authority from her to relinquish her possession of the property.
    February 7th 1877.
    Before Agnew, C. J., Siiarsavood, Mercur, Gordon, Paxson and Woodavard, JJ. Williams, J., absent.
    Error to the Court of Common Pleas, No. 1, of Philadelphia county: Of July Term 1876, No. 106.
    This Avas an action of trespass on the ease by Fannie Bean against William M. Seyfert. The narr. contained counts for an eviction and for trespass de honis asportatis. Pleas, not guilty. The facts were these:—
    Boileau & Sankey leased a dwelling-house in Philadelphia to the plaintiff for a boarding school, for one year from September 1st 1870, at a rental of $3000, payable quarterly in advance. The lease was in their name throughout, except that the word “agents” Avas added to their signature to the lease. On December 1st 1870, tAvo quarters’ rent Avas due, and on December 31st, Seyfert, who owned the property and AYho had employed Boileau & Sankey as his agents, gave to a constable a warrant of distress for arrears of rent. A distress was made on the same day under this warrant in Seyfert’s name, and a watchman left in charge. When the distress Avas made the house was temporarily vacant, the plaintiff having moved aAYay while some repairs, made necessary by a slight fire, were being made. There Avas evidence tending to prove that plaintiff’s sister Avent to the house after the levy, and obtained an entrance Avith great difficulty; that after-wards the plaintiff was not alloAYed the use of a room in the house in which to receive her pupils, but had been obliged to receive them on the sideAvalk before the house; that Seyfert had told her she should not go back to the house, because the carpenters were making repairs, and he Avished to occupy it himself; that Sankey told the plaintiff that Seyfert wanted the house for his OAvn use; that he could collect the rent up to March 1st, and keep her out of the house too; that he would release the goods if she would pay the rent up to March 1st, but that she must move away from the house at once; that Sankey had the gas turned off and the house locked, and refused to give the plaintiff the key. There was, however, .evidence on the part of the defence which conflicted with this. The goods were removed to an auction store by the constable, at the plaintiff’s request, and there sold at auction, and the net proceeds of the sale, amounting to $1253.26, were retained by Seyfert.
    On February 23d 1871, proceedings under the Landlord and Tenant Act of 1825 were begun by Seyfert against the plaintiff.
    A transcript of these proceedings was put in evidence at the trial; it showed that no judgment had been entered, but that David Paul Brown had appeared at the hearing on March 1st 1871, as attorney for Miss Bean, and desired to place upon the alderman’s record the full relinquishment of the premises.
    On the question of damages, the plaintiff testified as to the number of pupils in the school and the number of teachers employed by her, also as to the amount expended by her in advertising her school, and put in evidence the bills for the purchase of the property distrained by the defendant. This evidence Avas objected to on behalf of the defendant, and its admission constituted the first three assignments of error.
    As to the transcript of the proceedings under the Act of 1825, Avhieh Avas placed in evidence by the defendant, one DeHaven testified, on behalf of the plaintiff, in rebuttal, as follows: “At 8 A. M. I went Avith Mr. BroAvn to the alderman’s office. Mr. Brown asked Mr. Sankey if he had not the key, and whether he was not in possession. He admitted he Avas. Mr. Plankinton said there was no case, and we left. Mr. Brown had no key, and made no delivery. I heard nothing of the sort as is placed on the record.”
    The plaintiff further testified that she had never authorized Mr. Brown to relinquish possession of the property for her before the alderman, and that she had never known of his having clone so till a year after.
    The admission of all this evidence Avas objected to by the defendant, and formed the subject of the remaining assignments of error.
    The jury found a verdict for the plaintiff in $9422, on Avhieh all over $5128 Avas afterAvarcls remittee! by the plaintiff. After judgment for this latter amount, the defendant took this writ of error. The assignments of error Avere all to the admission of evidence as shoAvn above.

      T. F. Jenkins and Benjamin H. Brewster, for the plaintiff in error.

      R. P. White, for the defendant in error.
   Mr. Justice Mercur

delivered the opinion of the court, May 7th 1877.

This was an action of trespass. The defendant in error leased a house from Boileau & Sankey. By the terms of the lease it was to be occupied as a young ladies’ private school only. She so occupied it. In this suit she claims to recover damages for an eviction from the house, and for the removal and conversion of her goods by the plaintiff in error.

All the assignments of error are to the admission of evidence. No objection is made to the charge of the court, nor to the sufficiency of the evidence to justify the verdict.

The first three assignments relate to the pertinency of the evidence to show damage.

The defendant in error had expended large sums of money in the purchase of furniture, books, charts, school apparatus and scientific instruments, and in advertising her business. Her school was prosperous, and constantly increasing. The bills, showing the cost of the goods she purchased, were some evidence of their value; but there was other evidence given of their aggregate value. The number of teachers employed, and the number of pupils in attendance, were important facts in showing the facilities afforded for instruction and the extent of its patronage. We cannot say that any of these expenditures were unnecessary in establishing and maintaining a first-class school.

Many of the articles had a value, when used in connection with her school, much greater than after they were removed therefrom. The deprivation of the possession of the house and of the goods broke up her school and destroyed her business. She was thereby not only deprived of all profit on the investment she had made, and the good-will she had acquired, but also of the entire capital itself.

The remaining assignments may be considered together. The evidence did not contradict any finding of the alderman. The transcript of his docket, given in evidence, does not show that he made any decision. He found no facts. He entered no judgment. The transcript merely shows that the counsel for the defendant desired to have placed on the record a relinquishment of the premises to the plaintiff. This being done, it shows no further proceedings by the alderman. The case was then suspended. No further action was taken. The time, however, when these proceedings were had before the alderman makes them of no importance. It was on the first day of March. She had been out of possession more than two months. He, as owner of the premises, and in denial of her right of possession, had withheld it from her during all that time. Her relinquishment of the premises or of her right thereto, after she had been excluded from the enjoyment thereof for so long a time, was no bar to a recovery of the damages she had previously sustained.

The right of a landlord to distrain for rent, which, by the agreement of the parties, is payable in advance, must be conceded, and also the right to impound the goods on the premises for a reasonable time. But neither of those rights rules this case. The defendant made no contract with the plaintiff. She leased the house of Boileau & Sankey. They let the premises to her. By the terms of the lease the relation of landlord and tenant was exclusively between them. In the body of the lease Boileau & Sankey are described as the sole lessors. It is true, at the foot they sign it as agents.”

Agents for whom ? The lease is silent. As is clearly shown in Holt v. Martin, 1 P. F. Smith 499, in regard to a lease executed in a similar manner, the defendant did not thereby become the tenant of an unknown landlord.

The declaration of Brown having been given in evidence to show that he relinquished her possession of the premises at the time and in the manner stated, we see no error'in permitting her to 'show that he had no such authority. It was clearly admissible for her to show that she had no knowledge of what he had professed to do until a year thereafter. Judgment affirmed.


text:
    Leeds versus Commonwealth.
    1. A subsequent fraudulent sale by an assignee has no bearing upon the question of the delivery of the assignment.
    2. On a scire facias upon a recognisance of a sheriff for the non-execution of a writ of fieri facias the sheriff pleaded that the day before the execution was placed in his hands the defendant in the execution had made a general assignment. Plaintiff replied that the assignment was not delivered before the day the sheriff received the writ and that it was void because made with the intention to defraud creditors. At the trial to show the alleged fraud evidence was admitted as to the manner in which a sale of the assignee was conducted. Held, that this evidence was admissible on the question of fraud, but it had no bearing upon the question of the delivery of the deed and its admission for that purpose was erroneous.
    3. Evidence which has any bearing on the question at issue is competent and the order in which it may be given is in the discretion of the court.
    February 8th 1877.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ. Williams, J., absent.
    Error to the Court of Common Pleas, No. 3, of Philadelphia county: Of January Term 1876, No. 171.
    This was a scire facias issued by the Commonwealth to the use of William E‘. Peet, upon the official recognisance of William R. Leeds, late sheriff, and his sureties.
    Peet obtained a judgment against Joseph Lauferty & Son, at Nisi Prius, for $1993.30, on the -23d of September 1871, and on the same day issued a fi. fa. thereon, which was placed in the hands of the sheriff on the morning of that day. The plaintiff averred that although there were sufficient goods on the premises of Lauferty & Son to satisfy the judgment, the sheriff had refused to levy thereon, and had made a return of ‘nulla Iona to the writ.
    The defendants pleaded, that on the 22d of September 1871, Lauferty & Son had executed and delivered a deed of general assignment to Levi S. Gans for the benefit of creditors, which was an act of bankruptcy, and that subsequently, upon petition of certain creditors, the said firm were declared bankrupts, and that by reason of this assignment and the said proceedings in bankruptcy, the Laufertys Avere divested of all title to the goods on the day the execution issued.
    The plaintiff replied that the Laufertys had not executed and delivered a deed or made a transfer of their goods Avhen the execution issued, and that said assignment when made was executed Avith the intent to hinder and defraud creditors and to prevent the plaintiff from -recovering the amount of his judgment out of the goods of the firm.
    These replications Avere traversed by defendant, and issue joined.
    At the trial, the fi. fa. having been given in evidence, it Avas admitted by the defendants that the goods in the store of the Laufertys were sufficient to cover and pay the money endorsed on said writ.
    The defendants then offered evidence of the execution and delivery of the deed of assignment, in substance as folloAvs: that the deed was purposely prepared by the Laufertys on the day before Peet was to get his judgment, and Avas by them delivered to their attorney, Mr. Juvenal, to be by him given to Levi S. Gans, the assignee. The deed Avas acknowledged before an alderman, and Avas then delivered to Mr. Brown, in the office of Mr. Juvenal, to be handed to Mr. Gans, who called at the office of Mr. Juvenal on the 22d of September 1871, when Mr. Brown wrote out the acceptance of the assignment, and Mr. Gans signed it and took the paper Avith him. The deed Avas recorded on the 17th of October 1871.
    In rebuttal, A. M. Burton, Esq., the counsel of Peet, testified that he went to the office of Mr. Juvenal on the 26th of September, and saw the deed of assignment, and that the signature of Mr. Gans Avas not attached thereto. Tavo other Avitnesses also testified that they had called on Mr. Gans on or after the 23d of September, to one of whom he said he had concluded to accept the deed, and to the other that he had not accepted it.
    It appeared that the assignee, Gans, took possession of the stock of goods in the store, filed an inventory thereof October 11th 1871, and sold the same at public auction on the 1st of November folloAATing. Subsequently to these proceedings some of the creditors of Lauferty & Son had them declared bankrupts, the cause of the bankruptcy alleged in the petition being the making of the general assignment on the 22d of September.
    On the trial the assignee in bankruptcy was offered by the plaintiff to prove the fraudulent acts .of Gans and the Laufertys; to show what was done by Gans at the assignee’s sale; that the goods were sacrificed; that the stock was sold in large lots, so that it Avould ■ not bring good prices; that goods Avere knocked down to a party who was buying them in for one of the Laufertys, &c.
    The defendants objected to any evidence “ as to the price at Avhich the goods were sold at the sale by the assignee, on the 1st of November, or as to the supposed value of the goods in the store, or as to anything that occurred at the sale on that date, inasmuch as it has been admitted, and has been so noted, that the goods at the store at the date of the assignment ay ere of sufficient amount .and value' to cover and pay the moneys endorsed upon the execution, and no misconduct by the assignee or his agents after the date, execution and delivery of the assignment, can be given in evidence to invalidate a general assignment duly executed and delivered.”
    The court, Ludlow, P. J., overruled the objection and admitted the evidence, and defendants took an exception.
    The court in the charge to the jury, inter alia, said:—
    “ Of course, if no assignment AYas made; if the paper, although having been written in form as an assignment, was never delivered, the title to the goods never passed out of the Laufertys, then the sheriff of the county AA'Ould be responsible for not having levied upon them.
    [“ For just at this point I may say, that the proceedings in bankruptcy, as in evidence, can in no Ayay affect the present case. I instruct you, therefore, as a matter of law,- that the adjudication in bankruptcy relating back for any purpose, to Avhatever day you please, can have' no effect upon the responsibility of the sheriff in this case. So that you Avill discharge the matter of the bankruptcy proceedings in the United States court altogether from your mind.]
    [“Well, then, the plaintiff goes a step further and introduces other evidence of the transactions attending the sale itself, as bearing upon the question of fact, and the Avhole transaction generally. It is contended that the sale was a mere fraudulent sale; that there were few bidders; that prices were small; that the goods sold in a lump, and that they Avere bought in by a man named SaAvyer, for Emanuel Lauferty, the son. This evidence, again, is rebutted by the testimony, for the sheriff, of Mr. Freeman, as to the bona fides of the sale; as to there being a proper offer made of the goods, and that the sale had been previously advertised by handbills and otherAvise; proving that it Avas well attended and a fair one.
    “Mark especially that that testimony will bear upon this case on the question of the execution and delivery of this assignment, or a delivery purporting to have been made.”]

      The verdict was for the plaintiff; for the Commonwealth, $80,000, amount named in the recognisance; for Peet, $2433.94.
    The defendants took this writ, and assigned fox' error, 1, the admission of the evidence of plaintiff, noted in exception above; 2 and 3, the portions of the charge in brackets.

      George Junlcin and Charles Gilpin, for plaintiffs in error.
    — No misconduct by the assignee or his agents after the date, execution and delivery of the general assignment could be given in evidence to invalidate the general assignment .duly executed and delivered. It was clearly erroneous to charge the jury that this testimony had a bearing upon the question of the execution and delivery of the assignment.
    It might throw some light upon the allegation of fraudulent intent on the part of the assignors, but it is difficult to conceive what bearing it had on the question of actual delivery.
    The execution, acknowledgment and recording of the deed were conclusive evidence of the delivery: Kille v. Ege, 29 P. F. Smith 15; Heeter v. Glasgow, Id. 79.
    A voluntary assignment for the benefit of creditors is an act of bankruptcy eo instante, when the deed is executed; and this deed was executed one day before the fi. fa. issued; and the title of the assignee in bankruptcy related back, to that day.

      Frank P. Prichard and Richard P. White, for defendant in error.
    — The issue raised being as to the bona fides of the assignment, it was competent for the plaintiff to give evidence of all the circumstances attending its execution and the acts of the assignee, at whatever time made or done, which tend to prove fraud: Helfrich v. Stem, 5 Harris 143, 151.
    The fact that at the assignee’s sale the goods were sold in large quantities, at one-third their value, to a son of one of the assignors, was an important link in the chain of evidence, and plaintiff had the right to give evidence of it to support his theory of the case: Stafford v. Henry, 1 P. F. Smith 514; Thompson v. Franks, 1 Wright 327; Rodgers v. Stophel, 8 Casey 111.
    The title of the assignee in. bankruptcy did not relate back to the act of bankruptcy, but to the date of the proceedings in bankruptcy ; and if before the filing of a petition therein a creditor has acquired a lien, it is valid as against the assignee: Maris v. Duron, 1 Brewst. 428.
    The question of delivery of a deed is always one of intention, and in the present case was directly dependent upon the proof of the bona fides or mala fides of the parties to it.
    The question being one of fraud, all the acts of the assignor and assignee were proper matters of evidence, and had a direct bearing on the question of delivery: Powers v. Russell, 13 Pick. 69; Dayton v. Newman, 7 Harris 194.
   Mr. Justice Sharswood

delivered the opinion of the court, February 19th 1877.

There were substantially only two issues of fact before the jury. First, whether the general assignment by the Laufertys to Gans, dated September 22d 1871, was delivered on that day; and, second, whether it ivas intended to hinder, delay and defraud Peet, a creditor of the Laufertys. No point was made below, nor has any assignment of error been filed which raises the question whether there was sufficient evidence of actual fraud to submit to the jury. We must assume that there was. If so, we see no error in the admission by the learned judge as to the manner in which the sale by the assignee was conducted, the prices brought, and that the goods were bid in for a son of one of the assignors. It certainly had a direct bearing on the question of fraud, though it might be insufficient of itself to prove it. If no subsequent or further evidence was given on this point, the judge should have been asked so to charge. No man can be required to prove his case uno flatu. He must proceed . by steps, and especially is this true in questions of fraud. Whether he begins at one end or the other, or jumps at once in medias res, is a mere question of order on which we never reverse. If, therefore, the evidence offered had any bearing upon the question of fraud, it would have been error to have excluded it. The court could not be called upon to say, at that stage of the trial, whether, standing by itself without any further evidence, it was sufficient to go to the jury. Nor do we find any error in that part of the charge complained of in the second. specification. The subsequent proceedings in bankruptcy had no relevancy to the issue before the jury. They neither tended to prove that the deed was delivered on the day of its date, nor that it was not in fraud of creditors. But in that part of the charge which forms the subject of the third specification we think there was material error. The fraudulent sale by the assignee had no bearing upon the bare question of the delivery of the assignment. The sale went to show that it had been delivered at some time, which, however, was not denied, but that it had not been delivered before Beet’s execution was placed in the hands of the sheriff. Surely the fraud or irregularities in conducting the sale threw no light whatever properly upon that question ; yet the learned judge instructed the jury to “mark especially” that it did so bear, though he did not explain how or why. We think this instruction was calculated to mislead the jury, and the third assignment of error is therefore sustained.

Judgment reversed, and venire facias de novo awarded; ■


author: Mr. Justice Paxson

text:
    Commonwealth ex rel. Clowes et al. versus Dickinson.
    An Act of Assembly directed the chief commissioner of highways to open Volkmar street in the city of Philadelphia. An alternative mandamus issued from the court below to compel the commissioner to open said street in conformity with said act. He made return that there was no such street as Yolk-mar street. The relators demurred on the ground that said return contradicted the statute. The court entered judgment for the respondent on the demurrer : Held, not to be error.
    February 8th 1877.
    Before Asnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ. Williams, J., absent.
    Error to the Court of Common Pleas, No. 3, of Philadelphia county: Of January Term 1875, No. 178.
    This was a proceeding by the Commonwealth, at the relation of Archibald W. Clowes and others, for a mandamus to compel Mahlon H. Dickinson, the commissioner of highways in the city of Philadelphia, to open Yolkmar street.
    The General Assembly passed the following act in relation to said street:—
    “ An Act to authorize the laying out, opening and laying of water-pipes in Yolkmar street, in the city of Philadelphia.
    “ Sect. 1. Be it enacted by the senate and house of representatives of the Commonwealth of Pennsylvania in General Assembly met, and it is hereby enacted by the authority of the same,
    “That Yolkmar street, in the city of Philadelphia, is hereby laid out as a public highway from Hanover street to Palmer street, of the same width as the same is now opened on the east side of Hanover street; within sixty days from the passage hereof the same shall be opened for public use by the chief commissioner of highways of the city of Philadelphia, and it shall be the duty of the chief engineer of the water department of said city, within thirty days after the said Yolkmar street shall be opened, as is provided by this act, to lay water-pipe in said highway or street between the points named; any owner or resident on said street shall have the right to file a petition in the Court of Common Pleas to secure obedience to this act by the officers herein named.”
    This act was approved March 20th 1873 (Pamph. L. 330). Under it water and gas-pipes were laid, and the chief commissioner of highways was requested to proceed with the opening. He refused.
    A petition ivas filed which, after a reference to the provisions of the foregoing act, set forth that the petitioners are severally owners of property on said Yolkmar street, and that said Dickinson .is chief commissioner of highways; that as such officer he ivas requested to proceed in the performance of the duty imposed on him by said act, and that he has refused to open said street, as directed, and they, therefore, prayed that he be commanded “to open for public use Volkmar street, as laid out, from Hanover street to Palmer street, as directed by said act.”
    An alternative mandamus issued, and the defendant, inter alia, returned, “that he is advised, and therefore avers, that the Act of Assembly referred to in the petition is incapable of being carried into execution by him, for the reason that there is no street in the city of Philadelphia-of the name of Volkmar street between Hanover and Palmer streets, or anywhere else, so far as the respondent is informed or believes.”
    To this return the relators demurred on the ground that it was insufficient,- “in that it contradicts the statute as to the existence of Volkmar street.”
    The court entered judgment for the defendant on the demurrer, which was the error assigned.

      David W. Sellers and John Roberts, for relators.

      Robert JST. Willson and Charles S. T. Collis, for respondent.
   Mr. Justice Paxson

delivered the opinion of the court, March 28th 1877.

. The Act of March 20th 1873 (Pamp. L. 330), directs the chief commissioner of highways of the city of Philadelphia to open Volkmar street, from Hanover street to Palmer street, within sixty days from the passage of said act. An alternative mandamus was issued by the court below,. directed to the defendant, for the purpose of compelling him to open said street in conformity to the said Act of Assembly. To this writ the defendant made return that “ he is advised and therefore avers that the Act of Assembly which is referred to therein is incapable of being carried into execution by him, for the reason that there is no street in the city of Philadelphia of the name of Volkmar street, between Hanover and Palmer streets, or anywhere else, so far as this respondent is informed or believes.” To this return the relator demurred. The'court below entered judgment for the defendant upon the demurrer, which ruling is assigned for error.

It was contended that the return is evasive, and contradicts the Act of Assembly; that in point of fact there was a private way known as Volkmar street, which has been used as a highway for some time, and that it was to this the Act of Assembly was intended to apply: All this, however, is outside of the record. Nothing of the kind appears in the Act of Assembly, or in the petition of the relator. Had such fact been set forth in the petition, there would have been more ground for the assertion that the return was evasive. In such case it might have been the duty of the defendant to deny the existence of a way known as Volkmar street. As it stands the denial of the defendant is as broad as the allegation of the petition. But it is said the answer contradicts the Act of Assembly; that as the latter has declared such a street to exist, nothing can be received to gainsay it; in other words, that such a street exists as a matter of law. But if it does not exist as a matter of fact, how is the defendant to open it ? The act does not require him to lay out a new street where none existed before. We must apply the ordinary rules of pleading to this case. The demurrer admits the truth of the return. It was competent for the relator to have taken issue upon the return, and to have had this question of fact determined in the usual way. As he has not done so, he is concluded by the return, and the court below committed no error in entering judgment for the defendant upon the demurrer.

Judgment affirmed.

Chief Justice Agnew filed a dissenting opinion.


author: Mr. Justice Mercur,

text:
    Bonnaffon, Garnishee of Broomall, versus Thompson.
    In an attachment in execution a general verdict for the plaintiff and against the garnishee for a specific sum of money is had, and a judgment thereon is erroneous.
    February 9th 1877.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ. Williams, J., absent.
    Error to the Court of Common Pleas, No. 4, of Philadelphia county : Of January Term 1875, No. 217.
    The case was this: Thomas Thompson and others obtained a judgment against Eli M. Broomall, and issued an attachment in execution, upon which A. L. Bonnaffon was summoned as garnishee; the defendant was not served. The garnishee pleaded nulla Iona, and upon a trial of the issue raised by this plea, the jury found a general verdict for the plaintiff in $648.18, without stating that the garnishee had money or effects of the defendant in his possession. It did not appear that any objection was made in the court below to the form of the verdict. Judgment was entered on the verdict, and the garnishee brought this writ of error, assigning for error that the jury did not find what money or effects of the defendant were in the garnishee’s hands, but found a general verdict for a sum of money, and that judgment was entered on this verdict.

      Thomas J. Diehl, for the plaintiff in error.
    — Under the Acts of 16th June 1836 (Pamph. L. 767), and of 13th June 1836, § 58 (Pamph. L. 582), the jury should have found what goods or effects, if any, were in tlie hands of the garnishee, and the value thereof: Layman v. Bean, 6 Whart. 184; Hampton v. Matthews, 2 Harris 106; Poor v. Colburn, 7 P. F. Smith 415; Bouslough v. Bouslough, 18 Id. 495.

      W. H. Staake, George W. Thorn and E. S. Miller, for the defendants in error.
    — No objection was made to the form of the verdict below, therefore this court will not reverse the judgment: In the matter of Church street, 4 P. F. Smith 353. If the objection had been made at the proper time the plaintiffs might have answered it.
    An attachment in execution differs from a foreign attachment; in the latter any property may be attached; in the former, except in cases of goods pawned, &c., the attachment is confined to a debt due the defendant or a deposit of money made by him. There is, therefore, a strong presumption that the property levied upon consists in a debt. Even if that presumption be not true in any case, the garnishee may protect himself by producing the goods to the sheriff.
    As to the cases cited by the plaintiff in error: Hampton v. Matthews was .a foreign attachment. In Poor v. Colburn there was not a verdict for a definitive sum, as in the case at bar; so, too, in Bouslough v. Bouslough, which contains nothing but a dictum bearing upon this case. In Layman v. Bean there was a judgment by default, and an execution thereon against the garnishee personally. There had been no verdict, and all that was- said respecting the form of the verdict was merely a statement of the words of the statute. Moreover, the question was raised in the court below.
    The judgment is directly supported by Flanagin v. Wetherill, 5 Whart. 280, where it was held, that though the verdict was not correct in form, this could be amended, and the court could have moulded the verdict after it was given. This case has never been in terms overruled, but on the contrary has been cited with approbation.. We ask that it may be affirmed.
   Mr. Justice Mercur,

delivered the opinion of the court, May 7th 1877.

This is a case of attachment execution. The 35th section of the Act of June 16th 1836, Purd. Dig. 639, pl. 32, declares that a clause in the nature of a scire facias against at garnishee in a foreign attachment, shall be inserted in the writ of attachment, requiring such debtor, depositary, or bailee to appear and show cause why the judgment shall not be levied of the effects of the defendant in his hands.

In form, then, a writ of attachment execution is like the writ of scire facias, which issues on a judgment obtained in foreign attachment. With the exception that the former binds no property until served, its force and effect are substantially the same as the latter. The mode of procedure is the same in each. The 58th section of the Act of June 13th 1836, Purd. Dig. 720, pl. 19, declares, “If issue be taken and a trial be had upon any scire facias as aforesaid, the jury shall find what goods or effects, if any, were in the hands of the garnishee at the time the attachment was executed as aforesaid,* or afterwards, and also the value thereof.” On a judgment thus obtained the execution is not, in the first instance, against the garnishee as for his proper debt, but it is twofold; first, to be levied of the goods or effects so found in his hands, or so much thereof as may satisfy the plaintiff’s demand; and secondly, against him as of his proper debt, if he refuses to produce the goods and effects : Bean, 6 Whart. 181; Hampton et al. v. Matthews et al., 2 Harris 105.

The plea in this case was nulla bona. That was the issue tried. The verdict returned was not responsive to the issue. It is a verdict for a specific sum of money. It palpably disregards the explicit requirements of the statute. If the record showed the property in the hands of the garnishee was in money, as in Flanagin v. Wetherill et al., 5 Whart. 280, the judgment would do no injury to the plaintiff in error. As it might have been amended, in that case, by the court below, we would not disturb the judgment. But no such fact is shown. The verdict makes the garnishee liable for the sum found, as for his own proper debt. The execution must follow the judgment. The production of .goods and effects which this jury may have valued at the sum found in their verdict, might fall far short of satisfying the execution.

Under the pleadings, the verdict is clearly wrong, and no judgment could be entered upon it: Poor v. Colburn, 7 P. F. Smith 415 ; Bouslough v. Bouslough, 18 Id. 495. The assignments are therefore sustained.

Judgment reversed, and a venire facias de novo awarded.