text:
      Court of Common Pleas, Dauphin County,

      May 29th, 1863.
    Demmy v. Dougherty.
    An action of account render cannot be brought by one partner against another unless it can be proved that money belonging to the firm came into the hands of the defendant.
   By the Court.

A new trial has been asked for in the present case on account of misdirection. The court instructed the jury that if a partnership was proved to have existed between the plaintiff, the defendant, and Mr. Seiler, and the accounts remained open and unsettled, the plaintiff was entitled to a judgment quod computet without proof that any money came into the hands of the defendant from any person whatever; and although common, it was not necessary to name any person in the narr through whom it was paid; and if laid, need not be proved. Was tins instruction correct? We were aware, at the time, that this was going a step beyond James v. Brown (1 Dall. 339); where McKean, C. J., says that the action should be liberally construed in this State, where we have no court of chancery; and if a partnership was proved, that the defendant was the acting partner, and received any part of the money from any of the persons named in the narr, the court would uniformly compel him to account, not merely as to the moneys proved, but to settle an account in full. The same declaration .as to the necessity of a liberal extension of the action is reiterated by Tilghman, C. J., in Newbold v. Sines (2 S. & R. 321). Judge Washington, however, nonsuited the plaintiff, who failed to prove any money received from either of the parties named. Jordan v. Wilkins (2 W. C. C. R. 482). The subject is most fully and carefully examined by Judge Kennedy in Thompson v. Paul (6 Wh. 615), and nearly all of the ancient cases cited; for few modern ones can be found on' the subject out of our own State, the action having fallen into disuse where they have a court of chancery. The judge declares that the receipt of money on their joint account by the defendant is the very gist of the action of account render between merchant and merchant or partners in trade; and he argues that he never could be called on to account without proof that some of the money belonging to the partnership came into his hands. The same doctrine is clearly settled by Lord Coke. In commenting on the statute of III Edward, he says : Account will only lie against guardians in socage, bailiffs, or receivers,” and shows that it must be proved that money came to their hands (2 Just. 379). I could scarcely bring my mind to believe that where a partnership was proved to have existed by which each would be entitled to a certain portion of the profits, the acting partner could not have account against the dormant partner to compel him to bear his portion of the loss; yet such appears to be the settled law of Pennsylvania, as decided in McFadden v. Sallada (6 Barr, 283). Judge Coulter shows that no such suit will lie; but the remedy, if not provided for in articles of partnership, must be in chancery. He says the action for such a purpose is misconceived, and he who resorts to the action of account render will find it ill-defined in the books. The form of writ as given in Fitzherbert, N. B., shows that it will lie by one merchant against another to render a reasonable account for the time in which he was the receiver of the money of the plaintiff, from whatever cause or contract, coming to their common profit, joint benefit, etc. So that whether governed by precedent or authority, it would seem that it must be shown that the defendant received money for their joint benefit, or that goods came into his hands to be sold for the firm. The action will never lie where no money or goods have been received, but only a loss incurred; and there must be some person stated from whom money was received; or it must be stated that goods belonging to the firm went into the hands of the partner defendant to sell for their joint benefit, and that he never accounted for them.

Haim, for plaintiff.

Simonton, for defendant.

In the case under consideration, the evidence showed a partnership between Dougherty, Seiler, and Demmy. It was proved that Dougherty furnished the money, but neither bought or sold; that Demmy purchased, and Seiler disposed of the goods. Yet we have required Dougherty to account, without proof that any money or property of the firm came into his hands. This is contrary to the rules of law regulating the action of account render. We are satisfied that we misdirected the jury in a material point, and therefore must order a new trial. We also greatly doubt the sufficiency of the narr, as it does not name any person from whom money was received on joint account; and if it avers, as in Demmy v. Seiler, that goods of the firm were received to be sold, it is unsupported by the evidence.


source: Caselaw Access Project

author: By the Court.

license: Public Domain

text:
      Court of Common Pleas, Dauphin County,

      May 1st, 1863.
    Matter et ux. v. Fetterhoff.
    A devise of the use and income of a sum of money to a person during life, and upon his death without issue, the principal to revert to the estate of the testator, gives to the devisee only the right to the interest of the money during Ms life.
    Rewalt v. Ulrich, 11II. 388, distinguished.
   By the Court.

This case presents#a single question: Is Margaret Matter entitled to the absolute ownership of seven hundred dollars under the will of her late father, George Fetterhoff, deceased, or is she only entitled to the interest on the money during her life? The answer depends on the proper construction of the will, which is in these words, so far as relates to this bequest: “Item, I will unto my daughter Margaret, intermarried with Thomas Matter, the use and income of seven hundred dollars during her life, and at her death, the principal, in default of issue, shall revert to my estate.” If this clause stood alone, and without explanation in other parts of the same instrument, there would be no difficulty in coming to the conclusion that the testator only intended to leave to bis daughter Margaret the use and income of seven hundred dollars, with a limitation over of the principal in favor of his own right heirs, if she died without issue. But that conclusion is greatly strengthened by other parts of the will. In an after clause he proceeds to bequeath certain moneys to all of his children, for the purpose of equalizing them, but in the bequest to Margaret, he uses this language: “All the sums of money to be received by my daughter Margaret under this will, shall be invested for her use, or used by her during her life, and at her death, in default of bodily issue, the principal shall revert to my estate.” It is true that this legacy is changed in the codicil to an absolute gift, but the seven hundred dollars in controversy is again ordered to 'be invested for her use as before directed, and the residue of the bequest is given to her absolutely. If anything further were wanted, it is to be found in the form of bequest to his other daughters. In the one immediately preceding, he says, “I will unto my daughter Susanna, intermarried with Valentine Ulrich, the sum of seven hundred dollars,” being an absolute gift;, and then the language in the gift to Margaret is at once changed, as before set forth, showing that the testator knew and understood the force of language, and intended that Margaret should never receive the seven hundred dollars, but that it should be so invested as to secure to her the use of the money, that is, to draw the interest during her life, and the principal, on her death without leaving issue, should go into his general estate for the use of his heirs. • Is there any rule of law which will prevent this intention from being carried into effect? There is no gift of the money to Margaret; it is to be invested. She is to have the use and income of it merely during her life, and immediately on her death the principal reverts, and goes into the general estate of the testator. But this is to occur only on default of issue. If this limitation over is to take place after an indefinite failure of issue, it is void, the contingency being too remote. But, as we understand, it is on failure to leave children living at the time of her death. The word issue, manifestly means children, as here used, and in default of leaving such heirs living at the time of her death, the property at once reverts. It is restricted to the life of the first taker, as in Scott v. Price (2 S. & R. 59), and any words will be taken hold of to restrain the gift, so that it shall take effect on the death of the first taker (Deihl v. King, 6 S. & R. 31). The contingency is no more remote and the failure no more indefinite as to time, than in Mifflin v. Mifflin (6 S. & R. 460). Here it is expressly confined to the death of the first taker, and to take effect at once on that occurrence. In the last-named case it was only implied that it was to occur on that contingency. In Rapp v. Rapp (6 Barr, 45) where it was said, “If any of my children should die unmarried, and without lawful issue, the share or portion of him or her so dying, shall revert back to the survivors,” was held good as an executory devise; so also in Atkinson v. Hutchinson (3 P. W. 258), and a host of other cases might be cited to the same effect.

It is said, however, that the 'words here used amount in kiw to an entailment of this money, and whatever creates such an interest in chattels is equivalent to their absolute gift to the first taker. This is undoubtedly sound. Personal property cannot be entailed. But it is equally sound that words which would create an estate tail in land will not be so construed as to goods, as the one tends to promote, the other to destroy, the intention of the testator, by giving that absolutely which was only intended as a donation for life (2 Jarman on Wills, 306; 1 Roper, 86; 1 P. W. 432, 5 M. & S. 95 to 100; Atkinson v. Hutchinson, 3 P. W. 259). Even words in the same will have been con-' strued to give an estate tail in land and a life interest in chattels. The word issue is very often construed to mean children, when thereby the general intention of the testator will be effected (1 Roper, 86, 87, 90, 91; 7 Ves. 522); and even the words “issue of his body,” when applied to personal property, has been construed to mean children (1 Roper, 91; 1 Ves. Jr. 143 to 149), which would never be the case as to lands. Issue may, from the context, mean children (2 Jarman, 26, 27, 258, 259). And children construed issue when thereby the intention will be promoted (2 Jarman, 258). Hying without issue was construed to mean dying without leaving children living at the time of his death (Fearne, 471, 472; 3 P. W. 258).

Alriclcs, for plaintiff.

Mumma and Muench, for defendant.

To counteract the effect of these principles, we are referred to Rewalt v. Ulrich (11 H. 388); but that case varied essentially from this. The principal expression there was “die without heirs,” which may import an indefinite failure of issue, which is too remote. The case of Haldeman v. Haldeman (4 Wright, 29) was a devise of real estate, and the words there used were held to create an estate tail, which was unquestionably correct as to land, but might and probably would have been differently construed if applied to chattels alone, without including real estate. This subject has been recently considered by us with great care in the case of Weltmer’s Estate, where the words used much more nearly indicated the creation of an estate tail than those contained in the will under consideration; and we then sustained the limitation over on the principles now indicated, and that decision was affirmed by the Supreme Court. We are of the opinion that the seven hundred dollars mentioned in the case stated must be invested for the use of Margaret Matter during her life, she to receive the annual interest thereof, and on her death, without leaving a child or children then living, the principal must go into the general estate of George Fetterhoff, to be distributed among his heirs. This, we think, will fully effectuate the intention of the testator.


text:
      Court of Common Pleas, Dauphin County,

      July 20th, 1863.
    Holtsman et al. v. Loudensleyer et al.
    Where property is rented for a portion of the crops payable in kind, and it is sold at sheriff’s sale before the lessor has received his share, the purchaser will take all that belonged to the former owner, whether placed in the barn or growing in the fields.
   By the Court.

On the 26th of August, 1861, a judgment was recovered against Solomon Loudensleyer, on which his land was sold by the sheriff of Dauphin county, August 21st, 1862, and a deed executed therefor to the plaintiff, the purchaser, on September 3d following. On February 5th, 1862, said Loudensleyer executed a lease of this land to Jonas Loudensleyer, the defendant, for three years from April 1, 1862, reserving a rent of a portion of the crops payable in kind; and as no time is fixed for the payment of the rent it is payable annually. Solomon Loudensleyer made a general assignment of all his property to the defendants for the use of his creditors on March 15th, 1862. In the spring of 1862 Jonas Loudensleyer sowed oats and buckAvheat and planted corn. The oats was cut and gathered into the barn by August 6th, 1862, and so remained until after the sheriff’s sale and acknowledgment of the deed. The corn and buckwheat were not then out or gathered, and the only question presented by the stated case is, are the purchasers at sheriff’s sale entitled to the share of the landlord by virtue of their purchase? This question Ave consider settled by repeated adjudications. It is decided that rent reserved, as 'in the present case, is payable at the end of the year; and if before that time the land be sold by the sheriff upon a judgment entered prior to the execution of the lease, the rent will go to the purchaser, although the landlord had assigned it prior to the sheriff’s sale (Menough’s Appeal, 5 W. & S. 432). That, if sound law, rules the present case in every point. It had been previously decided that a purchaser at sheriff’s sale was entitled to all the rent which fell due after the execution of the deed, although a large portion had been earned by the premises previously, but was not yet due and payable. The subject is then carefully investigated by Judge. Kennedy, and all of the ancient and modern cases examined (Bank of Pennsylvania v. Wise, 3 W. 394). The soundness of the principles there laid doAvn is recognized in Wilkins v. Vashbinder (7 W. 378); Burns v. Cooper (7 C. 426), where the doctrine is applied to the purchaser at an Orphans’ Court sale. Again, in Boyd v. McCombs (4 Barr, 146), where the rent, as here, was payable in kind, and assigned by the landlord before it was due' and prior to the sheriff’s sale, it was held that the purchaser of the premises was entitled to the rent, the judgment on which the sale was made being entered previous to the lease. This is founded on the ease of Menough’s Appeal and Bank of Pennsylvania v. Wise. The principle is reiterated in Cobel v. Cobel (8 Barr, 342), and is by no means contradicted, but rather repeated in Borrell v. Dewart (1 Wr. 134). The case of Miller v. Clement (4 Wr. 484) is not in conflict with these principles, although the court refused to give the purchasers the way-going crop, which it was contracted the tenant should have. And the case of Myers v. White (1 Rawle, 353), being on a mortgage, has but little application. Besides, at that time it was considered that a sale of the land did not pass the growing crops in this State, although it is now settled otherwise. We are of the opinion that the 119th section of the act of 16th June, 1836, relating to executions, and all of the decisions explaining its meaning, also the former statutes in this State on the same subject and the cases expounding them, as also the general principles of the common law, give the whole rent referred to in the case stated, as well the grain cut and in the barn as that still growing, to the purchaser at sheriff’s sale. Therefore we render judgment generally on the case stated in favor of the plaintiff.

Fleming, for plaintiff.

Bishop, for defendant.


text:
      Court of Common Pleas, Dauphin County,

      February 22d, 1864.
    Daniel v. Daniel.
    A'divorce will not be granted on facts charged in the petition and admitted in the answer; there must be corroborating proof.
   By the Court.

The complainant has presented her petition to this court, asking a divorce from the bonds of matrimony on the ground that her husband is impotent, incapable of procreation, or of having sexual connection with her, so as to consummate the marriage. The respondent files an answer, admitting that he never had carnal knowledge of the petitioner’s body, and “ is not the man for her;” and stating that he “does not deny the facts stated in the petition.” On this answer we are asked to decree a divorce. It is, as we conceive, a fundamental principle of the common law that a divorce cannot be decreed by the agreement of the parties either in or out of court. The public has an interest in all such cases, both for the purpose of protecting the rights of others — often the innocent offspring — and to guard the morals of the people. As far back as Collet’s case (2 Mod. 314) the Ecclesiastical Court was prohibited by the King’s Bench from making a decree on the admissions of the parties alone; and since that time it is made one of the canons, which is declared to be part of the common law. If confessions alone were sufficient, the marriage would be placed at the will of the parties. And Dr. Lushington says: “No tribunal is to be trusted with the power to determine whether such admission is true or false.” Such is declared to be the policy of our courts by Gribson, C. J., in Matchin v. Matchin (6 Barr, 332). In Connecticut it was held to be insufficient even when the husband confessed to having committed adultery, and that he had the venereal disease in consequence, as it might be collusive (4 Day, 343). It is said in some of the courts that the defendant is almost bound to give a negative issue; that is, deny the charge: and the court should reject an affirmative issue. In case of default made, it is clearly settled that the court cannot make a decree; but the facts must be established by proof. We do not consider the present case an exception to the general rule; and to justify this court in making a decree, there must be corroborative evidence. Without it we must take the answer to be collusive.

Decree refused; but the petitioner is at liberty to take testimony before a commissioner to establish the facts, if she sees proper.


author: Charge of the Court.

text:
      Court of Common Pleas, Dauphin County,

      March 25th, 1861.
    Smith v. The Northern Central Railway Company.
    Where a main trunk railway company furnished the motive power, engineers, and conductors to transport the cars of another intersecting railway company on its road, it is responsible for an injury done to a brakesman employed by and on the cars of the intersecting company, through the negligence of its engineer.
    Such brakesman is not a servant or employee of the first-named company so as to protect it from responsibility.
    The proper test of service is to consider who employs, pays, and has the right to discharge such brakesman.
    The burden of proof rests on the person suing in such cases, and to justify a recovery he must show that carelessness or want of skill in the engineer caused the injury.
    In such a case tiie measure of damages is the pecuniary loss sustained; no allowance can be made for the suffering.
   Charge of the Court.

This suit is brought against the Northern Central Railway Company, a corporation whose road extends from Baltimore to Sunbury. It is what may be called a main trunk road, intersected with many lateral ones constructed by other companies. It seemed to be a settled arrangement for these intersecting roads to send their trains of cars by their own motive power to the point of junction, whence they are transported on the- defendant’s road by its locomotives to the place of market for the articles transported, mainly coal and lumber. The whole train is under the control of the defendant’s conductors, but the lateral companies employ their own brakesmen, who accompany their cars both going and returning. It is their duty to obey the orders of the conductors, and the signals of the'engineers in running the train.

The plaintiff, a brakesman in the employment of the Trevorton Coal Company, had gone to Baltimore with some of their cars loaded with coal, and was on his way returning with the empty cars, when the injury complained of in the present action occurred. The train consisted in all of some seventy unloaded ears, of which some ten or twelve, and perhaps more, belonged to the Trevorton Company. They were under the care of two of the brakesmen of that company, and the whole train was under the general charge of one of the defendant’s conductors, and drawn as usual by one of its engines.

In the neighborhood of Fail-view, from some cause, a matter of dispute, the plaintiff was thrown from the train, his arm badly broken, and after suffering with it for some three months, it was necessarily amputated to save his life. The engineer in charge of the motive power, it is conceded, was in the employment of the'Northern Central Company. Thus far, the facts are undisputed. The plaintiff avers, and has introduced evidence to show, that when they approached the bridge at Fairview, the engineer gave the signal for “down brakes,” which was obeyed by the brakesmen; that after passing the bridge with- the engine, which was done at very slow speed, it was the duty of the engineer to signal “up brakes,” which was neglected. That after such signal, the speed of the engine should be gradually increased, until proper motion was given to the train, instead of which, without any proper warning, and whilst the men were bearing on the brakes, the engineer started with such violence that he broke the train apart where the plaintiff was standing, threw him on the track, and caused the injury.

(Here the court called the attention of the jury to the matters testified by the witnesses on both sides, and then proceeded:)

The plaintiff’s action is predicated on the negligence or want of skill of the defendant’s servant, and the onus probandi rests on him to show to your reasonable satisfaction, that the injury he received arose from the want of the one or the other. If from either, it is answerable, as every one is bound to employ persons of skill, who will use due care in the management of their business.

. If the servant does an intentional injury, the employer is not responsible. The plaintiff’s case is unlike that of a passenger for hire, with whom, there is a contract to carry safely, and who has only to show his injury, and thus throw the whole burden of proof on the transporting company. The plaintiff avers negligence in his narr, and must prove it. If you are left in doubt and uncertainty as to what caused the injury, whether it arose from the neglect of duty of the engineer, in not giving the proper signals, or his rash and imprudent manner of starting the train, as contended by the plaintiff, or from the improper fastenings of the Trevorton Company’s cars, as contended by the defendant, the plaintiff cannot recover, as he must prove to your reasonable satisfaction that he was injured by the carelessness of the defendant’s servants as laid. If the signal for “up brakes” was given, and not obeyed by the plaintiff, and the engineer also was guilty of rashness or negligence in starting, and both causes combined contributed to the injury, the plaintiff cannot recover. He must show the want of skill and care on part of the defendant’s servants, and that he was not himself in anywise in default. Mutual negligence destroys all right of action by either party. If this was an inevitable aeeiclent, there can be no recovery; such things are treated as the act of God, for which no one is responsible.

(Here the court called the attention of the jury to the introductory facts as proved by the witnesses, the broken link found on the road, etc., and referred the whole to them with the observation:)

That if the link was of the size and kind, and broken as stated, it might be some evidence from which you can judge of the violence or gentleness of the start after crossing the bridge. You must be satisfied that the plaintiff was at his proper place, on the Trevorton Company’s car, and in the performance of his duty, and guilty of no negligence, before you can find a verdict in his favor, and also that his injury arose from the negligence, rashness, or want of skill or care of the plaintiff’s servant. If Lewis Smith was a servant of the Northern Central Company, we consider it very clear he cannot sustain the present action. That principle is too well settled to be now shaken, unless the courts are prepared to disregard and overturn all the rules which govern the relation of master and servant, and their responsibilities to each other. The attempted distinctions between servants of different grades, we consider equally fallacious; but the important question is, was the plaintiff the defendant’s servant at the time? fie was under the control of its conductor, bound to obey his orders, and follow the signals of its engineer. But he was hired by the Trevorton Company, had charge of its cars as brakesman, could not be placed on any others, and came on the defendant’s road with them where the roads separated. That company alone could discharge him from service, and if in the course of this business as a brakesman, he was guilty of negligence by which the Northern Central Company’s property was injured, the Trevorton Company would be responsible for the neglect of its servant. The method of determining whose servant he was when injured, is to consider who employed and paid him, for whom did he labor, who could discharge him, and who would be responsible for his acts, pay the damage sustained by others through his want of skill and diligence. The answer to all or either of these questions shows that he was the servant of the Trevorton Company. He would be without remedy against that company if injured through the bad construction of its cars, or the negligence of his fellow-brakesmen in its employment, but would have a remedy if injured by the servant of another company, or through the defects in its road or machinery, and the Trevorton Company would be answerable to the Northern Central for damages arising from his default. It is said that the establishment of such a principle will be attended with great evil and difficulty in this country, from the vast number of roads which are connected in business like these, and the almost impossibility of determining from whose act or neglect the injury arose. We can only say that where that cannot be ascertained, there can be no recovery. The action will only lie for negligence, want of skill, or gross and manifest defect in the road or machinery, to be proved and made manifest by the person suing. He does not stand in the light of a passenger, with whom there is an implied contract to carry safely, is more like an outsider who crosses the railroad track in the course of business, and is injured, and on whom rests the duty of proving negligence. We do not see anything in the nature or character of the plaintiff’s employment, or connection with this company, which stands in the Avay of his recovery, and the question of negligence, with most other disputed points in the present case, are for the jury, and must be by it carefully considered and decided. If the main trunk railway companies of the country consider that the principles laid down are likely to operate with too much severity on their interest, they must take care to guard against them by contract.

If you are satisfied that from the facts of the case and the principles of law we have laid down for your guidance, the plaintiff is entitled to recover, the next question for your consideration is the amount of damages.

I am not disposed to say that there is any certain rule on this subject for your guidance and government.

It is not a case for punitive or exemplary damages, even if you believe the conduct of the engineer was grossly negligent and improper. You must bear in mind that the defendant is a corporation, created for a highly important public purpose, constructing a railroad at great expense for the benefit of the community at large, quite as much or more than for its stockholders, and that it cannot by any possibility, conduct its business without the employment of a vast number of agents and laborers in various capacities. It rarely happens that either the president, managers, or any of the stocldiolders possess the requisite skill to run a locomotive engine, and few, if any of them, would make good and efficient conductors, firemen, or brakesmen. They are therefore obliged to invoke the aid of those who have the knowledge required; and although they must at their peril select careful and skilful servants, and are answerable for their want of either, yet the damages should in no case be more than barely compensatory, unless the company would knowingly employ inefficient men, or retain them after their incompetency or carelessness was discovered. In the present case it is not shown that the engineer was unskilful, or had ever before met with any mishap from any cause whatever.

Lamberton, for plaintiff.

Kwnlcel and Casey, for defendant.

If you give damages, they can only be compensatory. What will remunerate the plaintiff for his loss ? There is no doubt that for some three months he was entirely unable to labor in any way, during which time he was put to very considerable expense, and suffered great pain. For the latter, a pecuniary compenation cannot be made; no amount of money will remunerate for great bodily suffering, and yet it necessarily to some extent enters into the consideration of a jury. The loss of time and expenses incurred are proper objects of calculation, but the jury will not only consider the past, but the liminished ability of the plaintiff to earn a subsistence in future; that he will, through the whole residue of his life, be obliged to labor under the inconvenience of depending on one hand for support, and be deprived of the chance of pursuing many avocations which would be open to him if sound and entire as before the injury. You can scarcely estimate the amount of loss to a young, healthy, and vigorous person from such a deprivation. Yet you must be careful not to run into any excess. In some of the States, where, as in ours, compensation is permitted to be received by the relatives for loss of life, the law has provided that the damage shall in no case exceed five thousand dollars; and the courts have there held that by implication, something less must be given for a smaller injury. We have not even that guide in Pennsylvania, as there is no limit fixed by our law in case of the destruction of life. We can therefore say that you must carefully consider all the circumstances surrounding the case, and if you give the plaintiff damages, they must be no more than will compensate him for his actual pecuniary loss, present and prospective, and his diminished means of earning a livelihood.


text:
      Court of Common Pleas, Dauphin County,

      August 30th, 1864.
    Earley v. Withers.
    When personal property, claimed to be sold, is left in the possession of the vendor, this is evidence of fraud per se, and the vendee has no title as against the creditors of the seller. An engine fastened to the soil is part of the realty; but when the parties have treated it as personal property, they are estopped from denying it. If personal property is given to secure a debt, and all that it sells for above that is to belong to the original owner, his interest may be sold for the benefit of his creditors.
   By the Court.

The application for a new trial in this case is mainly founded on the alleged misdirection of the court to the jury in matters of law, and a mis-trial of the cause on account of a mistake of all parties as to the character of the property in controversy, it having been treated throughout as personal effects, whereas it was in truth real estate. We instructed the jury that the sale of the steam-engine and boilers in dispute by Moses to Amos Earley, was fraudulent in law under the circumstances proved, mainly because possession did not accompany and follow the sale, and the property sold continued in the possession of the vendor until after the levy. Were we right in this instruction ? The engine was the propelling power in a mill belonging to Moses Earley, and situated on his own land. The mill was burned down, and the whole steam machinery was left in the ruins as originally placed. Amos Earley was security for Moses in a certain note amounting to $1000, or had signed it for his accommodation it was a just debt, and on or about the 19th of March, 1863, Moses sold Amos the engine and boilers to pay said debt, with an agreement that all it would bring above the amount should belong to the vendor, was to be refunded to himj Moses. This sale was made at Norfolk, Virginia. Amos Earley returned home, and on the 8th or 10th of April caused a roof to be put over the engine to preserve it from the weather, and the connecting-pipe between the engine and boilers to be detached and laid alongside of the engine, which was oiled and left in its position. No part of the machinery was removed until shortly before the November Term following, when the real estate on which it was situated was about to be sold by the sheriff. On the 15th of May, 1863, this machinery was levied on as the personal property of Moses Earley by Withers; and on the first day of June following Amos Earley notified the sheriff that he claimed it. This led to the present trial under the sheriff’s interpleader act.

In reviewing our instructions on the trial we must leave out of view all of the evidence tending to show that the sale was colorable; the declarations of Amos Earley that he could not sell the property without first communicating with Moses; the offers of the latter to sell it in Virginia after the alleged sale to Amos, with the other facts in proof tending to show actual fraud, or that no sale had been made, as these were properly questions for the jury. The charge was peremptory; and this sale was declared fraudulent in law from its character as proved by the vendor, and because that possession did not accompany and follow the sale. After a careful review of the law as settled in this State, we still continue of the same opinion. Unlike the decisions in many of the other States, our courts have held that the want of delivery of possession of personal property sold was not to be treated as mere evidence of fraud, but is fraudulent per se, to be so declared by the courts. The few cases supposed to be exceptions are full recognitions of the rule. The saw-logs or hewed timber in Chase v. Ralston (6 Casey, 539), were not delivered, because there was no snow, without which they could not be moved. Delivery took place as far as practicable. But had those logs laid over another winter the decision might have been different. So with the piles of boards in Haynes v. Hunsicker (2 Casey, 58), and the raft of boards in Cadbury v. Nolen (5 Barr, 326). This engine was quite as susceptible of delivery as the hides in a process of tanning in Clow v. Woods (5 S. & R. 275), or in Pritchett v. Jones (4 Rawle, 263), in fact much more so, as the hides might be essentially injured by an arrest of the process before completion. It is true this sale took place some two hundred miles distant from the properly, and actual. delivery could therefore not be expected; but, like the sale of a ship at sea, possession shoxild be taken as soon as she came into port; here as soon as Amos Earley returned home. Instead of which we find that on the 8 th or 10th of April following he placed a roof over this machinery, with the manifest intention of preserving it where it stood on the land of Moses Earley, and no attempt was made to remove it. True, the connecting-pipes were detached and laid alongside of the engine, but that would not operate as a delivery actual or symbolical. But symbolical delivery is not what the law requires, but actual; and the exclusive possession must be taken by and remain with the vendor. Where articles are bulky and heavy a reasonable time for removal must be allowed; but if there was time to place a roof over the property and detach the pipes, there was time sufficient for its removal. There certainly was ample time between the 3 9th day of March, when the sale was made, and the 18th of May, when the sheriff levied. We were therefore bound to declare the sale void, as was done in Brown v. Keller (7 Wright, 104), and a host of other cases in this State. Fixtures situated as were those in controversy, are a portion of the realty, and will pass by a sale thereof; but the action of the parties in interest may impress on them a different character. We have no complaint here from tire judgment creditors; they set up no claim, nor does the purchaser at- sheriffs sale, as the fixtures were removed before it occurred. Both Moses and Amos Earley treated them as personal, the one in selling, the other in buying, notwithstanding the judgments. In fact, it is impossible to doubt but that they were thus bought and sold for the payment of this. debt, because it was not in judgment, and could not be otherwise secured.

No transfer in writing was made or possession delivered, as in the case of real estate. The engine and fixtures were levied on as personal property, and Amos Earley claimed them as such iii his notice to the sheriff. The very issue ordered and trying-under the interpleader act imports that they are personal, as no such issue can be directed to determine the right to real estate. Amos Earley removed them before the sheriff’s sale of the real estate, to prevent them from passing thereby. After all of these acts we are of the opinion that Amos Earley would have been estopped on the trial from averring that they were part of the realty. This, independent of the agreement of counsel as to the severance and sale. Fixtures, whether attached to the really or not, may, by the consent or action of the parties, be treated as personal (10 Barr, 352; Id. 198; 4 H. 530; 3 H. 513).

After a trial on the merits, it is certainly too late to raise a question of this purely technical character against the whole action of the party now desirous of presenting it, and least of all should this be permitted in favor of Amos Earley if he became, as is averred, the purchaser of the real estate on which these articles had been situated. He having removed them before the sheriff’s sale, would thus be permitted to hold without paying for them as realty.

One other question has been raised on the argument. Moses Earley states that this engine and machinery were not sold for a fixed price, but given to secure the thousand dollar note; and all that it would sell for in addition was to be his. This is proved by the plaintiff and is corroborated by the acts and subsequent declarations of both Moses and Amos, the former offering after-wards to sell it as his own; the latter declining to sell until he could consult with Moses. Being a mere pledge to secure a debt, not accompanied with any delivery or retention of possession of the article pledged, it was subject to levy as the property of the pledgor, and could be lawfully sold as his. Such a pledge is nothing more than a verbal mortgage of personal property, and until delivery passes no title. Even if delivered, the contingent reversionary interest of Moses could be sold. In every point of view, we are of the opinion that Amos Earley has failed to establish his right to recover the property in dispute, the issue was properly decided, and the motion for a new trial must be overruled.


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      Court of Common Pleas, Dauphin County,

      December 31st, 1864.
    Zearing’s Executors v. Rouch et ux.
    A bill of discovery will lie against the plaintiff in an action at law arising ex contractu by the defendant in order to obtain testimony to aid in his defence.
   By the Court.

Rouch and wife, the respondents to this bill, sued the complainants on the law side of this court, on a bond of $1500, purporting to be signed by complainant’s testator, and which they aver in their bill of discovery is unjust, and ought not to be paid for several reasons, among which they state in substance: First. That Jacob Zearing never signed the writing. Second. If he did, that he was of unsound mind at the time. Third. That no consideration was paid, and the alleged obligor, being weak in mind and enfeebled by sickness, was overreached and imposed on by the respondents. They aver that a discovery of all the facts connected with the instrument sued on, the manner of obtaining it from their testator, if he gave it, and his mental situation at the time, are important and necessary for their defence in the suit at law ; and therefore ask that they shall all be discovered and divulged by the respondents. To this bill there is a general demurrer on the ground that no such proceeding is allowed by the laws of Pennsylvania, but that a party sued is obliged to make out his defence by evidence. If such is the case, our equity system is very imperfect, and one of its most important features wanting, — the power to compel a discovery in aid of a trial or defence at law. Whenever the party by his bill' shows that a discovery is necessary in aid of a suit pending arising ex contractu, either by way of claim or defence, he is entitled to have it, and it is not necessary to aver that there is no other method of proving the fact; it is sufficient to show that the answer or confession may be used in aid of other evidence, or render its introduction unnecessary. For the general doctrine on this subject, Br. Eq. Jur., title Discovery, may be consulted to advantage, where the matter is fully explained. Also Hare on Discovery, Wigram on Discovery, Story’s Eq. PI., and, in short, almost every writer on equity jurisprudence.

That the answer may be used in a claim or defence at law is decided in several of our reported cases in Pennsylvania, especially in Parsons’s Reports and in Troubat & Haly’s Practice. The acts of Assembly give to this court all of the equity powers conferred on those of Philadelphia and other counties of the State. The demurrer is not well taken, but the defendants in the bill must put in a full answer thereto. We do not perceive that any part or portion thereof is objectionable; and if such is the case, exception should be taken to the particular part, and a general demurrer cannot be sustained.

KumJcel and Alrialcs, for plaintiff.

Mvmma,for defendant.


author: By the Court. —

text:
      Court of Common Pleas, Dauphin County,

      February 2d, 1865.
    In the matter of a Mandamus against the School Directors of Jefferson Township.
    A mandamus will not be granted to compel the school directors of a township to repay money paid by men drafted into the army to procure substitutes; such payment is voluntary, and does not create a debt due by the township ; even if the claim were binding, it would have to be demanded from first, the school directors; second, the supervisors; and thirdly, the board of election officers, before a mandamus could be applied for.
   By the Court. —

An application has been made by certain persons, who were drafted into the service of the United States under the militia laws, and furnished substitutes, or procured volunteers to enter in their stead, to compel the school directors of Jefferson township, in which they respectively resided at the time, to lay a tax on the people of the township for the purpose of refunding to them the amounts they severally paid to the.different substitutes and volunteers. To this application, on the rule to show cause, a full answer has been put in by the school directors, denying their liability to this process, or the responsibility of the township to refund the money voluntarily advanced by the complainants to relieve themselves from the draft; averring that there was no agreement at any time by the constituted authorities or people of the township to refund the money. The petition is very defective in failing to set forth that the county commissioners had been called on, and declined to act in the premises,; but that could readily be amended; also in omitting to state that it was a debt due by the township, which has no funds wherewith to make payment. But there are objections to this mode of proceeding which are insuperable. All of the acts of Assembly, except section 3 of the act of 25th August, 1864, clearly make it discretionary in the various county and township officers to raise funds for the purpose of filling the army, and relieving their respective localities from the draft, or refusing so to do, in the absence of some previous contract with the constituted authorities, or an application of the majority of the citizens.

Mumma, for plaintiff.

Kwnkel and Lamberton, for defendant.

The provisions of the original law and various supplements are only enabling, not imperative; and perhaps this section should receive a like construction, more especially when a different one might bring it within the inhibition of the Constitution. We can scarcely believe that it comes within the power of the legislature to force debts upon municipal corporations any more than upon individuals, or to make contracts for parties to pay, who are under no previous moral, legal, or honorary obligation, and a large portion of whom received no benefit from the act done. It is quite as dangerous a legislative power to create as to impair contracts. We are not required at this time to pass on the constitutionality of that section. For if the parties have any remedy, it is by action at law against the county or township in the ordinary common-law form, and not by the extraordinary writ of mandamus. If this section creates anything like an obligation, it is a debt to be recovered by suit against the proper municipality; for whether it be the county or township, either can be sued, and after judgment the party can pursue the remedy pointed out in the acts of Assembly to recover his money. There is a further objection to this proceeding. The first power to collect and apply money to obtain volunteers by paying bounties, or to refund to those who have procured substitutes, is conferred on the county commissioners. They declining to act, in country districts the power is given to certain township officers in the following order: First. School directors. Second. Superyisors or road commissioners. Third. The board of election officers. If one will not consent to raise the money, another may be called on in the order indicated. Now it would certainly be necessary to go through all of these grades before attempting to compel any one by mandamus. It is not stated in this petition that any of the various officers have been applied to, and declined to perform this duty, except the school directors. If a mandamus will lie against any, it would rather appear that it should be awarded against the party who last refused, and on whom is thrown the ultimate duty and responsibility.

We are clearly of the opinion that this proceeding cannot be sustained; the rule for a mandamus must be dismissed, and the peremptory writ refused at the cost of the petitioners.

It is ordered accordingly.


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      Court of Common Pleas, Dauphin County,

      August 7th, 1865.
    Brown v. Wagner.
    When a lease, by -which the tenant contracts to j>ay one-half of the taxes, is made or renewed after the enactment of a law imposing a new tax, but before its assessment, the tenant is bound to pay his share of this tax.
   By the Court.

There is but little legal difficulty in the solution of the question presented in this case, when we come to examine facts and dates. The lease Avas made in October, 1862, for one year, the tenant contracting to pay one-half of the taxes assessed or to be assessed on the property. There being no other time mentioned, the lease commenced from the day of its date; was reneAved in October, 1863, on the same terms, and this contest is concerning the tax for the year 1864, which Avould be levied late in the year 1863, or early in 1864, if done at the time of making the county assessments; but as this was a special tax levied for a particular purpose — the payment of bounties — it Avas doubtless imposed some time in the spring or summer of 1864. The case stated admits that it was during the year, though it does not furnish the date. The words of the contract clearly throw one-half of the tax on the tenant. He bound himself, in general terms, to pay one-half of the tax, which should be levied on the premises, without designating the character or kind, thus ap- ' parently taking the risk with the landlord as to the amount. But although such Avere the Avords of the lease as agreed, yet had this been a new tax, imposed for a purpose never before known to the law, very high in many townships, and extremely onerous in its character, often amounting to the full annual rental of the estate, I should have felt great hesitation in saying that it came within the intention of the contract, although covered by its words. But AArhen this lease Avas renewed in October, 1863, and for some six months previous, there was a law of the commonwealth in full force authorizing the assessment of taxes for the payment of bounties to volunteer soldiers, and to repay money previously borrowed or advanced for that purpose. Full poAArer is given by the 3d and 12th sections of the act of the 14th of April, 1863, to levy taxes for those purposes; and with this laAV before his eyes, it Avas the folly of the tenant to renew his lease in October, 1863, on the same terms as before. We must, therefore, presume that the tenant had such taxes in contemplation, as well as the ordinary county and toAvnship rates and levies. If it was the understanding of the parties that the lease, made in October, 1862, was to commence on the 1st of April, 1863, the ordinary time of commencing a lease in this State, then the renewal on April 1st, 1864, occurred after the passage of the act of that year, which went into effect on the 25th of March, 1864. This is more broad and general in its terms than the former law, though each fully authorizes and contemplates taxes to be levied for the payment of bounties, etc. In any point of view the case is clear of legal difficulty; nor is even the hardship so great as has been supposed. The object of paying bounties was to avoid the draft; the tenant was quite as likely to be subject to it as the landlord. The former always resided in the township or county, and would not be relieved, in consequence of the township quota being filled. It is true that the act of Assembly contemplates a tax on property, and only to a very limited extent on the person; yet the tenant enjoys the benefit of the land, and agrees to pay the taxes as part of his rent.

Brown, for plaintiff.

Mumma, for defendant.

Should the case of a lease be presented, where it was entered into for a series of years, commencing before the enactment of any of these bounty laws, it might admit of a different solution, and we could not consider this a precedent in such a case, but in the present Ave can have no difficulty for the reasons already given. We, therefore, render judgment in favor of the plaintiff on the case stated.


text:
      Court of Common Pleas, Dauphin County,

      February 12th, 1866.
    Hoover v. Epler.
    A groom lias no. lien for his wages upon the horses he attends upon; but if he is obliged to find food for them, or to pay or give his note for claims for boarding them, he has a lien upon them for that amount.
   By the Court.

The stated case shows that the defendant was hired by the plaintiff to take care of his stallion for a certain period of time. If the case turned solely on the contract of hiring, the defendant Avould clearly have no lien on the property for his Avages. So far as relates to the hiring, he is in no other situation than a bare hired servant. A lien is the right in one man to retain that Avhich is in his possession belonging to another till certain demands of him, the person in possession, are satisfied (2 East, 227). This is called a particular lien, and is favored in the law. The person is alloAAred to retain in respect of labor or money expended on such goods (2 Livermore on Agency, 35). But to give this right the article claimed must be bailed to the claimant to have something done to it by which the value will be increased, or labor or services bestowed upon the article bailed by the bailee (Cross on Lien, 34 Law Lib., pp. 24-5). If a man is hired to drive the team of another, the hireling would not be the bailee of the team, although by his labor in grooming and feeding the horses he would increase their value. But if a horse were delivered to a farrier to be cured of a disease, or to be shod, a lien would exist for the attention or labor. So where delivered to a trainer to be prepared for racing (Bevan v. Waters, 3 Car. and Payne, 520). It has been held in England that the agister of cattle has no lien, but that case was decided as to milch kino, which were taken daily from the field to the house of the owner to be milked. From the nature of the lien, it would be destroyed by the daily restoration to the owner. I have no doubt that the rule would be otherwise in the case of cattle placed with a farmer to be fattened. See the opinion of Gibson, Chief Justice, in Stineman v. Wilkins (7 W. & S. 467). Livery stable keepers had no lien from the same reason, the owner having the daily right to reclaim his horse for use. That is remedied in this State by statute. By the contract between these parties the horse is not delivered to the defendant to be kept groomed, etc., but the defendant is hired as a groom to keep the horse, and bound to obey all directions of the owner, who could take the horse out of the care of his groom the day after delivery, or at any obher time, though the groom would be entitled to recover full wages to the end of the time for which he was hired. The hired groom had no greater lien or right of retention for his wages than would the hired driver of a carriage who remained under the control of the owner.

There are, however, other grounds of lien here. By the terms of the advertisement, made part of the case, this horse was to stand a portion of his time at the stable of David Smith, in Lebanon county. The owner failed to pay the charges of the landlord against the horse for keeping, and the groom, in order to perform his duty towards the horse and his employer, and comply with the other appointments designated in the advertisement, had to give his note to the innkeeper for the bill, amounting to thirty-one dollars. For this .bill the landlord had a lien on the horse; and I am of the opinion that the defendant would be substituted to his rights, and entitled to retain possession of the property until repaid that sum. I am also of the opinion that Epler would have a lien for the feed furnished by himself to the horse, unless the owner supplied the same in sufficient quantities, as it is clear that the provender was not to be found by the groom, but by the owner. There is nothing in the contract which would indicate that the former was to furnish the feed; and had such been the case it might change the whole nature of the bargain, and show that Epler should have a lien; it would then be in the nature of a bailment. Had the plaintiff in this case called on the defendant and demanded his property, and the latter had refused to restore it until paid his hundred dollars, it would have come within that class of cases where the bailee set up an improper claim, which would have debarred him from holding for that which was legal (see Boardman v. Sill, 1 Camp. N. P. Rep. 410, note; 5 Taunton, 763; 2 Livermore on Agency, 104-5). Had Hoover offered to pay for the feed and the charge of David Smith, Epler would have had no right of detention. But we consider it very clear that so long as the lien remained unsatisfied Hoover could not maintain replevin for the horse; he could not even sustain an action of trover (see Livermore, p. 104, and the authorities there cited). "We therefore render judgment in favor of the defendant on the case stated, subject to the agreement of the parties as to the amount to be paid in lieu of a judgment de retorno habendo.

Mumma, for plaintiff.

Alrieks, for defendant.

Affirmed by ti-ie Supreme Court (2 P. F. S. 522).


text:
      Court of Common Pleas, Dauphin County,

      February 26th, 1866.
    The Commonwealth ex rel. Zoll v. Killinger.
    A mandamus at the relation of a private person will not he granted to compel a township supervisor to erect a bridge; the proper remedy is by indictment. "When there is more than one supervisor in a township, one alone cannot order the opening of a road or the building of a bridge.
   By the Court.

An application was made to this court by a private relator for a writ of mandamus commanding one of the supervisors of East Hanover township to build a bridge over Bow creek. An answer was put in by the supervisor denying the relator’s right to this remedy. This is a high prerogative writ, and is never allowed except where the relator or the public has a specific legal right without any adequate remedy to enforce it (8 East, 219). The courts refuse such applications where the party has another complete remedy (1 Ld. Ray. 38; 3 Burr, 1615; Cowp. 378). It is only to be invoked in cases of the last necessity; not where there is another effectual remedy (1 Jones, 201). It is only intended for extraordinary cases where otherwise there would be a failure of justice (2 Penna. 513; 1 H. 75). It was refused to compel the councils of Reading to remove obstructions on a sidewalk on the application of a private relator, as the nuisance, if one at all, was of a public character, remedial by indictment (1 Jones, 201). It was also refused against the town council of the borough of Pottsville to compel the opening of a public alley, ordered to be done by an act of Assembly (5 C. 108). In that case the whole subject is carefully examined by Judge Woodward, and many of the cases reviewed. It is declared, among other things, that where the injury is to the public the complaint of a private relator cannot be heard, but redress must be demanded by the commonwealth’s officers; and where the work asked to be constructed is of a public nature, and the relator has no right except in common with other citizens, he cannot have this remedy (5 C. 113 and 114). There is full and ample remedy in the present case, by indictment; one given by statute, and which has hitherto been found sufficient, in this State, to compel the performance of all public duties of this character by supervisors. And where a statutory remedy is provided in Pennsylvania, it must be resorted to exclusively. Since the year 1808 certainly, and perhaps long before, it has been the common, and I might perhaps safely say the only, remedy sought to oblige the roads to be opened and kept in repair and bridges to be built-. Judge Coulter says, There is no other provision nor any other act or clause giving the public or State any remedy, save this of indictment.” Edge v. The Commonwealth (7 Barr, 277). We may add that it was in force and resorted to habitually long before the passage of the road law in 1802, as we find such cases reported in our books and a good precedent for an indictment given by Read in his Digest, published in 1801.

Jj. B. Alrioks, for plaintiff.

Mumma, for defendant.

There is another fatal objection to this proceeding. The writ is demanded against one supervisor only, and there are two in the township. One alone could not build the bridge if he desired it, for although one can act in the ordinary business of repairing roads without consulting his fellow, he cannot open a new road, build a new bridge, or do other important act of that character, except on joint consultation (per Woodward J., 1 Am. Law Reg. 124).

The defendant has failed in every point of view. The application for a mandamus must be refused, and the petition dismissed ,at the cost of the applicant.


text:
      Court of Common Pleas, Dauphin County,

      February 26th, 1866.
    Shick v. The Pennsylvania Railroad Company.
    The petition of a railroad company which sets forth that, having failed to agree with the owner of land as to its value, they had taken it for the necessary purpose of putting down additional tracks, and otherwise using it in the maintenance of their road, is fatally defective, and the proceeding will be set aside. Viewers appointed to assess the value of land taken by a railroad company must find in their repoz't whether such appropriation was necessary; if they do not find it necessary, the land cannot be taken.
   By the Court.

The Pennsylvania Railroad Company, being desirous of obtaining some land belonging to J. M. Shick for the use of its road, at August Term, 1864, presented its petition, setting forth that J. M. Shick is the owner of about three acres of ground in the city of Harrisburg, upon which the said company have entered, and which it has appropriated for the necessary purpose of putting down additional tracks, and otherwise using in the maintenance and operation of their road.” It also recites their inability to agree about the value, and that a bond had been filed and approved by the court for the payment of damages, and asks that viewers be appointed to assess the same; which was done, the report made, and damages to the amount of $10,430 assessed in favor of Shick. To this report the latter has filed exceptions, in substance that the company has no right to take his land, the purpose for which it is required is not properly defined, and the necessity for its appropriation has not been sufficiently made out.

It is clearly established that, under the Constitution of the United States and of this State, the property of a citizen cannot be taken for mere private use nor for any public purpose without paying an equivalent. It is equally well settled that the commonwealth can grant to a corporation, created for the purpose of making a great public improvement, beneficial to the people at large, a portion of the sovereign prerogative of taking private property necessary for the successful execution of its work; but such a power is to be strictly construed, and not extended by implication beyond the words of the statute granting it. No privilege is granted unless in plain and unambiguous language, too plain to be mistaken or misunderstood (9 H. 9 and 22; 3 C. 339). Section 2 of the act incorporating this railroad company gives very extensive powers to purchase and hold real and personal property; but it is to hold no real estate, except such as may be necessary or convenient for the making and constructing of said .railroad, or for furnishing materials therefor, and for the accommodation of depots, offices, warehouses, machine-shops, toll-houses, engine and water stations, and other appropriate appurtenances, and for the persons or things employed or used in or about the same.” And in section 11 it is provided that said company may occupy all land on which the said railroad or depots, warehouses, offices, toll-houses, engine and water stations, or other buildings or appurtenances hereinbefore mentioned, may be located, or which may be necessary or convenient for the erection of the same, or for any purpose necessary or useful in the construction, maintenance, or repair of said road.” This land may be taken without purchase, and a mode of assessing the damage for so doing, where the company and owner cannot agree, is provided by section 12, to be determined by a jury in the Court of Quarter Sessions, subsequently changed in section 4 of the act of 1848 to five viewers to be appointed by the Court of Common Pleas. The width of the road is not to exceed four rods, except in the neighborhood of deep cuttings, high embankments, places selected for sidings, turnouts, depots, or engine and water stations. Such are the powers, and such the restrictions thrown upon this railroad company. The powers conferred are very broad and general, yet Ave cannot construe them to be unlimited, or to confer authority on the company to take the land of every citizen, which, it might think, it Avould be convenient for the company to have. We are inclined to believe that the word was used to qualify “necessary” which might be construed to mean an absolute necessity, such as could not be done without. We think that both in this and the general railroad law the intention of the expression was to enable the company to take merely such land as would be proper to build the works expressly authorized to be constructed, or for their better management. It might be \'ery convenient for the company to have land on which to erect houses for its mechanics and laborers in the vicinity of its workshops expressly authorized to be built. Yet no one, without a most latitudinarian construction, would pretend to say it could be taken against the Avill of the OAvner for such a purpose under this charter. The petition says that the company has appropriated the three acres of land belonging to Shick, “for the necessary purpose of putting doAvn additional tracks.” Thus far there is an object defined, which, although not in the words of the charter, is well understood to mean much the same as “sidings,” and the uses and necessity are well stated; but when it gives no account of Avliat is to be done with the residue of the land, except, by saying, it is to be “otherwise used in the maintenance and operation of the road,” it fails to state that the land is to be applied for any authorized purpose — any use recognized by the charter. Consequently, the court cannot say that the taking is lawful. This is, in our opinion, a fatal defect. The property of the citizen cannot be taken except for a public purpose sanctioned by the few. It is scarcely possible that the Avhole of three acres will necessarily be covered with railroad tracks, especially when of the shape set forth in the draft; and no other purpose is stated.

The necessity of taking this land has been from the first denied by the OAvner, and neither in the petition nor finding of the jury has.it been, made apparent. Such necessity has not been shoAvn on the argument, was not declared by affidavit when the petition was filed, as is decided to be proper in a matter of much less moment, — the inability to agree about the price (O’Hara v. The Penna. Railroad, 1 C. 445). Nor have the jury or viewers passed on that question, which, it is taken for granted in the same case, must be done. The order of court did not command them so to do, nor have they said one word about it in their report; they merely determine the value of the land taken, not the necessity, or even convenience of appropriating it. No evidence could properly be introduced before them on the subject, as they were not commanded to inquire in relation thereto. This is also a fatal defect. It must be borne in mind that these proceedings are entirely ex parte. The company filed its bond to cover the damages, and entered upon the land; no doubt endeavored to agree as to the price, but failed; and then presented its petition to have viewers appointed, which is always done without notice. The order is taken out by the petitioner in its own form, and the owner has, for the first time, notice of the view and a right to appear before the viewers. The report in this, as in all other cases, is drawn up by the counsel of the petitioners, and no mention is made as to the wants of the company in regard to the land; but the damages are very properly set forth with great particularity, as is ordered by the court in all such cases. On the return of that report the owner has, for the first time, an opportunity to contest the propriety of stripping him of his freehold for the use of the public, of showing that his land is not wanted for any purpose recognized by law, and that the company has an ample estate on which to conduct its business. We cannot presume all things to be rightly done; the company must show at some period of time the necessity for taking the land, and a full compliance with all the provisions of its charter. Even the bond filed is better calculated to mislead than enlighten the owner, as it declares that the company is about to take three acres of land, “ not including the buildings’’ for the purpose of worlcs connected with its road, and the report shows that the buildings are all included. These proceedings must be set aside from the beginning, except the bond, which must stand as security for the value of the property to be taken, and damages sustained thereby, when the same shall be lawfully detennined, and the necessity of the appropriation established before the viewers. The company is not to be the sole judge of what it requires; but, as is said in O’Hara v. The Penna. Railroad Company already cited, that important point must be determined by the tribunal appointed by the law.

Lamberton, Alriclcs, and Ademan, for plaintiff.

Kunhel, for defendant.


text:
      Court of Common Pleas, Dauphin County,

      February 26th, 1867.
    Shick v. The Pennsylvania Railroad Company.
    A mistake in entitling or numbering a suit will not afPect the validity of the proceedings. A draft filed of land intended to be taken by a railroad company need not state the kind of buildings or other improvements upon it. "When land was taken by a railroad company, a bond filed to secure the payment of its value, an appraisement made, and afterwards all the proceedings except the bond were set aside by the Court, if the owner builds houses on the property to prevent the company from faking it, the latter will still be allowed to have it, and need not pay for such improvements.
   By the Court.

The Pennsylvania Railroad Company, being desirous to possess and occupy some of the land belonging to John M. Shick, for the use of its road, and being unable to agree for its purchase, on April 7th, 1863, filed its bond, approved by the court under section 12 of its charter law, conditioned as therein provided (see P. L. of 1846, 321), and took possession of a portion of the premises. Afterwards, to wit, at August Term, 1864, the company presented its petition to have viewers appointed to assess the damage; which was done, report made, and an appeal taken by Shick; also exceptions filed by him, on which, on February 26th, 1866, the whole proceeding was set aside for irregularity, except the bond, which was good and valid, and was suffered to “stand as security for the property to be taken, and the damages sustained thereby, when the same shall be lawfully determined, and the necessity of the appropriation established before the viewers.” On November 19th, 1866, another bond was filed, conditioned as the former, as additional security. And on the same day a new petition was presented, reciting the former bond and all the subsequent proceedings, and asking for the appointment of viewers, which was made January 3d, 1867. Prior to this, to wit, on November 19th, 1866, Shick filed his objections to the proceedings of the company, but the same were overruled by the court, and viewers appointed as stated, to determine, among other things, many of the facts contained in those exceptions. On February 6th, 1867, additional exceptions were filed, stating that the proceedings were not properly entitled, but should have been to January Term, 1867, instead of August Term, 1864, and also that the draft, or plot of land to be taken was incorrect, in not setting forth the houses erected thereon, and the land covered by the rails. The entitling or numbering the proceedings is of little moment. It is merely used as a means of enabling the officer to find the papers. In many counties, such cases, or petitions in the sessions, are neither entitled, numbered, or docketed.

From the form of the company’s petition, it is evidently intended to be a continuation of the former proceeding; whether it is or is not such, we need not decide; the question is unimportant. It is not necessary for the draft or plan of the ground to refer to the character of the improvements thereon, whether covered with houses or grass, used for a grain-field or brick-yard. The object is to designate the land intended to be taken, by filing an accurate survey thereof. Houses, excepting those occupied as homesteads by the owner of the land, are not protected from the railroad company (section 3, act of February 19th, 1849). Shick avers that after the former proceedings were set aside, and before the present were commenced, he erected a number of tenement houses on the land proposed to be taken. The company says that they were built in bad faith, when the owner knew that it required the ground, and had taken the necessary preliminary steps to possess itself of it. The first steps were unquestionably taken in 1863. An effort was made to purchase; that failing, a bond was filed, probably a survey made, and a set of tracks or track laid for a siding. The filing of an approved bond for the payment of damages, gives to the company the right to enter upon and occupy the ground, provided it is required by the railroad company for a purpose within the provisions of its charter. That question we have already said in a former opinion (Shick v. The Penna. R. R. Co., 1 Pearson, 259) must be determined by the viewers. Having then the right of entry, subject to that determination, and'having entered and indicated the land to be taken, if the owner improves it afterwards, he does it at his peril. If the viewers decide that the company is not authorized by law to take it for the purpose proposed, the owner will hold it. Should they determine otherwise, his improvements were made in error, and he cannot recover compensation for them. It may be said that this might operate hardly on landowners, by tying up their property from use for an indefinite time, as the company may not ask for the appointment of viewers. If it does not, the owner may petition; he has the same right as the company, and the proceeding is quite summary; a few weeks will generally settle the question. It is urged, however, that as all of the company’s proceedings except the bond, were set aside on February 26th, 1866, and no further measures taken by it until November 19th, of the same year, when a new bond was filed, and petition presented, the landowner had every reason to believe that the company had abandoned the claim, and therefore built his houses in good faith. That question is to be decided by the viewers under all of the circumstances. If the bond also had been vacated for irregularity, it would have added great force to the argument, but it was not. It would also have been strengthened by abandoning or taking up the tracks, if on this ground. Neither being done, it is a little difficult to see how the landowner could have been misled. We are disposed to leave that question to the viewers, who will determine Avhether the houses were built in good faith, or to keep the company from taking the land, or obliging it to make additional payments. If done maid fide, nothing will be allowed for the houses, should the viewers decide that the company is authorized to take the land; and if any sum is assessed for the buildings, it must be stated separately. A new bond was filed when the second petition was presented, but that was perhaps because the first was for too small a sum, provided the whole property should be taken. If the viewers disallow the cost of the houses so erected, they may, if they see proper, ascertain and state their value, with their reasons for disallowing the claim, so that this and the Supreme Court may have the whole subject presented by the report.

Lamberton, Alrielcs, and Alleman, for plaintiff.

Kunlcel, for defendant.

These exceptions are overruled.


text:
      Court of Common Pleas, Dauphin County,

      May 1st, 1868.
    Shick v. The Pennsylvania Railroad Company.
    The general railroad act of 1849, and the supplements thereto of April 27th, 1855, and April 9th, 1856, have no application to the Pennsylvania Bail-road Company, incorporated in 1846, or to any other pre-existing railroad companies, and although the legislature’ have the power to modify the method by which damages are assessed for lands taken by such companies, the acts referred to are not an exercise of it.
   By the Court.

The original act incorporating the Pennsylvania Bailroad Company provided for the selection of twenty men by the sheriff of the proper county, and the appointment of twelve of the number to assess damages sustained by the owners of property on account of the interference therewith by the construction of the railroad (see P. L. 1846, section 12, p. 321). In 1848 the law was changed; the number of viewers reduced to five, to be appointed by the court from a neighboring county, all of whom were required to view (see act of 1848, P. L. p. 274, section-4). A further modification took place in 1850, which enabled a majority to view and report (see P. L. p. 583, section 1). So the law stands at present. No power is reserved in the various laws incorporating this company, by which the legislature is authorized to modify or change the charter, and as the corporation was created prior to the adoption of the late amendments to the Constitution of the State, it is probable that the legislature has no general control over it without the consent of the corpora-tors. In 1849 a general act was passed for the creation of railroad companies, providing, inter alia, for the assessment of damages by seven viewers, to be appointed by the court, “discreet freeholders of the county,” at least five of whom must view, and assess the damages. In this law the legislature took care to reserve the right to modify, change, or revoke the charter.

On the 27th day of April, 1855, an act was passed giving the right of appeal from the report of viewers under the act of 1849, Avhere either party considered themselves aggrieved by the assessment of damages (see P. L. p. 365). This statute most clearly applied to no other assessments than those made under the act of 1849, but as it was doubtful whether it embraced cases then pending, a supplement was passed to the act of 1849, explanatory of the former law, and making many other provisions connected with the proceedings, both in regard to the land to be given and method of conducting the appeal. Every provision of this statute shows that it was only intended to apply to cases under the act of 1849, to which it was supplementary. It is shown by its title' and every section and provision of the law. It is repeatedly recited to be a supplement, as stated in the title, and one provision in the third section is entirely inconsistent with the charter laws • of the Pennsylvania Pailroad Company. This section gives the right of appeal from the report of the viewers or any four of them, whereas the act of 1850, already cited, enables three viewers to assess the damages done by the railroad company. There is nothing indicating an intention to change that law. Only five viewers were required under the charter of this company, whereas seven must be appointed under the act of 1849, and at least five view the premises.

This act was designed to apply to companies created after its passage, and intended as a model on which all should be formed. Neither the original law nor any of its supplements have the slightest application to pre-existing companies. We can see nothing in the act indicating an intention to modify or change the charter of the Pennsylvania Pailroad Company. It is contended by the defendant’s counsel, that it transcends the power of the legislature to make any alteration therein without the consent of the corporation. As'we understand the Constitution, this charter can neither be revoked nor essentially changed by the legislature, but we do not consider the doctrine as to the inviolability of charters applicable to an assessment of damages. We hold that an appeal could be given to the party whose property is injured, as thereby a great constitutional right — the trial by jury — is secured. The question here does not involve the power of the legislature, but whether it has or has not been exercised, and we are clearly of the opinion that neither the act of 1855 nor that of 1856 have any relation to this or any other company, except those created under the act of 1849. Supplementary acts should be construed as relating to the law of which they form a part, and to that alone, unless otherwise expressed.

Lamberton, Alrielcs, and Alloman, for plaintiff.

Kunhel, for defendant.

None of the decisions cited by the plaintiff’s counsel on the argument, have the slightest application to this case. Where an appeal is given, it is the only remedy to correct errors not apparent on the face of the proceedings (9 Wright, 339). But where no appeal is given, the party must seek redress by exceptions or endeavor to prevent confirmation by the court. The third section of the act of the 16th of May, 1857, relative to the sale of the public works, relied on to show that the Pennsylvania Railroad came within the act of 1849, has no bearing or application whatever. It merely authorizes the governor to create a new corporation under that law if individuals should buy who were not then.incorporated. The appeal taken in this case is unauthorized, cannot be sustained, and must be quashed.


text:
      Court of Common Pleas, Dauphin County,

      May 1st, 1868.
    In re Shick’s Bill of Costs.
    In. a statutory proceeding, as in the assessment of damages by viewers, for lands taken by a railroad company, the right to costs depends altogether upon the wording of the act of Assembly providing for such proceeding; therefore, when the act provided, “ and if any damages be awarded and the report be confirmed by said court, judgment shall be entered thereon, and if the amount thereof be not paid, execution may issue thereon, as in other cases of debt, for the sum awarded, and the costs and expenses incurred shall be defrayed by the said railroad company,” no costs will be allowed to the owner of lands taken unless damages are awarded and the report confirmed.

   By the Court.

The. Pennsylvania Railroad Company entered upon the property of John M. Shick, within the city of Harrisburg, claiming to take the same for the use of the company, under the provisions of its charter. A bond had been tendered and filed, conditioned to pay all damages, as required by law, and the company presented its petition, had viewers appointed, and the damages assessed, from which assessment Shick appealed to court, and also filed exceptions to the proceedings of the viewers and the sufficiency of the order under which they were appointed. On hearing, the court set aside the report of the viewers on the ground that the order under which they acted was defective, consequently that the viewers had omitted to pass upon the most important rights of the parties. Shick now files a bill of costs for witnesses subpoenaed and examined by him before the viewers, and asks us for an attachment against the company to compel its payment. Is he entitled to recover costs ?

• This is a statutory proceeding, contrary to the course of the common law, and costs can only be allowed when they come within the provisions of the acts of Assembly.

The act of the 13th of April, 1846, under which this company was incorporated, and its supplement, passed the 27th March, 1848, have adopted similar provisions, and in identical words, on this subject; after directing the method of appointing viewers, the latter'law provides, “and if any damages be awarded, and the report be confirmed by said court, judgment shall be entered thereon, and if the amount thereof be not paid, execution may issue thereon, as in other cases of debt, for the sum awarded, and the costs and expenses incurred shall be defrayed by said railroad company.” This is also the language adopted by the general railroad law of 1849. What is the proper construction of the statute? To oblige the company to pay costs and expenses, damages musí be awarded and the report of the viewers confirmed by the court, when it becomes its duty to enter judgment. Without an award of damages, and that confirmed, the provision of the statute giving costs and expenses against the company does not come in force. Under the statute either party may petition to have the damages assessed; and where the owner of the property presents the petition, and the viewers determine that he has sustained no damage, it can scarcely be pretended that the company would have to pay the costs and expenses, yet the words of the statute apply to that, as well as the case of the company becoming petitioner. All of our acts of Assembly, so far as I have observed, including the thirteenth section of the act of July 16 th, •1842, relating to canals and railroads, make the payment of costs depend on the assessment of damages and the approval of the finding. As we interpret the charter law of this company, where it takes possession of property for the use of the road, under the power conferred, having given bond as required by law, it may rest on such appropriation, and permit the holder to become the actor by presenting a petition for the appointment of viewers; should they determine that the owner of the property had been uninjured or that the benefits were equal to the injury, and award no damages, the petitioner must be at the expense of the proceeding. If the company, being desirous of seeing how much it must pay for its privileges, presents its petition, and the viewers report that there has been no damage sustained, the company would have to meet the expenses of the view incurred by its own action; but in neither of the cases mentioned would the party acting on the defence be entitled to recover any costs, because there is no provision in the statute giving it. The only case provided for is where damages are awarded and the report confirmed. In the case under consideration, damages were awarded and the railroad company desired to have the report confirmed, in which case it would have been obliged to pay the costs and expenses incurred by the owner of the property in attending on the view, but Shick filed exceptions to the action of the viewers, and the report was set aside by the court. Not being “ confirmed,” the statute does not give costs, which follow the assessment and confirmation of damages.

Laniberton, Alrielts, and Alleman, for plaintiff.

Iúmlcel, for defendant.

The principle here stated is by no means singular; there are very many cases where equal hardships exist; a party brings a suit in court and his adversary incurs great expense in showing, by witnesses, that the court has not jurisdiction, which is established, yet the defendant can recover no costs, for the rule is, we believe, universal, that where there is no jurisdiction costs are not allowed. Or again, the plaintiff has a verdict in his favor and the judgment is arrested; the defendant cannot recover costs (Cowper, 407; Gilbert’s C. P. 272). In quo warranto, where there is no relator, the defendant, though ousted, cannot be ordered to pay costs (3 S. & R. 52). One of several terre tenants, having a verdict in his favor, cannot recover costs (10 Watts, 87). In claims for road damages, either party may properly call witnesses to enlighten the viewers on the subject, yet it cannot be pretended that the cost of those witnesses could be taxed and the adversary obliged to pay them. Indeed, costs were, by the common law, not given to either party, and a plaintiff first recovered them under the statute of 6 Ed. I, cap. 1, and for several centuries thereafter a defendant could recover no costs until given in a few enumerated cases under the two statutes of Henry Will, and afterwards extended by 4 James I, cap.- 3, made general by 8 and 9 William III, cap. 12; all of which laws have been extended to Pennsylvania. In the case under consideration, neither party can be called plaintiff or defendant, but the railroad company, being the actor, stands in the light of plaintiff, and must pay the costs incurred, except those claimed by Shick for his witnesses, subpoenaing them, and which embraces the whole bill, all of which is disallowed on the principles indicated.