source: Caselaw Access Project

author: by Thompson, C. J.

license: Public Domain

text:
    Pennsylvania Railroad Co. versus Keller et ux.

    1. The Act of March 4th 1852 authorizes a change of names, if it be made apparent to the court that there was a mistake in instituting the suit.
    2. An action by a mother for negligence in causing the death of her son. above age can be maintained, if the family relation existed between them at the time of his death and there were reasonable grounds to expect pecuniary advantage from the continuance of the relation.
    3. In an action by a mother for negligence causing death of her son, the court charged: “that it is not necessary, to enable the plaintiff to recover, damages for the death of her son, that the evidence should show the precise amount of the damages in dollars and cents. But the evidence must clearly show that the plaintiff did actually sustain damages — pecuniary damages or loss.” Held to be correct.
    4. The purpose of the Act of April 4th 1868, is to declare what the courts had said was the construction of the Act of April 26th 1855, that compensation for loss of life was to be measured by the loss thereof to the parties entitled to compensation.
    5. Life, by law has a value for the loss of which the survivors have a right to be compensated in view of its circumstances.
    6. In estimating the value of life, that personal exertions may ever be required of its possessor or his possible want of capacity are not to be taken into account.
    7. The sound sense of the jury must ascertain the pecuniary value from the evidence in the case as best they may.
    8. To recover damages for death by negligence it is not necessary that the next of kin should' have had a legal claim on the deceased for support.
    9. The Acts of 1855 and 1868 are in pari materid, and both make a system.
    10. Pennsylvania Railroad v. Adams, 5 P. F. Smith 499, approved.

      January 3d 1871.
    Before Thompson, C. J., Read, A&new and Williams, JJ. Sharswood, J., at Nisi Prius.
    Certificate from Nisi Prius, No. 65, to January Term 1866.
    This was an action on the case brought September 18th 1865, by Louisa Anker against the Pennsylvania Railroad Company for negligence resulting in the death of her son, Herman Anker, whilst a passenger on the defendants’ cars.
    The declaration, filed March 31st 1866, after setting out that the deceased had been a passenger on the defendants’ cars, and had lost his life by their negligence, averred that he died leaving no father, and that she being his mother was entitled to recover damages for his death, whereby she was deprived of her means of support from his labor and earnings, &c. On the 9th of December 1867, the plaintiff was permitted to amend the record by changing her name to Louisa Keller, and adding the name of her husband, Joseph Keller, as co-plaintiff. Another declaration was after-wards filed so as to conform to the change in the record.
    On the trial, December 20th 1869, before Williams, J., the plaintiff testified to her relationship to the deceased; that he had enlisted in June 1861 in the army of the United States for the suppression of the rebellion; that he continued in the army until about December 1863, when he re-enlisted on the field; that he had sent her money several times whilst in the army. On cross-examination, she testified that he afterwards lost a leg, and that she frequently sent him money 'whilst in the hospital; that her first husband, the father of the deceased, had died in 1843, and she had been married again in 1845; that she had received several hundred dollars from the government as a pension on account of her son’s death; that she had made the application in the name of Anker. She gave evidence that her son had been on a train of the defendants’ cars on the 21st of September 1864, and had been killed in the cars by a collision with another train. She gave other evidence to show that the deceased had assisted in her support; also that he was about twenty-four years old at his death.
    The defendants gave in evidence the application of Mrs. Keller for a pension; it was dated August 23d 1865; in it she stated under oath that she was the widow of John Anker, and that she was still a widow, &c.
    The defendants requested the court to charge:—
    1. That if. the jury believe, on the evidence in the case, that the suit was Originally brought in the name of Louisa Anker and on the allegation she was a widow at the time of bringing the suit, for the [purpose of covering up a fraudulent claim for a pension from the United States, or in consequence of- such a fraudulent claim having been made, and not through accident or mistake, then plaintiff was not entitled to any amendment of the pleadings, and cannot recover here.
    2. That Herman Anker having been of lawful age when he died, the mother is not entitled to recover in this action.
    3. That there can be no recovery in this ease for the losses or for the sufferings of the deceased, or for solace for the feelings of the living.
    4. That any recovery had in this case must be strictly limited to a pecuniary compensation for a pecuniary loss, actually shown to have resulted to plaintiff from the negligence of the defendants.
    The court, after stating the case, said :—
    *' * * “ The court decline to charge as requested in the 1st point. The case is now to be tried as the parties appear on the record, precisely as if it had been so brought in the first instance.
    “ The court decline to charge as requested in the 2d point. The rule of law, as laid down by the Supreme Court in the case of The Pennsylvania Railroad Company v. Adams, 5 P. F. Smith 499, is that if there be a reasonable expectation of pecuniary advantage from a person bearing the family relation, the destruction of such expectation by negligence, occasioning the death of the party from whom it arose, will sustain the action. If, therefore, the mother had a reasonable expectation of pecuniary advantage from her son, the plaintiff is entitled to maintain the action.
    “ The 3d point-is affirmed.”
    As to the 4th point:—
    “ The recovery had in this case must be strictly limited to a pecuniary compensation for the pecuniary loss which resulted to the plaintiff from the negligence of the defendants, by which the death of her son was occasioned. [But it is not necessary, to enable the plaintiff to recover damages for the death of her son, that the evidence should show the precise amount of the damages in dollars and cents.] From the nature of the case, the precise and definite amount of the damages cannot .be actually shown. [But the evidence must clearly show that the plaintiff did actually sustain damages — pecuniary damages or loss; and if she did, the plaintiff is entitled to maintain the action and recover such damages as the jury may find from the evidence that she has sustained.] But, as we have already instructed the jury in answer to the defendants,’ 3d point, there can be no recovery for the sufferings of the deceased, or anything by way of solace for the wounded feelings of the mother.”
    The judge then read the 2d section of the Act of Assembly, entitled “ An Act relating to railroad companies and common carriers, defining their liabilities, and authorizing them to provide means of indemnity against loss of life and personal injury,” approved 4th of April, A. D. 1868, Pamph. L. 58, as follows:—

      “ That in all actions now or hereafter instituted against common carriers or corporations owning, operating or using a railroad as a public highway, whereon steam or other motive power is used, to recover for loss and damage sustained, and arising either from personal injuries or loss of life, and for which, by law, such carrier or corporation could be held responsible, only such compensation for loss and damage shall be recovered as the evidence shall clearly prove to have been pecuniarily suffered or sustained, not exceeding, in case of personal injury, the sum of three thousand dollars, nor in case of loss of life, the sum of five thousand dollars,’ ” and proceeded:—
    [“ This act must receive a reasonable construction. It does not mean that there can be no recovery of compensation for the loss and damage sustained and arising from personal injuries or loss of life, unless the evidence clearly shows the precise amount of the loss or damage pecuniarily suffered or sustained. There can be no recovery under the act, unless the evidence shows that pecuniary loss or damage has been actually suffered or sustained. But if there be evidence of actual pecuniary loss or damage, its precise amount in dollars need not be shown in order to a recovery. For a personal injury — the loss of an arm — there may be a recovery of damages for the pain and suffering occasioned thereby, as well as compensation for the pecuniary loss. But if there could be no recovery for the pain and suffering, and the legislature should pass an act providing that, in addition to the pecuniary damages arising-from the loss or injury, there might be a recovery for the pain and suffering occasioned thereby, but that only such compensation should be recovered therefor, as the evidence should clearly prove to have been pecuniarily suffered or sustained, the fair construction of such an act would be, not that the evidence must show the precise sum in dollars that would be a compensation for the pain and suffering before there could be a recovery; but if there was clear proof of the pain and suffering, pecuniary compensation might be recovered therefor, though the evidence might not show the precise sum that would be a compensation for the pain and suffering. So, under this statute, the evidence must show that the plaintiff sustained actual pecuniary loss or damage by the death of her son, in order to entitle her to recover; but it is not necessary that the evidence should show the precise amount of the loss or damage.

      “ If the evidence shows that the plaintiff sustained actual pecuniary loss by the death of her son, though the precise amount be not shown, the jury may determine the amount and make up their verdict from the evidence. It will be for you — if you are satisfied that Herman Anker was the plaintiff’s son, and actually killed on the cars through the negligence of the defendants, and are also satisfied that the plaintiff had a reasonable expectation of profit from his life — to determine the damage she has sustained.] We have nothing to do with the application for the pension, except as it affects the credibility of the witness. The railroad company cannot set off the amount of the pension against the damages in this case; and the fact that the plaintiff improperly received the pension does not concern the defendants, and is only to be considered by the jury in reference to her credibility. [If you are satisfied that the plaintiff now tells the truth, and if you find from all the evidence that her son was killed by the negligence of the company, and that she had a reasonable expectation of pecuniary advantage from him, then you are to determine the amount of the damages. Under the Act of Assembly, it cannot exceed five thousand dollars. You ought to exercise your good sense and judgment in estimating these damages — they ought to be reasonable. It has been properly argued that the son had lost his leg, and that he had not the same ability as one who was sound; but it should also be considered that he was entitled to a pension, and he might not have been always on crutches — he might have got an artificial limb. He might have married, it is true, but he might still have assisted his mother. These are matters for the consideration of the jury. It is not true, in point of law, that a parent has no pecuniary interest in the life of a child over twenty-one years of age; for by our law the child, if of sufficient ability, is bound to support the parent when he or she becomes old and indigent.”]
    The verdict was for the plaintiffs for $3000.
    The defendants took out a writ of error, and assigned for error, allowing the amendment in the record and declaration; the answers to the 1st and 2d points; the qualifications to the 4th point as contained in the parts of charge in brackets.

      Chapman Biddle and T. Cuyler, for plaintiffs in error.
    A married woman cannot sue alone: Kutz’s Appeal, 4 Wright 94; Smith v. Smith, 9 Id. 403. At the commencement of the suit it was defective for want of proper parties. The Acts of May 4th 1852, § 2, Pamph. L. 574, April 12th 1858, Pamph. L. 243, Purd. 47 pl. 3, 4, allow amendments in cases of mistake; there is no evidence of mistake here, and the amendment should have been refused: Locke v. Daugherty, 7 Wright 88. The evidence shows that the original form of action was for a dishonest purpose. No suit was properly brought within a year; an amendment three years after the death is to be treated as a new suit, and beyond the limitation : Russell v. Bell, 8 Wright 54. There was no evidence of reasonable expectation of pecuniary advantage from deceased to plaintiff. The Act of 1868 (Purd. 1521, pl. 2, referred to in the charge) was to restrict the rule as to the measure of damages as laid down in Penna. Railroad v. McCloskey, 11 Harris 526, and fix a more precise standard, requiring proof of the actual damage: Franklin v. South-East Railway Co., 3 H. & N. 211; Dalton v. Same, 4 C. B. 226.
    February 9th 1871,

      F. C. Brightly (with whom was F. F. Brightly), for defendants in error.
    The amendment was properly allowed: Druckenmiller v. Young, 3 Casey 97; Ganzer v. Fricke, 7 P. F. Smith 319; Wilson v. Savings Bank, 9 Wright 494; Cochran v. Arnold, 8 P. F. Smith 399; Rangler v. Hummel, 1 Wright 132. The plaintiff’s right to damages is established by Penna. RR. v. Adams, 5 P. F. Smith 499: Dalton v. South-East Railway Co.; Franklin v. Same, supra. The parent has a right of action for the death, independently of the question of damages: Penna. Railroad v. Zebe, 9 Casey 329; Same v. Bantom, 4 P. F. Smith 495; Coakley v. Penna. Railroad Co., 6 Am. Law Reg. 355. The Act of 1868 is but in affirmance- of the law existing before, which is compensation for actual loss: Coakley v. Penna. Railroad, Penna. Railroad v. Bantom, supra; Same v. Goodman, 12 P. F. Smith 329; Illinois Central Railroad v. Barron, 5 Wall. 90.
   The opinion of the court was delivered,

by Thompson, C. J.

The first thing we shall notice is the complaint of error in allowing the record to be amended at a term antecedent to the trial below, by changing the names of the plaintiffs. This the Act of the 4th of May 1852 fully authorized, if made apparent to the court that there was an error in the original institution of the suit. But we will not dwell on a matter so well settled, as the right of the court to allow such an amendment as was permitted in this case, on considerations which-showed that in justice it ought to be made. The authorities cited by the counsel of the defendants in error fully prove this. But we discover no exception taken when the amendment was ordered, and this is at once an answer to this matter of complaint.

Afterwards, and on the trial, the amendment was attempted to be overthrown and the plaintiffs put out of .court by an appeal to the jury, occurring in this wise. Evidence was offered to show that Louisa Keller, the meritorious plaintiff, had at one time applied for a pension, as the widow of one Anker, being at the time married to Keller, and obtained the same in fraud, as is alleged, of the pension laws, and that this suit was brought in the same name to cover that fraud, and therefore-she was not entitled to the amendment in the case referred to, and consequently not entitled to maintain this suit. There was a point to this effect put to the court to charge upon, but of what evidence it was predicated we know not. The learned judge refused so to charge, and told the jury that the case was to be tried as the parties appeared on the record, precisely as if it had been so brought in the first place. This was right beyond a peradventure, and the error is not sustained. Nor is there any error in the 2d and 4th assignments.

The 5th error assigned raises a question of the right of plaintiff, Louisa Keller, to recover for the loss occasioned by the death of her son by negligence of the company, he being over age at the time. But our learned brother charged, in answer to the point on that subject propounded, that if the family relation still existed between mother and son, at the time of the death, and there were reasonable grounds on her part to expect future pecuniary advantage from the continuance of this relation, as in the past since arriving at age, the destruction of such expectations by the negligence of the defendants in causing his death, it would sustain the action, and referred the facts in evidence to the jury. This was right, or the .case of The Penna. Railroad Co. v. Adams, 5 P. F. Smith 499, was wrong, a conclusion which we are by no means prepared to make. This error is therefore not sustained.

The material question in the case is raised by the defendants’ 4th point, and the answer thereto. The point was, “that any recovery had in this case must be strictly limited to a pecuniary compensation for a loss actually shown to have resulted from the negligence of the defendant.” The learned judge agreed, and charged that any. recovery in the case must be strictly limited to a pecuniary compensation for the pecuniary loss resulting to the plaintiff, but added, “ it is not necessary, to enable the plaintiff to recover damages for the death of her son, that the evidence should show the precise amount in dollars and cents. From the nature of the case, the precise and definite amount of the damage cannot be actually shown. But the evidence must clearly show that the plaintiff did actually sustain damages — pecuniary damages or loss.” This was the view taken by the learned judge of the 2d section of the Act of 4th April 1868, which he conceived to be required, as a reasonable interpretation of it. In this we all agree.

The construction contended for by the company, would, beyond a question, deny compensation for death by negligence in almost every conceivable case. Is it possible to become reconciled to the belief that the legislature intended, that by the terms used in the section, there lurked a repeal, by implication, of existing remedies for the greatest of' all civil wrongs, the deprivation of life of husband or wife, or parent and child, by negligence? We cannot impute such an intention, unless the words will bear no other meaning. I certainly believe they do. A plain'reading of them shows a purpose to declare what the courts had said by construction to be the rule, in giving compensation under the Act of 1855, for the loss of life, viz., that it was to be measured by the pecuniary value and loss thereof to the parties entitled to compensation, and thus make that rule plain and uniform. I confess that until the views of the counsel for the plaintiff in error were presented, I never suspected such a construction possible. It was natural to entertain the belief, as I did, that if the legislature meant to take away the remedial provisions of the Acts of 1851 and 1855, it would have said so, and hence I supposed the section in question was a declaratory enactment merely, and I believe so yet, notwithstanding the able and earnest argument of the counsel, that it meant more than this. The words are: “In all actions now or hereafter instituted against common carriers or corporations, owning, operating or using a railroad as a public highway, whereon steam or other motive power is used to recover for loss or damage sustained, and arising either from personal injuries or loss of life, and for which by law such carrier or corporation could be held responsible, only such compensation for loss or damage shall be recovered, as the evidence shall clearly prove to have been pecuniarily suffered or sustained, not exceeding, in case of personal injury, the sum of three thousand dollars, nor in case of loss of life, the sum of five thousand dollars:” Annual Digest by Brightly, 1521.

Now, it seems to me, the'very limitation of the amount which may be recovered, implies that that amount may be given in a proper case; hut how such a sum could be "given, in the restricted view taken of the act, I cannot see. The act says, only such damages shall be allowed as the evidence shall clearly prove to have been pecuniarily suffered or sustained. These words are exclusively in the past tense, and if so construed-no damages whatever could be allowed. No damage, under the act, could be said, to have accrued to- any one until the death resulted, and none can be allowed by the terms of the act but such as have been sustained by the destruction by negligence of the life, and as these words do not apply to the future, no damages at all could be given. This' view is, however, utterly unreasonable, we think, and not to be entertained for a moment. In this way, it strikes us, it denies all damages under this act, as well as under the Acts of 1851 and 1855.

But there is another aspect of it which will result from the principle insisted upon, viz., that the test of the right to recover being the “ pecuniary damages clearly proved to have been suffered,” it will follow that all those who from youth, old age or other circumstances, are non-producers, may become the victims of negligence without any compensation to survivors. Nay, more, the corollary of the postulate would prevent compensation where the survivors are absolutely benefited by the death, either as gainers by a distribution of the property of the deceased, or by the riddance of a troublesome charge. The controversies which would arise, if this were the rule, would be repugnant and offensive to the sensibilities of every person. The law expresses no such idea, and we are not to give to it that operation by construction. Compensation for the loss of life was given to certain survivors by the Act of 1855. The law chose to regard it as property in a certain sense. It was to be estimated by the same standard as property, viz., its pecuniary value, not to be enhanced by any considerations of pain to the deceased, or anguish to the survivors. Life, by law, had a value for the loss of which the survivors had a right to be compensated, in view of its circumstances. In estimating it, considerations that personal exertions may ever be required of its possessor, or the possible want of capacity in such possessor, are not to be taken into account. • All stand on a platform common to their positions, and the value of the loss to be .compensated is to be estimated with a view thereto. None are without value in the eye of the law, and because there are difficulties in the way of determining the question of value, it' is not a good reason for denying it altogether. The sound sense of the jury must ascertain the pecuniary value by which” it is to be estimated from the evidence in the case, as best they may: Railroad Company v. Barren, 5 Wal. U. S. Sup. Ct. Rep. 90. This last case arose in Illinois on a statute somewhat similar to the one in question. There the provision is, that in every such action “ for death, occasioned by negligence, the jury may give damages as they shall deem a fair and just' compensation with reference to the pecuniary injuries resulting from such death, not exceeding,” &c. In that case (and it supports our view) it was held by the Supreme Court of the United States, that it 'is not necessary to the recovery that the widow and next of kin shall have had a legal claim on the deceased for support. This could only be asserted by regarding the life as property, to be compensated without' regard to past earnings or capacity to earn at the time of death.

We ought to regard the Acts of 1855 and 1868 as in pari materid; they concern the same statutory rights, and neither contains what the other does, but both make a system. Together, they give a right of action, and fix a standard of compensation for the injury to be compensated. In this aspect we 'see utility in the section of the Act of 1868 referred to, and we escape a construction destructive of the rightof action in case of death, given by the Act of 1855. We think our brother laid down the law with entire accuracy, when he held the loss must be estimated by its pecuniary value, but the evidence need not show the precise amount in dollars and cents. That was for the jury to find under the evidence.

As we see nothing in the record to correct,

The judgment is affirmed.


author: by Agnew, J.

text:
    Delaware Avenue.
    1. Under the Act of May 3d 1869 (Roads in Philadelphia), the Quarter Sessions in setting aside a report must expressly state that the report was set aside in pursuance of an exception sustained by the court.
    2. The order in such a road case was “ report set aside.” The order was reversed.
    January 9th 1871.
    Before Thompson, C. J., Read, Ag-new and Williams, JJ. Sharsw'ood, J., at Nisi Prius.
    Certiorari to the Court of Quarter Sessions of Philadelphia: No. 196, to July Term 1869.
    On the 6th-of October 1868, the Court of Quarter Sessions of Philadelphia, on the petition of Samuel B. Bailey,. appointed viewers to' assess damages to him by reason of the opening of Delaware Avenue, between Davis and Catharine streets, through a piece of ground, owned by the petitioner. The viewers reported that they held a number of meetings, as set out in their report, and that there were present at these meetings the counsel of the petitioner, counsel of the "estate of Daniel McCarthy, deceased, and counsel of the City of Philadelphia; and that they had examined a number of witnesses named in the report. They further reported that Samuel B. Bailey had sustained damages in the sum of $10,000 and that the estate of Daniel McCarthy had sustained no damage.
    The report was filed January 16 th 1869, and on the 5th of February the executors of McCarthy filed exceptions, because the viewers refused damages .to the estate of McCarthy; notwithstanding the land taken was 87 feet front by 50 -feet .and was worth $5 per foot, and notwithstanding they had awarded $10,000 for the Bailey property which adjoined McCarthy.
    On the 11th of March, the City filed exceptions, because the damages were excessive.
    On the 28th of June, the court made this order: “ Report set aside.”
    A certiorari from the Supreme Court was thereupon issued, at the instance of Bailey, "who assigned for- error:—
    The “setting aside-the report of the jury so far asSamuel B. Bailey is affected thereby.”

      D. W. Sellers and J. W. Paul, for Bailey.
    The court should have given the reason for setting aside the report: Act of May 3d 1869, Pamph. L. 1247, which provides “ that no report * * * shall be set aside, unless in pursuance of some exception filed * * * and in all cases now pending, or- hereafter to be brought in the Supreme Court, by certiorari' to the order * * setting aside the report * * the said order shall be revised, and the cause remanded for further proceedings, if it does, not expressly appear from the record, that said order was made in pursuance of an exception * * sustained by the court below.” The court should have confirmed the report as to one landholder and set it aside as to another : City v. Dickson, 2 Wright 247; Railroad v. v. Boyer, 1 Harris 497; Turnpike Road v. Brosi, 10 Id. 29.
    January 16th 1871,

      C. H. Gross and T. J. Barger, for the City.
    Upon certiorari nothing hut the regularity of the proceedings as appearing upon the record, is brought into question: Spring Garden Street, 4 Rawle 192; Philadelphia and Trenton Railroad, 6 Wharton 25; Pennsylvania Railroad Co. v. The Lutheran Congregation, 3 P. F. Smith 445; Church Street, 4 Id. 353. The Act of 1869 has not changed this practice. Each. claimant has not a right to a separate jury of viewers: Act of April 1st 1864, Pamph. L. 207. The decree of the Quarter Sessions was not final and the certiorari should be quashed : Road in Kiskiminetas, 8 Casey 9.

      P. Archer and L. C. Cassidy, for McCarthy’s Estate.
    The decree was interlocutory and certiorari does not lie: Schuylkill Falls Road, 2 Binney 250; Fretz’s Appeal, 3 Harris 397; Opening Wharton Street, 12 Wright 487; nor does it bring up the evidence: Spring Garden Road, 7 Wright 144; Church Street, 4 P. F. Smith 353; Kirk’s Appeal, 4 Casey 185.
   The opinion of the court was delivered,

by Agnew, J.

It is not for this court to determine the motives of the legislature of 1869 in passing the Act of 3d May, relative to orders of road view and assessment of damages, in Philadelphia county, Pamph. L. 1869,1247. They may not have been justifiable. But we find that'the act, in the most direct and explicit language, declares that no report of viewers appointed, &c., shall be set aside unless in pursuance of some exception filed to the said report as in the said act provided (13th April 1854), and in all cases, &c., brought into the Supreme Court by writ of certiorari to the order of the Court of Quarter Sessions, setting aside the report of a jury, the said order shall be revised and the cause remanded for further proceedings, if it does not expressly appear from the record that the said order was made in pursuance of an exception or exceptions sustained by the court below.” Exceptions were filed in this case, but it does not expressly appear in the order setting aside the report, that it was made in pursuance of any exception sustained by the court. The entry is simply— “report set aside.” Under the first clause of the act quoted, we would undoubtedly be justified in interpreting the order setting ■aside the report, as made in pursuance of the exceptions previously filed. This would be a just implication from the record. But the second clause of the act takes away all implication, by declaring that it shall expressly appear from the record, that the order was made in pursuance of an exception sustained by the court. It is necessary, therefore, that the Court of Quarter Sessions shall expressly state, in setting aside' a report, what exception is sustained, and set it aside thereupon. The legislature seems to have supposed, that a hidden meaning might lurk in the short entry — “report set aside,” without saying what exception is sustained, and that such an entry might cover grounds contained in no exception; and as a remedy it has required the court to state expressly the exception sustained on which the order to set aside is made. It is not a warrantable assumption that the eminent judges who adorn the bench of the Courts of Common Pleas and Quarter Sessions in this city, would act upon considerations not appearing in the record; yet the intention of the law, to require the ground of setting aside to appear on the record, is so clear we cannot disregard it. We are therefore compelled, in revising this case, as by the Act of 1869 we are commanded to do, to reverse the order setting aside the report, and to remand the cause to the Court of Quarter Sessions for further proceeding according to law.

Order reversed, and procedendo awarded.


author: by Williams, J.

text:
    The West Chester and Philadelphia Railroad Co. versus McElwee.
    1. In an action for death by negligence from cars striking a cart on scales near to a railroad track, evidence was proper,that after the accident the track was removed to a greater distance.
    2. If the track was too near the scales, a higher degree of care was necessary to avoid the accident.
    3. What is negligence is always a question for the jury, when the measure of duty is ordinary and reasonable care.
    4. When the standard of the degree of care shifts with circumstances, it is always for the jury.
    5. AVhen the standard is fixed! when the measure of duty is defined by law and is the same under all circumstances, its omission is negligence and may be so declared by the court.
    6. AAhen there is such an obvious disregard of duty and safety as amounts to misconduct the court may declare it to be negligence.
    January 10th 1871.
    Before Thompson, C. J., Read, Agnew and Williams, JJ. Sharswood, J., at Nisi Prius.
    Certificate from Nisi Prius: No. 51, to July Term 1869.
    This was an action on the case by James McElwee and Jane his wife against the West Chester and Philadelphia Railroad Company, for damages for the' death of their son, Mark McElwee, resulting from the negligence of the defendants.
    The writ issued May 6th 1869.
    ■ The main track of the defendants from West Chester crosses Walnut street and Chestnut street, in West Philadelphia. A private track of Mr. Lyster connects with defendant’s road, and leading from it westwardly and northwardly, passes on the west side of the track, first a shanty or tool-house, then very near to the shanty where only a door opened on to the track, platform scales, then an office belonging to Mr. Heberton and used, in connection with his coal yard. Beyond.on the north, about 170 feet from tbe office is the yard of Mr. Lyster; the grade descending from Lyster’s yard toward the junction of his track with the defendant’s track. The walls of the shanty and the platform, of the scales were quite near the track.
    On the morning of the 13th of February 1869, the defendants had placed upon this private track, about opposite Lyster’s yard, four empty cars, not belonging to them. In the afternoon of' the •th'e same day MarkMcElwee had taken his cart to Heberton’s yard, and having had it loaded, placed it upon the scales with the hinderpart towards the track; he was standing between the cart and the shanty; a brakesman of the 'defendants wishing to bring the empty cars from Lyster’s to their main track, unblocked them and put up the brakes; the cars in coming down the track struck the end of the cart, which struck the deceased, drove him against the post of the shanty, and killed him.
    On the trial, December 22d 1869, before Williams, L, Charles Rourke, for plaintiff, testified, that he had measured about six months previously and the track was about 20 inches distant from the wall of the shanty. The plaintiffs then offered to ask the witness, if the track had been moved since. The question was objected to, admitted by the court, and a bill of exceptions sealed.
    William G-arvey testified, that on the day of the accident the cart was on the scales, that the cars came from Lyster’s yard without aii engine, they struck the cart, he saw t'he deceased between the cart and the post of the shanty; he saw no one in charge of the cars; that the brakesman said he had jumped from one car to another, that if. the -brake had been good, he might have stopped the cars and saved the man’s life.
    John Williams testified, that the deceased had put his cart on the scales for witness to weigh, he weighed it; deceased went into the shanty; whilst he was in, the brakesman let the cars down; the first car being wider by 9. inches on each side than the others; deceased was between the post of the shanty and the cart when he was struck; there was ■ not much space left; the door of the shanty could not be left open when carg came along; it opened' out; heard no notice given by the brakesman; that the brakesman said there was manure on the brake; he stooped to take it off; before he could get it off he saw the cart, and it was then too late; it was 4 or 5 minutes after the cart was weighed before the cars came down; from the time of weighing till the cart was struck was 10 minutes ; the cars were blocked up at night to keep them from running down ; there was nothing to prevent the brakeman from seeing clear down ; the cart was on the scales in the ordinary way. On cross-examination he said, the cart had projected a little over the scales.
    Other witnesses testified substantially to the same facts.
    The defendants’ brakesman testified that the deceased had been loading his cart about 15 or 20 minutes when witness got the cars in motion; they came down the grade at the rate of 3 miles an hour; whilst plying the brakes the cars struck the cart; he halloed when he first saw the deceased jumping out of the shanty.
    They gave evidence that the scales and building had been put there after the track, and that the brakesman had brought the cars down as an accommodation. . -'
    The defendants requested the court to charge :—
    1. The decedent having been shown to have left his cart on the scales, somewhat projecting over the line of the scales for a space of at least ten minutes, wa.s guilty of negligence, which prevents a recovery by the plaintiffs in this suit. -
    2. The decedent having left his cart and gone into the shed or shanty, and when the cars were coming down having come out of the shanty towards the track, and then placed himself between his cart and the shanty while the cars were descending, was guilty of negligence, and the plaintiffs cannot recover in this suit.
    3. The decedent having left his cart and horse entirely unguarded and without any one in charge whilst on the scales, was guilty of negligence, and the plaintiffs cannot recover in this suit.
    4. If the decedent was guilty of any negligence at all, the plaintiffs cannot recover in this suit. ’
    5. Upon the whole evidence presented to the jury, the dece-
    dent was guilty of negligence and the plaintiffs cannot recover in this suit. 5
    The court declined the first three points as matter of law and submitted the propositions to the jury as a question of fact.
    As to the 4th point, he charged : “ If the decedent was guilty of negligence which contributed to his death, the plaintiffs cannot recover in this suit.”
    The court declined to charge as requested in the 5th point; and submitted the case to the jury with" this instruction; “ the plaintiffs are "not entitled to recover, unless the death of their son was caused by the negligence of the defendants’ servant or agent in charge of the cars; and they are not entitled to recover if the decedent’s negligence or want of proper care and prudence contributed to his death; nor can they recover if his death was the result of an unavoidable accident. But if the jury find that the decedent’s death was caused by the negligence of the" defendants’ servant in charge of the cars, and that his own negligence did not contribute to his death, then the plaintiffs are entitled to recover.
    May 8th 1871,
    “ The jury have heard the evidence and will determine whether or not the decedent’s death was caused by the negligence of the defendants’ agent or conductor; and whether the decedent’s own negligence contributed to his death; and as you find the fact to be, so will you give your verdict. The plaintiffs, as we have already instructed, the jury, are not entitled to recover unless the decedent’s death was occasioned by the defendants’ negligence without concurrent negligence on his part.” * * *
    The verdict was for the plaintiffs for $1000.
    The defendants took a writ of error, and assigned for error the admission of the evidence objected to, declining to affirm their 1st, 2d, 3d and 5th points, and the portion of the charge given above.

      G. W. Biddle, for plaintiffs in error.
    The evidence as to the removal of the track should not have been received, the defendants having had no control over it. There was no conflict of testimony on the question of negligence, and the deceased voluntarily put himself into peril. The court should have decided he was negligent: N. Penna. Railroad v. Heileman, 13 Wright 60; Heil v. Glanding, 6 Id. 493; Railroad v. Hummell, 8 Id. 375; Catawissa Railroad Co. v. Armstrong, 2 P. F. Smith 282; McGrew v. Stone, 3 Id. 436; Passenger Railway Co. v. Stutler, 4 Id. 375; Hanover Railroad Co. v. Coyle, 5 Id. 396; Humphreys v. Armstrong County, 6 Id. 204; Glassey v. Hestonville Railroad Co., 7 Id. 172; Pittsburg and Connellsville Railroad Co. v. McClurg, 6 Id. 295.

      A. Thompson (with whom were G. F. B. Collins and D. M. M. Collins), for defendants in error.
    By using the private track the defendants -were bound to observe the customs under such circumstances: Tennery v. Pippinger, 1 Phila. R. 543; Rauch v. Lloyd, 7 Casey 358; Reeves v. Delaware Railroad, 6 Id. 460. A party is not bound to guard against want of ordinary care in another: Brown v. Lynn, 7 Casey 510; McCully v. Clark, 4 Wright 399; Penna. Railroad v. Barnett, 9 P. F. Smith 259; Kay v. Penna. Railroad, 15 Id. 269.
   The opinion of the court was delivered,

by Williams, J.

There was no error in admitting the testimony of Charles Rourke, that the track had been moved since the date of the accident/ If it tended to show, as suggested, that the track was originally too near the office and shanty to permit the cars to be run on it without danger, then it was evidence of a fact proper for the consideration of the jury in determining whether due and reasonable care had been used by the company to avoid the accident. If the proximity of the track to the buildings did not increase the danger why was it moved ? And if it did, then a higher degree of care was necessary in order to avoid accident, and in this aspect the evidence was properly received.

The only other question presented by the assignments of error is, whether the court, under the facts disclosed by the evidence, should have instructed the jury that' the decedent was guilty of negligence which contributed to his death, and the plaintiffs were not entitled to recover.

The law is well settled that what is and what is not negligence in a particular case is generally a question for the jury and not for the court. It is always a question for the jury when the measure of duty is ordinary and reasonable care. In such cases the standard of duty is not fixed but variable. Under some circumstances a higher degree of care is demanded than under others. And when the standard shifts with the circumstances of the ease, it is in its very nature incapable of being determined as matter of law, and must be submitted to the jury to determine what it is, and whether it has been complied with. But when the standard is fixed, when the measure of duty is defined by the law, and is the same .under all circumstances, its omission is negligence, and may be so declared by the court. And.so, when there is such an obvious disregard of duty and safety as amounts to misconduct, the court may declare it to be negligence as matter of law. But where the measure of duty is not unvarying, where a higher degree of care is demanded under some circumstances than under others; where both the duty and the extent of its performance are to be ascertained as facts, a jury alone can determine what is negligence, and whether it has been proved: McCully v. Clark & Thaw, 4 Wright 399; Citizens’ Ins. Co. v. Marsh, 5 Id. 386; North Penna. Railroad Co. v. Heileman, 13 Id. 60; Pittsburg and Connellsville Railroad Co. v. McClurg, 6 P. F. Smith 295; Glassey v. Hestonville, &c., Passenger Railway Co., 7 Id. 172; Penna. Railroad Co. v. Barnett, 9 Id. 269; Johnson v. Bruner, 11 Id. 58.

These principles are of easy application to the evidence in this case, and clearly show that the question of decedent’s negligence was one of fact for the jury, and not of law for the court. The evidence did not show that he omitted any duty defined or prescribed by law; nor did it show any such disregard of duty and safety on his part as made it incumbent on the court to declare it to be negligence. His only standard or measure of duty was ordinary and reasonable care; and what that was, under the circumstances, and whether he complied with' it, could only be determined by the jury as a matter of fact. When, therefore, the court was asked to instruct the jury that the decedent was guilty of negligence, and the plaintiffs were not entitled to-recover, the instruction was properly refused. • It could not have' been given without determining, as matter of law, what care and caution a man of ordinary and reasonable prudence would have exercised in circumstances similar to those in which the decedent was placed. The question of decedent’s negligence was therefore rightfully submitted to the jury; and as no complaint is made of the manner in which it was submitted, the judgment must be affirmed.

Judgment affirmed.


text:
    Barclay et al. versus Lewis.
    1. A testator gave all his estate to trustees to invest the proceeds at their discretion ; out of the income to pay annuities specified, to each of his sons during their lives, the balance of the income for the use of his wife and daughter for their lives as the wife might wish; any of the income not so used, to be.invested by the trustees, permitting the wife to use part of the income for the sons; “the fund after having been (so) administered” to be. held by the trustees after the death of the wife for the benefit of the daughter; “ the income to be applied to her use during her life." After the death of the wife and daughter “ my estate to be held in trust for the benefit of the children of my sons and daughter should they have any, and until said children shall be twenty-one years of age and then be equally divided among said children.” Held, 1. That the trust remained during the lives of his sons as well as of his wife and daughter: 2. That the children of the sons and daughter took by purchase and not by limitation: 3. That the children’s title to the fund vested at their birth: 4. That birth was nota contingency too remote to be unlawful.
    2. The daughter died unmarried and without issue and the mother also died, the sons surviving, neither of whom had then any child, one was after-wards born. ¡Held, that the fund did not vest in the sons.
    3. The rule that a remainder requires a particular estate, does not apply to trusts. Per Hake, P. J.
    4. In order to bind a trust by a decree, notwithstanding there be many limitations, it is sufficient to bring the trustee before the court and him in whom the’first remainder is vested; and all that may come after although not in esse, will be bound. Id.

    January 11th 1871.
    Before Thompson, C. J., Read, Agnew and Williams, JJ. Sharswood, J., at Nisi Prius.
    Error to the District Court of Philadelphia: No. 285, to January Term 1870.
    In the court below this was an amicable action of debt and case stated, in which Herman B. Barclay and James C. Barclay were plaintiffs and S. Weir Lewis was defendant. The facts agreed in the case stated are as follows, viz.:—
    “John L. Barclay died in the year 1860, seised in his demesne as of fee of .and in an undivided moiety of a messuage and lot of ground, situate on the east side of Third street, &c., containing, &c., having first made and published his will, bearing date the 12th day of April, A. D. 1860, duly proved and registered in Payette county, Kentucky, a copy of which said will is hereto annexed, to be taken as part of this case stated. The said decedent left him surviving his widow, Lucy M. Barclay, a daughter, Fanny B. Barclay, and two sons, Herman B. Barclay and James C. Barclay, the plaintiffs in this suit. In the year 1860 the said widow and daughter both died. The daughter died unmarried and intestate, and the plaintiffs are the heirs at law as well of their said father as of their said mother and sister. At the time of the decease of the survivor of, them, the said mother and sister of plaintiffs, there was no child born of said sons or daughter of testator. Since that time the plaintiff II. B. Barclay has married and had a child born, who is now living.
    “ The defendant, S. "VVeir Lewis, is indebted for rent for said' moiety of said premises to the 4th day of May 1869, after deducting taxes, charges and expenses by him paid, the sum of $281.20. The trustees’named in said will are still liying. If the court should be of opinion that under the said will of John L. Barclay, deceased, and by the decease of the said widow and daughter of testator, as above stated, the said undivided moiety of said premises vested in said plaintiffs in fee, then judgment to be rendered in favor of said plaintiffs for said sum of $281.20, otherwise for defendants.”
    The material parts of the will are the following:—
    “ Item 3d. I will, devise and bequeath all my estate real, personal and mixed, of whatever kind and sort whatever, including .whatever may hereafter become mine, to my brother, James M. Barclay, to my friends, John Jackson and John B. Tilford, in trust, for the purposes, uses and benefits hereinafter specified.
    ' ■ “ Item 4th. I direct that my residence shall be sold and another purchased for my wife to suit her, when and where she may wish, of less value, and that any of my servants may be sold if decided upon, by my trustees, -with my wife’s consent.
    “ Item 5th. I direct that the sale of my furniture, horses, carriage and all personal property in or appertaining in any manner to my residence, shall be made as my wife may direct, and she may retain whatever thereof she will.
    “Item 6th. I direct that the trustees-herein named and their, successors, shall invest all the proceeds óf my estate, not herein-before provided for the payment of my debts and the comfortable establishment of my wife, in notes, secured by mortgage or lien on real estate in Kentucky, or in notes on loan to owners of real estate. And if such mortgage security and notes of owners of real estate, with good security, cannot b.e obtained, my trustees shall have discretion to loan or otherwise invest.
    “Item 7th. I direct that the income of my estate, invested as above directed, shall be for the use and benefit during their natural lives of my wife Lucy M. Barclay, my daughter Fanny B. Barclay, and my sons, Herman B. Barclay and James 0. Barclay, in the following manner:—

      “Item 8th. I direct that out of the income-of the before-directed investment, my trustees shall pay to and for the use and benefit of my son, Herman B. Barclay, annually the sum of $500 during his natural life.
    “ Item 9th. I direct that out of the income of said investment my trustees shall pay to and for the use of my son, James C. Barclay, annually the sum of $600 during the natural life of said son.
    “ Item 10th. I direct that the balance of the income of my estate, after the annual payments of $1100 as directed in 8th and 9th clauses of this will, shall be appropriated to the use and benefit of my wife and daughter, as my wife may wish, during their natural lives, and if any part of the income, herein designated for my'wife shall not be used for herself and daughter, my trustees shall invest said overplus.
    “ Item 11th. I direct that my wife shall have the right to use a part of the income set apart for her use and benefit, for either or ■both of my sons, if she shall deem it proper.
    “ Item 12th. The trust estate created and specified in the 3d item of this will, after having been administered as above directed, shall be held in trust by the trustees and their successors at and after the death of my wife, for the benefit of my daughter, Eanny B. Barclay. The income to be applied to her use during her natural life.

      “ Item 13th. I direct that after the death of my wife and my daughter Fanny, my estáte shall be held in trust for the .benefit of the children of my sons and daughter, should they have any, and until said children shall be twenty-one years of age, and then equally divided between and among said children.
    “ Item 15th. I direct that the trustees, James M. Barclay, John Jackson and John B. Tilford, shall have the power to appoint their successors. In case of the death or resignation of either of them, the survivor or survivors shall have power to name successors.
    “ Item 16th. I appoint my brother, James M. Barclay, and my friends, John B. Tilford and John Jackson, my executors.” * * *
    Hare, P. J., delivered the following opinion of the. court:—
    “ It is a well-known rule, that when a future estate in land is so limited or devised that it may take effect as a remainder, either vested or contingent, it shall never be construed to be a springing or shifting use, or executory devise: Lewis on the Law of Perpetuity 113.
    “ The plaintiff contends that this -rule applies to the devise set forth in the case stated. It is a gift in trust, inter alia, to collect and pay over the income of the estate to the testator’s wife and daughter, and from and after their decease in trust for the benefit of the children of his sons and daughter, should they have any, until the said children shall have attained the age of twenty-one years, then to be divided equally among them. ■ The wife and daughter died, and afterwards a child was born to one of the. sons. This was the only grandchild; and if the construction which the plaintiff contends for is adopted, it will defeat the object which the testator had in view. His intention was to provide for all his grandchildren, without regard to the time of their birth. If the limitation is construed as a contingent remainder, it can take effect only in favor of those who’ were born while the mother and daughter were alive, and in the actual state of the case will wholly fail. A contingent remainder must vest when the particular estate determines, or it cannot vest at all. It is not necessary to inquire whether the courts would now carry the rule to this extent, when effect might be given to the purpose of the testator, by reading the limitation as an executory devise, because the case is with the defendant on another ground. The rule that a remainder must be sustained by a particular estate does not apply to trusts. It grew out of the doctrine of the feudal law, that there must always be a tenant to the prceeipe, or, in other words, some one who could perform the public and private services, by which men then held their lands. When an estate was given in trust, the trustee was answerable for these before the law, and it was immaterial that the beneficial interest lay elsewhere. The courts were therefore free to give effect to any future or executory devise which did not contravene the rule against perpetuities. The doctrine was established as far back as Hopkins v. Hopkins, 1 Atkyns 590. The ground, said Lord Hardwicke, on which the common law requires the vesting of the contingent remainder, either during or eo instanti the particular estate determines, is that a freehold cannot be in abeyance, that there must be a tenant of the freehold to perform services, to answer to a prceeipe,-and.all writs to be brought concerning the realty, or otherwise there would be a failure of public service and public justice. But this holds -not in the case of an equitable estate; the trustee is tenant of the freehold, to perform services, &c.
    “But it has been objected, there is equal mischief if he is not liable to answer demands, and to be bound by decrees in this court. That will not follow, for if there are ever so many contingent limitations of a trust, it is an established rule, that it is sufficient to bring the trustees before the court, together with him in whom the first remainder of the inheritance is vested, and all that may come after will be bound by the decree, though not in esse, unless there be fraud and collusion between the trustees and the first person in whom a remainder of inheritance is vested; but that is of no weight, for fraud and collusion will unravel a thing as well at law as equity. This ease was followed in Habergham v. Yincent, 2 Ves. 204, and as these decisions are directly in point, judgment is entered on the case stated for the defendant.”
    February 9th 1871,
    The plaintiffs took out a writ of error, and assigned for error, entering judgment for the defendant..

      G. T. Bispham and Cadwalader Biddle, for plaintiffs in error.
    In order that the rule that the legal estate in general trustees will support contingent remainders should have application, the trust estate must be co-extensive with the limitations of the will. The trust being only during the continuance of the life interest, after the death of the life-tenant the trust would end and the remainder fall: Hopkins v. Hopkins, 1 Atkyns 588; Chapman v. Blisset, Cas. Temp. Talbot 145; Fearne on Cont. Rem. 304; Barnett’s Appeal, 10 Wright 392; Steacy v. Rice, 3 Casey 81; Bacon’s Appeal, 7 P. F. Smith 512; Hill on Trustees 239.

      C. S. Pancoast, for defendant in error.
    The will imposes active duties on the trustees, other and beyond those concerning the wife and daughter, that require the legal estate to remain in them. “ Children” here is not a word of limitation: 2 Jarman on Wills 111. The trustees must hold the estate not only for the wife and daughter, but also for the sons: Kennick v. Beauclerk, 3 B. & P. 175; Cadogan v. Ewart, 7 Ad. & E. 668; Naylor v. Anilte, 1 Russ. & My. 501; Chapman v. Blisset, Hopkins v. Hopkins, supra; Ashurst v. Given, 5 W. & S. 323; Brown v. Williamson, 12 Casey 339.
    The general legal estate given the trustees for all the purposes of the will will be held to remain in them until said purposes are accomplished: Dodson v. Ball, 10 P. F. Smith 494; Barnett’s Appeal, 10 Wright 399; Pullen v. Reinhardt, 1 Whart. 521; Rife v. Geyer, 9 P. F. Smith 395; Kay v. Scates, 1 Wright 39; Pye v. George, 1 P. Wms. 128; Mansell v. Mansell, 2 Id. 678; Moody v. Walters, 16 Ves. 302; Bescoe v. Perkins, 1 Ves. & B. 491; Garth v. Cotton, 3 Atk. 754; Habergham v. Vincent, 2 Ves. Jr. 209; Stansfield v. Habergham, 10 Id. 282; Fearne 304.
   The opinion of the court was delivered,

by Agnew, J.

The primary rule in the interpretation of wills is to determine the true intention of the testator, and if lawful to give it effect. If this great canon of interpretation he observed there will be little difficulty in applying to a will, the law which governs the'creation and transmission of estates. We shall then be less embarrassed by the artificial and difficult rules relating to contingent remainders, executory devises, and trusts. It cannot be doubted that John L. Barclay created a trust to be managed by the trustees named in his will, during the lives of his wife, two sons and daughter. He gave -his trustees for this purpose large powers to sell, lend on mortgage, or otherwise to invest and pay over the income of his estate in certain proportions to his wife, daughter and sons. The direction to the trustees to pay annuities of $500 and $600 to- his sons, is expressly for and during life. He says that out of the income of the before-directed investment, his trustees shall pay to each annually the said sums. The “before-directed investment” is “shall invest all the proceeds of my estate, not hereinbefore provided for the payment of my debts,” &c. It is clear, therefore, that the testator intended that the trust, which was by its nature and terms an active one, should remain during the lives of his sons as well as of his wife and daughter, for as to all he provided only for the payment of income, while all of his estate was to be invested. It was in terms “ the balance of the income of my (his) estate after the annual payment” of the $500 and $600 to his sons, which he directed to be-paid to his wife and daughter. And it was the income only which his daughter was to receive after the death of his wife for and during her natural life. As he could not know which of these objects of the payment of income would die first, while all of his estate was to be invested, it is evident he intended an active management of the trust to invest, preserve and pay over -the income, to exist so long as any of the objects should survive. Then we come to the 13th item providing for the contingency of the deaths of his wife and daughter: “ 13th. I direct that after the death of my wife and my daughter Fanny, my estate shall be held in trust for the benefit of the children of my sons and daughter should they have any, and until said children shall be twenty-one years of age, and then equally divided among said children.” The children here take not by limitation, or per stirpes ; but as purchasers in their own right, their title vesting at birth, but deferred in the time of enjoyment, until their arrival at full age. It is obvious that the trust and the investment as income must necessarily survive the death of the wife' and daughter (leaving the sons surviving), in order to pay the annual income of $500 and $600 to the sons, and preserve the remainder for the children born or to be born. The legacy to the children was not to accrue at one fixed and independent period, or upon any contingency or condition other than birth, which would prevent it from vesting at birth or opening to receive after-born children. Birth was a -contingency neither impossible nor too remote, and was therefore not unlawful. There is no reason then why the intent of the testator to provide absolutely for the children of his sons and daughter in equal proportions when arriving into life, should be set aside in favor of the sons to whom he clearly intended to give the annuities of $500 and $600 during their lives, and nothing more. It is impossible to deny the intention of the testator to create a continuing active trust, to remain during the lives of his sons, and preserve the estate to their children in their own right. There being nothing too remote, contingent or unlawful in this provision, it is therefore not to he set aside by any artificial or technical rules. The law will support it, call it by one name or another. There is abundant authority for this to bo found in the opinion of the learned judge and in the citations of the defendant in error.

Judgment is therefore affirmed.


text:
    Commonwealth ex rel. Girard versus Sanson.
    1. The Act of February 18th 1869, relating to interpreters, &e., in Philadelphia, does not repeal the Act of March 27th 1865, on the same subject.
    2. The 3d section of Act of 1869, does not apply to the official interpreter appointed by the court when he comes to the stand to interpret in the ordinary course of his duty.
    3. The Acts of 1865 and-1869, compared and distinguished, and the latter construed.
    January 12th 1871.
    Before Thompson, C. J., Ahnew and Williams, JJ. Sharswood, J., at Nisi Prius.
    This case was a quo warranto issued, March 19th 1870, out of the Supreme Court, Eastern District, at the relation of John Fabricius Girard against Joseph Sanson to answer by what warrant since the 18th of February 1869 he had exercised, and was exercising the rights, &c., “ of interpreter of foreign languages in Courts of Common Pleas, &c., &c., in Philadelphia, which the suggestion of the relator averred,” were lawfully and exclusively vested in him by the commission of the governor of Pennsylvania, under the Act of Assembly of February 18th 1869.
    Sanson pleaded that he was entitled to exercise the rights, &c., of interpreter of foreign languages in the said courts for five years from .the 8th of February 1869, by appointment made by the Court.of Common Pleas of Philadelphia, in pursuance of the Act of Assembly of March 27th 1865.
    The-relator demurred to the plea.
    The following are the Acts of Assembly referred to in the pleadings
    Act.of March 27th 1865, “authorizing the appointment of interpreters of -foreign languages, in the city of Philadelphia.”
    The governor of this Commonwealth is hereby authorized to appoint and commission a competent person to act as interpreter of the various foreign languages in the city of Philadelphia, whose term, of office- shalltbe,five years; the duty of said interpreter shall be to make verbal or written translations of foreign invoices, manifests, bills of lading or any other foreign documents whatsoever, in the city of Philadelphia; which said verbal or written translations shall be made, or duly certified, signed and sealed, by the said interpreter, whose fees shall not exceed two dollars for each certificate, and fifty cents for each written page of translation; and the Court of Common Pleas for the city and county of Philadelphia, are hereby authorized to appoint a competent person to act as interpreter of foreign languages 'for the said court, for the term of five years, and from time to time, thereafter, as often as a vacancy shall occur in said office, to fill the same: Pamph. L. 795, Purd. 1396, pl. 1.
    Act of February 18th 1869, “ To establish the office of interpreter and translator of foreign languages for the city of Philadelphia.”
    Sect. 1. The governor shall have power to appoint an officer in and for the county of Philadelphia, who shall be called interpreter and translator of foreign languages, and to fill said office by appointment where the same shall be vacant; the appointee shall hold his office for a term of three years, and be eligible for reappointment ; he shall have a seal of office, and may appoint such number of clerks and assistants as he may deem necessary.
    Sect. 2. All translations of any papers, instruments of writing or document of any kind in a foreign language, made or certified by said officer to be correct, under his hand and seal of office, and attached to the original, shall be received as evidence without further proof or authentication in any court of justice of this Commonwealth, and shall have the same effect, for that purpose, as any competent admissible oral or written translation, made and sworn to, in a court of justice, by any competent sworn interpreter or expert, would have.
    Sect. 3. No witness shall be produced, sworn, or examined in any court of justice of said city of Philadelphia, to interpret the testimony of any witness who testifies in a foreign language, or to translate any written paper, instrument of writing or document in a foreign language, who shall not produce the certificate of said officer as to his fitness and competency for that purpose, bearing date of the day of his examination.
    Sect. 4. The fees of such officer shall be regulated from time to time, by the judges of the Court of Common Pleas of the city and county of Philadelphia: Pamph. L. 198, Purd. 1572.

      M. Arnold, Jr., for relator.
    A subsequent affirmative statute repeals, by implication, a former one on the same matter, if it introduce a new rule, and be intended as a substitute without express words repealing it: Johnston’s Estate, 9 Casey 511. If there be negative words in a later statute or the matter necessarily implies a negative, an earlier statute upon the same subject-matter will be thereby repealed: Bank v. Commonwealth, 10 Barr 442; Bartlett v. King, 12 Mass. 537; Commonwealth v. Cromley, 1 Ashmead 179; Street v. Commonwealth, 6 W. & S. 209; Daviess v. Fairbairn, 3 How. 636; Brown v. County Commissioners, 9 Harris 37. In the absence of a regularly appointed officer, the courts may order an interpreter to be sworn and interpret: Case of Norberg, 4 Mass. 81.
    February 9th 1871,

      Gr. Remak, for respondent.
   The opinion of the court was delivered,

by Agnew, J.

The Act of March 27th 1865, Pamph. L. 795, authorizing the appointment of interpreters of foreign languages, in the city of Philadelphia, contains two distinct and independent •provisions. The first clause provides for the appointment by the governor of a competent interpreter, whose duty it is to make verbal or written translations of foreign invoices, manifests and other documents, which. translation shall be duly certified. The second clause authorizes the Court of Common Pleas to appoint a competent interpreter of foreign languages for the court, and from time to time to fill vacancies as they occur. These interpreters thus derive their appointment from different sources and exercise different functions.

The Act of 18th February 1869, Pamph. L. 198, supplies so much only of the Act of 1865, as provided for the establishment of the office of interpreter of foreign languages for the city. This is obvious -from several considerations, of which the first that may be stated is the title of the acts. That of 1865 relates to the appointment of interpreters (in the plural) in the city of Philadelphia, while that of 1869 is to establish the office of interpreter (in the singular) for the city of Philadelphia. The body of the Act of 1869 relates solely to the office of interpreter for the city only, making no reference whatever to the interpreter for the court. He is (as before) to be appointed by the governoi’, to have a seal of office, and to appoint clerks and assistants. His duties are confined to making translations of written papers and documents, to be certified when required under his seal of office, and made evidence in courts of justice; but not a word is said as to his duty to translate orally in the courts. In no part of the Act of 1869 is an intention expressed to repeal that part of the Act of 1865, authorizing the appointment of a court interpreter. So far there is not a shadow of inconsistency between the Act of 1869 and the second clause of the Act of 1865, or an intimation of an intention to repeal the latter.

The argument for an implied repeal is drawn from the 3d section of the Act of 1869, in these words: “ That no witness Shall be produced, sworn or examined, in any court of justice of said city of Philadelphia, to intérpret the testimony of any witness who testifies in a foreign language, or to. translate any written paper, instrument of writing or document in a foreign language, who shall not produce the certificate of said officer as to his fitness and competency for that purpose, bearing date of the day of his examination.” If we take this section literally, it does not apply to an official interpreter who is examined and sworn upon his entering into the office to perform the duties faithfully, but only to an interpreting witness called to the stand pro hac vice, and then sworn and examined. To give it a wider scope and apply it to the official interpreter of the court every time he came to the stand to interpret, would produce consequences so monstrous and destructive of the due administration of justice, as would cause it to infringe directly on the bill of rights declaring that “ the courts shall be open” and “right and justice administered without sale, denial or delay.” Its effect would be that no witness speaking a foreign language could possibly be examined until the parties have called on the city interpreter and paid him for a certificate; a sale of justice totally uncalled for and unnecessary. But the denial and delay of justice in order to bring in the city officials are still worse. What is to be done if the city interpreter be absent on business, or out of the state, or on a bed of sickness, and cannot be found, or is unable to give his certificate of the fitness of the interpreting witness,” “ bearing date the day of his examination.” Or how will it be if the city interpreter cannot speak the language of the witness to be examined ? It is not presumable any one can be found able to interpret in all languages. Must cases be postponed and delayed, and jurors and witnesses dismissed in the midst of a trial, until the certificate of the city interpreter can be procured ? A trial once begun might never end by reason of the absence or inability of the city official to certify on the day of the examination. Courts of justice cannot be balked by such legislation. The legislature never could have intended consequences so monstrous and injurious. We say, therefore, that the 3d section of the Act of 1869 does not apply to the official interpreter appointed by the court when he comes to the stand to interpret in the ordinary course of his duty as interpreter. The utmost applicability it possibly might have to him is when he appears to be sworn and examined in order to be inducted into office, and even this we do not decide.

This 3d section must be the product of some private scheme never understood or intended by the legislators to be adopted, and ought to be forthwith repealed. It is sufficient for our present purpose, however, to say that there is nothing in the 3d section of the Act of 1869, so inconsistent with the second clause of the Act of 1865, as to imply its repeal. The court, therefore, gives judgment for the defendant upon the demurrer to his plea, and orders that he be dismissed and discharged from the premises alleged against him, and also that he recover his legal costs of John Fabricius Girard, the relator, to be levied by execution as in cases of debt.


text:
    Ashmead and Langstroth versus McCarthur.
    1. M. held a mortgage against S. After the date of the mortgage and before recording it, B. recovered judgment against S. Afterwards S. gave a mortgage to A., who wishing to collect his mortgage, it was understood between his attorney and M.’s, neither knowing of B.’s judgment, that a sheriff’s sale would be subject to M.’s mortgage, and notice was given at the sale to that effect. A. bought at sheriff’s sale. The jury found that A.’s purchase was with the understanding that it was subject to M.’s mortgage. Held, that A. took the property so subject.
    2. The evidence justified the court below in submitting to the jury to find whether there was such understanding.
    3. The parties could contract for a rule as between themselves differing from a mere result of law.
    January 12th 1871.
    Before Thompson, C. J., Agnew and Williams, JJ. Sharswood, J., at Nisi Prius.
    Error to the District Court of Philadelphia: No. 13, to July Term 1870.
    This was a scire facias sur mortgage, issued February 17th 1869, by William McCarthur, treasurer of the Workingmen’s Building Association of Germantown, against Michael McShane, with notice to Algernon L. Ashmead and James F. Langstroth, terre-tenants. The terre-tenants pleaded payment with leave, &c.
    The mortgage, as described in the writ, was from the defendant to the plaintiff, dated May 1st 1866, for $700 with interest.
    On the trial, February 16th 1870, before Stroud, J., the terretenants gave in evidence the mortgage in suit, recorded May 30th 1866; also judgment in favor of the terre-tenants against McShane, entered December 21st 1868, on bond with warrant, accompanying a mortgage dated March 1st 1867, to secure $750; fi. fa. and vend. ex. on this judgment; sale by the sheriff, February 1st, to the terre-tenants and sheriff’s deed to them, February 13th 1869; also judgment entered May 26th 1866, in favor of Joseph Boucher against McShane for $100. The terre-tenants then rested.
    On the part of the plaintiff, R. Thomas testified that he was a member of the building association and their scrivener; in the fall of 1868, F. F. Brightly, Esq., of counsel, with Ashmead and Langstroth, called on witness, saying his clients had a claim against McShane, and asked if the association had a mortgage against him; witness showed him from the book that they had such mortgage; Mr. Brightly came again, said he had determined to sell the property of McShane, and inquired what Was due on the plaintiff’s mortgage. Witness said that he was instructed to buy McShane’s property unless it brought enough to cover plaintiff’s mortgage; and that he, witness, would be at the sale. Mr. Brightly said witness need riot go to the sale, as his clients knew they would have to buy subject to plaintiffs’ mortgage, he merely wished to know what was to come off the face of the mortgage; witness gave him a statement of the amount due; he said witness need not attend' the sale, “ the thing was understood witness further said “ I agreed with him and told him I would give notice at the sale of my mortgagehe stated at first he thought that was hardly necessary, but finally thought it would be to his interest, as it would prevent parties from bidding and running the property up on.his clients, and offered to read the notice. I told him that, inasmuch as I was not going down, under our agreement, I would get Enoch Taylor, Esq., to read the notice ; that it would look better. This was the notice that I wrote, and it was worded partly at Mr. Brightly’s dictation. I gave it to Mr. Taylor to read at the sale. * * * The property is-worth from $1200 to $1400.” Oh cross-examination, witness said that •the Boucher judgment did not appear on the searches which he had taken out and which were brought up to May 26th 1866; during the negotiation with Mr. Brightly he did not know of the Boucher judgment, but supposed the plaintiff’s mortgage tobe the first encumbrance.
    The notice referred to by witness was as follows:—
    “ William McArthur, v. Michael McShane. Notice.
    Please take notice, that the premises now about to be sold as the property of Michael McShane are subject to a mortgage debt of $7 00, upon which there are several months’ interest: said mortgage bears date the 21st day of May 1866, and is recorded in Mortgage Book L. B. B., No. 70, page 388, &c.
    Vm. McCarthur, Treas’r.
    Per Bobt. Thomas, Ag’t.”
    The plaintiff gave evidence that the notice was read by Mr. Brightly at the sheriff’s sale.
    McShane testified that he had said nothing to the parties as to the existence of the Boucher judgment. There was other evidence on the part of the plaintiff bearing' on the question, whether there was an understanding with Ashmead and Langstroth that they should buy subject to the plaintiff’s mortgage.
    The terre-tenants gave evidence by E. Taylor, Esq., that he had been requested to read the notice, at the sheriff’s sale, but that not desiring to remain there, asked Mr. Brightly to read it as personal favor to witness.
    E. E. Brightly testified that he made no agreement to buy subject to the plaintiff’s mortgage; he attended the sale for his clients, supposing the plaintiff’s mortgage was the first encumbrance, not then knowing of the Boucher judgment; that when he read the notice he stated that he knew nothing of the facts contained in it; he first learned of the judgment Eebruary 8th 1869.
    The court charged :—
    “If you find that the defendants, Langstroth and Ashmead, bought the property at the sheriff’s sale, with the understanding that they bought subject to the plaintiffs’ mortgage, and gave so much less for it on that account, then you will find for the plaintiff the amount due on the mortgage.,’
    The verdict was for the plaintiff for $560.11.
    The terre-tenants took a writ'of error, and assigned the instruct tion of the court for error.

      F. C. Brightly, for plaintiffs in error.
    A judicial sale divests all liens: Loomis’s Appeal, 10 Harris 317. To take subject to a mortgage which would be discharged, must be by express agreement: Barnet v. Washebaugh, 16 S. & R. 414; Coyne v. Souther, 11 P. F. Smith 456; Helfrich v. Weaver, Id. 389. There was no evidence from which an inference could be drawn that the terre-tenants bought subject to the mortgage: — it was error to submit the question: Gilchrist v. Rogers, 6 W. & S. 488; Urket v. Coryell, 5 Id. 84; Miller v. Cresson, Id. 301; Switland v. Holgate, 8 Watts 385. There was no contract to bind the parties, the parties having acted on a supposed state of facts which did not exist: Bishop v. Reed, 3 W. & S. 265; Watts v. Cummins, 9 P. F. Smith 90; Miles v. Stevens, 3 Barr 22; Horbach v. Gray, 8 Watts 492; Rankin v. Mortimere, 7 Watts 374; Gross v. Leber, 11 Wright 520; Hammond v. Allen, 2 Sumner 387; Yates v. Little, 6 McLean 513-14; Daniel v. Mitchel, 1 Story 190; Rhode Island v. Massachusetts, 15 Peters 271; Trigg v. Read, 5 Humph. 529; Hurd v. Hall, 12 Wisc. 112; Williams v. Champion, 6 Ham. 169; Bigelow v. Barr, 4 Id. 358; Kerr on Fraud 359; Stapylton v. Scott, 13 Ves. 427; Robinson v. Dickenson, 3 Russ. 413; Couturier v. Hastie, 9 Exch. 102; Strickland v. Turner, 6 Exch. 208; Pritchard v. Ins. So. 3 C. B. (N. S.) 622; Hitchcock v. Giddings, 4 Price 135; Colyer v. Clay, 7 Beav. 188; Kelly v. Solari, 9 M. & W. 54; Lucas v. Warwick, 1 Mood. & Rob. 293; Gross v. Leber, 11 Wright 527; Thornton v. Wynn, 12 Wheat. 188; Sigerson v. Mathews, 20 How. 496; Byles on Bills 237 note; Story on Notes § 361; 1 StoryEq. Jur. § 146 note. The defendant having neglected to attend the sale in consequence of a mutual misunderstanding without fraud by the vendees, it is damnum absque injuria: Winter’s Appeal, 11 P. F. Smith 313.
    February 9th 1871,

      C. S. Pancoast, for defendant in error.
    The charge of the court is in conformity with Crooks v. Douglass, 6 P. F. Smith 53. The charge is sustained by Muse v. Letterman, 13 S. & R. 167; Twelves v. Williams, 3 Wharton 490; Tower’s Appropriation, 9 W. & S. 103; Towers v. Tuscarora Academy, 8 Barr 297; Zeigler’s Appeal, 11 Casey 182; Loomis’s Appeal, 10 Harris 318.
   The opinion of the court was delivered,

by Thompson, C. J.

The controversy in this case is between two separate mortgagees, and whether the understanding or contract between them that the junior mortgagee should buy the mortgaged property subject to the senior, was binding on them under the. circumstances developed after the sale. These circumstances were, that there existed a small judgment against the mortgagor, which was a prior lieri to the first mortgage on the property covered by both, the existence of which was unknown to both parties, and the effect of which was to discharge the. lien of both under the sale made by the junior mortgagees or the judgment-bond accompanying their mortgage. Not only was there an understanding, as the jury have found, that the junior mortgagees should buy subject to the prior mortgage, but notice to that effect was given at the sale, and was read, it is true, as a matter of accommodation to the party who was to read it for the senior mortgagee, by one of the counsel for the junior mortgagees, but when the sale proceeded, he bought in the property, at the sum of $250; which of itself shows that it was bought in under the agreement proved by the witnesses below. The learned judge submitted the question to the jury, whether, under the evidence, there was a contract or understanding between .these mortgagees about the purchase of the property, and instructed them that if they found 9that the defendants had so purchased the plaintiff was entitled to ^recover whatever was due on the mortgage.in his trust and charge for the building association.

There was no error in this, as Zeigler’s’Appeal, 11 Casey 182, Loomis’s Appeal, 10 Harris 318, Crook’s v. Douglass, 6 P. F. Smith 53, and other cases, abundantly show. I will not analyze these cases to show what they plainly prove, namely: that there was no error in the instruction of the .learned judge. It will be remembered that the arrangement, referred to, affects no parties but those who ’made 'it, and it is not easy to see why they could not contract for a rule as between themselves, differing from a mere result of law. We do not in the least mean to impugn the rule that, as a general thing, judicial sales discharge all liens which are not protected from discharge by law or their own nature. That principle was suspended to some extent in this case by contract between the only parties, as they supposed, that were interested in the matter. The lien dockets were open to both, and neither deceived the others as to the prior lien. The defendants got an advantage by the arrangement, and it would be unfair to the other party to allow them to keep it, and at the same time repudiate the arrangement under which they obtained it. This is enough for this case, and seeing no error in it the judgment is

Affirmed.


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    Vandike versus Rosskam et al.

    1. V. & S. entered into articles of limited partnership, Y. as special partner, to contribute $3000 in cash; he contributed in cash about $700, and the remainder in goods; no appraisement of the goods was made and the sign was in the name of S. only, &c. Held, that under the Act of March 30th 1865, V. was to be treated as a general partner.
    2. The goods contributed by V. were subject to all the incidents of property of a general partnership and were not the sole property of Y.
    3. On an execution against one partner the sheriff can levy only on the interest of the partner in the firm and cannot seize the goods of the firm.
    4. Firm goods were levied on as the property of S., one of the partners: in an interpleader, the issue was to try whether the goods were Y.’s, the other partner. The court in answer to a point charged that the sheriff could levy only S.’s interest in the firm, but added he might seize the corpus. Meld, that the point was irrelevant and the qualification did Y. no harm.
    4. If the issue had been whether the goods were the firm’s, the qualification would have been error.
    January 12th 1871.
    Before Thompson, C. J., Read, Agnew, and Williams, JJ. Sharswood, J., at Nisi Prius.
    Error to the District Court of Philadelphia: No. 432, to January Term 1870.
    This was a sheriff’s interpleader, filed December 30th 1869, iij which John A. Yandike was plaintiff and claimant, and Isaac Rosskam and others, trading as Rosskam, Grerstley & Co., were defendants. The issue was, “was Vandike the owner of the goods when the levy was made?” The goods, which were the subject of the interpleader, had been levied on as the goods of James H. Smith, under an execution on a judgment against him in favor of the defendants.
    On the trial, March 2d 1870, before Stroud, J., the plaintiff gave in evidence articles of agreement, dated November 25th 1869, by which he and Smith agreed to enter into a limited partnership for the purpose of carrying on the wholesale liquor business at 1303 Poplar street, Philadelphia, under the name of “ James II. Smiththe plaintiff to be special partner, and to contribute $3000 in cash, Smith to be the general partner, and contribute his skill, knowledge and personal attention, and make sales and purchases: the partnership to commence on the 1st of December 1869, and continue for three years, Smith to receive from the profits $20 a week, and the plaintiff the remainder. Also, certificate signed by the parties, containing the stipulations of the agreement, with the affidavit of Smith appended, “that the sum of $3000, specified in the said certificate to have been contributed by the said special partner, John A. Vandike, therein named, has been so contributed, and actually in good faith paid in cash.” The certificate was recorded November 30th 1869.
    February 9th 1871,
    The plaintiff gave in evidence the advertisement of partnership, setting forth the name of the firm, its place and kind of business, the ..residence of the partners, and that the “sum furnished by said special partner is $3000 in cash,” &c.
    The plaintiff then called Smith, who, amongst other things, testified that the name “James H. Smith” was over the door of the store; he also testified that the goods were the plaintiff’s, and were levied on in the store of the partnership.
    The plaintiff testified: “ I bought these goods ; the balance, $645, I put in in cash.” There was other evidence that the goods belonged to the plaintiff.
    The plaintiff closed, and, no evidence -being offered by the defendants, requested the court to charge the jury:—
    1. If the jury believe that the claimant as special partner bought the goods claimed in this issue and put them into the store 1303 Poplar street, their verdict should be for the claimant.
    2. That under an execution against one partner the sheriff has the right to levy only upon said partner’s right, title and interest in the firm.
    The court declined the 1st point, and in answer to the 2d charged:—
    “ This is true, but the sheriff in such case may seize the property — the corpus.”
    The verdict was for the defendants.
    The plaintiff took out a writ of error, and assigned the answers to his points for error.

      L. Hirst (with whom was J. P. O’Neill), for plaintiffs in error,
    referred to Act of March 21st 1836, relating to Limited Partnership, §§ 1, 15, Pamph. L. 143, 145, Purd. 658, 660, pl. 1, 18.

      R. White (with whom was G. H. Earle), for defendants in error,
    referred to same Act, § 17, Purd. 660, pl. 20; Act of March 30th 1865, § 1, Pamph. L. 46, Purd. 1400, pl. 1.
   The opinion of the court was delivered,

by Williams, J.

This was an issue, under the Sheriff’s Inter-pleader Act, to determine whether the goods seized by the sheriff, under an execution in favor of Rosskam, Gerstley & Co. against James H. Smith, were the property of John A. Vandike, the claimant.

To sustain the issue on his part, the claimant gave in evidence articles of agreement between himself and James H. Smith, dated November 25th 1869, by which they agreed to associate themselves together in a limited or special partnership for the purpose of carrying on and conducting, in the city of Philadelphia, the wholesale liquor business, under the name of James H. Smith, for the term of three years from the 1st of December 1869 ; of which limited partnership it was agreed that the said John A. Vandike is the special partner, and as such is to contribute the sum of $8000 in cash to the partnership; and the said James H. Smith is the general partner, and is to contribute on his part to the interests of the partnership, his skill and knowledge in the conducting of the said business, and his personal attention in all matters concerning the same, and also to make all the sales and purchases in the said business; and, in consideration of his services in the management of the business, shall be entitled to draw and receive the sum of $20 per week for every week during the partnership; and the said special partner shall receive and take the net profits of the said business remaining aftqr deducting the said allowance payable to the said James H. Smith; and for the purpose of ascertaining such profits the said partners shall, on the 1st day of December 1870, and on the first day of every year therefrom of said partnership, take a full account of all stock on hand, and of all profits o'f said business, after deducting the expenses during such time, and the remainder of such .profits, after deducting such expenses and the said allowances drawn by the said James H. Smith, shall be, so far as can be determined, payable to and subject to the order of the said special partner.

He also gave in evidence the certificate of partnership required by the act, duly signed and acknowledged by the parties, setting forth, among other things, that the said special partner has contributed to the common stock of said firm or partnership the sum of $3000; and an affidavit of the general partner that the sum of $3000, specified in the certificate to have been contributed by the special partner, John A. Yandike therein named, has been so contributed, and actually in good faith paid in cash; and showed by the certificate of the recorder of deeds, &c., in and for the-city of Philadelphia, that the said certificate and affidavit had been duly filed and recorded in his office in the limited partnership book kept for that purpose; and that the terms of the said partnership had been published as required by the statute; and then gave evidence tending to show that he bought the goods levied on, and contributed them to the partnership, and that he put into the said partnership the sum of $645 in cash, being the balance of tbe amount which he had-' agreed to contribute to the common stock of said firm. And thereupon — the defendants having given no evidence — he requested the court to charge:—

1. That if the jury believe that the claimant, as special partner, bought the goods claimed in this issue and put them into the store 1303 Poplar street, their- verdict should be for the claimant.

2. That under an execution against one partner the sheriff has the right to levy only upon' said partner’s right, title and interest in the firm.

The court declined the 1st point, and charged as to the 2d point:—

“This is true, but the sheriff may seize the property — the corpus.”

The refusal of the court to charge as requested in the claimant’s 1st point, and the answer to the 2d- point are assigned as error — ought the court, then, to have answered the 1st point as requested, and to have affirmed the 2d without qualification, as contended by the plaintiff in error ?'

According to the claimant’s own testimony he had not contributed the sum of $3000 to the common stock of the partnership in actual cash payments as averred in his certificate, and as sworn to by the general partner in his affidavit filed in the recorder’s office; but by his own showing he had contributed only .$645 in cash, and the residue in goods or merchandise. It is true, that under the Supplemental Act of 3,0th of March 1865, Pamph. L. 46, it was lawful for him to make his contribution to the common stock of the partnership in goods or merchandise if the same had been first appraised under oath by an appraiser appointed by the Common Pleas of Philadelphia, and if the nature and value of the said goods had been fully set forth and described in the certificate of partnership, as required by the 1st section of the act. But this was not done. Nor was a sign put up in front of the building where the business of the partnership was carried on, with the names of all the members of the partnership painted thereon, stating the name of the general partner and the name of the special partner, as required by the 2d section of the Supplemental Act. The evidence shows that the name of James H. Smith was over the store where the business was carried on, but there was no proof that the name'of the special partner was painted on the sign. The claimant having failed to comply with these essential requirements of the law, it needs no argument to prove that he is not entitled to the rights and immunities of a special partner, but is to be regarded and treated as a general partner for all intents and purposes; and, therefore, the goods contributed by him to the common stock were subject to all the. liabilities and incidents of property belonging to a general partnership. When levied on by the sheriff, the goods were not the sole and exclusive property of the claimant, but they belonged to the partnership of which he was a member. It follows that there was no error in refusing to charge as requested in the plaintiffs’ first point: Myers v. Prentzell, 9 Casey 482; Stewart & Co. v. Wilson, 6 Wright 450.

Nor was there any such error in the qualified answer court to the second point, as did the plaintiff any harm. It is undoubtedly true that under an execution against one partner, the sheriff can levy only on the right, title and interest of such partner in the property of the firm. He cannot seize and sell the partnership property on an execution against one of the partners, as the authorities show: Knox v. Summers, 4 Yeates 477; Doner et al. v. Stauffer et al., 1 Penna. Rep. 198; Deal v. Bogue, 8 Harris 228; Reinheimer v. Hemingway, 11 Casey 482. It was said by Woodward, J., in delivering the opinion of the court in Deal v. Bogue, supra, that partners are joint-tenants of all the stocks and effects employed in their business. No partner can have a separate interest in any part of the property belonging to the partnership, though each has an entire as well as joint interest in the whole of the joint property. A levy then, to affect the interest of a partner, cannot touch a specific proportion of the goods, nor the whole, because others have property in every part, as well as the whole, coupled with a right, resting in contract, to use them for the purposes for which the partnership was instituted. The only levy that can be made, consistently with the relation the partners sustain to the goods, is of the debtors’ interest in the whole, and that is to be measured by final account.

But if the court was mistaken in qualifying the affirmance of the plaintiffs’ point with the instruction that “ in such case the sheriff might seize the property — the corpus,” the error did the plaintiff no harm, because it was wholly irrelevant to the issue, and for this reason the court might have declined to answer the point. The issue was as to the claimant’s ownership of the goods levied on by the sheriff. If he was the owner, he was entitled to a finding in his favor; but if he was not, then he was not entitled to recover, though the sheriff may have had no right to seize the goods on the execution against his copartner. If the goods had been claimed as the property of the firm, and the partnership had been made plaintiffs in the issue, it would then have been the duty of the court to have given the instruction prayed for, and the qualified affirmance of the point would have been such error as would have entitled the plaintiffs to a reversal of the judgment, for it would have prejudiced their right to recover. But as the issue was formed, it did the claimant no harm, for the evidence showed that he was not the sole and exclusive owner of the goods, and was therefore not entitled to a finding in his favor. Judgment affirmed.