author: Sharswood, J.

text:
    Audenried versus The Philadelphia and Reading Railroad Co.
    1. The object of a preliminary injunction is simply preventive, to maintain things as they are until the rights of the parties can be considered and determined after a full hearing.
    2. Preliminary injunction is never awarded except when the equity of the complainant is clear, supposing the facts of which he gives prim& facie evidence to be ultimately established.
    3. All injunctions are for restraint, yet final injunctions may go beyond this and command acts to be done or undone; they then are termed mandatory.
    4. A tribunal which finds itself unable directly to decree a thing should not attempt to accomplish it by indirection.
    5. It is very unusual to take testimony by an examiner on a motion for preliminary injunction.
    6. Transportation by a common carrier is open to the public upon equal and reasonable terms.
    7. An exclusive right granted to a common carrier only, is inconsistent with the rights of all others.
    At Harrisburg, May 23d 1870. Before Thompson, C. J., Agnew and Sharswood, JJ.
    Appeal from tbe decree at Nisi Prius: In Equity: No. 60, to January Term 1870.
    Tbe bill was filed by Lewis Audenried, Addison Child, and others, trading as Lewis Audenried & Co., against Tbe Philadelphia and Reading Railroad Company.
    Tbe bill set out amongst other things that tbe defendants were owners of railroads from tbe Schuylkill coal regions used for transporting coal to tbe river Delaware, for shipment to places outside of tbe state of Pennsylvania, affording tbe only access from some of tbe collieries to tbe market. Tbe coal sent to Port Richmond is loaded into vessels at wharves there owned by defendants ; prior to 1868, it bad been customary to allot the wharves to tbe persons engaged in tbe trade; since 1868 tbe defendants bad shipped all coal, charging for expense of receiving, dumping, storing, &c. Since then tbe defendants have allotted wharf room by designating a space where each shipper may dump his coal for the defendants to receive and load into vessels, thus making tbe defendants carriers from the mines until the coal is in tbe vessels; tbe defendants are paid for loading “ exactly as for tolls and freight.” It is essential for shippers that there should be a place on the wharves on which their coal should be deposited until vessels are ready, as it is impossible to regulate tbe arrival of vessels and cars so that the vessels may be at once loaded, while it is essential to tbe interests of tbe company that tbe cars should not be detained: the defendants therefore make a charge for tbe detention of cars; for these reasons and for tbe interest of tbe defendants, and to enable shippers to accumulate reasonable stores of coal to suit the demand for different varieties, “ the custom has uniformly prevailed.”
    ■ Lewis Audenried, one of the plaintiffs, was one of the first shippers that occupied a wharf, having taken one in 1842, and has by himself and the other plaintiffs his partners, occupied one until 1868, and until within a few days they have for two years occupied wharf No. 11 as shippers to New York, Boston and various other ports, and have been if not the largest, one of the largest shippers; they had always conformed to the defendants’ regulations as to the use of the road, cars and wharves; they have entered into many contracts for the delivery of coal on the expectation of having the wharf facilities continued, &c. But the defendants, with the avowed determination to compel them to submit to a demand not connected with wharf facilities, but arising out of a past transaction, have deprived the plaintiffs of the use of the wharf and refuse to give them such facilities as will enable them to conduct their business on the road. The plaintiffs then set out the character of the demand, growing out of a charge by the defendants that the plaintiffs had improperly availed themselves of drawbacks. They set out at large the circumstances under which the demand of the defendants arose; the plaintiffs offered to submit the question to the arbitrament of the former president of the defendants with whom the contract as to the drawbacks had been made, or to litigate in the courts; “ but in vain and on the 15th of March 1870, they were notified that they could not be allowed wharf facilities at Richmond; on application for a place to dump their coal they were refused.
    They charged that the defendants’ action is unjust, illegal and oppressive, and would tend to the great and irreparable injury of the plaintiffs, and for ever put shippers under the- control of the managers of the road, and the refusal of these wharf facilities is practically a refusal to allow the plaintiffs to carry on their business for shipping coal over the Philadelphia and Reading Railroad intended for shipment at Port Richmond.
    “ 27. They further charge, that the company insists :
    “ 1. They are the absolute owners of the said wharves and can exercise their rights regardless of motive.
    “ But the plaintiffs charge that having so constructed their road that these wharves are essential to the shipping trade over the road, the said wharves being at the terminus of the road, which is the Delaware river, are also parts of the road and subject to the same rules as the residue of the road', so far as concerns shippers over said road intending to ship into vessels at the terminus, and the company cannot so use their rights as to affect injuriously the rights of some persons using the road, but which do not affect others similarly circumstanced, but must allow such a use of the wharves as will enable all shippers practically to use the road as it is held out to the public it is intended to be used.
    “ 2. That there is not room for all, and that they are entitled to discriminate.
    “,But the plaintiffs charge, that they cannot discriminate between persons similarly circumstanced, and that your orators are prepared, and have always been, to furnish as much coal and on the same terms, as the most favored of those who have the use of the wharves. And they further charge that the real motive of the company was to coerce the plaintiffs, and this was distinctly threatened in a letter from the president of the company, dated February 1st 1870, and that under no circumstances can such a right be exercised from such motives.
    “ 8. That they have allotted all the wharves and there is no room left.

      “ The plaintiffs charge the contrary to be the truth, and that no pretence of allotment of the wharf hitherto occupied by them, was made until the 15th of March, about a month after the allotment was made of the wharves generally for the trade, and that the company have it in their power, if compelled or willing, to find abundant wharf room for your orators’ accommodation. And further, that the allotment of this wharf was made for the very purpose of barring this application, and the threatened redress of the plaintiffs’ wrongs, and that the company should not be permitted to continue to allow such use as will hinder the plaintiffs from their share, even though it may be compelled to compensate persons to whom they may have made these allotments. And that it is but aggravation of the wrong to pretend to use the franchises granted them in the manner best calculated to serve the public, while in truth this is done as an act of vengeance or to coerce submission to demands which should be the subject of suits.
    “ 4. They pretend that the conduct of the plaintiffs justifies them in this refusal of accommodations.
    “ But the plaintiffs charge that the defendants, as carriers, cannot refuse to give them equal facilities with others similarly'circumstanced as they are, because of a refusal by them to repay money obtained by them from the defendants, even if obtained by fraud, much less if there be a doubt or question as to the right of the company. Such a pretence, once admitted, would enable the company, or any other transporting company, to compel payment of any demand at the peril of the destruction of the trade of the alleged debtor carried on over the road. And more especially is this so when the demand is not for anything connected with the trade that is asked to be carried on, but because of past transactions and those not connected with the regulations of the wharves or shipments, but for what is at most a payment by mistake of a bonus on coal previously carried and sold.”

      The prayers were:
    I. That the court will declare and establish the rights of the plaintiffs to so much or such a portion of wharf room and shipping facilities in every particular, as will put them on an equality in all respects as to conveniences for receiving, storing and shipping coal at Richmond, with any other shipper in proportion to the business done by them and such other shippers.
    II. That the defendants be restrained from refusing to allow or continue to the plaintiffs such facilities as aforesaid, as are required for the purposes aforesaid.
    III. That the defendants be restrained from allowing any other person or persons to use any part or parts of the said wharves for receiving and storing coal preparatory to the shipping of the same, while, and so long as the defendants omit to furnish the plaintiffs with similar facilities, in a due proportion as compared with those enjoyed by such other persons furnishing similar quantities of coal to the railroad company for shipment at that place and under the same regulations.
    IY. And that the defendants be restrained from hindering or otherwise obstructing the plaintiffs in conducting their business on this road and wharves in the same manner and with equal facility as any other person or persons using the said road.
    V. General relief.
    The bill was accompanied by the affidavits of Addison Child, Lewis Audenried and W. G. Audenried, three of the plaintiffs, deposing that the averments in the bill were true, and also deposing as to parts in detail.
    C. H. T. Collis, Esq. was appointed examiner to take depositions of witnesses to be read on hearing the motion for a preliminary injunction.
    Much testimony was taken upon the allegations in the bill and with reference to the allotments of the wharf facilities theretofore used by the plaintiffs.
    April 29th 1870, at Nisi Prius, Mr. Justice Read made this decree: “ It is ordered that an injunction do issue, as prayed in the second, third and fourth clauses (of the prayers of the bill filed in this cause, enjoining and restraining the defendants as therein prayed, until the further order of this court, upon the plaintiffs giving bond, &c.”
    The defendants appealed to the court in banc and assigned the decree for error. <i

      J. JS. Groiven and Meredith, for appellants.
    1. The delay in filing the bill is a sufficient answer to the prayer for a preliminary injunction: Hilliard on Injunctions, p. 24, s. 43; Tush v. Adams, 10 Cush. 253; Binney’s Case, 2 Bland. 99; Hodges on Railways 769; Illingworth v. Manchester and Leeds R. W. Co., 2 Railway Cases 187.
    2. The sole object of a preliminary injunction is to preserve the subject of the controversy in the condition in which it was when the order was made: Farmers’ Railroad Company v. Reno, &c., Co., 3 P. F. Smith 224; Mam. Vein C. C. Co.’s Appeal, 4 P. F. Smith 183.
    3. The plaintiffs have no more right to the exclusive use of one of defendants’ coal piers for storing and shipping their coal, than they have to the use of one of defendants’ coal-yards or ordinary warehouses.
    4. Even in the case of an ordinary railroad yard at a station or depot, the railroad company is not bound to admit every one who proposes to carry on the business of receiving and delivering freight there, much less to appropriate to him the exclusive use of yard-room or depot-room for the more convenient transaction of his business: Barker v. Midland Railway Co., 18 Com. Bench 46; Beadell v. Eastern Co.’s Railway Co., 2 Com. B. N. S. 509; Painter v. L. B. & S. R. W., 2 Com. Bench N. S. 702; Marriot’s Case, 1 Com. Bench N. S. 498; s. c. 40 Eng. Law and Eq. 250.
    5. Where the facilities of a railroad company are inadequate to accommodate all applicants, no one can insist upon a special and absolute right in himself, nor must the company refuse to accommodate any, because they cannot accommodate all; and in making a selection, the company has the right to exclude those who abused the facilities in question when they enjoyed them to its injury and discredit: Oxlade v. North Eastern Railway, 1 Com. Bench N. S. 454; 2 Redfield on Railways 69, s. 4; Id. p. 217; Angell on Carriers, s. 125, and note 1; s. 524 and following; Chitty on Carriers, p. *247; Riley v. Horne, 5 Bing. 217; Cole v. Godwin, 19 Wend. 261; Jencks v. Coleman, 2 Sumner 221; Palmer v. London and South Western Railway, 1 Law Reports C. P. 588; Ransome v. E. Counties Railway, 38 Eng. L. and Eq. 232; s. c. 1 C. B. N. S. 437; Nicholson v. Gt. Wn. Railway, 5 C. B. N. S. 366; 2 Redfield on Railways 218.
    I?. O. MoMurtrie and 6r. W. Biddle, for appellees.
    1. The railroad company as a common carrier cannot directly or indirectly use their franchises so as practically to exclude one man from an advantage which others are allowed to enjoy.
    2. That the railway tracks running over and upon the wharves are thus a connecting link between the road and the water highway, and are subject to the same rules as the road.
    3. The avowed motive is no justification. A carrier has a lien for his freight, but he has none for an old debt. If he cannot refuse to deliver on tender of freight due on that cargo, a fortiori can he not refuse to transport till the old debt is paid.

      4. The road and the wharves, though property of the company, are qualified property. The public have an interest. The right to build a road and hold property was granted for the public service, and can only be used lawfully.
    5. Where a corporation refuses the use of its property to a particular member of the public, i/hey must justify for special reasons applicable to that person, or that occasion; and whether this was the motive, or whether their conduct was founded on sufficient reasons, is traversable: Dummer v. The Corp’n of Chippenham, 14 Ves. 252; Hill on Trustees 488; 1 Chitty Pl. 612— 14.
    6. Where they owe a duty they will be compelled to perform it; if they have entangled themselves with inconsistent engagements they will be prohibited from acting in such way as will disable them from performing the duty : Kerr on Inj. 230 ; Com. v. Pittsburg and Connellsville Railroad, 12 Harris 159; Sanford v. The Catawissa Railroad, Id. 380; Baptist Congregation v. Scamnel, 3 Grant 48; People v. Vanderbilt, 12 Smith N. Y. 287; Niagara v. Great Western Railroad, 39 Barbour 212; Baltimore v. Porter, 18 Maryland 284.
    7. If the fact that they have made contracts which deprive them of capacity serves as an excuse against fulfilling an obligation, there will never be another case of compelling a railway to perform.
    8. They say they have not sufficient wharves for all and hence they must discriminate. But if this discrimination is not for the benefit of the road, but a mere stalking-horse to cover and conceal the real motive, and that is an unlawful one, then the court will examine and redress.
    9. And if they are compelled to select and discriminate, then they must do it by dividing — not by excluding.
   The opinion of the court was delivered by

Sharswood, J.

There are two kinds of injunctions in courts of equity. The one is preliminary or interlocutory; the other final or perpetual. The object of the first in general is simply preventive — to maintain things in the condition in which they are at the time until the rights and equities of the parties can be considered and determined after a full examination and hearing. A preliminary injunction is never awarded, except when the rights or equity of the plaintiff are clear, at least supposing the facts of which he gives primfi facie evidence to be ultimately established.

All injunctions are generally processes of mere restraint; yet final injunctions may certainly go beyond this and command acts to be done or undone. They are then termed mandatory. They are often necessary to do complete justice. But -the authorities, both in England and this country, are very clear that an interloeutory or preliminary injunction cannot be mandatory^ In Gale v. Abbott, 8 Jurist, N. S. 987, Vice-Chancellor Kindersley said: “ It was useless to come for what was called a mandatory injunction on an interlocutory application. Such an application was one of the rarest cases that occurred, for the court would not compel a man to do so serious a thing'as to undo what he bad done, except at the bearing.” So in Child v. Douglass, Kay 578, Vice-Chancellor Sir W. Pag.e Wood, now Lord Chancellor Hatherley, noticed, the same distinction: “ The plaintiff has a right to an injunction to restrain the building of the wall until further order; but I can make no order on an interlocutory application as to that part of the motion which relates to pulling down what has already been built.”

It was said by Chancellor Bland, in Murdoch’s Case, 2 Bland 469: To restrain a defendant from making any abusive use of the property in question, or from disposing of it past recall, amounts to no more than the imposition of a temporary limitation upon the free exercise of his right, even if it should eventually appear to be entirely and rightfully hiswhich is quite as far as any court can go in the first instance, and as preparatory to a fair beneficial bearing and final adjudication.

It was held accordingly in The Washington University v. Green, 1 Md. Ch. 97, that an injunction, unless issued after the final decree, when it becomes a judicial process, can only be used for the purpose of prevention and protection, and not for the purpose of commanding the defendant to undo anything which he had previously done. To the same effect are The New York Printing and Dyeing Establishment v. Fitch, 1 Paige 97; Bosley v. The Susquehanna Canal, 3 Bland 65; Attorney-General v. New Jersey Railroad Company, 2 H. W. Green’s Ch. R. 136; Attorney-General v. City of Patterson, 1 Stockton 624. This distinction between a preliminary and final injunction is fully recognised in our own decisions.

Mr. Justice Strong states it in his opinion at Nisi Prius, in The Lehigh Coal and Navigation Co. v. The Lehigh Valley Railroad Co., January 1855, No. 59, April 5th 1855, in which he says : “A preliminary injunction ought never to be granted except in a clear case, and then only to prevent a substantial injury. Its purpose is to keep things in their existing condition until the case can be finally heard. As it is the strong arm of the law, it must be used only when necessity requires it. And a preliminary injunction can never be necessary when the thing sought to be restrained has been already done; for its province is not to undo but to prevent and preserve.”

The same learned judge, delivering the opinion of the whole court in Farmers’ Railroad Co. v. Reno, &c., Co., 3 P. F. Smith 224, said: “ The sole object of such an order is to preserve the subject of the controversy in the condition in which it is. when the order is made. It cannot be used to take property out of the possession of one party and put it into the possession of the other; that can be accomplished only by a final decree.”

To the same point is Mammoth Vein Coal Company’s Appeal, 4 P. F. Smith 188, in which the present Chief Justice said: “ It ought not to be forgotten that a preliminary injunction is a restrictive or prohibitory process, designed to compel the party against whom it is granted to maintain his status merely until the matters in dispute shall by due process of the courts be determined.” It is true that a mandatory order appears to have been made by Mr. Justice Lowrie, on a motion for a preliminary injunction before him in Allegheny county, in The Baptist Congregation v. Scannel, 3 Grant 48. It is enough to say of that case now, that the question does not appear to have been mooted or argued; at all events it is not adverted to in the opinion.

^There are some few instances in England in which a mandatory order has been made on an interlocutory application; but they have been very extreme cases, and ought not to be followed as precedents^ Thus in The Attorney-General v. The Metropolitan Board, 1 Hem. & Mil. 321, where the flue of a chimney had been stopped up by a plate put over it, so as to fill the house with smoke, the order was made so as to compel the defendant to remove it. In Hepburn v. Lardner, 2 Id. 345, damp jute was stored and dried on premises adjoining the plaintiff’s premises, at the imminent risk of combustion.

These- and perhaps a few other cases of similar character rest on the authority of Lane v. Newdigate, 10 Ves. 193, in which Lord Eldon, in what he considered a clear and hard case, evidently felt that he was treading on dangerous ground, and therefore resorted to indirection to accomplish his purpose. The plaintiff was the assignee of a lease of mill property granted by the defendant, with covenants for the supply of water from canals and reservoirs on defendant’s premises.

The allegation was that he had suffered the canal and reservoir to be out of repair, and especially had removed a certain stop-gate. Lord Eldon expressed a difficulty whether it was according to the practice of the court to decree or order repairs to be done, but afterwards said: “ So as to restoring the stop-gate the same difficulty occurs. The question is, whether the court Can specifically order that to be restored. I think I can direct it in terms which will have that effect. The injunction I shall order will create the necessity of restoring the stop-gate, and attention will be had to the manner in which he is to use these locks; and he will find it difficult, I apprehend, to avoid completely repairing these works.”

That is acknowledging that he could not, according to the principles and practice of the court, order the defendant in direct terms to restore the stop-gate and repair the works: the injunction should be so drawn that, although on its face restrictive only, it will, in order to comply with it, compel him to do these very things. This is not a precedent which ought to be followed in this or any other court. A tribunal that finds itself unable directly to decree a thing, ought never to attempt to accomplish it by indirection. Injunction as a measure of mere temporary restraint is a mighty power to be wielded by one man. It would extend far beyond all safe and reasonable bounds to permit it to go farther.

The reason of the distinction in this respect between an interlocutory and final injunction is very obvious. The former may be granted on an ex parte application; even when it is upon notice it is upon ex parte affidavits. The mode in which the testimony was taken in this case by an examiner was very unusual; but it cannot change the character of the application. The proceedings, in the nature of things, must be summary. Besides, the effects of an interlocutory injunction may often be the same as a final decree, as, indeed, in this very instance.

The decree appealed from in this case was clearly mandatory. It followed closely Lane v. Newdigate, if it did not go beyond it. It commanded the defendants to allot, allow or continue to the ■plaintiffs such use of a wharf or wharves as are required by them, which shall be equal in quantity and convenience to the wharf accommodations furnished to any other person; and that defendants refrain from allowing any other person to use any part of the wharves while they omit to furnish the plaintiffs with similar wharf facilities in a due proportion. We must take this decree, in connection with the undisputed fact that before, the bill was filed the defendants had allotted all their wharves to others; and it is very plain that they could not obey this decree without revoking this allotment and making a new one.

It is very true that it did not appear that any possession had been taken under the allotment at the time the bill was filed. It was upon paper merely. But that ought not to weigh in this case, because the several allottees under the allotment thus made were not made parties to the suit and have not been heard. Had they taken possession under their allotments it is not very easy to see how they could have been proceeded against for a- contempt. Their equities may be as strong as the plaintiffs’’. Beginners and small dealers have their rights as well as old and large ones. What contracts or arrangements for their business upon the faith of the allotment to them they had made we do not know. They were at least entitled to be heard.

Apart, however, from these considerations, we do not think that the facts disclosed by the depositions show so clear an equity in the plaintiffs as would have entitled them to a restrictive injunction had they filed their bill before the allotment was made. It is not necessary to go further than this to prove that the preliminary injunction ought not to have been awarded. It is very doubtful whether the defendants, under their charter, are bound to provide any wharf accommodations for the coal-dealers at Port Richmond, and equally doubtful whether, having done so to a limited extent, not sufficient to supply the entire business, they are subject to any trust to use or dispose of that property in any particular way.

But concede both these points, what then ? As trustees there is a discretion reposed in them in the use of the property with which a chancellor cannot interfere. It is agreed that they have not room enough for all. They must select some and reject others. Can a chancellor inquire into their motives, and not approving of them, assume the selection himself? The case of Dummer v. The Corporation of Chippenham, 14 Ves. 245, upon which the plaintiffs principally rely, does not support their assertion.

There the trustees of a charity school threatened to remove the master because he had voted contrary to their wishes in the election of a member of Parliament. The question was: Had the Chancellor jurisdiction to inquire into the matter and enjoin against such removal ? It was upon demurrer to the bill. Had the master held his appointment for a term certain, which had expired or was about to expire, and the prayer had been to enjoin his reappointment, it would have had some analogy to this case.

Can any-one suppose that such a jurisdiction would have been assumed ? It is not a matter which is open to dispute upon the depositions that the allotment of wharves by the defendants was annual — that the allotment made to the plaintiff’s in 1869 had expired, and that there was no agreement to renew it. Changes appear to have been frequently made, although, as was natural, the allotments were generally renewed. It is agreed that the company might have put up these privileges every year and sold them to the highest bidder, as is somewhere done with the pews or seats in churches. They preferred to distribute them without premium or rent, in order that they might retain a more absolute control over the property.

It may well be, however, notwithstanding this, that an allottee turned out by the defendants, capriciously or from improper motives, during the year for which the allotment was made, might, on equitable grounds, he restored to the privilege for the rest of the year, or by an interlocutory injunction his removal, if threatened, prevented. But what right or equity has such an occupier superior to others, to hold over for another year ? That would be to assure him a perpetual lease. If such a perpetual lease had been granted to one coal-dealer exclusively in all the wharves, it might well be argued that Sandford v. Railroad Company, 12 Harris 378, would go far to sustain the position that such a grant was extra vires.

That case has no bearing upon this. Transportation by a common carrier is necessarily open to the public upon equal and reasonable terms. An exclusive right granted to one is inconsistent with the rights of all others. This was not transportation, but ' wharfage, the nature of which requires exclusive possession temporarily. The railroad company as trustees for the public have a necessary discretion in the management of such interests, and the motives of their proceedings cannot be reviewed by the courts.

It would be a dangerous and alarming power to be exercised by a chancellor over corporations or other trustees, to direct the appointment to offices, or awarding of contracts, whenever it appeared that it was about to be used from political or other improper motives. This would be in effect to deprive the directors of corporations of their management, and to substitute the chancellor as supreme director or manager. Eor this reason we think the decree in this case ought not to stand.

Decree reversed and record remitted.


source: Caselaw Access Project

author: by Asnew, J.

license: Public Domain

text:
    Conrad versus Foy, Administrator, &c., of Conrad.
    1. A surety in an obligation can be discharged by nothing less than clear and positive proof of notice given to the creditor to proceed against the principal by one duly authorized to give it at a time when the creditor has it in his power to proceed to collect his debt.

      % The husband of a legatee of a deceased surety is not a person authorized to give notice to the creditor to collect, unless in case of the absence of the representative of the decedent.
    At Philadelphia, January 26th 1871. Before Thompson, C. J., Read, A&new and Williams, JJ. Sharswood, J., at Nisi Prius.
    Error to the Court of Common Pleas of Northumberland county : Of October Term 1870.
    William Conrad, on the 4th of November 1867, brought an action of assumpsit against John Eoy, administrator d. b. n. c. t. a. of Daniel Conrad, deceased.
    The cause of action was the following note:—
    “$700. March 21st 1865.
    “ One year after date, we promise to pay to William Conrad or order seven hundred dollars without defalcation for value received, and should judgment be obtained on this note against us, we do hereby agree that all our estate and effects, without exception or exemption, shall be subject to levy and sale in execution thereof, to an .amount sufficient to satisfy said judgment and waiving and relinquishing all benefit of any law exempting such estate and effects, or any part thereof from such levy and sale with interest from date.
    Albert Conrad, Daniel Conrad.”
    Daniel Conrad died about January 1866, having made a will, which was proved January 18th, and letters testamentary were issued to Charles A. Conrad (who is Albert Conrad to the note), the executor named in it. He was discharged May 14th 1867, and John Foy appointed administrator, &c.
    For the, defendants, D. D. Foy, the husband of one of the daughters of the decedent, testified that he and Abraham Sterner, the husband of another daughter, both daughters being legatees under the will, went to William Conrad in the spring of 1866.
    “ Sterner told him that he thought Albert was going back, and he should proceed against him. That they wouldn’t stand for this note or money; that he should enter it up; that they were not going to be responsible for the money. We told William Conrad we came there on purpose to give him notice. William Conrad said what I can’t remember. The note was not entered up at the time.”
    G. W. Neidig, who accompanied Foy and Sterner, testified: “ William was on porch. Sterner called him out and told him he wanted him to attend to that note he held against C. A. Conrad, that he wanted to make himself safe. He was afraid A1 would go back on him; that Bill should secure himself; that they would not stand good, that he should come on to the estate of Daniel D. Conrad. Sterner said C. A. Conrad had got money of Wm. Conrad and he was afraid A1 would go back on them, and they did not or would not let it come on estate. Amount was not mentioned. William said he was all right, he had a judgment-note. This was last of February or 1st of March, along in spring of the year.”
    Charles A. Conrad testified: “ My father went bail for $700 to Wm. Conrad, on note on which I got the money. After note fell due, last of May or 1st of June, he came for his interest for the first year. He gave me a receipt for the interest and told me he had note entered, that the boys told him they would not stand security any longer. I told him I didn’t like he entered that note. It was no judgment-note, and I told him I would give him security if he wanted it. Told him I would give him a judgment on my property. He said he had a judgment that was good enough. When I came to Sunbury I looked and saw he had note entered. He said Foy and Sterner had been up; this was before he came for his interest. I saw him again in beginning of December of same year. I came to Sunbury; met him at corner of Bassler’s store. We talked about this note. I told him I thought it was not a judgment-note. He said it was, and that he had a judgment that was good enough. I wanted him secured for his money. I told him in December, in conversation, I was going back. I told him I would secure him. He said he had a judgment that was good enough. I told him at that time it was not a judgment but a promissory note. I said nothing about other creditors pushing me, but I knew they would. I told him I was failing in business. against my property but note he No judgment ‘at that time entered.”
    Abraham Sterner testified: beginning of year. I called “ I went to William Conrad in 1866; him up and told him he should get that note against Charles A. Conrad entered up — that judgment-note he said he held against Charles A. Conrad; I told him the estate wouldn’t stand good for it if he didn’t get it entered up. I told him I thought it wasn’t safe the way it was. C. A. Conrad was in business and that we ought to be safe too ; I told Conrad I thought he was not safe the way it wasp I told him Albert was in debt in his business there; William said it was a judgment-note ; he didn’t show me the note. He said he would get the note entered. This was in February or March; note had not been entered up.”
    The record of the entry of the judgment on the note was as follows:—
    “ Ap D. No. 118, Jan. T. 1866.
    Judgment in plaintiff’s favor on single bill, with power to enter the same, dated March 21st 1865, for $700, payable one year after date. Defendants agree to waive benefit of exemption. Entered January 22d 1866.”
    William Conrad v. Albert Conrad and Daniel D. Conrad.
    On the 9th of August 1867, on the application of creditors of C. A. Conrad, this judgment was stricken off.
    In rebuttal, William Conrad, plaintiff, testified: “ Saturday evening near dark, in January 1866, 24th, Sterner and others came there; they wanted me to enter that note if anything should turn up with Albert Conrad that I would have first judgment; that is all that was said; I had the note entered on the 26th of January; I never told them it was a judgment-note; they all thought it was; six months afterwards I thought it was no judgment-note; I went to them and told them that I thought it was not a judgment-note ; they said they would see their lawyer about it. * * * We all thought it was a judgment-note at the time it was given. At the time Sterner and Foy called on me I thought it was a judgment-note, and so did they. They hadn’t seen the note then. I and Albert Conrad thought it was a judgment-note. They said I should get the note entered up. I took it to old Mr. Reimensnyder (prothonotary) — he looked over it and entered it.

      “ Eoy and Sterner, when they called on me, didn’t say anything about not standing for the note, but that I should do my duty, so that I should have the first judgment; Alfred was good yet, when by their direction I took the note to Evans.”
    The court charged:— * * *
    [“ The defendant contends that he is discharged from liability, because that before the maturity of the note upon which suit is brought, the holder, William Conrad, was informed by some of the devisees and legatees of Daniel Conrad, deceased, the surety in the note, that they thought Albert Conrad (the principal in the note) was going back, and he should proceed against him; that they wouldn’t stand for this note or money; that he should enter it up; that they were not going to be responsible for the money; that he should make himself safe; that he should secure himself safe; that it should come on the estate of Daniel Conrad; deceased ; that if the jury found the above notice had been given and request made, and that William Conrad did not proceed within a reasonable time and with due diligence to collect the note, that the surety was discharged.] * * * That if the surety is dead, if notice is given to the holder of the note or bond by some one having a right to give notice, the holder is equally bound to proceed, as if notice had been given by the surety. The character of the notice must be such as to inform the party to whom it is given what was desired of him. It must not be so ambiguous and uncertain as to leave it in doubt what is desired to be done.
    “ The plaintiff’s counsel contend that the notice is not of this character and that the notice was simply to enter up the note (all the parties at that time, it is probable, supposed it to be a judgment-note), which was immediately done.” * * *
    The court further told the jury, that [“ the persons giving the notice were devisees or legatees of Daniel Conrad, and interested in his estate, and that a notice by them or some of them was sufficient.”] * * * “ William Conrad held the note, and we think he was bound to know whether it was a judgment or not, and whether at the time it was entered as a judgment against Albert, he had real estate more than sufficient to -*pay it, if you believe the evidence, the entry of the note was not a lien on Albert’s property. The estate of Daniel Conrad, we think, should not suffer from William’s ignorance.” * * *

    The verdict was for the defendant.
    The plaintiff having sued out a writ of error, assigned for error the parts of the charge in brackets.

      0. A. Reimensnyder and W. 0. Lawson, for plaintiff in error,
    cited Strickler v. Burkholder, 11 Wright 479; Hellen v. Crawford, 8 Id. 106.

      February 9th 1871,

      J. K. Davis, Jr., and J. B. Packer, for defendant in error,
    cited Geddis v. Hawk, 10 S. & R. 37; Cope v. Smith, 8 Id. 110; Erie Bank v. Gibson, 1 Watts 143.
   The opinion of the court was delivered,

by Asnew, J.

When the legislature, by the Act of 25th April 1855, enacted that no special promise for the debt or default of another should be .binding, unless a memorandum or note in writing, signed by the party to be charged, be taken, it gave birth to a principle quite as valuable in the present case as in that to which it was applied. Why should a surety bound in a solemn bond or note in writing, to pay a debt which his credit enabled his principal to create, be discharged therefrom except upon the clearest equity; and why should the written obligation be blown away by the uncertain breath of witnesses ? A notice from a surety to the creditor to proceed against the principal, or otherwise the surety will be discharged, ought in justice to be in writing and in the most explicit terms. But prior decisions have not required this, and we cannot legislate such a rule into existence. We have a right to hold and justice requires us to say, however, that nothing less than clear and positive proof of the notice given by a person duly authorized to give it, and a notice clear and explicit in its terms, given at a time when the creditor has it in his power to proceed to collect his debt, should discharge the surety from an undoubted legal obligation to pay the debt. The notice in this case cannot be said to be of this character. The witnesses differ as to its terms, and it was either doubtful in its character, or it was, according to the major proof, a notice to enter up judgment on a note supposed by the parties to contain a power to enter judgment, but was discovered several months afterwards not to be so. It was given about two months before maturity, and when it was not in the power of the creditor to proceed to collect it, and the persons who gave it were sons-in-law of the deceased surety, whose wives are said to be legatees under his will. The creditor, however, did enter judgment immediately, the prothonotaries, strange to say, taking the note and filing it, as if it contained a power to enter judgment. Now there may be cases where on account of the absence of a representative of the deceased surety, a party interested in his estate may be allowed to give a notice in protection of the estate; but certainly there was nothing in this case to warrant it, and in advance of the maturity of the note. There was no evidence that the executor of Daniel Conrad, though the principal in the note, had refused to give the notice in behalf of Daniel’s estate; or had refused to lend his authority and sanction to the sons-in-law as his agents to give the notice. Now in the absence of any good reason, on what principle of sound equity shall one who has a certain lawful debt, unshadowed by a single infirmity, be compelled by tbe notice of apparent strangers, to hunt tbe will of tbe deceased principal debtor, employ counsel and pay tbe expense of a search to discover their interest in tbe estate, or otherwise submit to a loss of bis debt ? Upon all the facts in tbe case there was no equity established to entitle tbe estate of tbe surety to be discharged, and tbe court should have so told tbe jury.

Judgment reversed, and venire facias de novo awarded.


author: by Agnew, J.

text:
    The Directors of the Poor, &c., of Northampton Co. versus The Overseers of the Poor of Limestone Township.
    1. No'special mode is provided for appeal from orders of removal of paupers.
    2. Ordinarily an appeal is taken directly from and in the tribunal of judgment, and is a declaration made to it of an intention to be heard by a higher tribunal.
    3. In appeals in removal cases, there is no provision for a record by the magistrates.
    4. The Court of Quarter Sessions is the only tribunal where the trial of a controverted question of settlement can be had; there is no provision for a hearing before the magistrates.
    5. An appeal from an order of removal may be made by notice to the district from which the removal is made, an<l petition to the Quarter Sessions to allow the appeal without previous declaration of appeal to the magistrates making the order.
    At Philadelphia, January 27th 1871. Before Thompson, C. J., Ag-new and Williams, JJ. Sharswood, J., at Nisi Prius.
    Certiorari to tbe Court of Quarter Sessions of Montour county: Of October Term 1870.
    On tbe 28th of July 1868, PI. R. Montgomery and J. T. Heddens, two justices of the peace of Montour county, adjudged that Rebecca Balliet, a pauper found in the township of Limestone, in that county, bad her last legal settlement in Northampton county, and ordered tbe overseers of tbe poor of Limestone township to convey her from tbe county of Montour and deliver her to the directors of tbe poor of Northampton county, together with tbe order, &e.
    Tbe directors of tbe poor of Northampton county served the following notice, signed by them, on tbe overseers of tbe poor of Limestone township:—

      “ To tbe Overseers of tbe Poor of tbe township of Limestone, in tbe county of Montour: Take notice, that we the Directors of the Poor and House of Employment of tbe county of Northampton, do intend at tbe next Court of Quarter Sessions of the Peace, to be holden at Danville, in and for the said county of Montour, to commence and prosecute an appeal from the order of Hugh Montgomery and J. T. Heddens, two of the justices of the peace of the said county of Montour, for the removal of Rebecca Balliet, a pauper, from the said township of Limestone to the county of Northampton. September 7th 1868.”
    February 9th 1871,
    On the 21st September 1868, the petition for appeal, with copy of order of removal and notice of appeal by the directors of the poor, &c., of Northampton county,, was read and filed, and the same day the appeal was allowed by the court.
    On the 22d December 1868, the overseers of Limestone moved the court to strike from the record all the proceedings in this case, because no appeal has ever been entered by the defendant from the order of removal; on the 23d December 1868, the rule to strike off was made absolute.
    On the 17th February 1869, the bill of costs of plaintiffs was allowed, and the court ordered the costs of the proceedings to be paid by the directors of the poor of Northampton county on or before the first day of the then next term.
    On the 17th May 1869, this order was renewed, and on the 23d September 1869, the court granted a rule on the directors of the poor, &c., of Northampton county to show cause why an attachment should not be issued against them for non-payment of expenses, &c. February 23d 1870, this rule was made absolute.
    A certiorari at the instance of the Directors, &c., of Northampton county, was issued from the Supreme Court, and the several orders of the court below were assigned for error.

      J. Y. Gfreir (with whom was J. W. Oomley), for the certiorari.

      JE. H. Baldy, contra.
   The opinion of the court was delivered,

by Agnew, J.

The Poor Law relating to appeals from orders of removal is obscure and somewhat peculiar. A remarkable feature is, that no special mode of appeal is provided. There must have been a motive for this on the part of the revisers, who were familiar with such proceedings, and had made provisions for appeals in other laws revised by them. Ordinarily an appeal is taken directly from and in the tribunal of judgment, and is a declaration made to it of an intention to be heard by a higher tribunal. As when Paul, a Roman citizen, said to Festus, “I appeal unto Csesar,” and Festus, having conferred with the council, said, Hast thou appealed unto Csesar ? unto Csesar shalt thou go.” But in the present instance an examination of the proceeding and the nature and effect of the order of removal reveals features making a direct appeal from the magistrates often perplexing and inconvenient. The first feature is the want of any provision for a record by the magistrates. Complaint must be made (whether orally or in writing is not said), by the overseers of the district where the pauper has (or is likely to) become chargeable to a magistrate of the county. The magistrate takes to his assistance another magistrate of the county, but no provision is made for a notice, or for a hearing, or for the evidence, or a record to be kept by either or both of them. The hearing and the issuing of the warrant or order of removal would seem to be ex parte. The reason probably is that the removal may be to a distant place within or without the state, rendering notice difficult and dilatory, while prompt action may be necessary. The order of removal actually sets forth the complaint of the overseers, that due proof of the settlement has been made, the judgment of the magistrates and the order to remove, and ends by directing the order or a true copy to be delivered to the overseers of the district to which removal is made, and requires them to receive the pauper. Then the 18th section of the Act of 18th June 1836 requires the overseers of the district to which removal is made to receive the pauper under a penalty of twenty dollars for neglect or refusal. Under this proceeding the first notice the overseers of a district will probably have, will be the delivery of the order and the pauper at the same time. Now it is obvious, from the want of any provision as to a record of the proceeding, or by whom it is to be kept, and of any mode or place of appeal defined, the overseers to whom the order and the pauper are delivered, when at a distance, must be at a great loss to know when, where and how to appeal. With such an order in their hands, and ignorant of all else except what appears on its face, the only convenient and feasible mode of appeal to them would be to notify the overseers of the poor making the removal of their intention to appeal to the next Court of Quarter Sessions. Indeed, that court appears to be the only tribunal where the trial of a controverted question of settlement can be had, there being no provision for a hearing before the magistrates.

A proceeding therefore by notice to the overseers removing the pauper, and a petition to the court to be heard on appeal, seems to accord well with the ex parte character of the order of removal, and the want of a regular hearing and judgment of the magistrates between litigant parties. The 19th and 20th sections of the Act of 1836, also lend countenance to this view. The 19th does not say the appeal shall be taken from the judgment of the magistrates, but it says to the next Court of Quarter Sessions, and it provides that if there be any defect in the form of such order of removal the court shall amend it, and then proceed to hear the cause on the merits, and then provides that no such cause shall be proceeded in unless reasonable notice shall have been given by the appellant to the overseers of the district from which the removal shall be made. The next section (20th), directs that, “the Court of Quarter Sessions, upon every appeal in case of settlement, or on proof being made before them of notice thereof as aforesaid (though the appeal be not afterwards prosecuted), shall at the same session order the party in whose behalf such appeal shall be determined, or to whom such notice did appear to have been given, such costs and charges as the said court shall consider reasonable and just to be paid by the overseers, or other person against whom such appeal shall be determined, or by the person who gave such notice.” Thus the section itself refers to the notice of appeal in the alternative, and as a mode of proceeding to take it, thereby strengthening the view that it may be taken not from the magistrates, but directly to the court. Now in view of the ex parte proceeding before the magistrates, the want of any prescribed mode of appeal, the necessity of distant districts proceeding by notice, and coming into court at once by petition, and the evident recognition in the 20th section of this mode of proceeding, we must declare this mode of appeal to be warranted by the Act of 1836, and that the court below erred in striking off the appeal on the ground that no previous declaration of the appeal had been made to the magistrates. We do not mean to say that no record can be kept by the magistrates of their proceedings or that no appeal can be entered before them, but that the Poor Law recognises an appeal, by notice to the overseers making the removal and by petition to the court to be heard thereupon.

The order of the Court of Quarter Sessions striking off the appeal is therefore reversed, the appeal ordered to be restored, and a procedendo awarded.


author: by Read, J.

text:
    Bamford versus Keefer.
    1. A promise of indemnity is broken by the recovery of a judgment against the person to whom the promise was made, and he may maintain an action without proof of payment.
    2. A capias ad, satisfaciendum, was issued and the defendant discharged at the request of the plaintiff. Held, that the judgment was satisfied.
    3. A defendant so discharged is still entitled under a contract to indemnity, to such costs and charges as he has been put to and such damages as he has sustained by litigation.
    January 26th 1870. Before Thompson, C. J., Read, Sharswood and Williams, JJ. Agnew, J., at Nisi Prius.
    Error to the Court of Common Pleas of Northumberland county: October Term 1869.
    This was an action of covenant brought by John Bamford against George Keefer. George Keefer having obtained a judgment before a justice of the peace, against Israel B. Dunkelberger for $47.41, issued execution directed to John Bamford, constable, who returned “ no goods.” Iveefer then executed the following agreement:—
    March 13th 1871,
    “ To John Bamford, constable, of Zerbe township. This certifies that I hereby indemnify you against all damages you may sustain in the collection of my money, on execution issued off of the docket of A. A. Heim, Esq., and placed in your hands for collection of I. B. Dunkelberger. Witness my hand and seal this 22d day of August 1859.
    Witness, George Keener, [l. s.]”
    “Henry Clement.”
    and issued an alias execution, which Bamford served and returned “no goods.”
    Upon a pluries execution Bamford returned “levied on one mule and sold for $43;” the mule so levied on was in the possession of Jonathan Dunkelberger, the father of Israel B. Dunkelberger, and was claimed by him as his property.
    Jonathan Dunkelberger then brought an action of trespass against Bamford, and recovered a verdict of $316.56, upon which judgment was entered, and after several fruitless writs of fieri facias a capias ad satisfaciendum was issued which was returned endorsed “ The sheriff is hereby requested to discharge the defendant at the costs of the plaintiff,” signed by the plaintiffs’ attorney.
    This suit was brought upon the foregoing agreement to indemnify, upon the trial of which it was admitted that John Bamford and George Keefer employed counsel to defend the suit of Jonathan Dunkelberger against Bamford.
    The court directed the jury to find a verdict in favor of the defendant, which was done.
    The plaintiff took a writ of error and assigned for error the the instruction of the court to the jury.

      S. B. Boyer and Bill f Wolverton, for plaintiff in error,
    cited Stroh v. Kimmel, 8 Watts 157; Bancroft v. Winpear, 5 Am. Law Reg. 505; Bank v. Douglass, 4 Watts 95; Carman v. Noble, 9 Barr 366; Jackson v. Knight, 4 W. & S. 412.
    J. K. Davis, Jr., and J. B. Paclcer, for defendant in error,
    cited Fitler v. Fossard, 7 Barr 540; Vigers v. Aldrich, 4 Burr. 2483; Palethorpe v. Lesher, 2 Rawle 272; Sharpe v. Speckenagle, 3 S. & R. 464; Freeman v. Ruston, 4 Dall. 214.

       The opinion not delivered till this term.

   The opinion of the court was delivered,

by Read, J.

In this case the court below directed the jury to find a verdict in favor of the defendant, but delivered no opinion and assigned no reasons. We are therefore obliged to collect the nature of the plaintiff’s claim, and of the defendant’s defence, from the meagre record before us, assisted by the paper-books of the parties.

It is undoubtedly the law, that a promise of indemnity is broken by the recovery of a judgment, against the person to whom the promise was made, and he may maintain an action upon it without proof of payment of the judgment: Stroh v. Kimmel, 8 Watts 157; Bank v. Douglass, 4 Watts 95 ; Carman v. Noble, 9 Barr 366, 371; Gardner v. Grove, 10 S. & R. 137, 139, Tilghman, C. J.; Miller v. Howry, 3 Penna. R. 374.

A judgment before a justice was obtained by George Keefer against Israel B. Dunkelberger, on the 7th May 1859, for $47.41, and on the 11th July execution issued to John Bamford, constable, and on the 30th July, the execution was returned “ no goods found.” On the22d August 1859, George Keefer gave John Bamford constable, a bond of indemnity, and on the next day an alias execution issued to said John Bamford, constable, which on the 12th September was returned “ no goods found,” and on the 8th October 1859, a pluries execution issued to John Bamford, constable, who on the 29th October returned levied on one mule and sold for $43, and money paid into office, which was received by George Keefer, who entered “ Received satisfaction” on the docket. Jonathan Dunkelberger commenced an action of trespass against John Bamford, for the taking of the said mule, and recovered a judgment against him for $316.56. This suit was defended by George Keefer, who employed counsel. This suit is brought by the plaintiff against the defendant, to recover the amount of the said judgment and all damages sustained by him.

In answer to this the defendant alleges that the bond does not apply to this case, but in this we think he errs, and his action proves that he thought it did. But his real defence is that upon a capias ad satisfaciendum issued by Dunkelberger on his judgment, Bamford was taken in execution, and discharged by the plaintiff’s attorney under the following order to the sheriff: “ The sheriff is hereby requested to discharge defendant at the costs of the plaintiff.”

This whole subject is considered, discussed and decided in Magniac v. Thomson, 15 Howard 281, and there is no doubt that at common law this judgment was satisfied, and the exception made by the 31st section of the Act of 16th June 1836, only applies where the discharge is at the request of the defendant.

But this does not dispose of the case, for the plaintiff is clearly entitled to such costs and charges as he has been put to, and such damages as he has sustained by a litigation, running through seven years and upwards and ending in his incarceration.

Judgment reversed, and venire de novo awarded.


author: by Thompson, C. J.

text:
    Wagner versus Wagner.
    1. The records of the land office showed the location of an application and the survey returned into the office; a warrant afterwards issued called for the first survey and was surveyed and returned in accordance with its call; this prim®, facie excluded a vacancy between the two.
    2. The fact that the first survey may not have been run on the ground would not affect the second survey.
    January 27th 1871. Before Thompson, 0. J., Ahnew and Williams, JJ. Sharswood, J., at Nisi Prius.
    Error to the Court of Common Pleas of Northumberland county: Of October Term 1870.
    This was an action of ejectment commenced, June 9th 1866, by John Wagner against Peter Wagner and others.
    The case was tried October 21st 1869, before Wood, P. J., of the 20th district.
    The plaintiff gave in evidence application, &c., of George Mantz, February 7th 1815, for 55 acres in Augusta township (the land in dispute); warrant same day; survey June 15th for 49 acres, and allowance and patent, June 13th 1817, to George Mantz for the same lands; deed, May 1st 1818, from Mantz to plaintiff and Michael Deal. This was also called the Keene tract.
    The defendants gave in evidence — survey, March 7th 1783, to Samuel Davis for 308 acres on north side of Shamokin creek; warrant, September 28th 1784, to Thomas Hamilton and Margaret Miller for 200 acres adjoining Samuel Davis and others in Augusta township; October 21st, survey for 290 acres; patent, April 27th 1785, to Hamilton and Miller for same land. This title by sundry mesne conveyances is in the defendants. The land claimed by the plaintiff, he alleged, was a vacancy between the Davis on the west and the Hamilton and Miller tract on the east.
    The defendant examined Abraham Shipman, a surveyor, who said that in July 1868 he had examined the lines of Davis’s survey and of the Hamilton and Miller; they were both made on the ground; did not find marks on the ground counting precisely to the date of the survey; on the eastern line of the Davis he found a fallen tree which counted eighty-three years; the Hamilton and Miller survey was made on the ground; the eastern line of the Davis and the western line of the Mantz is the same; there were no marks on the western line of the Hamilton and Miller, nor any to show that it had been run.

      h David Rockafeller, a surveyor, testified that he made several surveys, the last with Shipman in 1868; his survey and Ship-man’s exactly agreed; the. Davis survey was a chamber survey, it is surrounded on all sides by older surveys except the eastern line; tbe oldest marks on tbe west end of tbe Hamilton and Miller survey counted sixty-seven years.
    The plaintiff gave evidence that about forty-five years before trial, defendants Peter Wagner and Deal were working on the land in dispute, and that it had been leased by them.
    Elias Brosious testified that Peter Mantz, one of the intermediate owners of the land, sold it to Abram Brosious, the father of witness, in or about 1831; at the time of the sale Mantz said to Abram Brosious that there was another line west, “ if any one will take it up and bring suit against Keene he will gain the land; I am getting too old and do not want to go into a lawsuit about it he claimed to a line further west than he sold to Abram, but did not want to go into a lawsuit.
    There was evidence on both sides as to the occupancy of the land.
    The plaintiff asked the court to charge:—
    2. That if the jury believed the Hamilton and Miller survey was not originally run on the ground so as to adjoin the Davis survey and cover the land in controversy, they must find for the plaintiff.
    3. That if the jury believed that the western line of the Hamilton and Miller survey was left open when the warrant was executed, and that the warrantee and those claiming under him since the survey have adopted the line marked on the ground sixty-eight years ago, as stated by Shipman and Rockafeller, the defendants are restrained from claiming west of that line.
    4. That if the jury believed that the owners of the Hamilton and Miller adopted the line of 1802, as stated by Shipman and Rockafeller, and since then for more than fifty years claimed only to this line, they have abandoned their rights west of this line, and the plaintiff is entitled to recover.
    The court answered:—
    “ 2. When a warrant calls for an older survey and the line adjoining the older is not run on the ground and the younger is returned into the land office, calling for the older as its adjoiner, it will be carried to the line of the older survey; and in this case the Hamilton and Miller warrant and survey being younger than the Davis and calling for the latter as its western boundary, and there being no evidence showing any marks or monuments on the ground that would restrain or limit its call, its location would have governed by its calls, which would carry the western end of the Hamilton and Miller to the Davis. This being the proper way to locate the Hamilton and Miller warrant, would leave no vacancy between the Davis and the Hamilton and Miller for the Mantz warrant to be laid on.
    “ 3. There is no such evidence in this cause as abandonment or a re-survey and throwing out part of the land included in the original survey, as would divest the title of the owner of the warrant and make a vacancy between tbe Davis and tbe Hamilton and Miller warrants: On the other hand the plaintiff has proved by Elias Brosious, that Peter Mantz under whom the defendants claim, said, in 1831, that he would not sell beyond a certain line, it being the eastern line of the Mantz survey, but that he claimed to the other line further west, but would not sell further than this line as he did not wish to have a lawsuit; this would show that he did not intend to abandon his claim to adjoin the Davis survey, and would not be such an abandonment as would make the land vacant.
    March 30th 1871,

      “4. We answer this point as we have done the 3d, and instruct you that under all the evidence the plaintiff is not entitled to recover.”
    The verdict was for the defendants.
    The plaintiff removed the record to the Supreme Court, and assigned the answers to his points for error.

      S. B. Boyer, (with whom were &. Hill and S. P. Wolverton) for plaintiff in error,
    cited as to 2d point: Brolaskey v. McClain, 11 P. F. Smith 146 ; as to the 3d and 4th : Sweigart v. Richards, 8 Barr 436; Martz v. Hartley, 4 Watts 261; Walker v. Smith, 2 Barr 43; Hall v. Tanner, 4 Id. 244.

      J. W. Gomly (with whom was 6r. W. Ziegler), for defendants in error,
    cited Mahon v. Duncan, 1 Harris 459; Caldwell v. Holler, 4 Wright 161; McGinnis v. Porter, 8 Harris 80.
   The opinion of the court was delivered,

by Thompson, C. J.

Certified copies of official surveys, connected and separate, given in evidence on the trial below, and now before us, very conclusively show, that the Samuel Davis application, referred to in the testimony, was located in 1783, and the survey duly returned into the land office; that the Thomas Hamilton and Margaret Miller warrant, issued on the 25th September 1784, called for the Davis survey, and was surveyed and returned into the office in accordance with its call, to wit: as adjoining the Davis survey. This primá facie excluded the possibility of a vacancy between these surveys; and unless the state of facts was rebutted in some way, the Commonwealth had from thenceforth no unappropriated lands between these tracts, and could confer no title upon any subsequent grantee from her, claiming independently of the warrantees mentioned. There was not the slightest testimony in the case to show that the Hamilton and Miller warrant was actually located short of its call; the consequence of which is, that it was carried to the Davis survey upon principles too well settled to be for a moment doubted. There are many adjudicated cases to this effect: Hall v. Turner, 2 Barr 244; Younkin v. Cowan, 10 Casey 198; Bellas v. Cleaver, 4 Wright 260; Caldwell v. Holler, Id. 160. The fact, if true, that the eastern line of the Davis survey was never run upon the ground, nor calls for any natural or artificial boundary on that side of the tract, amounts to nothing in this case. In that category it will be located by its courses and distances, and to this point the Hamilton and Miller will go. With whichever tract the Mantz warrant interferes, whether with the Davis or Hamilton and Miller, the patent from the Commonwealth conferred no title on him or those claiming under him. None of the cases cited by the learned counsel for the plaintiff in error militate in • the least with the doctrine herein settled, and they need not be further analyzed.

The learned judge below very properly refused to leave to the jury the question of abandonment by the owners of the Hamilton and Miller warrant and the adoption of a line run in 1802 between the Davis and the Hamilton and Miller tract. Evidence was entirely wanting to establish this theory. For what purpose this line was run, or by whom or in whose interest, is not shown. Nor was the presumption against abandonment by a party who had bought and paid for land overcome by a single fact. There is no pretence that this line was officially run on an order of resurvey. It had therefore no official character or sanction by either of the owners of the adjoining warrants, and it was not claimed that the plaintiff had title by adverse possession.

We see no error in any part of the record, and

The judgment must therefore be affirmed.


text:
    Road in Lancaster City.
    1. The Act of April 13th 1854, directs streets to he extended, &c., in Lancaster oily in the manner directed by the Road Law of 1836, requiring six viewers. The Act of April 28th 1857, authorizes the Quarter Sessions of Lancaster county to appoint three viewers for roads. Held, that viewers for streets in the city should he appointed under the Act of 1857.
    2. The operation of the Act of 1857 is on the court, and extends throughout its jurisdiction.
    3. The notice to be given of a road view applies to corporations interested as well as to natural persons.
    4. The ground appropriated for a railroad, is improved property within the road laws.
    May 1st 1871. Before Thompson, C. J., Read and Sharswood, JJ.
    Certiorari to the Court of Quarter Sessions of Lancaster county: Of May Term 1871, No. 20.
    On the 15th of November 1869, citizens of Lancaster county, residing in the city of Lancaster, petitioned the court for viewers to lay out “ a road or street” from the intersection of East King and Ann streets northward and to the New Holland turnpike at or near where the private road from the Bark mill intersects the turnpike. Three viewers were appointed. Two of them reported a road: Beginning at the point designated in the petition, and thence by various courses specified in the report “to the middle of the Pennsylvania Railroad and land of James Stewart, and by other courses to the south side of the New Holland turnpike,” &c. They reported that “ having failed to obtain a release of damages,” except from certain persons named, they were “of opinion that no damages have been sustained by any of the landholders, except certain persons named to whom they assessed damages. The report did not show that notice of the meeting of the viewers had been given as directed by the Act of Assembly or the rules of court; or in any way to the Pennsylvania Railroad Company or to any one representing them, nor that they were requested to release their claim for damages ; no damages were assessed to the company, nor was any release obtained from them.
    The report was confirmed nisi, and exceptions were filed by the Pennsylvania Railroad Company, amongst which were the following :—
    2. No notice of the time and place of meeting as required by law, and the rule of court, was given to the Pennsylvania Railroad Company, or to any of its agents or servants. Said company being the owner of land over which said street passes.
    4. The appointment of viewers was irregular and contrary to law.
    These exceptions were sustained by the court, and the report of the viewers set aside.
    The Act of April 13th 1854, Pamph. L. 352, relative to the opening of streets in the city of Lancaster, enacts, that the Court of Quarter Sessions of Lancaster county shall have power to authorize the extension and opening of all streets and alleys within the city of Lancaster, in the manner directed by and under the provisions of the general road laws of this Commonwealth, except so far as the same may be herein altered or supplied.
    The Act of April 28th 1857, Pamph. L. 338, provides:
    “ Sect. 1. That the number of road and bridge viewers appointed by the Court of Quarter Sessions of Chester and Lancaster counties, shall be three, all of whom shall view, and a majority decide in all cases of view, reviews, or any subsequent view,” &c.
    “ Sect. 2. That before any view * * * public notice of the time and place of meeting of the viewers shall be given by advertisements put up,” &c.
    The Rules of Court of Lancaster county direct:
    “ Sect. 1. In all cases of views or reviews for roads: ‘ When the road is laid out over improved land of a person, the person occupying such land or the owner thereof, if- residing in the county of Lancaster, and such residence can with ordinary diligence be ascertained, shall receive five days’ notice of the time and place of meeting of viewers (this rule not to alter the present practice where the land is unimproved’)&c.
    In deciding on the 4th exception, and speaking of the Act of 1854, the court said: * * *

      October 9th 1871,
    “ Here the mode of exercising the power conferred, is well defined: it is to be in the manner directed by and under the provisions of the general road laws — not any special law; and if such a special law as that of the 28th of April 1857, could be regarded as altering or supplying the general road laws, still it does not come within the exception which relates to such alterations only as were made by the Act of 1854. The proceedings, then, were to be in the manner directed by and under the provisions of the general road laws — which required the appointment of six discreet and reputable citizens, selected as far as practicable from persons residing near the place to be viewed; five of whom must view the place in question, and four of the actual viewers concur in the report. * * * It seems, that the exception to the irregularity of the appointment of the three viewers on the petition in this case, was well taken.” * * *
    The applicants for the road removed the proceedings to the Supreme Court by certiorari, and assigned for error — setting aside the report for the reasons contained in the 2d and 4th exceptions.

      J. Landis (with whom was J. B. Good), for certiorari.

      G. F. Breneman, contra.
   The opinion of the court was delivered,

by Thompson, C. J.

We are of opinion that the court below were in error in holding that the appointment of reviewers to lay out the street in question by the Quarter Sessions was an error. We think the reviewers were properly appointed under the Act of 1867. The Act of 1854, relative to opening streets in the city of Lancaster, provided that it should be done in Quarter Sessions under the provisions of the Act of 13th June 1836, the general Road Law of the Commonwealth. By that act six viewers were to be appointed to lay out a road, five at least of whom should view and four concur in the report. But by the Act of 28th April 1857, this was changed. This act, sect. 1, provides, “ that the number of road and bridge viewers appointed by the Court of Quarter Sessions of Chester and Lancaster counties shall be three, all of whom shall view and a majority decide in all cases.” This act does not refer to a territorial limit of operation, confining it to the county and not to the city of Lancaster, as the learned court seems to have thought. Its direct operation is upon the court, binding its authority to the appointment of three viewers in all cases. The jurisdiction of the Quarter Sessions extends through the entire county — from its centre to its circumference; to the city and boroughs within it, as well as to the unincorporated portions of it. The court existing within and for the whole body of the county which includes the city, is by this act in the exercise of its power to appoint road viewers limited to three, and all acts inconsistent therewith are expressly repealed by the 5th section of the act. We have no doubt, therefore, that the appointment of the viewers, three in number in this case, was entirely regular.

But was not the want of notice to the road company fatal to the proceedings ? We agree with the court below that it was. To hold that only natural persons are within the rule of court and entitled to notice, would be to take advantage of all corporations holding real estate, such as banks, saving institutions, manufacturing corporations and the like, holding real estate, as well as railroad corporations, which are all artificial persons, and might result unjustly. The mischief intended to be remedied by requiring notice to natural persons, exists with the same force in corporation cases. Being within the like mischief, the same remedy for it should be extended. Under the clause in the Constitution of the United States and the Judiciary Act of 1789, giving jurisdiction to the Federal courts of controversies between citizens of different states, in numerous cases has it been held that corporations for the purposes of jurisdiction are to be regarded as citizens : Louisville Railroad Co. v. Letson, 2 How. 497; Marshall v. The Baltimore and Ohio Railroad Co., 16 Id. 314; Wheeden v. Camden and Amboy Railroad Co., 4 Am. L. Reg. 201. There are numerous other cases to the same effect, but these will illustrate what we are about to say, viz., that a corporation for the purpose of notice under the act in question, is to be regarded a person — it is technically an artificial person. We think, therefore, that the court below was clearly right in holding that the railroad company, in this case, ought to have had notice of the view, as the owner of improved property. The sixty feet of way, or whatever the width is, must be regarded as improved property in the only'mode in which it is capable of improvement by the company, to wit, by laying its track or tracks upon it. What damage it might be entitled to, if any, is not a question here. The question is one of notice. The company had as much right to notice to give it an opportunity by its agents to represent its interests, as a natural person had. This dominion and title to the perpetual use of the ground for the purposes of its charter were as complete as that of any natural person, and its interests in its improvements might be quite as great. The court below, therefore, did right to set aside the proceedings for the want of notice.

Judgment affirmed.


author: by Sharswood, J.

text:
    Terry’s Executor versus Drabenstadt.
    1. In covenant upon a warranty, where the covenantee has been evicted of one-third by the widow of the covenantor, the measure of damages is the value of the widow’s life interest, estimating the fee by the purchase-money.
    2. In a dower suit against the covenantee, he gave notice to the executor of the covenantor to defend, which he did not do; the verdict for the widow was conclusive in an action on the covenant that there had been an eviction by lawful title.
    3. The covenantee employed counsel and defended the dower suit. Held, he was not entitled to recover his expenses in an action on the covenant.
    4. When a covenantor has been notified to appear and defend and fails and the covenantor proceeds and incurs costs, he does so on his own responsibility.
    5. It is error to permit a paper containing items, of which there is no evidence, to go out with the jury.
    May 1st 1871. Before Thompson, C. J., Read and Sharswood, JJ.
    Error to 'tbe Court of Common Pleas of Lancaster county: No. 29, to May Term 1871.
    This was an action of covenant commenced November 27th 1868, by Samuel Drabenstadt, against John Musser, executor, &c., of G-eorge W. Terry, deceased.
    The cause of action was on a covenant of general warranty in deed dated April 1st 1863, from G-eorge W. Terry the decedent to John B. Sherbon, for 6 acres of land in East Donegal township ; the consideration was $1000, the deed was not executed by Terry’s wife. The land was afterwards conveyed to Isabella Slaymaker, and by her, January 10th 1865, to the plaintiff.
    To April Term 1867, Sarah Ann Terry, the widow of the decedent, brought an action of dower against Drabenstadt, the plaintiff here. Drabenstadt notified the executor of Terry, the defendant in this case, to come in and defend in that suit. He did not do so. Drabenstadt employed counsel and defended the case. There was a verdict recovered against him, and on an habere the sheriff delivered to the widow possession of one-third by metes and bounds.-
    The plaintiff gave evidence of the widow’s age, &c., for the purpose of showing the value of her life estate; also, the amount of counsel fee proper to be paid for professional services in defending the suit for dower. There did not appear to be any evidence as to other expenses incurred in that suit.
    The plaintiff’s 3d point was:—
    The plaintiff having given to the defendant due notice of the suit brought by the widow of Terry against him for her dower, is entitled to recover the value of the widow’s life-estate in one-third of the land, together with his costs and expenses (including counsel fees) in the suit for dower.
    The court (Long, P. J.,). answered the point in the affirmative, and said, “ And you must in that ease determine the amount of the damages which the plaintiff has sustained by being ousted, during the lifetime of the widow, of one-third of the property purchased by him. In measuring the damages you must take into consideration the age and health of the widow, and it has been held that the rule of damages would be the amount of the depreciation of the fee simple interest, according to the consideration money paid to the covenantor. And I also further instruct you that if the plaintiff delivered the one-third of the property or assigned it to her, it would be such an eviction as to entitle the plaintiff to recover. He would also be entitled to recover damages for counsel fees paid by him in the dower suit.”
    “ The court further charged: * * * [“ If, therefore, you should be satisfied of the truth of the facts and circumstances given in evidence, then I am of opinion that, upon the law arising upon those facts, the plaintiff is entitled to recover; that is matter for your determination under all the circumstances of the case.
    “ The defendant having neglected to attend to the case when notified, the verdict and judgment rendered in that case is binding upon him. The measure which you ought to adopt, in ascertaining the damages, ought to be of such a character as to do justice between the parties. The widow is only entitled to a life-estate in the premises, and when she dies the estate reverts to the plaintiff. It will, therefore, be for you to ascertain the value of that life-estate,] and I am also of the opinion that [the plaintiff is entitled to recover back the reasonable expenses paid by him for counsel fees in defending the dower suit.] * * *”
    The court, under objection by the defendant and exception, allowed the plaintiff to send out with the jury the statement of his claim; viz:
    “ Yalue of Mrs. Terry’s life-estate at the time of eviction of plaintiff by sheriff, Nov. 10th 1868 . $247.00
    “ Interest from Nov. 10th 1868 .... 17.91
    $264.91
    “ For Drabenstadt’s counsel in dower suit . 100
    “For do. expenses “ “ ■ . 20 120.00
    $384.91”-
    The verdict was for the plaintiff for the amount of his claim. The defendant took out a writ of error. The errors assigned were: The parts of the charge in brackets, the answer to the Bd point and allowing the claim to go out with the jury.

      T. F. Franklin (with whom was N. Fllmaker), for plaintiff in error,
    as to payment of counsel fees and expenses cited Fulweiler v.
      Baugher, 15 S. & R. 45 ; Leffingwell v. Elliott, 8 Pick. 457; Rawle on Covenants for Title 268.
    May 11th 1871,

      A. Slaymaker (with whom was H. M. North), for 'defendant in error,
    cited Mills v. Catlin, 22 Vermont Rep. 99; Swain v. Perrine, 5 Johns. Ch. Rep. 498; Foster v. Hilliard, 1 Story Rep. 83; Jones’s Appeal, 12 P. F. Smith 327. The measure of the damages on the breach of the modern covenants for title is the value of the land, at the time when the covenants were entered into : Staats v. Ten Eyck, 3 Caines 118 ; Pitcher v. Livingston, 4 Johns. 1; Bender v. Fromberger, 4 Dallas 438 ; Stewart v. West, 2 Harris 338 ; Brown v. Dickerson, 2 Jones 372; Johnson v. Nyce, 17 Ohio 70 ; McAlpin v. Woodruff, 11 Ohio St. Rep. 120: The evicted covenantee is entitled to counsel fees and expenses: Richert v. Snyder, 9 Wendell 423; Swett v. Patrick, 12 Maine 10; Hardy v. Nelson, 27 Id. 525; Keeler v. Wood, 30 Vermont 242; Cox v. Stroch, 2 Bibb 277; Kingsbury v. Smith, 13 N. Hamp. 125; Smith v. Compton, 3 Barn. & Ad. 407 ; Anderson v. Washabaugh, 7 Wright 118. Fraud enlarges the measure of the damages: 3 Parsons on Contracts 212, 229, 230; King v. Pyle, 8 S. & R. 166 ; Fulweiler v. Baugher, 15 Id. 45; Lee v. Dean, 3 Wharton 330 ; Bitner v. Brough, 1 Jones 139.
   The opinion of the court was delivered,

by Sharswood, J.

That part of the charge of the learned judge below, which forms the subject of the 1st assignment of error, is not open to the objection which has been made to it. Taken in connection with the answer to the plaintiff’s 3d point, in which it was said: “ In measuring the damages you must take into consideration the age and health of the widow, and it has been held that the rule of damages would be the amount of the depreciation of the fee simple interest according to the consideration-money paid to the covenantor.” The rule laid down clearly appears to have been that the jury should find for the plaintiff the value of the life interest of the widow, estimating the fee simple by the purchase-money. This is certainly in accordance with the authorities : Bender v. Fromberger, 4 Dall. 441; Brown v. Dickerson, 2 Jones 372; Patterson v. Stewart, 6 W. & S. 527. If there was evidence that the land had since that time depreciated in value, and if the law is that the consideration paid is not absolutely the measure of damages, but only the limit beyond which they cannot be carried, that question should have been raised by an hypothetical point presented to the court, which in this case was not done.

The 2d and 3d assignments of error give rise to the contention which has been most earnestly pressed that it was error to instruct the jury that under the facts of this case the plaintiff below was entitled to recover as a part of his damages reasonable counsel fees paid by him in the dower suit. It must be conceded that as notice had been given to the defendant below of the pendency of that action, and that he should take defence, of which he did not avail himself, the judgment in that case was conclusive that there was an eviction under it by lawful title which constitutéd a breach of the warranty. The learned judge below was of opinion, and SC instructed the jury, that the plaintiff below was entitled to recover his counsel fees and expenses in his unsuccessful defence of the suit for dower. In this, as it appears to us, he was in error. Without undertaking to lay down any general rule, it would seem to be most reasonable to hold, that where a covenantor has been notified to appear and defend, and decline's or fails to do so, and the covenantee chooses to proceed and incur costs and expenses in what it may be presumed that the covenantor considered to be an unnecessary and hopeless contest, he does so certainly upon his own responsibility. “If,” said Mr. Justice Huston, in Fulweiler v. Baugher, 15 S. & R. 55, “the vendee does not give notice but appears and defends, it has not been allowed him to recover his counsel fees paid and his own expenses; for there may be no ground of defence, and he shall not subject his vendor, without his knowledge and against his will, to more than he is liable to on his covenant of warranty. This generally. There may possibly be exceptions when the warrantor has left the state, and expense must be incurred before he can be found and notice served, as in cases of fraud in the warrantor.” The reason of this decision applies with equal if not greater force where notice has been given and the warrantor has refused or declined to take defence. In the ancient warranty when the warrantor was vouched to warranty, he must either appear and become tenant and take the defence of the title upon him, or judgment was given against him by default, and there vm a recovery over in value. The substitution of the modern covenant for the ancient warranty ought not to change, and practically it has not changed the rights and obligations of the respective parties. That an opposite doctrine might lead to serious wrong is illustrated in this very case, where it will be seen that the counsel fees and expenses make an addition of nearly 50 per cent, to the amount of the damages.

The 4th assignment of error is, that the paper sent out with the jury comprehended an item of $20 for expenses, of which no evidence had been given. As we hold that such expenses were not reasonable, it seems to be entirely unnecessary to consider this point, as upon another trial it cannot arise. It is certainly error, however, for the court to permit the jury to take out a statement made by either party containing items as to which no evidence was offered: Morrison v. Moreland, 15 S. & R. 61; Hall v. Rupley, 10 Barr 231. But in Kline v. Gundrum, 1 Jones 252, where there was as here a general exception to the statement sent out, it was held that, it was the duty, of the party excepting, to point out and call the attention of the court to the particular item or items which were unsupported by any evidence. “ It was the duty of the counsel,” said Mr. Justice Coulter, “ to have examined these accounts of claims, and if there was anything wrong in any item or any number of items, to have called the attention of the court below to those items and requested that they should be stricken out. As they did not do that we cannot and will not say that the court erred, because it does not appear that they were requested to, or that they did exercise any judgment of the suitableness or admissibility of those items.”

Judgment reversed, and venire facias de novo awarded.