author: Mr. Justice Sharswood

text:
    Brown versus Reed.
    1. If the maker of a bill, note or check issue it in such condition that it may easily be altered -without detection, he is liable to a bonfi, fide holder who takes it in the usual course of business before maturing.
    2. The maker who executes and issues a note which by his own negligence invites tampering with, is not discharged from liability to an innocent holder.
    3. A maker is not bound to the bon& fide holder on a note, fraudulently altered, if he had used ordinary care and precaution.
    4. If there be no negligence in the maker, the good faith and absence of negligence in the holder cannot avail him.
    5. The paper in this case was part of a contract, so skilfully arranged that if a portion on the right end were cut off there would be left a negotiable note. Held, that whether there was negligence in the maker in executing such paper was for the jury.-
    6. Garrard v. Haddan, 17 P. F. Smith 82 ; Phelan v. Moss, Ibid. 59; Zimmerman v. Rote, 25 Id. 188, adhered to.
    October 19th 1875.
    Before Askew, C. J., Sharswood, Williams, Mercdr, Gordon, Paxson, and Woodward, JJ.
    Error to the Court of Common Pleas of M-ie county: Of October and November Term 1874, No. 135.
    This was an action of assumpsit brought January 31st 1873, by W. W. Reed against T. H. Brown, upon the following note :—

      “ North East, April 3d 1872. ,

      “ Six months after date I promise to pay to J. B. Smith or order TWO HUNDRED AND FIFTY DOLLARS for value received, with legal interest, without defalcation or stay of execution. T. H. Brown.”
    Endorsed “ J. B. Smith, without recourse.”
    The case was tried April 24th 1874, before Vincent, P. J.
    The plaintiff gave the note in evidence, and testified that he had bought it from the payee for $220, which he paid in cash. He testified further that he had received the not.e bonáfide,and rested.
    The defendant then offered to prove:—
    “ That the paper he signed has been altered since so signed, without -his knowledge or consent, and that it was obtained from him by fraud of tbe payee; also, to show what took place between Smith, the payee, and himself at the time the note was made; also, to show that the paper in suit is but the part of an .agreement entered into between himself and one J. B. Smith, purporting to constitute the defendant an agent to, sell ‘ Hay and Harvest Grinders ’ in North East and Harbor Creek townships, in the county of Erie, and that the paper making him such agent, has since it was signed by him, been cut in two without his knowledge or consent, so as to make the part in evidence read as a promissory note for $250, and that a large part of the original instrument was cut off, and that the paper in suit is not the whole of the paper signed by defendant, nor in the shape in which he signed it, but when signed by him was as as follows, to wit:—

      North East, April 3d 1872.

      “Six months after date J promise to pav J. B. Smith or bearer fifty dollars when I sell by order TWO HUNDRED AND IXSTY DOLLARS worth of Hay and Harvest Grinders, for value received, with legal interest, without appeal, and also without defalcation or stay of execution.
    T. H. Brown, Agent for Hay & Harvest Grinders.”
    The plaintiff objected to the offer, because, admitting it all to be true, it did not constitute a defence to the note in hands of an innocent purchaser for value, before maturity, and it was not alleged that the plaintiff is not such a purchaser; nor that there was any guilty knowledge on part of the plaintiff in this case before purchase of the paper.
    [The paper was divided by cutting through between where the asterisks are placed.]
    The offer was rejected and a bill of exceptions sealed for the defendant.
    The court charged:—
    “ There is no evidence impeaching this paper as a note in the hands of the plaintiff and your verdict therefore must be for the plaintiff for the amount of note and interest.”
    The verdict was for the plaintiff for $280.54.
    The defendant took a writ of error, and assigned the rejection of his offer of evidence and the,charge of the court, for error.

      W. Benson, for plaintiff in error.
    A note once issued and then altered is void altogether: Masters v. Miller, 4 Term Rep. 320, 346 ; Fay v. Smith, 1 Allen 477 ; Wade v. Wittington, Id. 561; Coch v. Coxwell, 2 C., M. & R. 291; Smith’s Lead. Cas. 934. Cutting the contract into two pieces rendered the whole contract, and hence the part held by the plaintiff, absolutely void as against the maker: 2 Parsons Notes and Bills 580-2; Chitty on Bills 182 ; Wheelock v. Freeman, 13 Pick. 165; Wade v. Wittington, 1 Allen 561; Fay v. Smith, Id. 477; Bruce v. Barber, 3 Barb. 374; Deny v. Reed, 40. Id. 16; Nazro v. Fuller, 24 Wend. 37; Warring v. Early, 2 El. & B. 763; Stephens v. Graham, 7 S. & R. 505; Jardine v. Payne, 1 B. & Ad. 671; Benedict v. Cowden, 49 N. Y. 396; Story on Notes, sect. 408; Byles on Bills, sects. 254, 256.

      F. F. Marshall, for defendant in error,
    cited Phelan v. Moss, 17 P. F. Smith 59; Garrard v. Haddan, Id. 82.
   Mr. Justice Sharswood

delivered the opinion of the court, November 4th 1875.

The learned counsel for the plaintiff in error has appealed to us to reconsider and overrule Phelan v. Moss, 17 P. F. Smith 59; and Garrard v. Haddan, Id. 82; since followed in Zimmerman v. Rote, 25 P. F. Smith 188. We mean, however, to adhere to those cases, as founded both on reason and authority, and as settling a principle of the utmost importance in the law of negotiable securities. That principle is that, if the maker of a bill, note or check issues it in such a condition that it may easily be altered without detection, he is liable to a bond fide holder who takes it in the usual course of business, before maturity. The maker ought surely not to be discharged from his obligation by reason or on account of his own negligence in executing and issuing a note that invited tampering with. These cases did not decide that the maker would be bound to a bond fide holder on a note fraudulently altered, however skilful that alteration might be, provided that he had himself used ordinary care and precaution. He would no more be responsible upon such an altered instrument than he would upon a skilful forgery of his handwriting. The principle to which I have adverted is well expressed in the opinion of the court in Zimmerman v. Rote, 25 P. F. Smith, 191: “ It is the duty of the maker of the note to guard not only himself but the public against frauds and alterations by refusing to sign negotiable paper made in such a form as to admit of fraudulent practices upon them, with, ease and without ready detection.”

But would the facts offered to be given in evidence and rejected by the court below, have brought this case within the line of their decisions ? We think not. In Phelan v. Moss and in Zimmerman v. Rote, the party signed a perfect promissory note, on the margin or underneath which was written a condition which as between the parties was a part of the contract and destroyed its negotiability. But it could easily be separated, leaving the note perfect, and no one would have any reason to suspect that it had ever existed. In Garrard v. Haddan the note was executed with a blank, by which the amount might be increased, without any score to guard against such an alteration. In all these cases the defendants put their names to whatw'ere on their face promissory negotiable notes. In the case before us on the defendant’s offer, he did not sign a promissory note, but a contract by which he was to become an agent for the sale of a w'ashing machine. It was indeed so cunningly framed that it might be cut in two parts, one of which with the maker’s name would then be a perfect negotiable note. Whether there was negligence in the maker was clearly a question of fact for the jury. The line of demarcation between the two parts might have been so clear and distinct and given the instrument so unusual an appearance as ought to have arrested the attention of any prudent man. But it may have been otherwise. If there was no negligence in the maker, the good faith and absence of negligence on the part of the holder cannot avail him. The alteration was a forgery, and there was nothing to estop the maker from alleging and proving it. The ink of a writing may be extracted by a chemical process, so that it is impossible for any but an expert to detect it, but surely in such a case it cannot be pretended that the holder can rely upon his good faith and diligence. We think then that the evidence offered by the defendant below should have been received.

Judgment reversed and venire facias de novo awarded.


source: Caselaw Access Project

author: Per, Curiam.

license: Public Domain

text:
    Lake Shore & Michigan Southern Railway Co. versus Greenwood et ux.

    1. A railroad company allowed passengers to ride on way freight trains; under a rule, that “ passengers will not he carried on way trains unless they are provided with tickets. Way freights will not stop at stations where tickets are not sold to receive nor to let off passengers.” Held that the rule was reasonable.
    2. A passenger who had ridden on a way freight car before and after making the rule, without objection for want of a ticket, could not be removed from the car at a distance from the station, without proof of express notice or aetual knowledge of the rule.
    3. Under the circumstances in this case, putting up notices of the rule at the station houses was hot sufficient.
    October 20th 1875.
    Before Agnew, C. J., Sharswood, Williams, Merour, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas of Erie county: Of Octo-ber and November Term 1875, No. 135.
    This action was in case and was brought November 23d 1873, by J. L. Greenwood and Sarah E., his wife, in her right, against The Lake Shore and Michigan Southern Railway Company. The cause of action was removing Mrs. Greenwood from one of the way freight train cars of the plaintiff at a distance from a station, because she had no ticket, although she offered to pay the conductor the proper fare. She was removed under the following rule of the company
    “ Notice. — On and after February 1st 1873, passengers will not be carried under any circumstances upon any freight trains, except such as are designated as way freights upon the time tables, and they will not be carried upon way trains unless they are provided with tickets. Way freights will not stop at the stations where tickets are not sold to receive nor to let off passengers.”
    On the trial before Vincent, P. J., April 16th 1876, Mrs. Greenwood testified that in August 1873,. she started from Erie to go to Harborcreek Station, seven miles east of Erie, on the defendants’ road; she had missed the early passenger train and got on the way freight train ; no one came around till she had got about two miles; the conductor then came; she offered him money, he declined to take it and asked for her ticket; she said she had none ;„he said he must put her off, he could not help it; he was obliged to put her off if she had no ticket; she had been accustomed to ride on that train back and forward, and always had paid her fare on the train ; had ridden on it frequently after February 1st 1873. She did not see the notice that passengers should not be carried on a freight train without a ticket..
    Mr- Greenwood testified that he went with his wife to the depot, the ticket agent said the passenger train had gone, but the way freight was just going, starting from the upper end of the depot; he put his wife aboard there; the ticket agent did not say he needed a ticket; he had often ridden on the train without a ticket, did not know a ticket was required ; he had not seen the notice in the depot that passengers would not be carried on freight trains without a ticket.
    Plaintiff gave in evidence the following order from the company to their employees:—

      “ Oonductoi’S of way freight trains must visit their cabooses immediately before starting from each station, and not permit any passengers to ride upon their trains except such as are provided with' tickets. * * * Ticket agents will take pains to inform passengers of this order, so that the public may experience no inconvenience.”
    Defendants gave evidence that the notice was hung in conspicuous places in the ladies’ and gentlemen’s rooms in the passenger station at Erie, and had been put up a week or ten days before the order took effect; the notice was in the caboose when Mrs. Greenwood got on the train; the notice was in each of the waiting-rooms at Harborcreek Station.
    The court charged:—
    * * * “It has not been contended that the order, requiring all passengers on this train to procure tickets before getting upon the train, was not a reasonable and proper one, and within the power of the defendants to make. But she contends that the company had, before this, for a long time, been in the habit of carrying her, back and forth, between Erie and Harborcreek, and allowing her to pay her fare on the cars, and she had never seen a notice or been informed of the new rule; and her husband testifies that, although the ticket agent at Erie told him he could take this way freight, he did not inform him that he must procure a ticket for his wife or himself before getting into the car, and that he was, therefore, justified in getting on the car without a ticket, and that the conductor should have received her fare, and carried her to her destination. We are of the opinion that, if the company had been in the habit of carrying the plaintiff on this train without a ticket, its agents had no right to eject her from the car, unless she had notice of the change of the rule. It matters not how she had that notice, if she did have it before she went upon the train, the conductor had a right to put her off, using as much force as was necessary for that purpose, and putting her off in a reasonably proper place.” ********
    Both parties submitted points. The foregoing portion of the charge sufficiently states the principles involved in them and the question decided by the Supreme Court. .
    The verdict was for the plaintiffs for $125.
    The defendants took a writ of error, and assigned for error the instruction of the court.

      J. W. Wetmore, for plaintiffs-in error.
    The rule being a reasonable one, the burden is not on the company to show that -the passenger had notice: Dietrich v. Penna. Railroad Co., 21 P. F. Smith 432; Commowealth v. Power, 7 Metc. 596.

      Benson £ Br dinar d, for defendants in error.
    If a railroad regularly carries passengers by a freight train, the liability is the same to the passenger as if carried on a passenger train: Chicago & A. Railroad Co. v. Flogg, 43 Ill. 364. In cases requiring public notice the burden is on the carrier to show that the person to be affected had notice: 2 Greenl. Ev. 216; Kerr v. Willan, 2 Starkie’s Rep. 52 (48); Angell on Carriers 247-249; Rawson v. Penna. Railroad Co., 48 N. Y. 212; Beckman v. Shouse, 5 Rawle 189.
   Judgmentwas entered in the Supreme Court, November 1st 1875,

Per, Curiam.

The rule as to the purchase of tickets before entering into the car of the way freight train was entirely reasonable. But the plaintiff having use'd this car often before the adoption of the rule, and indeed afterwards, without objection for the want of a ticket, the company could not turn her out of the car and land her off a mile or so from the station without proof of express notice, or her actual knowledge of the existence of the rule forbidding any one to enter the car without a ticket. The putting up such notices in the station house is not sufficient under these circumstances to visit her with notice.

Judgment affirmed.


author: Chief Justice Agnew

text:
    Clarke’s Appeal.
    1. A husband is entitled to curtesy in the real estate of his wife when he elects to take against her will. -
    2. Upon marriage the husband becomes entitled to a freehold in his own right in the real estate of his wife ; it is a subject upon which a devise of the wife cannot operate.
    3. The effect of the Act of May 4th 1855, sect. 1, is to give to the husband an election to take what the law would give him as against her will, or to take his estate by the curtesy in the whole of her real estate.
    4. Dickinson v. Dickinson, 11 P. F. Smith 405, distinguished. Harris v. York Mutual Ins. Co., 14 Wright 341 ; Lancaster Co. Bank v. Stauffer, 10 Barr 398, recognised.
    October 20th 1875.
    Before Agnew, C. J., Sharswood, Williams, Mercur, Gordon, Paxson and Woodward, JJ.
    Appeal from the Orphans’ Court of Erie county: Of October and November Term 1875, No. 123.
    Eliza Clarke, the wife of Joseph S. Clarke, died in May 1.872, leaving her husband to survive her, but never having had any children. She died seised of a house and lot in North East, Erie county, but no other estate real or personal. By her will dated March 17th 1868, and proved March 14th 1874, she gave to her “sister Saloma Hebblewhite $1000 in cash;” the residue of her “ estate real and personal ” she gave to her husband. The executor named in the will renounced. On the 16th of June 1874, the husband filed with the register a paper, refusing to take letters of administration c. t. a., to which was added as follows :—
    “And further, said J.S. Clarke hereby declines accepting under said referred to will, and states his determination to hold his interest in the estate of his said deceased wife, as allowed by the laws of Pennsylvania. Joseph S. Clarke.
    On the 1st of December 1874, administration c. t. a. was granted to G. W. Colton.
    On the 4th of December 1874, Colton petitioned the Orphans’ Court for an order to sell the house and lot for the payment of the legacy of Saloma Hebblewhite. The court decreed a sale in accordance with the prayer of the petition. On the 4th of January 1875, the husband presented a petition remonstrating against the sale and praying that the order of sale might be revoked; the court granted a rule to show cause why the prayer of the petition should not be granted. On the 29th of March the court discharged the rule, but stayed the sale until there should be an opportunity for an appeal to the Supreme Court.
    J. S. Clarke appealed to the Supreme Court, and assigned the action of the Orphans’ Court for error.

      Davenport $ Gfriffiih, for appellant.

      Benson $ Brainerd, for appellee,
    cited Acts of April 11th 1848, sect. 7, Pamph. L. 536; May 4th 1855, sect. 1, Pamph. L. 430; 2 Br. Purd. 1006, pl. 14, 1008, pl. 23; Dickinson v. Dickinson, 11 P. F. Smith 401.
   Chief Justice Agnew

delivered the opinion of the court, January 6th 1876.

A husband is entitled to his curtesy in the real estate of inheritance of his deceased wife, when' he elects to take it against her last will. In considering the legislation upon the power of a married woman to devise her real estate, the fact must not be overlooked, that his curtesy estate was one arising at common law in the lifetime of his wife, and becoming fixed in him at the instant of her death. It was, therefore, not a subject upon which her devise could operate. As soon as issue is born alive capable of inheriting, the husband becomes tenant by the curtesy initiate, and the estate vested by the birth cannot be determined either by the death or coming of age of the infant. “After issue born” (says C. J. Gibson), “ he has a freehold in his own right, for which he is separately bound to do homage to the lord, whose tenant he then becomes, and the wife cannot forfeit for treason:” Lancaster County Bank v. Stauffer, 10 Barr 398. Our Intestate Act of 8th April 1833, extended the husband’s curtesy by saving to the husband his right as tenant by the curtesy “which (it says) shall take place, although there be no issue of the marriage, in all cases where the issue, if any, would have inherited.” Under that Act, the estate becomes initiate immediately without the birth of issue. The act relating to wills, passed on the same day, excepted married women out of the general power conferred of making wills, and provided specially: “ That a married woman may, under a power legally created for the purpose, dispose of her real and personal estate by will or appointment-in the nature of a will; and that any married woman may, with the assent or license of her husband, dispose of-her personal estate by will.” Thus stood legislation when the Married Woman’s Act of April 1848 was passed. The 7th section of that act enacted that “ any married woman may dispose by her last will and testament of her separate property, real, personal or mixed, whether the same accrues to her before or during her coverture. Provided, that said last will and testament be executed in the presence of two or more witnesses, neither of whom shall be her husband.” Thus, over her own personal estate (which was the subject of this legislation), whether real, personal or mixed, she became invested with an absolute power of disposition. It was no longer confined to personalty, nor was the assent or license of her husband required. But the curtesy estate of her husband having its inception in her lifetime, and being fixed • eo instante at death, was looked upon as not within her power of devise, and hence the legislature, in the 10th section, and at the conclusion of the legislation relating to her separate property, made this proviso : “ That nothing contained in this act shall be deemed or taken to deprive the husband of his right as tenant by. the curtesy.” On this proviso Woodward C. J., remarks : “ These words relate not merely to the distribution of her estate after her decease, but are a limitation of all the operative clauses of the act Haines v. York Mutual Insurance Company, 14 Wright 341. Thus the Act of 1848 carried into full execution its primary thought of securing to a married woman her separate estate of every kind, while it maintained the husband’s curtesy, which vested in him by marriage. The intention of the legislature to preserve the curtesy estate, is further found in the subsequent legislation of 1850 and 1863. Thus the Act of 22d April 1850, sect. 20, Pamph. L. 553, declares that “ the true intent and meaning of the Act of Assembly to secure the rights of married women, passed the 11th day of April 1848, is and hereafter shall be, that the real estate of any married woman in this Commonwealth shall not be subject to execution for any debt against her husband, or on account of any interest he may have, or may have had therein as tenant by the curtesy, but the same shall be exempt from levy and sale for such debt during the life of said wife. In Harris v. The Insurance Company, 14 Wright, supra, the effect of this legislation was considered, and it was held that the husband’s curtesy during his wife’s life was such a vested interest as would support a policy of insurance. Remarking upon the Act of 1850, the Chief Justice said : “ For her convenience and benefit, his creditors shall be stayed from proceeding against his estate while she lives. The upshot is a mere stay of execution, not an annihilation of his estate.” The same thing was said substantially in a subsequent case, when remarking upon the Act of 1850, and the Act of April 1st 1863, Pamph. L. 212, which enacts that no judgment against a husband, before or during marriage, shall bind or be a lien upon her real estate, or upon the husband’s interest as tenant by the curtesy: Woodward v. Wilson, 18 P. F. Smith 208. This being the state of legislation at the time of the passage of the Act of 4th May 1855, Pamph. L. 430, there is no difficulty in arriving at its true meaning. Thus a wife had full power, under the Act of 1848, to will away her separate estate, —that which was her own, to the prejudice of her husband; the curtesy estate being an independent and separate freehold, as we have seen, was not the subject of her dominion. If she had millions of personalty, she could deprive him of it all. But as the law then stood, she could réject his will and elect to take her dower in the real estate, and one-third of his personalty. As was said in Dickinson v. Dickinson, 11 P. F. Smith 405, it was to correct this supposed excess of power, and place her on a level with her husband, the Act of 1855 enacted, “ That the. power of any married woman to bequeath or devise her property by will shall be restricted, as regards the husband, to the same extent as the husband’s power to dispose of his property is restricted, as regards the wife, namely : so that any surviving husband may, against her will, elect to take such share and interest in her real and personal estate, as she can, when surviving, elect to take against his will in his estate, or otherwise to take only her real estate as tenant by the curtesy.” Thus the legislature clearly intended to put the husband and wife on a par with each other, as to the power of each to will away property from the other, excepting that, as to the husband’s independent and pre-existing freehold by the curtesy, he might retain it in lieu of any other estate. The effect was to give to him an alternative election to take the estate the law would give him as against her will, or take his earlier estate by the curtesy in the whole of her real estate. If her estate was chiefly personalty, he would be likely to prefer the former, if realty only, he would choose the latter.

In' the present case, the estate being realty only, the husband elected to take his curtesy, which he clearly had a right to do. The learned judge thought so too, but under a misapprehension of certain expressions in Dickinson v. Dickinson, supra, he supposed that this court thought otherwise. But that was a. case of devisavit vel non relative to personal estate, and the questions discussed were the wife’s power to make a will of her own property, chiefly personalty, in disherison of her husband, and the effect which a failure to establish the will would have upon the transmission of her estate at law. No question was discussed as to the husband’s curtesy, and the expression as to the absolute power of the wife to will away her property from him before the passage of the Act of 1855, had reference only to the property which she controlled, and not to the husband’s pre-existing estate by the curtesy.

The absolute decree of sale of the real estate must, therefore, be reversed, but as nothing is intended in this decision to interfere with any proper remedy the legatees under Mrs. Clark’s will have to recover her legacy, so as not, however, to disturb the husband’s estate by the curtesy, we simply reverse the decree of sale, leaving the Orphans’ Court to take such further or other- proceeding as may be lawful and proper upon the petition of Saloma Hebblewhite, the legatee.

Decree reversed with costs to be paid by the appellee, and the record ordered to be remitted to the court below.


author: Mr. Justice Gordon

text:
    Olds versus Erie City.
    1. An Act of May 1st 1861 authorized the councils of Erie to order any street to be paved, &c., and charge the expense against property abutting on the street, but such order should not be made, “ except on the petition of a majority of the persons holding property on the street.” The act further provided that when councils by ordinance directed the paving, &c., of a street, “ the question whether ¿'majority of the persons holding property thereon have petitioned therefor shall cease and determine.” On a scire facias .on a municipal claim for paving a street, under an ordinance of councils, Held, that evidence that there was not a majority of such property holders signing the petition was inadmissible.
    2. There was a proviso in the act, “ That no ordinance for any of the above-named purposes shall be passed until — days notice of the improvement prayed for has been given in the official paper of the city.” Each proceeding of councils in their action upon the improvement was published as an item of news, on the next day only after it occurred, in the official paper, but no notice was published by direction of the councils. Held not to be a compliance with the act.
    3. The act of councils was of a judicial nature, and such proceedings affecting the rights of individuals are nugatory unless upon reasonable notice.
    4. The word “ days” after the blank in the act indicated more than one publication.
    October 20th 1875.
    Before Agnew, O. J., Shars wood, Williams, Merour, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas of Erie county: No. 193. Of October and November Term 1875.
    This was a scire facias upon a municipal lien, issued January 18th 1873, by the city of Erie, against a piece of land on the east side of Peach street, between Seventh and Eighth streets, owned by L. W. Olds; the claim was filed January 7th 1870, for $273.16.
    The Act of May 1st 1861, a supplement to the Act incorporating the city of Erie, sect. 1, authorized the councils of the city “ to cause to be graded, paved, &e., or otherwise improved, any public street or part thereof, &c., and set with curb-stone,” and levy and collect the costs by equal assessment from owners of property abutting on the improved street, provided the councils should not order any street to be graded, paved, &c., except on the petition of a majority of the persons holding or owning property on such street, &c. Sect. 2. When the councils should by ordinance direct the grading, paving, &c., of a street, “ the question whether a majority of the persons holding or owning property thereon have petitioned therefor, shall cease and determine: Provided, that no ordinance for any of the above-named purposes shall be passed until — days notice of the improvement prayed for, has been given in the official paper of the city.”
    The Act of April 2d 1868, sect. 13, Pamph. L. 613, contained similar provisions.
    The case was tried June 10th 1875, before Wetmore, P. J.
    The plaintiff offered in evidence the petition to councils, signed by defendant and others, “ owners of real estate on Peach street between the north side of the public square and Fifteenth street,” praying for the passage of an ordinance for paving Peach street between those points with Nicholson pavement, and with stone gutters, &c. The defendant objected because, amongst other reasons, the petition was not signed by a majority of the property-holders on the part of the street proposed to be paved; the evidence was admitted “ pro formá and questions reserved.”
    The plaintiffs also gave evidence that the petition was referred to a committee of councils, who reported that a majority of the owners of property on the part of the street proposed to be improved had signed the petition.
    They then offered in evidence, ordinance of councils enacted June 1st 1868, authorizing the paving of Peach street in accordance with the prayer of the petition. The defendants objected to its admission, because, amongst other reasons, “ the councils never published any official notice that they would take action on the petition and pass the ordinance.” The offer was admitted “pro formá and questions reserved.”
    ■ They then gave evidence that by resolution of January 12th 1867, the councils selected the “ Erie City Dispatch ” as their official paper.
    The plaintiff then offered in evidence in detail copies of the Erie City Dispatch of the dates of May 12th and 26th, June 2d and 9th 1868, containing notices of the presentation of the petition and action of councils on it, the report of the committee; and on July 14th 1868, of the passing of the ordinance; resolution in relation to Peach street and publication of the ordinance. The offers were severally objected to by the defendant, admitted “pro formá and questions reserved.”
    Plaintiffs then gave other evidence tending to establish the claim, and rested.
    The defendant, amongst other things, gave evidence by the editor of the “Erie City Dispatch” that “the proceedings of councils of May 11th 1868, were published by me on May 12th, as a matter of news, under my direction and discretion and at the expense of the Dispatch printing establishment. It was in no sense published by the order or dictation or at the expense of the city or councils, and was in no sense an official publication of the proceedings of councils: * * * was published only as a matter of courtesy and for public information, at my own instance and request solely.” He also testified that the weekly proceedings of the councils were usually, but not regularly, published in the Dispatch.
    The defendant gave other evidence not necessary to note in anSTver to the plaintiff’s claim.
    Each party submitted a number of points. The questions passed upon by the Supreme Court are contained in the following part of the charge:—
    * * * “On the part of the defendant we learn by his own evidence that the petition filed May 11th 1868, was presented to him for his signature, he refused to sign it without the words ‘ stone gutters’ were added to it. He also states, that the persons who had the petition called again with the petition and had it interlined, with the words, ‘with stone gutters,’ and it was satisfactory and he signed it. The petition now has these words erased; when it was done or by whom is not clear by the evidence.
    “The defendant under the evidence before the court asks us to say:—
    “ First. That the majority of the owners of land on the part of said street proposed to be paved have not petitioned the councils as required by the second section of the act of May 1st 1861.
    “ Second. That the notice of the improvement was not given in the official paper of the city, as required by said Act of Assembly. **********
    “ Fifth. The ordinance was not published in a way to denote it was an official act.
    “We are of the opinion that when .councils determine to make the improvement and adopt the ordinance directing the pavement of the street, the question of whether a majority of persons holding or owning property have petitioned therefor shall cease and determine.
    “Without determining whether the record dated January 12th 1867, is sufficient to indicate the Erie Dispatch as the official organ; the report in that paper May 12th 1868, of the proceedings of the councils of May 11th, is not the notice required by law. It does not appear to be official; there is evidence that it was the act of the proprietor of the paper in obtaining and publishing it as an item of news. It refers to the time when it will be acted upon, and has none of the requirements required to make it a legal notice and official act.
    “ Can the defendant avail himself of this defence ? He signed the petition for the pavement, he knew therefore that there was a petition asking the city authorities to make the improvement. If the publication had been made in an official paper, as required by law, it would have been constructive notice, but when actual knowledge exists, constructive notice is not necessary. * * *

    “The ordinance is sufficiently specific in the terms, and contains all that was required to make it valid, and its publication on the 14th day of July 1868, in the Daily Dispatch, was a sufficient publication. Our conclusion is that the plaintiff is entitled to recover.”
    The verdict was for the plaintiff for $361.98.
    The defendant took a writ of error, and amongst others assigned the charge of the court for error.

      Chapman, Benson Brainard, for plaintiff in error.
    The signing of the petition by a majority of the property owners was essential to give the councils jurisdiction : Harbach v. Toledo, 11 Ohio State R. 219; Rathbun v. Acker, 18 Barbour 393; Pittsburg v. Walters, 19 P. F. Smith 365; 2 Dillon on Municipal Corp., sects. 470, 471, 639, 642, 643. Notice of petition should have been published before any act was done: Myrick v. La Cross, 17 Wiscon. 442 ; State v. Jersey City, 2 Dutch. (N. J.) 444; State v. Jersey City, 2 Id. 309; State v. Jersey City, 4 Zabr. 662; State v. Newark, 1 Dutch. 399; State v. Elizabeth, 2 Vroom 547. Notice of assessment: Lowell v. Wentworth, 6 Cush. 221; Williams v. Detroit, 2 Mich. 560; Nashville v. Weiser, 54 Ill. 245; Butler v. Chicago, 56 Id. 341. Unofficial notice is no notice: Arthurs v. Smathers, 2 Wright 40; North Whitehall Tsp., 11 Wright 156.

      •I. B. Thompson and Gr. W. Lathy ¿f* Son, for defendant in error.
    The defendant knew of the proceedings of councils, as to him that was as operative as if there had been an official publication : Darlington v. Commonwealth, 5 Wright 68.
   Mr. Justice Gordon

delivered the opinion of the court, November 8th 1875.

This is a scire facias on a municipal claim, filed by the city of Erie against a lot of ground, owned by the defendant below.

The claim is for the cost of paving the street in front of this lot. The authority of the city is supposed to be derived from the Acts of 1861 and 1868, which empower the select and common councils of said city to pave and curb the' streets and collect the cost and expense of the work and materials therefor from the owners of the lots abutting thereon.

To the exercise of these powers, certain conditions precedent are prescribed. The first is that a majority of the property-holders fronting on the street proposed to be improved, shall petition therefor. If there were nothing more it would be a good defence that this condition had not been complied with, for without such compliance the councils had no jurisdiction: Pittsburg v. Walter, 19 P. F. Smith 365. The second section, however, of the Act of 1861, obviates this difficulty, for it prescribes, that when said councils shall by ordinance, direct the paving and grading of any street within the city, the question whether a majority of persons holding or owning property thereon have petitioned for the same, shall cease and determine.

There is, however, this important proviso, to wit: “ That no ordinance for any of the above-named purposes shall be passed until — days notice of the improvement prayed for has been given in the official paper of the city.” We thus observe that inquiry into the character of the petition is barred, but this second condition, to wit, publication, becomes material and necessary to the jurisdiction of the councils inasmuch as it is substituted for that which, but for the preceding part of the second sect, of the Act would be material and necessary. As the action of the councils concludes all precedent questions arising from the petition, this public notice is provided in order that every citizen, who is in any degree interested, may have a chance of being heard: Erie City v. Bootz, 22 P. F. Smith 196, per Sharswood, J. The action of the councils, under this act, was quasi judicial in its character and it is a fundamental rule that all such proceedings where they affect the rights or property of the citizen are nugatory if unaccompanied by reasonable notice. In the case in hand no such notice as that required by the statute was given. The imperative requisition is publication in the official paper of the city for — days. The word “ days ” after the blank being plural, indicates more than one, and we need hardly say that a mere editorial publication of the genei’al doings of the councils is not the notice required by the statute.

Eor these reasons the judgment of the court below is reversed.


author: Mr. Justice Williams

text:
    First National Bank of Clarion versus Gregg & Co.
    1. A note was made to plaintiff’s order, endorsed by him and sent through the house of Brady, a banker, for collection, by him endorsed to the defendant, a bank, “ for collection and credit.” Held, that Brady, by the endorsement, did not become the owner of the note, and had no right to pledge it, or direct its proceeds to be credited to him in payment of his indebtedness to the defendant.
    2. If the defendant had made advances or given new credit to Brady on the faith of the note, it would have been entitled to retain the amount out of the proceeds.
    3. The affidavit of defence by defendant’s cashier was, that to the best of his “ knowledge and belief the plaintiff was not the owner of the note when due, but that it was owned by Brady.” Held to be insufficient in not purporting to be made on the cashier’s personal knowledge, and not setting forth the sources of his information or that he expected to prove the facts alleged.

    October 13th 1875.
    Before Asnew, O. J., Sharswood, Williams, Merctjr, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas of Qlarion county: Of October and November Term 1875, No. 217.
    This was an action of assumpsit brought March 2d 1875, by John Gregg and John Richardson, trading as D. Gregg & Co., against the First National Bank of Clarion County.

      The plaintiffs’ affidavit of claim was as follows :—
    “For money received by defendant from C. B. Weber on or about September 25th 1873, on a note payable to plaintiffs, and by them endorsed and sent through James T. Brady & Co., then bankers in Pittsburg, to the First National Bank of Clarion, for collection and for no other purpose,.....$422.60
    Interest from September 25th 1873, to February 10th 1875,........ 34.86
    Total, . ......$457.46”
    The affidavit to the claim set out: “ That the said note of C. B. Weber, on which the First National Bank of Clarion received the money sued for in this ease, was payable to said plaintiffs, or their order, and endorsed by them and sent to the First National Bank of Clarion, for collection and for no other purpose whatever, through the banking house of J. T. Brady & Co., of Pittsburg; that they never held it for value received or discounted it in any ■way whatever; that said note at the time it was given, and until paid, belonged to, and was owned by said plaintiffs, and no other person or persons, or bank, or banking institution, and the proceeds of said note, at the time Weber paid the same to defendant, belonged to, and still belonged to said plaintiffs, and that the same remains due and unpaid, with interest.” * * * *
    The affidavit of defence was: “That the note for the proceeds of which plaintiffs have brought suit was made by Weber payable to the order of plaintiffs, that before due plaintiffs endorsed it generally as follows, to wit: ‘ D. Gregg & Co.’; that the said note came to the hands of defendant from J. T. Brady & Co., who were bankers, endorsed as follows:  Pay to the order of G. W. Arnold, Cashier, for collection and account.of J. T. Brady & Co.’ That the defendant had no notice that J. T. Brady & Co. were not the owners thereof. That at the time of receiving the remittance, as above stated, the defendant in the usual course of dealing with J. T. Brady & Co., and on the credit of such remittances anticipated, had at the time of receiving said remittance, and had so kept for a long period of time in the hands of J. T. Brady & Co.-, a large balance, which at the time of receiving the proceeds of said remittance was about forty-six or forty-seven hundred dollars, on which balance, upon receiving the proceeds of said remittance, the amount thereof was credited, and notice thereof sent to J. T. Brady & Co. All of which took place and was fully consummated without any notice that any one else than J. T. Brady & Co. had any claim thereto. That the First National Bank of Clarion regarded and treated J. T. Brady & Co. as the owners of said paper.”
    A supplemental affidavit also was filed, viz : “ That in the affidavit of defence heretofore filed in this case by defendant, it was-stated that the note therein referred to had been endorsed ‘ for collection and account;’ this was a mistake, the endorsement was, in fact and in truth, made ‘for collection and credit,’ and not for collection and account, and that the proceeds were credited to said Brady & Co., as stated in the affidavit of defence, filed in this cause, to which this is supplemental. Your deponent further says that, to the best of his knowledge and belief, said D. Gregg & Co. were not the owners of said claim when due, but the same was owned by Brady & Co.”
    July 7th 1875, the court entered judgment for the plaintiffs for want of a sufficient affidavit of defence; and liquidated the damages at $468.38. This .was assigned for error on the removal of the record to the Supreme Court by writ of error by the defendant.

      G-. A. Jenhs, for plaintiff in error.
    As to the sufficiency of the affidavit of defence: Black v. Halstead, 3 Wright 64 ; Eyre v. Yohe, 17 P. F. Smith 477; Bank of Metropolis v. N. E. Bank, 1 Howard 234, s. c. 6 Howard 212; Jones v. Milliken, 2 Wright 252. As to the ownership of the note: Chitty on Bills 232, 233; Story on Bills 207, 211; Burdick v. Green, 15 Johnson 247.

      W. L. Corbett, for defendant in error,
    cited Wilson v. Smith, 3 Howard 763 ; Jones v. Milliken; Black v. Halstead, supra.

       See Reamer v. Bell, antea, p. 292.

   Mr. Justice Williams

delivered the opinion of the court, January 6th 1876.

Brady & Co. did not become the owners of the note by the plaintiff’s endorsement and delivery of it to them for collection, and they had no right to pledge it, or direct its proceeds to be placed to their credit in payment of their indebtedness to the bank, is true that they were the apparent owners of the note, and, in the absence of notice of the plaintiffs’ title, the bank had the right to treat them as the real owners. If it had made advances or given new credits to Brady & Co. on the faith of the note, it would ^undoubtedly be entitled to retain the amount out of the proceeds. But just at this point the defence wholly fails. The affidavit of the cashier does not show that the bank made any advances or gave any new credits on the faith of the note. Nor does it show.that it incurred any liability, or did anything by which its condition is worse than it would have been if it had not received the note for collection and credit, or that it will suffer any loss or damage if the credit is not allowed. If so, the bank has clearly no equity which entitles it to withhold the proceeds from the owners of the note.

The averment in the supplemental affidavit, that to the best of the cashier’s knowledge and belief the plaintiffs were not the owners of the claim when due, but the same was owned by Brady & Co., must be disregarded. Its insufficiency is apparent. It does, not purport to be made on the affiant’s actual personal knowledge,! and it is defective in not setting forth the sources of his information, or asserting any expectation of ability to prove the facts alleged. - Judgment affirmed.


text:
    Weiss et al. versus Pennsylvania Railroad Co.
    1. In an action by a widow against a railroad company for causing the death of her husband by a locomotive, as he was crossing their track on a street in a carriage, the plaintiffs made out a prim& facie case of negligence, without proving affirmatively that the deceased had “ stopped and looked and listened.” NeMthat the presumption in law was that he had stopped, looked and listened and the burden of proving contributory negligence was on the defendants.
    2. A witness of defendant testified that deceased could have seen the train coming if he had looked. Held, that this did not justify the court in instructing the jury to find for defendants.
    3. Pennsylvania Railroad Oo. v. Weber, 26 P. R. Smith 157, adopted.
    October 21st 1875.
    Before Agnew, O. J., Sharswood, Williams, Mekcur, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas of Erie county: Of October and November Term 1875, No. 221.
    This was an action on the case, commenced October 18th 1871, by Katharina Weiss, widow of Jacob Weiss, deceased, and Anna Weiss and others, minor children of said deceased, against The Pennsylvania Railroad Company.
    . The action was brought to recover damages for the killing of the deceased by one of the defendants’ trains, as was alleged through negligence.
    The case was tried, January 6th 1875, before Wetmore, P. J., when the following facts appeared in evidence:—
    On the 1st of June 1871, Weiss, the deceased, was driving a light wagon, with -one horse, going southwardly along Parade street in the city of Erie. This street' crossed the Philadelphia and Erie railroad, of which the defendants are the lessees; at the place of crossing there were two railroad tracks of the defendants on the south, and four tracks of the Lake Shore and Michigan railroad further north. The defendants’ depot was west of the crossing at Parade street, and at the time of the disaster the train had just left the depot and was moving eastward. The deceased had crossed the Lake Shore railroad tracks, and in crossing defendants’ tracks he was struck by the engine and killed.
    There were two freight cars standing on the track north of that on which the passenger train was passing; one standing so far out in Parade street that persons in passing had to go into the road ; freight cars also stood on the other side of the street; a passage way was left for teams to go through, but it was quite narrow. When the deceased was last seen before he was struck, his horse seemed much frightened and he appeared to have lost control of him. The plaintiffs’ testimony was, that there was no bell rung nor whistle sounded.
    The rules of the company fixed six miles an hour as the “ highest allowable speed ” for their trains in passing through cities, &c. The witnesses differed very materially as to the rate of speed at which the train was moving, their estimates being (according to the statements in the respective paper-books), from six to twenty-five miles per hour. The evidence was conflicting also as to ringing the bell and sounding the whistle.
    The foregoing facts are from the history of the case as given in the paper-books. None of the evidence, except the following from one of the defendant’s witnesses, was given :—
    J. W. Eyster testified : “ Was running on Pennsylvania railroad as mail agent in 1871, in the United States employ; was on the train; remember accident; were four cars in train. I was sitting in mail car window; ran slow to round-house, there put on a little speed; then Martin whistled; were two cars north of us, one reaching half a car length over the sidewalk. Nothing north of there ; saw man down Parade street coming to track rather fast; he was about one or two tracks from ours. He did not stop; his horse seemed wild and wanted to go. I saw him just as he drove on to the Lake Shore track; I saw him plainly; he could have seen the train if he had looked; the bell was ringing at this time; he might not have seen engine, but could have seen ears ; no cars on west side, uidess way over on north track, but they did not obscure my view; plenty of cars on east side of track. Noticed him in particular, because he had a nice horse, and was driving so fast; he struck the horse with a whip just before he reached track ; can’t say 'how fast we were running ; we may have been running twelve miles an hour. I ran every day there ; heard the whistle by Crouch’s elevator ; think we were running as usual.”
    On cross-examination he said: “ When I first saw him we had crossed German street; we had gone, maybe, a train’s length beyond German street, when I saw him coming on track; there might have been some cars on north side sufficient to obscure view; I only saw those two cars. I saw horse because I was sitting with one foot out of the mail car window; and looking that way, he came very fast, so that kegs bounced in the wagon. Horse seemed to want to go, and he-was sawing him just as he got on the track, and when he got close up he hit the horse twice with the whip that I saw ; heard whistle about German street, that is where he always whistles and where he whistled that day, and bell was ringing. Did not make any effort to stop the horse until he got on the track, where he reined and struck the horse; was two or three tracks from ours.”
    The plaintiff’s points were:—
    1. If the jury find from the evidence that the view of the track, on w'hich the train was approaching Parade street, was obstructed by freight cars standing in Parade street for the purpose of being unloaded; that the train was running from twenty to twenty-five miles per hour; that by the rules of the railroad company they were allowed to run at a rate,of speed not greater than six miles per hour; that no watchman ‘ or flagman was stationed at the crossing; that no whistle was blown as required by the rules of the railroad company, and that Parade street was one of the principal streets in Erie for persons to drive or walk upon, then the Pennsylvania Railroad Company, by its servants, was guilty of gross negligence, and the question whether or no Jacob Weiss, deceased, husband of the plaintiff, was guilty of concurring negligence, becomes a question of fact for the jury to pass upon.
    2. If the jury find from the evidence that the Pennsylvania Railroad Company, by its agents, were guilty of gross negligence in the manner and ways as set forth in the first point, and that Jacob Weiss, deceased, used reasonable and ordinary care in passing the tracks of said company on Parade street, and if the jury find that said Weiss was killed by one of the locomotives of said company, then the plaintiff is entitled to recover.
    8. If the jury find from the evidence that the horse of Weiss, the deceased, became frightened and unmanageable within a short distance of the track of the Pennsylvania Railroad Company, and that in consequence this horse rushed upon the track, then the question of concurring negligence on the part of the said Weiss is a question of fact for the jury to pass upon.
    The court answered the points as follows:—
    “Plaintiff’s first and second points answered in the general charge, to which reference is made.
    “ The third point is answered as follows:—
    “It was an act of negligence, under the circumstances, to be so near the track on which defendant’s train was passing, and does not alter the legal conclusion which we have stated in the general charge, and your finding under the evidence should be for defendant and the court so directs.”
    The court charged:—
    “ If Jacob Weiss, deceased, approached and attempted to pass over the railroad track in the manner stated by the witness, J. W. Eyster, it was negligence on his part and the plaintiff cannot recover. '
    “ When a party approaches a railroad crossing, and has a full view of the track both ways a sufficient distance to see approaching trains, and there are none to interfere, he can pass over without stopping; but if the tracks are numerous, and the trains frequent, or the view is obstructed by cars on the track, or otherwise, then it is a duty to pause, look and listen, and the violation of this duty is a negligence that defeats an action for damages for any injury that may occur.”
    The verdict was for the plaintiff.
    The plaintiff took a writ of error and assigned for error:—
    The answers to the points, and the charge of the court, and di- ■ reeting a verdict for defendants.

      Davenport $ Griffith, for plaintiffs in error,
    cited Penna. Railroad Co. v. Weber, 26 P. F. Smith 157; Penna. Railroad Co. v. Lewis, antea, p. 33.

      J. D. Thompson, for defendants in error.
   Mr. Justice Sharswood

delivered the opinion of the court, November 4th 1875.

When the plaintiffs below closed their evidence, they had a perfect primá facie case to go to the jury. They had given evidence of the negligence of the defendants, and no contributory negligence of the deceased appeared. The presumption of law was that he had done all that a prudent man would do under the circumstances to preserve his own life, and that he had stopped and looked and listened : Penna. Railroad Co. v. Weber, 26 P. F. Smith 157. The onus of proving contributory negligence was thus clearly cast upon the defendants. “ It is true,” says Mr. Justice Williams, “that when the plaintiff’s own evidence discloses contributory negligence there can be no recovery; but if it does not, the burden is on the defendant to disprove care; and in such case the question of negligence is for the jury.” ' It is clear, then, that there was error in the binding direction given by the learned judge to the jury to find for the defendants. The testimony of one witness that Jacob Weiss did not stop, and that he could have seen the train if he had looked, did not justify the court in taking the case from the jury. ' The fact that the horse the deceased was driving became frightened and unmanageable a short distance from the railroad, if the animal was a gentle one, and was frightened through the negligence of the defendants, and being beyond the control of the deceased, rushed on the track, was an important element bearing upon the case.

The question of concurring negligence in the deceased, under all the circumstances of the case, should have been submitted to the jury.

Judgment reversed and venire facias de novo awarded.


author: Mr. Justice PaxSon

text:
    Rice et al. versus Olin, Executor, &c., of Scofield.
    1. Where there has been fraud on the vendee in a contract of sale, he may rescind on the discovery of the fraud; or'he may defend against payment of the purchase-money to the extent to which he is injured.
    2. "When an answer to a point is obscure or equivocal it may be cured by expressions in the general charge, but not when it is palpably wrong.
    3. Rice purchased land, paid part of the purchase-money and for the remainder he gave a mortgage on which also he made payments. In a sci. fa. on the mortgage he defended on the ground that the character of the land, &c., had been fraudulently misrepresented to him. Held, that the measure of his damages was the difference between what he agreed to give and what the land was then actually worth.
    4. Rice appeared to the scire facias and afterwards was adjudged a bankrupt ; the assignee in bankruptcy asked to withdraw Rice’s appearance. Held, that the assignee could not withdraw the appearance nor interfere with Rice’s defence against the mortgage.
    5. The land after issuing the scire facias was sold subject to the mortgage on a judgment against Rice. Held, that Rice might defend against the mortgage.
    6. Whether the purchasers under the judgment could attack the consideration on the mortgage, not decided.
    October 21st 1875.
    Before Agnew, O. J., Sharswood, Williams, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas of Erie- county: Of October and November Term 1875, No. 215.
    This was a scire facias sur mortgage, issued July 6th 1872, by John Scofield against Daniel Rice, who was served, appeared to ‘the case and filed an affidavit of defence. On the 26th of June 1873, the death of the plaintiff was suggested, and David Olin, his executor, substituted. Afterwards the land covered by the mortgage was sold under judgments against Rice — subsequent to the mortgage — to James Wadsworth and Henry A. Traut, who, on their own application, were on the 10th of May 1875 placed on the record as defendants. On the same day Henry Ball, assignee in bankruptcy of Rice, filed in the case a paper, setting forth that Rice on the 15th of February 1875, had been declared a bankrupt ; that all his estate had been duly assigned to Ball on the 24th of March 1875; that the property covered by the mortgage had been sold on judgments younger than the mortgage; that the estate of Rice had no interest in the suit, and asked “ leave to withdraw all appearance in behalf of Rice and his estate.”
    The defence was that the mortgage had been given to secure part of the purchase-money of land sold by Scofield to Rice, and that Rice had been induced to buy the land at a price far beyond its value, through the misrepresentations of Scofield as to its character, quality, &c.
    The cause was tried May 12th 1875, before Vincent, P. J.
    The plaintiff gave in evidence, mortgage dated May 24th 1866, from Rice to Scofield, to secure the payment of $4400, payable in four equal annual payments, the first to be made May 24th 1867,
    The plaintiff further proved the sheriff’s sale to Wadsworth and Traut, and rested.
    The defendants gave in evidence, deed Scofield to Rice, dated May 24th 1866, for the land mentioned in the mortgage; the consideration being $5825. They gave evidence also of the payment of $1100, the instalment due May 24th 1867, and payments in different sums up to July 7th 1871, amounting in all to $1330, towards the remainder of the purchase-money.
    The principal evidence as to the sale of the land and the representations by Scofield was from John Heibeck, who testified:—
    “ Was present when Dan Rice and Scofield were negotiating for sale of this land. At a conversation which was in front of Rice’s house in Girard, a day or two before deed was made,.Rice said he wanted to buy a, timber lot that had whitewood, ash, hemlock, chestnut, and all kinds of sawing and building timber on it. Scofield said he had just such a piece of land. Was good wheat land as any along the ridge road. Said was nice level piece of land. He said was about 100 acres of the land in timber of the 175 acres in the lot. They then agreed that Rice should go up and see the farm the next day. Rice went to farm with me. Met Scofield about mile and half from farm going towards Girard. Rice wanted him to go back with us and show us the land, and where it was. Scofield refused to go back, saying he was unwell and could not ride. He then said to Rice that he could depend that the land was just as he had told him in Girard the day before. Rice then said he' would take his word and take the farm and would make out papers next day. Rice and I drove on to the farm, but did not know where lines were, nor whether on one side or on both sides of the road. The house is near north side of the farm. I lived on farm three years. Could not see from house or driving along the road how it lay or how much timber was on it. * * * Was beech and maple and hemlock on land, but most of hemlock was in a gully where could not get it. No sawing or building timber. Part of land, is smooth and part is broken and hilly. Are two gullies running through it. Banks of creek 25 to 30 feet high. Not accessible from one side to other on this tract with a team. Land smooth enough, except the gullies. Rather poor soil. Could not raise good crops of wheat on it. Farm not worth then in my opinion over $2000. If as Scofield represented it to be, would have been worth $5000 to $5500.”
    There was evidence of the same kind and from a number of witnesses.
    The plaintiff, in rebuttal, gave evidence in answer to the plaintiff’s case.
    The court charged:—

      * * * “ The scire facias was not issued until between May and September 1872, or six years or more after the making of the deed, and after the conversation with Wright, during all of which time Mr. Rice retained the land, made payments thereon running down to July 1871, and visited the land once or twice a year, and so far as the evidence shows, never even made any complaint of fraud or misrepresentation on the part of Scofield. [The evidence of Heibeck shows that Rice went upon the land before the deed was made, and he therefore had a full opportunity for.inspection of its surface, its soil and its timber], and if he did not use his opportunities, he cannot complain now, unless by some contrivance on the part of Scofield he was induced not to use his opportunities for examination. The evidence further shows that Rice has cut and carried off timber and fire-wood from the land, and has cleared up some of it, and Mr. Teller tells you that the land is not worth now by 30 per cent, as much as it was in 1866. Amos Milks testifies that the farm has run down since Rice bought it. , John Sherman says land was worth $25 per acre in 1866, and not over $15 or $16 now, and that farm is now in a very bad state. [Rice has never tendered back the farm to Scofield, nor did he at any time since the sale offer to place Scofield in as good a position as he was at the time of sale, and this he should have done, for peradventure, had he done so, Scofield would have returned the purchase-money, could he have been placed in as good á position as he was in when he parted with his land.]
    “ If a vendee of lands claims, to-have been defrauded by misrepresentations made to him as to a valuable property in the land, under such circumstances as would make them a fraud upon him, he should make known the fraud as soon as he reasonably can after it is discovered, and he will not be permitted to retain the property and derive benefit from it, and then set up the fraud as a defence to the purchase-money, and what is reasonable time is a question of law for the decision of the court. If you should find from the evidence that Rice was'induced to buy this land by the fraudulent representations of Scofield as to its qualities as a farm and timber lot; if you nevertheless believe that he had a full opportunity to examine the land for himself, and such examination would have shown him the real character of the land, and of the timber upon it, and he omitted to avail himself of it, he cannot set up the fraud here as a defence, unless by some practice or contrivance of Scofield he was dissuaded from making such examination, [but even if he had no opportunity for examination before he bought, if you believe that he knew its real character, for soil, surface and timber very soon after he purchased, and was on the land once or twice a year thereafter, and did not make known the fraud or complain of it to Scofield, for five or six years after such knowledge, he cannot now set it up as defence and the plaintiff is entitled to recover the amount secured by the mortgage, deducting the payments actually made thereon.] If Rice did not know the real character of the land as to soil, timber and surface, and you believe he bought on that inducement alone and that he was deceived by Scofield, he can deduct from the purchase-money the difference between what he agreed to give and what it was then actually worth, and in our opinion no more, for if he could exceed that measure of damages a vendee of land might get a man’s land for nothing, by showing that had the land been as represented it would have been worth enough more than its actual value to wipe out all the purchase-money, and thus give the vendee the land for nothing, and this we think cannot be done in any case in which the purchase-money of land is involved.”
    The plaintiff’s points and answers are as follows :—
    1. This action is one wholly in rent against the land, and Traut and Wadsworth, the purchasers at sheriff’s sale, Avho are admitted to defend, cannot set up as a defence any fraudulent representations made by Scofield to Rice in 1866 as to the quality of the land or the timber upon it.
    Answer: “ We think this is correct, hut as Rice is still a party and may be liable on a bond, if one exists, Ave think any defence in Rice may be set up here.”
    3. Where a purchaser has the opportunity to inspect the property, as did Dan Rice in this case, it is his OAvn fault if he did not inspect, and representations of the vendor without Avarramty, when there is an opportunity to inspect, form no defence to the payment of the purchase-money.
    Answer: “ This is correct; the law does not protect men against their OAvn follies; against them they must protect themselves.”
    5. In this case it was the duty of Dan Rice to have offered to rescind the contract as soon as the fraud (if any there was) Avas known to him ; the delay has been such that the defence offered cannot now be made available.
    Answer: “ We answer this in the affirmative. And if you believe that Rice knew the real character of this land soon after he bought it, and never having offered to return it and made no complaint of the alleged fraud during all the time betAveen this discovery and the bringing of this suit, he cannot now set up the alleged fraud as a defence to this suit.”
    6. What is a reasonable time or undue delay is for the court, and in this case the delay to take advantage of any representations made by Scofield is unreasonable, and the evidence of Heibeck as to such representations in 1866 must be disregarded by the jury.
    Answer : “ Affirmed; referring to answer to 5th point, except as to Heibeck’s testimony.”
    The defendant’s points and answers were:—

      1. If the jury believe from the evidence that while Rice and Scofield were negotiating for the sale of the land, Rice stated to Scofield that he was intending to build considerably and wanted to buy a timber lot that had plenty of whitewood, ash and hemlock, and Scofield represented to him that there was a large quantity of the kind of timber he had mentioned, and that the land was of good quality, was good for wheat, level and smooth, and on the faith of these representations, Rice purchased the land and paid the price stipulated, and the representations so made were untrue, it was such a fraud upon Rice as would entitle him to claim a deduction from the purchase-money equal to the difference in the value of the land at the time of the purchase and what it would have been worth if it had been in quality and description what it was represented to be by Scofield.
    Answer: “The stating part of the point is affirmed if Rice had no reasonable opportunity to examine the land for himself; but we refuse to charge as requested as to- measure of damages, and for that refer you to our general charge.”
    3. If the jury believe from the evidence that the price paid by Rice to Scofield for the land was more than twice its actual value at the time of the sale, that circumstance of itself is evidence of fraud.
    Answer: “We cannot so charge, unless Rice had no chance to examine for himself.”
    4. If the jury believe from the evidence that the defendant was induced to pay much more than the mortgaged premises were worth, in consequence of the false representations of Scofield as to the timber and the quality of the land, and that he has already paid to the plaintiff all the property was fairly worth at the time of the purchase, the defendant is entitled to relief and the plaintiff cannot recover.
    Answer: “We decline so to charge, but refer you to what we have said in our general charge as to the opportunity to examine and failure to complain of fraud within a reasonable time after knowledge of it.”
    5. If the jury believe from the evidence that at the time of the sale of the land to Rice there was a false representation of material facts by Scofield that induced Rice to purchase the land, it was a fraud upon Rice, and was not susceptible of confirmation by declarations of Rice or otherwise, without a new consideration.
    Answer: “ We decline so to charge,"but refer to general charge.”
    The verdict was for the plaintiff for $2768.78. •
    The defendants took a writ of error; they assigned for error:—
    1-3. The parts of the charge in brackets.
    4-7. The answer to the plaintiff’s points.
    8-11. The answers to defendant’s points.

      Cutler $ Hinds for plaintiff in error.
    An innocent vendee is not bound to tender the property to a fraudulent vendor before suing for the fraud: Gilbert v. Hoffman, 2 Watts 67; Sands v. Codwise, 4 Johns. R. 598. In cases of actual fraud it is not necessary to inform the fraudulent vendor as soon as the vendee discovers the fraud: Kalbach v. Fisher, 1 Rawle 324. A terre-tenant owning the equity of redemption may defend against the mortgage on the ground of fraud on the mortgagor: Ulrick v. Voneida, 1 Paige 250; Brown v. Scott, 1 P. F. Smith 357 ; Schnepf ’s Appeal, 11 Wright 37. The defrauded party may either rescind or affirm the contract so far as executed and claim compensation for the fraud: White v. Leaven, 28 Barb. 235; Harris v. Rowen, 3 Wash. C. C. 359; Whitney v. Allaire, 4 Denio 554. As to damages, they cited Pennock v. Tilford, 5 Harris 456; Davidson v. Little, 10 Harris 250. A contract actually fraudulent cannot be confirmed: Duncan v. McCulloch, 4 S. & R. 483; Stuart v. Blum, 4 Casey 225; Miller’s Appeal, 6 Casey 478; Jackson v. Summerville, 1 Harris 359; McKee v. Gilchrist, 3 Watts 230.

      S. JE. Woodruff (with whom were D. W. Hutchinson and T. S'. Woodruff).

    The defendant should have tendered back the land before bringing suit: Pearsoll v. Chapin, 8 Wright 11; Negley v. Lindsay, 17 P. F. Smith 218 ; Hersey v. Turbett, 3 Casey 424; Learning v. Wise, 23 P. F. Smith 173. Where the vendee has an opportunity to inspect, the representations of the vendor will not constitute fraud ; Whitaker v. Eastwick, 25 P. F. Smith 229; Borrekins v. Bevan, 3 Rawle 23; Wetherill v. Neilson, 8 Harris 448; Fraley v. Bispham, 10 Barr 320; Jennings v. Gratz, 3 Rawle 168.
   Mr. Justice PaxSon

delivered the opinion of the court, November 15th 1875.

_ _ The portion of the charge referred to in the first specification of error was but an expression of opinion upon the facts. It was not a binding instruction, and does not amount to error: Sailor v. Hertzogg, 10 Barr 296; Ditmars v. The Commonwealth, 11 Wright 335.

But there was error in that portion, of the charge embraced in the second specification, and also in the answer to the plaintiff’s fifth point. It was competent for Rice to have rescinded the contract when he discovered the alleged fraud. That he was not bound to rescind, and could defend against the payment of the balance of the purchase-money, at least to the extent of the injury sustained, is settled by numerous decisions: Fisher v. Worrall, 5 W. & S. 478; Good v. Good, 3 Id. 472; Hessner v. Helm, 8 S. & R. 178. It is true, the learned judge says in another part of his general charge: “ If Rice did not know the real character of the land as to soil, timber, and surface, and you believe he bought on that inducement alone, and that he was deceived by Scofield, he can deduct from the purchase-money the difference between what he agreed to give and what it was then actually worth.” If the answer to the fifth point had been obscure or equivocal, the paragraph just cited might have cured such defect. But when the answer to a point is palpably wrong, it cannot be aided by the general charge.

It was also error to instruct the jury as contained in the third specification of error,, that “ even if he (Rice) had no opportunity for examination before he bought, if you believe that he knew its real character for soil, surface and timber, very soon after he purchased, and was on the land once or twice a year thereafter, and did not make known the fraud or complain of it to Scofield for five or six years after such knowledge, he cannot now' set it up as a defence, and the plaintiff is entitled to recover the amount secured by the mortgage, deducting the payments actually made thereon.” If the facts be as above stated, they would have been very persuasive reasons for the. jury to have found, either that no fraud had been perpetrated, or that it .had been waived by the defendant, Rice. It was error for the court to rule it as a question of law.

The answer to the plaintiff’s first point is not clear. It is first affirmed and then qualified with the remark: “ but as Rice is still a party, and may be liable on a bond, if one exists, we think any defence in Rice may be set up here.” As the practical effect of this ruling was to allow the jury to pass upon Rice’s defence, we do not regard the first portion of the answer as material. Nor do we think it necessary in this case to decide how far the purchasers at the sheriff’s sale, who are the terre-tenants, and who have been admitted to defend, can attack the consideration of the mortgage. Rice, the mortgagor, is a defendant, and is upon the record.

The attempt of Ball, the assignee in bankruptcy of Rice, to withdraw Rice’s appearance, amounts to nothing. He had no authority for any such action, nor any right to interfere with Rice in his defence to the mortgage. That the latter was entitled to take this defence, cannot seriously be questioned; the exigencies of the case do not require us to go further.

The plaintiff’s third point should not have been affirmed. It assumes that Rice inspected the property, which was one of the questions of fact to be submitted to the jury. Nor does the case rest upon the question of warranty. The complaint is of a fraudulent representation of the character of the property, extent of the timber, &c.

W,e think the court below indicated the correct rule for the measure of the damages. The remaining assignments of error are sufficiently covered by what has already been said.

Judgment reversed and a venire facias de novo awarded.


author: Mr. Justice Woodward

text:
    Gardner et ux. versus McLallen.
    1. Husband and wife purchased land, to be paid for in part by the wife’s money. The deed was made to the husband alone and delivered; shortly after its delivery, the wife objected to it, because not made to them jointly. A new deed to them jointly was executed and delivered, and the first, with consent of all parties, destroyed. Held, that the delivery of the first deed did not prevent the parties to it from substituting the second for it.
    2. The first deed having been made in mistake, the repudiation of it by the grantee, as soon as the mistake was discovered, would avoid the deed. Per Vincent, P. J.
    3. The second deed was accidentally burned without having been recorded: after the death of the husband one of his children brought ejectment against his widow, for her share as heir. Held, that under the Act of April 16th 1869, the widow was not a competent witness as to transactions before her husband’s death.
    4. Although her interest was co-incident with the husband’s in his life, it was adverse to his heirs setting up a claim against her for the land.
    5. This point ruled by Karns v. Tanner, 16 P. P. Smith 297.
    October 21st 1875.
    Before Agnew, O. J., Sharswood, Williams, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas of Erie county: Of October and November Term 1875, No. 219.
    This was an action of ejectment, commenced July 1st 1872, by S. P. Gardner and Olivia, his wife, in her right, against Catharine McLallen, for a tract of land in Washington township. Mrs. Gardner, plaintiff, claimed as one of the heirs of Henry McLallen, deceased, alleging that he died seised of the premises ; the defendant claimed as surviving wife of the deceased, alleging that she and her husband had held the land by the entireties.
    It was alleged by the defendant that the land had been purchased with her money, the deed to have been made to herself and husband jointly; that the deed was by mistake made to the husband alone and acknowledged by the grantor; that when it was brought to McLallen for delivery, it was objected to by him and the defendant as not being as was intended, and another one was directed to be drawn; that a deed was drawn and executed to the husband and wife jointly; it was brought to McLallen’s house and delivered, and the other deed handed to the grantor, who immediately burned it in the presence of the justice and all the parties. Neither deed was recorded; the house of McLallen was afterwards burned and the second deed burned in it.
    The case was tried December 18th 1874, before Vincent, P. J.
    S. D. Buckley, who had owned the land, testified for plaintiff, that in 1863 he sold the land to McLallen for $1200 ; the deed was executed by witness and wife and acknowledged before Esquire Sherwood; witness was afterwards requested by Stephen Valentine, Buckley’s agent, to make another deed to McLallen and wife ; he did so, two or three Aveeks aftenvards; he Avent with Valentine to McLallen’s house and found Sherwood there preparing another deed; the second deed was made tó Henry McLallen and wife, the defendant, jointly ; witness took the first deed and burned it; McLallen gave no directions about the second deed, nor was he present when Valentine requested that a new deed should be made; witness received no consideration for the second deed; witness had no instructions to burn the first deed; Mc-Lallen took possession of the land before he died. The whole transaction for the sale of the land was between witness and Valentine, who acted for McLallen.
    The wife of Buckley testified substantially as he had done as to the transactions about the second deed.
    McLallen left eight children, of whom Mrs. Gardner, the plaintiff, was one.
    For the defendant, Sherwood, the magistrate, who prepared the deed and took the acknowledgments, testified that in less than a week after the execution of the first deed he was informed by Valentine that it was unsatisfactory; witness went to see McLallen, who said he wanted the deed made to himself and wife jointly ; witness then prepared such a deed; Buckley and wife came whilst he was writing the deed; they signed and acknowledged it; when all the parties were present witness read the deed; handed it to Buckley, told him to hand it to McLallen, which he did. Buckley asked what should be done with the first deed; witness said it should be destroyed; the parties consented to that; Buckley then threw it into the fire in the presence of all the parties.
    A witness testified that McLallen told him, soon after the purchase, that he had one deed which was not satisfactory to his wife, and he had another, a joint deed, made to himself and wife, because she had paid for it with her money.
    Several other witnesses testified to the same facts.
    There was evidence that McLallen could neither read nor write.
    The defendant then was offered as a witness. She was objected to by the plaintiffs as being the survivor of two contractors and as the widow of McLallen.
    The court, expressing a doubt as to her competency, admitted her to testify.
    She testified as to the circumstances of the contract for the land, the execution of the second deed, the destruction of the first; the payment of most of the purchase-money from her funds, &c., much as the other witnesses, but with more particularity.
    The following are points of plaintiff’s; they were all refused:—
    2. The title to the land in question passed entirely out of S. D. Buckley and wife, and became fully vested in Henry McLallen and his heirs at the time of the delivery of the deed to said Henry McLallen, and the burning up or destruction of the said deed some time thereafter did not change or in any way affect the title to the same, but left it remaining in Henry MeLallen and his heirs; and therefore the plaintiff, as heir at law of said Henry MeLallen, is entitled to recover, and their verdict should be for the plaintiff for her interest in the land.
    3. The deed from S. D. Buckley and wife to Henry MeLallen and wife passed no title to, or interest in the land in dispute to Catherine MeLallen, the defendant, the title having previously passed from Buckley and wife to said Henry MeLallen by the first or former deed, and therefore their verdict should be for the plaintiff for her interest in the land as heir at law of the said Henry MeLallen.
    4. The destruction of the first deed, even by the express assent and direction of Henry MeLallen, could not divest him of the title or in any way injure or affect the same, but the title remained in him as fully and completely after the deed was destroyed as before, and therefore the plaintiff, as heir at law of said Henry MeLallen, is entitled in this suit to recover her interest in the land in dispute.
    5. Contracts for the sale of land and transfers of title to real estate under our law must be in writing, signed by the party granting the same, or by his agent duly authorized in writing so to do, and there being no evidence that the said Henry MeLallen ever signed or caused to be signed any writing to part with his title to the land in question, after the same became vested in him by the delivery of the deed from Buckley and wife to him, the title to the said land continued in him until his death and then descended to his heirs, and therefore the plaintiff, as heir at law of said Henry MeLallen, is entitled to recover, and the verdict of the jury should be for the plaintiff for her interest in the land.
    The court charged:—
    “ It is undisputed that Stephen D. Buckley once owned the land in dispute. In 1862 or 1863, one Stephen H. Valentine made a contract with Buckley to purchase this land, and he also had a contemporaneous contract or arrangement with MeLallen to sell the sameland to him or to him and his wife. If you believe the evidence for the defence, the defendant was to furnish part of the purchase-money and to have an interest in or security on the land for her money. There is no dispute that she had some money, and if you believe the testimony of Thompson, Henry MeLallen admitted that the defendant’s money helped pay for the land. If the contract between Valentine and MeLallen and his wife was, that she was to .have an interest in the land when purchased, a deed made to carry out this contract, not made in pursuance of its terms, would not bind the purchasers of the land unless accepted with a knowledge of the difference between the terms of the deed and the terms of the contract. In the case of a party able to read a deed, the presumption would be that he received it with full knowledge of its contents, but in a case where the grantee of the deed could neither read nor write, and in the absence of any evidence that the contents of the deed were made known to him, no such presumption could arise, and if as soon as the mistake was found out the grantee repudiated the deed, we think such repudiation would avoid the deed, for to hold otherwise would enable a grantor to practice a fraud upon an ignorant grantee. If then you believe from the evidence' that the original intention of MeLallen and his wife was to purchase this land jointly, and have the deed to them so made, and they or either of them ignorantly accepted a deed not in accordance with their intentions in this respect, which was repudiated by them as soon as its contents was known to them, it was no conveyance to them of the land in dispute.
    “ If the understanding between Valentine and Buckley 'was, that the deed from Buckley to MeLallen was for the purpose of carrying out the arrangement between Valentine and MeLallen and wife, and if the deed was not in accordance with that contract, and was accepted by MeLallen under the circumstance before referred to, the delivery of that deed to MeLallen did not so convey the land to him that it could not be corrected by a new deed in pursuance of the real contract; and after the destruction of the first deed, with the knowledge and consent of all the parties to the contract, we are of the opinion that the second deed conveyed a good title to the grantees in that second deed. But even if Mc-Lallen did accept the first deed, with full knowledge of its contents, if the purchase-money was paid in part by the defendant here, under an arrangement on his part that she should have an interest in the land, and afterwards he assented that the deed which did not carry out this arrangement should be destroyed and a new one to himself and wife jointly be made in pursuance of the original understanding, we are of the opinion that the second deed conveyed a good title to the land, and that MeLallen was by his acts in connection with the second deed estopped from gainsaying the sufficiency of the last deed, and his children are in no better situation in that respect than he was. * * * If this second deed was made to induce her to use money to pay for the land, and with the assent of all the parties, it was a good consideration to Henry MeLallen and sufficient in equity to sustain the new arrangement as against MeLallen, and the plaintiff cannot recover. MeLallen had a right as against himself to treat the first deed as no conveyance of the title to the land and to surrender the deed for destruction, and, with the assent of all parties, have a new deed made to himself' and wife or to his wife alone, if he did not thereby convey to her more than a fair share of his estate.
    “ As a rule, the execution and delivery of a deed conveys the title of the grantor to the land mentioned in deed, but the grantee in the deed can do acts that will equitably estop him from contesting a second deed from the same grantor for the same land, and in deciding this case you are to treat the case just as if this was a contest between Henry McLallen himself and the defendant, so far as legal rights of respective parties are concerned. ”
    The verdict was for the defendant. The plaintiffs took a writ of error; they assigned for error: — ■
    1-4. The refusal of their points.
    5, 6. Admitting the defendant to testify.
    7. The charge of the court.
    6r. A. Allen (with whom were Benson Brainard), for. plaintiffs in error.
    The title was vested in McLallen alone by the first deed and could not be divested by its destruction: Wiley v. Christ, 4 Watts 176; Botsford v. Moorehouse, 4 Conn. 550; Gilchrist v. Buckley, 5 Id. 262; 4 Kent’s Comm. 452. As to the admission of the defendant as a witness they cited Karns v. Tanner, 16 P. F. Smith 297.

      J. Q. Marshall (with who was F. F. Marshall), for defendant in error:
    A contract for the purchase and sale of land, executed by the delivery of a deed and receipt of bonds for the purchase-money, may be rescinded as to the parties themselves, by a cancellation of the bonds and a re-delivery of the deed to the grantor: Wiley v. Christ, 4 Watts 196; Goucher v. Martin, 9 Id. 106; Boyce v. McCulloch, 3 W. & S. 429; Myers v. Myers, 1 Casey 100; Barncord v. Kuhn, 12 Id. 383.
   Mr. Justice Woodward

delivered the opinion of the court, November 8th 1875.

The jury were properly instructed that the acceptance by Henry McLallen of the first deed executed by Buckley for the land in controversy, was not, in view of the facts which she alleged, conclusive against the defendant below. It had been agreed that the deed should be made to McLallen and his wife, and it was made to him alone. He accepted it, but there was evidence that he could not read. When Mrs. McLallen discovered that she was not named in it as grantee, she refused to receive it, and declared that she would not advance the purchase-money for the payment of which, as part of the contract, she had stipulated. It was destroyed by the common consent of the parties, and a new deed to the defendant and her husband was prepared and delivered. There was nothing in the relations of the parties, and nothing in the subject-matter of the contract, to stand in the way of the agreement which was made to substitute the second conveyance for the first. Indeed, upon the facts found by the jury, it would have been a fraud upon the plaintiff if the purchase-money had been obtained from her upon the delivery of the first deed to her husband. The instructions of tbe court in tbe general charge and the answers to the points were entirely unobjectionable.

But the admission of the defendant’s testimony was an error that is fatal to this judgment. The very subject of the controversy was the land which had been conveyed jointly to her husband and herself. She was asserting title to it in a suit with her husband’s representatives. And her testimony was in relation to circumstances which occurred at the very time when the joint title was acquired. Inseparable as her interest was from that of her husband in his lifetime, it became adverse to that of his heirs when upon his death they set up a claim to the property! An inquiry into the transactions that resulted in the conveyance by Buckley to Mr. and Mrs. McLallen was necessary in order to ascertain the relation to the title which each of the parties bore. To permit the defendant to testify to those transactions was to create the inequality against which Karns v. Tanner, 16 P. F. Smith 297, proves it was the object of the proviso to the 1st section of the Act of the 15th of April 1869, to guard. The question here is not distinguishable from that which arose in Karns v. Tanner. The death of her husband sealed the defendant’s lips, for she became at once, as to the plaintiffs, the surviving party to a transaction out of which the adversary claims involved in this litigation have grown.

Judgment reversed, and 'venire facias de novo awarded.


text:
    Jarechi et al. versus Philharmonic Society.
    1. “ Gas-fixtures,” as distinguished from “ gas-fittings,” are not the subjeot of a mechanic’s lien, under the Act of April 14th 1855.
    2. The sale of a house in general terms will not include the gas-fixtures in it; to pass them with the house there must be a special agreement.
    3. Vaughen v. Ilaldeman, 9 Casey 522, adhered to.
    October 21st 1875.
    Before Agnew, C. J., Sharswood, Williams, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas of Erie county: Of October and November Term 1875, No. 261.
    This was a scire facias sur mechanic’s lien, issued April 2d 1874, by Jarechi, Hays & Co. against the Philharmonic Society. The claim, amounting to $1060,90, was filed under the Act of April 14th 1855, sect. 1, Pamph. L. 238, 2 Br. Purd. 1027, pi. 14, extending the provisions of the Mechanics’ Lien Law to plumbing, gas-fitting, and furnishing and erection of grates and furnaces.
    The case was referred to B. J. Reid, Esq., as legal arbitrator, under the Act of April 6th 1870, Pamph. L. 948, and Act of March 25th 1873, Pamph. L. 396.
    He found that the charges in the claim were “ for gas-pipe — generally called gas-fittings — and chandeliers, pendants, side-brack ets, lava-tips or burners, glass or porcelain globes, and'some other items, commonly known as gas-fixtures, as distinguished from the term gas-fittings; and the work and labor charged for were the items of work and labor expended in fitting said gas-fittings in said building and attaching them thereto and properly fitting up the said gas-fixtures.” He further reported :—
    “ The only matter in controversy is as to whether the class of materials designated under the general name of gas-fixtures, and the labor of putting them in place, can he the subject of a mechanic’s lien. These disputed items amount to $765.41, leaving the items of work and .materials not disputed, amounting to only $295.40.
    “ The meaning and use of chandeliers, pendants, side-brackets, tips or burners, burner-cocks and glass or porcelain globes, in connection with the lighting of the building with gas, are so well understood as to need no further description. The ‘ pillars ’ were upright pieces of gas-pipe, with casing of wood or metal, more or less ornamental in design, screwed into the supply pipes, instead of below them, or laterally, as in the case of chandeliers, pendants or side-brackets. Some of these pillars were on the exterior of the -building, and some were used to light the yard, or the enclosure, attached to the building. All of these fixtures (except the globes) were screwed into the gas-pipes proper. At the close of the summer and fall season the pillars in the yard were unscrewed and ‘ caps ’ put on the openings in the pipes to prevent leakage.” * * *

    The arbitrator awarded to the plaintiffs the sum of $824.60.
    The plaintiffs filed exceptions to the award in the Court of Common Pleas; they were overruled and judgment entered on the award.
    The plaintiffs took a writ of error and assigned the finding of the arbitrator and the entry of judgment on the award, for error.

      G. W. Lathey <f* Son, for plaintiffs in error.

      Davenport Griffith cited Yaughen v. Haldeman, 9 Casey 522.
   Mr. Justice Sharswood

delivered the opinion of the court, January 6th 1876.

The learned legal arbitrator below very properly considered himself bound by the authority of Yaughen v. Haldeman, 9 Casey 522, and decided accordingly; but his report contains a labored argument against the judgment in that case, and we are now urged by the plaintiffs in error to reconsider and overrule it. Upon the fullest consideration, however, we have determined to adhere to it. It is frankly conceded that the Act of April 14th 1855, Pamph. L 288, did not operate to extend the lien of mechanics to gas-fixtures as distinguished from gas-fittings, if a lien for the former did not exist by virtue of the Act of 1836. The distinction between the two is well stated and explained in Vaughan v. Haldeman. We are not satisfied that there is any usage or general understanding contrary to that decision. Houses are considered as. finished by the builders when the gas-fittings are completed. The fixtures are put up in more or less expensive style, according to the taste and means of the persons who mean to occupy them, whether as tenants or owners. If the tenant puts them in, it is not denied that as between him and the landlord they are his, and he may remove them, or they may be sold as Lis personal property on an execution by the sheriff. No doubt the owner, if they belong to him, often sells them with the house. They add more to the value of the house than they would be worth if removed. But if there is no agreement to sell the house as it is — fixtures and all — the purchaser is not entitled to them. We see then no reason for departing from the judgment in Vaughan v. Haldeman, and the opinion therein expressed upon the construction of the Act of 1855.

Judgment affirmed.