author: Mr. Justice Paxson

text:
    In re Change of Grade of Ridge Avenue.
    1. The provisions of the General Road Law of June 13th 1836, Pamph. L. 556, requiring an owner of land through which a public road may be opened, to present his petition for a jury of view to assess damages within one year after his land has been taken, applies in cases where the grade of a street in the city of Philadelphia, more than fifty feet wide, is altered in accordance with the provisions of section 27 of the Consolidation Act of February 2d 1854, Pamph. L. 37.
    2. The provisions of section 27 of the Consolidation Act of February 2d 1854, Pamph. L. 37, authorizing the recovery of damages by land owners in the city of Philadelphia whose land is injured by the alteration of the grade of streets in the maimer therein specified, were intended to apply in those cases only where such alteration is made in order to make all the streets conform to a general plan, changing the grade previously adopted by the old city of Philadelphia, or by one of the municipalities incorporated therewith.
    3. The Ridge Turnpike Company was incorporated by Act of Assembly of March 30th 1811, Pamph. L. 167, with power to construct a turnpike through and beyond a portion of the former district of Penn (now a part of the city of Philadelphia), in accordance with certain grades therein specified. The turnpike was laid out accordingly, and prior to 1854 the grade thereof was neither changed nor regulated by the authorities of the district of Penn. In 1871 city councils ordered a change of grade, which was physically effected in 1873. In 1878 certain property owners filed a petition for a jury of view, to assess the damages which, they had suffered by said change of grade. Held, that the petitioners, having failed to comply with the provisions of the general road law of June 13th 1836, section 7, Pamph. L. 556, requiring petitions in such cases to be filed within one year, were not entitled to a jury of view. Held, further, that the provisions of the Consolidation Act of February 2d 1854, section 27, Pamph. L. 37, under which said petition was filed, had no application to the facts of the case.

      January 26th 1882.
    Before Sharswood, C. J., Merc or, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Certiorari to the Court of Quarter Sessions of Philadelphia eoimby: Of July Term 1881, No. 115.
    The record showed the following facts: — On November 21st 1878, Thomás Byrnes and others filed their petition in the said Court of Quarter Sessions, setting forth that they owned certain lands fronting on .Eidge avenue, between Abbotsford avenue and Palis lane, in the 28th ward of the city of Philadelphia; that by resolutions of councils, of October 1st 1870, and June 21th 1871, the city of Philadelphia directed a “revision” of the grades of Eidge avenue or Turnpike road, which was done by a plan subsequently confirmed in accordance with law ; that the petitioners are damaged by the said change of grade; and praying for a jury of view to assess their damages. A supplemental petition further set forth that the Eidge Turnpike Company had power under their charter to fix the grade of their turnpike road, and had fixed a grade, and built the road in conformity therewith; and that the city did alter and change said grade, to conform to the grades on the city plan, to the damage of the petitioners.
    A jury of view was appointed, who filed their first report January 28th 1880, reporting as follows: — “According to said plan, a few properties fronting on the said Eidge avenue are somewhat damaged, but we the jury hesitate to report specifically the amount of those damages, because there lias been no evidence adduced before us of the establishment of a grade of the old Eidge avenue turnpike, within the limits of the said points prior to the summer of 1873, when the improvements' of Eidge avenue were made. The alleged! change of grade, in our opinion, consists of a change from, the grade of the old road-bed of the turnpike to that now established. There has been, therefore, in our opinion, no change of an established grade. And we, therefore, report that there has been no damage, 'for which the city of Philadelphia is responsible, to any of the property owners fronting on the said Eidge avenue, between the said Abbottsford avenue and School lane.”
    Exceptions filed by the petitioners to the report were sustained by the court, and the report was referred back to the jury “ to report specifically the damages done to the several properties fronting on Eidge avenue, by the change of grade from the grade of the old bed of the turnpike to that now established.”
    The supplemental report of the jury filed March 2nd 1881, set forth that, in pursuance of said order of court, they found that certain properties, therein specified, were damaged to the amount of $6,000.

      The city of Philadelphia filed, inter alia, the following exception to this supplemental report: — “ 29. Because the proceeding is without authority of law, inasmuch as there has been no such change of grade or grade regulation as entitles the petitioners or claimants to recover damages against the city of Philadelphia in this proceeding in the Court of Quarter Sessions.”
    By writing filed, it was admitted that the physical change of grade was actually made or accomplished on the 1st day of July, 1873.
    When the case was called for argument on the exceptions, on July 6th 1881, counsel for the city moved to quash the petition, and set aside and dismiss all the proceedings, “ it appearing by the record that the court is without jurisdiction, the petition not having been filed within one year either from the confirmation of the plan, or the physical change of grade.” This motion was refused.
    After argument on the exceptions, the court dismissed the same and confirmed the supplemental report of the jury. No opinion was filed. The city of Philadelphia thereupon took this writ of certiorari, assigning for error, inter alia, the sustaining of the petitioners’ exceptions to the first report of the jury ; the refusal of the motion to quash the petition ; and the dismissing of the city’s 29th exception to the supplemental report.

      William H. Addioks, assistant city solicitor (with him Charles E. Morgan, Jr., assistant city solicitor, and Wm. Nelson West, city solicitor), for the city of Philadelphia. —
    The petitioners claim to recover damages under the following clause of the 27th section of the Consolidation Act, of February 2d 1854, viz.: — “ And provided further, that in any alteration that may be made of the regulation of any portion of the city, in conformity with the provisions of this section, whereby damages may ensue to private property, compensation shall be made for such damages, to be ascertained and paid by law as in case of damages for opening streets.”
    The “regulation” referred to in this clause is a city grade regulation, fixed, confirmed and recorded according to law: In re Change of Grade Germantown Avenue, Leg. Intel!. (1880) 39. There was no such grade regulation of the old turnpike road. The artificial surface of that road was accidental and variable, according to the pleasure of the corporation,within the charter limit of four degrees from the horizontal line. It was riot in accordance with any regulation for city streets. Its height and gradients were not a matter of public record. The road was similar to other turnpike and country roads, existing before consolidation in the districts and townships within the county of Philadelphia, each having a different system. The purchase by the city of a turnpike franchise, does not constitute the establishment of a city grade, which can only be adopted in conformity with the process prescribed in the 27th section of the Act of 1854: In re Germantown Avenue, supra. The alleged change of grade was not a change, but a first establishment of grade. The case does not, therefore, come within the remedy for a change of grade provided by the act in question.
    But if this were otherwise, the petitioners are barred by lapse of time. The act of 1854 provides that “ compensation shall be made for such damages, to be ascertained and paid by law as in case of damages for opening streets.” The latter proceeding is under the Act of June 13th 1836 (P. L. 556), the limitation clause of which, in the 7th section, provides that the owner of land, through which a public road is opened, “ may within one year from the opening of the same, apply by petition to the Court of Quarter Sessions,” &c. This section applies to Philadelphia, so far as the right to damages is concerned. The practice only is modified by the 75th and following sections: Smedley v. Irwin, 1 P. F. Smith 449; In re Twenty-eighth Street, Leg. Int. 1881, 52. The jurisdiction of the Quarter Sessions in road cases being purely statutory, all the provisions of the statute must be complied with in order to give jurisdiction: Kroemer v. Commonwealth, 3 Binney 583 ; Church Road, 5 W. & S. 201; Liberty Alley, 8 Barr 382; In re Chestnut street, 5 W. N. C. 237. It has been frequently decided that the petition must be filed within one year from the time of the injury, and that a road jury cannot give damages for any injury done more than one year before the filing of the petition: in re State street, 1 Pearson 158 ; Lewistown Road, 8 Barr 109; Jarden v. Railroad Co., 3 'Whart. 510; Commonwealth v. McAllister, 2 Watts 190. The petition in this case not having been filed within one year from the injury complained of, the court had no jurisdiction, and our motion to quash should have been granted. The question of jurisdiction may be raised at any stage of the proceeding.

      E. M. Hunt (with him Vander slice, Stilts, I) ever, Haugh, McIntyre and MoKinlay), for the defendants in error. —
    Prior to consolidation, the turnpike roads connecting boroughs, districts, &c., were the most important roads in the county. Their charters prescribed their width, direction and grade, which the public in building were entitled to rely upon; and the city, when it took such roads by its right ot eminent domain, was bound by the grades as then established. When, subsequently, the city directed a “revision” of the grade of this turnpike, it was an admission that a legal grade already existed. Such grade was recognized by the act of March 11th 1850, P. L. 165. In Ridge Avenue Railway Co. v. The City, 10 Pliila. Rep. 37, the city, in opposing an application for an injunction to restrain it from changing the grade of Ridge avenue, defended on the ground that the complainants had an adequate remedy at law under this 27th section of the act of 1854, and the Court so held. The “ revision ” having been made for the sake of uniformity and the public good, individuals injured thereby should be compensated in damages, as provided by the act.
    The general road law of 1836, with its limitation of one year, does not apply to this case. By its terms, in several sections, it limits itself to roads laid out (not opened) according to its provisions : one of which was, that such road must be laid out by a jury of view and returned on a draft to the Quarter Sessions : but Ridge avenue was not so laid out: another was, that such road should not exceed fifty feet in width ; Ridge avenue is eighty feet. The Act applied only to country roads, where there wras no special system of road laws; it expressly excepted incorporated boroughs, and roads laid out under local and special Acts. Ridge avenue was laid out by a special Act, and this part of it was in the incorporated towuship of Penn, which had its own system of road laws, viz.: the same as the district of Spring Garden had under its old charter of 1832, P. L. 427. Therefore, this part of the present city never having been subject to the road law of 1836, and this street not being within the terms of the Act, the limitation therein does not apply. In 1873, when this change was made, “ damages for opening streets” w'ere “ ascertained” and are now ascertained under the provision Acts of April 21st 1855, Purd. Dig. 1287, pi. 124; May 13th 1856, Ibid. 1289, 1288, pi. 329-8; April 21st 1858, Ibid. 1289, pi. 130; April 1st 1864, Ibid. 1289, 1290, pi. 133-4-5. _
    _ Besides, the motion to quash was too late. The time for exceptions had long expired, and the Act of May 3d 1869, Purd. Dig. 1287, pi. 122, provides: “ no report shall be set aside unless in pursuance of some exception filed to the said report.” It is error to set aside a report on any ground not appearing in an exception duly filed: In re Spring Garden Street, 11 P. F. Smith 422.
   Mr. Justice Paxson

delivered the opinion of the court, February 20th 1882.

Before the exceptions were argued in the court below, the city moved to quash the proceedings for want of jurisdiction, the petition not having been filed within one year, either from the confirmation of the plan or the physical change of grade. This motion was denied, and forms the subject of the fifth assignment of error.

The seventh section of the general road law of June 13th 1836, P. L. 556, provides that the owner of any land through which a public road shall be opened as aforesaid, may, within one year from the opening of the same, apply by petition, to the Court of Quarter Sessions of the proper county, setting forth the injury which he or she may have sustained .thereby,- and thereupon, the said court shall appoint six disinterested persons to view the premises and assess the damages, if any, which such petitioner may have sustained.”

It was distinctly ruled in Lewistown Road, 8 Barr 109, following the principle in Commonwealth v. NcAllister, 2 Watts 190, that “ each lot-holder through whose lot the new street passed, must present his petition for damages within one year from the time his lot was thrown open; that the year mentioned in the Act commenced at the time each lot was thrown open, and not from the time when the whole street was finished and effectually opened for public use.”

From this it seems clear, that petitions for the assessment of road damages, under the Act of 1836, must be presented within one year from the time the land is taken for such purpose, and not afterwards. The section referred to is an Act of limitation.

. This brings us to the important question, does the case in hand come within the Act ? It was not a proceeding to open a street. On the contrary, it was a petition, on the part of certain property owners on Ridge avenue, for a jury to assess the damages sustained by them, by reason of a change of grade. By resolutions of councils approved October 1st 1870, and June 21th 1871, the Board of Surveyors were authorized to revise the lines and grades of the locality within which this portion of the Ridge Turnpike road (now Ridge avenue) was situated, and, pursuant to such authority, the lines and grade regulations for Ridge avenue were fixed and determined by the confirmation of Plan No. 163, on file in the Survey Department of the city of Philadelphia. Subsequently, in 1873, the city changed the roadway from an ordinary rural turnpike to a paved avenue or street, with cartway, gutters, curbing, and sidewalks, constructed in conformity to the grade regulations laid down upon plan No. 163. It appears from the record that the physical change of grade referred to, was actually made in the summer of 1873, and that the property owners, claiming damages for the injury resulting from said change, did not file their petition, or commence any proceeding, until the 21st of November 1878.

It was not alleged that there has been a change of any grade fixed by the Board of Surveyors or any municipal authority. It was conceded the only change was from the bed or grade of the old turnpike road to that established by .Plan No. 163.

Just here it is proper to say that section 8 of article XVI. of the constitution, has no application, for the reason that the grade was changed, and the rights and duties of the parties fixed prior to the adoption of that instrument. This is manifest, and was conceded upon the argument. The petitioners rest their case upon the 27th section of the Act of February 2d 1854, P. L. 37, known as the Consolidation Act, which, after providing for the appointment and organization of a Board of Surveys, for the purpose of the planning of the city, the building of bridges, the construction of sewers, and grading of highways, as councils may declare by ordinance, and settling disputes as to party lines, walls, &e., continues as follows: “ Provided, that nothing herein contained, shall alter or interfere with any survey or regulation, made or directed tobe made under the several laws of this commonwealth, of any portion of the county of Philadelphia, but the same shall be completed, or if already confirmed, shall remain unalterable, as therein provided, unless said alteration shall be ordered, by a resolution of councils, ..... upon public notice, previously given for the space of thirty days, in at least two of the daily newspapers of the said city, until otherwise provided for by ordinance. And provided further, that in any alteration that may be made of the regulation of any portion of the city, in conformity with the provisions of this section, whereby damages may ensue to private property, compensation shall be made for such damages, to be ascertained and paid by law as in case of damages for opening streets.”

Assuming the petitioners to come within the above Act, and that they are entitled to damages for the change of grade, it is clear such damages must be “ ascertained and paid by law as in case of damages for opening streets.” It is equally clear, that if the general road law of 1836 applies, the case is within the limitation of said act. as the petition for a jury to assess the damages was not presented until more than five years subsequent to the physical change of grade.

It was urged on behalf of the petitioners that the Act of 1836 does not apply, for various reasons, among which may be mentioned, 1. That the Act provides for the laying out, and not the opening of streets; that it was intended for country roads only, and not for the streets of a city or borough. 2. That the Act limits itself to roads fifty feet wide or less, whereas Ridge avenue is of the width of eighty feet. 3. That damages for opening streets in Philadelphia are now ascertained under subsequent Acts of Assembly.

In considering these various propositions, we must not lose sight of the distinction between the laying out of streets and the assessing of damages for opening of streets: In re Milford, 4 Barr 303, cited by petitioners, the proceeding was to view and ]ay out streets in an incorporated borough, which had already been laid out by competent authority or dedicated to public use by the original proprietor. In the opinion of the court it was said : “ The road before us, as it is called, consists of many parallel roads, and many more cross ones surrounding entire squares, and having many endings and beginnings. It is in fact, a dislocated fragment of the plan of an incorporated borough, whieh is the seat of justice of a county. And why should the road law be applied to streets and alleys which are already laid out by competent authority, and which, can gain no additional sanction from it ? The authority of the owner of a town plot, to dedicate his ground to public use, is as effective as that of the legislature.” The Act of 1836 not only applies to the laying out of roads, but it also expressly provides for assessing the damages to property owners for opening. Smedley v. Erwin, 1 P. F. S. 445, is an authority directly in point, that the Act of 1836 applies to the city of Philadelphia so far as the assessment of damages is concerned. Nor is there any force in the suggestion that the Act applies only to roads of fifty feet in width. It is true, the fifth section of the Act declares that “ the breadth of a public road laid out as aforesaid, shall not exceed fifty feet,” but this has no relation to the question of damages, and does not affect the limitation as to time contained in the seventh section.

It was said by Mr. Justice Strong, in Smedley v. Erwin, supra: “The 7th, 8th and 9th sections are operative in this city as fully as elsewhere, saving only the particulars in which alterations were made by the 76th, and four next following sections. Those alterations relate exclusively to the timé of presentation of petitions for assessments, to the mode of selecting the jurors for views, and to their qualifications. In all other respects there is no difference. No other difference was intended. The 1st section of the’ Act enacts that the Court of Quarter Sessions of every county of the commonwealth shall appoint viewers, to view the ground proposed, for a road, and make report of their proceedings to the respective court at the next term thereof, with a proviso that the provisions of the Act relative to the appointment of viewers to lay out roads and to assess damages shall not extend to the city and county of Philadelphia, thereinafter specially provided for. It is not the provision relative to the assessment of damages, but the provisions respecting the appointment of viewers, that are declared not to extend to the city and county of Philadelphia. If the 7th, 8th and 9th sections are not in force in Philadelphia, so far as they relate to the lands taken for public use, then the Act makes no provision for any assessment at all in the city.” There is nothing in subsequent legislation which even by implication takes away the limitation contained in the Act of 1836. While the Acts of 21st April 1855, P. L. 266; 13th of May 1856, P. L. 571; 21st April 1858, P. L. 386, and April 1st 1864, P. L. 206, have modified the road law of Philadelphia in many respects, especially in the manner of laying out and opening streets, they have not repealed the Act of 1836, in regard to the assessment of damages. Tims the Act of 1855 authorizes councils by ordinance to order any street that is upon the public plan of the city, to be opened upon giving three months notice to property owners ; whereupon any of the owners may forthwith petition the Court of Quarter Sessions for viewers to assess the damages. The Act further provides that security shall be given by the city before the ground shall be actually taken, and contains other matters not essential to the present discussion. The Act of 1856 contains an express recognition of the Act of 1836, as being in force in Philadelphia. It says : That whenever councils shall order- any street upon the plan of said city to be opened or widened, no damages, therefor, shall be paid, unless first assessed by a jury, and approved by the Court of Quarter Sessions, in accordance with the general road laws of the Commonwealth.” The Act of 1858 requires juries selected to assess damages for the opening, widening or vacating roads or streets in said city to ascertain, and report to the court first, what damages the parties claiming the same are entitled to, and second, to assess and apportion the same among and against such owners of land as shall be benefited by such opening, &o. The Act of 1864 authorizes juries to inquire as to advantages accruing to property owners by opening of streets, and provides for the assessing of such benefits, and the collection of the same by the city solicitor.

It was contended on the part of the petitioners, that in 1873, when this change of grade was made, and continuously to the present time, damages for opening streets in Philadelphia, have been, and are now, ascertained under the Acts of Assembly above referred to. This statement is true as far as it goes, yet the legislation referred to is incomplete in itself. It is plainly supplemental to the general road law. That is the superstructure upon which it all rests. No one could ascertain from the Acts last cited how many jurors were required to assess damages for the opening of a street, when or by whom they are to be appointed, or when they shall file their report. We regal'd it as clear that the general road law of 1836 is in force, and applies to the city of Philadelphia excepting in so far as it has been supplied and modified by subsequent legislation. I have looked it through with some care, and I am unable to find any repeal of that portion of the 7th section of the Act of 1836 which requires the appointment of a jury to assess the damages, to be made within one year from the opening of the street.

It was urged that the motion to quash was made too late, the time for filing exceptions having expired. This would be true if the court had jurisdiction. But it had not. Unless the petition is presented within one year, the court has no jurisdiction.

But if we are mistaken in all this, these proceedings cannot stand, for the reason that the case does not come within the 27th section of the consolidation Act, before referred to. I have already said the constitutional provision does not apply, and for this reason I have not referred to one or two recent, unreported cases which were decided under the constitution. It is at least probable the 27th section was introduced into the Consolidation Act in view of the decision of this Court in O’Connor v. The City of Pittsburg, where the city had changed its own grade, by means of which, a valuable property was seriously injured, without remedy to the owner. It was considered to be, and it undoubtedly was, a great hardship, when an owner had improved his property in accordance with a grade fixed by the city, to have it injured by a subsequent change of grade, and no remedy for such injury. The 27th section of the Act of 1854 was intended to give such remedy. But as none existed before the passage of the Act, we must limit it to such cases as come within its terms.

Prior to the Act of 1854, the present city of Philadelphia was composed of several distinct municipalities. Each had its special Acts, for the plotting, grading, regulation, and construction of streets, within its limits. There was no general plan, and no community of corporate interests. Each adopted such plans and regulations as specially suited its locality, and the special character of its municipal growth. The effect of the Act of consolidation, was to connect these outlying municipalities with the city of Philadelphia, and thus create one homogeneous corporate structure, co-extensive with the county limits. Each municipality had, prior, to the Act, its own street grades, and it was seen that to render these uniform, and to conform to any general plan for the enlarged city, would necessarily involve changes of grade in some localities. The 27th section, therefore, after providing for a Board of Surveyors, for the purpose, among other things, of making a general plan of the entire city, goes on to declare that nothing therein contained shall alter or interfere with any survey or regulation, made or directed by law to be made, of any portion of the county, but the same shall be completed, or if already confirmed, shall remain unalterable, unless such alteration shall be approved by councils. Then follows the provision, that if any alteration, shall be made, of any portion of the city, in conformity with the provisions of said section, “ whereby damages may ensue to private property, compensation shall be made for such damages, to be ascertained and paid by law, as in case of damages for opening streets.”

It is too plain for argument that this section refers only to a change of a grade previously established,by the city of Philadelphia, or by one of the municipalities referred to, prior to consolidation. It speaks of nothing else, and gives a remedy for nothing else. However meritorious the claim of the petitioners may be, they must show an Act of Assembly to sustain it, and they have not done so. The grade of Ilidge avenue, prior to the adoption of city Plan No. 163, was not established by the city or any of the municipalities referred to. In the first report of the jury they find that “ there has been no evidence adduced before us of the establishment of a grade of the old Nidge avenue turnpike, within the limits of the said points last named, prior to the summer of 1873, when the improvements of Nidge avenue were made.” Notwithstanding this, the court below sent the report back to the jury, with instructions to assess the damages. This, we think, was error. The first report should have been confirmed, and the petition dismissed. It does not come within the Act of 1854, and, in any event, it was filed too late.

The judgment is reversed, and the petition quashed at the costs of the petitioners.


source: Caselaw Access Project

license: Public Domain

text:
    In re Change of Grade of Germantown Avenue.
    1. Upon a certiorari to a road case, in the Court of Quarter Sessions, the opinion of that court sustaining or dismissing the exceptions filed to the report of the viewers constitutes no part of the record. Where, therefore, said opinion alone indicates the disposition made by the court of said exceptions, the Supreme Court will quash the certiorari, upon the ground that the reeord fails to disclose a judgment.
    2. By virtue of the provisions of the Act of May 3d 1869, Pamph. L. 1247, it is the duty of the Court of Quarter Sessions of Philadelphia county, in passing upon exceptions to the report of viewers in road cases, to specify which exceptions are sustained and which dismissed. If said court fail to do this, the Supreme Court will quash a writ of certiorari to the proceedings.
    3. Upon certiorari to a road case, the Supreme Court will only consider and review the jurisdiction of the court below and the regularity of the proceedings. The merits of the case will not be inquired into.
    4. The Supreme Court cannot, in such case, reverse the findings of the court below upon the facts, nor will it reverse the rulings upon the law where they are the logical deductions from the facts as found.

      January 27tli 1882.
    Before Siiarswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterkett and Green, Jj.
    Certiorari to the Court of Quarter Sessions of Philadelphia county: Of January Term 1882, No. 42»
    Petition of George Brandenstein, setting forth that a certain house and lot owned by him fronting on Germantown avenue, and bounded by Cayuga and Nineteenth streets, in the city of Philadelphia, had been damaged by a change of grade of said streets, made by the city authorities; and praying for a jury of view to assess his damages, as provided by the 27th section of the Consolidation Act of February 2d 1854.
    A jury was appointed, who reported “ that there was a change of grade regulation on Germamtown avenue where it is intersected by Nineteenth street and Cayuga streets, as shown by the official plan, used in evidenceand that the petitioner’s property was damaged by said change of grade regulation to the amount of $2,500, which sum the jury awarded to the petitioner.
    To this report, the city of Philadelphia, filed, inter alia, the following exceptions: (1) The jury erred in reporting that “ there was a change of grade regulation on Germantown avenue, where it is intersected by Nineteenth and Cayuga streets.” (2) The jury should have reported that the said alleged change ox grade was in reality the first establishment by the city of a grade regulation for Germantown avenue, between Cayuga and Nineteenth streets, and that there has been no change of grade regulation subsequent to said first establishment thereof. (3) Because the jury have awarded to George Brandenstein the sum of $2,500.
    The court, in an opinion filed by Elcock, J., ordered “ the award . of the jury to be set aside, and the petition dismissed.” The petitioner then took a writ of certiorari, which was quashed by the Supreme Court, Paxson, J., delivering the following opinion:—
    “ This was a certiorari to the Quarter Sessions of Philadelphia. The writ brings up nothing but the record, and, that fails to disclose a judgment in the court below. It is true in the concluding sentence of the opinion of the court, which is printed in the paper book of the plaintiff in error, occur these words: ‘ The award of the jury is set aside, and the petition dismissed.’ The opinion of the court is no part of the record, and were it otherwise, a judgment in the above form could not be sustained, under the decision in Delaware Avenue, 17 P. F. S. 309, where it was ruled that, under the Act of May 3d 1869, Pamph. L. 1247 (Roads in Philadelphia), the Quarter Sessions, in setting aside a report, must expressly state that it was set aside in pursuance of an exception sustained by the. court.

      “ The order there was, c report set aside,’ and it was reversed because it was not in conformity with the Act of Assembly. Since that Act, it is the duty of the Quarter Sessions of Philadelphia to specify which exceptions are sustained and which dismissed. This enables us to see, to some extent, upon what grounds the court below acted. For the reasons given, this writ must be quashed. A proper judgment can then be entered in the court below, upon which a new writ may be issued, if desired.”
    Writ quashed.
    The court below subsequently entered the following judgment :—
    “ And now, January 29th 1881, the record having been returned from the Supreme Court, it is ordered, adjudged, and decreed that the first, second and third exceptions of the city of Philadelphia be sustained, and the remaining exceptions be dismissed, and in pursuance thereof the report of the jury is set aside and petition dismissed.”
    The petitioner thereupon took this certiorari, and filed the following assignments of error:—
    1. The court below erred in setting aside the award of the jury, and in dismissing the petition.
    2. The court below erred in deciding that there was no change of survey and regulation of the lines or grade of Germantown avenue as contemplated by the 27th section, Act 1854, known as the Act of Consolidation, whereby a right accrued to the petitioner to proceed as in road cases for the recovery of damages.
    3. The court below erred in deciding that the Act of Incorporation of the Germantown and Perkiomen Turnpike Company did not authorize the company to establish grade for said roadbed, section 9, Act of Assembly, 1801, Act of Incorporation of said company.
    4. The court below erred in deciding that the revision of the lines and grades of Germantown avenue authorized by ordinance, approved .March 5th 1878, was not such a change of survey or regulations of one of the highways in the county of Philadelphia, made under a law of this Commonwealth as to give the petitioner wdio suffered damages to his private property, the right to compensation to be ascertained and paid as in the case of damages for opening streets.
    5. The court below erred in not confirming the award of the jury, and in not dismissing the exceptions filed by the city.

      John Roberts (George S. Graham with him), for the appellants. —
    The change of grade in question, was effected by an ordinance of councils “ to authorize the revision of the lines and grades of Germantown avenue this ordinance for a revision admits a former establishment of grade. The charter of the old turnpike directed the establishment of a certain grade, viz., “ so nearly level as in no place to rise or fall more than would in any place form an angle of four degrees.” When the city appropriated the turnpike, it adopted the then existing grade, as the city plans show, and the Consolidation Act of 1854 directs that any “ surveys or regulations made under the laws of this Commonwealth shall remain unalterable until otherwise provided for by ordinance.” The jury of view was therefore correct in reporting that there had been a “ change of grade regulation,” by which the petitioner was damaged, and the court erred in sustaining the exceptions to such report.

      W. H. Addicks, assistant city solicitor (with him Wm. Nelson West, city solicitor), for the appellee. —
    The purchase of the turnpike was not an establishment by the city of a grade regulation. This can only be legally done by the Board of Surveyors. They first established the grade regulation, in pursuance of the ordinance, which changed the old grade of the turnpike. There is a distinction between a physical grade in fact, and an authorized grade regulation. The Act of 1854 only provides for damages caused by a change of grade regulation, and not for injury caused by a change from the natural surface or gradé of a road bed to the grade fixed by a first establishment of grade regulation: In re Levering Street, 37 Leg. Int. 38.
    But the merits of the controversy cannot be reviewed on this certiorari, which only brings up the record, on which the only questions are those of jurisdiction, and regularity of the proceedings in the court below, neither of which are here impeached: Commonwealth v. Nathans, 5 Barr 124; Mifflin Twp. v. Elizabeth, 6 Harris 17; Kimber v. Schuylkill Co., 8 Harris 366; Silver v. Schuylkill Co., 8 Harris 369; Hughes v. Kline, 6 Casey 227; Qhase v. Miller, 5 Wright 403; Appeal of the Commissioners of Northampton County, 7 P. F. Smith 452.
   Mr. Justice Paxson

delivered the opinion of the court, February 20th 1882.

This case contains no assignment of error, either to the jurisdiction of the court or the regularity of the proceedings. As nothing else can be reviewed upon a certiorari, there is no room for a discussion of the case. We have said so often that we cannot consider the merits upon such a proceeding, that it is quite unnecessary to repeat it here. The assignments of error nearly all relate to qnestions of fact, and there is nothing upon the record to show that the court below erred in regard to them. The court set aside the award of the jury, and dismissed the petition, mainly upon the ground that there was no change of survey and regulation, of the lines or grade, of Germantown avenue as contemplated by the 27th section of the Act of 1854, known as the Consolidation Act. If the fact be as found by the court, the ruling was clearly right. As we cannot upon a certiorari reverse the findings of the learned judge upon the facts, neither can we reverse his rnlings upon the law, where they are the logical deductions from the facts as found.

Judgment affirmed.


author: Mr. J ustice Gordon

text:
    Milne’s Appeal.
    1. The Orphans’ Courts of this Commonwealth have power to revise and correct their former adjudications, if in those adjudications they discover palpable mistake, produced either by their own inadvertence or by the blunder of the parties.
    2. Upon the audit of the account of the administrators of a decedent, a certain distributive share was awarded to a son of the decedent, and an adjudication to that effect was filed. Through inadvertence or mistake, the existence of certain debts due by the son to the decedent’s estate was not called to the attention of the court. Subsequently the administrators presented a petition, setting forth the mistake and praying for a readjudieation, which the court granted. Held, that this was not error.
    3. In the distribution of a decedent’s estate in the Orphans’ Court, the indebtedness of a distributee to the decedent, against which the statute of limitations has run at the time of decedent’s death, cannot be set off as against such distributee’s share in the estate.

      4. The statute of limitations begins to run on a note payable on demand, from its date, and not from the lime of demand.
    5. Taylor v. Witman, 3 Grant Cases 138, followed. Girard Bank v. Penn Township Bank, 3 Wright 92, and Finkbone’s Appeal, 5 Norris 308, distinguished.
    6. Where a debt is proved in bankruptcy, the running of the statute of limitations against it is not suspended by the operation of the United States bankrupt act. Wbere, therefore, said debt is set up in another court, cither as ground of recovery or ground of set-off, the statute of limitations is as applicable to it as though it had not been proved in bankruptcy.

      7. The act of Congress of June 22d 1874, section 7, 18 U. 8. Stat. at Large 179, providing that a creditor proving his claim against a bankrupt shall not be held to have waived his right of action against such bankrupt where a discharge has been refused or the proceedings have determined without a discharge, has no application to cases where there has been no final termination of the proceedings in bankruptcy.

      January 27th 1882.
    Before Siiarswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Appeal from the Orphans’ Court of Philadelphia County: Of January Term 1882, No. 40.
    Appeal of Francis F. Milne, from a decree in the matter of the distribution of the estate of Archimedes J. Bucknor, Sr. The facts were as follows :—
    On March 19th 1878, Francis F. Milne, being the holder of two judgments against A. J. Bucknor, Jr., a son of A. J. Buck-nor, Sr., deceased, amounting to $11,556.76, issued writs of attachment execution thereon, in the court of Common Pleas No. 2, summoning as garnishee William A. James, administrator of the estate of the said A. J. Bucknor, Sr., deceased.
    On September 30fch 1878, William A. James, administrator, as aforesaid, filed his first account, showing a balance for distribution of $155,061.74; and on February 24th 1879, lie filed his second account, showing a balance for distribution of $24,800.19.
    A. J. Bucknor, Jr., died November 2nd 1878.
    Upon the adjudication of said first account, the Orphans’ Court found that the distributive share of A. J. Bucknor, Jr., deceased, was $14,767.69, which was awarded to his administrator. The pending suits in attachment execution having been brought to the notice of the court, the adjudication directed : “ The share of'A. J. Bucknor, Jr., deceased, will be retained by accountant until the final determination of the attachments execution before mentioned.”
    Upon the adjudication of the said second account, the Orphans’ Court awarded : To William II. Bucknor, administrator of A. J. Bucknor, Jr., deceased, $2,361.93.”
    Both said adjudications were confirmed sec. reg., no exceptions being filed thereto.
    On June 21st 1879, the said William A. James, administrator of the estate of A. J. Bucknor, Sr., deceased, filed petitions for a review of the foregoing adjudications, averring:—
    “That when the auditing judge, Hon. William B. Hanna, P. J., made said adjudications no question was passed upon by this court,' in regard to said share of A. J. Bucknor, Jr., deceased, or any part of it, but, owing to the said attachments, the amount of his distributive share was simply designated, without considering any of the questions in relation to the amount that said Archimedes J. Bucknor, Jr., would be entitled to receive after deducting any indebtedness which he owed his father at the time of his death. All questions in regard to the same were to be left to await the determination of said attachment suits then pending, and the adjudication was not in any way to conclude your petitioner, but all questions in relation to said interest of A. J. Bueknor, Jr., were to be considered, and determined thereafter.”
    That said A. J. Bueknor, Jr., was in 1ns life-time indebted to the estate of A. J. Buclmor, Sr., on two separate debts, together exceeding the amount of his said distributive shares, one being upon a due-bill, found among the papers of A. J. Bueknor, Sr., as follows:
    “ Philadelphia, January 1st 1867.
    “ $10,000.
    “ Due A. J. Bueknor, Esq., on demand, Ten Thousand Dollars, value received.
    (Signed) “A. J. Bucknob, Jr.”
    And the other indebtness arose thusOn October 14tli 1870, the firm of Bueknor, McOammon & Co., of which A. J. Bueknor, Jr., was a member, filed their petition in bankruptcy, and in proceedings thereon A. J. Buclmor, Sr., a creditor of said firm for money loaned, proved his claim for $13,203.39. No discharge was applied for by said bankrupts, and no order was made discharging them.
    The petitioner alleged that in the said pending attachment suits in the Common Pleas, the said adjudications are conclusive as to the amount of the distributive share due to A. J. Bueknor, Jr., or his estate, and that no set-off can be set up therein.
    The petition therefore prayed that said adjudications be opened and reviewed, so that the question of indebtedness by A. J. Bueknor, Jr., to his father’s estate may be ascertained, and the same be set off against his distributive share therein.
    To this petition the administrator of A. J. Bueknor, Jr., deceased, filed an answer admitting the facts as alleged.
    Francis F. Milne, as attaching creditor, demurred to the petition, on the grounds : (1) That the petition does not allege any error of law or fact in the adjudications ; nor that any new matter has since arisen or been discovered. (2) That the indebtedness of A. J. Bueknor, Jr., sought to be set off, is barred by the statute of limitations. (3) Is is not alleged that the estate of A. J. Buclmor, Sr., does not comprise real estate or other property out of which the indebtedness, if valid, may be retained.
    After argument, the court, on October 16th 1879, entered the following decree: “ That as the question or questions in regard to the amount of the distributive share which said A. J. Bueknor, Jr., deceased, or his representative may be entitled to receive, after deducting any sot-oil or advancements which are claimed to be set off against or deducted from the same, were not considered or determined by this court in making the adjudications in the estate of A. J. Bucknor, Sr., deceased, and it was intended that said question or questions should be settled and determined in the attachment suits, pending in the Court of Common Pleas No. 2, in and for the city and county of Philadelphia, and referred to in said petition — it is ordered that the adjudication be modified as prayed for, and that the sum of $14,67.79 in the first adjudication is simply the amount calculated, and is not the balance that would remain after deducting set-offs and advancements; that said questions of set-off and advancement, and whether there was any balance after deducting such set-offs and advancements were not determined by this court.
    “ It is further ordered that said adjudication is not conclusive as to the amount which said A. J. Bucknor, Jr., deceased, or his representatives are entitled to receive, but that whether there is a set-off or advancement, and if so, the amount thereof, and whether there is any balance remaining after deducting the same, are left to be determined in said attachment suits.”
    On October 18th 1880, the issues in the attachment suits in the Common Pleas were tried and resulted in a verdict for the plaintiff for $6,839.40, and that the garnishee held sufficient funds of defendant to pay the judgment — subject, however to certain questions of law reserved. No final judgment was entered in said attachment suits.
    On January 29th 1881, the Orphans5 Court made an order recommitting both the said accounts of William A. James, administrator of A. J. Bucknor, Sr., deceased, to. the auditing judge for readjudication, before whom William A. James, administrator, claimed to set off against the share of A. J. Buck-nor, Jr., the indebtedness due by him to the estate of A. J. Buck-nor, Sr., upon the said due-bill for $10,000, and that due by said A. J. Bucknor, Jr., as a member of the firm of Bucknor, McOammon & Co. upon the claim which had been proved in bankruptcy, as above set forth. Francis F. Milne objected to these claims of set-off, on the ground that both claims were barred by the statute of limitations. The objection was not sustained, and the auditing judge held that as the total indebtedness of A. J. Bucknor, Jr., exceeded the amount of his distributive share, his estate was not entitled to share in the amended distribution.
    Exceptions filed by Milne to this readjudieation were dismissed by the court. Hanna, P. J., saying; in an opinion filed : “ That the running of the statute is tolled by the pendeficy of the proceedings in bankruptcy, we think is clearly shown by our brother Penrose, in Bucknor’s Estate, 36 Legal Intell. 393.

      “ And it is now settled, in the case of an instrument for the payment of money payable on demand, the statute does not begin to run until the right of action accrues, and that is, when the demand is made : Finkbone’s Appeal, 5 Norris, 368, overruling Laforge v. Jayne, 9 Barr 410. The commencement of a suit at law, or the presentation of a claim upon such an instrument in the Orphans’.Court, or before an auditor appointed by the court, is a sufficient demand. And if no prior demand for payment be proved, interest will then only begin to run, unless otherwise expressed in the instrument itself.
    “We accordingly dismiss the exceptions and confirm the read-judications.”
    Francis F. Milne thereupon took this appeal, assigning for error, the granting of the petitiqn for review, and the decree dismissing his exceptions to the readjudication, and confirming the same.

      M. Arnold, for the appellant. —
    The petition for review did not set up any new matter discovered since the adjudications were made ; nor did it aver that which is essential to such a petition, that there had been no payments made in pursuance of said adjudication : The Orphans’ Court has no jurisdiction upon a petition for-a review under the Act of 1840, to vacate a decree confirming an auditor’s report distributing a fund, after actual payment to the distributees in accordance with the decree: Lehr’s Appeal, 10 W. N. C. 282; Cramp’s Appeal, 31 P. F. Smith 90. In point of fact the amount awarded to A. J. Bucknor, Jr.’s administrator by the adjudication on the second account, had been paid to him before the petition for review was filed, and that payment was past recall. Yet it is said that it has been paid back, and thus wrong done to the creditors of A. J. Bucknor, Jr.
    Proceedings in bankruptcy do not suspend the running of the statute of limitations, as against new acquisitions of the bankrupt. The bankrupt Act did not prohibit the commencement of an action, but only the prosecution of it to judgment: Sec. 5106 Rev. Stat. IT. S.; Richardson v. Thomas, 13 Gray, 381; Roscoe v. Hale, 7 Gray, 274; Heckert’s Appeal, 12 Harris 487. In re Eldridge, 12 Bank Reg. 540; Christy v. Flemington, 10 Barr 129; and if no discharge is granted or applied for within one year from the adjudication of bankruptcy, the stay becomes inoperative and creditors may obtain leave to proceed to judgment in the state courts.
    In the case of a note payable on demand, the statute of limitations begins to run from its date, and no demand of payment is necessary before suit brought: Taylor’s Adminr. v. Wit-man’s Adminr., 3 Grant 138 ; Byles on Bills, 273, and notes.
    The court below confounded a due-bill payable on demand with a deposit of money to be returned when demanded. The one is a matter of contract merely, the other is a trust arising out of contract, and the statute does not run in such cases until demand is made : Girard Bank v. Bank of Penn Township, 3 Wright 92; Einkbone’s'Appeal, 5 Norris 368.

      Samuel Gustine Thompson, for the appellee. —
    The statute of limitations operates ■ only on the remedy, it does not extinguish the debt. Hence, while a creditor may not sue, after six years, to recover a debt, yet where the creditor subsequently has it in his power to set off the amount of the debt, he may do so, such right to retain not being affected by the statute. The statute does not run against proceedings in the Orphans’ Court to recover a distributive share, and where the distributee is indebted to the estate, the administrator has the right to deduct or retain the indebtedness out of the share: Spears v. Hartly, 3 Espinasse 81; Thompson’s Appeal, 6 Wr. 345 ; 2 Williams on Executors, 5th ed. 1174. It is but equitable that the distributee, having by nonpayment of his indebtedness diminished the assets of the decedents’ estate pro tanto, should not take anything out of the estate until he makes good what he owes it. “ He must acquit himself of his indebtedness before he can receive any bounty out of the assets.” Smith v. Smith, 7 Jurist, N. S. 1140.
    The bankruptcy proceedings suspended the running of the statute: Oollester v. Hailey, 6 Gray 519; Richardson v. Thomas, 13 Gray 381; Hanger v. Abbott, 6 Wall. 532 ; In re Eldridge, 12 Bank. Reg. 542; Blumensteil on Bankruptcy 240.
    The due-bill was payable on demand, and, until demand, was not due, and the statute did not begin to run : Einkbone’s Appeal, 5 Norris 368; Laforge v. Jayne, 9 Barr 410; Cod-man v. Rogers, 10 Pick. 112.
    The Orphans’ Court had ample power, outside the Act of 1840, to review its adjudication and make it conform to the justice of the case. No injury was done to the appellant, as his attachment bound only the interest of A. J. Bucknor, Jr., in his father’s estate, subject to his indebtedness thereto; and the appellant acquired no additional rights by a pro forma decree, in a proceeding in the Orphans’ Court to which he was not a party, which merely ascertained the nominal amount of A. J. Bucknor, Jr.’s distributive share, without considering the question of his indebtedness. The appellant stands in the shoes of his judgment creditor, A. J. Bucknor, Jr., and the latter, or his administrator, had no right to object, and in fact did not object, to the review of the adjudication for the purpose of ascertaining the true amount, if any, to which he was entitled : George’s" Appeal, 2 Jones 260; Bishop’s Appeal, 2 Casey 470; Wlielen’s Appeal, 20 P. E. S. 410 ; Metz’s Appeal, 11 S. & R. 204 ; Strong v.
      Bass, 11 Casey, 333 ; Springer’s Appeal, 5 Casey 210 ; Wallace v. Keyser, 1 P. F. S. 493 ; Bouslougli v. Bouslougli, 18 P. F. S. 495.
   Mr. J ustice Gordon

delivered tbe opinion of the court, February 20th 1882.

The appellant, Fz'ancis F. Milne, is a creditor of A. J. Bucknor, Jr., and on the 2ist of January 1878, levied two writs of attachment on the distributive shares of the debtor in the hands of William A. J ames, administrator of the estate of A. J. Bucknor, Sr., and it is thus that Milne becomes interested in the distribution of this estate, and in the decree made by the court below. On settlements of the accounts of the administrator, the last one audited January 21st 1879, the distributive shares of the younger Bucknor were found to be $17,129.72, and so adjudged. At the time of the death of A. J. Bucknor, Sr., which occurred December 13th 1877, he held two several claims against his son; one a due-bill, payable on demand, for $10,000, dated Januazy 1st 1867, the other a claizn against the fizan of Bzzclmor, MCcamzzzazi & Co., made up of a note for $3,895.46, due October 5th 1870, and azi accouizt for money loaned, in the suzn of $9,807.93, dzze Septeznber 12th of the sazne year. This finn went into bazzkraptcy, October 14th 1870, frozrz which, as yet, there has been no dischaz’ge, and the claizn above stated was, aznozig others, duly proved. Ozi the settleznents izz the Orphans’ Court, through sozne inadvertence or mistake, the effect of these claims, as off-sets to the distz-ibzztive shares of the younger Buckzzoz’, was zzot passed upon, and on a petition of tlze adznizzistratoz’, dated June 21st 1879, setting forth this? mistake, which is not deziied, the court opened its forzner decrees and proceeded to a readjudication. To both the above mezztiozzed claizrzs against A. J. Buelmor, Jr., the appellant izztez’posed the plea of the statzzte of limitations, which was overruled by the Orphans’ Court, and the set-off as claizned by the adzziiizistz-ator was allowed. We have, tlzez’efore, two pz’izzcipal questions presezzted for our eozzsideration : — The power of the Orphans’ Court to open and correct its deez*ee, and the effect of the statute of liznitatiorzs upozi the claizns of the estate agaiizst A. J. Bucknor, Jr. As to the first qziestiozz, we answer it by sziying that we have zzo doubt about the power of the Orplzazzs’ Court to revise and cozuect its forzner adjudications, if izz those adjudications it discovez’ed a palpable mistake, produced either by its owzz inadvertence or by tlze blzmder of tlze parties. A sense of fair dealizzg and justice wozzld bo authority enough, izz the absence of any other, for so holding. Nevertheless, other azithoz-ity will be fouzid, and that diz’eetly in point, in George’s Ap., 2 Jo. 260, where the subject is so fully discussed, that further argument from us is unnecessary. This out of the way, next in order comes the question involving the statute of limitations.

If this statute is operative under the circumstances of this case, then both the claims above referred to are barred thereby, and the appellant is entitled to a reversal of the decree of the court below. But, as we have seen, if it is not operative it is not for the want of time, for the due-bill as well as the claim against Bucknor, McCammon & Co., were more than six years old at the time of the death of the elder Bucknor. But it is urged that the statute does not apply to a distribution in the Orphans’ Court, where there is an exercise of the right to retain from a distributee’s share, his indebtedness to the estate.

To support a doctrine such as this, nothing has been produced from our own books but the dictum of Mr. Justice Bead in Thompson’s Ap., 6 Wr. 345, and that is based solely on English authorities. On the other hand the contrary was held in the recent case of Reed v. Marshall, 9 Nor. 345, where on a suit for a legacy an attempt was made to set off a claim of the estate against the legatee, which had been barred by the statute prior to the death of the decedent.

Nor is the attempted distinction between equitable and common law proceedings, as respects the statute of limitations, well founded. As was said in Hoch’s Appeal, 9 Harris 280, a case where the Orphans’ Court, on objection of a legatee, refused to allow an executor to retain a debt due himself which was barred by the statute in the life of the testator, a court of equity will not pass upon a claim bad at law. Neither has the argument for a contrary doctrine a sound premise. It is urged that the statute does not pay the debt; that it only operates on the remedy.

It is true that the statute operates only upon the remedy, or action for the collection of the debt, but it thus operates because of the presumption that the claim has been paid or otherwise extinguished, if its collection has not been insisted od within six years, and that, therefore, it would be inequitable, after that time, to compel its payment. Hanger v. Abbott, 6 Wall. 538.

Again, the court below thought that as the ten thousand dollar claim was a due-bill, payable on demand, the statute did not commence to run from its date, but only after demand made. This was a mistake. Taylor v. Whitman, 3 Gr. 138, holds that the statute begins to run, on a note payable on demand, from its date, and that no demand is necessary before suit brought. The cases of the Girard Bank v. The Penn. Township Bank, 3 Wr. 92, and Finkbone’s Appeal, 5 Nor. 368 are not in point. Those were suits for the recovery of deposits, and tbe contracts were in the nature of bailments for safe keeping ; moreover, in the case last named, it was expressly said that the obligation sued upon was not in the nature of a due-bill but that it had rather the character of a deposit.

As to the claim against Bucknor, McCammon & Oo., we'cannot agree with the court below that the running of the statute was suspended by the operation of the United States Bankrupt Act. The probate of the claim, under that Act, is like the prosecution of any other suit; if it is successful all is well and the account is secure, but if not, if the creditor is in the end obliged to resort to a new process in the state courts for the recovery of his debt, we cannot see upon that principal, in order to avoid the running of the statute of limitations, he can count out the time consumed by his first abortive attempt. He is not compelled to prove his claim ; but if ho does, it is a voluntary surrender of it, and in this it is altogether unlike those cases where a condition of war, as in Hanger v. Abbott, supra, or public policy, as in Hutchinson v. The Bank, 5 Wr. 42, leaves the creditor without remedy. But under such circumstances his will is not consulted; the courts are closed against him, hence, of necessity, the running of the statute is suspended until the public emergency has passed, and he is again clothed with the power of asserting his rights.

In the case now being considered, Bucknor had two methods of redress presented for his consideration and acceptance; he might prove his claim in the bankrupt court, or he might sue in the state court. If he adopted the first method he voluntarily abandoned all other remedies, and made an absolute surrender of his claim, and it is only by virtue of the Act of Congress of June 22d 1874, that ho could be restored to his former condition in case a discharge was refused to the bankrupt, or the proceedings were determined without a discharge. Now Bucknor’s claim against the firm of which his son was a member, was proved some seven years before his death, and had there been no unwonted delay a discharge would have been had long before the date of his decease; but in that* event, the indebtedness now sought to be used as an off-set would have been fully cancelled, and the use of it as now intended, against the after-acquired estate of the younger Bucknor, would have been out of the question. But as yet there has been no discharge, neither have the proceedings in bankruptcy been determined without a discharge, hence, the act of 1874 does not apply to the claim in controversy, and it may be that it never will so apply. How then can this surrendered claim be interposed as a set-off ? or must the distribution await indefinitely for the happening of a contingency, now rendered exceedingly remote by tbe death of both the principal parties 2 We think it will not subserve the purposes of either law or equity thus to suspend the running of the statute on the mere expectation of an event that mjiy never come to pass.

If, however, the second method were adopted, the bar of the statute would be effectually prevented, and the creditor might prosecute his claim to judgment, subject only to such delay as might result from the interposition of the court having jurisdiction of the proceedings in bankruptcy.

"We conclude, then, that the. delay in this case having arisen from no legal or political necessity, but from the voluntary act of the creditor, the bar of the statute is effective to defeat the appellee’s claim.

The decree of the court below is now reversed and set aside, and the former adjudications restored and affirmed at the costs of the appellee.


author: Mr. Justice Sterrett

text:
    Camden & Atlantic R. R. Co. versus Hoosey.
    1. A passenger in an excursion train was unable to find a seat, owing to the crowded condition of the cars. Although there was standing-room inside, he stepped outside of a car while the train was in rapid motion, and placed himself on or near the edge of the platform, with his back against the window, holding on by an iron rail fixed to the car. In this position he rode for some minutes, when a jolt occurred, which threw him. to the ground, and inflicted an injury upou him. Suit having been brought by him against the railroad company, to recover damages for the injury done him, — Held, that he had been guilty of such contributory negligence as to preclude his right of recovery, and that the court should have so instructed the jury.
    2. Semble, that as a general rule, and under ordinary circumstances, it is the duty of a railroad company to provide every passenger with a seat, and that if a passenger, exercising reasonable care and prudence, is injured in consequence of the company’s neglect in this rega.-d, the latter must respond in damages.
    January 27th 1882.
    Before Sharswood, C. J., Merque, Gordon, Paxson, Trunket, Sterrett and Green, JJ.
    Error to the Court of Common Pleas No. 1, of Philadelphia county: Of July Term 1881, No 93.
    Case, by John Hoosey, against the Camden and Atlantic Railroad Company, to recover damages for personal injuries suffered by the plaintiff, caused, as alleged, by the negligence of the defendant company.
    On the trial, before Pierce, J., the facts appeared as follows : — On August 26th 1878, the plaintiff, a tavern-keeper, joined in an excursion to Atlantic City gotten up by the St. Ann’s Temporáneo Society. The society made terms with the railroad company, and sold excursion tickets for its own benefit. The excursion train consisted of twenty cars, which afforded room, on the down trip, for all the passengers to be seated. On the return trip the train started from Atlantic City about six o’clock n. m. About ten minutes before it started the plaintiff got on the train on the next to the rear car; he looked in the rear car,'and seeing that it was over-crowded, and people were coming out from it, he walked through the train to the forward car, and found the entire train over-crowded and no seats vacant. After remaining standing in the front car for some time, he proceeded to walk back through the cars, the train being then in rapid motion. When he had passed through about two thirds of the cars, all over-crowded so that he was obliged to push through people standing in. the aisles and on the platforms, he stopped on the rear platform of a car, holding on to a railing under the window, the train being still in rapid motion. The plaintiff’s testimony at this point was as follows; “ I stopped to let people pass who were coming in the opposite direction to me; there were many people coming in the opposite direction; I stopped on the platform to let them get into the car; must have been there one or two minutes before I got a chance to go through; I stood one side outside on the platform to let them get into the car; I had been standing there one or two minutes; the train got a jerk of some kind and somebody struck mo on the shoulder and staggered me; then I made a grab with both bands and missed with my right and caught with my left; then ] fell down, and the train was going so fast that I fell between the platforms or dashers ; I called for help; stop the train, I hollered ; a young man caught hold of me; it was John Bannon; he tried to pull me on; I could not tell what he done, I was so excited; I must have held on for half a mile or more; may be a minute and a half or a little over ; Bannon was holding on all this time; I finally let go; could hold on no longer; I fell to the ground.”
    The accident took place near Hammonton, about half way to Philadelphia. One, of the passengers on the platform applied the brake and another pulled the bell-rope, which broke, but the train continued on its journey.
    The plaintiff was found lying near the track severely injured, though not unconscious, by two residents of the neighborhood, who procured a wagon and took him to Hammonton, where his arm was amputated by a surgeon. The plaintiff admitted that he had taken several drinks during the day at Atlantic City, and two clergymen, who had seen him on the train shortly before the accident, testified that they thought from his appearance he had been drinking, but was not drunk. The men, who found him after the accident, testified, however, that from his appearance, manner, language and from the smell of liquor they had no doubt he was intoxicated.
    It was in evidence that the rules of the company forbade passengers from standing on the platforms or passing from caito car while the train was in motion, and that notices to that effect were posted inside the cars and outside on the doors.
    The plaintiff presented, inter alia, the following points:—
    (1) If the jury find from the evidence that the plaintiff was a passenger upon the cars of the defendants, they were bound to provide him with sufficient accommodation and to carry him in safety, and the failure to provide such sufficient accommodation was negligence on the part of the railroad company. Answer. I affirm.
    (7) Even if the jury should find from the evidence that prior to the accident the plaintiff had been drinking, unless such drinking had rendered the plaintiff unable and incompetent to conduct himself as an ordinarily prudent man would have conducted himself under similar circumstances, and thus caused or contributed to the accident, the plaintiff is entitled to recover. Answer. 1 affirm, if there was no contributory negligence on his part, and the injury was caused by the negligence of the defendant.
    The defendant presented, inter alia, the following points:—
    (3) That apart from any rule or notice upon the subject, it is negligence in a man of full age to stand upon or cross a platform of a car in rapid motion upon a steam railroad. Answer. I affirm; unless compelled by circumstances to do so.
    (5) That if the jury find from the evidence that the accident to the plaintiff would not have occurred if he had not been standing upon the platform, he is chargeable with contributory negligence, and therefore cannot recover. Answer. Declined,, as stated, leaving to the jury to say whether, under the circumstances there was contributory negligence on the part of plaintiff.
    (7) That even if .a search for a seat were the real purpose of the plaintiff in going out upon the platform, and even if it were not negligence for him to have crossed from car to ear for that purpose, yet if the jury believe from the evidence that he lingered upon the platform instead of immediately crossing, the verdict should be for the defendant. Answer. 1 qualify this, so as it will read his real “ and only” purpose; and affirm, unless compelled thereto by circumstances.
    (9) That' the evidence shows negligence on the part of plaintiff which contributed to produce the injury complained of, and therefore he cannot recover. Answer. I decline. It is for tlie jury to determine if there was any contributory negligence on the part of plaintiff.
    Verdict for the plaintiff for $2,000 and judgment thereon. The defendant, thereupon, took this writ of error, assigning for error, inter alia, the answers to the above points.

      Henry II. Freeman and George M. Dallas, for the plaintiff in error. —
    -It is not the duty of a railroad company absolutely and under all circumstances to provide seats for all passengers. Certain contingencies may render this an impossibility. Their duty is fulfilled if, with reference to existing circumstances, they use due skill and care in the employment of the facilities at their command. The general duty to provide sufficient accommodation rests on a different basis from that to provide safe means of transport. The circumstances here were exceptional. The company supplied an excursion train for a round trip,with ample seat accommodation for members of the excursion, yet the judge, in affirming the plaintiff’s first point, erroneously instructed the jury that it was negligence not to have provided sufficient accomodations to meet an unanticipated and unauthorized increase of numbers upon the return trip: Meier v. Railroad Co., 14 P. F. Smith 225 ; 2 Redfield on Railways 218; Oxlade v. Railway Company, 1 Com. B. N. S. 87 Eng. Com. L. Rep. 454.
    But the proximate cause of the accident was the plaintiff’s contributory negligence in placing himself in a position of peril contrary to the known regulations of the company. Even if the company had failed in duty in not providing him a seat, he was not justified in assuming an unnecessary hazard, and charging the results of it on the company. He should have appealed to the law for redress : Siner v. R. R. Co., 37 Law J. Ex. 98 ; Lucas v. R. R. Co., 6 Gray 64; Saunders on Negligence, 25-28 ; Stubley v. R. R. Co., Law Rep. 1 Exc. 13 ; Hagan v. R. R. Co., 10 W. N. C. 360. This was not the case of a passenger exposing himself to one danger by trying to avoid another. No urgent necessity required him to pass from car to car, much less to remain standing on the platform. He could not even hope to remedy his inconvenience, as he testified that he had already passed through the train and found all the cars crowded. His acts clearly amounted to contributory negligence which caused the accident, and the court should have affirmed our ninth, point and have directed a verdict for the defendant: 8 Am. Law Rep. N. S. tit. “ Negligence ;” Gosliorn v. Smith, 11 Norris 435; Baker v. Fehr, 10 YV. N. O. 57; R. R. Co. v. Armstrong, 2 P. F. 8m. 282; R. R. Co. v. Yerger, 23 P. F. Sm. 121; R. R. Co. v. McElwee, 17 P. F. Sm. 315 ; R. R. Co.v.
      McClurg, 6 P. F. Sm. 294, 298 ; R. R. Co. v. Aspel, 11 BL 147; Lewis v. Balt. & Ohio R. R., 13 Amer. Law Reg. N. S. 285.
    The requirements of care on the part of passengers on steam cars are more stringent than on street horse cars: Railway Co. v. Walling, 9 W. N. C. 470; Mecsel v. Railway Co., 8 Alíen 234; Lynam v. Railway Co., 114 Mass. 83.

      Edward A. Anderson and Francis E. Brewster {John H. Fow with them), for the defendant in error. —
    There is no doubt that over-crowding a railway train, whereby injury happens to a passenger which would not otherwise have happened, is negligence on the part of the company : Wharton' on Negligence § 64. The negligence was aggravated in this case, where the company permitted a horde of strangers to take passage upon a train furnished and intended for the limited number comprising the special excursion.
    [Sharswood C. J. — Is-there any evidence that the railroad company sold additional tickets on the up train ?]
    No direct evidence, but it was in evidence that there was sufficient seat room going down, and that the society settled with the railroad company after the down trip ; and it follows, as an irresistible inference, that tlie company sold additional tickets on the up trip. It is a presumption of law that all persons on a railroad' train not in the employ of the company, are passengers who have paid a consideration : Creed v. R. R. Co., 5 Norris 139. Under the circumstances, the plaintiff was not guilty of contributory negligence. This is established by the following authorities: “ It is not necessarily negligence for a passenger to ride upon the platform of a car. It certainly is not improper for him to do so if he cannot find a seat inside, and he would probably be justified in doing so if any nuisance were allowed inside the car, as drunken or obscene passengers, or quarrelling, or even smoking, if it wrere offensive to him:” Sherman 6 Redfield on Negligence § 284 ; Meesel v. R. R. Co., 8 Allen 234; Marquette v. R. R. Co., 33 Iowa 57Ó.
    Passengers are not to be deemed guilty of negligence for standing on platforms of cars in motion when there are no vacant seats within the cars: Willis v. Long Island R. R., 34 N. Y. 682.
    If the plaintiff, in looking for a seat, took only such risks as, under the same circumstaces, a prudent man would take, he was not guilty of contributory negligence : Sherman & Redfield on Negligence, § 282.
    A railroad company may not herd, its passengers like cattle in crowded cars and then claim that the efforts of the passengers to find a more comfortable or tolerable position is such contributory negligence as will relieve it of liability. It has been held that even whore a statnte forbids a passenger to stand upon the platform, if the company’s negligence force him there, he is not responsible, and the statute does not operate: Sherman and Redfield on Negligence § 284; Clark v. Eighth Avenue It. It. Co., 32 Barb. 657; Willis v. Long Island It. It. Go., supra. The questions of negligence and contributory negligence were properly submitted to the jury, and their verdict is conclusive: Stout v. It. It. Co., 17 Wallace 657; It. It. Co. v. Collarn, 73 Ind. 269; Leishman v. R. R. Co., 23 Law Times 712.
   Mr. Justice Sterrett

delivered the opinion of the court, February 20th 1882.

The single breach of duty with which the defendant below was specifically charged, as the only ground of liability to the plaintiff for the injury he sustained in falling off the platform of the car on which he was then standing, was the failure of the company to provide a sufficient number of cars to seat all the passengers on the train.

Without assenting to the broad proposition contended for, that a railroad company, using steam motive power, is bound absolutely and under all circumstances to provide every passenger on the train with a seat, it cannot be questioned that, as a general rule and under ordinary circumstances, it is the duty of such company to provide suitable car accommodations and seats for those whom it undertakes to carry; and if a passenger, exercising reasonable care and prudence, is injured in consequence of the company’s neglect of duty in that regard, the latter is liable to respond in damages for the injury thus occasioned solely by its own negligence. There appears to be nothing in the circumstances of this case to exempt the company from that general rule of duty; and if its negligence wras the proximate cause of the plaintiff’s injury, the liability of the company would necessarily follow, unless the plaintiff himself was guilty of negligence which contributed thereto. Iiis contention was that, in common with many other passengers, he was unable to procuro a seat, and while searching for one he was thrown from the platform of one of the cars, and thus sustained the serious injury which resulted in the loss of his arm. The over-crowded condition of all the cars composing the train, and the consequent inability of the plaintiff and others to procure seats, were facts clearly proven.

Assuming for the present that the company was justly chargeable with negligence resulting in injury to the plaintiff below, and that under the circumstances he was not guilty of contributory negligence in passing from ear to car in search of a seat while the train was in rapid motion, can it be pretended that it would not be gross negligence in him to voluntarily take á position near the outer edge of the platform and remain there until, by an ordinary jolt of the car, he lost his equilibrium and was thrown off ? This is precisely what the evidence as to the plaintiff’s position at the time of the accident clearly establishes. Apart from his own testimony, there is very little evidence tending to show precisely where he was at and shortly before that time ; and there is certainly nothing, that militates against his own version of what then and there occurred. He testified in substance that on entering the cars at Atlantic City and finding the rear one over-crowded he pushed his way forward, searching in vain for a seat, until he reached the front ear. After remaining there a short time, he stai’ted back: and quoting from his own testimony as found in the bill of exceptions, he says : 1 left that car because I was tired standing there; had been there seven or eight minutes; started back through the cars; went through some ten or twelve cars ; stopped several times going through; can’t recollect time it took to go through back; could not get through for crowd ; it was pretty near the same going back as coming through;' I stopped outside on platform; rear platform of fourth or fifth car, right outside the door; stood on one side ; the right hand side coming up. When I got out first I had hold of a little rail or something across the window ; I held on to the little rail across the window to keep from falling off; let go to go through the ears ; I. was standing there a minute or two or so; it was two minutes to the best of my knowledge; can’t tell if it was longer; when I left I started to go through, when the’ car got a jolt, and somebody struck me; could not count how many passengers passed through while I was on the platform ; they were coming in the opposite direction, up towards the engine, and some were going through the same way, towards the rear of the train ; can’t say whether the car door of the car I passed out of was open; when I went out the door of the opposite car I am positive sure was open; saw parties coming from the opposite car; I did not stand aside inside of car because I could not see them well, and because I wanted to go through myself ’; I came out and stood with my back against the car, and hand on the rail, resting myself; I was leaning with my back against the car, and my hand, behind me ; people were passing through into the car I left; there was a crowd; I left that car to go into an adjoining car; while standing there the car got jolt, and somebody behind me struck me and staggered me ; the jolt and it had something to do with it, can’t tell whether the jolt, without the other, would have thrown me off; as soon as I got the jolt I made a grab with the right hand, and missed, and caught with the left the rail on the platform; there is a similar rail on the body of the ~car, to assist people in and off; I tried to get hold of the rail on the body; I was thrown partly round, and caught the dasher rail with iny left hand ; I was thrown with my chest towards the inside track; the train was traveling very rapidly; my arm was mangled.”

It is very evident from the plaintiff’s own statement that, at the time of the accident and for some minutes before, he was not in the act of passing from one car to another in search of a seat: on the contrary, he was standing quite near the edge of the platform with his back to the end window of the car. He was not only in a position of known danger, but was there voluntarily and in disregard of the rules of the company. There is nothing in the testimony from which a jury would be justified in coming to any other conclusion. While he was thus standing on the platform, persons passed from one car to the other in both directions, and there is nothing whatever to show that he could not have gone into the next car if he had been so disposed. Neither he nor any other witness pretends to say it was necessary for him to stop and stand on the platform.

In the seventh point of the defendant below, the court was requested to charge “ That even if a search for a seat was the real purpose of the plaintiff in going out on the platform, and even if it were not negligence for him to have crossed from car to car for that purpose, yet, if the jury believe from the evidence that he lingered on the platform, instead of immediately crossing, the verdict should be for the deferidant.” The learned judge, in affirming this proposition, added the qualifying wmrds, “unless compelled thereto by circumstances.” The jury was thus authorized to inquire whether or not the plaintiff was compelled by circumstances- to linger on the platform. We see 'nothing in the testimony to warrant the submission of this inquiry to the jury. As already intimated, there was not a particle of testimony from which it could be reasonably inferred that plaintiff was compelled to take or retain the position he did on the platform. Having shown by his own testimony that at the critical juncture he was in a position where no one of ordinary prudence should have placed himself, it was incumbent on him to prove that he was there from necessity and not from choice. While the latter was clearly shown, there was no testimony tending to prove the former. The point should have been affirmed without the qualification complained of. But, for reasons already suggested, we think the court should have gone further, and instructed the jury as requested in defendant’s ninth point, which was : “ That the evidence shows negligence on the part of plaintiff which contributed to produce the injury complained of, and therefore he cannot recover.”

The dangerous position on the platform in which the plaintiff voluntarily placed himself, while the cars were in rapid motion, was undoubtedly the immediate cause of his being jolted off. If there had been any testimony from which it could have been reasonably inferred that he was there from necessity and not from choice, it would have been a question for the jury: but, in the absence of such evidence, it was error to refuse the point, and leave it to the jury to determine whether he was or was not guilty of contributory negligence.

Of all the passengers on a long train of twenty over-crowded cars the plaintiff was the only one who appears to have been injured. If he had submitted, as many others did, to the inconvenience of standing inside the cars, or if he had been guilty of no greater imprudence than passing from car to car, while the train was in rapid motion, it is not at all probable he would have been injured. His inuch-to-be-regretted misfortune was the result of his own carelessness. This was clearly proved by uncontroverted testimony, from which no other conclusion could reasonably be drawn.

Judgment reversed.

Mercur, Gordon and Trunkey, JJ., dissented.


author: Mr. Justice Trunket

text:
    Appeal of Bentley’s Executors.
    1. A debt -which has been due and unclaimed and without recognition for twenty years, is, in the absence o£ explanatory evidence, to be presumed to have been paid. The burden of proof is on the creditor to show that payment of such debt has not been made.
    3. Evidence that during this period the debtor had said to a stranger that he would not pay the debt, because the creditor was rich enough without it, is insufficient to overcome the presumption of payment.
    3. A. died bequeathing a legacy to B., and appointing C. his executor, to whom letters testamentary were granted. About twenty-one years afterwards, O. died, having never filed his account as executor of A. Subsequently, B. filed a petition, alleging that her legacy had never been paid, and praying that O.’s executors be decreed to file C.’s account as A. ’s executor. The decree prayed for was entered, and the account filed, the executors claiming credit therein for the amount of B.’s legacy. B. testified that she had never received the legacy, and gave evidence showing that C. had in his lifetime told a third party that he would not pay B. her legacy, as she was rich enough without it. The Orphans’ Court thereupon surcharged the accountants with the amount of said legacy. Held, that this was error; that from the lapse of time a presumption of payment had arisen, that this presumption was not overcome by the evidence and the particular circumstances of the case, and that, therefore, B.’s claim should be disallowed.

      January 31st 1882.
    Before Sharswood, O. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Certiorari to the Orphans’ Court of Philadelphia .county: Of July Term 1881, No. 66.
    Appeal of William K. Bentley, David Bentley and John B. Bentley, Jr., Executors of David B. Bentley, deceased, who was executor of J ohn B. Ilentley, deceased, from a decree of the court, dismissing their exceptions to, and confirming the re-adjudication of, the auditing judge upon the account of the executorship of their testator, as filed by them.
    The facts were as follows: — John B. Bentley died September 2nd 1856, leaving a will dated August 7th 1856, proved September 25th 1856, whereby he bequeathed “ to my sister Ann E. W alker, one hundred dollars, to be paid to her within one year after my decease.” He appointed as his executor his brother, David B. Bentley, to whom letters of administration were granted on the last mentioned date. He filed an inventory, but never filed an account, and died August 8th 1877. By his will he appointed his sons, William K. Bentley, David Bentley and John B. Bentley, Jr., as his executors, to whom letters testamentary were granted on September 13th 1878.
    On December 13th 1878, Ann E. Daly, formerly Ann E. Walker, the said legatee, filed her petition alleging that she had never been paid the said legacy, and praying for a citation to said executors to file the account of their testator, David B. Bentley, as executor of John B. Bentley. The answer of said executors to this citation set forth that they had no personal knowledge of the matter, but that, so far as they had information and belief, they believed that the said legacy had been paid on May 20th 1857, and they set up lapse of time, viz.: more than twmnty-one years from testator’s death, and presumption of payment, as a bar to the granting of the petition. A replication having been filed, the matter was referred to an Examiner, before whom the petitioner testified that the legacy had not been paid to her. The only other material testimony taken before the Examiner, was that of J ulia Ann N orth, an aunt of the petitioner, who testified that she had hoard David B. Bentley, in his lifetime, speak of this legacy : “ He said he would not pay it. lie did not give any reason why he would not pay it, other than that she was rich enough without it. I always used to be at him about the money to Annie. I asked him twenty times, and he always refused to pay, and gave no other reason.”
    Upon this testimony, after argument, the court, in an opinion by Hanna, P. J., ordered the respondents to file an account as prayed for. The account was thereupon filed. The accountants charged themselves with the amount of the inventory, and claimed credit for the payment of certain bills and legacies, including that of Ann E. W alker under date of May 20th 1857. The account resulted in a balance due to the estate of David B. Bentley.
    Upon the audit, before Hanna, P. J., the said legatee excepted to the said credit. The accountants offered no evidence to prove payment, but relied upon the presumption of payment arising from lapse of time. The auditing judge disallowed the legatee’s claim, allowed the credit as claimed in the account, and confirmed the account nisi. Exceptions filed thereto by said legatee were sustained by the court, and the account was recommitted to the auditing judge, Penrose, J., filing the following opinion:—
    “ In the opinion filed May 22d 1880 (8 W. N. O. 455), when this case was before us on an application to compel the filing of an account, it was said that as less than twenty years had elapsed from the time when the legacy became demandable until the death of the executor, the presumption of payment had not then arisen.
    “His death would arrest the bar arising from lapse of time, and the claim would become one against his estate, unless it appeared that there were assets to be transmitted to a successor.
    “ It would follow that the auditing judge was in error in holding that the credit claimed in the account of the deceased executor was to be allowed without further proof of the payment of the legacy than was given.
    “ The exceptions are therefore sustained, and the account recommitted to the auditing judge for further proceedings.”
    On the re-audit, the auditing judge accordingly surcharged the executors with the amount of the legacy, with interest, less collateral inheritance tax, and awarded the same to the legatee. Exceptions were filed to this re-adjudication by the accountants, which were dismissed by the court, Penrose, J., filing the following opinion:
    “ Had the presumption of payment arisen in this case, we think the testimony of Julia Aim North, as taken by the examiner, could scarcely have been sufficient to overcome it. As the Auditing Judge found, however, that twenty years had not elapsed from the time when the legacy became payable until the death of the executor, his disallowance of the credit was based, not upon the testimony of the witness, but upon the fact that there was no evidence of payment; and the effect of the adjudication would not be changed if all reference to what the witness had said should be stricken out.
    “Exceptions dismissed and adjudication confirmed.”

      The accountants thereupon took this appeal, assigning for error the decree of the court.

      John G. Johnson, for the appellant. —
    We contend that the legacy is conclusively presumed to have been paid, by reason of the time which elapsed before the same was demanded, and that the award is, therefore, erroneous. The court below decided that inasmuch as only 19 years and 11 months had elapsed prior to the death of David 11. Bentley, no presumption of payment arose, although upwards of 21 years had elapsed before demand was made. We submit that this decision confounds the distinction between the bar of the Statute of Limitations and the presumption of payment. By the Statute of Limitations no action shall be brought after the lapse of six years. The statute denies the remedy, irrespective of any question of actual right. The executors did not set up the bar of the statute but the common law presumption of payment after twenty years. This presumption is not weakened because the testator’s executor happened to die before the whole period had expired, inasmuch as the presumption is, not that the debt was paid in the last, but in the first, part thereof. Why does the death of the trustee make any difference % The presumption runs from the time there was a liability to pay, viz., one year after the testator’s death, and becomes conclusive twenty years from that time. The death of an executor or a change of trustees has nothing to do with the question. The failure to make any demand, out of which the presumption a,rises, continues as much after, as before, death, and with like significance as to the reason therefor, viz., a prior liquidation. The mere fact that a trust was created does not prevent the ripening of delay into proof; it is settled that after the expiration of the twenty years, the assignor of a fund in trust for creditors is entitled to demand a reconveyance, because of the presumption of payment that then arises: Power v. Hollinan, 2 Watts 218; Drysdale’s Appeal, 14 Penna. 531; Potter’s Estate, 54 Penna. 465 ; Ingraham v. Cox, 1 Pars. 10.
    After twenty years’ silence, the executors of a dead* man, who are without knowledge of the time and place of liquidation, are entitled to the benefit of every presumption of which the decedent himself, who did possess this knowledge, could have availed himself.

      li. P. White, for the appellee. —
    We contend (1) that no presumption of payment arose; (2) that if it did arise, it was rebutted by sufficient evidence. The executors of David B. Bentley, in the account filed by them of his executorship of the estate of John B. Bentley, showed that there is nothing left of John B. Bentley’s estate to be administered. It would thus appear that-David B. Bentley, who neglected to file an account in his lifetime, disposed of, spent or made away with, the whole of the testator’s estate; the liability to pay this legacy thereupon became a personal liability on his part; he then died in 1877, and the presumption of payment as against him ran from his death. But if we are wrong in this, the evidence of Mrs North that she had frequently demanded payment of David B. Bentley in his life-time, on behalf of the legatee, in addition to the negative testimony of the legatee herself that the legacy was never paid to her, was ample evidence to rebut the presumption : Reed v. Reed, 10 Wright 239.
   Mr. Justice Trunket

delivered the opinion of the court, February 27th 1882.

A debt which has been due and unclaimed, and without recognition, for twenty years, in the absence ¡ of explanatory evidence, is presumed to have been paid. This presumption, prima facie, obliterates the debt, and the onus of proof is upon the creditor, not to establish a new contract as is the case when a debt is barred by the statute of limitations, but to show that payment of the debt has not been made: Reed v. Reed, 46 Pa. St. 239. In that case, within twenty years, the debtor admitted to the creditor and to strangers that he had not paid the debt, and said he would not, and it was held that the presumption of payment was rebutted. .Here the sum of the testimony is that the executor said to a third person that he would not pay' the legacy, because the legatee was rich enough without it. This is far short of the direct admission in Reed v. Reed, and the court below rightly held that it was insufficient to overeóme a presumption of payment ai'ising from lapse of time. When a person in conversation with a stranger respecting the claim of another, says he will not pay it, there is not the same reason for inferring recognition that exists when the creditor requests and the debtor refuses payment. In the latter case, not to deny is to admit. Besides, the debt is claimed. But it does not concern the stranger whether the claim is existing or has been paid ; he has no right to ask payment.

The executor lived almost twenty years after the legacy became due and payable. It was not claimed by the legatee, for more than twenty one years after it was due. The debt was unrecognized and unclaimed, for over twenty years, and the time of payment is deemed to have been before the beginning of the period, else payment would not be presumed. Were the debtor living, the reason for invoking the presumption would not be so strong as now, for his representatives are not so likely to know of the actual evidence of payment as he would be. The difficulty in proving a fact, which occurred many years before its existence is questioned, lies at the foundation for its presumption from lapse of time. Then, the mere fact of the debtor’s death ought not to be a sufficient explanation of the creditor’s delay. Immediately, he may make claim against his debtor’s estate. The case differs from one where the debtor was in extreme poverty, or beyond sea. And if the debtor be a trustee ho may avail the rule respecting stale demands, though he could not the statute of limitations: Power v. Hollman, 2 Watts 218. In that case the court, conceding that claims against an insolvent who had assigned his property, in trust for creditors, would not be barred by the statute, ruled that lapse of time would raise a presumption of their payment.

We are of opinion that the presumption of payment of the appellee’s claim had arisen, before the presenting of her petition.

Decree reversed, and the exceptions to the adjudication by the accountants sustained, costs to be paid by the appellee, Ann E. Daly.