source: Caselaw Access Project

author: Thompson, C. J.

license: Public Domain

text:
    Wilkinson’s Appeal.
    1. An erroneous judgment or execution is not void; it can be set aside only by direct action by parties having an interest in it and not by collateral attack in any other proceeding.
    2. No one but the defendant in an irregular execution can take advantage of its irregularity.
    3. If he does not object he stands-as consenting, and as to him the maxim consensus tollit errorem controls.
    4. An award of arbitrators as soon as filed has the form and substance of a judgment, and continues so till reversed on appeal.
    5. An award of arbitrators was filed and execution immediately issued on it; the defendant not objecting. Held, that the proceeds of sale were properly awarded to the execution, notwithstanding the objections of subsequent execution creditors.
    March 28th 1870.
    Before Thompson, C. J., Bead, Asnew, Sharswood and Williams, JJ.
    Appeal from the decree of the Court of Common Pleas of Clinton county, in the distribution of the proceeds of the sheriff’s sale of the property of David Shank: No. 441, to January Term 1869.
    The property of Shank was levied on by virtue of six writs of fieri facias, returnable to the September Term (14th) 1868. One of these writs was at the suit of William A. Simpson, issued August 22d 1868, on a judgment for $1079.78, obtained that day on an award of arbitrators.
    The amount made under the executions and paid into court was $913.88. On the 21st of September 1868, Charles Wilkinson issued an execution against Shank for $393.69. On the 14th of October, T. C. Hippie, Esq., was appointed auditor to distribute the fund in court. He reported that there was no dispute as to five of the executions under which the money was made.
    As to Simpson’s, he reported that his execution “ being founded upon a mere award of arbitrators, the time allowed for appeal not having yet elapsed, was premature and void, and therefore the claim should not be allowed.” He therefore distributed the fund first to the five executions; after deducting the amounts awarded to them and costs of audit, he found a balance of $406.97, which he awarded to the debt and costs on Wilkinson’s execution.
    Simpson excepted to the report so far as it excluded his execution. The court reversed the report as to the $406.97, and decreed that sum to Simpson.
    ' Wilkinson appealed to the Supreme Court, and assigned the decree for error.

      C. G. Furst and C. S. McCormick, for appellant.
    An award is not a judgment till after twenty days: Hallman’s Appeal, 6 Harris 812. The provision for appeal operates as a stay of execution: Woods v. Connor, 6 Barr 431; Wray v. Tammany, 1 Harris 395. The law will not assist in doing that which would be a wrong: Pearsoll v. Chapin, 8 Wright 15.

      S. R. Peale, for appellee.
    An execution issued before the stay is out,is at most irregular, and cannot be set aside in a collateral proceeding: Stewart v. Stocker, 13 S. & R. 203; 1 Tr. & Haly’s Pr. 831; Lowber’s Appeal, 8 W. & S. 387; Shirley v. Wright, 1 Salk. 273; Patrick v. Johnson, Lev. 404; Lewis v. Smith, 2 S. & R. 142; Mason’s Estate, 4 Watts 341; Dyott’s Appeal, 2 W. & S. 557; Haner’s Appeal, 5 Id. 474.
   The opinion of the court was delivered, May 5th 1870, by

Thompson, C. J.

Since the decision of Stewart v. Stocker, 13 S. & R. 199, the question in this case has not been regarded as an open one. There have been numerous decisions since, in entire harmony and in subordination to the law of that case, among them is Lowber & Wilmer’s Appeal, 8 W. & S. 387. It is therefore settled, if anything can be, that an erroneous judgment or an irregular execution — not void, can be set aside only by direct and appropriate action by parties having an interest in the same and not by a collateral attack under cover of any other proceeding. As to an irregular execution, nobody but the defendant can object to it or take advantage of the irregularity. If he do not object, to all the world he stands as consenting, and as to him the maxim consensus tollit errorem controls.

But it is supposed that the execution here was void because issued on an award of arbitrators before the twenty days allowed for an appeal had transpired. What is this more than issuing execution before the stay is out ? That was the case in Stewart v. Stocker, supra.

The Act of 1836 gives to an award of arbitrators the “ effect of a judgment as respects the party against whom it is made, from the time of the entry thereof, and declares it shall be a lien upon his real estate until reversed upon an appeal or satisfied according to law.” Why by consent or assent of defendant might it not be a judgment for the purpose of execution ? It cannot be said to be wanting either the substance or form of a judgment. The law expressly gives both these qualities to it. It so remains until reversed on appeal. Unappealed from, the plaintiff below and appellee here issued execution on his award. The defendant did not object and never appealed. There is no change in the form of the judgment before and after the expiration of the time for an appeal. The execution as to the defendant was irregular, having been issued too soon. He did not complain of that, but by his silence assented to it, and the cases cited, and others which might be cited, regard it as regular in relation to all other persons. The case was well decided by the learned judge below, and the decree of distribution is affirmed and the appeal dismissed at the cost of the appellant.


author: Agnew, J.

text:
    Earl et al. versus Champion.
    1. The property of a husband- is not to be covered up or withheld from creditors, upon equivocal, suspicious, or doubtful evidence of the wife’s right to it.
    2. A plain and satisfactory case must be made out before the wife can hold property against creditors.
    3. A parol marriage settlement of personalty is not ipso facto void.
    4. Circumstances in this case which required the question of wife's ownership to go to the jury.
    5. Tripner v. Abrahams, 11 Wright 228; Flick v. Devries, 14 Id. 266, approved.
    March 28th 1870.
    Before Thompson C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Cameron county: No. 78, to July Term 1869.
    This was an action of ejectment, commenced April 22d 1868, by John B. Champion, against John Earl and Catharine Earl his wife, and others their tenants, for 16 lots in the town of Emporium. The plaintiff claimed the lots as purchaser of them at sheriff’s sale, as the property of John Earl; the allegation of the defendants was that they belonged to the wife.
    On the trial May 8th 1869, before White, P. J. the plaintiff gave in evidence, articles of agreement dated April 1st 1865, between the Philadelphia and Erie Land Company and Mrs. Earl, for the lots in dispute for $600; $150 payable on the delivery of the contract, and $150 yearly, until the whole should- be paid: also, judgment in his favor October 19th 1866, against Earl for [91.68: also a power of attorney of same date to the prothonotary authorizing the entering of the above judgment, and the selling of the lots to the plaintiff, with condition that upon the payment of the judgment in eight months the conveyance should be void, otherwise execution to issue: also notice to the land company from John Earl that he had sold his interest in them, and not to “ give a title to any person except John B. Champion:” also the record of the following judgments against John Earl:
    Joel D. Gillet, - - June 2d 1856, $100.00
    Wharton Township, - August 7th 1856, 97.00
    Godfrey & Co., - - February 26th 1857, - 266.44
    Potter County, - - June 18th 1857, 39.74
    W. W. Wright, - - December 29th 1857, - 145.13
    William Elliott, - - December 29th 1859, - 209.38
    Beidleman & Haywood, v December 29th 1859, - 291.53
    B. Leiber, - - - August 14th 1865, 422.67
    The plaintiff then gave in evidence executions on his judgment of October 19th 1865, under which John Earl’s interest in the lots in question were sold to him, and the sheriff’s deed to him acknowledged January 23d 1868. J. W. Phelps, the agent of the land company, testified that he received $150, the first payment on the contract, from John Earl; $50 of this was an order from D. Callahan: that Earl brought him an order May 1st 1867, from H. Crittenden, for $239.26 which Phelps accepted and endorsed on the contract.
    The plaintiff here closed.
    The defendants examined John Earl: he testified: * * * The $50 was paid by an order on Mr. Phelps by Daniel Callahan. I got it of my wife; he had borrowed money of my wife several times, and in payment of it he gave this order on Mr. Phelps. I made the second payment to him by request of Crittenden; $239.26 was Crittenden’s order on Mr. Phelps; he acknowledged to owe Crittenden that amount; I had no interest in the order, my wife had. Catharine Earl and I were married in March 1861; there was a marriage settlement made on Mrs. Earl at that time; I had $2500 ; I agreed to give her $1000 ; was before the marriage; don’t know that any other person was present; were others present afterwards. I told her I would set apart $1000 towards bringing up the children; she then consented to marry me. I have let her have money at a good many times; don’t think I have paid up the $1000; have paid $200, $50, in all to $500, or $700, from 1861 to this time, or to 1865 — taking this article was one. I had no interest in it: it was her own money. The money I let her have first; she loaned it; I borrowed some of it myself; she had the use of it; I got the $100 of her that I paid Phelps first; it washer money, she got it of Georg'e Warner. * * * On my way to Philadelphia I borrowed $300 of my wife and gave her my obligation for it. I got the money of Young, Finley & Co., of Williamsport. When I returned I left $400 or $500 to her; took $300 of her when I went to Philadelphia ; assigned her a contract for land, that is with Mr. Crittenden; was to pay the $1000 along as she needed it; might have had some judgments against me. Have receipts for the judgments read in evidence against me, most of them. I got the money of her that I paid on the contract.
    Dan. Callahan testified for defendants: I remember this order. It was given for borrowed money; borrowed of Mrs. Earl; I gave the order on Mr. Phelps.
    Henry Crittenden testified for defendants : I know Mrs. Earl had some property and money of her own; I let her have $300 in money, part when she was in Potter and the residue after she came here; she kept a boarding-house for me; let her have part of it then; the whole amount I gave her was $300; can’t tell what was done with it; let Mrs. Earl have it; she took a piece of land up the Portage and then sold the land. The $300 was for work she did for me for two years.
    Judge White, after referring to the facts, charged: * * * “But the articles of agreement for the lots were between the land' company and Mrs. Earl, and Earl testifies that the $150 receipted at the date of their execution, although paid by him, was furnished by Mrs. Earl. How did she obtain this ? As between her husband and his creditors, property purchased for her belongs to her husband, unless she can prove clearly that the consideration paid for it even if she made the payment herself, consisted of money or property which belonged to her while a single woman, or had accrued to her after marriage by devise, descent, gift or purchase independently of her husband. Any property purchased by or for her, and paid for with money or its equivalent furnished by her husband, would not be exempt from claims of his creditors, unless derived from a separate estate settled upon her by him in consideration of marriage; and not then as against claims of creditors to whom he was indebted at the time of such settlement. [But a parol contract, such as is proved by Earl, resting in the knowledge of the parties alone and to prove which no other evidence has been produced except Earl’s, a contract to settle on Mrs. Earl $1000, only $40 or $50 of which was paid before their marriage, and the residue of which was stipulated to be paid as she might require it, cannot be a valid legal settlement and binding on Earl’s, subsequent creditors who had no knowledge of it, and since if it were adjudged to be a valid settlement, the evidence of Earl unsupported cannot be sufficient in law to prove it,] when sought to be used to hinder, delay or defeat his creditors.” * * * After referring especially to Earl’s testimony, the judge proceeded:— [“ This is not such clear and distinct evidence as is necessary to show that the payment was made out of funds derived from her own separate estate, and does not^sustain her title to the lots in controversy.] Where property is claimed by a married woman she must show by evidence which does not admit of a reasonable doubt, either that she owned it at the time of her marriage or acquired it afterward by gift, bequest or purchase. If by purchase the burden is on her to prove distinctly that she paid for it with funds which were not furnished by her husband. Under all the facts given in evidence the jury are instructed to return a verdict for the plaintiff.”
    The verdict was for the plaintiff.
    On the removal of the case to the Supreme Court, the defendants assigned for error the parts of the charge in brackets, and the instruction of the court to find for the plaintiff.

      J. B. Newton and R. Brown, for plaintiffs in error.
    The case should h.ave been submitted to the jury: Tripner v. Abrahams, 11 Wright 220; Gamber v. Gamber, 6 Harris 368; Flick v. Devries, 14 Wright 266; Mellinger v. Bausman, 9 Id. 527; Express Company v. Wile, 14 P.F. Smith 201; Aurand v. Shaffer, 7 Wright 364; Robinson v. Wallace, 3 Id. 129. An ante-nuptial contract carried out by the husband paying over the money after marriage is not void as to creditors. Magniac v. Thompson, Baldwin 344. A post-nuptial contract is not void per se, and the jury are to judge: Larkin v. McMullin, 13 Wright 29. An ante-nuptial contract may be made by parol: Gackenbach v. Brouse, 4 W. & S. 546.

      C. B. Curtis, for defendant in error,
    cited Aurand v. Shaffer, supra; Thompson v. Dougherty, 12 S. & R. 449.
   The opinion of the court was delivered, April 4th 1870, by

Agnew, J.

The three errors assigned in this case resolve themselves into one. The court instructed the jury under all the evidence to return a verdict for the plaintiff. The only question is whether the evidence ought to have gone to the jury. If insufficient, what the court said in their charge would be immaterial, the case being properly taken away from them. Had the case gone to the jury a statement of the quality or degree of the evidence would have been important as an instruction to guide them. We have said in many cases that the evidence must be clear and satisfactory — clear and full proof — clear and unequivocal — -it must exclude reasonable suspicion that the property was the husband’s. Many of the cases are collected in Tripner v. Abrahams, 11 Wright 228. To these I may add Baringer v. Stiver, 13 Wright 129; Flick v. Devries, 14 Wright 266; Curry v. Bott, 3 P. F. Smith 400. These are but forms of expression to denote that the property of a husband is not to be covered up or withheld from creditors upon equivocal, suspicious or doubtful evidence of a wife’s right to it. The family relation is such and the probabilities of ownership so great on part of the husband, that a plain and satisfactory case should be made out before the wife can be permitted to hold property against honest creditors. But the language of the cases is rather an approximation than a definition. It is difficult to define accurately that which is merely a mental operation, and to express with precision the degree of conviction forced upon the mind by evidence. Hence, where a judge said to a jury that the law requires a wife “ to come into court with full proof such as will relieve reasonable doubts — if you pause, or doubt upon her evidence, your verdict should be given to the plaintiff”— it was held to he too strong a description of the degree of proof in that ease: Tripner v. Abrahams, 11 Wright 228. In Flick v. Devries, 14 Wright 267, the same judge himself laid down'the rule thus: “We require no unreasonable amount of proof. Absolute demonstration is no more to be looked for in this class of cases than in other lawsuits, and where evidence is offered from which the conclusion can fairly be deduced, it ought to be submitted to the jury, who often decide on less than demonstrative proofs.” In the still more recent case of Welch v. Kline, 7 P. F. Smith 432, our Brother Sharswood said, that the whole question of exclusive ownership of the wife in the property derived from her own means, and applied by her to the purchase of it, is one for the jury, which it would be error to withdraw from them.

The opinion of the judge in the court below, is an excellent presentation to the jury of the force and effect of the evidence, but he went too far when he finally withdrew it altogether from their consideration. The difficulty of the case lies chiefly in the fact that it depends greatly on the credibility of the husband, the principal witness, a matter falling within the province of the jury. He testified to facts tending to show that the wife’s separate estate paid for the lots. He swore to an ante-nuptial settlement, by which she became entitled' in consideration of marriage to receive from him $1000, and did receive from him from $500 to $700. He also testified that the judgments against him from 1856 to 1859, relied on to show a motive on his part to cover up his property in the name of his wife, had chiefly all been paid, a fact deriving some corroboration from their long standing without an effort to collect, them. He is also corroborated to some extent as to the proportion of a separate estate on part of Mrs. Earl, by the testimony of Callahan and Crittenden. The contract of purchase of the lots was in the name of Mrs. Earl, and if the testimony of Earl was believed, there was evidence of the possession of a separate estate by Mrs. Earl, and of its application to the payment of a considerable part of the purchase-money, A parol marriage settlement of personalty is not ipso facto void: Gackenbach v. Brouse, 4 W. & S. 546; Magniac v. Thompson, 1 Baldwin 344; Larkin v. McMullen, 13 Wright 29. Whether the arrangement sworn to by Earl was a fraud in fact, was a question for the jury. The conduct of Earl and his control of the property tended to weaken his credibility. Under these circumstances it was properly the province of the jury to determine what were the actual facts of the case, under instructions as to the degree of evidence necessary to enable the wife to sustain her right to the property. The judgment is therefore reversed and a venire facias de novo awarded.


author: Read, J.

text:
    Keyes’s Appeal.
    1. Lester and Parish purchased land jointly of Baker in 1852, (the legal title of which was in King), and gave him their note payable in a year; they purchased King’s title, the consideration to be paid in four years. Keyes agreed in writing to convey his interest to Parish on being released from all obligations for the purchase-money. Parish paid all the purchase-money to King. Baker not having been heard of for fifteen years and no claim having been made on his note, in 1869 ; on a bill for that purpose the court decreed that Keyes should convey to Parish on his filing an indemnity against any claim on Baker’s note. Held, that the decree was correct.
    2. Baker’s note being barred by the Statute of Limitations, Keyes was released from all obligation on account of it.
    March 28th 1870.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Appeal from the Court of Common Pleas of McKean county: In Equity: No. 381, to January Term 1870.
    The bill in this case was filed, April 28th 1870, by Martha Parish, guardian of Ida E. Parish and Lester Parish, minor children and heirs of Lester Parish.
    The bill averred:—
    1, 2 and 3. That the decedent and the defendant being partners in 1852 purchased from James Baker his interest in a tract of 155 acres of land for $300, for which sum they gave him their note, not under seal, payable in one year; that the legal title being in W. K. King, on the 1st of March 1853 they purchased it from him for $845.38, payable in instalments, running to March 1st 1857.
    4 and 5. That the partnership was dissolved, and on the 12th of October 1859 the decedent and defendant entered into this agreement: “ The said Keyes, in consideration of five hundred dollars in hand paid, the receipt whereof is hereby acknowledged, doth hereby assign all his right, title and interest in 'and to a certain piece of land, situate, &c., containing 150 acres, being, &c. The said Keyes agrees that when the said Parish shall release him from all obligations given for the above-described property, that then the said Keyes shall assign all his right, title and interest in and to the above-described land to Lester Parish.”
    6. That the parties afterwards sold and conveyed 50 acres of the tract to John Parish.
    7 and 8. That the decedent died in January 1867, leaving his widow, the above-named Martha, and the above-named children; that the decedent in his lifetime, and his widow and children since his death, have occupied the remaining 105 acres of the tract.
    9. That the decedent in his lifetime, and his administrator since his death, have paid to King all the purchase-money payable to him.
    10. That soon after giving the note to Baker, he left the neighborhood and had not returned; the note had not been presented for payment, nor had he been heard of, and that there was no legal liability for its payment, being barred by the Statute of Limitations.
    11. That the defendant had refused, after demand, to convey his interest to the minors.
    The prayer was that the defendant be decreed to convey to the minors, &c.
    The defendant answered as follows:—
    2. I admit that the note stated was given to James Baker, but deny that it was not under seal, and that it has in any manner been paid by said Parish.
    3. I deny that there is no legal liability to pay said note or that the same is barred by the Statute of Limitations, and aver that if it were so barred there is a moral and equitable liability on me to pay the same still existing, and that said Parish has done nothing to release me “ from all obligations given for said land.”
    4. I aver that in equity I am entitled to receive one-half the amount of the note given to Baker, if it were paid or barred by the Statute of Limitations, before .making a conveyance of the land.
    5. I deny that a conveyance of my interest in the land has ever been demanded of me and refused, but aver that I have been, and am ready and willing to make such conveyance when the plaintiffs shall show a performance of the contract, and exhibit to me the evidence of such performance.
    A replication was filed and an examiner appointed, before whom testimony was taken, mainly on the question of demand on Keyes and his refusal to make the conveyance.
    On the 26th of January.1870 .the court (Williams, J.) decreed: “ That the agreement referred to in the pleadings between Daniel J. Keyes, the defendant, and Lester Parish, deceased, be specifically performed and carried into execution; and that the defendant do, on or before the 28d day of February next, execute a good and sufficient deed of conveyance of the premises in the said agreement mentioned to the said Ida Ellen Parish and Lester Parish, to vest in them all the interest he has in the said premises by virtue of said agreement, and according to the terms thereof, and lodge said deed with the prothonotary of the Court of Common Pleas of McKean county; and that the plaintiff shall, on or before said 23d day of February 1870, execute a bond in the penal sum of $1000 with surety, to be approved by the court, conditioned to indemnify the said D. J. Keyes against the payment of the note for $300 to James Baker, and from all costs and expenses on account thereof; and that the said plaintiff shall abide by and perform the decree of the court in any bill for an account or contribution growing out of the non-payment of said note, which said D. J. Keyes may exhibit within five years from this date; and upon the delivery of such bond said plaintiffs to be' permitted to take from the custody of the prothonotary the deed lodged with him in pursuance of this decree.”
    The defendant appealed, anjl assigned the decree for error.

      B. D. Hamlin, for appellant,
    cited Biddle v. Moore, 3 Barr 161; Morrison v. Funk, 11 Harris 421; 2 Story’s Eq. Jur. § 760; Brightly’s Eq. §§ 190-2, 205, 206; Tiernan v. Roland, 3 Harris 429; Backus’s Appeal, 8 P. F. Smith 186.

      R. Brown, for appellees,
    cited Coleman v. Fobes, 10 Harris 156; Whitcomb v. Whiting, Douglass 629; Steel v. Steel, 2 Jones 64; 2 Williams on Executors 1282; Hoch’s Appeal, 9 Harris 280; Taylor v. Gould, 7 P. F. Smith 152; Bank v. Israel, 6 S. & R. 294; Ekel v. Snevily, 3 W. & S. 272; Morrison v. Funk, 11 Harris 421.
   The opinion of the court was delivered, July 7th 1870, by

Read, J.

Lester Parish and Daniel J. Keyes being then in partnership purchased from one James Baker in 1852 his interest in 155 acres of land, in the township of Eldred, McKean county, for $300, and gave the said Baker their joint promissory note therefor, payable within one year thereafter.

The title to said land was then in W. K. King, and on the 1st March 1853 the said partners made a contract in writing with him for said land for $845.38, payable in instalments, running to the 1st March 1857 with annual interest.

After this purchase from King, the said Parish and defendant dissolved partnership by agreement, said Keyes taking all the partnership effects, and assuming to pay all the partnership debts, except the unpaid purchase-money, on the land aforesaid to the said King and Baker. That was assumed to be paid by the said Parish, and defendant was to release his interest in said land to said Parish.

By an agreement in writing on the 12th October 1859, Keyes covenanted, that when Parish should release him (Keyes) from all obligations given for said land, that then the said Keyes should assign all his right, title and interest, in and to the said land, to said Lester Parish.

Parish sold 50 acres from the south part of said land to John Parish, and Keyes released his interest in the same to said Parish, and King executed a deed to him therefor.

Lester Parish died in January 1867, leaving a widow and two minor children, he having been in his lifetime in possession of the said 105 acres, as his widow and heirs have been since his decease. The said Lester Parish in his lifetime and his administrators since his decease have paid the whole purchase-money to said King in full for the said 155 acres.

Soon after the giving of the note to Baker, he left the country, and neither he nor the note has ever been heard of since, and unless under seal, of which there is no evidence, has long been barred by the Statute of Limitations.

The defendant has therefore been released from all obligations given for the said property by the payment to King, and the note to Baker being completely barred by the Statute of Limitations.

The plaintiffs therefore, upon giving a proper indemnity, are entitled to a full assignment and conveyance, by the defendant, of all his interest in the said 105 acres.

The objection of the defendant that the note is still outstanding is unreasonable, because no one knows where the note is, nor can say whether it is in existence or not. As therefore it is impossible to pay the note, and as it is almost certainly barred by the Statute of Limitations, there being no proof whatever that it was under seal, the only proper course for a court of equity is to take a proper indemnity from the plaintiffs against the said note.

The decree of the court below effects this object.

Decree affirmed and appeal dismissed at the costs of the appellant.


text:
    Young et al. versus Lloyd and Wife.
    1. Lloyd, sold Young standing timber on No. 5821, having previously pointed out the lines. Some of the timber cut by Young according to this line, proved to be on 5822, owned by Herdic. Young drove the logs to Williamsport. In a replevin by Ilerdic, Young gave a property-bond and retained the logs. Herdic recovered the value of the logs at Williamsport less the cost of cutting and driving them there. In an action by Lloyd for logs cut on his land, Young could set off only the costs in the replevin.
    2. Young could not set off the profit he could have made on the logs.
    3. A contract to deliver growing timber trees on the land, to be cut and taken away by the purchaser, has not in view the price at a distant market,
    March 29th 1870.
    Before Thompson, C. J., Agnew, Sharswood and Williams, JJ. Read, J., at Nisi Prius.
    Error to the Court of Common Pleas of Lycoming county: No. 358, to January Term 1870.
    This was an action of assumpsit by Clinton Lloyd and wife against Jacob S. Young and others trading as Young, Finley & Co.
    The cause of action was the price of certain growing timber on tract No. 5821 in Potter county, belonging to the plaintiffs. The claim was under a contract between the plaintiffs of the first part and the defendant of the second part, dated June 27th 1863, by which “ the said party of the first part hereby agrees to sell to the party of the second part all the white-pine timber growing upon * * * 5821, embracing about 1000 acres, and the said party of the second part agrees to purchase and take off said land, as hereinafter specified, all the white-pine timber that will make merchantable lumber, such as a prudent man would take off his own land, * * * and to pay for the timber upon said land the sum of $2 per thousand feet, board measure. * * * It is further agreed that said lumber shall be measured before its removal from said land by some suitable scaler, to be chosen by the parties and paid for by the said party of the second part.” * *
    About the time of the negotiation and the purchase of the timber, Lloyd went with Young, one of the defendants, and pointed out to him the line of the tract, which had been run and marked by Jacob Brown, a surveyor. Young having examined within the line pointed out, and having reported favorably to his partners, the contract was entered into. The defendants having proceeded to cut the timber according to the line shown by Lloyd, it was ascertained that they had cut about twenty rods on tract No. 5822, adjoining on the south, and belonging to Herdic, Lentz & Whites. The defendants drove the logs, amounting to 1,008,378 feet, to the Williamsport boom, and Herdic & Co. issued a replevin for them. Lloyd directed the defendants to give a claim property-bond, and defend the suit. Lloyd, who was a lawyer, assisted in the defence.
    At that trial the court instructed the jury “ to estimate the value on the stump at the time and place where the timber was cut.” The verdict was for $4306.75. Herdic & Co. removed the case to the Supreme Court, assigning this instruction for error. The Supreme Court (Herdic v. Young, 5 P. F. Smith 170) decided that the measure of damages was “ the value of the logs in the boom, less the cost of cutting, hauling and driving to the boom.” The judgment was therefore reversed. On a second trial the verdict was for Herdic & Co., for ¡§7351.04.
    On this trial the plaintiffs claimed to be paid for 2,333,473 feet of timber, which excluded the timber the value of which had been recovered in the replevin. The defendants asked to set off against the plaintiffs’•■claim, the difference between the price they were to pay for the timber and the amount recovered against them by Herdic & Co.
    The parties submitted no points.
    The court (Gamble, P. J.), after recapitulating the facts, charged:—
    * * * “These material facts are not in dispute between the parties, their difference being as to their legal rights. The court will therefore have to assume the responsibility of controlling your verdict and determining the legal rights of the parties without time for any other consideration than the arguments of counsel and authorities adduced have afforded. The first question to be determined relates to the nature or character of this contract. Whether the rules of law applicable to a sale of real estate or easement in lands are to measure or control the rights of the parties or the rules of law applicable to a sale of chattels. In the one case the remedy upon failure of title depends upon an express warranty, in the other it may rest upon an implied warranty, which is a legal concomitant of a sale of chattels. Timber trees and'other spontaneous productions of the soil are so attached to and connected with the land as to constitute their part of it and pass by a sale or conveyance of land without being mentioned. Yet a sale of timber to be severed from the land and then measured to ascertain the quantity, before the price is payable, seems to contemplate a change of its original character by the terms of the contract and the mutual agreement of the parties. Such being our impressions of this case, and entertaining an opinion upon another branch of the case which supersedes the importance of this point, we hold for the present that such an implied warranty of title attaches to this sale as would render the vendors liable to answer in damages upon a failure of title. The next question then is, what is the proper measure of damages ? The principle which measures damages at common law is that of giving compensation for the injury sustained. But in many instances the law lessens this compensation, leaving upon the injured party a part of the loss, and in some increases the compensation by way of punishment to the wrongdoer. In this case, the failure of title arose from an honest mistake. It is true the mistake as between these parties originated with the. plaintiffs, but not from any laches of the usual precaution on their part. They employed Jacob Brown, an experienced surveyor, to retrace and re-mark the lines of the survey, and had no reason to doubt their correctness. They have received nothing and ask nothing for the logs cut outside of their actual boundary. Certainly there is nothing in the case which should render them obnoxious to punishment as wrongdoers. On the other hand, there is nothing in the cause which would entitle the defendants to more than compensation for any actual loss in consequence of this mistake. No loss or diminution of profits, nor remote or speculative damages, should enter into the compensation. We have no other evidence of the value of this timber than that afforded by the contract-price of two dollars per thousand at the stump, and the amount of the verdict in the action of replevin. What estimate the jury may have put upon the stumpage in November 1867, the risks of floating to the boom, &c., &c., we have no means of knowing. But we have the right to presume that the jury did their duty in deducting from the value of the logs, however estimated, all the expense put upon them by the defendants. Such were their instructions, such was the law, and such is, therefore, a legal inference.
    “ The excess for which the verdict was rendered would, therefore consist of the nature of the stumpage, the risks of transportation and the value which happened to rule the market for lumber of logs at the Susquehanna Boom at the time these logs were replevied. The defendants had paid no stumpage — they had lost nothing by the risks of transportation in this case, for the measurement was taken at the boom. They retained the logs and had the advantages of the market value of lumber at the time. [For what loss then are they entitled to compensation which has not already been fully compensated ?
    “They have been reimbursed for all the expense put upon these logs from the stump to the boom, leaving only a possible, perhaps a probable diminution of their profits unprovided for. Such a contingency, if clearly shown to exist, would be too remote and uncertain to be included in compensatory damages. Such a liability could not reasonably be presumed to have been in the contemplation of the parties when this contract was made, and ought not therefore to be implied. The disastrous results of such a liability to the present plaintiffs, demonstrates its unreasonableness. The defendants have cut and taken -from the land of the plaintiffs about two and a half million feet of logs, about which there has been neither hindrance nor dispute. They now propose to pay the stumpage upon these logs, amounting to some $5000, and bring the plaintiffs in their debt some $3000, upon an alleged diminution of profits upon another million feet, which was the subject of the action of replevin. At least such only is the character and merits of this defence in our estimation. But the defendants claim that they are entitled to a set-off in this action at least, for the expense incurred upon these logs under the contract up to the time they were notified of the claim of Herdic, Lentz & Whites,, which they claim to have shown was about $5 per thousand. If, when notified of this claim, they had surrendered their contract, with all its fruits, to the plaintiffs, such a demand would have been just and reasonable, but they elected to hold the contract and defend their rights under it. They retained the logs when replevied, and were subsequently allowed by the jury, as we have before stated, not only this expense of $5 per thousand, .but all the expense incurred in placing the logs in the boom.
    “ The only remaining item of defence to be considered is the costs in the action of replevin. That action seems to have been mutually defended by the parties, and to have been deemed necessary for the purpose of determining their rights. We, therefore, instruct you to deduct these costs, with interest, since the time of their payment from the plaintiffs’ claim, and render a verdict for the plaintiffs for the balance.]”
    The verdict was for the plaintiffs for $4838.34. The defendants took a writ of error and assigned the portion of the charge in brackets for error.

      W. S. Armstrong and S. Linn, for plaintiffs in error.
    The agreement was a sale of chattel interest and the measure of damages is that applying to the sale of chattels: Chitty on Contracts 301, 302 and notes; 1 Greenleaf on Evidence, § 270; Rob. on Frauds, § 236; Pars. on Cont. 312, 313; Douglas v. Shumway, 13 Gray 498; Nettleton v. Sikes, 8 Metc. 34; Harbold v. Kuster, 8. Wright 392; Backenstoss v. Stahler, 9 Casey 251; Whitemarsh v. Walker, 1 Metc. 312; Claplin v. Carpenter, 4 Id. 580; Yeakle v. Jacob, 9 Casey 376; Huff v. McCauley, 3 P. F. Smith 206. In such contract there is an implied warranty of title: Dorsey v. Jackman, 1 S. & R. 42; McCabe v. Moorehead, 1 W. & S. 513. The damages are consequential, but not speculative: Strong on Sales 577, § 454; Sedgwick on Damages 73, 260, 308; Davis v. Shields, 24 Wend. 322; 1 Domat’s Civil Law 199, 233; Hibbard v. Johnson, 19 Johns. 77.

      C. Lloyd, defendant in error, P. P.
    There can be no damages for loss of prospective profits: Hertzog v. Hertzog, 10 Casey 426; Armstrong v. Percy, 5 Wendell 535.
   The opinion of the court was delivered, April 4th 1870, by

Agnew, J.

The court below having held that an implied warranty of title attached to the sale of the growing timber, the plaintiff in error can only complain of the measure of damages allowed him. The Lloyds sold to Young, Finley & Co. all the white-pine timber growing on tract No. 5281, designating particularly a marked line as the southern boundary of the tract. Young & Co. cut the timber up to this line, and were notified by Herdic and others, the adjoining owners, that they had cut over the true line. The logs were brought to the boom at Williams-port, and there were replevied by Herdic & Co. Young & Co., at the request of Lloyd, gave bond and retained the logs. A verdict passed for Herdic & Co. in the replevin, and the record was brought into this court on a writ of error, as to the true measure of damages. We held, that the trespass having been committed under an honest mistake of title, the proper measure of damages was the value of the logs at the boom at the time of replevying, deducting all that it- had cost Young & Co. to cut, haul and drive the logs to the boom : 5 P. F. Smith 176. The effect of this was to give to the owners of the timber its market price when replevied, including all the advantages incident to the ownership; and yet to allow to the inadvertent wrongdoer, all the outlays expended in giving value to the property before it reached the boom. The case went back and was retried on these principles, and a verdict rendered for $7351.75. The plaintiffs in error gave this recóvery in evidence, and claim the amount of the verdict, less the price of stumpage, as their damages under the implied warranty of the title to the growing timber. This sum of $7351.75 represents the value of the timber at the boom, less the expenses of Young & Co. of cutting and getting it there; and therefore consists of two elements of value, to wit: the stumpage or price of the growing timber, and the increased market price by being at the boom. Young & Co. having paid nothing to Lloyd for the stumpage, it is admitted this element is no part of the damage sustained. But they claim the remainder as a profit to which they were entitled as they say under the contract. The contract therefore must govern. It was a sale of standing timber, to be cut and taken on the ground where it stood, at a measurement to be made there before removal. The land therefore was the place of delivery, and not the boom. The loss would be the expense incurred by Young & Co., and any additional value the timber might be shown to have at the place of delivery, beyond the contract price. But Young & Co. having been compensated for all their expenses in the deduction made in the verdict from the price of the logs at the boom; and having given no evidence of any advanced price at the place of delivery, it is evident could recover nothing more than the expenses incurred in defending the action of replevin at the instance of Lloyd. The costs were allowed, and it does not appear that any evidence of other expenses was given. Profits therefore do not seem to fall within the contemplation of the contract. A contract to deliver growing timber trees on the land, to be cut and taken away by the purchaser, cannot be said to have in view the price of a distant market. It would be giving it an unreasonable scope to say that the damagés could be measured by the price at any market to which the purchaser might choose to take the logs. The standard would fluctuate with his choice of a market. There being nothing on the face of the contract to indicate an intention to make the boom at Williamsport the destination of the logs, the loss by a failure of title must be measured by the increased price, if any, at the place of delivery, and the expenses incurred on the faith of the contract. Having retained the logs, Young & Co. have lost nothing in the verdict, which represents only the market price at the boom, after their expenses had been refunded.

We perceive no error in the ruling of the judge in the court below, and the judgment is therefore affirmed.


author: Sharswood, J.

text:
    The Pennsylvania Railroad Co. versus Sly.
    1. The Pennsylvania Eailroad Oo. leased the road of the Philadelphia and Erie Eailroad Co., with all their rights, powers, privileges, &c., the lessees in using the lessor’s road were not subject to the charges fixed by their own charter as to toll, but to the regulations in the charter of the lessors.
    2. By a lease a corporation as well as a natural person would succeed to all the rights, &c., and be subjeot to all the limitations, &e., imposed on the lessor.
    3. The lessee is the assignee for a term or period of the lessor; his bailiff to hold the possession for him.
    4. The limitations as well as the privileges in the charter have exclusive reference to the road the company was authorized to construct.
    5. The legislature in authorizing another corporation to take a lease, by necessary implication confer the rights of the lessor on the lessee.
    6. Toll is the consideration for the use of a road or bridge, not compensation for carriage over it.
    7. The rules of court as to assignment of errors must be complied with.
    8. Gratz v. Pennsylvania Railroad, 5 Wright 447, Boyle v. Philadelphia and Reading Railroad, 4 P. F. Smith 310, remarked on.
    March 29th 1870.
    Before Thompson, C. J., Agnew, Sharswood and Williams, JJ. Read, J., at Nisi Prius.
    Error to the Court of Common Pleas of Warren county: No. 375, to January Term 1870.
    This was an action of trespass (assault and battery) by Oscar Sly against The Pennsylvania Railroad Company, commenced May 4th 1869.
    Early in the morning of April 29th 1869, the plaintiff came to the Sheffield station on the Philadelphia and Erie Railroad, of which the defendants were the lessees, to take passage to Warren, a distance of 13 miles. The office was not open and the agent not there, and he was unable to procure a ticket. He got on the train without one, and when called on by the conductor tendered him in change 45 cents, the ticket fare from Sheffield to Warren. This the conductor refused and demanded 10 cents more, because he had no ticket, and because the plaintiff refused to pay the excess, he was by force ejected from the cars.
    The only legal question involved in the case was the right of the conductor to demand more than the 45 cents tendered.
    It was admitted that the conductor was acting in obedience to orders, that he knew the Sheffield office was closed when the train passed, that the plaintiff was unable to procure a ticket, and that 45 cents was fully 3J cents per mile for the distance the plaintiff desired to travel.
    By the act of incorporation of the defendants it is provided that in the transportation of passengers “no charge shall be made to exceed three cents per mile for through passengers, and three and one-half cents per mile for way passengers.”
    By Act of Assembly of April 13th 1860 the Sunbury and Erie Railroad Company (afterwards changed to the Philadelphia and Erie Company) were authorized “ to make and enter into any contract or contracts with any other railroad company having relation to the completion, the working of, or the traffic originating on, or passing over, or to and from” their road. On the 6th of January 1862 the Philadelphia and Erie Railroad Company leased to the defendants their road, &c., and stipulated, that the defendants should “ have, use, exercise and enjoy all the rights, powers and authority aforesaid, and all the other corporate powers and privileges which can or may be lawfully exercised and enjoyed on and out of said demised railroad and premises, as fully, amply and entirely as the same might or could have been used, exercised and enjoyed by the party of the first part had this lease and contract not been made, and as exclusively, fully, amply and entirely as the party of the first part had, or have, or shall acquire authority by law to grant the same.”
    The defendants’ points were:—
    1. If the jury believe from the evidence, that, an assault and battery was committed on the person of the plaintiff by the conductor and brakesmen, this would not entitle the plaintiff to recover damages from the defendants, such acts being out of the scope of the employment of conductor. Plaintiff’s redress would be against the conductor or brakesman for any damage he may have sustained.
    2. The plaintiff declining to pay the usual fare and not tendering the entire amount, the conductor having stopped the train to put him off for same, it would be too late for the plaintiff then to make tender, and defendants had a right to put him off their cars, using no more force than was necessary.
    The court (Johnson, P. J.) denied the points, and the verdict was for the plaintiff for §150.
    The defendants took a writ of error and assigned for error:—
    1. Answering the 1st point of defendants in the negative.
    2. Charging that the defendants, by their charter, were limited to 3J cents per mile and that the Philadelphia and Erie Railroad was operated under the charter of the Pennsylvania Railroad, limiting the rates of charges to 3J cents per mile, and not under the charter of the Philadelphia and Erie Railroad, in which it was conceded there was no limit.

      J. R. Thompson, for plaintiffs in error,
    referred to the Acts of Assembly relating to the two railroad companies.

      Wilbur & Allen and W. D. Brown, for defendant in error.
    A private corporation is liable for the acts of its agents within the scope of their authority, in the same way, and in the same form, as any individual person is: Pennsylvania Railroad Co. v. Vandiver, 6 Wright 370; McCready v. Guardians of Poor, &c., 9 S. & R. 101; Turnpike Co. v. Rutter, 4 Id. 17. The Philadelphia and Erie Railroad have not leased its corporate franchises to the defendants: Gratz v. Pennsylvania Railroad, 5 Wright 456.
   The opinion of the court was delivered, April 4th 1870, by

Sharswood, J.

The Sunbury and Erie Railroad Company was incorporated by an Act of Assembly passed April 3d 1837, Pamph. L. 170. It was invested with all the usual powers of a railroad corporation for constructing a road from Sunbury by the most eligible route to the harbor of Erie. There was granted to it all such liberties, privileges and franchises, necessary or incident to the making and maintaining the said railroad, convenient construction of depots, such cars, locomotives, fixtures and devices as may be necessary for the conveyance of passengers and the transportation of the mail and of goods, merchandise and commodities thereon.” By the 21st section it was declared that “ it shall and may be lawful for the president and managers from time to time to ordain and establish rules and regulations for the due ordering of all travelling and transportation on said road * * * provided that the toll * * * shall not exceed upon each passenger an average of two cents per mile.” By the Act of March 15th 1847, Pamph. L. 350, the directors of the said company were clothed with full power to transport passengers, goods, minerals, merchandise and other articles, and to receive and collect freight and tolls therefor, and by the 2d section, the 21st section of the original act of incorporation except the proviso was repealed. By a subsequent Act of March 27th 1852, § 8, Pamph. L. 188, the company was authorized to connect with other railroads under such arrangements as may be mutually agreed upon, and which the said company, as general transporters of passengers and freight between Philadelphia and Erie and intermediate places may deem expedient for economy or the better accommodation of the public. By an Act of March 7th 1861, Pamph. L. 94, the name of the cornoration was changed to that of “ The Philadelphia and Erie Railroad Company.”

The Pennsylvania Railroad Company was incorporated by an Act of Assembly, passed April 13th 1846, Pamph. L. 312, and by the 21st section it was enacted and declared that upon the completion of the said railroad the company shall have exclusive control of the motive power and may from time to time establish, demand and receive such rates of toll or other compensation for the use of the said road and of said motive power and for the conveyance of passengers passing over or on said railroad as to the president and directors shall seem reasonable, provided that in the transportation of passengers no charge shall be made to exceed 3 cents per mile for through passengers and 3-|- cents per mile for way passengers.

It was decided by this court in Gratz v. The Pennsylvania Railroad Company, 6 Wright 447, that it was within the corporate powers of the two companies for the Philadelphia and Erie Railroad Company to make such a lease of its road and franchises to the Pennsylvania Railroad Company as was afterwards executed and is on this record, under the Acts of April 13th 1860, Pamph. L. 711, and of April 23d 1861, Pamph. L. 410.

By the terms of the lease dated January 6th 1862, it was stipulated and agreed that the lessee, The Pennsylvania Railroad Company, “ shall have, use, exercise and enjoy all the rights, powers and authority aforesaid, and all the other corporate powers and privileges which can or may be lawfully exercised and enjoyed on and out of said demised railroad and premises, as fully, amply and entirely as the same might or could have been used, exercised and enjoyed by the party of the first part (The Philadelphia and Erie Railroad Company), had this lease and contract not been made, and as exclusively, amply and entirely as the party of the first part had or have or shall acquire authority by law to grant the same.”

This recital of the Acts of Assembly, the former decision of this court, and the terms of the lease, renders the solution of the question which is presented on this record by no means difficult. That question is whether the Pennsylvania Railroad Company as the lessee of the Philadelphia and Erie Railroad Company, is subject to the limitation imposed upon it by its charter in the transportation of passengers on its own road ? It might be concluded from general reasoning that the restrictions upon the'company in the transportation of merchandise and passengers upon a railroad authorized to be constructed by it, have no application to the use of another railroad of which it may become the lessee by authority of law. The learned judge admits that this would be so if the lessees were individuals or natural persons, but he failed to see that an artificial person authorized specially by law to take a lease is in the same position unless such authority is itself limited. By virtue of a simple lease, therefore, an artificial as well as a natural person would succeed to all the rights, liberties and franchises, and be subject to all the limitations imposed upon the lessor. The lessee is the assignee for a term or period of the lessor — his bailiff to hold the possession for him: Co. Litt. 289 b, note 2; it is so as to natural persons, why not as to corporations, unless the law has made a difference when it authorized the lease? The limitations which the legislature have prescribed, as well as the privileges they have granted, have exclusive reference to that particular subject-matter to which they relate, namely the road the company was authorized to construct. Good reasons may exist for a difference in these limitations growing out of the nature of the works themselves. The expense and difficulty of construction, as well as the small amount comparatively of travel and transportation, might render a'restriction of charge ruinous as to one road which would be perfectly just and right in the case of another not so situated. It was an argument well put by the counsel for the plaintiffs in error, and not answered, that if the rule of construction laid down by the learned judge below be sound, then the Philadelphia and Erie Railroad Company by becoming the lessees of the Pennsylvania Railroad Company could operate their road without being subject to the restrictions imposed by the charter of the latter. We can easily see to what consequences such a construction under existing laws and charters would lead — consequences certainly not foreseen by the legislature. The lessee of a railroad corporation must necessarily be bound by all the prohibitions and limitations contained in the charter of the lessor, and on the other hand must be held to be entitled to all their rights and franchises. The legislature by authorizing another corporation to take such lease have by necessary implication conferred them.

But the language of the charter of the Pennsylvania Railroad Company in which the restriction relied on is expressed, puts this construction beyond all question. The proviso in the twenty-first section is a limitation upon the power granted to charge such rates of compensation for the conveyance of passengers passing over or on said railroad as to the president and directors shall seem reasonable. The said railroad is of course the railroad authorized to be constructed by that act and no other. The lease of the Philadelphia- and Erie Railroad Company confers, as we have seen, upon? the Pennsylvania Railroad Company in the broadest terms all their1 corporate powers and privileges.

The learned judge below adds a postscript to his opinion on the-motion for a new trial, which was filed of record as his charge, viz.: “ Since writing the above I have discovered, on examination, that in a proviso to the twenty-first section of the act incorporating the Sunhury and Erie Railroad Company, it is enacted that the toll or fare to be charged upon each passenger shall not exceed two cents per mile.” The law is not accurately quoted, as the words “ or fare” are not used in it. It is clear that tolls, which is the only word employed, means charges upon transporters of passengers other than the company, not charges on the passengers themselves. Under that provision transporters could make any contract they pleased as to the rate of fare or compensation for carriage, but the company could not exact from them more than two cents per mile for each passenger. Toll, properly speaking, is the consideration for the use of a road or bridge, not compensation for carriage over it: Bouvier’s Law Diet. Such was the determination of this court in Boyle v. The Philadelphia and Reading Railroad Company, 4 P. F. Smith 310, in the construction of a similar provision in the charter of that company. “ The legal meaning of the word toll,” said Mr. Justice Strong, “ is and always has been well defined. It is a tribute or custom paid for passage, not for carriage — always something taken for a liberty or privilege, not for a service; and such is the common understanding of the word. Nobody supposes that tolls taken by a turnpike or canal company include charges for transportation, or that they are anything more than an excise demanded and paid for the privilege of using the way.” When the Sun-bury and Erie Railroad Company was originally incorporated, it was not contemplated that they should engage in the business of transportation. Hence, they were specially authorized “to prescribe the kinds and description of cars, carriages or wagons to be used on the said road for the conveyance of passengers and the transportation of the mails or of goods, wares, merchandise and minerals, and to regulate the speed at which they should travel, and to adopt and enforce such rules and regulations in relation to the transit thereof as they may deem expedient.” Indeed, it seems apparent that they had no authority to engage in the business of transportation, for by the 2d section they were expressly precluded from exercising “ any banking, manufacturing or trading privileges, or any other liberties, privileges or franchises but such as may be necessary or incident to the making and maintaining the said railroad, convenient construction of depots, such cars, locomotives, fixtures and devices as may be necessary for the conveyance of passengers and the transportation of the mail and of goods, merchandise and commodities thereon.” There is a marked difference between this language and that used in the Act of April 4th 1833, Pamph. L. 146, incorporating the Philadelphia and Reading Railroad Company, to whom was granted such franchises “ as may be necessary or incident to the making and maintaining of the said railroad, and the conveyance of passengers and the transportation of the mail, and of goods, merchandise and com•modities thereon.” It is plain that they were authorized to transport goods and passengers, with no express power to charge freight or fare, and with the same restriction on tolls as is contained in the charter before us. Yet it was held in the case before referred to that they were necessarily empowered to charge for transportation, “No provision,” said Mr. Justice Strong, “ was made respecting rates and charges for their own service as carriers; but the very purpose of their incorporation was that they might carry. How can they carry without compensation ? Authorized to engage in a business, it is necessarily incident to their authority that they have the rights which ordinarily belong to such a business.” * * * * “ The right to charge is implied in the nature of the business authorized, and I cannot conceive of conducting the business of transportation without the imposition of rates and charges.” When, therefore, the Act of 1847 gave to the Sunbury and Erie Railroad Company the privilege of transporting merchandise and passengers, with the power to collect freight and tolls therefor, the word tolls could have been used in no other sense than that in which it was used in the original charter. Nor was it necessary that there should be an express power to collect either freight or fare. The expression of freight does not exclude fare. It would be unreasonable in the highest degree to suppose that the legislature intended the one and not the other; for the proviso expressly saved as to tolls has a similar restriction as to merchandise and passengers. Freight, indeed, in its wide sense, may include fare, for it is that “ with which anything is fraught or laden for transportation;” and by a figure of speech the price paid for the transportation : Johnson’s Dict.; Webster’s Dict. We cannot attribute to the legislature the absurdity of providing that the company should collect besides freight, tolls on merchandise carried by themselves. That would be to authorize them to charge themselves for the use of their own road. The meaning evidently was, that as they might allow private transporters to place their ears on the road, they should still have the right to tolls under the original limitation both as to merchandise and passengers. This sustains the 2d assignment of error.

The 1st assignment is not in accordance with the construction whieh¡we have uniformly put upon Rule VII. “When the error assigned is to the charge of the court, the part of the charge referred to must be quoted totidem verbis in the specification 6 Harris 578. When the error alleged is the answer to a point or a refusal to charge, as requested, the point in writing must be copied in the specification, and the answer or refusal as given— for they are both necessarily a part of the charge or instruction to the jury. This assignment, therefore, need- not be noticed. With the great and continually-increasing business of this court, and the voluminous paper-books which have to be carefully read, it becomes more and more important,, to facilitate our labors, that these rules should be attended to by the members of the bar, and enforced strictly by- the court.

Judgment reversed, and venire facias de novo awarded.


author: Agnew J.

text:
    Coxe et al., Ex’rs versus England and Brown.
    1. In an action of trespass for cutting timber, its value was to be ascertained by the price of such timber in the vicinity, not by evidence of the net value in a distant market.
    2. Proof in this case of contents of a lost paper not sufficient.
    3. J. by power of attorney authorized O. to sell lands; this did not authorize C. to substitute an attorney under him.
    4. O. substituted L., who made a contract for the sale of timber on the land reciting a former contract. L.’s contract was not admissible as evidence of the first contract.
    5. In an action of trespass by J. for cutting timber, evidence by the defendants who defended under authority from 0., that J. had said to another person that he had authorized O. to sell timber was admissible.
    6. An agreement by O. as attorney for J. selling timber to L. was found amongst J.'s papers after his death, endorsed “not executed.” Held, not to be evidence of C.’s authority to sell.
    7. Hazleton Coal Co. v. Buck Mountain Coal Co., 7 P. F. Smith 301; Pattison's Appeal, 11 Id. 294, remarked on.
    March 30th 1870.
    Before Thompson, C. J., Agnew, Sharswood and Williams, JJ., Read, J., at Nisi Prius.
    Error to the Court of Common Pleas of Elk county: No. 182, to January Term 1870.
    This was an action of trespass q. c. f. by Alfred Cox and Ferdinand Cox, executors, &c., of John Redman Cox, deceased, against E. B. England and Jacob Brown, for damages under the 2d sect, of the Act of March 1824 (8 Smith L. 283; Purd. 961 pl. 2) for cutting timber. The title to the land from which the timber was cut was vested in the decedent December 22d 1840. He died about March 28th 1864, having made his will proved on that day; the plaintiffs were the executors of the will.
    The case was tried November 2d 1869, before Johnson, P. J.
    The plaintiffs gave evidence of cutting timber by Brown, one of the defendants, in 1860, on the land of decedent near Kersey, and of the presence of England whilst the cutting was going on, and gave evidence as to the value of such timber; they then offered to prove the price of logs at Williamsport as the nearest market; there being no market value for timber on the stump at Kersey. The defendant objected to the offer, which was rejected and a hill of exceptions sealed.

      It was admitted that the defendants took timber from the land : and the plaintiffs closed.
    The defendants gave in evidence a power of attorney, dated January 13th 1847, from the decedent to J. R. Cox, Jr. (his son), “ to contract and execute articles of agreement for the sale and. conveyance of all or any part of my unimproved lands, in the counties of Lycoming, Clearfield and Elk, in the said state of Pennsylvania, for such prices per acre as he may be able to obtain for the same,” &c.
    They then called J. Gr. Hall and exhibited to him a contract dated February 17th 1863, between J. R. Coxe, Jr., “ by his attorney in fact or agent Lorenzo Lewis Coxe,” (his son), and Elijah B. England. The witness testified: “ This contract is in my handwi'iting; I think L. L. Coxe had a paper, which was a power of attorney from his father to act in the matter; the contract between England and J. R. Coxe, Jr., was present; do not know who brought it there.”
    Defendants offered to prove that when L. L. Coxe was then negotiating with defendants, making a new contract, and having what was a power of attorney from his father, he claimed to be acting as the agent of his father.
    The plaintiffs objected to the offer; the evidence was admitted and a bill of exceptions sealed.
    Witness proceeded: “ I saw a power of attorney from J. R. Coxe, Jr., to L. L. Coxe, his son, and he claimed to be representing his father under that power, and so signed the contract, written and witnessed by me; he kept the power of attorney to himself, and is now dead, as also his father.” “I can’t state who produced the contract between J. R. Coxe, Jr., and England; I know L. L. Coxe had a power of attorney, but can’t say certainly it was present there, nor have I seen it since about that time; I don’t know the handwriting to the power of attorney L. L. Coxe had.”
    The defendants then offered the contract in evidence in connection with the other papers following:—
    Contract:—
    * * * “ That a certain article of agreement, dated the 16th of October, A. d. 1858, between the said parties, J. R. Coxe and E. B. England, by which article said Coxe agreed to sell and convey, in consideration of the sum of three thousand dollars, all the trees then standing or fallen, that will answer for merchantable lumber, &c., * * * is hereby cancelled and hereafter void: And whereas, the said England has already paid the three thousand dollars, mentioned as consideration money in said article, to said Coxe, it is hereby agreed between the parties that for the said moneys so paid, the said E. B. England is to have and keep without further charge, the timber or saw-logs he has already taken off said land, previous to this lumber season, and to have the right to take off, in merchantable saw-logs of pine timber, an additional amount of six millions of feet, board measure, including therein all cut since the 1st day of October 1862, and to be run to market this season, &c.; * * * and he is to have five years from the time Laurel Run shall be opened, so as to be navigable for floating logs, to cut and remove the saw logs, &c.
    (Signed), “John Redman Coxe, Jr. [seal].
    “ By his attorney in fact,
    L. Lewis Coxe, M. D.,
    E. B. England [seal].”
    Letter from J. R. Coxe, Jr., viz.:—
    “ September 29th 1859.
    “E. B. England, Esq.
    “ Dear Sir: I waited for you as long as possible, but imperative business compels me to leave. Should you have the money for me, pray leave it with Mrs. Coxe, who will give you a receipt in my name.”
    Draft and receipt, viz.: — ■
    “ Williamsport, September 3d 1860.
    “$1000 No.
    “Two months after date, pay to the order of J. R. Coxe, Jr., one thousand dollars, value received, and place to account of,
    “ Yours, &c., E. B. England.
    “ To C. & D. S. Cadwallader.”
    [Endorsed,] J. R. Coxe, Jr.
    “ Received, September 29th 1859, of E. B. England, one thousand dollars, on account of pine timber as per contract, due the 16th of October. “ John R. Coxe, Jr., M. D.
    “$1000. Per Mary J. Coxe.”
    Letters of J. R. Coxe, Jr., viz.:—
    “Philadelphia, September 19th 1859..
    “ E. B. England, Esq., Williamsport.
    ‘(Dear Sir: I duly received some time since your letter announcing your kind intention to send me a draft for $1000 on September 29th, and for which kindness I am greatly indebted.
    “ My object in now addressing you, is to inquire whether you still entertain the same intention, since as the 1st December is so near at hand, I would wish to be under no doubt whatever,” &c.
    “ Philadelphia, June 14th 1860.
    “E. B. England, Esq., Williamsport.
    “Dear Sir: I received your letter of the 7th in due time, and was very sorry to learn the loss you had sustained by the breaking adrift of the boom. * * * I am grieved for your sake, that you have been so unfortunate with your lumber; and I am also sorry for myself, as I well know you would have advanced, for me, had it been in your power. For my own part, I have, like many others, made some foolish speculations, and though they will ultimately pay well, say in from four to five years, yet so far they have only served to cripple me in money matters. * * * If I can by any means grant you an extension, you may be sure I will do so, as I have not forgotten your kindness in anticipating your last payment in order to gratify me. I hope to see you here in July, by which time I may be able to make some arrangement satisfactory to both of us.” * * *
    “Philadelphia, August 28th 1860.
    “ E. B. England, Esq., Williamsport.
    “Dear Sir: Your letter of the 24th inst. was received yesterday, and I hasten to reply. I think I can use it. I would willingly extend the time of your last payment, but I am unfortunately in a tight place; still a draft at two months, dated September 1st, would give you two weeks, and would answer my purpose, though of course not quite so well as cash.”
    “ Philadelphia, October 6th 1860.
    í‘E. B. England, Esq., Williamsport.
    “ Dear Sir: I duly received yóur letter enclosing a draft for $1000 at two months, but as I did not then need the money I made no effort to have it discounted. To-day, however, I applied to the Consolidation and Philadelphia Banks for a discount, and they both refused. They evidently, so I inferred, did not approve of Cadwallader as an acceptor. I shall, therefore, have to wait until November 6th, when Cadwallader has promised to pay it at the Consolidation Bank. As you requested me to inform you in case I did not get a discount, I now do so.” * * *
    The deposition of Mary J. Coxe, widow of J. R. Coxe, Jr.:
    She testified that she saw a letter in her husband’s hand in the summer of 1846 ; “ it was written in the handwriting of my father-in-law, J. Redman Coxe, Sr., and referred to the sale of timber upon some land of his in Pennsylvania; I was in my husband’s office at the time, and [I remember his suddenly saying to me: ‘Here’s some good news !’ and then continuing: ‘Father says I can sell the timber,’ or ‘have the timber;’ ‘off his land, and keep the money for myself,’ or ‘ keep the proceeds;’ it was good news; * * * my husband then read aloud to me that part of the letter which referred to this matter of the sale of the timber ;] I went and looked over his shoulder for an instant as he was reading, and I remember noticing that the letter was in my father-in-law’s handwriting.
    [“ My husband read aloud to me only that portion of the letter which I have already mentioned. It was to the effect that my father-in-law made a present of the timber upon this land of his to his son, my husband. I do not remember the exact words, but I am certain that this was their substance. As I have before stated, I looked at the letter myself for an instant, as my husband was reading it. I remember its beginning ‘My dear John,’ but beyond this, I can only remember seeing that the words were what my husband was then reading aloud, and that the sense of them was that my father-in-law told my husband that he might have the timber on these lands, and sell it for his own benefit, as a gift from him, his father. I cannot say that I remember any sentences of the letter word for word, as they were written or read aloud. I have given to the best of my recollection the substance of that portion of the letter which I read and heard.”]
    She also testified as to search for the letter and that it could not be found.
    The offer was made for the purpose of showing the sale of timber to England, and to show by secondary evidence the existence and contents of the contract- of October 16th 1858, and for the purpose of showing the authority of J. R. Coxe, Jr., to sell the timber.
    The offer was objected to by the plaintiff because, no authority was shown in L. L. Coxe; the contract of 1858 is not shown nor proved to have been executed by J. R. Coxe, Jr.; the receipt of money after the contract is no evidence of it's execution; the statement in Mrs. Coxe’s receipt that the payment was “for timber for contract,” was without authority of J. R. Coxe, Jr., or his father; the draft had no connection with the contract; the letters are only admissions of what the agent had previously done ; Mrs. Coxe does not prove the whole contracts of the letter ; the power of attorney gives J. R. Coxe, Jr., no power to sell timber. The court admitted the evidence and sealed a bill of exceptions. There was also a separate bill of exceptions to the admission of Mrs. Coxe’s deposition.
    John Grier having testified to an interview with J. R. Coxe, Jr., as to a sale of timber on his father’s land, defendants proposed to prove by him that about the year 1847 or 1848 he called on J. Redman Coxe, Sr., in Philadelphia, having learned his address from J. Redman Coxe, Jr., in the interview already stated. That in the interview the said Coxe, Sr., informed witness, that he had given to his son, the said J. R. Coxe, Jr., power and authority to sell the timber upon his lands in Lycoming, Clearfield and Elk counties, and referred witness to him as the proper person to make sale of such timber, and that upon inquiry as to payment, the said Coxe, Sr., stated to him that he did not consider the timber of much value, that his lands in Clearfield and Elk were chiefly valuable for their minerals, and that the timber was in the way of the settlers. That he had given the timber on said Clear-field and Elk county lands to his said son as compensation for his trouble in charge and care of his lands, to sell for his own benefit, and that he was authorized to receive payment for the same, and appropriate the proceeds to his own private use, and that as he had given such power to his son, he declined to make any sales of the timber himself, and referred the witness to J. R. Coxe, Jr., as the proper person to make sale of the timber, and that all payments made to him would be good payment to the purchaser.
    The offer was objected by the plaintiffs, admitted by the court and a bill of exceptions sealed.
    The testimony of the witness was in accordance with the offer.
    In rebuttal, the plantiffs gave in evidence a paper found amongst papers of decedent endorsed “ not executed,” being an agreement dated April 23d 1849, between the decedent “ by his agent and attorney J. R. Coxe, Jr.,” and R. M. Stevenson. The paper was signed “ John R. Coxe, by his agent John R. Coxe, Jr.,” but not by Stevenson. It was for the sale to Stevenson of all the white-pine trees on land belonging to Coxe, granting to Stevenson privilege within twenty years to enter upon the land and cut and carry away the timber, to erect buildings, mills, &c., Stevenson to pay fifty cents per thousand in the manner set out in the agreement, Coxe to have a lien on the timber in the hands of Stevenson’s factors, the contract to be void on Stevenson’s failure to comply with the stipulation, &c., &e.
    They also gave in evidence a letter dated December 3d 1847, from J. R. Coxe, Jr., to his father, advising him to adopt measures to sell the timber advantageously; advising him not sell immedi-. ately, with other matters tending to show that the ownership of timber was still in the father.
    The plaintiffs submitted these points :—
    5. That the evidence of Mrs. Coxe does not prove the contents of the whole letter from J. R. Coxe, Sr., to her husband, and is therefore not such evidence of the contents of a written paper as is requisite to get it before the jury.
    7. That there is no evidence to submit to the jury of a ratification on the part of John R. Coxe, Sr., of the sale of the timber by John R. Coxe, Jr., to E. B. England.
    The defendants submitted this point:—
    If the jury believe from all the evidence in the cause that John Redman Coxe, Jr., had authority, either in writing or verbal, from John Redman Coxe, Sr., to make sale of the timber in controversy, and that in pursuance of such authority he sold the same to E. B. England, and that by virtue of such sale the said defendants entered upon the land, removed the timber and before the bringing of this suit, and paid the purchase price to John Redman Coxe, Jr., the plaintiffs cannot recover in this action.
    An understanding of the case requires that the charge of the court should be given almost in extenso ; as follows:—

      “ The question upon which this cause hinges is whether J. R. Coxe, Jr., had power or authority to sell the timber on the land of his father, known as tract No. 4892, in this county. If he had the plaintiff cannot recover. If he had not the plaintiff is entitled to recover — of the amount we will speak presently.
    “ The undisputed evidence is that J. R. Coxe, Sr., owned the land on which the timber in dispute grew: No. 4892, containing 490 acres, and that on the 13th of January 1847, he executed and gave to his son J. R. Coxe, Jr., a power of attorney to sell this and other lands or any part thereof, at such price as he pleased. J. R. Coxe, Jr., moved to Williamsport about 1845, remained about three years, then moved back to Philadelphia. The plaintiffs then offer evidence to prove that J. R. Coxe, Jr. had an additional authority from his father by letter, to sell the timber on his lands up in Clearfield and Elk counties, and that he did make sale of the timber on this tract in Elk county and one in Clearfield to E. B. England, one of the defendants.
    “ The letter- from the father to the son is said to be lost, and the alleged contract from the son to the defendants is proved to have been destroyed.
    “ Having proved the existence and loss of these two papers the defendants then offer such proofs as they have of their contents.
    “ Of the letter from J. R. Coxe, Sr., to his son, and its contents, you have the testimony of his widow Mary J. Coxe.
    “We think the fact whether the elder Coxe did write such a letter to his son, giving him authority to sell the timber for his own'benefit and support, is one to be determined by you from this and certain other evidence in the case.
    “In support of the position that the son J. R. Coxe, Jr., had authority or leave to sell the timber, the defendants offer for your consideration:
    “ 1. This evidence of Mrs. Coxe just read.
    “ 2. The testimony of John Grrier, that the father refused to sell him timber, saying he had none to sell, but had authorized his son to sell all the timber on his land up in these counties.
    “ 3. That J. R. Coxe, Jr., did sell large amounts of timber off ' this and other lots, which the purchasers spent several years in taking off, and for which they paid the son large amounts of money, without protest or any complaint from the old man, and ask you to infer from this that he, the father, knew and acquiesced in what had been done.
    “4. [An agreement drawn up and signed by J. R. Coxe, Jr., as agent of his father, to sell to R. M. Stevenson a quantity of timber on his lands upon these waters, found among the papers of his father, and offered in evidence by the plaintiffs, by which they give the act and declaration of the son, affirmative of his authority to sell timber, thereby virtually admitting the son was exercising the right of selling the timber alone with the knowledge and acquiescence of his father, and that such acquiescence is evidence of authority.]
    “ 5. The letter of J. R. Coxe, Jr., dated December 3d 1847, to his father, about selling the timber separately, as evidence of the construction of the written power, or a recognition of a subsequent or parol power to the son to sell the timber. '
    “ All these facts, circumstances and inferences make the question such a mixed one that we refer it to you for solution instead1 of deciding it as a matter of law.
    “ This is the main and principal question in the cause and must be determined from the evidence alluded to.
    “ In considering them you may take into consideration the probabilities arising from the relationship of the parties, the dependence of the son on the father, and the fact that the parties, father and son, were living near neighbors to each other, in the same city, while this alleged spoliation of the timber was going on, in friendly intercourse.
    “ The plaintiffs have asked us to charge you that the power of attorney given by the elder Coxe to his son, dated January 13th 1847, does not contain authority to sever and sell the timber from the land. We agree to this construction of that iilstrument and answer their 3d point in the affirmative. Yet the parties had power so to construe it, and if they did mutually agree that it should be so understood and construed they would be bound by their own interpretation, and not permitted to gainsay it to the prejudice of rights that had been acquired by others in pursuance of such construction. * * *
    “We do not agree with the plaintiffs’ fifth point, and have already given our views on the subject of which it treats. With the other evidence in the case pointing to the existence of such a license or power, as' the letter spoken of by Mrs. Coxe is alleged to have contained, we submit the question of its existence and contents to you.
    “We decline to charge as requested in the seventh point.
    “ From the view we have taken of the evidence in this case, it does not become very material whether the defendants had a written contract with J. R. Coxe, Jr., or not. The plaintiffs say there is no sufficient proof of such a contract. We have acquiesced in this as a legal proposition. But we say further, a written contract is not absolutely necessary to their defence. And this brings us to consider the legal position presented to us by the defendants’ counsel.
    “We affirm the defendants’ point, with this exception and explanation, that you are to take into consideration all the evidence in the cause in seeking for the conclusion as to the authority to sell.

      “ We have already said that the written regular power to J. R. Coxe, Jr., from his father to sell the land, did not authorize the severance and separate sale of the timber unless the parties to it mutually agreed it should be so construed, and acted upon that construction in their transactions with the defendants. Of this there is no direct evidence. If they did so understand, and act upon the power referred to, it is only disclosed inferentially by their subsequent conduct.
    “ But we do say to you, that if the elder Coxe, owning both land and timber, made a gift of the latter to his son, or gave to him the authority or license to take or sell the timber and appropriate the proceeds to his own use and the maintenance of his family by parol or by letter, and he did so, and in the execution of that gift or permission, he sold the timber to the defendants, and they took the timber without any revocation of the grant or license, or notice to them to quit, he, J. R. Coxe, Sr., could not afterwards sue the parties in tort for taking it, neither could his executors after his death. If such be the fact, then the plaintiffs are not entitled to recover. Such a position would encourage bad faith and suffer a party to implicate another in a trespass by the denial or revocation of his own contract. But of this fact you must be satisfied from the evidence, and the evidence bearing upon that point I have already alluded to.
    “While the law would not hold the father bound by a parol contract to sell the land even to his son, it will not permit him to sue his son in trespass for entering the land upon such a parol sale, or parol license, less than a sale.
    “ If the son had a parol permission to cut and appropriate the timber, he could transfer that right, and do the same by another which he was empowered to do himself.
    “The logical result is, therefore, if the timber in dispute was cut and taken off with the consent of the owner, J. R. Coxe, Sr., and the proceeds went to the purpose he designated and had appropriated them, although he might have rescinded or countermanded the license at any time before it was fully executed, he cannot afterwards treat those who acted under it, as trespassers.
    “ This is an action of trespass, and if such was his permission and authority at the time, he nor his executors cannot repudiate it and recover now. A man cannot tell his neighbor that he may cut and have such a tree on his land at a fixed price, and after he has taken and paid him for it, sue him in trespass for wrongfully entering his close and committing waste.”
    The verdict was for the defendants.
    The plaintiffs took a writ of error, and assigned 15 errors.
    1. Rejecting their offer of evidence as to the value of timber at Williamsport.
    2. Admitting the offer in the 2d bill of exceptions.

      8. Admitting the testimony of Grier.
    14. Admitting the deposition of Mary J. Coxe.
    4 and 5. The answers to the plaintiffs’ 5th and 7th points.
    18. The answer to the defendants’ point.
    7. That part of the charge included in brackets.
    6, 8, 12, 15. Other portions of the charge.

      H. Souther and R. Brown, for plaintiffs in error.
    Evidence as to the value of timber at Williamsport was proper: Hazleton Coal Co. v. Buck Mountain Coal Co., 7 P. F. Smith 301. Mrs. Coxe could not give the whole of the letter; the whole of a party’s statement must he given: 1 Starkie on Ev. 359; Carver v. Tracy, 3 Johns. R. 427; Fenner v. Lewis, 10 Id. 38; Wailing v. Toll, 9 Id. 141; Whitwell v. Wyer, 11 Mass. R. 6. Parol declarations of the owner of land are not admissible to defeat his title: Barnard v. Pope, 14 Mass. R. 434. A witness must speak clearly of the contents of a lost paper: U. States v. Button, 2 Mason R. 468; Taylor v. Riggs, 1 Peters’ R. 600; Renner v. Bank of Columbia, 9 Wheat. 581. There was no proof that Mrs. Coxe knew the handwriting of her father-in-law: Slaymaker v. Wilson, 1 Penna. R. 219; Porter v. Wilson, 1 Harris 641. Her statements were hearsay: 1 Phillips on Ev. 165; 1 Greenl. Ev., § 124. There was no delivery to the son; this is essential to a gift: 1 Pars. on Contr. 234. A license is not assignable: 3 Kent’s Com. 452; Jackson v. Babcock, 4 Johns. 418. Parties standing in the relation of parent and child, &c., are held to stricter proof of their dealing than strangers: Bash v. Bash, 9 Barr 260; Lantz v. Fry, 2 Harris 201; Sanders v. Wagonseller, 7 Id. 248; McCue v. Johnston, 1 Casey 308; Hugus v. Walker, 2 Jones 173; Poorman v. Kilgore, 2 Casey 365.

      H. C. Parsons and Armstrong Linn, for defendants in error.
    It is not trespass to cut timber under a parol license: Pierrepont v. Barnard, 2 Seld. 279; Nettleton v. Sikes, 8 Metc. 34; Whitemeash v. Walker, 1 Id. 313; Claflin v. Carpenter, Id. 580; Liggins v. Inge, 7 Bing. 682; Tayler v. Waters, 7 Taunt. 374; Lyron v. Blakeman, 22 Barb. 536; Rerick v. Kern, 14 S. & R. 267; Swartz v. Swartz, 4 Barr 353; Ebner v. Stichter, 7 Harris 19; Huff v. McCauley, 3 P. F. Smith 206.
   The opinion of the court was delivered, May 5th 1870, by

Agnew J.

This was an action of trespass for cutting standing timber. Its value was therefore to be ascertained by the price of such timber in the vicinity, and not by the net value of the logs cut from it, in a distant market. The evidence shows that the timber had a price where it stood, the value of stumpage, as it is termed, being proved by numerous witnesses. It was not a case of necessity, where the distant market was really the only market, as in the case of The Hazelton Company v. Buck Mountain Company, 7 P. F. Smith 301. We cannot say there was error in the first bill of exceptions.

There was error in the admission of portions of the offer contained in the second bill of exceptions. The purpose expressed was to show a sale of the timber by John Redman Coxe, Jr., to E. B. England, and also his authority to make the sale. This being a suit by the executors of John Redman Coxe, the elder, for a trespass in cutting the timber, the authority to be proved meant his authority to his son and the sale'by his son, his sale as the principal. The means offered of proving the fact of a sale by the younger Coxe to England, was a written and sealed agreement dated February 17th 1863, signed by L. Lewis Coxe, a son of the younger John Redman Coxe, as attorney in fact of his father. But there was no competent proof that a power of attorney existed. None was produced or proved by any one who knew it to be an authentic document. John Gr. Hall merely testified that he thought L. L. Coxe had a paper which was a power of attorney from his father to act in the matter. On his cross-examination, he said he knew L. L. Coxe had a power of attorney, but could not say certainly it was present there, nor that he had seen it since, and did not know the handwriting to the power of attorney L. L. Coxe had. He does not undertake to state its contents at all. It is very evident therefore that there was no proof of any authority to execute the agreement of the 17th February 1863. This left that agreement without support, and being inadmissible in evidence, its recital of the contract of 16th October 1858 was also inadmissible as proof of the former agreement. Another objection to the agreement, so far as it was to be used to affect the plaintiffs, is that the power of attorney from the elder to the younger John Redman Coxe, did not authorize substitution of an attorney under him.

Another portion of the offer in the second bill of exceptions is a deposition of Mrs. Mary J. Coxe, the widow of John Redman Coxe, Jr. It was offered to show authority, by a letter, from the elder to the younger John R. Coxe to make sale of the timber. It was inadmissible for this purpose on several grounds. Mrs. Coxe does not testify to any real knowledge of her own of the contents of the letter. What she knows of that part of the letter testified to is evidently what she heard her husband read aloud, and not what she saw. She says she looked over her husband’s shoulder for an instant as he was reading. She remembers the letter beginning, My Dear John,” but beyond this she can only remember seeing that the words were what her husband was reading aloud. She cannot say that she remembered any sentences of the letter word for word, as they were written or read aloud. Her account evidently shows a hasty glance only at the letter, while the true source of her recollection was the utterance of her husband. Such an instant sight leaves conviction in the mind that her knowledge was hearsay, and not competent proof of the contents of the letter. In addition to this she does not profess to give the whole contents, and does not even state that this portion of the letter was all that related to the subject of the timber. On this point her testimony falls far short of the evidence of the contents offered in Dennis v. Barber, 6 S. & R. 420; a case which rules this in respect to the proof of contents.

We cannot say there was error in receiving the offer contained in the third bill. The testimony of John Grier of the declarations made by the elder John R. Coxe, was admissible. Its effect would depend on other portions of the case to be viewed in connection with it.

It seems to us that the language of the judge set forth in the 7th assignment of error was but a statement of the effect attributed by the defendants to the agreement to sell timber to R. M. Stevenson. If his own inference it would be incorrect. That agreement was never finished and was found with the endorsement upon it — “not executed.” It could not be inferred from such an incomplete writing found among his papers that the elder Coxe recognised his son’s authority to sell the timber.

It is unnecessary to examine in detail the assignments of error as to the effect of a parol gift of the timber by the elder to the younger Coxe, or the effect of a mere license to cut the timber and use its proceeds. The result of the whole instruction was that if the elder Coxe authorized the younger Coxe to sell the timber and receive the proceeds to his own use, and the timber was actually cut and taken under this authority by the defendants, without a notice to desist or of revocation of the authority, the defendants cannot be treated as trespassers by the executors as plaintiffs in this action. We cannot say this was an error. If the question arose on the sale itself, involving a right of specific performance, or the rights of third parties, the ease might be different as we held in Pattison’s Appeal, 11 P. F. Smith 294, from Tioga county at last term, and the timber would be considered a part of the realty. But when the question is, as here, whether the cutting of the timber was a trespass or not, it would be harsh law that would treat as a trespasser one who had entered and cut the timber by authority of the owner, because his permission was not in writing. These remarks cover the merits of the fifteen assignments of error, and the judgment is therefore reversed and a venire facias de novo awarded.