author: Chief Justice Agnew Per Curiam.

text:
    Wistar v. Philadelphia.
    1. Paving the footway and curbing had been done by a property owner on Broad street, Philadelphia, upon the requirement of the authorities; about four years afterwards, the roadway was narrowed by councils, the footway widened, and he required to put up a new and costly curb ; having neglected this the city did the work and filed a claim against his property : Held, that the foregoing facts, and that the streets, &c., were in good condition and required no repair, were a defence to the scire facias on the claim.
    2. A power to pave conferred by Acts of Assembly implies a power to repair and repave when the condition of the streets requires it; of this the eity authorities may primfl, facie judge.
    3. A power conferred by the legislature to take up, alter and relay pavements and curbs at the pleasure of a municipal corporation and at the expense of the property owners, who had recently paid for a good pavement, is in derogation of the right of private property as laying a special tax on a small class.
    4. The 40th section of Act of February 2d 1854 (Consolidation Act), does not intend to confer the power on the city to make such improvement, except at the expense of the city.
    5. The foundation of the power to tax specially, is the benefit the object of the tax confers on the owner of the property.
    6. Paving at the expense of the adjoining owner means the paving that is customary.
    7. Acts of February 2d 1854, sect. 40, and April 6th 1838, sect. 3, examined.
    8. Philadelphia v. Hoxie, 2 Wright 339; Philadelphia v. Tryon, 11 Casey 402; Heed v. Erie, 29 P. F. Smith 346, remarked on.
    February 24th 1876.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the District Court of Philadelphia: Of January Term 1875, No. 91.
    This was a scire facias sur mechanics’ lien, issued September 12th 1874, by the city of Philadelphia, to the use of Joseph Johnson, James Holgate and Lafayette Horter, against Richard Wistar.
    The claim was filed February 10th 1874, “ against all that certain lot on the east side of Broad street, at the distance of 263 feet north from Race street, containing in front on Broad street 121-| feet, * * * for work done and materials furnished on Broad street in front of said lot, and duly assessed and charged as follows:—
    “1873, August 30th.
    For 121| linear feet of curbstone, @ $1.85, $224.77
    For measuring charge, 2.42
    5 per centum imposed by Act of March 23d 1866, 11.35
    $238.54
    “ Said work having been done pursuant to direction and order-of the highway department, under authority of ‘ an ordinance for the improvement of Broad street, south of Poplar street,’ approved December 31st 1872, after the curb line was adjusted in accordance therewith, and after a contract for paving the cartway of Broad street in front of the above described ground had been made, and the owner of the above described ground had been notified to cause the curb in front of the same to be set with cut granite curbstones, and had neglected and refused to set curb as aforesaid for more than thirty days after said notice, and after said contract was entered into for paving the cartway.” * * *
    The defendant filed an affidavit of defence averring:—
    “ He is, and has for some years past been, one of the owners of the premises on Broad street, against which said claim is filed. His brothei’, W. Lewis Wistar, is co-owner with him. After they became such owners, and not more than about four years ago, the sidewalk in front of said property was newly paved with bricks, supported by curbstones which were then reset in the manner required by the Acts of Assembly and ordinances then existing, and at their expense under notice from the highway department requiring that said work should be done. Some time prior to December 1872, the roadway of Broad street, north of Poplar street, having been narrowed, the sidewalks were widened to twenty-eight feet on each side, the owners being allowed the privilege of enclosing eight feet as a garden, with open work of iron or stone.”
    The affidavit referred to set out the following ordinances and Acts of Assembly:—
    On the 31st of that month an ordinance was passed by the councils, the first section of which required the department of surveys to lay out and adjust the curb line on both sides of Broad street from Poplar street southward, so as to correspond with present curb lines on Broad street north of Poplar street, and so that the width of roadway south of Poplar street should be the same as north of that street, and no contract for paving should be made for any greater width than the width of the roadway so adjusted.
    “ Sect. 2. When any contract shall be made as aforesaid, the owners of ground fronting upon said street shall, within thirty days after the curb line upon said street shall have been laid out and adjusted as aforesaid, cause the curb in front of their several properties to be reset with cut granite curbstones, which shall not be less than eight inches in thickness, two feet in depth, and each stone not less than nine feet in length, and also to pave or repave the sidewalks in front of their properties with well laid and solid pavement to the line of the said curb, and in case any such owner shall neglect or refuse so to curb and pave his footway, the same proceedings shall be had as are now authorized in the case of owners of lots neglecting to curb and pave their footways.”
    Sect. 4. Repealed all ordinances inconsistent with this ordinance so far as related to the curbing, grading and paving of the foot-ways and roadway of Broad street, south of Poplar street.

      “ On the 28th of April 1873, an Act of Assembly was passed, viz :—
    “ ‘ That the Select and Common Councils of the city of Philadelphia be and they are hereby authorized and empowered to alter and regulate the curb lines and heights, and determine and make uniform the widths of the footways of the streets within the limits of the said city.”
    The following resolution of councils was passed May 19th 1873.
    “ That the department of surveys be authorized and is hereby directed to have prepared plans in duplicate of Broad street, between Poplar street and League Island, fixing the width of footways at twenty-two feet, and adjusting the grades to conform therewith.”
    After the passage of this ordinance, but prior to July 7th 1873, a plan for the revision of the curb line of Broad street, from Vine to South street, was prepared by the board of surveys, and notice was given by the city solicitor by handbills and advertisements that the board of surveys had fixed July 7th 1873, to hear any objections. * * * Said plan was subsequently approved by the said board, but no further action in respect thereto was taken .by the councils of the city, nor was any further ordinance or resolution passed by said councils in reference to the alteration or regulation of the curb lines and heights on said street, or the determination and making uniform of the widths of the footways thereon. The said plan of revision of said board did not prescribe curb lines uniform with other parts of said street, but while north of Poplar street the sidewalk was twenty-eight feet wide, and south of Vine street eighteen feet wide, said plan , made by said board fixed a width for the sidewalk between Race and Vine of twenty-two feet. Prior to said 7 th day of July 1873, notices had been given to the deponent and sundry others of the owners of property on said street, requiring them “ to have granite curbstones set and the footway paved opposite (their) property * * * within thirty days, in conformity with the ordinance of December 31st 1872,” but after the said action of said board in respect to said plan, on or subsequent to July 7th 1873, no further notice having been given to. property owners, the commissioner of highways proceeded under the alleged authority of the act and ordinances, the curbs already set in conformity with law were removed, and a new and most expensive cut granite curb set on the new line indicated by said plan of revision made by the board of surveys, and the claim for which this suit is brought is for said new curb, the cost of which is more than three times that of the old curb, and for the setting of the same without any allowance for the old curb.
    The affidavit further averred that the ordinances cited and subsequent ordinances were part of a system by which it was intended to make Broad street a great public thoroughfare, to ornament, &c., so as to make it attractive “ without any pretence that there were any defects in the footway which required repairs or that it was not sufficient for the public travel or that it did not comply with the laws in force when it was laid,” and without any allegation that the curbstones already set were not proper and sufficient for the purpose or that the repair or resetting of the curbstones was needed.
    The defendant was advised and believed that the above-mentioned act and ordinances did not give authority to the city to set new and costly cut granite curbstone and charge the defendant with the cost.
    The defendant afterwards filed a supplemental affidavit of defence, which averred, amongst other things, that the curbstones previously set “ were of proper and sufficient width, in every respect proper and sufficiently well laid ; and set in the style and manner universally adopted for years past in this city, and’ so as to assimilate that part of the city in this respect with other parts of the city, and comply with all laws and ordinances prior to said date; that said sidewalk or footway were in good order and condition, needing no repair or improvement, or any relaying, resetting, alteration or substitution whatever; that no notice to repair said sidewalk, or reset said curb, or any notice other than (that mentioned in the) original affidavit, was ever given to this deponent or his said brother. * * * That at or about the date in said claim mentioned, without taking up or distributing said pavement so laid, or said curbstone so reset, the costly cut granite curbstone for which this claim is filed, was set outside of 'said old or existing curbstone, at the distance of twenty-eight feet from the house line, leaving an unpaved surface between said two curbstones, both of which now are and remain on the ground, set’in the usual way; that no such new and costly curbstone, or any new pavement for the sidewalk or any widening of the said sidewalk was necessary for public comfort and convenience, or to bring or keep that part of Broad street in the condition of other streets for the ordinary benefit, advantage, use, business and travel of those living upon it, or of the public generally ; but that said-sidewalk was widened, and said costly cut granite pavement laid, to make or fit said street for a great, improved, ornamental public drive.” * * *
    The ordinance of December 31st 1872, relating to the improvement of Broad street, provided, amongst other things, that
    “ Within thirty days after the curb line upon said street shall have been laid out and adjusted as aforesaid, the owners shall cause the curb in front of their several properties to be reset with cut granite curbstone, which shall not be less than eight inches in thickness, two feet in depth, and each stone not less than nine feet in length; also, to pave or repave the sidewalk in front of their properties with well-laid and solid pavements to the line of said curb. And in case any such owner shall neglect or refuse so to curb and pave his or her footway, the same proceedings shall he had as are now authorized in case of owners of lots neglecting to curb and pave their footways.”
    The 3d section of the Act of April 16th 1838, Pamph. L. 626, enacts:—
    “That the councils of Philadelphia may, from time to time, establish such rules as they may deem expedient for the better regulation of porches, benches, door-steps, railings, bulk-windows * * * or other thing projecting over the sidewalks or other portion of any streets, lanes or alleys ; and in relation to boxes, &c., placed in or upon any of the said footways, &c., and for the better protection and regulation of markets, &c., and at the expense of the owner of the property adjoining, to regulate, grade, pave and repave, curb and recurb the said footways, * * * and the same enforce by suitable penalties * * * recoverable before any alderman,” &c.
    The Act of February 2d 1854 (Consolidation Act), section 40, Pamph. L. 43, enacts:—
    “ That it may be prescribed by ordinance that paving of streets, except at the intersection thereof and of footways, and laying of water-pipes within the limits of the city, shall be done at the expense of the owners of ground in front whereof such work shall be done, and liens may be filed by said 'city for the same as is now practised and allowed by law.”
    The District Court (Hare, P. J., and Thayer, J., dissenting) entered judgment against the defendant for want of a sufficient affidavit of defence.
    The defendant sued out a writ of error and assigned for error, the entering judgment against him for ay ant of a sufficient affidavit of defence.

      J. II. G-endell and E. 8. Miller, for plaintiffs in error.
    The improvement for which this claim is made is to compel the defendant to pay for that which is a general benefit; this cannot be done: Hammett v. Philadelphia, 15 P. F. Smith 146; Washington Avenue, 19 Id. 352. They cited and discussed the Acts of Assembly and city ordinances relating to the questions in the case.

      D. W. Sellers, for defendant in error.
    The Acts of Assembly and city ordinances under which the work was done are valid: Philadelphia v. Sutter, 6 Casey 55; Philadelphia v. Tryon, 11 Id. 401; Philadelphia v. Wistar, Id. 427; Lipps v. Philadelphia, 2 Wright 503; Philadelphia v. Burgin, 14 Id. 539. No conclusion of any defence which shows a want of power to authorize the Avork has been sustained: Kensington v. Keith, 2 Barr 218; Reilly v. Philadelphia, 10 P. F. Smith 467; Hammett v. Philadelphia, 15 Id. 146; Philadelphia v. Hoxie, 2 Wright 339. In all cases where a statutory tribunal is created to determine a question out of the course of the common law, there is no review in any manner of the judgment of such tribunal, unless the statute gives it: Taylor v. Board of Health, 7 Casey 75; Fisher v. Harrisburg, 2 Grant 291; Wharton v. Borough, 1 Wright 371; Horner v. Railroad Co., Id. 335; Carr v. Northern Liberties, 11 Casey 324; Hughes v. Kline, 6 Id. 227; Kimber v. County, 8 Harris 366; Hulseman v. Rems, 5 Wright 396; Richardson’s Appeal, 6 Casey 510.
    May 8th 1876.
   Chief Justice Agnew

delivered the opinion of the court,

What we have to deal with here, is the affidavit of defence. Does it set forth a sufficient ground to defeat the plaintiff’s recovery ? Want of power to impose the alleged liability is clearly a good defence. The question is not whether the legislature might authorize such a claim to be made, but whether this authority has been granted.

The original and supplemental affidavits are diffuse, setting forth many things unnecessary to be noticed. Premising that the claim filed is a naked charge for 121J feet of curbstone laid opposite the defendant’s lot, without circumstances stated, except that the work was done in pursuance of the ordinance of December 31st 1872, after adjustment of the curb line, and a contract made for paving the street, we may gather and condense the following facts from the affidavits of defence : That about three years before the new cm-bing was set, the footway opposite defendant’s lot had been well paved, and the curb set at his expense; that they were of proper and sufficient width, similar in style to those in other parts .of the city, and well done according to the laws and ordinances of the city; that they were in good order and condition, needing no repair or improvement, and no resetting, alteration or substitution; that the new curbing was no repair, but that the city chose, of her own purpose, to change the alignment of the curb and pavement, and to require a new and most expensive granite curb to be set on the new line, costing more than treble the expense of the former curb, without any allowance for the cost of the former curbing. On these facts the question is, did the laws conferring authority on the city to pave footways and curb them at the expense of the owners of the ground in front thereof, confer the power to set new and costly curbs on a new line at the expense of the owners ?

As remarked by Woodward, J., in City v. Tryon, 11 Casey 402: “ This is a power of special taxation, and must have explicit legislation to support it.” The property in question lies on Broad street, between Race and Yine, and is therefore within the old city. The only legislation to which we have been referred, or which I have found, is in the Consolidation Act of February 2d 1854, and in the 40th section, viz : “ That it may be prescribed by ordinance that paving of streets, except at the intersection thereof, and of footways, and laying water-pipes within the limits of the city, shall be done at the expense of the owners of ground in front whereof such work shall be done, and liens may be filed by said city for the same, as is now practised and allowed by law.” It may be conceded that curbing is a necessary part of paving to separate and support the footway from the cartway. It may be conceded also, that a general powrer to pave implies a power to repair and repave when the condition of the cartway or footway requires it; and of this primá, facie the city ofiBcers may judge. The affidavit asserts that this was not a repair but a new alignment and alteration of the curb. Then does the 40th section of the Act of 1854 confer a power at pleasure, to change, take up, alter, and relay pavements, and reset curbs, at the expense of the owner of the front, who has recently paid for a good pavement or curb ; and therefore to do this as often as the city may choose to alter its plans of improvement. Without referring to any power in the legislature to confer such an authority, the question is, is this the true scope and design of the legislation before us; is it the interpretation we should give to the section ? We think not. A power so onerous upon the citizen must be plainly conferred, if, indeed, it is not obnoxious to the charge that it is palpably oppressive and unjust. It is in derogation of the right of private property, seeking to lay a special tax on a small class of citizens. The foundation of this power, \ to tax specially, is the benefit the object of the' tax confers on the owner of the property. The law simply provides for the paving of streets and footways at the expense - of the front owner, What would any one ordinarily understand is meant by paving streets at the expense of the owners of the ground fronting thereon ? Clearly that paving which is customary.

An unpaved street is inconvenient and disagreeable, and property lying on it is less valuable. To remove these evils the city paves, and the owner whose property is thus benefited is required to pay for it. Such a law is not unjust, and as thus understood the legislature passes it and the courts sustain it. Being in this form, it is beneficial to the public and to the property owner. But if we say the city may change its pavements at pleasure, and as often as it please, at the expense of the ground owner, we take a new step, and there must be explicit legislation to authorize such taxation. If the 40th section were before the legislature on its passage, would any member suppose for a moment he was committing to the city a power to alter its pavements, take up, relay, experiment on one kind, then on another, and so toties quoties, as a change of views or of interests might dictate, and that this should be done at the expense of the ground owners, without their consent, and notwithstanding they had paid fully for that improvement of the street, which was the basis of their taxation ? Clearly no one would take such a meaning from the 40th section, or he would at least doubt this intent; and if doubtful it is not explicit. If, while the pavement is good and stands in no need of repair, the city may tear it up, relay, and charge the owner again with one excessively costly, it would be exaction, not taxation. Of course the city may change its plans of improvement, and experiment to suit the views of those in power, and if it be unwise, the corrective lies in the popular vote to remove those guilty of such folly and lavish expenditure. But under the 40th section no such changes and experiments can be made at the expense of the lot owners, who have no power to correct the evil. We are not at liberty to impute such a design to the legislature, unless it has plainly expressed its meaning to do this unjust thing. Whether the legislature can do so is not our question. We must not force the words of the law, but in these times of jobbing and corrupt practices adhere to the strict line of interpretation set before us by our predecessors. There must be explicit legislation to support special taxation. It was in this spirit Justice Woodward wrote in the City v. Tryon, supra, and in which he was led in City v. Hoxie, 2 Wright 339, to say, that there was no authority for the building of culverts within the old city, at the expense of the lot owners. See also Reed’s Ex’rs v. City of Erie, 29 P. F. Smith 346. For these reasons we think the defendant was entitled to a trial by jury of the facts set forth in his affidavit.

It is proper here to advert to the case of Lea v. City of Philadelphia, 1 Weekly Notes 189, see s. c. reported in 32 Leg. Int. 292, which was commented upon in the argument. That was a case of repair, having no bearing on this. It is proper to say that the obscurity supposed to exist in the opinion, does not exist in the original on file, but in the report, and is owing to the attempt to condense it by the reporter. The reported opinion certainly is not clear.

Judgment reversed and a procedendo awarded.

Additional opinion delivered May 22d 1876,

Per Curiam.

Since the filing of our opinion in this case we have been referred to the Act of 16th of April 1838, sect. 3, Pamph. L. 626, authorizing the councils of Philadelphia to make and establish so many rules and regulations as to them may seem expedient for the better regulation of porches, benches, door-steps, railings, bulk-windows, areas, cellar-doors,” and a large number of other subjects, proper for city regulation, concluding, “ and at the expense of the owner or owners of the property adjoining, to regulate, grade, pave and repave, curb and recurb, the said foot-ways or sidewalks,” &c. It is evident this section is no more than a collection and consolidation in a short compass of the various subjects of general regulation, and the provision for paving and repaving simply conveys tbe ordinary power for this purpose. It was not intended to subject the property of the citizens to arbitrary changes of policy, or of opinion, or caprice, which follow changes in councils, or in their views of improvement, We cannot suppose the legislature meant to convey any such extraordinary and oppressive authority. If it did, then the later Consolidation Act of 1854, must have been intended to restrict it. Johnson and Freeman’s Appeal, 25 P. F. Smith 96, is no recognition of the Act of 1838, as giving a wider grant of power; but as Justice Gordon remarks, the Act of 1854 is the nerve through which the city derives its power.

We perceive no reason to alter the opinion filed in this ease.


source: Caselaw Access Project

author: Mr. Justice Williams

license: Public Domain

text:
    Pease versus Shippen.

    1. In slander, general reports of tbe truth of the charges are not admissible for any purpose.
    2. Under the plea of the general issue only, whilst the plaintiff’s general character may be assailed, neither particular reports nor the general currency of the particular charge can be given in evidence.
    3. Conroe v. Conroe, 11 Wright 201; Fitzgerald v. Stewart, 3 P. F. Smith 343; Long v. Brougher, 5 Watts 439: Lukehart v. Byerly, 3 P. F. Smith 418, binding authorities.
    November 4th 1874. (At Pittsburg.)
    Before Agnew, C. J., Siiarswood, Williams, Mercur and Gordon, JJ.
    Error to the Court of Common Pleas of Crawford county: Of October and November Term, 1874.
    This was an action on the case for slander, brought August 31st 1872; by Nial Pease against Evans W. Shippen.
    The declaration contained three counts. In the first, the words alleged to have been spoken were: “ This road was laid when you were in the penitentiary;” in the second, “You were in the penitentiary of Massachusetts;” in the third, “You are a perjured rascal, and have been in the penitentiary.”
    The plea was, “ Not guilty.”
    The case was tried December 17th 1873, before Lowrie, P. J.
    The plaintiff proved the uttering of words laid in the declaration.
    The defendant then offered to prove, in order to rebut the presumption of malice and in mitigation of damages, a general report in the neighborhood that Pease had been in the penitentiary. The offer was objected to by the plaintiff, admitted by the court, and a bill of exceptions sealed. The witnesses testified that there had long, been a rumor in the neighborhood that the plaintiff had been in the penitentiary.
    The verdict was for the plaintiff for $1 damages. He took a writ of error, and assigned for error the admission of defendants offer of evidence.

      Roe Reisinger and A. B. Richmond, for plaintiff in error.—
    Whilst the defendant, in an action of slander, may assail the general character of the plaintiff, he cannot-give evidence of particular reports: Lukehart v. Byerly, 3 P. F. Smith 421; Long v. Brougher, 5 Watts 439; Conroe v. Conroe, 11 Wright 201; Smith v. Stewart, 5 Barr 372; Steinman v. McWilliams, 6 Id. 173; Fitzgerald v. Stewart, 3 P. F. Smith 343; Bodwell v. Swan, 3 Pick. 376; Wolcott v. Hall, 6 Mass. 517; Alderman v. French, 1 Pick. 17; Root v. King, 7 Cowen 630; Matson v. Buck, 5 Id. 499.

      Douglass and McQoy, for defendant in error.
    In actions in slander under the plea of not guilty, evidence which does not tend to prove the truth of the offence charged, but which was calculated to induce a mistaken belief in the'mind of the defendant that the charge was well founded, is admissible to disprove malice and in mitigation of damages: Stees v. Kemble, 3 Casey 112; Chapman v. Calder, 2 Harris 365; Minesinger v. Kerr, 9 Barr 312; Petrie v. Rose, 5 W. & S. 364; Beehler v. Steever, 2 Wharton 313; Porter v. Botkins, 9 P. F. Smith 484.
    January 2d 1877.

       The opinions in this and the following case were not delivered until the other cases argued at the same Terms had been published.

   Mr. Justice Williams

delivered the opinion of the court,

The question presented by this record has been variously decided by -the English and American courts, and the decisions of the same court have not always been uniform and consistent. In England, and in some of the United States courts, it has been held that, under the general issue, in slander, the defendant may prove, in mitigation of damages, that when the words were uttered a general rumor or report existed in the neighborhood that the plaintiff was guilty of the offence charged: Earl of Leicester v. Walter, 2 Campbell 281; 1 M. & S. 284; Wetherton v. Marsh, 20 N. H. 561; Care v. Marks, 20 Conn. 248; Fuller v. Dean, 31 Ala. 654; Galloway v. Courtney, 10 Rich. (S. C.) Rep. 414; Calloway v. Middleton, 2 A. K. Marsh. 372; Henson v. Veatch, 1 Blacks. 369. In other states it has been held that general reports of the truth of the charges cannot be given in evidence in mitigation of damages: Wolcott v. Hall, 6 Mass. 514; Alderman v. French, 1 Pick. 17; Bodwell v. Swan, 3 Id. 376; Matson v. Buck, 5 Cow. 499; Root v. King, 9 Id. 613; Cole v. Perry, 8 Id. 314; Mapes v. Weeks, 4 Wend. 659; Inman v. Foster, 8 Id. 602; Sheaben v. Collins, 20 Ill. 855; Young v. Bennett, 4 Scam. 43; Anthony v. Stephens, 1 Miss. 254. Whatever may have been at one time the rule in this state as to the admissions of such reports, Kennedy v. Gregory, 1 Binn. 85, Beehler v. Steever, 2 Whart. 313, Smith v. Stewart, 5 Barr 372; it must now be regarded as the settled law of Pennsylvania, that they are not admissible for any purpose: Fitzgerald v. Stewart, 3 P. F. Smith 343; Lukehart v. Byerly, Id. 418. In the former case (Fitzgerald v. Stewart), the court was asked to charge in substance that if the jury found there were general suspicions and reports that the plaintiff was guilty of the offence charged in circulation before the defendant spoke the words, and that the defendant only uttered what was already in general circulation, in that event they should consider the fact in mitigation of damages. To this the court answered that if these suspicions and reports originated with the plaintiff herself, it was material in lessening the damages, but if the evidence did not prove that the plaintiff gave rise to the reports, the fact that they existed was not evidence against her, and ought to be disregarded by the jury. In delivering the opinion of this court, affirming the correctness of this answer, Strong, J., said: “ It is to be noticed that the point did not refer to the general character of the plaintiff, but to the suspicions of a single guilty act. Nor did the point present a case of suspicions known to the defendant when she uttered the slander. If they "were unknown, their existence did not tend to show a less degree of malice in the defendant, and if they were known, it ought to be regarded no apology.for her that others were repeating similar slanders. In the present case the defendant herself may have been the author of the reports long before she spoke the words complained of in the declaration. Whatever may be the rule elsewhere, it is well settled with us, that while the general character of the plaintiff in an action for slander may be assailed, particular reports, or reports of guiltiness of particular offences, may not be given in evidence for any purpose, not even to mitigate damages.” In the latter case (Lukehart v. Byerly) the defendant proposed to prove that weeks before the plaintiff alleged the defendant spoke the words charged in the narr, they had been spoken by other parties, and were in general circulation in the neighborhood, and the story was communicated to the defendant. The court rejected the first part of the proposition to prove that there were reports of this matter through the country and that others had spoken of it, but admitted that part of the proposition which proposed to prove that the circumstances were communicated to the defendant before the uttering of the words proved in the case. The defendant excepted to this ruling, and this court held that the evidence was rightly rejected. Woodward, J., said: “ The general issue only had been pleaded, and under this, whilst the defendant might assail the general character of the plaintiff, he might not, as I understand the decisions, give evidence of particular reports, not even of the general currency of the particular charge which he took up and endorsed: Long v. Brougher, 5 Watts 439; Conroe v. Conroe and Wife, 11 Wright 201, and the cases cited.” These authorities are binding upon us, and are decisive of the questions presented by the bill of exceptions in this case. It follows that the court below erred in admitting the evidence complained of.

Judgment reversed and a venire facias de novo awarded.


text:
    Mitchell and Wife versus Long.
    1. A devise was: “I give unto my third son, John MeConahey, all that lot of land lying, &c. * * * to him, his wife and children during their natural lives, if he ever should have any, if not, he shall have it all himself.” The son was unmarried at the making of the will and the death of the testator; he afterwards married, and died leaving a widow and children. Reid, that the devise was a valid gift and that on the contingency which happened, the devisees each took a life estate as tenants in common.
    2. The devise was contingent; as to the wife on her marriage, as to the children on their birth.
    3. As to each it was an executory devise on a contingency which must happen, if at all, during the son’s life and therefore not too remote.
    4. It was a devise to the son John until he should have a wife and children, and then to him and them during their natural lives, vesting in the wife on her marriage, and the children on their birth.
    5. The son, wife and children took concurrent and not successive life estates.
    November 18th 1875. (At Pittsburg.)
    Before Agnew, C. J., Sharswood, Williams, Merour, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas of Lawrence county: Of October and November Term 1873, No. 155.
    This was an action of ejectment commenced December 27th 1870, by John Mitchell and Mary his wife, in her right, against Martha MeConahey, for the undivided fourth part of a tract of 200 acres of land. A case stated in the action was agreed to and filed May 6th 1872, viz.: —
    “ Robert MeConahey died seised of the land in question, having previously made his last will, dated 30th April 1838, and proved 7th June 1838 : it is the same farm referred to in said will by the following clause:—
    “ ‘Also I give to my third son, John MeConahey, all that lot of land lying in the Second District of Donation Lands, in Mahoning township, with all the improvements therein, containing 200 acres and allowances, and numbered in the general plan of said district, 1827, to him, his wife and children, during their natural lives, if he should ever have any, if not, he shall have it all himself.’

      “ John was unmarried at making of the will and at death of testator. Some of testator’s other children were married and had children at making of the will. At the death of said Robert Mc-Conahey he left (among others) surviving him his said son, John McConahey, who went into possession of said land, claiming under said will, and lived upon it with his family until his death some three years since. He died intestate, leaving surviving him his widow, Martha McConahey, the defendant in this case, also three children by said Martha, viz.: M. Clara McConahey, Zenas W. McConahey and Mary Y. McConahey; Mary Y. McConahey having intermarried with John Mitchell, the plaintiffs in this case. Martha McConahey, defendant, has occupied and used said farm from the death of her husband to this time.
    “ Some time after the death of John McConahey, the plaintiff in this suit, Mary Y. Mitchell commenced proceedings at May Term 1870, in the Orphans’ Court of Lawrence county, for partition, whereupon the defendant in this suit filed her answer to the petition, alleging, ‘That John McConahey and she had enjoyed the entire, exclusive use and enjoyment, control and possession of the premises in said petition mentioned for and during the last sixteen years and up to the time of the death of her said husband, which occurred in October 1869, and that since that time she has had the entire, exclusive and complete use, enjoyment, possession and control of said premises up to this present time. And as widow of John McConahey, deceased, and under the provisions of the last will and testament of Robert McConahey, deceased, this respondent claims the entire and exclusive enjoyment, control and possession of said premises for and during her natural life, to the exclusion of the petitioner and all other persons.’ The petition was thereupon dismissed, and Mitchell and wife brought this suit in ejectment to recover what they claim to be their interest in said land, viz.: an undivided one-fourth.
    “ It is agreed that the only question to be determined in this case is upon the construction of the will of Robert McConahey. If the court be of opinion that the plaintiff takes an interest in said land by the same will, and is entitled to possession of said interest in pursuance of said will, then the court shall enter judgment therefor for plaintiff, otherwise judgment to be entered for defendant.”
    The court, Yincent, P, J., of the 6th District, entered judgment for the defendant. This was assigned for error on the removal of the record to the Supreme Court by writ of error.

      Dana $ Long, for plaintiffs in error,

      O. L. Jackson, for defendant in error.
    January 2d 1877.
   Mr. Justice Williams

delivered the opinion of the court,

The plaintiffs’ grandfather died seised of the land for which the ejectment was brought, and by his last will, dated April 18th 1838, and proved June 7 th 1838, devised it as follows: “Also I give unto my third son, John MeOonahey, all that lot of'land lying in the Second District of Donation Lands in Mahoning township, with all the improvements thereon, containing 200 acres and allowance, and mentioned in the general plan of said district, 1827, to him, his wife and children, during their natural lives, if he should ever have any, if not he shall have it all himself.”

At the death of the testator his son John was a minor and unmarried. He took possession of the land under the will, married and had children, and continued to reside thereon with his family until his death in 1869. He left surviving him a widow, the defendant in this case, and three children, of whom the plaintiff is one. The widow is in the occupancy of the land, and claims the right to its exclusive possession during her life. Has the plaintiff then any interest or estate in the land to which she has the right of present possession and enjoyment ? There can be no doubt that the devise of the land to the testator’s son John, his wife and children, during their natural lives, if he should have any, was a valid gift, and that in the contingency which happened, they took each a life estate in the land as tenants in common. The devise to the wife and children was contingent. As to the wife it depended on the contingency of marriage, and as to the children on the contingency of birth. It was as to each an executory or future devise, on a contingency which must happen, if at all, during the life of John, and therefore the contingency Avas not too remote. It was in effect a devise of the lands to John until he should have a Avife and children, and then a devise to him and them during their natural lives. The estate vested in the wife upon her marriage, and in the children at their birth: 1 Jarman on Wills 240-1, 285; Smith on Ex. Int., § 711; Flourney v. Johnson, 7 B. Mon. 693. If the devise was valid, the widow and children have each a life estate in the land, and the right to its present possession and enjoyment. There is nothing in the language of the devise showing that it was the testator’s intention that the estate given to the children should not vest in possession and enjoyment until after the termination of the estate given to their parents ; the land was not given to John and his wife during their natural lives, and after their death to their children for life, but to John, his wife and children, during their natural lives; and it is clear that under the gift they took concurrent, and not successive life estates in the land. The plaintiffs are therefore entitled to judgment for their share of the land upon the case stated, being the only question properly presented by the record.

Judgment reversed-and judgment for the plaintiffs to be entered by the prothonotary in conformity Avith this opinion.


author: Per Curiam. —

text:
    Noblit et al. versus Bonnaffon.
    Bonnaffon agreed in writing to lend Richmond & Oo. his notes for §15,000, payable as might be convenient; in consideration they transferred to him all their furniture, stock, fixtures, good-will, debts and all their assets, he to employ them as his agents in disposing of the furniture, &c., collecting debts, with a view to close the business at a time specified, and to pay him all the moneys received ; the proceeds first to pay their outstanding liabilities, then to meet his notes, and the.balance, if any, to them, The business was continued apparently as before; Bonnaffon being frequently at the store and seeing the work going on ; they purchased goods in their own name to complete unfinished work, the sellers not knowing of Bonnaffon’s interest. Held, that Bonnaffon was not liable for these goods.
    January 13th 1876.
    Before Acnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the District Court of Philadelphia: Of January Term 1874, No. 160.
    This was an action of assumpsit, brought November 4th 1871, by Dell Noblit, Jr., and others, trading as Noblit, Brown & Noblit, against Albert L. Bonnaffon.
    The claim of plaintiff as filed was $765.66, for goods sold and delivered to the said defendant, at his store, No. 45 South Second street, where he traded under the style of Richmond & Co. The goods were articles used in the manufacture, &c., of furniture; commencing May 3d 1870, and ending July 9th of the same year.
    Previously to the 10th of January 1870, E. M. Broomall and W. B. Richmond, trading as Richmond & Co., were engaged in manufacturing and selling . furniture at No. 45 South Second street, Philadelphia; on that day they entered into the following agreement with the defendant:—
    a 1. The said A. L. Bonnaffon agrees to loan to the parties of the second part his notes to the amount of fifteen thousand dollars, payable at such times and in such sums as may be convenient to the parties.
    “ 2. In consideration thereof the parties of the second part hereby assign and transfer unto the said Albert L. Bonn'affon the furniture, stock, fixtures, good-will, debts, accounts and all the assets of the firm of Richmond & Company as set forth in Schedule A, annexed hereto and made part hereof.
    “ 3. The said Albert L. Bonnaffon' agrees to employ the parties of second part as his agents in disposing of said furniture and stock at private or public sales, and in collecting in the said debts, with a view to closing up the said business on or before July 1st
    1870. The said agents shall render accounts, and at same times and oftener and pay over unto the said Albert L. Bonnaffon all moneys received from said business.
    “ 4. The said Albert L. Bonnaffon will apply the said moneys to the payment in first place of the outstanding liabilities of said firm as set forth in Schedule B, annexed. Secondly, in meeting his notes aforesaid. And in the event of any balance remaining after payment thereof with all expenses, interest, and costs whatsoever, the same shall be paid to the parties of the second part.
    * * * * * * 1 *
    “W. B. Richmond to draw one hundred and fifty per month till settled.”
    The schedule attached contained a very large number of items of furniture, with the value set opposite each, amounting in the whole to $9555.51.
    The plaintiff gave evidence that the goods wrere sold and delivered at the store No. 45 South' Second street; they sold the goods on the credit of Richmond & Co.; they did not know the defendant; plaintiffs had been dealing with Richmond & Co. about a year or eighteen months; they took notes for all these goods from Richmond & Co. The goods were all paid up to May 3d 1870 by Richmond & Co. The plaintiffs first knew of the agreement between Richmond & Co. and the defendant, in February 1871. After the agreement with defendant, Richmond & Co. proceeded to close out the business and agreed to dissolve the partnership; they had then enough to pay their debts. The furniture was in all. stages of progress ; furniture was made up after that time; defendant was there frequently through all the store; Richmond & Co. were trying to get some one to go into business with them, but not having found any one, defendant said to one of the partners it was not policy in him to buy more goods'; be never authorized any of the firm to buy goods; he had no knowledge of their buying goods except from seeing them finishing goods and seeing the materials for finishing. Richmond & Co. purchased large amounts of goods from others during the time covered by this account; this appeared by their books to which defendant had access; other persons who sold to Richmond & Co. had no knowledge of defendant’s interest. Richmond & Co. closed out by sales at auction and at private sale; defendant received pai’t of.the proceeds of the private sale, but not those from the auction sales; the proceeds not paid defendant were applied to paying the debts of the concern.
    There was other evidence of the same character.
    The plaintiffs having closed the court, Briggs, J., directed the entry of nonsuit, which the court in banc refused to take off.
    The plaintiffs assigned this for error, on the removal of the record to the Supreme Court.

      W. H. Staake and JE. S. Miller (with whom was Gr. W. Thorn), for plaintiff in error.

      W. L. Hirst (with whom was T. J. Diehl), for defendant in error. —
    Where the agency is created and confirmed by a written instrument, the nature and extent of the authority must be ascertained from the instrument itself, and cannot be enlarged by parol evidence of the usage of other agents in like cases, or of an intention to confer additional powers, for that would be to contract or vary the terms of the written instrument: Story on Agency, sect. 76, 78; Tod v. Benedict, 15 Iowa 591; Beach v. Shrere, 2 Beasley 455; Fode v. Anderson, 10 Mich. 357; Cochran v. Richardson, 33 Verm. 169; Loudon Savings Fund v. Hagerstown Saving Bank, 12 Casey 498; Paley on Agency 199 et seq.; Parsons’s Mercantile Law, sect. 4, p. 145.
    January 24th 1876,
   Judgment was entered in the, Supreme Court,

Per Curiam. —

There seems to be no good ground of liability in this case. No credit was given the defendant; the credit was given to Richmond & Co. as theretofore. Defendant was not a silent partner, and not even an absolute purchaser of the goods, which were assigned only as a collateral security and remained in possession, apparently, if not really, of Richmond & Co. Nor did the defendant receive the entire proceeds. In no way could a contract to pay for the goods, taken up by Richmond & Co., be raised by implication, and certainly there was none by express agreement or even express request.

Judgment affirmed.


author: Per Curiam;

text:
    Derbyshire’s Estate. Lang’s Appeal.
    1. A ship-builder contracted to build a vessel to be paid for in instalments as the work progressed ; while she was on the stocks unfinished the builder died, payments having been made on her ; she was appraised at the amount which had been paid. The executors having no funds, the vessel being subject to liens and there being doubt as to the title a purchaser would take, with other circumstances rendering it uncertain whether more than a small amount would be realized from a sale, under the advice of counsel the executor delivered the vessel to the persons for whom it was being built, and took credit for the amount of the appraisement in his account. An auditor found that under the circumstances the executor had acted wisely and for the best interests of the • estate ; the Orphans’ Court approved the finding : the Supreme Court on appeal affirmed the decree.
    2. It seems that a vessel on the stocks, before coming under the dominion of the admiralty law, does not differ from any other kind of personal property, and no title papers before completion and delivery are necessary unless under a special contract.
    3. Scull v. Shakspear, 25 P. F. Smith 297, cited.
    January 20th 1876.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ.
    Appeal from the Orphans? Court of Delaware county: Of January Term 1876, No. 76. In the estate of George Derbyshire, deceased.
    George Derbyshire, who was a ship-builder in Chester City, died on the 9th of June 1872, having on the 18th of March 1872, made his will, of which he appointed Amos Gartside his executor.
    The will contained the following clause: “I order, direct, authorize and empower my executor to manage, dispose of and control my estate in such manner as in his discretion may seem best, with full power to manage, carry on, adjust, arrange and complete all contracts and work, and business that I now have on hand or in progress, and to use all or any part of my estate in such manner as my executor may deem most expedient to effect the power hereby given him, and further to carry on and conduct in behalf of my estate the business of ship-building and ship-repairing in such manner and for such length of time as my executor may deem advisable, with as full powers in respect to finishing contracts and work now on hand, taking and completing new contracts^ and the entire control and continuance of my business, as-I might exercise and enjoy if living.”
    The executor filed an inventory of the personal estate of the testator, amounting in the whole to $19,791.58; one of the items was, “ Schooner, including manufactured iron work for windlass, centre board, rudder and windlass, $>12,500.” On the 19th of January 1874, the executor filed his first account; he charged himself with the amount of the inventory, a large number of items for sums received for the repair of vessels, proceeds of sale of real estate sold for payment of debts and other matters not included in the inventory; the whole amount of charges being $26,344.12. Amongst the credits was the following item :—
    “ By amount of appraisement of schooner which had been advanced on to the decedent in his lifetime to her full value $12,500.” Another item was for wages, $1856.18 ; there were other items for payments made in completing and repairing vessels. The account showed in the hands of the executor a balance of $2892.48. On the 24th of August 1874, the executor filed his final account. He charged himself with the balance appearing on his first account, the proceeds of the sale of the ship-yard and some other real estate: the debits amounting to $14,488.98. The credits were for payments of liens against the real estate of decedent, and expenses of administration, &c. The balance in the executor’s hands on this account was $2892.48, the same as the balance on the first account.
    Harvey Lang and others, creditors of the testator, filed exceptions to the accounts, of which one was to the credit of $12,500 for the value of the schooner ; another to several credits amounting to $2528.95, for completing and repairing vessels, and another for $1856.18 for wages.
    The account and exceptions were referred to Henry C. Howard, Esq., to report upon them and also to report distribution of the balances.
    The auditor reported that at the time of the testator’s death, he had under contract and partly finished the schooner for whose appraised value credit was taken in the account: her whole cost was to be $17,000, payable in instalments as the work progressed, and up to that time the parties for whom she was being built had paid to the testator $12,498.82 on account. Ten days after the probate of the testator’s will a majority of creditors, not including the exceptors, by writing authorized the executor to exercise the powers given him by the will, and to employ all the assets of the estate so far as to finish the schooner and a sloop in progress at the testator’s death, and to do repair work up to the time of finishing the vessels; they also released the executor from all responsibility by the use of the property of the testator for the foregoing purposes. At the meeting at which this agreement was entered into, the exhibit of the condition of the estate showed that it was insolvent. There not being enough due on the schooner to complete her, and the executor having no funds of the estate in his hands, he allowed the persons for whom she was being built to'take charge of her; they completed her at their own expense, and the executor allowed them to take her away. The executor expended no money or material of the estate upon her, he received no money from the contract, the persons for whom she was built having expended $1700 in excess of the contract price in her completion; it would have been of no advantage to the estate to complete the vessel. The claim before the auditor of the exceptors was, that by delivering the vessel to those who had advanced money on her, they were preferred to other creditors to the extent of the payment in full of the amount advanced by them ; that the vessel as she stood should have been sold and the proceeds gone into the general fund for a distribution amongst all the creditors. The auditor found that there had been no fraud, supine negligence, nor wilful default on the part of thejexecutor; that the executor acted under the advice of counsel, and pursued what he thought to be the best course: the ship-yard was encumbered with liens which were threatened to be sued out, and in the judgment of' the auditor, if the vessel had been put up at public sale without a guaranty of the title, freed from liens and with the privilege of finishing her, with the use of the mill, machinery, and tools, she would not have brought anything more than a nominal sum, the title being liable to doubt and the vessel being liable to liens: neither the exceptor nor any other creditor requested the executor to sell the vessel nor was any dissatisfaction at his course expressed by any one. Some of the exceptors had liens and issued attachments on them, which they released upon receiving bonds from the persons claiming the vessel for whatever amount they should not receive from the estate, not to exceed a certain amount; the condition of the estate being worse than was anticipated, the claims of the exceptors will not be paid.
    The auditor further said: “ The purchaser of the vessel would have purchased only the testator’s title, which was the right to finish the vessel and receive the contract price.”
    The auditor, after an elaborate argument and examination of authorities, concludes his report, saying,
    “ The executor, therefore, could have been called upon to finish this vessel. How, then, could he have set her up at public sale as the property of Mr. Derbyshire, under any color of title, to say nothing of a guaranty ? He must either have completed the vessel, or have rescinded the contract, with the permission of the other party to it, and permitted them to take her. He chose, -as he says, to pursue the latter course, and there is no evidence that any loss occurred thereby. That he had the discretionary power to do this is established by Dougherty v. Stephens, 8 Harris 210.
    “ The mistake in the first instance would seem to have been in having this piece of property appraised at its general value, as a part of decedent’s estate. If the value of the contract had been appraised only, the executor would not have been obliged to crave a credit, which appears primá facie to be improper.
    “ If the accountant’s testator had lived to fulfil his contract,, the only possible advantage he could have derived would have been the excess of the contract price over the cost. How his estate, insolvent and totally unable to meet its obligations, by reason of his death, is to reap any greater benefit by the application of any rule of justice, it is difficult to see. And yet such would be the practical effect of sustaining the exception.”
    Harvey Lang and others, creditors of the'decedent, excepted to the report, principally as to the allowance of the credit for the appraised value of the unfinished schooner.
    The Orphans’ Court, Clayton, P. J., delivered an opinion, holding that the ownership of the vessel was in the parties for whom the testator contracted to build it; he then proceeds; * * * “ This disposes of the whole case, but had the conclusion, as to the property in the ship, been against the owners, I am not prepared to say that the exceptions should be sustained. Two of the exceptants had liens upon the ship for the full amount of" their claims. According to the case of the Reaney Engineering Works, 29 Legal Intelligencer 157, the liens were good, no matter which party owned the vessel. The estate was hopelessly insolvent ; mortgages were due upon the real estate upon which the vessel was being built; the executor had no means to finish her. To have sold her, without being able to warrant the title, would have realized nothing. He could neither warrant the title nor give the purchaser the privilege of finishing her where she then stood. Under the circumstances, according to the testimony of the except-ant himself, she would have realized nothing to the estate, and her owners would not only have had their action against the estate for damages, for breach of the contract to build her, but also a personal action of trover against the executor for her value, and in case of recovery he would be liable for the full value of the ship to the owners. Under these embarrassing circumstances, the executor did what any cautious man would have done — called a meeting of the creditors ; asked their counsel and advice; consulted his counsel, and took the advice of the creditors and his counsel. .If he has made a mistake, having acted in good faith, and with more than ordinary caution, he is not personally responsible. If he had finished the ship, instead of paying but a dividend on $1702, the amount expended over the contract price, the estate would have expended the whole of that sum, thus materially diminishing the dividends which the exceptants now receive. Granting, therefore, the title of the'ship to be in the executor, I cannot find from the evidence that he has been guilty of such negligence or improper conduct as is sufficient to charge him personally with the appraised value of the ship.
    “ The exceptions are dismissed, and the report of the auditor is confirmed absolutely.”
    The exceptors appealed to the Supreme Court, and in a number of specifications assigned the decree of the court for error.

      W. S. Dickinson, for appellants. —
    The appellants had a lien on the vessel, because Derbyshire was builder and owner of the vessel: Scull v. Shakspear, 25 P. F. Smith 297. It is negligence for an executor to prefer one creditor to another; for gross negligence he would be liable to legatees, much more to creditors : Finney’s Appeal, 1 Wright 326; Charlton’s Appeal, 10 Casey 473. Although the builder may be bound to deliver the particular vessel, it does not necessarily belong to the party for whom it is built, on the first payment: Andrews v. Durant, 1 Kernan 35; Haney v. The Rosabella, 20 Wis. 247; Mucklow v. Mangles, 1 Taunt. 318. Where anything remains to be done to a thing by the vendor before delivery, the title does not pass : Lester v. McDowell, 6 Harris 91; Nicholson v. Taylor, 7 Casey 129; Wanamaker v. Yerkes, 20 P. F. Smith 443; Rochester Oil Co. v. Hughey, 6 Id. 322; Haldeman v. Duncan, 1 Id. 66; Merritt v. Johnson, 7 Johnson 473.

      W. Ward, for appellee. —
    A mistake committed in the honest effort to accomplish the best results, and guided by the clearest light to be obtained, will not make a trustee liable for losses: Chew v. Chew, 4 Casey 17 ; Springer’s Estate, 1 P. F. Smith 342 ; Calhoun’s Estate, 6 Watts 185; 2 Williams on Executors 1630 and notes.
    January 31st 1876,
   Judgment was entered in the Supreme Court,

Per Curiam;

— This is .by no means a clear case. The inclination of the coui’t is to hold that a ship on the stocks, and while under the law of this state, before reaching her proper element and coming under the dominion of admiralty law, differs not from other kinds of personal property ;■ and therefore no title papers before completion and delivery are necessary, unless otherwise provided for in the contract. This was so held in the case of Scull v. Shakspear, 25 P. F. Smith 297, in relation to the lien of materialmen and mechanics under a law of the state. But the existence of a different view in the English courts made this a question of some doubt, and counsel might well have advised under uhis adverse view. The insolvency of the builder, the want of funds to complete the large payments made by the parties contracting for the vessel, the necessity of continued control of the ship-yard, the responsibility necessarily incurred by the executor in undertaking to finish the vessel,- and the uncertainty of price a public sale would bring, all united to make it a case of great Uncertainty and doubt as to what would be the course to be pursued, which would be for the best interests of the estate. In this state of the case, the executor having acted under the advice of counsel, and upon the opinion and advice of a large number of the creditors of the estate (which was insolvent), it would be a harsh judgment to visit the executor with a surcharge, because he had not offered the unfinished hulk at public sale. The finding of the auditor, and the confirmation of the court, that the executor had acted wisely and for the best interests of the estate, ought not to be overturned in a case of so much doubt.

Decree affirmed with costs and appeal dismissed.


author: Mr. Justice Woodward

text:
    Philadelphia, to the use of Dyer & Shantz, versus Brooke.
    1. Philadelphia, through the chief commissioner of highways, contracted' with Dyer to pave, &c., a street, the work not to be doné after December 1st and before April 1st; the cost, &c., of the work was chargeable to the lot owners on the street, in proportion to their front. The work was done after December 1st. The city, for the use of Dyer, filed a claim against a lot-holder and issued a scire facias on it. Held, that the city might waive the condition, and the lot-holder could not defend on the ground that work was done after December 1st.
    2. Under the Act of April 19th 1843, sect. 1, the lot-holder could defend only on the ground that the work was not done, the materials not furnished, the price excessive, or that it had been paid or released.
    3. Hutchinson v. Pittsburg, 22 P. P. Smith 320; Philadelphia v. Wistar, 11 Casey 427 ; Philadelphia v. Burgin, 14 Wright 539, followed.
    February 1st 1876.
    Before Asnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the District Court of Philadelphia: No. 262, of January Term 1874.
    This was a scire facias sur municipal claim, issued October 20th 1872, by the city of Philadelphia, to the use of John Dyer and Edward Shantz, against Virgilia B. Brooke, owner or reputed owner, &e7
    The claim was filed August 23d 1872, against a lot of ground on the south side of Westmoreland street and the west side of Seventeenth street, for work and materials in paving and curbing on Seventeenth street; the bill was:—
    May 2d 1872, To 472.22 yards rubble paving, $708.33

      “ “ “ To 272.4 feet of curbstone, ’ 245.10
    Measuring charge, 5.00
    $958.43
    The paving, curbing and material having been done and furnished under a contract. between the chief commissioner of highways and the claimants, &e.
    The contract was dated July 18th 1873; it recited that the claimants had been selected by a majority of the owners of property on Seventeenth street, from Allegheny avenue to Tioga street, for the paving of Seventeenth street, in accordance with a resolution of councils : the street to be graded out to the depth of 18 inches and to be filled with 14 inches of gravel and on the top of that 4 inches of sharp gravel, &c., &e. There were other stipulations, one of which was that the agreement should “ not be construed to allow paving to be done after the first day of December or before the first day of April, in any year.”
    The case was tried November 17th 1873, before Hare, P. J. The' plaintiff gave in evidence the claim and rested.

      The defendant then gave evidence for the purpose of showing that the paving in front of her lot had not been well done. She gave evidence also, that the work was commenced about the 1st of December 1871, and stopped about the 15th of that month.
    • In rebuttal, the plaintiffs gave evidence that work had been commenced and ended about as testified to by the defendant’s witnesses; they gave evidence also, that the work was well done. ■ Mahlon H. Dickinson, chief commissioner of highways, testified that the husbaud of defendant remonstrated against the work being done on frost, and witness notified the contractor.to stop work.
    The court charged:—
    “It is not pretended that the plaintiff rendered a service to the defendant, or at her request. The contract under which the plaintiff’s claim was made by the city of Philadelphia, without the defendant’s knowledge or assent. The obligation is, therefore, in the nature of a tax, and the plaintiff cannot recover unless in conformity with the contract which imposed the obligation. The terms of the contract are express that nothing therein contained shall be construed as allowing paving to be done after the 1st of December, or before the 1st of April. [My instructions, therefore, are- that if a material and substantial part of the work was done during the winter, the defendant is entitled to a verdict. There can be no doubt as to this point under the evidence.] The plaintiff says that he commenced at the end of November, or in the beginning of December; but he does not controvert the testimony for the defence, that the gravel was spread and the pavement laid during the earlier part of December. The contention on his part is, that he returned in April and repaired the street by ramming the stones down in some places, and taking them up and replacing them in others. He does not say that he did the work over again, but that he repaired the portions which appeared to be defective. [If he had taken up the stones in front of the defendant’s premises, levelled the road-bed, and relaid the stones, he might have recovered, but such is not the testimony. What the contract contemplates is, that the pavement shall be laid when it can have a secure foundation. If this condition is not complied with, the defect is'fatal.”]
    The verdict was for the defendant. The plaintiff took a writ of error and assigned for error the parts of the charge in brackets.

      S. W. Pettit and O. II T. Qollis, for plaintiffs in error.
    — The condition as to the time of paying, &c., was between the city and the contractors ; the city having waived the condition by filing the claim and bringing suit, the defendant is precluded from making this defence. Philadelphia v. Wistar, 11 Casey 427 ; Philadelphia v. Burgin, 14 Wright 539 ; Reilly v. Philadelphia, 10 P. F. Smith 467; Hutchinson v. Pittsburg, 22 Id. 320.

      J. Q-erhart and N. H. ~Weil\ for defendant in error.
    February 7th 1876.
   Mr. Justice Woodward

delivered the opinion of the court,

The contract between the city and Dyer & Shantz provided that it should not be construed to allow paving to be done after the first day of December and before the first day of April, in any year. There was evidence on the trial that a material part of the work in paving Seventeenth street in front of the defendant’s property was done in the month of December 1871. • John Dyer testified that it was commenced “about the latter part of November, or beginning of December,’’-and was continued until it was stopped by frost in the firfet or second week in December. Mr. Dickinson, the chief commissioner of highways, stated that defendant called at the department, and remonstrated against the work being done during the frost, and that he thereupon sent a notice to Mr. Dyer to stop. The witnesses for the defendant testified generally that the paving was commenced about the first or second, and was stopped about the fifteenth of December. Some evidence was given to prove that the work was finished in the spring of 1872. The bill of particulars embodied in the lien bears the date of the second of May. There was testimony also that the pavement in front of the defendant’s'property was left in a bad condition. Upon this evidence the court below instructed the jury that “if a material and substantial part of the work was done during the Avinter, the defendant was entitled to a verdict.” The jury were told also, that if, when they returned in April, the stones in front of the defendant’s premises had been taken up, the road-bed levelled, and the stones relaid, the plaintiffs might have recovered, but that such was not the testimony. The final instruction was : “What the contract contemplates is, that the pavement shall be laid Avhen it can have a secure foundation. If this condition is not complied with, the defect is fatal.”

The contract was between the city and Dyer & Shantz. It recited that they had been previously “selected by a majority of the owners of property on Seventeenth street, from Allegheny avenue to Tioga street, for the paving of that street in accordance with a resolution of councils.” The defendant could not be affected, either beneficially or injuriously, by stipulations of the legal and equitable plaintiffs between themselves. Statutory provisions had defined his rights and liabilities. In such an action as this, it is sufficient for the plaintiff to prove that the work charged was done, or the materials furnished, at their fixed value; and the defendant is confined to a denial that the work was done or the materials furnished, or that the price charged Avas excessive, or that the claim had been paid or released: Act of 19th April 1843, § 1, Purdon 1089, pi. 26. In such an action, the municipal claim may be read in evidence in proof of the facts alleged, and no plea averring want of notice to remove nuisances; no plea touching rates or proportions of contribution among parties jointly interested; and no plea touching the question of ownership is allowed: Act of 11th of March 1846, § 4, Purdon 1089, Pamph. L. 27. The questions growing out of the contract were outside of any interest of the defendant. There are obvious reasons why officers of the highway department should retain the control of the work that was contemplated here. The interest of the city requires that her streets shall be substantially paved, and its officers should have power to stop work that would ordinarily be defectively done in winter. This power was exercised with manifest discretion in this instance. Perhaps the city could have treated the breach of the agreement by Dyer & Shantz as a forfeiture of their claim to compensation. But she has not done so. And the defendant is not in a position to assert such a forfeiture for his benefit in an action in which the city and Dyer & Shantz unite as parties. If the weather in December 1871 had been mild enough to permit the laying a pavement with perfect safety and completeness, and the contractors had been permitted to lay it, it is difficult to understand how a modification of their relations by the contracting parties could he set up by a stranger as a ground of complaint. The defendant had a right to a satisfactory pavement, and it was only for such a pavement he could be required to pay.

It was clearly within the power of the officers of the city to waive the right derived from the stipulation on which the defendant relies. In The City v. Burgin, 14 Wright 539, which was a scire facias for the use of Emanuel Peters, under the pleas of non assumpsit and payment with leave, &c., without notice of special matter, the defendant was permitted to prove by the chief commissioner of highways that he gave no authority to do the work for which lien was filed. In reversing the judgment, Judge Read said: “ It would be singular indeed if, under such a state of the pleadings, the defendants could be allowed to defeat the claim of the city by producing its own officer to show that the work which the city has adopted was done without its consent. This was clearly a matter with which the defendant had nothing to do.” It was held by Thompson, J., in City v. Wistar, 11 Casey 427, that “ the right of the city to file the lien is fixed by law, and the form in which it was filed in this ease, for the use of the party named, resulted from the relation existing between him and the city, and was a matter which alone concerned them.” In Hutchinson v. Pittsburg, 22 P. F. Smith 320, a defence was made on the ground that a contract had not been executed according to its terms. It was said by this court, “ the contract is between the city and the contractor; the contractor does not complain, and the city adopts and approves the action of its officers, and the defendant cannot take advantage of the non-grading of four squares which the city found to be unnecessary and inexpedient under the circumstances.” The present ease should have been submitted to the jury under the evidence that had relation to the defendant’s statutory defences.

Judgment reversed, and venire facias de novo awarded.


author: Mr. Justice Paxson

text:
    Thirty-fourth Street, Philadelphia.
    1. No appeal lies from a decree of the Quarter Sessions in a road case; the proper proceeding to remove the record to the Supreme Court is certiorari.
    2. An appeal brings up a case on its merits; a certiorari brings up the record only, and the Supreme Court can then look merely at the regularity of the proceedings.
    3. A certiorari from the Supreme Court in a road case in Philadelphia cannot issue without a special allocatur by one of the judges of the Supreme Court, under the Act of March 23d 1829.
    4. The Act of 1829 is not repealed by the General Road law of June 13th 1836.
    5. The Act of June 16th 1836 (jurisdiction of courts) did not authorize a certiorari, as of course, in road cases in Philadelphia.
    6. A certiorari was issued in a Philadelphia road case, without a special allocatur, under the belief that such allocatur was unnecessary. The Supreme Court would not quash the writ, if it appeared that a special allocatur would be granted immediately afterwards.
    7. The Park Act of March 26th 1867 appropriated land for a park, and authorized the value to be assessed to the owners by a jury of twelve men ; the supplementary Act of April 24th 1868 extended the boundaries of the park; it also authorized the councils to widen, &c., any street to improve the approaches to the park; it provided that “ damages for ground and property taken for the purposes of this act shall be ascertained,” &c., as was prescribed by the original act. A street was widened to improve the approaches to the park. The Quarter Sessions appointed six viewers to assess the damages from widening the street. Held not to be error.
    8. Duff’s Road, 16 P. F. Smith 459 ; Thomas’s Creek Road, 3 Whart. 11, followed.
    February 3d 1876.
    Before Agnew, C. J., Sharswogd, Mercur, Gordon, Paxson and Woodward, JJ. ,
    Certiorari to the Court of Quarter Sessions of Philadelphia: No. 255, to January Term 1874.
    These proceedings commenced on the 28th of November 1871, on the petition of Thomas Costigan, representing that he owned property in the Twenty-fourth ward of Philadelphia through which Thirty-fourth street, as laid down on ,the public plan of the city, would pass; that the city councils, by a resolution of July 11th 1871, directed the chief commissioner of highways to notify owners of property over which Thirty-fourth street would pass, that after three months from the notice the street would be required for public use, according to the widened and straightened lines, as an approach to the park. The prayer was for the appointment of a jury of six freeholders to view the premises and assess the damages which he or other owners of ground would-sustain by opening, straightening and widening Thirty-fourth street.
    Six jurors were accordingly appointed.
    By Act of March 26th 1867, sect. 1 (Pamph. L. 547), a large area of ground was vested in the city of Philadelphia for a public park.
    By section 3d of the act it was provided “ that the owners of the ground should be paid for it according to the value to be ascertained by a jury of. twelve freeholders, to be appointed by the Court of Quarter Sessions, or by agreement between the commissioners of the park and the owners of the property, to be confirmed by the Court of Quarter Sessions. Whenever it should be necessary to have recourse to a jury to assess damages for any property to be taken as aforesaid, the said jury shall estimate the advantage to property adjoining or in the vicinity, and said jury shall proceed, and their awa-rd shall be reviewed and enforced in the same manner as provided by law in the opening of roads in the city of Philadelphia.”
    By a supplement to the foregoing, act, passed April 14th 1868 (Pamph. L. 1083), it is provided that additional ground should be vested in the city for park purposes, and:
    “ Sect. 24. That the councils of the city of Philadelphia be and they are hereby authorized to widen and straighten any street laid upon the public plans of said city, as they may think requisite to improve the approaches to Eairmount Park.
    “ Sect. 26. The damages for ground and property taken for the purpose of this act shall be ascertained, adjusted and assessed in like manner as is prescribed by the act to which this is a supplement.”
    On the 31st of July 1873 the jury reported, assessing damages to a large number of persons, amongst others to Hugh Mcllvaine and Thomas Costigan.
    Mcllvaine filed three exceptions, of which two were:—
    1. The councils of the city had no lawful authority to enact said resolution.
    2. This court obtained no jurisdiction by virtue of the resolution under which the petition (on which the report was filed) was presented.
    The city also filed exceptions which did not appear by the record.
    Upon these exceptions the court made the following decree:—
    “ All the exceptions to the report of the jury are dismissed, except the third exception on behalf of the city, which is sustained, and the report is confirmed so far as relates to the assessment of damages for the opening, widening and straightening of the street, from Market street to Sycamore, and the remainder of the report is set aside.”

      ' A certiorari was issued at the instance of Mcllvaine without obtaining a special allocatur by one of the judges of the Supreme Court, as is provided by the 2d section of the Act of March 28d 1829, Pamph. L. 93, “ relative to the opening of roads in the county of Philadelphia.”
    Mcllvaine assigned for error:—
    I, 2. Overruling his 1st and 2d exceptions.
    3. Sustaining the 3d exception of the city, viz.: “ That it was unnecessary to extend Thirty-fourth street diagonally from Sycamore street to Thirty-fifth street.”
    When the case came up for argument a motion was made to quash the certiorari for want of a special allocatur, under the Act of 1829.

      D. W. Sellers, for Mcllvaine.

      JR. JPf. Willson and O. JHJ. T. Gollis, City Solicitor, for the city.

      J. S. Gerhard and JE. S. JMJiller, for the property owners.
    March 13th 1874.
   Mr. Justice Paxson

delivered the opinion of the court,

A writ of certiorari was sued out by Hugh Mcllvaine to the Court of Quarter Sessions of Philadelphia, to bring up the record of that court in the matter of the proceedings to assess the damages for the widening of Thirty-fourth street. The case is inaccurately termed an appeal, and the parties are treated as appellant and appellee in the respective paper-books. This is erroneous; there is no appeal in the case. The distinction between an appeal and a certiorari is marked and should not be lost sight of. An appeal brings up the case upon its merits; a certiorari brings up the record only, and upon such writ we can look merely at the regularity of the proceedings: Duff’s Road, 16 P. F. Smith 459.

A motion to quash the certiorari was made upon the argument. The reason assigned was that the writ had not been allowed by this court or by one of the justices thereof. This involves a question of practice of some importance. The second section of the Act of 23d of March 1829, Pamph. L. 93, provides “that from and after the passage of this act, no writ of certiorari shall issue from the Supreme Court of this state to remove any proceedings of the Court of Quarter Sessions of the county of Philadelphia, under the Act of Assembly for opening and laying out of public roads, streets or highways, and for assessing damages for opening the same, unless the party applying for .such writ shall make oath or affirmation that the same is not intended for delay, but because he firmly believes that injustice has been done in the Court of Quarter Sessions; and unless such writ of certiorari shall be specially allowed by the Supreme Court or a justice thereof, for just and reasonable cause shown to them or him, and that any writ of certiorari issued against the provisions of this act shall be void and of no effect.” This act was held to he still in force in the case of Road from Thomas’s Creek, 3 Whart. 11. It was contended in that case, that by the general road law passed on the 13th of June 1836, this provision of the Act of 1829 was virtually repealed, and that by the Act of 16th June 1836, relating to the jurisdiction and powers of the courts, a certiorari is to issue of course. But the court said that the Act of 13th June 1836 contained an express saving of special and local acts, and that a special allocatur was still necessary for the removal of the proceedings in the Quarter Sessions relating to the opening of roads in the county of Philadelphia. Such has been the uniform construction of the Act of 1829 from that day to this, and the practice, with rare exceptions, has been in harmony with it. We might well quash this writ without further discussion, but as it was.taken out under an impression that a special allocatur was unnecessary, and the case has been fully argued, we would not quash under the circumstances if, upon examination, we find that the plaintiff would be entitled to a special allocatur immediately thereafter.

I have looked in vain through this record for anything on which' to base the plaintiff’s assignments of error. The resolution of councils referred to in the first and second assignments is hot set out in the record and is not before us. It is true that, in the petition of Thomas Costigan for the appointment of a jury to assess the damages for the widening of Thirty-fourth street, it is stated “that the Select and Common Councils of said city, by a resolution duly approved July 11th 1871, directed the commissioner of highways to notify the owners of property through and over which Thirty-fourth street, from Market street to Aspen street, passes, that after three months from the said notice the same would be required for public use according to the widened and straightened lines, as an approach to the park, and which notification has been received.”

Assuming the resolution to be as set forth in the petition, we fail to perceive any error on the part of the court below in appointing a jury to assess the damages for the widening of the street.

The Act of April 14th 1868, Pamph. L. 1083, provides “ that the councils of the city of Philadelphia be and they are hereby authorized to widen and straighten any streets laid out upon the public plans of said city as they may think requisite to improve the approaches to Eairmount Park.” If, as was contended, the damages for the widening of the street were required to be assessed under the Act of March 26th 1867, Pamph. L. 547, to which the act first above named is a supplement, it wrnuld still be the duty of the Court of' Quarter Sessions to appoint the jury. Eor anything that appears upon this record, the damages may have been “ ascertained, adjusted and assessed in like manner,” as is prescribed by the Act of 1867. We are unable to say in this proceeding, from what is legitimately before us, that city councils had no authority to enact said resolution, or that the court below had no jurisdiction.

The third assignment alleges that the court below erred in sustaining the third exception filed on behalf of the city. The record does not show any such exception or ruling. It does disclose three exceptions filed by the plaintiff, all of which were dismissed by the court and the report confirmed. The first and second of said exceptions are sufficiently covered by what has been said. The dismissal of the third exception is not assigned for error.

We are unable to see anything in this record which would justify us now in granting a special allocatur.

Writ quashed.