author: Mr. Justice Mercur

text:
    Hagemann’s Appeal.
    The assignee of a judgment recovered on a municipal lien acquires all the substantial rights of the lien as fully as the same were held by the assignor, and such assignment carries with it the priority which the lien possessed in the hands of the municipality.
    November 6th 1878.'
    Before Agnew, C. J., Sharswood, Mercur, Gordon and Trtjnkey, JJ. Paxson and Woodward, JJ., absent.

      Appeal from the Orphans’ Court of Allegheny county: Of October and November Term 1878, No. 274.
    This was the appeal of William Hagemann from the decree of the court making distribution of the estate of Conrad Schad, deceased.
    By the Act of January 6th 1864, Pamph. L. 1131, the city of Pittsburgh was authorized to make certain street improvements, and to assess the cost thereof on the properties benefited thereby. If the. assessments were not paid, they were to be filed by the city solicitor as liens, in the same manner as mechanics’ liens, and suits of scire facias and levari facias were to issue thereon. These liens were to have the same priority as other municipal liens. During the lifetime of Schad, under the provisions of this act, liens were filed against his property and-judgment having been obtained, execution issued thereon. At the request of Schad, Hagemann paid the amount of the claims with costs,- to the city solicitor, and took from the latter an assignment of the same on the record. After the death of Schad, the property against which the liens were filed was sold under an order of the Orphans’ Court.- The amount realized from the sale was sufficient to pay Hagemann’s claims, but was not enough to satisfy all the liens' against the property.- : Hagemann claimed that his liens were entitled to priority, and his claim was allowed. To this allowance,-certain lien-creditors excepted, alleging': 1. That the Act of-1864 gave no.priority to these liens. 2.. That said act conferred no power upon the city to assign the same. 3. That the payment by Hagemann was the act of a volunteer and he had no right to either assignment or subrogation as against a prior lien.
    The court, Hawkins, P. J., sustained these exceptions, allowing Hagemann only his pro rata share of the fund, in an opinion, saying: ■ _
    _ “ It may be conceded that the city solicitor, as an attorney at law, had no power of assignment either at common law or under the Act of 1864.1 But it does not follow that his act was void. If this were the case' of an ordinary lien, his assignment might be made operative by his principal’s receipt of the amount paid to him (Rowland v. Slate,. 8 P. F. Smith 196); and consequently there would be no right of collateral.objection. It would be governed by the law of agency applicable to private rights.

      “ But there is a wide difference between these assessments and ordinary liens. They are public burthens, created for the purpose of providing means of paying the costs and expenses of a certain class of municipal -improvements, and are given priority over all other liens, without regard to time of entry, because of their nature and purpose. They do not depend on contract. The power to make and- collect, them is vested in the city, as being an appropriate function of government, and the duty to pay is imposed as being appropriate to. the citizen, They- have no inherent qualities of assignability dr collectibility. The power of the city, and the duty of the citizen with respect to them, depend exclusively on the Act of 1864. That act does not expressly confer authority to delegate this power; it impliedly denies such authority by providing that, when the lien of assessments shall have been satisfied, it shall be so marked on the index of the Municipal Lien Docket.
    “ It follows from the nature and purpose of these assignments :
    “ 1. That the power to make and collect . them as preferred claims, being an attribute of sovereignty, could not be delegated. It could be exercised by the city alone. Finney v. Commissioners, 1 S. & R. 62 ; Mclnerny v. Reed, 23 Iowa 410 ; Russell’s Appeal, 9 P. F. Smith 401; Philadelphia Association v. Wood, 3 Wright 73; Mellon v. Hartzhorn, District Court Allegheny Co., 1 Auditors’ Rep. Docket 322.
    “ 2. That the priority of lien of these assessments, having been given for a special and limited purpose, was satisfied by the accomplishment of that purpose. That purpose was the payment of the amount of the assessment into the city treasury.
    “ 3. That therefore the priority of lien of these assessments had no quality of assignability and the city no power to assign. Griffing v. Pintard, 26 Miss. 173; Jackson v. Clark, 18 Johns. 441; Mclnerny v. Reed, supra; Schenk v. Peay, 1 Dillon 267.
    “The hazard to the citizen and to the public of investing the city with the power of assignment in such cases, is obvious.
    “ If a single assignment, with its incidents, can be thus transferred to a private individual by the city, the whole list of assessments may be transferred. The functions of government would thus be placed in irresponsible hands, and a wide door opened to fraud and oppression. History teaches that a ‘ farmer of taxes is of all creditors the most rapacious.’ Neither the opportunity nor disposition would be wanting to pervert to the purposes of private gain or personal malice, those extraordinary powers which ought only to be exercised by a paternal government: Mclnerny v. Reed, supra. It would he an easy matter, for example, to divest the lien and destroy the value of the first mortgage without the knowledge or fault of the mortgagee. The lien of the assessment is given priority by law over all other liens, without regard to time of entry; and consequently a sale thereon would divest the lien of a prior mortgage: Pittsburgh’s Appeal,, 20 P. F. Smith 142. Inquiry at the place designated by law for receipt of the amount of the assessment, would have disclosed payment, but no record of the assignment of the lien. It is no part of the duty of the city to make such record. Its interests terminate with the payment of the assessment. The mortgagee could not be expected to inquire further; and yet, notwithstanding his diligence, he will have lost his lien, if the assignment be valid, and the assignee have perhaps become the owner of his security at a merely nominal price, So, the substitution of the assignee to the rights of priority of lien of the city would, in many cases, result injuriously to the public, .by the. postponement and loss of subsequently accruing assessments. Suppose, for example, that after such subsequent lien should have been entered, the assignee of the first lien for assessment should issue execution and sell the property assessed, without the knowledge of the city authorities, as might readily happen. Such sale, if valid, would divest all liens, and the assignee would be entitled to the proceeds to the extent of his lien in preference to all lien-creditors, including the city, by virtue of his priority of .lien. If the proceeds should be no more than sufiScient to pay his .claim, the city would thus, by its own act, have deprived itself of part of its necessary revenue, and the rights of the subject would have become paramount to those of the sovereign. And thus by farming out the whole list of assessments, which would be as much within its corporate powers as the transfer of an assessment against a single property-holder, the loss would be proportionately increased.
    “ The case of Mellon v. Hartzhorn, supra, is at once a practical illustration of the dangerous tendency, and of the denial of the right of such assignment. A lien was .entered by the city of Allegheny, for grading and paving Eobinson street, under a statute similar to the Act of 1864. On payment of the amount of the assessment to the city solicitor, he assigned the lien to the payor. Subsequently, another lien was entered by the city against the same property, for grading, &c., Grantham street. The property assessed having been sold for an amount not sufficient to pay both assessments, the court (Hampton and Williams, JJ.), .appropriated the whole fund to the city, thus treating the Eobinson street lien as .having been extinguished, so far as the city was concerned, notwithstanding the assignment. And this is the true doctrine. The right of .priority of lien is. part of the machinery of government for the .collection of its dues: Grilling v. Pintard, supra. It overrides private rights of property, and was never intended to be controlled by the feeble hand of the citizen. After assignment it loses its character of public burthen for public purposes, and thus the only -basis upon which.its quality of priority could rest is taken away. If it has any vitality at all, it is simply as an ordinary lien. There .may be..cases in which the priority of lien will be maintained for certain purposes after assignment. Thus, where one of several lien-creditors'pays, and takes an assignment of a municipal lien for' his own protection, it may be that equity will continue such lien as between him and his co-lien-creditors. Justice would seem to require it. . But in the case now before the court the assignee has no such equity. . He declares that his only object in paying the assessment was to befriend Schad.
    .“These reasons lead to the conclusion that payment to the city of the amounts of the assessments, against the property of Conrad Schad, discharged their priority of lien.”
    From the distribution made in conformity with this opinion, Hagemann took this appeal.

      Morton Hunter and JR. B. Carnahan, for appellant.
    Municipal liens are of the same nature as mechanics’ liens in their essential features, and mechanics’ liens are assignable. The cases cited by the court below refer to taxes, but a municipal lien is not a tax : Northern Liberties v. St. John’s Church, 1 Harris 104; Pray v. Northern Liberties, 7 Casey 69. By subrogation Hagemann acquired all the rights of the city: Cottrell’s Appeal, 11 Harris 294 ; 2 Wharton’s Dig. 612.

      J. H. Baldwin and Thomas Mellon, for appellees.
    The appellant claims the right to purchase government taxes, and by assignment, clothe himself with the sovereign power to enforce them, regardless of any prior claims of private citizens.
    Though municipal liens are not taxes, yet the power to impose a local assessment and make it a lien is a branch of the taxing power: Dillon on Municipal Corporations, § 605 ; Cooley on Taxation 148, 418; Commonwealth v. Woods, 8 Wright 113; Hammett v. Philadelphia, 15 P. F. Smith 150; Mclnerny v. Reed, 23 Iowa 410; Thompson v. Schermerhorn, 2 Selden 92.
    We adopt the oninion of the learned court below as our argument in this ease.
   Mr. Justice Mercur

delivered the opinion of the court, January 6th 1879.

This contention arises in the distribution of the estate of Conrad Schad. It is whether the assignee of a judgment recovered on a municipal lien, acquires all the substantial rights of lien as fully as the same were held by the assignor.

The city of Pittsburgh held two judgments against Schad. They were based on municipal claim's filed under the Act of 6th January 1864, Pamph. L. 1131; scire facias had issued thereon, judgments had been obtained, executions had issued, and the property of Schad was advertised to be sold. On the day preceding the sale Schad went to the appellant and besought him to advance the money, and prevent a sacrifice of his property. In pursuance of this urgent request, and as a favor to Schad, the appellant paid the money to the attorney of the plaintiff, in the judgments, who was also city solicitor, and took from him an assignment thereof. The Act of Assembly referred to expressly directs these claims to be placed in the hands of the city solicitor, for him to collect and pay damages. In this case it is conceded that the city solicitor paid over the money in pursuance of law. The city makes no complaint. The cbntention is between the assignee and other creditors of Schad. The court below held the assignments were not void, and if it were the case of ordinary liens, his assignments might be ratified by the receipt of the money by his principal; but that these liens were not of such a, character. It conceded the assignment to be effectual so far as to pass to the assignee a right to the money due on the judgments, and therefore allowed to them a pro rata share in the fund, yet held the judgments lost that priority of lien which they had when in the hands of the city.

This presents the question for consideration.

The act provides, inter alia, for the widening, extending, grading and paving of streets in the city of Pittsburgh, and for assessing the costs and expenses thereof on the property, benefited thereby. It also declared the assessments thus made should be liens on the properties charged therewith from the commencement of the improvement for which they were made. The court thought the power to make and collect these assessments was an attribute of sovereignty, and could not be .delegated or exercised by any other than the city ; and as it had received the money, it mattered not. in what manner the priority of lien was extinguished. It thought to hold the full claim of the city in these judgments could be assigned would be hazardous to the person against whose property the claim was assessed, and to the public. It will, however, be observed that this was not an ordinary tax imposed for. a public .purpose. It was- a municipal charge for the benefit of lot-holders on. the particular street. The assessment was intended as an equivalent from the owner, for tho improvement made to the value of his property. They were not to be collected like public taxes. The act directed the liens to be filed in the District Court of the county, in the same manner as mechanic’s liens are filed, and that writs of scire facias and levari facias be issued thereon, in like manner. Hence the mode of assessment to' pay some persons damaged by .the improvement, as well as the manner of their collection, distinguish these assessments from public taxes generally: The Northern Liberties v. St. John’s Church, 1 Harris 104. Conceding, however,, in a broad sense, that in their inception, these assessments may be considered as taxes, how stands the case ? When the assignment was made the claim had changed its form. It had not only become a judgment in rent ripe for execution; but the latter had actually issued. The collection of the judgment was to. be enforced like other judgments in rein. Nf> unusual powers of sale attached to the judgment. Its only preference over a mechanic’s lien was its. priority.

The facts show -this is not. the-, case of one buying a tax. against a tax-payer, without the knowledge or consent of the latter, and with a-view to enforce unusual remedies against him ; but it was the purchase of judgments with restricted remedies, at the earnest solicitation of the defendant therein.

Granting then that it would be against the policy of the law to permit a municipality to become “a farmer of taxes” and to sell and transfer against the wishes of the tax-payer, a tax, with harsh or unusual powers for its collection, yet that is not this case. . The law gave to the city one mode only for the collection of these assessments. It created no personal liability. The lien of the judgments and right of sale were limited to the specific properties described. To prevent the city from selling the property at a sacrifice, at the urgent request of the defendant in the judgments, and to give him further time for their payment, the appellant advanced the money. Both parties to the judgments were satisfied. What right has a third person to complain? The interposition of the appellant worked no injury to other creditors. Without any action on his part, the judgments were preferred liens. The defendant therein, to further his own interests, and to the prejudice of no one, caused the equitable right of enforcing the liens resting on his property to be transferred to the appellant. Under all the circumstances we cannot see that any principle of public policy was thereby assailed. If not, then all the incidents of the preferred liens passed with the assignments to the appellant.

Decree reversed, with instructions that distribution be made conformably with this opinion ; and it is ordered that the appellees pay the costs of this appeal.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Flattery versus Flattery.
    In a suit for divorce the uncorroborated testimony of the libellant, although denied, is sufficient evidence to justify a jury in returning a verdict for libellant.
    October 28th 1878.
    Before Agnew, C. J., Merotjr, Gordon, Paxson and Trunkby, ,TJ. Siiarswood and Woodward, JJ., absent.
    Appeal from the decree of the Court of Common Pleas of Cambria county: Of October and November Term 1877, No. 224.
    Appeal of William Flattery from the decree of the court granting a divorce a vinculo matrimonii from his wife, Mary Flattery.
    The wife, the libellant, in her petition set forth that she had married the respondent, William Flattery, on April 23d 1874, and that from a short time after their marriage the respondent had cruelly and barbarously treated the libellant and endangered her life; and had offered such indignities to her person as rendered her condition intolerable and life burdensome, thereby forcing her to withdraw from his house and family. It also set forth in detail the character of the cruel and barbarous treatment and the indignities offered to her person.

      The respondent was served with the subpoena, and in his answer denied every material averment contained in the libel. An issue was then made up on the averments of the libel and the denials of the answer.
    At the trial no other witnesses were examined except the libellant and respondent, and the latter denied every material averment of the libellant. The court reserved the question of law raised by the defendant’s tenth point, as follows:—

      “ The uncorroborated testimony of the libellant is not sufficient evidence to justify the jury in returning a verdict for libellant, and her testimony being uncorroborated and denied, the verdict must be for the respondent.”
    The verdict was for the libellant, and, on motion, after argument, the court (Dean, P. J.) entered judgment on the verdict and a decree a vinculo matrimonii.

    From this action of the court this appeal was taken.

      James Potts, for appellant.

      I). McLaughlin and i?. L. Johnston, for' appellee.
   The judgment of the Supreme Court was entered, November 4th 1878,

Per Curiam.

This case was tried before a jury upon issues arising upon the petition and answer. The parties were examined in open court, where their credibility could be judged of by their conduct and appearance. The law has made the libellant a competent witness. Whether credible, was a question for the jury and not for the court. ‘ That she was flatly contradicted by her husband; did not take the case away from the jury, is clear. It may be that the credibility of the wife, and the want of credibility of the husband, were as clear to the minds of the jury as the light of noonday. On what principle, then, shall we say, though the law has made her competent, and has carried her testimony into the jury-box, she was not to be believed, and that the testimony was legally insufficient? This was a matter for the legislature in passing the law, not for us.

Decree affirmed, with costs to be paid by the appellant, and the appeal is dismissed.


author: Mr. Justice Paxson

text:
    McQuiston et al. versus Central Board of Education.
    It was provided by the Act of February 12th 1869, that the treasurer of the Central Board of Education of Pittsburgh should receive for his services one per centum on the money received and paid out by him. By a supplement of February 24th 1870, the treasurer was to be chosen from among the banks of said city, and that one chosen which should give satisfactory security and pay the highest rate of interest on current balances. A bank so selected agreed to pay 6|- per cent, interest on daily balances, and to charge 8 per cent, on over-drafts. Held, that this contract was authorized by the Act of Assembly and was therefore binding. Held, further, that the bank was not entitled to the commission allowed to the treasurer under the Act of 1869.
    November 7th 1878.
    Before Aemsw, C. J., Sharswood, Mekcur, -Gordon, Paxson and Trunkey, JJ. Woodward, J., absent.
    Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1878, No. 116.
    Debt by the Central Board of Education of the City of Pittsburgh against James McQuiston and others, sureties on the bond of the Tenth Ward Bank, to recover a balance, with interest, which the plaintiff alleged was due by the bank, as the depositary or treasurer of the board.
    A case wras stated, for the opinion of the court, wherein it appeared that the bank was made the depositary or treasurer of the board, under the provisions of the Act of February 24th 1870, Pamph. L. 281, and contracted to pay 6Jper cent, interest on daily balances, and to charge 8 per cent, on over-drafts. The Act of 1870 provided, inter alia, that the Board of Education should select from the several banks a treasurer or place of deposit, which should give bond, with sufficient sureties, and pay for the use of the school fund the highest rate of interest on current balances. This Act of 1870 was the supplement to the Act of February 12th 1869, Pamph. Li 967, wherein it was, inter alia, provided that the Board of Education should annually choose a treasurer, who should be allowed to retain for his services a sum not exceeding one per centum on the money received and paid out by him.
    The bank having, at the end of the second year, ceased to act as depositary for the plaintiff, the present suit was brought to recover from the defendants a balance of $2518.02, alleged by the plaintiffs to be due and payable to it by said bank, on settlement of a final account, with interest from June 1st 1874,
    The defendants denied this indebtedness, for the following reasons :
    1. That by the 10th section of the Act of February 12th 1869 (which remains unrepealed), unless the court should be of opinion that the Act of February 24th 1870, repeals the same, said bank, as treasurer of the Central Board, was entitled to receive a commission not exceeding one per cent., as set out and nrovided in section 10 of said Act of February 12th 1869, on all moneys that gassed through its hands as depositary, under the contract made with the plaintiff; and
    2. That the contract made by the plaintiff with the bank was usurious and cannot be enforced as to the excessive interest.
    The court, Stowe, P. J., in an opinion,' said:
    “ The questions raised by the case stated are :—
    “ 1. Whether plaintiff, under the supplement to the Act of 12th of February 1869, approved the 24th of February 1870, has a right to make a valid contract with the Tenth Ward Bank, for which the defendants are sued in this case as sureties for the payment of a greater interest than 6 per cent., for the privilege of acting as treasurer or depositary for the plaintiff.
    “ 2. Whether the provision in said Act of 12th of February 1869, ¿that the treasurer shall be allowed to retain for his services (as such) a sum not exceeding one per cent, on the money received by him,’ is repealed by said supplement.
    “Upon the first question, we are clear that the agreement for more than 6 per cent., to wit, as set out in case stated, was valid and legal.
    “ As to the second, we are not free from doubt, but thinking that the general intent of the legislature in passing the said supplement was to change the entire system as it had existed in regard to the treasurer for the school board, and that the purpose was to enable the board to obtain a compensation for allowing one to be treasurer instead of compelling them to pay for the services of a treasurer, as before provided, we are upon the whole led to conclude that the second question should also be decided in favor of the plaintiff.
    “Judgment is, therefore, now directed to be entered for plaintiff for $2518.02, with,interest from June 1st 1874, to wit, $3106.45.”
    The defendant assigned this entry of-judgment for error.

      J. L. Koethen and M. A. Woodward, for -plaintiffs in error.
    —It is not to be assumed that the legislature intended to make an exception to the operation of -the usury laws. It could not have‘been contemplated that over six per cent., or six percent., could be honestly bid for the. school fund, for the reason that the bidders could not themselves lawfully obtain over that amount; and to pay that amount on a daily balance, subject to daily fluctuations, would be suicidal. It is not to be assumed that violation of law was to be encouraged by legislation. The Act of 1870 is supplementary, and not referring to the compensation allowed under the Act of 1869, and not having anything -in it positively inconsistent with that, it would be a great straining of any known rule of interpretation to say that that clause ■ of' the Act of 1869 was repealed by the Act of 1870.

      Josiah Qohen, for defendant in error.
    The power to take more than legal interest was a legislative grant in aid of that cause which lies nearest the best interests of the state — the education of its youth. It was a power specially delegated for a special purpose, and one which proved far more beneficial, in this instance, to the bank which took eight per cent, than to the board, which only received 6-| per cent.
    It would certainly appear to be subversive of all known rules of interpretation to hold that these two Acts of Assembly can stand together, or that the commission clause of the Act of 1869 can stand Avith the provisions of the Act of 1870, when the very essence of distinction in the Act of 1869, as applied to the Act of 1870, is the granting of a commission to the treasurer for his services, which'was sought to be, and evidently was, repealed, and made inconsistent with the language, purpose and intent of the Act of 1870.
   Mr. Justice Paxson

delivered the opinion of the court, January 6th 1879.

It was provided by the 10th section of the Act of 12th February 1869, Pamph. L. 967, that the treasurer of the Central Board of Education of the city of Pittsburgh, “ shall be alloAved to retain for his services a sum not exceeding one per centum on the money received and paid out by him.” The supplement to the foregoing act, approved February 24th 1870, Pamph. L. 231, makes a change in this respect, and provides a system by which the custody of the school fund should be made a source of profit to the board. The first section of the supplement requires that'the treasurer shall be selected from the several banks or regular exchange brokers of the city of Pittsburgh; directs the board to invite sealed proposals from such banks and brokers to act as the treasurer or depositary of said school fund, whereupon the “ selection shall be made upon the opening of said proposals of the bank or exchange brokers who shall give satisfactory security by at least four sureties by bond to be approved by said board, and shall pay for the use of said school fund the highest rate of interest on current balances.” The bond in controversy was given under this act, and its payment is resisted by the sureties’ because, 1. The contract was not binding as to the excess of interest over the legal rate, and 2. That the bank was entitled to deduct a commission of one per cent, upon the amount of money received and paid out while acting as treasurer. Neither position is tenable. The contract for more than six per cent, was legal because authorized by the supplement. The bank or broker who should bid “the highest rate of interest on current balances,” was to be selected as treasurer. The act does not restrict the bid to the legal rate of interest. The object Avas evidently to give the custody of the money to the bank or broker who should bid the highest for its use, evidently overlooking the fact that so far as money is concerned the highest bidder is not always the best. There is nothing in the supplement of 1870 allowing a commission to the treasurer. No reference to it was made by the bank in its bid. It was evidently not in the contemplation of the parties at the time the contract was made. The commission allowed by the Act of 1869 was not to exceed one per centum. The rate therefore would have been a subject of agreement even were commissions allowed under the supplement of 1870, and would naturally have been included in the bid. It does not appear there or elsewhere in the contract of the parties, and we think was properly disallowed.

We see no error in this record, and the judgment therefore must be affirmed.


author: Pur Curiam.

text:
    Wacker et al. versus Straub.
    1. In an action upon a mortgage given for purchase-money the vendee may set off damages arising from a breach of warranty of title as to a portion of the premises, but if he has remained in possession in estimating such damages he is not entitled to interest thereon, although a judgment in ejectment has been recovered against him.
    2. A plaintiff in error must show by the record how the evidence became material, for if it, to all appearance, has no connection with the matter on trial the presumption is that the court were right in rejecting it.
    November 7th 1879.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Trunkey, JJ. Woodward, J., absent.
    Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1878, No. 180.
    Scire facias sur mortgage by John Straub against John P. Wacker and others on a mortgage given for purchase-money on certain real estate in the city of Allegheny.
    The following facts were found by a special verdict. That on October 1st 1864, John N. Straub, the plaintiff, conveyed the premises in dispute to John P. Wacker, George Steurnagle, John Gipperich and John J. Wacker by deed of general warranty, and said vendees entered into possession of the same.
    That upon the execution of said deed said vendees executed and delivered to plaintiff their bond for the payment of $22,000, secured by the mortgage upon which the scire facias was issued in this case.
    That on the 1st day of January 1866, John Joseph Wacker and John Gipperich conveyed all their interest in the premises to their co-tenants, John P. Wacker and George Steurnagle, and on the 1st day of November 1872, George Steurnagle conveyed all his interest therein to John P. Wacker, and on the 11th day of June 1875, the interest of John P. Wacker was sold by the sheriff to Theodore Hueskin, and was conveyed to him by deed dated April 22d 1876;
      said Ilueskin purchased and held the same in trust for John Gipperieh and John Huckestein, who owned the premises at the time suit was brought in this case.
    That on the 5th day of July 1870, an action of ejectment was instituted by the West Pennsylvania Railroad Company against John P. Wacker and George Steurnagle, and upon the 8th day of January 1876, a verdict was rendered in favor of said plaintiff for a portion of the ground contained within the boundaries as described in the deed of John N. Straub, as indicated by the distances mentioned in said deed, and upon which was a portion of the buildings occupied by said Straub at the time of said sale.
    That the portion of said premises for which said railroad company recovered was claimed to be and recovered as the slope of the bermebank of the Pennsylvania canal, which they had purchased from the Commonwealth of Pennsylvania.
    That judgment was entered on the verdict in said case on the 18th day of January 1872, but no execution was issued thereon, and the parties claiming title under the defendants in this case are still in possession of the premises.
    That John N. Straub was not a party to said action of ejectment and was not formally notified to defend the same, but was notified by John P. Wacker, one of the defendants ; that the writ of ejectment had been served upon him immediately after the service, and he took part in the defence and contributed to payment of counsel.
    We further find, that the property is damaged by the taking of the property recovered by the West Pennsylvania Railroad Company to the amount of $2150.
    That there is due and unpaid upon said mortgage, including interest to this date, $9390.50.
    The jury not being advised whether or not, under the facts in this case, the defendants are entitled to set off the damage aforesaid, do find in favor of the plaintiff for the sum of $9890.50.
    That under all the evidence in the case, the plaintiff is entitled to receive the full amount of debt and interest upon his mortgage now remaining unpaid, subject to the opinion of the court upon the question of law whether or not the defendants in this case are entitled to set up said damages as a defence to the same, as claimed by plaintiffs. And if the court shall bo of the opinion that they are not entitled so to do, then judgment to be entered upon the verdict upon the amount so found; and if they be so entitled the amount of said damages to be deducted from said sum and judgment to be entered accordingly, non obstante veredicto.

    The only evidence presented in the case were the extracts contained in the assignments of error, which consisted of offers of evidence by defendants relating to the breaking of a sewer, which were excluded by the court on the ground of irrelevancy.

      Plaintiff submitted the following points, both of which the court, Kirkpatrick, J., affirmed.
    1. The rule for determining the damages in this case is to ascertain the proportion between the value of the property taken and that which is left, and apply the same proportion to the purchase-money.

      2. That the defendants, having been in undisturbed possession of the premises, are not entitled to any allowance for interest on the damages so found.
    The defendants submitted the following points, which the court refused: .
    3. As the damages to be set off are for a failure of consideration of part of the purchase-money, therefore, as to that part of the consideration of the mortgage sued on as to which the jury may find there is a failure of consideration, the plaintiff cannot recover interest. That is, the jury should first fix the damages, then deduct the same from the principal of the mortgage, and allow interest on the balance, if any.
    4. If the court decline our third point, then we ask the court to charge that no interest can be recovered from the defendants for that part of the mortgage extinguished by the damages for the six years preceding the recovery by the verdict in the ejectment ease.
    5. If the court also refuse our fourth point, then we ask the court to charge that no interest can be recovered on that part of the mortgage extinguished by the damages for six years last past.
    After argument and consideration of the questions reserved in the special verdict, the court entered judgment for the plaintiff for $7240.50. Defendants then took this writ, assigning for error'the rejection of their testimony, the answers to the above points, and the entry of judgment for plaintiff.
    TFra. B. Modgers and John Burton, for plaintiffs in error. —
    The contract between the parties was evidenced by the deed of general warranty from plaintiff below to defendants, in evidence. It conveyed land that the vendor did not own. The contract was broken as soon as it was made.
    The value of the portion of the land he did not own, included in the mortgage, he had no right to demand, collect or receive, and of course he .had no right to collect interest on that portion of the principal of the mortgage. If he had no legal title to or right to recover the principal, by what process of reasoning are we to arrive at the conclusion that he could collect interest on t.his principal ?
    Suppose the title had failed to the whole of the premises described in the deed, would it be contended that the plaintiff, although not entitled to recover on the mortgage for the principal, was still entitled to recover for interest on the sum he had no right to receive or collect?

      But it is said, and the reason given for holding us for interest down to the day of trial, is because we were not evicted or turned out of possession by the party who recovered against us in the ejectment. We having remained in possession with the consent of the owner, may bo liable to the true owner for use and occupation, but certainly we are not liable to our vendor for the use or interest of money that we do not owe him.
    And we were and are liable to the owner in an action for mesne profits for six years prior to the commencement of the ejectment, as ruled in this court in Cox’s Adm’r v. Henry, 8 Casey 18.
    That tho rule is the same in case the action is for purchase-money as it is in case the action is against the vendor for a breach of the warranty, we refer to Beaupland v. McKeen et al., 4 Casey 124, opinion by Justice Woodward.

      Bruce <f* Bfegly and Slagle $ Wiley, for defendant in error.—
    The defendants were in undisturbed possession of tho premises, and are not entitled to any allowance of interest on the damages found: Beaupland v. McKeen, 4 Casey 124; Cox’s Adm’r v. Henry, 8 Id. 18; Caulkins v. Harris, 9 Johns. 324; Bennet v. Jenkins, 13 Id. 50; Clark v. Parr, 14 Ohio 118.
   The judgment of the Supremo Court Avas entered November 18th 1878,

Pur Curiam.

It does not appear from any evidence in the cause (none being printed) that the question as to the sewer became material. The objection as to irrelevancy must therefore prevail. A plaintiff in error must show by the record how the evidence became material, for if it, to all appearance, has no connection with the matter on trial, the presumption- is that the court below was right.

We discover no error as to the interest under tho facts stated.

Judgment affirmed.

Mr. Justice Trunkdy filed a dissenting opinion as to the interest.


text:
    Nagle versus Allegheny Valley Railroad Company.
    1. An infant of tho ago of fourteen years is presumed to have sufficient capacity to be sensible of danger and to haA’e the power to avoid it, and this presumption will stand until overthrown by clear proof of the absence of such discretion as is usual with infaDts of that age.
    2. When an infant's responsibility for negligence is presumed to commence is a question for the court and not for tho jury.

      November 7th 1878.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Trunkby, JJ. Woodward, J., absent.
    Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1878, No. 6.
    Case by Peter Nagle against the Allegheny Yalley Railroad Company, to recover damages for the death of plaintiff’s son through the alleged negligence of defendant.
    On the 4th day of November 1875, Jacob Nagle, son of the plaintiff, a lad of fourteen years, was employed in the steel-works of Messrs. Reese, Graff & Woods, on Thirty-second street, in the city of Pittsburgh. The Allegheny Yalley Railroad Company had a lateral track laid for the accommodation of the steel company, from their main track, along Thirty-second street to the Allegheny river. The buildings of the company were erected on both sides of Thirty-second street, and the lateral road ran within three or four feet of the buildings on the west side. The lad was employed in the buildings on the east side of the street, and at the dinner hour had gone over to the buildings on the west side, to eat his dinner, with other boys of his acquaintance. Whilst sitting there, the whistle sounded for return to work, when the boy started up and went through a sliding-door to cross the track, when he was caught by a passing engine and instantly killed. The boy could not be seen by the engineer until he came out of the door, nor could he see the engine. A city ordinance forbids the running of any train at a greater rate of speed than four miles per hour, and requires that the bell of the engine shall be rung when passing along the streets. The witnesses who saw the engine were of opinion that it was running at a rate of about twelve miles. an hour, but could not state whether the bell of the engine was ringing or not, owing to the noise created by the movement of the machinery in the mill.
    The court (Kirkpatrick, A. L. J.), upon these facts, entered a nonsuit, on the ground that the plaintiff had shown no negligence on the part of the defendant, and that the evidence showed that there had been contributory negligence on the, part of the deceased lad. The court in banc refused to take off this nonsuit, when the plaintiff sued out this writ.

      Moore Milligan, for plaintiff in error.
    The immediate and direct cause of the boy’s death was the fact that the engine was running much faster than the law allowed. It is not an answer to say that the boy’s rashness was the cause. The question of contributory negligence is to be determined by reference to the age and intelligence of the person injured, and the circumstances under which the injury was sustained; and under this principle the plain-' tiff was clearly entitled to recover: Pennsylvania Railroad Co. v. Kelly, 7 Casey 377; Rauch v. Lloyd & Hill, Id. 370; Oakland Railway Co. v. Fielding, 12 Wright 320; Crissey v. Hestonville Railway Co., 25 P. F. Smith 83; P. & R. Railroad Co. v. Long, Id. 257; Philadelphia City Passenger Railway Co. v. Hassard, Id. 367.

      Hampton ¿1 Dalzell, for defendant in error.
    While it cannot be contended that the engineer could have done aught to avoid the accident, the boy jumping suddenly, as he did, right under the engine, the startling position is taken that the rate of speed was the proximate cause of the injury, because if the engine had been going more slowly the boy would have been over the track before he could have been caught. But the immediate cause of the injury was the boy’s own recklessness in jumping on a railroad track over which he knew trains were constantly passing, without stopping to look or listen, and it is not the remote negligence of the company we must look to, but the proximate — that is, the conduct of the engineer on the engine at the time of the injury: Philadelphia and Reading Railroad Co. v. Spearen, 11 Wright 301; Morrison v. Davis, 8 Harris 171; Shultz v. Pennsylvania Railroad Co., 6 W. N. C. 69.
   Mr. Justice Paxson

delivered the opinion of the court, January 6th 1879.

It was conceded upon the argument that if the deceased boy, Jacob Nagle, had been an adult, the defendant corporation would not have been responsible for his death, for the reason that it was the result of his own rashness in attempting to cross the track immediately in front of the locomotive. At the time of the unfortunate accident, which resulted in his death, he was employed in the steel works of Messrs. Reese, Grraff & Woods, on Thirty-second street, in the city of Pittsburgh. The Allegheny Railroad Company had a lateral track for the accommodation of the steel company, from their main track along Thirty-second street to the Allegheny river. The buildings of the company were erected on both sides of Thirty-second street, and the lateral road ran within three or four feet of the buildings on the west side. Sliding-doors gave exit immediately on to the track. The boy was employed in the buildings on the east side of the street; and at the dinner hour had gone over to the buildings on the west side to eat his dinner with other boys of his acquaintance. Whilst sitting there, the whistle sounded for return to work, upon which he instantly started to run across to his own shop, and in doing so, passed out of the sliding-door to cross the track, was caught by a passing locomotive and instantly killed. At this point he could not see the engine, nor could the engineer see him. The mill had started up, and the noise of the machinery probably prevented his hearing the approach of the engine or the ringing of the bell, if in point of fact the bell was rung. The place where the accident occurred was a place of danger; an engine was liable to pass along by the sliding-door at any moment. What occurred, is told by Frederick Kiefer, a witness for the plaintiff, in a few words: “Just as I entered the mill I heard the whistle blow; after I entered the building, the whistle ceased blowing, and at that moment the boy rushed past me on to the railroad track, and the locomotive run over him.” Upon this state of facts, the learned judge nonsuited the plaintiff, and subsequently refused to take the nonsuit off, which is assigned for error here.

It is undoubtedly true that negligence cannot be imputed to one who has not sufficient capacity or discretion to understand the danger, and to use the proper means to guard against it. Thus, it has been repeatedly held, that when an injury has been inflicted upon a child of tender years, by negligence on the part of corporations or individuals, the incapacity of-the child to know the danger and avoid it, shields it from responsibility. It is sufficient for present purposes, to cite Rauch v. Lloyd, 7 Casey 370; Smith v. O’Connor, 12 Wright 222; North Penn. Railroad Co. v. Mahoney, 7 P. F. Smith 187; Kay v. Pennsylvania Railroad Co., 15 Id. 276; Railway Co. v. Caldwell, 24 Id. 421; Same v. Hazzard, 25 Id. 367; Same v. Lewis, 29 Id. 33. It was strongly urged that the case in hand falls within the principle and authorities above cited, and that at least the case should have gone to the jury upon the question of the concurring negligence of the boy, in connection with his age and the surrounding circumstances; that it was error for the court to declare the responsibility of the boy for his admitted negligence.

It is the province of the jury to settle controverted questions of fact. Upon an admitted state of facts it is the duty of the court to declare the law: Hoag v. The Railroad Company, 4 Norris 293. Nor are questions of negligence an exception to this rule. There are certain things which the law declares to be negligenee per se; the duty being the same under all circumstances. Thus, it has been repeatedly held, that when a person attempts to cross a railroad track, it is his duty to stop, look and listen, and that the omission .to do so is negligence: Pennsylvania Railroad Co. v. Beale, 23 P. F. Smith 507; Railroad Co. v. Stinger, 28 Id. 219; Pennsylvania Railroad Co. v. Barnett, 9 Id. 259; McCully v. Clarke, 4 Wright 399. Under this rule, upon the plaintiff’s own showing, it was the duty of the court to nonsuit him, unless it appears from the evidence, that the deceased boy was of such tender years or limited mental capacity as not to be responsible for his own negligence.

All of the cases. above referred to were those of mere children. We are dealing with a different question. Jacob Nagle, at the time of his death, was between fourteen and fifteen years of age. His father had placed him in this rolling-mill some two months previously. He was there earning his living in a regular employment. The employment itself was a dangerous one. There is not an hour of the day when the machinery of a rolling-mill is in operation, that vigilance and care are not required on the part of the employees to avoid injury. It ill becomes the father who placed this boy amid such scenes of danger, and who is seeking to recover damages for his death, now to aver that his son was of such tender years or feeble mind as to be unable to understand the danger or to avoid it. No such attempt was made upon the trial of the case. No evidence was offered to show that although he had arrived at years of puberty, he was yet immature for his age; that although earning his support in a dangerous mill, and acting the part of a person of mature years with his father’s consent, he was yet a mere child in intelligence and physical strength. Such evidence would have been competent. Its absence leaves the argument of the plaintiff without any base for its support.

The law fixes no arbitrary period when the immunity of childhood ceases and the responsibilities of life begin. For some purposes majority is the rule. It is not so here. It would be irrational to hold that a man was responsible for his negligence at twenty-one years of age, and not responsible a day or a week prior thereto. At what age then must an infant’s responsibility for negligence be presumed to commence ? This question cannot be answered by referring it to the jury. That would furnish us with no rule whatever. It would give us a mere shifting standard, affected by the sympathies or prejudices of the jury in each particular case.One jury would fix the period of responsibility at fourteen, another at twenty or twenty-one. This is not a question of fact for the jury. It is a question of law for the court. Nor is its solution difficult. The rights, duties and responsibilities of infants are clearly defined by the text-writers, as well as by numerous decisions. Upon so plain a question it is sufficient, to refer to Sharswood’s Blackstono, vol. 1, p. 435, 464; Id. iv., p. 20, where we learn that fourteen is the ago of discretion in males and twelve in females ; that at fourteen an infant may choose a guardian and contract a lawful marriage. His responsibility to the criminal law is equally well settled. Under seven years of age an infant cannot be guilty of felony, for then a felonious discretion is almost an impossibility in nature; but at eight years old he may be guilty of felony: Dalt. Just., c. 147. Between the ages of seven and fourteen, though an infant shall be prima facie adjudged to be doli ineapax, yet if it appear to the court and jury that he was doli oapax, and could discern between good and evil, he may be convicted and suffer death. After fourteen an infant is responsible for his crimes to the same extent as an adult.

We have thus seen that the law presumes that at fourteen years of age an infant has sufficient discretion and understanding to select a guardian and contract a marriage; is capable of harboring malice and of taking human life under circumstances that constitute the offence murder. It therefore requires no strain to hold that at fourteen an infant is presumed to have sufficient capacity and understanding to be sensible of danger, and to have the power to avoid it. And this presumption ought to stand until it is overthrown by .clear proof of the absence of such discretion and intelligence as is usual with infants of fourteen years of age.

The essential facts of this case not being in dispute, the court below was right in directing a nonsuit. Upon his own showing, the plaintiff was not entitled to a verdict. It was one of those painful accidents for which the law does not furnish a remedy in damages. Judgment affirmed.

Chief Justice Agnew filed a dissenting opinion, in which Mr. Justice Gordon concurred.


text:
    Stephenson, Ex’r, versus Richardson.
    A father devised to his daughter certain real estate for her sole and separate use, and “ at her decease to descend in fee-simple to such of her children as she may direct in a writing signed by herself; the said property not to be subject to sale or mortgage during her life.” The daughter by will directed the property to be sold by her executor and the proceeds to be distributed among certain of her children and grandchildren whom she designated by name: 'Held, that this was not a valid and sufficient execution of the power.
    October 7th 1878.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Trunket, JJ.
    Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1878, No. 214.
    Ejectment by William Richardson, Sr., against George K. Stephenson, executor of the will of Julia Richardson, deceased, to recover certain real estate in the city of Pittsburgh.
    The father of Julia Richardson, David Logan, died in 1831, leaving a will, wherein he devised, inter alia, the property in dispute to his daughter “ for her sole and separate use, not subject to the control of any husband she may have, but at her decease to descend, in fee-simple, to such of her children as she may direct in a writing signed by herself; the said property not to be subject to sale or mortgage during her life.”
    Julia Richardson died a widow in 1876, leaving ten children and a number of grandchildren, the issue of a deceased son, who died after the death of his grandfather. By her will she directed all her real estate, which consisted alone of that devised to her by her father, to be sold by her executor, and the proceeds to be paid to certain of her children and grandchildren whom she designated by name. The question was whether this direction to sell was a valid execution of the power contained in her father’s will, and the court below, Ewing, P. J., being of the opinion that it was not, entered judgment for the plaintiff for an undivided one-ninth part of the land in controversy, from which judgment this writ was taken.
    6r. W. Gfuthrie and A. Gf. Cochran, for plaintiff in error. —
    The power conferred on Julia Richardson -was not a mere power of selection, but a power to make such equitable provision for her children as she thought they deserved or required, and included the right to divide the property, or sell and divide the proceeds. In England a power to appoint land in fee may be well executed by a devise to trustees to sell, and an appointment of the proceeds among the objects of the power : Kenworthy v. Bate, 6 Ves. 793; Bullock v. Fladgate, 1 Ves. & B. 471; Fowler v. Cohn, 21 Beav. 360. If, however, she exceeded her power in directing the land to be sold and the proceeds divided, we contend that the power was well executed by the naming the children, and that each child would take an interest in the land equal to that which it would have received from the fund had the land been sold: 2 Wash. on Real Property 620, 621; 2 Sudg. on Powers 62, 75, 85, 93; Alexander v. Alexander, 2 Ves. Sr. 640; Crompe v. Barrow, 4 Ves. 681. If there was an excess of power in regard to the grandchildren, then the shares given to them would have to be divided among all her children, or among all those named in the will, according to their respective interests.

      W. C. Morland and Hampton Dalzell, for defendant in error.-
    The father of Julia Richardson devised land to such of her children as she might select. lie gave no power to sell. The English cases have been so qualified by our Supreme Court that they can no longer govern our decisions: Boyd v. Bigham, 4 Barr 102; Wood’s Est., 1 Id. 368 ; Horwitz v. Norris, 13 Wright 213; Wickersham v. Savage, 8 P. F. Smith 365; Appeal of the Fidelity Ins. Trust and Safe Deposit Co., 4 W. N. C. 265. The power must be considered as wholly unexecuted: Varrell v. Wendell, 20 N. H. 431.
   The judgment of the Supreme Court was entered, October 14th 1878,

Per Curiam.

We are of opinion that the will of Julia Richardson was not a valid and sufficient execution of the power contained in the will of David Logan, and that as a consequence the property devised to her, which, by the law as it then stood, was for life only, went, under the will of David Logan, to all her children, including, therefore, the children of Henry Richardson, her son, who died after the will of David Logan took effect, and in her lifetime. His children took his share as his heirs. But as there were eleven children, including Henry, the judgment must be modified to give the plaintiff one-eleventh instead of one-ninth. Judgment accordingly for the plaintiff, for the undivided one-eleventh of the premises in suit, and subject to this modification, the judgment is affirmed.


author: Mr. Justice Paxson Chief Justice Agnew

text:
    Craig et al. versus First Presbyterian Church of Pittsburgh.
    X. Where an Act of Assembly is entitled a supplement to a former act, and the subject , thereof is germane to the subject of the original act, its subject is sufficiently expressed to meet the requirements of article 3, section 3, of the Constitution.
    2. An Act of Assembly in providing for the removal of dead bodies from the burial-grounds of religious societies directed that no application should be made therefor “ except in pursuance of the wishes of a majority of the members of such society, or church, expressed at a church election held for that purpose, after two weeks’ public notice.”
    that the majority intended by the act was a majority of those present and voting at such election, and that those who did not attend must be pre¡sumed to have assented.

      further, that a notice from the pulpit on Sunday was a sufficient public notice” to meet the requirements of the act.
    3. The right of voting by proxy at an election of an incorpoi'ated company is not a general right, and the party who claims it must show a special authority for that purpose; but where rejecting all the votes cast by proxy is still a majprity the minority are bound by their action.
    There is a distinction between a corporate act to be done by a definite 1'number of persons, and one to be performed by an indefinite number; in the first case no act can be done unless a majority of the whole body are present; in the second a majority of those who appear may act.
    5. Sunday school rooms and lecture-rooms are clearly included in the “religious purposes” intended by the Act of April 18th 1877, and buildings erected therefor do not lose their religious character because of their occasional use for fairs or other benevolent objects.
    6. The legislature has power to authorize the removal of the remains of the dead from cemeteries, and may delegate such power to municipalities.
    7. The right of sepulture in the burying-ground of a church is not an absolute right, but a privilege to be enjoyed so long as the ground continues to be the church ground, and subject to any right winch the church possesses to abandon it for purposes of interment. ^ To entitle one, therefore, to raise the point that an Act of Assembly, authorizing the removal of the dead, impairs the obligation of a contract, it is not sufficient to show that he is a pew-holder in the church, or has relatives interred in its grounds; but he must show by the record that he has rights of sepulture in said grounds, or some contract relation with the church.
    November 8tb and 9tb 1878.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Trunkey, JJ. Woodward, J., absent.
    Certiorari to the Court of Quarter Sessions of Allegheny county: Of October and November Term 1877, No. 266.
    The proceedings in the court below commenced by a petition on the part of the Trustees of the First Presbyterian Church of Pittsburgh, asking the court for a decree to remove the remains of the dead from a portion of the burial-grounds of said church.
    The facts, in substance, were these: On May 19th 1874, the General Assembly passed “An act (Pamph. L. 208) relative to burial-grounds and cemeteries in incorporated boroughs,” which authorized the Courts of Quarter-Sessions “to make such orders and decrees,for the regulation and care of burial-grounds in incorporated boroughs, as the public shall require; and when any such burial-ground shall become so neglected as, in the opinion of said court, to become a public nuisance, the court may direct the removal of the dead therefrom, by the proper borough authorities, to some other properly regulated burial-ground.”
    On May 18th 1876, an act was passed (Pamph. L. 159) entitled “An act supplementary to an act, entitled ‘An act relative to burial-grounds and cemeteries situated in incorporated boroughs,’ approved the 19th day of May 1874, changing the title of the said act and authorizing the court to make orders and decrees required by the act, and to enforce the same by process.”
    On the 18th of April 1877, an act was passed (Pamph. L. 54), entitled “A supplement to an act entitled ‘An act supplementary to an act relative to burial-grounds and cemeteries situated in incorporated boroughs, approved the 19th day of May 1874, changing the title of said act and authorizing the court to make orders and decrees required by the act, and to enforce the same by process,’ approved the 13th day of May 1876, further empowering courts to direct removal of remains in boroughs and cities, from burial-grounds where interments have ceased and such remains interfere with religious buildings or trusts.”
    The first section of this act of 1877 will be found in full in the opinion of this court.
    On April 28th 1877, the Trustees of the First Presbyterian Church petitioned the Quarter Sessions, reciting the above Act of April 18th 1877, setting forth that their burial-ground was no longer used for interments, and praying for a decree directing them to remove the remains of the dead from so much of the burial-ground of the church as might be required for buildings for a Sabbath school and lecture-room.
    The petition further set forth that the application on the part of the trustees was made to the court in pursuance of a resolution passed at a meeting of the congregation, of which two weeks’ notice had been given from the pulpit of the church. There were 712 members in the church at the time of this meeting who were entitled to vote. For the resolution there were polled in its favor 489 votes, of which 163 were personally cast and 276 by proxy. Against it there were 14 polled, of which 4 were cast personally and 10 by proxy.
    Isaac Craig, a pow-holdor and member of the church, who had relatives buried in the churchyard, and John B. Guthrie, who had two children and other relatives buried there, appeared in court and filed exceptions, as follows :—
    1. The subject of the Act of April 18th 1877, under which the petitioners are proceeding, is not clearly expressed in the title as required by art. 3, sect. 3 of the Constitution. 2. Said act is unconstitutional. 8. “Two weeks public notice” of the church meeting for the purpose of voting upon the question of the removal of the remains of the dead, &c., as required by said act, was not given. 5. The ground to be taken for the proposed new building is not sufficiently defined, either by the petition or otherwise. 6. The case of the petitioners is not within the purview of the Act of As- * sembly. 7. The purposes to which the proposed new buildings are to be put are not of the religious purposes contemplated by the Act of Assembly. 8. There is no necessity for the proposed encroachment upon the graves of the dead. 9. The ground proposed to be taken for the purposes of said buildings should have been defined before the action of the congregational meeting. 10. The testimony shows that there are 712 members of the First Presbyterian Church of Pittsburgh; that of this number only 168 members attended the meeting held April 18th 1877, and voted in favor of the resolution authorizing the trustees to apply to the Court of Quarter Sessions for leave to remove the remains of the dead from the graveyard, the remainder of the votes in favor of such application having been cast by proxies, without any authority of law. Therefore, the requirements of the proviso to the 1st section of the Act approved April 18th 1877, that no application should be made except in pursuance of the wishes of a majority of the members of the church expressed at a church election held for that purpose, have not been complied with.
    A commissioner was appointed to take testimony, and after the coming in of the same, the court having signified their intention to grant the prayer of the petition, the counsel of petitioners submitted to the exceptants the draft of a decree specifying the ground to be taken by metes and bounds. The exceptants objected thereto, because “ the ground described in and covered by the proposed decree is of greater extent, and, in part, upon a different location than that referred to and covered by the proofs in this case.
    The court, Collier, J., overruled all the exceptions, and made a decree in accordance with the prayer of the petitioners. This action of the court was the error assigned by the exceptants, who took this writ.

      M. W. Aeheson and George W. Guthrie, for exceptants.
    The subject was not.clearly expressed in the title, and the act was unconstitutional : art. 3, sect. 3. of Constitution; State Line and Juniata Railroad Co.’s Appeal, 27 P. F. Smith 431; Allegheny County Home’s Appeal, Id. 80; Dorsey’s Appeal, 22 Id. 195. The legislation in the Act of 1877 is not germane to the subject of the Acts of 1874 and 1876. The title of the Act of 1877 was misleading. The privilege of burial in the churchyard was purchased, and there was a contract that the bodies should remain undisturbed by the church. In the absence of express authority, members of a corporation cannot vote by proxy: Phillips v. Wick-ham, 1 Paige 578 ; Taylor v. Griswold, 2 Green Ch. 226; Brown v. Commonwealth, 3 Grant 209. The “two weeks public notice” required by the act was not given. The ground proposed to be appropriated for the new buildings should have been defined before the holding of the congregational meeting, so that the meeting could act intelligently; or, if that was not necessary, it should at least have been defined in and by the petition : O’Hara v. Pennsylvania Railroad Co., 1 Casey 445. The purposes indicated in the petition “Sunday school and lecture-room,” are not the “religious purposes only” contemplated by the act.

      David W. Bell, contra.

   Mr. Justice Paxson

delivered the opinion of the court, January 6th 1879.

It was provided by the first section of the Act of 18th of April 1877, Pamph. L. 54, “ That -when by the growth of cities and the opening of incorporated cemeteries in the vicinity thereof, or from other causes, any burial-ground belonging to or in charge of any religious society or church, directly or through trustees therefor, has ceased to be used for interments, the courts of Quarter Sessions of the several counties of this Commonwealth, upon petition of the managers, officers or trustees of such society or church, setting forth that the erection, extension or improvement of buildings for religious purposes of such society or church are hampered and interfered with, and the welfare of such religious society or church is injured to the detriment thereof and of the public good, and after four weeks’ advertisement of hearing in open court for the purpose, may, after a full hearing of the parties therein, proofs and allegations, authorize and direct the removal of the remains of the dead from so much of such burial-ground as may be needed for buildings for religious purposes only, by the managers, officers or trustees of such society or church; Provided, that no such application shall be made by the managers, officers or trustees of such society or church, except in pursuance of the wishes of a majority of the members of such society or church, expressed at a church election, held for that purpose after two weeks’ public notice.” Under this act, the trustees of the First Presbyterian Church of Pittsburgh, presented their petition to the Court of Quarter Sessions of Allegheny county, setting forth, inter alia, that the burial-grounds attached to and belonging to said church had ceased to be used for the interment of the dead; that a portion of said ground was needed for the erection of a new Sabbath school building and lecture-room; that such building was intended only for the religious purposes of said church, and that the same is interfered with, to the detriment of the said church and the public good; that in accordance with the terms of said Act of Assembly, at the request of the trustees of said church, public notice was given from the pulpit in said church on the three Sabbath days preceding the 18th of April 1877, that on said day, a meeting of the congregation would • be held in the church, for the purpose of voting whether or not the trustees should be requested to petition the said court to authorize- and direct the removal of the remains of the dead from a portion of the burying-ground of the church, needed for the erection of a new Sabbath school building and lecture-room; that thereupon, after said public notice, a meeting of said congregation was held at the time and place appointed, which was duly organized, and at which the wishes of a majority of the members of said congregation were expressed in favor of such removal, and a resolution was passed, directing the trustees to petition the court for that purpose. The petition was so proceeded in, that said court subsequently made a decree granting the prayer of the petitioners, and ordering the removal of the remains of the dead from a portion of said burial-ground, specifying the same by metes and bounds. The plaintiffs in error filed a number of exceptions to the said petition and decree, which were overruled by the court below, whereupon said plaintiffs removed the record to this court by writ of certiorari. The assignments of error, which are somewhat numerous, may be reduced to four heads, viz.: 1. The Act of April 18th 1877, under which the proceedings were had, is in violation of the Constitution, for the reason that the subject of said act is not clearly expressed in the bill; 2. That the proceedings are irregular ; 3. That the case of the petitioner is not within the purview of said Act of Assembly; and 4. The legislature had not the power to authorize the removal. We will consider these objections in the order in which they are stated.

All the presumptions are in favor of the constitutionality of an Act of Assembly. It comes to us with the seal of approval of two of the co-ordinate departments of the government. To doubt is to decide in favor of its constitutionality. It is only in a clear case that we are justified in declaring an act to be unconstitutional. We have no such clear case presented by this record. ' The Act of April 18th 1877, was a supplement to the Act of 13th May 1876, which was a supplement to the Act of 19th May 1874, and is germane to the subject of the original bill. This is all that is required : State Line and Juniata Railroad Company’s Appeal, 27 P. F. Smith 431. They all relate to cemeteries and the removal of the dead therefrom.

There are several objections to the regularity of the proceedings. The Act of Assembly does not specify how notice shall be given to the church meeting to be called for the purpose of voting on the question of the reproval of the remains of the dead from the burying-ground. It merely says such meeting shall be held after two weeks’ “ public notice.” The record shows that notice was given from the pulpit of the church for the three Sabbaths immediately preceding the meeting. This is the usual manner of giving notice to the memhers of a church, as to matters pertaining to the church. It is certainly “public notice,” and in the absence of any specific direction in tlie Act of Assembly, or in the charter of the church, must be held to be sufficient. The objection that the ground proposed to be taken is .not sufficiently described is wholly untenable. It is set out in the decree by metes and bounds. It was also alleged that the application was not made in pursuance of the wishes of a majority of the members of the church, as required by the act. This raises a question of fact that has been decided adversely to the plaintiffs by the court below. The ground of this objection is that the votes by proxy were illegal. I concede that they were so. It is not a common-law right. The right of voting at an election of an incorporated company by proxy is not a general right, and the party who claims it must show a special authority for that purpose: Angell & Ames on Corporations, §§ 127, 131, 493; Taylor v. Griswold, 2 Green (N. J.) 223. But rejecting all votes by proxy there was still a majority. Of the persons present at the meeting, one hundred and sixty-three voted in favor of the resolution and four voted against it. It is said, however, that this was not a majority of all the members of the congregation. This is true. But it was a majority of all who were present in obedience to the call. Those who did not attend must be presumed to have assented. It is well settled upon authority that the minority present were bound by the action of the majority. In St. Mary’s Church Case, 7 S. & R. 517, the rule is thus laid down by Gibson, J.: “ The fundamental principle of every association for the purposes of self-government is, that no one shall be bound except with his own consent, expressed by himself or his representatives; but actual assent is immaterial — the assent of the majority being the assent of all; and this is not only constructively but actually true ; for that the will of the majority shall, in all cases, bo taken for the will of the whole, is an implied but essential stipulation in every compact of the sort; so that the individual who becomes a member assents beforehand to all measures that shall be sanctioned by a majority of the voices.” This decision is cited approvingly in Angelí & Amos, and the same principle is recognised in Presbyterian Congregation v. Johnston, 1 W. & S. 9. The rule is enforced daily in practice. It has never, to my knowledge, been doubted that at a church meeting, either regular or specially called with proper notice, the vote of the majority is binding upon the congregation. It may be asked, however, what is meant by the majority ? Does it mean the concurrence of the major part of those who happen to be present at a regular corporate meeting, or does it mean a concurrence of a majority of the whole body ? There is this distinction between a corporate act to be done by a definite number of persons, and one to be performed by an indefinite number. In the first case it is to be observed that a majority is necessary to constitute a quorum, and that no act can be done unless a majority be present; in the latter a majority of any number of those which appear may act. And where a corporation is composed of several integral parts, and each part consists of a definite number, a majority of each part must be present to constitute a quorum : St. Mary’s Church Case, supra. But when a corporation consists of several integral parts, one of which is indefinite, if any number of persons composing the latter, however small, are present after having been duly summoned, it is sufficient. The distinction is between a definite and an indefinite number. In the former case a majority must be present; whereas in the latter a majority of those present may act, whether a majority of the whole body or not: Angell & Ames on Corp. 464; Willcock on Mun. Corp. 66; The King v. Whitaker, 9 B. & C. 648. When, therefore, the legislature, by the Act of 18th of April 1877, provided for ascertaining the wishes of a majority of the members by a church election, it is fair to presume that the majority intended by the act was the majority of those who should attend and vote at such election. The act provides for taking the sense of the congregation in the usual manner, and prescribes no new rule as to what shall be binding upon them. Had it been intended to require the assent of a majority of all the members, whether present at the meeting or not, such intention might and probably would have been expressed clearly in the act.

The objection that the case of the petitioners is not within the purview of the Act of Assembly, involves the further proposition, that the purposes to which the proposed new buildings are to be put are not the religious purposes contemplated by the act. If the petitioners are wrong as to the second proposition, the first necessarily falls with it. The petition alleges that the new building is to be applied only to the religious purposes of said church. There is nothing in the record that contradicts this assertion/ The Sunday school rooms and the lecture-room of a modern church, are as essentially used for religious purposes as the body of the church building itself. The Sabbath schools are an important auxiliary of every Christian church, and indispensable to its life and growth. That the services in such schools are, in the main, of a religious character, is too well known to be seriously disputed. So of the lecture-room. It is used for the mid-week evening lectures and other services, when the attendance is not large. The expense of lighting and heating the main church building is thus avoided. But the services upon such occasions are as truly religious in their character as the sermon upon the Sabbath. Gass’s Appeal, 28 P. F. Smith 46, has no application to the point in controversy. There, a German Reformed congregation and a Lutheran congregation built a church together, in which by their articles of association, “ Divine service” only was to be held; for many years, there were no meetings in it except for public worship. It was held, under the facts of that case, that “ Sabbath schools” were not included in the term, “Divine service,” and upon a bill filed to prevent the continued and unauthorized use of the audience room for the Sunday schools, this court, overruling the court below, granted an injunction. The distinction taken in that case, between “ Divine service” and Sabbath school services was manifestly proper. Says Agnew, J., “ That prayer and praise, and indeed, oral as well as written instruction in religious matters by laymen, are used in Sunday school service is true, and in a general sense it may be said to be Divine service. * * * But in its more restricted sense it is used to signify acts of religious worship.” In view of the contract between the two churches, the term was confined to its restricted sense. In the case in hand, the Act of Assembly uses the words “ religious purposes,” a term of much wider meaning, and clearly embracing Sabbath schools and the ordinary lecture services of a church. Nor do we think it detracts from the character of the occupancy of the building, that it is proposed to use the lecture-room occasionally for social gatherings incident to the church, for societies for benevolent objects, and for fairs held by the ladies to raise funds for missionary work; nor that it is proposed to sometimes furnish a “ plain tea” to those members who attend evening service from a distance. The body needs food as well as the soul. If the church requires the building for its Sabbath schools and for a lecture-room, and such purposes are religious in their nature, as we have endeavored to show, of what possible matter can it be should the church utilize said building by applying it to other collateral objects, not in themselves technically religious, yet germane to the general purpose. And if by such means an income is derived therefrom, there is no violation of either law or morals. We think the case of the petitioners is clearly within the purview of the Act of Assembly.

The question whether there was any necessity for the proposed encroachment upon the graves of the dead, is not legitimately before us. It might or might not have been avoided by purchasing another lot for building purposes. The Act of Assembly refers this question to the congregation, and they have decided it adversely to the plaintiffs. We see nothing upon the record to justify us in revising their discretion.

The remaining question is one of power. The church having granted the privilege of interment in its grounds to certain persons, it is contended that as against the corporation such persons have a right to have the bodies remain undisturbed. In other words, that they had certain rights of property in said burial-ground which could not be taken away except for public purposes, and upon making compensation therefor; and that the said Act of April 18th 1877 was transgressive of art. 1, sect. 17, of the Constitution, which prohibits the legislature from passing any law impairing the obligation of a contract.

Neither of the plaintiffs has such a standing in court as entitles him to raise this question. The plaintiff, Isaac Craig, excepts to the proceedings in the court below as “ a pew-holder and member of the First Presbyterian Church of Pittsburgh,” and the plaintiff, John B. Guthrie, joins in said exceptions as one “ who has relatives, including two children, buried in the ground proposed to be taken by said dhurch for its new buildings.” Beyond this meagre statement there is nothing to show any contract relation between the plaintiffs and the church. The record does not show, nor does Mr. Craig allege that he has buried any dead in the grounds, or that he has any right to do so. Mr. Guthrie alleges that he has relatives buried there, but in no part of the record does he show that he has any rights of sepulture in said grounds or any contract relation with the church.

We might well stop here. As, however, this point was argued on its merits, both below and in this court, we will consider it as if properly before us.

The ground in controversy was • a gift from the Penns. It was conveyed by John Penn and John Penn, Jr., to the trustees of the Presbyterian congregation of Pittsburgh, by deed, dated September 24th 1787. The church was incorporated five days thereafter, to wit, on the 29th of September 1787. The ground conveyed to the church by the Penns was originally the western half of an old public burying-ground, used as- a place of interment for a period of thirty-five years before the Penns conveyed it to the church. The French used the ground as a place of sepulture from 1753 to 1758, whilst they held Fort Duquesne. Here they buried Beaujeux, the commander of the French and Indians at Braddoek’s defeat, July 9th 1755. Afterwards, the ground was used for the same purpose by the British and Colonial troops, stationed at Fort Pitt, and subsequently by the American troops, during the Revolutionary war. It was also used by the inhabitants from the first sectlement of the country. (Vide testimony of Isaac Craig.) In the course of time the ground became so densely populated with dead bodies that it was scarcely possible to open a new grave without disturbing the remains of some one previously interred, and in 1848 or 1849 interments there ceased altogether, and its further use as a place of burial was abandoned. It was under such circumstances that the church petitioned the court for authority to remove the remains, under the Act of 18th April 1877.

We have no accurate information as to the precise nature of the relations between the church and those privileged to bury in its grounds. It does not appear that any one of them had any right to or title in the soil, nor any right of sepulture in any particular lot or place in the yard. We have nothing^in this entire record upon this subject except the statement of Robert Dalzell. He says in his cross-examination : “ My impression is that pew-owners were entitled to burial without paying anything for the ground. There was a book which showed all orders for interments of pew-owners and others; that book has been lost. I think that all persons, except pew-owners, paid for the privilege of burying in the churchyard, unless it was the poor of the church, and as to them I am not sure.” The most that can be made of this is that the church granted a mere license or privilege to inter in its ground. To pew:holders it appears to have been granted without cost — to strangers upon a consideration. What rights does such a license confer upon the grantee ? The answer is clearly given by Mr. Justice Siiarswood in Kincaid’s Appeal, 16 P. F. Smith, at page 420, “ We hold that it was the grant of a mere license or privilege to make interments in the lots described, exclusively of others, as long as the ground should remain ‘the burying-ground of the church.’ Whenever by lawful authority it should cease to be a burying-ground, his right and property would cease. The lot-holder purchased a license — nothing more — irrevocable as long as the place continued a burying-ground, but giving no title to the soil. While the license continued, he could, perhaps, bring trespass or case for any invasion or disturbance of it, whether by the grantors or by strangers. But if, in the course of time, it should become necessary to vacate the ground as a burying-ground, all that ho could claim, either in law or equity, would be that lie should have due notice, and the opportunity afforded him of removing the bodies and monuments to some other place of his own selection, or that on his failing to do so such removal should be made by others. Ho accepted this grant or license subject to this necessary condition.” Justice Sharsavood cites a number of authorities Avhich fully sustain his position, and also discusses at some length the rights of pcAA'-owners in churches, AA'hich bear a close analogy to the case of rights of supulture. The principle deducible from the numerous authorities cited is that “ the grant of a pew in a church edifice in perpetuity does not give to the pew-owner an absolute right of property as in a grant of land in fee. He has a limited usufructuary right only. lie must be presumed, from the very nature of the subject-matter, to have taken the grant under all the conditions and limitations incident to such property.” The same doctrine Avas held by this court in Church v. Wells’s Ex’rs, 12 Harris 249; says Loavrie, J.: “A pew right is not of such a character as to prevent an absolute sale of the church edifice either by contract or judicial process ; by itself it was never known as a subject of taxation ; if the edifice burns down the pew right is gone; it does not prevent the society from tearing down and rebuilding the edifice, or from altering the whole interior arrangement of it; it does not authorize the peA\--holder to change and decorate the peAV according to his fancy, or to cut it doAvn and carry it away; and it gives him no right to the ground oh which it stands. It is, therefore, a right that is entirely peculiar.”

The right of the legislature to authorize the removal of the remains of the dead from cemeteries is well settled. So it may delegate such power to municipalities. It is a police power necessary to the public health and comfort: Kincaid’s Appeal, supra. The founders of our cities had perhaps but a faint idea of their future growth. Nor did they, probably at that early day, realize the sanitary evils attendant upon the interment of dead bodies in crowded cities. I notice in a recent paper a statement from an eminent surgeon of the city of Philadelphia, that a dead body requires a period of from fifty to one hundred and fifty years for its entire decomposition. During all that time the air and the sources of water supply are, to a greater or less extent, affected by the noxious gases connected with such decomposition.

The graves of the dead may not be disturbed from mere wantonness. To do so is a misdemeanor and indictable both at common law and under the statute as an offence “highly indecent and contra bonos mores.” Conceding, however, the right of the legislature to authorize such removal by virtue of its police power, the exercise of such power is not to be interfered with or denied because accompanied with some incidental benefit to the society or church in whose interest such power is invoked. It was competent for the legislature to have passed an act merely authorizing the removal of the remains from this burial-ground. That the ground thus to be vacated is to be utilized by the church by the erection of a building for Sunday school purposes and a lecture-room, neither vitiates the act nor inflicts a wrong upon any human being, living or dead.

Speaking for myself I have no doubt of the power of the trustees, under the deed from the Penns, and the charter of the church, to remove the remains with the consent of the congregation. I regard the application to the court, under the Act of 1877, as wholly unnecessary. Be that as it may the power of the legislature to authorize such removal is beyond doubt.

I have considered the law of this case, not its sentiment. Mere sentiment, not based upon rights of persons or property, is not of value in a judicial proceeding.

We have been unable to find any serious error in this record. The proceedings therefore are affirmed.

Chief Justice Agnew

filed the following dissenting opinion.

I cannot assent to the decision in this case. In my judgment, it offends against natural feeling and constitutional law. I grant the right of the state, in the exercise of her police power to regulate graveyards for the public good, and to remove decaying remains for the preservation of the health of the citizens. I grant her right of removal by way of eminent domain, when a great public interest requires it, but on compensation to those who have acquired a right of sepulture by contract. Yet even in this respect, the state has shown her sense of propriety and right in the General Railroad Law of 1849, sect. 10, by excepting burial-places from the powers of a company to appropriate lands. But I deny the right of removal for individual or private interest, whether it be for building a lecture-room for a church congregation or a Sabbath school room. Its purpose is to save money by taking ground appropriated for the dead. A religious congregation is a private body, and its interests are individual, not public. Thus to coin money out of the bones of the dead, is to violate a purchaser’s right of sepulture, contrary to the instincts of the race and the keenest sensibilities of the heart.

Among all tribes and nations, savage and civilized, the resting places of the dead are regarded as sacred. There memory loves to linger and plant the choicest flowers ; there the sorrowing heart renews the past, rekindles into life the viewless forms of the dead, revives the scenes where once they moved, and recalls the happy hours of love and friendship. There parent and child, husband and wife, relatives and friends, with broken spirits and crushed hopes, revisit often the spot where they deposited their dead. Who does not feel the fountains of his heart broken up and the warm gushings of emotion, when standing over the green sod which covers the departed. Wherever the simple stone is placed, or the marble monument is roared, spontaneous thought inscribes upon it “ sacred to the memory.”

This sacredness is evidenced by one of the most touching incidents of Scripture. When Abraham standing by the dead body of Sarah, addressed the sons of Ileth, saying, I am a stranger and sojourner with you, give me a possession of a burying place with you, that I may bury my dead out of my sightThey offered him a choice of their sepulchres; but Abraham, intent upon a possession of his own, where the remains of her he had loved might repose in security, purchased the field of Macpelah of Ephron, the llittite, for four hundred shekels of silver. Even more touching is the reference to Jacob, who, dying in Egypt, surrounded by his children, “ charged them and said unto them ‘ I am to be gathered unto my people, bury me with my fathers in the cave that is in the field of Macpelah.’ There they buried Abraham and Sarah, his wife, there they buried Isaac and Rebecca, his wife, and there I buried Leah.” Tradition has preserved to this day, the identity of the cave and the tombs of those ancient worthies, undisturbed even by the Moslem, whose mosque covers and protects their resting places.

The man who violates the homes of the dead, who erases the tablets by which affection records their lowly dwelling, is lost to natural feeling and does an act which harrows the heart and excites mankind to rage. The law seizes hold of him for condign punishment: Act 31 March 1860, sect. 47. At common law it was a misdemeanor and indictable as an offence, “ highly indecent and contra bonos mores:” King v. Lynn, 2 Term R. 733; Commonwealth v. Cooley, 10 Pick. 37. The law enacts no new standard, but follows only the natural impulses of the race. Even now this common instinct is swelling in united chorus from the Atlantic to the Pacific, in the voice of the press, over the robbery of the grave of Stewart. But a few short months ago, it thundered over the desecrated tomb of Harrison. And are we now to say that the desecration of scores of graves to save money to a congregation is according to law ?

In my judgment it is equally against the constitutional inviolability of contracts. Can a private association, corporate or unincorporate, sell a right of sepulture to-day, and to-morrow or next year retake the ground for a lecture or a school room ? It is immaterial whether a grant of sepulture confers an estate or a privilege ; it is a purchased right founded in contract, which no law can violate, except for a public necessity. They who advocate this violation of nature and of the sanctity of contracts, by calling it a mere privilege, assert its application to green graves as well as moss-covered tablets. This is the necessary and logical result of their argument, for power stops not even when the mourners are bending over the freshly-filled earth. The power to do it to-day, is the same power which must do it to-morrow or years hence. Let it be a privilege, and this is the entire scope of the argument founded on Kincaid’s Case, 16 P. F. Smith 412, yet it is a right also paid for by the legal representatives of the deceased. What law can take it away for a private purpose ?

It has no analogy to the privilege of a pew and cannot fall with the building. Its occupancy is permanent, not like that of a pew, periodical and temporary. If the building fall, is burned, destroyed or rebuilt, the pew right fails with it. But the purchased grave has no such necessary and intrinsic weakness of title. There the body is laid away, according to the rites of Christian burial, and in the acts of Christian faith, to await the resurrection morn, when its dust, reanimated by the Creator's call, shall rise to meet the Lord. Then why should a Christian congregation violate instinct and law, on the ground of privilege ? Poverty is the plea, but such a plea would better defend a larceny of bread to feed famished children. But can poverty sanctify this disturbance of the bones of the dead ? The principles stated in Kincaid’s Case go the length of my conclusions. The opinion there states that owing to its neglected condition, the graveyard was rapidly becoming a “nuisance” to the neighborhood. It is also admitted that if a congregation, from mere motives of convenience or ornament, resolve to pull down the old and erect a new church edifice, in such case the pew-holder is entitled to compensation. In Kincaid’s Case, the law provided that the proceeds of the sale should first pay the expenses of removal, including the cost of new lots, and in the second should compensate lot-holders before any division of the funds. In this case, there is no provision for compensation. It is said also in the opinion: “ But when it is an act of necessity required by the condition of the building or other imperative exigency, lie (the pew-holder) has no claim whatever to compensation.” For this many cases are cited. But what necessity or exigency exists in this case ? None whatever. The purpose is to raise money to. build a lecture and Sunday school room, a more improvement which the congregation ought to pay for itself. It has no analogy whatever to the case of a pew holder whose privilege fails by the destruction of the building of which it is a part. This is a contract privilege not dependent on a building. If I buy the privilege of running water, or a right of way, or a right to open my windows over my neighbor’s yard, what law justifies its violation ? It is a right secured by contract, which the constitution protects, here a right made sacred by those instincts of nature, which precede constitutions, and imprint upon them the highest obligations of mankind to each other.

I would reverse this decree and dismiss the petition.