author: Mr. Justice Trunkey

text:
    Hess versus Gourley.
    J. In the sense of the Act of April 15th 1869 the assignor of the thing or contract is he whose right therein, or thereunder, at or before the time of his decease, passed by his own act or by law to a party in the action.
    2. B. died intestate; G., one of his four heirs, brought ejectment against H., who claimed as the devisee of B.’s wife. At the trial, H. offered to prove that the property in dispute had been purchased with the money of the wife of B., and that the latter had so admitted. Held, that the evidence was properly rejected.
    3. An ejectment was brought by one of four heirs and the judgment was entered for the whole property. No point was made nor exception taken to this action. Held, that the entering of judgment was not error, as there may have been ample grounds, by admission or otherwise, for the verdict.
    February 19th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Woodward, Trunkey and Sterrett, JJ.

      Error to the Court of Common Pleas, No. 3, of Philadelphia county: Of January Term 1878, No. 263.
    'Ejectment by John Gourley and Annie, his wife, in right of said wife, against Peter Hess and Maria Hess, his wife, and Catharine Earron.
    At the trial, before Einletter, J., it appeared that in 1836, Ann Harlan, who was a widow, kept a boarding-house and had among her boarders a shoemaker, named Alexander Barber. The relations between these parties were of a friendly character, and in her business transactions Mrs. Harlan, who owned considerable real estate and was illiterate, trusted largely to the guidance of Barber. In
    1848, the property in dispute was purchased by Barber for $4000, of which $500 were in cash and the balance in a mortgage. In
    1849, Mrs. Harlan removed to this property, Barber still boarding with her, and in 1850 they were married. About a year after their marriage, in 1851] $500 was paid on the mortgage. Barber died intestate in 1857. Mrs. Barber died in 1870, having by will, dated March 4th 1869, devised the premises in question to Maria Hess. In 1874, Annie Gourley, as one of the four heirs of Alexander Barber, brought this suit. The defendants contended that the property was bought with the money of the widow, Harlan, and for her benefit; that it was her money was paid on account of the mortgage ; that Barber never had that amount of money of his own; that his’ business, that of shoemaking, never yielded him a living for himself; and that he had no other source from which to derive the money.
    Maria Hess, one of defendants, was offered to prove “ a payment by Mrs. Bar'ber, the aunt of the witness, through her husband, Alexander Barber, after their marriage, upon the property in dispute; that Alexander Barber was a person of extremely limited means and business (to show his pecuniary inability to make the payment referred to); and that he uniformly, during his lifetime, declared, both in the presence of his wife and out of it, that the property belonged to her; and that the witness saw the $500 payment referred to, made by Mrs. Barber to her husband for the purpose.”
    Also Peter Hess, the other defendant; “ to prove the payment of , $500 by Mrs. Harlan to Alexander Barber, prior to their marriage, upon the property in question ; also Mr. Barber’s declaration as to his wife’s ownership of- the property; also Mr. Barber’s pecuniary inability to purchase the same himself, and Mrs. Barber’s ability to do so.”
    The court rejected both of these offers on the ground of the incompetency of the witnesses.
    The verdict was for plaintiffs, and after judgment defendants took this writ and assigned for error the rejection of the above offers of •testimony; and in entering judgment in favor of tbe plaintiff below for the whole of the premises in dispute, the plaintiff’s own testimony on the subject of the descent cast, showing that the plaintiff, Annie Gourley, is one of four heirs of Alexander Barber, and consequently entitled to one-fourth only, and not the whole of said premises, if she is entitled to any part thereof.

      M. Arnold and O. P. Oormncm, for plaintiffs in error.
    The suit is between parties living at the. time the cause of action accrued. They stand upon the same plane. Both were in existence when the transaction occurred which gave rise to the controversy. Neither the plaintiffs nor defendants were parties to the deed or transaction which is in review here, and neither partv has any advantage arising from the death of the other.
    There seems to be no reason for construing the proviso of the Act of 1869, so as to include this* case and except it from the benefits conferred by that act. The competency of Peter Hess was affirmed in Craig v. Brendél, 19 P. F. Smith 163. Taylor v. Kelly, 30 P. F. Smith 95, was an action against an executor.
    It was error to enter judgment for the whole of the premises. In Stephenson v. Richardson, 7 Norris 40, the judgment was for one-ninth of the premises in suit, when -the evidence showed it should have been for one-eleventh only. This court modified the judgment, and entered final judgment for one-eleventh in accordance with the evidence.

      Henry M. Dechert, for defendants in error.
    The decision in Karns v. Tanner, 16 P. F. Smith 297, covers this case. In Craig v. Brendel, supra, there was no claim between the parties by devolution on the death of the owner as in this case. The competency imparted by the enacting clause of the Act of 1869, is taken away by the proviso: Taylor v. Kelly, supra ; Diehl v. Emig, 15 Id. 320; Karns v. Tanner, supra ; Pattison v. Armstrong et al., 24 P. F. Smith 476. If Maria Hess was incompetent as a witness her hus; band was.
    If the judgment was erroneous it should have been modified in the court below. The possession, however, of one tenant will be considered the possession of his co-tenants: Galbraith v. Galbraith, 5 Watts 149.
   Mr. Justice Trunkey

delivered the opinion of the court, March 3d 1879.

The Act of April 15th 1869, Pamph. L. 30, establishes a general rule that “ no interest nor policy of law shall exclude a party or person from being a witness in any civil proceeding.” This abrogates the common-law rules respecting the competency of parties and interested persons, and persons on grounds of public policy; and is so comprehensive that no relation is so sacred nor interest so strong as to exempt- any person, who .is not taken -out by the proviso, from testifying in a civil proceeding which is not withdrawn from its operation. The first section declares’ that “ this act shall not apply to actions by or against executors, administrators, or guardians, nor where the assignee of the thing or contract in action may be dead, excepting in issues and injuries devisavit vel non, and others respecting the right of such-deceased owner between parties claiming such right by devolution on the death of such owner.” It would seem difficult to misapprehend the intendment of this provision. It withdraws the specified actions from' the operation of the rule. To these actions — not special persons — the act shall not apply. Therefore such actions remain within the rules of the common law, and in the triahthereof husband and wife cannot testify for each other, nor are parties and interested persons competent witnesses.

Legislation, since the Act of 1869, -supplying its defects, has been in continuous recognition of the plain meaning of its words. There was no good reason for excluding from the operation of the statutory rule testimony of matters occurring after the death of the assignor of the thing or contract in action, and hence the passage of the Act of 9th April 1870, Pamph. L. 44,.extending the rule to these actions as to matters occurring since the death. For obvious reasons the Act of 8th June 1874, Pamph. L. 279, excluded from the rule “ actions by or against committees of lunatics, except as to matters occurring after the appointment of said committee.” The Act of May 25th 1878, Pamph. L. 153, permits surviving partners to testify to matters having occurred between the surviving partners and adverse party on the record. Throughout the statutes is the spirit of equality, which forbids the application of the statutory rule in actions where one of the parties represents the rights of a decedent or a lunatic, except as to matters since the death or lunacy, and matters between a surviving partner and his adversary.

In determining the competency of a witness to prove a matter which occurred during the life of a decedent, the inquiry is whether the action is within the statute. This is not difficult when the suit is by or against an executor, administrator or guardian in his representative capacity. Nor is it in other cases, if the spirit of the statute be kept in view and the persons intended by the word assignor be learned from the context rather than its technical definition. Soon after its enactment a clear exposition of several parts of the statute was given by A&new, J., in Karns v. Tanner, 16 P. F. Smith 297. He says, “ Evidently it was the true purpose of the statute to close the mouth of him who is adversary to the deceased assignor.” Again, “ The true spirit of the proviso then seems to be that when a party to a thing or contract in action is dead, and his rights have passed, either -by his own act or by that of the law, to another who represents his interest in the subject of controversy, the surviving party to that subject shall not testify to matters occurring in the lifetime of the adverse party whose lips are now closed.” See Pattison v. Armstrong, 24 P. F. Smith 476 ; Gardner v. McLallen, 29 Id. 398. In the statutory sense, the assignor of the thing or contract is he whose rights therein or thereunder, at or before the time of his decease, passed by his own act, or by law, to a party in the action.

The defendant, Maria Hess, claims title under the will of Ann Barber. Alexander Barber died- intestate, and the plaintiff, one of his four nephews and nieces, avers that he was owner of the land in controversy, which passed to them by operation of law. The assignor of the thing in action is dead, his right has passed .to the plaintiff, and the statutory rule of evidence does not apply, except to matters which have occurred since his decease. It follows that the learned judge was right in rejecting the depositions of Maria Hess and her husband, Peter Hess: Diehl v. Emig, 15 P. F. Smith 320; Taylor v. Kelly, 30 Id. 95. In the latter, Mercur, J., said, “We see nothing in the letter, nor in the spirit of the act, so far as it applies to husband and wife, to make one competent when the other was incompetent.” An executor was a party, and the opinion and judgment are based upon the reason that the Act of 1869 does not apply to actions against executors. That the full force of the reason was considered is evident from the reference to Dellinger’s Appeal, 21 P. F. Smith 425. Inasmuch as Craig v. Brendle, 19 P. F. Smith 153, was not alluded to, it is suggested that, upon its authority, Peter Hess was a competent witness for his wife, and it seems to support the position; but, if such be its bearing, it is at variance with the doctrine in Taylor v. Kelly. That doctrine rests upon the very letter and spirit of the proviso which took out all actions therein described, instead of particular persons, from the operation of the Act of 1869. By supplements the act has been somewhat extended. The statutes should be liberally construed in favor of competency, but not so as to embrace actions or persons expressly excepted. The power which, in 1878, made surviving partners competent in certain cases, can make husband and wife competent, to any extent deemed expedient, as to matters which took place before the death of the assignor of the thing or .contract in suit.

The third assignment is not sustained. While it is true that the plaintiff, as one of four heirs, was entitled to one-fourth of the premises, there may have been ample grounds, by admission or otherwise, for the verdict. No point was made or exception taken in reference to this matter. The record does not show error. Stephenson v. Richardson, 7 Norris 40, cited by counsel, was a case stated, the facts were agreed upon and submitted for judgment; very different from a general verdict. . . .'

Judgment affirmed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Salter versus Griffith.
    By the 1st section of the Act of March 11th 1836 it is provided that where an action is brought in any court, upon a record remaining in said court, it is not necessary to file a copy of said record to entitle plaintiff to a judgment for want of an affidavit of defence. Held, that a recognisance for stay of execution is a record within the meaning of said section, and it is not necessary to file a copy thereof to entitle a plaintiff to judgment.
    February 19th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Woodward, Trunkey and Sterrett, JJ.
    Error to the Court of Common Pleas, No. 2, of Philadelphia county: Of January Term 1877, No. 195.
    R. M. Griffith had a judgment against' Daniel S. Mann to stay the execution, of which William F. Salter became security. The debt not being paid, a scire facias was issued against Salter on his recognisance, when he filed a suggestion “ that the plaintiff is not entitled to a judgment in default of an affidavit of defence in above case, not having filed a copy of the instrument sued upon.”
    The court, however, entered judgment for want of an affidavit of defence, which was assigned for error by Salter.

      Arthur G. Selden and George S. Selden, for plaintiff in error.—
    The Act of March 28th 1835 requires that the copy of the record sued on should be filed. The Act of 11th March 1836 declared, that when the record was in the court where the action was brought, it was not necessary to file a copy thereof.
    The Act of 12th March 1842, § 2, Brightly 497, enacts in sect. 2 : The second section of the act to which this act is a supplement is hereby declared to embrace all actions brought in said court on bonds or recognisances of bail in error, or bonds of sureties for stay of execution, and is hereby extended to all actions,” &c.
    Does this supplement of 1842, which is specially a supplement to the second section of the Act of 1835, which requires a copy to be filed, dispense with the filing of a copy ? The intermediate Act of 11th March 1836, dispenses only with the necessity of filing copies of a record, that is necessarily, of the records then spoken of in the Act of 1835, which did not confessedly apply to scire facias sur recognisances of bail for stay of execution, which at most are only a part of a record, upon which the action is brought.
    A recognisance is but a short instrument, and therefore not within the reason and intent of the Act of 11th March 1836, for neither, it nor its predecessor, the Act of 1835, embraced recognisance of bail for stay of execution. Court of Common Pleas, No. 4, in Philadelphia, have decided this very point in Allen v. Gatley, 2 W. N. C. 98, declaring that it is necessary to file a copy of the recognisance to entitle a plaintiff to a judgment in default of an affidavit of defence. .

      It. Alexander, for defendant in error.
    Bonds of sureties for stay of execution are expressly declared by the second section of the Act of March 12th 1842, to be within the Affidavit of Defence Law: Purd. Dig. 497. The writs of scire facias recited the bonds at large. Bonds so taken and noted are records within the meaning of the Act of March 11th 1836. A mechanic’s claim has been decided not to be a record, and -yet it has always been considered a record within the meaning of the act, and a copy of the claim is never filed: Tr. & H. Pract., vol. 1, part 1, p. 381; Cline v. Wallace, 1 W. N. C. 293; Furst -v. McCormick, 2 Id. 722. The scire facias is a writ and a declaration, and as such serves every practical purpose of a copy: McKinney v. Mehaffy, 7 W. & S. 276.
   The judgment of the Supreme Court was entered, March 17th 1879,

Per Curiam.

The first section of the Act of March 11th 1836, Pamph. L. 76, is sufficiently broad to include all actions thereafter to be brought upon any record remaining therein, so as to dispense with filing a copy thereof; and although at that time the Act of 1835 was thought by some not to extend to recognisances for stay of execution, yet the Act of 12th March 1842, Pamph. L. 66, was a supplement to the Act of 1835, and was in terms a declarative statute. “ The second section of the act to which this act is a supplement is hereby declared to embrace all actions on bonds or recognisances of bail in error, or bonds for stay of execution.” The District Court of Philadelphia, in 1840, had decided in Baker v. Olwyne, 2 Miles 404, that a recognisance of bail in error was an instrument of writing for the payment of money under the Act of 1835. Of course a fortiori recognisances for stay of execution were within the act. The Act of 1842 was passed to relieve a doubt resting on the mind of the then excellent president of that court, which, however, was entertained by neither of his colleagues.

Judgment affirmed.


author: Mr. Justice Mercur

text:
    Black’s Appeal.
    Where there is a conveyance to one partner by a deed absolute on its face and it is attempted to be shown by parol that it was in fact a conveyance to him for the use of himself and co-partner as tenants in -common, it is competent to rebut this evidence by showing by parol evidence that it was owned by them as partnership property.
    February 19th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Woodward, Trunkey and Sterrett, JJ.'
    Error to the Court of Common Pleas, No. 3, of Philadelphia county: Of January Term 1877, No. 189. In Equity.

      ’ Bill in equity, filed by William K. Black, assignee in trust of the estate of Oliver Benner, against Anthony H. Seipt, assignee in trust of the estate of Christian Freyer, to compel a reconveyance to the plaintiff of certain premises, the legal title to which was in the name of the defendant.
    The bill alleges that on the BOth day of August 1872, the said Oliver Benner made an assignment to the plaintiff of all his property for the benefit of his creditors, and that the said Christian Freyer, on the 17th day of October 1872, made a like assignment to the defendant of all his property for the benefit of his creditors ; that prior to the said assignment to the plaintiff, the said Oliver Benner was the owner in fee of a'large piece of ground, situate on Sepviva street, in the city of Philadelphia, and for the purpose of having the same divided into building lots, and mortgages created thereon in his own favor, he vested the title thereto temporarily in one Harman Yerkes; that the said Harman Yerkes thereupon made and executed to the said Benner eighteen indentures of mortgages, each upon a separate portion of the said premises; and immediately thereafter, by direction of the said Benner, conveyed the legal title to Christian Freyer, by whose assignment for the benefit of his creditors the legal title vested in the defendant; that these conveyances were without consideration, and for the purpose of enabling Benner to raise money on the mortgages, for the .improvement of the property, and this purpose having failed, the bonds and mortgages were subsequently, by agreement of all the parties, surrendered and cancelled. Under these circumstances, the bill claimed that the plaintiff was entitled, as assignee of Benner, to a conveyance of the premises.
    The answer admits that the legal title to the premises in question passed from Benner to Freyer by the conveyances mentioned in the bill, and that the same were without any consideration. It avers, however, that Freyer and Benner had been copartners in business, and the premises were the property of the firm ; that the defendant held the title thereto, under the assignment from Freyer, in trust to dispose of the same for the benefit of the creditors of the firm, and that his right to do so had always been acquiesced in by the plaintiff; that the plaintiff, in the inventory of the estate of Oliver Benner, filed by him as assignee, described the premises as the “ property of Oliver Benner, Christian Freyer and Jacob S. Frederick, partners,” and in a suit in equity, wherein the present plaintiff and defendant were co-plaintiffs, the said premises were described as the property of the firm ; that the plaintiff Black was the holder of a judgment against Benner, which was a lien on the said premises, and the defendant being about to advance his own money to complete the unfinished buildings thereon, procured from Black an agreement, in writing, that he would not claim any lien on or right of payment out of the said premises on account of the said judgment, until the money advanced by the defendant had been first repaid to him, and that the said Black would, from time to time, execute releases of the lien of said judgment to the purchasers of the premises: provided, however, that .such releases should.not impair the right of the said Black to claim against the fund arising from the sale of the premises as real .estate, after repayment to the defendant of the money advanced by him for the completion of the buildings; that the buildings were completed with the moneys advanced by the defendant, and were afterwards sold by him at public sale, without any objection thereto on the part of the plaintiff; that some of the purchasers at said sale required that the plaintiff should join in the .deeds of conveyance with the defendant, but the plaintiff refused to execute any such deeds, unless the defendant would consent that the proceeds of the sale should be applied to the satisfaction of the said judgment of Black v. Benner, and of another judgment of Whitall v. Benner. In conclusion, the answer averred that the object of the plaintiff in seeking a reconveyance of the premises was not to protect the creditors of the said Benner, but to secure a special advantage and preference to himself and to the said Whitall in the distribution of the trust estate.
    Before the master, to whom the case was referred, the plaintiff did not claim that he was entitled to a conveyance of the entire premises. It was contended, on his behalf, that the consideration having consisted in the exchange of certain properties held by Benner and Freyer in severalty and in common respectively, Benner took the title in trust for himself and Freyer, as tenants in common, and upon the conveyance to the latter, he held upon the like trust for himself and Benner. The master so found, and reported that the plaintiff was entitled to a conveyance of an undivided moiety of the premises.
    Exceptions were filed to this report, which the court sustained and dismissed the bill. From this decree Black took this appeal.

      John Roberts and George W. Thorn, for appellant.
    The property having been bought with the money of both Benner and Freyer, and the deed taken in the name of one, there was a resulting trust in favor of the other to the amount he contributed to the purchase. The property was entered in the firm books in the name of two of the partners, and yet there were three members of the firm. It was manifestly held only for two of the partners and did not constitute a portion of the partnership fund.

      George M. Dallas, for appellee.
   Mr. Justice Mercur

delivered the opinion of the court, May 7th 1879.

This was a bill to compel the reconveyance of certain real estate. It was filed by the assignee in trust of the estate of Oliver Benner against the assignee in trust of the estate of Christian Ereyer. The legal title to the premises was in the name of the appellee. The bill prayed for a conveyance of the whole land; but on the hearing before the master the claim was narrowed to an undivided moiety thereof. The master sustained the claim and reported accordingly. On exceptions filed to the report, they were sustained and the bill dismissed. This is the alleged error.

The ability of the appellant to sustain his assignment of error depends on his establishing that Ereyer held the legal title to the premises in question in trust for himself and Benner, as tenants in common. In 1868 Benner and Freyer entered into partnership in the business of manufacturing and selling bricks. It continued until the last of August 1872, when Benner made an assignment, for the benefit of his creditors, to the appellant. In October following, Ereyer made an assignment for a similar purpose to the appellee. Benner acquired title to the lands in question in June 1871. The consideration of the conveyance to him was the transfer of four sepai-ate properties. The title to two of these properties was in “ Oliver Benner and Christian Ereyerof the other two one was in Benner and the other in Freyer. In June 1872, Benner, without consideration, conveyed the title thus acquired to one Y erkes, and the latter, on the same day, and without consideration, at the request of Benner, conveyed the same to Freyer, who retained it down to his assignment. No trust -was declared in any of the three deeds. It is neither averred nor proved that the conveyance of this land was made under any agreement that either Benner or Freyer should hold it in trust as to a moiety as tenant in common for the other. The conclusion is sought to be deduced from the other facts and circumstances shown.

It is claimed to follow primarily, from the fact that the title to the lands, transferred as the consideration for the conveyance to Benner, stood in their individual names; that the master has found the lands in question were not purchased and were not necessary for the benefit of the partnership; and that no consideration was paid by Ereyer on the conveyance to him.

Several books of the firm of Benner & Fryer, by the respective entries therein, clearly indicate that they recognised real estate as stock, and from which they received rent. While those entries do not specifically identify any of the premises to which we have referred, yet in the absence of evidence that they referred to others, we think the inference a fair one that these lands were held and treated by them as partnership property. The fact that for the purpose of placing mortgages on the lands, without creating personal liability, they were conveyed to a third person in their transmission from Benner to Freyer, in no wise tends to establish a joint tenancy in them.

Certain it is that after the assignment to the appellant he recognised this as partnership property. In the inventory which he filed he designated it as belonging to the firm of Benner & Freyer. After-wards in a bill filed jointly by the appellant and the appellee, this identical land was averred to be partnership property.

It is unnecessary to refer to many of the authorities cited on the argument. The facts in this case do not admit of their application. This is not the case of a conveyance to Benner & Freyer as tenants in common, and an attempt to show by parol that it is partnership property. It is the case of a conveyance to one by a deed absolute on its face, and an attempt to show by parol that' it was in fact a conveyance to him for the use of himself and his co-partner as tenants in common. Parol evidence is most assuredly competent to rebut that evidence by showing it was owned by them as partnership property. The learned, judge committed no error in dismissing the bill.

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

Sharswood, C. J., and Gordon and Trunkey, JJ., dissented.


author: Mr. Justice Paxson

text:
    Esling’s Appeal. In re confirmation of Plan No. 272.
    1. A certiorari brings up for review nothing but the record, and the Supreme Court is confined strictly to questions affecting its regularity.- • 2. If the title of an ordinance fairly gives notice of its subject-matter it is sufficient. Blood v. Marcelliott, 3 P. F. Smith 391, followed.
    February 20th 1879.
    Before Sharswood, C. J., Merour, Gordon, Paxson, Woodward, Trunkey and Sterrett, JJ.
    Certiorari to the Court of Quarter Sessions of Philadelphia county: Of July Term 1876, No. 84.
    Appeal of Mary A. Esling and Amanda F. Hollahan from the confirmation by the board of surveyors of plan No. 272, of lines and grades between Ritner, Geary and Twenty-fifth streets and the Schuylkill river, Twenty-sixth ward.
    The city council, June 29th 1874, passed the following joint resolution:—
    “ Resolution directing lines and grades over a portion of the Twenty-sixth ward.
    “ Resolved, by Select and Common Councils of the city of Philadelphia, that the department of surveys be and is hereby authorized and directed to prepare plans in duplicate of the lines and grades of so much of the Twenty-sixth ward as is embraced between Twenty-fifth street and the river Schuylkill, Ritner and Geary streets.”
    Under this resolution plan No. 272 was made by the board of surveyors and confirmed by them September 7th 1874. An appeal to the Court of Quarter Sessions was taken by the appellants December 5th 1874, under the Act of June 6th 1871, which appeal averred that petitioners are freeholders within the boundaries of said plan and along the line of the new street laid down in the same, and along the line of Passyunk road as vacated in the same, who being duly sworn according to law, depose and say:
    That they appeal from the confirmation by the board of surveyors of the city of Philadelphia, of plan No. 272. Because:
    ■ 1. The joint resolution of councils under which said plan is made gives no authority to lay out a new street.
    ■ 2. Said resolution only authorizes a plan to be made of lines and grades.
    3. Said resolution gives no authority to straighten and widen streets.
    4. Said resolution gives no authority to vacate a street.
    5. Said plan makes two Passyunk avenues from Thirtieth street to river Schuylkill without authority.
    6. The new street is unnecessary.
    7. The new street entails considerable loss and expense upon appellants without authority of law.-
    8. The new street entails serious loss and expense upon appellants, and renders useless a portion of their property, without corresponding advantage to the public or to them.
    9. The appellants are instructed that they were not allowed a proper opportunity to present their objections to said plan before the board of surveyors according to law.
    10. The said joint resolution is not a sufficient authority for the changes made by said plan.
    11. The said joint resolution is defective under the Act of Assembly of May 23d 1874, sect. 3, and is, therefore, void.
    12. The said new plan is unauthorized by law.
    This appeal was dismissed June 2d 1876. A certiorari was sued out, and the record removed to the Supreme Court, wherein, on February 4th 1878, the following opinion was filed:
    Per Curiam. — “ As this record stands, we have nothing before us which we can hear and determine. The plan exhibited we have no doubt is a proper exhibit, but it is not attached tó, or certified with, the record. It exhibited a change in the Passyunk road or avenue, one of the oldest thoroughfares in the city of Philadelphia, whereby a new route is laid down, of the width of one hundred and twenty feet, and a part of the old route vacated, very materially affecting the interests of the appellants to the Quarter Ses1 sions. It is not our province to review the action of the board of surveyors, or of the Court of Quarter Sessions, excepting so far as' their action involves a question of power appearing in the case. Now, it is alleged that the board acted upon an ordinance of the city, containing no authority to lay out new streets and vacate old ones, but merely a power to regulate the lines and the grades of streets, already surveyed on the general plan and to report their work in a plan. The plan reported, it is alleged, exhibits an-unauthorized action of the board, in vacating an old, and locating a new street, and hence the appeal. On the other hand, it is said, the form of the ordinance is the same as that always used, and implies an authority to alter, not only lines, but routes. As the rights of the appellants depend on this question of authority, we are disposed to hear an argument upon the character, use and effect of the ordinance or resolution, as it is termed, of June 29th 1874.
    “ To this end, leave is given to withdraw the recordnn file, for the purpose of amendment, and a new return to the writ of certiorari, as if upon a certiorari sur diminution of the record. • The appellant can then move the court below, to enter in full- nunc pro tunc the decree involved in the entry of appeal dismissed June 29th 1876, and forthwith to certify to us a copy of the resolution of June 29th 1874, and the map, or a true copy thereof, brought into the Court of Quarter Sessions, by the appeal of the plaintiffs in error. Ordered, February 4th 1878.”
    The record was remitted for correction in accordance with this opinion, and leave granted by the court below to file a certified copy of plan 272, and of the resolution of councils of June 29th 1874, which was done, and a decree entered nunc pro tunc, dismissing the appeal and confirming the said plan. The record thus corrected was returned to the Supreme Court, the error assigned being the dismissal of the foregoing exceptions to the plan.

      JEdw. B. MeLougMin and Benjamin Harris Brewster, for appellants.
    The errors we assign are to the extent of the authority conferred by the resolution of councils, and to the validity of the resolution itself. The powers of the board of surveyors are conferred by the Acts of April 21st 1855, Purd. Dig. 1288, and June 6th 1871, Pamph. L. 1353. Under the authority thus conferred they must act in accordance with the directions of councils. The' resolution in question only directed plans tobe prepared of the lines: and grades. It did not authorize a new street to be made, and an old one to be vacated. The board’s action was clearly ultra' vires: Paynter v. Young, 4 Phila. R. 154; Ferree v. Board of Surveyors, 9 Id. 518; Duhring’s Appeal, 30 Leg. Int. 153.
    The Act of May 23d 1874, Pamph. L. 231, provides that, “No ordinance shall be passed through councils except by bill,” * * *■ “ and that, no bill shall be passed containing more than one subject, which shall be clearly expressed in its title.”
    Either the resolution does not confer such broad powers as are here claimed, or, if it does, the title does not clearly express the subject nor express it at all, and therefore it is void ünder the above act.

      J. Howard Grendell, Assistant City Solicitor, and W. Nelson West, City Solicitor, for the City of Philadelphia.
    Whether the resolution authorizes the laying out of streets or merely directs plan to be made of the existing streets does not appear by the record, and we contend that this court will not, therefore, review the question on this writ of certiorari. It is only necessary that the title should fairly give notice of the subject of the act, so as reasonably to lead to inquiry into its body: Blood v. Mercelliott, 3 P. E. Smith 391; Church St., 4 Id. 353; Dorsey’s Appeal, 22 Id. 192 ; Allegheny County Home’s Case, 27 Id. 77 ; State Line and Juniata Railroad Co.’s Appeal, Id. 429; Mauch Chunk v. McGee, 31 Id. 433.
   Mr. Justice Paxson

delivered the opinion of the court, March 3d 1879.

This was a certiorari to the Court of Quarter Sessions of the city and county of Philadelphia, to bring up for review the record of said court dismissing the appeal of Mary A. Esling and Amanda

F. Holahan from the confirmation of plan No. 272 by the board of surveyors of said city.

The case was before us last year, when it was found that there was nothing upon the record to enable us to form an intelligent judgment upon the points in controversy. In order, however, that no injustice might be done the plaintiffs, the following order was made:

“Leave is given to withdraw the record on file, for the purpose of amendment and a new return to the writ of certiorari, as if upon a certiorari sur diminution of record. The appellant can then move the court below to enter in full nunc fro tunc the decree involved in the entry of appeal dismissed June 29th 1876, and forthwith to certify to us a copy of the resolution of June 29th 1874, and the map, or a true copy thereof, brought into the Court of Quarter Ses-. sions, by the appeal of the plaintiffs in error.”

We have now certified to us, by a further return to the certiorari, the decree of the court below made nunc pro tunc ; a copy of plan No. 272, and a copy of the resolution of councils of June 29th 1874.

The plaintiffs have filed ten specifications of error, the most important of which are those which deny the power of the board of surveyors, under the resolution of councils, to lay out new streets, and to straighten, widen or vacate old ones.

The interest of the plaintiffs appears nowhere except in their affidavit, filed in the court below upon their appeal. In it they state that they are “freeholders within the boundaries of said plan,” and that said plan will entail considerable loss and Expense upon them without authority of law.

A great deal that was pressed upon us at the argument was outside this record. Too much stress must not be laid upon the fact, that we permitted the resolution of councils and the plan to be cer-tified to us upon the certiorari. They were not legitimately any part of the record of the court below, nor did our order or permission to certify them make them so. In the view which we take of the case, any further comment on the effect of bringing up the papers referred to becomes unnecessary, and it is referred to merely to prevent misapprehension hereafter.

The Act of 6th June 1871, Pamph. L. 1853, confers upon the board of surveyors authority to confirm or reject all plans of surveys or revisions of plans of the city of Philadelphia, when the same shall have been made by direction of'the Select and Common Councils of the said city. The plan in controversy, No. 272, was made under this act. The city councils, by their joint resolution of June 29th 1874, ordered “ that the department of surveys be and is hereby authorized and directed to prepare plans in duplicate of the lines and grades of so much of the Twenty-sixth ward as is embraced between Twenty-fifth street and the river Schuylkill, Ritner and Geary streets.” In order to ascertain whether the board of surveyors exceeded the authority contained in this resolution, we must look at what they have done, as we find it in the record. And for the purposes of this case, giving the plan all its effect as though a part of the record, we find nothing in it but the lines and grades of the streets in the territory referred to. This is precisely what the resolution of councils directed. But it is said new streets have been laid out and old ones vacated. All this is dehors the record and the plan. The latter furnishes us no information as to what are old streets and what new. It is true, a street is marked vacated. But vacated when and by w'hat authority ? For aught that appears, it may have been vacated years ago, by order of the Court of Quarter Sessions, upon proceedings properly had for that purpose.

The difficulty in the way of the plaintiffs is, that they cannot, upon a certiorari, have the case heard as upon an appeal. Where an appeal is given by Act of Assembly, the parties are entitled to be heard upon the merits. The certiorari brought up nothing but the record, and we are confined strictly to questions affecting its regularity.

One question only remains. The Act of 23d May '1874, Pamph. L. 230, regulating the passage of ordinances by councils, provides that “ no bill shall' be passed containing more than one subject, which shall be clearly expressed in its title.” This clause is identical in language with the clause in the constitution relating to Acts of Assembly. The rule, as settled by numerous decisions under the constitutional provision, is, that it is sufficient if the title fairly gives notice of the subject-matter of the act, so as reasonably to lead to an inquiry into its body: Blood v. Mercelliott, 8 P. F. Smith 391; Church Street, 4 Id. 353; Dorsey’s Appeal, 22 Id. 192; Allegheny County Home’s Appeal, 27 Id. 77; State Line and Juniata Railroad Co.’s Appeal, Id. 429; Mauch Chunk v. McGee, 31 Id. 433. The resolution in question is entitled “ Resolution directing lines and grades over a portion of the Twenty-sixth ward.” If the title is not entirely beyond criticism, it certainly comes within the rule laid down in the cases above cited. •

Proceedings affirmed.


text:
    Hestonville, Mantua and Fairmount Passenger Railroad Co. versus City of Philadelphia.
    1. City passenger railways are included within the term “ railroads” employed in the Act of May 16th 1861, and the provisions of said act relating to merger, apply to said railways.
    2. A railway company laid down tracks on a street and used the same for seven years, then the double track was removed, and a single, one laid which sufficed for the business of the road for the next ten years. The business again requiring the double track, the company proceeded to tear up the single track, to again re-lay the double one, when a bill was filed to restrain them on the ground that they had forfeited their right to re-lay this track by nonuser. Held, that there was no ground for forfeiture.
    3. An absolute right, vested by legislation of the state, and assented to by the councils of a city, cannot be subverted by a city ordinance; it cannot prohibit the enjoyment of a franchise solemnly granted.
    February 20th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Woodward, Trunkey and Sterrett, JJ.
    Appeal from the Court of Common Pleas, No. 1, of Philadelphia county: Of January Term 1876, No. 306. In Equity.
    Bill in equity, filed by the City of Philadelphia against the Hestonville, Mantua and Fairmount Passenger Railroad Company, to prevent the defendant from laying a second railroad track on Callowhill street, in the City of Philadelphia.
    The bill set forth,
    I. That defendant was incorporated under an act, approved the 6th of April 1859, entitled, “ An Act to incorporate the Heston-ville, Mantua and Fairmount Passenger Railroad Company,” and thereby obtained the right to lay passenger railway tracks in certain Streets of the City of Philadelphia. ÍI. That by an act entitled, “ An Act to incorporate the Fairmount Passenger Railroad Company,” approved the 13th of April 1858, the Fairmount Passenger Railroad Company was incorporated with power to lay out and construct a railroad in the city, upon a route designated in said act, including, inter alia, the right to lay a double track on Callowhill street, from Twenty-second street to Fairmount. III. That in the seventh section of the act last referred to, it was provided that “ before the said company shall use and occupy said streets, the consent of the councils of Philadelphia shall be first obtained; * * * and said councils may from time to time establish by ordinances such regulations in regard to said railway as may be required for paving, repairing, grading, culverting and laying of gas and water pipes in and along said streets, and to prevent obstructions thereon.” IV.' That councils, by “an ordinance relating to certain passenger railway companies,” approved the 16th of April 1858, did ordain, in section first, that they thereby declared their disapproval of the aforesaid Act of April 13th 1858; and in section second, “ That if any company in the said preamble named [including the said Fairmount Passenger Railroad Company] shall within ninety days from the passage of this ordinance, and before such company shall occupy any of the said streets or highways, file in the office of the city solicitor a written obligation, sufficient in law to bind such company, to observe and be subject to all the ordinances of the city in relation to passenger railways then in force, and thereafter to be passed, then the provisions of the first section of this ordinance, as to each and every such • company as shall file such written obligation as aforesaid, shall cease to have effect.” V. That on the 5th of June 1858, the Fairmount Passenger Railroad Company did file in the office of the city solicitor such a written obligation. VI. That on the 30th of May 1859 the defendant entered into an obligation with the city, by which, inter alia, it became bound well, faithfully and truly to comply with, observe and be subject to, all the ordinances of the Select and Common Councils of the City of Philadelphia, then in force, or thereafter to be passed, regulating passenger railways. VII. That under “ An Act to incorporate the Fairmount and Arch Street Passenger Railway Company,” approved the 16th of April 1858, and a supplement approved the 24th of March 1859, the Fairmount and Arch Street Passenger Railway Company became entitled to, and shortly after the passage of the said supplement did, construct a single track along Twenty-second street, from Callowhill street to Hamilton street, and thence west along Hamilton street to Callow-hill street. VIII. That it was, inter alia, ordained in the second section of “ an ordinance to regulate passenger railways,” approved the 7th of July 1857, that passenger railroad companies within the city of Philadelphia should “submit all proposed plans, courses, styles of rails and the manner of laying the same, to the board of surveys and regulations for their approval and sanction, which shall be obtained before they proceed to break ground or occupy any of the highways” of the said city. IX. That in the first section of “ an ordinance relating to the highways of the city of Philadelphia,” approved the 28th of February 1860, it was, inter alia, ordained, “ that it shall not be lawful for any person or persons, bodies corporate or otherwise, to remove any of the cobble pavements of the highways of the city, for any purpose whatever, without first procuring a permit from tbe department of highways, under a penalty of five hundred dollars for each offence, &c.” And in tbe second section of the same ordinance: “ That it shall not be lawful for the department of highways to grant any permit for the removal of any of the pavement of the city, as described in the first section, for the purpose of laying down rails for .passenger railway purposes, until after first procuring the assent of the councils of the city thereto.” X. That on the 21st of June 1858 the board of surveyors of the city approved a plan for the construction of the said Fairmount Passenger Railroad, which provided, inter alia, for a double track upon the said Callowhill street, from Twenty-third street to Fairmount, and shortly thereafter the said railroad company laid and constructed its road in the said Callowhill street, with a double track from the said Twenty-third street to Fairmount. XI. That the company defendant claim to have acquired, in the years 1864 and 1865, the rights and franchises of the said Fair-mount Passenger Railroad Company, and the said Fairmount and Arch Street Passenger Railway Company, by merger and consolidation of the said three corporations under the name of the company defendant, and thereby to have acquired the right to construct, lay and use a double track upon Callowhill street, from Twenty-second street to Fairmount. XII. About the year 1865 the said company defendant abandoned, ceased to use, and removed, the double tracks above referred to, between Twenty-third street and Hamilton street, and instead thereof laid and constructed a single track in the middle of the said Callowhill street, between the points just before stated, which single track the said company have used from about the year 1865 to the present time, in connection with the said single track on Hamilton and Twenty-second streets. XIII. That the said defendant, on the 23d of April 1875, having and using at that time a single track in the said Callowhill street, between Twenty-Second and Twenty-fifth streets, under the power which they claim to have derived from the said Fairmount Passenger Railroad Company, as before stated, began to take up and remove the cobble stones from and along the said street, between the two points just before stated, for the width of twenty feet or thereabouts, for t£e purpose, and with the avowed intention, of constructing and laying a double track therein, and from the said Twenty-fifth street, along said Callowhill street to the Schuylkill river or thereabouts, and this, your orator is advised, they threaten and intend to. do. XIY. That in article 17, sect. 9, of the Constitution, it is provided: “No street passenger railway shall be constructed within the limits of any city, borough or" township, without the consent of its local authorities.” XV. That neither the said defendant, nor the said Fair-mount Passenger Railway Company, have procured any permit from the department of highways, to remove the cobble pavement in the said Callowhill street, nor have the councils of the said city assented thereto. XVI. That the defendant have not submitted to, nor had approved by, the board of surveys, any “ plans, courses, styles of rails, or the manner of laying the same,” with reference to the construction of the said double track which they propose and threaten to lay as above stated- XVII. That even if it be true that the company defendant has acquired the rights and franchises of the said Fairmount Passenger Rauroad Company, the company defendant have no rights or franchises under which they can now lay and construct a double track in Callowhill street, from said Twenty-second street to Fairmount, or between any intermediate parts, by reason of the fact that the said Fairmount Passenger Railway Company abandoned such rights or franchises about the year 1865, in the manner before stated in paragraph XII. XVIII. That the said company defendant are proceeding without authority of law to remove the cobble pavement from ‘Callowhill street, and to construct a double track therein, in the manner before stated.
    Your orator therefore needs equitable’relief:
    1. That the company defendant may be restrained until hearing, and perpetually thereafter from further tearing up or removing the cobble pavement in said Callowhill street, between Twenty-second street and Fairmount and from laying any other passenger railroad tracks thereon, other than the single pair of tracks which the said company used previous to the taking up and removal of the cobble pavement, which is above complained of.
    2. - That the defendant may be ordered and directed to replace the said pavement in the same condition. in which it was before the removal thereof.
    The bill Avas subsequently amended by adding to paragraph XI. the averment: “ That the said merger and consolidation Avere not authorized by law, and they did not avail to invest the said company defendant Avith any of the franchises of the .said two corporations alleged to have been consolidated with the said company defendant.
    And by inserting as a new paragraph after paragraph XVII., the folloAving, to wit:—
    . “ That your orator is advised arid therefore avers, that even if the said company defendant at any time had the franchise to lay a double track in said Callowhill street, from Twenty-second street to Fairmount, the said company by electing to remove the double 'track and to construct a single track in the place thereof (which single track as before stated they used in connection with a track in Twenty-second and Hamilton streets), exhausted its franchises so far as it applied to the laying of rails in that part of Callowhill street, from which the double track was removed, as before stated, and have now no power to replace such double track in the said street.”
    The answer of the defendants set forth:
    1. That they were created by an Act of April 6th 1859, Pamph. L. 889, with the route therein described, with the power to lay out and construct a railway. By a supplement to said act, passed March 8th 1860, Pamph. L. 123, they were expressly authorized to lay out and construct their railway tracks, from the bridge at Fair-mount to Callowhill street, and along Callowhill street to Delaware avenue, and to occupy such other street or streets as may be necessary to reach Twenty-first or Twentieth and Callowhill streets from said bridge. 2. Under these acts there was constructed a track from the bridge at Fairmount westwardly to Hestonville. 3. That by an Act passed April 13th 1858, Pamph. L. 257, there was created the “ Fairmount Passenger Railway Company,” with power to construct a passenger railway from the south side of Fairmount to Callow-hill street; thence east on Callowhill to Twenty-third; thence south to Vine; thence east to second; thence south to Walnut or Dock; thence w'est to Third ; thence north to Race ; thence west to Twenty-second; thence north to Callowhill street, with a double track on Callowhill street, to Fairmount. Section 7 provided: “ That before the said company should use and occupy the said street, the consent of the councils of the city of Philadelphia shall be first obtained.” This consent was given. • 4. That by the Act of April 16th 1858, Pamph. L. 320, there was created, “The Fairmount and Arch street City Passenger Railway Company,” with power to construct a passenger railway “ commencing at Tenth and Arch and continuing westwardly along the same, with a double track to Twentieth and Twenty-first streets, respectively, with single track to Callowhill street, and thence westwardly with double track to bridge.” Section 7 provided: “That before the said company shall use and occnpy the said streets, the consent of the councils shall be first obtained.” On May 5th 1858 (Ordinances of 1858, 177), the councils disapproved of the act and refused consent. By a supplement to the aforesaid act, passed March 24th 1859, Pamph. L. 234, it was enacted that said company should have full authority to construct and lay a passenger railway on the route hereinbefore stated. Section 3 provided, that “ after the special consent of the councils, said company may, in lieu of two tracks on that part of Callowhill street which is between Hamilton and Twenty-second, construct one of their tracks on Twenty-second from Callowhill to Hamilton, and thence west on Hamilton street to Callowhill street.” That consent was given by an ordinance passed April 28d 1859 (Ordinance of 1859, 198). In accordance with the authority of said acts, railway tracks were laid on Twenty-second street, from Callowhill to Hamilton and thence west on Hamilton street to Callowhill street. 5. Callowhill street, from the bridge at Fairmount, is between curbs twenty-nine feet in width, and the existence of more than a double track at that point would sacrifice the other uses of the highway. If, therefore, the defendants exercised their right as a separate corporation, to lay a double track on Callowhill street between these points, and the Fairmount Passenger Railway Company sought to exercise theirs, and the “ Fairmount and Arch Street City Passenger Railway Company” sought to exercise theirs, the whole width of the street would be occupied without space between each set of tracks. 6. Such an exercise of separate corporate discretion and right would be impossible of execution, as cars could not pass each other, and therefore the several companies did by agreements arrange such running of their cars over the tracks actually laid by the Fairmount Passenger Railway Company and by the Fairmount and Arch street City Passenger Railway Company, as secured to each their separate circuits, the integrity of the several franchises and the- accommodation of the passengers seeking the cars of either. The former company have laid a track from the bridge, along Callowhill street to Twenty-third street; and the latter company have laid a track from the bridge, along Callowhill street to Hamilton, and thence eastwardly along Hamilton to Twenty-second street. These are the tracks now in existence and now used. 7. That by reason of an entire alteration of grades, caused by the construction of the double-decker bridge at Fairmount and of the necessities of public travel, they have become convinced that the franchise of a double track on Callowhill street must be maintained. Accordingly they have made arrangements to remove the tracks laid by the Fairmount Passenger Railway to the side of said Callowhill street and to lay another track beside it on their own behalf. The effect of this would be that the double tracks now existing on Callowhill street, from the bridge to Hamilton street would be continued eastward on the same alignment.
    Respondents admit the truth of the first five paragraphs .of the bill. Respondents deny that they entered into an obligation as averred in the sixth paragraph of said bill; but are advised that it is .immaterial, inasmuch as the tenor of sueh an obligation would only be that respondents should comply with such ordinances as it was within the power of the city of Philadelphia to pass. Respondents admit the truth of - the seventh paragraph of said bill, and that the averments in the eighth paragraph are true; but respondents are advised that said ordinance, so far as the same is,now valid, applies exclusively to the original construction, and that in the case of entire compliance therewith, the purpose thereof is fully met; and respondents do say that their charter does not confer any power on the plaintiffs to regulate or control them on Callowhill street, east of the bridge at Fairmount. And respondents are advised that the assent of the General Assembly is sufficient and ample, and that no provision of their charter subjects them to a further assent by the councils of the city of Philadelphia to the use of Callowhill street. Respondents admit the truth of paragraph nine, but are advised that said ordinance is not passed pursuant to the conditions of the Act of April 11th 1868, as above cited; and that as its purpose was to secure the assent of the councils of the city .to remove the cobble stones of the highways, it cannot apply to a body corporate, whose occupation and use of streets for the purposes of their chartered route had already been assented to. Respondents admit the truth of paragraph ten, and of paragraph eleven: but are advised that the same is immaterial as to the subject-matters of this bill of complaint, inasmuch as these respondents, without such merger and consolidation, have the grant as aforesaid to lay the track on Callowhill street now proposed.
    • And respondents say, that if paragraph twelve in said bill means to aver the fact differently from that stated in the general paragraphs of this answer, then they deny the same to be so. Defendants have never surrendered any portion of their franchise to the Commonwealth ; that as the chartered powers of defendants do not limit the construction of their road to any term, that completion thereof, or the change of the mode of running, is for their discretion, as the owners of the franchise; and even though this were not so, plaintiffs have no standing in this court to assert a loss of franchise by nonuser, this being wholly for the Commonwealth, at her own relation.
    The case was argued upon bill and answer, and the court below, Allison, P. J., without filing an opinion, entered a decree “that defendants be perpetually enjoined from laying any other passenger railroad tracks on. Callowhill street, between Twenty-second street and Fairmount, other than the single track which is now laid thereon and used by them.”
    This decree was assigned for error by the company which took this appeal.

      William JE. Littleton, David W. Sellers and Isaac Hazlelmrst, for appellants.
    We are within the Act of May 16th 1861. We are a railroad company. The merger was recognised by the city. Three roads had a right to lay their tracks on Callowhill street. Each of the three roads had the authority of the city to lay one track. We represent the consolidated road, and instead of laying three tracks we laid one on Hamilton street, and were proceeding to lay two on Callowhill when we were restrained. We have not lost our right by non-user. An express grant is not lost because it is temporarily not acted upon. Because we once took up the track does not estop us from laying it down again. So long as we* keep within the prescribed limits we can change our alignment: Snyder v. Pennsylvania Railroad Co., 5 P. F. Smith 340. A permit was not necessary. We had once obtained the assent of councils to the use of the streets, and with that assent its power ended to control the franchise: Masser v. Arch Street Railway Co., 3 Am. Law Reg. 284.

      O. E. Morgan, Jr., Assistant City Solicitor, and Wm. Nelson West, City Solicitor, for the city.
    The merger was unlawful and the appellant did not thereby acquire any of the franchises of the Fair-mount Passenger Railway Company. ■ The Act of 1861 does not apply to city passenger railway companies: City v. Thirteenth and Fifteenth Streets Passenger Railway Co., 8 Phila. R. 651. But if the merger was lawful, the Fairmount Passenger Railway Company had exhausted their right to lay a track on said street.
    It is not possible that their grant’ entitled them not only to lay one track, but also as many others as they pleased, to take up that laid down, and to substitute another for it, and again, to remove the new track, and to put down still another,-similar to that originally laid.
    The right to lay their tracks was made conditional upon the consent of councils. Councils assented simply to the construction of the track first laid down. Their assent was also qualified by .conditions, making the road subject, not only to ordinances then in force, but also to those which might thereafter be passed. The ordinance of February 28th 1860, expressly prohibits the removal of the cobble pavements of the city without a permit from the department of highways of the city, and also forbids that department to grant any such permit for the purpose of laying down rails for passenger railway purposes until after the assent of councils thereto. No permit has been granted- to the appellants, nor have councils assented thereto.
   Mr. Justice Trunkey

delivered the opinion of the court, May 5th 1879.

The Act of April 6th 1859, and its supplement of March 8th 1860, incorporating the Hestonville, Mantua and Fairmount Passenger Railroad Company, gave it no power to construct a double track on Callowhill street. By the original act the company was authorized to lay a double track on designated streets, and a single track on others; and the latter authorized construction of their 'tracks across- the Schuylkill and along Callowhill. According to familiar rules, the right granted by the supplement was to lay a single track.

Section 3 of the Act of 24th March 1859, permitted the Fair-mount ánd Arch Street City Passenger Railway Company to elect to construct one of their tracks on Twenty-second and Hamilton streets, in lieu of two tracks on that part of Callowhill between Hamilton and Twenty-second; and the company so elected and laid their' tracks.

The Eairmoiint Passenger Railroad Company was incorporated by Act of April 13th 1858, with power to construct a double track on Callowhill from Fairmount to Twenty-second street. Upon specified conditions, the councils of the city gave the requisite assent as prescribed in the act. On June 21st 1858, the Board of Surveyors of the city approved a plan for construction of the Fair-mount Railroad, with double track on Callowhill street, and shortly after said double track was laid. Early in 1865, under the Act of May 16th 1861, “ relating to railroad companies,” the Fairmount Passenger Railroad Company and the Fairmount and Arch Street Passenger Railway Company were merged into the company appellant, and the three were thereby consolidated. Afterwards, in the same year, the appellant took up said double track and laid a single one in the middle of the street, which they used till April 23d 1875. On that day they began to take up and remove the cobble stones from said street for the purpose and with the avowed intention of laying a double track therein; whereupon this suit was commenced and the work enjoined. It is .not charged, and, of course, could not be, or it would have been, that the plan of the double track proposed to be constructed differs from the one which was duly approved and laid in 1858 and removed in 1865. The answer avers that by reason of the alteration of grades caused by construction of the double-decker bridge and the increased public travel, it is necessary that the franchise of a double track be maintained.

The Fairmount Passenger Railroad Company had right to lay a double track on Callowhill street, which was promptly done and the track used for seven years. Then followed a period of ten years during which a single track being sufficient for the business, the double one Avas removed. Their charter required no continuous use of a double track on pain of forfeiture of the right. The public interests, either of the city at large or of the portion adjoining and near the street, were not prejudiced. There has been no attempt to enlarge the power originally granted, or to vary the location of the double track as first laid, nor such frequent changes as to give just cause of complaint. Hence, there are no peculiar circumstances calling for unusual strictness of adjudication on account of misuse or non-user. And, if there were, this bill would not authorize a decree of forfeiture: Slee v. Bloom, 5 Johns. Oh. 879. HoAvever, Ave are of opinion that there is no ground for holding a forfeiture of the right to a double track for non-user.

■ An absolute right, vested by legislation of the state and assented to by the councils of the city, cannot be subverted by city ordinances. The franchise is not held at the mercy of any one. It is not now necessary to speak of the,extent of the power of the city to regulate and control the operations of passenger railways. The ordinances set forth in the bill may be valid. Possibly the company may incur a penalty of $500 for each offence of removing cobble pavements for the purpose of relaying a double track as they first laid it under the city’s sanction. Be that as it may, we are not convinced that they should be prohibited the enjoyments of a franchise solemnly granted.

The learned counsel for the city contend that the Act of May 16th 1861, entitled “ An Act relating to railroad companies,” must be regarded as a portion of the General Railroad Law, authorizing roads to be built where none was built before ; generally through the country, requiring bridges, cuttings and fillings, and sometimés tunnels through hills and mountains ; dealing with a distinct subject which existed before passenger railways came into use, while the latter, unlike a railroad, always contemplates a track laid upon an established road, is always restricted to the bounds of a city or town and its immediate vicinity ; and, in the law, a distinction has always been made between railroads and railways, the former term being applied to subjects of the General Railroad Law, and the latter to passenger railways in cities. Their argument is, at least, plausible, but we are not satisfied that it is free from error. In 1861, all railroads were incorporated by special laws, and in so far as each law did not prescribe specially, reference was made to the provisions of the Act of February 19th 1849. This was common in charters for passenger railroads, as well as others. In the statutes, one class was generally styled railroads, and the other more frequently, but not always, railways. These words are popularly used as synonymous, and Webster defines both alike, but this matters little. A slight examination will show that the legislature did not use the words in a distinctive sense. On th;e same date of the act, in consideration, the “ Philadelphia and Delaware River Railroad Company” was authorized to lay passenger tracks on certain streets in Philadelphia, thereby combining both classes in one corporation. Also, same day, a supplement to the charter of the “ Philadelphia and Olney Railroad Company” was passed, which company was incorporated April 1st 1859, with right to lay their tracks on specified streets and highways and connect with passenger railroads. In 1859 the “ Pittsburgh and Birmingham Passenger Railroad Company” was incorporated. Also the “Passenger Railroad Relief Association of Philadelphia.” Two of the three companies consolidated into the company appellant are “ railroads.” These instances sufficiently indicate that the legislature indiscriminately used the words in their popular sense. It is true that, railroads were used in the country prior to theix*' use on the streets of towns, and that many differences necessarily exist in their regulation and management. It is useless to name points of likeness and unlikeness, for there are many of each. And these vary in the same road when one part is in the country and the other in a city. Recently narrow gauge railroads have been introduced, not laid on streets of cities, nor tunnelled through hills and mountains, but running over the latter. All three kinds are railways — are railroads. Then, as respects the title of the Act of 1861, it embraces railways on streets as well as those through or over hills and mountains. It is equally comprehensive in its provisions, not one of which is inap-. plicable to any class of railroads. Not an incongruous clause has been pointed out, considered in relation of proceedings for merger of city passenger railway companies. The right of consolidation is limited to connecting roads. Not in the title, nor in the body of the act, is anything discoverable why its benefits should be confined to a class instead of embracing all. We were not informed at the argument of any extraneous cause for holding that one class was without the legislative intendment.

Mergers have been made of passenger railway companies and new corporations formed thereby, under this statute. The proper state officers filed the agreements and certificates. No 'one has directly questioned the right of such new corporations to hold property and transact business. Very likely many citizens would severely suffer if all these organizations are void. While the hardship resulting from their mistake, if mistake it was, is no reason for improperly placing them within the intendment of the statute, it is a reason for careful inquiry into the meaning of the law, and not excluding them from its operation by a forced construction against its letter and apparent spirit.

Decree reversed, and now it is adjudged and ordered that the bill be dismissed, the appellee to pay costs below and of this appeal.


author: Chief Justice Sharswood

text:
    Wainwright’s Appeal.
    1. The constraint which will avoid a will must be one operating in the act of making a will; undue influence long past and not shown to be in any way connected with the testamentary act, is not evidence to impeach a will.
    2. Where a testator and his residuary legatee unlawfully cohabited together and it Was alleged that many years previously she had falsely accused testator of seducing her, these facts are not sufficient evidence of undue influence over the mind of the testator in the testamentary act, where it appears the will was properly and formally drawn, and every one but the attorney who drafted it was excluded from the room when the instructions were given.
    3.. Such circumstances are not sufficient to justify a jury in finding a verdict against the will, and the Orphans’ Court properly refused to award an issue decicacit cel non.

      February 21st 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, 'Woodward, Trunkey and Sterrett, JJ.
    Appeal from the Orphans’ Court of Philadelphia county: Of January Term 1877, No. 168.
    Appeal of Israel R. Wainwright and others, the heirs at law of William Wainwright, deceased, from' the decree of the court refusing their demand for an issue devisavit velnon, and affirming the, decision of the Register of Wills admitting to probate a writing purporting to be the last will of said William Wainwright, deceased. The alleged, will was signed by deceased on January 10th 1876, between 11 and 12 o’clock p. m., and he died about 8 p. m. on the following day. The will provided for the paj'ment of his debts; the disposition of his mother’s and father’s portraits; that $5000 should be given to the son of each of his partners; that $5000 should be given to “Mena Ueberroth, the daughter of his friend Amanda Ueberroth,” and the residue of his estate he gave to said Amanda Ueberroth. This residue comprised the larger portion of the estate.
    ■ A caveat was filed on the 14th dáy of January 1876, and on the day following the alleged will was presented for probate by James Trimble, the executor, and the subscribing witnesses thereto were sworn. The counsel for the caveators then filed a petition with the register, in which they denied that it was the will of the decedent and averred “that the said paper writing has been procured by means of undue influence practised upon the said William Wain-wright by one Amanda Ueberroth, a devisee named in said alleged, will, with whom the said William Wainwright had for about a year previous to his decease been living and cohabiting in unlawful relations, and by one James Trimble, the father of one of the devisees and the executor named in said alleged will,” and prayed for an issue devisavit vel non to the Court of Common Pleas, as well as the appointment of an administrator pendente lite.

    The cross-examination of the subscribing witnesses was then proceeded with and followed by that of James Trimble, the executor above named. Other witnesses were called and examined by the caveators. On May 4th 1876, while the examination was still pending, the heirs at law renewed their demand for an issue, accompanied with the request that the material matters relating to the said demand which were in dispute before the register, he certified to the Orphans’ Court for its decision; and thereupon the register announced that he had decided to admit the alleged will to probate. The heirs at law appealed from his decision and the proceedings were thereupon removed to the Orphans’ Court. An examiner was appointed to take testimony, which was duly reported to that court. On December 22d 1876, the cause came on for a hearing and was argued before Judges Dwight and Hanna. The judges being divided in their opinions as to the right of the appellants to an issue, the decision of the register was affirmed.
    In his opinion, Dwight, J., inter alia, said: “I think that where the appellants present evidence to sustain the issue prayed for, which is of such a character that, if believed by the jury, their verdict for the appellants would be sustained the demand for an issue should be granted; and more especially is this the case, when their testimony is met by counter-testimony for the appellees, for there is then clearly a dispute upon material matters of fact which the jury may settle one way or the other as they credit the witnesses. The evidence in this cause is that the testator made his will about sixteen hours before his death; that he was living with the principal legatee in unlawful relations; that while his brothers, if I read the testimony rightly, were excluded, she was present in his sick room up to the time when a gentleman of the bar, who had been sent for to draw the will of the testator, entered it to receive his instructions; that while this gentleman was- drafting the will this legatee was alone with the testator for half an hour; that at the end of that time the executor, whose son was also a legatee, having been informed by the legatee in question that testator desired to marry her, went into the testator’s sick room, had an interview with him, and on coming out again told the appellants that he had fixed the matter, and told the legatee that the contemplated marriage need not or ought not to go any further, because she was already well provided for by the will. I think that these facts, taken in connection with the illicit position of this legatee, and her manifestly increased influence over the testator during the last few months of his life, should be laid before a jury, in order that they might determine how far the principal legatee prompted or how far she and the executor united in controlling the testator’s mind in his testamentary dispositions. As the request for the issue must be refused, and as Judge Hanna is clearly of the opinion that the decree of the register should not be reversed, I would only add that upon the appeal the decree of the register is affirmed.”
    In his opinion Hanna, J., inter alia, said:
    “We agree there is no evidence of testamentary incapacity, but differ as to granting the issue upon the second proposition submitted by the appellants. For myself, I am "of opinion that the evidence is not of such a character as to warrant submitting the question to a jury. I do not discover any evidence that undue, illegal, or improper influence was exerted upon the mind of the testator in the very act of making the testament, nor at any other time. While it is true that he and the principal legatee were living together as husband and wife, without the marriage ceremony having been solemnized, yet this is no evidence of nor does it raise any presumption of itself that she exercised any improper influence or control over the mind of the testator. Proof of an unlawful relation must be accompanied by evidence of some act of persuasion,’ solicitation or controlling power over the mind, will and judgment, whereby the testator was forced or induced to dispose of his estate in a manner different from that which he would have selected if he had been a free agent.
    “ There is no proof of any act of the principal legatee tending in this direction, nor is there any evidence that the executor, who was the senior partner of the testator, used any improper means or influence to induce testator to dispose of his estate otherwise than he, of his own volition and pleasure, intended. It was not illegal or improper for Mr. Trimble to suggest to and advise with the testator as to the disposition of his property or the object of his bounty, and if this can be gathered from the testimony, it shows that his efforts all tended to reconcile testator to the wishes and objections of his brothers, the appellants, to his proposed marriage with the principal legatee.
    “ I also understand the rule to be that if the question of fact be unsupported by sufficient evidence the court should refuse the issue. A mere scintilla of proof is not sufficient to entitle a party to his issue.
    “ But the evidence must be such that if an issue be granted, and a jury should find a verdict against the will, we, if sitting in a court of law, would be satisfied that the finding was in accordance with the evidence or the weight of the evidence, and would refuse to disturb the verdict.
    “As was said by Paxson, J., in Cauffman v. Long, 1 Norris 72, ‘a man’s will, the most solemn instrument he can execute, shall not be set aside without any sufficient evidence to impeach it.’ See also De Haven’s Appeal, 25 P. F. Smith 337 ; De Puy’s Estate, 1 W. N. C. 212; Will of Ellen DeB. ’Shaw, Id. 332.
    “ To my mind the evidence clearly shows that the will of William Wainwright was the free, uncontrolled and voluntary expression of his wishes for the future disposition of his estate. It was prepared by his counsel in accordance with instructions received in the solitude and silence of the death chamber. No one was present to solicit or suggest a benefaction, and the testator, alone with his counsel, calmly remembers and seeks to befriend those who he believed would appreciate his gifts and had won his heartfelt esteem.
    “Being of opinion, therefore, that the evidence, if submitted to a jury would not justify a verdict against the will, I think that the demand for an issue should be refused, and the appeal dismissed.”
    O’Brien, J., did not sit during the argument of the cause, and the court being equally divided, the appeal was dismissed.
    The letter of May 2d 1874, referred to in the opinion of this court, was a long letter, wherein the residuary legatee charged that about seventeen years theretofore, the testator had encompassed her seduction; referred to the writer’s attempts to conceal her shame; to her flight to the south; to the birth of a child as the fruit of their intercourse ; to the death of this child ; to her being forced to live a life of prostitution; to the life of torture she had lived and was still living, and after alluding in the most endearing terms to the testator, begged him by all that was good not to despise her; to protect her and take her from the hellish life, the slough she was in. The testimony on both sides was very voluminous. From the time the residuary legatee commenced to live with testator, it appeared she in every way endeavored to atone for her past life; was constant in her attentions to him; made herself useful to him; induced him to abstain from drinking, to which he had been addicted ; read his Bible to him and herself attended church regularly, and in her general deportment bore herself as his wife, and as such’ was recognised by a number of people and to some introduced as his wife by the testator himself.
    From the decree of the court refusing the issue and aflirming the register’s decision the appellants took this appeal.

      Arthur M. Burton and George W. Biddle, for appellants.—
    The court is bound to award an issue if there is a material fact in dispute: Cozzens’s Appeal, 11 P. F. Smith 196. The effect of such an improper relation as existed between these parties was a question of fact for a jury: Main v. Ryder, 8 Norris 217. The testator labored under a delusion that he had seduced the legatee, as she had falsely charged in her letter] and -can it be said that the influence of this charge was not operating on his mind when he made his will. He stated to several witnesses that he had seduced heiy and this thought seems .to have moved him in the care and provision he made for her. It is not unreasonable to suppose, therefore, that it was the controlling agency which influenced him in making his will. It should have been submitted to a jury to determine whether this false charge of seduction was not an undue influence : Monroe v. Barckly, 17 Ohio N. S. 302; Dean v. Negley, 5 Wright 312. It is immaterial when the undue influence was applied, if it continued to operate as a controlling cause at the making of the will: Taylor v. Wilburn, 20 Mo. 306; Davis v. Calvert, 5 Gill & Johns. 269; Reeme v. Parthemere, 8 Barr 460.
    We contend that these then were the influences which were operating on the testator when he made his will: 1st. The unlawful relations which gave her power and control over him when in apparent health. 2d. The belief that he had seduced her when she was a young girl. 3d. The desire to compensate her for the wrong that he supposed he had done. 4th. The fact that he was about to die, and the desire natural with him to make his peace with his maker, which was aided by the religious influences that Amanda caused to be thrown around him. 5th. The persuasive power and influence over him of her attentions to him at that time: 6th. His inability, from the advanced stage of his disease, to resist her importunities.

      John Q. Lane and F. Carroll Brewster, for appellees.
    No will can be avoided because the existence of an unlawful influence is proved, unless such influence is unduly exerted over the very act of devising. It must be a present constraint operating directly on the mind of the testator: Dean v. Negley, 5 Wright 317; McMahon v. Ryan, 8 Harris 329; Eckert v. Flowry, 7 Wright 51; Thompson v. Kyner, 15 P. F. Smith 368. The letter complained of was drafted by the testator himself, and was copied and signed by the legatee at the testator’s request. It was written with the avowed purpose of 'deceiving his partner in order to win his good opinion for the legatee. Improper relations between testator and legatee do not create a presumption in law of undue influence: Rudy v. Ulrich, 19 P. F. Smith 177; Main v. Ryder, 3 Norris 217. But the relations here were not improper; they lived as man and wife.
   Chief Justice Sharswood

delivered the opinion of the court, March 17th 1879.

It is strongly contended that there were disputed facts disclosed by the evidence from which the jury might have found that an undue influence was exerted over the mind of the testator. It is clearly settled that the constraint which will avoid a will must be one operating in the act of making the will. Threats, violence or any undue influence long past, and not shown to be in any way connected with the testamentary act are not evidence to impeach a will: McMahon v. Ryan, 8 Harris 329; Eckert v. Flowry, 7 Wright 417; Thompson v. Kyner, 15 P. F. Smith 368. In an issue devisavit vel non on the allegation of undue influence by the mother of an illegitimate child, the legatee in the will, the unlawful cohabitation of the mother with the testator is not of itself sufficient evidence from which a jury could infer undue influence: Rudy v. Ulrich, 19 P. F. Smith 177. It is true that if there are other facts, unlawful cohabitation may be a circumstance of w'eight": Dean v. Negley, 5 Wright 317; Main v. Ryder, 3 Norris 217. In the case before us there was not a scintilla of evidence of the exertion of any ..influence over the mind of the testator in the testamentary act. His capacity was perfect, the act was free and voluntary; a respectable member of the bar was called in; everybody was excluded from the room when his instructions were given, and the will when afterwards drawn in form was executed in the presence of the two witnesses who attested it. There was never a case in which a will was executed less liable to. exception on this ground. It is true that the testator and the residuary legatee had never been lawfully married. Rut for a year, at least, he had cohabited with her as his lawful wife, acknowledging her to be such. He was not on good terms with his brothers and sisters, the present contestants, and on many occasions had expressed his intention of providing for the residuary legatee. It is contended, however, that she had falsely represented to the testator that he had seduced her. It is more than doubtful whether the letter of May 2d 1874, so much relied on by the appellants, was not the testator’s own work, intended to justify him in the eyes of his friends in living with the woman, and it is difficult to believe that he was deceived by it. But concede it to be as contended. How can it by itself justify the conclusion of undue influence in the testamentary act ? Say that it was intended by her to induce him to remove her from the condition of a common prostitute and take her under his protection. Why might not her care and attention, her faithful performance of all the duties of a wife, though she did not bear the lawful relation, making his home peaceable and comfortable, produce in him a natural and legitimate affection for her sufficient to account for the not unreasonable provision made for her in his will ? It is clear to üs that this circumstance alone is not sufficient to justify a jury in finding a verdict against the will. If, upon the whole evidence such a verdict ought not to be allowed to stand, an issue ought not to be awarded. Upon a careful examination of all the testimony this is our conclusion.

Decree affirmed, and appeal dismissed at the costs of the appellants.