text:
    The Pennsylvania and Delaware Railroad Co., with notice, &c., versus Leuffer.
    A civil engineer is not a “laborer” or “workman” within the meaning ol'the resolution of 21st January 1843, and its supplement, the Act of 4th April 1862, and is not entitled to the lien provided thereby upon the property of a railroad, for the value of his services rendered in its construction.
    March 22d 1877.
    Before Agnew, C. J., Mercur, Gordon, Paxson, Woodward and Stbrrett, JJ. Sharswood, J., absent.
    Error to the Common Pleas of Chester county: Of July Term 1876, No. 86.
    This was a scire facias issued by George W. Leuffer against the •Pennsylvania and Delaware Railroad Company, with notice to the Pennsylvania Railroad Company. The plaintiff was a civil engineer, and as such rendered services to the first above-mentioned road in the course of its construction. He brought suit for the value of these services and recovered a judgment for $1919.13, upon which this scire facias issued. The only question was whether a civil engineer was a “laborer” or “workman” within the meaning of the resolution of 21st January 1843, Pamph. L. 367, Purd. Dig. 90, pi. 1, which declares, “ It shall not be lawful for any company incorporated by the laws of this Commonwealth, and empowered to construct, make and manage any railroad, canal or other public internal improvement while the debts and liabilities, or any part thereof incurred by the said company to contractors, laborers and workmen employed in the construction or repairs of said improvement remain unpaid, to execute a general or partial assignment, conveyance, mortgage or other transfer of the real or personal estate of the said company, so as to defeat, postpone, endanger or delay their said creditors, without the written assent of the said creditors first had and obtained; and any such assignment, conveyance, mortgage or transfer shall be deemed fraudulent, null and void, as against any such contractors, laborers and workmen, creditors as aforesaid and of the Act of 4th April 1865, Pamph. L. 235, Purd. Dig. 91, which provides : “ Whereas, it frequently happens that incorporated companies, by assignment, conveyance, mortgage or other transfer, divest themselves of their real and personal estate, in contravention of the provisions of the resolution of January 21st 1843 : therefore, “ Be it enacted, that whenever any incorporated company, subject to the provisions of the above resolution, shall divest themselves of their real or personal estate, contrary to the provisions of the said resolution, it shall and may be lawful for any contractor, laborer or workman employed in the construction or repair of the improvements of the said company, having obtained judgment against the said company, to issue a scire facias upon said judgment, with notice to any person, or to any incorporated company, claiming to hold or own said real or personal estate, to be served in the same manner as a summons, upon the defendant, if it can be found in the county, and upon the person or persons, or incorporated company, claiming to hold or own such real estate; and if the defendant cannot be found, then upon the return of one nihil and service as aforesaid, on the person or persons, or company claiming to hold or own as aforesaid, the case to proceed as in other cases of scire facias on judgment against terre tenants.”
    The case, by agreement, was submitted without the intervention of a jury, and the court, Butler, P. J., filed an opinion as follows :—
    “ This question, in my judgment, .must be determined in the plaintiff’s favor.
    “ A civil engineer, employed in the construction of a railroad, is, I think, within both the letter and spirit of the statute. ‘ Laborer’ and ‘workman’ are synonymous terms. An engineer (thus employed) is a workman; he works on the ground continually, from the commencement to the completion of the road. And his work is physical as well as mental. He makes diagrams and plans, ascertains and marks the lines and grades, and directs and superintends. It is skilled work. But so is that of the mechanic who builds the bridges, and whether he be the master, who simply directs, or the man who uses the tools, it is not doubted that he is within the statute.
    “ The object of the legislature was to give those whose skill and labor create the structure, a special hold upon it for compensation. The language should, therefore, receive a reasonable construction, with a view to this object. While it should not be strained, it should not be confined to the narrowest sense in which it might be under-r stood. The Act of June 1836, relating to mechanics and others employed in erecting buildings, had a similar object; and while Ae language employed there is less comprehensive, it is held to embrace the services of an architect who draws plans for and superintends vthe construction of a building. The language of the court in Bank v. dries, 11 Casey 423, where this is decided, is quite as applicable to the case before us. Conant v. Van Schaick, 24 Barb. 99, shows that the courts in New York have taken the same view of a similar statute there.
    “ Judgment must for these reasons be entered for the plaintiff.”
    This judgment was the error assigned'.

      Wm. Darlington, for plaintiff in error.
    A laborer is one who labors in a toilsome occupation ; a man who does work that requires little skill as distinguished from an artisan. A workman is a man employed in labor, whether in tillage or manufactures. A civil engineer ismot within the meaning of either of these definitions. The obvious intent of the legislature was to provide security for those only who are least able to take care of themselves, and this is indicated by all the legislation in this direction.' If the view of the court below is correct every one who works or labors for a railroad, in whatever capacity, is entitled to protection under this resolution. Bank v. Gries, 11 Casey 423, does not apply, and Conant v. Van Schaick, 24 Barb. 99, differs materially from this case. By the general railroad law of New York, passed in 1850, all the stockholders of a railroad company are jointly and severally liable for all the debts owing to any of its laborers and servants for services performed for the corporation. Under this law, a civil engineer was allowed to recover for his services, and the court said: “The engineer, the master mechanic, the contractor, is as fully entitled to its benefits as is the man who shovels gravel. The latter is, in law, no more and no less a servant of the company then either one of the former.”
    A contractor who employs hands is not entitled to exemption, although he labors with them: Heebner v. Chave, 5 Barr 115. Wages of laborers, which the statute was designed to protect, are the earnings of the laborer by his personal manual toil: Smith v. Brooke, 13 Wright 150.

      John J. Pinkerton, for defendant in error.
    In construing the Act of 16th June 1836, Pamph. L. 696, relating to the liens of mechanics in Bank of Pennsylvania v. Gries, 11 Casey 423, it will be observed that a professional man may still bp a “laborer” or “workman” where he gives his personal supervision to the work of construction. In the construction of the Act of 15th April 1845, Pamph. L. 460, “that the wages of any laborer or the salary of any person in public or private employment shall not be liable to attachment in the hands of the employer,” this court, in Pennsylvania Coal Co. v. Costello, 9 Casey 241, held that the wages of a “ skilled miner”- were not attachable. This decision is of value in indicating the change of the law, as expressed in Heebner v. Chave, 5 Barr 115, where a very restricted construction was placed upon the word “laborer,” holding that only the wages earned by the “ hands and labor” of the individual himself were contemplated by the act. In the Company v. Costello, the court goes further, and holds that superior skill and care of the person performing the services may entitle him to larger compensation than the ordinary laborer, and that such compensation is still within the meaning of the act, is “the wages of the laborer,” and is not liable to attachment. Conant v. Van Schaick, 24 Barb. 90, was the case of a civil engineer and is very analogous to this.
    May 7th 1877.
   Mr. Justice Gordon

delivered the opinion of the court,

The scire facias of the plaintiff below is founded upon a judgment obtained by him, against the Pennsylvania and Delaware Railroad Co., for services rendered to it as engineer in the construction of its improvements. He claims judgment against the defendant, in the present case, lessee of the company above named, by virtue of the provisions of the resolution of the General Assembly of January 21st 1843, and its supplement of April 4th 1862. These acts, in effect, give a lien to “ contractors, laborers and workmen,” upon the railroads and other works and property of public companies, for the debts and liabilities accruing to them in the construction and repair of such roads and works. Whether the plaintiff can maintain his claim against the defendant depends upon whether he can bring himself within the class designated in the statute as “ laborers and workmen.” We are, then, to.inquire what the legislature intended by the use of these words. In seeking for this legislative intent we must give to the language of the statute its common and ordinary signification. But ordinarily these words cannot be understood as embracing persons engaged in the learned"professions, but rather such as gain their livelihood by manual toil. When we speak of the laboring or working classes, we certainly do not intend to include therein persons like civil, engineers, the value of whose services rests rather in their scientific than in their physical ability. We thereby intend those who are engaged, not in head, but in hand work, and who depend upon such hand work for their living.

Worcester defines a laborer to be, “one who labors; one regularly employed at some hard work ; a workman; an operative; often used of one who gets a livelihood at coarse manual labor, as distinguished from an artisan or professional man.” In like manner a work man is defined as “one who works; one employed in any labor, especially manual labor.” ' So, if we consult the older English statutes, as 'that of 1 Jac., ch. 6, which provides that the statute of 5 Eliz. shall extend to the rating of all “ laborers, weavers, spinsters, or workmen or workwomen, either working by the day, week, month or year, or taking any work by the great or otherwise,” we cannot doubt but that the terms “laborers” and “workmen” were intended to include only such as were engaged in manual occupations. This .limited meaning has been invariably attached to them and similar Avords Avhen used in our own statutes. In Heebner v. Chave, 5 Barr 115, the Act of 1845, prohibiting the attachment of laborers’ Avages, came up for construction, and it was held that that act was intended to secure to the manual laborer the fruits of his own Avork, for the subsistence of himself and family, and that it did not embrace the earnings of a contractor. So in Smith v. Brooke, 13 Wright 147, “ wages of laborers” were defined to be the earnings of the laborer by his personal, manual toil. In like manner, servants’ Avages, treated as preferred debts in the settlement of the estates of decedents, under the Act of 1794, Avere held to be the earnings of such servants only as make part of - a man’s household, and whose business it is to assist in the economy of the family ; in short, menial servants : In re Meason, 5 Binn. 167. Thus we may see that in these, as in many other cases which we might cite, this limited sense has been given to the words laborers, workmen, servants and the like, and this for the very obvious reason that in all statutes of this kind the intent has been to protect a class of persons who are wholly dependent upon their manual toil for subsistence, and who cannot protect themselves. This same result was reached in the very recent case of Wentroth’s Appeal, 1 Norris 469, in the construction of the Act of April 9th 1872, per Mr. Justice Sharswood. It is true, in one sense the engineer is a laborer; but so is the lawyer and doctor, the banker and corporation officer, yet no statistician has ever been known to include these among the laboring classes. We cannot, therefore, even to save a meritorious claim, undertake to make a new classification, which must necessarily defeat the statutory intent.

Judgment is reversed.


source: Caselaw Access Project

author: Mr. Justice Paxson

license: Public Domain

text:
    Eavenson’s Appeal.
    1. During the lifetime of testator, in his presence and by his direction, various sums of money due him were paid to his son-in-law and the wife of the latter with whom the testator resided. After the testator’s death an attempt was made to surcharge the son-in-law, who was an executor, with the sums so received: Held, that in the absence of proof to the contrary the money must be presumed to have passed into the actual possession of the testator.
    2. The testator lived on his own farm with his son-in-law, the wife of the latter having charge of the household arrangements, the testator bearing a portion of the expenses, and the son-in-law receiving a portion of the receipts of the farm which he tilled: Held, that the son-in-law could not be surcharged with the rent of the farm.
    3. Real estate will- not be charged with the payment of debts and legacies, where the personal estate is more than sufficient to pay the same, unless the intention to charge the real estate and exonerate the personal estate is clearly manifest.
    March 22d 1877.
    Before Agnew, C. J., Mercur, Gordon, Paxson, Woodward and Sterrett, JJ. Sharswood, J., absent.
    Appeal from the Orphans’ Court of Chester county: Of January Term 1877, No. 18.
    This appeal was from the decree of the court confirming the report of an auditor appointed to report upon exceptions to the accounts of the executors of George Eavenson, deceased.
    Joseph Eavenson and George Wood were the executors of the will of George Eavenson, who died at about the age of eighty-eight years, in November 1870. Joseph Eavenson was the son and George Wood the son-in-law of the testator. His executors proved his will, which was made in April 1869, and filed a joint account. When the account was prepared for filing, it appeared that there were differences between the executors, both as to the liabilities of the executors to the estate and as to the construction of the will affecting the distribution of the residue. They, therefore, agreed that either of them might file exceptions to the account, and that the court should be asked to appoint an auditor to hear and report upon the exceptions and make the proper distribution of the estate.
    Both executors excepted to the account, and William Waddell, Esq., was appointed auditor. He heard the exceptions, reported thereon and made distribution. From his final report, which was affirmed by the court, Joseph Eavenson took this appeal. The questions embraced by his exceptions are contained in the following propositions :—
    1. In 1860 the wife of George Eavenson died, and Mr. Wood, who had married one of his daughters, thereupon removed with his wife and family to the dwelling and farm of the testator, and from that time forward, until the death of testator, they lived together in his house. The testator bore a share of the expenses of the household, and Wood tilled the farm, receiving in compensation a share of the crops and other profits arising therefrom. The material evidence in relation thereto and the division made will be found in the opinion of this court.
    Joseph Eavenson claimed that Wood should be charged with the rent of said farm for at least six years before the death of the testator.
    The auditor refused to so charge him.
    2. During this residence of the testator with his son-in-law and daughter various sums of money were received from different persons for said testator, a great part of which was interest on bonds and notes received during the last few years of testator’s life, at which time there was evidence that he was considerably enfeebled by disease and increasing infirmities.
    It was admitted that these sums of money were paid to Wood or his wife in the presence of the testator and at his instance.
    The appellant contended that Wood was bound to account for these moneys and should be charged with them, which the auditor also refused.
    The testator in his will provided as follows:—
    “ First, I direct that all my debts and funeral expenses be paid as soon after my decease as possible, out of the first' money that shall come into the hands of my executors. To the children of my daughter, Ann Boothe, Joseph, Charles, Mary and Sarah, I give and bequeath to each one named, the sum of five hundred ($500) dollars. To the remaining child of my daughter Sidney, Sarah Hannum, I give and bequeath the sum of five hundred ($500) dollars. To my daughter, Phebe Foreman, I give and bequeath the interest of fourteen hundred ($1400) dollars, which sum shall remain in my real estate, the interest of which shall be regularly and annually paid to her, at the rate of five per cent per annum, and at her death, the said sum of fourteen hundred ($1400) dollars, to be divided equally between her two children, George and Sarah; but in case of the death of these two children, the money to return to my estate as reversions. To my daughter Lydia, and son-in-law, George Wood, I give and bequeath the real estate hereinafter described.” [Here follows a description thereof.] “ All my real estate west of this line, I will and bequeath to my daughter, Lydia, and son-in-law, George Wood, clear of all encumbrance. I also give and bequeath to my daughter, Lydia, and son-in-law, George Wood, the woodland hereinafter described.” [Here follows the description.] “ This tract of land I also bequeath clear of all encumbrance. To my son, Joseph Eavenson, I give and bequeath the balance of my real estate, subject to the payment of all my debts, and the amount of money hereinbefore mentioned, as bequeathed to the children of Ann Boothe, Sidney Hannum and Phebe Foreman, the amount fourteen hundred ($1400) dollars before mentioned, to lay in chis real estate, and the interest to be regularly and annually paid to her during her life, and at her death to be disposed of as before mentioned. After all debts and bequests are paid, it is my will that should there be any reversions, that they be equally divided between my son, Joseph Eavenson, and my daughter, Lydia, and sonfin-law, George Wood, executors of this, my last will and testament. And I do further say, that it is my will, that should anv one that I have mentioned in this, my last will, file any objection or raise any suit whatever, that they shall forfeit everything that I may have willed and bequeathed to them, and should this be the case, the money so bequeathed shall return to my estate as reversions.”
    Joseph Eavenson claimed that the legacies to the children of Ann Boothe, Sydney Hannum and Phebe Foreman should be paid out of the personal estate, while Wood and his wife contended that these legacies were a charge upon the land devised to Joseph Eavenson, and the balance of the personalty was to be divided without regard to them.
    The auditor sustained the latter contention, and the court supported this view of the auditor in.an opinion, saying, “ This exception involves a construction of the will. The rules applicable are plain. The testator’s intentions must be carried out if discernible; the clauses involved must be reconciled if possible. Looking at the whole instrument, considering the several devises and bequests, and keeping in view the presumption that equality among his children was intended, it seems clear that the testator designed the debts and legacies to be paid from Joseph’s devise. He says so in plain terms, and with evident knowledge of their import. The devises to Lydia and her husband are both declared to be “clear of encumbrance.” But Joseph is to take “ his, subject to the payment of all just debts” and “the amount of money hereinbefore mentioned, as bequeathed to the children of Ann Boothe, Sidney Hannum and Phebe Foreman, the amount of $1400, before mentioned, to lay in the real estate, the interest to be paid regularly and annually to her during life, and at her death to be distributed as before mentioned.” Previously, in making the bequest to Phebe, he had directed that “ this legacy should remain in (his) real estate.” The design to take the debts and legacies from this land, the $1400 remaining in it until Phebe’s death, is thus put beyond doubt. And there is nothing to indicate that this design was abandoned. The subsequent provision is unnecessary, but not in conflict with it. The testator had provided for the debts and legacies, and this provision was presumably sufficient. It subjected the land to their payment, but not the devisee personally. If the land failed, the second source of payment would be reached, the residuary legatees taking the balance. If no part of the personalty should be needed for this purpose, the whole of it would be residue, and thus distributable. We do not intimate that the testator contemplated exhaustion of the land by debts and legacies. We have no idea that he did. But such, in our judgment, is the legal reading of the ■ two provisions. Thus they may stand together, and the manifest design of the testator be carried out.
    The exceptions to the report of the auditor were then dismissed and his report confirmed; and from this decree this appeal was taken.

      Joseph J. Lewis and Wayne MacVeagh, for appellant.
    The primary fund for the payment of all legacies, whether charged on land or not, unless special provision is made to the contrary, is the personal estate: Breden v. Gilliland, 17 P. F. Smith 38; Groff's Appeal, 9 Wright 383; Powell on Devises, vol. 2, page 682.
    There being personal estate sufficient to pay all debts and legacies and that being the primary fund for such payment, the charge upon the land devised does not alter the established order of the application of the several funds to those subjects to which they are ordinarily liable, but makes the land burdened with the charge an auxiliary fund, to which resort may be had in the event of the personal fund proving insufficient or unavailable

      William Darlington and Oliver Sidwell, for appellees.
    The testator intended to charge Joseph’s devise with the debts and legacies and not charge Lydia’s. These express provisions are sought to be gotten rid of, by supposing the testator meant differently by the clause giving the reversions, after debts and bequests paid, to Joseph and Lydia. But an express charge or discharge cannot be controlled by any conjectural intent to the contrary. If it could, no clearly expressed wish of the testator could ever be certain to prevail. Effect can, however, be given to the bequest of the residue, in the event of Joseph’s land being insufficient to pay the charges upon it. In such event, Joseph and Lydia must each bear their share of the burthen.
    May 7th 1877.
   Mr. Justice Paxson

delivered the opinion of the court,

The second, third and fifth assignments of error raise the question whether George Wood, one of the accountants, is under any duty to account for certain sums' of money received by him and by his wife for George Eavenson, the testator. There is no dispute about the facts. It is conceded that the sums of money in question were paid to Mr. Wood, or to his wife, in the presence of the testator and by his direction. This, the appellant contends, is .sufficient to cast upon Mr. Wood the duty of accounting in some way for the money. The learned auditor declined to surcharge him with these payments, in which he was sustained by the Orphans’ Court. We see no error in this ruling. The payments referred to were payments to George Eavenson. That they were received by the hands of his daughter or her husband is not material. The money was paid in the presence of the testator. The Woods were merely his servants so far as these transactions were concerned. In the absence of any evidence to the contrary the money must be presumed to have passed into the actual possession of the testator. If the Woods embezzled it, that fact must be shown. The law raises no such presumption.

We do not think the attempt to surcharge Mr. Wood with the rent of the farm for the last ten years of the life of the testator can be sustained. This is not the case of a tenant who has bound himself to pay a certain rent. It appears that in 1860 the wife of George Eavenson, the testator, died. At that time he was about seventy-eight years of age. Shortly after the death of Mrs. Eavenson, Mrs. Wood, a daughter of this aged couple, removed with her husband to the dwelling of the testator. Mr. Wood took charge of the farm ; Mrs. Wood attended to the domestic arrangements. The testator had become infirm, and he lived in the family of his son-in-law. No agreement in writing appears to have been entered into, but the arrangement between them sufficiently appears by the testimony of Samuel Oann. He says: “ George got one-third of the grain; old man found all the meat and flour; he had the profit of feeding steers; Wood had the profit of cows and chickens; Wood found groceries; I had this from old man and Wood both.” From this it is manifest that Wood was a mere cropper. The testator remained in possession; lived with his son-in-law, and contributed to the expenses of the house. Each was to have a certain share of the products of the farm. Each was upon the premises to look after his own. In the absence of any evidence to the contrary, each must be presumed to have received his own.. We see no more reason why Wood should account for the testator’s share than that the testator should account for Wood’s share. It would seem incredible that this testator should have failed in getting his share of the crops for the ten years that he lived with his son-in-law. That he did receive his share, appears with reasonable certainty from his own books, in which is set forth his income from farming operations for several years of the period referred to. There is a-debtor and creditor account carefully kept, showing the amount of produce received and the prices realized therefor. It is not material that this account was kept for the purpose of enabling the testator to make his income return. It is sufficient that it was the testator’s account; that it shows that he received and sold his share of the produce, and that it has not been contradicted.

The seventh and eighth assignments present a question of more difficulty. Briefly stated it is whether the debts and legacies are to be paid out of the personal estate, or from the real estate devised to Joseph Eavenson. That the personal estate is the primary fund for the payment of debts and legacies is horn book law. A testator may, however, direct otherwise: McFait’s Appeal, 8 Barr 290. Has the testator evinced a clear intention not only to charge the debts and legacies upon tl;e real estate of Joseph, but also to exonerate the personal estate ? He first directs that “ all my debts and funeral expenses be paid as soon after my decease as possible, out of'the first money that shall come into the hands of my executors.” He then makes sundry bequests of $500 each to grandchildren, and the interest of $1400 to his daughter Phebe Foreman for life, said sum to remain in the testator’s real estate. He then devises certain real estate to his daughter Mrs. Wood and her husband. This devise is expressly stated to be “ clear of all encumbrances.” Then follows a devise to his son Joseph of “ the balance of my real estate subject to the payment of all my debts and the amount of money hereinbefore mentioned as bequeathed to the children of Ann Boothe, Sidney Hannum and Phebe Foreman, the amount fourteen hundred ($1400) dollars before mentioned to lay in this real estate, and the interest to be regularly and annually paid to her during life, and at her death to be disposed of as before mentioned.” Then comes the bequest of the residue, in these words: “ After all debts and bequests are paid, it is my will that should there be any reversions, that they be equally divided between my son, Joseph Eavenson, and my daughter, Lydia, and son-in-law, George Wood,, executors of this my last will and testament.” There is an apparent repugnancy in these provisions. It is our duty to give effect to the intention of the testator so far as it can be ascertained and to reconcile seeming inconsistencies. One thing is clear. The testator intended that in no event should the real estate devised to the Woods be charged with the debts and legacies. He says .that said real estate shall be clear of all encumbrances. On the other hand the devise of the residue of his real estate to his son, Joseph, is subject to all the testator’s just debts, and the legacies referred to. It is provided that the sum of $1400, the interest of which is payable to Phebe Foreman, “ shall lay in this real estate.” What did the testator mean by this clause in his will ? The auditor and the court below held that he intended to charge Joseph’s real estate as the primary fund for the payment of debts and legacies and to exonerate the personal estate altogether. In reaching this conclusion the learned judge of the Orphans’ Court assumes that the testator intended equality among his children. I am unable to gather such intention from the will. It nowhere appears that ho contemplated making one child equal with any other child. On the contrary he gives his daughter, Mrs. Foreman, only the interest of $1400 during life. To the children of his deceased daughter Ann, he gives $2000, and to the child of his daughter Sidney, he gives only $500, while to his daughter Lydia he gives a valuable farm clear of encumbrances. No reason is given for such distinction. No doubt a- satisfactory one existed. Be that as it may, it disposes of the idea that the testator intended equality. Did he intend to exonerate his personal estate from the payment of debts and legacies ? It is not enough to show that he charged them upon a portion of the realty. It must also appear that he intended to exonerate the personalty. It is not the intention to charge the real estate that exempts the personal, for charging the real estate without more, will not have that effect. It must appear, not only that the real estate is intended to be charged, but that' the personal estate is intended-to be exempted : 1 Roper 6991 The rule is thus clearly stated in Breden v. Gilliland, 17 P. F. Smith 34: “ The primary fund for the payment of all legacies, whether charged on land or not, unless special provision is made to the contrary, is the personal estate.” It was formerly held that 6 the intention to exempt the personalty must be expressly declared. Such is not the rule now. It is sufficient if it appear by necessary implication, collected from a sound interpretation of the whole will. I have looked in vain through the will of George Eavenson for any evidence of a clear intent to exonerate his personal estate from the payment of debts and legacies. On the contrary the opposite view may not unfairly be gathered from his direction to pay his debts and funeral expenses out of the first money that should come into the hands of his executors, and the bequest of the residue, after the payment of debts and legacies. These provisions of the Avill are inconsistent with the idea of exempting the personalty. In charging the real estate of Joseph with the payment of debts and legacies, the testator probably intended no more than to make said real estate an auxiliary fund, to be resorted to after the exhaustion of the personal estate, which is the primary fund. In addition, the testator did not intend that any portion of the debts and legacies should fall uppn the real estate devised to Mr. and Mrs. Wood. That was to be “clear of encumbrance.” He provided effectually against such contingency by making Joseph’s real estate an auxiliary fund to the .personal estate.

The amount of personal estate appears to be more than sufficient to pay debts and legacies. After the payment of all debts and legacies the balance of personal estate must be distributed under the residuary clause of the will. In this distribution Joseph Eavenson will be entitled to a credit for any portion of the legacies remaining as a charge upon his land.

The decree is reversed, and the record remitted to the .Orphans’ Court, with directions to proceed to make distribution in accordance with the views contained in this opinion; the costs of this appeal to be paid by the appellee.


author: Mr. Justice Sterrett

text:
    In re Abington School District.
    "Where a new school district results by operation of law from the incorporation of a borough the apportionment and division of the school property must be made in the manner provided by the 11th section of the Act of 11th Apxll 1862, upon the formation of new school districts.
    March 23d 1877.
    Before Agnew, C. J., Mercur, Gordon, Paxson, Woodward and Sterrett, JJ. Sharswood, J., absent.
    Certiorari to the Quarter Sessions of Montgomery county: Of January Term 1877, No. 136.
    Prior to the year 1874, what is now the “ School District of Abington” and the “ School District of Jenkintown” comprised one district, which was then known as the “ School District of Abington.’ While so united the Abington school distinct, in the year 1866, expended a large sum of money in the erection of school buildings.
    On December 8th 1874, by a decree of the Court of Quarter Sessions of said county, the borough of Jenkintown was created out of a portion of the township of Abington, and thereby, as provided by the Act of May 8th 1854, Pamph. L. 617, Purd. Dig. 235, became anew school district under the name of the “School District of Jenkintown.”
    On the 13th of December 1875"the present school district of Abington petitioned the court in the words of the Act of 11th April 1862, Pamph. L. 474, Purd. Dig. 236, pi. 6, to determine, on hearing, whether an undue proportion of the real estate and school houses belonging to the old district were within the bounds of the new district, and if so, how much money shall be paid therefor by the new to the old district; and if any money be on hand, or debt unpaid, or any tax, or other claim, be uncollected after the settlement of all accounts of the current year, that the court shall divide said money or debt amongst the districts in such proportions, and make such order as to uncollected tax or other claims as shall be just, in accordance with the provisions of the Act of Assembly in such case provided.
    The application was referred to a commissioner to take testimony and make report thereon, who'reported the sum of $3350, as due from the school district of Jenkintown to Abington.
    To this report, among others, the following exception was filed:—
    “ The so-called ‘school district of Jenkintown’ is not a separate ■ school district established by decree of court, so as to bring it within the proceedings under the Act of 11th April 1862, sect. 11, according to which said commissioner was appointed.”
    The court, Ross, P. J., sustained the exception, set aside the report of the commissioner, and dismissed the petition, being of the opinion that the provisions of the Act of 1862 did not extend to new school districts formed by the creation of boroughs, and a decree was entered accordingly, which was the error assigned by the Abington school district, which took this appeal.

      B. E. Chain, for the appellants.
    By the Act of 8th May 1854, Pamph. L. 617, provision was made for a system of common school education in all the counties of the state, and every township, borough and city then existing or thereafter to be constituted were to become a school district subject to the act. By the same act all former acts inconsistent therewith were repealed. Thereby all independent districts were abolished, and townships, boroughs and cities were made the districts, and courts chartering boroughs were denied the discretion of permitting them to remain connected with the old district. By the Act of 8th May 1855, Pamph. L. 509, a supplement to the Act of 1854, the Quarter Sessions were authorized upon petition to decree separate and independent school districts, and provision was also made therein for the division of' school property, “ whenever a new district shall be erected according to the provisions of this act.”
    What then are the new districts to which the Act of 1862 refers ? Not the independent districts, for the Act of 1855 provided for them. No new districts are authorized by the Act of 1862, and it is evident the new districts intended by the Act of 1862 are those created by the erection of boroughs, townships and cities which, by the Act of 1854, are made new districts whenever created, and the Act of 1862 therefore was to supply deficiencies in former laws. The legislative definition of new districts in the first section of Act of 17th April 1865, Pamph. L. 62, confirms this view. It provides that “ the clerks of the Courts of Quarter Sessions of the several counties of this Commonwealth shall forward to the superintendent of common schools a certified copy, under seal, of the decree of said court, of their respective counties creating any new school district, whether it be formed by the incorporation of a borough, the creation of a new township, or the formation of an independent district.”

      B. M. Boyer, for appellee.
    The school district of Jenkintown was not created by any procedure to establish the same. It was not established by any decree of court, upon any petition for that purpose, by any persons residing within its limits. It became a school district by operation of law upon the creation of the borough of Jenkintown, and does not fall within that class of new school districts which must account to other districts for the value of the school real estate which happens to fall within their limits.
    Formerly there was no such accountability in any case, and when it was afterwards created it was only applied to such new districts as were directly established by the courts upon the petition of their inhabitants, and never where, as here, the school district was imposed upon the inhabitants without their asking. Appellant in his argument admits that prior to 1862, the school law provided for the apportionment of this description of property only, in the case of independent school districts erected by the court upon the petition of twenty taxables; and that no such provision existed for cases where, as here, the school districts resulted simply from the formation of a new borough or township. But he insists that the Act of 1862 has changed the law in this respect, and for this he quotes from the 11th section of that act. But an analysis of the section will show that the word “new” was not intended to be applied to every new district, without regard to the manner of its creation.
    But the most pregnant argument is contained in the discrimination of the section as between the old and the new district. It will be observed that it makes no provision for any compensation by the old district to the new for any undue proportion of the real estate falling within the bounds of the former. If by operation of law the division ensues, the accountability and apportionment should be reciprocal, or not at all. But if the separation is made upon the petition of the inhabitants of the new district, it is not unfair that the new district, created by its own action, should make the compensation provided for to the old district, which had no part in the act. And for the same reason it might be deemed unjust that the old district, having had no hand in the proceeding, should be' forced to make compensation to the new one in such a case.
    The Act of 1865 discloses no such meaning as that contended for by appellant.

      May 7th 1877.
   Mr. Justice Sterrett

delivered the opinion of the court,

The incorporation of the borough of Jenkintown by the Court of Quarter Sessions, out of a portion of the township of Abington and school district of the same name, resulted, by operation of law, in the formation of the new school district of Jenkintown; and the question presented in this case is, whether it is a new district, within the meaning of the 11th section of the Act of 1862, which provides, inter alia, that where a new school district is formed, the court establishing the same shall determine, on hearing, whether an undue proportion of the real estate and school houses, belonging to the old district or districts, are within the bounds of the new district, and if so, how much money shall be paid therefor by the new to the old district or districts : Pamph. L. 477.

The learned president of the Quarter Sessions, in sustaining the first exception to the report of the commissioner and dismissing the petition of the appellant, held that it was not. In this we think there was error.

By the incorporation of the borough what had before been one, became two separate and distinct school districts — one retaining the old name, and the other assuming the name of the new borough.

While the primary object of the decree was the incorporation of the borough, with all the rights and powers incident thereto, its necessary legal effect was to establish the school district as fully as if application had been made for that purpose: Pamph. L. 1854, p. 617. The act of the court which created the one proprio vigore established the other. It requires, therefore, no strained construction of the act to hold that the new district was established by the court, and if so, the provisions of the act are literally applicable to it.

The object of the several acts, which from time to time have been passed on the subject of education, has been to remedy defects as they were discovered by experience — to provide for a just and equitable distribution of funds raised or invested for educational purposes, and as far as possible to perfect and perpetuate a harmonious system of common school education. To this end, it has been found necessary to provide, among other things, for the alteration and division of school districts, and the creation of new ones, corresponding with rhe municipal subdivisions- of counties, or sometimes independent of them, as the public convenience seems to require; and, in so doing, to provide for an equitable division of funds on hand, or compensation for school property acquired by the expenditure of the common funds. In giving construction to any part of the law, therefore, regard should be had to the entire system, and such parts as are remedial in their object should receive a liberal construction in order that the just and beneficent objects, intended by their enactment, may be promoted.

If, as the appellant alleges and the report of the commissioner shows, the new district has f3350 in value more than' its proportionate share of the school property, it would be manifestly unjust for it to retain the same without making proper compensation for the benefit thus received; and the act in question should be construed as affording an appropriate remedy, unless its application is necessarily restricted, as contended by the appellee, to separate and independent districts established directly by decree of court on petition for that purpose.

The remedial provisions of the 6th section of the Act of May 8th 1855 (Pamph. L. 510), are evidently restricted to such districts, but there is nothing in the Act of 1862 to indicate that it was not intended to enlarge the remedy and embrace other new districts. Independent districts were already provided for, and as the incorporation of every new borough by the court, ipso facto created a new school district, provision for the equitable adjustment of claims against them was needed. Moreover, the language employed, viz., “ where a new school district is formed,” &c., applies fully as well to new districts established by the incorporation of boroughs and erection of townships, as it does to independent districts created by the court, according to the provisions of the Act of 1855. There is nothing in the language by which its operation can fairly be restricted to districts of the latter class. Whenever they are mentioned, they are designated as independent districts.

The 1st section of the Act of April 17th 1865, requiring the clerks of courts of Quarter Sessions to forward to the superintendent of common schools a certified copy of each decree of court, “ creating any new school district, whether it be by the incorporation of a borough, the creation of a mew township, or the formation of an independent district,” furnishes some indication as to the legislative meaning of the term new districts, and lends some force to the construction we have adopted.

We are of opinion, therefore, that the new districts, intended to be provided for by the section of the act under consideration, include those created by the incorporation of boroughs and erection of new townships by the court. 1

. Inasmuch as the court evidently dismissed - the petition for supposed want of jurisdiction, without fully considering the other exceptions, the case should go back for further hearing.

The order of the Court of Quarter Sessions, sustaining the exceptions and dismissing the petition, is therefore reversed and set aside, and procedendo awarded.


author: Per Curiam.

text:
    Edwards versus Barnard.
    Testator, after several other legacies and devises, gave to his nephew certain lands to hold to him, his heirs and assigns, and a subsequent clause of the will provided “that if any of the said legatees or devisees shall die before me, leaving children, the legacy or devise shall go to such children, and if any of them shall die after me without children, and without having bequeathed the legacy or devise given to him or her, the same shall go to his or her next of kin, who are at the same time lineal descendants of my father.” Held, that the will gave the nephew an absolute estate in fee.
    March 24th 1877.
    Before Agnew, C. J., Mercur, Gordon, Paxson, Woodward and Sterrett, JJ. Sharswood, J., absent.
    Error to the Common Pleas of Delaware county: Of January-Term 1877, No. 156.
    Amicable action of covenant by Enos P. Barnard against Milton Edwards, wherein a case was stated for the opinion of the court, of which the following are the substantial portions, in so far as they relate to the question involved in this case.
    Jacob Painter died in November 1876, leaving a will, which contained, inter alia, the following clauses:—
    “Item 2. I give to my nephew, Enos P. Barnard, son of my deceased sister Sarah, all the land lying southward of the land devised to my sister Ann, and west of the road leading from Lima to Sycamore Mills, to hold to him, his heirs and assigns. The lot of nine acres and fifty-six perches thereof, formerly of Benjamin P. Robinson, to be subject to the payment of thirty dollars annually for the maintenance and improvenient of my burial lot in Cumberland Cemetery.
    “Item 3. I give to my niece, Sidney P. Barnard, twenty thousand dollars, the same to be held in trust for her by a trustee •to be named by her and approved by the court, the said trustee to pay her the interest thereon, semi-annually during her natural life. The said Sidney P. Barnard is to have the power of disposing by will of the said twenty thousand dollars, and in event of her not so disposing of the same, then I direct that the said sum shall be divided equally amongst her next of kin, who are at the same time lineal descendants of my father.”
    “ Item 7. All the residue of my estate I give to my nephews and nieces, counting the said Harry B. Jones as one, and excluding the before-mentioned Sidney P. Barnard and Enos P. Barnard.
    “Provided; That if any of the said legatees or devisees shall die before me, leaving children, the legacy or devise shall go to such children, and if any of them shall die after me, without children and without having bequeathed. the legacy or devise given to him or her, the same shall go to his or her next of kin, who are at the same time lineal descendants of my father, except as to the residue, the deceased one or ones’ share of which shall in such case go to the surviving residuary legatees.”
    Various legacies were given and other devises were also made therein to other relatives of the testator.
    By an agreement in writing under seal, Enos P. Barnard agreed to sell and convey to Milton Edwards, by good and sufficient title in fee clear of all encumbrances, all that part of the testator’s lands devised to said Barnard, consisting of about. 180 acres, excepting a lot of 9 acres and 56 perches charged with the annual payment of thirty dollars to. be applied to the cemetery lot, and it was submitted to the court to determine whether the devisee had such an estate in the land as would enable him to convey an indefeasible fee to said Edwards.
    The court did not file an opinion, but entered judgment pro forma for the plaintiff Barnard, which was the error assigned.

      H. C. Howard, for plaintiff in error.
    Barnard has a fee subject to be defeated by his dying without children and without having devised the lands; in which case the limitation over would take effect as an executory devise and be good unless the power of disposition here conferred is repugnant to any limitation over. There is, however, a broad distinction between an absolute power of disposition and a limited one, and when its power is limited, as here, to a simple right to dispose of the estate by will, which cannot take effect until the death of the first taker, there is nothing in the limitation over repugnant to the enjoyment of the estate by the first taker as fully as the testator intended, and the rule fails, and cannot be invoked to give Barnard an indefeasible title. There is no case in Pennsylvania which rules that a mere naked power of testamentary disposition is sufficient to destroy a limitation over which would be otherwise good as an executory devise where such devise was the manifest intent of the testator.

      Wm. M. Hayes, for defendant in error.
    The proviso in the 7th item has no reference to the second item. If the testator had not intended a fee simple to be vested in Enos he would not have used the language “to hold to him, his heirs and assigns,” and had he proposed any limitation or proviso as to the devise to him he would have made it in the item itself. But even if the proviso does apply it does not take from Enos the fee, as the will gives him absolute control over the subject of the devise, power to will it without limiting him as to where he shall will it, and he has therefore an indefeasible estate: Reifsnyder v. Hunter, 7 Harris 41; Walker and Wife v. Vincent, Id. 369.
    In the construction of wills, the law in doubtful c^ses leans in favor of an absolute rather than a defeasible estate; of a vested rather than a contingent one; of the primary rather than the secondary intent; of the first rather than the second taker as the principal object of the testator’s bounty, and of a distribution as nearly conformed to the general rules of inheritance as possible: Amelia Smith’s Appeal, 11 Harris 9; Estate of Mary Biddle, 4 Casey 59; Naglee’s Appeal, 9 Id. 89 ; McKee v. McKinley, Id. 92; Hitchcock v. Hitchcock, 11 Id. 393; Schoonmaker v. Stockton’s Adm’rs, 1 Wright 461; Mütter’s Estate, 2 Id. 314; Musselman’s Estate, 3 Id. 469 ; Fulton v. Fulton, 2 Grant’s Cases 28 ; Shutt v. Rambo, 7 P. F. Smith 149 ; Jackson et al. v. Coleman, 2 Johns. 391; 4 Kent Com. 270, 319; Jackson v. Bull, 10 Johns. 19; Jackson ex dem. Brewster v. Bull, Ibid.; Jackson ex dem. Livingston v. Robins, 15 Id. 169 ; Jackson v. Robins, 16 Id. 537; Allen et ux. v. White, 16 Ala. 181; 2 Redfield on Wills 277, sect. 33.
    A devise of the estate generally of indefinitely, with a power of disposition over, carries a fee: 4 Kent Com. 319; 2 Redfield on Wills 277, sect. 33; Ide v. Ide, 5 Mass. 500.
    March 30th 1877,
   The judgment of the Supreme Court was entered,

Per Curiam.

The devise to Enos P. Barnard was expressly to him, his heirs and assigns. This clearly gave him full power over the estate in his lifetime. He could therefore sell and convey it at pleasure, there being no legal restriction upon his power. The proviso which it is supposed operates upon his estate in fact imposes no restrictions upon the power of alienation, but is simply an attempt on the part of the testator to provide for a contingency of dying without children, to enable Enos to devise the estate; a power which he would possess by the very nature of his absolute estate in fee. So in case he died without children, and without making a will; the testator gave the estate to his next of kin of the blood of the testator’s father. This was merely an attempt to regulate the descent when cast. There was no devise over to any one, as the object of the testator’s bounty, ■ evincing a design to create an executory devise or a conditional fee. So far as the devise to Enos is involved, the proviso was simply a work of supererogation, the fee given to him being absolute and unrestricted, and no other person being intended to take in the event of his being, childless. His power to alien in his lifetime was therefore not restricted either at law or by the will.

Judgment afiirmed.


text:
    Campbell versus The Commonwealth.
    1. Where upon a motion to quash an array of jurors it is alleged that the jury commissioners were not sworn at the time they selected the names of the jurors, and the court below finds as a matter of fact that they were sworn, this court will not disturb this finding where the evidence upon which the finding was had fails to disclose any manifest error.
    2. To show the motive for murder and to explain the prisoner’s connection therewith, it is competent for the Commonwealth to give evidence of the purposes, practices and objects of a society, organized for the commission of crime, and t(5 prove that those who committed the murder were members of said organization, and-that through its instrumentality it was committed.
    3. A detective who joins a criminal organization for the purpose of exposing it, and bringing criminals to punishment, and honestly carries out that design, is not an accessory before the fact, although he may have encouraged and counselled parties who were about to commit crime, if in so doing he intended that they should be discovered and punished, and his testimony, therefore, is not to be treated as that of an infamous witness.
    4. Under the 44th sect, of the Criminal Procedure Act, where one who is strictly an accessory before the fact is charged as a principal in an indictment, it is not necessary to state therein the manner in which or the means by which he accomplished the murder; it is sufficient if the charge be stated with such certainty that he may know what he is called upon to answer.
    March 26th 1877.
    Before Agnew, C. J., Mercur, Gordon, Paxson, Woodward and Sterrett, JJ. Sharswood, J., absent.
    Error to the Oyer and Terminer of Carbon county: Of January Term 1877, No. 11.
    Indictment of Alexander Campbell, who was jointly indicted with Hugh McGehan and James Carroll for the murder of John P. Jones.
    Carroll and McGehan were tried and convicted for the murder of Benjamin F. Yost in Schuylkill county. (See report of case ante, p. 107. j
    The indictment read as follows :—
    “ In the Court of Oyer and Terminer and General Jail Delivery for the county of Carbon. March Term 1876.
    “ County of Carbon, ss :—

      “ The grand inquest of the Commonwealth of Pennsylvania, inquiring for the county of Carbon, upon' their respective oaths and affirmations do present that Alexander Campbell, Hugh McGehan and James Carroll, late of the said county, yeomen, on the 3d day of September A. D. 1875, at the county aforesaid and within the jurisdiction of this court, with force and arms, &c., in and upon the body of one John P. Jones, in the peace of God and the said Commonwealth then and there being, feloniously, wilfully and of their malice aforethought, did make an assault, and him, the said John P. Jones, then and there feloniously, wilfully and of their malice aforethought, did kill and murder, contrary, &c., &c.”

      Campbell moved to quash this indictment for the following reasons :—
    1. That it does not set forth the manner of the death of John P. Jones, or the means by which the killing was accomplished.

      2. That the names which were put into the wheel from which the grand jury was drawn, which found the present indictment against the prisoner, were selected by the jury commissioners before they were sworn.
    The Commonwealth demurred to the sufficiency of the matters contained in the first reason, and the court, Dreher, P. J., sustained the demurrer on the ground that since the Act of 31st March 1860, sect. 20, Purd. Dig. 380, pi. 21, it is not necessary to set forth in the indictment the manner in which or the means by which the death of the deceased was caused.
    The Commonwealth traversed the matters of fact alleged in the second reason and averred that the jury commissioners were sworn before they selected the names which were put in the wheel from which the grand jury was drawn.
    It was agreed by counsel that upon this motion to quash, the evidence taken January 18th 1876, in the case of the Commonwealth v. Michael Doyle, on the motion of said Michael Doyle to quash the array of petit jurors, should be given in evidence in the present case, and treated and considered in this present motion to quash the indictment, and for all other purposes in this case, so far as the same would be legal evidence, the same as if formally offered and heard at this time.
    From this evidence it appeared that the jury commissioners and sheriff were sworn on the 17th day of November 1875, arid the oath was filed in the prothonotary’s office on the same day. A certified list of the names was filed in the prothonotary’s office. In the certificate the commissioners said they selected and placed the names in the wheel on the 16th, 17th, 18th, 19th and 20th days of November 1875.
    James A. Dinkey, clerk to the jury commissioners, testified that the commissioners met on the 16th, but did nothing in selecting the names of persons to fill the wheel. That he wrote the oath for the commissioners and sheriff, and ruled the paper for the list to be filed in the prothonotary’s office, and the commissioners then adjourned to meet the next day, the 17th, on which day they again met and proceeded with the business of selecting names, and on the 19th and 20th they placed the same in the wheel.
    Sheriff Breneiser also testified he thought the oath was administered to him and the commissioners together, and that it was in the afternoon of the 17 th.
    ■ The court overruled the motion to quash the in dictment, saying, “ from this testimony of the sheriff and Dinkey, as to the time of commencing work and the manner of selecting the names, we are satisfied that no actual selection of names was made until after the oath was administered and subscribed, and that all that was done by the commissioners before the oath was administered and subscribed was but preliminary to the selecting and placing the names in the wheel.”
    The defendant also moved to quash the array of petit jurors for the following reasons:—
    1. That it did not appear from the record that the jurors were selected by persons having legal authority so to do.
    2. That the persons who selected the names which were put in the wheel, from which the jury were to be drawn, made such selections without having been sworn or affirmed according to law.
    The court likewise overruled this motion, saying that the record showed that the jurors were selected by the proper authorities, to wit, the jury commissioners, and that they were summoned by the sheriff, as appeared by the venire, and that the second reason was incorrect in the allegation of fact, as the jury commissioners were sworn before they selected the names and placed them in the wheel, as appeared in the evidence produced on the motion to quash the indictment.
    The evidence at the trial disclosed the following facts : John P. Jones, who was a boss at a mine near Lansford, in Carbon county, was murdered on the 3d of September 1875 by two unknown men. It subsequently appeared that these two meñ were Edward Kelly and Michael J. Doyle, and that they had come by special arrangement with, and at the instance of, the defendant Campbell, for the express purpose of committing this murder. They were harbored in Campbell’s house, and went from there at different times in quest of Jones. Campbell also supplied them both with pistols and counselled with them as to the manner and time for the commission of the crime and the direction they should take to escape.
    The Commonwealth called as witnesses, James Kerrigan, who was an accomplice in the crime and who escorted Kelly and Doyle from Tamaqua to Campbell’s, and accompanied them in their search for Jones, but who was not present at the killing, and James McParlan, a detective, who was sent to the coal regions for the purpose of investigating the character of the organization of the order called “ Molly Maguires,” to secure the apprehension and conviction of some of its members, and who joined it with that intent. The purpose of the evidence given by these witnesses was to show the motive for the crime, and the direct connection of the “Molly Maguire” organization in procuring the men, through Campbell, to murder Jones;
    The evidence, in substance, was that there ^is an organization called “Molly Maguires,” in Schuylkill, Carbon and Luzerne counties; that it is subdivided into what are called divisions; at the head of each division is a body-master; that Alexander Campbell was at the head of one of these divisions at the time of the murder of Yost and of John P. Jones; that according to the rules and practices of the society, whenever it was desired to murder a particular person the body-master of one division calls on the body-master of another division for men to commit the murder; that he usually selects men who- are strangers to the man that is to be murdered, and to the place where the murder is to be committed; that there was a division at Mt. Laffee and at Tamaqua; that Campbell, as body-master at Storm Hill or-Lansford, in order to carry out the bargain to kill Jones as a return for the murder of Yost drew on , the Mt. Laffee division for two men. The two men furnished by sthe Mt. Laffee division were Kelly and Doyle; that rhere was also another division at Shenandoah, and that Alexander Campbell had made arrangements at one time through the Tamaqua division to have the Shenandoah division furnish the men to kill Jones; that all of these divisions acted together and are represented by counties ; that these counties are represented in the state; that the state is represented in Ireland, Scotland and England by a board called the Board of Erin; that as applied-to Luzerne, Schuylkill and Carbon counties, they are organized bands for the commission of crime, acting together and in concert, and that they so understand it by the rules of the organization.
    The defendant submitted the following point: That if James' McParlan, while acting as a detective, incited, encouraged or coun- • selled others to commit crimes, he was an accessory before the fact in the commission of those crimes, even although he may have notified others that the crimes were about to be committed.
    The court answered as follows:—
    “ This would be so, if he so incited, encouraged or counselled others, with a felonious intent, that is, if he intended that the crimes should be committed; but on the other hand, if he intended and continued in that intention, from the time he came to the coal regions as a detective, to ferret out and make known the crimes and secret frauds of such others, in order to their arrest and punishment, then he is not to be regarded as an accessory before the fact.”
    And in their general charge said: “James McParlan has- been acting in the capacity of a detective. He stands' in a different light from Kerrigan. Where criminals- band themselves together under an organization, for the purpose of committing crime, it is justifiable in the government and society to employ detectives to get into their organization for the purpose of exposing and bringing to punishment the offenders. It is alleged, on the part of the Commonwealth in this case, that there was an organization existing in the coal regions, embracing the counties of Carbon, Schuylkill and others, having for its 'purpose the commission of crime, and that the members were bound together by secrecy;. and that in order to destroy that organization, McParlan was sent as a detective, to get into that organization, for the purpose of exposing it. Well, if there was an organization, criminal in its character, then society would be justifiable in employing a detective to enter the order and expose it. We, therefore, say to you, that if McParlan came into the coal region as a detective, for the purpose of getting into the organization known as, or called, the ‘ Molly Maguires,’ and if he actually did join it, and gave information to the persons who employed him, and to the officers of the law, as to crimes committed, or that were about to be committed, and he continued there honestly, in that capacity, for the purpose of ferreting out and exposing and bringing to punishment criminals, he was not an accessory before the fact to those crimes, nor was he a co-conspirator in the eye of the law, so long as he honestly carried out the original purpose for which he entered there, and although he may have encouraged and counselled parties who were about to commit crime, if, in that, his intention was that they should be discovered, arrested and punished for such offences. Therefore, if you find that McParlan came here for that purpose, and that in good faith he was such detective, continuing to remain such while he kept with the organization, then he does not stand in the light of an infamous witness, and, therefore, his testimony is to be treated just as you treat the testimony of every-other witness who comes to the stand — that is to say, give to it such weight and consideration in your deliberations as you believe it is entitled to in the particular case.”
    In their general charge, the court also said:—
    “ The moral and legal guilt of an accessory before the fact is the same as that of the principal offender. In the eye of God and in the eye of man, he who procures, counsels or commands another to commit a crime is just as guilty as the person who strikes the deadly blow or commits the crime, of whatever character it may be; and now, under our statute, all accessories before the fact to any felony are to be indicted, tried, convicted, punished, the same as if they were the principal felons; and for that reason this present indictment is drawn against Alexander Campbell, Carroll and McGehan, as if they had actually fired the pistol that killed John P. Jones. The law of this state to-day directs that the indictment shall be drawn in this form, and therefore the indictment is good, and Alexander Campbell, if the evidence satisfies you that he counselled, procured or commanded Doyle and Kelly to kill John P. Jones, may be convicted under this indictment.
    “ The allegation or charge, on the part of the Commonwealth, is that Campbell, Carroll and McGehan procured, counselled or commanded Michael Doyle and Edward Kelly to kill John P. Jones, and we have already said to you that if the evidence satisfies your minds beyond a reasonable doubt that Alexander Campbell alone, or together with Carroll and McGehan, or either of them, did thus procure, counsel or command Doyle and Kelly, or either of them, to kill Jones, and Doyle and Kelly, in pursuance of that procurement, counselling or command on the part of Campbell, actually did kill John P. Jones, then Alexander Campbell is equally guilty with Doyle and Kelly, or either of them, if but one struck the fatal blow. Your inquiry, therefore, will be directed to the question of the killing of Jones, and whether Doyle and Kelly, or either of them, killed him by the procurement, counsel or command of Campbell.”
    The jury rendered a verdict of murder in the first degree, and the prisoners were sentenced to be hung.
    Campbell took this writ, and alleged that the court erred,
    1. In not quáshing the array of grand and petit jurors.
    2. In not quashing the indictment.
    8. In permitting the Commonwealth to give evidence as to the purposes, practices and objects of a society called “The Ancient Order of Hibernians,” or “Molly Maguires.”
    4. In instructing the jury that if they believed that James McParlan was acting as a detective, he was not an accessory before the fact to the commission of crime, although he counselled and encouraged the commission of crime, if he intended to have its perpetrators arrested and punished.
    5. In instructing the jury that the defendant could be convicted under the bill of indictment and the evidence in the case.

      Edward J. Fox and Daniel Kalbfus, for plaintiff in error.
    By the Acts of 14th of April 1834, Purd. Dig. 830, and of the 10th of April 1867, Purd. Dig. 829, certain duties are prescribed for jury commissioners, among others, that they shall take an oath before selecting and drawing jurors. The object of the acts was to secure fair and impartial men as jurors, and in the inflamed condition of the public mind in the community where this trial was held the action of the jury commissioners here complained of was a flagrant violation of these laws..
    The Commonwealth did not offer to prove that the defendant in this case had conspired with others to commit crimes, nor that the purposes and objects of the society known as the “ Molly Maguires” were known to Alexander Campbell. McParlan’s testimony was that, although the organization called the “Ancient Order of Hibernians” had several thousand members in the counties of Schuylkill, Luzerne and Carbon, yet that a comparatively small number of persons, probably less then fifty, had any knowledge that its purposes and objects were criminal in their character; and yet from that testimony the jury were permitted to infer that Campbell was knowingly connected with an organization of criminal character, without proof of the knowledge of the fact on his part.
    The indictment charges that McGrehan, Carroll and Campbell murdered John P. Jones. The evidence in the trial was that Michael J. Doyle, Edward Kelly and James Kerrigan were present at the murder of Jones, who was shot by Doyle and Kelly, or one of them. Neither Campbell, Carroll nor McGehan were present at the murder, and the allegation of the Commonwealth was that Campbell procured and incited Doyle, Kelly and Kerrigan to shoot Jones, and that he was, therefore, an accessory before the fact to the murder.
    The constitution of Pennsylvania provides, in section 9, article 1, that in all criminal prosecutions the accused “ hath a right to demand the nature and cause of the accusation against him.” It cannot be said that this indictment disclosed the nature and cause of the accusation against him. It may, perhaps, be truly said that it revealed the nature, of the accusation against him, in so far that it charged him with the murder of John P. Jones, but it certainly did not disclose to him the cause of the accusation against him. The cause of the accusation was as alleged by the Commonwealth that he procured and incited Doyle, Kelly and Kerrigan to commit the crime; but in what manner does the indictment notify Campbell that he is to meet such a charge ?
    The principal witness against the defendant was James Kerrigan, one of the principals in the murder. To corroborate him chiefly, James McParlan was called. He was one of Pinkerton’s detectives, and was employed to obtain information as to the crimes of the Molly Maguires, and for that purpose he became a member of the order, and remained in the coal region for a long time. He testified that while thus engaged, he was not only cognizant of crimes about to be committed, but that he actually encouraged Molly Maguires to commit crimes, expecting to be able to frustrate their intentions and to bring them to justice. He ivas even cognizant of the fact that Jones was about to be murdered, and that men had been selected and sent to murder him. He also testified that he thought the measures he had adopted would prevent the accomplishment of their murderous designs; but the court in substance said to the jury, that if they believed he was acting as a detective, he was not an accessory before the fact to the commission of a crime, even though he counselled and encouraged its commission.
    Here is a man in the company of men who have criminal designs. They have every reason 'to believe him to be one of themselves, and that he is ready to aid and abet them in their murderous designs. He counsels and encourages them to commit an act of murder, intending, in his own mind, to frustrate their designs. Without this encouragement, it is safe to assume, they would not have attempted the murder. His plans to secure their victim’s safety fail, and he is murdered. Why is not the-detective an accessory before the fact ? His mental intentions may have been good enough, but his acts and declarations to the conspirators were the immediate cause which produced the death of the object of their hate.

      P. R. Siewers, District Attorney, Allen Craig, Charles Albright and P. W. Pughes, for the Commonwealth.
    The evidence shows that the jurors were selected from among the qualified electors of the county, that they were selected alternately, and that before their names were written on slips of paper or put into the wheel, the jury commissioners and the sheriff were sworn “ according to law,” before the prothonotary, who certifies to this fact. The cases of Chase v. The Commonwealth, 2 Weekly Notes 17, and Rolland and Johnson v. The Commonwealth, 1 Norris 306, abundantly sustain the ruling of the court below.
    It was important, after showing Campbell’s connection with the society of the “ Molly Maguires,” and his knowledge of its purposes and practices, to show what they were, through and by which the murder of Jones was secured. Nothing but Campbell’s knowledge of these practices and purposes could have enabled him to procure two young men, entire strangers to Jones and without a grudge to him, to kill him in cold blood. It was through the power of this organization that men were selected belonging to it, who had never seen Jones, and yet could be induced without any reward or hope of gain to slay an innocent man, simply to gratify the revenge of a fellow member.
    A detective who enters into communication with criminals, without any felonious intent, but for the purpose of discovering and making known their secret designs and crimes, and acts throughout with this original purpose, is not to bb regarded as an accomplice; the question whether he was, is one of fact for the jury: State v. McKean, 36 Iowa 343; also 1 Greenl. on Evid., sect. 382.
    Campbell could be in no doubt as to the nature and cause of the accusation against him': Cathcart v. Commonwealth, 1 Wright 109; Commonwealth v. Twitchell, 1 Brewster 610; sect. 20, Criminal Procedure Act, Purd. Dig. 380, pi. 21; Bishop on Criminal Procedure, vol. 2, sect. 4; Wharton’s Criminal Law, vol. 1, sect. 742; Commonwealth v. Keenan, 17 P. F. Smith 203; Young v. Commonwealth, 8 Bush (Kv.) 366 : Commonwealth v. Ramsey, 1 Brewster 422.
    May 7th 1877.
   Mr. Justice Sterrett

delivered the opinion of the court,

The plaintiff in error was jointly indicted with McGehan and Carroll in the short form, authorized by the Criminal Procedure Act, for the murder of John P. Jones, and when called for trial he moved to quash the array, for the reasons, 1. “ That it does not appear from the record that the jurors were selected by persons having authority to do so2. “ That the persons Avho selected the names which were put in the wheel from which the jury were to be drawn, made such selections without having been sworn according to law.” These allegations were traversed by the Commonwealth, and the onus of sustaining them, as to matters of fact, was on the prisoner. It was agreed that the testimony taken on a similar motion, in the case of the Commonwealth v. Michael Doyle, should be considered and treated as evidence in this case, so far as the same was competent and relevant. With this and other evidence before them, including the order of the Court of Common Pleas for the selection of persons to serve as jurors, the official oaths of the sheriff and jury commissioners, the venire, &c., the court overruled the motion; and in this it is alleged there was error.

It appears from the official oath filed in the prothonotary’s office on the 17th day of November 1875, that they -were duly sworn on that day, but it is contended that the oath was not taken until after they had commenced to select the persons whose names were to be placed in the wheel. The commissioners’ clerk testified that they met on the 16th, but no jurors were selected on that day; that after preparing the official oath and other papers they adjourned until the following day', when they met between eight and eleven o’clock, he thinks, and proceeded Avith the business. The testimony of Sheriff Breneiser was offered for the purpose of showing that the official oath Avas not administered until the afternoon of the 17th, but his recollection as to the time was someAvhat indistinct and uncertain. The jury commissioners, doubtless, could have given definite and satisfactory testimony as to whether they were sworn before' or after they actually selected some of the names, but they were not called. It appeared, hoAvever, that they commenced making-the tickets or ballots and placing them in a tin box, used for the purpose, on the 19th or 20th; and this may be fairly regarded as 'the final passing upon or selection of the names. After this Avas completed on tb e 20th, the names Avere taken from the box and placed in the jury wheel in presence of the sheriff.

The court, in passing upon the evidence before them, came to the conclusion that the allegations of fact in support of the motion were not sustained; and found that “ the jury commissioners were sworn before they selected the names and placed them in the Avheel.” The learned judge, after referring to the testimony of the sheriff and the clerk to the jury commissioners, says, “ Taking all that the sheriff says and all that Dinkey says as to the time of commencing -work and the manner of selecting the names, Ave are satisfied that no actual selection of names AA'as made until the oath Avas administered and subscribed, and that all that was done by the commissioners before the oath was administered and subscribed was but preliminary to selecting and placing the names in the wheel.”

With all the evidence, documentary and oral, before the court, the fact was found as here stated; and the testimony being addressed to the court, their finding as to matters of fact should not be disturbed, unless it appears to be manifestly wrong. An examination of the testimony, returned with the record, fails to satisfy us that there was any error, in the finding of the court, or in denying the motion to quash the array.

The refusal of the court to quash the indictment is also assigned for error. The reasons in support of the motion are, 1. “ That it does, not set forth the manner of the death of John P. Jones, or the means by which the killing was accomplished.” 2. “ That the names which were put into the wheel from which the grand jury was drawn, which found the present indictment against the prisoner, were selected by the jury commissioners before they were sworn.” The first reason is not sustained, but it may be considered in connection with the fifth assignment of error. The last reason corresponds with the second in support of the motion to quash the array and no further notice.

The third assignment of error is in permitting the Commonwealth to give evidence of the purposes,'practices and objects of a society called the “ Ancient Order of Hibernians,” or “ Molly Maguires.” A careful examination of the testimony fully satisfies us that the evidence complained of was necessary and proper to give the jury a full and fair understanding of the circumstances attending the murder of Jones, as claimed by the Commonwealth. The theory of the prosecution was that the deceased had become obnoxious to members of the division or association of which the prisoner was an active member, and that it was arranged by him and others that he should be killed; but it was considered unsafe for the offended parties or any of the men about the mines, of which Jones was superintendent, to undertake the work, for the reason that such a course would be more likely to lead to detection ; and it was therefore arranged that men for the purpose should be procured, through the instrumentality of the “ Molly Maguire” organization, from some division of the society whose members were unknown to Jones ; that, according to the regulations and practices of the order, such a mode of procedure was not unusual or extraordinary ; that such services were rendered “ on a trade,” as it was termed, by members of one division to those of another in return for similar services ; that in this way, through these instrumentalities, the defendant and others procured Doyle, Kelly and Kerrigan to enter upon the work of killing Jones, in the prosecution of which they were counselled and encouraged by him and those with whom he was jointly indicted.

Such, in substance, was the theory of the Commonwealth; and the learped judge instructed the jury that if the evidence satisfied them “ beyond a reasonable doubt that Alexander Campbell alone, or together with Carroll and McGehan, or either of them, did thus procure Doyle and Kelly, or either of them, to kill Jones, and Doyle and Kelly, in pursuance of that procurement, counselling or command on the part of Campbell, actually did kill Jones, then Campbell is equally guilty with Doyle and Kelly, or either of them, if but one struck the fatal blow'.” In considering the questions thus submitted to them, and especially whether the killing was by procurement of Campbell, it was very important that the jury should be fully informed of all the circumstances that would tend to explain his connection with the transaction, and the motives by which the parties to it were actuated. Without this it would have been difficult, if not impossible, for them to understand how Campbell was able to procure the assassination of Jones by young men who were entire strangers to him, and to whom personally he ■ had never given any cause of offence; what motive he had in doing so, and the reasons which influenced them in consenting to waylay and kill one who, so far as they were personally concerned, was an unoffending stranger. The evidence complained of tended to shed a flood of light on these and other mat-* ters, which without it would have been .dark and almost impenetrable. The circumstances of the case were indeed peculiar and extraordinary, and without proper explanatory testimony could not have been fully and fairly comprehended by the jury. As a general rule, every transaction can be best understood when viewed in the light of all the surrounding circumstances ; and this was especially true in this case. It was for these purposes that the evidence was admitted, and very properly so, we think. If the labyrinths of crime are not explored justice will be often defrauded.

It is claimed in the fourth assignment that the court erred in instructing the jury that if they believed that James McParlan was acting as a detective, he was not an accessory before the fact, although he counselled and encouraged the commission of the crime, if he intended to have its perpetrators arrested and punished. In the general charge, the court, after referring to the theory of the Commonwealth, as to the existence of a secret organization for the purpose of committing crime, and the right of the government in such cases to protect itself by employing detectives to enter the organization, expose its criminal acts ■ and bring the guilty to punishment, instructed the jury that if McParlan was employed as a detective, and joined the order for the purpose of ferreting out and exposing and bringing criminals to punishment, he was not an accessory or co-conspirator in the eye of the law,” so long as he honestly carried out the original purpose for which he entered the organization, and, although he may have encouraged and counselled parties who were about to commit crime, if, in so doing, his intention was that they should be discovered, arrested and punished.

The instruction thus given on this subject, and more fully explained in answer to several of the points submitted, is sustained by reason as well as authority. In The State v. McKean, 86 Iowa 343, it was held that a detective who enters into communication with criminals, without any felonious intent, but for the purpose of discovering and making known their secret designs and crimes, and acts throughout with this original purpose, is not to be regarded as an accomplice ; and that the question is one of fact for the jury. To the samé effect is 1 Greenleaf on Ev., sect. 382, in which it is stated that the rule as to accomplices does not apply to those who, under the direction of the public authorities,.continue “to act with their guilty confederates until the matter can be so far advanced and matured as to insure their conviction and punishmentand though a great degree of objection or disfavor may attach to such, they are not to be regarded as accomplices.

In view of the testimony before the jury, it was, properly left to them to say whether or not McPai’lan acted throughout in good fáith as a detective, with an eye single to the discovery and punishment of organized crime, and without any intention on his part of becoming, in any way, a party to the commission of crime. The instructions on this subject were so full, clear and carefully guarded that the jury could not fail to understand them ; and we discover in them no just ground of complaint. .

The fifth and last assignment of error is, “ instructing the jury that the defendant could be convicted under the indictment and evidence in the case.” It is claimed, that while the indictment charges Campbell, McGehan and Carroll with the murder, the evidence shows- that Doyle, Kelly and Kerrigan were present and concerned in its commission; that Jones was'shot by Doyle and Kelly, or one of them, and that neither of the three indicted were present, and therefore they were at most only accessories before the fact to the murder, and should have been so indicted; that by charging them as principals, the indictment furnished the defendant with no information whatever as to the nature and cause of the accusation against him; and it is thus claimed that the evidence did not sustain the indictment and that the court should have so instructed the jury. This position is not tenable under the Criminal Procedure Act, the 44th section of which provides, “ If any person shall become an accessory before the fact to any felony * * * such person may be indicted, tried and convicted and punished in all respects as if he were a principal felon.” As to the form of the indictment, the 20th section provides that, “ in any indictment for murder or manslaughter it shall not be necessary to set forth the manner in which or the means by which the death of the deceased was caused, but it shall be sufficient in every indictment for murder to charge that the defendant did feloniously, wilfully and of his malice aforethought kill and murder the deceased.”

Under these sections and the facts of the case, the indictment, in it» present form, was fully authorized, and the court committed no error in saying that, under it ánd the evidence, the defendant might be convicted if they found that he procured the murder of the deceased. The very language of the section, than which nothing can be plainer or more explicit, is, that the accessory may be indicted, tried and convicted and punished, in all respects, as if he were a principal felon.

The question of the sufficiency of the indictment, in the short form authorized by the code, was before this court in Cathcart v.Commonwealth, 1 Wright 108, and it was held to be good, and not in conflict with the constitutional guaranty that in all criminal. prosecutions the accused shall have a right to be informed of the “nature and cause of the accusation against him.” Mr. Justice Strong, in delivering the opinion of the court, says that “ an indictment must exhibit the nature and cause of the accusation, that it must set out the crime laid to the charge of the accused; but the mode in which the crime was committed, the instrument with which the murder was effected, whether it was held in the right hand or the left, whether the wound was inflicted on the head or the body, are entirely apart from the nature and cause of the accusation.” So it may be said of an indictment in which one, who in point of fact was strictly an accessory before the fact, is charged as a principal. It is not necessary to state the means or agency by which he accomplished the murder, whether it was done by his own hand or the hand of another employed-by him for the purpose. It is sufficient if the charge be stated with such certainty that he may know what he is called upon to answer. The defendant in this ease could not fail to know that the crime with which he was charged was the murder of John P. Jones; and whether he was present and actively participated in the commission of it, or was only present, encouraging and sustaining those who did commit it, or whether, being absent himself, he procured others to do the deed, he must have known that, in either case, he was amenable to the charge. If he had been an accessory at the fact, he would have been properly indicted as principal without the aid of the code, and the technical distinction between an accessory before the fact and an accessory at the fact, can make no difference, since the code now authorizes the former to be indicted, tried and punished as a principal.

In some of our sister states statutes in some respects similar to our own are in force. That of Illinois provides that an accessory, before the fact shall be deemed and considered a principal and punished accordingly. In Baxter v. The People, 2 Gilman 578, an accessory before the fact was charged in the indictment as a principal, and it was objected in his behalf that there was a variance between the proof and the allegations. The court remarked that this was true in one sense, just as it would be in an indictment for murder against an accessory at the fact; but it was held that the indictment was in proper form under the statute. In California, also, under the statute making an accessory before the fact a principal and providing that he may be punished accordingly, it was held that he should be indicted as though he had personally committed the offence: The People v. Davidson, 5 Cal. 134.

An examination of the whole case satisfies us that a fair and impartial trial was accorded to the prisoner; the case was submitted by the learned judge in a very clear and able charge and upon evidence which fully justified the jury in rendering a verdict of guilty, and nothing has been shown that would justify us in disturbing the judgment.

The judgment of the Court of Oyer and Terminer is affirmed, and it is ordered that the record be remitted for the pupose of carrying the sentence into execution.