author: Mr. Justice Gordon

text:
    Mahanoy Township versus Scholly.
    1. The Act of 19th of January.1860, which directs that the supervisor of the township shall give to the lowest and best bidder the contract for making and repairing the roads therein, does not relieve the township of liability for an accident caused by the unsafe condition of its roads.
    2. Painter v. Pittsburgh, 10 Wright 213, distinguished, and Newton Township v. Davis, 27 P. F. Smith, followed.
    March 16th 1877.
    Before Agnew, C. J., Sharswood, Merour, Gordon, Paxson, Woodward and Sterrett, JJ.

      Error to the Court of Common Pleas of Schuylkill county: Of January Term 1877, No. 73.
    This was a suit brought by Margaret Scholly, to recover damages for negligence in not repairing the public roads in Mahanoy township, which she alleged-occasioned the death of her husband, John Scholly, on the 19th of February 1870. On the 2d of October 1875, the jury rendered a verdict in favor of the plaintiff for $2196.25. The defendant at the trial requested the court to charge the jury, u that by the Act of Assembly of the 19th of January 1860, relative to the selling of the repairing of the public roads in Mahanoy township, all control over the repairing and opening of the roads of the township is. put into the hands of a contractor, and the township cannot be held liable for his negligence, and the plaintiff cannot recover in this suit.”
    The court, Walker, A. L. J., declined to instruct the jury'as requested, but reserved the point for further consideration, and after a verdict for the plaintiff on the 4th of October 1875, the court directed a rule to be entered to show cause why the verdict should not be set aside and judgment entered for the defendant non obstante veredicto. The evidence showed that in the year 1869, the repairs of the road were let out to a contractor. The sole question, therefore, was whether the Act of 19th of January 1860, Pamph. L. 4, took from the supervisor the entire control of the repairing of the public roads, and relieved the township of Mahanoy from the responsibility of keeping them in good order and safe travelling condition.
    The 1st section of the Act of Assembly referred to, requires the supervisor of Mahanoy township, after publishing the proper notices, to give out by public outcry, to the lowest and best bidder, the making and repairing of all the public roads in the township for the ensuing year.
    In the 2d section, the supervisor is required to view and inspect the making and repairing of the public roads at least once during every month, and be fully satisfied, before payment be made, that the contractors have fully complied with their contract, for which service he shall receive a certain commission.
    The 3d section provides, that each purchaser or contractor of the roads shall, before entering upon his contract, file with the supervisor a bond, approved by the auditors of the township, with sufficient security to the amount of his contract, for the faithful performance of his duties to keep the roads in good repair and save and keep the township harmless from damages in consequence of accident from neglect in keeping the roads in good condition.
    The court subsequently discharged the rule and entered judgment for the plaintiff on the point reserved, which, inter alia, was the error assigned.

      Hughes Tarquhar, James By on, Thomas B.. Bannan, and
      H. M. Darling, for plaintiff in error.
    rTire purpose of the Act of 1860, was to transfer from the supervisor to the contractor, the obligation of making and repairing all roads : Phillips v. Commonwealth, 8 Wright 199. The same principle was ruled in Edge v. Commonwealth, 7 Barr 275., under a statute similar to this. The supervisor being relieved of liability, it follows that the township is relieved, whose agent he is. The contractor is not the agent of the township and his negligence cannot impose any liability upon the township: Dean v. New Milford Township, 5 W. & S. 544. See, also, Allen v. Williard, 7 P. F. Smith 374. There is no room for the doctrine of respondeat superior here, for the township, defendant, had no control over the roads or the contractor. It results that the contractor was exercising an independent employment. The defendant in error contends that a municipal body cannot divest itself of its regular functions by contracting with others to perform them, and by that means to relieve itself from liability to third persons resulting from the negligence of the contractor.
    The answer to this contention is that bodies, such as townships and boroughs, are the creatures of statute law, their functions are statutory and can be changed at the will of the legislature. The duty to repair roads is merely statutory, and the liability for neglect flows from the duty to repair. Hence, when the duty do repair is removed from the agents of the township and put upon a contractor, as was the case under the Act of 1860, the liability follows the duty. The township was relieved and the contractor took its place as to third persons. This road, where the accident occurred, was originally opened by contract, and continuously kept in repair by contractors up to 1873. The township was never responsible for injuries to third persons.
    The authorities to support this view of the case are numerous: Painter v. Pittsburgh, 10 Wright 213; Allen v. Williard, 7 P. F. Smith 374 Rapho v. Moore, 18 Id. 404; Wray v. Evans, Leg. Int., July 7th 1876; The Wellsborough and Tioga Plank-road Co. v. Griffin, 7 P. F. Smith 417 ; Hilliard v. Richardson, 3 Gray 349 ; Hafford v. New Bedford, 16 Id. 297 ; Borough of West Chester v. Apple, 11 Casey 284; Shearman & Redfield on Negligence, pl. 79, 402.

      Jonathan J. Wright and Benjamin W. Gumming, for defendant in error.
    Where the employer of the contractor has not relinquished his control over the work to be done he continues liable notwithstanding his contract: Lloyd v. Mayor of New York, 5 N. Y. Rep. 369; Bailey v. Mayor, 3 Hill 531; Aldrich v. Tripp, 7 Leg. Gazette, 366. The legislature, by the Act of 1860, never contemplated depriving the supervisor of his control over the roads. If the contractor should fail to repair it would be the duty of the supervisor to retain the contract money: Painter v.
      Pittsburgh, 10 Wright 213, and repair the roads himself, so that the lives of the public should not be imperilled: Woodring v. Forks Township, 4 Casey 355; Township of Newlin v. Davis, 27 P. F. Smith 320. If the township is not liable the party injured may be without redress in case of the insolvency of the contractor: Township of Newlin v. Davis, infra. Where is the necessity for a bond to hold the township harmless if it is not liable? It is the law which throws the burthen on the township and not the contracts of its supervisors, and it must redeem its legal obligation : Pottsville Borough v. Norwegian Township, 2 Harris 546 ; Oakland Railway Co. v. Fielding, 12 Wright 320; Pennsylvania and Ohio Canal Co. v. Graham, 13 P. F. Smith 290.
    In Painter v. Pittsburgh, cited by plaintiff in error, the accident occurred during and by reason of the progress of the work, and the city had no control over the men employed by the contractors nor over the contractors themselves. Here the supervisors are required by Act of Assembly not only to review and inspect, but to be fully satisfied, before payment, that the contract has been fulfilled. The accountability of the township was fully intended to be reserved: Reed v. Allegheny City, 29 P. F. Smith 300; Perry Township v. John, Id. 412, and Dean v. Milford, cited by plaintiff in error, supra.

    May 7th 1877.
   Mr. Justice Gordon

delivered the opinion of the court,

The court below fairly and properly instructed the jury upon the points submitted by the parties in this case, and we think there is nothing requiring special discussion, except the question raised by the reserved point, which point is as follows: “ That by the Act of Assembly of the 19th of January 1860, relating to the selling of the repairing of the public roads, in Mahanoy .township, all control over the repairing and opening of the roads of the township is put into the hands of a contractor, and the township cannot be held liable for his negligence, and the plaintiff cannot recover in this ease.” Upon this point the court entered judgment for the plaintiff. In this we think they were right. The question is a very simple one; it is but whether the act above mentioned put the contractor in the place of the township in the control and supervision of the roads. Has the township discharged its whole duty to the public, when it has contracted for the making and repairing of its roads ? This question is answered in the mere statement thereof. The affirmance of the proposition would be contrary to the express terms of the act itself; for the supervisor is to inspect the making and repairing of the public roads at least once every month, and he is to be fully satisfied that the contracts have been fully complied with before the contractors are paid for their work. Not only so, but these contractors are required to give bond for the proper performance and fulfilment of their several contracts, and also, to save and keep harmless, the township from damages consequent upon accident resulting from neglect in keeping the roads in proper order.

These provisions indicate very clearly the legislative intent to charge the township with the duty of seeing that its roads were properly opened and repaired, and that it should not be relieved from the responsibility of accidents resulting from a want of proper construction or repair. This case has nothing in common with that of Painter v. Pittsburgh, 10 Wright 213, and others of that class, for the accident did not happen during the progress of the Avork and Avhilst the contractor had the road in his exclusive control, but after it Avas turned over to the toAvnship as a finished job and in proper repair. If, as the jury seem to have found, this road was not of a safe Avidth, or not properly guarded at the place where the accident happened, whose fault Avas it ? Not, surely, of him who had merely the job of keeping it in ordinary repair; it Avas not his business either to open the Avay to a proper Avidth or to build guard walls. His Avhole duty Avas performed in repairing dilapidations, and if he did this properly he filled his contract, and he Avas obliged to do nothing more. It may be that the contractor Avho opened the road, if indeed it Avere opened by contract, may have been in default; but, if so, the township Avas no less in default in accepting and opening to public travel a defective highAvay; it shouldered the responsibility when it approved the defective work. The same rule that applies to the construction of a road must apply as Avell to its repair; for it is the duty of the township officers not only to contract for the work necessary for the proper maintenance of the highways, but to see that it is properly executed. This is exactly what are ruled in Newlin Township v. Davis, 27 P. F. Smith 317; for in that case it Avas beyond question that it Avas the duty of the railroad company to build a proper and safe bridge and to keep it so; but we held, notAvithstanding, that the township owed the duty to the public to see that it was so built and kept, and that an accident resulting from the Avant of the performance of such duty was chargeable to the township. If a county contracts for the building of a bridge, and it is accepted and opened for public use, and afterwards, from some gross and obvious defect in the Avork, it falls and injures some one or destroys his property, may the county defend on the ground that the contractor Avas in default ? Certainly not, for it Avas the duty .of the county officers to see that the contractor did his duty.

Again, the very manner in which this power to contract is exercised must, to a great extent, affect the work to be done. If the contract be for the opening of a road twelve feet in width, Ayhen it ought to be tAventy-five feet, it is the toAvnship, and not the contractor, which is to blame if an accident happens for want of road-room. If the contract be that a road is to be repaired with clay when it should be repaired with stone, no blame ought to attach to the contractor if the rains wash away his work. If, as in the present case, this road should have been protected by a guard wall or railing, whose was the fault that it was not so protected ? The person who undertook to keep the way in ordinary repair was not bound to do such work, however necessary for the public safety. Illustrations of this kind might be multiplied indefinitely, but there have been enough to show that, in the very nature of things, the township must be responsible for the proper construction and repair of its roads.

The weak point of the defence is found in the supposition that the power given to the township.to contract for the doing of that which before had been done by its officers changed the character of its responsibility to the public. But a little reflection must dispel this idea; for, after all, the roads are the roads of the township, and the means employed by it-for their construction can make no difference as to its responsibility for their character. For, whether constructed by contractor or by supervisor they are constructed for the township, and we must come, eventually, to the one final and conclusive question: are they safe or unsafe ? If they are in good order it is the township which, by its judicious supervision, has made them so ; if unsafe it is the township, alone, that has the money and power to make them safe. On the other hand, those who trayel upon these public thoroughfares have no control or power over those who make or repair them, and it is but poor grace to the unfortunate traveller to tell him that his remedy, for the damages he may have suffered, in consequence of a fault beyond his power of remedy, is by suit against some contractor who may be insolvent or out of reach.

The judgment is affirmed.


source: Caselaw Access Project

author: Mr. Justice Mercur

license: Public Domain

text:
    Price’s Appeal.
    In distributing the fund arising from a sheriff's sale cf real estate a creditor who had a judgment obtained upon a bond conditioned for the payment of “ all moneys borrowed from said creditor, or which may from time to time, be borrowed from the same, lawful money as aforesaid, at or upon the time when the same shall become due,” as evidence of the amount due on said judgment, produced before an auditor certain promissory notes which had been renewed from time to time, and a large portion of the consideration of which was usurious interest. Held, that as the record of the judgment did not show a lien for a specific sum, and resort must be had to other testimony to ascertain the sum secured thereby, a subsequent lien creditor had the right to object to the allowance of the usurious interest, and was entitled to have it deducted from the amount of the notes.
    March 16th 1877.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Sterrett, JJ.

      Appeal from the Common Pleas of Schuylkill county: Of January Term 1877, No: 197.
    This was a question of distribution of the proceeds of the sheriff’s sale of the real estate of Garner & Christian, under a judgment of the Miners’ and Laborers’ Saving Fund Association.
    Before an auditor appointed to distribute the fund the following claimants appeared:—
    1. The Ashland Banking Company, whose claim was based on a judgment, entered in the Common Pleas, January 12th 1872, on bond and warrant of attorney given by Garner & Christian, dated January 3d 1872, for $8000, conditioned for the payment of “ all money borrowed from the said The Ashland Banking Company, or which may from time to time be bonxtwed from the same, lawful money as aforesaid, at or upon the days and times when the same shall fall due.”
    2. The Miners’ and Laborers’ Saving Fund Association, whose claim was founded on a judgment in the same court, entered August 6th 1875, conditioned for the payment of $16.000, entered on bond and Avan’ant of attorney, dated June 19th 1874, containing a waiver of exemption laws and inquisition, given by Garner k Christian. On this judgment the writ of fi. fa. in this case issued.
    3. John B. Price, trustee, whose claim was predicated on a mortgage, given by Lewis P. Garner and William A. Christian, trading as Garner & Christian, to him in trust for the sole and separate use of Sarah Garner, wife of Lewis P. Garner, dated June 24th 1874, recorded in Schuylkill county, June 29th 1874, for $6210, secured on the premises sold under the above writ of fi. fa., and on which a scire facias was issued July 6th 1875, and judgment rendered October 4th-1875, for $6678.65.
    These two.judgments, and the mortgage of Price, were liens on the real estate sold under the above writ, and had priority in the order here given. The claim of the Saving Fund being undisputed, the auditor found the same to amount to $7300, and by agreement of the parties interested, was taken out of court before the filing of the auditor’s report, leaving for distribution $4750.
    The bank claimed, under their judgment, the amount of two promissory notes, given by Garner & Christian, to the order of L. P. Garner, one dated June 19th 1875, at sixty days, for $486.77, including interest and protest, and the other, dated May22d 1875, at sixty days, for $3428.08, including interest and protest, which were discounted by the bank for Garner & Christian. From the testimony taken by him, the auditor found that these two notes were the renewals of other notes of Garner & Christian, discounted by the bank at various times, running back to the rendition of the bank’s judgment ; and that at the time the bank renewed and discounted these series of notes, a discount of about one per cent, per month was charged by the bank and paid by Garner k Christian, and that the aggregate of usurious interest thus paid by Garner & Christian at these several renewals, amounts to the sum of $1599.09.
    At the hearing before the auditor, Price, the appellant, contended that as the judgment of the bank was only collateral security for loans made or to be made by the bank to the firm, and as the judgment on its face was not conditioned for the payment of a definite sum, the burden of showing the amount due the bank under it rested with the bank ; and that Garner & Christian being insolvent, John B. Price, a subsequent lien creditor, having a specific lien on the real estate sold under the writ, could make any objection and avail himself of any defence that Garner & Christian had in law and equity to the amount claimed by the bank under the judgment, and as Garner & Christian had the legal right to defalk and deduct from the debt all usurious interest paid by them to the bank, Price had the same right, and that the payment of usurious interest by Garner & Christian was to be treated in the distribution of the fund, they being insolvent, as payment on the principal debt, it being in law a payment on the debt, and that under the law and facts of this case, it was the duty of the auditor to deduct from the claim of the bank, the amount of usury paid by Garner & Christian.
    After reviewing the cases of Greene v. Tyler & Co., 3 Wright 361, Good v. Grant, 26 P. F. Smith 52, and Miners’ Trust Company Bank v. Rosefeerry, 31 P. F. Smith 309, the auditor was of the opinion that the rights conferred by the Act of 28th May 1858, Pamph. L. 622, were personal privileges of the debtor who paid the usurious interest, and that none others could avail themselves of these advantages of the act. That the only ground upon which these rights could be claimed for the creditors would be that the contract was a fraud upon them or was intended to defraud creditors, or that the circumstances of the debtor were such that it might reasonably be presumed that this would be the effect of such a contract. Here no fraud was shown to be intended, nor was there any evidence that the bank had such knowledge of the circumstances of Garner & Christian, that they could reasonably presume that the result of the taking of this excessive interest would be a fraud upon creditors ; and that the fact of the insolvency of the - debtor was not sufficient to justify the claim here made. The auditor, therefore, awarded to the bank the amount of their claim, $3914.85, and the residue of the fund, $536.86, to Price on account of his mortgage. Exceptions were filed to this report by Price, which the court overruled, and sustained the report, making a decree of distribution in accordance with the views of the auditor.
    From this decree this appeal was taken.

      F. W. Bechtel and F. W. Hughes, for appellant.
    The contention of the appellant is that this judgment on its face is not conditioned for the payment of.any definite or liquidated sum of money, consequently the sum due on it at the time of sale must be shown by evidence aliunde, and that the burden of showing this is on the bank ; that as a matter of practice, a sci. fa. to liquidate the amount due on itj should precede an execution, or if copies of these two notes had been filed and execution issued, Garner & Christian, or either of them, could have pleaded the usury paid by them in payment of the amount ■ claimed by the bank ; that as Garner k . Christian were insolvent, and the proceeding being the distribution |of the proceeds of the sale of their real estate, on which Price had a specific lien, he could make any objection and set up any legal defence against the bank’s claim that Garner & Christian, the defendants, could on sci. fa. on the judgment: Clark v. Douglass, 12 P. F. Smith 415. _
    _ In making distribution the court will do so in accordance with equity, as prescribed by the Act of 16th June 1836, Pamph. L. 777, 1 Purd. Dig. 656, pi. 107, and it certainly would not be equitable to permit the bank to appropriate more of the insolvent debtor’s property, than is legally and honestly due. The question under discussion was expressly decided in Green v. Tyler & Co., 3 Wright 361. Miners’ Trust Co. Bank v. Roseberry, 31 P. E. Smith 309, is not in conflict with the right claimed by appellant. Verner v. Carson, 16 P. E. Smith 440, upon which the auditor relied, was a case wherein the claimant had no equity.
    The judgment of the bank as it appears on record is conditioned for the payment of “ all money borrowed or to be borrowed from time to time,” and makes ho reference to the rate of interest. Price is presumed to have had notice of this judgment, but he can only be affected by what appears upon the record, and as there is no testimony in the case that he knew anything of the usurious contract, he had the right to conclude that all that could be collected under it was the sum loaned on the strength of it and legal interest.

      W. A. Marr and James Ryon, for appellees.
    The plaintiff in the judgment could have issued execution against Garner k Christian for $8000,- the amount of the bond, without scire facias, suggestion or other proceedings, to ascertain the damages, and the only way the defendants could have availed themselves of the defence of usury would have been to have applied to the court to open the judgment and let them into a defence; they could not raise the question of usury in any proceeding which did not directly show payment, accord or satisfaction of the judgment; there is no such thing as a set-off to a judgment. The auditor had no right to disregard the judgment or allow any other lien a priority over it, and was concluded by the record: Thompson’s Appeal, 7 P. F. Smith 175; Dyott’s Estate, 2 W. & S. 567 ; Leeds v. Bender, 6 Id. 318.
    In the distribution of a fund, judgment creditors may attack a judgment collaterally, when it is a fraud on them, but not because it is fraud on the debtor: Dougherty’s Estate, 9 W. & S. 189; Lewis v. Rogers, 4 Harris 18; Verner v. Carson, 16 P. F. Smith 440; Good v. Grant, 26 Id. 52. Green v. Tyler, supra, was prior to the Act of 1858, and Miners’ Trust Company Bank v. Roseberry, 31 P. F. Smith 309, sustained the report of the auditor.
    May 7th 1877.
   Mr. Justice Mercur

delivered the opinion of the court,

This is a case of distribution. The fund was raised by a sheriff’s sale of the real estate of Garner & Christian. The claim in contention arises on a judgment entered on a bond and warrant of attorney executed by Garner & Christian, in favor of the appellee. The bond was in the penal sum of $8000, conditioned for the payment of “ all moneys borrowed from the said The Ashland Banking Company, or which may from time to time be borrowed from the same, lawful money as aforesaid, at, or upon, the days and times when the same shall fall due.” It was entered, of record prior to the date of the mortgage on which the appellant claims. At the date of the bond, the appellee held notes against Garner & Christian for borrowed money, equal to the amount of the notes on which it now claims. They have been renewed from time to time. The discount charged on each renewal was in excess of six per centum, and a large proportion of the consideration of the renewed notes, now presented for payment, is usurious. The auditor reported in favor of the payment of the whole amount of the notes. The court affirmed the report, and' decreed accordingly. This is assigned for error.

The question is not one of indebtedness only, but is also one of lien. The right of the appellee to a share of the fund, rests on the lien only. It therefore can extend to the payment of no claim not sustained by the lien. The validity of the lien is to be decided by the record. Within the limits prescribed by the recorded obligation, the indebtedness is secured by the lien. Beyond these limits, whatever may be its validity between the parties, it is no judgment lien. This judgment states no certain amount of indebtedness as being thereby secured; but it cannot exceed the sums of money borrowed. The lien by virtue of which the appellee claims, is not a judgment obtained on the notes in question, and therefore there is no judicial liquidation of the amount due. The judgment created a lien for such sums only as might be due for money borrowed of the appellee. The important question then is how much money was borrowed and remains unpaid ? The notes were no more than presumptive evidence of the sum borrowed. The auditor found as a fact that the sums of money borrowed by Garner & Christian, with lawful interest thereon, are much less than the amount of the notes on which the appellee claims.

It is claimed on the of Verner v. Carson et al., 16 P. F. Smith 440, Good v. Grant, 26 Id. 52, and Miners’ Trust Co. Bank v. Roseberry, 31 P. F. Smith 309, that, in the absence of fraud, none but Garner & Christian can set up the usury against the notes. That inasmuch as they do not, and the auditor has found there was no proof that the contract for the excess of interest was intended to defraud creditors, or that the parties thereto could reasonably have presumed such would be the effect of taking th’is excessive interest, therefore the amount called for by these notes is conclusive on the appellant. If the recorded lien described these notes, or if it specified a certain sum of money to be paid, or if judgment had been recovered on these particular notes and the validity of that judgment was questioned, then the case would admit of the application of the authorities cited. But under the facts of this case they do not apply. The record proves a lien for no specific sum. To ascertain the supi thereby secured, resort must be had to other testimony. As evidence, the appellee presents certain notes, which represent an amount greater than the sum borrowed.

Conceding that the appellant cannot attack the validity, or consideration, of the judgment, except for fraud, yet we answer, he makes no attempt to attack the judgment for any purpose. He gives it full effect. He concedes its validity according to its terms, and for all the money borrowed on the strength thereof. For so much only is it a lien. The appellee and the debtor cannot, even by an agreement, in regard to the notes, made in good faith, create a lien security to the injury of other lien creditors for more than the sums of money actually borrowed. No contract other than that shown by the record can be set up to establish the amount secured by the lien. To that extent the judgment was notice of a valid lien. Beyond that, it was no notice. The appellee cannot say, “ the debtor and I have agreed that there is a certain sum due and the appellant cannot controvert it.” In so far as that agreement may be invoked to enlarge the lien to his prejudice, the appellant may object to it. To the extent of the excessive interest charged, the judgment never was a lien. No subsequent agreement between the parties, not duly entered of record, could create or enlarge the lien to the prejudice of the appellant.

It is further contended that the auditor had no right to disregard a judgment regular on its face. This is true. But here the auditor is not asked to set it aside or to disregard it. The record was indefinite as to the extent of the sum covered by the lien. The appellee gave evidence to prove and establish the just sum. The appellant controverts the truthfulness of that evidence. He in no manner denies the validity of the judgment. He shows the appellee claimed, and the court allowed, a sum greatly in excess of the sum borrowed or secured by the lien. The error arose in not distinguishing between the personal contract of the parties to the notes and the recorded lien. The appellant is concluded by the latter only.

Decree reversed and record remanded, with instructions to decree distribution conformably with this opinion; and it is ordered that the appellee pay the costs of this appeal.


author: Per Curiam.

text:
    Zerbe et al. versus Zerbe et al.

    Testator's will contained this direction: “Pirstlgive and bequeath unto my son Edward and Peter and my daughter Catharine and Mary my daughter’s children Daniel John Elizabeth and Emma Mull they shal stand in equal shares that is to say Mary’s children shal have the share of their mother. Item, my son Daniel and Jarrett and my daughter Sarah and Louisa’s child Edward Hummel they shall have nothing of my estate they have more now than their shairs would come to. Last and Also I appoint my son Edward and John Zimmerman farmer as my executors of this my last will and testament and they shall have a right to sell the property and make it into money when they think fit to do so or when it will bring the most money.” Held, that this will carried all the real and personal estate of the'testator to those mentioned in the first clause, and that the word “ estate” belonged to the first clause of the will as well as the second, and that the word “ shares” in the first clause corresponds to the same word in the last clause, and both refer to the same estate.
    March 17th 1877.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Sterrett, JJ.
    Error to the Common Pleas of Schuylkill county: Of January Term 1877, No. 99.
    Ejectment by Daniel Zerbe and others against Edward Zerbe and others.
    The plaintiffs claimed as the heirs at law of Daniel Zerbe, deceased, who died seised of the tracts of land in dispute and possessed of personal property to the amount of $2150.28, as shown by an inventory filed in the office of the register.
    The defendants claimed under the following will of Daniel Zerbe, deceased, wrhich had been duly admitted to probate :—

      “ I, Daniel Zerbe considering the uncertainty of this mortal life and being of sound mind and memory do make and publish this my last will and testament in manner and form following that is to say First I give and bequeath unto my son Edward and Peter and my daughter Catharine and Mary my daughter’s children, Daniel John Elizabeth and Emma Mull they shal stand in equal shares that is to say Mary’s children shal have the share of their mother. Item, my son Daniel and Jarrett and my daughter Sarah and Louisa’s child Edward Hummel they shal have nothing of my estate they have more now than their shairs would come to. Last and Also I appoint my son Edward and John Zimmerman farmer as my executors of this my last will and testament and they shall liave'a right to sell the property and make it into money when they think fit to do so or when it will bring the most money.
    “ In witness whereof I have hereunto set my hand and seal this tenth day of January, in the year of our Lord one thousand eight hundred and seventy-three.
    “ The above instrument consisting' of one sheat was now here subscribed ' by Daniel Zerbe, the testator, in the presence of éach of us arid was at the time declaired by him to be his last will and testament and we at his request sign our names hereto as attesting witnesses.
    Daniel Zerbe [seal].”
    Jacob Jones, residing at Silliman P. O.
    William J. Hummel, “ “
    The plaintiffs contended that the said Daniel Zerbe, deceased, died intestate, and that the foregoing document was no valid will and testament, for the reasons that it devised nothing to any one, and because mere negative words are not sufficient to disinherit an heir; to effect this there must be an actual gift to some definite object.
    The defendants, on the contrary, argued that the intention of the testator could be inferred from the words of the will, and that his intention was to devise all his property, both real and personal, to his sons Edward and Peter, his daughter Catharine, and the children of his deceased daughter, Mary Mull; and that even if this were not so, the last clause in the will, giving the executors the right “ to sell the property and make it into money when they think fit to do so, or when it will bring the most money,” operated as a devise to the executors of the premises in dispute, for the purposes of such conversion, and that the plaintiffs, therefore, could, not recover.
    The court, Walker, J., inter alia, charged :—
    “ The view.we take of it is, that when the testator, after speaking of his estate, used the word ‘property,’ he meant all his real and personal property, and thereby empowered his executors to sell his real estate for the purpose expressed in his will. We therefore direct you to find in favor of the defendants.”
    Verdict for the defendants, and plaintiffs took this writ, assigning the foregoing portion of the charge and the direction of the court for error.

      Hughes Farquhar, for plaintiffs in error.
    There is no bequest, gift or devise of anything to the parties named, and there is nothing to show whether the testator’s intention was to dispose of all or a part of his real estate, or all or a part of his personal property, and the will, therefore, is void for uncertainty: Kelley v. Kelley, 1 Casey 460; Wallize v. Wallize, 5 P. F. Smith 242.
    If anything whatever passed, it must be wholly by implication, because of the second clause, viz.: “ Item — my son Daniel and Jarrett and my daughter Sarah and Louisa’s child Edward Hummel they shall have nothing of my estate, they have more now than their shairs come to.”
    These words do not import a testamentary disposition, and therefore cannot be construed into a devise: Houser v. Moore, 7 Casey 347; Duffield v. Morris, 8 W. & S. 348; Burford v. Burford, 5 Casey 221. Mere negative words in a will are not sufficient to exclude the title of the heir or next of kin: Hitchcock v. Hitchcock, 11 Casey 393. An heir can only be disinherited by express devise or necessary implication: McIntyre v. Ramsey, 11 Harris 317; Rupp v. Eberly, 29 P. F. Smith 141. No intention as against an heir can avail a devisee that is not expressed in the will: Brendlinger v. Brendlinger, 2 Casey 131. Where a devise is uncertain, the law adopts the principles of the intestate laws: Lip-man’s Appeal, 6 Casey 180. The court erred in their construction of the words “the property.”

      John W. Byon and F. W. Bechtel, for defendants in error.
    It is an established rule in the construction of wills that where it is evident the testator has not expressed himself as he intended to have done, and supposed he had done, and the defect is produced by the omission of some word or words, and where it is certain, beyond reasonable doubt, what pai'ticular words were thus omitted, they may be supplied by intendment, and the will read and construed as if those words had been written in the place or places where they were intended to have been: 1 Redfield on Wills 454, 455, 456 et seq., e. 9, “ Supplying Words;" Covenhoven v. Shuler, 2 Paige 122; Deakens v. Hollis, 7 Gill & Johns. 311; Pickering v. Langdon, 22 Maine 429; Mellish v. Mellish, 4 Vesey 45, 48; McKeehan v. Wilson, 3 P. F. Smith 76 ; Abbott v. Middleton, 21 Beav. 143; Langston v. Pole, 2 M. & P. 490. The word estate in a will carries everything unless restrained by particular expressions : Turbett v. Turbett, 3 Yeates 187; Heffner v. Knepper, 6 Watts 21; Blewer v. Brightman, 4 McCord 60; A her v. Deneale, 1 Peters 585 ; Jackson v. Babcock, 12 Johns. 389.
    To use the language of the court below, “ The word property is one of large signification and comprises things both real and personal. It is as extensive as the Avord ‘estate,’ and its use Avill authorize the selling of the testator’s real estate, unless the word has become limited in its meaning by the use of the definite article. See Foster v. SteWart, 6 Harris 23, where the authorities are-reviewed and commented upon as to the extent of the word. The definite article, as used here, is evidently synonymous with ‘my’ and should be so construed.”
    March 26th 1877,
   The judgment of the Supreme Court was entered,

Per Curiam.

We are all of opinion that judged ex visceribus, this will contains a sufficient devise and bequest of all the estate of the testator, to carry his real and personal property to the persons named in the will as his devisees and-legatees. That Daniel Zerbe made what' he himself terms his last will and testament appears by the written paper duly signed, sealed and witnessed, and by the witnesses attesting as such. That he intended to will his property to the persons named to take under the will, is not denied; but it is insisted that in fact he made no devise and bequest of his property. We do not agree to this statement. We have only to read the will in its own order, striking out the superfluous words which obscure the sense, and we have a sufficient and- consistent disposition of his property. Thus: “ I give and bequeath unto my sons Edward and Peter and my daughter Catharine and Mary’s children in equal shairs, but to my sons Daniel and Jarrett and my daughter Sarah, and Louisa’s child nothing, of my estate, they (viz., the last named) having more than their shairs would come to.” Now, it is clear that the word “estate” belongs to the first clause of the sentence as much as it does to the last clause, and that the word “ shares” in the first clause corresponds to the same word in the last clause, and both refer to the same estate. This is further strengthened by the fact that the second clause excludes the children named in it from the estate, and thus, by an -irresistible conclusion, refers the estate therein named to the persons named in the first, to whom, by express words, the testator declares he gives and bequeaths. Then, if anything were wanting, the power given to the executors, immediately following, to sell the “property,” makes the subject of the devise more manifest.

We think the court below gave a proper interpretation to the will, and therefore the judgment is affirmed..


author: Chief Justice Agnew

text:
    Curley versus The Commonwealth.
    1. There was no office provided for the jury commissioners, nor a place of safety for the custody of the jury wheel. The commissioners arranged for its custody by having it kept in the vault of the, county treasurer, 'upon condition that no one but a jury commissioner should enter the vault for the wheel; the sheriff kept the key of the wheel. Held, that the custody of the wheel was sufficient.
    2. It is not proper for the jury commissioners and sheriff to use one and the same seal, but each should have his own seal, so that he alone shall have its custody.
    3. A juror is competent who has formed an opinion from what he has read, but does not think the opinion is so fixed and determined that he would not be governed by the evidence, and who feels sure it would not prejudice the prisoner or give undue weight to the evidence against him.
    4. A juror testified on his voir dire that he had formed and expressed an opinion, and that it was fixed and determined from what he had read, but not such an opinion as would influence or control him in any degree as a juror; that it would not influence him to give an undue weight to evidence against the prisoner, and that he felt certain that he could divest his mind of all prejudice and be controlled by the evidence. Held, that he was competent, as it did not appear that his opinion Was formed upon the evidence to be given, or that he had any fixed belief of the guilt of the prisoner.
    March 19th and 20th, 1877.
    Before Agnew, C. J., Mercur, Gordon, Paxson, Woodward and Sterrett, JJ. Sharswood, J., absent.
    Error to the Court of Oyer and Terminer of Montgomery county: Of January Term 1877, No. 290.
    Indictment of Thomas F. Curley, for the murder of Mary Ann Whitby.
    On the trial before Boss, P. J., it appeared that Curley was employed as a hand on the farm of Mr. James Weikle. On the 18th of May 1875, the latter went to Norristown to attend court as a juror, taking with him his family, and leaving Curley alone on the farm with Miss Whitby, who was an elderly maiden lady. On the morning of the same day there had been a slight altercation between Mr. Weikle and Curley in regard to some of his stock, and in the conversation it came out that Mr. Weikle had elicited the information he had in regard to the charge he made against Curley from Miss Whitby, at which Curley showed some little anger. This appeared to be the only motive for the crime. Before his departure for Norristown, Mr. Weikle gave the prisoner directions to go to Mr. Hoyer’s, a neighbor, to plant corn, and to return at noon to feed and water the stock. Curley obeyed these instructions by going to Mr. Hoyer’s and there planting corn with others so engaged until a quarter to twelve o’clock, when he returned to Weikle’s house. He remained there until about a quarter past one, when he returned to the cornfield, having changed his “ monkey cap” for a straw hat, and it was observed his hair was wet. About an hour after his return he began to talk about a “ tramp,” saying, “We had some trouble over there at dinner; there was a fellow over there wanted something to eat; Mollie gave him something; then he wanted money ; Mollie said she had none; then the tramp said to go get some, and she said she could not, and the tramp stamped, grumbled and went off up the lane.” It was remarked by those in the cornfield that during the afternoon Curley seemed uneasy, and at various times looked around and towards Weikle’s house. At about five o’clock in the afternoon, before the corn-planting was finished, after asking Mr. Hoyer if he wanted him the next day, Curley started again towards Weikle’s house, and in about twenty minutes came running back, saying that “ some one had been over there and beat that woman shameful.” Hoyer asked if she was dead, and the prisoner replied, “ I don’t know; I think she moves a little.” Hoyer then told Curley to go and inform some of the neighbors, and have them go for a doctor, and Curley started in the direction indicated. When Hoyer reached the house he met Curley coming back. Hoyer entered and found the body of the murdered woman. Curley stood at the door, but did not go in. The prisoner gave several descriptions of the tramp, and the country was scoured in search of him, no suspicion, as yet, fastening upon Curley. No person answering any of the descriptions was found. When the physician arrived and a medical examination was made, it was discovered that the body of the murdered woman was still warm, and she had the appearance of having recently expired. She had ten wounds on her head, which appeared to have been inflicted by some blunt instrument, like an axe or hammer. Inquiry was then made of Curley where the axe was, and he said he did not know — perhaps in the shop. Several parties went in search of it, and about dark found it in the carpenter shop. No marks were seen on the axe at this time. The prisoner was with the parties who found the axe; it was left near the door of the shop. The next day it could not be found where left, but was discovered hidden under a pile of shavings, and upon examination marks of blood appeared thereon. Suspicion having meantime attached to the prisoner, upon further investigation blood spots were found upon the left sleeve of his shirt and upon his straw hat. There was also blood found under the nails of his fingers and upon his boots, as if it had been spurted upward upon them. When his attention was drawn to these blood stains, the prisoner said his nose had been bleeding, and the stains had come from wiping his nose and cleaning his fingers on his boots. There was nothing missing about the house and everything therein was undisturbed. When the stock were driven to water, it was evident from their excessive thirst that they had not been cared for by the prisoner.
    At the trial the prisoner moved the court to set aside the array of petit jurors for the following reasons :—
    1. The jury wheel is not now, and has not been for one year or more past, in the custody of the jury commissioners of said county.

      2. The said jury wheel is now and has been for one year or more past, in the safe or vault of the county treasurer of said county, which safe or vault is in the exclusive possession of said treasurer and his deputy.
    On behalf of the Commonwealth the sheriff testified:—
    “ The jury wheel is kept and has been kept during the past year, since it was filled, in the vault in the office of the treasurer of the county. It is locked. It is sealed; there is a sheet of paper put over the door of the wheel and then sealed with red sealing wax, with an impression. I keep the key. It has not been out of my possession since the wheel was filled. While in the vault it is within the control and subject to the order of the jury commissioners. They direct it to be placed there; and the vault is in the court house. On the paper which is sealed are written the names of the jury commissioners, and my own name. (Seal shown sheriff.) This is the seal that is used.”
    A jury commissioner testified:—
    “ I am one of the jury commissioners of this county. I have been so for two years. After the wheel was filled in January last, it was placed by direction of the board in the vault of the treasurer’s office in the court house. While there it is under the control and subject to the order of the jury commissioners; we have empowered no one else to exercise any authority or control over it. I was present at each drawing during the present year. The wheel each time it was produced was identically in the condition in which we put it away. We use a seal in sealing it. I have used this seal ever since I was in office. I adopted that as my seal as jury commissioner. Mr. Smith, the other commissioner, also uses it. The wheel has been kept in the vault for nine years; I know of no other convenient and safe place to keep it. llave no such place on my own premises, nor has Mr. Smith, I think. We have no key to the vault. The treasurer keeps the key of the vault. I have no seal imprinted as a jury commissioner’s seal; no bond is exacted of the treasurer. A jury commissioner presses-the seal on. My signature is on the paper.”
    The following statement of his honor, Judge Ross, was admitted as a fact.
    “ That an arrangement has been made with the present treasurer by which he gives the jury commissioners the right to deposit the wheel for safe keeping in the vault, upon condition that no one but a jury commissioner had a right to enter the vault for the wheel, and that he shall have no responsibility, or liability, in reference to it.”
    The court, being satisfied that the law had been complied with in the matter of the custody of the wheel, overruled the motion.
    A. K. Lorah, a juror, having been sworn on his voir dire, said:—
    “ Have formed an opinion against' the prisoner. It is not a fixed and determined opinion; but I still entertain it. It would require evidence to remove it. I formed my opinion from the report I read.”
    Challenged for cause.
    Cross-examined. “ I don’t think the opinion is so fixed and determined that I would not be governed by the evidence ; I would be governed by it; my opinion now formed would not prevent me from giving the evidence for the prisoner its due weight, nor would it cause me to give the evidence against him an undue weight. I don’t think my opinion would prejudice the prisoner at all, if I were sworn as a juror. I feel sure it would not.”
    Challenge for cause overruled.
    Joseph M. Yahn, another juror, sworn on his voir dire, said: “ I have formed and expressed an opinion. It is fixed. It is not such an opinion as would influence or control me in any degree as a juror. It would not influence me to give an undue weight to evidence against the prisoner. I feel certain that as a juror I could divest my mind of all prejudice and be controlled only by the evidence.”
    Challenge for cause overruled.
    The court, Ross, J., inter alia, charged, “ That this woman was murdered, as I have said, is beyond all question. In my judgment, although it is a matter entirely for you, the person who murdered her, taking into consideration the nature and character of the wounds, the utter absence of any evidence of a struggle, and the whole surroundings of the case, would be guilty of murder in the first degree.” And in another portion, in commenting upon the evidence, said, “ The boy gives a description, minute and in detail ; and shortly afterwards, he gives another description, minute and in detail; and shortly afterwards, he gives another description, minute and in detail, and so on until he describes more or less minutely, if I have remembered the testimony, five individuals of a distinct personality.”
    The result of the trial was a verdict of murder in the first degree. Motions in arrest of judgment and for a new trial were overruled and the prisoner was sentenced to be hung.
    This writ was then taken in his behalf, the errors, inter alia, assigned being: 1. In ruling that the custody of the jury wheel was sufficient in law. 2. In ruling that the jury wheel was sealed according to law. 3. In overruling the motion to quash the array.
    4. In overruling the challenge for cause as to the juror, Lorah.
    5. In overruling the challenge for cause as to the juror, Yahn.
    6 and 10. The portions of the charge above quoted.

      H. A. Stevens and H. U. Bruner, for the plaintiff in error.
    The Act of 10th of April 1867, Pamph. L. 62, requires that “the jury wheel shall remain in the custody of the jury commissioners.” The custody contemplated is actual, personal custody. The jury wheel here was not in the custody of any one, the treasurer in whose vault it was placed, having no responsibility respecting it. In Holland and Johnson v. Commonwealth, 1 Norris 306, the wheel was in the custody of a sworn officer of the board of jury commissioners.
    The Act of 14th of April 1834, Pamph. L. 357, requires that the sheriff and jury commissioners shall impress distinctly upon the wax on the wheel, their respective seals. Here the wheel was sealed with but one seal. This, it is submitted, is fatal: Brown v. Commonwealth, 23 P. F. Smith 321.
    Where a juror has a fixed and determined opinion as to the guilt or innocence of the prisoner he cannot serve : Staup v. Commonwealth, 24 P. F. Smith 458; Commonwealth v. Flanagan, 7 W. & S. 420.
    The court encroached upon the functions of the jury in the portion of the charge contained in the sixth assignment: Kelley v. Commonwealth, 1 Grant 484; Lane v. Commonwealth, 9 P. F. Smith 371.

      Jacob V. Cotwalts, District Attorney, and B. M. Boyer, for the Commonwealth.
    A like custody of the jury wheel, in every material respect, was held to be sufficient in Holland and Johnson v. Commonwealth, 1 Norris 306. A more effective method than that adopted here could not be devised to secure a jury wheel. Each commissioner wrote his name on a slip of paper and covered with the wax it was impressed with the only device the commissioner had. The law does not require that each shall have a different device. The overruling of the challenge to the two jurors is sustained by Ortwein v. Commonwealth, 26 P. F. Smith 414; Staup v. Commonwealth, 24 Id. 458; O’Mara & Irving v. Commonwealth, 25 Id. 424.
    May 7th 1877.
   Chief Justice Agnew

delivered the opinion of the court,

The first assignment of error is not supported. The law has not provided an office for the jury commissioners, nor a place of safety for the custody of the jury wheel. Hence they did the best in their power for its custody, by making an arrangement for its safe keeping in the vault of the county treasurer, and upon the condition that no one but a jury commissioner should enter the vault for the wheel. The evidence shows satisfactorily that the wheel was sealed and the seals were unbroken, and not tampered with. There was no suspicion of any real ground of challenge, either as to the custody or the condition of the wheel. The second exception is not supported by a proper bill of exceptions. If it had been, though evidently 'without real merit in this case, we might have been forced to sustain the assignment. But the challenge to the array was made upon two distinctly stated grounds, which were denied by the Commonwealth, neither having any relation to the sealing of the wheel. These grounds formed the issue upon which the evidence was taken, and to which the exception to the decision of the court must be presumed to refer. What was added, as to the sealing in the certificate of the judge, was therefore extraneous and irrelevant. The merits of the case do not require us to strain a point in order to reach a substantial error not otherwise tangible. But to prevent a misunderstanding of our opinion we may add that, in our judgment, it is not proper for the jury commissioners and sheriff to use one and the same seal, no matter how many impressions are made by it. The sheriff and jury commissioners should each have and use his own seal, so that he alone shall have its custody. If but one seal be used for all, but one person can have its custody, who, if disposed, could break the seals and replace them, thus affording an opportunity of tampering with the wheel. If each keeps his own seal this cannot be done.

The third assignment of error falls with the dismissal of the first and second.

The fourth and fifth relate to challenges to the polls. The case of A. K. Lorah falls within the rulings in Ortwein v. Commonwealth, 26 P. F. Smith 414; O’Mara v. Commonwealth, 25 Id. 424, and one branch of Staup v. Commonwealth, 24 Id. 458.

The case of Joseph M. Yahn requires more consideration. This juror said he had formed and expressed an opinion, and that it was fixed and determined from what he had read, From this it is argued that his case falls within the principle of exclusion stated in one branch of the case of Staup, supra. This is only apparent, not real. In Staup’s case it was said that: “ Whenever the opinion of the juror has been formed upon the evidence given at a former trial, 'or has been so deliberately entertained that it has become a fixed belief of the prisoner’s guilt, it would be wrong to receive him.” “ But where the opinions or impressions of the juror are founded on rumor or reports, or even on newspaper statements, which the juror feels conscious he can dismiss; where he has no fixed belief or prejudice, and is able to say he can fairly try the prisoner on the evidence, freed from the influence of such opinions or impressions, he ought not to be excluded.” An opinion is not the exact equivalent of a belief. It may be simply a judgment formed upon a given statement of facts, which will yield when the facts stated disappear. A belief of another’s guilt may be a prejudice and exist with little or no evidence. A fixed belief of guilt shuts the door against explanatory evidence, and renders the judgment unsound. Hence the distinction taken in Staup’s case. An opinion formed on the same evidence to be adduced in the trial necessarily affects the juror’s power to decide impartially. So, an opinion which has become a fixed belief of the prisoner’s guilt, even without evidence, disables the juror from performing his duty with fairness to the prisoner. But in Yahn’s case no such opinion or belief was shown. The juror was not asked on what his opinion was founded. It might have been the merest unreliable newspaper statements. When lie said his opinion was fixed and determined from what he had read, he evidently did not mean, that he had a fixed and determined belief of the prisoner’s guilt, for he followed this up immediately by, saying, “ It is not such an opinion as would influence or control me in any degree as a juror. It would not influence me to give an undue weight'to evidence against the prisoner. I feel certain, that as a juror, I could divest my mind of all prejudice and be controlled by the evidence.” Now we find here no opinion formed upon the evidence to be given, no fixed belief of guilt. We see no reason, therefore, to hold that the juror was incompetent on either ground.

There is no error in the charge of the judge sufficient as a cause of reversal. His opinion as to the degree of the murder was not delivered as binding on the jury, or as a conclusion against the prisoner. It referred only to the state of facts as found upon the discovery of the body of the deceased. An elderly maiden lady, in good health, is left alone, engaged in ordinary household duties in the morning. In the evening she is found alone, lying on the floor in a pool of blood, and the objects around her are'found stained with its spurting streams. Her skull has been battered with a heavy instrument having a large square head, such as the poll of an axe or of a mason’s hammer of large size. Ten wounds are found upon her head made with such an instrument, eight of which were mortal, crushing in and fracturing the skull at every stroke. It was of such a murder the judge spoke. But the jury were left to decide for themselves upon all the evidence. The only real question in the case was the identity of the offender; and this was fixed upon the prisoner by many and various circumstances, leaving no reasonable doubt of his guilt.

The judge stated the facts of the case with great fairness, except that in one instance he appears to have fallen into error. But it was left fully to the jury. The matter referred to is the description given by the prisoner of the person of the “ tramp” he alleged came to the house at dinner time. The judge said he had given five different descriptions in relating the matter to different witnesses. We do not discover this number of variations in substantial matters of description. Yet there were such variations as will often arise in stating the same thing at different times; that is, not absolute contradictions, but variations from different degrees of fulness, or from indifference to precision. These, however, were matters left to the jury, and of which they were quite competent to judge — indeed, in the combination of so many memories, perhaps were more likely to be accurate. We think this is not such a substantial error as to demand a new trial. The errors assigned to the alleged misconduct of the jurors and their officer are not supported by any bill of exceptions. The evidence is therefore not legally before us. There is nothing else in the case worthy of notice. The sentence of the court is therefore affirmed, and the record is ordered to be remitted for execution according to law.


author: Mr. Justice Sterrett

text:
    Pistorius versus The Commonwealth.
    1. Where the deceased approached the prisoner in a threatening manner, so that the latter had a reasonable belief that he was in danger of bodily harm, and acting on that belief and apprehension of danger fired a pistol shot and killed the deceased, the crime was not murder in the first degree, although the prisoner fired with the intent to kill, and there was no occasion to take life in order to save his own, or to avert great bodily harm.
    2. Where the idea intended to be conveyed by the court in their charge is correct, but owing to the manner in which it is expressed the jury may have been misled into the belief that if the prisoner intended to kill he should be convicted of murder in the first degree, notwithstanding they were satisfied that he was assaulted and fired “ finder apprehension of bodily harm,” or had a reasonable belief of danger, “ founded on the manner, gestures and appearance of the deceased,” this court will reverse.
    ■ 3. Where the naked afiirmance or negative of points by the court might not enable the jury to comprehend their bearing, it is the undoubted right and frequently the duty of the court to give such explanations or qualifications as may be necessary to enlighten them.
    March 12th 1877.
    Before Agnew, C. J., Mercur, Gordon, Paxson, Woodward and Sterrett, JJ. Sharswood, J., absent.
    Error to the Court of Oyer and Terminer of Montgomery county: Of July Term 1876, No. 40.
    . Indictment of Blasius Pistorius for the murder of Isaac Jaquette.
    Blasius Pistorius, who had recently come from Germany, was living with his brother John, on a farm adjoining that of Jaquette, the deceased. A creek, called Stony creek, separated the two farms. A difficulty had arisen between John Pistorius and Jaquette about the cows of the latter, which, in coming down to the creek to water, sometimes strayed upon the ■ lands of Pistorius. This difficulty had occasioned considerable feeling between the two families. On the day of the homicide, the cows of Jaquette, in charge of a lad named Muloch, were driven as usual to the creek. While they were drinking the lad sat under a tree, but perceiving that the cows were wandering up the creek he started in pursuit, when the prisoner emerged from behind some bushes along the creek, and pointing a pistol and using some broken English, threatened to shoot. The boy then ran after Jaquette, who left the field where he was at work and started with the lad down to the creek. When they approached Blasius pointed the pistol at Jaquette, who picked up two stones, remarking, “ if you attempt to shoot me I’ll put you off that bank.” They were at this time on the opposite sides of the creek. Jaquette then walked to the other side of the creek, Blasius still keeping the pistol pointed at him. As he crossed the creek Jaquette made some remark like, “ Why can’t you leave my cows alone when I leave them out to water on my own ground ?” The prisoner still pointing the pistol at him, Jaquette said to the lad and a little girl who was nearby, “You see that; I will have him arrested.” Jaquette then’ threw down the stones and walked up the bank towards the prisoner, who at this time had the pistol down by his side. When he was about four feet from the prisoner the latter again raised the pistol. Jaquette approached closer and as he did threw up his arm to knock away the pistol from his face, but did not touch it. When the arm of Jaquette was raised the pistol was turned, presented at Jaquette’s body and fired, the prisoner having his hand on the trigger. Jaquette threw up his arms, exclaiming he was killed, and fell backwards into the creek. When requested to help carry Jaquette out of the sun the prisoner replied, “ No, let him lay there and die.”
    The only questions passed upon by this court, were those raised by the following points submitted by the prisoner, and the answers of the court thereto.
    8. If the jury find that the defendant fired the pistol when he was assaulted by the deceased, under apprehension of bodily harm, he cannot be convicted of murder in the first degree.
    Answer. “ This is true, unless the prisoner at the time he fired had a wilful, deliberate and premeditated intention to take the life of the deceased, and was not intended for defensive purposes.”
    4. If the defendant, although in no imminent peril when the deceased approached him, yet had a reasonable belief of bodily harm, founded upon the manner, gestures or appearance of the deceased, immediately before he. fired the pistol, he cannot be convicted of murder in the first degree.
    Answer. “ This is true, unless the prisoner fired with the wilful, deliberate and premeditated intent to take the life of the deceased, and not for the purpose of self-defence.”
    6. If the jury find that the deceased approached the defendant in a threatening manner, and the defendant had a reasonable belief of bodily harm, although mistaken, he cannot be convicted of murder in the first degree.
    Answer. “ This is true, if you believe the prisoner acted upon that apprehension; but it is not true, if you find, beyond all reasonable doubt, he fired with a wilful, deliberate and premeditated intent to take life.”
    The result of the trial was a verdict of murder in the first degree, and the prisoner was sentenced to death. This writ was then taken and the errors assigned, inter alia, were the foregoing answers to defendant’s points.

      George W. Rogers, Stephen S. Remak and James Boyd, for plaintiff in error.
    Commonwealth v. Drum, 8 P. F. Smith 17; Murray v. Commonwealth, 29 Id. 317 ; Kelly v. Commonwealth, 1 Grant 484, were authorities for the points submitted by defendants.
    If the killing was done when the prisoner was assaulted and he apprehended bodily harm (as assumed by the third point), or he had a belief, founded upon the manner, gestures or appearance of the assailant (as assumed by the fourth point), how 'could there be that wilful, deliberate and premeditated intention to kill, referred to in the answer of the court ? They are inconsistent and could not exist at the same time. Both points aver that the pistol was fired under apprehension of bodily harm, or a reasonable belief thereof, yet the answers of the court require the defendant to prove that, because death ensued he did it in self-defence, and if he fails in this, the verdict against him must be murder in the first degree. This certainly cannot be the law. It might possibly be either murder in the second degree or manslaughter, but both of these degrees of homicide are ignored by the court, and the jury are left to convict the prisoner of murder in the first degree, or acquit him entirely.

      Jacob V. Gotwalts, District Attorney, and George N. Gorson, for the Commonwealth.
    May 10th 1877.
   Mr. Justice Sterrett

delivered the opinion of the court,

The indictment charged the plaintiff in error and his brother jointly with the murder of Isaac Jaquette. Separate trials were awarded, and the case against Blasius Pistorius having been taken up first, the wife of the brother was called as a witness in his behalf and was objected to by the Commonwealth. The objection was sustained and the exclusion of the witness is complained of.

During the argument béfore us, it was stated by counsel for the plaintiff in error that John Pistorius, the husband of the witness, had been tried and acquitted, since the writ of error in this case was taken. In view of this fact, and inasmuch as the judgment is reversed on another ground, the question presented by this assignment of error has become immaterial, and it is therefore unnecessary to consider it. The trial and acquittal of the husband has removed all objection to the competency of the wife.

The second, third and fourth assignments relate to the explanations or qualifications which the court added to their affirmance of the third, fourth and sixth points, submitted by one of the prisoner’s counsel.

These points refer to the same general Subject and are each based upon a hypothetical state of facts, which, if found by the jury to be true, would, it is claimed, relieve the prisoner from a conviction of murder of the first degree; and the complaint is, that while each of them was affirmed, an explanation was added which had a tendency to confuse arid perhaps mislead the jury; and thus, to some extent, deprived the defendant of the benefit of the affirmance.

The instruction asked in the sixth point was : “ If the jury find that the deceased approached the defendant in a threatening manner, and the defendant had a reasonable belief of bodily harm, although mistaken, he cannot be convicted of murder of the first degree.” The answer of the learned judge was: “ This is true, if you believe the prisoner acted on that apprehension ;” and, in the same sentence he added, “ but it is not true, if you find beyond all reasonable doubt that he fired with a wilful, deliberate and premeditated intent to take life.”

The point as presented was incomplete and might have been refused, but the court thought proper to affirm it with the qualification contained in the first clause of the answer, and said to the jury that it was correct if they found that the prisoner acted on the apprehension of bodily harm. There can be no reason to complain of this qualification, which in itself was quite proper. The facts, then, necessary to be found by the jury in order to sustain the proposition, as qualified and affirmed by the court, were that the deceased approached the prisoner in a threatening manner — that the latter had a reasonable belief that he was in danger of bodily harm, and that acting on that belief and apprehension of danger he fired the fatal shot. If they found these facts to be true, the effect of the instruction would be to relieve the defendant from a conviction of murder of the first degree; but, what was added by the court, in saying it was not true if “ he fired with a wilful, deliberate and premeditated intent to take life,” was liable to be misunderstood by the jury. They might understand it to mean that although they found all the facts embodied in the proposition as affirmed by the court, still if they found, in addition thereto, that the defendant intended to kill, they should convict him of murder of the first degree; or, at least would be justifiable in doing so. The proposition, as affirmed, presented a state of facts which, if ascertained to be true by the jury, excluded a conviction of murder of the first degree, but left them free to find a lower grade of homicide, if they thought that, under the circumstances as they really were, or as they reasonably appeared to the prisoner to be, there was no occasion to take life in order to save his own, or to avert great bodily harm ; but, being told in the same connection that the proposition was not true if he intended to kill, the jury might think, if they found this intention, that it was their duty to convict of murder of the first degree.

The answers to the third and fourth points are not entirely free from a similar objection.

The idea intended to be conveyed by the learned judge, in all these was no doubt but to the manner in which it was expressed in the hurry of trial, the jury, in our judgment, may have been misled into thb belief that if the prisoner intended to kill, he should be convicted of murder of the first degree, notwithstanding they were satisfied that he was assaulted and fired “ under apprehension of bodily harm,” or had a reasonable belief of danger “founded on the manner, gestures and appearance of the deceased.” If he was assaulted and was actually in danger of great bodily harm, or if it reasonably appeared to him that he was, and the danger, either real or apparent, was so great that it could not be averted without taking the life of his assailant, he would be excusable, under the law of self-defence, in doing so, in order to save his own life or avert great bodily harm. But, under the state of facts embodied in the points, the entire acquittal of the defendant was not asked. It was not contended that he was wholly excusable on the ground of self-defence. It was simply claimed that if the facts stated in the points were found to be true, he should not be convicted of murder of the first degree, leaving it to the jury under the instruction of the court to find a lower degree of homicide if they thought the evidence justified it.

In what has been said, we do not wish to be understood as intimating that, in answering points, the court should simply affirm or negative them. Hypothetical propositions are sometimes presented to the court, quite correct in themselves, but so artfully drawn that a naked affirmance might not enable the jury to comprehend their bearing. Others again a^re not strictly correct and require qualification. In such cases it is the undoubted right and frequently the duty of the court, in answering, to give such explanations or qualifications as may be necessary to enable the jury to understand them. Sometimes this may be best done by presenting to the jury an alternative proposition, or suggesting to them, in connection with the answer,'another or different theory or state of facts arising out of the evidence, and instructing them as to the lawr and their duty, in case they find them to be true.

. The remaining assignments of error are not sustained, and there is nothing in any of them requiring special notice.

With the exception of the answers to the points already noticed, the learned, judge presented the case very clearly and fairly in his charge to the jury; but, for the reasons already given, we are of opinion that the case should he sent back for a new trial.

The judgment of the Court of Oyer and Terminer is reversed and a venire facias de novo awarded; and it is ordered that the record be remitted to said court for another trial.


text:
    Wright and Slingluff versus Wigton et al.

    1. Real estate which has passed to assignees under a voluntary deed, of assignment for the benefit of creditors, is not exempt from the payment of taxes, whether assessed thereon before or after the assignment was made.
    2. The personal property remaining on the land thus taxed, after the assignment, is liable to distress for the non-payment of the taxes.
    3. School Directors of City of Lancaster v. Rathvon, 6 Casey 533, distinguished.
    March 21st 1877.
    Before Ag-new, C. J., Mercur, Gordon, Paxson, Woodward and Sterrett, JJ. Sharswood, J., absent.
    Error to the Court of Common Pleas of Montgomery county: Of January Term 1877, No. 160.
    This was an amicable action by O. W. Wright, collector of taxes for the county of Montgomery and also collector for the borough of Norristown, and Charles Slingluff, collector of school taxes for the school district of Norristown, against R. B. Wigton and William H. Johns, assignees and trustees for the benefit of creditors of Schall & Co.
    The following case was stated for the opinion of the court:—
    1. That on the 31st day of December 1874 said Schall & Co. executed and delivered a voluntary deed of assignment of all their partnership property, real and personal, in trust for the benefit of their creditors, and that the said defendants are the assignees or trustees of said assigned estate.
    2. That the said C. W. Wright, on the 18th day of December 1875, by virtue of a lawful warrant issued for that purpose against the said Schall & Co., made a distress and levy upon the said assigned personal property in the borough, as follows :—
    For said borough tax for the year 1874, $320.54
    And for the same tax for the year 1875, 320.54
    And also, for the said county tax for the year 1875, 161.14
    $802.22
    3. That the said Charles Slingluff, at the same time and in like manner, by virtue of a lawful warrant issued for that purpose, against the said Schall & Co., made a distress and levy upon the said assigned personal property in said borough, for said school district of Norristown, school tax for the year 1875-6, for the sum of $286.20.
    4. That the said tax for the year 1874 was assessed on the said assigned real estate of said Schall & Co., prior to the date of the said deed of assignment, and all the rest of the said taxes were assessed against the said Schall & Co., since the date of said deed of assignment.
    If the court shall be of the opinion that the personal property distrained and levied upon as aforesaid is liable for the payment of said taxes, or any part thereof, then judgment to be entered accordingly in favor of the respective plaintiffs for such amount as the court shall be of opinion each is entitled to.
    But if the court should be of opinion to the contrary then judgment to be entered in favor of the defendants as between both or either of the said plaintiffs.
    Either party to have the right to sue out a writ of error to the Supreme Court.
    The court, Ross, P. J., entered judgment for’ the defendants, which was the error assigned.

      B. E. Chain, George N. Corson and J. Wright Apple, for plaintiffs in error.
    The authority for the collection of county taxes in Montgomery county, which is under the provisions of the Act of 17th March 1868, Pamph. L. 342, and the supplement thereto of 10th May 1871, Pamph. L. 659, is similar to that conferred by the Act of 15th April 1834, Pamph. L. 518. See the 20th, 21st and 46th sections of the latter act. In addition to these provisions the Act of 16th March 1866, Pamph. L. 226, provides that the goods of any owner or occupier of any premises within the county of Montgomery shall be liable to be distrained for the taxes of the current year, although said taxes may have been assessed on said premises before such owner took possession thereof. And further, that the goods may be distrained, whether on the premises or not, wherever they may be found in the’ county.
    The tax of 1874 was assessed prior to the assignment, and this Act of 1866 directly applies, for the tax was for the current year.
    The defendants contended, however, that because the tax was not levied during the possession or occupancy of the assignees, therefore the property is not liable to levy, and cited Smeich v. County of York, 18 P. F. Smith 439, to support this contention; but the principle of that case will not apply here, for an assignee under a voluntary assignment is not a purchaser: Twelves v. Williams, 3 Whart. 485; Vandyke v. Christ, 7 W. & S. 373; Ludwig v. Highley, 5 Barr 132; Spackman v. Ott, 15 P. F. Smith 131; Ritter v. Brendlinger, 8 P. F. Smith 68. And the possession and occupancy of the assignee then by virtue of the assignment, is but the possession and occupancy of the assignor.
    The fact that it was assessed to “ Schall & Co.,” will not relieve the property from the payment of taxes.
    The whole spirit of the law shows that it is property which the tax laws are intended to reach.
    These taxes were assessed and levied during the possession and occupancy of the persons whose property is now levied on to satisfy those taxes. Nor will the contention that because the property is held in “trust” for creditors it is relieved from the payment of taxes, avail the defendants.

      The case of Parsons v. Allison, 5 Watts 72, ruling that “ a collector’s warrant is not a lien upon the personal property of one by whom taxes are due,” will not apply to this ease since the Act of 1866.

      James Boyd, for defendants in error.
    Montgomery county has special acts for the collection of certain taxes. The first is the Act of 1866. But this act was supplied, so far as state and county taxes are concerned, by the Act of March 17th 1868, Pamph. L. 342, entitled “ An act relating to the collection of state and county taxes in the county of Montgomery,” the 13th section of which declares “ all laws altered or supplied by this act are hereby repealed, so far as they relate to the county of Montgomery.”
    If, however, the Act of 1866 is operative, does it apply to these assignees ?
    Assignees for the benefit of creditors are not purchasers of the real estate taxed, and are not owners or occupiers in the sense intended by the act. They are merely trustees or persoiis recognised by law to execute a trust in conformity with such law. Distress for taxes upon the goods assigned, can no more interfere with their execution of the trust, than can a fi. fa., or other execution process, issued after the execution and delivery of the assignment: School Directors of Lancaster v. Rathvon, 6 Casey 535 ; Jefferis’s Appeal, 9 Casey 40.
    The tax for 1875 must be collected in the manner pointed out by the third section of the Act of 1868.
    It is not pretended that these assignees were named in the schedule accompanying the warrant, as among those who were charged with unpaid taxes; nor were, the officers authorized and required to demand and receive from them as delinquents named in the schedule, the amount of any taxes charged therein, nor were they authorized to levy the same by distress and sale of the goods and chattels, and therefore are not within nor subject to the letter or spirit of said act.
    If the collection is subject to the provisions of the Act of 1834 as claimed, then the question raised was decided in Smeich v. County of York, supra. The right of the collectors to levy on any property of Schall & Co. for these taxes is not denied; but they cannot levy on the assigned personalty, as they made no levy before the assignment, they had no lien on it and have no right to do so now. In Moore v. Marsh, 10 P. F. Smith 46, Thompson, C. J., says: “ Since the case of Parsons v. Allison, 5 Watts 72, and Baskin et al. v. Kontz and Hummel, Id. 76, it has never been supposed that a collector’s warrant is a lien on property for unpaid taxes before actual seizure These cases settle conclusively that it is not.”

      May 7th 1877.
   Mr. Justice Mercur

delivered the opinion of the court,

As a general rule all lands in this Commonwealth are subject to taxation. No Act of Assembly has exempted from such liability the real estate on which the taxes in question were assessed. It is claimed that the voluntary assignment of this land, made for the benefit of creditors, had that effect. That it not only prevented the collection of the taxes assessed prior to the assignment, but also prohibited the levying of subsequent taxes on the land while it remained in the hands of the assignee. This view gives an undue effect to the assignment. A belief in its correctness, probably did much towards leading the court to an erroneous conclusion.

It is well settled in this state, by numerous decisions, that a voluntary assignee is not a bona fide purchaser for value. He is the mere representative of the debtor, enjoying his rights only, and is bound where he would be bound: Twelves v. Williams, 3 Whart. 485; Vandyke v. Christ, 7 W. & S. 373; Ludwig v. Highley, 5 Barr 132; In re Fulton’s Estate, 1 P. F. Smith 204; Spackman v. Ott, 15 Id. 131. Nor are the creditors, for whom he holds the property in trust, purchasers for value. They are not parties to the deed. They have relinquished nothing, in compensation of the benefits of the trust. They have not agreed to look to it for satisfaction of their claims. They have no title to the property assigned. They acquired a right only to enforce the duty undertaken by the assignees: Twelves v. Williams, supra ; Jefferis’s Appeal, 9 Casey 39; Fulton’s Estate, supra; Spademan v. Ott, supra. The assignee then being the hand, only, of the assignor, and through which the latter distributes his property, it follows that it remains liable to taxation, as if no assignment had been made. It is no more exempt from taxation than lands devised to an executor to sell for the payment of debts. In either case the lands continue subject to taxation.

The remaining question is whether the personal property was legally liable to distress for the non-payment of the taxes. The borough taxes were for the years 1874 and 1875; the county tax for 1875, and the school tax for 1875-6. The assignment of both real and personal estate was made 31st December 1874. The distress was made 18th December 1875, on the personal property assigned, which still remained on the premises thus taxed.

It is undoubtedly true that the warrant of a collector of taxes is no lien on property before actual seizure. It was also held in Smeich v. County of York, 18 P. F. Smith 439, that under the Act of 15th April 1834, the goods and chattels of a person occupying real estate, were not liable to distress and sale for the non-payment of taxes assessed thereon in like manner as if they were the goods and chattels of the owner of such real estate, unless they were assessed during his possession or occupancy thereof. But as we have shown the assignment was not a bona fide sale of the property for a valuable consideration. The title thereto remained in the assignor for all purposes not inconsistent with the trust. Neither the assignee nor the creditors can successfully claim that the property shall be exempt from the public burdens. This view of the case is further supported by the Act of 16th March 1866, Pamph. L. 226. Section one declares that from and after the passage of this act, the goods and chattels of any owner, or occupier, of any messuage or lot or piece of ground, within said county of Montgomery, shall be liable to be distrained for the taxes of the then current year assessed on such premises, although said taxes may have been assessed on said premises before such owner took possession,or became owner thereof.”

Section two authorized the goods and chattels to be distrained anywhere' within the county, although the same were not on the premises. The Act of 17th March 1868, Pamph. L. 342, relating to the collection of taxes in the same county, does not repeal these provisions in the Act of 1866. It leaves the liability of property to taxation, and the property subject to distress for the non-payment of taxes untouched.

The tax for 1874 was laid, and due, before the assignment, The personal property was liable to distress at the time the assignment was made. No such change of possession took place as to remove that liability.

The School Directors of the City of Lancaster v. Rathvon, 6 Casey 533, has been cited as sustaining a different view. An examination of that case, shows it to be wholly unlike the case now under consideration. There all the taxes assessed on the real estate had been paid. 'No question was raised as to the liability of the assignee to pay those taxes, nor of the liability of the personal property thereon, to distress for their non-payment. The only question was whether the “ bills receivable” were liable to assessment and taxation in the hands of the assignee ? The court held they were not. Nothing in that case, in the slightest degree, impinges on the doctrine that the personal property on the land is liable for the taxes assessed on the same land.

It follows, therefore, the learned judge erred in entering judgment in favor of the defendant, and it must be reversed.

Judgment reversed.. And now, to wit, May 7th 1877, judgment is hereby entered in favor of C. W. Wright, one of said plaintiffs, for the sum of $802.22, and in favor of Charles Slingluff, the other plaintiff, for the sum of $286.20, according to the case stated.