author: by Agnbw, J.

text:
    Rapho and West Hempfield Townships versus Moore.
    1. Without the duty to repair a highway, no liability rests upon- the municipality for latent defects.
    2. As a general proposition (not universal) bridges are treated as portions of the highway, and are to be maintained by the same persons as the highways.
    3. In Pennsylvania the duty of maintaining highways is statutory.
    4. Where a bridge crosses a stream dividing townships, the duty of maintaining it is on the townships jointly.
    5. The personal liability of the supervisors for neglect of duty, does not lessen the liability of the township to those injured by the neglect.
    6. Constant watchfulness by the supervisors is their duty.
    7. A municipality though bound to the duty of maintenance and repair, is not absolutely bound for the soundness of the structures it erects as part of the highway.
    ’8. A municipality is not an insurer against all defects, latent as well as patent, in its structures on highways, but is liable for negligence.
    9. Where the defect in a lawful structure is latent, or is the work of a wrongdoer, either express notice of it must be brought home to the corporation, or the defect must be so notorious as to be evident to all passers, when the corporation is charged with constructive notice.
    10. What is negligence is a question in each case, and must depend on its peculiar circumstances.
    11. When a bridge has stood for the time timbers are expected to last, and it may be reasonably expected that decay has set in, it is negligence to omit all proper precautions to ascertain its condition.
    12. In such case appearances will not excuse the neglect, but it is the duty of supervisors to call to their assistance those whose skill will enable them to ascertain the state of the structure.
    13. Acts of Assembly as to township bridges, examined and construed.
    May 2d 1871. Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Lancaster county: No. 56, to May Term 1869.

      This was an action on the case for negligence, brought January 10th 1887, by Michael H. Moore, against the township of Rapho and the township of West Hempfield.
    The declaration was that while the plaintiff’s “ teamster was hauling grain in a four-horse wagon on a public highway over a certain public bridge spanning the Big Chicquesalunga creek, and thereby connecting together the two townships of Rapho and West Hempfield, the said bridge, by reason of not being in good order and repair, gave way and broke and precipitated the wagon, horses and grain into the said stream, causing great damage to the said plaintiff, to wit: killing one horse, destroying the wagon-bed, damaging wheat-bags, wheat, &c.”
    The plaintiff, gave evidence that as his wagoner was driving on the bridge mentioned in the declaration, the bridge broke down and that the wagoner with the wagon and horses went through the breach into the creek, one horse was killed, the wheat injured, some of it entirely lost, &c.
    He gave evidence also that the broken timbers of the bridge as seen afterwards were rotten; the main brace was rotten, this was the cause of the bridge giving way; this could have been seen by proper examination. The bridge was eight or nine years old, which was about the length of time such a bridge should last. The bridge had been built in 1858, and shortly after a corner of it was torn off by a wagon running against it and had not been repaired: in the opinion of a witness this was the reason of the timbers rotting. The bridge was an uncovered one.
    There was evidence that before the accident, there was no appearance of weakness in the bridge, that the supervisors had examined it shortly before and had discovered nothing indicating unsoundness, that the wagon and its load were of great weight, &c.
    • The defendants’ points were:
    1. If there was any act done, or any negligence on the part of plaintiff or his agents in any way contributing to the accident of breaking down of the bridge, plaintiff cannot recover.
    2. The bridge being used by plaintiff and others without knowledge of anything about it being deficient, and no notice of any kind concerning it given supervisors, the occurrence complained of was an unavoidable accident, and plaintiff cannot recover.
    3. The alleged defect in bridge being latent, the supervisors could not know it, nor could ordinary skill and care have guarded against accidents.
    The court (Long, P. J.,) answered these points as follows:
    1. According to the language of the Supreme Court, if the plaintiff or his teamster was guilty of culpable negligence or want of ordinary care, it will be a good defence to this suit. Now, what constitutes culpable negligence or want of ordinary care ? I will state that if the plaintiff or his teamster put such an excessive and improper load on his wagon, as no person of ordinary or common prudence would have done, and such excessive or improper load contributed to the accident which resulted in the alleged damage to the plaintiff, no recovery should be had. But if the weight which was placed on the wagon was not more than other persons of ordinary prudence placed on their wagons, and that wagons of similar burden and weight had been in the practice of passing over the bridge, then there would not be such negligence as would preclude the plaintiff from recovering on that account.
    October 9th 1871,
    2 and 3. It was the duty of the supervisors of the defendants to keep the bridge in good order and repair, and therefore if the facts set forth in these points be true, still if the injury complained of resulted in consequence of the bridge being out of repair or not in good order, the omission or neglect of the supervisors to keep the bridge in good order, whether wilful or otherwise, will render the defendants liable for any damages which have accrued in consequence of such omission to repair, although they may not have had notice of the bridge being defective, or that it was of a latent defect. But the claim against them would be rendered stronger if they did not use all the proper means to ascertain whether there was any defect, and immediately repair it. But if the plaintiff or his teamster was guilty of the negligence to which I referred in my answer to the defendant’s first point, he then cannot recover. I do not consider this was an unavoidable accident.
    The verdict was for the plaintiff for $378.03.
    The defendants took out a writ of error and assigned the answers to the points for error.

      N. Hllmaker, for plaintiff in error,
    cited Reeves v. Del., Lack. & W. Railroad Co., 6 Casey 465; Pittsburg v. Grier, 10 Harris 54.

      A. II. Smith, for defendant in error,
    cited Erie v. Schwingle, 10 Harris 388; Humphreys v. Armstrong, 6 P. F. Smith 204.
   The opinion of the court was delivered,

by Agnbw, J.

But two questions need to be noticed in this case — • the duty of repair and the liability of the townships for latent defects. Without a duty of repair no liability rests on the municipality. As a general proposition, but by no means universal, bridges are treated as portions of the -highways which cross them, and are to be maintained by the same persons to whom the duty of repairing the highways is committed: Shear. & Red. on Negligence, § 248. In this state the duty is statutory, and therefore we must look to the statute for its nature and extent. The 6th section of the Act of 13th June 1836 requires public roads or highways to be effectually opened and constantly kept in repair, and at all seasons to be kept clear of all impediments to easy and convenient passing and travelling, at the expense, of the respective townships, as the law shall direct. By the 10th section those laid out on a line which divides two townships shall be opened and kept clear and in repair at the joint and equal charge of such townships. The 27th and following sections require these duties to be performed through supervisors, to whom large powers are given for the purpose: Brightly 876, pl. 41, 42, 43, &c. Coming to the 34th section, it is provided that where a small creek over which a bridge may be necessary shall be the boundary, or on the division line of townships, the bridge shall be built and maintained at the joint and equal expense of said townships, by their respective supervisors, in the manner directed by law in the case of public roads, which may be the division line of the townships: Brightly 822, pl. 56. Thus it is clear that by law the primary duty of maintaining and repairing the bridge in question lay on the townships defendants jointly; the stream over which it -was built being on the division line between them. For this purpose the supervisors of roads of the respective townships were the agents constituted by law; and it is equally clear that the personal liability of the supervisors, for their neglect to perform this duty, does not lessen the primary liability of the townships to those who suffer injury from their neglect. These principles will be found to be fully supported by the following cases: Dean v. New Milford Tp., 5 W. & S. 545; Erie City v. Schwingle, 10 Harris 385; Pittsburg v. Grier, Id. 54 ; Humphreys v. Armstrong Co., 6 P. F. Smith 204; Penna. and Ohio Canal Co. v. Graham, 13 Id. 290; Meadville v. Erie Canal Co., 6 Harris 66. That an action on the case will lie at the suit of a party who has suffered a special injury, as in this case, is also shown by the same authorities.

But it is contended that the defect in this bridge being latent, no liability can be imputed to the townships until it is shown that notice of the defect was given to the supervisors in whose charge the bridge lay. This is the chief question, and is not without difficulty. The defect here was the inward rottenness of the timbers which constitute the main strength and chief support of the bridge. It was not outwardly visible, one of the supervisors having inspected the timbers outwardly a short time before it fell. But the evidence shows that the bridge had been erected and stood the time it is usual that such timber will last, that it was uncovered and open to the weather, and that the actual state of the timbers can be ascertained by persons having ordinary skill upon such a subject. It was testified that the internal condition of the timbers can be readily determined by boring into them at proper points. The question of liability for this latent defect was determined by the jury on these facts ; the court having instructed them that constant watchfulness, on part of the supervisors, was a duty to the public, and having left it to them to determine whether the supervisors had used ordinary care in performing this duty, and in-applying the proper tests to ascertain the soundness of the timbers of the bridge. That a municipal corporation, though bound to the duty of maintenance and repair, is not absolutely bound for the soundness of the structures it erects as parts of a public highway, must be admitted to be the general doctrine of the authorities on this question. It is not an insurer against all defects latent as well as patent, but is liable only for negligence in the performance of its duties. Hence it is said in Shear. & Red. on Negligence, § 148, as the result of the authorities, that when the defect in a lawful structure is latent or is the work of a wrongdoer, either express notice of it must be brought home to the corporation, or the defect must be so notorious as to be evident to all who have occasion to pass the place or to observe the premises, in which case the corporation is charged witheu-fr constructive notice, being in fault for not knowing the fact: Id. § 407. But what is negligence is itself a question in each case, and must always depend on its peculiar circumstances. “ Great danger demands higher vigilance and more efficient means to secure safety —where the peril is small, less will sufficeF. & B. Turnpike Co. v. Phila. & Trent. Railroad Co., 4 P. F. Smith 350. “ The degree of care having no legal standard, but being measured by the facts that arise, it is reasonable such care must be required, as it is shown, is ordinarily sufficient under similar circumstances, to avoid the danger and secure the safety neededId. Applying these principles here, it may be asked what structure more important in view of the safety of life and property, can be well imagined than such a bridge as this, having a span of 52 feet, crossing from 10 to 12 feet above the stream whose water is middle deep. The accident itself is evidence of its important character. The plaintiff’s wagon was overturned in the fall, the body crushed, the load of wheat fell underneath it into the stream, and one of the horses was killed. As remarked by our brother Read, “ A bridge looks fair till it breaks down; it is not like a pit which you can see and avoid.” “In practice it is used up to the last moment:” Humphreys v. Armstrong Co., 6 P. F. Smith 204. Hence such a structure demands constant vigilance to guard and preserve it. Therefore, when a bridge is old, having stood for the length of time the timbers composing it are accustomed to last, and when it may be reasonably expected that decay has set in, it is negligence to omit all proper precautions to ascertain its true condition. Nor will mere appearance in such a case excuse the neglect. It is a matter of common knowledge that invisible defects may, and under such circumstances probably do exist; that either wet or dry rot may have set in, and not be visible, and therefore should be sought for. But no one of ordinary intelligence would think of seeking for an inward and invisible defect by merely inspecting the surface of the wood. This being the case, it is clearly the duty of the supervisors, having thus reason to believe that defects may exist, to call to their assistance those whose skill will enable them to ascertain the true state of the structure, and determine the question of its safety. Without doing this much at least, their duty to the public is not performed. Not to do it is therefore negligence, and this is the point on which the case went to the jury. There is therefore no error in the submission. The exceptions to the evidence have but little merit, and are not properly assigned. They are therefore not noticed.

Judgment affirmed.


source: Caselaw Access Project

author: by Agnew, J.

license: Public Domain

text:
    Armstrong’s Appeal. Breneman’s Estate.
    1. It is not a good assignment of error to say that “the court overruled the 1st exception,” without setting out the exception.
    2. Pleadings are as essential in a court of error as in the court helow.
    3. By the assigdment, the plaintiff in error declares and defendant pleads whatever he chooses to rely upon.
    4. Assignments of error should he filed of record; the paper-book is no. part of the record.
    ■ 5. The wife of an administrator purchased land at his sale, made by order' of the Orphans’ Court; the sale was confirmed : afterwards the wife sold at an advance. Held, that the administrator could not be charged with the profit, there having been no fraud.
    6. By the confirmation, the price with which the administrator should be charged, was judicially ascertained.
    7. The sale was the act of the court, and within their power to set aside upon exceptions or a higher bid.
    8. Demmy’s Appeal, 7 Wright 169, Hays’s Appeal, 1 P. P. Smith 58, adopted; Dundas’ Appeal, 14 P. P. Smith 325, distinguished.
    May 2d 1871. Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Appeal from the Orphans’ Court of Lancaster county : Of May Term 1871, No. 87 in the estate of Fanny Breneman, deceased.
    The decedent died September 30th 1868, intestate, and administration of her estate was granted to Andrew Armstrong. His account was confirmed nisi, December 20th 1869; a number of exceptions were filed to the account by the other heirs, which with the account were referred to D. Gr. Eshleman and A. Slaymaker, Esqrs., as auditors. The 4th, which was the only one considered in the Supreme Court, was as follows:—
    4. Accountant has not charged himself (and should he charged) with the difference between the price for which the real estate of Fanny Breneman was bid in by Mary A. Armstrong, his wife, at the public sale held by him as administrator of Fanny Breneman’s estate, viz., $7200 and the price for which he has since sold the same, viz., $190 per acre, amounting to the sum of $9396.68; said difference being $2196.68.
    May 18th 1871,
    The facts which gave rise to this exception are these:—
    ■ The decedent was the sister of Mary Armstrong, the wife of the administrator. The sisters as tenants in common, owned a tract of land in East Donegal township, Lancaster county, containing about 99 acres. Under proceedings in partition in the Orphans’ Court and after refusal by the heirs to take the real estate at the valuation, the court on their application issued an order to the administrator to sell the decedent’s interest in the land. The land was sold at public sale in the manner and upon the terms directed by the court, to Mrs. Armstrong for $7200. The report of the sale having been made to the court, was confirmed absolutely November 16th 1868. In the autumn of 1869, the whole tract was sold to Andrew Garber : the amount realized from this sale was $17,093.36, the half of which, $8546.68, being $1346.68 .more than Mrs. Armstrong had gi-ven at the administrator’s sale; with this sum the auditors said they felt themselves constrained to surcharge the administrator, although in their “ opinion, the sale made to Mrs. Armstrong was entirely bond, fide and untainted with fraud. ”
    The administrator filed four exceptions to the auditors’ report.
    The court confirmed the report, and he appealed to the Supreme ' Court.
    He there assigned errors as follows: — ■
    “ The court erred in overruling the 1st, 2d, 3d and 4th exceptions filed by the accountant, to the report of auditors, and in confirming the said report notwithstanding.”

      B. W. Patterson and K. M. North, for appellant, cited
    Davoe v. Fanning, 2 Johns. Ch. R. 25, 1 Cruise’s Dig. 551; Snyder on Vendors 436; Dundas’ Appeal, 14 P. F. Smith 325.
    Cr. M. Kline (with whom was J. B. Livingston), for appellees,
    cited Chew’s Appeal, 9 Wright 228; Price’s Appeal, 4 P. F. Smith 472.
   The opinion of the court was delivered,

by Agnew, J.

The assignment of errors in this case is entirely defective. It is not a1 good assignment of an error to say that the court overruled the first exception, without setting out the exception itself. Pleadings are as essential in a court of error as in the court below. The assignments of error serve the same purpose in the former as a declaration in the latter; to place in the record and before the court the very issue to be determined. Hence the plaintiff in error, by his assignment as it is termed, declares, in the record itself, what error it is he complains of. To this the defendant replies in nullo est erratum, or any other plea which he chooses to rely upon. For instance he might reply a release of errors, or the Statute of Limitations of seven years to taking out a writ of error. I should not have thought of mentioning what every lawyer ought to know, but for the surprising fact brought out in a case before us last week, that it is a common practice in this district to file no assignments of error of record, but to argue the case upon those contained in the printed paper-book. The paper-book is no part of the record, but a convenient mode only of presenting the case for the consideration of the judges. We might therefore refuse to consider any of the errors attempted to be assigned in this case, but we shall proceed to notice one of grace and not of right.

We think the auditor and court below erred in surcharging the administrator in his account with the sum of $1346.68, money which never came into his hands, but which it is supposed he ought to have made by the sale under the order of the Orphans’ Court. The accountant sold the real estate of the decedent under an order of the Orphans’ Court of Lancaster county, upon proceedings in partition among the heirs who had refused to accept the. premises. The sale was regularly made, returned and confirmed; no exceptions having been made to it by the heirs. Mrs. Armstrong, the wife of the administrator, became the purchaser at a fair and open public sale. The auditor finds that the transaction was perfectly fair and without fraud. The legal disability of Mrs. Armstrong as the wife of the administrator to become the purchaser at her husband’s sale, is the only ground upon which the surcharge took place. But the question of trust in her purchase is not an element in the present case. This is an attempt to surcharge the administrator in the settlement of his account and not to recover the property or set aside the sale. There" being no actual fraud, and the sale having regularly passed through the Orphans’ Court and been confirmed by it, the price obtained for the property has been judicially ascertained. The heirs were parties to the proceeding, and directly interested in it. The sale was the act of the court, the administrator being only the hand of the court in making it. It was therefore wholly within the power of the court, and could be set aside upon their exception and even upon an offer of a higher bid for the property. This is definitively settled in Demmy’s Appeal, 7 Wright 168, and Hays’s Appeal, 1 P. F. Smith 58. Indeed we decided last winter in Philadelphia that a sale confirmed might be opened for a higher bid in the discretion of the court, taking care to make the purchaser whole for any loss sustained: Brown's Appeal, antea, p. 35. The reasons are so well set forth by Justice Strong in the cases above cited, nothing more need be said on this point. Such a sale as this differs wholly from the case of a sale by an executor or trustee under a power contained in a will or deed. Hence the case of Dundas’ Appeal, 14 P. F. Smith 325, referred to by the auditors, is inapplicable, no confirmation by the court being necessary in a sale under an express power. But even in that case we held the power of the Orphans’ Court under the jurisdiction conferred in the Acts of 1832 and 1836, was adequate to the correction of irregularities in such a sale. As to the conclusiveness of the decrees of the Orphans’ Court nothing need be said. The books are full of cases, especially modern decisions, establishing this principle. The report of the sale by the administrator and of the price brought by it, followed by confirmation by the Orphans’ Court, conclusively establishes, in the absence of fraud, the sum with which the administrator shall be charged; otherwise he would be left wholly unprotected, and compelled years afterward on a settlement of his account to defend the sale, when witnesses may be absent or dead, and the evidence lost.

The decree of the Orphans’ Court is therefore reversed as to this item of surcharge of $1346.68 — the surchage stricken out of the account, and the record remanded to the Orphans’ Court with directions to proceed according to law; and the costs of the appeal are ordered to be paid out of the estate.


author: by Read, J.

text:
    McNeel’s Estate. Pennock’s Appeal.
    1. An executrix filed her account Mdy 13th, it was confirmed June 17th 1867. On the 16th of June 1870, the balance on the account not having been distributed, persons interested residing in another county, asked for a review, setting out that the executrix had not produced to the appraisers, nor introduced into her account, a large amount of assets of the estate. The petitioners averred that they did not know of the settlement till after the confirmation and therefore had no opportunity to object. The Orphans’ Court dismissed the petition, as not showing error in law, matter since the decree or new proof. The Supreme Court reversed the decree and ordered a review.
    2. The omission of the assets from the inventory and account was a fraud or its equivalent.
    May 2d 1871. Before Thompson, C. J., Read, A&new, Sharswood and Williams, JJ.
    Appeal from the Orphans’ Court of Lancaster county: No. 38, to May Term'1871.
    On the 16th of June 1870, Enos Pennock, administrator d. b. n. c. t. a. of Lavinia McNeel, late of Lancaster county, deceased, and Priscilla B. Pennock, a legatee under her will, petitioned the Orphans’ Court, setting forth,—

      That Jemima B. Carpenter, executrix of the said deceased, settled an account of her administration on the 17th of June 1867, and there are errors in said account as follows:—
    1. That the said accountant failed to charge herself with certain United States bonds and other securities, amounting to over $3000.
    2. That the inventory of the personal estate of the said Lavinia did not contain a full statement of all the estate of the said decedent, and that the said executrix frequently admitted that she had in her hands certain .United States bonds of the value of $1500, and other securities which she did not produce to the appraisers, or cause to be inventoried. The said Jemima, on the 12th of October last, was married to a certain John A. Tyler, and died in California within ten days thereafter, and that William Darlington, Esq., of West Chester, Chester county, in the state of Pennsylvania, is her administrator. That neither of the said petitioners were aware of the settlement of said account by the said Jemima till after it was confirmed, and that they had no opportunity whatever at the time, by reason of their ignorance of the proceeding, to object to such confirmation.
    They prayed the court to review and grant a rehearing of so much of the same as is herein alleged to be error, &c.
    The petitioners afterwards filed a supplemental petition, setting out more specifically the securities alleged to be unaccounted for.
    The account was filed May 13th 1867, and showed in the accountant’s hands a balance of $1619.14.
    A citation was issued to William Darlington, Esq., the administrator of the executrix, to show cause why there should not be a review of her account, returnable June 28th 1870.
    On the return day he answered:—
    “That the petitioners have not alleged, the existence of any facts entitling them to a review of the decree of the court confirming the account of the said Jemima B. Tyler, executor of the said Lavinia McNeel, deceased. They have not alleged that any error of law appears in the body of the decree; or that any new matter since the decree, or that any new evidence as to the facts on which the decree was grounded has been since discovered. The defendant does not believe that any such new matter has arisen, or any such new evidence has been discovered since the decree.”
    The court (Hayes, J.) delivered the following opinion, and dismissed the petition with costs:—
    “ In this petition for review of an account of administration, settled and confirmed in 1867, there is no assertion of error in law apparent on the face of the record, or in the body of the decree of confirmation; nor is there any averment of new matter which has arisen since the decree, or of any new proof which might not have been used at the time the decree was passed. The petition for review is rested simply on the ground of the petitioners’ ignorance of the account or decree. But the cases have definitely settled the law upon this subject, and it is clearly stated by Mr. Justice Strong, in Hartman’s Appeal, 12 Casey 75, in the following language: ‘ A petition of review must aver error of law appearing in the body of the decree sought to be reviewed, or new matter which has arisen since the decree, or that new proof has been discovered which could not possibly have been used at the time when the decree was made.’ Unless the petition is supported by one of these conditions it cannot be maintained, either on the score of right or as a matter of grace, appealing to the discretion of the court, but must be dismissed. This petition is deficient in the three essentials, as neither showing error in law, nor matter arisen since the decree, nor any new proof which might not have been used when the decree was passed.”
    October 12th 1871,
    The petitioners appealed to the Supreme Court, assigning the-decree for error.

      O. J. Dickey and D. W. Patterson, for appellants,
    cited Act of October 13th 1850, § 1, Pamph L. 1 Purd. 301, pl. 173; Parker’s Appeal, 11 P. F. Smith 478; Hartman’s Appeal, 12 Casey 75.

      W. Darlington, appellee, p. p.
   The opinion of the court was delivered,

by Read, J.

Lavinia McNeel, of Lancaster, died in the year 1865, leaving a will which was proved in the register’s office of that county, and letters testamentary were issued to the executrix, Jemima B. Carpenter, a niece of the testatrix, on the 27th of November 1865, who filed an account of deceased’s estate in the said register’s office on the 13th day of May 1867, and the same was confirmed by the Orphans’ Court on the -17th of June 1867, showing a balance due the estate and in the hands of the accountant of $1619.14, which has never been paid or distributed.

The wife of Enos Pennock was a sister of Lavinia McNeel, and Priscilla B. Pennock was a niece, and both residents of Chester county; on the 12th October 1869, Jemima married John A. Tyler, and died in California ten days afterwards.

The said Enos and Priscilla, persons interested therein, presented their petition of review, alleging errors in said account, which are specifically set forth in it. They are,—

1. That she did not inventory or produce to the appraisers certain United States bonds, stocks and securities amounting to $3000.

2. That she never put the same into her account, which would have increased the balance due by her from $1619.14 to $4619.14, leaving out of the account nearly two-thirds of the whole estate.

The petitioners both affirm “ that neither of the said petitioners were aware of the settlement of said account by the said Lavinia till after it was confirmed, and that they had no opportunity whatever at the time, by the reason of their ignorance of the proceeding, to object to such confirmation.”

The proceedings from the filing of the account to its confirmation occupied one month and four days, and consisted of two formal acts only, filing and confirmation.

, The administrator of Mrs. Tyler, William Darlington, Esq., virtually admitted the facts of the omission in the inventory and account, and the ignorance of the petitioners of its settlement and confirmation by not denying them, but taking a technical defence, which will not serve in a case like the present.

The omission of nearly two-thirds of the estate in the inventory and in the account was a fraud, or its equivalent, and no court will permit such a gross error to remain uncorrected.

Suppose the estate had been $100,000, and $60,000 had been omitted, would any court permit the husband to pocket the fruits of a fraudulent omission by his wife ?

The court, therefore, erred in dismissing the petition of review, and the decree of dismissal is reversed, and the Orphans’ Court is directed to grant a rehearing of so much of said account as is alleged to be error in said petition of review, and give such relief as equity and justice may require by reference to an auditor, . or otherwise.


author: by Sharswood, J.

text:
    Knox versus Sprecher.
    1. When partners on a settlement make a division of assets consisting of evidences of indebtedness, unless it is otherwise expressly agreed, the partners are respectively liable for loss from the insolvency of the debtors or causes not attributable to negligence.
    2. The division primft facie is for the convenience of collection only, throwing upon the partner who receives the assets, good faith and reasonable diligence.
    3. It makes no difference that a note from a debtor of the firm was in favor of one partner, a discount obtained by him and the note subsequently renewed in his name;
    4. Kelly v. Kauffman, 6 Harris 351, recognised.
    May 2d 1871. Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Lancaster county: No. 36, to May Term 1871.

      This was an action of assumpsit brought January 9th 1869, by Lewis Spreeher against Samuel M. Knox.
    The parties had been partners as drovers, and had had a settlement of their accounts. Amongst other assets was a note from Milton Seldomridge for $713, given for the price of cattle of the firm purchased by him. The note was dated September 16th 1863, payable to the plaintiff Spreeher in 60 days. This note was discounted at the Lancaster County Bank and the proceeds passed to Sprecher’s credit; afterwards Seldomridge through the defendant paid $60 or $70 on the note and it was renewed at bank by another note dated November 17th 1863, at 30 days, drawn by Seldomridge to the plaintiff for $638.
    On the 18th of December, the note being unpaid, the plaintiff endorsed on it, “ I hereby guaranty the payment of the within note without protest.”
    Seldomridge died insolvent and the plaintiff paid the note; he brought this suit to recover from the defendant his proportion as partner.
    The defendant alleged that the settlement was final, and that this note was taken by the plaintiff as part of his share of the assets without recourse to the defendant.
    The charge of the court (Hayes, J.) presents the facts of the case, and with the instructions on the points, and the opinion of the Supreme Court, will sufficiently exhibit the questions raised and decided.
    The points of both parties with their answers are as follows:—
    Plaintiff's point: “Unless at the time .of the settlement there was an express agreement between Lewis Spreeher and Samuel Knox, that Knox should be released from any responsibility on account of this note, the plaintiff is entitled to recover the one-half of the amount paid by him to the bank, with interest.”
    Answer: “ At the settlement, if anything remained in the shape of a debt, or any effects belonging to the partnership, from which any loss afterwards occurred — and nothing was agreed upon at the settlement with respect to such a loss — the partners would have to share the loss, as they shared the profits; and if one partner incurred the loss by paying from his own means, so as to relieve his co-partner, he may recover what he thus paid for him as his contribution to the loss. If this note was considered and treated by these parties as assets of the partnership, when they came to the settlement, and if nothing was said about losses, and the note was retained by Lewis Spreeher to collect as a note belonging to the firm, then on a loss occurring by the insolvency of Milton Seldomridge, the loss should be divided, unless Lewis Spreeher was guilty of gross neglect in not collecting from Milton Seldom-ridge, if by proper vigilance he might have recovered the money from him. But if the note was taken by Lewis Spreeher as his part or share of the partnership effects, and the settlement was oy the agreement of the parties a full and final settlement, without any stipulation as to future contribution, in case this note could not he collected; and if Mr. Sprecher, by his subsequent proceedings in regard to this note, by its negotiation and renewal and guaranty,- considered and treated it as his own, he cannot recover from Mr. Knox, on account of his not collecting the note-from Milton Seldomridge.”
    Defendant’s points: “ 1. Sprecher and Knox having made a full settlement of the partnership transactions and whatever balance remained having been paid over, it would not be in the power of either party now to open such settlement, unless upon the ground of fraud or clear mistake.
    “2. Sprecher having taken the Seldomridge note for cattle he himself sold him, made payable to his own order, having it discounted for his own use and receiving it in his own name, and this without the knowledge and consent of Knox, he is now debarred from a recovery against him;
    “ 3. It was the duty of Sprecher, if he meant to look to Knox for any part of the claim in dispute, to have used all legal means for collecting the amount from Seldomridge, who was at the time good and solvent.
    “ 4. If Sprecher, at the time the note of September 1863 fell due, knew or believed Seldomridge not good, then took a new note from him payable to Sprecher, he took the risk, and cannot now look to Knox for any part of it.”
    Answers: “1. Whether the parties made a full settlement precluding any claim for contribution in case of losses to occur, is the question for the jury to decide from all the testimony in the case.
    “ 2. If the note on the settlement was treated as partnership property, notwithstanding its form, and retained as such by Lewis Sprecher for collection, his discounting it in bank would not debar his recovery against Samuel Knox for his contribution to the loss occasioned by Milton Seldomridge’s failure to pay, though he placed it in bank without Samuel Knox’s knowledge or consent.

      “ 3. It was Spreeher’s duty to use all reasonable diligence to collect the amount from Seldomridge. Whether Seldomridge was at the time good and solvent, is a question for the jury.
    “ 4. The taking of the new note referred to was for the renewal of the discounted note, and did not change the character of the transaction. If Sprecher then believed Seldomridge not good, the renewal was for Sprecher’s ease, who, in case the drawer did not or could not pay, must have paid it at that time himself. He did not take any additional risk, but renewed that of his first endorsement ; so that if Knox was liable to contribution when the note was first placed in bank, the renewal did not relieve him. Whether he was liable or not depends upon whether there was any, and what was the agreement at the time of the settlement in relation to this note; this is the hinge of the ease.”
    The court charged:—
    “These parties were partners in the purchase and sale of cattle and sheep. In the fall of 1863 they bought a drove of cattle and one of sheep in Franklin county, Sprecher paying for and taking charge of the cattle, and Knox paying for and taking charge of the sheep; they brought them to this county for sale, and met at Witmer’s bridge. Knox sold out the sheep and Sprecher the cattle. The respective droves were held in partnership, but the business of selling as of buying was conducted by the several partners separately, Knox selling all the sheep and Sprecher all the cattle. The only exception was two head of cattle which Mr. Knox sold as he states for Lewis Sprecher, and paid over to him the price received for them.
    “ When all the sales were made the parties met together at L. Sprecher’s tavern in this city, and from their pass-books, settled and divided the profits, amounting, as S. Knox remembers, to a little more than $400. Among the sales of cattle was one of $713 to Milton Seldomridge, for which Lewis Sprecher received his note drawn to his order. This note was at the settlement treated as part of the partnership funds in estimating the profits, and was left in the hands of Lewis Sprecher. It has not been collected; Milton Seldomridge became insolvent and died. It was discounted by Mr. Sprecher at the Lancaster County Bank, and renewed after some $75 paid upon it by Seldomridge, and subsequently remained in the bank with payment guarantied by Mr. Sprecher for two years, when he paid the amount which he had drawn from the bank, and received the note from the bank. It is this note which is the matter of controversy in the present suit. Lewis Sprecher demands the one-half of its amount from Samuel Knox, as his contribution to the loss sustained by reason of Milton Seldom-ridge’s insolvency and failure to pay the same. Mr. Knox defends the suit on the ground that the settlement between him and Mr. Seldomridge was final and complete, and that this note was taken by Mr. Sprecher as his portion or a part of his share in the partnership effects. As no one was present at the settlement besides the parties, their statements here (on the witness stand) are the only direct evidence you have of that transaction. Whatever the agreement was, on that settlement with respect to the disposition of this note, should bind them. If there was no agreement (which if made would be the law of the ease made by themselves) the matter would fall within the law of partnership, which shares the loss as well as the profits of partnership adventures. What the agreement was, or whether there was any, you will have to decide according to all the testimony before you. Samuel Knox affirms that the settlement was full and square, and that nothing was said or agreed about the note, if the money was not collected from Milton Seldomridge. Lewis Sprecher affirms that there was an understanding and agreement when they settled that any losses that might occur from the business or this note were to be shared between them. [If you find there was no agreement, and that the note was treated as partnership funds in the ascertainment of the profits, without any stipulation to the effect that Lewis Sprecher would not have recourse to his copartnership in case he could not collect it, and it was not collected only through his gross neglect, your verdict should be in his favor for such amount as the defendant ought to contribute to the loss ; that is, one-half; but if it was agreed at the settlement that Lewis Sprecher should take or retain this note as a part of his share of the partnership effects, if he retained the same with that understanding as his own, and treated it afterward as his own, and either failed in dué diligence to press the collection, or to make or to intimate to Samuel Knox that he was to be accountable for his share óf the loss, if any should happen — facts which, if shown, might be regarded as evidence of what the agreement was — your verdict should be for the defendant.”]
    May 11th 1871,
    The verdict was for the plaintiff for $452.64.
    The defendant removed the record to the Supreme Court.
    The errors assigned were:—
    1. That the form of action should have been account render.
    3-5. The parts of the charge in brackets and the answers to the points of the parties.
    AT. Bllmaker, for plaintiff in error.
    As to the charge of the court and the answers to the points cited: Kelly v. Kauffman, 6 Harris 351; Lefever v. Underwood, 5 Wright 505.

      B. H. Yundt (with whom was B. B. Bshleman), for defendant in error,
    cited Kelly v. Kauffman, supra; Collyer on Part., p. 2, § 3.
   The opinion of the court was delivered,

by Sharswood, J.

No point was presented to the learned judge below in regard to the form of action, nor indeed does it anywhere appear on the notes of evidence returned with the record, nor in the copy of the charge filed, that such an objection was made on the trial. The 1st assignment of error is therefore not sustained. The 2d error is not assigned according to our rules upon that subject, Rule VIII., 6 Harris 578, and is therefore to be held “ the same as none.”

The remaining errors assigned are to the charge of the court, and to the answers to the points of the defendant below. They may all be considered together. The plaintiff and defendant were drovers and had been partners in the purchase and sale of two lots of certain cattle and sheep. Sprecher paid for and took charge of the cattle, and Knox of the sheep. When after the stock was all sold they came togethef to make a settlement and division of the profits, the note of a man named Seldomridge, which Sprecher had taken for cattle sold, was left in his hands. It turned out that Seldomridge was either insolvent at the time or proved to be so subsequently. It is to recover from Knox contribution to this loss that Sprecher instituted this action of assumpsit. Both parties were examined as witnesses, and differed very materially in their account of the agreement and understanding between them about this note at the time of the settlement. Knox asserted that it was understood that the settlement was final and absolute, and that Sprecher took the note as so much eash. Sprecher denied this and insisted that when they settled they agreed that the money that was lost each was to lose one-half. This certainly presented a square issue of fact for the decision of the jury. When partners on a settlement make a division of assets consisting of choses in action as notes or other evidences of indebtedness belonging to the firm, unless it is otherwise expressly agreed, they remain liable respectively for whatever loss may subsequently appear from the insolvency of the debtors or other causes not attributed to negligence in either. The division primá, facie is for the convenience of collection, only throwing upon the partner who receives the assets the obligations of good faith and reasonable diligence. If Sprecher was to be believed, Knox recognised his continuing interest in the note after the settlement; for after he had procured the note to be discounted, he consulted Knox as to paying it. He testified: Then I said, Supposing I go and pay the note, and you and me will make it some other time. And he agreed to that. He thought it would be better, and I paid the note.” Knox, it is true, denied this statement, but after such evidence it can hardly be pretended that it was not a question for the jury whether Sprecher had acted fairly and with reasonable diligence.

The case of Kelly v. Kauffman, 6 Harris 351, was in all its circumstances, a case very much resembling this. The principles there enunciated sustain the instructions of the learned judge below on the principal matter of contention here. That was a partnership between cattle drovers who had made a settlement and division of assets including a note to the firm, which the maker afterwards failed to pay. It was endorsed in the name of the firm to one of the partners who procured it to be discounted by a bank, but on failure of the debtor had paid it himself to the bank. “ The contract of partnership,” said Lewis, J., is essentially an agreement to participate in the profits and losses. A settlement of the accounts and division of the partnership assets, does not discharge the parties from their mutual obligations to contribute to losses, which may subsequently arise from circumstances not anticipated at the time of the settlement. Nothing short of an agreement mutually releasing each other from such liability will produce that effect.” The judgment in that case was reversed because it was thought that there was no evidence of such an agreement, which ought to have gone to the jury. It can surely make no difference that the note here was originally drawn in favor of the partner to whom it was handed over, or that he procured it to be discounted and subsequently renewed. There may have been circumstances bearing upon the principal questions of fact: Was the note accepted by Sprecher as so much cash ? and if not, did he act fairly and use reasonable diligence in pursuing the claim upon it ? — but these were questions rightly submitted to the jury, and we think with proper instructions upon the law.

Judgment affirmed.


author: by Williams, J.

text:
    Bucher versus Ream.
    1. A husband having failed, he with his wife, who had no separate estate, occupied a farm rented, as was alleged, by the wife, who labored upon it, raised and sold stock, produce, &c. The property was the husband’s as between him and his creditors.
    2. A wife is entitled to the avails of her separate property though the labor of the husband mingles in the production.
    3. Property purchased by the wife on the credit of her separate estate or by her earnings derived from the management of it, is her own.
    4. Where a wife has no separate estate, she can acquire no property with her earnings during coverture.
    5. Her earnings belong to her husband, and if she purchases with borrowed money or on credit, the property belongs to her husband.
    6. Brown v. Pendleton, 10 P. P. Smith 419; Hallowell v. Horter, 11 Casey 375; Rush v. Yought, 5 P. P. Smith 437, recognised.
    May 8d 1872. Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Lancaster county: No. 48, to May Term 1871.
    This was an issue under the Sheriff’s Interpleader Act, framed September 1st 1869, between Polly Bucher, plaintiff and claimant, and Cyrus Ream, assignee of Jacob Bucher, defendant, to try, the ownership of certain goods levied on by the defendant, under his execution, on a judgment for $353.64, issued to August Term 1869, against Jesse Bucher, husband of Polly Bucher.

      The goods were “ two horses, five cows, six head of young cattle, five hogs, one two-horse wagon, one one-horse wagon, spring wagon, hay-ladders, horse-rake, top buggy, plough, one spike and shovel harrow, wheelbarrow, buggy harness, gears for two horses, interest in 20 acres of wheat in the ground, ditto in 12 acres of oats in the ground, ditto in 12 tons of hay, ditto in one acre of rye, about half an acre of potatoes, household and kitchen furniture.”
    The plaintiff was married to Jesse Bucher in 1851, and after her marriage she received from her grandfather’s estate about $1400. According to her own and her husband’s testimony her husband was keeping tavern in April 1860, when he made an assignment of all their property, real and personal, for the benefit of creditors, she joining in the deed. All the property was sold except the household furniture, which she claimed and it was allowed to remain with her. His brother Jacob bought some articles at the assignee’s sale, which were allowed to remain with them. They continued to occupy the tavern as before, the license being in the husband’s name. They remained there some years, and went to the farm of Mr. Lohra, the agreement for renting of which was with the husband. In 1865 they went to the farm of her uncle, Samuel Weinhold, who allowed them to have it out of regard for her at the interest of the money the farm cost him. In 1869 they went to Mr. Geisenberger’s farm, the husband having entered into, and- signed a written lease for that: in both instances the agreements were made on behalf of the wife. From about the time of their assignment the husband had been in feeble health and without any property. She managed the farms with much energy and industry, she and her daughters working on the farm; he worked occasionally. He bought and exchanged the live-stock, utensils, &c., under her direction, the money for the purchases being obtained from the produce of the farm, including butter, eggs, poultry, &c. All the dealing with the latter class of produce was done by herself. She paid the taxes also from the same sources. The goods in dispute were levied on upon the Geisenberger farm where they were living at the time.
    The defendants offered in evidence the record of an action of replevin by Jacob Bucher against Jesse Bucher, in 1862, for the goods he fiad bought at the assignee’s sale and allowed to remain with Jesse, in which a claim property bond was given by Jesse and the goods retained. Also the auditor’s report on the distribution of the assigned estate, in which the plaintiff, Polly Bucher, claimed to have part of the estate as her own property, but in which she failed in consequence of having joined in the assignment. Also, petitions of Jesse for tavern license for 1861-1862 -1863.

      These offers were all objected to by the plaintiff, admitted and several bills of exception sealed.
    He gave in evidence the lease between Geisenberger and Jesse, dated October 24th 1867, for a farm of 88 acres; Jesse “ yielding and paying” to Geisenberger “the yearly rent as follows: one-half of all the winter grain, and one-half of all the summer grain, raised and growing on the premises; the said grain to be delivered by the bushel wherever the said Moses Geisenberger directs, the same inside of five miles from the premises, and the said Jesse Bucher to have about three-eighths of an acre of potatoes, the said Jesse Bucher to repair the old fences and make all the new fences at his own expense, and the said Moses Geisenberger to furnish the rails, and said Jesse Bucher to haul them to the premises, the said Bucher promises to Moses Geisenberger twelve bushels of potatoes and five bushels of apples, and the said Bucher to pay all the taxes, with the exception of the bounty tax, and if said Bucher will deliver any hay on said premises, he shall have the privilege to take so much away again: but said Bucher shall leave as much hay on the premises as he shall receive when he moves on said premises, and said Bucher to sow out again as much winter grain that is now sowed out, in the proper time, next fall, and said Geisenberger to deliver one-half of the seed, and said Bucher to furnish his own fire-wood, and said Bucher will quit and surrender the premises at the expiration of the said term, in as good state and condition as reasonable use and wear thereof will permit, damages by the elements excepted.”
    The Court (Long, P. J.) recapitulated the evidence and charged: * * *
    “ Since the failure of the husband, it appears, horses, wagons, ploughs and other articles, and stock, were bought. The husband and wife both testify that they were bought for her, [although he frequently, if not generally, attended to buying the articles on credit, giving his notes or obligations with bail.] They lived together at the tavern and different farms rented by them. She appears to be a woman of much energy of character and business habits, showing in her management considerable tact in making money. That during this time she also borrowed money without the intervention of her husband. He also, during that time, borrowed money in his name, but which he says, as I observed before, was for her use, and these loans were generally applied in buying articles and stocking the farm, and for carrying on the farming operations, and when the money was repaid, it appears from the testimony, it was done from the produce of the farms, or things raised or produced on them. The articles which Jacob Bucher bought for them, while at the tavern, not being returned, he issued a writ of replevin. The return of the articles was resisted-by Jesse Bucher giving a forthcoming bond, with George Pry as bail. After the case was pending some time, it was settled by the payment of the articles replevied, and she says she paid the money. The testimony leads us to believe that it was paid from her farming operations; at least, it is not shown that it was received from any other source. [But under any circumstances, the title to this property, according to the testimony, we think, continued in the husband; the payment of the money did not change the title.]
    [“ When a married woman claims property which is taken in execution as the property of her husband, it must be clearly and satisfactorily shown that she has a separate estate in such property, that is, that it was paid for by her money, or that it was given to her, and that she holds it independent of her husband; now, it appears to us, she has failed to show this.] The law appears to be well settled that ‘ when the husband knows of and assents to his wife’s purchases, no matter what she does with them afterward, he is answerable on her contract for them. Iiow then can it be said that such goods are obtained by, or result from, the wife’s property, and to be protected by the act. Her credit is nothing in the eye of the law, outside of the special case in which it is allowed, it is allowed to be pledged, and it is esteemed his credit, and the necessary corollary from the legal position is, that the fruits of it are his:’ Robinson v. Wallace, 3 Wright 133. This is the language of the Supreme Court. In the case before us, the goods which she claimed were the result not only of purchases made by him with her consent, but of contracts actually entered into by him, save, perhaps, the money obtained from Weinhold. [It appears that the articles and stock which she claimed as paid for by her, were articles purchased generally by her husband for her use, as she says, and any money paid by her, it would appear, was paid out of the proceeds of the farms upon which they lived.] The husband had an interest in the farms, he was answerable for the rent. He lived oh the farm with his wife ; he being the renter and husband, he would, from the legal position which the law assigned him, be entitled to the fruits of such farms, her labor, under the circumstances, would accrue to his benefit. [In this case, whenever Mrs. Bucher undertook to show payment for any of the articles she claims, and money paid by her, the testimony leads to the presumption that the money was raised out of the land leased by her husband, by written leases entered into by him, but, as it is said, for her use.]
    “ There is no doubt, when a married woman has a separate' estate, she has a right to manage and farm that estate, to receive the profits thereof, and appropriate them to her own use, and the creditors of her husband have no right to interfere therewith. She has a right to hold them, free and discharged from all claims of such creditors; [and, possibly, when a married woman upon her own credit rents a farm, and by her credit and exertions farms it, she would be entitled to the proceeds thereof, and hold it as her own, but that I presume is not the case now before us.] In this case the husband rents the property in his own name, and takes a lease accordingly, lives with the wife and with her works on the farm, although his labor perhaps does not amount to much, purchases articles and gives his notes. It is true that the husband and wife both say, that this was done at the instance of the wife, but that don’t release the husband; he is still responsible, for if he had failed to pay the rent for the farm which he leased, and upon which he and his wife lived, or the notes which he gave for articles purchased for the use of the farms, the stock on them would have been liable. It is said the wife worked on the place and attended to the farm; when a wife does work on a farm, carried on by the credit of the husband, the husband and wife acting together, in a case of that kind the husband would be entitled to the services of the wife. It would be different when she lived on her separate estate or property. [If from the testimony which was given in the case, it would be doubtful from the deductions which could be legitimately drawn from such testimony, whether the property levied upon and in dispute in this case was liable for the debts of the husband, we would not be justifiable in instructing you what your verdict should be, but when the law would be the same from any deductions which could be drawn from the evidence, it is the duty of the court to instruct the jury what their opinion is, and the jury ought to be governed by such opinion. Every case is to be governed according to law. In this case we are of the opinion that upon the law arising upon the facts given in evidence, the plaintiffs have not maintained their suit, and your verdict ought to be for the defendant.”]
    The verdict was for the defendant.
    The plaintiff took a writ of error, and assigned eleven errors, viz.: — •
    1-3. The admission of the evidence objected to.
    4. The court erred, in his charge, in this: “ Although he (meaning Jesse Bucher) frequently, if not generally, attended to buying the articles on credit, giving his notes or obligation with bail,” and not referring to the proofs submitted in relation to the note or obligation signed for his wife.
    5-10. The other parts of the charge in brackets.
    11. The court erred in not submitting the proofs of the evidence in the case of Folly Bucher’s ownership, of the property in question, to the jury as a question of fact, and in saying “ the jury ought to be governed by the court’s opinion, and that their verdict ought to be for the defendant.”

      D. W. Patterson, for plaintiff in error,
    cited Brown v. Pendleton, 10 P. F. Smith 421; Trimble v. Reis, 1 Wright 448 ; Rush v. Vought, 5 P. F Smith 437; Welch v. Kline, 7 Id. 428; Earl v. Champion, 15 Id. 191.
    October 9th 1871,

      W. It. Wilson, for defendant in error,
    cited Rhoads v. Gordon, 2 Wright 277; Auble v. Mason, 11 Casey 261; Gault v. Saffin, 8 Wright 307; Hoffman v. Toner, 13 Id. 231; Hallowell v. Horter, 11 Casey 375; Robinson v. Wallace, 3 Wright 129; Flick v. Devries, 14 Id. 266; Aurand v. Schaffer, 7 Id. 363.
   The opinion of the court was delivered,

by Williams, J.

This case was well tried in the court below. The evidence complained of was properly received. It tended to show that the property in controversy belonged to the husband and not to the wife. And the court rightfully refused to submit the question of the wife’s ownership to the jury. There was no sufficient evidence that any portion of the property levied on was paid for with the funds, or consisted of the products, of her separate estate. On the contrary the evidence showed that the wife had no separate property or estate left, after the insolvency and voluntary assignment of her husband in 1860 in which she joined. The property levied on was subsequently acquired, and as shown by the evidence, was the fruit of their joint labors and earnings. It is clear that the hay in stack, and the wheat, oats and potatoes in the ground belonged to the husband as tenant of the Geisenberger farm;. and it is equally clear that the residue of the property also belonged to him, for it was either paid for with money acquired by the joint labor of himself and wife, or with money borrowed by the wife, for which he was responsible: Hallowell et al. v. Horter, 11 Casey 375; Rhoads v. Gordon, 2 Wright 277. It is true that the wife is entitled to the products and avails of her separate property, though the labor of her husband may mingle in the production: Rush v. Vought, 5 P. F. Smith 437; and property purchased by the wife on the credit of her separate estate or by her earnings, derived from the management of it, is protected from her husband’s creditoi’s: Brown v. Pendleton, 10 P. F. Smith 419. But where the wife has no separate estate, she can acquire no separate property with her earnings during coverture. Her earnings belong to her husband, and if she purchases property with borrowed money or on credit, it belongs to her husband as it respects his creditors, and is liable for his debts: Raybold v. Raybold, 8 Harris 311; Robinson & Co. v. Wallace, 3 Wright 129.

To enable the wife to maintain her claim to the property in controversy, we should have to reverse the rule laid down in. Hallowell v. Horter, and hold that property, purchased and paid for with the joint earnings of husband and wife, belongs to the wife instead of being the exclusive property of the husband, and liable for his debts. Whatever changes may hereafter be wrought by the spirit of modern reform, it has not yet so far changed the law as to give the wife the ownership of her own and her husband’s earnings.

Judgment affirmed.


text:
    Pequea Creek Bridge.
    1. The report of viewers recommending a bridge was referred to a grand jury, who approved it; the action of the grand jury was set aside for irregularity, and the report referred to another who reported “No bridge.” The proceeding here was at an end, and referring the report to another grand jury was error.
    2. The parties dissatisfied should have commenced anew.
    3. The law designs that the court, grand jury and commissioners shall be a check on each other as to expenditure of public moneys in erecting bridges.
    4. When either body disapproves, the proceeding falls.
    5. After a grand jury had disapproved of the viewers’ report, the court made a rule absolute to refer the report to another grand jury. A certiorari from the Supreme Court then sued out, was prematurely issued, there being no final action.
    6. It would have been otherwise, had the report been approved by the grand jury.
    May 3d 1871. Before Thompson, C. J., Read, Asnew, Shabswood and Williams, JJ.
    Certiorari to the Court of Quarter Sessions of Lancaster county: No. 48, to May Term 1871.
    On the 1st of April 1869, inhabitants of the township of Mar-tic and Conestoga petitioned for a bridge over Pequea creek, setting out that the expense of building it would be too great for the township to bear.
    Viewers were appointed recommending the bridge, their report was confirmed nisi by the court August 17th 1869. It was submitted November 19th 1869, to the grand jury who returned it “Approved.” December 29th 1869, the return was set aside for irregularity. At January sessions 1870, the report was referred to another grand jury, who returned it without approval or disapproval. April 20th 1870, the report was laid before another grand jury who returned “No bridge.” On the 25th of November 1870, the court granted a rule to show cause why the report should not be presented to the next grand jury; this rule was made absolute January 14th 1871, and on the 19th a certiorari from the Supreme Court was filed and an application was made that proceedings stay till the determination of the certiorari. The application was refused, and January 20th the grand jury disapproved of the report of the viewers.

      May 15th 1871,
    The error assigned was, that the court made the rule to show cause why the report should not be presented to the next grand jury absolute.

      N. JSllmalcer, for certiorari,
    referred to Act of June 13th 1836, § 34-38, Pamph. L. 560, Purd. 877, pi. 56-60; Bridge over Smithfield Creek, 6 Whart. 369.

      S. S. Reynolds, contrá.
   The opinion of the court was delivered,

by Sharswood, J.

It appears by the record that viewers were appointed by the Court of Quarter Sessions of Lancaster county, to view a cite for a bridge over Pequea creek, on the line of Mar-tic and Conestoga townships in that county. Their report in its favor was presented to the court and confirmed. It was subsequently approved by the grand jury. This action of the grand jury was set aside by the court for irregularity, and the matter referred to another grand jury, who reported against the bridge. Here, in our opinion, the proceeding was at an end. The parties if dissatisfied should have commenced anew. But at a subsequent sessions of the court, a rule was granted to show cause why the report should not be presented to the next grand jury, which rule was made absolute. This writ of certiorari was then sued out, which the court below decided not to be a supersedeas. After-wards, however, as the record shows, this second jury disapproved of the report.

The Act of June 13th 1836, relative to roads, highways and bridges, § 35, Pamph. L. 560, where viewers are appointed for a bridge, provides when they report favorably that “ if it shall appear to the court, grand jury and commissioners of the county that such bridge is necessary, and would be too expensive for such township or townships, it shall be entered on record as a county bridge.” It is evident that the legislature intended that these three bodies should act as checks upon each other in the unnecessary expenditure of a public money in the erection of county bridges. When either of them therefore have put their disapprobation on record, the proceeding falls. If it were not so tax-payers and others interested in opposing a county bridge might be kept dancing attendance upon the court from sessions to sessions until some one grand jury may be induced to approve it.

It is plain, however, that there is no final action appearing upon this record which we can properly review and reverse. The certiorari issued prematurely; had the second grand jury approved the bridge, it would have been otherwise. But in this case the action of that grand jury in reporting adversely takes away all pretext for sustaining this proceeding.

Certiorari quashed.


author: by Thompson, C. J.

text:
    Shober’s Administrators versus The Lancaster County Park Association.
    1. A subscription was “ for the purpose of purchasing a tract of land, part of the Barry farm, and for such other purposes as we, the subscribers, may agree upon. It is proposed to get an act of incorporation, &e. The money to be expended in purchasing the land, putting up the fences and buildings and the grounds in order.” The subscribers met in accordance with a public advertisement, appointed a committee to buy the land, procure a charter, call in subscriptions, &c. They purchased the land, erected fences, &c., obtained the charter, and the deed for the land was made to the corporation. The defendant, an original subscriber, attended no meeting and took no part in any of the proceedings. Held, that he was liable for his subscription at the suit of the corporation.
    2. The corporation was the legal trustee to receive and administer the fund subscribed.
    3. Academy v. Robinson, 1 Wright 210, adopted. Strasburg Railroad v. Echternacht, 9 Harris 220, distinguished.
    May 3d 1871. Before Thompson, C. J., Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Lancaster county: Of May Term 1871, No. 69.
    This was an action of assumpsit, commenced September 21st 1869, in which there was a case stated between The Lancaster County Agricultural Park Association, plaintiffs, and Catharine Shober and John A. Shober, administrators, &c., of Emanuel Shober, deceased, defendants.
    The claim of the plaintiff was founded on the following paper signed by the decedent with a number of other persons, about September 26th 1868.
    “We, the undersigned, agreed to pay amount subscribed to our signatures, for the purpose of purchasing a tract of land containing about 21 acres, lying on the north side of the New Holland turnpike, being a part of the Barry farm, and such other purposes as we, the subscribers, may determine upon. It is proposed to get an act of incorporation making the capital about $20,000 and the shares $100 each; the money to be expended in purchasing the land, putting up the fences and buildings, and the grounds in order.”
    The whole number of shares subscribed for was 214, of which the decedent subscribed for 5. At a meeting of the subscribers representing 112 shares, assembled on the 12th of October 1868, in pursuance of public advertisement, it was resolved to purchase part of the Barry farm.
    “ On the 15th of October, the subscribers again met, and the committee reported that they had succeeded in negotiating for the purchase of the Barry property for $12,000. A resolution was then adopted, ‘ that a committee of eleven subscribers be chosen, whose duty it shall be to procure as soon as possible a charter of incorporation for this association, to purchase the grounds selected for the purposes of the association, to prepare the same for its uses, with the authority to call upon the stock subscribers for such portions of their subscriptions as they may deem necessary, and to make such rules and regulations for the use of the grounds as they may deem fit; their powers to cease as soon as a reasonable time for obtaining and organizing under a charter may have expired.’
    “ This committee was chosen, and immediately purchased the Barry property for $12,000, — erected fences, buildings, &c., and constructed a track at an entire cost of more than $20,000.
    “ While performing these duties, the committee also, on March 12th 1869, procured a charter for the association, under the name of ‘ The Lancaster County Agricultural Park Association,’ under which charter and corporate title, the original subscribers, at a meeting held on March 29th 1869, organized and elected officers, and on April 1st 1869, the real estate, which had thus far been held by the committee under an agreement of sale from George K. Reed, was by Mr. Reed deeded to the association under its corporate name.
    “ At different times the original subscribers (Mr. Shober among them) were called upon to pay in the amount of their subscriptions. Mr. Shober paid nothing in answer to these calls. There is no evidence that he was present or represented at any of the meetings described, and he never received a certificate of stock in the incorporated association.
    “ If the court should be of the opinion that the plaintiff is entitled to recover, then judgment for the plaintiff for $500, with interest from September 20th 1869; but if not, then judgment for the defendant; the costs to follow the judgment, and either party to be entitled to a writ of error.”
    The court (Hayes, J.) entered judgment, for plaintiff for $500, with interest from September 20th 1869.
    The defendants took out a writ of error, and assigned the entering of the judgment for error.

      J. B. Amwahe (with whom was Tí. H. Long), for plaintiffs in error,
    cited Strasburg Railroad v. Echternacht, 9 Harris 220; Poughkeepsie, &c., Plank Road Co. v. Griffin, 24 N. Y. 150; Odd Fellows’ Hall Co. v. Glazier, 5 Harring. 172; Ives v. Sterling, 6 Met. 310; Addison on Contracts 803; Duke v. Forbes, 1 Exch. 356; Edinboro’ Academy v. Robinson, 1 Wright 210 ; Erie, &c., Plank Road Co. v. Brown, 1 Casey 156; 1 Parsons on Contracts 378 ; Homes v. Dana, 12 Mass. 190; Warren v. Stearns, 19 Pick. 73; Bryant v. Goodnow, 5 Id. 228.

      May 16th 1871,

      B. F. Baer (with whom was S. II. Reynolds), for defendants in error,
    cited 1 Parsons on Contracts 377-378; Chambers v. Calhoun, 6 Harris 13 ; Edinboro’ Academy v. Robinson, 1 Wright 210; Morris’s Appeal, antea, p. 16; Graham v. Graham, 9 Barr 254; s. c. 2 Jones 128; Commonwealth v. Penna. Canal Co., 16 P. F. Smith 41.
   The opinion of the court was delivered,

by Thompson, C. J.

The judgment of the court below in this case is fully sustained in the Academy of Edinboro’ v. Robinson, 1 Wright 210. The contracts in both were a positive promise to pay certain sums of money to accomplish a specified object, viz.: in the first to build an academy, and in the last to purchase grounds for an agricultural park. In both subscriptions the associators contemplated the procurement of charters of incorporation. In the former, the court held that the corporation, when organized, became the legal trustee of the funds subscribed, and the proper party to call on the subscribers for payment, if the subscriptions were not withdrawn before the act of incorporation and organization. “ The duties created by the act of subscription are duties to the association, and the first of them to be performed is the duty of organization, and when it is complete the duty of paying the sum subscribed is a duty to the organized association,” per Lowrie, C. J. It seems to me this is the rationale of the binding force of the subscription. Standing unrevoked, it involves the same principles as if the money had been paid at the moment of subscription. In that case, it would strike every one, that the corporators would be the proper parties to appropriate it to the objects intended by the association. The corporation would be the legal trustee to administer the fund. The Railroad Co. v. Echternacht, 9 Harris 220, was not in form and was held in substance to be different from the first-mentioned case. The subscription was a promise to take stock in the company when it was organized. This court held that that was but an expression of an intention to take the stock when the company was organized and was not enforceable by action. As we regard the case cited of the Academy v. Robinson, supra, in point, we regard it as ruling this case against the plaintiffs in error.

Judgment affirmed.


text:
    Diller versus Burger.
    1. Burger having erected a brewery, built an addition to it; Diller furnished machinery for both buildings and filed a mechanics’ lien within, six months after the last item was furnished to the second. The court left it to the jury to say whether the additional building was a continuance of the first, whether it was all one act and the original building and the addition were one building; if so, the lien was filed in time. Held, to be correct.
    2. The second section of the Act of April 14th 1855 (Mechanics’ Liens), applies to items for work done or materials furnished continuously to the same building.
    3. It is intended to link together the items of an account where there was no contract for the whole, or no order which would embrace the whole within a single undertaking.
    4. Nelson v. Campbell, 4 Casey 156, distinguished.
    May 3d 1871. Before Thompson, C. J., Agnew, Sharswood and Williams, JJ..
    Error to the Court of Common Pleas of Lancaster county : No. 65, to May Term 1871.
    The proceedings in the court below were upon a mechanic’s lien, filed by William Diller against John Adam Burger, for machinery, &c., furnished for a brewery and an addition thereto.
    The real estate against which the lien was entered having been sold by the sheriff, under a fieri facias issued upon a judgment held by Jacob K. Shenk, and the money arising from the sale, not sufficient to satisfy both debts, paid into court, the court upon petition of Shenk awarded an issue as if upon a scire facias upon the mechanic’s lien to try the following facts in dispute;—
    1. Whether the materials furnished and work done referred to in said lien were furnished and done within six months after the building was finished ?
    2. When the said brewery was commenced and when finished ?
    3. When the machinery for said brewery was furnished ?
    Shenk’s judgment under which the property was sold, was entered August 31st 1866; Diller’s lien was filed March 4th 1869.
    Burger testified that he began building the brewery in March 1866 and finished it in March 1867; and that he commenced building the addition in May 1868 and finished it in October 1868; that this was not part of his original plan but was made necessary by imperfections in the arrangement of the first building ; that machinery was moved from the old building into the new building, the motive power being furnished by means of shafting connected with machinery in the old building; that there was but one set of machinery for both buildings.
    All the machinery was furnished and put up by Diller, who offered evidence to show that the work upon the machinery was done continuously from the spring of 1866 until October 1868.
    The plaintiff submitted the following points ;—
    1. If the jury find that the erection of the brewery was commenced before tbe judgment of Jacob K. Shenk was entered of record; and if the plaintiff, William Diller, filed his lien within six months ^fter he had finished the work or furnished the material, constituting his mechanic’s lien claim, then the plaintiff is entitled to recover, and the verdict must be for the plaintiff.
    2. If the jury find by the evidence, that Mr. Diller or his hands, worked continuously, in the ordinary progress of the work, in the making and putting up of the machinery, from the time such work was commenced by him, whether on the brewery ground, or at plaintiff’s shop, at Lancaster, and filed his claim within six 'months after the last item of the work was done or materials furnished, he, the plaintiff, has a valid lien, dating from the beginning of the erection of the brewery, and has priority to Jacob R. Shenk’s judgment, and the verdict must be for the plaintiff.
    8. Taking promissory notes, &c., and payments made on account, will not destroy plaintiff’s lien.
    The 1st and 3d points were affirmed: to the 2d the court (Long, P. J.) answered:—
    “ If the- jury should consider the two buildings as constituting one, and both buildings were originally designed and intended to be one building when the first building was erected, then we answer this point in the affirmative. But if the second building was erected after the first building was erected, and was a building not designed to be erected when the first building was erected, and the lien was not filed within six months from the completion of the first building, then we answer this point in the negative;” and charged:—
    “ The claim of William Diller, the plaintiff, is not disputed, it is honest and meritorious.
    “ [As the case is presented the question is not whether this claim ought or ought not to be paid, but whether or not it ought to be paid by Jacob K. Shenk, and this depends upon certain facts constituting the issue you are trying.]
    “ The claim is maintained in this action by virtue of an asserted mechanic’s lien, it having been filed as such on the 4th of March 1869, for materials furnished and work done to a certain brewery of John Adam Burger, the defendant. Liens are a privilege enjoyed by certain creditors for security of their claims by holding the property to which they are attached to be answerable for such claims, and are, if justly founded, due to a principle which regards them as means of advancing the public good. In a community where trade and commerce and all business enterprises depend upon a system of credit to induce those who have capital to advance it to persons of enterprise and activity, who have not capital to extend their business, and make valuable improvements, the security which the liens of mortgages give is the most persuasive argument. These liens are unquestionably the strongest motive for such investments, and justify the policy which gives the lien-creditor his preference. It can be no other ground on which the mechanic’s lien can rest for its justification. The erection of dwelling-houses and other edifices, is essential to the improvement and progressive wealth of the country. Many enterprising men who have the disposition and energy to make improvements, have not the means, and were it not for the system of credit, would be unable to accomplish their designs, and although they may not be able to obtain by loan the means, yet in consequence of the security afforded by the mechanic’s lien to mechanics, laborers and .those who supply materials for building, they can erect their buildings and complete their improvements. The legislature, in contemplation of the public good and general welfare resulting from such improvements, has from time to time granted the privilege to those who thus contribute their labor, skill and property, to secure their claims by making them, when duly filed of record, liens upon the buildings erected by their means. It is only on such considerations, that the law regards liens with any degree of complacency, for they are a privilege and being confined to a particular class of creditors, and thus establishing a preference over other creditors whose claims are equally honest, would be iniquitous, were it not for the reasons of public policy which we have explained. Rut for this distinction, why should the man who supplies lumber to the owners of the building be preferred to the butcher or baker, who supplies him with his daily bread ? It is said these laws should receive a liberal construction. So they should, so far as may be necessary and proper to give to mechanics and material-men all the advantages the law intended. But there are certain things required in order to entitle them to the lien provided, and these things must be done. There are also conditions and limitations of time which must be complied with. These liens are statutory grants, and must be made matters of record, for the law looks with great suspicion upon any claim or lien which is not of record; secret or constructive liens are regarded with disfavor. This case comes before the jury by reason of an order of court, directing an issue to ascertain some facts which were disputed, on an application for distributing a certain sum of money paid into court by the sheriff, as the proceeds of a sale made by him on an execution issued by Jacob K. Shenk against John A. Burger.
    “ [Jacob K. Shenk had sold J. A. Burger some five or six acres of land, on the Conestoga river, near Millersville, on which Burger proposed to erect a brewery for manufacturing lager beer. This was in 1866. In the spring of that year, he commenced the erection of the brewery, on the 27th of March, and finished it on the 25th of March 1867.] It was finished with a vault underneath, and with the apparatus and appliances, sufficient to manufacture the beer, which he began to manufacture by hand, and continued throughout the year 1866 and the following year to manufacture in that way, making two thousand barrels during the two years. [In the mean time it was discovered that* the warm water used above had penetrated through the floor into the vault beneath, affecting the temperature, consequently spoiling the beer, so that in the fall of 1868, he began to build a new and additional brewery to the end of the first, and constructed with a separate and distinct vault underneath, and after it was finished removed the mash tub or kettle into it from their former position in the old brewery, using the latter only for the machinery intended to operate by water-power. This new brewery was completed in December 1868.] An execution being issued on Jacob K. Shenk’s judgment, the premises including the said land and improvements, were sold and the money brought into court for distribution. Here arose a dispute, as before mentioned, in relation to some material facts, and Jacob K. Shenk applied for an issue to ascertain those facts by the finding of a jury, which issue was accordingly directed, and which you are now trying, as under a scire facias by William Diller v. John A. Burger, on his mechanic’s lien for the materials furnished, and work done, in the erection of the buildings upon the premises. The facts are, when and how the materials were furnished, the work done and the buildings were commenced and completed. The truth of these facts you are to determine according to the evidence.
    [“ These buildings were erected from time to time. The first was the brewery, then followed the additional or new brewery, &c. John A. Burger says he is a carpenter, and erected the buildings with the assistance of others, whom he employed. They were not built at the same time.
    “ The Act of 1855, in the second section, protects the claim for work done and materials furnished continuously towards the erection of any new building when the items of the bill are in any part boná fide within six months before the filing of the claim therefor. But it does not aid the plaintiff in his assertion of a lien on the first brewery, if the fact was that an interval of nearly a year and a half took place between the erection of that and the second or additional brewery. The character and nature of the erection of the second brewery, as an enlargement or additional building, is a distinct fact, and not changeable in respect to the various kinds of work done or material furnished. It cannot be regarded as a new building with respect to a carpenter or lumber merchant, and is identical with and inseparable from the first building with respect to a machinist furnishing machinery.]

      “ Now under the testimony adduced in this case, the question which arises and which is for your adjudication and determination is, what was the character of the first building which was erected, and which has been designated as the first brewery, the building of which, according to the testimony of Mr. Burger, was commenced on the 27th of March 1866, and finished on the 25th of March 1867. Now if you should be of the opinion, from the evidence (and let me here remind' you that you are the exclusive judges of the facts or of the evidence), that the building was completed and finished on the 25th March 1867, then the plaintiff’s claim would not be a lien on that house, because it was not filed, as the law requires, within six months of the completion, it being only filed on 4th March 1869. But supposing that its completion only has reference to the time when the machinery was finished and placed, that, according to the testimony, was in February 1868. If you believe from the testimony that to be the fact, the lien would still be entered too late. [But it is contended on behalf of the plaintiff that the additional or new building added was but a continuance of the first building, and that the work done and machinery furnished for the new building, which was completed in the latter part of the year 1868, was but a continuation of the work of furnishing the machinery, that all was a continued act, that the original building and addition was but one building. If this be so, and that when the first building was erected it was designed and intended that the additional building was to be part of it, and the erection to be simultaneously or in a reasonable time after the erection of the first building, then the plaintiff was in time in filing his claim.] The witnesses of the plaintiff say that they consider the work done and machinery furnished was, as they conceived, a continuous act. On the other side we are told that when the first brewery, as it has been called, was finished, that completed that building, and that any work or machinery furnished for the second building did not attach to the first building. If the first building was completed, as contended by J. K. Shenk, and no machinery furnished or work done for that building within six months after the filing of the lien, then his views are correct; this we say is the law. [Mr. Burger in his testimony states positively that when he commenced the building his design was only to put up one building, and acted accordingly, and that when it was up he considered it completed, and intended to use it as a brewery, but after using it for some time, in consequence of the heated water which was necessary to be used in the first story passing through the floor into the cellar, and increasing the temperature of the air below, which was injurious to the lager beer, and then after the building was thus completed he came to the conclusion of erecting another building, in order to obviate the difficulty which he did not appear to apprehend before. According to his testimony the first building was to stand alone, and if this be a correct version of the facts in dispute, the claim of plaintiff would not be a lien which would take precedence of Mr. Shenk’s judgment, which, under these circumstances, if you believe them to be correct, was a lien which took effect before the plaintiff’s claim was filed, for if the additional building was a new and independent building, the judgment was entered before that building was commenced.]
    May 25th 1871,
    “ I would again in conclusion say, the facts are for your determination, but it is your duty to apply the law as explained to you by the court.”
    The verdict was for the defendant.
    The plaintiff took a writ of error, and assigned for error the answer to the 2d point, and the parts of the charge in brackets.

      W. R. Wilson, for plaintiff in error,
    cited Harman v. Cummings, 7 Wright 322 ; Lightfoot v. Krug, 11 Casey 348; Nelson v. Campbell, 4 Id. 156 ; Holden v. Winslow, 6 Harris 160; Bartlett v. Kingan, 7 Id. 341; Irish v. Harvey, 8 Wright 76; Purdon 713; Singerly v. Doerr, 12 P. F. Smith 9; Ralston v. Groff, 5 Id. 276; Brown v. Parkinson, 6 Id. 336.

      A. JR. Smith, for defendant in error,
    cited Norris’s Appeal, 6 Casey 122; Catawissa Railroad v. Armstrong, 2 P. F. Smith 282; Phipps v. Boyd, 4 Id. 342; Wilson v. Forder, 6 Casey 132; Singerly v. Doerr, supra; Noll v. Swineford, 6 Barr 191.
   The opinion of the court was delivered,

by

Agnew, J.

We discover no unfairness in the submission of this case to the jury by the learned judge in the court below. He carefully informed the jury that they were to determine the facts, and informed them what facts were to be determined by them. It is true in narrating the case in order to present to their minds the questions involved, he spoke of the new building and the old one, the time when one was finished and the other begun. But in doing this he only used the language of the witnesses and followed the evidence. The facts of the case are perfectly clear. Burger built a brewery and finished it in March 1867, coinciding with the book of the plaintiff, which shows that in the latter part of March the work on the marsh rake and the malt-mill was lumped and charged without date. His next entry was on the 29th of November 1867. The new brewery was then determined upon, and Burger testifies it was no part of the first plan to erect it. The reason for erecting the second brewery was, that the first was built over the vault, and the hot water used in it ran down into the vault, raising the temperature and spoiling the beer, The claim filed described them as two buildings; one 40 feet in length and 28 feet in width, and the addition, as it is termed, 33 feet long by 24 feet wide. There is no pretence that the second building formed any part of the plan originally, or was even contemplated when the first was put up and finished. Indeed the evidence makes it clear that it was begotten by a necessity unknown to John A. Burger when he conceived his plan and built the first brewery. We therefore can discover nothing in the charge of the judge which looks like unfairness in stating the facts.

Nor do we discover any error in the rule given to the jury. He left it fairly to the jury to say whether the additional building was but a continuance of the first, and whether the work done and machinery furnished for it was but a continuation of the work and finishing of machinery — whether it was all one continued act, and the original building and the addition were but one building; and if so, instructed them that the plaintiff’s lien was filed in time. It is evident that the plaintiff’s idea of the unity of these two buildings rests on the connection between the machinery in them. Part of the machinery in the old brewery had been removed into the new, and new machinery made and adapted to the change, and the machinery between the two buildings connected by shafting. The whole being made and put in and adapted by himself, the plaintiff thinks of it as one continuous work, and claims the price of the whole. But his work does not give legal unity to the two buildings. The erection of the second building was a new undertaking, the result of an entire change of plan, and had no connection with the original scheme. The adaptation of the machinery to run them together did not give character to the second building so as to make it a continuous erection with the first. The fact that the addition was a new-building, the result of a new plan and a new undertaking, still remained. It is evident that the stonemasons and the carpenters who worked upon the second building could have no lien on the old brewery. Their work did not concern it, and was not done on the faith of it as a security. Now it is clear that the distinctness between the two erections which would cut off them from the old brewery would cut off the plaintiff also. As a question of lien the plaintiff’s first work has no connection with the second. It was not in pursuance of a single contract. When begun on the first brewery it was not contemplated to be carried into the second. It is therefore not helped out by the fact that but a short interval intervened, that he made the whole machinery, or by the operation of the 2d section of the Act of 14th April 1855, Brightly 713, pi. 35. That act applies to items for work done or materials furnished continuously to the same building, and was intended to link together the items of an account for work or materials where there was no contract for the whole, or no order which would embrace the whole within a single undertaking. The answer of the court to the plaintiff’s 2d point was therefore a correct statement of the law as applied to the facts of the case. This case is governed hy the principles stated in Norris’s Appeal, 6 Casey 122, Miller v. Hershey, 9 P. F. Smith 64, and Armstrong v. Ware, 8 Harris 519, and is totally unlike Nelson v. Campbell, 4 Casey 156. The last case is very peculiar, and the decision was affected by the evident design of the owner to incorporate the several additions with the original building, and to make one of the whole; and also by the necessity of the ground on which they stood for a common use as a single building. It can scarcely become a precedent for another case.

The judgment is affirmed.