text:
    Gavit versus Hall.
    1. A complaint to dispossess a tenant holding oyer was signed, “ Nelson Gavit, per A. If. Blair agent,” and was followed by this certificate “ Sworn before us this,” &e., and signed by the two aldermen. Held, that this showed the affidavit was made by Blair, and was sufficient.
    2. The sheriff returned to the'warrant of the aldermen that he had summoned twelve freeholders without naming them ; the inquisition stated the names of the freeholders summoned: Held, that the presumption was that the inquest was composed of those summoned.
    3. An objection that the inquest who sat were not those summoned, should be made before the inqnest at the hearing; it was too late to make the objection on certiorari.
    February 26th 1874.
    Before Agnew, C. J., Williams, Mercur and Gordon, JJ. Sharswood, J., at Nisi Prius.
    Error to the Court of Common Pleas of Philadelphia: No. 159, to January Term 1873.
    These were proceedings under the Landlord and Tenant Act of March 21st 1772, 1 Smith’s L. 373, 2 Br. Purd. 879, pi. 17, &c., by Nelson Gavit against Mary Hall.
    The complaint was as follows:—

      “ To David Beitler and Robert R. Smith, two of the aldermen in and for the city of Philadelphia, the complaint of Nelson
    Gavit by A. F. Blair, Agent, most respectfully sets forth: — •

      “ That he is owner of a certain tenement with the appertenances, situate No. 1419 Race street, in the city of Philadelphia, and was in possession thereof August 1st 1871, when he demised the said premises to a certain Mary Hall for the full term of one year from August 1st 1871, at rent of $41.67 per month, which said term is fully ended.

      “ The said Nelson Gavit being desirous upon the determination of the said term to have again and repossess'his said estate, for that purpose he did on the 16th day of April 1872, last past, demand and require the said Mary Hall to remove from and leave the same, and that the said Mary Hall hath hitherto refused and still doth refuse to comply therewith; that three months having elapsed since the service of the said notice he makes this complaint, that such proceedings may be taken by you as are directed by the Act of Assembly in such case made and provided.
    Nelson Gavit,
    Per A. F. Blair, Agent.
    “ Sworn before us, this 6th day of August, A. D. 1872.
    [seal [seal David Beitler, Alderman. Robert R. Smith, Alderman.”
    A warrant was issued to the sheriff by the alderman, tested the 12th of August 1872 : it recited the complaint and commanded him to summon twelve substantial freeholders,” to be at a place named in the warrant, and also to summon the said Mary Hall to appear before the alderman and the freeholders, &c., to show cause why possession of the demised premises should not be delivered to the complainant.
    The sheriff returned:—
    “ In obedience to the within writ I have summoned twelve substantial'freeholders of my bailiwick to be and appear at the time and place within named, and I have also summoned the defendant, Mary Hall, by giving a true copy of the within writ to her.”
    The inquisition was:—
    “ Inquisition taken at, &c., * * * before David Beitler, Esq., and Robert R. Smith, Esq., two of our aldermen in and for the city of Philadelphia, by the-oaths of William Yogdes (and eleven others, naming them), twelve substantial freeholders of the said city, who, &c., say that Nelson Gavit was on the first day of August, in the year one thousand eight hundred and seventy-one, quietly and peaceably possessed of a certain tenement, &c. (as in the complaint), and did demise the said premises to a certain Mary Hall for the term of one year from August 1st 1871, then next ensuing, at the monthly rent of $41.67 per month, and that the said Mary Hall by virtue of the said demise entered, &c., and that the said term for which the said premises were demised is fully ended; and the said Nelson Gavit, &c., did on the sixteenth day of April 1872, demand of and require the said Mary Hall to remove from and leave the same at the expiration of her said term, and that the said Mary Hall has hitherto refused and still does refuse to comply with the said demand and requisition to remove from and leave the said premises, and the said freeholders do assess damages against the said Mary Hall for the unjust detention of the said demised premises, at one hundred dollars besides all costs of suit. Whereupon it is considered by the said aldermen that restitution of the said demised premises be made to the said Nelson Gavit, and that he recover of the said Mary Hall one hundred dollars damages aforesaid, together with the costs of suit, amounting to forty-five dollars.”
    The record set out the complaint, the warrant, September 12th 1872, to the sheriff, and that by virtue of the warrant the sheriff returned that he had summoned twelve substantial freeholders (named in the record and being the same as in the inquisition) and Mary Hall, “ and the said freeholders being called appear and are severally sworn or afiirmed, and the said defendant, Mary Hall, also appears ; Nelson Gavit, plaintiff, sworn ; lease dated August 1st 1870 produced, offered in evidence by plaintiff; lease objected to by defendant. A. E. Blair, sworn, plaintiff; lease admitted in evidence; Quentin Todd, sworn, plaintiff; notice dated April 16th 1872 produced, offered in evidence by plaintiff and admitted ; A. F. Blair recalled plaintiff; we, the said aldermen and the aforesaid freeholders, after proceeding to hear and examine the proofs and allegations offered by the said parties, do find that the said Nelson Gavit, on the first day of August 1871, was quietly and peaceably possessed of a certain tenement and appertenances situate,” &c., (as in the complaint and inquisition), “and that the said Mary Hall has hitherto refused and still does refuse to comply with the said demand and requisition to remove from and leave the said premises. And the said freeholders assess the sum of one hundred dollars for the damages of the said Nelson Gavit, occasioned by the unjust detention of the said premises. Therefore it is considered and adjudged by us, the said aldermen, that the said Nelson Gavit shall and do recover and have of the said Mary Hall as well the said sum of one hundred dollars for his damages aforesaid, as forty-five dollars for his reasonable costs, by him expended in and about this suit in this behalf, concerning which the premises aforesaid we do make this our record.”
    The defendants removed the proceedings before the aldermen and inquest into the Court of Common Pleas by certiorari, August 23d 1872.
    The exceptions were:—
    1. The complaint was not made on due proof, not having been sworn to either byn Gavit or Blair his agent.
    2. There is a variance between the-sheriff’s return and the record of the aldermen. The sheriff’s return states that he summoned twelve freeholders, but does not name them. The aider-men’s record sets forth “that the sheriff had returned that by virtue of the warrant to him directed he had summoned twelve substantial freeholders, to wit” (naming, them).
    3. The jurors do not aver in their inquisition that they were selected by the shei’iff.
    4. The inquisition of the justices and freeholders does not aver that the parties were heard or neglected to appear, nor does it state how they became possessed of the alleged facts therein stated.
    5. There is a variance between the warrant to the sheriff and the record of the aldermen — the warrant being tested the 12th day of August 1872, and the aldermen’s record stating that it was tested the 12th day of September 1872.
    6. There is a variance between the whole record and the evidence as set forth in the aldermen’s record; the evidence shows the lease to be dated August 1st 1870, while the complaint, inquisition, warrant and record set forth that the landlord was in possession of the premises August 1st 1871, and on that day demised them to the tenant.
    7. The aldermen and the freeholders had no jurisdiction of the case under the Act of 21st March 1772, the same having been repealed by the Act of 14th December 1863.
    The Court of Common Pleas reversed the judgment of the aldermen.
    The plaintiff removed the record -to the Supreme Court, and assigned the reversal of the judgment for error.

      J. Gr. Johnson, for plaintiff in error.

      W. 0. Sannis, for defendant in error.
   The opinion of the court was delivered, May 11th 1874, by

Mercur, J.

This was a proceeding before two aldermen, to dispossess a tenant after the expiration of her term. The inquest found all the facts made necessary by the Act of Assembly to require the possession of the demised premises to be given to the plaintiff. The record made by the aldermen is in accordance with the finding and correct in form. Upon certiorari and exceptions filed, the Common Pleas reversed the judgment, but filed no opinion.

On the argument, two grounds were urged against the judgment of the aldermen, to wit: First, The insufficiency of the affidavit to the complaint; Secondly, The insufficiency of the sheriff’s return relating to summoning the jurors.

1. No objection is made that the complaint is not full and explicit, nor that it does not contain every fact required to be therein set forth. It is claimed, however, that it is not shown with sufficient certainty by whom the affidavit was made. There is no room to doubt that the affidavit was made by the person who signed the complaint. It is clearly manifest that it was signed by Blair as agent for Gavit. I see not how that fact could have been averred in more unequivocal language. The conclusion necessarily follows that Blair made the required proof.

The two aldermen adjudged the proof sufficient, and issued their warrant to the sheriff. We see no error in this : Cunningham v. Gardiner, 4 W. & S. 120.

2. The sheriff made return to the writ, inter alia, that he had summoned twelve substantial freeholders of his bailiwick. It is true, he omitted to state their names in his written return; but the inquisition taken very soon thereafter, does give the name of each juror. No objection was then, or thereafter, made that they were not the identical freeholders summoned by the sheriff. The presumption is that they were. If the defendant was not satisfied of that fact, she should then have challenged the array, or have made some objection before the jury was sworn. By going to trial without objection, it was afterwards too late to interpose a hypothetical assumption to set aside the finding of the jury and aldermen: McDermott v. Hoffman, 20 P. F. Smith 31. The maxim, “ omnia prcesumuntur rite esse acta” applies with full force to these official acts.

We discover no fatal error in the judgment of the aldermen, and the judgment of the Common Pleas must be reversed.

Judgment reversed, and judgment in favor of the plaintiff.


source: Caselaw Access Project

author: Williams, J.

license: Public Domain

text:
    Philadelphia City Passenger Railway Co. versus Hassard.
    1. Plaintiff, about ten years of age, entered a street car with a brother and sister both younger, who got seats at the rear end of the car and he stood, but afterwards got a seat at the other end. The younger children got off without his knowledge, and after the car started he, seeing they were out, tried to get off by the rear platform, but could not, on account of the crowd of passengers; he went to the front platform, asked the driver to stop ; he slacked but did not stop; plaintiff jumped off and was injured. Held, that the question of negligence both in defendant’s servants and plaintiff was for the jury.
    2. It was the duty of the defendants to set the plaintiff down safely, if they could do it by reasonable care and diligence.
    3. If plaintiff, on account of his age and- inexperience, could not take proper care of himself, the defendants were bound to the highest care and vigilance to secure his safety.
    4. What is negligence is generally for the jury; where the court should declare negligence or want of negligence as a matter of law, are the exceptions.
    5. It was the duty of the defendants to prevent children from getting on or off the front platform.
    6. The fact that the front platform was not enclosed with a fender, was a fact with others to be considered whether there was negligence in leaving the front door open when the car was filled with passengers.
    7. The same degree of care and prudence is not to be exacted from a mere boy as from an adult.
    8. A child’s capacity is the measure of his responsibility ; if he has not the ability to foresee and avoid danger, negligence will not be imputed to him.
    February 27th, 1874.
    Before Agnew, C. J., Williams, Mercur and Gordon, JJ. Sharswood, J., at Nisi Prius.
    Error to the District Court of Philadelphia: No. 142, to July Term 1872.
    This was an action on tbe case, brought November 15th 1871, by Robert Bruce Hassard, by his father and next friend, Peter J. Hassard, against The Philadelphia City Passenger Railway Company.
    The cause of action set out in the declaration was that by the negligence of the defendants in carrying the plaintiff, a lad of ten years of age and a passenger on their cars, he fell from the car, the wheels of which passed over his leg, which was so injured as to require its amputation.

      The case was tried April 5th 1872.
    The plaintiff testified that he and a younger brother and sister got into one of the defendant’s cars on Walnut street east of Broad street; as soon as they got in his sister and brother got seats at the rear end of the car, plaintiff then was standing at the front end of the car :• after some time, a passenger left his seat about the middle of the car and plaintiff took it. There were not very many people in the car when they got in, but about Broad street it began to fill up and was very full after that; there .were several persons standing in the aisle and persons standing on the platform; where plaintiff was, he'could not see his brother and sister, because the car was so crowded by persons both sitting and standing. When the car got to Twenty-first street, he glanced out of the window and saw his brother and sister getting out of the ear from the rear platform, he tried to get out at that platform but could not; the car was crowded; he went to the front platform on which were five or six persons on the side on which he was to get off; he told the driver to stop; the driver said “All right,” and slackened up but did not stop; he slackened up with the reins, not with the brake: plaintiff found that they were going too far and jumped off, he slipped on a pile of bricks and the car wheel went over his aníde; there was no fender or guard around the front platform. There was other evidence in corroboration of the substantial statements of the plaintiff; also, that these children were in the habit of going to school in West Philadelphia in the cars of the defendants without being in the charge of any one ; also, that when the boy found his brother and sister were out of the car he manifested great eagerness to leave the car in the quickest way possible, and avoid any obstructions that might be in his way; also that there was no notice about the ca,r that passengers were not allowed to get on or off at the front platform and that the door to the front platform was open.
    The defendants gave evidence that the car made a full stop at Twenty-first street, a short distance from the place of the accident; it stopped so long that a lady and gentleman and the younger children got off in safety ; that there always had been notices on the outside of each end of their cars and on the side, that passengers were not permitted to get on or off from the front platform; also, that the driver, as to stopping, acts by the ringing of the bell by the conductor ; that the plaintiff was not prevented from getting off at the rear platform by reason of the crowd on it and in the car, but that he got off from the front platform by reason of his eagerness to leave the ear in the quickest way when he found that his brother and sister had left it. There was other evidence in contradiction of the statements of the plaintiff and generally in answer to his case. They gave evidence also that the driver slacked up because he was going down grade, and that he did not hear the plaintiff ask him to stop.
    There was also much evidence on both sides as to the different railway passenger cars having fenders on the front platform.
    Points were submitted by both parties, which with their answers are hereafter stated.
    The court charged * * * “ Your duty is carefully to analyze the testimony; to extract from it what is called evidence. The evidence is the facts to be gleaned from the testimony, and after you shall ascertain the facts, then apply the principles of law as I have laid them down to you. I will, in order that there be no misunderstanding, repeat them. Negligence is the essence of this action, and before the company can be held responsible, the plaintiff must show that the company so negligently carried him that he was thrown from the car and run over. But where contributory negligence is proved, negligence on the part of the defendants alone, is not sufficient to warrant a verdict. He who asks a verdict of another must come into court with his hands clean of negligence on his own part; and, therefore, it must be made apparent to you that there was negligence on the part of the company, and no negligence whatever on the part of the plaintiff. But with regard to a child of his years, the rule of law as established by the supreme tribunal of this Commonwealth, is just that degree or standard of care which would actuate a boy of his years and. intelligence under similar circumstances. The law does not require of a boy that degree of care that is exacted of a grown-up person. It does require of him just that degree of care, prudence and discretion that his years have given him, and nothing more; and when this company received this boy upon their car, they took him as he was, they took him with his youthful indiscretion, if he had youthful indiscretion; they took him with his caution and his prudence, if he had them; whatever was known to be in other boys of his age of ordinary care, they were bound to notice; and if greater prudence and discretion than that exercised by this boy upon this occasion, would characterize the conduct of other boys of his age under similar circumstances, then the company is not to be held responsible, because of the rashness and impulsiveness of this boy in springing from his seat, rushing by the driver and jumping from the car whilst it was in motion. * * *
    “ Did this company act with ordinary care ? The rules of the company, as you have them before you in evidence, are that the driver obeys the signal-bell of the conductor. Indeed, we .all know in this community that his duty is to watch his horses in order to prevent colliding with passing vehicles at street intersections, or to prevent running down pedestrians or foot-passengers; he has no charge of the passengers in the car; his duty is to obey the conductor. The passengers are under the control of the conductor. The duty of the conductor is to obey the signal of those on the sidewalk who desire him to stop his car to get in ; to stop it a sufficient length of time to permit passengers to enter and to be comfortably seated; to stop it when a passenger inside shall give a signal for that purpose, a sufficient length of time to enable the passenger to make his exit to the pavement free, so that the car when it starts will not touch him, or disturb or trip him or throw him. * * *
    “Some of the witnesses say that the boy also obtained a seat, and afterwards removed to the upper end of the car. They remained comfortably and securely protected within the car until they reached the intersection of Twenty-first and Walnut streets.
    “ There is no evidence, it seems to me, to warrant the conclusion that the employees of the road did not, up to this point, act with ordinary, nay, more, with commendable care. The signal is given at Twenty-first and Walnut streets to the conductor to stop; he does stop; one lady, if not more, alights; the two younger children also alight; that being the terminus of their route or trip upon that day, so far as the car was concerned.
    “ Now I draw your attention to this fact, because it seems to me that it has some bearing upon this question. Two younger children in company with this boy, and as between the three it would seem he should stand protector and guardian to these children. The two younger children leave the car at Twenty-first and Walnut streets (they having been securely protected and carried to that point in a proper way); by means of the rear platform reach the pavement in perfect safety. It is some evidence to show that the company carefully carried them to that point, and carried also this boy to that point. It is some evidence for your consideration to show that as these children of younger years were discreet enough to deport themselves properly, and properly find their exit by means of the rear platform, where danger is least to be apprehended, whether this lad, that is the plaintiff-suitor before you, should not have done so also.
    “ One of the witnesses tells us that the conductor stopped until no other person desired to alight. He rang the bell and started. Another witness says the car had got under headway, but no more than under headway, when this boy started, looked to the rear end and then to the front, as if trying to discern which way he could make the quickest exit, or from which end he could make the quickest exit, and rushed by the driver and jumped from the platform.”
    The judge then referred to other evidence in the case, and proceeded:—
    “ Now these are the facts and the principal facts, as it seems to me, in the case. It is necessary for me to review so much of the testimony as to give point to the legal propositions that I have laid down.
    “ Now, then, you will consider, in view of these younger children being safely carried, and this elder brother being safely carried to that point, and these younger children being safely deposited upon the pavement, whether the company, so far as the driver and the conductor were concerned, was guilty of any negligence. If negligence there was, it seems to me it lies in not knowing what was the exact standard of intelligence and discretion of this young boy; and it seems to me it must, after all, turn upon that one question. If he had arrived at such an age that he ought to have known better, as ascertained from the action and conduct of boys of his age of ordinary care, there was no actual negligence upon the part of the company under such circumstances. But if from his age he was not required to exercise a greater degree of care and prudence than he did, then the company were bound to notice that, and to guard this boy from the perils that inhere in tender years; then it was their duty to close the front door, or to put some one with him, whereby in his youthful impulse he could have been prevented from doing that which resulted in so terrible an accident to him. Therefore I say it seems to me that the question turns almost exclusively upon that question.
    “ Much has been said about fenders. That question with all others will come before you — but I will not say to you- as a matter of law that it is necessary for a street car, where the common custom is to enter from the rear and to depart from the rear, to have a fender around the front platform; and you may consider this testimony with other testimony, whether it was required as an act of prudence to protect passengers. I am bound to say to you, however, as a matter of law, that the best known practical improvement in use the company are bound to adopt, in order to insure and protect the lives and limbs of their passengers. This applies with peculiar force to carriers of passengers. * * *
    “ I have sufficiently referred to what I consider the material points of the case as disclosed by the testimony, in order to enable you to understand the legal propositions as I have laid them down; and if from them you are of the opinion, that in view of this boy’s age, this company has been guilty of negligence, then he is entitled to recover. If you are of opinion in view of his age, and what other boys of his age would have done, that the company were not guilty of negligence, but that the boy himself was guilty of negligence, then in that event this company should have the verdict. * * *
    “ I am asked by the plaintiff’s counsel to say to you:—
    “ 5. If you believe the injury in question was caused by the negligence of the defendants or their employees, in not having the improvements aforesaid, or otherwise, and the injured child had not capacity to appreciate the danger and avoid it, so far as any act on his part contributed to the injury, that incapacity shields him from responsibility for any act of his contributing to the injury, although such act would have been contributory negligence in an adult, defeating his recovery, and your verdict should be for the plaintiff.
    “ Answer. I will affirm that point. If this boy had not capacity enough, as ascertained by the test that I have given you, namely, that degree of intelligence, discretion, and prudence that should characterize boys of his age of ordinary caution, then the boy is not to be held responsible for this absence or the want of it. The law does not exact of the child impossibilities, any more than it exacts of this company impossibilities.
    “ 7. If you believe the injured boy in leaving the car at the time of the injury in question, acted according to the habitual impulse of a child of his age, under all the circumstances, and the defendants were guilty of negligence in any of the modes aforesaid, or otherwise, and the injury resulted therefrom, your verdict must be for the plaintiff.
    “I affirm that point.
    “ The defendants have asked me to charge:—
    “1. That if the jury believe from the evidence that the plaintiff by negligence on his part contributed to the accident, the verdict should be for the defendants.

      “ That is so, provided the boy had reached those years of discretion that should have taught him better. If under the -charge I have given you, you find that he ought not to have done so, the doing it under these circumstances defeats his right of recovery.
    “2. That if the jury believe from the evidence that the plaintiff attempted to get off the car while it was in motion, and in consequence of such act on his part the accident occurred, the verdict must be for the defendant.

      “ I answer this point exactly as I answered the preceding one. That if the boy’s age and discretion was such as to teach him that he should not do so, then he ought not to have done so, and in doing so he contributes to the accident, and that contributory act of his defeats his right to recover.

      “ 3. That if the jury believe from the evidence that the accident occurred from a mere act of thoughtlesness of the plaintiff in attempting to jump from the ear while it was moving, the verdict must be for the defendants.
    “ My answer to this is substantially what it has been to the preceding. If his years were such as to warrant this degree of thoughtlessness that characterized his conduct, he is not responsible, because the law does not exact more from a child of his age than the common action of children of his age leads us to believe he was possessed.

      “ 4. That if the jury believe from the evidence that the defendants were using their car in the usual and ordinary way, and the accident happened solely by the plaintiff attempting to get off the car from the front platform while the car was in motion, the verdict must be for the defendants.
    “That is to receive the same qualification. If the little fellow knew better; if he should have known better ; if he did otherwise than boys of his age would have done of ordinary care, then this proposition is right.
    “ 5. That if the jury find from the evidence that the plaintiff was a passenger on the car, then the law of the contract between him and the defendants bound him to observe all the reasonable regulations of the company as to the mode of leaving the cars; and if the jury find from the evidence that a rule of the company requires all passengers to get off the car at the back platform, and that by reason of the plaintiff’s neglect to observe that rule the accident occurred, the verdict must be for the defendants.
    “ An adult making a contract with a minor, especially if the child contracts with him according to his standard of intelligence, there cannot be entire mutuality, and the only degree of fulfilment that can be exacted of the child is the best possible prudence, knowledge and discretion that the child has, as ascertained by that prudence, discretion and intelligence characterizing the conduct of boys of such age of ordinary care.
    “ 6. That if the jury believe from the evidence that the plaintiff was not seen by the driver or conductor when he jumped off the front platform, and that neither of them could have prevented the accident, then the verdict must be for the defendants.
    “ Yes; unless this boy’s age should have told them that it was un- ’ safe to leave him with the front door open without some one to take care of him; unless his age, his discretion was such as to convince them that he ought to have found his exit as his brother and sister did, by the rear platform^ I have already referred to his younger brother and sister leaving the car from the rear platform. It is some evidence to my mind that he ought to have done likewise, but that is entirely for you.
    “ 7. That the defendants were not guilty of negligence by reason of having the front platform open or unenclosed at its sides.
    “ As that is stated briefly, and for the purpose of having the thing settled by the court in banc, I will affirm that proposition absolutely.
    “ 8. That if the jury believe, that from the evidence that the plaintiff was of sufficient discretion to understand the dangerous character of the act which resulted in the accident, then if by such act he contributed to the accident, he cannot recover, and the verdict must be for the defendants.

      “ I affirm that absolutely.

      “ 9. That if the jury believe from the evidence that the plaintiff was possessed of sufficient discretion to understand the dangerous character of the act he was doing, in attempting to get off the front platform of the car while it was in motion, and that by so attempting to get off the car he contributed to his own misfortune, then the rule of law which precludes an adult from recovering, where by his negligence he has contributed to his own injury, is applicable to this plaintiff, and the verdict must be for the defendants.
    “ I affirm that proposition.
    “ 10. That there is no sufficient evidence of negligence on the part of the defendants to entitle the plaintiff to recover in this suit, and the verdict must be for the defendants.
    “ I decline to affirm that, and leave the question for your determination under the evidence.”
    The verdict was for the plaintiff for $3000.
    The defendants took out a writ of error and assigned for error : 1-2. The answers to the plaintiff’s 5th and 7th points.
    3-9. The answers to the defendant’s 1st, 2d, 3d, 4th, 5th, 6th and 10th points.

      D. Webster and Gr. W. Thorn, for plaintiffs in error.
    On the undisputed facts the plaintiff was guilty of negligence: Ph. & R. R. R. v. Spearen, 11 Wright 300 ; Brown v. European R. R., 58 Maine 384; Penna. Can. Co. v. Bentley, 16 P. F. Smith 30; Cleveland & Pittsburg R. R. v. Rowan, Id. 393. A railroad passenger impliedly assents to all reasonable rules for entering and leaving the ears: Penna. R. R. v. Zebe, 9 Casey 318; s. c. 1 Wright 420 ; Sullivan v. Phila. & Reading R. R., 6 Casey 234; Pittsburg & Connellsville R. R. v. McClurg, 6 P. F. Smith 294; Parsons on Contracts 269.- There was not sufficient evidence to submit to the jury that the defendants’ servants were guilty of negligence: Carter v. Towne, 103 Mass. 507. On the undisputed facts of the case negligence was a question of law, and the court should not have permitted the cause to. go to the jury: Bulger v. The Albany R. R., 42 New York Rep. 461.

      R. L. Brown and Gr. L. Crawford, for defendant in error.—
    Carriers of passengers, liable only for negligence, are held to the greatest and highest care and forethought in the construction of their vehicle, and its use, and to the adoption, from time to time, in the progress of improvements of any improvement in known practical use, as a safeguard and precaution against known sources of danger and injury: Addison on Torts 368 ; Shear & Redf. on Negl. 296; Freemantle v. L. & N. W. Railway Co., 10 C. B. N. S. (J. Scott N. S.) 92 ; Meier v. Penna. R. R. Co., 14 P. F. Smith 227. And the test is not universal use or general use, hut known practical use: F. & B. Turnpike Co. v. P. & T. Railroad Co., 4 P. F. Smith 349. The whole question of negligence is one for the jury and not the court: McCully v. Clarke, 4 Wright 406, 7; Turnpike Co. v. Railroad Co., 4 P. F. Smith 349 ; Kay v. Penna. R. R. Co., 15 Id. 274; Penna. Canal Co. v. Bentley, 16 Id. 34. Running their oar so overloaded was negligence: Addison on Torts 371.
   The opinion of the court was delivered, May 11th 1874, by

Williams, J.

This was an action to recover damages for an injury occasioned by negligence. The plaintiff below, a boy of. ten years of age, was a passenger on the defendants’ car, and, in getting off, jumped from the front platform while the car was in motion, and received an injury which resulted in the loss of a leg. At the time of the accident there were more passengers in the car than could be seated. Some were standing on the front and rear platforms, and others inside the ear, in the passage-way, between the seats. The plaintiff got into the car in company with his younger brother and sister, at or near the intersection of Walnut and Broad streets. The latter, upon entering the car, got seats near the door at the rear platform. The plaintiff, after standing awhile, obtained a seat at the upper end of the car near the front door, which was open. The car stopped at Twenty-first street, and the younger children, without the knowledge of the plaintiff, got off with other passengers. But as the car started he saw them on the sidewalk, and tried to get out to the rear platform, but the passageway was so crowded that he turned and rushed out of the front door, and, as he says, told the driver to stop, who answered “ all right,” and slacked up with the reins. While the car was in motion, the plaintiff jumped off upon a pile of loose bricks, and slipped under the car. The hind wheel passed over his leg, crushing the bone above the ankle, and opening the ankle-joint. The driver testified that he slacked up because it was down grade; that he did not hear the boy ask him to stop, and that the first he saw of him he was falling, or jumping off the front platform. He could not say whether he jumped off or fell off; that he checked his horses, put his break to the car and did his best to stop it. The conductor was on the rear platform making change for a passenger who was paying his fare, and did not see the plaintiff until he felt the bouncing of the ear as it passed over his leg, and then he saw him crawl over to the sidewalk.

The court instructed the jury, in substance, that if the plaintiff’s injury was occasioned by the negligence of the defendants, without any fault on his own part, then he was entitled to maintain the action. But if it was not occasioned by the defendants’ negligence, or if his own negligence contributed to produce it, he was not entitled to recover. But in determining whether he acted with ordinary care, or was guilty of negligence, the jury must consider his conduct and action in view of his age. All that the law exacted of him, was such prudence and discretion as is usually exercised by boys of his own age; and if he acted with as much care and prudence under the circumstances, as children of his own age generally exercise, then he was not chargeable with negligence. No complaint is made in regard to these instructions, but it is alleged that there was error in the answers of the court to the plaintiff’s fifth and seventh points, and to the defendants’ first, second, third, fourth, fifth, sixth and tenth points; all of which, .as it seems to us, were answered in substantial conformity with the instructions contained in the general charge. The assignments of error embracing the answers to these points, virtually raise but two questions:—

1. Whether, under the facts disclosed by the evidence, the court should have charged that no negligence was imputable to the defendants ?

2. Whether the court should have charged that the plaintiff’s injury was occasioned by his own negligence or misconduct ?

It was the duty of the defendants to carry the plaintiff and set him down safely, if they could do it by the exercise of reasonable care and vigilance. If the plaintiff, on account of his age and inexperience, was incapable of taking proper care of himself, then the defendants were bound to exercise the highest care and vigilance necessary and proper to secure his safety. Whether the carrier, in the case of an injury to a passenger, has exercised reasonable and proper care to prevent it, or has been guilty of negligence, is, as. a general rule, a question of fact for the jury. But there may be such an obvious disregard of duty and safety, as to make it incumbent on the court to declare it negligence as a matter of law : Penna. R. R. Co. v. Ogier, 11 Casey 60; Pittsburg & Connellsville R. R. Co. v. McClurg, 6 P. F. Smith 295; and so the evidence may show such care and vigilance, and such an absence of any fact from which negligence can be inferred, as to make it the duty of the court to declare that no negligence is imputable : Philadelphia & Reading R. R. Co. v. Hummell, 8 Wright 375. But such cases are exceptions to the general rule, that what is "negligence is a question for the jury, when the measure of duty is ordinary and reasonable care: McCully v. Clark & Thaw, 4 Wright 399; Glassey v. Hestonville, &c., Passenger Railway Co., 7 P. F. Smith 172; Kay v. Penna. Railroad, 15 Id. 269; Penna. Canal Co. v. Bentley, 16 Id. 34; West Chester & Phila. R. R. Co. v. McElwee, 17 Id. 311. Is then the case before us within the exception, or does it clearly come within the general rule ?

It was undoubtedly the duty of the defendants to prevent children from getting on or off the front platform, or from riding in a place of so much danger: Pittsburg, Allegheny and Manchester Railway Co. v. Caldwell, 24 P. F. Smith 421; and if negligence is not imputable to them as a matter of law, because they did not enclose the front platform with a screen or fender, the fact that it was not so enclosed is a matter proper to be considered, in connection with the other facts of the case, in determining whether, or not, the defendants were guilty of negligence in allowing the front door to remain open, when the car was filled with passengers, some of whom were children, unattended by their parents or guardians, and who, from their youth and inexperience, may not have known that there was greater danger in getting off the front, than there was in getting off the rear platform. If the ear was filled with passengers — if some were standing on the platforms, and others in the passageway, blocking it up so as to make it difficult for the plaintiff to get to the rear platform, and impossible for the conductor to see him, how, under these circumstances, could the court say, as matter of law, that it was not the defendants’ duty to keep the front door closed, and that they were guilty of no negligence in allowing it to remain open ? If the plaintiff did not know that it was more dangerous to get off the front than to get off the rear platform, was not the crowded passageAvay and the open front door an invitation to him to go through it and get off the front platform ? If the latter had been enclosed with a screen or fender, the door might have been allowed to remain open with safety. But there was nothing in the construction of the front platform, showing that it was not to be used by passengers in getting on and off the car ; and the evidence shows that the plaintiff was not told or informed that he must not get on or off the front platform. It is clear, under all the circumstances, that the court could not have instructed the jury as matter of law, that it was not the duty of the defendants to keep the door closed, and if so, the question of negligence was properly submitted to their determination. Where both the duty and the extent of its performance are to be ascertained as facts, a jury alone can determine what is negligence and whether it has been proved: McOully v. Clarke & Thaw, supra. The court below was, therefore, right in refusing to charge that no negligence was imputable to the defendants.

II. Was there error in not charging that the plaintiff’s injury was occasioned by his own negligence or misconduct ?

It may be conceded that if the plaintiff had been an adult of ordinary discretion and intelligence, he would have been chargeable with negligence in jumping from the front platform, while the car was in motion, and the court might properly have instructed the jury that his injury was occasioned by his own folly and imprudence. But the plaintiff was a mere boy, and the law, because of his tender age and inexperience, does not exact of him the same degree of care and prudence that it does of a person of mature years. A boy’s capacity is the measure of his responsibility; and if he has not the ability to foresee and avoid danger to which he may be exposed, negligence will not be imputed to him, if he unwittingly exposes himself to it. Whether, then, the plaintiff had sufficient discretion and intelligence to know that he was exposing himself to great bodily harm in jumping, from the platform as he did, was not a matter of law but a question of fact, and was properly submitted to the jury, with the instruction that the law exacted of the plaintiff just that degree of care, prudence and discretion that his years had given him and no more; and if greater prudence and discretion than that exercised by the plaintiff, upon this occasion, would characterize the conduct of other boys of his age under similar circumstances, then the company is not to be held responsible, because of the rashness and impulsiveness of this boy in springing from his seat, rushing by the driver, and jumping from the car whilst it was in motion. The law governing tibe plaintiff’s responsibility for the act which resulted in his injury, is clearly and accurately stated in the defendant’s eighth and ninth points, which were affirmed by the court without qualification, and by their affirmance the question of the plaintiff’s negligence was submitted to the jury with just such instructions as they asked. If the verdict of the jury was against the weight of the evidence, the defendant’s remedy was a motion for a new trial, the granting or refusal of which was a matter within the sound discretion of the court below, and is not reviewable here. ''

Judgment affirmed.


author: Per Curiam.

text:
    Edwards versus The Lycoming County Mutual Insurance Company.
    1. A policy of insurance required notice of loss by fire to he given to the secretary “ forthwith.” Held, that the rule meant due diligence under all the circumstances, and eighteen days’ notice was not in this case sufficient.
    2. A local agent has not authority to receive the notice and is not bound to communicate it to the company.
    3. Trask v. State F. & M. Ins. Co., 5 Casey 198, a ruling case.
    March 3d 1874.
    Before Agnew, C. J., Sharswood, Mercur and Gordon, JJ. Williams, J., at Nisi Prius.
    Error to the Court of Common Pleas of Schwyhill county: No. 195 to January Term 1872.
    This was an action of covenant, brought February 16th 1859, by Daniel Edwards against the Lycoming Insurance Company, to recover for loss by fire to the plaintiff’s property, insured by the defendants.
    The property was a coal breaker, on lands of the Forest Improvement Company in Sehuykill county.
    In case of loss, the loss was to be paid “ within three months after due notice and proof thereof made by the insured in conformity with the conditions annexed to the policy.”
    One of these conditions was:—
    “ In case any building or other property insured shall be lost or damaged by fire, the insured shall forthwith give notice thereof to the secretary, and within thirty days after said loss, shall deliver unto said secretary a particular account of such loss or damage, signed with his, her or their own hand or hands, or by their guardian, attorney or agent; and also, if required, to be verified by their books of account and other proper vouchers.” * *. *
    On the 30th day of September 1858, the property insured was destroyed by fire.
    The case was tried December 21st 1870, before Ryan, P. J.
    For the plaintiff, Jacob A. Hazen testified: “ I was the local agent of Lycoming Company, in this county, in 1858; the renewal of this policy was through me; I observed the light from the breaker; heard next day that it was Edward’s breaker; I didn’t go out to breaker; John Hughes did not inform me on that day; but four days afterwards; John Hughes met me then on the street and asked me if I knew that Edwards’s breaker had burnt down; I told him I heard it; he said that he was counsel for Mr. Johns to whom the policy had been assigned; I told him that I thought this was impossible as the policy was on my table; had never been lifted ; he said that the transfer had been made on the old policy; I said I knew nothing of that. That was all the conversation ; Edwards has settled for the policy; John Hughes did not tell me the extent of loss; I never went there ; I never informed the company of the loss, or the secretary; I-never do, unless requested; I never examined the destruction of this breaker. I collected the assessments also.”
    The plaintiff testified: “I heard of fire at 7 o’clock in the morning, and at 10 o’clock after the fire; I employed John Hughes as my lawyer in this matter.”
    The plaintiff gave the following notice in evidence:—
    “ To the Secretary of the Lycoming Mutual Insurance Company.
    Sir: — You will please take notice that the ‘ coal-breaker, schutes, machinery and trestle work’ insured in my name in your office on the 16th day of July 1853, for the period of five years, by policy No. 33,696, and renewed upon the 16th day of July 1858, for the sum of $2500, were wholly and entirely destroyed by fire on the night of the 30th day of September, ultimo.
    Very respectfully, D. Edwards.
    Pottsville, October 18th 1858.”
    The court charged :—
    “ The defendants are entitled to your verdict, for the reason that the plaintiff failed to give notice of the loss to the company within a reasonable time.”
    The verdict was for the defendants.
    The plaintiff removed the record to the Supreme Court, and assigned the charge of the court for error.

      A. W. Schalk, for plaintiff in error.
    “ Forthwith” in the policy means with due diligence, and whether that has been used is for the jury: Edwards v. Baltimore Insurance Company, 3 Gill (Md.) 176; Wetherell v. Maine Insurance Company, 49 Maine 200; Peoria Insurance Company v, Lewis, 18 Ill. 553 ; Inman v. Western Insurance Company, 12 Wendell 452; Connell v. Leroy, 9 Id. 166 ; Insurance Company v. Updegraff, 7 Wright 359. Notice may be given through the local agent: West Branch Insurance Co. v. Helfenstein, 4 Wright 298.

      J. A. Sazen and B. W- Gumming, for defendants in error.—
    Cited Inland Insurance Co. v. Stauffer, 9 Casey 397; Trask v. State Fire & Marine Insurance Co., 5 Casey 198; Owen v. Joint Stock Insurance Co., 57 Barbour 518; Flanders on Fire Insurance 528 ; Commonwealth Insurance Co., v. Sennett, 5 Wright 161; Lycoming Insurance Company v. Beatty, 16 P. F. Smith 9.
   The judgment was rendered in the Supreme Court, March 9th 1874.

Per Curiam.

This case is ruled by Trask v. Insurance Company, 5 Casey 198. That case was much stronger in its circumstances in favor of the assured than this. It might have been well said there that the parties to the policy treated the notice as in time; but eleven days there being held to be too long, and the circumstances not to excuse the delay, we cannot, without disregarding the wholesome maxim, stare deeisis, say that eighteen days in this case are a reasonable time within the provision of the policy, that, on a loss happening, the “insured shall forthwith give notice thereof to the secretary.” Hazen, the local agent, had no authority to receive the notice, and was not bound to communicate it to the company. He was not even requested by the attorney, who informed him, to give the notice. This rule of the company should receive a reasonable interpretation to mean as requiring due diligence under all the circumstances; that there should be no laches or unreasonable delay, and in th'is respect Trask v. Insurance Company seems to have been somewhat harsh. This case, however, has not the same extenuating circumstances, and we must abide by the ruling in that case. Judgment affirmed.


author: Sharswood, J.

text:
    Phillips versus Reagan.
    1. Under the Act of April 10th 1848, it is not necessary to a sheriff’s interpleader that there should have been an actual levy.
    2. The claimant having possession of the goods has no right to insist that there shall be a levy.
    3. By an issue formed to try the right to the property under the order of the court, questions as to the sheriff’s right to relief, are concluded by the order, and the trial is upon the issue awarded.
    March 3d 1874.
    Before Agnew, C. J., Sharswood, Merour and Gordon, JJ. Williams, J., at Nisi Prius.
    Error to the Court of Common Pleas of Schuylkill county: No. 45, to January Term 1873.
    The proceeding in this case was under the Sheriff’s Interpleader Act.
    On the 19th of April 1869, John Phillips recovered a judgment in the Common Pleas of Schuylkill county against Isaac C. Hoch for $174.50. On the 11th of October 1871 Phillips issued an alias fi. fa. on this-judgment, the execution came into the sheriff’s hands at 11J o’olock, A. M., of that day. He returned that, October 12th 1871, he had levied on some cattle and other personal property of the defendant in the execution specified in the levy.
    On the 18th of October 1871, William Reagan gave notice to the sheriff that he had claimed certain of the articles levied on ; he specified them in his notice.
    On the same day, James L. Pitman, the sheriff, petitioned the court, setting out the levy and Reagan’s notice and praying for a rule for an issue to try the right to the property levied on.
    The claimant gave the ordinary interpleader bond, and an issue was awarded in which Reagan, the claimant, was plaintiff, and Phillips, the plaintiff in the execution, was defendant.
    The issue was tried, September 11th 1872, before Walker, J.
    The plaintiff testified as to his ownership of the property, the circumstances of his purchase from Hoch, the defendant in the execution, &c.
    H. H. Stauffer, who acted as deputy sheriff, testified, that as constable he had an execution at the suit of one Clark against Hoch, and levied on the cattle named in levy as the property of Hoch, and drove them to Ringtown and gave them to John Foose. Whilst they were in his possession Phillips paid the amount of Clark’s judgment. Witness received the sheriff’s execution October 12th, and entered the levy on his writ at Mahonoy City, nine miles from Ringtown; he did not see the cattle when he made the levy nor afterwards.
    The question of fraud between Reagan and Hoch was raised in the case and evidence given on it, but not being involved in the decision of the Supreme Court it need not be further noticed.
    The court charged:—
    * * * “ In this case there was no seizure of the goods, either actual or constructive. The property being nine miles away it was out of the power and out of the view of the officer at the time he made the endorsement upon the writ. The goods were never in his custody and therefore there was no valid or legal levy made.
    “ The plaintiff’s execution no doubt bound' all the personal property of Hoch within the county from the time it came into the hands of the sheriff until the return-day, after which it ceased to be a lien in the absence of a valid levy to continue its operation. The right of the defendant to take the goods depends now upon the validity of his levy. That being illegal and void he cannot recover in this action from the evidence. * * *
    “The rest of the evidence submitted to you to determine and the points made by counsel it is immaterial for the court to comment upon in this aspect of the case.
    “We therefore instruct you on the law arising upon the evidence in this case to find a verdict in favor of the plaintiff.”
    The jury found for the plaintiff, the claimant.
    The defendant took out a writ of error and assigned for error the charge of the court, and also the rulings of the court on questions of evidence which arose in the case.

      O. P. Beehtel and B. W. Gumming, for plaintiff in error.—
    The question was not on the validity of the levy but whether the claimant owned the goods : Allentown Bank v. Beck, 13 Wright 394. The plaintiff’s claim admitted the levy and he is estopped : McMahan v. McMahan, 1 Harris 381; Heitzman v. Divil, 1 Jones 268. The admission of the levy is a matter of record: Ranck v. Becker, 12 S. & R. 426 ; Kelly v. Eichman, 3 Wharton 419. An actual levy was not necessary to authorize a proceeding under the Sheriff’s Interpleader Act, April 10th 1848, sect. 9, Pamph. L. 450; 1 Br. Purd. 643, pi. 48. It authorizes the proceeding when the goods have been taken in execution or entitled to be taken in execution and a fi. fa. binds defendant’s property from the time the writ goes into the sheriff’s hands : Duncan v. McCumber, 10 Watts 212.

      J. Ryan and J. W. Ryan, for defendant in error.
    The burden is on the plaintiff in the execution to show that the goods were the defendant’s: Van Winkle v. Young, 1 Wright 214. To entitle the sheriff to a rule to interplead he must have made an actual levy : Baron v. McMackin, 1 Tr. & H. Pr. 723.
   The opinion of the court was delivered, March 9th 1874, by

Sharswood, J.

Under the 9th section of the Act of April 10th 1848, Pamph. L. 450, it is not necessary to a sheriff’s interpleader that there should have been an actual levy upon the goods which are the subject-matter of the adverse claim. The words of the act are, when any such claim has been or shall be made to any goods or chattels taken or “ entitled to be taken in execution.” The English statute of 1 & 2 Will. 4, chap. 58, sec. 6, from which our act seems to have been copied, provides, “ when any such claim shall be made to any goods or chattels taken or intended to be taken in execution.” In Day v. Carr, 7 Exch. Rep. 883, 16 English Law and Equity Reports 578, it was held by the Court of Exchequer, that no actual seizure or levy upon the goods was necessary. The Interpleader Act,” said Pollock, C. B., “ clearly empowers the sheriff to apply to the court, if he goes with the intention of levying under a fi. fa., and a claim is set up to the goods; and in many ■cases he may be well justified in applying to the court before he perils himself by an actual seizure, under circumstances which might perhaps subject him not only to an action for the value of the goods, but also for damages for taking them.” The statute requires an intention in the sheriff, and therefore when he withdraws from the possession upon an adverse claim he is not entitled to be relieved Holton v. Guntrip, 3 M. & W. 145. Our act is even broader than the English statute, by substituting the word entitled” for the word “ intended.” There is great reason why, when the goods of one man may be taken under an execution against another, that an actual levy should not be necessary. Every purpose of the act may be accomplished without it. Especially is this so when the goods are in the actual possession, not of the defendant in the execution, but of the adverse claimant. A very serious injury might be done to such a party by closing his store and putting a watchman in charge, even for the short period of time necessary to procure the order of the court for the inter-pleader.

It may be that upon the rule by the sheriff calling upon the parties to interplead, the plaintiff in the execution may insist, for his own security, upon an actual levy and inventory. That seems to have been the case in Baron v. McMackin, in the District Court of Philadelphia, 1 Troubat & Haley 723 — 4. The dictum there was upon such a rule. But surely the claimant in whose possession the goods are has no such right. He is called upon to maintain or abandon his claim, and if he maintains it and gives bond he retains the possession, and if he abandons, a levy must follow. When an issue is formed to try the property under the order of the court, all questions as to the right of the sheriff to relief are concluded by the order, and the parties go to trial simply upon the issue awarded. We think, therefore, that the learned judge below fell into an error in directing a verdict for the plaintiff in the issue because there had been no actual levy. The other errors assigned do not need to be noticed. We think the rulings upon points of evidence were correct.

Judgment reversed, and venire facias de novo awarded.


text:
    St. Clair Coal Company versus Martz.
    1. When the only issue in a scire facias on a mechanic’s lien, is under the plea of payment, questions as to sufficiency of the lien are waived.
    2. The lien of an architect employed to superintend a patent erection may be enhanced by the patent right, he being the owner.
    3. A claim was for “ a hoisting and dumping cage,” — erected at a leased coal-mine in Schuylkill county ; it was filed against the right, title and interest of the lessee “ to all that certain improvement, machinery, &e., which are part of and together make the erection known as the St. Clair Shaft Colliery.” Reid, that under the Act of February 17th 1858, the claim could be filed, only against the specific improvement, and that the failure so to confine it was not waived by going to trial under the plea of payment.
    4. Carey v. Wintersteen, 10 P. F. Smith 395 ; Lee v. Burke, 16 P. F. Smith 336, recognised.
    March 5th 1874.
    Before Agnew, C. J., Sharswood, Merour and Gordon, JJ. Williams, J., at Nisi Prius. ■
    Error to the Court of Common Pleas of Schuylkill county; Of January Term 1872, No. 332.
    In the court below this was a scire facias on a mechanic’s lien, issued by George Martz against the St. Clair Coal Company, February 6th 1867.
    The lien was filed under the Act of February 17th 1858, sect. 1, Pamph. L. 29, 2 Br. Purd. 1029, pi. 23. By this act the provisions of Mechanics’ Lien Law of June 16th 1836 are extended to all improvements, &c., “ erected or put up by tenants of leased estates on lands of others in the counties of Luzerne and Schuylkill, &c., provided that the lien, &c., shall extend only to the interest of the tenants or lessee therein and to the improvements, engines, pumps, machinery, screens, and fixtures erected,” &c.
    The company, defendants, were lessees of a right to mine coal on the lands of Carey, Hart and others in Schuylkill county.
    The plaintiff as architect filed his claim February 5th 1867, “for $500 against all the right, title and interest of the St. Clair Coal Company of, in and to all that certain improvement, machinery and fixtures, which are parts of and make together the erection known as the St. Clair Shaft Colliery, situate on lands of Henry C. Carey, &e., partly in the borough of St. Clair and partly in the township of New Castle, county of Schuylkill, and containing four hundred acres more or less. The said colliery and lands having been leased by a certain Ell Hart from the said Henry C. Carey, &c., by article of agreement made and concluded the seventeenth day of March, A. D. 1862, for mining purposes.

      “ The said lease embraces two certain veins of coal, known, &e., and includes also the right to mine and carry away coal from the veins of coal on a certain triangle or gore of land, known as the Lee lands, and which adjoins the first described tract. The time of said lease being twenty years from the date thereof, which said lease or articles of agreement, the said Ell Hart, by writing under his hand and seal, dated the 29th day of March, A. D. 1864, sold, transferred and assigned, and all his right, title and interest in the property, estate and term of years created and vested in him thereby, with the appertenances, to the St. Olair Coal Company. The breaker of the said St. Clair Shaft Colliery being of frame, and in length sixty-eight feet and in width in front ninety-four and a half, and in height eighty-four feet. Said colliery contains one two-hundred horse power pumping engine, one forty-horse power breaker engine, and one eighty-horse power hoisting engine with boilers, and all the necessary machinery attached, and the said George Martz files this his claim, against the said breaker building, as well as against the engines, machinery and fixtures thereon or connected therewith, and also against all the right, title and interest of the said St. Clair Coal Company in the said leasehold estate, as well as against all the machinery, improvements, slope railroads, fixtures and appertenances connected therewith, and necessary to the use and enjoyment of said leasehold estate and premises aforesaid.
    “ The amount claimed by the said George Martz as aforesaid is due for the erection of a patent improvement in hoisting and dumping coal to said breaker of the said St. Clair Shaft Colliery, and for superintending the erection of said improvement, from the 11th day of July, A. d. 1866, to the 11th day of November, A. d. 1866. The statement hereto annexed sets forth the nature and kind of improvement erected as aforesaid, with the work and labor done, at the instance and request of the said St. Clair Coal Company. The said patent improvement was granted to the said George Martz by the United States of America, by letters patent, dated the 13th day of October, A. D. 1866, and numbered 59,243.”
    The statement was as is set out in the lien.
    The pleas were “ nul tiel record,” “payment with leave,” and “ set-off.”
    The case was tried June 19th 1871, before Ryon, P. J.
    The plaintiff testified that the agent of the defendants asked ■him what he charged for his patent; he said $500. He told plaintiff to go and take his plans to Allison and Bannan, and have them build it. They built it under plaintiff’s superintendence. On the demand of payment by plaintiff, the agent refused to pay him anything-except for his services.

      He gave evidence also of the grant of the patent to him, and other evidence in support of his case.
    The defendants gave evidence in contradiction of the plaintiff’s testimony.
    The defendants’ points were:—
    1. This lien is filed against the St. Clair Shaft Colliery and four hundred acres of land, &c., * * as well as a shaft and a slope and a lease for a term of years of the right to work portions of the “ Seven Foot” and “ Big White Ash” veins of coal, while the tract is not demised, and was intended to be a claim for work done and materials furnished to a lessee for a term of years; that the alleged work done and materials furnished was upon a mere part of the hoisting arrangements at the shaft, and the lien as claimed, therefore, upon all the machinery, fixtures and improvements, known as the St. Clair Shaft Colliery, and upon a leasehold estate of a four hundred acre tract of land, is null and void, and there can be no recovery in this suit.
    2. The lien filed does not set forth the nature and kind of the work done and amount of materials furnished. It is for both, but does not specify how much for either, and is therefore void.
    3. It does not describe the building-or erection for which the work was done and materials furnished with precision, so as to identify it or distinguish it from any of the numerous buildings or erections that constituted said colliery, and is therefore void.
    4. It does not show whether the alleged patented improvement was placed in a new erection, or whether it of itself constituted a new erection, or whether it is for repairs, alterations or additions in or to old erections or buildings, or new ones, and is therefore void.
    5. The value of a patent right, or license to use the same, is not the subject of a mechanic’s lien, and the demand for which this claim is filed is not lienable.
    6. The lien is filed “for erecting a patent improvement in hoisting and dumping coal and for work and labor done in superintending the erection of said improvement; whereas it appears that the alleged patent improvement was erected or constructed by Allison & Bannan, and that all the plaintiff did was the superintending of its erection, or placing it at the shaft, and there is no evidence to show how much each part was worth.
    7. The plaintiff having sought to recover as upon a special contract, he must file his claim for work done and material furnished according to the special contract as proved; that here his own testimony is that his contract was in part for drawings and superintending the erection and construction of the alleged improvements by Allison & Bannan, whereas his claim as filed is in part for the very work done by Allison & Bannan, and the claim filed is not therefore according to the special contract, as proved by the plaintiff himself.
    8. Upon the whole case, the verdict of the jury must be for the defendants.
    The court charged:—
    * * * “ [Now, for the purposes of this case, we shall say to you that the lien is sufficiently descriptive upon its face, and sets out with sufficient certainty the nature and kind of work and materials, and the specification of the building upon which the same was done and performed.] The questions involving this question we will reserve.
    “ The plaintiff claims to recover upon a special contract. * * * Upon the other hand, the defendant claims that there was no contract for the use of this patent. * * * If the plaintiff recovers at all, he must do so upon this specific contract. [If you should believe Mr. Martz and others, and find from the whole evidence that there was a specific agreement by which the plaintiff was to have and the defendants agreed to pay the $500 for the use of the patent and Martz’s superintendence in putting it up, the plaintiff should recover.]
    “ If, upon the other hand, you believe the testimony of Mr. Kendrick, that he made no contract by which the defendants were to pay $500 for the patent and the superintendence, and that no specific sum was agreed upon at the time this work was performed, &c., then the plaintiff is not entitled to recover.
    “Again, you must be satisfied from the evidence that the building in lien filed is the same building proved as the one in which these cages were put and the work and labor of the plaintiff was done and performed.”
    The verdict was for the plaintiff for $632.50.
    The defendants moved for judgment on the reserved point non obstante veredicto. The rule was discharged and judgment entered for the plaintiff on the verdict.
    The defendants took out a writ of error, and assigned for error—
    1, 2. The parts of the charge in brackets.
    3. Kefusing to enter judgment for the defendants non obstante mredieto.

    4. Not affirming defendants’ first point.

      Gf. F. Farquhar and F. W. Hughes, for plaintiffs in error.—
    The lien of plaintiff extended only to the specific improvement: Esterley’s Appeal, 4 P. F. Smith 192: Summerville v. Wann, 1 Wright 182.

      L. Bartholomew and F. O. Parry, for defendant in error.—
    Plaintiff is entitled to a lien for his services: Bank of Pennsylvania v Gries, 11 Casey 423. After a plea of payment, the defendants cannot take advantage of informality in the lien. Formal objections to the validity of a mechanic’s lien can be taken advantage of only under plea in abatement or motion to strike off before plea in bar is entered: Lybrandt v. Eberly, 12 Casey 347 ; Howell v. Philadelphia, 2 Wright 471; Richabaugh v. Dugan, 7 Barr 394; Lewis v. Morgan, 11 S. & R. 234; Sergeant’s Mechanics’ Lien Law 278.
   The opinion of the court was delivered, March 16th 1874, by

Sharswood, J.

In Lee v. Burke, 16 P. F. Smith 336, upon a scire facias on a mechanic’s claim, when the parties went to trial upon the pleas of “no lien, payment, set-off with leave,” it was held that no question of the sufficiency of the lien could arise on the trial of these issues; that even the plea of “no lien” was necessarily confined to such questions of fact as might invalidate the lien — such as that it was not filed in time; that the work was not done or the materials furnished on the credit of the building; that the plaintiffs had bound themselves to file no claim, or that the building was not such a one as was within the Acts of Assembly. But as to defects on the face of the claim filed, they are not raised by such a plea*. A fortiori is this so, when the only issue is upon the plea of payment. The question as to the sufficiency of the claim can be raised on demurrer or by moving to strike off the lien; but after pleading to the scire facias, it must be considered waived: Lehman v. Thomas, 5 W. & S. 262; Lybrandt v. Eberly, 12 Casey 347; Howell v. Philadelphia, 2 Wright 471.

In The Bank v. Dries, 11 Casey 423, it was decided that an architect employed to make the plan and drawings for a building, and to direct and oversee its erection in accordance therewith, is within the provision of the Mechanics’ Lien Law, and entitled to a lien against the building for his labor. That the value of the services of such an architect might be enhanced by a patent right of which he was the proprietor, can hardly be doubted ; and if a specific agreement is made with him for a certain sum for the use of his patent and his superintendence in putting it up, he is certainly entitled to file a lien for that amount and to recover it upon proceeding by scire facias.

As we have seen that the question of sufficiency of the lien was not involved in the issue of facts presented on the pleading, it could not be the subject of a reservation; and even if the lien was insufficient on its face, no judgment non obstante veredicto could have been properly entered.

This disposes of all the errors assigned, except the fourth, which remains to be considered. The lien was filed against all the right, title and interest of the. St. Clair Coal Company of, in and to all that certain improvement, .machinery and fixtures which are part of and together make the erection known as the St. Clair Shaft Colliery; the said colliery having been leased, &c., for mining purposes. The Act of Assembly under which this claim was filed was approved February 17th 1858, Pamph. L. 29, and is entitled “An Act relative to mechanics’ liens in the counties of Luzerne and Schuylkill.” It extends the provisions of the general Act of 1836 “ to all improvements, engines, pumps, machinery, screens and fixtures erected or put up by tenants of leased estates on land of others in the counties of Luzerne and Schuylkill, and to all mechanics, machinists and material-men doing work or furnishing the articles or materials therefor: Provided, That the lien hereby created shall extend only to the interest of the tenant or tenants, lessee or lessees therein, and to the improvements, engines, pumps, machinery, screens a.nd fixtures erected, repaired or put up by the mechanics, machinists, persons or material-men entering liens thereon.” The claim of the plaintiff was for work done in the erection of a patent hoisting and dumping cage, yet the claim filed is against the entire leasehold interest in the colliery. The Act of Assembly gave the plaintiff no such lien. It confines the lien clearly to the interest of the lessees in the improvement and machinery upon which his labor and services were bestowed. Upon an execution on the judgment upon this scire facias, the leasehold interest in the entire colliery could be levied upon and sold. This fatal error in the claim, though not regularly, is substantially assigned. It certainly was not waived as merely formally defective and by going to trial on the issue of payment. In Carey v. Wintersteen, 10 P. F. Smith 395, where the lien was filed against the owners and not the lessees of “ a certain frame engine and shaft-house,” &c., judgment recovered on the scire facias was reversed on that account. For that reason the judgment in this case cannot be sustained. The defendants below were entitled to an affirmative answer to their first point. Judgment reversed.


text:
    Glenn et al. versus Thompson.
    1. A lessor and whoever may have succeeded to his title are entitled to the benefit of the Act of December 14th 1863. (Landlord and Tenant.)
    2. A lessor of a term ending April 1st, sold and conveyed the premises in September preceding ; she gave notice to the tenant to quit on April 1st, as she desired to deliver possession to her vendee; in a proceeding by the vendee under the Act of 1863 to obtain possession, it was held, that the lessor had such interest as to give the notice to quit.

      3. Every presumption is in favor of proceedings under this act.
    4. A notice to quit to one of two joint tenants is sufficient.
    March 5th 1874.
    Before Agnew, C. J., Shabswood, Mercub and Gordon, JJ. -Williams, J., at Nisi Prius.

      Error to the Court of Common Pleas of Schuylkill county: Of January Term 1874, No. 309.
    This was a proceeding under the. Landlord and Tenant Act of December 14th 1863, Pamph L. (1864), 1125, 2 Br. Purd. 882, pi. 20, by Lewis 0. Thompson, assignee of Eve Ann Miller, against James Glenn and Charles Glenn.
    It commenced April 7th 1873, before Morgan Reed, a justice of the peace.
    After reciting the preliminary proceedings of complaint, summons, &c., the justice’s record is as follows:—
    “That on the 13th April 1873, plaintiff and defendants appear both in person and by their attorneys. That after hearing the proofs and allegations of the parties the said justice found that the said Eve Anna Miller was on the 1st April 1872, possessed of said premises ; that after making the demise aforesaid, to wit: on the 24th September 1872, she conveyed the same to said Lewis C. Thompson, as aforesaid. That on the same day and year last aforesaid, she demised the said premises to the said James Glenn and Charles A. Glenn for the term of one year — and until notice given to quit — then next ensuing at the yearly rent of $500 payable quarterly. That the said’ Glenns entered into possession and held the same during said term and were still possessed of the same; that the said term for which the said premises were demised was fully ended; that the said Eve Anna Miller being desirous upon the said determination of the said term to have again and repossess said premises, for that purpose did, on 31st December 1872, demand of and require the said Glenns to remove from and leave the same; that the said Glenns had theretofore refused to comply, and the said justice did further find the complaint of the landlord so, as aforesaid made, just and true in every particular (except that the rent should be $500, instead of $550), and that said notice was given more than three months before the end of the term, and did award the possession of the premises aforesaid to the said Lewis 0. Thompson, assignee of Eve Anna Miller, and assess the sum of $16.66 for his damages occasioned by the unjust detention of said premises.”
    The notice demanding possession was dated and served December 31st 1872, and was signed B. M. Miller for E. A. Miller, directed to James Glenn & Son, notifying them that E. A. Miller desired “ to have and repossess ” the premises on the 1st day of April then next: the notice was served on James Glenn.
    The tenants removed the proceedings into the'Court of Common Pleas by certiorari, and filed the following exceptions and “ additional exceptions”:—
    1. The record shows that L. C. Thompson became the owner of the premises on the twenty-fourth day of September, A. 3). 1872, and also shows that no notice was ever given by said Thompson, or anybody in his behalf or as his agent.
    2. No such notice as is required by law was ever given to the defendants, and the justice has no jurisdiction without notice has first been given.
    Additional exceptions:—
    1. The demise set forth in the information and record in this case is from Eve Anna Miller to James Glenn and Charles A. Glenn. The notice to quit was not directed to Charles A. Glenn, but to James Glenn & Son, and served only on James Glenn.
    2. There was no demise to James Glenn & Son, as stated in the notice.
    3. The record shows that Eve Anna Miller had no right to give notice to any one to quit on the 31st December 1872, as she had parted with her title and right to possession, on the 24th September 1872, and the defendants were not bound to regard the same.
    4. The vendee of Eve Anna Miller and the plaintiff in this proceeding does not allege or claim that Eve Anna Miller acted as his agent or by his authority in giving the notice, nor that he ratified her act as in his behalf, but alleges that she desired to obtain possession so as to hand it over to him, the vendee.
    The court (Green, J.) overruled the exceptions and affirmed the proceedings.
    The tenants removed the record into the Supreme Court and assigned for error the overruling their proceedings and affirming the proceedings of the justice.

      G. E. Farquhar (with whom were S. Foster, Jr., O. P. Beehtel and F. W. Hughes), for plaintiffs in error.
    It was a defence to this claim for possession that since the demise the lessor’s title had been divested: Newell v. Gibbs, 1 W. & S. 496; Koontz v. Hammond, 12 P. F. Smith 177; Heritage v. Wilfong, 8 Id. 137. The notice should have been given by the alienee: Tilford v. Fleming, 14 P. F. Smith 300 ; Donaldson v. Likens, 2 Brewster 486. The record of the magistrate must show everything necessary to support his jurisdiction: Givens v. Miller, 12 P. F. Smith 133.

      L. Bartholomew (with whom was J. W. By on), for defendant in error.
   The opinion of the court was delivered, March 16th 1874, by

Sharswood, J.

In the construction of the Act of April 3d 1830, Pamph. L. 187, which provides a remedy for the recovery of possession in case of non-payment of rent, an act in pari materia with that of December 14th 1863, Pamph. L. of 1864, Appendix 1125, in both which the proceeding is granted to the lessor without the addition of the words “ heirs or assigns,” it has been held by this court in Clark v. Everly, 8 W. & S. 226, that the heir could avail himself of the remedy, and in McKeon v. King, 9 Barr 213, that the sheriff’s vendee of the lessor’s title was within the act. As to the fact that the lease was not made directly by this complainant, it is entirely clear that- an assignee is entitled to the remedyPer Gibson, C. J. The titles of each of the acts is,' “ an act relative to landlord and tenant.” There is good reason therefore for holding that by lessor the legislature meant landlords ; not only the original lessor, but whoever may have succeeded to his title.

It is contended here, however, that after the lessor had parted with her title, she had no longer any interest, and the lessee could disregard her notice to quit as the act of a mere stranger. But if, as the inquisition expressly finds, the notice was given with the desire of delivering the possession to the alienee, and the proceeding is in the name and for the benefit of the alienee, the lessor was no such stranger. Every presumption is in favor of the regularity of the proceeding; and applying this principle, we agree with the court below that the record sufficiently shows that the lessor still retained an interest in the property after the date of her deed of conveyance to entitle her to give the necessary notice to quit.

A notice to one of two joint lessors is undoubtedly a good notice to both, and the verbal mistake in the recital of the names of the lessees was immaterial.

Judgment affirmed.