text:
    Woodward and Vincent versus Webb.
    1. In an action of tort, the defendants may defend as being agents of a corporation and doing nothing outside of the duties of their employment.
    2. A servant can justify doing any act which his master had a right to do.
    3. A corporation were authorized to improve a stream, in an injury done by their servants in what the corporation had authority to do, there was no privity by law or contract between the servants and the injured party.
    4. Consequential damages are not recoverable from an improvement corporation, except when expressly given and on the terms on which they are allowed.
    5. An improvement company was required to file a bond, “ in a sum sufficient to indemnify all persons holding property on said stream for any loss they may sustain by reason of said improvement.” Persons injured are to proceed by a common-law procedure to recover damages, and in case of nonpayment recourse is to be had to the bond.
    6. The Act of April 24th 1864, incorporating the Bennett’s Branch Improvement Company, gives the company unlimited authority in the stream on condition of paying the damages outside of it.
    7. There is no default in the company in not paying damages before they are demanded, nor then if they are unreasonable.
    8. The plaintiffs assisted the company in building the dam complained of, which was not on his land. He was not estopped from claiming damages.
    March 31st 1870.
    Before Thompson, C. J., Agnew, Sharswood and Williams, JJ. Read, J., at Nisi Prius.
    Error to the Court of Common Pleas of Elk county: Of January Term 1870, No. 401.
    This was an action on the case by Charles Webb against Hiram Woodward and Edward Yincent, brought April 7th 1869, for injury to the plaintiff’s mills by flooding water back on them.
    The plaintiff was the owner of two mills, one a grist-mill and the other a saw-mill, on Bennett’s Branch of the Sinnemahoning creek, and had owned and been in possession of them for thirty years. The two mills are within the stream and run upon the same level. Bennett’s Branch had been declared a public highway by Act of March 23d 1818.
    The Bennett’s Branch Improvement Company was incorporated by the Act of April 24th 1864, Pamph. L. 499. The following are sections of the act:—
    Sect. 2. The said corporation shall have power and are hereby authorized to clear out, improve and use, all and every part of Bennett’s Branch of the Sinnemahoning creek, in the counties of Clearfield and Elk, from the mouth of the large run, known as Bundy’s run, above the saw-mill of Stephen Bundy, down the same to the mill, known as Lindermuth’s mill, below Caledonia, and shall have the right to use all dams now erected by any members of said corporation upon said stream, and to erect new dams, in such manner and at such points as they may think proper, and shall and may use all and each of said dams and the waters of said stream in the floating of saw-logs down the same, and generally shall and may have the right to straighten, deepen, crib and widen the channel of the stream aforesaid in such manner as they see fit for the purposes aforesaid: Provided, That no injury shall-be thereby done to private property outside of the limits of the stream aforesaid.
    Sect. 6. That said company shall be required to file a bond in the Court of Common Pleas of Clearfield county, to be approved by said court, in a sum sufficient to indemnify all persons holding property on said stream for any loss they may sustain by reason of said improvement.
    In pursuance of the authority of this act the corporation erected what is called the “ Slabtown dam,” about a mile and a half below the plaintiff’s mills, and within the limits which were designated in the act for the improvement of Bennett’s Branch. The dam was built, and during the season of floating logs was kept up and managed for raising “ splashes” for the purpose of driving logs down the stream. The dam had been built under the charge of Woodward, one of the defendants. Vincent, the other defendant, attended to the splashing under Woodward who had the contract for doing it — both were in the employ of the corporation, and acted under their authority and direction. When the “brackets” were put on the dam for the purpose of “splashing,” the plaintiff’s dam and mill-wheels were flooded. There was evidence that the plaintiff furnished lumber for the construction of the dam, boarded the workmen whilst it was being built, wras frequently at the dam, and knew the purposes of its erection.
    There was much evidence as to the amount of injury sustained by the plaintiff, and as to the mode in which the splashes were made.
    The defendants submitted these points:—
    1. If the jury believe that during the erection of this dam Charles Webb had full knowledge thereof, was frequently there during its building, furnished lumber or materials for its construction, boarded the hands employed in its erection, and all this with knowledge of the purpose for which the same was being erected, from these facts they may find a license from the plaintiff to use the dam in the execution of that purpose, and if a license be so found, the plaintiff cannot recover in this action.
    2. If the jury find the facts as stated in the 1st point, they constitute an equitable estoppel and bar this action.
    8d. The 6th section of the Act of 20th April 1864, entitled “ An act to incorporate the Bennett’s Branch Improvement Company,” is not a condition precedent to its organization, or to the exercise of the rights and privileges therein granted to said company.

      4. The rights of the plaintiff in his mill-dams are subservient to the superior right of public navigation. The right being a public one, is entirely within legislative control, and the Act of Assembly of 20th April 1864 gives an unrestricted right to erect and use their dams as they may deem proper for the purpose of floating logs, saving only private rights without the limits of the stream.
    The court (Johnson, P. J.) charged:— * * *
    “ On behalf of the defendants it is contended that they are but the agents or employees of others, and therefore should not be held responsible. While that rule might be applicable in matters of contract and in a different form of action, it is not available to protect a party against liability for a tort or in actions ex delicto such as this. Every man must answer for his own wrong, and cannot be excused by the command or employment of another.
    “ But it is alleged in their behalf that the parties under and with whom they were acting had authority to erect the dam and flow the water back on owners above, without limit or accountability for consequential damages. '
    “ This position can be maintained only by falling back on the right of eminent domain, remaining in the Commonwealth in all navigable streams, and claiming that as to this stream it was granted to the ‘Bennett’s Branch Improvement Company’ by the Act of the 20th April 1864, of which the parties behind the defendants, and for whose benefit mainly the dam was used, were members.
    “ If this were a public corporation created by the legislature for the construction of some public improvement, in which the citizens of the Commonwealth had an interest, and by which they were to he benefited, there would be much force in the position.
    “ But we cannot so regard it. Both in purpose and practice it it a private institution, intended and used for the private business and profit of the few immediately concerned in floating their logs from their timber lands above to the mills below the plaintiff’s premises.
    “ [While the act grants them (the corporators) the privilege of cleaning out the channel and improving the log navigation of the stream, it invests them with no authority to invade the rights of riparian owners or previous occupants of water privileges thereon. It gives no express power to take and convert private property to public use, nor makes any provision for the assessment of damages for such appropriation, without which the grant would be unconstitutional. Their grant is subordinate to previously existing rights at least until adverse rights were extinguished by purchase or damages paid or secured according to law.] This has not been done.
    “No protection is therefore afforded to the defendants, or those whose will and word put them in motion by the act referred to. It is only when the paramount interests of the public require it, that vested rights of individuals must surrender, even upon payment of an ample compensation.
    , “ Here no compensation has been made, tendered or secured, and no public interests demand the sacrifice. The contest is between private parties, each seeking their own private emolument at the expense or inconvenience of the other.
    “[We therefore say to you, that neither the defendants nor those under or with whom they were acting, acquired any. right, by virtue of the act referred to, to disregard the plaintiff’s rights and flood his mill-wheels to his detriment.]
    “ This disposes of the main question in the case, and answers the defendants’ 3d and 4th points in the negative.” * *
    The court answered the 1st and 2d points in the negative and said:—
    “We think, to submit the question of estoppel to the jury under the evidence before us, even if it were a question for the jury to decide, would be manifest error, on the ground that there is no evidence to support it.

      “ As the question upon which the liability of the defendants to respond to the plaintiff’s cause of action depends, are questions of law arising upon admitted or undisputed facts, and have thus been decided in favor of the plaintiff, it remains for you to determine whether the plaintiff has sustained any damage by the acts of defendants in flooding his wheels, and if so, how much ? and for that to render your verdict.
    “ If you find for the plaintiff, it is not a case for assessing speculative or exemplary damages.
    “ The defendants are supposed to have been acting under a claim of right, and if mistaken, are only liable for the damages actually inflicted by them, or that have resulted from their unlawful act.
    “ This, of course, would include something for the invasion of the plaintiff’s rights, though that may be merely nominal if done under a mistake; also, whatever loss he has sustained by the stoppage of his mills; also, something for the derangement of his business, and the inconvenience of being arbitrarily disturbed in his ordinary and legitimate avocations.
    “ While a mere proportion of what would be the annual rental value of the premises would be an inadequate compensation, so any calculation formed upon the daily capacity of the mills would be exorbitant. * *• *
    “ Nor is a man who is wrongfully deprived of the use of his property, perhaps at inconvenient periods, to be compensated by payment of only what would be an equal proportion of a rental value, for the time thus occupied. A man cannot be thus forced to rent his property on such terms.
    [ “ Adopt some medium standard that shall be just and equitable between man and man, without vindictiveness on the one hand or favoritism on the other, such as your own conscience will approve, and simple justice, under the circumstances, demands.]”
    The verdict was for the plaintiff for $2000.
    The defendants took a writ of error.
    They assigned for error, the answers to their 1st, 2d and 4th points; the parts of the charge enclosed in brackets and the instruction of the court that the plaintiff was entitled to recover.

      J. G. Hall, S. G. Thompson and J. W. Mayward, for plaintiffs in error.
    The plaintiff could have no right against the Commonwealth and consequently not against the company who is the agent of the Commonwealth: McClenachan v. Curwin, 3 Yeates 362. The damages here are consequential, and there is no right to compensation: Monongahela Nav. Co. v. Coons, 6 W. & S. 115; s. c. 6 Barr 382; N. Y. and Erie Railroad v. Young, 9 Casey 180; Susquehanna Canal Co. v. Wright, 9 W. & S. 9; McKinney v. Monongahela Nav. Co., 2 Harris 65; Shrunk v. Schuylkill Nav. Co., 14 S. & R. 71; The Philadelphia and Trenton Railroad, 6 Whart. 45; Rundle v. The Delaware and Raritan Canal Co., 14 How. 89; Commonwealth v. Fisher, 1 Penna. R. 462. As to estoppel they cited Commonwealth v. Moltz, 10 Barr 531; Arnold v. Cornman, 14 Wright 361; Railroad Co. v. McLanahan, 9 P. F. Smith 31; and as to the measure of damages, Little Schuylkill Nav. and Railroad Co. v. Richards, 7 P. F. Smith 144.

      H. Souther, for defendant in error.
    A corporation cannot exercise the power of eminent domain without a strict compliance with all provisions intended to secure compensation: Bell v. Ohio and Penna. Railroad, 1 Grant 105. The “ splash” dam was illegal and therefore its consequences: Dubois v. Glaub, 2 P. F. Smith 238. A corporation is exempt from consequential damages only when they are not part of the compensation required: Pottstown Gas Co. v. Murphy, 3 Wright 257; Chestnut Hill and Spring H. Turnpike Co. v. Rutter, 4 S. & R. 6.
   The opinion of the court was delivered, May 5th 1870, by

Thompson, C. J.

The plaintiff below claimed that what is known as the “ Slabtown Dam” injured his grist and saw mills, situate on the Bennett’s Branch of the Sinnemahoning, by setting the water back on his mill-wheels, and thus retarding their motion. This occurs when splash-floods are resorted to to carry logs and timber down the stream, and at no other times.

The dam is a portion of the works of the “ Bennett’s Branch Improvement Company.” The testimony is abundant and uncontradicted, that the company has had the control of the dam as part of their works since 1864, the year in which it was incorporated, and that the plaintiff knew all about it. It is idle to entertain the thought for a moment, that the plaintiff did not know that the dam was kept up and managed in raising splashes for floating logs by the company. It was within a mile of his mills, and he himself testified that Woodward had the charge of the splashes from 1864 to 18671 Notwithstanding this knowledge he brought suit to recover for the injuries alleged to have been done him, in consequence of the dam of the company, against men acting as agents or servants of the company, and not against the company itself, their superior and principal.

The testimony and the charge of the learned judge, show very clearly, that the defendants below defended on the ground of being the servants of the company. This they could unquestionably do if it was a public corporation, and they mere servants, and if they did nothing outside of the duties of their employment. We need not cite very numerous authorities for this. But see 2 Greenleaf’s Ev. 54; 1 Bl. Com. 429; 12 Mod. 489; 17 Mass. R. 508; Paley on Agency, by Daniels 298; 11 Denio 118; 2 Comst. 129; 7 John. R. 471; Telegraph Co. v. Dryburg, 11 Casey 298; Painter v. The City of Pittsburg, 10 Wright 213; Joyce v. Sims, 2 Dal. 223; Same Case, 1 Yeates 409; Passmore v. Mott, 2 Binn. 201. These authorities, and many more might be added, present the rule on this subject much as it was presented by Sir William Blackstone, who says: “ If a servant, by his negligence, does any damage to a stranger, the master shall answer for his neglect, but the damage must be done while he is actually employed in his master’s service.”

If this be^eo, where there is a wrong done, he can certainly justify doing anything as a servant which his master had a right to do. He cannot be disconnected from his employer and held answerable for want of original authority in himself if his master had it, and he acted by and within the scope of his master’s authority.

The Bennett’s Branch Improvement Company was incorporated by Act of Assembly of 20th April 1864 and the several supplements thereto, and was authorized to clear out, improve and use all and every part of Bennett’s Branch of the Sinnemahoning,between Stephen Bundy’s and its mouth, with the right to use dams then erected by members of the corporation, and to erect new ones in such manner and at such points as they may deem proper, and shall and may use all and each of said dams, and the waters of said stream, for floating logs down the same, and generally shall and may have the right to straighten, deepen, crib, and widen the channel of the stream aforesaid, in such manner as they shall see fit for the purposes aforesaid. Provided, that no injury shall thereby be done to private property outside the limits of the stream aforesaid.

In the opinion just filed in Winslow & Crowell’s Appeal (antea, p. 242), and the several appeals therein mentioned, we held that the incorporation of the Improvement Company, was in its use a public corporation and highway, subject to be used by all persons, on the condition of paying tolls according to the rates therein mentioned and established.

The defendants claimed in their defence, that they were the servants of the corporation, and exempt from liability for the consequences of the company’s acts. It was not shown, or pretended, that they acted wilfully or maliciously, or outside of what the company was authorized to do. The company accepted the act incorporating it on the terms on which it was granted: viz., that it would do no injury to private property outside the stream, the correlative of which would be, that if it did, it would compensate the injury. The idea of holding its employees to a like accountability, would be as novel as it would be unjust, and this the citation of the authorities referred to prove. There was, neither by law nor contract, any privity between the plaintiff and them. If damages could be rendered against such parties, such improvements could never be made, as no one would be willing to take upon himself to assume the acts of the corporation over which he had no control. Nor would he have any recourse to the company to reimburse himself, if damage's were recovered against him. The defendants justified as servants of the company. . But the right to do so was entirely ignored by the learned judge. This appears throughout the charge, but culminates in the portion assigned for error by the counsel for the plaintiff in error, as follows:—

“We therefore say to you, that neither .the defendants nor those under or with whom they were acting, acquired any right, by virtue of the act referred to, to disregard the plaintiff, and flood his mill-wheels to his detriment.”

If any thought lingered in the learned judge’s mind that damages such as these, being entirely consequential, are to be prepaid before the dam could be erected and used, all the authorities in Pennsylvania on the point are against him, a majority of which have been referred to in the paper-book of the plaintiff in error, and will not be repeated. The point is too clear to need it. Consequential damages are never recoverable from á corporation of this nature, excepting when expressly given, and on the terms on which they are allowed. Here, by the act of incorporation, it is not to be doubted that consequential damages may be recovered in the common-law courts and forms of action. Of course, those who suffer must move, for non constat the corporation is apprised of any injury having been done. A common-law procedure in form is the remedy in this case, and in case of non-payment of damages found, the bond of the company approved and filed in the county of Clearfield, stands as an indemnity. The suit is first to be against the company. That is, to ascertain the amount of damages- to be paid, which if not paid, recourse may be had to the bond. I would suppose that no one would think of suing the bond in the first place.

We think the learned judge was clearly wrong in the instruction referred to; it in fact disposed of every question in the case but the amount of the damages. The company had most unlimited authority in the stream itself, on the condition of paying for damage done outside of it.

It was not in default in not having paid them, until demanded ; nor then, if the demand was unreasonable. This being the case, the charge was error, if the company alone had been sued, but it was most unquestionable error, to allow a recovery against the defendants, unless for a wilful trespass, which was not pretended. The action was case, and not trespass for acting without authority in raising the water on the plaintiff, before paying for the right. This was not required. There might have been plausibility in this, although it would want soundness.

It was strenuously argued, that- this branch of the Sinnemahoning having been declared' a public highway before the plaintiff erected his mills,' his right, under the Act of 1803, so to erect, was but a license as between the Commonwealth and him, which, if revoked or destroyed by authority of the ¡state, no damage could be demanded. This is true, on the authority of Young v. The Railroad Co., 9 Casey 180; Canal Co. v. Wright, 9 W. & S. 9, and other cases. But if the Commonwealth require damage done to such property to be paid for by a company, it must be done. That is what it seems to me was done here. The company accepted its charter on the condition of paying for any injury it might do outside the bed or body of the Sinnemahoning creek. The point insisted on does not therefore arise.

There was no error on the part of the learned judge in denying the estoppel as complained of. It mattered not how much the plaintiff might have aided the company in building the dam. It was not on his property, and even if it had been, he could do nothing except by contract, to weaken his right to be compensated by the company for' injuries such as the law required to be compensated. He could give no notice which would avail to affect the company in building the dam. This was authorized by the state. It is not the kind of case to which the doctrine of equitable estoppel applies.

The charge on 'the measure of ;damages was indefinite, but I am not willing to say there was absolute error in it, I incline to think that the damage to be recovered in an action against the company, is not sustainable on the ground of being a nuisance. The company being authorized, in the course of the construction of their works, to do as was done here, raise the water, on paying the damage done, it could not be chargeable as for a nuisance any more than could the state from which it derives its power. The claim, whenever asserted, we think should cover the damage to the property as mills, past and future. In fixing this, it should be done, in our opinion, on the estimate of the value of the property, and then the deterioration it has suffered. This would be the damage done. What portion that would be of the unit of value would be a safe standard, we think.

With this in view the business and demands of the neighborhood would necessarily have something to do. These crude and ill-digested acts of the legislature, must be moulded to suit what was designed by the legislature, or either the public or the company will in the end suffer.

These views -are suggested rather than decided, for consideration of court or counsel in any other trial of this or other cases of the kind on the Sinnemahoning. As we think the doctrine of respondeat superior ought to have protected the defendant below, we will reverse the case, without awarding a venire de novo at present, leaving that to be applied for by counsel on showing cause.

Judgment reversed.


source: Caselaw Access Project

author: Sharswood, J.

license: Public Domain

text:
    Beck et al. versus Parker.
    1. A voluntary assignment for the benefit of creditors does not depend for its validity on any statute.
    2. The acts to regulate such assignments are no part of the insolvent laws.
    3. Such assignments are not contrary to the spirit of the Bankrupt Law.
    4. No acts of an assignor after the assignment can invalidate it or be evidence from which fraud in fact can be inferred.
    5. If a conveyance is not fraudulent when made, it cannot be made fraudulent by any matter ex post facto.

    April 1st 1870.
    Before Thompson, C. J., Agnew, Sharswood and Williams, JJ. Read, J., at Nisi Prius.
    Error to the Court of Common Pleas of Lycoming county: No. 196, to January Term 1870.
    This was a feigned issue under the Sheriff’s Interpleader Act, in which James O. Parker was plaintiff and claimant, and Samuel M. Beck and others, trading as Beck, Brother &' Co., were defendants.
    On the 23d of September 1869, the Becks brought an action of assumpsit and filed a statement of their claim against Harford J. Perkins, on whom the writ was served the same day. On the 11th of October, H. J. Perkins made an assignment for the benefit of bis creditors to James O. Perkins. On the 18th of October, the Becks obtained judgment against H. J. Perkins for $1058.48, and on the same day issued a fi. fa., on which the property assigned was levied on. The assignee claimed the goods and on the application of the sheriff, a feigned issue was directed October 18th.
    On the trial before Gamble, P. J., the plaintiff gave the assignment in evidence and closed.
    The defendants then called J. J. Guthrie, and in five several offers proposed to prove that in pursuance of an agreement made before the assignment, the assignor had, by an assignment made after the assignment for the benefit of creditors, but dated before it, transferred to the witness and other .creditors certain parts of his property in payment of their debts, for the purpose of giving them preferences, and that therefore the assignment was in fraud of his creditors. All the offers were rejected and bills of exceptions sealed.
    The defendants requested the court to charge:—
    1. That the Act of Congress, approved March 2d 1867, and known as the Bankrupt Law, as soon as it went into operation ipso facto suspended all action upon future cases arising under the insolvent laws of this state. That as the assignment in this case was made since the passage of said Act of Congress, and as H. J. Perkins, the assignor, is amenable to the provisions of said act, the assignment so made by him is void, and the verdict must be for the defendants.
    2. That as the assignment of H. J. Perkins to the plaintiff is of all his estate, real, personal and mixed, and as it states that he is unable to pay his debts, the Bankrupt law is directly applicable to to the said Perkins, and to his assets, and the said act renders said assignment absolutely void, and the verdict must be for the defendants.
    The court (Gamble P. J.) refused the points. The verdict was for the plaintiff.
    The defendants took out a writ of error and assigned the rejection of their offers of evidence and the refusal of their points, for error.

      H. C. Parsons and R. P. Allen, for plaintiffs in error.
    As to the points cited Golden v. Prince, 3 Wash. C. C. R. 313; Sturgis v. Crowninshield, 4 Wheat. 122; Ogden v. Saunders, 12 Id. 273; 1 Kent’s Com. 390, 391; Maris v. Duron, 1 Brewster’s R. 429; Eames’ Case, 2 Story’s R. 322; Griswold v. Pratt, 9 Metcalf (Mass.) 163; Parsons on Contracts 445; Story on the Constitution 1107; Bankrupt Act of March 2d 1867.

      W. H. Armstrong and S. Linn, for defendants in error:
    cited Ziegenfuss’s Case, 2 Iredell’s Law Rep. 463; Langley v. Perry, W. S. C. C. Southern District of Ohio, 8 Am. Law Register 427; Sedgwick v. Place, 1 Bankrupt Register 204; Hawkins’ Appeal, 8 Am. Law Register 205; Pellman v. Hart, 1 Barr 263.
   The opinion of the court was delivered, May 5th 1870, by

Sharswood, J.

The important question which has been agitated, whether the enactment of a uniform law on the subject of bankruptcy by the Congress of the United States ipso facto suspends the operation of the insolvent laws of the different states, does not arise in this case. A voluntary assignment, by a debtor in failing circumstances, to a trustee, for the benefit of creditors, does not depend for its validity upon any statute, and the Acts of Assembly which have been passed to regulate it, which require it to be recorded, which compel the assignee to file an inventory and appraisement, and to give security, and which provide for the settlement of his accounts and the distribution of the assets, are no parts of the insolvent laws. The effect of such assignment is not to discharge the assignor from his debts, or to relieve him from liability to imprisonment, except incidentally under the act providing for the abolishment of imprisonment for debt. Where no preference is given — and none can he effectually given under our Act of April 17th 1843, Pamph. L. 273, except for the payment of wages of labor — such assignments secure the equal distribution of all the property of a debtor pro rata among his creditors, and are not contrary to the spirit of the Bankrupt Act. To hold them to be void in a contest with execution-creditors, would be to give preferences, instead of preventing them. The answers of the learned judge below to the defendants’ points were therefore correct.

The remaining assignments of error complain of the rejection of five several offers of evidence by the defendants, all of which, however, depend upon the same principle. It was proposed to prove that in pursuance of an understanding or promise before the assignment, the assignor had, after its date, fraudulently executed and antedated an agreement to deliver to one of his creditors certain articles of property, which had passed under the assignment, and had actually delivered them as a preference or security for his indebtedness. It was not offered to show that the assignee was any party to this fraud, and surely no acts of the assignor, after the assignment, can invalidate it, or afford any evidence from which fraud in fact can be legitimately inferred. When a conveyance is not fraudulent at the time of the making of it, it shall never be said to be fraudulent for any matter ex post facto, Shepp. Touchst. 67. The agreement and delivery proposed to be proved, were clearly of no avail to accomplish the object alleged to have been intended. These offers, therefore, were rightfully rejected.

Judgment affirmed.


text:
    Willard’s Appeal.
    1. The doctrine that the Orphans’ Court is a court of equity, means that in the exercise of its limited jurisdiction, conferred entirely by statute, it applies the rules and principles of equity.
    2. The Orphans’ Court has no authority to make a decree on a hill praying for a declaration of the rights of parties under a will.
    3. Such decree would not be binding on any of the parties.
    4. Consent cannot give jurisdiction.
    April 2d 1870.
    Before Thompson, C. J., Agnew and Sharswood, JJ. Bead, J., at Nisi Prius.
    Appeal from the decree of the Orphans’ Court of Lycoming county: No. 415, to January Term 1870.
    William Waldo Willard died about the 1st of September 1864, having made his will dated August 24th preceding. The will was proved September 27th, and letters c. t. a. granted to E. S. Lowe and Bobert Faries.
    Mr. Willard left to survive him a widow Catharine E. Willard, and two children of a former wife, Anna C. Willard and Lizzie P. Willard. On the 24th of February 1865, Anna C. Willard died intestate unmarried and without issue; and on the 25th a son was born of his widow C. E. Willard, who was named William W. Willard.
    The will was as follows:—
    “ First. I will the interest of three thousand dollars to my beloved mother, Clarissa Willard, of Williamsport, Lycoming county, Pennsylvania, during her natural life, to be paid to her in semi-annual payments of ninety dollars, on the first days of July and January in each year after my decease, and at the death of my mother this bequest to revert to my children and heirs.
    “ Second. As to the residue of my estate, I want one-half secured to the benefit of my beloved present wife, Catharine Emily Willard. And I also will to my beloved wife the whole of the,.house and lot in which we now reside, valuing the same at seven thousand dollars, to be hers during her natural lifetime. All the residue of my estate shall be for the benefit of my two little girls, Anna C. Willard and Lizzie P. Willard, for their use and benefit for them and their heirs for ever.

      “ At the decease of my beloved wife, this bequest of seven thousand dollars to revert to my heirs at law share and share alike, to those heirs who shall be living, or entitled to be represented in said estate.
    “ The bequest of three thousand dollars to be put in the hands of Henry F. Snyder, for which he is to give proper bond and security to be approved of by the Orphans’ Court of Lycoming county.”
    J. W. Maynard was appointed guardian of Lizzie P. Willard, and on the 14th of July 1867 presented a petition setting forth the will of the decedent and the other facts above stated; making other averments and praying the court to decree:
    1. That $8000 be paid to Snyder for the use of Clarissa Willard, and after her decease be paid to Lizzie P. Willard and William W. Willard.
    2. That the executor render an account.
    3. That the executor pay into court one-half the moneys in his hands, less $7000, the valuation of the house and lot, to be invested under the direction of the court for the benefit of the widow, and that a trustee be appointed to invest the same.
    4. That the executor be required to pay to the guardian as' the share of his ward, one-half of the assets, less the $7000.
    5. That Snyder, the trustee under the will, render an account of the assets received and paid by him.
    6. That the widow render an account of all the estate of the decedent which had come to her hands.
    7. That Snyder within 30 days after the death of Clarissa Willard, pay over to Lizzie P. Willard and William W. Willard, the $3000 set apart for her life.
    8. That the title to all the lands of the testator, except the house and lot, is vested in Lizzie P. Willard, subject to the widow’s life estate in the one-half.
    9. That the title to the house and lot valued at $7000 is vested in Lizzie P. Willard and William W. Willard, subject to the. widow’s life estate.
    10. General relief.
    The widow and the guardian of William W. Willard filed an answer to the bill.
    The Orphans’ Court (Gamble, P. J.) decreed as follows:—
    “ 1. The testator has not made such provision for his posthumous child as to evince such to have been his intention. He, therefore, died intestate as to that child. Therefore Waldo W. Willard is entitled to such share of the estate as the intestate laws give to him, and that his guardian shall file in the Orphans’ Court of Lycoming county before distribution of the estate a full release of all claim under the will of his late father, the said W. W. Willard, deceased.
    “ 2. That the interest of $3000 to Clarissa Willard during life, and at her death the principal sum to his children and heirs, is a specific bequest appropriating this sum as designated and not to be affected or diminished, provided the residue of the estate is sufficient to secure Waldo his interest. That the principal, subject to the annuity, vested in Anna C. and Lizzie P. Willard, at the death of the testator; That at the death of Anna C. her moiety passed to her sister and half-brother, Waldo.
    “ 3. The residue of the estate, after deducting Waldo W. Willard’s interest under the intestate laws, and the above-mentioned $3000, is to be divided into two equal parts, valuing the homestead, for that purpose, at $7000. The one part including the homestead, at $7000, goes to Catharine E. Willard. The homestead for life, the balance absolutely. The other part, and also the homestead, the latter subject to the interest of Waldo, and to the life estate of Catharine E. Willard, vested at the death of the testator in Anna C. and Lizzie P. Willard. At the death of Anna C., her interest in the real estate vested in Lizzie P. and her interest in the personal estate in Lizzie P. and Waldo W. Willard.”
    The widow and guardian of W. W. Willard appealed to the Supreme Court, and assigned the decree for error.

      H. C. Parsons and D. & H. Cummin, for appellants.

      B. S. Bently, for appellee.
   The opinion of the court was delivered, May 5th 1870, by

Sharswood, J.

When it is said, as it has often been said, that the Orphans’ Court is a court of equity, all that is meant is that in the exercise of its limited jurisdiction conferred entirely by statute, it applies the rules and principles of equity. So Chief Justice Tilghman, with his well-known accuracy, clearly and succinctly expresses it: The Orphans’ Court, in matters within their jurisdiction, proceed on the same principles as a court of chancery:” Guier v. Kelly, 2 Binn. 299. “ Although the Orphanb’ Court,” said Chief Justice Gibson, in Brinker v. Brinker, 7 Barr 55, “ has been called a court of equity, in respect to the few subjects within its jurisdiction, the ancillary powers of such a court have not been given to it. It is a special tribunal for specific cases; and its resemblance to a court of equity consists in its practice of proceeding by petition and answer containing the substance, but not the technical subtleties and nice distinctions of a bill in equity; by which, however, justice is obtained more conveniently and as certainly as in courts of equity, purely so called. As the Orphans’ Court, therefore, has not the general powers of a court of equity, it cannot entertain a bill of discovery:” George’s Appeal, 2 Jones 260; Shollenberger’s Appeal, 9 Harris 341; Snyder’s Appeal, 12 Casey 168; Woodward’s Appeal, 2 Wright 328.

The petition in the Orphans’ Court in this case was in the form of a bill in equity, conceived as though that court, like the Courts of Common Pleas, had a separate equity side. After setting forth the will of William Waldo Willard, and stating or charging a particular construction of it in six numbered paragraphs — it prefers nine special prayers for relief, besides the prayer for general relief in the usual style. 1. That the administrator cum testamento annexo shall be decreed to pay a legacy not charged upon land: Galloney’s Appeal, 6 Barr 37. 2. That the administrator file his account. 3. That he pay into court one-half of all the moneys of the estate in his hands (less $7000, the valuation money of a house and lot mentioned in the will), to he invested by the court or a trustee appointed by it. 4. That he pay the other half to the orator in the bill. 5. That the guardian of the two minor children file his account. 6. That the widow file an account of all the assets of the estate in her hands at the death of the testator or since received by her from the administrator. 7. That the trustee named in the will to hold the legacy bequeathed to the testator’s mother for life, shall within thirty days after her death pay over the principal of the said legacy to the children in certain proportions, both of them now being minors. 8. That the court shall decree that the title to all lands and tenements, wheresoever situated, of which the testator died seised (except the house and lot aforesaid), is vested in one of the children, subject to the life estate of the widow. 9. That the court shall decree that the title to the house and lot before mentioned is vested in the minor children in certain proportions, subject to said life estate. The only matters in this long list of prayers, which appear clearly to be within the jurisdiction of the Orphans’ Court, are, that the administrator and guardian respectively shall render their accounts. The court below, however, upon this bill and answers filed, decree nothing to be done, except that the guardian of Waldo William Willard, a minor, should file in the Orphans’ Court of Lycoming county before distribution of the estate a full release of all claims under the will of his father; the court holding that the will as to him was revoked by his subsequent birth. The other parts of the decree consist merely of a declaration of the opinion of the court upon the proper construction of the will.

It would, perhaps, be a very convenient practice immediately upon the death of a decedent to have all possible questions which might arise upon the construction of his will, and in the settlement and distribution of his estate, settled by a decree of the Orphans’ Court in limine, and by way of anticipation, and by an appeal to the Supreme Court from such a decree, have a final and conclusive determination of the subject. It would certainly save counsel a great deal of responsibility in giving advice. But the Acts of Assembly which confer jurisdiction on the Orphans’ Court may be searched in vain for any such power. Without authority so derived we must say that the decree below or in this court on appeal would be inconclusive and possibly a snare. It would not be binding upon any of the parties; certainly not upon those of them not sui juris. Consent cannot give jurisdiction. Any opinion which we should express upon the proper construction of this will in this appeal would be merely extrajudicial.

Decree reversed, and petition ordered to be dismissed, each party to pay their own costs in the court below and on this appeal.


author: Asnew, J.

text:
    Kay versus The Pennsylvania Railroad Co.
    1. A railroad company leased a lot for making side tracks from its main road to a canal basin and for unloading and piling lumber. Tbe company had the right to use it as most convenient, for moving its cars.
    2. The company had the right to detach cars and send them on without a brakesman, out of sight and around a curve.
    3. This would be different when by license to others and by sufferance, they permitted the public to enjoy a privilege of passage which would bring them into danger.
    4. Duties grow out of circumstances and what in one case would be a proper use of one’s rights, may by change of circumstances, become negligence.
    5. Culpable negligence is the omission to do that which a reasonable, prudent and honest man would do; or doing that which such a man would not do in the circumstances of the particular case.
    6. If an owner has allowed persons a use of his property, tending to produce a belief that it will not be objected to and therefore to act on the belief, he is held to exercise his rights in this view, so as not to mislead others, without warning them of his intention to recall his permission.
    7. Notice is required to a man who acts bonit fide; not to him who wilfully uses that to which he pretends no title.
    8. Persons who use their property so as to hold forth an invitation to enter, give license to do so, e. g., innkeepers, merchants, &e.
    9. Trespass will become right by sufferance and lapse of time. .
    10. Parol license and expenditure will estop without lapse of time.
    11. The company allowed the neighboring population to use its tracks as a way across their lot. Presumption of a clear track could not arise as in other parts of their road.
    12. Greater precaution was necessary under these circumstances than on other parts of the road.
    13. The agents of the company detached a car and permitted it to run down grade without a brakesman on tracks through the lot. Held, that this was negligence.
    14. Negligence is a mixed question of law and fact and the facts can be found only by the jury.
    15. When the injury to a child incapable of knowing and avoiding danger is caused, by actual negligence, its incapacity shields the child from responsibility.
    16. if there be no negligence, the incapacity of the child creates no liability on the company.
    17. When a child is placed in danger by the positive act of its guardian, this is contributory negligence.
    18. The Act of April 4th 1868 (restricting damages for negligence) is retrospective, and is inoperative on cases occurring before its passage.
    19. The effect of the act as to cases after its passage not decided.
    20. Railroad Co. v. Hummel, 8 Wright 375, Gillis v. Railroad, 9 P. F. Smith 129, examined and distinguished.
    21. Railroad Co. v. Spearin, 11 Wright 304, Smith v. O'Connor, 12 Id. 218, remarked on.
    April 2d 1870.
    Before Thompson, C. J., Agnew and Sharswood, JJ. Bead, J., at Nisi Prius.
    Error to tbe Court of Common Pleas of Lycoming county: No. 345, to January Term 1870.
    This was an action on tbe case by Lizzie Kay, by ber next friend Allen Kay, against The Pennsylvania Railroad Company. The writ was issued October 15th 1866: the cause of action was the negligence of the defendants’ servants, by which one of their cars ran over and crushed the arms of the plantiff, a child of 19 months old, so as to require amputation; the injury occurred on the 3d of July 1864.
    The facts of the case, so far as is necessary for the understanding of the questions decided, are found in the opinion of Mr. Justice Agnew.
    The defendants asked the court to charge:—
    1. That as the plaintiff has shown that there was no public street or crossing at the point where the accident occurred, and as she has also shown that all of the land on which the track is located, and in the vicinity thereof, belonged to the Northern Central Railway Company, and was in the exclusive use and occupancy of the defendant, by an arrangement between the companies, and was used for'the purpose of loading and unloading lumber; the fact that people walked upon the tract or drove teams upon the ground, gave neither to the public, nor to the plaintiff, any rights upon the track, and did not make the land and the track a “public common,” and as the only count in the declaration charges that the accident occurred at a “public common, street or highway,” the plaintiff has failed to make out her case.
    2. That as the parents of the plaintiff resided for three months alongside of the railroad track, it was their duty to see to the safety of the little child, the plaintiff; and as she was but nineteen months old at the time of the accident, and was not at the time in charge of any one, she was upon the track by the culpable violation of their duty by her parents, and the plaintiffs cannot recover.
    3. That the defendant had a right to presume that the track was clear at the time and place where the accident occurred, and to act upon that presumption; and as there was no cause, as shown by the evidence in this case, for apprehension, the failure to place a brakesman as a precautionary measure on the car that produced the accident, was not a duty, and therefore not negligence on the part of the defendant.
    4. That as the use of a railroad track, cutting or embankment is exclusive of the public everywhere except where a way crosses it, and as is shown by the evidence, no public road, street or way crossed the railroad track at or near the place where the injury complained of in this case occurred, the rights of the defendant were exclusive and the plaintiff cannot recover, she being unlawfully on the track.
    To which the court (Gamble, P. J.) answered:—
    “ The foregoing points on the part of the defendant are severally answered in the negative for the present, reserving however, the right to enter judgment for the defendant, non obstante veredicto, if the court should be satisfied after verdict that the plaintiff has no legal right to recover, and that these points or any of them asking such instruction should have been affirmed.”
    The judge also charged, that the damages to be recovered should be limited in pursuance of the Act of Assembly of April 4th 1868, section 2 (Pamph. L. 58, Purd. 1521, pl. 2,) to $3000. The verdict was rendered in the absence of the president judge for $8000.
    Judgment was afterwards entered on the reserved points for the defendants, non obstante veredicto.

    This the defendants assigned for error, on the removal of the case to the Supreme Court.

      W. H. Armstrong and S. Linn, for plaintiffs in error.
    It is admissible in an action against a railroad company to prove negligence in their servants: 1 Redfield on Railways 552 et seq. Negligence is a question for the jury: Pierce on Railroads 282; Huyett v. The Railroad Company, 11 Harris 373; Railroad Company v. Doak, 2 P. F. Smith 379; Shearman and Redfield on Negligence 9, 10 and note 2; P. & R. Railroad Company v. Spearen, 11 Wright 300; Frankford & B. Turnpike v. Phila. & Trenton Railroad, 4 P. F. Smith 350. A child will not suffer from the parents’ neglect: Smith v. O’Connor, 12 Wright 218; Rauch v. Lloyd, 7 Casey 358; Penna. Railroad v. Kelley, Id. 372; Mangam v. Brooklyn Railroad, 36 Barbour 230; Shearman and Redfield on Negligence, § 48-52; Chiles v. Drake, 2 Metc. (Ky.) 149. Under the allowance of a way across their track, the defendants were bound to use reasonable care; and this was for the jury: Barrett v. Midland Railway Co., 1 Foster & Finl. 361; Reg. v. Broke, Id. 514; Bateman v. Bluck, 18 Q. B. 870; Glenn on Highways 135; British Mus. v. Finnis, 5 C. & P. 460. The cause of action arose July 1864; the Act of 1868 could not divest it: Const. U. States, Art. 1, § 10; Const. Penna. Art. 9, § 11, 17; Bedford v. Shilling, 4 S. & R. 401; Dash v. Van Kleck, 7 Johns. 477; Tillman v. Lansing, 4 Id. 45; Kenyon v. Stewart, 8 Wright 192; Gordon v. Inghram, 1 Grant 152; Jackson v. Lamphire, 3 Peters 280; Dartmouth College v. Woodward, 4 Wheaton 518; Green v. Biddle, 8 Id. 1; Bronson v. Kinzie, 1 Howard 311; McCracken v. Hayward, 2 Howard 608; Hedges v. Rennaker, 3 Metc. (Ky.) 258; Thorn v. St. Francisco, 4 Cal. 127; Nelson v. Jefferson, 13 Iowa 181; Smith’s Const. Law, § 366, and cases cited, § 149 et seq.; Sedgwick on Stat. and Const. Law 413.

      H. C. Parsons and H. T. Beardsley, for defendants in error.

      As to the plaintiff being chargeable with the parents’ negligence, Rauch v. Lloyd, 7 Casey 371; Shearman & Redfield on Negl. 51; Balfour v. Baird, 30 Jur. 124; Railroad v. Spearin, 11 Wright 303; Railroad v. Hummel, 8 Id. 377.
   The opinion of the Court was delivered, May 5th 1870, by

Asnew, J.

In giving judgment for the defendants non obstante veredicto, the learned judge took the question of negligence away from the jury. He did this by deciding that the railroad company was in the lawful use of its track, and that the plaintiff was a trespasser. This left out of view two aspects of the case to be found in the evidence — the public use of the ground permitted by the company, andj the manner of the accident. The ground was a large open lot traversed by railroad sidings and a canal basin. It. was leased by the defendants from another railroad company which used it for the purpose of piling and loading lumber; the railroad tracks and canal basin being nearly parallel and in close proximity. The lot lay in Williamsport, adjacent to large saw-mills, where an immense lumbering business is done. In consequence of this business, teams were crossing the lot, and hands engaged in handling the lumber, and the public were permitted to pass to and fro upon it, and along the track where the accident happened a well-worn foot-path was plainly visible.

Children were often to be found there. The siding upon which the plaintiff was injured left the main lumber track and followed the bend of the canal basin, curving considerably at this point. The plaintiff, a child but nineteen months old, lived with her parents in a small shanty on this lot, occupied without objection by the railroad company, and lying between the main track and siding, at about one hundred and forty-two feet from the place of the accident. The injury took place about eight o’clock in the morning of a summer day, and was caused by detaching a lumber car, propelled in advance of the engine, and sending it around the curve in the siding, on a slight down grade, unattended by a brakesman. After running over the child the car was carried by its own momentum about one hundred and seventy feet beyond the place of injury. At the point on the main track where the car was detached from the engine to run through the opened switch out upon the siding, the siding where the child was injured was not visible to the engineer or conductor on the engine, in consequence of the curvature of the track along the canal basin, and of intervening piles of lumber. The parents of the child were poor, and the mother was employed that morning in washing for herself and others. She had gone out over the track to the canal for water, carrying the child on her arm and the bucket in her other hand. Returning she set the child down before a chair with some sugar placed upon it, and engaged again in washing. In three or four minutes she missed the child, which had passed out unobserved. She ran out, called the child, ran around the house and met the conductor carrying the child in his arms. Both of its arms were crushed and had to be amputated. This is a concise statement of the case on part of the plaintiff.

Conceding the right of the railroad company to the exclusive use of its tracks over the lot, as the learned judge held; the true question is whether the circumstances created a different duty. The ownership of the lot gave to the company the right to use it as most convenient and expedient in moving its cars; and no one can gainsay the right to detach and send cars ahead without a brakesman, even out of sight and around a curve. But the case is altered when, by a license to others, they have devoted this ownership to a use involving their interests and their safety; and by sufferance permitted the public to enjoy a privilege of passage which might bring their persons into danger. Duties grow out of circumstances, the authorities tell us, and that which in one case would be an ordinary and proper use of one’s rights may, by a change of circumstances, become negligence and a want of due care: Reeves v. Del. L. and W. Railroad Co., 6 Casey 461; Phila. and Read. Railroad v. Spearin, 11 Wright 305; Smith v. O’Connor, 12 Id. 222; F. and M. Turnpike Co. v. Phila. and Trenton Railroad Co., 4 P. F. Smith 350; Shearman & Redfield on Neg., § 11. Culpable negligence is the omission to do something which a reasonable, prudent and honeát man would do, or the doing of something which such a man would not do under all the circumstances surrounding the. particular case: Shearman & Bedfield on Neg., § 7. In many cases the law gives no better definition of negligence than the want of such care as men of ordinary prudence would use under similar circumstances: Id., § 11. If, therefore, an owner of property has been accustomed to allow to others a permissive use of it, such as tends to produce a confident belief that the use will not he objected to, and therefore to act on the belief accordingly, he must be held to exercise his rights in view of the circumstances so as not to mislead others to their injury, without a proper warning of his intention to recall his permission : Barrett v. Midland Railway Co., 1 Foster & Finlason 361; Bateman v. Bluck, 18 Q. B. 870. Notice, says Rogers, J., is required to a man who acts boná fide, not' to him who wilfully and obstinately persists in using that to which he has no title or pretence of title: Hepburn v. McDowell, 17 S. & R. 384. Persons who use their property, so as to hold forth an invitation to others to enter, give a license to do so, for instance, innkeepers, merchants, &c. Even trespasses will ripen into right by sufferance and lapse of time, as a way used for twenty-one years. And a parol license accompanied with an. expenditure of money will estop without lapse of time: Lefevre v. Lefevre, 4 S. & R. 241; Rerick v. Kern, 14 Id. 267. Toleration is therefore not to be overlooked in testing a man’s right to the use of his property.

In the present case the railroad company, for the benefit of trade resulting to its own profit, built its tracks along the canal basin, and left its lot open for the convenient access of the public in the handling of lumber, and transferring it to the cars upon its tracks. And the lot being thus open to all engaged in that business, it also suffered its tracks to be used by the neighboring population as a way across the lot from one part of the city to another. As a consequence, people passed and repassed upon the tracks, and the company and its servants would be led to expect to find them there at nearly all hours of the day. It is not like those portions of the road used solely for the passage of trains, where the company would have not only a right to demand, but reason to expect a clear track. But the presumption of a clear track at this place could not reasonably arise if the circumstances were such as have been stated, A greater precaution against injury to those thus permitted to use the lot and the tracks of the company became a duty.

This brings us to inquire into the particular conduct which led to the injury of the plaintiff; and whether it was a prudent and proper use of the track to detach and send the unattended car forward in the manner stated ? It seems to us it was negligence. Certainly no prudent, reasonable and honest-minded man could think it unattended with danger to persons liable thus to be found on the track to send a car out of sight around a curve on a down grade, uncontrolled and unattended by any one capable of check-ring it in case of danger. Its only purpose was to save a few hundred feet of travel to the engine by detaching it from the car when in motion, and stopping the engine before it reached the switch, in order to permit it to run forward on the main track to hitch on to other cars. To save this short time and distance a life was perilled and a serious injury inflicted. Whether the conduct of those in charge of the engine and car was negligence or not was therefore a question for the jury and not for the court, for it involved the finding of the facts on which the duty of care depended. It is the province of the court to instruct the jury upon the principles which must guide their conclusions*. But the question of negligence is one of mingled law and fact. The law imposes the duty according to the circumstances, so that negligence, which is the breach of that duty, must necessarily depend on the facts, and they can be found only by the jury: Huyett v. Railroad Co., 11 Harris 373; Railroad Co. v. Spearin, 11 Wright 305; Smith v. O’Connor, 12 Id. 218; Railroad Co. v. Doak, 2 P. F. Smith 381; Shearman & Redfield on Neg., § 11.

But the learned judge in the court below rested his conclusions as to negligence chiefly on the decisions in Phila. & Read. Railroad Co. v. Hummel, 8 Wright 375, and Grillis v. Penna. Railroad Co., 9 P. F. Smith 129. We think he mistook their effect. The Railroad Oo. v. Hummel was not like this case. There the siding on which the injury took place ran over the lands of others, and was not the subject of any permissive use. The railroad company had paid for its right of way, and had a clear right to a free track which they had not yielded up or modified by any act of their own. The train of coal cars was lawfully standing on the track ready to be moved, and the conductor had gone along the cars to examine the couplings and couple those that had been uncoupled, and if any persons were in the way of the cars to drive them off. The plaintiff was a boy seven years old. The only witness who saw him at the time testified ‘ that he saw him having hold of-the cars and running along with them; that the cars had moved about three yards slowly when he saw the boy under the cars, and signalled the conductor who stopped the train, jumped from the locomotive, picked up the boy and carried him to his father’s house. There was no proof of the slightest negligence on part of the company, and the only question was how far the railroad company owed the surrounding population a duty to signal them before the starting of the train. Eight of the lots occupied by dwellers there were cut in two by the track, and the owners had no way to the back parts of the lots except by crossing the track. The neighborhood was thickly settled, and it was contended these .circumstances imposed a duty on the company to take care that no one was injured there, and the negligence alleged was the neglect to whistle. Judge Strong’s opinion opens by saying there is but a single question in the case — whether any evidence was given tending to prove that the hurt of the plaintiff was caused by the negligence or want of ordinary care of the defendants. He then proceeds to show that there was none, and that the blowing of the whistle, or signalling the starting of the cars on the track, was not a duty to the people in the neighborhood. The company’s track there was exclusively for their own use. “Precaution;” he says, “is a duty only so far as there is reason for apprehension;” and this is the very feature in which that is from this,

fe. Nor is Gillis v. Railroad Co. any more applicable. That case was well decided on its circumstances, but its principle does not touch this case. The precise ground on which the decision is rested is that the railroad company had done nothing to invite the public upon the platform that gave way, and therefore no duty lay on them to maintain such a structure as would support the dense crowd, that out of curiosity perilled their persons upon it. The platform was in no sense a public way, but was erected for the accommodation of passengers arriving and departing in the train. Though it was open, and a general permission to pass over, yet the plaintiff had no legal right there, and his presence was in no wise connected with the purposes for which the platform was erected. He was there merely to enjoy himself and gratify his own feelings, and by no act of the company. But Sharswood, J., proceeds to say: “ Had it been the time for the arrival or departure of the train, and he had gone there to welcome a coming or speed a parting guest, it might very well be contended that he was there by authority of defendants, as much as if he was actually a passenger, and it would then matter not how unusual might have been the crowd, the defendants would have been responsible. As to all such persons to whom they stand in such a relation as required care on their part, they were bound to have the structure strong enough'to bear all who could stand upon it. As to all others they were liable only for wanton or intentional injury.” Thus in Gillis v. Railroad Co., it will be seen that the negligence alleged was purely of a negative character, in omitting to keep up a structure sufficient to bear the weight of a crowd unexpectedly and exceptionally gathered upon it, for their own curiosity, and for no purpose connected with the use of the railroad. But in the present case the negligence charged consisted of a positive act of carelessness, in sending a car around a curve out of sight, on a descending grade, at a place where persons might be expected to be, from the permissive use suffered by the company. It was the duty of the court therefore to have submitted the facts to the jury for their determination, whether there was negligence or not.

The next question is upon the responsibility of a child nineteen months old for contributory negligence. That question has been settled in this state by the cases of Rauch v. Lloyd & Hill, 7 Casey 358; Penna. Railroad Co. v. Kelley, Id. 372; Philadelphia and Reading Railroad Co. v. Spearin, 11 Wright 304; and Smith v. O’Connor, 12 Id. 218. In accord with these cases are Lynch v. Nurdin, 1 A. & E. (41 Eng. E. L.) 422; Bridge v. Gardiner, 19 Conn. 507; and Robinson v. Bove, 22 Vermont 213. Where the injury is caused by the actual negligence of the company, the incapacity of a child of this age to know the danger and to avoid it, shields it from responsibility for its acts. If there be no negligence on the part of the company, then the incapacity of the child creates no liability, and its injury is its own misfortune, which it must bear. This doctrine is explained and illustrated in Railroad Co. v. Spearin, supra, and is discussed in Smith v. O’Connor, supra. The doctrine which imputes the negligence of the parent to the child in such a case as this, is repulsive to our natural instincts, and repugnant to the condition of that class of persons who have to maintain life by daily toil. It is not the case where the positive act of a parent or guardian has placed a child in a position of danger, necessarily requiring the care of the adult to be constantly exercised, as where a parent takes a child into the cars, and by his neglect suffers it to be injured by straying off upon the platform. But here a mother toiling for daily bread, and having done the best she could, in the midst of her necessary employment, loses sight of her child for an instant, and it strays upon the track. With no means to provide a servant for her child, why should the necessities of her position in life attach to the child, and cover it with blame ? When injured by positive negligence, why should it be without redress ? A negligent wrong is done; it is incapable of contributing to it — then why should the wrong not be compensated ?

The last question to be noticed is the measure of damages. The jury found a verdict of $8000, on the ground of gross negligence. But the court charged that no more than $3000 could be recovered, by reason of the limit in the Act of 4th April 1868, Pamph. L. 58.

On the next trial the same .question will arise, and we are bound therefore to say that this law is retrospective in its operation on this case, deprives the plaintiff of a vested right,.and is inoperative. By the 11th section of the 9th article of the Constitution every man for an injury done him in his lands, goods, person or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay. This article is declared to be excepted out of the general powers of government, and shall for ever remain inviolate. When this injury happened in 1864, a right to recover full compensation to the extent of the damage suffered vested in the plaintiff. She commenced suit in 1866. Evidently the legislature could not, by a retrospective act in 1868, declare that an injury to the extent of $8000 should be compensated with the sum of $3000. This is a flat denial of a right and a refusal to administer justice. The law of the case at the time when it became complete is an inherent element in it, and if changed or annulled the right is annulled, justice is denied, and the diie course of law violated. So this court said in Menges v. Dentler, 9 Casey 498. The authorities cited by the plaintiff in error run to the same conclusion. As to cases happening after the passage of the law, we express no opinion. For these reasons the judgment is reversed, and a venire facias de novo is awarded.

Sharswood, J., dissented on the authority of Railroad Co. v. Hummel, 8 Wright 375.


text:
    Youngman et al. versus The Elmira and Williamsport Railroad Co.
    1. A railroad company executed a mortgage of all its real property, franchises, &e., under a decree of the Supreme Court the mortgaged property was sold and conveyed by the trustees in the mortgage to Whelen. This was effectual to Whelen at least as an assignment of the mortgage.
    2. From that time Whelen and his assignees stood in the shoes of the mortgagee.
    3. A mortgagee may maintain ejectment for the mortgaged property before condition broken unless there be a stipulation to the contrary.
    4. A railroad with its appertenances necessary to the exercise of its franchises cannot be levied on and sold under a judgment against the corporation.
    5. A company were authorized to hold so much land not above five acres in any one place and improvements necessary for water stations, &c. They purchased land which was not used for the road, and mortgaged all their property and franchises, with the right to maintain possession “ according to the effect and meaning” of the acts of incorporation. The land purchased was not included in the mortgage.
    6. If a mortgagee proceed by scire facias in a court having no jurisdiction, a purchaser having paid his money under such proceedings, would be entitled to be subrogated to the mortgage.
    7. If a mortgage create a trust and provide that a power of sale is to be executed by the trustee on certain contingencies, he may be controlled, &c., by a court of equity at the suit of a cestui que trust, and when that court decides that the contingency has arisen to give it jurisdiction, its decision cannot be impeached collaterally.
    8. Those becoming encumbrancers pendente lite, on a mortgage, are not necessary parties to a bill to foreclose.
    9. Such persons are bound by the decree, for they can claim nothing but what belonged to the person under whom they assert title.
    10. A corporation purchased land ultra vires, mortgaged all its property, franchises, &c., in trust to secure bonds; a judgment was afterwards recovered; all the property, &c., of the corporation was afterwards sold by the trustee under a decree in equity and afterwards the land was sold under the judgment; the purchaser under the judgment took no title.
    11. The legislature after the decree of sale in equity, passed a law to carry the decree into effect. Held, that this cured any defect in the jurisdiction of the court.
    12. No one could object to the decree and sale but the mortgagors and the bondholders.
    13. Bradley v. Chester Talley Railroad, 12 Casey 141, remarked on.
    April 2d 1870.
    Before Thompson, C. J., Agnew and Sharswood, JJ. Read, J., at Nisi Prius.
    Error to the Court of Common Pleas of Lycoming county: of January Term 1870, No. 323.
    This was an action of ejectment brought March 23d 1866, by The Elmira and Williamsport Railroad Company against Allen Kay and George W. Youngman, for about half an acre of land, part of a tract of 14 acres, in the city of Williamsport.
    The Williamsport and Elmira Railroad Company was incorporated by the Act of June 9th 1832, and by the 6th section of a supplement of March 20th 1888 were “ authorized to hold such an amount of land, not exceeding five acres in any one place, and improvements at the termination and along the line of the road, as may be necessary for water stations and accommodation of passengers, and for depositing and shipping commodities conveyed or designed to be conveyed on the railroad, and necessary and convenient land and buildings for workmen, shops and other purposes connected with the general objects of the said company.”
    On the 18th of May 1853, The Williamsport and Elmira Railroad Company, under authority of law, for the purpose of securing certain bonds, executed to Charles W. Rockwell, trustee, a mortgage of the whole of said railroad, constructed or to be constructed, together with the railways, rails, bridges, fences, privileges, rights and all real property of every description belonging to said company, and which shall hereafter be acquired and owned by .them, and all the tolls, incomes, issues and profits (whenever said parties of the first part shall be in default) to be derived and to arise from the same, and all the lands used and occupied for railways, depots or stations, with all buildings standing thereon, or which shall hereafter be procured therefor, together with all the franchises and corporate privileges to the said company belonging, including all the tolls,” &c. * * * “Subject to the possession, control and management of the directors of said company, as long as said company shall well and truly perform all and singular the stipulations of the bonds aforesaid,” &c. The mortgage further provided, that if the company should be in default for sixty days in payment of the ¡interest, the trustee might take possession of the mortgaged property or might at the request of the holders of at least one-half the bonds, cause the same to be sold. On the 31st of May 1854, the same company, for the purpose of securing other bonds, executed to Charles S. Boker, trustee, a second mortgage (subject to the mortgage of 1853) of the same property and with the same stipulations in case of default, as to taking possession and sale. Boker having died, William I). Lewis was substituted as trustee in his place.
    On the 2d of August 1856, William W. Willard conveyed the 14 acres above mentioned to the same company.
    On the 31st of March 1857, the same company for the purpose of securing other bonds to the amount of $500,000, executed to William C. Longstreth and John W. Mayward in trust, another mortgage of “ the whole of the railroad, of them the said party of the first part, constructed and to be constructed, and the corporate privileges- and franchises thereunto belonging, and all and singular the railways, rails, bridges, masonry and other superstructures, wharves and depots, stations, buildings and improvements whatsoever, and real estate, and all the tolls, income, issues and profits to accrue from the same or any part thereof belonging to the said company, save only so much as may be necessary for expenses and repairs, as is hereinafter expressed, and also all the rents, reservations and payments which now are or hereafter may be reserved and made payable to them upon the sale, lease or conveyance of any part of the estate, rights or privileges hereinbefore described, and generally all the lands, tenements, and hereditaments and real estate of said party of the first part whatsoever and wheresoever, and also all the ways, streets; alleys, passages, waters, watercourses, easements, franchises, rights, liberties, privileges and appertenances whatsoever, unto the hereby granted premises belonging, &c., * * * subject, nevertheless, until default shall have occurred as hereinafter mentioned, to permit and suffer the said party of the first part hereto, and their successors and assigns, and their president, managers, officers and agents, to retain the free, absolute and uncontrolled use, possession and management of the estate hereby granted and hereinbefore mentioned, described, and intended to be now or hereafter conveyed and mortgaged, and to use, occupy, manage and control the same, as though this indenture had not been made, according to the effect and meaning of the several acts and supplements of any acts of the legislature incorporating or concerning the said party of the first part.”
    “ And whenever, according to the provisions hereof, it shall become the duty of the trustees to enter upon and take possession of the premises herein described and conveyed, then immediately either to issue process upon this indenture of mortgage, and sell the property hereby mortgaged and conveyed, by due course of law, or to enter upon and take possession thereof, or with or without entering upon and taking possession, to sell and dispose of the same in whole or in part, in such way by public auction, after having given at least three months’ public notice, &c., for any price or prices, on any terms, with any conditions, &c., as in the sole and absolute discretion of the trustees shall appear best for the interest of the holders of the said bonds, &c., and to make, execute and deliver unto the purchaser or purchasers thereof, good and sufficient indentures or conveyances, vesting in them a full and absolute title in fee simple, or for any other less estate in the premises thereby conveyed freed and discharged from all trusts whatever, &c., and without any obligation on the said purchaser or purchasers, to see to or to be responsible for the application of the purchase-money, or for the propriety or expediency of the exercise of any power herein contained; in relation to which the execution of .indentures or conveyances by the trustees or trustee for the time being, shall be taken and considered in all cases, and before all tribunals, to be conclusive upon the parties hereto, as well as upon the holders of the bonds issued as aforesaid,” &c. * * * "With the further stipulations that “ the company would on the demand of the trustees convey to them, &c., all real estate which the said company shall hereafter in any way acquire or become seised of, or which may be held by third persons for their use, and subject to their conveyance or control, and shall and will also execute all and every such further deeds, conveyances and assurances in the law for the better assuring,” &c., the premises * * * “for the better effectuating and carrying out the provisions, objects and purposes of this mortgage, and securing the payment of the principal and interest of the bonds, to be issued as aforesaid* * * to be held by the trustees on the same trusts, &c.; that the company would keep the property in repair and punctually pay the interest on the bonds.
    That upon default in payment of interest or principal for thirty days, the trustees, on the request of persons representing at least $50,000 of the bonds, may issue a scire facias immediately, obtain judgment, and sell the property, or in their discretion dispose of the property as before provided. None of the mortgages mentioned the 14 acre tract specifically. On the same day (March 31st 1857), the company executed to Longstreth and Maynard as trustees a mortgage of all their loco motive engines, cars and other movable stock described in a schedule attached to the mortgage, to secure $500,000 of bonds mentioned in the mortgage. This mortgage was called the “chattel mortgage.”
    On the 17th of September 1859, Clarence H. Clark, a holder of bonds of the Williamsport and Elmira Railroad Company, secured by all the above-mentioned mortgages, as well for himself as others holding similar bonds, filed a bill in the Supreme Court against the Williamsport and Elmira Railroad Company, Charles M. Rockwell, trustee, William E. Lewis, trustee, William D. Longstreth and John W. Maynard, trustees, and Thomas Kimber and William E. Lewis.
    The bill set out amongst other things, the ownership by the company of property both in Pennsylvania and New York, the execution of the several mortgages above mentioned, that all the bonds secured by them were outstanding, and that a large amount of interest was due on the bonds; that the company was heavily indebted for materials, labor and for floating liabilities to the amount of $350,000, which were secured by negotiable paper guaranteed by the president and directors of the company; that Kirnber and Lewis and other directors had individually and without consideration become liable for large sums of money procured for the company and lent to the company; that Kirnber and Lewis, &c., claimed that in equity they should be refunded from the earnings of the company; that the holders of the floating debt and coupons had brought suit on their claims, and that the property of the company would be sold under judgments on these claims, and the security of the bondholders would be lessened; that the rights of the parties had not been settled, and will require for their adjustment the equitable interference of the court; that the circumstances will involve separate and independent litigation to the injury of the trust property; that the company is insolvent, and the property is in such condition that the rights of the parties should be defined before a sale of it; that the property in both states should be sold entire; and that there was danger that the persons employed on the road would leave the road and prevent its use, &c.
    The prayers were that the rights of all the parties might be defined and declared ; that the mortgaged premises might be sold as the court should direct; that a receiver be appointed. After filing the bill, Townsend Whelen was appointed trustee in the place of Judge Maynard. Rockwell and Whelen, trustees, filed an answer, declaring their belief that it would be for the benefit of all in interest that the property in Pennsylvania and New York should be sold entire, and prayed that no decree might be made which would prevent them from making sale of the mortgaged premises, but that the court would make an order authorizing a sale by them. Answers were filed by the other defendants.
    On the 29th of February 1860 the Supreme Court decreed that by reason of default in the company, the bonds secured by 1st and 2d mortgages had become due; that those mortgages were respectively the first and second liens on all the railroad constructed at their date, and which had afterwards been constructed on all railways, &c., privileges, &c., and all real property then belonging to the company or afterwards acquired; and declared the amount due on each of the mortgages. It was further decreed that the third mortgage was the third lien on the premises before described, and that all the property mentioned in the second and third mortgages is included in that mortgage, and that the property described in the chattel-mortgage is not included in either of the other three mortgages. The court further decreed that the trustees of the three mortgages sell at public sale, at the Philadelphia Exchange, on day of 1860, all the property and franchises mentioned in those mortgages, and all the said property should be put up and sold as one property, &c.
    The court further decreed that the proceeds of sale should be applied, first, to the payment of the bonds, &c., secured by the first mortgage; then, if there were any excess, to the payment of the bonds, &c., secured by the second mortgage, and any balance remaining to be applied to the bonds, &c., secured by the third mortgage.
    In the advertisements the 14-acre tract was described and designated as No. 1.
    On the 12th of March 1860, a law was passed reciting the foregoing proceedings, and that “ all parties interested in the said company as stockholders and bondholders, or a large majority of them, have agreed upon an amicable settlement of their differences, and require the authority of law to carry the same into effectand enacting that in case the property, franchises, &c., ofcthe company should he exposed to sale under the proceedings, the agent of the holders of more than, one-half of the bonds might purchase the whole property, and if the agent should purchase he should, on confirmation of the sale, &c., have all the rights, franchises and appertenances of the company, for the use of the first mortgage bondholders who should by writing authorize him to act for them; that if William D..Lewis and others named, should within thirty days after the delivery of the deed, if that should be after the passage of the act, agree to accept its provisions, they should be a corporation under the name of “ The Elmira and Williamsport Railroad Company,” and on the formation of the corporation, the said agent should convey to it all the property and franchises purchased by him for the price of $1,000,000, and the corporation should be vested with all the rights, franchises, &c., of The Williamsport and Elmira Railroad Company.
    On the 20th of April 1860, the trustees jointly returned that they had, on the 18th of April, sold all the mortgaged property which included specifically the 14 acre tract, to Edward S. Whelen, for $100,000, and prayed that the sale might be confirmed.
    The court thereupon made th^e following order: “ April 21st 1860, the within petition was presented and thereupon it is ordered that the sale within reported, be confirmed and a deed is ordered to be made.”
    On the 11th of May 1860, E.- S. Whelen conveyed to the Elmira and Williamsport Railroad Company, the plaintiffs. On the trial, before Cambie, P. J., January 13th 1870, the plaintiffs gave in evidence the foregoing facts and closed.
    The defendants gave in evidence a judgment for $1014.03, recovered October 22d 1859, in the District Court of Philadelphia, by John Jones, against The Williamsport and Elmira Railroad Company. Testatum fi. fa. to Lycoming county, entered there, January 11th 1860. Vend. ex. July 25th 1864, returned September 2, “Land sold to Ceorge W. Youngman for $510.” Sheriff’s deed acknowledged December 2d 1864. They then called A. T. Nichols, who testified: that for 14 years, the 14 acres had been used by everybody for any purpose; the Kay lot had no connection with the railroad; which did not run near it; it had not been used by the company; witness rented from the railroad company for the purpose of piling lumber for his planing mill.
    The defendants requested the court to charge:—
    1. That the land in dispute having been purchased by the Williamsport and Elmira Railroad Company, on the 3d day of August, A. D. 1856, some years after the execution and recording of the mortgages dated respectively January 1st 1853 and May 31st 1854, it is not affected or encumbered by the said mortgages, or by either, and could not be legally sold under any proceeding in law or equity on either of the said mortgages.
    2. That George W. Youngman, the purchaser at the sheriff’s sale, was not bound to look for liens created by the railroad company further back than the date of the deed from W. W. Willard, to wit, August 2d 1856.
    3. That.the Supreme Court had no jurisdiction to order the sale of the land purchased of W. W. Willard, there being no allegation in the bill or any. part of the proceedings or the decree that any of the bonds secured by the mortgage, dated 31st March 1857, or any interest in the same, were due and payable, either at the time of filing the bill or making the decree.
    4. That on the 29th day of February 1860, the Supreme Court had no jurisdiction to decree a sale of any of the property mortgaged by the mortgage of 31st March 1857, on the bill of a bondholder on account of a default of the payment of any interest that might become due or payable, and that the proceedings provided for in the mortgage in case of default in payment of the interest could only then be pursued.
    5. That the decree of the Supreme Court directing the sale of the property of the Williamsport and Elmira Railroad Company, was a decree made by consent of the parties to the proceedings, and is not binding upon the defendants in this action.
    6. That on all the evidence in this case, the verdict of the jury should be in favor of the defendants.
    Without answering the points specifically, the court directed the jury to render a verdict for the plaintiffs, which was done accordingly.
    The defendants took a writ of error and assigned for error the instruction of the court, and not answering their points.
    G. W. Youngman and J. W. Comly, for plaintiffs in error.
    The lot was not used or necessary for the railroad, and the company was authorized to hold only 5 acres: Shamokin R. R. v. Livermore, 11 Wright 465. The company did not own the land at the date of the mortgages of 1853 and 1854, and therefore could not mortgage it: 4 Kent’s Com. 154. A mortgage of after-acquired property can have no validity against third persons having liens on the property: Coe v. Columbus & Cin. R. R., 10 Ohio St. R. 391; 1 Hilliard on Mortgages 7. The Supreme Court had no jurisdiction to decree the sale: Bradly v. Chester V. R. R., 12 Casey 141. The application should have been to the court that had jurisdiction of the accounts of the trustees: Ashhurst v. Montour Iron Co, 11 Casey 30. The mortgage at best was in the nature of one to secure advances and its lien attached only when the bonds passed to a bond, fide holder: McClure v. Roman, 2 P. F. Smith 458; Bank’s Appeal, 12 Casey 170; Terhoven v. Kerns, 2 Barr 96.

      H. C. Parsons and Armstrong & Linn, for defendants in error.
    A purchase of land in excess of its charter can be avoided only by the Commonwealth: Leazure v. Hillegas, 7 S. & R. 313; Goundie v. Northampton Water Company, 7 Barr 233. A railroad company may mortgage after-acquired property: Peirce on Railroad Law 530. The legislative recognition of the decree validated it: Menges v. Dentler, 9 Casey 499. The decree cannot be examined collaterally: Thomas v. Harris, 7 Wright 231.
   The opinion of the court was delivered, May 5th 1870, by

Sharswood, J.

Several points have been made and questions discussed in the able and elaborate argument of the learned counsel for the plaintiffs in error, which, in the view we take of the case, it is unnecessary here to consider. The title of the premises, it is agreed, was in Willard prior to August 2d 1856. On that day he conveyed to the Williamsport and Elmira Railroad Company. On the 31st of March 1857, this company executed a mortgage to trustees to secure certain bonds to be issued.

On the 28th April 1860, these trustees united with the trustees under two prior mortgages, in a conveyance to Edward S. Whelen, who by deed dated May 11th 1860, conveyed to the Elmira and Williamsport Railroad Company, the plaintiff below.

The defendant’s title was grounded on a judgment recovered by John Jones against the Williamsport and Elmira Railroad Company, in the District Court for the city and county of Philadelphia, a testatum fieri facias issued thereon, and entered on the docket of Lycoming county January 16th 1860.

The lien, therefore, upon which his title vested, and to which it must relate, was subsequent to the date of the mortgage of 1857.

Whether the sale made by the trustees under the mortgage was pursuant to the powers contained in that instrument, so as to bar and extinguish the equity of redemption of the mortgagor, is a question which does not arise on this record. The conveyance to Whelen was at least effectual as an assignment of the mortgage, and he and his assigns from that time stood in the shoes of the original mortgagees: 1 Washburne on Real Property 519. That a mortgagee or his assignee may maintain ejectment and recover possession of the mortgaged property before the condition is broken, unless there is a stipulation in the instrument to the contrary, is too well settled in this state to be any longer a subject of question: Lessee of Simpson v. Ammon, 1 Binn. 175; Smith v. Shuler, 12 S. & R. 240; Knaub v. Esseck, 2 Watts 282; Martin v. Jackson, 3 Casey 504. The provision made in the mortgage of 1857, oh the subject of possession, plainly excludes the premises claimed' in this ejectment. The language is, “subject nevertheless until default shall have occurred as hereinafter mentioned to the possession and use of the said party of the first part, their successors and assigns, and their president, managers, officers and agents, on the road of the said company, or on any other road, subject to this mortgage, according to the effect and meaning of the several acts and supplementary acts of the legislature, incorporating or concerning the said party of the first part.” Now the contention of the plaintiffs in error must be and has been that the premises in dispute form no part of the road, else their title by the sheriff’s sale under the testatum fails altogether. The road with all its appertenances being necessary to the exercise of the franchises granted by the sale, could not be levied on and sold under an execution on a judgment against the corporation: Ammant v. The New Alexandria and Pittsburg Turnpike Road, 13 S. & R. 210; The Susquehanna Canal Co. v. Bonham, 9 W. & S. 29; Shamokin Valley Railroad Co. v. Livermore, 11 Wright 465. The lot in question then being no part of the road is left unaffected by this provision, and the right of the mortgagee to enforce his legal title by an ejectment remains as at common law. The plaintiffs in error having succeeded to the rights of the mortgagors, could doubtless have set up any equity in them to defeat the recovery. They could have shown that no bonds had been issued for the security of which the mortgage had been given, or that if issued they had been fully paid and satisfied; but then the onus was upon them to make this out, otherwise the primfi facie legal title of the assignees of the mortgage must succeed.1 Nothing of the sort was attempted or pretended.

But it is contended that the mortgage of 1857 was extinguished by the decree of this court in equity, January Term 1860, No. 6, and the sale made under it, though at the same time it is most strenuously maintained that the court had no jurisdiction of that cash, and that the decree being coram non judioe was therefore a nullity. The plaintiffs in error are on the horns of a dilemma. If the court had jurisdiction, then the decree, however erroneous in law or in fact, was conclusive, and a valid title passed in pursuance of the sale made by the trustees under it; if the court had no jurisdiction, then its decree was a nullity, and the rights and titles of the parties remain as though it liad never been made. If a mortgagee were to proceed by scire facias in a court having no jurisdiction, the purchaser under such proceedings having in good faith paid his money, would be entitled in equity to be subrogated to the mortgage. It clearly would not be extinguished by a void proceeding. We have no question in this case of equitable subrogation; for there is a legal conveyance of the land, which in law is an assignment of the mortgage, duly executed by the mortgagees themselves.

Here the cause might well be rested. This view concedes that the court had no jurisdiction of the bill in equity so as to decree a sale which would extinguish the mortgage of 1857 and the equity of redemption of the mortgagors. It is by no means clear, however, that this is so under the principles of the case of Bradley v. The Chester Valley Railroad Co., 12 Casey 141. It is there admitted, that if the mortgage create a trust and provide that the power of sale is to be executed by the trustee in certain contingencies, he may be controlled, restrained and directed by a court of equity at the suit of a party standing in the relation of a cestui que trust. Now it was for the court to decide whether the contingency had happened which gave them jurisdiction, and that decision could not be impeached collaterally, either by the parties, or those who, not being necessary parties, were bound by the decree. In this category was John Jones, the judgment creditor. He had no encumbrance on the property until after the commencement of the proceedings in this court. It is perfectly well settled, that encumbrancers who become such pendente lite, are not necessary parties to a bill to foreclose, although they are bound by the decree, for they can claim nothing except what belonged to the person under whom they assert title, since they have constructive notice; and there would be no end of such suits, if a mortgagor might by new encumbrances, created pendente lite, require all such encumbrancers to be made parties: Story’s Eq. Pleadings, § 194; 1 Washburne on Real Property 593; Bishop of Winchester v. Paine, 11 Vesey 194, 197; Garth v. Ward, 2 Atk. 174; Adams v. Paynter, 1 Coll. 532. The vendee of the sheriff by deed acknowledged December 2d 1864, long subsequent to the decree, was of course bound by it if the judgment creditor was. But even if this were not so, the Act of Assembly of March 12th 1860, Pamph. L. 682, cures the defect. It would surely have been competent for the legislature to have authorized a sale by the trustees, even if the contingencies had not occurred. Nobody would have had any right to object but mortgagors and the cestuis que trust, the bondholders. They were parties consenting, as the act recites; at least we hear of none who dissented. They raised no voice against the sale. The legislature then ratified the jurisdiction of the court, authorized the attorney of the first mortgage bonds to become the purchaser at the sale, and to convey the title so acquired to the new company incorporated by the act under the name of the Elmira and Williamsport Railroad Company, the plaintiffs below in this ejectment. We think, therefore, that the instruction of the learned judge below to the jury to render a verdict for the plaintiffs was right. Judgment affirmed.