author: Mr. Justice Gordon

text:
    Demuth versus Amweg.
    1. In an action for damages for the obstruction of an alley, it is competent for the defendant to prove, by way of mitigation of damages, that it was not the plaintiff’s only means of access to the rear of his property.
    2. Twenty-one years adverse user of an easement gives rise to the presumption of a grant; that there was a gate maintained across an alley is of no consequence, if the plaintiff and those under whom he claimed, used it whenever he chose to do so.
    3. That the defendant or some one of his predecessors in title, gave notice, at a sheriff’s sale of the property, that he claimed the exclusive right and ownership of the alley in question, could not affect the plaintiff, if he were not present when such notice was given. Assertion of title is not enough ; it must, to be effective, be accompanied with some act which, at least for the time being, would prevent the use of the easement.
    4. If the use of the way by the plaintiff was merely a permissive use, and the jury, from the evidence as it appears in the case, might so have found, then he could not claim the easement as of right, for, in that event, no presumption of grant could arise from the more lapse of time. In order to establish such right, the user must he adverse, not permissive.
    May 6th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Woodward, Trunkey and Sterrett, JJ.
    Error to the Court of Common Pleas of Lancaster county:. Of May Term 1879, No; 8,6.
    Case by John M. Amweg against Samuel J. Demuth to recover damages for the obstruction of an alley.
    In 1773, Nicholas Reidenour was the owner of a property on the southwest'corner of Duke and East King streets, in the city of Lancaster, containing in front on said King street 32 feet 2J inches, and extending in depth along said Duke street 126 feet, to land, then of Jacob Clatz, now of plaintiff. The property adjoining this on the west, of equal depth and front, and belonging now to defendant, was then owned by Stephen Martin. In 1773, Reidenour and Martin, the latter being a hotel keeper, executed an agreement, with reciprocal covenants, to appropriate and to keep open as an alley, nine feet of ground at the south end of their lespective lots, for the use of themselves, their heirs and assigns, owners and occupiers of the said properties. The property now of plaintiff adjoined, on the south, the properties of Reidenour and.Martin, and was then owned, the front half on Duke street, by Jacob Clatz, and the rear half by Reidenour. In 1774, the two portions became united in one owner, and subsequently passed, by successive mesne conveyances,’ to the plaintiff, while the Stephen Martin property, including the fee of the alley in question, passed in like manner to the defendant. The plaintiff claims a right of way over the-alley, first, under the agreement of 1773, and secondly, by prescription.
    At the trial, before Livingston, P. J., the defendant made the following offers of evidence, which the court overruled. 1. To ask plaintiff on cross-examination: Have you not other alleys leading from Duke street to your back building, as convenient for purposes of egress and ingress as the alley in question ?
    2. To ask plaintiff on cross-examination': In estimating the damages, do you take into consideration the fact that you have another alley, communicating with Duke street on the south of your house, which’leads directly to your kitchen?
    3. On cross-examination, to prove by witness, in mitigation of damages, that plaintiff has another alley on the south side of his house, which affords every facility for ingress and egress that is afforded by the alley in question.
    In overruling this offer, the court said: “ There being no offer to show that defendant furnished any other alley of equal capacity or width, or any other facilities, in place of the alley in question, the offer is disallowed.”
    4. To prove by witness that when he first knew this property, fifty-four years ago, the land in the rear, constituting the west half of the property now owned and occupied by plaintiff, communicated with Duke street by an alley on the south side of the house, and that the land south of that, to a fourteen-feet alley, had not then been built upon.
    5. To prove, in mitigation of damages, .that there is now, and has been for many years (twenty years), an alley on the south side of the premises now owned by plaintiff, communicating from Duke street to the rear of his premises, as convenient as a means of ingress and egress as the alley in question, and that the said alley belongs in common to plaintiff and the adjoining property immediately on the south.
    The rejection of the foregoing offers, constituted respectively the first, second, third, fourth and fifth assignments of error.
    The following were among the points submitted by defendant, to which are appended the answers of the court,
    3. That if the jury believe that there was no adverse use of the alley by the plaintiff, or those under whom he holds, up to 1842, and in that year the owner of the plaintiff’s property was denied the right to put a door in his backbuilding, leading to the alley, by the owners thereof; and that in 1848 and 1849, the owners of the alley gave public notice at a sheriff’s sale, as well as at a subsequent public sale of plaintiff is property, that the ownership and exclusive right to the use of said alley was in them; and that no notice to the contrary was given at either sale of the owners of plaintiff’s property or their representatives, or no claim of right asserted by them, the right of way was lost to the plaintiff, and the verdict must be for defendant, unless the jury find that a right of way has since been acquired under the Statute of Limitations.
    Ans. “ This point, we cannot, under the facts in the case, affirm. Benedict, Buckius and Trissler at least say there was a door there in 1842, when Hamersly resided there, and that the alley was then used by the owner of the building as a passage-way for the workmen while putting in the door, and by Mr. Tri'ssler, from that time down to Mr. Amweg’s time, in serving those residing there with meat. The putting in of the door, opening out into this alley, would be an assertion of a right to use the alley, which, if followed up by actual, notorious and continuous user, on the part of the different owners of plaintiff’s property for twenty-one years, without interruption, would be sufficient to establish in plaintiff a right of way by user, which would not be affected by the mere fact of a notice having been read at the sheriff’s sale and public sale of plaintiff’s property by the bank, neither of said sales having been held on the premises, but at a hotel some distance therefrom, there being no proof that the owner of'the property was present at either sale when the notice (which implies at least that some claim was made to the use of this alley), was read, without some further act on the part of those giving notice prohibiting its use.”
    5. That the plaintiff, to sustain his claim to a right of way under the Statute of Limitations, must prove that he or those under whom he holds, enjoyed an uninterrupted adverse use of the alley, under the claim of right, for twenty-one years prior to February 1876, when the obstruction was erected.
    Ans. “ This we affirm, saying, however, that it will not be necessary, in order to establish a right, for the jury to find that there was a user of the alley twenty-one years, during which time there were no gates at the Duke street entrance. It will be sufficient if there was an occupancy and use of the alley as it existed for twenty-one years.”
    6. That if the jury believe, from the evidence, that the use of the alley by the plaintiff, or those under whom he holds, was only, at such times as the owners thereof had it open for their own use, without the exercise or assertion of any right to use it at other times, or to oppose, in any way, the right of the owners to the exclusive control of it, and that said limited use was by the leave, favor and courtesy, or by the permission and at the will of the owner, the verdict must be for the defendant.
    Ans. “ The original grant establishing and creating this alley having stipulated that gates should be upon it, if the plaintiff, and those under whom he claims, have used and enjoyed the use of the alley as it existed, with the gates upon it, continuously, uninterruptedly and adversely, whenever they chose so to ’ do, without asking leave, for twenty-one years, with the acquiescence or knowledge of the owners, the plaintiff would be entitled to its use by the title of user.”
    The answers to these points constituted respectively the sixth, eighth and ninth assignments of error. The seventh assignment was the following portion of the charge:

      “ Some stress seems to be laid on, and some consequence attached to, the fact that there was at times a gate placed across the alley. It does not seem to us that that makes much, if any, difference in the investigation of this case. You will remember that at the time the alley was created, it was expressly stipulated that there should be a gate or gates across it, and plaintiff could only acquire a right to use it as it existed. He would have no right to complain.”
    Yerdict for plaintiff. After judgment thereon, defendant took this writ, alleging that the court erred as set forth in the above assignments of error.

      M. Brosius and S. H Price, for plaintiff in error.
    To say, of the fact that a door was put into the house opening into this alley, that it was the assertion of a right to use the alley, without respect to the circumstances under which it was put there, is giving the fact a potency which does not belong to it.
    The notice at the public sale, if it convéyed any implication, it was that defendant desired the purchaser at such sale to know that he was purchasing no right to use the alley; — nothing further; and to throw it into the jury-box, as evidence that a claim had been made by the plaintiff of a right to the alley, was to wrong the ■defendant.
    The vital question in the case was, whether the use was really adverse; whether there was not sufficient evidence to account for it ■otherwise than under a claim of right; whether the exclusive control, which the defendant at times exercised over the alley, did not break the continuity of plaintiff’s use, and so interrupt it as to prerent him acquiring a right by prescription; whether the use was ■not wholly permissive at the will and by the courtesy of the defendant, without any pretence of an adverse claim. Adverse use is ■essentially aggressive: Stephens v. Leach, 7 Harris 262; Susquehanna Coal Co. v. Quick, 11 P. F. Smith 328. Permissive trespass, ¡however long continued, never raises the presumption of a grant: County of Susquehanna v. Deans, 9 Casey 131; Esling v. Williams, 10 Barr 126.

      H. O. Brubaher and 8. H. B,eynolds, for defendant in error.—
    A gate may be so placed as to be a practical and unreasonable ■obstruction to the free use of a passage-way, and it may be so constructed and placed as not to amount to any practical obstruction to its use: Connery v. Brooke, 23 P. F. Smith 84.
    We submit, in the face of the facts, it was incumbent upon the defendant below to show clearly that the use was by leave, favor ■and courtesy. An attempt was simply made to prove that our use was obstructed and interrupted at times, but the jury, in passing upon the weight and credibility of the testimony, thought differently.

      June 2d 1879.
   Mr. Justice Gordon

delivered the opinion of the court,

The first, second, third and fourth assignments of error cannot be sustained, for the reason that the offers covered by the first and fourth are irrelevant, and those covered by the second and third were attempts to introduce evidence, proper enough in chief, by cross-examination.

The exception contained in the fifth assignment was well taken and must be sustained. The defendant had the right to show, by way of mitigation of damages, that the alley in question was not the plaintiff’s only means of access to the back part of his property. The damages resulting from the obstruction of a way, by which, alone, he could reach the public street, must be very different from those resulting from the obstruction of a way of mere convenience. For the purpose proposed, therefore, the evidence should have been admitted.

The answers to the defendant’s third and fifth points, and also to that part of the charge of the court to which exception has been taken, are approved. That there was a gate maintained across the alley was of no consequence if the plaintiff, and those under Avhom he claimed, used it Avhenever they chose so to do. Twenty-one years adverse user of an easement gives rise to the presumption of a grant, but surely the. grant of a private way may exist as well Avith as Avithout a gate. The design of a gate is to protect the way from trespass — from the intrusion of those Avho have no right, but it is not an obstruction, but rather a convenience to those Avho have a right. As Mr. Justice Williams pertinently says, in Connery v. Brooke, 23 P. F. Smith 80, “Has not the owner of a passage-way its free use if he hangs a gate across it at its intersection With the street ? If I grant the free use, right and privilege of the hall of my house, with free ingress and egress at all times, must I take off the door leading to it, or keep it wide open in order that the grantor may have the free use of it ? Or can he not have the free use of it if he can enter it by opening the door Avhenever he chooses ?”

So, that the defendant, or some one of his predecessors in title, gave notice, at a sheriff’s sale of the property, that he claimed the exclusive right and ownership of the alley in question, could not affect the plaintiff if he Avere not present Avhen such notice was given. Even had the plaintiff knoAvledge of such assertion of title it would amount to nothing if he Avere permitted, without interrup tion, to continue his adverse-user. Assertion of title -was not enough, it must, to be effective, be accompanied Avith some act which, at least for the time being, Avould prevent the use of the easement. This part of the ruling of the court below was correct. Not so, however, . the ansAver to the defendant’s sixth point. The learned judge was asked to charge: “ That if the jury believe, from the evidence, that the use of the alley by the plaintiff, or those under AYhom he holds, was only at such times as the owners thereof had it open for their own use, without the assertion of any right to use it at other times, or to oppose in any way, the right of the owners to the exclusive control of it, and that said limited use was by the leave, favor and courtesy, or by permission and at the will of the owner, the verdict must be for the defendant.” The answer was: “ The original grant establishing and creating this alley having stipulated that gates should be upon it, if the plaintiff and those under whom he claims, have used and enjoyed the use of the alley as it existed,- with the gates upon it, continuously, uninterruptedly and adversely, whenever they chose so to do, without asking leave, for twenty-one years, with the acquiescence or knowledge of the owners, the plaintiff would be entitled to its use by the title of user.” This was really no answer to the point put. That point contained an accurate statement of the law under the defendant’s view of the evidence. If, indeed, the use of the way by the plaintiff was merely a permissive use, and the jury, from the evidence as it appears in the case, might so have found, then he could not claim the easement as of right, for, in that event, no presumption of grant could arise from the mere lapse of time. In order to establish such right, the user must be adverse, not permissive. The point should have been affirmed without qualification; as it was, the defendant was deprived of an important instruction to which he was entitled.

The judgment is reversed, and a new venire is ordered.


source: Caselaw Access Project

author: Mr. Justice Sterrett

license: Public Domain

text:
    Breneman versus Furniss.
    1. In an action by the holder against the endorser of a check, the defendant alleged that he permitted the use of his name as payee, and endorsed the check at the request of and as a matter of accommodation to the plaintiff, not only without consideration, but upon the express promise and agreement that he should incur no liability by reason of his endorsement. Held, that it was competent, as between the immediate parties to the transaction, to prove these allegations.
    2. The defendant offered to prove the facts above stated, together with circumstances connected therewith, as explanatory of the transaction. The court permitted him to prove the naked fact that the “ check was given with the understanding that he should incur no liability thereon,” but studiously excluded all testimony tending to show the circumstances under which he permitted the use of his name as payee, and became endorser of the check, or the purpose for which it was done. Eeld, that this was error.
    May 7th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Woodward, Trunkey and Sterrett, JJ.
    Error to the Court of Common Pleas of Lancaster county: Of May Term 1879, No. 28.
    Assumpsit by Thomas Furniss against Henry N. Breneman, on the following check:

      “Lancaster, Pa., June 21st 1875.
    Farmers’ National Bank of Lancaster, pay to H. N. Breneman, or order, one thousand dollars.
    $1000.
    ' H. S. Kendig.-
    Endorsed: II. N. Breneman.” .
    Payments at different times were also endorsed, amounting in the aggregate to $832.33.
    Defendant pleaded non assumpsit,' payment with leave.
    At the trial before Patterson, J., the defendant made the following offer of testimony :
    To prove that at the time this check was made, the plaintiff was county treasurer, and was working to procure the election of Stephen Grissinger as his successor, under an agreement that plaintiff should be his deputy; that he desired to get the vote of Providence township, through the influence of H. S. Kendig, the maker of the check; that to this end plaintiff proposed to give Kendig the opportunity of making $50, by furnishing him the means of anticipating the payment of the taxes of Providence township, and thus getting the five per cent, reduction from the commissioners of the county; that with this view he proposed to defendant to make the arrangement with Kendig under which this check was given; [that this check was given for that purpose with the understanding that the defendant should incur no liability thereon under any circumstances].
    Plaintiff objected. Objection sustained so far as to exclude all the above offer except that portion in brackets. (Fourth assignment of error.)
    The court refused to allow defendant to ask a witness “ What was the check given for ?” And also refused to allow defendant to prove what the check was given for, and what was said by the parties at the time the check was given, and afterwards as to defendant’s liability. (Fifth assignment.)
    The defendant also offered to prove that witness told Furniss that he could get Kendig to work for Grissinger, as he had done in other cases, with other tax collectors, by allowing him to make five per cent, on outstanding taxes. Furniss agreed, and thought that Kendig’s securities were good. That the parties met at county house and got up the check on Furniss’s suggestion to have it prepared in this way. That Furniss told witness that it would not do to have it drawn up in his own name, but it must be in some one else’s name. [Breneman was asked and agreed to do it; with the understanding that he should not be liable on it, and that the check was not to go to bank.] The check was then prepared and passed over to Furniss.
    Plaintiff objected. Offer disallowed, except so much of it as states that Breneman agreed to do it (to endorse the check if that is what is meant by the words ‘ to do it’), with the understanding that he should not be liable on it, and the check was not to go to bank. (Sixth assignment.)
    The court refused to allow defendant to ask witness “ Why was Mr. Breneman’s name to be put into the check ?” (Seventh assignment.)
    Also, to ask “Did or did not Mr. Furniss propose that Mr. Breneman’s name was to be put into this check, and if so, why ?” Objected to. By the court: “We will allow you to produce anything in defence that is not in itself wrong and against public policy.” (Eighth assignment.)
    The verdict was for plaintiff, when defendant took this writ, among his assignments of error, being those above noted.

      B. Frank Fshleman and B. G. Fshleman, for plaintiff in error.—
    The plaintiff did not obtain the check in the course of business. He was not a bona fide holder for value. He was one of the parties to the transaction out of which it arose. If, therefore, there was a want of consideration for the endorsement by the defendant, or any other defect in the agreement between the parties, the defendant, as against the plaintiff, had a right to set'up such failure or defect as a defence.
    Therefore, when the plaintiff had testified that defendant had asked him not to present the check at the bank, and promised him .that if Kendig, the maker, did not-pay it he would, it was proper for the defendant to ask him what consideration he, the defendant, received for his promise. If defendant made such a promise to the plaintiff, he must have had some reason for it, and was entitled to have the plaintiff’s account of the whole transaction. That question was not only cross-examination, but the very essence of cross-examination.

      r. W. Johnson and George M. Kline, for defendant in ei’ror.—
    The court allowed defendant to prove, although he was a party to this negotiable instrument, that he was not to be liable on it. He had the full benefit of this before the jury. The court told the jury, if they found from all the evidence in the case, “that Furniss agreed with the defendant (Breneman) that he should not be liable for the check by reason of his endorsement, then their verdict should be for the defendant.” The jury took the evidence and from it found: That the check was not to be presented to the bank; that no such agreement as Breneman alleged as to non-liability existed. This, we think, was giving the defendant the advantage of a defence not permissible in view of the cases of Hill v. Gaw, 4 Barr 493; Mason v. Graff, 11 Casey 448; Heister v. Hart, 23 Smith 289.

      June 23d 1879.
   Mr. Justice Sterrett

delivered the opinion of the court,

The defendant in the court below contended that he permitted the use of his name as payee and endorsed the check in suit, at the request of and as a matter of accommodation to the plaintiff, not only without consideration, but upon the express promise and agreement that he should incur no liability by reason of his endorsement. It Avas competent, as between the immediate parties to the transaction, to prove these allegations. 'An attempt on the part of the plaintiff to enforce payment of the check under these circumstances was making such an improper use of it as would justify proof of the agreement under which it is alleged the endorsement was procured: Hill v. Ely, 5 S. & R. 363; Ross v. Espy, 16 P. F. Smith 481.

The defendant offered to prove the facts above stated, together with the circumstances connected thereAvith, as explanatory of the transaction. The court permitted him to prove the naked fact that the-“ check Avas given Avith the understanding that he should incur no liability thereon,” but studiously'excluded all testimony tending to show the circumstances under Avhieh he permitted the use of his name as payee and became endorser of the check, or the purpose for Avhieh it Avas done. In this we think there was error. The result Avas that there Avas little or no testimony before the jury to explain Avhy the plaintiff should request him to endorse the check, and at the same time agree that under no circumstances should he incur any liability by virtue of his endorsement. Within the narrow limits thus prescribed by the ruling complained of some testimony, as to the isolated fact of the agreement, was introduced, upon the strength of Avhieh the court Avas requested to charge the jury that if .they believed, “the plaintiff had agreed Avith the defendant that he should incur no liability by reason of his endorsement of the check in suit, their verdict must be for the defendant.” This point Avas affirmed, and thus the question of fact, vital to the defence, Avas presented and submitted to the jury; but it Avas found adversely to the defendant. If proof of the circumstances directly connected Avith and leading to the alleged agreement, and explanatory thereof, had been admitted, it Avould have tended, in some degree at least, to corroborate the defendant, and might have satisfied the jury that, his version of the affair w.as the true one. The case was one in which a knoAvledge of the res gestee might very materially aid the jury in reaching a correct conclusion. What was confidently asserted on the Avitness-stand by the one party, in regard to the agreement on the faith of which the check was endorsed, was just as positively denied by the other; and in searching for the ti’uth, the jury needed all the light that could be shed on the transaction by the circumstances immediately connected therewith. For this purpose alone we think the testimony referred to in the fourth to eighth assignments of error, both inclusive, should have been received.

There is nothing in either of the remaining assignments that calls for special notice.

Judgment reversed, and a venire facias de novo awarded.


author: Mr. Justice Paxson

text:
    In re Road in East Donegal Township.
    The Act of Assembly requires road viewers to be sworn to perform their duties “impartially and to the best of their judgment.” The report of the viewers set forth that they were “severally sworn or affirmed,” in pursuance of the order of the court. Held, that this was sufficient.
    May 17th 1879.
    Before Siiarswood, C. J., Mercur, Gordon, Paxson, Woodward, Trunkey and Sterrett, JJ.
    Certiorari to the Court of Quarter Sessions of Lancaster county : Of May Term 1879, No. 173.
    A number of citizens of East Donegal township, Lancaster county, petitioned the Court of Quarter Sessions to appoint viewers to lay out a road as designated in said petition. After due public notice of the time and place of meeting, the viewers appointed in pursuance of said petition met and laid out a road. Their report was filed and confirmed nisi. Exceptions were filed thereto, the first of which the court, Livingston, P. J., sustained, which was the error assigned upon taking out this writ. The exception will be found in the opinion of this court.

      B. Frank Fshleman, 8. 3. Reynolds and 3. M. North, for petitioners.
    Is it not prima facie sufficient where the viewers say: “And having all been first severally sworn or affirmed, in pursuance of the said order, we have viewed and laid out,” &c., &c., to satisfy the court that they were sworn or affirmed in all respects as the law requires, in the absence of evidence to show that they were sworn or affirmed in some other way, or that their certificate is untrue.
    The law presumes that the officer did his duty, that the oath prescribed in such cases was duly administered, and the attestation of the officer is prima facie sufficient; he is not required to write out the form, and certify that thus and so he swore or affirmed the individual.
    A statement that the viewers were sworn “according to law” is prima facie sufficient: Wayne Township Road, 33 Leg. Int. 322. The Cambria Street Case, 25 P. F. Smith 357, is distinguishable.
    In the Cambria Street Case, Gordon, J., said, “The proceedings showed affirmatively that the oath had not been properly taken or order issued.”

      . J. W. Johnson and Greorge M. Kline, for defendants in error.—
    It will certainly not be presumed that officers of this character did their duty in exact accordance with law. There is no such legal presumption in such a case. The rule which applies to the proceedings of a court cannot possibly be extended to such a body as viewers.
    The duties of jurors are clearly defined by the Act of 1886, fifty-third section. They are vested with certain powers, preliminary to the exercise of which certain steps are necessary to give validity to their proceedings. Before they proceed to the duties of their appointment they must respectively make oath or affirmation “ to perform the same impartially and according to the best of their judgment:” Cambria Street Case, supra. To say that they were sworn or affirmed is not according to law.
    June 9th 1879.
   Mr. Justice Paxson

delivered the opinion of the court,

We have but a single assignment of error here, and that alleges that the court below erred in sustaining the first exception filed to the report of the viewers. The exception referred to is as follows: “ The jurors were not affirmed, as is required by law and by the order of the court under which they were acting, which requires them to be sworn or affirmed to perform the duties of their appointment impartially, and to the best of their judgment.” The report of the viewers sets forth: “That having been present together at the view of the ground proposed for such road, and having all been first severally sworn or affirmed in pursuance of the said order we have viewed and laid out, and do return for public use the following road,” &c. The case of Cambria Street, 25 P. F. Smith 357, is relied upon to sustain the ruling of the court below. It was there held that where the report of the viewers set forth that they had been sworn “to the faithful discharge of their duties,” it was insufficient, the Act of Assembly requiring, them to be sworn to perform their duties “impartially and to the best of their judgment.” This was simply following in a line of authorities which hold that where in a judicial proceeding an Act of Assembly prescribes a certain form of oath, and the record shows that such form had been departed from in a material part, the proceeding will be set aside by reason thereof. Thus, in Thompson v. White, 4 S. & R. 235, the award of the arbitrators was set aside because the record disclosed the fact that in the oath of the appellant the word “firmly” was omitted; the Act of 1810 requiring him to swear that he “firmly believes injustice has been done.” ' On the other hand we have the recent case of Wayne Township Road, not yet reported (but see Leg. Int., vol. 33, p. 322), in which it was held that a statement of the viewers in their report that they were sworn “according to law,” is prima facie sufficient. We do not regard this case as in conflict with those above cited. Wherever it appears affirmatively upon the face of the record that the jurors were not properly sworn, of course the report must be set aside. But where on the contrary the record sets forth that the jury were “sworn according to law,” we must presume until the contrary appears, that they were sworn in the manner prescribed by the Act of Assembly. The maxim, omnia prcesumuntur rite esse acta, may properly be applied in such cases. This is a matter of daily practice in judicial proceedings. There are many instances in which prescribed forms of oath are required, where the record merely says “ sworn” or “ affirmed.” If we may presume regularity in this respect in proceedings in the Oyer and Terminer, where a man is upon, trial for his life, we may safely extend it to the report of a road jury in the Quarter Sessions. Here the viewers report that .they were severally sworn or affirmed, and it requires no straining of their language to say they “ were severally sworn or affirmed in pursuance of said order.” We are of opinion that something is due to the presumption of regularity, and that prima facie the oath is sufficient.

The order of the Quarter Sessions setting aside the report of the viewers is reversed; the exceptions filed to said report are dismissed, and the report confirmed; the costs to be paid by the exceptants.


author: Mr. Justice Mercur

text:
    Shartzer et al. versus The School District of the Borough of Washington.
    1. In an action of debt on the bond of the treasurer of a school district: Held, that the plea of payment admitted the execution of the bond.
    2. The first section of the Act of May 21st 1857, authorizes borough auditors to settle the accounts of a school treasurer, with the right of appeal therefrom to either party. Held, that unless appealed from, such settlement is conclusive.
    3. Where such treasurer appeared before auditors de facto, and submitted his accounts to them for adjudication and took no appeal therefrom, he cannot be permitted to show that they were not duly elected.
    4. While the Act of Assembly requires that before entering upon the duties of their offices, said auditors shall take and subscribe an oath, it does not declare that the omission to do so ipso facto vacates their offices ; it requires judicial action, instituted for that purpose, to produce such result.
    5. If the treasurer have a set-off, the borough auditors ai'e the proper tribunal to pass upon it, and if dissatisfied with their decision, the right of appeal is open to him ; if he has not availed himself of this right, he cannot, in this action of debt, go behind the finding of the auditors.
    May 7th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Woodward, Trunkey and Sterrett, JJ.
    Error to the' Court of Common Pleas of Lancaster county: Of May Term 1879, No. 153.

      Debt by the Washington Borough School District against Cyrus, John and Benjamin Shartzer, on the official bond of Cyrus Shartzer, as the treasurer of said school district. Defendants pleaded payment, payment with leave, &c.
    Cyrus Shartzer, one of the defendants below, was elected treasurer of said school district at the spring.election of 1873, for the term of one year, and in the month of September, of the same year, he assumed the duties of his office and gave his bond with John Shartzer and Benjamin Shartzer, who are also defendants in this suit, as his security, to one Eli Roberts, then president of said school board, in the sum of $2300 for the faithful performance of the duties of his office, in accordance with the terms prescribed by the Act of 8th day of May 1854, and its supplements. Prior to his election as treasurer in 1873, he had been annually elected and re-elected, and served as treasurer of said school district from 1868 to 1873 respectively. During that time the borough auditors were either not elected and sworn, or neglected to settle annually the accounts of said treasurer, as required by law.
    On April 6th 1876, one John Parker and Martin Bitner, assuming themselves to be the legally elected auditors of said borough of Washington, for the years 1875 and 1876, but never having’been sworn, nor having filed their respective oaths with the town clerk as such, as required by law, made up an account or statement, in which they struck a balance in favor of the school district and against the said treasurer of $631.90. This statement comprised a-period of four years and four several terms of office, from July 5th 1871 to June 1874, and at the bottom of this statement appeared the following words under their hands and seals: “We, the undersigned, auditors of Washington borough, Lancaster county, Pennsylvania, have examined the accounts of Cyrus Shartzer, ex-treasurer of Washington school district, and the above is a correct statement to the best of our knowledge.”
    This suit was then brought by the said school district against said treasurer and his security for the said sum of $631.90, with interest, on the official bond of the treasurer for the year 1873.
    At the trial, before Patterson, J., the plaintiff offered in evidence the bond of said Cyrus Shartzer, which the court admitted under objection. (First assignment of error.)
    The plaintiff’s counsel offered in evidence the report of the auditors of Washington borough, dated April 6th 1876, showing the account as made up and what balance is due and owing by the treasurer.
    Defendants objected to this report until it was proven by the auditors, or those who pretended to have been auditors, denying that those gentlemen were the auditors. Offer admitted. (Second assignment of error.)
    The court refused to allow the defendants on cross-examination to ask John Parker “ When tv ere you elected an auditor?” (Third assignment.) Also, “Were you a'sworn auditor at the time this account was audited ?” (Fourth assignment.) The defendants also offered to prove that the parties whose names are appended as auditors, to the alleged report dated April 6th 1876, were not auditors duly qualified to perforin the duties of the office, that they never had been elected as such or taken the oath of office prescribed by the Act of Assembly, or caused the same to be recorded with the town clerk as required by laAV. Plaintiff objected and offer overruled. (Fifth assignment.)
    Also to prove that Cyrus [Shartzer, the defendant in this case, was first elected treasurer in the spring of 1868, was re-elected in 1869 and in 1870, and continued in office by re-election from year to year up until June 1874; that on the 5th day of June 1871, the period at Avhich the pretended auditors commenced the settlement of his account, the Washington Borough School District was indebted, to the defendant in the sum of $1216.78; that that item of $1216.78 forms no part of the present pretended report, and therefore is still due to this defendant from this plaintiff as a set-off against its claim of $631.90, under our defalcation plea; to be followed by proof that we asked the auditors to audit the years 1868, 1869 and 1870, Avhich they refused to do. Objected to and offer overruled. (Sixth assignment.)
    The court instructed the jury to find a verdict for plaintiff for $631.90, Avith interest; that under the law and the evidence the plaintiff Avas entitled to this verdict, and they should so render it. (Seventh assignment.) Verdict accordingly, when defendants took this writ assigning the foregoing errors.

      II. Q. Brubaker and S. S. Reynolds, for plaintiff in error.—
    It Avas error to admit the auditor’s report. ' There was no evidence of an actual report, and it Avas never filed as required by laAV. But we were not alloAved, either under the cross-examination of the witness, or by the subsequent offers in behalf of our defence to this action, to show that neither the witness nor his colleagues had ever been elected or sworn as auditors; that these two men, as residents, and perhaps taxpayers of the borough of Washington, had undertaken, in the face of the laAV, to establish themselves as a court of inquiry, before .Avhich the treasurer would be obliged at their bidding to have his accounts with the directors investigated, and adjudicated.
    Wé admit that had there been an actual settlement made by the legally elected and qualified borough auditors, such report would be conclusive upon us unless an appeal had been taken as prescribed by the Act of 11th April 1862, pi. 3, Pamph. L. 471, Purd. Dig. p. 241, pi. 35; Porter v. School Directors, 6 Harris 144. The statute furnishes the tribunal before Avhich the accounts of the treasurer with the directors are .to be settled, and no set of men can constitute that tribunal except in the manner fixed by law.
    We concede that the proper tribunal for the adjustment of differences was the board of borough auditors, but when none were elected or sworn for the several terms of the treasurer, what other remedy was there ? This suit brought us before a tribunal where we might have our case adjudicated.

      N. M. North, for defendant in error.
    The pleas admitted the contract and liability as declared on: Gebhart v. Francis, 8 Casey 78; Gilinger v. Kulp, 5 W. & S. 264; Abbott v. Lyon, 4 Id. 38; Lewis v. Morgan, 11 S. & R. 234. These auditors were de facto officers and as such their official acts were binding: Dillon on Municipal Corporations, sect. 214; Scadding v. Lorant, 5 E. L. & E. R. 30. A settlement by township auditors of the account of the treasurer of a school district is conclusive unless an appeal be taken: Porter v. School Directors, 6 Harris 144; Township of Middletown v. Miles, 11 P. F. Smith 290; Wissler v. Township of East Hempfield, Lancaster Bar, November 27th 1869, by Long, P. J.
    October 6th 1879.
   Mr. Justice Mercur

delivered the opinion of the court,

This was an action on the bond of the treasurer of the school district, of the Borough of Washington for the year 1873, and his sureties. The plea of payment admitted the execution of the bond, and this disposes of the first assignment: Lewis v. Morgan, 11 S. & R. 234; Abbott v. Lyon, 4 W. & S. 39; Gilinger v. Kulp, 5 Id. 264; Gebhart v. Francis et al., 8 Casey 78.

The defendant in error sought to recover the sum found due from the treasurer on a settlement of his accounts, made by the borough auditors. The first section of the Act of 21st May 1857, authorizes borough auditors to settle the accounts of school treasurers, with the right of appeal therefrom, to either party. Unless appealed from, such settlement is conclusive : Porter v. School Directors, 6 Harris 144; Township of Middletown v. Miles, 11 P. F. Smith 290.

The fifth assignment is to the rejection of evidence that the persons who acted as auditors had not been duly elected, and had not taken the oath prescribed by the Act of Assembly. The Act of 19th May 1874 directs, inter alia, that contested elections of officers of townships and boroughs shall be tried and determined by the Court of Quarter Sessions of the proper county. It is a matter over which the Court of Common Pleas has no jurisdiction. If, then, the due election of these persons was questioned, it could be tried and determined in the Court of Quarter Sessions only. It cannot be inquired of in this collateral proceeding. They were auditors de facto, if not de jure. The treasurer appeared before them, and submitted his account to their adjudication. He took no appeal from their decision. He cannot now be permitted to show that they were not duly elected.

It is true, the Act of Assembly requires they shall, before entering on the duties of their office, take and subscribe an oath; and also imposes penalties for a violation of this requirementbut it does not declare that the omission to take the oath shall ipso facto vacate their offices. It requires judicial action, instituted for that purpose, to produce such result.

The sixth assignment is to the set-off. If this claim of set-off ever had any merit, it existed and was available in the hands of the treasurer, at the time his account was settled by the auditors. That was the time to have presented his claim. They were the tribunal to have passed upon it. If dissatisfied with their decision, the right of appeal was open to him. The legal effect of their decision is that the sum of $631, above all claims and demands of the treasurer, was then due from him to the school district. He cannot now, in this action, go back of that finding of the auditors. The learned judge was right in directing the jury to find for the defendant in error.

Judgment affirmed.


text:
    Moore versus Hershey.
    .1. The principle that the consideration of a negotiable note cannot be inquired into in the case of a holder for value, does not apply to the case of such paper made by a lunatic.
    2. In a suit by the endorser of a promissory note made by a lunatic, the latter or his committee may defend, on the ground that the endorser had knowledge of the maker’s lunacy, or that the note was obtained by fraud or without proper consideration..
    3. Where the endorser of a promissory has been notified that he will be required to prove the consideration paid by him for the note, and he takes the stand to prove that he is a bona fide holder, it is proper on cross-examination, to ask such questions as will tend to discover whether the endorser knew that the note was originally obtained without proper consideration.
    4. The defendant lunatic may also prove that he received no consideration for the note; that it was given pending proceedings in lunacy, and that plaintiff admitted that defendant had not received value for the note.
    5. Per Paxson, J. — -A Us pendens is undoubtedly constructive notice in questions of title and property, but that it should be so as to a man’s mental condition is much to be doubted.
    May 7th 1879.
    Before Siiarswood, C. J., Mercur, Gordon, Paxson, Woodward, Trunkey and Sterrett, JJ.
    Error to the Court of Common Pleas of Lancaster county: Of May Term 1879, No. 54.
    Assumpsit by John M. Hershey against George H. Moore on a promissory note made by Moore in favor of, and endorsed by David L. Witmyer, to plaintiff. The note was dated June 8th 1872, at forty days for $500. The defendant pleaded non-assumpsit: Notice was given by defendant’s counsel to plaintiff, that he would be required to prove the consideration paid by him for the note in suit.
    The defence was that at the time the said note was given, Moore was a lunatic or non compos mentis, that proceedings had been theretofore instituted for declaring him such; that he was shortly afterwards regularly found by an inquest to be a lunatic without lucid intervals, and to have been so for about three years prior thereto, that the finding of the inquisition had been duly returned to and confirmed by the court, and Michael H. Moore and John II.. Moore appointed his committee, by whom this defence was conducted : and further, that the defendant or his estate was in no way benefited by the said note, and received no value for it whatever ; ■that the sole consideration for it was a worthless patent right, and that the plaintiff knew at the time he bought the note that Moore had received no value for it.
    At the trial the plaintiff having proved the signature to the note and given it in evidence, was called as a witness in his own behalf. He testified that he gave for the note his order on Solon L. Cheny for $395, and his own note for $82.09.
    He added that Witmyer told him what the note was given for. “He told me it was given to lift a judgment.”
    He was then asked by defendant’s counsel, “ Did you not know, at the time you took this note from Witmyer, that the consideration of it was a patent right?” This question was objected to by plaintiff as not being cross-examination, and was disallowed. (First assignment of error.)
    He was then asked by defendant’s counsel, “ Did you ever tell anybody that you dealt in patent right notes; bought them for half price; you bought one of George Moore’s; you knew he got no value for it, but you got it cheap and you were going to make him pay for it.” Objected to by plaintiff and disallowed by the court, as not cross-examination. (Second assignment of error.)
    The plaintiff having rested, the defendant gave in evidence the record of proceedings in lunacy in the case of George H. Moore in the Court of Common Pleas of Lancaster county, as follows:
    . Petition presented June 5th 1872. Same day E. D. North, Esq., appointed commissioner. Inquisition held June 21st and 28th 1872. Inquest find that George H. Moore is a lunatic, and has been so for about three years prior to that date, without lucid intervals. Inquisition confirmed August 19th 1872; and the same day Michael H. Moore and John 11. Moore appointed committee, &c.
    The defendant then offered to prove that George II. Moore, the defendant, on January 10th 1872, gave a judgment bond to Aaron H. Danner for $3000, payable April 1st 1872, and entered to November term 1871, No. 232, in the Court of Common Pleas of •Lancaster county, and assigned by said Danner to David L. Witmyer, May 21st 1872, and satisfied by said Witmyer, June 12th 1872. That on February 19th 1872, an affidavit and petition were filed-alleging the obtaining of said judgment by fraud, and that there was no consideration for the same, and a rule granted to open the same, which rule was pending at the time of the entry of satisfaction as aforesaid; that said judgment was given by said Moore in pursuance of an arrangement about a worthless patented wash boiler and that said Moore received no consideration for said judgment. That said Witmyer procured from said Moore six notes for $500 each, all like the one in suit, which is one of them, for said.judgment ; that said note was given while proceedings in lunacy against said Moore were pending; that said Witmyer subsequently to the date of said note, had the whole six notes and offered them for discount or sale; that said Hershey attended the inquest June 21st 1872, and once in a conversation with a person, said that he often dealt in patent right notes, that he bought them for half price and made money on them, that he bought one of George Moore’s that he knew Moore had no value for it, but he got it cheap and would make him pay for it.
    This offer being objected to by plaintiff was disallowed as a whole by the court; and the rejection thereof having been excepted to, was the subject of the third assignment of error.
    The defendant submitted the following points, to which are appended the answers of the court:
    1. It was not competent for the defendant to bind himself by a promissory note given by him while the proceedings in lunacy against him were pending, which resulted in finding him a lunatic for three years back and before the commencement of the proceedings in lunacy.
    Ans. “ Defendant having made and put in circulation, the negotiable note in suit, three days after proceedings in lunacy were commenced, which resulted in finding him a lunatic, and the payee having endorsed said note to plaintiff, who is an innocent holder for value (having no actual notice of the proceeding in lunacy, or of the lunacy of .Moore, or of any taint whatever concerning said note), would be bound to pay said note, notwithstanding the fact that the inquest finds said Moore to have been a lunatic for three years prior to its date.” (Second assignment.)
    2. It is incumbent on the plaintiff to show that the defendant, a lunatic, so found by inquisition, received value for the note in suit, and there being no such proof, the defendant is not bound by said note.
    Ans. “Refused.” (Fifth assignment.)
    3. Under the whole evidence in the case the verdict should be for the defendant.

      Ans. “Refused.” (Fourth assignment.) .
    In the general charge the court, Livingston, P. J., inter alia, said:
    “We prefer to adhere to the rule as stated in Diamond v. Lawrence Co., 1 Wright 853, that the doctrine of constructive notice or notice by lis pendens does not apply to commercial paper not yet due, in the hands of an innocent holder for value, and therefore now say to the jury, that constructive notice, by the mere fact that proceedings in lunacy were commenced three days before the making of the note in question, which is a negotiable note, commercial paper, and which is held by plaintiff as an endorsee for value, who, as the testimony shows, has purchased it from the payee for value, without having actual notice of the proceedings in lunacy, or of the lunacy of George H. Moore (if he was then a lunatic), prior to purchasing it, is not such notice as would prevent his recovery in this action, and that plaintiff is therefore entitled to their verdict for the amount of the note with interest from its maturity.”
    Verdict for plaintiff. Defendant took this writ, among his assignments of error being those heretofore noticed.

      H. M. North and Thomas 13. Tranklin, for plaintiff in error.—
    The plaintiff was called, in his own behalf, to prove that he was a bona fide holder of the note in question without notice. He testified to the consideration he had given for the note, and stated that Witmyer said it was given to lift a judgment. We desired to test his truth by asking him whether he did not- know at the time he took the note that Moore had received no value for it, and whether he had not so acknowledged to others. Anything which tends to show the falsehood or inaccuracy of the statement of the witness may be put to him on cross-examination, although it may introduce new matter and have the effect of developing defendant’s case: Markley v. Swartzlander, 8 W. & S. 172; Covanhoven v. Hart, 9 Harris 495.
    Although a party purchasing a promissory note from the payee is not bound to inquire into the consideration thereof, yet if he has actual knowledge that the maker received no value for it, he cannot recover: Byles on Bills (by Sharswood), 92 to 103. But when offered in connection with the fact of the lunacy of the maker and of the pendency of proceedings instituted to inquire into it, which resulted in a finding that he was a lunatic at the time of executing the note and for a long time before, it was as we think clearly sufficient to prevent the plaintiff’s recovery: Byles on Bills (by Sharswood), 47.
    While the endorsee of a negotiable note is not bound to inquire into its consideration, he is bound to ascertain the status of the maker, and if the maker is a lunatic, in regard to whom proceedings had, at the time of the making of the note, been already commenced to have him declared a lunatic, the holder is required to show affirmatively that the lunatic has given the note - for a fair and valuable consideration, for the benefit of his estate: Hicks v. Marshall, 15 N. Y. (S. C.) 327; Surles v. Pipkin, 69 N. C. 513; Lancaster County Bank v. Moore, 28 P. F. Smith 414.
    We submit further that the commencement of proceedings in lunacy is notice to all the world; and while we do not claim that the doctrine of Us pendens is strictly applicable to negotiable paper, we do insist that the buyer is bound to inquire who the drawer is; and that where the drawer is a lunatic, as to whom proceedings to have him so declared have been already instituted, he takes upon himself the burden and responsibility of showing that a good and sufficient consideration therefor passed to the lunatic from the payee, “so that justice and equity require it to be paid out of his estate.” See discussion of principle of Us pendens in Winston v. Westfeldt, 2 Am. Law Reg. 619, Old Series.

      H. O. Brubaker, for defendant in error.
    Judgment will not be reversed because a party is not permitted to ask a question, when it is apparent from the testimony of the witness that he would not have given the answer sought: Daniel v. Daniel, 3 Wright 212.
    Negotiable paper in the hands of a third party, who is an innocent and bona fide holder for value,' cannot be assailed for fraud or lunacy: Diamond v. Lawrence Co., 1 Wright 353; Lancaster County Bank v. Moore, supra.

    June 23d 1879.
   Mr. Justice Paxson

delivered the opinion of the court,

The question how far a lunatic shall be held liable upon his contracts is not free from difficulty. A man may be mad without 'showing it. And he may show it and yet drive a thrifty bargain. A lunatic has been held liable for necessaries: La Rue v. Grilkyson, 4 Barr 375; Baxter v. Portsmouth, 2 C. & P. 178. In Beals v. See, 10 Barr 56, it was held that an executed contract for the purchase of goods could not be avoided by proof of insanity at the time of the purchase, unless the vendor had been guilty of fraud, or had knowledge of his mental condition. In Lancaster County National Bank against Moore, the present plaintiff in error was held upon his promissory note discounted by the bank without knowledge of his insanity. It is a just rule that when a lunatic obtains the property of another person, who in good faith deals with him in ignorance of his lunacy, he shall not keep both the property and the price. But there must be a limit to the civil responsibility of persons of unsound mind, otherwise their property would be at the mercy of unscrupulous and designing men.

The defendant below was sued upon his promissory note in favor of David L. Witmyer, and by him endorsed to the plaintiff. The latter claimed to be a holder for value, and stated when on the witness stand that he gave $477.09 for it. The plaintiff was then asked certain questions upon cross-examination as to his knowledge of the consideration, which upon objection were ruled out by the court, and form the subject of the first and. second specifications of error. The objection that the questions referred to were not proper cross-examination, was not well taken. The plaintiff had taken the stand to prove that he was a bona fide holder, upon notice by the defendant’s counsel to prove the consideration paid for the note. It certainly affected the bona fides of his holding if he knew the note had been obtained from Moore upon a worthless consideration, and in this view the questions referred to in the first and second specifications, ought to have been allowed. The defendant, after offering in evidence the record of the inquisition of lunacy in the case of George H. Moore, the finding of which covered the time at which the note in suit was given, made the offer of evidence contained in the third specification. The offer was substantially to prove, 1st, That Moore received no consideration for the note ; 2d, That the note was given pending the proceedings in lunacy; and 3d, That the plaintiff had admitted in conversation that Moore had not received value. We think this offer, as a whole, ought to have been received. The rejection of the second branch was not material, as the record of the inquisition already in evidence showed that the proceedings were commenced at a date anterior to the note. But the remaining matters embraced in the offer were material. They went to the consideration of the note and to the plaintiff’s knowledge of it. I know of no case in which it has been held that a> lunatic, when sued upon his contract may not show want of consideration. The most that has been decided is, that when a man deals fairly with a lunatic, and without knowledge of his lunacy, he is entitled to recover the value of what he honestly parted with. It was held, however, by the learned judge of the court below, that as this was commercial paper, and the plaintiff a holder for value-, the consideration could not be inquired into. It is doubtful if this rule, even if applicable to the facts of this case, would exclude the evidence referred to, as said evidence tends to show plaintiff’s know- ( ledge of the want of consideration. But we are not called upon to decide this question as we place our ruling upon the broad ground that the principle of commercial law above referred to, does notl apply to the case of commercial paper made by madmen. If it* did we would soon have before us this state of things : It is well known that there are a large number of lunatics under restraint in this state who are possessed of large estates. It would be easy for a designing knave to obtain the paper of such person for a large amount. The making of it might even be a source of delight to the unfortunate lunatic. If such paper can be protected in the hands of a holder who has paid value, however trifling, this help less class would have little protection. A principle that renders ■ such results possible must be essentially and radically wrong; we believe that none such exists. On the contrary the true rule appli-, cable to such cases is, that while the purchaser of a promissory note is not bound to inquire into its consideration, he is affected by the status of the maker — as in the case of a married woman or a minor. In neither of these cases can he recover against the .maker. In the case of a lunatic, however, he may recover, provided he had nc knowledge of the lunacy, and the note was obtained without frauc and upon a proper consideration. But the lunatic or his committee may defend upon either of these grounds. This rule affords reasonable protection to the estates' of lunatics, and causes no serious injury to commercial interests, as it is believed the amount of such paper that can be floated in the face of such a rule will be inconsiderable.

In the view we take of this case the fact that the lunatic has been so found by inquisition is not very important. Such finding is at most but prima facie evidence of what it asserts, and may always be ‘rebutted by strangers to the proceeding, and I doubt the application of the doctrine of lis pendens to such cases. A lis fen-dens is undoubtedly constructive notice in questions of title and property, but that it should be so as to a man’s mental condition is very much to be doubted. But we do 'not decide this point, not regarding it as essential.

There is nothing in the foregoing inconsistent with what was decided in the Bank v. Moore, svpra. The questions now ruled were not raised in that case.

The defendant’s second point (fifth assignment), presents the principle I have just discussed. If the facts were as assumed in said point, its conclusions of law should have been affirmed.

Judgment, reversed and a venire facias de novo awarded.


text:
    Hartman’s Appeal.
    1. What contingent interest will entitle the owner thereof to require a trustee to account and to file exceptions thereto.
    2. While the Act of April 17th 1869, entitled,ILAn Act for the protection of contingent interests,” in its letter authorizes^he owner of a contingent interest to require an executor or administrator to make and exhibit an account of his trust, yet its manifest intent is to protect a contingent interest and to give the owner thereof a right to call the trustee to account, and where, therefore, a trust fund is in the hands of a trustee appointed by the court, in the stead of an executor, the whole object and spirit of the act demands that it should be applied to such a custodian of the fund.
    May 7th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Woodward, Trunkey and Sterrett, JJ.
    Appeal from the Orphans’ Court of York county : Of May Tehrh 1879, No. 140.
    Appeal of Granville Hartman from the decree of the Orphans’ Court of York county, making absolute the rule granted at the instance of Adam J. Glossbrenner, to show cause why the exceptions to his account as trustee of the fund bequeathed by John Hartman, deceased, for the use of J. Hamilton Hartman-and others, should not be stricken off.
    The material facts are stated in the opinion of this court. In the court below, Wickes, J., in an opinion, said:
    “ The. ground upon which we are asked to strike off these exceptions, is that the exceptor, Granville Hartman, and those whom he represents, have no such interest in this fund as entitles them to file exceptions to the trustee’s account. The clause in the will of John Hartman, under which these exceptants claim they have such an interest as brings them within the provisions of the ‘ Act approved the 14th of April 1835,’ 1 Purd. Dig. 445, pi. 195, provides for the payment of interest upon the fund bequeathed to J. Hamilton Hartman during his life, in whole or in part as specified, ‘ and if he leaves no children or their legal representatives, then over unto his brothers and sisters and their legal representatives,’ &e.
    “ The persons excepting to this account are the brothers and sisters named in the will.
    “In Keene’s Appeal, 10 P. F. Smith 504, the question was, whether a bare possibility, dependent upon the death of the first taker without issue, was such an interest as authorized a citation to an executor to account under the Act of March 29th 1832. It was held not, because the interest contemplated in the act must be such as will certainly fall into possession at some time. If that is the test, it is impossible to distinguish the two cases in principle, and upon the authority of that case we shall be compelled to strike off these exceptions.
    “ The Act approved the 17th of April 1869, Pamph. L. 70, has been cited in support of the right of these exceptants to be heard. But we know of no principle of construction which would justify us in saying that an act which specifies ‘ executor or administrator,’ was intended also to apply to trustees appointed by the Orphans’ Court.
    “ We do not, of course, mean to decide aught concerning the merits of the question raised by the exceptions; we simply strike them off for the reasons assigned.
    “And now, to wit, March 3d 1879, rule to show cause why the exceptions to the account of Adam J. Glossbrenner, trustee of J. Hamilton Hartman, should not be stricken off, is made absolute.”
    From this decree this appeal was taken.

      W. F. Bay Stewart, W. O. Qhapman and John Blackford, for appellant.
    This case is clearly distinguishable from Keene’s Appeal, 10 P. F. Smith 504.
    It is manifest at a glance, that Hamilton Hartman has not now never had, and never can have any vested estate in the funds of the trust. His is a bare right to call upon the trustee to pay for his maintenance and support, $150 annually. Should he marry, it is within the discretion of the trustee to expend the whole of the income of the trust for the support of Hamilton and his family. The idea of a vested estate for life in Hamilton, or even in the trustee for his use, is precluded by the express terms of the will. He is powerless to bring this trustee to account if he wished to do so. Being barren of a vested interest he would be excluded from the courts. It cannot be said that the trust funds are held for Hamilton’s issue. There is no such class in existence. There can be no vested estate in persons not in esse, and it is obvious that no proceedings from that source can be interposed to urge this trustee- to do his duty. The only persons who could take these funds, were Hamilton to die, are the exceptants in the court below. If the trustee holds the estate for any person, manifestly it must be for them.
    The interest of these exceptants is valid: Hopkins v. Jones, 2. Barr 69; Kelso v. Dickey, 7 W. & S. 279; Diehl v. King, Adm’r, 6 S. & R. 29; Etter’s Estate, 11 Harris 381; Chess’s Appeal, 6 W. N. C. 250.
    John Hartman never intended that his estate, now in controversy should pass to a trustee, and be put beyond the control, for protective purposes of his beneficiaries, and beyond the reach of any controlling power, to which the trustee would be accountable. We submit in addition,- that if the interest of the appellant in the funds in question is so. remote and contingent as to bar the courts against his application for redress, then that difficulty is remedied by the Act of 17th April 1869, Pamph. L. 1869, p. 70. This act is entitled, “ An act for the protection of contingent interests.” The court below was of opinion that the trustee in this case could not be reached under the provisions of that act for the reason that executors and administrators only are mentioned in it. The intent of the legislature was to afford protection to contingent interests.

      Horace Keesey and V. K. Keesey, for appellees.
    The -except-ants have no such interest as entitled them to call this trustee to account: Keene’s Appeal, supra; Martin’s Appeal, 11 Harris 439. The Act of 1869 does not apply to this case. That act was passed for the special purpose of providing for the Keene estate.
    May 26th 1879.
   Mr. Justice Mercur

delivered the opinion of the court,

This contention is whether the appellant has a right to be heard in regard to the management of a portion of the residuary estate devised by John Hartman. That portion is devised in these words: “ One-seventh part of said residue I give unto my executors in trust, to be invested by them to the best advantage, and they to expend out of the interest and income thereof annually, an amount not exceeding $150 for the comfort and maintenance of my son Hamilton, as long as he shall remain unmarried; and if he should marry, to expend thereafter, if the said trustees shall deem it necessary for the maintenance and comfort of him and his family, all the interest and. income of the aggregate of this part, for and during his life; but in no event to give any, money to him, nor pay any in any manner for him so that he may get control of it or dispose of anything procured for him or his family by it, nor so that it may be taken or used for the payment of any debts contracted by him.. At the death of said son Hamilton, the principal of this share, with any interest remaining, shall be paid unto his said children, if any, or their legal representatives, and if he leaves no children or legal representatives, then over unto his brothers and sisters and their legal representatives.” The testator died in 1853. Hamilton is fifty-four years of .age and has never married. The appellant is one of his brothers. The executors named in the will acted as trustees of this fund until 1859, when they filed their account of the trust, and were by the court discharged therefrom. In January I860, the appellee was appointed trustee in their place, and the fund passed into his hands. In 1878, he filed his account, in which he states the sum on hand to be about $17,000. The appellant, claiming the fund should be much larger, filed exceptions thereto. The court struck them off, holding he had no such interest in the fund as entitled him to be heard. All the errors assigned are substantially to this action of the court.

The learned judge thought the case was controlled by Keene’s Appeal, 10 P. F. Smith 504. The facts of that case distinguish it from the present case. There the entire interest in the residuary estate was given to the testator’s niece, Ellen, during her life, the principal to her children, lawful issue absolutely; but if she died unmarried, with power to devise the interest thereon to whichever of her brothers she might consider most worthy ; and the principal to the children of her two brothers, lawful issue absolutely. To the first taker there during her life, the interest was given absolutely, and also a contingent and qualified right to dispose of the interest by will. In the present case there is no absolute gift to Hamilton of any part of the interest; but it rests in the discretion of the trustees, and they are prohibited from paying him more than a small fraction of the interest. There Ellen was directly interested in watching the trust fund and the accumulations thereof, for she was entitled to the whole interest during life. Here the highest annual sum that Hamilton can receive is so small that he has no incentive to look after the fund. Beyond him no person in being is interested in examining the account of the trustee, except the appellant, and others sustaining the same relation to the fund. He now stands but one step from its enjoyment. He will reap its fruit unless deprived thereof by two contingencies. The one the marriage of Hamilton, each year becoming less probable; the other, his having issue. It is not our purpose to question the correctness of the rule declared in Keene’s Appeal under its facts and the statutes then in force. The insufficiency of the statute then existing, to enable the owner of a contingent interest to take action which he deemed necessary for the protection of that interest, led to the enactment of the Act of 17th April 1869, Purd. Dig. 452. The object of it as expressed in the title is, “An Act for the protection of contingent interests.” It is true the letter of the act authorizes the owner of a contingent interest to require an executor or administrator to make and exhibit an account of his trust, yet the manifest intent is to protect a contingent interest, and give the owner thereof a right to call the trustee to an account. As the act expressly authorizes the owner of such an interest to require an executor or administrator to settle his account, the whole object and spirit of the statute requires us to apply it to the custodian of this fund. The appellee holds the same fund that the testator gave to the executors charged with the trust. The fund and the trust were transferred from them to the appellees. They should be held liable to investigation by the same person who could have investigated the accounts of the executors. To deny the right of the appellant is practically to declare that no person, who feels any interest in a judicious administration of the trust, can be heard. This is a conclusion to which we ought not to arrive unless compelled by the statute. Fortunately, the Act of 1869 removes all such constraint. Without deciding whether or not, the appellant has a vested interest (which is not clear), we still think he has such an interest as entitles him to require the appellee to exhibit his account, and to file exceptions thereto. The learned judge, therefore, erred in dismissing the exceptions in consequence of insufficiency of interest in the appellant. The merits of the facts alleged in the exceptions are not now before us, and we indicate no opinion thereon.

Decree reversed; rule to show cause why exceptions should not be stricken off, discharged; exceptions restored, and a procedendo awarded. It is further ordered, that the costs of this appeal be paid by the appellee.


author: Mr. Justice TRUNKBY

text:
    Bachler’s Appeal. In re Opening of Walnut Street.
    1. The mode of taking private property for public use by municipal corporations is in the control of the legislature, subject only to the limitations of the constitution.
    2. Section 8, article 16 of the Constitution secures an appeal and trial by jury for damages, wherever private property is taken by a municipal corporation for public use, and the Act of June 13th 1874 furnishes the remedy thus secured to owners where no sufficient provision for trial by jury already existed. Pusey’s Appeal, 2 Norris 67, and Williams v. City of Pittsburgh, Id. 71, followed.
    May 7th 1879.
    Before Siiarswood, C. J., Mercur, Gordon, Paxson, Woodward, Trunkey and Sterrett, JJ.
    Certiorari to the Court of Quarter Sessions of Lancaster county: Of May Term 1879, No. 166.
    Appeal of Leonard Bachler from the order of the court dismissing his appeal from the assessment of damages sustained by him by reason of the extension of East Walnut street, in'the city of Lancaster. The facts were these:
    The city of Lancaster by her solicitor, on the 26th day of February 1878, presented a petition to the Quarter Sessions of the county of Lancaster, praying the court to issue their warrant to the street commissioner of said city, requiring him to open Walnut street, from Shippen to Plum street, in accordance with a draft or plan of said city, made by the civil engineer of said city and approved by the court, according to the Act of April 18th 1873, Pamph. L. 811, the material portions of which will be found in the opinion of this court.
    Leonard Bachler, the appellant, and others, owners of property which would be taken or injured by the said extension of Walnut street, petitioned the court to appoint viewers to assess the damages that would be sustained by them by reason of said extension. Viewers were accordingly appointed by the court, who upon a view of the premises, awarded, among others, to the appellant the sum of $1200. Their report was filed on the 30th day of January 1879, and on the 22d of February 1879, it was presented to the court, read and confirmed nisi. On the 25th of February 1879, Bachler appealed from said assessment of damages, for the purpose of obtaining a trial'by jury, and on the 26th of February 1879, the court granted a rule to show cause why the said appeal should not be stricken off. And on the 29th of March 1879, the court dismissed the appeal pro forma.

    This action of the court was assigned for error by Bachler, who took this appeal.

      B. O. Kready and I). Gr. JEshleman, for appellant.
    The appellant was entitled to an appeal under the Act of June 13th 1874, . Pamph. L. 283: Pusey’s Appeal, 2 Norris 67; Williams v. City of Pittsburgh, Id. 71; Cummings v. City of Williamsport, 3 Id. 472; City of Pittsburgh v. Irwin, 4 Id. 420.

      J. Hay Brown and Greorge Nauman, for appellee.
    The viewers having failed to assess any damages against the city of Lancaster, this proceeding is entirely against the county. The constitutional provision does not execute itself, and the appeal depends on the Act of 1874. An appeal under that act lies only when land is taken by a municipal or other corporation invested with the power of taking private property for public use. In this case the city of Lancaster does not take, nor is it invested with the power to take. Under the Act of 1873, the councils of the city of Lancaster are “required ” to elect an engineer. The court approves, rejects or alters his draft, and orders the opening of streets upon the petition of freeholders or councils. The city cannot touch an inch of ground. Nor does the county take. The court does everything; and, if the county did take, it is not a municipal corporation within the meaning of art. ■ 16, sect. 8, of the Constitution, nor of the Act of the 13th June 1874: Freeze v. County of Columbia, 6 W. N. C. 145, opinion by Elwell, P. J.
    The cases cited by appellant arose • under special acts, and in all of them, the municipalities had the power to open the streets.
    May 26th 1879.
   Mr. Justice TRUNKBY

delivered the opinion of the court,

The mode of taking private property for public use by municipal corporations is in the control of the legislature, subject only to the limitations of the constitution. Whether it be by action of the city officers; or, as was formerly lawful, by a special commission ; or through the courts, the end is reached — the owner is deprived of his property for the use of the municipality. If it be taken for a highway, by similar process as is provided for laying out and opening a public road in a county, the result is a street in a city or borougn, not varying a particle from one laid out and opened by the immediate action of the municipal officers. Nor does it make the slightest difference who pays the damages. That also is controlled by the state. She may pay them herself, or direct that they be paid by the city, borough or county; or by assessments upon property benefited by the improvement.

The Act of April 18th 1873, relating to laying out, opening and grading streets in the city of Lancaster, provided for a complete survey and plan of the city, including the widening of old streets and alterations in their grades, the vacating of public and private ways which may be supplied, and the locating and grades of new streets. The councils of the city appointed the engineer and assistants to do this work, and the plan was made subject to' correction and final adoption by the Court of Quarter Sessions. Before the opening of a new street, laid out on said plan, prescribed proceedings must be had in said court for an order and ascertainment of damages. Can it be seriously pretended that, because of the manner in which the plan was adopted and by which new streets may be opened, the property appropriated for that purpose is not taken by the city ? Whatever the agencies which make the appropriation, they are created by the ■ state and act in behalf of the corporation. The city derives its powers, officers and agents from the Commonwealth. These may be changed. The plan adopted ,in pursuance of the Act of 1873, was for improvement of the city and better regulation of its highways. The procedure directed by that act changed the agency and form of laying out and opening new streets, yet taking property for them is as truly its act as if the immediate agency were the councils.

This case was commenced by petition to the court to direct the opening of Walnut street from Shippen to Plum. The Act of 1873 forbids its opening until the owner or owners of ground through and over which the same may pass shall have been paid the damage which shall have been ascertained.” Viewers were appointed, as the law directs, who performed their duties. From their report Bachler appealed and demanded a jury trial. The court dismissed his appeal pro forma, and that was error. Section 8, article 16, of the Constitution secures an appeal and a trial by jury for damages, wherever private property is taken by a municipal corporation for public use, and the Act of June 13th 1874 furnishes the remedy thus secured to owners, where no sufficient provision for trial by jury already existed. The remarks by Ac-new, C. J., in Pusey’s Appeal, 2 Norris 67, and Williams v. City of Pittsburgh, Id. 71, are so apposite to this case that nothing need be added.

The order of March 29th 1879, dismissing the appeal of Leonard Bachler, is reversed, and the appeal restored; the record to be remitted and procedendo awarded.