author: Mr. Justice Paxhon

text:
    Smith’s Appeal. Ryan’s Estate.
    It. died in June 1850. By his will, executed in February 1848, he devised the residue of his estate to trustees, who were directed to divide and pay one-fourth of the income for life to each of his three living daughters, for their sole and separate use, and after the death of his daughters, in trust to transfer the principal on which such daughter so dying was entitled to receive the income to such persons and for such uses, intents and purposes as she might appoint, and in default of appointment to her child or children, and in default of child, to be continued under the same trust for the use and benefit of the testator’s surviving children. Mary, one of the daughters of R., died in April 1876. By her will, made in March 1876, she gave all her estate, the estate derived from her husband and the estate derived from R., to trustees to pay and divide the income among her sons and daughters for life, without liability for their debts, and upon their deaths to transfer the principal to suclq persons and for such estates as they might by will limit and appoint, and in default of appointment, to the person or persons that would take under them if they had died intestate owning the same. The donees of Mary were all living at the time of the death of R. Held, that the appointment by Mary, under the power contained in her'father’s will, was transgressive of the rule against perpetuities and was wholly void, and that her share of the estate must be distributed under the' clause in her father's will, which provides that for want of a will on the part of Mary her share of said principal sum shall be paid to her children in equal shares or proportions.

      January 28th 1879.
    Before Siiarswood, C. J., Mercuk, Gordon, Paxson, Woodward, Trunkey and Sterrett, JJ.
    Appeal from the Orphans’ Court of Philadelphia county: Of January Term 1878, No. 258.
    This was the appeal of Philip L., Edwin and James M. Smith, from the decree of the court, dismissing the exceptions of the appellants and confirming the report of the auditor appointed to make distribution in the matter of the account of Robert L. Reilly, substituted trustee under the will of Lewis Ryan, deceased.
    The facts and proceedings in the court below will be found in the report of the preceding case of Castner’s Appeal, ante, 478.
    Various questions as to the mode of distribution were raised before the auditor, with which these appellants have no interest, and the auditor filed his report awarding, inter alia, to the trustees under the will of Mrs. Mary V. J. Smith, the balance of income and principal due Mrs. Bmith under the will of her father; also, one-quarter of her sister Martha’s share; and, also, three-eighths of the proceeds from the sale of the house and furniture of Lewis Ryan.
    The principles as to the division and the amounts thus awarded wore not disputed by these appellants, but it was contended by them that the will of Mrs. Smith was inoperative and void, as an execution of the power given in the will of her father, and that the sums awarded to the trustees under her will should have been awarded to her children directly and absolutely. Accordingly exceptions were filed to the report of the auditor, which were dismissed by the Orphans’ Court, and the report confirmed absolutely.
    From this decree this appeal was taken.

      Edward, P. McLaughlin and Edward II. Weil, for appellants.
    - — If the ruling of the auditor be sustained, and the children of Mrs. Bmith do not execute the power of appointment given by her will, then, possibly, the third generation coming after Mr. Ryan can enjoy the principal. If the power of appointment should be executed by them, and they should make a trust similar to that contained in Mrs. Bmith’s will, the fair probabilities are that it will take one hundred and fifty years from the time of Mr. Ryan’s death before the fund can be distributed. Thus the scheme can be kept up and the fund would be perpetually held sacred from touch.
    The appointment by Mrs. Smith was therefore void: Lewis on Perpetuities, ch. 12 ; Williams on Real Property 228, 262; 1 Jarman on Wills 288; Hillyard v. Miller, 10 Barr 334; Davenport v. Harris, 3 Grant 158.

      E. Spencer Miller, for appellees.
   Mr. Justice Paxhon

delivered the opinion of the court, March 8d 1879.

The important question to be decided upon this appeal is, whether the execution by Mrs. Mary Y. J. Smith, of the power of appointment given to her by the will of her father, Lewis Ryan, is transgressive of the rule against perpetuities, and therefore void.

Lewis Ryan died on the 23d of June 1850. By his will, executed on the 2d day of February 1848, he devised the residue of his estate to trustees, who were directed to divide and pay one-fourth of the income for life to each of his three living daughters, for their sole and separate use, “and from and immediately after the death of either of my said daughters, in trust, to píí^jassign and set over, the principal sum on which such daughter s$|jying, was entitled to receive the income or interest, to such person or persons and for such uses, interests and purpos.es, as such daughter by any last will and testament or instrument of writing, in the nature of a last will and testament, notwithstanding her coverture, may direct, limit and appoint to receive the same; and for want of any such last will and testament, then to pay the said principal sum to the child or children of such daughter in equal shares or proportions; but if either of my said daughters shall die without leaving issue, and without any last will or testament, then it is my will and desire, that the share or portion of such daughter shall be continued under the same trusts as are hereinbefore provided for the use and benefit of my surviving children, in equal proportions, in the same manner as is hereinbefore directed as to the residue of my estate.”

Mary Y. J. Smith, one of the daughters of Mr. Ryan, died on the 2d day of April 1876. By her will, dated the 29th of March 1876, she gave all the residue of her estate, which she had derived from her husband, as well as the estate as to which she had a power of appointment under her father’s will, to trustees to pay and divide the 'income among her sons and daughters then living for life, without liability for their debts, “and upon and after their several and respective deaths, to convey, assign and transfer the share of the principal of my residuary estate, producing the income of the one dying, to such person or persons and for such estates as he or she may, by will,-have appointed, and in default of such appointment, to the person or persons that would take under him or her, if ho or she had died intestate owning the same.”

It was a fact conceded in the cause, that Mrs. Smith’s donees were all living at the time of Mr. Ryan’s death.

It was argued for the appellants, that if Mrs. Smith's children should execute the power of appointment given them under her will and should create a similar trust, the result wQuld probably be to tie up the estate of Mr. Ryan and prevent its distribution for a period of one hundred and fifty- years. We have nothing to do at present with what Mrs. Smith’s donees may possibly do hereafter. If' they should make a bad appointment the law will strike it down. Our concern is only with the execution bv Mrs. Smith of the power under the' will of her father.

“ A perfect definition of a perpetuity,” says Chief Justice Gibson, in Hilliard v. Miller, 10 Barr 334, “has not been given, and the nearest approach to it is found in Lewis on Perpetuities, ch. 12, where it is said to be a future limitation, whether executory or by way of remainder and of real or personal property, which is not to vest till after the expiration of, or which will not necessarily vest within the period prescribed by law for the creation of future estates, and which is not destructible by the person, for the time being entitled to theitfbperty subject to the future limitation, except with the coucurreiapof the person interested in the contingent event.” In, analogy to the restriction imposed on the creation of contingent remainders, the law has fixed the limit to the creation of executoiy interests to commence within the period of a life or lives in being, and twenty-one years, allowing for the period of gestation. It matters not how many lives there may be so that the candles are all burning at the same time, for the life of the longest liver is but a single life. “ But every executory estate which might, in any event, transgress this limit, will from its commencement bo absolutely void:” Williams on Real Property 262. When a gift is infected with the vice of its possibly exceeding the prescribed limit, it is at once and altogether void both at law and in equity : Id. 268. Future estates limited upon a life-estate which are not sure to take effect within twenty-one years and the usual fraction, after the determination of the life estate, ai’O void in their creation : Davenport v. Harris, 3 Grant 164. The validity of a devjse is to be tested by possible and not by actual events ; Jarmon on Wills 233.

It remains to apply these well-settled rules to the facts of this case. For this purpose the will of Mr. Ryan and the appointment of Mrs. Smith under it must be regarded as one instrument. The appointment cannot carry the estate beyond the period when bylaw the original testator could have limited it. The obvious test of the validity of the execution of the power is to write that portion of Mrs. Smith’s will into the will of Lewis Ryan. We would then have a gift to Mrs. Smith for life, then to her sons and daughters for life, remainder to their appointees. Under the authorities this would clearly bo a bad gift, for the reason that it includes children bom after the death of Mr. Ryan. It is not a sufficient answer to this to say that in point of fact there were no such after-born children, and that all of Mrs. Smith’s donees were in esse when Mr. Ryan died. There might have been after-born children, and because of this possibility the law strikes down the appointment as being within the rule prohibiting perpetuities. Had the gift been to her sons and daughters eo nomine the case might have been different: Slack v. Dakyns, Law Rep. 15 Eq. 307; Phipson v. Turner, 1 Simons 227. This could have been done by Mr. Ryan in his will, for the parties were all living when he died.

The appointment by Mrs. Smith under the power contained in her father’s will being, for the reasons stated, wholly void, it follows that her share of his estate must be distributed under that clause in his will which provides that for want ofo a last will and testament on the part of either of his daughters, her share of said principal sum shall be paid “ to the child or children of such daughter, in equal shares or proportions.”

The decree, so far as it relates to the share of Mary V. J. Smith, is reversed at the costs of the appellees, and it is ordered that the record be remitted to the Orphans’ Court, with directions to make distribution in accordance with the principles indicated in this opinion.


source: Caselaw Access Project

author: Mr. Justice Trunkey

license: Public Domain

text:
    Maynes versus Atwater.
    1. Upon a motion for a nonsuit the plaintiff is entitled to every inference of fact which the jury might draw from the evidence, the defendant being considered as admitting every fact which the evidence tends to prove.
    2. Retention of possession by a former owner of a chattel sold at sheriff's sale is not an index of fraud, nor does leaving the property with the former owner warrant the inference that the purchaser made an absolute gift or sale of it to him, so as to authorize its seizure again as the property of the debtor.
    3. The meaning of words used in a conversation are for the jury and not for the court.
    January 80th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Woodward, Trunkey and Sterrett, JJ.
    Error to the Court of Common Pleas, No. 4, of Philadelphia county: Of January Term 1878, No. 233.
    This was a feigned issue, wherein Rodger Maynes was plaintiff and Charles Atwater was defendant, to try the right to certain property levied on under an execution obtained by Atwater against one Jones, and which was claimed by Maynes.
    At the trial it appeared from the evidence of the plaintiff that in 1874 Jones obtained contracts from the city of Philadelphia to collect certain garbage, on which contract Maynes was the surety. Jones became involved, and judgments were obtained against him, upon one of which execution issued, and Maynes, to avoid the forfeiture of his bond, bought the judgment and let the sheriff’s sale proceed. At the sale he bought the horses, carts and other property levied on, and left them with Jones, and, as he testified, “ I sold him out, and afterwards gave him the property back; he was to repay me the money; I told him to take them and work them, and if he could make any money to pay me back; no time was fixed for him to repay me; the understanding was that he was to pay me.” Jones was indebted to Maynes in a sum greater than his judgment, and when the levy was made on the execution of Atwatei’, Maynes claimed the property which was still in the possession of Jones. Upon the foregoing evidence the court entered a nonsuit, which the court in banc sustained, when the plaintiff took this writ.

      Harold Q-oodwin, for plaintiff in error.
    The plaintiff never intended to part with the goods. Intention is exclusively for the jury: Hoopes v. Garver, 3 Harris 517 ; Miller v. Shaw, 7 S. & R. 129; Holbert v. Holbert, 21 Mo. 277; Winter v. Norton, 1 Oregon 42. The meaning of words in a conversation is for the jury: Brubaker v. Okeson, 12 Casey 519. A chattel purchased at a sheriff’s sale may be left in the possession of the former owner, and such possession is not index of fraud, nor does it amount to a gift to the donor: Walter v. Gernant, 1 Harris 515. The case should go to the jury if there is evidence from which an inference favorable to the plaintiff may bo drawn : Baker v. Lewis, 9 Casey 301; Bevan v. Insurance Co., 9 W. & S. 187.

      S. W. Pettit, for defendant in error.
   Mr. Justice Trunkey

delivered the opinion of the court, February 10th 1879.

No opinion having been filed in the court below we are not informed of what was deemed a fatal defect in the plaintiff’s case. As it appears we think it ought to have been submitted to the jury.

Upon a motion for nonsuit the rule is, that the plaintiff is entitled to the benefit of every inference of fact which the jury might draw from the evidence, the defendant being considered as admitting every fact which the evidence tends to prove: Smyth v. Craig, 3 W. & S. 14; Bevan v. Insurance Co., 9 Id. 187. Where there is any evidence which would justify an inference of the disputed fact it must go to the jury, but not where there is no evidence to authorize the inference: Howard Express Co. v. Wile, 14 P. F. Smith 201; Railroad Co. v. Heil, 5 W. N. C. 91. The sense of words used in connection with what the parties intended to express by them is exclusively for the jury to determine. The judge may not put a legal interpretation on oral words, and niake it a matter of positive direction. It is the province of the court to expound the meaning of an instrument, but not of words uttered of which there can be no tenor: McFarland v. Newman, 9 Watts 55; Brubaker v. Okeson, 12 Casey 519. It is the province of the jury, who hear and observe the witness, to determine the meaning of what ho says. Only when oral testimony fails to establish a disputed fact can the judge withhold it.

“ Retention of possession by the former owner of a chattel sold at sheriff’s sale, is not an index of fraud, because the sale is not the act of the person retaining, but of the law; and because a judicial sale, being conducted by the sworn officer of the court, shall be deemed fair, till it be proved otherwise:” Myers v. Harvey, 2 P. & W. 478; Craig’s Appeal, 27 P. F. Smith 448. “It is certainly not a fraud to leave property purchased at sheriff’s sale in the possession of the former owner for his use, or even for his consumption. No presumption of fraud arises from retention of possession after a sale, which being made under supervision of the law, cannot be colorable; and permission to use or enjoy the thing bought, is an act of benevolence which does not amount to a gift of it, or revest it in the debtor Walter v. Gernant, 1 Harris 515. The legal presumption that the sale was fair continues until overcome by sufficient proof that it was collusive or fraudulent. Leaving the pi’operty with the former owner is not of itself evidence of collusion, nor does it warrant an inference that the purchaser made an absolute gift, or sale of it to him. In absence of affirmative evidence to the contrary the inference is that such leaving was an act of benevolence. It is by no means uncommon for a friend of a distressed debtor to purchase his goods at judicial sale, with no other object than to aid him and save his family from want. The law does not repel such charity by any presumption of fraud so as to authorize the seizure again of those goods as the property of the debtor. Nor is it reprehensible to lease the goods on bailment advantageous to both debtor and purchaser. When it is alleged that no change in the ownership of goods has taken place, as respects creditors, because of fraud in law, it is well to keep in view some of the distinctions between judicial and private sales.

Maynes became the purchaser of the goods in controversy at a sheriff’s sale, by virtue of executions against Jones. The fairness and validity of that sale are unquestioned. In five months thereafter, Atwater caused them to be seized again, and this issue was formed. Upon the trial, Maynes testified that he is still the owner. Hie cross-examination showed that he had become security for Jones’s performance of a contract for collecting garbage, that Jones owed him and was also indebted to others. He says, “ I bought in a judgment of a man by name of Trego against Jones, to protect myself, and sold him out and bought the things so he could go on and do his work; Trego was going to sell him out.” “After the sale I gave the goods to Jones and told him to take them and use them till he could pay the judgment; Jones has had possession of them ever since.” “Jones has not paid my money on the judgment; no time was fixed for him to repay me; the understanding was that he was to pay me.” By the court, “ You say you gave Jones the things?” “Yes, sir, I sold him out, and afterwards gave him the property back; he was to repay me the money; I told him to take them and work them, and if he could make any money to pay me back.” Re-direct, “I gave the things to Jones to use till he could pay the judgment.” “ When you say you gave them, you mean you let him keep them to use and work with, so as to protect you as his security.” “Yes, sir, that was it.” A large part of his judgment was not satisfied by the sale and he did not pay the sheriff the money bid.

Record evidence show's title to the goods was in Maynes. Where is the evidence that it passed from him ? He had a right to possession whenever he chose to demand it. There was no contract for sale, and no consideration to support a contract for possession and use for any definite time. He said ho gave the goods to Jones, and also said he gave them to him to use, to work with, so he could perform his contract. This was not an absolute gift hut a bailment. It may he well to add that these expressions as to the effect of the plaintiff’s testimony, are in reference to disposition of the motion for nonsuit, when the judge takes the testimony as admitted, with every reasonable inference of fact favorable to the plaintiff. The title vested in Maynes at the sheriff’s sale is not impugned. Unless he had parted with the title, the goods were his, and a jury could not infer, without evidence, that he had sold or given them away. He may he either cultured or illiterate, evasive or candid, hut it was for the jury to determine his credibility as a witness, the meaning of his words and find the facts.

Judgment reversed, and a procedendo awarded.


author: Mr. Justice Paxson

text:
    Appeal of the Lehigh Coal and Navigation Co.
    A bill in equity alleged that A., who was a citizen of Georgia, devised certa,in property in trust, to B., C. and D., or the survivor of them, their executors. administrators or assigns, and that said trustees invested a certain portion of said property in the stock of the L. C. & N. Go. The bill further alleged that said trustees were all dead, and that the complainants, who were citizens of New Jersey, were the executors of the will of the survivor of said trustees, and that by virtue of the will of A. and the laws of Georgia, they were the successors in the trust, and they therefore prayed that the stock should be transferred to them and that they should receive the dividends aeccrued thereon. The answer of the company admitted the facts as set forth, and averred a willingness to transfer the stock; but asked that the cestuis que trustent should he made parties to the bill, and that for greater certainty, copies of the wills and of the letters testamentary to the executors should be filed. The court below without the production of these documents, made a decree directing a transfer of the stock and the payment of the dividends. Held, that this was error; that before such a decree could be made notice to the cestuis que trustent and the production of the papers asked for were necessary.
    January 28th 1879.
    Before Siiarswood, C. J., Mercur, Hort don, Paxson, Woodward, Trunkey and Sterrett, JJ.
    Appeal from the Court of Common Pleas, No. 1, of Philadelphia county: Of July Term 1878, No. 47.
    This was a hill in equity, filed by Bayard Stockton and others, executors of Richard Stockton, who was the surviving trustee under the will of James Potter, against the Lehigh Coal and Navigation Company to compel the transfer of certain stock of the company and the payment of the dividends accrued thereon.
    The bill alleged that:
    1. James Potter, a citizen of the state of Georgia and domiciled therein, by his will dated May 15th 1861, duly proved and remaining of record in the court of ordinary of Chatham county, in said state, did devise and bequeath certain shares or portions of his residuary estate to his brother-in-law, Robert E. Stockton, his nephew, Richard Stockton, and his friend, Dr. William H. Cuyler, and the survivors and survivor of them, their and his executors, administrators and assigns, upon certain trusts therein declared for his children, grandchildren and others, which trusts are still valid, continuing and subsisting trusts under the laws of said state of Georgia.
    2. In the year 1866, said trustees, being all then living, purchased with the funds of said trust estate upon and for the trusts aforesaid, one hundred and sixty-seven shares of the capital stock of the 'Lehigh Coal and Navigation Company, which have been ever since standing in- their names as such trustees, and on which dividends were received by them or the survivors of them, up to and including that declared in May 1867, after which date no dividends were declared by said company on said stock until May 1874.
    8. About the 10th day of October 1866, said Robert E. Stockton died, and subsequently, on the 12th day of November 1869, said William H.' Cuyler died, leaving said Richard Stockton, then domiciled in the state of New Jersey, sole surviving trustee under said will of James Potter, deceased. About the 10th day of April 1876, said Richard Stockton died, leaving a will, which has been duly admitted to probate in the office of the surrogate of Mercer county, New Jersey, in and by which he appointed your orators his executors, and they duly took out letters of administration and entered upon the duties of their said office.
    4. By the laws of the state of Georgia, which was the domicile of the said James Potter, under whose will said trust arose, where a testator in his will expressly provides that in case of the death of a surviving trustee, his executors shall become trustees, such executors of the surviving trustee, though they may be created such executors by a will proved in another state, become and are the legal successors of such deceased trustee, clothed with all the estates and duties of such deceased trustee as fully and in the same manner as if they had been originally named as trustees in the will of the testator.
    ' 5. Your orators are therefore now trustees of said trust created by the will of said James Potter, deceased, as fully and with like effect in every respect as if they had been originally named such trustees, entitled to have said stock of the said defendant company transferred to them, and the dividends since May 1874, paid-to thorn; and they have asked said company to make such transfer and payment. Said company, however, wholly refuse to do either, alleging that your orators "are not such trustees.
    They therefore pray that said defendants may be required to transfer said stock to your orators and pay to them said dividends, and further relief.
    The defendants admitted the allegations contained in the bill but asked that for greater certainty copies of the said wills alluded to therein might be produced; that the parties interested in said trust estate should be made parties to the bill and that the letters testamentary issued to plaintiffs should be produced. They then further averred that “ they are now, and have ever been, willing to transfer the said stock to the proper parties, but they are advised that the plaintiffs are not entitled, by the laws of Pennsylvania, to have the said shares of stock transferred to them as trustees under the will of the said James Potter, and that the defendants cannot lawfully make such a transfer.”
    The court made a decree directing the company to pay the unpaid dividends and transfer the stock to the plaintiffs. The defendants took this appeal assigning this decree for error.

      Charles (ribbons, for appellants.
    The bill fails to disclose the nature of the trust, as well as the names and residences of the parties in interest. Without notice to them, and without their knowledge, the appellants are ordered to transfer their property to strangers, not citizens of Pennsylvania, who appear to have no title to it whatever, and who are not even required to give security. The appellants cannot perform the decree with safety to themselves, because the eestwis que trustent cannot be affected by a proceeding of which they had no notice. The relations of the appellants to the cestui que trustent are clearly defined in Bayard v. The Bank, 2 P. F. Smith 235, and Bohlen’s Estate, 25 Id. 304. They are the trustees of the property and of the title of each owner, and are bound at their peril to permit no transfer without evidence of title.
    The Court of Common Pleas has no jurisdiction. Wapple’s Appeal, 24 P. F. Smith 100, construes first section of the Act of 7th April 1859, Purd. Dig. 1423, pl. 54, which gives to the Orphans’ Court all necessary power in such a case to order and enforce the transfer, and designate the parties to whom it shall be made. Its jurisdiction is exclusive.

      E. Spencer Miller, for appellees.
    We allege the right of a trustee, duly appointed or constituted under the law of the domicile of the settlor, to represent personal property, and rely on his legal title to it in any state of the Union.
    It is not a transfer by the trustee to a stranger that is sought, but merely a vesting of the legal title in the new trustees. Without this income cannot be collected, nor a sale or transfer be made.
   Mr. Justice Paxson

delivered the opinion of the court, March 3d 1879.

This bill, in equity was filed to compel the plaintiffs in error to transfer certain shares of stock standing upon their books in the names of Robert E. Stockton, Richard Stockton and William H. Cuyler, trustees, and also to pay over certain dividends which have accrued upon said stock. All of said trustees were deceased at the time of the filing, of the bill, and this proceeding was commenced by the executors of Richard Stockton, deceased, who was the suryiving trustee. The executors are non-residents, as were also the deceased trustees. It was alleged in the bill that the trust under which the stock was held was created by the will of James'Potter, a citizen of the state of Georgia, and domiciled therein at the time of his death; that by the laws of that state, where a testator in his will expressly provides, that in case of the death of a surviving trustee, his executors shall become trustees, such executors of the surviving trustee, though they may be created such executors by a will proved in another state, become and are the legal successors of such deceased trustee, clothed with all the estates and duties of such deceased trustee as fully and in the same manner as if they had been originally named as trustees in the will of, the testator.

The answer of the defendants admits a portion of the averments of the bill, but they ask that the persons interested in the said trust estate may be made parties and demand the production of the wills of James Potter and Richard Stockton respectively, and of the letters testamentary granted to the executors of said Stockton. The answer further avers the willingness of the defendants to transfer the stock to the proper parties and to submit to such decree as shall seem just and equitable.

Upon the bill and answer as filed, the court below without the production of the documents referred to, made a decree requiring the company to transfer the stock in accordance with the prayer of the bill and also to pay over the dividends remaining due and unpaid. This decree is the subject of the several assignments of error.

It is not alleged that the plaintiffs in error are making any captious objection to the transfer. On the contrary, it is manifest they only desire the right of the complainants to be established with reasonable certainty. This would seem the more necessary from the fact that if a mistake is made they would not be protected by the decree, for the reason that the parties beneficially interested in the stock are not made parties, and would not be bound by any decree made without notice to them. Before the strong arm of a chancellor is put forth to compel the transfer of this stock, we must see that the plaintiffs in error are not exposed to the danger of a suit by the parties in interest.

This record does not furnish satisfactory evidence of the right of the complainants to the transfer. The important papers, oyer of which was asked by the defendants, are not produced. They might have sustained the allegations of the bill. But this decree is too severe and too summary to be based upon conjecture or probabilities. The learned judge of the court below appears to have realized the force of this when he so framed the decree as to order the transfer to be made upon the production of the papers referred to, and their deposit with the defendants, accompanied with affidavits of the deaths of Robert F. Stockton and William H. Cuyler, prior to the death of Richard Stockton. Mere ex parte affidavits would not furnish the evidence upon which a final decree could be made with safety, and the papers when produced might show that the appellees were not entitled to have the transfer made.

We need not discuss the question of jurisdiction. There was no demurrer to the bill, and this point was not seriously pressed upon the argument.

The decree is reversed and the bill dismissed without prejudice ; the costs to be paid by the appellees.


author: Per Curiam.

text:
    Appeal of the Third Reformed Dutch Church.
    Where the members of a church corporation brought a suit for its benefit, though not in its name, against its trustees, it cannot, after it has accepted and enjoyed the benefit of a decree in its favor, say that the proceeding was not prosecuted in its behalf, and bring a suit in its own name to compel an account and allege that it was not bound by such portions of the decree as were unfavorable to it.
    January 30th 1879.
    Before Sharswood, 0. J., Mercur, Gordon, Paxson, Wtoodward, Trunkey and Sterrett, JJ.
    Appeal from the Court of Common Pleas, No. 2, of Philadelphia county: Of January Term 1878, No. 262.
    This was a bill in equity, filed by the Third Reformed Dutch Church, against Henry J. Fox and others, trustees, &c. The bill sets forth that the plaintiff was the owner of certain property, including a lot and church buildings thereon held in trust for members adhering to the church discipline of the Reformed Church in America; that on June 9th 1873, the defendants, duly elected trustees under the charter of the corporation plaintiff, became members of the Em-manual Presbyterian Church, an unincorporated body belonging to the Presbyterian Church, and conducting its services in a different form, and not maintaining the mode of faith and church discipline of the Reformed Church in America; that by so doing they ceased 'to be members and trustees of the corporation plaintiff; that they had refused to surrender plaintiff’s property, retaining it in their possession from June 9th 1873 to November 23d 1876, and misapplied its proceeds to the uses of the Presbyterian Church; that during ‘ said period defendants had collected profits attd pew-rents to the amount of $9000, for no part of which they have accounted; that on February 14th 1874, Daniel S. Jones and others, members of the corporation plaintiff. filed a bill in equity against Rev. Charles Wadsworth for a decree for the surrender of all the plaintiff’s property, in which, on November 21st 1876, the court entered a dfecree in accordance with the prayer of the bill; that an appeal was taken from this decree by plaintiff therein, who alleged that the court erred in not directing an account; that on February 19th 1877 the Supreme Court affirmed the decree of1 the lower court, in obedience to which the defendants surrendei’ed the church property to Jones, the only remaining trustee who had not joined the Presbyterian body; that to that suit the plaintiff was not a party; that the defendants have refused to account for the proceeds of the property; that defendants have severally brought actions at law against the complainants upon three promissory notes, to the amount of’$2800, to which plaintiff has a defence by way of set-off, exceeding their claims, in the rents and profits of the plaintiff misapplied by the defendants. The bill prayed for an account, an injunction to restrain the actions at law, discovery and general relief. The defendants demurred on the ground that the right to an account was res adjudicata in Jones v. Wadsworth; that the bill was multifarious; and that damages from a tort were,not subjects of set-off at law.
    . The court, Hare, P. J., sustained the demurrer in an opinion, saying:
    ■ “ This case comes before us on a demurrer to a bill filed by the Third Reformed Dutch Ohurch against Henry J. Fox and nine others, praying for an account, and that the defendants be restrained by an injunction from pros§euting certain suits which they have brought against the complainant. It appears, that the defendants were,' together with one Daniel S. Jones, trustees of the corporation plaintiff, and held, or were possessed of its personal and real estate, and collected the rents and profits, and that upon a bill filed against them by Jones and others,- as members of the church, they wex-e removed from the trust, and directed to deliver the px-operty in their hands to Jones, as the only remaining trustee; but it also appears that the court refused to order them'to account for the rents and pi-ofits, thus virtually excepting so much of the fund as had been derived from that source from the operation of the decree. The complainant took an appeal from this portion- of th'e decree, but it was confirmed by the court above, and the defendants’ contention is that the question raised by the present bill is res adjudi

      cata, and having been determined by a competent tribunal, cannot be again put at issue.
    “ The complainant’s counsel made an ingenious argument in reply to this defence, which may be ranged under the following heads :
    “ 1st. This proceeding is instituted by the church as a corporation, while the former bill was filed by the church members on its behalf, and as the parties are not the same there can be no estoppel.
    “ 2d. The question was not before the court in the former suit, because the bill did not pray for an account, and when the complainant asked for leave to amend, it was refused.
    “ 3d. Agreeably to Winebrenner v. Colder, 7 Wright 244, the point could not arise under a bill filed by the members of the church as such, nor until it was restored to its normal condition through the reorganization which has since occurred.
    “ 4th. The decree under the first bill is in its litoral acceptation self contradictory, and should receive a liberal interpretation. It cannot be that the court meant to declare that the remaining trustee, Jones, was entitled to receive the property of the corporation, and yet deny him the account which might be requisite to ascertain and enforce the right established by the decree. Conceding that the defendants were not answerable for so much of the rents and profits as they had laid out in good faith for purposes which, though not strictly authorized, were yet cognate to the trust, it would still be their duty to make good whatever sums were wilfully misappropriated, and to pay over any amount that remained unspent.
    “The argument under the first point is manifestly unsound. Judgments not only bind parties but privies, or, in other words, persons who, though not actually before the court,’ are yet in contemplation of law represented by those who appear or have been duly summoned. It is not always easy to apply the rule, but we shall seldom err if we follow this criterion. Could the person whom an adverse decree or judgment is alleged to bind, rely upon it as conclusive if it were in his favor ? Taking this as the test, there can be no doubt here, because the plaintiff concedes, and it is, indeed, part of the ease set forth in the bill, that the defendants are precluded from alleging that the property in their hands could be diverted from the Dutch Reformed Church, or used for the support of any other sect or denomination. It is a rule of common sense as well as of jurisprudence, that no one shall impugn the foundation upon which he builds, and as the corporation plaintiff has the benefit of the decree, so it must accept the burden, and cannot rely on that part which makes for it and reject the rest.
    “ The second ground on which the complainant seeks to escape from the conclusive operation of the decree is also insufficient. In determining whether a question is sufficiently before a court to be a subject of adjudication, we must be guided by the pleadings, and there can be no doubt that a bill asking for the removal of a trustee for mismanagement, and that he be compelled to deliver up the property in his hands, implies a prayer for an account, as a necessary and proper means to attain the end in view; but if this were not so, an account might be clearly decreed under the general prayer for relief, as being, incident to it, and in accordance with the drift and tenor of such a bill. This proposition does not conflict with the complainant’s argument, which is in itself entirely just, that the refusal of a, court to permit a distinct subject of litigation to be introduced by amendment during the course of a suit at law or in equity, is simply what it purports to be, a declaration that the matter will not be considered then and there, and does not preclude the party from resorting to any remedy that would have been; open to him if the amendment had not been proposed and rejected.
    “ The third point made by the complainant cannot be sustained, It is, as we have seen, that the decree, when duly interpreted, is pot that the outgoing trustees shall he exonerated from accounting, but that so much of the fund as was actually expended for the salary of the minister and the' maintenance of divine worship, shall be viewed as money laid out for the use of the congregation. In plain terms this is an allegation that the court committed a mistake in declaring that the defendants were not under an obligation to account, when what it meant, and should have said was, that they might account in a particular way.
    “ If such a mistake had actually been made, it could not be investigated or corrected here, because a court has no power to revise the judgment of a co-ordinate tribunal and set it aside as contrary to the evidence or erroneous in point of law- Interest reipublicce ut sit finis litium, and the rule depends on considerations which concern the parties not less than the community, at large. If the first judgment could be thus subverted, the second might share the same fate, and the unhappy litigants would be enclosed in a vicious circle, from which there would be no escape. No hardship, however great, will justify a departure from this principle; and one who reads the able and well-considered opinion of Judge Allison, will be slow to believe that there is such hardship here, or that he overlooked the obvious point now pressed-with so much earnestness by the complainant. Had it been contended or alleged before him that the defendants held an unexpended balance, or that they had .diverted the funds of the church to their own use, he would, unquestionably have ordered them to account; but it is not less clear that if it was tacitly conceded that the whole fund had been laid out in keeping the church open for the use of the congregation, and supplying them with spiritual food, such a decree might properly be refused on the ground of equitable estoppel indicated in the court .below, and adopted by the Supreme Court when the case came before them on appeal.
    “ The fourth point still remains, and- is not free from difficulty. If, as the case of Winebrenner v. Colder imports, the demand for an account was premature, and rejected on that ground, the church is not precluded from renewing its application. An adjudication does not operate as an estoppel, unless the merits are before the court, and can legally be considered. A judgment at law speaks for itself, and will not be narrowed or enlarged by the reasons given for the decision, but in considering a decree in equity we may look to the opinion of the court fqr an explanation of the extent and operation of the decree. If Judge Allison relied on the ground of estoppel in refusing an account, he also relied on the want of proper parties, and on the authority of Winebrenner v. Colder. On the other hand, the Supreme Court gave as their sole reason that there had been such encouragement and acquiescence as justified a chancellor in refusing to interfere.
    “ The question may be a doubtful one, in view of these considerations ; but I need not pursue the inquiry further, because what has been said renders it plain that we cannot proceed in this case without intruding on ground that has been preoccupied. This might not be enough to justify the dismissal of the bill, if this were the only court open to the church, and it could not knock at any other door; but we think that there is another remedy more in harmony with Winebrenner v. Colder, and the fundamental rules of equity procedure.
    “ The proceedings under the former bill culminated in an order on the defendants to surrender the property which they held to Jones, as the duly authorized representative of the church, and the only party qualified to act on its behalf. It is on that decree that the whole fabric of the bill depends, and if the complainant is entitled to an account, it is as a means of carrying the decree into effect. Moreover, the complainant claims, so far as this litigation is concerned, through Jones, and is subject to all the considerations which would have affected him. Now, agreeably to the argument which has been pressed upon us, and it is the only one on which the complainant can succeed, what the court determined in the original suit was in effect not that the defendants were not under an obligation to account, but that such a decree could not legitimately be made until the existing disorder had been remedied, and then only at the instance of the corporation or of its trustees. Adopting this view of the case, and taking it for granted that the defendants have withheld some portion of the fund to which Jones was entitled under the decree, the proper course for Jones, or for the complainant, coming forward in his stead, obviously is not to have recourse to another tribunal, but to file a supplemental bill in the court which pronounced the judgment, setting forth the order which it had made, the wrong done by the defendants in refusing to obey, and asking for a discovery and account as a means for making the order effectual. As between co-ordinate jurisdictions, that which first attaches is exclusive, and it is not less clear that jurisdiction does not cease on judgment, but extends to all the measures requisite to execute the judgment. Hence, when the object is not to establish a controverted right, but to enforce one that has been adjudicated, the proper tribunal is that which rendered the decree, and other courts should refuse to intervene, unless the circumstances are such that relief cannot be given in the original form. If the rule were not legally imperative, it should still be observed in deference to comity and to prevent the conflict of jurisdiction which might otherwise ensue. It follows that if the complainant is entitled to a remedy, it must be sought elsewhere, and the bill is consequently dismissed, without prejudice to the right to apply to the Court of Common Pleas, No. 1, for the decree which we refuse.”
    From this decree this appeal was taken.

      O. S. Patterson and W. A. Porter, for appellant. —
    The right to account is not res adjudieata, for in Jones v. Wadsworth, the bill was filed by individual members of the church, not as here by the corporation. That bill contained no prayer for an account and leave to amend by adding such a prayer was refused, and the decree there cannot be conclusive as to the plaintiff, even if it was a party to Jones v. Wadsworth. Where a judgment in a former case is relied upon as conclusive, in another it may be shown by evidence aliunde, that the particular point was not adjudicated: Colman’s Appeal, 12 P. F. Smith 252. Here it is shown by the record that the question of account was not raised.

      A. B. Shearer, for appellees.
    The complainants in the former case were members of the Reformed Church, for whom the property was held in trust, and were the corporation. • Those who adhere to the regular organization are the true church: Winebrenner v. Colder, 7 Wright 256; and the plaintiffs in both actions were therefore substantially the same. The effect of a decree cannot be avoided by the substitution of a party differing only in name: Peterson v. Lothrop, 10 Casey 223. A prayer for the removal of a trustee for mismanagement, and for the delivery of the property in his hands, implies a prayer for an account. It is also included in the prayer for general relief.
   The judgment of the Supreme Court was entered March 8d 1879,

Per Curiam.

Without adopting all the reasons assigned by the learned president of the court below, it will be enough to say that the former proceeding in equity relied on as a defence and the present was substantially between the same parties. The present corporation appellants accepted and have enjoyed the benefit of the decree in the first case so far as it-was in their favor, and .they ought not to be allowed now to say that the proceeding was not instituted and prosecuted for their benefit. The complainants representing them in that case demanded an account in the interest of the corporation and it was refused. It was properly placed upon the ground of estoppel, because the whole congregation, including the sole remaining trustee, had acquiesced in the change of the ecclesiastical relations of the church, and it was not alleged then, nor is it alleged now, that a single dollar of the income was appropriated to any other than the legitimate purposes of the worship of God and the preaching of the Gospel. There is no equity in the demand now reiterated on the defendants to discover and account for the funds which it is conceded they received and paid out for the salary of the minister, and the other expenses of maintaining the church. The $9000 in pew-rents was evidently contributed for the very purposes to which it was appropriated.

Decree affirmed, and appeal dismissed at the costs of the appellants.


text:
    In re Sedgeley Avenue.
    1. An award of damages by a road jury, under the provisions of the Act of April 1st 1864, when confirmed by the court is a final judgment, and one for the payment of money, and the liability of the city is absolutely fixed thereby.
    2. The Court of Quarter Sessions, although it has no power to issue the prerogative writ of mandamus has a right to issue an order to enforce such a judgment standing on its recoi’ds.
    3. Review of the legislation in regard to the opening of streets in the city of Philadelphia, and the assessment of damages therefor, by Paxson, J.
    January 30th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Woodward, Trunkey and Sterrett, JJ.
    Certiorari to the Court of Quarter Sessions of Philadelphia comity: Of January Term 1879, No. 50.
    This writ was taken by the City of Philadelphia to the issuing of a writ of mandamus to the treasurer of said city, in favor of John Taylor, to the use of William Slater, for the payment of damages awarded to Taylor in the opening of Sedgeley avenue.
    The proceedings were as follows: The petition of John Taylor, to the use of William Slater, sets forth that the jury appointed to assess the damages to property owners by the opening of Sedgeley avenue, by the report confirmed March 13th 1875, awarded the sum of $800 to two lots of ground marked on the plan annexed to said report in the name of John Taylor; that said Taylor is not and never has been the owner of one of said lots, the title to which was in William Slater ; that said Taylor has not received the $400 damages awarded to said lot, and disclaims any right to take the same, and that said amount remains unpaid by the city; and that petitioner was willing to take said sum as damages as the owner of said lot. The petition then prayed that the $400 awarded by said report to Taylor, with interest from the date of the confirmation of the report, should be paid to petitioner as the owner of the lot. On the 28th of September 1878, Taylor filed, a petition, to the use of Slater, for a writ of mandamus execution. On October 24th 1878, the court granted a rule upon the city to show cause why a mandamus execution should not issue, and on November 2d 1878,. this rule was made absolute. A writ of mandamus execution then issued to Taylor, for the use of Slater, for $400 and interest; when the city took this writ, and assigned this action for error.

      J. Howard G-endell, Assistant City Solicitor, and William Nelson West, City Solicitor, for the city of Philadelphia.
    The power to give judgment is not always accompanied with the power to enforce it by mandamus. It is a prerogative writ, and can only be issued by those courts from' which the common-law writ can issue. The Quarter Sessions can no more issue a writ of mandamus than a justice can. It is a criminal court, and has no general common-law powers. The award of-a road jury is not a judgment, and the proceeding to assess the value of the land to be taken for a street is not a suit. Ah action at law is a proceeding to redress a wrong already suffered. The cause of action must be complete before suit brought. An award is a mere preliminary appraisement of land. Until the land is taken no cause of action accrues to the landowner, whose remedy is by an action of debt: City of Philadelphia v. Miskey, 18 P. F. Smith 49. Road damages cannot be paid by the city until an appropriation is made therefor by city councils : Act of May 13th 1856. Where payment is made by the mere authority of the award of a jury the Act of June 13th 1836 requires the payment to be “out of the county stock Stewart v. County of Philadelphia, 2 Barr 340. The writ improperly requires the treasurer to pay the money: In re Kensington and Oxford Turnpike Co., 35 Leg. Int. 152.

      John J. Snare, Jacob Snare, Jr., and David W. Sellers, contra.

    Prior to the Act of 1864 there were no means to compel the payment of damages in the absence of an appropriation by councils. That act made it the duty of the city to pay immediately upon the confirmation of the report. The legislature did not intend that further proceedings should be necessary to fix the liability of the city. The decree of the court, confirming the report, fixes the liability. The judgment can only be enforced by mandamus. No common-law execution would lie: Monaghan v. Philadelphia, 4 Casey 207 ; Act of April 15th 1834, Purd. Dig. 295, pl. 11. The Court of Quarter Sessions has power to issue this writ to enforce the payment of road damages: Price v. County Commissioners, 1 Wheat. 1; Commonwealth v. Commissioners of City of Philadelphia, 2 Whart. 286; In re Lex or Mica Street, 35 Leg. Int. 182.
   Mr. Justice Paxson

delivered the opinion of the court, March 3d 1879.

This was a proceeding in the court below under the Act of April 1st 1864, Pamph. L. 206, to compel the payment of the damages awarded by the jury for the opening of Sedgeley avenue. The report of the jury was filed May 2d 1874, and exceptions thereto were dismissed and report confirmed March 13th 1875. On October 24th 1878, the court below, upon petition filed, granted a rule to show cause why a writ of mandamus execution should not issue in favor of John Taylor, to the use of William Slater, the damages having been awarded to Taylor by the jury. This rule was made absolute November 2d 1878, and the writ issued the same day, in accordance with the prayer of the petition. The city sued out this writ of certiorari and assigned for error the order awarding the mandatory execution.

I do not understand the objection to be to the form of the remedy. A mandatory writ is the only means known to the law by which a municipal corporation can be compelled to pay a debt or perform a duty. The writ of fieri facias will not lie against such corporations: Monaghan v. The City, 4 Casey 207. If then the payment of road damages cannot be enforced against the city in this form of proceeding, it cannot be compelled at all. It is contended, however, that the Court of Quarter Sessions has not the power to issue such mandatory order, but that suit must be brought upon the award in the Common Pleas and a judgment recovered thereon. If this be so, the result must be the same in the end, as the Common Pleas can only enforce its judgment when recovered against the city in the precise manner in which the Court of Quarter Sessions is now attempting to compel payment. The effect of such a mode of proceeding would be to entail upon the city a considerable amount of additional costs in each award of road damages, and to cause vexatious and unnecessary delay to every property holder whose property has been taken by the city.

It would servo no good purpose and unnecessarily protract this opinion to review all the legislation in regard to the opening of streets and assessment of damages therefor in the city of Philadelphia. Prior to the Act of 21st April 1855, Pamph. L. 266, the payment of street damages was voluntary on the part of the city. The city might not open the street under the old system in force for many years ; it was prohibited from opening a street until actual payment of the damages; and unless the damages were paid within one year, the whole proceedings fell: Act April 3d 1804, 4 Sm. Laws 198. The Act of 1855 authorized councils, whenever they shall deem the public exigency to demand it, to order by ordinance any street upon the public plans of said city to be opened; and if the damages assessed upon such- opening shall not be paid within one year, the property owner may sue the city to recover the same. The said act further provides “ that security shall be given by the city to the owner for the payment of such damages before his ground shall be actually taken.” This act provides, as we have seen, a summary method by which streets upon the public plans of the city may be opened, but requires security to be given as a condition precedent to the actual taking of the land, and if the damages are not paid within a year, the owner may sue therefor. There is no lapse by reason of the non-payment of the damages for a year, as there was under the Act of 1804. Nor could there be a lapse when the city had actually taken the property. The Act of 1864, under which these proceedings were instituted, provides that “ when said award is confirmed by the court, the street shall forthwith be opened by the proper authorities of the city of Philadelphia, and said city shall pay to the respective owners of the property damaged, or their legal reyresentatives, the damages so assessed for said opening.” The third section of said act further provides, that “ when the court has confirmed the award of the jury as aforesaid, the solicitor of the city of Philadelphia shall notify the property owners benefited of the amount assessed against the property of each, and have delivered to them • bills for the sum so assessed ; arid if said assessments are not paid within thirty days after the delivery of the bill, said solicitor shall without delay file a claim in the proper court for the amount thereof, against such property, which claim shall be a lien against the premises assessed, and shall be collected in the same manner as municipal claims are now by law collected.”

It is manifest this act worked a radical change in the road law of the city of Philadelphia. Eor the first time authority is given to open streets without the payment of damages or giving security therefor. The command of the act is that when the award of damages is confirmed by the court “the street shall forthwith be opened.” And it imposes a corresponding duty upon the city, for the succeeding sentence in the same section declares, “ and said city shall pay to the' respective owners of the property damaged, or their legal representatives, the damages so assessed for said opening.” There is another peculiarity in the Act of 1864, viz., the finality of proceedings under it. This does not appear in any of the previous acts. Under them the assessment of damages was more in the nature of an appraisement of the value of the land provided it should be taken. It was optional with the city to take the land, and as a sequence optional with the city to pay. But in proceedings under the Act of 1864, there is a final adjudication of the whole matter The damages are assessed against the city as the party primarily liable to pay them. At the same time the jury are required to assess such sum against the properties benefited as to them shall seem just. These assessments, if’not paid within thirty days, are to be filed by the city solicitor in the proper court, and are made a lien upon the respective properties. Just here it is important to consider the effect of the confirmation of the award under the Act of 1864. On the one hand it is contended that it amounts to a final judgment; on the other, that it is at most a mere ascertainment of the amount of damages, and is not, in any sense, a judgment. It must be conceded that the award when confirmed is final. The rights of all parties then become fixed. The damages are assessed against the city as the party primarily liable to pay them. At the same time the benefits are assessed upon adjacent properties. These assessments, if not paid within thirty days, are to be filed by the city solicitor in the proper court, and become liens against the respective properties. The award possesses every element of finality. It is binding upon all the parties, and cannot be questioned collaterally in any subsequent proceeding. It is true it is not a lien. A. judgment, however, is not necessarily a lien ; it is made so by statute. A judgment is the decision or sentence of the law, given by a court of justice or other competent tribunal as the result of proceedings instituted therein for the redress of an injury: Bouvier Law7 Diet. tit. Judgment. “ The judgment,” says Blackstone (vol. 3, p. 396), though pronounced or awarded by judges, is not their determination or sentence, but the determination or sentence of the law. It is the conclusion that naturally and regularly follows from the premises of law and fact, and depends not therefore on the arbitrary caprice of the judges, but on the settled and invariable principles of justice. The judgment, in short, is the remedy prescribed by law for the redress of injuries, and the suit or action is the vehicle or means of administering it, and the language employed to express the determination of the law is, it is considered — consideratum est per curiam, that the plaintiff do recover his damages, his debt, his possession and the like.” If we apply these familiar principles we have here a suit or proceeding in court, an injury to be redressed; a party complainant and a party defendant; a jury appointed according to law to hear the parties and decide the case upon the evidence; and a court to revise the proceedings, correct all errors and pronounce final judgment. It was contended, however, on the part of the city that there was no party plaintiff in whose favor final judgment can be pronounced; that until the land is actually taken, there is no party injured within the meaning of the law. There would be more force in this suggestion were we considering a case arising under the general road larv of the state or the earlier statutes in regard to the opening of streets in Philadelphia. But the system now in force there. is altogether peculiar. The streets of the city of Philadelphia are laid out in the public plans in advance of being opened, and when such plans are approved by the board of surveyors become binding upon all parties,through whose land such contemplated street passes: Act of 6th June 1871, Pamph. L. 1353. The confirmation of the plan is notice to the property owner that at some future time his land will be taken. In the meantime he cannot sell it to advantage, and if he improve it he does so at his own risk, for he cannot recover compensation for the subsequent loss of his improvements. There 'is, therefore, an inchoate taking of his property ; for many purposes he is deprived of the use of it. When the city commences proceedings for the actual taking of his property, and a jury has been appointed to assess his damages, it cannot be truly said that he is not a party to the proceeding and a party injured.

We are of opinion that the confirmation of the award under the Act of 1864, is a final judgment. Moreover, it is a judgment for the payment of money. If drawn out in form it would be that the party do recover from the city his damages, &c. This is by reason of the present duty of the city to pay contained in the Act of 1864, and which is not to be found in any prior acts, except those relating specially to Eairmount Park.

It is contended, however, that even if a confirmed award under the Act of 1864 is a judgment, there is no power in the Court of Quarter Sessions to issue the writ of mandamus. I concede that the Quarter Sessions cannot issue a mandamus. It never had such power. This writ is a high prerogative writ, and in England issued only out of-the King’s Bench. In this state it issued formerly only out of the Supreme Court in which the powers of the King’s Bench are lodged. The Act of 14th June 1836, Pamph. L. 626, conferred the power upon the Courts of Common Pleas. Under the present Constitution the power to issue it in this court fell with most of our original jurisdiction, except in the single instance of a mandamus to courts of inferior jurisdiction. See art. 5, sect. 3. But the right to issue a mandamus, and the right of a court to enforce its own judgments are entirely different questions. The latter right is inherent in every court, and must be presumed to exist in the absence of any legislative inhibition. The writ issued ■in this case, although called a mandamus for convenience, is not so in point of fact. It was simply an order issued by the court to enforce a judgment standing upon its records. This is nothing new. The payments of road damages have been made upon orders issued in the Quarter Sessions from the foundation of the government. No other court ever had any jurisdiction. Such orders were issued in Price v. The County Commissioners, 1 Whart. 1; Commonwealth v. The Commissioners, 2 Id. 286. In each of those cases the Quarter Sessions issued its order on the county treasurer to pay; the treasurer declined for want of funds, and an application was then made to this court to enforce the order of the court below by mandamus. The mandamus was refused for reasons which do not concern the present contention, but no one doubted the power of the sessions to make the order. Such orders could undoubtedly have been enforced by the court in which they were made but for the reason that, as I have before stated, a confirmed award of a road jury at that time was not a judgment. Had there been a judgment upon which to base the proceeding, I see no reason why the orders in question could not have been enforced by the Quarter Sessions under the Act of 15th of April 1834, Pamph. L. 588, which provides for the enforcing of judgments against counties and townships. The 6th sect, of said act is as follows: “ If the judgment shall be obtained against a county in any action or proceeding, the party entitled to the benefit of such judgment may have execution thereof as follows, and not otherwise, viz.: It shall be lawful for the court in which such judgment shall be obtained, or to which such judgment may be removed by a transcript from a justice of the peace or alderman, to issue thereon a writ commanding the commissioners of the county to cause the amount thereof, with the interest and costs, to be paid to the party entitled to the benefit of such judgment, out of any moneys unappropriated by such county, or if there be no such moneys, out of the first moneys that shall be received for the use of such county, and to enforce obedience to such writ by attachment.” In Monaghan v. The City, supra, it was held that although cities are not expressly named in this act, yet they are clearly within its spirit; that a fieri facias could not be issued against the city, and that the only remedy was the mandatory writ prescribed by the Act of 1834, which must be directed to the city treasurer.

There being, as I have endeavored to show, a final judgment in the court below, is there any sufficient reason why that court may not enforce its judgment under the Act of 1884 ? It is said that to do so would change the nature of the payment; that by the 8th section of the General Road Law of 13th June 1836, Pamph. L. 555, the damages awarded by the jury are required to be paid in county stock. It is very true that Stewart v. The County of Philadelphia, 2 Barr 340, recognised this section of the Act of 1836 as being in force in Philadelphia at that time. It is not in force there now, so far as payment in county stock is concerned. There is now no such stock out of which such payments can be made. It was swept away by consolidation. There is now no county board, as there was prior to 1854, to issue such stocks. The bonds of the old districts were all paid, or taken up by new certificates of the loan of the city of Philadelphia. It is impossible, therefore, to pay road damages in county stock. And even if it were thought desirable to pay road damages in city loan, and the city were authorized to do so, it cannot be pretended that any act of the legislature could compel the property holder to accept such loan in payment. The city’s own promises to pay could not be made a legal tender. Such methods of paying debts are better suited to the financial genius of a Micawber than to the consideration of courts of law. The Act of 1836 did no more than authorize the county to tender county stock in payment of road damages; the claimant had the right to accept or refuse; if he accepted, he took the stock as payment; if he refused, and the city did not within the year pay in money, the proceedings fell. All this is changed. Now the liability of the city is absolutely fixed by the confirmation of the award, and she must pay in money.

It is further said, however, that the landowner must either wait until an appropriation shall be made by councils under the 4th section of the Act of 13th May 1856, Pamph. L. 568, Purd. 1288, pl. 128, or bring his action of debt in the Common Pleas, under the Act of 21st April 1855, Purd. 1287, pl. 124, Pamph. L. 266. .The first objection seems entirely to overlook the plain reason why the legislature, by the Act of 1864, required the city to pay the damages upon the confirmation of the award of the jury. It is a part of our fundamental law that compensation shall be paid or secured before the property of the citizen shall be taken for public use. In view of the unsatisfactory financial condition of some of the municipal corporations of the state, this court has gone far enough, in my judgment, in holding that actual payment or security is not necessary on the part of such corporations to enable them to take private property for public use; that the taxing power in the hands of such bodies is a sufficient security; and that if the legislature provide a remedy by which the person whose property is taken may enforce his rights, it is sufficient: City of Pittsburgh v. Scott, 1 Barr 309; Commissioners v. Wood, 10 Id. 93; Yost’s Report, 5 Harris 524; Keene v. Borough, of Bristol, 2 Casey 46. Where, as by the Act of 1864, authority is given to the city to take the property of the citizen for public use forthwith upon the confirmation of the award, we can understand wrhy the corresponding duty of payment was in the same act imposed upon the city. Nor is there .any reason why the citizen whose property has been taken should be compelled to knock at the doors of councils and ask for an appropriation. They may or may not make such appropriation; or they may unreasonably delay it. His property having been taken, and his right to compensation established by the judgment of a competent tribunal, he is in a position to demand satisfaction, and it does not rest with city councils to deny it, or to delay i-t at their pleasure. Nor is there any sufficient reason why he should be compelled to bring an action of debt in the Common Pleas. To do so, under the Act of 1855, would necessarily involve the delay of a year. It may well be questioned, in view of the constitutional provision above cited, whether the legislature may lawfully restrain the property owner whose land has been taken without payment or actual security, from proceeding at once to obtain satisfaction Aside from this I do not see any well founded reason in public policy why suit should be commenced in the Common Pleas. Such suit would be the merest formality. The award would be conclusive, however unjust it might happen to be. The city could not' defend upon the ground that it was oppressive. The remedy for any wrong to her is in the Quarter Sessions and not elsewhere. There are other reasons why the award can best be enforced in the court in which it was rendered. An award of damages by a road jury is an award to the owner of the land, whoever he may be. Yet such owner is not always entitled to the money. The land taken may be mortgaged or otherwise encumbered. It is the duty of the city solicitor before such award is paid to examine the title of the alleged owner and procure searches against the property. It may, and often does happen that the sum awarded goes in whole or in part to the lien-creditors. The writ in controversy is grant-able in the discretion of the court, and should always, as in the case in hand, go out only after a rule to show cause. This furnishes an opportunity for the court, with the aid of the city solicitor, to examine and dispose of all these delicate questions. It is no answer to this to say that the Quarter Sessions is an inferior tribunal, and that “it is a court for the trial of crimes, and has no general common-law powers.” While it is true that it has not general common-law powers, it is equally true that it has had from the earliest period in this state the exclusive jurisdiction in all matters relating to the opening of roads and streets, and the assessment of damages therefor. Every question connected with this matter has always been committed to its care. The road damages throughout this state have always been paid upon its order. It has always possessed the power to make such orders as may be necessary for the proper disposition of the sum awarded as damages. I notice in this case a petition to impound a portion of the damages awarded to one of the property owners. If the Quarter Sessions has not this power, in what court is it lodged, and by virtue of what Act of Assembly ? I am unable to see the wisdom or the policy of the rule which would require the Quarter Sessions to hand over a portion of its unfinished business to another court for completion.

The case of the City of Philadelphia v. Miskey, 18 P. F. Smith 49, was cited as authority against the right of the court below to issue the order in question. That was a suit upon an award by a jury appointed to assess damages under the Acts of Assembly authorizing land to be taken forFairmount Park. The Act of 14th April 1868, Pamph. L. 1088, which is a supplement to the Fair-mount Park Act, provides in the tenth sect., that “ whenever any report of the said commissioners shall have been confirmed by the court, the valuation made shall be forthwith payable by the city of Philadelphia.” This is substantially the language of the Act of 1864, in regard to the opening of streets, bat the question presented by this record was not before the court in that case, and was not considered. It cannot be regarded as authority for what it does not decide.

In the case in hand there was no question of title. Damages were awarded to John Taylor. A portion of said damages was paid to him upon a prior mandatory writ issued out,of the Quarter Sessions. The present proceeding was had upon the petition of William Slater, setting forth that said damages were awarded for two lots of ground, as to one of which the said Taylor never had title, but the title to which was in the petitioner. As the title of the latter is set out in his petition, is not denied by the city, and is expressly admitted by Taylor, it cannot be said there was any dispute about title, and we must assume the court below was satisfied of the validity of Slater’s claim to the balance of the sum awarded by the jury and not paid over to Taylor.

Since the passage of .the Act of 1864, it has been the practice of the Court of Quarter Sessions to issue like mandatory writs to compel the payment of road damages in the city of Philadelphia. Until recently, I never knew its power to do so denied, or even doubted. This is not conclusive, yet it is not without weight as showing the uniform construction placed upon that act by the learned and experienced judges of that court.

The proceedings are affirmed.

Sharswood, C. J., and Woodward and Trunkey, JJ., dissented.


author: Mr. Justice Mercur

text:
    Lingg & Bro. versus Blummer.
    Where a note is placed in the hands of a note-broker for discount his omission to pay over the proceeds to the maker, cannot aifect the validity of the note, in the hands of the holder, and in a suit by the latter on the note, suoh a defence will not avail unless there is a distinct averment that the plaintiff is not a holder for value.
    January 31st 1879.
    Before Mercur, Gordon, Paxson, Woodward, Trunkey and Sterrett, JJ. Sharswood, C. J., absent.
    Error to the Court of Common Pleas, No. 1, of Philadelphia county: Of July Term 1878, No. 100.
    Assumpsit by Charles E. Blummer against Lingg & Bro., on a promissory note drawn to the order of Joseph E. Stokes, and by him endorsed. One of the defendants filed an affidavit of defence which averred that the note in suit was given by defendants to Elliott, a note-broker, with instructions to sell the same and pay over the proceeds to defendants; that at the time Elliott received said noto Stokes endorsed it for defendant’s accommodation; that Elliott alleged said Stokes was indebted to him, and assumed to hold said note for such indebtedness, and refused to return the same or pay over the proceeds thereof; that defendants never assumed said alleged indebtedness of Stokes to Elliott, aud are in no way liable therefor. The affidavit further averred “ that deponent is informed and believes that plaintiff is not the owner of said note; that plaintiff has informed said Stokes that he did not buy said note with his money, and deponent is informed and believes that suit is brought by plaintiff in his name to prevent defendant from defeating the payment of said note in the hands of said Elliott. All of which he expects to bo able to prove at the trial of the cause.” The court entered judgment for want of a sufficient affidavit of defence, when defendants took this writ and assigned this action for error.

      J. M. Moyer, for plaintiffs in error. —
    The affidavit contained a sufficient averment of an ability to prove the facts set forth: Thompson v. Clark, 6 P. F. Smith 33; Reznor v. Supplee, 31 Id. 180; Black v. Halstead, 3 Wright 64.

      Henry M. .Deahert, for defendant in error.
    All the averments must be construed most favorably for the plaintiff: Black v. Halstead, supra.

    The plaintiff, was certainly entitled to judgment if he bought the note with money belonging to some other person. The affiant has not stated that the note was either obtained by the plaintiff after maturity or without paying a consideration, or that the plaintiff had notice of the equities existing between the endorser and the maker. The extent of the averment is, that he is informed and believes that the suit is brought in the plaintiff’s name to prevent the defendants from defeating payment in the hands of Elliott. All this might be true, and the plaintiff would still be entitled to recover. There is no direct assertion or necessary implication in this language, that the plaintiff is the trustee of Elliott or that defendants are prevented from making any valid defence.
   Mr. Justice Mercur

delivered the opinion of the court February 10th 1879.

This suit was by the endorsee against the makers of a promissory note. Judgment was taken for want of a sufficient affidavit of defence. This is assigned for error. The affidavit avers the note was delivered to a note-broker, with instructions to sell the same and pay over the proceeds thereof to the makers; but after he received it he assumed to hold it under a claim of right and refused to return it or pay over the proceeds to the makers. The strongest averment tending to impeach the note in the hands of the plaintiff below is that the deponent is informed and believes the plaintiff is not the owner of the note, and that he informed the endorser, that he did not buy the same with his money; and “ deponent is informed and believes the suit is brought by said plaintiff in his name to prevent deponent from defeating the payment of the note in the hands of the note-broker.”

Thus the averments do not support the inferences. The former substantially declare the defendant in error did buy the note, and did pay money therefor, yet at some time he declared the money was not his own. Whether he paid his own, or the money of some third person, is unimportant to the makers of the note. It does net affect their equities. This averment is a concession that the note-broker had sold the note, and had received the money therefor. That was the purpose for which it was placed in his hands. His omission to pay over the proceeds to the makers could not affect the validity of the note in the hands of the purchaser. There is no averment of any fact which shows bad faith either in the person whose money paid for the note, or in the defendant in error. Neither one is charged with knowledge affecting the good faith of the purchase. The inference is that from information and belief of the deponent, the suit was brought in the name of the defendant in error to prevent a defence that might have been made to a suit in the name of the note-broker. If, however, as previously averred, the note had been purchased of the note-broker, all this alleged information and belief constituted no defence against a recovery in the hands of a good faith purchaser. Whether the defendant in error sued in his own right or as a trustee for another whose money paid for the note is. a matter in which the makers have no concern. They aver no equities and no defence against any one interested in the purchase or payment. The court committed no error in ordering judgment to be entered. Judgment affirmed.


author: Mi’. Justice Gordon

text:
    Hestonville Passenger Railway Co. versus Connell.
    1. While negligence cannot be imputed to a child of the age of six years and nine months, nevertheless it may be assumed that a child old enough to be trusted to run at large, has discretion enough to avoid ordinary danger, and that persons who have business on the street may reasonably conclude that they are not to provide against possible damages that may result to such child by his own wilful trespass.
    2. Where a child of such an age was injured by a street car, not from any defect in the car, nor any neglect in its management, but from the sudden and unexpected act of the child in attempting to mount the front platform of the car while the-driver who was also conductor was on the rear platform and could not have foreseen or guarded against the act, the railroad company is not. responsible therefor.
    3. Under such circumstances there was' prima facie no negligence in the want of a fender on the front of the car and the absence of the driver from the front platform.

      January 31st 1879.
    Before Mercur, Gordon, Paxson, Woodward, Trunkey and Sterrett, JJ. Sharswood, C. J., absent.
    Error to the Court of Common Pleas, No. 2, of Philadelphia county: Of July Term 1878, No. 147.
    Case by William Connell, by his next friend and father, Patrick W. Connell, against the Ilestonville, Mantua and Fairmount Passenger Railway Co., for damages for injuries to plaintiff, through the alleged negligence of defendants’ servants.
    The facts will be found stated in the opinion of this court.
    At the trial, the defendants submitted the following points, which the court, Mitchell, J., refused:
    1. The jury must, under the evidence, find for the defendants.
    2. There is no sufficient evidence of negligence on the part of the defendants to enable the jury to find a verdict for the plaintiff.
    3. If the jury find that the car was going at an ordinary rate of speed, and that the conductor went to the rear end of the car to put a boy off of the back platform, who was hanging on in a dangerous position, and that while there the plaintiff ran towards the front platform, and in trying to get on fell, there is not sufficient evidence of negligence to entitle the plaintiff to recover.
    In their charge, the court, inter alia, said:
    “ 1 leave it to you to determine, as a question of fact, whether the absence of a fender and driver on the front platform was, under the circumstances, negligence on the part of the defendants.”
    The verdict was for the plaintiff, for ¡$2000.
    The defendants took this writ, and assigned for error the refusal of the foregoing points and the portion of the charge noted.

      Henry Hazlehurst and H. Spencer Miller, for plaintiffs in error.
    —Where the facts as to negligence are undisputed, the question is for the court and not for the jury: Hoag v. Railroad Co., 4 Norris 293. The liability of a carrier for the direct consequence of its negligence to one who is using a highway in common with itself, is entirely different from its liability to a passenger : Railroad Co. v. Goodman, 12 P. F. Smith 330 ; McCully v. Clarke, 4 Wright 407 ; Allen v. Willard, 7 P. F. Smith 374; Railroad Co. v. Heil, 5 W. N. C. 91; Stinson v. City, 42 Maine 248; Stackpole v. Healey, 16 Mass. 33; Waters v. Wing, 9 P. F. Smith 211; Bevans v. United States, 13 Wall. 56.
    Doubtless, a much less degree of vigilance is required of a child, or could be reasonably expected of him, and, perhaps, where his fault merely co-operates with the actual negligence of a defendant to bring about the accident, he may bo considered to a great extent excusable; but the class of cases into which the present one must fall, have decided that where “ his own act directly brings the injury upon him, while the negligence of the defendant is only such as exposes the child to the possibility of injury, he cannot recover:” Sh. & Red. on Neg., § 49. Probably the rule is best stated by saying, that his duty is confined only to an exercise of the most ordinary cate, and even then with reference to his “ ability to foresee and avoid danger:” Railroad Co. v. Hassard, 25 P. F. Smith 377; Burke v. Railroad Co., 49 Barb. 529; Railroad Co. v. Spearen, 11 Wright 302; Hatfield v. Roper, 21 Wend. 620; Brown v. Railroad Co., 58 Maine 384; Skelton v. Railway Co., 2 L. R. C. P. 631; Railroad Co. v. McElwee, 17 P. F. Smith 311; Railroad Co. v. Rowan, 16 Id. 393; Pennsylvania Canal Co. v. Bentley, Id. 30.

      J. Carroll McCaffrey and J. J. Murphy, for defendant in error.
    —A child is responsible only for such a degree of prudence as is consistent with a person of his years: Railway Co. v. Caldwell, 24 P. F. Smith 424; Pennsylvania Railroad Co. v. Kelly, 7 Casey 372; Smith v. O’Connor, 12 Wright 218; Rauch v. Hill, 7 Casey 358; Crissey v. Hestonville Railroad Co., 25 P. F. Smith 86; N. P. Railroad Co. v. Mahoney, 7 Id. 187 ; Philadelphia City Passenger Railroad Co. v. Hassard, 25 Id. 367; Reading Railroad Co. v. Spearen, 11 Wright 300.
    Where the danger was open and exposed on the public highway, and was not guarded as it should have been, by either the presence of a fender or of a driver at the front of the car, it cannot be seriously contended that the plaintiffs in error were managing their car with due care and caution : Railway Co. v. Hassard, supra. Being a trespasser does not defeat the right of recovery: Burge v. Gardiner, 19 Conn. 507.
    This case is ruled by Hydraulic Works Co. v. Orr, 2 Norris 332.
   Mi’. Justice Gordon

delivered the opinion of the court, February 17th 1879.

As we gather from the evidence and from the statements of counsel, on the 3d day of March 1877 at about 11 o’clock, a.'m., as the car of the defendant below, was passing along Lancaster avenue, between Fifty and Fifty-first streets, William Connell, the plaintiff, a child of six years and nine months of age, in attempting to jump or climb upon the forward platform, slipped, fell and received the injury complained of by the ear passing over him. 'This was a ónehorse reversible car, having both platforms unenclosed, as is customary with such vehicles, and was in charge of but'one person, who acted both as driver and conductor. The car was going slowly, and the driver was, at the time of the accident, engaged upon the rear platform and did not observe the child until after it- was hurt. There is, therefore, no doubt that the accident, resulted directly from the plaintiff’s own trespass, and, young as he was, had the damage resulted to the defendant’s property instead of to the plaintiff’s person, he would have been answerable therefor: McGee v. Willing, 31 Leg. Int. 37, per Shakswood, J. True, this rule is not based on any supposed discretionary ability on part of the infant, but rather upon the principle that every one is liable, in a civil suit, for any damage he may occasion though the act producing it may have been unintentional or even accidental. Hence, it is, that though an infant may be responsible for its trespass, yet, ordinarily, negligence cannot be imputed to one so young as the plaintiff, since but little can be predicated of its intelligence or discretion; nevertheless, it may be assumed that a child, old enough to be trusted to run at large, has wit enough to avoid ordinary danger, and so persons who have business on the streets may reasonably conclude that such an one will not voluntarily thrust itself under the feet of his horses or under the wheels of his carriage, a fortiori, may they conclude that they are not to provide against possible damages that may result to the infant from its own wilful trespass ? All this, however, bears only on the inquiry concerning the defendant’s negligence; concurrent negligence in one of the plaintiff’s age being out of the question; hence our investigation is confined to the conduct of the defendants’ employee and the character of the vehicle used, for, upon these, the court below allowed the case to turn. It was left as a question of fact to the jury, whether the want of a .fender on the front platform, and the absence of the driver from the forward part of the car, was, under the circumstances, negligence. Prima facie, there was neglect in neither of these things. The road, designed as it w'as, for the accommodation of suburban parts of the city where the travel is limited, could not have first class appointments ; it must be run cheaply or not at all; hence its cars were drawn by single horses and supervised by single persons, and as they wei-e used without turn-tables, their platforms must of necessity be open.

In all,this there was nothing either unlawful or dangerous. The remaining question is, what misuse was there of these lawful appliances and arrangements, from which a presumption of negligence might be raised ? If, as in the case of the Railway Co. v. Hassard, 25 P. F. Smith 367, improper use had been made of the open platform by permitting the child to leave it whilst the car was in motion, or had it been in the car and had the driver neglected any duty in respect to it, in either case, a question of negligence would have been raised which, properly, could bo determined only by a jury. This, however, is not the question here presented; it is, rather, whether this company was bound to the use of extraordinary care for the sole purpose of preventing injury to trespassing children. It is not a case of mere negligence on the child’s part, as if it had been run over whilst crossing or playing in the street; that would raise a question very different from the one in hand. The accident here complained of could not have happened but by the direct act of the plaintiff in his sudden and improper attemut to board the car, and this when the car was moving slowly and when the driver had no reason to anticipate danger to any one, young or old. Certainly this one-horse street-car, moving quietly along the open avenue, was not in itself an object of such a character as to awaken the slightest alarm or apprehension in the mind of any one, however cautious, and therefore called for no more than ordinary care in its management. It is hence manifest that this accident occurred not because of any defect in the vehicle, nor from the neglect of the person who had charge of it, but from the sudden and unanticipated act of the child itself, which could neither be foreseen nor guarded against, and it is a fact that the thoughtless impulse of a child may bring about an accident for which even a railroad company will not be held liable: Philadelphia and Reading Railroad Co. v. Spearen, 11 Wright 300.

The mistake, in the present case, was in' assuming that the proximate cause of the injury complained of might be found in the structure or management of the car, whereas, as we have shown, the car itself was properly constructed and it was properly used in the ordinary and customary manner, and had the plaintiff not attempted to board it in a rash and unexpected manner no harm would or could have occurred.

This case is, in fact, but a repetition of the one above cited, and the accident was one resulting from childish'indiscretion alone, and for it the defendant is not responsible.

Judgment reversed