author: by Askew, J. Thompson, C. J.

text:
    Biddle et al. versus Noble et al.

    1. An entry upon an unseated tract, whether by an intruder or under the owner for residence or cultivation, makes the tract seated and prevents a sale for taxes.
    2. The cultivation of several acres fixes the denomination of the whole, and charges the person of the cultivator so as to render a sale for taxes illegal.

      8. M. made an improvement on the Allegheny on a warrant of 1100 acres, on which there were other settlers adjoining the improvement. The owner, by articles reciting that M. owned an improvement on which he now resides on the east side of the river, agreed to sell him 200 acres so as not to interfere with claim of any other settler. This did not so define the land as to sever it from the remainder of the tract.
    4. M. could not elect to run his lines where he chose .so .as to make the 200 acres, without notice to his vendor owning the remainder.
    5. M. might lay off his. 200 acres on notice to the owner, but must do it in a reasonable manner.
    6. The consentable lines between* the settlers would not help to designate the tract as they were not recognised by the owner.
    7. In the absence of a line on the ground, the settlers could not assume where it would be so as to work a severance.
    8. Beagle v. Wentz, 5 P. B. Smith, approved.
    March 29th 1871. Before Thompson, C. J., Read, Agnew and Sharswood, JJ. Williams, J., at Nisi Prius.
    Error to the Court of,Common Pleas of Warren county: No. i 147, to January Term 1870.
    This was an action of ejectment, commenced November 9th 1867, by Margaret E. J. Biddle and others against Orange Noble and others, for lot No. 17 of the subdivision of warrant No. 5278, in Limestone township, Warren county.
    The warrant is located on the east side of the Allegheny river, and contains in the whole 1100 acres; it was patented to George Meade, June 14th 1794. No. 5280 is immediately below it (south), on the river. The whole warrant was sold at treasurer’s sale, and his deed acknowledged to John Maybin, December 4th 1822. There were a number of settlements on the Allegheny river. Amongst the rest one of James Middleton — below him Matthew Hunter, about half of which was on 5280 ; above Middleton, was Joshua Richardson, including what was called the Tipton and Co-hell Farms; the Tipton being the west, and bounded on the west and north by the river, which here makes a bend towards the east; the Oohell also being bounded northwardly by the river.
    The annexed draft exhibits the localities, &c.
    On the 11th of April 1826, Maybin, by articles reciting that Middleton owned “ an improvement on which he now resides, which improvement is on the land of Maybin, on the east side of the Allegheny river,” agreed to sell to Middleton “200 acres of said land — to be bounded by the Allegheny river westwardly, and to include the aforesaid improvement, but not to interfere with the improvement claim of any other person on the lands of” Maybin. In 1884, the treasurer of Warren county sold 600 acres assessed as warrant 5278, for taxes of 1832-1833, to Russell and Newman. The plaintiffs are the owners of this title; and claim under it in this suit. There was some evidence of the running of a line on the east side of the Middleton 200 acres before 1832.

      The controversy in this ease was, whether the Middleton improvement had been severed from the remainder of warrant 5278, so as to make the 600 acres unseated, the plaintiffs relying principally upon the agreement of Maybin, and contending that it constituted a severance.
    The case was tried October 28th 1869, before Johnson, P. J.
    The plaintiffs gave in evidence the patent to Meade, the treasurer’s sale as above stated, and the several conveyances of the 600 acres from intermediate holders, one of whom was E. J. Pettibone, and of lot No. 17 to them.
    It was admitted that the title to the whole warrant was in Maybin in 1822, and that he had conveyed his title, at a date not given, to John Bowman; he conveyed to J. B. Johnson, October 14th 1847; Johnson to E. W. De Kantzow, May 18th 1850; Kantzow to W. Davidson, October 1st 1850 ; in the deed the land was described as “being 600 acres of tract No. 5278, called Springfield, that part back of lots formerly sold to some settlers on the river, subject to Pettibone’s possession, taken unjustly.” Also, a deed in September 1858, from the sheriff of Warren county to R. L. Baker and Jacob Plenrici, and from them April 3d 1865, to Davidson. Davidson, on the 9th of August 1867, conveyed to Orange Noble, defendant, under whom the other defendants claim.
    L. D. Richardson, a son of Joshua Richardson, fifty years of age, testified that he was born on the Tipton farm, and that there never had been a time since he knew the Middleton tract that some one did not reside on it, with 10 or 15 acres improvement; Middleton lived on the upper 100 acres of his tract; Joshua Richardson had possession after him; and Rufus Richardson occupied the lower 100 acres next to Hunter, made a large improvement, and lived there till his death in 1863; they had a line which they worked to; James Price came into possession of the upper 100 acres in 1830, built a house, cleared 15 or 20 acres, and lived there till 1837; witness never knew of a line having been run till 1840. Both Joshua and Rufus Richardson claimed under Middleton’s settler-right. After Price took possession there was a line made between him and Rufus, commencing at the river and running back, as near in the middle of the 200 acres as could be; there was a fence on the line which Price and Rufus worked up to. W. Hilands made a survey in 1840. “ In that year I carried chain; started at a red or black oak at the south-west corner of Tipton land, run down to the Hunter land or claim; then we run hack east; can’t tell how far; made a corner back in the woods; saw no old line; thence north, and made another corner; saw no old line or corner; thence west to the river; no old line, or talk of any; ran through an improvement on the river running the last line.” Price had cut timber every year back of the line run in 1840; Rufus also cut back of that line. Middleton also testified that no line, so far as he knew, had ever been run on the back part of his settlement; that a conditional line had been agreed upon between Hunter and him, and that he had cut timber three quarters of a mile back from the river. His father, in 1822, had bought a settler’s right from Thomas Arters, and died shortly afterwards. Witness divided with his brother, and took this place in 1824, and left it in 1827.
    William Connelly, a surveyor, testified that at the request of Mr. MeCalmont, attorney in fact of Maybin, in 1827 he made surveys for some of the settlers; Joshua Richardson, of the Tip-ton and Cohell farms, and Hunter; but did not make any survey for the Middleton settlement.
    Matthew Hunter testified that his father moved on his tract in 1810, and his father and he have lived on it ever since; Connelly ran the lines for him in 1827. The line run between him and Rufus Richardson was recognised as the dividing line, they ran around witness’s tract, commencing at his south-western corner and marked the corners; he was present only at the running of his own- survey; Middleton then owned the 200 acres next above him; the Allegheny river was the boundary of all the settlers on the front; they all went back of their lands, cut timber, and ran it down to the river; he knew of no lines back of his corner on the Middleton tract previously to 1840; the Middleton tract had been settled before 1810. All the settlers on No. 5278 had designated lines and distances between them on the river; there were no improvements on the Middleton tract except on the river.
    James Price testified that the corners of the Middleton tract were marked on the river and the east end; these corners were marked before 1831, when he moved on the land; he and Rufus Richardson understood their back line to be where the corners were marked ; he paid taxes for three years of the land back of him; no line was run whilst he lived there; no line but the one he and Rufus had made; he returned the land back of his to the assessors.
    The defendants gave evidence also of an old line on the south side of the Tipton and Cohell farms; also of a well-defined line of 1840, back of the Middleton tract. They gave evidence by a number of witnesses familiar with land for many years,that they knew of no such line anterior to 1840; and also by a number of ■ surveyors who had made recent examinations and could find no marks of a line there earlier than 1840.
    They gave evidence that the 600 acres were sold in 1866 at treasurer’s sale for taxes to Mrs. Biddle, one of the plaintiffs; that it was redeemed in 1867 by Davidson, and the redemption-money paid to Mi’s. Biddle.

      The plaintiffs in rebuttal gave in evidence the articles o.f April 11th 1826 between Maybin and Middleton. They offered a deed, dated November 7th 1838, from the executors of Maybin to Price and Rufus Richardson, reciting the articles with Middleton, his assignment to Joshua Richardson, his assignment of 100 acres to Price and 100 acres to Rufus Richardson, Maybin’s death without r making a deed, the decree of the Court of Common Pleas of Warren county, authorizing the executors to make a deed to Price and R. Richardson, and conveying the 200 acres to them by metes and bounds, commencing' at Hunter’s corner on the river, thence up the river to a red-oak, thence northwardly by Joshua Richardson, thence southwardly to Hunter’s corner, thence westwardly to the beginning. They also offered the proceedings in the Court of Common Pleas which resulted in the- decree to convey. Roth offers were rejected, and several bills of exception sealed.
    Henry McGee testified that in 1827 Connelly surveyed all around the Middleton tract; the witness helped him as axeman, and blazed the trees; Price was cutting over the line; witness showed him where the line was. Price said he knew it but intended to buy it.
    The plaintiffs gave evidence to show where the east line of the Middleton tract would come, to make 200 acres; viz., a line run south from the south-east corner of the Cohell farm to a point 45 perches east from Hunter’s east corner.
    There was evidence also for plaintiffs, that there might have been a line run through in 1827 without any marks remaining in 1867. There was a line thirty years old through the Middleton tract to its east line.
    The plaintiffs gave in evidence assessment of 1827, 1828— Unseated, James Middleton, 100 acres. No. 5278, Unseated, 1100 acres.
    Matthew Hunter. 200 acres, seated. 1830. No. 5278.
    Joshua Richardson. 300 “ “
    Rufus Richardson. 100 “ “
    Unseated assessments. 500 acres.
    Similar. 1831.
    James Price. 100 acres, seated. 1832.
    Rufus Richardson. 100 “ “
    Joshua Richardson. 200 “ “
    River tracts. 600 “ unseated. 1833. “ “
    Similar. a íi

    prove that from 1834 to 1866, neither the defendants nor those under whom they claim, had ever paid any taxes, and that for .twenty-one years after 1834, plaintiffs and their grantors did pay them, for the purpose of raising the presumption of an abandonment by them and their grantors. Plaintiffs offered to

      Objected to by defendants, objection sustained, and a bill of exceptions sealed.
    The plaintiffs submitted two points which the court declined to answer, as not being in accordance with the rules of court.
    The court in the charge said: — ■
    * * * “ The plaintiffs must recover on the strength of their own title. The defendants having the possession, are entitled to retain it until turned out by a title, not only better than their own, but good against all the world, so far as appears. Let us then examine the objections made to the plaintiffs’ title. As to the question whether this tract No. 5278 was seated or unseated in 1832 and 1833. On that question depends the validity of the plaintiffs’ title. The question is not whether there was at that time 600 acres of it unoccupied or unimproved or even unclaimed by an actual settler. An actual settler or occupant on any part of a tract, however large or however small his improvement, will make the whole tract seated unless the occupancy is by accident or mistake in clearing over the line by one intending to occupy land on another adjoining tract, or. unless the occupant is a mere intruder and has designated his boundaries or the extent of his claim in some significant manner by lines marked on the ground, some natural or known boundary or by the improvements he has made. The question is not whether there was a responsible party living on the land, or personal property to pay the taxes upon a distress, but whether there is either an actual residence or a permanent occupancy for purposes of cultivation upon the land. If there be either, it gives to the entire tract so occupied the character of seated land, and exempts it from assessments and sale as unseated. From the undisputed evidence in this case the improvements previously made by Middleton and others, and occupied by Rufus Richardson and James Price in 1832 and 1833, were undoubtedly sufficient to give, tract No. 5278 the character of seated land.
    “Were this all the question before us, we would say at once the land was seated, and the treasurer’s deed for it of 1834 was void. But it is claimed by the plaintiffs that there had been a severance of the portions they occupied from the balance of the tract so as to designate it a separate and distinct part of the land and exempt it from sale, leaving the balance to be regarded as unseated. A large tract may be so severed in two ways: 1st, by deed with metes and bounds; 2d, by occupancy with designated boundaries. If two men own a tract in severalty, the portion owned by each being described by metes and- bounds, the parts of each may be assessed and sold severally, or either be sold although the other be seated. If one man owns a large tract, he may sell any portion of it by metes and bounds, on which the purchaser may settle and improve, without taking from the balance, unsold, the character of unseated land. Thus those parts of this large tract that were occupied by Matthew Hunter on the south and the Cohell and Tipton farms on the north, were so sold, surveyed and severed from the balance of the tract as to entitle them to be treated as separate tracts, detached from the original survey which was not to be affected by the fact of their being improved. The man who settles on a tract of land and improves with or without claim of right, and claims to own and occupy a given quantity and no more, and designates his claim by a survey or by marks upon the ground, or by fences built or some other visible and notorious way, may so sever the part he occupies from the rest of the tract as to limit the consequences of his improvements to his own piece of the land and leave the balance still liable to be treated as unseated. But a residence and improvements by a mere intruder on any part of a tract, without such designation of boundary or claim, makes the whole tract seated. His occupancy renders him liable to be charged with the taxes of the entire tract. It is not the question whether he has been so charged by the assessing officers or has charged himself by returning the land to the assessor, but whether he is in the occupancy of the tract without defined boundaries.
    “ This brings us to the consideration of the main question in the case. Was there such a severance of the land claimed and occupied by Price and Richardson in 1832 and 1833 as to detach it from the remainder of the tract and leave it unaffected by the improvements they had made ?
    “ The undisputed facts are, that in 1827 the Matthew Hunter lot below, and Cohell and Tipton lots above, had been surveyed from the rest of the tract, leaving a space between of about 194 rods wide on the river. The lines on the other lots running back easterly from the river were nearly parallel, the one on the north being about 180 rods long, and the one on the south about 120. The Middleton improvement was on or near the river between these lines. * * * Middleton took a contract for 200 acres to include his improvements on the river, dated April 11th 1826.
    “ Was there any, and if any a sufficient designation of this 200 acres to sever it from the rest of the track ? No survey was made or lines run at the date of this contract. The improvement it included had been commenced sixteen years before, as the evidence informs us, and appears to have been kept up without interruption. Improvements had also been made and occupied prior to this, perhaps on the other parts of this lot, afterward appropriated to Hunter below and Joshua Richardson above. But independently of them the Middleton improvement had clearly, for many years, made tract No. 5278 a seated tract. Was there such a demarcation of the Middleton 200 acres as to throw out or cut off the balance of the tract and make it unseated ? If so, when and by whom ?

      “ It is alleged on the part of the plaintiffs that there was a survey and the marking of lines around it in the summer of 1827 by William Connelly as surveyor. On this subject you have much evidence. Both parties seemed to have spent their energies and industry mainly on this point.
    “ On the part of the plaintiffs they prove by Henry McGee that a survey was made of the 200 acres claimed by Middleton in the summer of 1827 by an actual survey of the north and east, and 40 to 60 rods of the south lines,” &c. * * *
    The court recapitulated the evidence on* this point.
    “ If McGee is true, and such a survey was made and lines run at the time alleged in 1827, then it would and did work a severance of the seated from the unseated parts of this tract, and subject the balance to assessment and sale as unseated. This would entitle the plaintiffs to recover so far as this question controls the right.
    [“ This brings us to consider the point made by the plaintiffs’ counsel, that the contract made between McCalmont, as agent of Maybin, and Middleton, dated April 11th 1826, the surveys of Hunter below and Joshua Richardson above, and the separate assessments of 100 acres to Price and 100 acres to Rufus Richardson out of this tract in 1832 and 1833, sufficiently severed and designated their portions to leave the balance unseated and subject to sale as such. I have tried hard to persuade myself it would be so, but the weight of authority seems to be the other way.
    - “It is the purpose and policy of the law, whenever possible, to find some party personally responsible for the taxes, and perhaps it was often the purpose of settlers on unimproved lands, as these were, to avoid, as much as possible, the payment of taxes even on lands they occupied. Thus we find this entire tract of 1100 acres on the unseated list as late as 1828, although there had then been settlement and residence on it for nearly twenty years. Yet clearly no sale of it in 1828, or for many years prior to that time, as unseated, would have been valid. It was seated. What, then, had been done prior to 1832 to unseat it ? Middleton took his contract in 1826. Does that work a severance ? A contract of sale, especially if accompanied by a possession taken in pursuance thereof, as well as a deed of conveyance, may work a severance, even without a survey, if descriptive of the land by metes and bounds or by courses and distances. Without that I think it would not have that effect until the lines or boundaries were in some way marked on the ground, or otherwise designated by the mutual act of both parties, or the act of the one who had the authority to do so.
    “ Look at this contract. What does it do ? It is easier to state what it does not do. It does not name the Joshua Richardson nor the Tipton and Cohell farms on the north, nor the Matthew Hunter claim or settlement on the south. Indeed no survey had ever been made for either. It gives no width or starting-point on the river. The tract was bounded about two miles on the river. It did not give the distance east that it should run, or either the direction or course or length of the north and south lines. Nor did it give to the purchaser the right to fix the location or shape of the 200 acres. No tree, stone, post or other mark, either natural or artificial, is given to designate any corner or line intended to bound the 200 acres. If a surveyor had been sent there to survey it with no guide but the contract, could he have run it out so as to say it was per contract ? Certainly not. A deed with such a description would be void for uncertainty.
    “ The subsequent surveys for Hunter on the south and J. Richardson on the north could have no effect to give location or boundaries to this contract. The holder of this Middleton contract was not thereby authorized to take all the land on the river between these two surveys. If so, he might as well have located himself before these surveys were made all along the river, including the improvements of both Hunter and Richardson. This shows the unreasonableness of the theory that the vendee under the Middleton contract had the right to locate the 200 acres and fix its shape and boundaries. The vendor in that case very prudently reserves the right to do that, giving the purchaser no right to direct anything about it, except that it should touch the river and include the small clearing.
    “We cannot therefore say that this contract so sufficiently designated the land by metes and bounds, or courses and distances, as to enable even a surveyor, much less an assessor, to tell what land belonged to the purchaser. The necessary conclusion is, that the contract of or in itself did not effect a severance of the two portions of land, so as to exempt the part not included in the contract from the character of seated land, or the occupant under that contract from his liability to pay the taxes on the whole lot. If then he was so liable by virtue of his occupancy the whole tract was seated and not liable to be sold, and the deed of the treasurer to Russell and Newman was void.”] * * *
    After being out some time the jury came into court and put the question to the court whether the occupants of the improvements on the river could suppose or designate where their back or east line was or would be; to this the court replied that in the absence of any survey or marks upon the ground, or of any deed or contract describing where it was or where it should be, the settlers had no right to say how far back their land run, or their claim extended. The contract under which they claimed in 1832 and 1833 carefully withheld from them the right to locate their own purchase as to its width on the river or its length east and west. The vendor had cautiously reserved that right to himself, and not having yet exercised it, if the evidence for the defence is relied on, the settlers could not designate it by merely supposing or assuming where their east line was or would be, so as to work a severance of their portion from the remainder of the tract.
    May 8th 1871,
    The verdict was for the defendants.
    The plaintiffs removed the record to the Supreme Court by writ of error.
    They assigned for error:—
    The portion of the charge in brackets: — the instruction to the jury when they came in for further instructions, not answering plaintiffs’ points, and rejecting the plaintiffs’ offers of evidence.

      J. B. Qlarh and W. T>. Brown, for plaintiffs in error.
    The intention of an occupant as to the land he intends to seat determines whether it is seated or not: Ellis v. Hall, 7 Harris 292; Schaeffer v. McKabe, 2 Watts 421; Campbell v. Wilson, 1 Id. 503; Wallace v. Scott, 7 W. & S. 249; Miliken v. Benedict, 8 Barr 169. The contract with Middleton, the adoption of the river, and the surveys of Richardson and Hunter for boundaries were sufficient to sever the land for taxes, id cerium est quod cerium reddi potest: Erwin v. Helm, 13 S. & R. 151; Burns v. Sutherland, 7 Barr 103; Clement v. Youngman, 4 Wright 341. No particular mode of severance is necessary : Foster v. McDivit, 5 W. & S. 362; Crum v. Burke, 1 Casey 377. An uncertainty in a grant is remediable by the grantee as a grant is to be construed most favorably for him: Coxe v. Blanden, 1 Watts 533; 2 Bacon’s Abr. 441, Election; 2 Washburn on Real Property 662.

      O. H. Qurtis and B. Brown (with whom was-Stone), for defendants in error.
    The separation by an intruder must be by lines distinctly marked on the ground: Jackson v. Sassaman, 5 Casey 106; Erwin v. Helm, 13 S. & R. 151; Green v. Watson, 10 Casey 332; Ellis v. Hall, 7 Harris 292; Dietrick v. Mason, 7 P. F. Smith 40.
   The opinion of the court was delivered,

by Askew, J.

Nothing is better settled than this — that an entry upon an unseated tract of land by any one, whether as an intruder or under the title of the owner, either for the purchase of residence or for cultivation, makes the tract seated and prevents a sale for taxes: Campbell v. Wilson, 1 Watts 504; Kennedy v. Daily, 6 Id. 269; Wallace v. Scott, 7 W. & S. 247; Mitchell v. Bratton, 5 Id. 451; Wilson v. Watterson, 4 Barr 214. The cultivation of several acres fixes the denomination of the whole, and charges the person of the cultivator so as to render a sale for taxes illegal: Sheaffer v. McCabe, 2 Watts 421; Nash v. Bum, 5 Id. 441.

That the tract known as 5278 was seated before the year 1826 is beyond all dispute. James Middleton had an improvement on the tract for many years before his purchase with no defined boundaries, except that as between him and Hunter and Richardson, also occupants of the tract, they had corners to mark their respective claims on the river side of the tract. It is therefore perfectly clear that the 600 acres sold in 1834 for the taxes of 1832 and 1833 were seated, unless the contract of Maybin with Middleton itself severed the 200 acres sold to Middleton from the remainder of the tract, or the boundaries of the 200 acres were sufficiently defined by actual lines on the ground to sever it at some time before the assessments of 1832 and 1833.

The question of fact, whether the Middleton 200 acres were at any time severed by survey or lines, was most distinctly submitted to the jury by the judge. He says :—

“ Middleton took a contract for 200 acres to include his improvements on the river, dated April 11th 1826. Was there any, and if any, a sufficient designation of these 200 acres to sever it from the rest of the tract ? No survey or lines were run at the date of this contract. The improvement it included had been commenced sixteen years before, as the evidence informs us, and appears to have been kept up without interruption. Improvements had also been made and occupied prior to this, perhaps, on other parts of this lot, afterward appropriated to Hunter below, and Joshua Richardson above. But independently of them, the Middleton improvement had clearly, for many years, made No. 5278 a seated tract. Was there such a demarcation of the Middleton 200 acres as to throw out or cut off the balance of the tract, and make it unseated? If so, when and by whom ?”

Here, then, the question is most distinctly put to the jury, and not restricted to time or person. It is the simple question, Was there a demarcation, in point of fact, at any time or by any person ?

Upon the facts the great controversy was, whether a survey was made by William Connelly in 1827? “Both parties,” says the judge, “seemed to have spent their energies and industry mainly on this part.” Henry McGee was the witness relied on by the plaintiffs to prove a survey. The judge proceeds to discuss the testimony on this point, and then winds up thus:—

“ If Magee is true, and such a survey was made, and lines run at the time alleged in 1827, then it would and did work a severance of the seated from the unseated parts of the tract, and subject the balance to assessment and sale as unseated. This would entitle the plaintiffs to recover so far as this question controls the right.”

Now I do not see how it was possible to submit the question of separation of the 200 acres as a fact more fairly. The jury were left to say whether at any time and by any person the demarcation was in fact made. The verdict is a distinct answer, therefore, that the two hundred acres were never severed by survey or demarcation at any time, by any person.

This left but a single question — Was the agreement of sale by Maybin to Middleton ipso facto a'severance ? It will not do now, after the verdict has answered that no separation in fact was made, at any time or by any person, to run back to the ground, and to claim lines, corners or anything else, as adjunct to or to help out the terms of the agreement. The land was not severed on the ground. Was it severed by the terms of the writing ?

The agreement recites that Middleton owns an improvement on which he now resides on the land of Maybin, and on the east side of the Allegheny river, in Deerfield township, and then proceeds to sell to him 200 acres of said land for the sum of $400, to be paid as thereinafter mentioned ; to be bounded by the Allegheny river westwardly, and to include the said improvement, but not to interfere with the improvement-claim of any other person on the lands of the party of the first part. This is the whole description, and it is clear it defines no land, nor could a surveyor take the agreement and run out the 200 acres according to any terms set forth in the agreement. So cautious was the counsel of the plaintiff in error of this fact, that he fell back upon the right of Middleton himself to make a survey under the contract. But this is an immaterial question, for if we concede his right to lay off his own 200 acres, even without notice to Maybin, the mere right to do so does not separate the 600 acres. Did he exercise his right, did he lay off his own land ? If he did, then there was a severance; if he did not, there was none. The verdict of the jury answers this question. Middleton never exercised his right, and his right concerned only his own land, not the 600 acres. The error of the judge, in construing the contract rights of the parties to it, if there were an error, did not touch the question. But the judge did not wholly err, even on that question. The same point arose in Beegle v. Wentz, 5 P. F. Smith 369, a case where the parties agreed upon a reservation of fifteen acres around a house without defining it. In such a case it was held that the law presumes that it is meant to be laid off in a reasonable shape around the house by the parties, and if one will not do it, the other can, upon notice to him of doing it. So here Middleton could not elect to run his lines where he might choose, and to cut his land off from the remainder, without regard to Maybin’s interests in the remainder. The contract was for their mutual benefit; but if Maybin wrongfully refused to survey it off in a reasonable shape, Middleton could do it on proper notice; but even then ex-ereising his right in a reasonable manner. But this is beside the question, which is, not what Middleton could do, but what he did do; and the verdict answers that he did nothing.

The argument that Middleton would be exposed to pay the taxes of the 600 acres is without force. He was exposed to this before he made his purchase, and when he bought he took his contract as it was, and was perfectly safe in doing so, for he had the money in his own hands to secure himself. He was to pay the $400 purchase-money in five equal annual instalments. I have said that a surveyor could not take the article and make a survey of the 200 acres from its own terms. The Allegheny river was the western boundary, but that boundary was without length or terminal points, from which a measurement, to include the 200 acres, could start. The fact that the settlers had consentable corners does not help, for they were not recognised by Maybin. He fixed no length of line and no corners, arid did not even agree that Middleton’s land should abut that of Eiehardson or that of Hunter. Neither lines nor corners are mentioned in the agreement, and the only condition is that the survey shall not interfere with the improvements of any other person. In making the survey on the contract, it might overrun or fall short of these corners of the settlers. These consentable points on the river will not eke out the agreement which does not recognise them, nor can they make a survey in fact around the whole 200 acres, for they did not extend the full length of the tract eastwardly, and the jury have found that they were never joined together at the east, for they have determined that the survey was incomplete. The 600 acres were therefore severed neither in fact on the ground, nor potentially by the terms of the agreement.

It is argued that the answer of the court to the question of the jury, when they returned into court to ask further instruction, was confused. We do not think so. The question was somewhat confused, but the answer was perfectly clear, and consistent with the previous instruction. The question of the jury was, “ whether the occupants of the improvements on the river could suppose or designate where their back or east line was or would be ?” The question evidently meant to ask of the court, whether the settlers could designate their lines by supposition; that is, by estimating where they would be. But if there be a doubt as to the meaning of the question, there is none as to the answer, and the judge is not responsible for the confused language of the jury. He had before left them to find whether there was a line made at any time and by any person cutting off the 600 acres, and therefore he replied to the question, “that in the absence of any survey or marks on the ground, or of any deed or contract describing where it was, or where it should be, the settlers had no right to say how far back their land ran or their claim extended.” There was no confusion in this. The attention of the jury was recalled to the great question in the cause, the existence in fact of a line on the ground, and then told that if there were none, the settlers could not make one by supposing where it would be. He then repeats his opinion as to Maybin’s right under the contract to define the 200] acres, a matter which we have explained, and shown to be really immaterial to this controversy, in the absence of a survey or line on the ground. He then concludes, “ The vendor had cautiously reserved that right to himself, and not having exercised it, 'if the evidence of the defence is relied on, the settlers could not designate it by merely supposing or assuming where the east line was or would be, so as to work a severance of their portion from the remainder of the tract.” There is no confusion in this. Indeed, it does not admit of a doubt. The substance was, that the jury asked him if the land in the contract could be designated by supposition, or calculation by estimation. He says, No — in the absence of a line on the ground the settlers cannot assume or suppose where it will be. Such a mode of estimation- will work no severance. This was clearly right. Finding no error in the record, the judgment is

Affirmed.

Thompson, C. J.

On the first argument of this case I was much inclined to the views of the learned counsel- for the plaintiffs in error, that it was possible to bring the Middleton contract for 200 acres and improvement within the principle of a complete survey, excepting the closing line; in which case the law, I think, would regard it as closed, and severance complete under the practical maxim, “Id certum est quod certum reddi potest.” But the difficulty in the way of that view was, that there was no survey at all for the Middleton tract, as the jury have found, and no points from and to which such a closing- line might be run, and therefore the principle was not applicable. Subsequent reflection and examination exploded this view, as the learned opinion of my brother Agne^w shows, was to be expected.

Sharswood, J., dissented.


source: Caselaw Access Project

author: by Read, J.

license: Public Domain

text:
    Lowry to the use of McKinney versus McKinney.
    1. Lowry held a judgment against James which was a lien upon two tracts; James sold one to Ballard; John, with a knowledge of the sale, procured a release from Lowry of the other tract, then bought it of James and also bought Lowry’s judgment. Ballard’s tract was thereby discharged from the lien.
    2. James’s creditors were bound to resort to his other property before resorting to that sold to Ballard. Per Johnson, P. J.
    3. Ballard’s land was surety for Lowry’s debt, and upon payment would be entitled to subrogation against the other land. Id.

    4. The lot bought by John, being sufficient to pay the debt, his purchase of the lien extinguished it. Id.

    March 80th 1871. Before Thompson, C. J., Read, Agnew and Sharswood, JJ. Williams, J., at Nisi Prius.
    Error to the Court of Common Pleas of Warren county: Of January Term 1871, No. 338.
    On the 29th of November 1864, L. L. Lowry held a judgment against James McKinney for $412.81; this judgment was a lien on two pieces of land belonging to the defendant, one containing 80 acres and the other 10 acres. On that day the defendant agreed to sell the 10 acre lot to W. W. Ballard. On the 27th of February 1865, Ballard paid $6000, half the purchase-money on the contract, and had it recorded. On the 8th of June Ballard made a deed for the 10 acres to “ The Great National Petroleum Company;” this deed was recorded June 26th. July 11th 1865, the plaintiff issued a scire facias on his judgment, which was served on the defendant, but on neither Ballard nor The Petroleum Company. September 27th, judgment was taken against the defendant for want of an affidavit of defence.
    To September Term 1865, the company having paid $5000 more on the Ballard contract, brought ejectment for the 10 acres. Afterwards Lowry gave to John L. McKinney, the son of the defendant, this paper:—
    “ Warren, Pa., March 20th 1866.
    “John L. McKinney:—
    “ This is to certify that I will release all my claims in the way of judgments against James McKinney, in Warren County Common Pleas, upon a certain piece of land situate in Brokenstraw Township, near Youngsville, now occupied and formerly owned by William McKinney, which you are about to purchase from James McKinney. L. L. Lowry.”
    At and before the date of the paper, John knew that the defendant in the execution had made the agreement with Ballard and that $6000 had been paid upon it. On the 26th of March 1866, the defendant conveyed to John the 80 acre tract, being the one mentioned in the above paper; it was of sufficient value to pay the judgment.
    On the 9th of June 1866, there was a verdict in the ejectment for the Petroleum company, conditional upon the payment of $1088.52; the company paid the money into court. On the 3d of June 1867, Lowry assigned the judgment to John L. McKinney ; afterwards the Petroleum company received a deed for the 10 acres, and the defendant in the ejectment, being also the defendant in the judgment, took the money out of court.
    On the 2d of May 1868, a venditioni issued at the suit of L. L. Lowry, to the use of John L. McKinney, on the above-stated judgment against James McKinney. The 10 acre tract having been levied on and being advertised to be sold under this execution, on the application of the Petroleum company, the court ordered “ the further execution of this writ stayed as to the 10 acres advertised, until the question is determined whether the same is a lien upon and should be collected from the real estate sold by the defendant to the Great National Petroleum Company.” The foregoing facts, it was agreed, should be submitted to the court on case stated, and “ if upon the facts the court are of the opinion that the Great National Petroleum Company are entitled to have the execution on this judgment restrained as to the 10 acres herein named, then the court to make an order perpetually restraining the same; but if not, then the rule to be discharged.” Johnson, P. J., in his opinion, adopted by the Supreme Court, after stating the facts, said:— * * *

      “ These facts present two questions: First, whether the revival of the judgment in 1865, without service of the sci. fa. on the purchasers as terre-tenants, continued the lien of the judgment as to them; and second, whether under the circumstances the 10 acre lot, purchased by Ballard, is still held by the lien of Lowry’s judgment and liable to be sold for its payment even if the service of the sci. fa. would otherwise be sufficient to continue the lien. As all that is material in our view will properly come in under our decision of the last question, we will give our attention exclusively to that.
    “ After James McKinney sold to Ballard these 10 acres, his creditors were bound in equity to exhaust first his other property on which they held liens before resorting to this; the court, on application, would have compelled them so to do. Ballard’s land then sustained the relation of surety to the debt of Lowry and its purchaser, and upon payment of it would be entitled to subrogation to its lien on the debtor’s other land. Of this fact the creditor with knowledge was bound to take notice. He could not, therefore, release any of the primary securities and expect to hold to the secondary. As Ballard had the right to demand that McKinney’s other land should first be sold, the release of the other land by the creditor, discharged his land from the lien by the same rule that the release of the principal discharges the surety. If, therefore, Lowry released his lien on the 83 acres in 1866, with Ballard’s purchase of his 10 acres on record, he discharged the 10 acres from liabilities to sale by depriving Ballard of his security against the lien.
    May 8th 1871,
    “If his letter or certificate to John L. McKinney, dated March 20th 1866, does not amount to a release of the lien, then the 83 acres purchased by John, on the 26th of the same month, is primarily liable to the lien and must be first sold, and it is agreed that it is sufficient to pay the debt. But John having bought both land and judgment, the latter is merged and the debt paid.
    “ John L. McKinney, who now controls the execution, is entitled to no favor the law would not have yielded to Lowry. He had actual as well as constructive knowledge that his father had sold this 10 acre piece to Ballard. With that knowledge he procured the release of the 83 acres he wanted to purchase, from the lien of Lowry’s judgment, with a view probably of throwing it on to Ballard’s lot. This the law will not permit. If he says the Lowry letter is not a release then this judgment is still a lien and that land must pay the debt. But he has since purchased the lien himself, which by operation of law extinguishes it, inasmuch as it is made part of the case stated, that the 83 acres is amply sufficient to pay it.
    “ Judgment is therefore entered upon the case stated for the defendant as represented by the Great National Petroleum Company, and a perpetual injunction granted against the sale of their 10 acres on the above-mentioned judgment, and plaintiff ordered to pay the costs of this case.”
    John L. McKinney removed the record to the Supreme Court, and assigned the above judgment for error.

      W. D. Brown, for plaintiff in error.

      B. Brown, for defendant in error.
   The opinion of the court was delivered,

by Read, J.

The question in this case is so well presented and discussed in the opinion of the court below, that, for the reasons assigned by the learned judge,

The judgment is affirmed.


author: by Thompson, C. J.

text:
    Winch versus James et al.

    1. Arnett, a creditor of James, purchased his land at sheriff’s sale, leaving James much in debt to him; he afterwards sold part of the land at a large advance. He conveyed the remainder to the wife of James, who was insolvent, upon James paying him the balance of his debt after allowing him credit for the advance on the sale. The transaction was a gratuity to the wife and not fraudulent as to creditors.
    2. A creditor after buying his debtor’s property at an open public and bond fide sale may lawfully give it to any member of the debtor’s family.
    3. A deposition in a suit in equity is admissible in a suit at law between the same parties for the same subject-matter.
    March 30eh 1871. Before Thompson, C. J., Read, Agnew and Sharswood, JJ. Williams, J., at Nisi Prins.
    Error to the Court of Common Pleas of Warren county: Of January Term 1871, No. 313.
    This was an action of ejectment brought, June 11th 1869, by H. W. Winch against J. Y. James, Gholson C. James and J. Dennis James for inlots No. 429, 430, and west half of No. 428.
    The case was tried, June 7th 1870, before Vincent, J.
    The plaintiff gave in evidence a judgment in his favor against the defendants, June 25th 1864, for $10,005.58, fi. fa. and levy on land in dispute, sale under venditioni and deed to plaintiff; also writ in the ejectment served on the defendants.
    The defendants gave in evidence judgment, April 11th 1859, C. B. Curtis to the use of Lewis Arnett against same defendants for $6279, fi. fa. and levy, May 26th 1860, on land in dispute, and land sold under venditioni, September l'lth 1863, to Arnett for $2325. Deed Arnett to Polly S. James, March 9th 1864, consideration $2000 for inlot 429, half of 428 and part of 431, except so much as is conveyed to Mary H. James. Deed of same date, Arnett to Mary H. James for the part of inlot 430, not conveyed to Polly S. James. Will of Polly S. James, proved' April 17th 1869, devising her part of the property in dispute to the children of Gholson C. James, “born or to be born.”
    Polly S. James was the wife of J. Y. James, and Mary H. James the wife of J. D. James. Polly when she died was in possession of the premises conveyed to her. Harriet James, wife of Gholson C. James, and mother of the devisees of Polly, has been in possession since. J. D. James and his family occupied the part conveyed to Mary H. James.
    Defendants offered in evidence the deposition of Lewis Arnett, taken by defendants in a suit in Warren county Common Pleas, in equity — J. Y. James and Polly S. James, for the use of Polly S. James, v. H. W. Winch and Robert Allen — it being a contest between same parties relating to same property and involving the same question of title. (See Winch’s Appeal, 11 P. F. Smith 424.)

      After objection, tbe court admitted tbe deposition, so far as it related to the part claimed by Polly S. James, and sealed a bill of exceptions. .
    Arnett in his deposition said that he paid the full amount of the purchase-money to the sheriff, and proceeded: “ I have been repaid the amount of my bid on said lots in this way: I after-wards bought on judgments against the Jameses, the factory property, for about $1200, and afterwards sold the same for about $4200 or $4800, which last sale paid up all the judgments, including those upon which my purchase of the house and lots were applied, less $786.75, as of the 24th day of January 1865. This balance, $786.75, was paid me by check of R. Brown for J. Dennis James, at which time I executed to Polly S. James a deed for the house and lots before mentioned, and delivered the same to J. Dennis James. This deed did not include all the property purchased by me at sheriff’s sale. I at the same time made a deed to Mary H. James for a part of one of the said lots. The balance, $786.75, was paid, and the deed of Polly S. James executed on the 24th day of January 1865.”
    On cross-examination he said:—
    “ At the time I purchased the house and lots for $2325, I considered that their full value. There was no arrangement between me and any of the Jameses, at the time of the sheriff’s sale, in regard to a reconveyance to them. There was no arrangement to’ reconvey the factory property.
    “ [After my purchase of both properties I stated to different parties all I wanted was my pay, and after that if there was anything left I was going to give it to Polly S. James. Before I made the deed to Mrs. James I told J. Dennis James that if he raised the balance of $786.75 I would make Mrs. James a deed of the property. This proposition to make the deed to Mrs. James came from me. I never would have conveyed to any of the male portion of the James family. It was intended entirely as a gift to Mrs. James, and a provision for her alone. I knew at this time that Joseph Y. James, J. Dennis James and Gholson C. James were heavily in debt. The deed I made to Mrs. James, on the 24th day of January, was intended to carry into effect the gift I had in view.”]
    The plaintiff, in rebuttal, gave evidence showing that the defendants were all deeply in debt at the time of these transactions.
    The plaintiff’s points were:—
    1. As the consideration of the conveyance from Arnett to Polly S. James was money paid by J. D. James, when he and J. Y. James, the husband of Polly, were heavily in debt to the plaintiff and others, she holds the title in trust for said J. D. James, so far as his other existing creditors are concerned, and a levy and sale of his interest therein extinguished her title and vested it in the purchaser.

      2. Although a debtor has a right to prefer his creditors in the disposition of his property, in the payment of his debts, he must do it honestly, and not with the intent to hinder, delay or defraud other creditors, and the payment by J. D. James to Arnett of the amount of his claim, under the arrangement that he would convey to Polly S. James and Mary H. James, the mother and the wife of J. D. James, the property in controversy, is a fraud on the plaintiff in this case, and operates as a hindrance and delay to him in the collection of his judgment.
    3. When an insolvent debtor makes a preference among his creditors, in the payment of one to the exclusion of the rest, those creditors must stand upon an equal footing in respect to securities or means in their hands out of which they can make the amount of their claims, and if a debtor pays one creditor who has the means of satisfaction in his hands, and as a consideration of that payment those means are transferred to the mother and wife of the debtor, they are trustees for his creditors, and hold the said means and securities subject to seizure and sale by them.
    4. The payment by J. D. James to Arnett of the amount of his claim against the Jameses, in consideration of the conveyance by Arnett of the property in controversy to Polly S. James and Mary H. James, the mother and the wife of J. D. James, is a fraud upon Winch, a creditor at that time of said J. D. James, to the extent of the payment made by said James, and the transaction operates as a purchase by said James, so far as the plaintiff is concerned, and the property so purchased is liable to be seized and sold on his judgment.
    5. If Arnett agreed to convey the property to Mrs. James in case her son J. D. James would raise the sum of $786.75 and pay him, the same being the balance of the claim against the Jameses, there was a sufficient consideration to render the contract operative and binding upon Arnett to convey when he raised the money.
    6. Arnett having executed the contract he made with J. D. James, by a conveyance of the property to his mother and his wife, no questions can now be raised by the defendants in this case as to whether that contract was nudum pactum or whether Arnett could be compelled specifically to perform that agreement.
    8. The payment by J. D. James to Arnett of the balance due to Arnett, under the agreement that Arnett should convey to Mrs. James, Is a voluntary payment on the part of said James and not compulsory, and the transaction is a purchase by said James from Arnett, when Arnett conveyed the property to Polly S. James and Mary H. James.
    Defendants’ point was:—
    There is nothing in the transaction by which Judge Arnett conveyed the land in dispute to Polly S. and Mary H. James in January 1865, which operated prejudicially on the right of the plaintiff, or gives him occasion to complain of the transaction, and plaintiff can recover no portion of the land.
    May 8th 1871,
    The court answered the plaintiff’s points as follows:—

      “1. We answer this point in the negative, so far as it relates to Polly S. James.

      “2. We answer the first part of this point in the affirmative, the conclusion in the negative.

      “ 3. This is correct as a general proposition, but Judge Arnett does not hold this property as security for payment of the debt due him from the Jameses; it was his absolute property, and we therefore think this point does not apply to the case.
    “ 4. We negative this point so far as relates to Polly S. James: with some doubts we affirm it so far as relates to Mary H. James.

      “5. We answer this in the negative. The payment of the money by J. D. James was not a new consideration to Arnett, and his promise to convey could not have been enforced against him.
    “6. We answer this in the negative, referring to what we have before said as to the extent of Arnett’s obligations to the Jameses.
    “ 8. We answer this in the negative, so far as the rights of Polly S. James are concerned, and in the affirmative as to Mary H. James.”
    The defendant’s point was answered in the affirmative as to Polly S. James, and in the negative as to Mary H. James.
    The verdict was for the plaintiff for that part of land conveyed to Mary H. James, and for the defendant for the remainder.
    The plaintiff took a writ of error, and assigned for error the admission of the deposition in evidence and the answers to the points.

      B. Brown (with whom was W. W. Wilbur), for plaintiff in error.—
    As to the deposition, the parties in each case must be the same, and the same matters must be in issue : Haupt v. Henninger, 1 Wright 140; 1 Stark, on Evidence 238; Peterson v. Lothrop, 10 Casey 223; 1 Greenlf. Evidence, § 535, 553; Saylor v. Hicks, 12 Casey 394. A payment to Arnett of his debt, with a stipulation in consideration of such payment of a benefit out of the- securities in Arnett’s hands for the payment of his debt in the shape of a conveyance of the securities to his wife and mother, is void under the statute of 13 Elizabeth: Grans v. Renshaw, 2 Barr 34; Twyne’s Case, 1 Smith’s Leading Cases 33; Covanhovan v. Hart, 9 Harris 495; 1 Hilliard on Real Estate 307; Conelly v. Walker, 9 Wright 451.

      W. D. Brown, for defendants in error.
   The opinion of the court was delivered,

by Thompson, C. J.

It would have been error on part of the court below to have answered the plaintiff’s 1st point in any other manner than it did, in view of the facts of the case. When the deed for the property in question was made, J. D. James and his father J. Y., and brother Gr. C. James, were still in Judge Arnett’s debt. But as he had made a lucky sale of a portion of the property he had bought in on his executions against them, he proposed to J. D. James, that if he would pay him some $786, an amount necessary to make him whole on the debt due him on his judgments, deducting the advance he had realized on his sale of a portion of the property, he would make a present of what remained to his mother and his wife. James eventually paid the sum in extinguishment of the debt due Arnett, and then the latter made the deed in execution of the proposed gift. Not a cent of the money paid was in consideration of the house and lots. It all went to pay his own debt, and that of his father and brother, due by judgment, and left Arnett free to make the proffered gift or not. No law bound him to do it. It was a simple gratuity to an old neighbor. All this appears in the testimony, and was not contradicted. As none of the money paid entered into the consideration for the house and lot, Mrs. James was therefore not a trustee under the conveyance to her of the property for any one; they were as much hers as if she had bought them with her own money. There is no law forbidding a creditor after buying the property of his debtor at an open public and bond fide sale, and giving him the benefit of it, from presenting it or a portion of it to a member of his family, or any other person he pleases. That was this transaction here, and creditors lost nothing by it. It would' have remained Arnett’s if he had not conveyed it to Mrs. James and her daughter-in-law. This assignment of error is therefore not sustained, and this is the principal matter of the whole controversy.

We see nothing like error in the answers of the court to the other seven points of the plaintiff below, assigned for error, so far at least, as Mrs. Polly S. James’s title is concerned. We will not say anything about the title of Mrs. Mary II. J ames. It is not before us now. We also entirely approve of the answer of the learned judge to the 1st and only point of the defendants. It was undoubtedly the law under the facts in proof. Judge Arnett could lawfully make a present of the property to Mrs. James, if he chose, as he did, when he made the deed to her. She took the same title he held, and Mr. Winch acquired no more right by a sale of it on execution, than if he had seized and sold it after it passed by the sheriff’s sale to Arnett. It is incontrovertibly true, that not a cent of money was paid to Arnett for the conveyance to her. He was under no obligation, as already said, legal or equitable, to make the conveyance, as he had proposed to do.

We are also of opinion, that the deposition of Judge Arnett taken in the case in equity between Mrs. James and her husband of the one part and the plaintiff below, was properly received in this case. The form of the proceeding did not change the principle : Haupt et al. v. Henninger, 1 Wright 138. The special exception to the deposition was to an entirely immaterial matter, and need not be further noticed.

Judgment affirmed.


author: by Sharswood, J.

text:
    The Empire Transportation Co. versus Wallace.
    1. In the absence of special contract, the obligation of a carrier of goods is to transport them by the usual route proposed by him to the public, and to deliver them within a reasonable time.
    2. This, whether by the route of his own carriage or extended to points beyond.
    3. He must use reasonable expedition, but is not bound to use extraordinary exertions or extra expense to surmount obstacles not caused by his own default, but by the weather, or other act of Providence.
    4. The established route of a carrier was by rail to Philadelphia, and by water to Boston. lie was not bound to send goods by rail from Philadelphia when there was an obstruction in the water communication.
    March 30th 1871. Before Thompson, C. J., Read, Agnew and Sharswood, JJ. Williams, J., at Nisi Prius.
    Error to the Court of Common Pleas of Warren county: No. 347, to January Term 1871.
    This was an action of assumpsit, commenced July 24th 1868, by Alexander Wallace against the Empire Transportation Company, for damages on account of the company defendants having failed to deliver a quantity of petroleum according to the contract in three bills of lading, one for 118 barrels, one for 58 barrels and one for 60 barrels. The bills of lading were similar.
    The first was :—
    “ Received, Irvineton, December 19th 1865, of Alex. Wallace 118 barrels, said to contain crude oil, and marked A. Wallace, to be transported to Barney, Spencer & West, at Boston, at $1.35 (freight for this and connecting companies or agents) per 100 pounds, subject to the following conditions and agreement.”
    Amongst the conditions of the bill of lading were these:—

      “2. This merchandise may be carried in box cars, covered skeleton cars, or on open platform cars; if destined beyond Philadelphia, it may be transported by water in vessels, boats, barges or lighters, and if so destined to any point beyond, the same may be intrusted or delivered in the cars of this company, or otherwise to any other railroad or transportation company or agent; and such railroad or transportation company or agent so selected, shall be regarded exclusively as the agent of the owner or consignee, and shall be entitled to the benefit of the conditions and provisions of this, and of such bill of lading as they may deliver therefor; and the Empire Transportation Company shall not be, in any event, responsible for- the negligence or non-performance of any such company or agent, nor shall such company or agent be liable for any loss or injury except upon its or their respective routes, and while such merchandise is in their respective custody.
    “ 3. That the owner or consignee (in consideration of the extremely hazardous nature of such merchandise, which is not covered by any extra charge for transportation) hereby assumes all risk from leakage, evaporation and loss by fire, while in transit, or at depots, or in stations, or on board boats, vessels or lighters, from any cause whatever, and all dangers and delays of railroad and water transportation to point of destination, and in any claim or demand, suit at law or equity, against this company or transportation company or agent, for loss or damage thereby, this bill of lading shall be deemed and taken as a release in full therefor.”
    Barney, one of the consignee firm, testified: “ The crude oil was consigned to our firm of Barney, Spencer & West at Boston aforesaid, to be sold on Mr. Wallace’s account. The bills of lading were received about January 1st, 1866. We did not receive oil from Mr. Wallace in December. Our firm found it at Philadelphia on or about the 25th of January 1866, Mr. Spencer of the firm being sent on to look it up, the oil not coming to hand and we being anxious to get it. At that time we were paying $1 per barrel for freight by steamer from Philadelphia to Boston. We were not receiving any by rail. The time by water was from fifty to sixty hours. I made sales from 43 to 45 cents per gallon, which was the market price; about the 1st of February, when I understand the sale'was made in Philadelphia, the price in Boston was from 35 to 37 cents per gallon. It was a declining market, and commenced about the middle of January, and continued until after the 1st of May.”
    Spencer, another of the firm, testified: “ Oil shipped to our firm from Irvineton, took from fifteen to eighteen days to reach us, which was the usual and ordinary time between the places. I found the oil on the 23d day of January 1866, at Point Breeze, below Philadelphia. I went for the purpose of finding this oil. It was in defendants’ warehouse there. The reason given why the oil had not been forwarded, was that when the oil arrived in Philadelphia the river was closed by ice. It was delivered at the station of the Pennsylvania Railroad Company at West Philadelphia about January 26th — in that vicinity. I received it then because the loss by leakage while waiting for the river to open would be so great. There was direct railroad communication then between Philadelphia and Boston. I sold it in Philadelphia and did not ship it to Boston, because the river was closed, and it would have been very expensive to have it-sent by rail from there. It was sold February 2d. It occupied from two or four weeks by water. We sold oil for plaintiff previously; it came by tbe New York Central Railroad. The rate of freight by the defendants’ line was $1 per barrel in excess of the New York Central Railroad Company’s rates, between December 1865 and January 6th 1866. The oil was stored by the defendants at Point Breeze, and no notice was given to us, so we might go and take care of it.”
    William Gr. Warden, the agent of defendants, testified: “We received, on the 28th and 29th days of December, 1865, 236 barrels of crude petroleum, to be shipped to Barney, Spencer & West, of Boston. Philadelphia being the terminus of the rail route of Empire Bine, defendant, the means of transportation from that point were by water to Boston, and the Empire Line was not carrying oil any further than Philadelphia by this route. I tried to get vessels while the oil was in the .custody of the company, but could not succeed on account of ice in the harbor.”
    The following are points of the defendants with their answers:—
    “4. Under the bill of lading in evidence, defendants had the right to ship the goods by water from Philadelphia, and were not bound, if they found the river frozen over, to incur extra expense to forward them by another route.
    “ Answered in the negative as in our general charge.
    “4. If the jury believe that defendants were prevented or delayed •from carrying the goods, by the river at Philadelphia being frozen, so that it w.as impossible to forward them by water, that being the ordinary route of defendants, plaintiff cannot recover.
    “For answer to this we refer to our general charge.”
    The court (Vincent J.) charged:—
    “ The defendant is a common carrier and therefore liable for the loss of goods in transit by it, not caused by the act of Grocl or the public enemy, unless this common-law liability is restricted or changed by the contract of the parties. The goods mentioned in the bills of lading in evidence were never delivered at Boston, the place of consignment, but wesre in fact received by the consignees in Philadelphia, .and this relieved the defendant of his obligation to deliver them at Boston. In the absence of evidence to the contrary the presumption is that the consignees received the packages of oil in good order and if there was a deficiency from leakage, or evaporation, the defendant is not liable therefor unless caused by gross negligence, of which there-is no evidence.
    [“ By the contract made in regard to these goods the defendants had a right to transport the goods beyond Philadelphia by water, but it did not restrict itself to that mode of transportation. The second clause in the conditions in the contract shows plainly in our opinion that another mode of transportation was contemplated by the company, for it provides that if the goods are delivered to another railroad company it shall become the agent of the owner or consignee, and the defendant was not to be liable for its neglect. The plaintiff then, in our opinion, had a right to suppose that the oil would be delivered in Boston without unnecessary delay, and that if it could not be delivered by water, it would be sent by rail.] [The evidence shows that the defendant never delivered the oil to any other railroad or transportation company but retained it in its own possession, and it is therefore liable for any loss that has accrued to the plaintiff by any undue or unnecessary delay in the transportation of the oil to Boston.] If the river was not frozen up so as to prevent vessels from leaving for some six to eight days after the arrival of the oil at Philadelphia, was it negligence in the defendants not to send it forward ? If it was, the consequent loss to the plaintiff must fall upon the defendant, for in our opinion the defendant was bound to send the oil forward if it could have been sent by water after it arrived at Philadelphia, before the river was closed 'by ice.
    [“ The evidence is that oil could ordinarily be taken from Philadelphia to Boston by water in from fifty to sixty hours, and from Irvineton to Boston in from fifteen to eighteen days. This oil reached Philadelphia in eight or nine days from Irvineton, which left the defendant from seven to ten days to get it to Boston within the ordinary time. It was still in Philadelphia on the 26th of January, and according to all the evidence no effort had been made to send it forward by rail, nor had any notice been given to the consignees that it was delayed by ice in the Delaware.] We cannot so construe the contract in this case as to instruct you that the defendant was not bound to send the oil to Boston until it could send it by water from Philadelphia. Nor are we able to see why the defendant is not liable for any loss the plaintiff has sustained by its neglect because the plaintiff’s consignees received the oil in Philadelphia if, at the time it was so received, a loss had accrued caused by that neglect, and whether a loss had thus accrued from that cause is a question of fact for you. If oil had not fallen in price up to the time this oil ought to have been delivered in Boston, the plaintiff has sustained no damage at the hands of defendant. If it did fall in price before it was delivered to the plaintiff’s consignees, involving a loss to the plaintiff by the neglect of the defendants, it is liable for the loss so sustained by the plaintiff.” * * *
    The verdict was for the plaintiff for $705.10.
    The defendants removed the case to the Supreme Court and assigned for error the answers to points and the part of the charge in brackets.

      J. H. Qlarle, for plaintiffs in error.
    Carriers may limit their liability by their bills of lading: Farnham v. C. & A. R. R., 5 P. E. Smith 59. In the absence of any special contract the obligation of a carrier of goods is to carry them by the usual route professed by him to the public, and to deliver them within a reasonable time: Rédfield on Carriers, §§ 210, 220, 221. If it be his usual course of business to forward goods beyond his route by sailing vessels, he is not liable for not forwarding a particular article by steam-vessels, unless the direction to do so be clear and unambiguous: Id. § 182. And he is not bound to use any extraordinary efforts, or incur extra expense in order to surmount obstacles caused by the act of God, as a fall of snow: Id. § 305.
    May 8th 1871,
    Testimony may be introduced to show the real contract under a bill of lading: The Balt. & P. Steamboat Co. v. Brown, 4 P. F. Smith 77; Angell on Carriers, § 179.

      JR. Brown, for defendant in error.
    Contracts limiting a carrier’s liability are strictly construed: In The Schooner Reeside, 2 Sumner 267; Angell on Carriers, § 226, a; Chouteaux v. Leech & Co., 6 Harris 224. His liability is not measured merely by the terms of the contract, but also by the law applicable to common carriers: Angelí on Carriers, § 226, note a. Parol evidence to vary its terms is not admissible: ■ Id. § 228, note a; B. & P. Steamboat Co. v. Brown, 4 P. F. Smith 77; Peters v. Rylands, 8 Harris 497; Warden v. Greer, 6 Watts 424.
   The opinion of the court was delivered,

by Sharswood, J.

It is well settled elementary law, that in the absence of any special contract the obligation of a carrier of goods is to transport them by the usual route proposed by him to the public, and to deliver them within a reasonable time. This rule applies as well where he confines his undertaking to the route of his own carriage as where he extends it to forward goods to points beyond. He must use reasonable expedition, but is- not bound to extraordinary exertions or to incur extra expense-in order to surmount obstacles not caused by his own default, but by the weather or other act of Providence: Redfield on Carriers, §§ 210, 220, 302, 304, 305.

The contract between the parties in this suit was contained in the bill of lading as it is termed, or receipt for transportation. It did not by any special stipulations vary the extent of the legal obligations resting upon the carriers receiving goods to be transported to Boston, a point beyond their own line. It fully appeared that the established route of the defendants below was by railroad to Philadelphia, and from thence by water to Boston. It is true the transportation company were not absolutely bound to this route beyond Philadelphia. They had the option to send the goods forward, either by water in vessels, boats, barges or lighters, or by any railroad or transportation company or agent. There was certainly nothing in this option to render it incumbent upon the carriers to send the goods by railroad whenever there was any obstruction of the communication by water. There is nothing in it which gave the plaintiff any right to suppose that the goods would be delivered in Boston without any unnecessary delay, and that if they could not be immediately sent on by water, they would be sent by rail. Obstructions by ice in the river are in their nature merely temporary, and of very uncertain duration. They rarely last longer than one or two weeks, and the ice may break up and disappear so as to reopen navigation in twenty-four hours. It had been expressly stipulated that the owner or consignee should assume all risk from dangers and delays of railroad and water transportation to point of destination. The defendants below were not bound to incur the extraordinary expenses of sending the oil on by railroad, because it happened that the Delaware river was so obstructed by ice at or immediately.after the article arrived in Philadelphia as to prevent their obtaining vessels for the purpose. That this expense would have been extraordinary appeared by the testimony of Henry F. Spencer, a witness whose deposition was taken on behalf of the plaintiff below and read by him on the trial, who by the plaintiff’s authority, received the oil at Philadelphia from the hands of the defendants below. He said: “ I sold it in Philadelphia, and did not ship it to Boston, because the river was closed, and it would have been very expensive to have sent it by rail from there.” It was very properly submitted by the learned judge below to the jury, to say as a question of fact, whether there was negligence causing unnecessary delay, in the company not sending the oil forward as soon as possible after its arrival in Philadelphia, if the river was not frozen up so as to prevent vessels from leaving for some six to eight days after that. Had the learned judge rested there it would have been perfectly right, for there certainly was evidence sufficient to justify that submission. But after thus submitting this question, the learned judge went much further, and in effect took the case back from the jury, when in his answers to the points, and in his charge, he instructed them that if the defendants could not for any providential reason beyond their control send on the merchandise by water they were bound to send it by railroad, and that not having done so, they were responsible to the plaintiff for the loss he had sustained by the fall in the market during the delay. In this we think there was error.

Judgment reversed, and venire facias de novo awarded.


text:
    Ehrisman versus Roberts.
    1. The question in the ease was whether a sale of personal property was fraudulent. The court said to the jury: “Believing that fraud in fact and fraud in law are both palpably manifest in the whole transaotion, we direct a. verdict for the plaintiff.” Meld to be error, fraud in fact is for the jury, however plain a case it may be.
    2. All the goods levied on under an execution were appraised at less than $300, and retained by the defendant under the exemption laws; they were exclusively the property of the defendant, who could sell or retain them as he pleased.
    3. The goods were not in any manner subject to seizure as the goods of the defendant or of the purchasers from him.
    March 30th 1871. Before Thompson, C. J., Read, Agnew and Shauswood, JJ. Williams, J., at Nisi Prius.
    Error to the Court of Common Pleas of Lycoming county: No. 228, to January Term 1871.
    This was a feigned issue directed October 8th 1870, between William Roberts, as plaintiff, and Frederick Ehrisman, defendant, to try the right to $650, paid into court under the following circumstances :—
    On the 3d of January 1870, two judgments, one for $600 and one for $100, were entered in the Common Pleas of Lycoming county in favor of Frederick Ehrisman against S. Murray Mitchell, on single bills with- warrants of attorney; and on the same day executions were issued on both judgments; under these executions the sheriff levied on the personal property of Mitchell, consisting of the furniture, liquors, &c., in the “European Hotel” in Williamsport, of which Mitchell had a lease. On the 12th of January, William Roberts entered judgment on a single bill with warrant against Mitchell for $620. The sheriff returned with his levy, an appraisement of the goods seized by him, made at the request of Mitchell and taken by him under the exemption laws. The appraisement amounted to $217.75. On the 15th of January, Mitchell, for the consideration of $250 to be credited on Ehrisman’s judgment, made a bill of sale to Ehrisman of his “ whole right, title and interest in and to the ‘European Hotel,’ situate on Court street, in Williamsport aforesaid, together with all the fixtures, wines, liquors and all material and stock on hand in the said hotel, together with the good-will in the same;” Mitchell still continuing in possession of the hotel and the personal property, but professing to carry on the business there as the agent of Ehrisman.
    On the 19th of March 1870, Ehrisman made a bill of sale to John Casselberry of all his “ right, title and interest in and to the European Hotel, * * * together with all and every of the stock, fixtures and furniture in and about the same, an inventory of which is hereto attached, which is intended to include all the fixtures, &c., mentioned or not in the said list, together with the lease for building, made by John Tallman and William Elliot, for the building in -which the said hotel is kept; for and in consideration of the above sale, the said John Casselberry is to pay the sum of one thousand five hundred dollars in manner following: seventy-five dollars cash, one note of four hundred and twenty-five dollars, payable on the 1st day of April 1870, and one other note payable sixty days from the date hereof for one thousand dollars.”
    Besides the lease, the list accompanying the bill of sale contained articles not contained in the inventory of the goods appraised and taken by Mitchell upder the exemption laws.
    Roberts issued an attachment execution to April Term 1870, on his judgment against Mitchell, with notice to Casselberry as garnishee. On the 3d of September 1870, on the petition of Ehrisman, he was allowed to come in and defend the attachment. Subsequently the money, $650, was paid into court and this feigned issue framed.
    On the trial of the issue there was evidence given by the defendant for the purpose of showing actual fraud between Ehrisman and Mitchell.
    Plaintiff’s point was :—
    That if they find that Mitchell sold the articles of property mentioned in the bill of sale to Ehrisman for the sum of $250, andu that afterwards these same articles of property and other property of the said Mitchell, to wit, the lease of the hotel, the gas fixtures, bar, &c., were sold to John Casselberry for the sum of $1500, the jury is bound to presume in the absence of other evidence that the whole proceeds of the sale to Casselberry belonged to Mitchell except $250.
    The defendant’s points were:—
    1. As the evidence in this case shows that the Act of Assembly, called the $300 law, was claimed by S. M. Mitchell, upon the execution issued against him by Roberts, and also upon fi. fa. issued by Ehrisman, and that the goods were appraised and set apart to him by the sheriff, that a subsequent sale by him of those goods to Ehrisman, even if such a sale was a fraud in law, would nevertheless give to Ehrisman a good title to the property.
    2. Goods claimed and set apart under the $300 law, are the exclusive property of the claimant; they cannot be levied upon by another creditor, and if converted into a new stock, they are still protected by the exemption; the claimant of the goods has a right to keep or dispose of them as he sees fit without regard to the rights of other creditors.
    4. As the evidence in this case shows that the property sold by Mitchell to Ehrisman, and by Ehrisman to Casselberry, was the same that was claimed by Mitchell under the $300 law upon the fi. fa. issued by Roberts, the said Roberts is estopped from claim.ing any part of the proceeds of said sale.

      The court in the charge referred to many of the facts and proceeded:— * * *
    [“ Mitchell introduced Ehrisman to the employees at the hotel as their ‘ new boss,’ and said he had nothing further to do with it. But Mr. Ehrisman exercised no acts of ownership upon the premises nor over the property, and the employees had no other intercourse or acquaintance with him than the introduction; he left the next day and was not there afterwards. The employees continued under their engagements previously existing with Mitchell; paid over to Mitchell the proceeds of the bar as before; Mitchell remained in charge of the business. No change of name, sign, persons in charge or manner of conducting the business took place. Nothing indicated any change of ownership, save only the declarations of Mr. Mitchell. There is no evidence that any account of the proceeds of the hotel was ever rendered to Mr. Ehrisman, or to his agent, Mr. Wood.]
    “ Mr. Wood says he did not think that he was authorized to make a sale without consulting with Mr. Mitchell, that he was offered $1100, but Mitchell thought that was not enough for property which he had formally sold but a few weeks previous for $250. On the 17th of March a sale was made to John Casselberry for $1500, all to be paid within sixty days. The schedule of property sold to Casselberry includes many articles not contained in the appraisement schedule, such as eighty gallons of wine, &c. * * * And it appears from the evidence that the lease and good-will of the establishment passed by the sale to Casselberry. We have no other evidence of the value of these articles than the inference to be drawn from the relative valuations placed upon the two schedules. The appraisement schedule was valued at $217.75. The schedule to Casselberry at $1500. $111 of this purchase-money has been appropriated to the payment of a debt of Mitchell by the order of Ehrisman, and only $143 of it ever paid to Ehrisman. $650 of that purchase-money constitutes the fund in court, brought in upon an attachment execution issued by Roberts in his judgment.
    [“ Several points have been submitted to the' court by the counsel for each of the parties to this issue, which we propose to answer substantially, by directing you to render a verdict for the plaintiff for the amount of his judgment against S. M. Mitchell, believing that fraud in fact and fraud in law are both palpably manifest in this whole transaction.]
    “We therefore instruct you that the so-called sale by Mitchell to Ehrisman, his father-in-law, purporting to include not only the ■ articles appraised to him under the Exemption Law, amounting to $217.95, but also all the articles afterwards sold to Casselberry, the aggregate value of which was $1500, was fraudulent and void as against creditors of Mitchell, for want of that change of possession required by law.”
    May 8th 1871,
    The verdict was for the plaintiff (Roberts) for $633.41.
    The defendant took a writ of error, and assigned the parts of the charge in brackets for error.

      H. Q. Parsons, for plaintiff in error,
    cited Hanley v. O’Donald, 6 Casey 261; Bechtel’s Appeal, 2 Grant 375; Forsyth v. Matthews, 2 Harris 103; Chase v. Ralston, 6 Casey 542.

      P. P. Allen, for defendant in error,
    cited Milne v. Henry, 4 Wright 352; Hilliard on Sales 130, § 16; Brawn v. Keller, 7 Wright 104; Steelwagon v. Jeffries and Wife, 8 Id. 407 ; Dewart v. Clement, 12 Id. 418 ; Billingsley v. White, 9 P. F. Smith 464.
   The opinion of the court was delivered,

by Read, J.

This judgment must be reversed, the court having directed the jury to render a verdict for the plaintiff, “ believing that fraud in fact and fraud in law are both palpably manifest in the whole transaction.” Fraud in fact was a question for the jury, and the court had no power to take it away from them and to decide it themselves, however plain a case it might be.

The plaintiff had two judgments against his son-in-law, S. M. Mitchell, entered on the 3d January 1870, for $600 and $100, and William Roberts also held a judgment against him for $620, entered 12th January 1870. Fi.' fas. were issued on all these judgments, and the defendant claimed the benefit of the Exemption Law, and the whole property levied upon was regularly appraised at $217.75, and of course left in the defendant’s possession.

So far as regarded the appraised articles, they were in relation to these three judgments the exclusive property of Mitchell who could sell or retain them as he thought proper. If sold, Roberts could neither follow the goods or the proceeds. The error, therefore, in the court was in not separating the goods not appraised from those which were exempted and appraised, and which were not in any manner subject to seizure as the goods of the defendant or of the purchasers from him.

Judgment reversed, and venire de novo awarded.


text:
    Davidson Township’s Appeal. Commonwealth versus Gower.
    1. The Court of Quarter Sessions may inquire in a summary way into the fact of insanity of a pauper and use their discretion in sending him, if unsafe to be at large, to the State Lunatic Asylum, or to be confined elsewhere as they may believe his case to be curable or not.
    2. A pauper was before the court on a surety of the peace; the court being of opinion that he was insane and unsafe to be at large, ordered him to be confined in the county jail until otherwise ordered, and directed the overseers of the proper township to pay the costs of the proceeding and the support, of the pauper. Held, to be correct.
    March 30th 1871. Before Thompson, C. J., Read, Agnew and Si-iarswood, JJ. Williams, J., at Nisi Prius.
    Appeal from the decree of the Court of Quarter Sessions of Lycoming county: No. 361, to January Term 1871.
    Andrew Gower was bound over to the Court of Quarter Sessions for surety of the peace. The court made this order in the case:—
    “ And now, August 20th 1867, on hearing, the court are of opinion that it is unsafe the defendant should be permitted to be at large, owing to his being insane. It is therefore ordered that the said defendant be confined in the jail of the county until otherwise ordered, and that a rule be granted on the Overseers of Davidson township, Sullivan county,, to show cause why said township should not pay the costs of this proceeding, and the support of said defendant.”
    The rule was made absolute January 14th 1868.
    The following proceedings were had in the Court of Quarter Sessions of Lycoming county:—
    “ September 10th 1869, on motion of II. H. Cummin, attorney for Lycoming county, court grant rule on Overseers of the Poor of Davidson township, Sullivan county, to show cause why attachment should not issue against them for contempt, in not paying the costs in the above-stated case, and the support of said Andrew Gower, defendant, now confined in the jail of Lycoming county, as they were ordered and directed by the court February 14th 1868. * * * February 5th 1870, bill for support of defendant, amounting to $504.70, being presented to the court for approval by 'H. H. Cummin, attorney for commissioners of Lycoming county, the court after examination approved the same. ”
    The Overseers of Davidson township appealed, and assigned for error:—
    1. Granting “ a rule upon the Overseers of the Poor of Davidson township, Sullivan county, to show cause why said township should not pay the costs of this proceeding, and the support of said defendant.”

      May 8th 1871,
    2. Making said rule upon the Overseers of the Poor of Davidson township absolute.
    3. Approving the bill rendered against Davidson township for the support of defendant, Andrew Grower.
    The proceedings were by virtue of the following Acts of Assembiy: — ■
    1. An Act to establish, &e., “ The Pennsylvania State Lunatic Hospital and Union Asylum for the Insane,” approved 14th April 1845, Pamph L. 441; section 14 of which provides:—
    “ That if any person shall apply to any court of record within this Commonwealth, having jurisdiction of offences which are punishable by imprisonment for the term of ninety days or longer for the commitment to said asylum any insane person -within the county in which such court has jurisdiction, it shall be the duty of said court to inquire into the fact of insanity in the manner provided by law; and if such court shall be satisfied that such person is by reason of insanity unsafe to be at large, or is suffering any unnecessary duress or hardship, such court shall, on the application aforesaid, commit such insane person to said asylum.” t 2. Act of April 8th 1861, Pamph. L. 1861, p. 248.

      “ Sect. 1. That when application shall be made under the 14th section of the Act of 14th April 1845, to which this is supplementary, to any court of this Commonwealth for the commitment of any person to the Pennsylvania State Lunatic Hospital, it shall be lawful for such court either to inquire into the fact of insanity in a summary way, after giving the notice required by law to the alleged, lunatic and his or her friends or kindred, or by awarding an inquest at the option of the court; and in all cases it shall be lawful for the several courts of this Commonwealth to use their discretion in sending insane persons who are unsafe to be at large to said hospital, or cause them to be confined elsewhere, as the said courts shall believe the case to be curable or otherwise.”

      B. S. Bentley, Jr., and Bentley, for appellant,
    referred to Act of March 31st 1860 (Criminal Procedure), §§ 68, 69, 70, Pamph. L. 445, Purd. 262, pi. 68-70.

      B. B. Oummin, for Lycoming county, appellee,
    cited Broom’s Maxims 637; Shenango v. Wayne, 10 Casey 184; Lower Augusta v. Northumberland Co., 1 Wright 145; Franklin v. Penna. St. Lunatic Asylum, 6 Casey 522.
   The opinion of the court was delivered,

by Read, J.

The several poor districts of the state are liable for the support, maintenance and keeping of their insane paupers ; Jacob Wertz v. Blair County, 16 P. F. Smith 18; and on application made, the Courts of Quarter Sessions may inquire into the facts of insanity in a summary way, and may use their discretion in sending insane persons who are unsafe to be at large to the Pennsylvania State Lunatic Hospital, or cause them to he confined elsewhere, as the said courts shall believe the case to be curable or otherwise.

Andrew Gower, on the 20th August 1867, on a hearing before the Court of Quarter Sessions of Lycoming county, the court being of opinion that it was unsafe for him to be at large, owing to his being insane, was ordered to be confined in the jail of the county, until otherwise ordered, and a rule was granted on the Overseers of Davidson township, Sullivan county, to show cause why said township should not pay the costs of the proceeding, and the support of said defendant, which rule was made absolute on the 14th February 1868. The hearing had been on a commitment by a justice of the peace for threatening to kill all white men.

An attachment for contempt in not obeying the order of the court was issued and served on the Overseers of Davidson township. The bill for his support amounting to $504.70 was approved by the court.

The insanity was proved to the satisfaction of the court, and that it was unsafe for him to be at large; that he was a pauper, and that his settlement was in Davidson township, which was undoubtedly liable for his support. In this the court was right.

We see no error in the proceedings, therefore decree affirmed, and appeal dismissed at the costs of the appellants.