text:
    The Green and Coates Streets Passenger Railway Co., versus Moore and Rich.
    1. An action on an award, although on a parol submission, is not within the Statute of Limitations.

      2. A railway company accepted a charter on the condition that they should purchase at the option of the owners, the horses, &c., of an omnibus line, at a price to be assessed by appraisers. Held, that the valuation of the appraisers was not an award.
    3. The owners having the option to sell, which they did, and the company to purchase which they did by accepting the charter, a contract was made between them.
    4. An action on this contract was not on a specialty.
    5. A specialty is an instrument under seal.
    6. That the price was to be ascertained in a mode prescribed by the charter, did not alter the nature of the contract.
    7. Where parties agree to buy and sell at a sum to be fixed by appraisement, the cause of action is on the contract, not on the appraisement.
    8. The Statute of Limitations is a good plea to such appraisement.
    9. The appraisers need not decide on evidence heard in the presence of the parties, they would be expected to decide on their own knowledge, but may seek information elsewhere.
    10. An award is the judgment of a tribunal selected by the parties to determine matters actually in a variance between them.
    11. Bach count of a declaration is in law, the statement of a separate and distinct cause of action.
    12. Pleas though put in to the whole of a declaration, are to be applied' severally to each count.
    13. An appraisement was made by two of three appraisers: — under proceedings in equity to restrain the company from exercising their franchise before paying the appraisement, the court ordered the company (amongst other things) forthwith to enter an amicable action at law to try the legal and binding effect of the finding. Held, this was not an issue of fact sent by a chancellor to a jury to inform his conscience, but a remission of the plaintiffs to a court of law, to decide contested facts and also to establish the legal and binding effect of the finding in all respects.
    14. In the trial at law the defendants pleaded the Statute of Limitations, which was decided in their favor, on the ground that the finding was not an award but an appraisement casting the right of action on the assumpsit arising from the purchase of the horses, &c. Held, that this was a judgment on the effect of the appraisement wad final in the action.
    16. On a bill in equity to enforce the payment of the appraisement, it was held that the plaintiffs were concluded by the judgment of the law court.

      January 12th. 1870.
    Before Thompson, C. J., Read and Sharswood, JJ. Agnew, J., at Nisi Prius.
    Certificate from Nisi Prius: No. 418, to January Term 1867.
    This was an action of debt in which a summons issued, February 27th 1867, at the suit of Daniel T. Moore and Burrows P. Rich, against The Green and Coates Streets Passenger Railway Company. The declaration contained three counts—
    1. That the plaintiffs owned the horses, coaches and other stock of an omnibus line on Green and Coates streets, Philadelphia, and the defendants were created a corporation to construct a railroad along Green and Coates streets, with the privilege to use those streets “ after the purchase at the option of the owners, of the stock * * * used thereupon, at a price to be assessed by three persons chosen pursuant to the charter of the defendants.” The plaintiffs averred “ that being the owners of the stock as aforesaid, and exercising the option granted to them by the charter of said defendants, of which they had notice, persons were chosen conformably to the directions of the Act of April 21st 1858 to assess the price thereof, and that said persons, on the 23d day of November 1858, did appraise the same at the sum of $24,797.20, notice whereof was had by said defendants; and the said plaintiffs say that said defendants did thereafter use the streets as aforesaid, and thereby became liable to pay to the said plaintiffs said price assessed as aforesaid for the said stock.” Wherefore an action accrued to said 'plaintiffs to recover from the defendants the sum of $24,797.20, with interest, &c.
    2. That the defendants accepted a certain franchise to carry passengers for hire on and along Green and Coates streets, with the condition precedent that, before commencing to use the said streets, they should purchase, at the option of the owners, the stock of horses, &c., at a price to be assessed by one disinterested person chosen by the owners, one by the defendants, and one by the two thus chosen, who together should be disinterested persons, and should appraise such stock. The plaintiffs averred that the defendants commenced their road on the 5th day of September 1858, and at said time there were used upon said streets by the plaintiffs as owners, ninety-two horses, &c.; and that the three disinterested persons did appraise said stock at the value of $24,797.20, of which defendants had notice. The plaintiffs averred - that the value assessed as aforesaid was final and binding on plaintiffs and defendants; wherefore an action accrued to plaintiffs to recover from the defendants the sum of $24,797.20, with interest.
    3. That before the entering of the decree hereinafter mentioned, the defendants became a corporation as above mentioned, and were required, before commencing the construction of their road, to purchase, at the option of the plaintiffs, the stock of their omnibus line at a price to be ascertained by appraisement as above mentioned. The plaintiffs gave notice to the defendants of their option that the defendants should purchase the same before commencing to use said streets; the defendants commenced to use said streets before the purchase as aforesaid, whereby the said statute was disobeyed, &c., and the plaintiffs to secure obedience thereto exhibited their bill in the Court of Common Pleas, Philadelphia, against the said defendants, who filed an answer thereto ; that the stock was appraised at $24,797.20, and the appraisement reduced to writing. The plaintiffs afterwards brought a supplemental bill, the defendants filed an answer, and a decree was entered as follows: — “ And now, May 5th 1859, it appearing to the court from the bills and answers, and it being admitted by the answer filed that the defendants are liable to pay for the stock, &c., at such valuation and appraisement as shall be made by virtue of the Act of Assembly; and it also appearing to the court that such appraisement or valuation has been filed and made part of the supplemental bill, the court did order that the appraisement or valuation as above of $24,797.20 be held as valid, binding and conclusive on the parties hereto.” Wherefore an action accrued to the plaintiffs to receive from the defendants the amount of said decree, with interest from the date that the same was entered, &c.
    The defendants pleaded “ml debent, payment, &c.,” and the Statute of Limitations.
    The plaintiffs replied to the 1st and 2d pleas and demurred to the 3d.
    The case was tried, December 21st 1868, before Mr. Justice Agnew.
    On the trial the following matters appeared:—
    On the 15th of September 1858, the plaintiffs filed a bill in the Court of Common Pleas, setting forth that the defendants were proceeding to construct their road without having the stock of the plaintiffs appraised, &e. The prayer of the bill was to restrain the defendants from taking any steps to construct their railway before having the stock appraised and purchasing it, &c.
    On the 1st September 1858 the defendants notified the plaintiffs that they were ready to purchase the stock and appoint an appraiser.
    On the 23d of October 1858 the Court of Common Pleas awarded an injunction restraining the defendants from proceeding to take up the streets, lay the rails, &c., until the further order of the court: Provided, however, that the defendants have liberty so far to complete the said road on Green street down as far as Third street, so as to render the same passable, and of no inconvenience to travelling over the same street; but no other or further work to be done by them on either of the said streets.
    John J. Kersey was appointed appraiser on the part of the plaintiffs, John Jacobs on the part of the defendants; Abel Lu-kens was selected by the other appraisers as the third. All the appraisers met and consulted together. Kersey and- Lukens, on the 23d of November 1858, made an appraisement in writing, valuing the stock at $24,797.20. John Jacobs appraised the property at $11,674.80. On the 6th of January 1859, the plaintiff filed, in their equity suit, a supplemental bill, setting forth the appraisement of Kersey and Lukens; that the "defendants refused to purchase the stock, &c., and pay the appraised value, &c. They therefore prayed for such further relief as the circumstances might require, &c.
    The defendants answered that the appraisers had not agreed on any appraisement; that the appraisement of two only was of no validity; that the appraisers did not value the stock at its cash or market value, but added a supposed value of what it would be worth if there had been no railway on Green and Coates streets.
    The defendants demurred to the bill because the plaintiffs had an adequate remedy at law.
    On the 5th of March the court decreed “ that the appraisement of $24,797.20 be held as valid, binding and conclusive on the parties hereto, and that the demurrer to the complainants’ supplemental bill, as to so much thereof as prays a decree to enforce payment of said amount by respondent, be sustained.”
    On the 24th of March 1859, an Act of Assembly was passed authorizing the District Court to appoint three appraisers, where appraisers theretofore appointed had failed to agree; and declaring that the decision of a majority of such appraisers when approved by the District Court should b'e final, and that after the appointment of appraisers by the District Court, any court which had granted an injunction against a passenger railway company, in consequence of appraisers failing to agree, might dissolve the injunction.
    The District Court, on the 11th of April, appointed three appraisers.
    On the 16th of April, the counsel with the company moved that the injunction theretofore granted be dissolved.
    The appraisers of the District Court reported, on the 9 th of May, that they had appraised the stock at $12,079. On the 13th of May, “ on motion of the counsel for the company, the court granted a rule to show cause why the same should not be approved.”
    “ On motion of W. W. Juvenal, Esq., the court grant leave to defendants to file exceptions to the award of appraisers filed. Time to expire May 28th 1859.” It did not appear that any further proceedings were had in the District Court.
    On the 23d of May the Court of Common Pleas decreed: “ That the special injunction heretofore granted be dissolved upon the following terms," viz.: That the defendants do pay to the plaintiffs the sum of $24,797.20, the amount of the award, without prejudice to the right of the defendants to contest the same, as hereinafter stated, upon the complainants giving to defendants satisfactory security upon real estate in this county, to be approved by this court, to refund to defendants so much of said sum of $24,797.20, as may be finally determined, by due course of law, not to be owing to the complainants, by virtue of said award. And in case the said complainants shall not give such satisfactory security as aforesaid within ten days from the date hereof, then the defendants shall be at liberty to pay the said sum of $24,797.20 into this court, subject to the future order thereof; and upon payment in either case as aforesaid, the complainants shall at the same time deliver to the defendants the omnibus stock, &c., included in said award.

      “ And it is further ordered, that an amicable action be entered forthwith by and between the plaintiffs and defendants, in the Supreme Court for the Eastern District of Pennsylvania, or District Court, in such way that the legal and binding effect of said award shall be the main question in the case for the decision of the said Supreme Court, and that the final decision of said court shall determine the rights of the respective parties to the said sum of $24,797.20, with the interest thereon, paid as aforesaid.

      “ And it is further ordered, that the complainants shall be at liberty to contest, in any way which they may be advised to adopt, the award filed in the District Court of Philadelphia, in the sum of $12,079, without any prejudice to their rights under the charter of incorporation of the company defendants, if such they have, independently of said awards or either of them: and in case said last-mentioned award should be finally confirmed, and it should be adjudicated in due course of law, that the same is binding and conclusive upon said parties; then and in such case the complainants shall not be bound to refund, and the defendants shall not be entitled to receive from and out of said sum of $24,797.20, and the interest thereon, so much thereof as may be equivalent to the amount of said award filed in the District Court aforesaid, and interest thereupon, as approved and confirmed.”
    On the - 26th of May the parties agreed to dissolve the injunction on the terms fixed in the decree, with the following modifications, instead of the payment of the money:—
    “ 1. The defendants to pay absolutely to William W. Juvenal, Esq., attorney for plaintiffs, $15,000.
    “ 2. To pay absolutely to him hereafter the increase, if any, made on award in District Court, as soon as approved, beyond the above $15,000.”
    The $15,000 were paid according to the agreement.
    On the 6th of June 1866, the plaintiffs moved for a final injunction which was refused, and a decree was 'made in accordance with that of May 23d 1859, as modified by the agreement of May 26th.
    From this decree the complainants appealed to the Supreme Court; the decree was there affirmed; the opinion, as follows, being delivered by
    Agnew, J. — In this case each party had secured an award to suit him, the plaintiffs for $24,797.20, and the defendants for $12,079. The court below decreed, on the 23d of May 1859, to dissolve the preliminary injunction in such a manner as to secure the payment of the larger award to the plaintiffs conditionally, and the delivery of the property of the plaintiffs’ omnibus line to the defendants absolutely.
    The condition was that the plaintiffs should refund so much of the larger award as should be found not to he recoverable. The decree then provided for an amicable action to be instituted between the parties in the Supreme or District Court, in which the legality of the larger award should be tested, and also enabled the plaintiffs to contest the legality of the lesser award. The effect of this was to enable the defendants to receive the stock of the omnibus line, and dispose of it without the loss which delay would cause, and to have the use of the streets for their railway; while it gave to the plaintiffs the highest sum at which the omnibus line stock was appraised, subject to refund so much as the result of the contest upon the awards would show he was not entitled to receive. There was nothing unfair in this, hut it did not suit the parties, as the payment of so much money by one side, and giving so much security to refund by the other, was inconvenient. Hence, they agreed to modify the decree so that the defendants should pay $15,000 absolutely, being an advance of $2921 on the lower award, and deposit their own mortgage-bonds for any further sum to he received. The remainder of the decree stood as before, and all that was necessary on the part of the plaintiff, if he claimed more, was to proceed under the decree. This modification was made the 26th of May 1859. The $15,000 were paid, and then the plaintiff permitted the matter to rest until June 1866, a period of seven years. After pocketing the $15,000, and taking from the defendants the power to contest the difference of $2921, the plaintiff now seeks to set aside the whole decree, after seven years’ acquiescence, and to open the whole case to litigation. This is unconscionable, and we cannot permit him to do so. He was never prevented from proceeding, in the mode pointed out by the decree, to recover any sum he was entitled to receive above the $15,000 already paid. The decree of the 7th of June 1866, as we understand it (a copy not being furnished in the paper-hook), simply refuses a final injunction, and modifies the decree of 23d May 1859, to conform it to the agreement of counsel of tbe 26th May 1859. This would leave the door still open to proceed by amicable action, under the decree, to test the validity of the larger award, and thereby receive the remainder of the sum awarded, if it should be sustained. It is not our purpose, as it certainly is not'our duty, now to decide the question of the validity of the award, or point out to the plaintiff the course he should pursue to secure its payment. But we hold that after the plaintiff has received $15,000 absolutely, and delayed for seven years to take any step upon the former decree, it would now he inequitable to set it all aside.
    Decree of the Common Pleas affirmed at the costs of the appellant.
    The plaintiffs, having given in evidence the charter of the defendants, the record of the proceedings in equity as above stated, and the appraisement of Kersey and Lukens, examined Kersey and Lukens as to the manner of taking the appraisement, and the principles upon which they fixed the value of the stock. After plaintiffs had closed, the defendants moved for a nonsuit on the ground that an appraisement by two only of the appraisers was not valid. The court refused the motion.
    The defendants then examined Jacobs, the third appraiser, who also testified as to the manner of the appraisement. They gave evidence tending to show that the other appraisers fixed their valuation of the stock with reference to the loss of plaintiffs’ business in their omnibus line. Also the proceedings in the District Court, &c., and that they had paid the plaintiffs the $15,000.
    The plaintiffs submitted these points:—
    1. The appraisement sued on was valid, and the defendants are liable for the amount thereof, allowing them a credit of $15,000.
    2. As a valid appraisement had been made under the charter of defendants, the proceedings in the District Court were beyond their jurisdiction, and the same do not vitiate the appraisement sued on.
    8. As the Common Pleas decreed that the plaintiffs should he at liberty to contest the award filed in the District Court, without any prejudice to their rights; the appearance by their counsel is not a submission to the said award.
    4. The award filed in the District Court is not an award within the meaning of the Act of 1859, as the same “ was not approved by the judges of the said court.”
    The defendants’ points were:—
    1. If the jury believe from the evidence that the appraisement made by Lukens and Kersey was made more than six years before the bringing of this suit, the verdict must be for the defendants.

      2. Under the evidence in the cause, the plaintiffs cannot recover upon the 3d count of their declaration, and on this count the verdict should be for defendants.
    3. The paper called an appraisement, signed by Lukens and Kersey in this case, is not such a paper as the plaintiffs can recover on, because it was not signed or acquiesced in by Jacobs, one of the appraisers.
    4. The appraisement by the District Court appraisers was binding upon the parties, and superseded the appointment of appraisers by the parties.
    5. If the jury find from the evidence that Lukens and Kersey, or either of them, considered any question of “good-will,” or any question but that of the fair cash value of the articles themselves, in valuing the articles which they set out in the paper signed by them, then that paper signed by Lukens and Kersey is not to be considered by the jury, but altogether to be discarded by them in arriving at their verdict.
    The court charged:—
    “The appraisement made by Kersey and Lukens was a good and binding assessment under the Act of Assembly, unless these appraisers made a plain mistake in the valuation of the stock by adding to the value of the specific articles a sum for compensation for the loss of the use of the omnibus line on Green and Coates streets; or any other matter foreign to the subject of appraisement presented by the law. But if the appraisers appraised the articles of stock specifically at what they believed was their fair market cash value, the appraisement is binding and cannot be set aside. The mere fact that the appraisers had vague impressions of a loss being suffered by the plaintiffs, will not affect their valuation if in point of fact they valued the property at what they believed to be the true and actual cash or market value of the stock. It is only in the case of a plain and clear mistake in making the appraisement that it can be set aside. The jury will decide, therefore, whether any such mistake was made by Kersey and Lukens by adding to the true and actual value of the stock a valuation of the good-will (as it is termed) of the streets, that is, for the loss of the use of the streets for their omnibus line, it is not the province of the jury to determine the value of the stock for the purpose of considering the error of valuation, if any, but to determine whether a plain mistake has been made by adding to the true value of the stock something which the act does not authorize to be added. If satisfied that such a mistake was made by these appraisers, the verdict must be for the defendants; in that event the award fails. If not so satisfied on the evidence the verdict must be for the plaintiffs for the unpaid balance of this appraisement, with interest.”
    The court answered the plaintiffs’ points as follows:—

      1. This is correct unless there was such a plain mistake as has been stated in the charge.
    2. Affirmed.
    3. Affirmed in view of the state of the record in the District Court, there being no final approval of the award in that court when the final decree and modification in the Common Pleas took place, it became the düty of the petitioners in the District Court to prosecute their appraisement to a final confirmation in order to meet the terms of the decree in the Common Pleas.
    4. Affirmed in view of the proceedings and decree in the Common Pleas.
    Defendants’ points:—
    1. A demurrer being pending as to the plea of the Statute of Limitations, this point is declined at the present time, and the question of the effect of the statute is reserved for decision upon the demurrer, and I reserve also the question upon the record of the proceedings in the Court of Common Pleas and the District Court q{ how far the question of the Statute of Limitations is affected by these proceedings.
    2. Affirmed. The decree of the 23d of May 1859, opened the preceding decree of the 5th March 1859, and left the award itself as the subject of the controversy.
    3. Denied.
    4. Refused on the ground that the appraisement in the District Court was not finally approved, and in view of the operation of the proceedings of the Common Pleas upon both awards.
    5. The mere consideration 'of the question of “good-will,” or any question but the actual cash value of the articles themselves set out in the paper, will not vitiate the award or appraisement unless the appraisers added to the actual cash value of the articles a value in money for the “good-will,” or for any other matter which does not belong to the cash value of the articles. It is the actual incorporation with the value of the articles, of the value of some independent or foreign matter not authorized to be appraised, which constitutes the plain mistake referred to as vitiating the appraisement.
    The judge further charged:—
    “ The jury are not to decide upon the merits of the valuation made in the District Court. The actual value of the stock (as the jury might conclude it ought to be under the evidence) has no bearing on this issue except so far as it is a circumstance corroborating the testimony of Jacobs, tending to show that other elements did enter into the valuation'beside the actual cash value of the stock in the market. The decree of the Supreme Court referred to, left the question upon the award in suit untouched by that decree.”

      The jury found for the plaintiff $15,472.39, and for the defendants on the 3d count of the declaration.
    The defendants moved for a new trial.
    Upon the motion for a new trial and the demurrer, the following opinion was delivered by
    Agnew, J. — “ A decision against the plaintiffs upon the Statute of Limitations would leave the main question upon the appraisement untouched on a certificate to the court in banc, and in case of a reversal would require a second trial, and a second certificate to determine finally the vital question of the cause upon the appraisement. I think it better, therefore, to decide the question upon the Statute of Limitations against the defendants, and thus let all the questions go up to the court in banc at once.
    “ I am not changed in opinion as to the validity of the appraisement; but as to the other questions I shall express no opiniom — leaving to the defendants an open field upon the Statute of Limitations. *
    “ I, therefore, determine the demurrer and the reserved question on the Statute of Limitations against the defendants, overrule the motion for a new trial, and direct judgment to be entered on the verdict on payment of the jury fee.”
    The defendants had the case certified to the court in banc; and there assigned for error the affirmance of the plaintiffs’ 2d, 3d and 4th points, the denial of the defendants’ 3d and 4th points, and sustaining the demurrer to the plea of the Statute of Limitations.
    G. M. Dallas and G W. Biddle, for plaintiffs in error.
    — The appraisement having been made by two only of three is not binding. The distinction between doing public and private acts exists not so much in the character of the power or of the act to be done under it, as in the character of the agent appointed to perform it: Baltimore Turnpike, 5 Binn. 484; McCready v. Guardians, 9 S. & R. 94; Com. v. Canal Comm’rs., 9 Watts 466; Johnston v. Bingham, 9 W. & S. 58; Allegheny v. Lecky, 6 S. & R. 170; Welty v. Zentmyer, 4 Watts 75; Okison v. Flickinger, 1 W. & S. 257 ; Ford v. Keen, 1 Harris 179. The requisition of the charter being to make an unprofitable purchase, must be strictly construed. The third person was not an umpire but an original appraiser. The assessment was the cause of action laid in the first two counts, and being made more than six .years before the suit was commenced, was barred: Act of March 27th 1713, § 1, 1 Sm. L. 76, Purd. 655, pl. 16. The appraisement was not an award: Leeds v. Burrows, 12 East 1; Russ. on Arbitration 242 (63 Law Lib.); Watson on Arbitration 135 (59 Law Lib. 90, n. X.); Kelly v. Crawford, 5 Wall. 785. This is a mere contract of purchase, the price to be fixed by appraisement; the plea of the statute was good: De Haven v. Bartholomew, 7 P. F. Smith 126.

      January 24th 1870,

      D. W. Sellers (with whom was W. W. Juvenal).

    — The Court of Common Pleas adjudged the appraisement binding; this had the effect of a judgment at law, and the case stands as if it had been opened to let the defendant into a defence; it would still be a judgment: Sellers v. Burk, 11 Wright 344; City v. Girard, 9 Id. 29; Fulton’s Estate, 1 P. F. Smith 204. The appraisement was an award: Paradise Road, 5 Casey 20; Act of June 16th 1836, § 20, Pamph. L. 721, Purd. 55, pl. 27. The pleá of the statute was to all the counts ; if there was one count good against the plea the demurrer was rightly sustained: Parke v. Kleeber, 1 Wright 254. The statute applies only to contracts, not to debts arising by construction of law: Richards v. Bickley, 13 S. & R. 395; Rank v. Hill, 2 W. & S. 56; D Haven v. Bartholomew, supra.

   The opinion of the court was delivered,

by Sharswood, J.

— The Act of Assembly of March 27th 1713, “An act for Limitation of Actions,” 1 Smith’s Laws 76, copying the words of the statute 21 Jac. 1, c. 16, enacts that “ all actions of debt grounded upon any lending or contract without specialty” shall be commenced and sued within six years next after the cause of such action or suit, and not after. It was held in Hodsden v. Harridge, 2 Saund. Rep. 64 b., that an action of debt on an award was not within the statute. The award indeed in that case was under seal, but as it was in pursuance of a parol submission, that circumstance was not regarded as material. By a later statute of 3 & 4 Wm. 4, c. 42, all actions of debt upon an award, where the submission is not by specialty, shall be sued within six years': Billings’s Law of Awards 213. This court, however, followed the English construction of the statute in Rank v. Hill, 2 W. & S. 56, though it would seem with much hesitation, and simply on the ground of authority; for it is said in the opinion: “ One would suppose the submission to be an engagement to abide by what the arbitrators should direct, and a promise to perform it.” "We have no statutory amendment of the law as they have in England. We must hold then that a debt created by award is not grounded on any contract or lending; consequently that an award upon even a parol submission is not within the act.

The question which we are now to decide is, whether the cause of action, as set forth in the 1st and 2d counts of the declaration, is a debt created by an award; or, on the other hand, is grounded on a contract without specialty. There is no material difference between the 1st and 2d counts in the statement of the cause of action. Indeed it is evident that the pleader by any variance in the mode of statement could not have avoided the question which arises. The counts are both properly drawn in strict accordance with that which the facts of the case only warranted. These counts are in substance that the defendants accepted their charter conferring upon them the franchise of carrying passengers for hire on and along Green and Coates streets, with the condition precedent that before commencing to use the said streets they should purchase, at the option of the owners, the stock of horses, omnibuses, sleighs and harness, owned and used upon said streets, at a price to be assessed by three disinterested persons to be chosen in the manner prescribed in the act of incorporation, who should appraise the said stock; that the defendants accepted the charter and commenced the road September 5th 1858; that three disinterested persons were selected to assess the price, who did appraise the said stock November 23d 1858 ; whereupon a cause of action accrued to the plaintiffs to have and recover from the defendants the amount of the appraisement, with interest thereon. We may dismiss entirely the consideration of the 3d count; because the jury have found a verdict for the defendants on the other pleas as to that count. It is now immaterial whether the plea of the statute would have been a good answer to that. Each count in a declaration is in law the statement of a separate and distinct cause of action, and pleas, though put in generally to the whole, are to be applied severally to each count. It is true, no doubt, that if the statute was not a good plea to either the 1st or 2d count, the judgment on the whole record must, on the demurrer, be for the plaintiffs. As we have seen, however, there is no substantial difference between them.

A contract is an agreement upon consideration between two or more persons to do or not to do a particular thing. Here there undoubtedly was a contract. The plaintiffs were to exercise their' Option of selling their stock, which they did as the 1st count expressly and the 2d impliedly avers; otherwise it would have been bad. The defendants had of necessity a similar option of purchasing, which they did, as averred, by accepting the charter and commencing the road. Here is the aggregatio mentium — all the essential elements of a contract. If so, then the action must be held to be grounded on a contract without specialty. By specialty is meant an instrument under seal. That one of the teiyns of the contract — the price — was to be ascertained in a mode prescribed by a statute, does not alter the nature of the ease. It has been held, therefore, that the Act of Bimitations is a good plea in an action by a justice of the peace for his fees: Harris v. Christian, 10 Barr 233. There a statute fixed conclusively the price of the services rendered by the justice. The plaintiffs could never have succeeded on a bare count on the assessment, or what they term the award, without averring, as they have done, the exercise of the option by both parties — in other words, the contract. In an action on an award to go back and set out the cause of action, which was submitted to the arbitrators, would manifestly be improper: surplusage and immaterial, if not bad. An award is the judgment of a tribunal selected by the parties to determine matters actually in variance between them — not merely to appraise and settle the price of property contracted for under tbe stipulation that this term of the contract was to be so ascertained. Had the parties made the contract, and afterwards, on a dispute arising, chosen arbitrators to determine what was due upon it, that might have been an award. The case is entirely different where the parties originally agree to buy and sell at a sum to be fixed by an appraisement to be made by a third person or persons. When the original contract is established by competent and sufficient evidence, then indeed the assessment thus made by the authority of the parties, or by authority of law, as in the case of the justice of the peace, may be conclusive as to the price; but there is nothing in the transaction to conclude the parties as to anything else. They may fall back — dispute the existence of any contract at all — or prove that it was tainted with fraud or illegality. Here is the clear and palpable distinction between such an appraisement and an award, which, as the court say in Rank v. Hill, “ seems to be considered rather as a judgment than as an agreement of the parties made through the authorized agency of others.” The case before us was in no sense a judgment, but simply an agreement through the authorized agency of others. Such an appraisement has been held not to be an award within the stamp laws : Leeds v. Burrows, 12 East 1; Perkins v. Potts, 2 Chit. 399. In Sybray v. White, 1 M. & W. 435, a written verdict of a miners’ jury, who were to determine whether the defendant was possessed of a certain shaft of a mine by the agreement of both parties, was held not to require an award stamp. The document, though in the nature of an award, and strong evidence against the defendant, was not considered as an award in fact, or conclusive in evidence as an award would have been, and the jury were looked upon rather as accredited agents than arbitrators: Russell on Arbitrators 243. So a monthly settlement between partners in a stage-coach business, made by a person named in the agreement, who was to settle what was to be paid and received monthly by each partner, was held not to be an award requiring a stamp as such : Carr v. Smith, 1 Dav. & M. 192. , Nor is such an appraisement subject to the strict rules governing arbitrations and awards: Kelly v. Crawford, 5 Wall. (S. C.) 785. It would not be necessary that the appraisers should decide upon evidence heard in the presence of the parties. They could decide, and indeed would be expected to fix the value of the articles, upon their own knowledge of the subject, though doubtless they might seek information from' other quarters. We think, therefore, that the Statute of Limitations was a good plea to the 1st and 2d counts of the declaration. The determination of this question adversely to the plaintiffs renders unnecessary the consideration of the other assignments of error.

The plaintiffs Moore and Rich afterwards, on the 5th of March 1870, filed another bill in the Court of Common Pleas against the defendants, the Railway Company.

The bill in its first nine paragraphs set out the proceedings up to the commencement of the suit in the Supreme Court.

10. averred the commencement of the suit wherein the plaintiffs “respecting the decree of this court, declared solely on the said appraisement; hut the said defendants, in contempt thereof, pleaded thereto, that the cause of action had not accrued within six years — but the learned judge, who tried the issue of fact which was made on the validity of the said appraisement, confined the jury to said issue. And the case in said court so proceeded, that the said jury, on the fact, found in favor of the validity of said appraisement, and the learned judge who tried the cause found likewise on the law.

11. “ It was the duty of the defendants to certify said record to the Supreme Court in such way that the legal and binding effect of said award should be the main question in the case for the decision of that court, that the final decision thereof should determine the right of the respective parties to the said sum of $24,797.20, under the decree of this court; whereas the issue presented was on the plea of the statute on which the same was exclusively decided.

12. “ The defendants, by reason of, their avoidance of the question which this tribunal, by its decree, gave them the liberty of presenting in an action, have acted in contempt of said decree, and that it is against equity and good conscience, that as the said defendants secured the use of the streets in their charter by reason of the relation established and created by virtue of the decrees of this court, and have obtained possession of all of the property of your orators, specified in said appraisement, by reason of your orators’ reliance on the said decrees; that the judgment in their favor on the plea of the statute, should bar your orators from the recovery of the balance due them on said appraisement.

13. “ As it was optional with this tribunal to award the entry of an action to determine the validity of the said appraisement, and as its validity, so far as the defendants permitted the same to he adjudged, has been affirmed in said action; it is now only equitable that your honors should decree the payment of said appraisement absolutely, as thereby only can full and adequate relief be afforded your orators.”

The prayers were, that the defendants pay the sum of $9797.20, with interest, or be restrained from the use of Green and Coates streets.

Judgment reversed, and now judgment for the defendants on the demurrer.

The defendants demurred to the bill for want of equity.

On the 9th of July 1870, the Court of Common Pleas gave judgment for the defendants on the demurrer, and dismissed the bill.

The plaintiffs appealed to the Supreme Court, and assigned the refusal of their prayers by the court below and the dismissal of their bill, for error.

This appeal (No. 89, to January T. 1871), was heard February 7th 1871, before Thompson, C. J., Agnew, Sharswood and Williams, JJ. Read, J., being at Nisi Prius.

D. W. Sellers, for appellants.

— The Court of Common Pleas has no power, as a court of equity, to award an issue to be tried in another court. The obligation of the defendants to pay before using the streets was imperative: Sutcliff v. Isaacs, 1 Parsons’ R. 497; Cox v. Willetts, 9 Penna. L. Jour. 327. The defendants having used the streets before payment, a court of equity will afford relief: McGowin v. Remington, 2 Jones 63; and in a final decree will settle all the rights without aid at law: McCallum v. Water Co., 4 P. F. Smith 40. A majority of appraisers can make a binding appraisement: Quay v. Westcott, 10 Id. 163.

6r. M. Dallas (with whom was Gf- W. Biddle), for appellees.—

The present bill cannot be sustained as a bill in review of their prior bills, so that the previous decrees may be carried into full execution, because the decree of March 5th 1859 sustained a demurrer denying a decree for the payment of the money claimed, and the prayer of the present bill is for a decree for payment of that same money.

The Court of Common Pleas, in suggesting the entry of an amicable action, did so with a view of turning the parties over to a court of law for a purpose which it had already decided not to be within its equity jurisdiction, but did not intend to control the course of the proceedings at law.

The appellants, by delaying to proceed for eight years, and then by summons, though the decree was for an amicable action forthwith, and also by declaring directly upon the decree of March 5th 1859, and not “ solely on the said appraisement,” show that they did not intend to proceed under the decree of May 23d 1859, but on the contrary, proceeded in total disregard of it.

The appellants, having demurred to the appellees’ plea of the Statute of Limitations, and fully argued the same, cannot, after having taken the chance of a judgment thereon in their favor, be now permitted to allege that the decision of the issue to which they thus assented, has determined nothing.

The opinion of the court was delivered, February 27th 1871, by Agnew, J. — The Court of Common Pleas, by the decree of March 5th 1859, sustained the demurrer to the plaintiifs’ bill, so far as it prayed for a decree to enforce payment of the award of $24,797.20, on the ground that the plaintiffs had an adequate remedy at law. The effect was to dismiss this much of the bill, and to send the collection of the award into a court of law. The modified decree of May 23d 1859 did not, in its effect, change this part of the former decree'. Its purpose was to enable the defendants to dissolve the injunction, and thereby obtain possession of the omnibus stock, horses, &c., and to proceed to finish their railway: and it therefore directed a conditional or qualified payment of the award of $24,797.20. But it still substantially preserved the former decree as to the mode of enforcing the award by ordering the parties to proceed in a court of law to try the question as to-its legal and binding effect. The modification of the second decree by the agreement of the parties of the 26th of May 1859, in nowise altered this feature. The payment of the $15,000 absolutely to that extent established the modified decree irreversibly, while the residue of the sum awarded was made expressly subject to the terms of the decree. It is clear, therefore, that there was no more to be done in the Common Pleas on its equity side until the plaintiffs had established their award at law, or the defendants had refused to enter an amicable action according to the decree. The remedy was therefore wholly in the hands of the ' plaintiffs themselves, with an imperative order on the defendants to enter an action at law “forthwith” to try the legal and binding effect of the award. From this analysis of the proceeding in equity it is plain that the action at law was not a mere issue of fact sent'by a chancellor to a jury to inform his conscience, but was a remission of the plaintiffs to a court of law to decide not only contested facts, but to establish “ the legal and linding effect of the award” in all respects. This involved questions of law and fact, to wit, its character either as an award or a mere appraisement, its obligatory effect as made by two instead of three appraisers, and its validity as a fair valuation untainted by fraud. The result of the action was necessarily final. It being an action at law, tried in an independent court of competent jurisdiction, proceeding in the course of the common law, it bore its own fruits, of which one is the finality which attends the trial and judgment in a common-law action.

Whether the final decision in this court was right or wrong cannot now he discussed. It undoubtedly determined finally all questions contested before it. The determination against the plaintiffs on the plea of the Statute of Limitations was on the ground that the writing in question was not an award but an appraisement ; casting the right of action upon the assumpsit, arising from the purchase of the omnibus stock, &c., and not upon the instrument itself. As a mere assumpsit to pay for goods sold and delivered, the action of course fell within the statute limiting the right of recovery to six years. This was the judgment of a competent court, having possession of the cause, upon the legal and binding effect of the writing, which was thus restricted to a period of six years. It fell within the very terms of the decree which remitted its collection to a court of law. Then, as to the facts on which the judgment was rendered, we find a decree made finally on the 26th of May 1859, to proceed forthwith to try the legal and binding effect of the award (so termed in the decree), and a payment absolute of $15,000, being $2921 more than the defendants admitted to he owing. Now, nothing was done to carry out this so-called award, in pursuance of this decree, until the 27th of February 1867, a period of nearly eight years, when the plaintiffs brought their action upon the writing in the Supreme Court. This was inexcusable laches. Under these circumstances the Court of Common Pleas was met by the final judgment in the action at law, when the present bill came before it, and rightly decided that it was a bar to any further proceeding in the equity case. In view of the nature of the action and judgment in the Supreme Court, no other conclusion could be arrived at. It was not an issue which the Common Pleas could disregard, but a final determination upon the legal arid binding effect of the writing.

The decree is therefore affirmed, and the costs ordered to be paid by the appellants.


source: Caselaw Access Project

author: by Sharswood, J.

license: Public Domain

text:
    Yard’s Appeal. Hamill’s Estate.
    1. A grant or devise to a charitable use may create a perpetuity or render the estate granted, &c., for the purpose, inalienable.
    2. Nothing is a perpetuity, unless it restrain the vesting of an estate or interest beyond the period of a life or lives in being and twenty-one years and nine months thereafter.
    3. An estate cannot be created with a condition repugnant to the nature of it; e. g. that tenant in fee shall not alien or in tail suffer a common recovery.
    4. If an estate be vested it is not a perpetuity, although by the purpose for which it is granted, it cannot be devoted to any other use.
    5. The trustee taking a ground-rent for a charity, takes it subject to the right of the landowner to redeem it.
    6. Whenever a charity is given to a subordinate object, in connection with a church or other charitable religious institution, the trust vests in the society itself in ease of which it was granted.
    7. McGirr v. Aaron, 1 Penna. R. 49, Domestic and Foreign Missionary Society’s Appeal, 6 Casey 425, recognised.
    January 12th 1870.
    Before Thompson, C. J., Read and • Sharswood, JJ. Agnew, J., at Nisi Prius.

      Appeal from the decree of the Orphans’ Court of Philadelphia: In the estate of George S. Hamill, deceased: No. 850, to January Term 1869.
    The proceedings were upon the account of John Yard, Jr., administrator c. t. a., of George S. Hamill, deceased. The account was referred to Charles Buckwalter, Esq., who made a report February 16th 1866, which was confirmed.
    It appeared that the decedent died in August 1863, leaving a will, which was dated October 16th 1864, by which he gave distinct ground rents to each of the following associations and churches, viz. :
    1. To the poor of St. Francis Xavier Roman Catholic Church of Fairmount, now and for ever and to be .applied for their use annually, &c.
    2. To the poor of the Reformed Presbyterian Church of Fairmount, and to be applied to this use now and for ever annually, &c.
    3. To the poor of the German Reformed Church, Race street between Third and Fourth streets, * * * to be applied annually for their use now and for ever, &e.
    4. To the poor of St. Augustine’s Roman Catholic Church, Fourth street near Vine street, * * * to be applied annually, now and for ever, * * * for their use, &e.
    5. To the poor of Logan Square Presbyterian Church, to be applied for their use, annually now and for ever, &c.
    6. To the poor of Emory Methodist E. Chuch, on Callowhill street between Eighteenth and Nineteenth streets, to be applied to their use, annually now and for ever, &c.
    7. To the House of the Good Shepherd, on Twenty-second street below Chestnut street, * * * to be appropriated for their use now and for ever, &c.
    8. To St. Ann’s R. C. Widows’ Asylum, now and for ever, &c.
    9. To St. Joseph R. C. Hospital, on Girard Avenue, and to be applied to that use now and for ever, &c.
    10. To the Temporary Home (Protestant, on Twenty-third street, near Parrish, now building), to be applied for that use now and for ever, &c.
    11. To the Protestant Episcopal Hospital, situate in the late district of Richmond, and to be applied to that use now and for ever, &c.

      “ The 1 to 11 donations is to remain with them for ever, that is, they are not to be sold. The interest of the principal is only to be applied to their use. As regards the churches, their interest of the principal is to be given to the poor of the respective churches during the winter, say the month of January in each year, at the discretion to (of) the pastor or trustees. The other institutions will receive their instalments as the rent comes due April and October.

      He gave the residue to Margaret H. Kelly.
    He further directed :' “ Should there not be found enough to pay the donations at first, my executor will collect all from ground-rents coming due, before assigning them over to the proper ones —(that is, he will continue to collect money, the ground-rents) until all donations are paid.”
    The auditor in his report says: * * * “In the will of Dr. Hamill there likewise appear a number of devises of ground-rents to churches and charitable institutions, and in the account filed by the accountant he charges himself with the collection of certain of these amounts set forth in detail therein, and amounting in the aggregate to the sum of $547.75. These collections were made by the accountant, under what he regarded as his duty, under one of the provisions of the will. (That last above stated.) These ground-rents collected are still in the hands of the accountant. A number of claimants appeared before the auditor on behalf of' the churches and charitable institutions to whom these ground-rents have been devised, and presented their claims. Objections were made to the same on behalf of the accountant and the residuary legatee, and among others, urging that the devises of these ground-rents under the various sections of the will created perpetuities. On these objections being presented, it was agreed by all interested that, * * * the question as to the awarding of the several specific legacies under the will to the several churches and charitable institutions, be submitted to the court in a case stated at as early a period as possible. The auditor therefore directs the accountant to retain in his possession all the ground-rents since collected by him until the court shall direct the disposition of the same.”
    The ease provided: “ If the court shall be of opinion that the devises of the ground-rents to the various devisees or any of them, are good in law, then a decree is to be entered accordingly, directing also the administrator, c. t. a., to pay all arrears collected by him since the date of the auditor’s report to the devisees who may be found respectively entitled to them, after deducting any portion that may have been required to make up any deficiency in payment of the pecuniary legacies; but if the court should be of opinion that the devises or any of them are void for any reason, then a decree to that effect is to be entered.
    “ The costs of the cause and reasonable counsel fees to be paid out of the arrears in the hands of the administrator.”
    The Orphans’ Court entered a decree for the several claimants or devisees of the rents, &c.
    The administrator appealed, and assigned the decree of the Orphans’ Court for error.

      T. J. Diehl and W. W. Juvenal, for appellant.
    — Perpetuities are grants wherein the vesting is unlawfully postponed: City v. Girard, 9 Wright 26 ; Saunders on Uses and Trusts 196. When there is no power of alienation a devisee is void as a perpetuity : Hillyard v. Miller, 10 Barr 326. There must be a discretionary power over the testator’s bounty: Pickering v. Shotwell, 10 Barr 23; Witman v. Lex, 17 S. & R. 93; Dom. and For. Missionary Society’s Appeal, 6 Casey 425; Beaver v. Filson, 8 Barr 327. If the devises are not sustained the residuary legatee takes: Woolmer’s Estate, 3 Whart. 477; Earp’s Will, 1 Pars. 459.
    January 24th 1870,

      J. A. Olay, for appellees.
    — The doctrine of perpetuities does not apply to charitable devises: Perin v. Carey, 24 How. 465; Philadelphia v. Girard, 9 Wright 9. The interest is to be given “to the poor,” &c., with a discretionary power of appropriation in the pastor or trustees: Pickering v. Shotwell, 10 Barr 23. Religious societies have a capacity to take and hold charitable bequests: Evan. Association's Appeal, 11 Casey 316 ; Dom. and For. Miss’y Society’s Appeal, Witman v. Lex, supra; Magill v. Brown, Brightly 347; Blenon’s Est., Id. 339 ; Price v. Maxwell, 4 Casey 28; Hillyard v. Miller, 10 Barr 326; Acts of February 5th 1821, § 1, 7 Sm. L. 355; 28th April 1868, §. 1, Pamph. L. 1147, Purd. 517, pl. 7, 1505, pl. 1.
   The opinion of the court was delivered,

by Sharswood, J.

— It is no valid objection to a grant or devise to a charitable use that it creates a perpetuity, or renders the estate granted or devised for the purpose inalienable. “ This, it is observed,” says Mr. Lewis, “is the characteristic of alienations to charitable uses; it is in the very nature of such dispositions, to withdraw the subject of them from every kind of circulation, since a contrary course defeats their manifest object, viz.: sustentation of the charitable or religious institutions, or the carrying out in continuity of the benevolent purposes and designs, in favor of which they are made. Any disposition incompatible with this chief end is a breach of duty on the part of the person or body intrusted with the office of giving it effect. Land thus dedicated to the service of charity and religion, is therefore practically inalienable :” Lewis on Perpetuities 689. Nothing, indeed, is denounced by the law as a perpetuity, unless it restrain the vesting of an estate or interest beyond the period of a life or lives in being, and twenty-one years and nine months thereafter: City of Philadelphia v. Girard’s Heirs, 9 Wright 9. An estate cannot, indeed, be created with a condition repugnant to the nature of it, as that tenant in fee shall not alien or tenant in tail suffer a common recovery. But if the estate be vested it is not in the view of the law a perpetuity, although the purpose for which it is granted be such that it cannot be devoted to any other use. Grants to corporations accomplished this result, and were, therefore, prohibited by the Statutes of Mortmain, and they were excepted from the Statute of Wills. Nevertheless, such devises when made in favor of charities were upheld, and in such cases land has been decreed by courts of equity to be practically inalienable: Perin v. Casey, 24 How. 495, and authorities there cited. ■ Nor is the case varied in this respect by the fact that the subject-matter of the devise is a ground-rent or rent-charge, subject to redemption or extinguishment by the owner of the land. The trustee of the charity takes the rent necessarily subject to the right of the owner of the land to redeem or extinguish it. The Act of Assembly of February 5th 1821, Pamph. L. 25, has made express provision to meet the difficulty here suggested; that where the owner of such rent dies, and it becomes vested in minors, trustees or other persons not authorized to redeem or extinguish such rents, proceedings may be instituted in the Court of Common Pleas, who shall make an order authorizing and requiring the executors or administrators, the guardians of minors or trustees, or other person or persons authorized for the time being to receive such rents, to execute a sufficient release or discharge.

The devises contained in the will of Dr. George S. Hamill, were beyond all question valid charities. He seems to have been actuated by no narrow and sectarian views, but in the spirit of the Good Samaritan to have been desirous of disposing of a portion of his worldly goods to the needy and suffering of every name. Though the objects were vague and indefinite, there were, in every instance, competent trustees named to exercise the discretion necessary in the distribution of his bounty. Those given to the poor of different churches were evidently in ease of the churches themselves, and it is well settled, that whenever a charity is given to a subordinate object in connection with a church, or other charitable or religious institution, the trust vests in the society itself in ease of which it is granted. In McGirr v. Aaron, 1 Penna. 49, a devise for the maintenance of a Roman Catholic priest, who should succeed the testator in a particular church, and to his successors for ever, though it would have been void by itself, as a devise to a sole corporation unknown to the law, was held to be good, because in ease of the congregation and for its benefit, and that the congregation was entitled to take the profits in the first instance, but subject to the right of the incumbent for the time being to have them applied to his support. This principle was reaffirmed by this court in The Domestic and Foreign Missionary Society’s Appeal, 6 Casey 425. “ Similar adjudications,” said Mr. Justice Strong, “ have often been made, where the object literally designated has been incapable of taking directly and the legacy has been in relief of a superior,” and several authorities are there cited. But the testator in this instance has precluded even this question from arising, by providing expressly: “As regards the churches their interest of the principal is to be given to the poor of the respective churches during the winter, say the month of January in each year, at the discretion of the pastor or trustees,” that is, as no doubt was intended, to the poor of the Roman Catholic churches at the discretion of the pastor, and of the Protestant churches at the discretion of the trustees. As to the devises to the House of the Good Shepherd, to St. Ann’s Roman Catholic Widows’ Asylum, to St. Joseph’s Roman Catholic Hospital, to the Temporary Home (Protestant, on Twenty-third street near' Parrish), and to the Protestant Episcopal Hospital, these were direct gifts to charitable institutions competent to take as trustees, whether incorporated or not. Though the purposes are not expressed, yet they must necessarily be intended to be applied to the benevolent objects for which these institutions were created, and they are all of them good charities: The Evangelical Association’s Appeal, 11 Casey 316.

Decree affirmed and appeal dismissed, the costs of the case and reasonable counsel fees to be paid out of the arrears in the hands of the appellant, as provided by the agreement of the parties in the court below.


author: by Thompson, C. J.

text:
    Commonwealth versus Giltinan, Claimant.
    1. “Domestic distilled spirits,” in the Acts of April 15th 1835 and April 10th 1867, means spirits distilled within Pennsylvania.
    2. In a legislative sense, all productions within the state are domestic; those without, foreign.
    3. The Act of April 21st 1858 is a mere extension of inspection to all domestic distilled spirits of the kind meant in the Act of 1835.
    4. The Act of 1867 did not extend the inspection laws beyond the subjects of them under previous acts.
    5. The Acts of 1835, 1858 and 1867 are in pari materid.

    6. Parol evidence “that all spirits distilled within the United States are known as “ domestic distilled spirits,” is inadmissible.
    7. Spirits manufactured in another state and rectified here, are not within the inspection laws as to “domestic distilled spirits.”
    8. The Act of 1867 is penal and must be construed strictly.
    9. The inspection laws were enacted to give character abroad to our own manufactures and insure a market on account of the place of their origin.
    10. Case of Two Hundred Chests of Tea, 9 Wheat. 430, commented on.
    January 13th 1870.
    Before Thompson, C. J., Read and Sharswood, JJ. Agnew, J., at Nisi Prius.
    Certiorari to the Court of Common Pleas of Philadelphia: No. 335, to January Term 1869.
    On the 8th of June 1867, John Stauffer, inspector of domestic distilled spirits in Philadelphia, filed an information, setting forth that on the 5th day of the same month he had seized three barrels of domestic distilled spirits, and had the same in his possession as forfeited to the Commonwealth, because the spirits had been found in the possession and custody of John S. Wilson in fraud of the inspection laws of the Commonwealth, not having been inspected and marked as required by the Act of April 10th 1867. The informer prayed for process, that the spirits may remain forfeited, and the proceeds distributed according to the Act of Assembly, &c.
    On the 29th of June David Giltinan filed a claim to the property, averring that he was the “bond, fide owner of the three barrels of domestic distilled spirits,” and denied that they were in the custody, &c., of Wilson, in fraud of the inspection laws. The same day the claimant filed a plea denying, as in the claim, that “the said three barrels of domestic distilled spirits” were “in the possession and custody or within the control of” Wilson, in fraud of the inspection laws, &c.
    The case was tried, October 26th 1868, before Pierce, J. ,
    Stauffer, the inspector, testified to the seizure of the barrels; they had not the state inspector’s marks; they contained domestic distilled spirits; they were rectified.
    J. B. Apple testified — the contents of the barrels were domestic distilled spirits, by which he meant distilled somewhere in the United States.
    L. Blodgett testified that the liquor was domestic, but could not tell whether they were Pennsylvania or New York spirits.
    The defendant gave evidence by D. O’Conner that he was in the employ of Giltinan, and shipped the three barrels himself; they were part of a lot of sixty-two barrels bought of Mr. Brice; “the liquor came raw and we rectified it.”
    Brice testified to the sale of the liquor to Giltinan; it had come from the distillery of N. P. Fortune, New York.
    The acts upon which this proceeding is founded were the following :—
    Act of April 15th 1835, § 123, Pamph. L. 410, Purd. 359, pi. 1, enacts that “ spirituous liquors distilled within this Commonwealth, shall, if designed for exportation from the port of Philadelphia, be liable to inspection by an inspector of domestic distilled spirits, appointed for the city and county of Philadelphia. Domestic distilled spirits may also be inspected at Lancaster, * * Columbia,” &c.
    Act of April 21st 1858, Pamph. L. 393, Purd. 361, pi. 26, enacts that “ all domestic distilled spirits for sale at the port of Philadelphia, whether for exportation or otherwise, shall be inspected, &e., in the manner now provided by law,” &c.
    Act of April 10th 1867, Pamph. L. 1133, Purd. 1491, pi. 13, enacts — Sect. 1. “That all inspectors, &c., of domestic distilled spirits are required to mark with a stencil brand on one of the heads of every cask or other vessel containing any spirituous liquors liable to inspection by the laws of this Commonwealth, the exact proof and degrees, &e., * * * together with the date of such inspection, the name of the inspector, and the Arms of this Commonwealth: Provided, that all distilled spirits manufactured in the city and county of Philadelphia shall be so inspected and marked at the place in which the same shall be produced.
    Sect. 3. “ That all domestic distilled liquors which are by law required to be inspected and marked as aforesaid, which shall be found in the possession or custody, or within the control of any person or persons in fraud of the inspection laws of this Commonwealth, shall be seized by the inspector of the place in which such liquors may then be, and the same shall be forfeited to the Commonwealth ; and the proceedings to enforce such forfeiture shall be in the nature of a proceeding in rem in the Court of Common Pleas, in the county in which such forfeitures shall take place: Provided, that the person or persons detecting any fraud as aforesaid shall be entitled to one-third of the forfeiture: and provided also, that in the city and county of Philadelphia, one-third of all such forfeitures shall be for the use of the poor of said city and county.”
    The plaintiff offered to prove, by persons engaged in the distillation of spirits and by former state inspectors, that all spirits distilled within the United States are called and known as domestic distilled spirits, and that the state inspectors formerly inspected all such spirits.
    The court overruled plaintiff’s offer, and excluded the testimony. Thereupon the plaintiff requested the court to charge the jury — ■
    1. That if they are satisfied that the spirits seized were distilled within the United States, and that at the time they were seized they had not been inspected in the manner provided by the law of this Commonwealth, their verdict should be for the plaintiff.
    2. That if they are satisfied that the spirits seized were rectified in Pennsylvania, and that at the, time they were seized they had not been inspected in the manner provided by the laws of this Commonwealth, their verdict should be for the plaintiff.
    3. That the claimant had admitted in the pleadings on record in this case that the spirits seized were domestic distilled spirits, and if they are satisfied the same had not been inspected before their seizure in the manner provided by the laws of this Commonwealth, their verdict should be for the plaintiff.
    The court negatived the points, and instructed the jury to find for the claimant.
    The verdict was for the claimant.
    On the removal of the case to the Supreme Court the plaintiff assigned for error, the rejection of the offer of evidence, and the instructions of the court.

      February 7th 1870,

      J. W. M. Newlin (with, whom was F. 0. Brewster, Attorney-General), for plaintiff in error.
    — They referred to the several Acts of Assembly relating to inspections, &c. Spirits manufactured in New York are “domestic:” Hart v. Willetts, 12 P. F. Smith 15. Parol evidence of contemporaneous construction was proper: Chests of Tea, 9 Wheat. 438; United States v. Breed, 1 Sumn. 168; Rogers v. Goodwin, 2 Mass. 478; Rex v. Scott, 3 T. R. 604; Dunbar v. Roxburgh, 3 Cl. & Fin. 353; Bank v. Anderson, 3 Bing. N. C. 666; Rex v. Osbourne, 4 East 327; Stewart v. Lawton, 1 Bing. 377; Sheppard v. Gosnold, Vaugh. 169 ; Attorney-General v. Parker, 3 Atk. 577; 2 Phillips on Ev. 800; Sharswood’s Starkie on Ev. 652, 700-705; Coke’s 2d Inst. 282.

      T. B. Elcock and B. P. White, for defendant in error.
    — Courts will bend the words of a statute to a reasonable construction: Fetter v. Wilt, 10 Wright 462.
   The opinion of the court was delivered

by Thompson, C. J.

— The paramount question of this case is, whether the words “ domestic distilled spirits,” in the inspection laws of this Commonwealth, mean only spirits distilled within the Commonwealth, or extend equally to spirits manufactured in other states and brought hither. The nature of state authority and jurisdiction would necessarily incline one to the opinion that the term “domestic” is only appropriately used in an act of the state legislature to describe a product exclusively belonging to, and within the sovereign jurisdiction of the state. As a government with sovereign powers within its limits and none outside, other states are, in a legislative sense, necessarily foreign. All productions within are domestic; those from outside are foreign. When the state speaks of “ domestic” manufactures, it means, as a general thing, those within its jurisdiction: that of course is the first sense of this expression, at least; if there be another, we must look for it ab extra the expression. I think it very clear, that the term “ domestic distilled spirits” means ex viseeribus suis, those manufactured within this Commonwealth. 'But we have that within the Act of 1835, the commencement of the inspection system of liquors to-day, which is explanatory of those words. The first clause of the 123d section of the Act of the 15th April 1835 declares that “ spirituous liquors distilled within this Commonwealth shall, if designed for exportation from the port of Philadelphia, except,” &c., be liable to inspection by an inspector of “domestic distilled spirits,” appointed for the city and county of Philadelphia; and the act provides for the appointment of inspectors also for Lancaster, and certain towns and boroughs in the country, viz., for the borough of Wrightsville, in York county, Norristown, Montgomery county, and for Allegheny county. And it further provides that “.domestic distilled spirits” may be inspected at each of those places. They may be inspected at these places as well as at Philadelphia. This is the meaning and reason for the phraseology in the act noticed by the counsel for the Commonwealth. There is no room to entertain the idea contended for, that the section means the inspection of spirituous liquors distilled within this Commonwealth, as also the inspection of “ domestic distilled spirits” in a national sense. In Catherwood v. Collins, 12 Wright 480, the limited sense of the terms is accepted without a question. The learned judge below was quite right therefore, we think, in holding to this view. Upon the Act of 1885, the Commonwealth had no case, for it was proved, and not controverted, that the spirits seized were manufactured in New York, and only rectified in Philadelphia.

But it was argued that, by the Act of 21st of April 1858, the Act of 1835 was altered, and the liability to inspection enlarged, so as to extend to “domestic distilled spirits” in a national sense. We are troubled with a refutation of this pretension, only because the section of the act relied on to prove this position was mainly kept out of view on the trial.

By the Act of 1835, only such liquors as were designed for exportation were subject to inspection, excepting coastwise. The Act of 1858 changed this, and provided that “ all domestic distilled spirits for sale at the port of Philadelphia, whether for exportation or otherwise, shall be inspected,” &c., by “the duly appointed inspectors of domestic distilled spirits, in the manner now provided by law.” This was a mere extension of inspection to all domestic distilled spirits of the kind meant by the original act, viz., all manufactured in the Commonwealth, and for sale at the port of Philadelphia, whether for export or otherwise. The Act of 10th April 1867, under which the seizure took place, did not extend the inspection laws beyond the subjects of them under previous acts. It regulated inspections, and provided the penalty of seizure of non-inspected liquors. The learned judge very properly held all these acts as in pari materia, and as applicable to one and th,e same subject-matter, namely, to the inspection of distilled spirits manufactured in this Commonwealth. There is not a word in either of the acts, subsequent to the Act of 1835, to extend the inspection laws beyond the subject-matter of that law; and, as we have already said, it contained a clause which was expository of its meaning, and proved it applicable only to the manufacture of spirits within the state.

This being the meaning of these acts, it would have been error to have admitted parol testimony as to their supposed meaning. That is never done. Whether an article of commerce is that which is described by given words in a statute, is sometimes the subject of proof. But this only defines the article, not the law. Whether an article was bohea tea, was the matter in controversy in the case of Two Hundred Chests of Tea : 9 Wheat. 430. It was seized by the collector at Boston because entered as bohea, and he alleged it was black tea which bore a higher duty. The question in proof there was, not what the Act of Congress was or meant, but what the article seized was. That was certainly the subject of proof, and that was not what was proposed here. Here there was no dispute about the articles seized. The dispute was whether it was within the Acts of Assembly requiring its inspection. To ascertain that, the law must be construed by legal rules and by its constituted interpreters, the courts, and not by experts. The learned judge very properly, therefore, rejected the proposed testimony.

It was argued, but not strenuously, that rectified liquors, without regard to where made, if rectified within this Commonwealth, were liable to inspection and seizure, if not inspected and branded. The act is penal and must be construed strictly, and this is not within its words. The rectifying process is not a manufacturing process. Webster says it means “ correcting; amending; refining by distillation, sublimation; adjusting.” Rectifying distilled spirits, therefore, made in another state, does not constitute it spirituous liquor manufactured within this Commonwealth. The spirits were not manufactured here, they were only corrected or refined within this Commonwealth.

The inspection laws were not enacted to produce emoluments to inspectors; they were to give character abroad. to our own manufactures, and thus to insure a market on account of the place of their origin. The state gains nothing pecuniarily by inspecting — the officers do. The state gains a character for her manufactures, and therefore she does not choose to allow the products of other states to pass for hers; nay, not even to increase the emoluments of her inspectors. The learned judge was right in denying the claim to seize on account of non-inspection of rectified liquors, manufactured in another state, and refined here.

We are of opinion that the plea was a sufficient denial of everything in the case which went to show a right to seize these barrels of whiskey. It denied that they were in the possession of J. S. Wilson in fraud of the inspection law. Not being stencil marked, it lay on the defendant, after the article was proved to be distilled spirits, to show why they were not so marked, and it seems to me nothing could more satisfactorily show this than that they were the product of a state, foreign as a state, to Pennsylvania, viz., the state of New York, and not required to be inspected. It cannot be doubted that this fact would directly meet the allegation of fraud upon our inspection laws. There was no error in this ruling.

A question as to the kind of casks or vessels to which inspection extends under the Acts of Assembly we have been considering, was somewhat discussed at bar, and in the paper-book of the defendants in error. It is not involved in this case, and we do not decide it; not because of inherent difficulties in it, but because it is not raised by the plaintiff in error, and not necessary to be determined in answer to anything that is raised.

There being no error in the record, the judgment is affirmed.


text:
    Livezey versus Philadelphia.
    1. In an extraordinary flood, a bridge was carried away and thrown upon land of a lower owner, and damaged it. Held, that without more, a presumption that it was negligently constructed did not arise.
    2. The maxim, Actus Dei neminifacit injuriam, applied.
    3. The concurrence of negligence with the act of God is necessary to fix a party with liability for mischief done in such cases.
    4. A bridge was washed by a flood upon the land of a lower owner : Held, that it was not the duty of the owner of the bridge to remove it.
    5. It is not essential to his immunity, that the owner of the bridge should have abandoned his property in it.
    6. The landowner can always remove it himself.
    7. Whether the owner of the bridge can maintain replevin against the landowner without tendering the expense of removal, quaere?

    8. Lehigh Bridge Co. v. Lehigh Coal & Nav. Co., 4 Bawle 94, and Poster v. Juniata Bridge Co., 4 Harris 393, remarked on.
    January 13th 1870.
    Before Thompson, C. J., Read and Sharswood, JJ. Asnew, J., at Nisi Prius.
    Error to the District Court of Philadelphia: No. 394, to January Term 1869.
    . This was an action on the case brought September 13th 1867, by Thomas Livezey against The City of Philadelphia.
    The declaration contained four counts:
    1. That the plaintiff owned a tract of land on Wissahickon creek, Philadelphia, on which and near the margin of the creek, stood the Valley Green Hotel and also large trees of great value, both for use and beauty; that said creek had immemorially flowed by the land of the plaintiff, and it was his right that it should continue so to flow. Yet the defendant, intending to injure the plaintiff in his estate in said property, wrongfully obstructed and diverted the natural flow of the waters of the creek, whereby they washed away a great part of his land, killed a number of his trees, &c.
    2. Is substantially as the first, with addition of an averment that the obstruction was occasioned by parts of a bridge of the defendant, lying on the plaintiff’s land, which it was the duty of the defendant to remove.
    3. That ■ the defendant erected an iron bridge across the creek above the plaintiff’s land, that it was the duty of the defendant so to construct the bridge that it should not be carried away by the freshets which occur at certain seasons of the year and were well known to defendant; that defendant so negligently and insufficiently constructed and fastened the bridge, that it was washed away by the waters and carried on to the land of the plaintiff, where it has since remained, and it was the duty of the defendant to remove it. Yet the defendant obstructed the natural flow of the water by means of the bridge and diverted the waters on to the land of the plaintiff, whereby they have washed away a great part of the land, killed the trees, &c.
    4. That the plaintiff owned a mill and mill-dam on the creek below the bridge, that the bridge was so negligently built that it was carried away and so obstructed and diverted the flow of the waters, that they carried from the plaintiff’s lands, stone, earth, rubbish, &c., and filled hi® dam, &c.
    On the trial, October J6th 1868, before Hare, P. J., the plaintiff gave evidence by W. R. Bartle, that the iron bridge across Wissahickon creek was washed away by a freshet at night in July 1865, and carried on to the plaintiff’s property; a great deal of sand collected on it, making a bar in the creek, which turned the current towards the Valley Green property, washed away the shore and undermined some trees. On cross-examination, witness testified : “ A large covered wooden bridge, from about a mile above the iron bridge was washed down the creek. I think it must have butted against the iron bridge and carried it off. * * * That was the greatest freshet I had known on the creek. The water rose ten feet higher than its usual level.” R. Sand, Supervisor of Highways, testified: “ The iron bridge was put up in 1863 or 1864; it was large, span above 50 feet and very heavy; wooden bridges had floated from there twice before; the iron bridge was 4 or 5 feet higher than the wooden ones; a wooden bridge broke loose and came down the stream and I suppose it butted against the iron bridge.” The chief commissioner gave orders to remove the bridge, but after trial, it could not be done and was so reported to the commissioner! On cross-examination he said; “ The freshet was the highest I have known. I do not believe that the iron bridge would have been washed away without the wooden bridge from above butting against it.”

      W. W. Smedley, the chief commissioner, testified that after endeavoring to have the bridge removed, he sold it.
    M. McKeowen, who bought the bridge, testified that they tried every summer after 1865 to move the bridge, but could not get it out.
    The plaintiff gave additional evidence as to the injury to his Valley Green property and mill, of notice to the, city authorities to remove the bridge, &e., and closed. The court then ordered that a nonsuit should be entered. The plaintiff removed the case to the Supreme Court, and assigned the entering of the nonsuit for error.
    January 24th 1870,

      W. S. Pride, for plaintiff in error.

      T. J. Barger, City Solicitor, for defendant in error,
    cited: Lehigh Bridge Co. v. Lehigh Coal & Navigation Co., 4 Rawle 9; Forster v. Juniata Bridge Co., 4 Harris 893.
   The opinion of the court was delivered

by Sharswood, J.

— -The learned judge of the District Court, after having heard the plaintiff’s case, being of the opinion that he had given no such evidence as in law was sufficient to maintain the action, entered a nonsuit, under the 7th section of the Act of March 11th 1836, Pamph. L. 78.

The declaration contains four counts. The first two, with some unimportant variations in the mode of statement, allege, as the ground of complaint, that the defendants wrongfully and injuriously obstructed, diverted and turned the ancient, natural and accustomed flow of Wissahickon creek, and maintained, kept up and continued such obstruction and diversion by means of a part of a bridge of the said defendants, wrongfully kept lying in the said creek, opposite to the land of the plaintiff. The last two allege that the defendants so negligently and insufficiently erected and constructed, secured and fastened said bridge that it was after-wards washed away, removed and carried by the waters of the said creek, from the place where it was erected down to and into the bed and channel of the said creek, where it passes through the land of the plaintiff and upon the said land.

As to the ground of negligence, it may be dismissed with the remark that there was no evidence whatever of any insufficiency in the construction or fastenings of the bridge. Had it been carried away by an ordinary freshet a presumption to that effect might perhaps have arisen. But it was a clearly proved and uncontradicted fact that the freshet in which the disaster occurred was a most unusual and extraordinary one — greater and more destructive than was ever known to happen before or since; that the water in the stream rose ten feet above its ordinary level. The accident took place in the night-time, and no one appears to have seen it, but the great probability seemed to be in the opinion of the witnesses examined, that it would have stood had it not been butted against by a wooden bridge carried down by the flood from higher up the creek.

For this accident, therefore, and all damages resulting from it, direct or consequential, the defendants ought not to be held liable. Actus Bei nemini facit injuriam. The concurrence of negligence with the act of Providence, where the mischief is done hy flood or storm, is necessary to fix the defendants with liability. “ When a loss,” says 0. J. Gibson, “happens exclusively from an act of Providence, it will not be pretended that it ought to be borne by him whose superstructure was made the immediate instrument of it:" Lehigh Bridge Co. v. Lehigh Coal and Navigation Co., 4 Rawle 24.

The bridge, in this instance, lodged in the bed of the creek, which is not a navigable stream, and has never been declared a public highway, and the place where it lodged was the plaintiff’s own soil. The injury alleged to have been suffered was from the diversion of the water caused by this obstruction, and the contention on the part of the plaintiff now is, that it was the duty of the defendants after reasonable notice, which was proved to have been given, to have removed it, and that having failed to do so, they are responsible for the consequences. But the ratio decidendi in Forster v. Juniata Bridge Co., 4 Harris 393, which seems not only founded on sound principles but to be a logical deduction from the Lehigh Bridge Co. v. The Lehigh Coal and Navigation Co., 4 Rawle 24, does not support this contention. It was there said that in such a case where there is no negligence in the first instance the sufferer must get rid of the instrument and the injury as he may. “ The company were not bound,” said Gibson, C. J., “to follow the wreck of their bridge. They might abandon it without incurring responsibility for it, and the defendant, after notice given, might have disencumbered his land of it hy casting it back into the river; but he could not appropriate it to his own use. He certainly might have removed it at his own expense, but the refusal of the company to remove it did not divest their property in it or bar their entry to reclaim it. It was held in Etter v. Edwards, 4 Watts 65, that a riparian owner has neither lien nor claim for preserving a raft cast on his land; and this on the authority of Doctor and Student, c. 51, in which it is said that a man who has abandoned his property may at any time resume the ownership of it.” ' The facts that after notice from the plaintiffs, the city made an effort to remove the obstruction, or failing in this that they sold it to another, who made a second unsuccessful attempt, are circumstances which in no way vary the case. It is not essential to immunity that the defendants should have abandoned their property in the thing. The plaintiff always had his remedy in his own hands by removing it himself. Had he done so the defendants would have been entitled to it, though it may be that they could not have maintained replevin without a tender of the expense, or such expense might in trover have been recouped from the damages. Their act, or that of their vendee, though it may be admitted as the assertion of a claim to the property of the thing, could not create a liability for a wrong which they had never committed, and for the consequences of which they could not have originally been made to answer. The principle of our decisions upon this subject seems to be fully supported by the voice of the civil law: Dig. c. 39, tit. 2, 5, 24, 1 Domat by Strahan § 1578; Pandectes par Pothier, vol. xvi., p. 5. The owner of the thing cannot indeed by that law recover or retake possession without compensating the damage it has caused, which may be an equitable rule. The defendants here have not retaken possession, nor are they now seeking to recover it. The defendants have lost their bridge, and the plaintiff his ornamental trees. Both are innocent parties, and both have suffered from the same act of Providence. It seems just that each should bear the loss which has thus fallen upon them.

Judgment affirmed.


author: by Read, J.

text:
    Magee et al. versus Raiguel et al.

    1. The declarations of a creditor before the assignment of a debt, are evidence against the assignee.
    2. The declarations of a debtor whose debt, &c., has been attached, if made before the attachment, are evidence.
    3. To exclude such evidence in excepted cases, the offer must show the evidence to be clearly within the exceptions.
    4. French v. Breidelman, 2 Grant 319, Tams v. Richards, 2 Casey 97, approved. ^
    January 13th and 14th, 1870.
    Before Thompson, C. J., Read and Sharswood, JJ. Agnew, J., at Nisi Prius.
    Error to the District Court of Philadelphia: No. 21, to July Term 1869.
    This was an attachment execution by William Raiguel and others, trading as W. & H. R. Raiguel, against Mary A. McGrath, defendant, and Charles Magee, C. 0. Swope, J. R. Hicks and Isaiah Hicks, trading as Magee, Hicks & Co., and Charles Magee, garnishees. The attachment was issued September 26th 1868; it was not served on Magee, but was served on the other garnishees. The attachment was designed to charge the garnishees with certain goods of the defendant, McGrath, that had in August 1865, come to their storehouse. At the time the goods came to the store of the garnishees, the defendant was indebted to the plaintiff and to several other persons. She afterward confessed to the plaintiffs the judgment on which the attachment was issued. There was evidence that the defendant had a dry good store, that in the summer of 1865 it was closed, that the goods in it were removed in a manner calculated to arouse suspicion, that some of them went to the store of the garnishees and others elsewhere; that Magee was at the store very frequently shortly before closing it and after-wards, in consultation apparently with the defendant, and that he attended to the removal of the goods. There was evidence also that Swope, another of the garnishees, was there occasionally at the same time, gave directions with regard to some of the goods and packed some of them in boxes. The garnishees gave evidence that the defendant was very largely indebted to Magee, that the goods were delivered to him in payment of the indebtedness, that many other persons, had obtained judgments and laid attachments on property in the hands of the garnishees before the attachment in this case; that they were taken to the store-house of the garnishees by order of defendant’s father, and that Magee objected to their coming in. The evidence on each side was quite voluminous and was of the same general character as that given above.
    During the trial the garnishees offered to prove by W. Gaw “ that the defendant, Mary A. McGrath, before the issuing of the plaintiff’s attachment in this case, admitted to him that the said goods had been sent to Charles Magee, and not to Magee, Hicks & Co., and that Magee, Hicks & Co. had no money or goods of hers in their hands, possession, or control.” The offer was rejected by the court and a bill of exceptions was sealed.
    The garnishees’ 7th point was: “ The plaintiffs must prove property of Mary McGrath in the hands of Magee, Hicks & Co., over and above all previous attachments and just' debts due by her to them at the time of the service of the writ in this case, to wit, September 26th 1868; and should they'find less property in their hands than the amount of her debt to Charles Magee, or if more than her debt then less than her debt together with previous attachments, then the verdict must be for the defendants.” The point was affirmed with this qualification; “ that if the jury should find that Magee’s conduct was calculated to put creditors off their guard as to the defendant’s goods, that he was guilty of a fraud, the garnishees would not be entitled to credit for the goods alleged to have been received from her on account of his debt, even if said goods were received by him in payment thereof.”
    The verdict was for the plaintiffs against the garnishees for $1261.09. On the removal of the case to the Supreme Court, the garnishees assigned for error the rejection of their offer of evidence and the answer to their 7th point.

      T. J. Clayton, for plaintiff in error.
    — The plaintiffs as attaching creditors stood in the place of the defendant, and her declarations were evidence against them, as they would have been against herself if a party. Kelley v. Tibbals, 3 P. F. Smith 408; Baugh v. Kirkpatrick, 4 Id. 84. The facts as the plaintiffs allege them, would be the subject of an action on the case for conspiracy, not a proceeding by attachment: Penrod v. Mitchell, 8 S. & R. 522; Mott v. Danforth, 6 Watts 306.
    January 24th 1870,
    ír. JunJcin and O. M. Husbands, for defendants in error.
   The opinion of the court was delivered,

by Read, J.

— The declarations of a creditor before the assignment of a debt are clearly evidence, and so where there is an attachment execution, the declarations of the owner of the debt or goods attached made prior to the issuing of the attachment may be given in evidence. This is the general rule, and if they are to be excluded in certain excepted cases, then the offer of the evidence must appear affirmatively to be brought within them. The offer in the case before us was to prove a declaration of the defendant before the issuing of the plaintiff’s attachment, and to reject it was error, although upon examination of the witness it might have turned out to be inadmissible from circumstances not stated in the offer.

In French v. Breidelman, 2 Grant’s Cases 319, Judge Lowrie, delivering the opinion of the court, said “ The Execution Act of 1836, sec. 35, allows an execution attachment to issue to reach debts due to the defendant, or deposits of money made, or goods pawned pledged, or demised by him; and the main question of the present cause is, is this an appropriate writ under the Act to the case of a sale of a store of goods, in fraud of creditors, where the fraudulent vendee has sold part, and has the rest on hand. We think it is.”

In Tams v. Richards, 2 Casey 97, the same learned judge said: “It is certainly very plain that the service of the execution attachment on William Tams rendered him liable to account to that execution creditor for all the property of John Tams, which he had then obtained in fraud of creditors, up to the amount of that creditor’s claim. It would be no defence to William Tams that he had lost a part of the property or intrusted it to the care of others or sold it, and had not yet received payment. That he had received it in fraud of creditors was a sufficient basis for the demand, that he should deliver it up or account to them for the value of it.”

This is sound doctrine, and we do not intend to disturb it, but we do not think the observation of the learned judge, in his answer to the defendant’s seventh point, comes within the rule of these cases. It assumes that there was a debt due from the defendant to Magee, and that the goods attached were received by him in payment thereof, but that if Magee’s conduct was calculated to put creditors off their guard as to the defendant’s goods, he was guilty of fraud, and the garnishees should not be entitled to credit for these goods. This cannot be the law, and we are inclined to think there was some misapprehension in the hurry of the trial, or that the meaning of the learned judge has not been very clearly expressed.

Judgment reversed, and venire de novo awarded.