author: Per Curiam.

text:
    Columbia Conduit Co. versus Commonwealth.
    1. A corporation engaged in the removal of petroleum from place to place, by means of pipes, is a transportation company, within the meaning of the 4th section of the Act of April 24th 1874, and the 5th section of the Act of March 20th 1877, and is subject to the tax imposed by said acts.
    2. The Act of 1874 requires transportation companies to pay annually a tax, “ at the rate of nine-tenths of one mill upon its capital stock for each one per cent, of dividend made or declared by such company.” Held, that the amount contributed' by the stockholders to pay a loss incurred by the corporation cannot be deducted from the amount of this taxable dividend, as made or declared.
    May 19th 1879.
    Before Sharswood, O. J., Mercur, Gordon and Trúnkey, JJ. Paxson, Woodward and Sterrett, JJ., absent.
    Error to the Court of Common Pleas of Dauphin county: Of May Term 1879, No. 143 and 144.
    These were two appeals by the Columbia Conduit Company of Pennsylvania from the' decision of the Auditor-General and State Treasurer, made in the settlement of the accounts of said company with the Commonwealth. Said officers first assessed a tax on the capital stock of said company, for the year ending the first Monday of November 1876, under sect. 4 of the Act of April 24th 1874, Pamph. L. 70, which provides as follows:
    “ That every railroad company, canal company, steamboat company, slackwater navigation company, transportation company, street passenger railway company, and every other company now or hereafter incorporated, by or under any law of this Commonwealth, or now or hereafter incorporated by any other state, and doing business in this Commonwealth, and owning, operating or leasing to or from another corporation or company, any railroad, canal, slackwater navigation, or street passenger railway, or device for the transportation-of freight or passengers, or in any way engaged in the transportation of freight or passengers, shall be subject to and paya tax into the treasury of the Commonwealth, annually, at the rate of nine-tenths of one mill upon its capital stock for each one per cent, of dividend made or declared by such company, and in case- of no dividend being made or declared by such company, upon either its common or preferred stock, then six mills upon a true valuation of the capital stock of the-same, upon which no dividend has been made or declared, made in accordance with the provisions of the third section of this act.”
    Said officers also imposed a tax on the gross receipts of said company, from March 20th 1877 to June 30th 1877, under the provisions of the Act of March 20th 1877, Pamph. L. 5, the 5th section of which provides that the companies mentioned in the Act of April 24th 1874, sect. 4, “shall pay annually * * * a tax of eighth-tenths of one per centum upon the gross receipts.”

      The Columbia Conduit Company is a corporation created by the Act of 25th April 1872, Pamph. L. 1872, p. 1150. Section third of that act thus enumerates the objects for which the company was formed and the powers it should possess:
    “ That the company shall have the right for themselves or as agents, upon commission or otherwise, to purchase, sell or otherwise dispose of oil and oil-lands, mine or bore for oil, and store, insure, ship and transport petroleum, and may construct and erect tanks of iron or other suitable material for the storage of oil, and to lay down,'construct and connect iron or other pipes or tubing for that purpose, from any point or points within the county of Butler, to, at or near Sharpsburg, in the county of Allegheny, by such route or routes as may be for the best interests of the company ; and said company shall also have the right to take, use and occupy such lands as may be necessary for the purpose of erecting tanks to hold the oil or petroleum, and for the purpose of laying down the pipes or tubing for the conveyance of the oil from well, wells or reservoirs, and for all necessary branches, and for the erection of such machinery as may be requisite to carry on the transportation and storage business of the company.”
    The company laid down pipes, through which petroleum was conveyed from point to point.
    The cases were tried by Pearson, P. J., without a jury, who delivered the following opinions therein:
    “ The facts established in the first of these cases, No. 230, November Term 1877, present two prominent points : First, is the defendant a company on which a tax is imposed by the 4th section of the Act of April 24th 1874? 'and, secondly, if taxable* at what amount should that tax be rated ?
    “ The statute, after enumerating various other companies, speaks of ‘transportation companies,’ ‘and every other company now or hereafter incorporated by or under any law of this Commonwealth,’ and. after providing for other companies incorporated by other states, doing business here, goes on to say, ‘or device for the transportation of freight or passengers, or in any way engaged in the transportation of freight or passsengers, shall be subject to and pay a tax into the treasury of the Commonwealth annually, at the rate of nine-tenths of one mill upon its capital stock for each one per cent, of dividend made or declared by such company.’ It is conceded in the argument, that the principal, and, probably, all of the business of this company, is in flowing petroleum or oil from place to place, mentioned in the charter of incorporation, by means of pipes, through which the oil or petroleum flows, or is pumped, and is thus moved by flowing or pumping, according to the character of the grade from the oil wells to the place of manufacture, and, probably, the prepared oil from thence to the points on the railroad for shipment. It is contended that this moving of petroleum, by means of pipes, is not ‘transporting,’ and, therefore, that this is not a transportation company. The defendant’s counsel contends, that to transport is ‘to carry,’ and that this transit company does not carry, but the petroleum flows — we consider this too narrow a construction. If we look into the dictionary for the meaning of the word ‘transport,’ Webster defines it, ‘ to carry or convey from one place to another,’ again, ‘ to remove from one place to another,’ and throughout all of the derivations from the word transport we find the same part of the definition ‘ to remove; ’ as transported is, inter alia, defined ‘removed.’ This petroleum is certainly removed. To look into the origin of the word, composed of trans, ‘ over,’ ‘from one place to another,’ and portus, ‘moving or carrying,’ and portatus, ‘ bearing or bringing,’ is going into too much refinement, but such was the character of the argument. We must construe wmrds, not according to their original etymology, but by the common parlance'of the country. In the present case, we have a much better guide — the words of the charter of incorporation, the third section of whibh authorizes the company to transport petroleum, and, for that purpose, to lay down pipes from the points named, and for the purpose of transportation of petroleum, oil, &c., may lay down pipes or tubing.
    “ Again, the fourth section gives like authority: to lay down pipes or tubing to supply the refinery with oil. Again, in the Act of March 12th 1872, P. L. 23, we find similar language used in regard to the transportation of petroleum in certain counties ; they are authorized to lay down pipes, tubing, &c., to transport petroleum. This being the general language used by the legislature in regard to the removal of petroleum from place to place, by means of pipes, why shall we not believe that the same was meant when the tax is laid on all transportation companies ?
    “Again, this 4th section of the Act of 1874, in speaking of the companies to be taxed, also says, after enumerating certain kinds of companies, ‘ or device for the transportation of freight or passengers, or in any way engaged in the transportation of freight or passengers.’ Under this language we cannot doubt that this is a company engaged in the transportation of freight, within the Act of Assembly.
    “ The second is a question of greater difficulty. In assessing this tax on the capital stock, the state officers have no other data than the report made by the company officers, under oath, as required by law. The return shows very clearly that between the 15th day of February and the first Monday of November, the sum of $200,000 was received and divided among the stockholders, on •a capital of $350,000. All of this was paid over, from month to month, during the year 1876, as made. The return shows, however, that during the year the corporation met with losses, which, ■ although they did not reduce the dividends, had to be made up by the stockholders, who furnished petroleum from time to time, to cover the evaporation and supply the place of that which was burned, amounting in all to $89,429.58, the net profits of the year being only $110,570.42. Can the court allow a credit for that loss, or, under the words of the statute, must we tax the capital stock according to the ‘ dividends made or declared by the company ? ’
    “ If the tax was imposed on the net profits there would be no difficulty. The sum which the stockholders were obliged to pay would be deducted. The profit to them is lessened by that much. Such is not the form of the assessment or the words of the statute. It is not even a tax on dividend, but on the “ capital stock, measured by the amount of dividend made or declared.” The dividends in the present case were not only made and declared, but actually paid over to the stockholders. They preferred receiving their dividends, and making up the loss by eváporation or fire by delivering more petroleum, and if they chose to transact their business in that way it did not lesson the amount of dividends, yet it did of clear profit at the end of the year. The stockholders need not receive their dividends until the end of the year, and can then have the losses paid before the dividend is declared. That course was not pursued here; but, on the contrary, the dividends were all paid over, and the losses afterwards voluntarily made up by contribution of the stockholders. Sometimes dividends are so declared in order to ostensibly increase the value of the stock for the purpose of speculation by sales. Be the object what it may, the dividends in the case under consideration were actually made and declared, and fixes the tax on the capital stock. We therefore report against this corporation and in favor of the Commonwealth, as per report filed with this opinion.”
    The defendant took these writs and alleged that the court erred in the foregoing decisions.

      Eugene Snyder and Jeremiah S. Black, for plaintiff in error.
    This Conduit Company is a transportation company, within the meaning of the Act of Assembly. The company lost some oil by a fire, which the stockholders agreed to replace on condition that the company should pay them for it. This created a debt which was due to the stockholders, payable out of the company’s capital, or any property it possessed. But the creditors gave time until the earnings were sufficient to pay the debt and make a dividend besides. Then the debt and dividend were paid together. These facts were not denied, but because the distribution was made in the form of a dividend, substantial justice was refused, and the company was taxed for its losses as well as its profits.

      Lyman D. Grilbert, Deputy Attorney-General, and Henry W.

      Palmer, Attorney-General, for the Commonwealth.
    This corporation from the language of its charter and the nature of its 'business, is subject to this tax. The legislature expressly declared that it taxed every corporation “ owning, operating or leasing, any device for the transportation of freight or passengers.” These words were intended to reach any other method than that in use by the corporations already specified in the section.
    The charter of the company, already referred to, sustains this interpretation. Among the privileges given the company there is found the express one “ to transport petroleum,” and “ to take, use and occupy such lands as may be necessary” “for the purpose of laying down pipes or tubing for the conveyance of oil.”

    The tax is laid on the capital stock, and not on the dividend, and the measure of the tax is the dividend made or declared. The dividend is not the subject, but only the admeasurement of the tax, and it is sufficient if it loe declared by the company without being actually earned: Commonwealth v. Cleveland P. & A. Railroad Co., 5 Casey 370; Lehigh Crane Iron Co. v. Commonwealth, 5 P. F. Smith 448; Phœnix Iron Co. v, Commonwealth, 9 Id. 104; Catawissa Railroad Co.’s Appeal, 28 Id. 59.
    June 2d 1879,
   The judgment of the Supreme Court was entered

Per Curiam.

We affirm these judgments upon the opinion of the learned president of the court below.

Judgment affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Commonwealth versus Wickersham.
    1. The courts have no power to issue writs of mandamus to state officers.
    2. No such power is conferred upon the Court of Common Pleas of Dauphin county, by the Act of April 7th 1870.

      3. The Act of April. 9th 1867, provides, that service as county, city or borough superintendent of public schools shall be deemed a sufficient test of qualification, where the same person is re-elected. Held, that it is not an absolute test, and if objections are made to one re-elected, who, upon examination, is found unfit, he is not entitled to the office.
    May 19th 1879.
    Before Sharswood, C. J., Mercur, Gordon, and Trunkey, JJ. Paxson, Woodward and Sterrett, JJ., absent.
    Error to the Court of Common Pleas of Dauphin county: Of May Term 1879. No. 29.
    This was a petition for a mandamus, filed by Jeremiah E. Hawker, which set forth, in substance, that the petitioner had been elected, commissioned and served as the county superintendent of schools of Wayne county, and borough superintendent of common schools for Hyde Park in Lackawanna county; that being thus qualified the petitioner was, on June 29th 1878, elected city superintendent of common schools of the city of Scranton, for the term of three years ; that a return of said election was duly filed, July 16th 1878, in the office of Hon. James P. Wickersham, superintendent of public instruction ;• that'thereupon it became the duty of said superintendent of public instruction, within thirty days from the filing of said return (no valid objection thereto having been received or made) to issue a commission to petitioner as said city superintendent, which had been refused, although requested, &c., and praying for a mandamus.
    The answer of the superintendent of public instruction set forth that the court had not jurisdiction because:
    “1. The jurisdiction of the court to issue writs of mandamus is founded upon and contained in the Act of 14th June 1836, Pamph. L. 626, which provides as follows : ‘ The several courts of Common Pleas, the president judge being present, shall within their respective counties, have the like power with the Supreme Court, to issue writs of mandamus to all officers and magistrates, elected or appointed, in or for the respective county, or in or for any township, district or place within such county, and to all corporations being or having their chief place of business within such county.’ Your respondent saith that he is not such an officer as is included within any of the classes above named, but is a state officer, and by the first section of art. 4 of the constitution becomes and is a member of the executive department of this Commonwealth.'
    “2. It is true respondent received a certificate of the election of relator, but that respondent also, on the 17th of July 1878, received a statement of objections to the issuing of-a commission to relator, which statement was signed by eight citizens and taxpayers of said city of Scranton, who were also members of the board of school control of said city, which averred that relator does not possess the literary and scientific acquirements demanded by the common-school law of the state, and required by the present condition of the public schools in said city, ‘ and that he did not possess a sound moral character, such as is contemplated in the Act of Assembly and as is imperatively demanded by public opinion and the high office in questionthat it was the duty of the respondent, under sect. 13 of the Act of April 9th 1878, Pamph. ,L. 56, ‘to appoint two competent persons, himself the third, to examine the person so elected county, city or borough superintendent that he performed this duty, and the committee reported ‘that after a careful examination they believe Mr. Hawker does not possess the literary qualifications specified by law, and which are required for the successful discharge of the duties of the office to which he has been elected.’ ”
    The case was argued before Pearson, P. J., who delivered the following opinion:

      “ The answer in this case raises two important questions: First, as to the jurisdiction of the court to issue the writ; second, as to the merits of the case. If we have no jurisdiction, it is unnecessary to inquire further. By the common law the writ of mandamus was looked upon as a high prerogative writ, which could be issued out of the Court of King’s Bench alone, where the king was originally supposed to be sitting in person. The power to issue it did not exist in any inferior tribunal, and generally it was only allowed to prevent a failure of justice when the relator had no other legal remedy or one attended with great delay. By an early statute, Act of 22d of May 1722, the Supreme Court of this state was authorized to administer justice as fully and amply, to all intents and purposes whatsoever, as the justice of the Court of King’s Bench, Common Pleas and Exchequer at Westminster, or any of them, may or can do. That law continued in force, and the process of that court to run throughout the state to secure justice to all men until the convention for forming a new constitution, in the plentitude of its wisdom, abrogated the power altogether without conferring it on any other tribunal. The third section of the fifth article gives authority to issue writs of mandumus to all inferior courts, but takes away original jurisdiction in all other cases. See Butler v. Hartranft, Governor, 27 P. F. Smith 154. No inconvenience was ever felt from the exercise of the power by the Supreme Court. We never heard of its abuse. The Courts of Common Pleas in the state never were authorized to issue the high prerogative writ of mandamus until it was conferred in a very limited form by the eighteenth section of the Act of June 14th 1836, which declares that they shall, within their respective counties, have the like power with the Supreme Court to issue writs of mandamus to all officers and magistrates elected or appointed in or for the respective county, or in or for any township, district or place within such county, and to all corporations being or having their chief place of business within such county. It is in these cases, and over these persons and corporations alone that the Courts of Common Pleas have jurisdiction.
    “ The superintendent of public instruction is not an officer elected or appointed in or for the respective county, or fbr any township, district, or place within such county, nor is he a corporation having his chief place of business within the county of Dauphin. He is a state officer, appointed by the governor, under the eighth section of the fourth article of the constitution, by and with the advice and consent of two-thirds of the senators, for a general state purpose, and the jurisdiction of his office extends throughout the Commonwealth, and we have precisely the same power over the attorney-general or secretar} of the Commonwealth. The legislature never intended to give any such power to the inferior courts over the state departments. If this is thought necessary, in order to bring the cases before the appellate court, it must be done by direct legislation. Original jurisdiction cannot be conferred on the Supreme Court in such cases. It is interdicted by the constitution. The want of jurisdiction in this court to us is so clear and plain that we would not have considered it necessary to say a word on the subject but for an expression to be found in the opinion of the Supreme Court, in Butler v. Hartranft, Governor, already cited, where the judge, in very properly lamenting the want of jurisdiction in the Supreme Court, as always theretofore enjoyed, says: ‘ This must drive every one to the seat of government, into a local court, to maintain the rights of the people against state officers, subject to all the delays which flow from the right of appeal.’
    “ We have no doubt that in writing the sentence in the haste of delivering an opinion, that generally very accurate judge did not advert to the fact that the court at the seat of government had no common-law jurisdiction over such officers, and that none was conferred by statute, therefore there ivas no possibility of getting the case into the Supreme Court by appeal. Although the books say that it is the business of a good judge to enlarge or amplify his jurisdiction, yet he must certainly not assume it, where it clearly never was conferred, and if there is a denial of right and a wrong without a remedy, yet, in the present case, it is clearly attributed to the constitution.
    “ The peremptory mandamus is refused, and petition dismissed for want of jurisdiction.

      “ Since writing the foregoing opinion, my attention has been directed to the first section of the Act of April 7th 1870, ‘ enlarging the jurisdiction of this court,’ Pamph. L. 57-8, which had been overlooked by the court and counsel on both sides, and is supposed to have a bearing on the case. We are asked by the plaintiff’s counsel to reconsider our opinion. The section declares ‘ that the Court of Common Pleas of the county of Dauphin, is hereby clothed with jurisdiction throughout the state, for the purpose of hearing and determining all suits, claims and demands whatever at law and in equity, in which the Commonwealth may be party plaintiff, for accounts, unpaid balances, unpaid liens, taxes, penalties and all other causes of action, real, personal and mixed.’ Does that confer the power to issue writs of mandamus, or enlarge the limited power already conferred ? Every part of the act, in all of its sections, clearly relates to the money concerns of the state, unless the words ‘ all other causes of action, real, personal and mixed,’ which we have italicised, are designed to confer the authority. We can scarcely infer that the ordinary language used to give jurisdiction to collect njoney, recited in the other portion of the section, was intended to embrace a writ never used for such purposes, but to compel the performance of a duty where the party has no other legal remedy. It has been held, ‘ that if several words of a statute follow an enumeration of particular cases, they are held to apply only to cases of a like kind with those enumerated 5 McLean 178; 1 Brock. 526; 2 Wall., Jr. 72. Here accounts, unpaid balances, unpaid liens, taxes and penalties are the claims enumerated, and the words which follow, we conceive, relate to matters of a like character; not to authorize the court to use a high prerogative writ to oblige a-co-ordinate branch of the government to perform what we might consider a duty, or to do an act in a, particular way. Such a power should be clearly conferred in express language before it can be assumed. The second section enables a foreign attachment to-be issued by the Commonwealth to secure the collection of its claims, and the third imposes a percentage, to he paid by delinquent debtors to the officers of the state who have been at the trouble of making the collections. All relate to money matters due the Commonwealth.
    ■ “ The title of the act furnishes little aid in its solution, for although entitled ‘ An act to enlarge the jurisdiction of the courts of Dauphin county, in cases where the Commonwealth may be plaintiff, and to provide for the issuing of writs of foreign attachment in such cases,’ yet, the enlargement is to enable all suits to be brought at the seat of government instead of suing at the residence of the debtor, or where he might be found. The character of the enlarged jurisdiction is stated in the act itself.
    “ When the statute, or its title, speaks of the Commonwealth as plaintiff, it certainly refers to ordinary actions for the collection of money, not to the high prerogative writs authorized to be sued on the relation of an injured party, and although the name of the Commonwealth is used, yet, in such cases, the public is not the plaintiff, unless the state, alone is interested. In such cases, we well might apply the legal maxim, that laws treating of persons or subjects of an inferior nature shall never be applied to those of a superior.
    “The legislature, in 1870, when this law was'enacted, never thought for a moment of giving the Court of Common Pleas of Dauphin county jurisdiction over state officers, for, at that time, it was fully vested in the Supreme Court, whose power extended throughout the Commonwealth. The jurisdiction of the county courts over this writ was extremely limited. It might now, with great propriety, be enlarged, as the only mode of reaching the Supreme Court, under the constitution, is by appeal. On the whole, I am of opinion, as before decided, that we have no power to issue the writ a's prayed.
    “ No costs can be allowed to the defendant in this case, as it is a universal rule, except when changed by express statute, that where there is no jurisdiction there are no costs.”
    This decision was assigned for error by the petitioner, who took this writ.

      Francis Jordan, for plaintiff in error.
    The. judicial power of the state is conferred upon the courts by the first section of the fifth article of the constitution. The power to issue mandamus is a judicial power, and has been exercised by the courts for one hundred and fifty years. It is alleged that this power to issue mandamus was taken away by sect. 3, art. 5 of the constitution, which excludes mandamus from the original jurisdiction of the Supreme Court. The constitution, as quoted, confers upon the courts all jurisdiction, whether original or appellate. When the third section, therefore, took from the Supreme Court, original jurisdiction in mandamus, it did not take any- of its appellate jurisdiction, but, on the contrary, expressly retained it; and how could it exercise its appellate jurisdiction, if there were no court of original jurisdiction from which an appeal could be taken ? The original jurisdiction in mandamus plainly exists in the lower courts : Commonwealth v. Hartranft, 27 P. F. Smith 154. The jurisdiction is also conferred upon the Court of Common Pleas of Dauphin county by the Act of April 7th 1870, Pamph. L. 57.
    There was no occasion for a committee to act in this ease, as the Act of Api'il 9th 1867 provides, “that serving as county, city or borough superintendent shall be deemed a sufficient test of qualification.”

      Lyman L). Gilbert, Deputy Attorney-General, and Henry W. Palmer, Attorney-General, for the Commonwealth.
    The words “judicial power” have certainly not the wide meaning given them by the plaintiff in error. If we admit his argument, that the right to issue a writ of mandamus is a “judicial power,” then it follows that as none of the lower courts is excepted, all must have it, which certainly could not have been contemplated.
    The proposition which asserts, that because the Supreme Court has appellate jurisdiction, therefore some court must have original jurisdiction of the writ of mandamus, so that an appeal may be taken, .in such a case, to the Supreme Court, is overthrown by the language of the constitution. It is provided, in sect. 3 of art. 5 of the constitution, that the judges of the Supreme Court “shall have appellate jurisdiction by appeal, certiorari or writ of error, in all cases, as is now or may hereafter be provided by law.” As there was no law, when the constitution was adopted; giving them appellate jurisdiction of writs of mandamus to state officers, and there has been none since passed, it is sufficient to say they do not possess it.
    The Act of 14th June 1836 conferred upon the Courts of Common Pleas the only jurisdiction they possess over the writ of mandamus, and the cases in which they shall exei’cise that jurisdiction are those enumerated: Miller v. McCutchen, 2 Pars. 209; Whitemarsh Township v. Railroad Co., 8 W. & S. 366; Wolf v. Commonwealth, 14 P. F. Smith 254. The whole purpose of the Act of 1870 was to assist the Commonwealth in collecting its indebtedness.
    June 2d 1879,
   The judgment of the Supreme Court was entered

Per Curiam.

Upon the question of the jurisdiction of the Court of Common Pleas of Dauphin county to issue a mandamus to a state officer, we adopt the opinion of the learned president of the court below.

Apart' from this question, we think, even if the court had jurisdiction, the relator did not show himself entitled to the mandamus for which he prayed. It is true, that by the Act of April 9th 1867, it was provided that serving as county, city or borough superintendent shall be deemed a sufficient test of qualification, but the act also provides that, if upon examination of the evidence of competency it shall not prove to be such as is required, or if objection be made in conformity with the fourth section of the Act of April 17th 1865, the superintendent of common schools shall appoint two competent persons, himself being the third, to examine the person elected, and if upon such examination his qualifications are found insufficient, the commission shall not issue. The answer of the respondent shows that such objections were made,' the committee appointed, and a report made unfavorable to the relator. It is clear, we think, that it is only where no objections are interposed, that the proviso, that serving as county, city or borough superintendent shall be deemed a sufficient test of qualification. Such service may have shown that the candidate was entirely disqualified.

Judgment affirmed.


author: Mr. Justice Mercur

text:
    Mildren versus The Pennsylvania Steel Co.
    M. brought an action against a steel company, to recover for certain bottoms manufactured and delivered to defendant. 'The alleged contract, under which the work was done, was based upon an interview between the plaintiff and G. and B., superintendents of the steel works, and a written memorandum made at the time, by G., which set forth the terms on which plaintiff would furnish the bottoms. It was drawn in the form of an agreement but was not signed by any of the parties. M. testified that he understood the memorandum to embody an agreement between him and defendant, and that it was handed him to keep, as evidence thereof. B. testified it was drawn at his instance and for his future guidance and not for the plaintiif, and that he did not deliver it to him. At the trial, it was produced by plaintiff and given in evidence. Held, reversing the court below, that the memorandum,-having been drawn during the negotiation between the parties, in regard to the very subject-matter in controversy, it was a question for .the jury, under the whole evidence, whether it contained the terms of an agreement between the parties, and the fact that it was not delivered did not destroy all its effect as evidence of a contract therein recited.

      May 19th 1879.
    Before Sharswood, C. J., Mercur, Gordon and Trunkey, JJ. Paxson, Woodward and Sterrett, JJ., absent.
    Error to the Court of Common Pleas of Dauphin county: Of May Term 1879, No. 70.
    Assumpsit by Edward J. Mildren, doing business as “The Black Lick Manufacturing Company,” against the Pennsylvania Steel Company.
    The material facts were these: Mildren was engaged in the manufacture of fire-brick- and other articles made from fire clay. The defendant is engaged in the manufacture of steel, and prior to June 1876, had used in its converting departments certain patented machinery and fixtures known as the Haas’s bottom. At that time the defendant contemplated the introduction of some new and supposed better machinery, to take the place of the Haas bottom; and with that view one William Golding, an employee of the defendant, prepared a pattern for a piece of machinery called a bottom, and sent it by express to the plaintiff, with instructions to manufacture ■ two of said articles according to the pattern so furnished. This was a large hollow article, about four feet in length, and one foot in diameter, with a separated bottom composed of several small pieces, and made to contain molten metal.
    On the 14th of June 1876, Mildren was at the steel works of the defendant, when he and Mr. Golding had a conversation in regard to the matter, Golding informing Mildren that the order to manufacture two bottoms had been forwarded to him, and that when made they should be sent to the steel works to see whether they would answer or not. It was in evidence that after the conversation with Golding, Mildren had an interview with Mr. Bent, the superintendent of the works, and that during the conference the following writing was drawn up by Mr. Golding;
    “June 14th 1876.
    The agreement between Mildren and P. S. Co. is that Mildren makes one hundred bottoms. If there is any trouble about royalty the P. S. Co. pays one-half the extra expenses of preparing to make the bottoms, and the P. S. Co. will either stop their order or continue it as they may please. If there is no trouble, and the bottoms prove satisfactory, and the P. S. Co. order further, then Mr. Mildren bears the total expense of preparation, and puts his price on the bottoms. The first one hundred bottoms to cost same as Haas’s bottoms. The other bottoms made after to be subject to another second contract that may be made hereafter.”
    Mildren testified that this memorandum was the result of an arrangement or agreement between the parties, and that he received it with such understanding. Golding on the contrary testified that it was a mere memorandum for Mr. Bent, and was not intended for Mildren at all, and. not delivered to him. The writing was produced by Mildren at the trial. Shortly after this interview Mildren was at the steel- works, when two of the new bottoms had arrived. One had been tried and found unsatisfactory, and the other was tried while he was there and was likewise found to be unsuitable for the purpose required. Mildren proceeded to manufacture the rest of the one hundred bottoms and to deliver them. Bent wrote to ascertain by what authority they were sent, and Mildren replied “ By the article of agreement entered into between us,” by which was meant the*above memorandum. Bent refused to receive the bottoms, and hence this suit. It was in evidence that the two bottoms made and furnished were for mere experiment, and that the manufacture and delivery of the one hundred were to be contingent upon the success of the experiment. There was also evidence that Bent had agreed to pay one-half of the expense in making the original two bottoms, and that Mildren had said $75 would cover the one-half, and that Bent had tendered this amount. On the contrary there was evidence that the expense had been about $400.
    At the trial, the court, inter alia, charged:
    “ Although they talked over the matter between them (Golding and Mildren), when he talked with Mr. Bent, we have no proof of an arrangement at all. * * * Suppose it to be as Mr. Mildren says, an unsigned paper. That does not make it a contract. It is a mere memorandum, as to what is going to be done, or agreed upon. Suppose you were negotiating about the sale of your farm to a man, and the whole thing is talked over, and some person makes a memorandum as to what he thinks the bargain was, and the man goes away and does not contract, the paper made is no contract at all; it is not binding upon anybody. If it was delivered, still it is not a contract. * * * * If it was not a contract delivered, then it amounts simply to nothing; it is a paper that ought to have no weight in the present case. • It was a memorandum of their talk, and not a memorandum of a bargain, if it was not delivered, if what Mr. Mildren said about that being for both sides is correct, still it would be a memorandum for both, though no contract. It is not like the case of a contract which has been drawn up after a full understanding. Even then, until signed, it is no bargain at all; but it can be used to show what those two men understood at the time.”
    And again:
    “ I am speaking now particularly in regard to the delivery of this paper; for in that is the turning point in this case. * * * If it was not intended that the paper should be delivered, you ought to reject it entirely, and depend altogether upon the memory of the different witnesses. If the paper was drawn for the other parties, ‘but taken away without their knowledge or consent, it ought not to he treated as a part of the contract. It is true that it was written down by Mr. Golding; but if that was for themselves, and not for Mr. Mildren, it would not be a binding contract at all."
    The verdict was for plaintiff for $334.03. After judgment he took this writ, and inter alia, assigned for error the above portions of the charge, which constituted respectively the fourth and fifth assignments of error.

      Hall Jordan, for plaintiff in error.

      Gilbert cf McPherson, for defendant in error.
    October 6th 1879.
   Mr. Justice Mercur

delivered the opinion of the court,

This is an action to recover for certain bottoms manufactured and delivered by the plaintiff. In the manufacture of steel, the iron is melted in a cupola, and run into a receiver. Then a blast of air is forced through a perforated bottom, “ decarbonizing and oxidizing the molten iron.” The action on the bottom by the blast is very destructive, and the object of the experiment in making the bottoms in controversy, was to create some that would endure longer than those previously used.

The main question in the case relates to the alleged contract under which the plaintiff claims the bottoms were manufactured. A conversation relating thereto was had, in which the plaintiff, Mr. Bent, superintendent of the company defendant, and Mr. Golding, superintendent of the Bessamer department, all participated. The evidence is conflicting as to how far Mr. Bent took a part in the negotiation, and also as to the terms of the agreement. A written memorandum was made at the time, by Mr. Golding, setting forth the terms on which the plaintiff would furnish the bottoms. It was drawn in the form of an agreement, -but was not signed by any person. The witnesses differ as to the purpose for which it was made. The plaintiff understood it to embody an agreement between him and the defendant, and that, therefore, it was handed to him to keep as evidence thereof. Mr. Bent says it was drawn at his instance and for his future action and guidance, and not for the plaintiff, and that he did not give it to the latter. On the trial it was produced by the plaintiff, and given in evidence. Having been drawn during the negotiation between the parties, in regard to the very subject-matter in controversy, it was a question for the jury, under the whole evidence, whether it contained the terms of an agreement between the parties. If it was not delivered to the plaintiff, that fact of itself did not destroy all its effect as evidence of a contract therein recited. The learned judge, therefore, erred in saying to the jury, “ If it was not a contract delivered, then it amounts simply to nothing; it is a paper that ought to have no weight in the present case.” It was some evidence of facts stated during the negotiation. They were, at the very time, reduced to writing by a person taking part in the negotiation, at the instance and in behalf of the defendant. The memorandum did then amount to something, and was entitled to some weight in ascertaining what the parties understood, and what they did at the time of the negotiation. It was also error to say to the jury, when the plaintiff, “ talked with Mr. Bent, we have no proof of any arrangement at all.” If the evidence of the plaintiff is believed, Mr. Bent did assent to the alleged agreement as set forth in the written memorandum. In so far as the portions of the charge covered by the fourth and fifth assignments are in conflict with the views we have expressed, those assignments are sustained. We discover no substantial error in the remaining assignments.

Judgment reversed, and a venire facias de novo awarded.


author: Per. Curiam.

text:
    Earley’s Appeal.
    1. The exercise of jurisdiction to open judgments, entered on warrants of attorney, has always been held to he within the sound discretion of the court. The Act of April 4th 1877, which provides for an appeal to the Supreme Court, has not changed the law in that respect.
    2. In such cases, the courts may judge of the weight of the evidence and the credibility of'the witnesses, and they are not required, in every case where there is a conflict of testimony, to send it to the jury.
    May 20th 1879.
    Before Sharswood, C. J., Mercur, Gordon and Trunkby, JJ. Paxson, Woodward and Sterrett JJ., absent.
    Appeal from the Court of Common Pleas of Dauphin county: Of May Term 1879. No. 189.
    Appeal of John Earley, from the decree of the court refusing to open a judgment entered upon a warrant of attorney.
    Earley gave a judgment-note to John Zaring for $472.18.. Judgment was entered on the note and execution issued thereon, when Earley obtained a rule to show cause why the judgment should not be opened, on the ground that one of three notes which made up the amount of the judgment-note was a forgery.
    Depositions were taken, and a hearing had before Pearson, P. J., who in an opinion, inter alia, said: “We have no doubt, from the whole course of John Earley, that the note was his, signed or authorized by him, and there is scarcely a pretence that the bond given is not good and valid. Where men swear as differently as do Zaring and Earley, about what occurred when the bond was executed, we cannot disregard the writing or permit a‘jury to disregard it, else no man will be safe where the parties are witnesses. Neither of us believe much that John Earley has sworn to, taking his own statement. It is too improbable and contradictory. It is contended that where the testimony of the parties is so contradictory, it must be left to a jury to decide. We hold, that judgments entered on genuine instruments are not to be thrown open in all cases on the oath of a party alone, against the oath of the other party. . In such cases, the writing must prevail and the judgment remain undisturbed. The application is refused.”
    From this decree this appeal was taken by Earley, under the provisions of the Act of April 4th 1877, Pamph. L. 53, alleging that the court erred in undertaking to determine the facts in dispute between the parties; in the court’s conclusions thereon, and in not opening the judgment.

      Fleming McOarrell, for appellant.
    The application to open this judgment, was not based upon testimony in any way contradicting the instrument or varying its terms. It rested upon testimony going to show what the consideration for this judgment-note was, and that this consideration had partially failed, by reason of the fact that through mistake and want of eyesight, a forged note for $250 had been included in it. Such evidence was admissible : Anspach v. Bast, 2 P. F. Smith 358. The court took upon itself the responsibility of deciding disputed facts which in no sense contradicted the instrument, and of weighing the testimony and passing upon the credibility of witnesses. We. submit that this was error: Massey v. Buck, 1 Phil. R. 215; Kellogg v. Krauser, 14 S. & R. 143.

      W. O. Fetweiler and A. J. Herr, for appellee.
    There is no evidence to contradict Zaring, except the testimony of Earley. A judgment will not be opened on the defendant’s unsupported affidavit, which is contradicted by the plaintiff under oath : Packer v. Rice, 2 Luzerne L. Reg. 24. It was within the discretion of the court to determine the question of fact.
    June 7th 1879,
   The judgment of the Supreme Court was entered,

Per. Curiam.

The exercise of jurisdiction upon rules to open judgments entered on warrants of attorney, has always been held to be within the ■ sound discretion of the courts. The Act of April 4th 1877, Pamph. L. 53, which provides for an appeal to this court, has not changed the law in that respect. It provides only that the decision “ shall be reviewed by appeal in like manner and proceedings as equity cases are now appealed.” It is a mistake to suppose that the court cannot judge of the weight of the evidence .and the .credibility of witnesses, bui must in every case, where there is a conflict of testimony, send the case to a jury. In equity cases, these questions may be determined by the chancellor, and on appeal his decision is reviewed. We are to determine in all such appeals whether the discretion of the court below has been rightly exercised. We think the decision on the rule in this case, is fully sustained by the opinion of the learned president.

Order affirmed, appeal dismissed at the cost of the appellant and record remitted.


text:
    Pennsylvania Railroad Co. versus Fortney et al.

    1*. In an action on the case, to recover damages for the death of one alleged to have been killed by the negligence of a railroad company, if the undoubted evidence clearly shows any fact which proves the deceased was guilty of concurring negligence, the court should say there can be no recovery ; but if the fact relied on to establish negligence is doubtful, the case should be submitted to the jury.
    2. While it is true, as-a general rule, that a party cannot be permitted to impeach the veracity of his own witness, yet he may disprove the facts to which his witness has testified.
    May- 20th 1879.
    Before Sharswood,. C. J., Mercur, Gordon and Trunkey, JJ. Paxson, Woodward and Sterrett, JJ., absent.
    Error to the Court of Common Pleas of Dauphin county: Of May Term 1879, No. 156.
    Case by the widow and children of David Fortney against the Pennsylvania Railroad Company, to recover damages for the death of said David Fortney, alleged to have been caused by the negligence-of defendant.
    The facts are substantially set forth in the opinion of this court. In the court below', after the plaintiffs had submitted all their evidence, the defendant moved for a compulsory nonsuit, on the ground of negligence by the deceased, as shown by the plaintiff’s own witnesses. The court (Pearson, P. J.,) overruled the motion. -
    The defendant presented the following points, to which are appended the answers of the court:
    ■ 1. It was the plain duty of David Fortney to stop, look and listen, before undertaking to pass over or on the railroad-track; and the rule requiring him to do so is an unbending one; and the train not being on schedule time was no excuse for his failure to do so; and there being no dispute about the facts the verdict must be for the defendant.
    Ans. “We do'not answer that as requested. We say this. It is the bounden duty of a person crossing the railroad to stop, look and listen. Did the deceased stop ? That he did is proved by that boy. He stopped there on the margin on the road. Did he look? Did he listen ? are questions of"fact. That he stopped is sworn to. Did he look? If he did, could he have seen? which is a question for the jury. If you are satisfied that he didn’t take the pains and trouble, when it was his duty to look, and could have seen, then he is not entitled to recover; for he ought not to have gone on the track if he could have seen the train by looking.”
    2. The plaintiff having affirmatively shown that the deceased could have seen the approaching train for at least three hundred feet from a point outside of all the tracks, it was his plain duty to have stopped there, and looked and listened; and his neglect to do so was such negligence on his part as precludes a recovery.
    Ans. “If the jury find the facts assumed, then the law is as stated. It was his duty to stop and look and listen. If he did not stop and look and listen, he was guilty of contributory negligence. If he stopped and looked and listened, and had no reason to suppose that the train would come at all, and inadvertently stepped across the track, then it would be different. But it was his duty to look as well as stop; and if he could look and see it was his duty to do both.”
    3. The duty of stopping and looking and listening is quite as imperative where an approaching train cannot be seen or heard as where it can. The fact of collision shows the necessity for a compliance with the rule; and, therefore, in every case of collision where- the measure of duty is defined, a failure to perform it is negligence in law, and must be so declared by the court.
    Ans. “ This point is properly taken. It is the duty of a person to stop, look and listen, and it was the duty of the deceased, whether he thought the train was due or not, to take all these necessary precautions.”
    4. It is greater negligence to stop on the track of a railroad than a mere- omission to stop, look and listen ; and the plaintiffs having proved that the deceased did so stop for a period of about fifteen minutes at the time he was killed, he was clearly guilty of contributory negligence, and the court is requested to give binding instructions to the jury that the verdict must be for the defendant.
    Ans. “ That would be so if he stopped on the track on which the cars ran, but if on the siding or between the tracks, it would not be dangerous per se but when he stepped forward the collision doubtless took place. While he stood back on the other track, it could not'take place. Whilst he stood between the tracks it could not, unless the cars were close enough to reach him ; and it was testified that the cars were a little wider than the bumper. If he stood that far forward, then he would be guilty of clear negligence; but if he was standing back on the other track, I do not think it was negligence of itself, and would depend then on the circumstances of the case.” '
    5. The defendant has the right to a clear track, and to run its trains as far apart, or as close together as it chooses; for its use of its own road is its right, of which the public are bound to take notice; and whether the trains are on schedule time or not, does not alter the duty of a traveller on a public highway.
    Ans. “ The law is as stated. They have the right to run their trains as close together as they please. They do it at their own risk and peril; for if by running their trains too close together collisions take place they would be responsible to the passengers, and be liable for heavy losses. But they have the right to a clear track except at crossings; and at crossings probably others have the same rights as the railroad company. Both are to be careful. Both have a right to the crossing. Both must be equally careful, though persons crossing, having the power to stop more easily than a heavy train, must stop, look and listen, as we have already said to you several times.”
    7. No neglect of duty on the part of a railroad company will excuse any person approaching on a highway, or crossing of the track of such company, from using the senses of sight and hearing; and as the plaintiffs have shown that had David Fortney exercised such senses he would have seen the approaching train, there can be no recovery in this case.
    Ans. “We have said several times over that the law is that it was his duty to stop, look and listen. We say that the duty is as stated, but whether performed or not, is for the jury. It is for the jury whether he performed his duty in stopping and looking and listening. There is no doubt that he stopped, according to the evidence; but if he had stopped and looked and listened with care, he might probably have heard it. That is for the jury. If the deceased had no reason to suppose that the train was running at that time, he might not look. If it habitually varied in time through the winter, and deceased knew it, the necessity of looking and listening was as important as in any other case. He was just as much bound to look and listen, if he knew of its being out of time, as at any other time. 'The trains varying in time, and he knowing it, there would be no excuse for not looking. If the deceased thought he could got across ahead of the train, after looking at it, and missed, he must take the consequences. If a man sees a train coming, and thinks he can step across before it can reach him, and is mistaken in that, it is his own fault.”
    The verdict was for plaintiffs for $400, when defendant took this writ, and assigned for error the refusal of the nonsuit and the answers to the above points.

      Sail £ Jordan, for plaintiff in error.
    The plaintiff’s evidence showed a clear case of contributory negligence, and the court should have directed a verdict for the company.

      J. M. Wiestling, for defendants in error.
    It would have been error for the court not to have submitted the case to the jury, because,
    1. That in doing so they would necessarily have decided that Jefferson Antrim’s testimony was unworthy of credit, a question exclusively for the jury.
    2. That if Antrim’s testimony was to be relied upon, there could be no pretence that deceased was guilty of contributory negligence, as the presumption of law in his favor would establish the contrary, and hence the court could not have held otherwise.
    3. That even with Antrim's testimony out of the case, it was the province of the jury to say, under all the circumstances, whether the man seen by Rifé was in a place of danger and guilty of contributory negligence.
    October 6th 1879.
   Mr. Justice Mercur

delivered the opinion of the court,

This case presents substantially one question only: that is, whether the court erred in submitting the evidence to the jury?

If the undoubted evidence clearly showed any fact which proved David Fortney guilty of concurring negligence, the court should have said there could be no recovery : Pennsylvania Railroad Co. v. Ogier, 11 Casey 60; Catawissa Railroad Co. v. Armstrong, 2 P. F. Smith 282; Pittsburgh & Connellsville Railroad Co. v. McClurg, 6 Id. 294; McKee v. Bidwell, 24 Id. 218. If, however, the fact relied on to establish negligence was doubtful, the case was properly submitted to the jury. What, then, is the evidence relied on to convict the court of error ?

It is shown that four-tracks of the railroad of the plaintiff in error cross Wood street, in the borough of Middletown, the two 'central ones being main tracks, and the two outside, only sidings. Fortney lived south of the railroad, and was employed in a furniture manufactory, situate north of the railroad. Just before daylight he started from his house and walked along Wood street towards the place of his employment. At this crossing he was struck and.killed by the express train, passing easterly on the main south track. No witness saw it strike him, but his body was soon afterwards found, lying between this main track and the siding, about two hundred yards east of the crossing. It had evidently been carried there by the moving train.

The counsel for the plaintiff in error claims that the concurring negligence of Fortney is clearly established by the evidence of Harry Rife, a witness on the part of the defendants in error. An examination of his evidence shows he testified substantially that on the morning of the accident he stood near this crossing, and on the north side of the tracks, and by the headlight of the locomotive of the approaching westerly bound freight train he saw a man standing still, between the south main track and the siding, at this crossing ; he did not recognise the man, and was unable to describe his clothes; he first saw the man when the locomotive was about thirty-five yards east; that he noticed everything particularly, and thought the man was in a dangerous place and would be killed; that the man continued standing there until the headlight intervened between him and the witness.

In reply to the question, how long he saw him standing there, witness answered, “I. could not tell how long; about fifteen minutes or so.” That when the rear of the freight train got about five yards west of Wood street, the engine of the express train going east reached the street. Soon after this last train passed he saw the body of Fortney lying where we have stated. From the order of events, and the place where the body was found, he appears to have no doubt that Fortney was the man he saw standing between the tracks. If Fortney remained standing there for fifteen minutes, or one-fourth that time, before the freight train passed, and continued there so close to the main track as to be struck by the express train, we have no hesitation in saying that he was guilty of concurring negligence. It appears the bumping-board, to which the cow-catcher is attached, projects two and a half feet over the rail, and the cars about the same distance. Fortney was familiar with this' crossing, and at one time had been in the employ of the railroad company as a switch-tender near by. Is this position of Fortney between the tracks, for the length of time stated by Rife, proved with sufficient certainty, to be beyond reasonable controversy ? Rife testifies, he does not know how long a time the freight train occupied in passing over the thirty-five or fifty yards, after he first saw the headlight. No witness testifies to the time. Antrim swears, he supposes it was running about four or five miles an hour. If he he correct, it is manifest that Rife must be mistaken as to the interval of time which passed between his first seeing the headlight, and its crossing the street. The evidence of T. Jefferson Antrim proceeds to throw more doubt on the accuracy of Rife’s evidence. Antrim was also a witness in behalf of the defendant in error. He testifies that he was a telegraph operator, in the employ of the company, at Highspire; on the morning in question, he walked down Wood street to the crossing, for the purpose of taking the freight train west to Highspire; that on his way he passed Fortney, who was also walking towards the railroad; that he, Antrim, and the freight train, reached the crossing about the same time, or the train was there when he reached the railroad, that is, the engine was at Wood street; he walked to the crossing turned to the west, and stepped on the engine west of Wood street, and went up on that train. If Antrim be correct when he says he walked past Fortney about a square from the railroad just before the engine of the freight train reached the crossing, it is clear that the latter was not then standing between the main track and the siding. It would clearly be error for the court tp have assumed, under this conflict of evidence, that Rife was undoubtedly correct. It was urged, however, inasmuch as Rife was a witness of the defendant in error, that his statement of the length of time Fortney stood between the tracks, cannot be controverted by the party calling him.

It is true, as a general rule, a party cannot be permitted to impeach the veracity of his own witness, yet, he may disprove the facts to which his witness has testified. Therefore, no- rule nor policy of law forbade the defendants in error proving that Rife was mistaken as to the length of time Fortney stood in that dangerous position. If Antrim be correct, the jury may well have found that Fortney reached the place where he was struck, cither while the freight train was at the crossing, or at the instant of its moving therefrom. If so, in view of the fact, that the express train was behind time, and there was some evidence that it was moving at unusual speed, we cannot say, as a matter of law, Fortney was guilty of negligence in attempting to cross the tracks. Whether, under all the evidence, he was guilty of concurring negligence, was well and clearly submitted to the jury by the learned judge.

Judgment affirmed.


author: Pur Curiam.

text:
    Hickernell’s Appeal.
    1. Where applications are made to open judgments entered on warrants of attorney, the courts have a right to exercise their discretion upon the depositions. The appeal to the Supreme Court, given by the Act of April 4th 1877, was not intended to alter this right, but simply to provide that this discretion might he reviewed.
    2. Where certain facts are alleged to have been the condition upon which a bond was executed, unless it appears from the evidence that the bond was executed upon this condition, the legal rights of the holder of the bond ought not to be affected by parol evidence of loose conversations.
    3. Where a surety on a bond desires that the bond should be entered up, in order to create a lien on the estate of the principal, he should give notice in writing to the obligee, under the provisions of the Act of Ma.y 14th 1874.
    'May 20th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Trunkey and Sterrett, JJ. Paxson and Woodward, JJ., absent.
    Appeal from the Court of Common Pleas of Lebanon county: Of May Term 1879, No. 72.
    Appeal of David Hickernell from the decree of the court refusing to open a judgment.
    John Hickernell gave a j.udgment-bond to John Flickinger in which David Hickernell was surety. Judgment was entered thereon in November 1875. An application was made by appellant to open the judgment, and under a rule to show cause why it should not be opened, depositions were taken. From these depositions it appeared that-about the 1st of April 1875, John Hickernell was indebted to John Flickinger to the amount of $1855 on two bonds, on one of which the appellant ivas surety. It was then agreed between the parties that for these two bonds a judgment-bond for the whole amount should be given by John Hickernell to Flickinger, and said bond having been executed, David Hickernell became surety thereon. There was evidence on the part of defendant that Flickinger, before the execution of the bond, had agreed to enter it up at once, so that it would become a lien upon the real estate of John Hickernell, which was then more than sufficient to pay the debt. On the contrary, on behalf of plaintiff there was testimony that although plaintiff had been asked subsequently to the execution of the bond to enter it up, he had never agreed to do so. John Hickernell became insolvent in June 1875. The judgment on the bond was entered in the following 'November, when this application to open it was made, on the ground that defendant had been injured by the negligence of plaintiff in not entering judgment on the bond. I’n the court below the appellant contended that if the said David Hickernell, the petitioner to open said judgment, has made out a prima facie case, he is entitled to have said judgment opened, and to have the same tried by jury; and that the testimony taken by Flickinger was irrelevant, and could not be read in the cause.
    The court (Henderson, A. L. J.,) refused to sustain this proposition, and decided that upon the evidence there was no such agreement to enter up the bond as alleged by defendant, and discharged the rule. The defendant took this appeal, under the Act of April 4th 1877, Pamph L. 53, and alleged that the court erred in refusing to open the judgment and in discharging the rule.

      Grant Weidman and O. P. Miller, for appellant.
    We contend: 1st. That if the facts alleged by the petitioner are such as, if true, would defeat recovery upon the judgment in a trial upon its merits, then, if prima facie established by competent testimony, good cause for opening the judgment is shown by the petitioner ; and
    2d.* If good cause is alleged in the petition, and evidence has been produced on the part of the petitioner to support his allegations, then he is entitled to have the judgment opened, so that a jury may pass upon the matter in controversy; and the court below exceeded its authority in determining which witnesses were to be believed, and on which side the weight of the evidence was found.
    The right of trial by jury is a constitutional right, and the only recognised way of determining disputed facts: Trimble’s Appeal, 6 Watts 183; Brown v. Parkinson, 6 P. F. Smith 341; Kellogg v. Krauser, 14 S. & R. 137.
    Whenever a party who commits a fraud and has acquired a benefit from it, seeks to avail himself of the act, the court will interfere to prevent it: Simms v. Slacum, 3 Cranch 307; Cochran v. Eldridge, 13 Wright 365. Whenever from.the evidence there appears:-to be a material fact in dispute, the determination of which, in one way or the other, would alter the result, it is not the province of the court to decide the controversy, or to determine upon which side lies the weight of the evidence, but it then becomes the duty of the court to make such order as will secure the hearing of the contention before a jury, the constitutional tribunal for the determination of disputed matters of fact, if the right to be so heard is invoked by either party: Overholt’s Appeal, 2 Jones 224; Dickerson & Haven’s Appeal, 7 Barr 258; Ekel v. Snevily, 3 W. & S. 272; Massey v. Buck, 1 Phil. Rep. 215.
    The agreement to enter the judgment upon record was a substantial and material part of the consideration : Harlan v. Harlan, 8 Harris 307; Ayres’s Appeal, 4 Casey 179. The courts permit a party to show a verbal promise, and not included in the terms of the written contract, made by one of the parties, at or before the making of the instrument, if such promise was used or was inducement .to obtain the writing: Powelton Coal Co. v. McShain, 25 P. F. Smith 245; Barclay v. Wainwright, 5 Norris 191; Lippincott v. Whitman, 2 Id. 244; Shughart v. Moore, 28 P. F. Smith 469; Graver v. Scott, 30 Id. 88; Caley v. Phila. & Chester Railroad, Id. 364.

      J. P. S. Grohin, for appellee.
    The proceeding to open this judgment was an application for the exercise of the equity powe'rs of the court, There is no equity in the application. The appellant relied upon a purely technical defence.
    When a rule to show cause, applied for upon proper grounds shown, is granted, the adverse party, with his depositions, will be fully heard: Snyder v. Castor, 4 Yeates 443. After a judgment has been entered by confession, an application to open it is to be determined by the court below, on a view of the evidence exhibited on the hearing: Bunce et al. v. Wightman, 5 Casey 336. In proceedings relative to opening or refusing to open a judgment,’ parol evidence is heard: Ordroneaux v. Prady, 6 S. & R. 512 ; Kalbach v. Fisher, 1 Rawle 323; Knox v. Flack, 10 Harris 337; Jones v. Dilworth, 13 P. F. Smith 447.
    . Any question de hors the record must depend upon the finding of the facts by the court below: Righter v. Rittenhouse, 3 Rawle 273; Gordonier v. Billings, 27 P. F. Smith 502; Moyer v. Germantown Railroad Co., 3 W. & S. 92; Massey v. Buck, 1 Phila. 215; Bright. Eq. 490. Judgments under the practice inPerinsylvanion will only be opened on sufficient grounds and proof of merits: Lawrence v. Rutherford et al., 1 Pearson 558; 1 Tr. & H. Pract. 654; Bailey v. Clayton, 8 Harris 297.
    The exercise of the power asked for by the appellant, of the court below, was that entirely belonging to the discretion of the court: Connelly v. City of Phila., 5 Norris 112. This court will not review the conclusions of the court below as to the weight of evidence, but merely to ascertain the ground of their action, if at all: Jackson v. Morter, 1 Norris 295; Connelly v. City of Phila., 5 Id. 112. In strict practice the evidence is not brought up, or if it is, only that the appellate court may.judge of its competency: Hutchinson v. Ledlie, 12 Casey 112.
    June 7th 1879,
   The judgment of the Supreme Court was entered

Pur Curiam.

It is unnecessary to repeat what has been said in Earley’s Appeal, ante, p. 321, that on rules to open judgments entered on warrants of attorney, the courts still have the.right to exercise their discretion upon the depositions. The appeal was given by the Act of 1877, in order that the exercise of that discretion should be reviewed in this court. Before that act there wTas no appeal, and the decision of the lower court was final. The allegation of the appellant here was, that at the time the bond and warrant was executed, the obligee promised to enter it up, so as to be a lien on the real estate of John Hickernell. ■ There was some evidence of this. We think, however, upon a careful examination of the whole testimony, it did not appear to have been made the condition upon which the bond was executed. Without this is shown, the legal rights of the holder of the bond ought not to be affected by the parol evidence of loose conversations. Had the surety in this case desired that the bond should be entered up, a notice to do so would have been sufficient. The legislature, recognising the danger of parol evidence in such cases, has provided", by the Act of May 14th 1874, that such notice shall be in writing.

Order affirmed. Appeal dismissed at the costs of appellant, and record remitted.