author: Mr. Justice Woodward

text:
    Gannon et al. versus Fritz.
    1. In a rule of court, the 1st sect, was that if plaintiff should file (1.) “A specification of the items of his claim and a statement of facts necessary to supp’ort it,” the items and statements not denied by defendants in his answer should he taken as admitted.- (2.) If the specification and statement were not filed with the praecipe, the plaintiff should give defendant ten days’ notice and defendant should within ten days file his answer. (3.) This rule to 11 apply to a specification of set-off and statement of defence,” defendant in ten days after filing the same to notify plaintiff. (4.) If plaintiff failed to comply with any of the requirements, non pros, to he entered by the prothonotary; if defendant failed, judgment for default of a plea and affidavit of defence to be entered against him. Held, that the provision for notice by defendant was to regulate the practice when a set-off was interposed ; not when the defence was a denial, &c., of plaintiff’s claim.
    2. Courts of original jurisdiction have an inherent right to establish and enforce rules to regulate their practice.
    3. The expediency of a rule, in ordinary cases, is not a question for the Supreme Court; the regulation of its practice is for the sound discretion of every court.
    4. The construction of their rules by the lower courts is ordinarily conclusive ; their discretion will be interfered with only where, wrong is man ifest.
    5. Dailey v. Green, 3 Harris 118 ; Mylin’s Estate, 7 Watts 64, recognised.
    October 14th 1875.
    Before .Asnew, '0. J., Sharswood, Williams, Mercur, Gordon, PAXsoN-and Woodward, JJ.
    Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1875, No. 170.
    This was an action of debt, brought April 28th 1875, by Jesse H. Fritz against John F. McKinney, Martin Gannon and Thomas J. Burchfield. The writ was served on Gannon and Burchfield, and returned “ Nihil” as to McKinney.
    The plaintiff filed an affidavit of claim as follows:—
    * * * “ That the plaintiff’s claim in above case is founded as fol lows: John F. McKinney, one of the defendants above named, was indebted to Jesse H. Fritz, the plaintiff above named, in a judgment, &c., in the sum of five hundred dollars, with interest on the same from the 5th day of July 1873; that a capias satisfaciendum was issued upon said judgment, &c.; for above sum, interest, and one hundred and fifty-four dollars costs; that the said John F. McKinney was arrested thereon, and while in the custody of the sheriff made application to B. F. Kennedy, Esq., the prothonotary of Allegheny county, to be released; that he gave a bond to Jesse H. Fritz, the said plaintiff, with Martin Gannon and Thomas J. Burchfield, the other defendants above named, as security; which bond was dated the 21st day of March 1873, and as shown by the record was duly approved on the same day by the said prothonotary ; said bond was in the sum of thirteen hundred dollars, conditioned that the said John F. McKinney would appear at the next term of Court of Common Pleas, No. 1, of Allegheny county, and present his petition for the benefit of the insolvent laws of this Commonwealth, and comply with all the requirements and abide the order of said court in his behalf, or in default thereof, if he failed to obtain his discharge as an insolvent debtor, he would surrender himself to the jail of said county; that on the approval of said bond the said John E. McKinney was released, and he filed his petition to June Term 1874, but he failed to obtain his discharge as an insolvent debtor or surrender himself to jail according to the conditions of said bond. All of which is still due and unpaid.”
    The affidavit of defence, filed May 10th 1875, was:—
    * * * “ That the conditions of the said bond sued on in this case were fully complied with; that the defendant, John E. McKinney, appeared at the term of the Court of Common Pleas of said county mentioned' in said bond, and then and there presented his petition for the benefit of the insolvent laws of this Commonwealth, and complied with all the requisitions of the said law, and did abide all the orders of said court in that behalf, and was duly discharged from further attendance by the order of said court, with the consent of said plaintiff. The said John E. McKinney having fully satisfied the claim and judgment of said plaintiff in full by the payment, by and with the direction and consent of said Jesse H. Eritz, to the plaintiff, of the sum of two hundred dollars, to said plaintiff’s attorney, which they agreed to, and did accept in full satisfaction of said claim.”
    The defendant gave no notice of filing his affidavit of defence, and plaintiff, May 21st 1875, directed “the prothonotary to enter judgment in the above case in favor of the plaintiff and against Martin Gannon and Thomas J. Burchfield, two of the defendants above named, who were served, in default of notice of filing affidavit of defence, see reg.”

    The plaintiff filed a specification with his praecipe, showing the amount due to be $705.31; and judgment was entered by the prothonotary for that sum.
    On May 22d 1875, on motion of John Barton, Esq., attorney for defendants, a rule was granted on plaintiff to show cause why the judgment in this case should not be opened.
    One of the reasons for opening the judgment was:—
    That said plaintiff was not entitled to notice of filing defendants’ affidavit of defence, as the same did not contain any matter of set-off, but merely claimed payment.
    The rule was discharged June 7th 1875.
    The defendants took a writ of error, and assigned for error:—
    The entering judgment against defendants, and discharging the rule to open the judgment.
    Rule 5th of the Court of Common Pleas of Allegheny county, under which judgment was entered, is as follows :—

      “ Sect. 1. In all eases the plaintiff shall file, with or before his declaration, a specification of the items of his claim, and a statement of facts necessary to support it, verified by affidavit, to which the defendant shall, within the time hereinafter specified, file an answer, verified by affidavit, and such items of the claim and material averments of the facts as are not directly and specifically traversed and denied by the answer shall be taken as admitted.
    “ Sect. 2. If the specification and statement be filed with the prsecipe they shall be treated also as an affidavit of claim, and the defendant shall, without further notice, file his answer thereto within the time required for filing an affidavit of defence, which answer shall be treated as an affidavit of defence. If the specification and statement be not filed with the prsecipe, the plaintiff shall, within ten days after filing the same, notify the defendant thereof, and the defendant shall, within- ten days after notice, file his answer thereto.
    “Sect. 3. This rule shall apply to a specification of set-off and statement of defence filed by the defendant, who shall, within ten days after filing the same, notify the plaintiff thereof, and the plaintiff shall, within ten days .after notice, file his reply thereto, verified by affidavit.
    “ Sect. 4. If the plaintiff fails to comply with any of the requirements of this rule, judgment of non pros, shall be entered against him by the prothonotary; and if the defendant fails to comply with any of the requirements thereof, the plaintiff shall be entitled to judgment against him as for default of a plea and affidavit of defence.”

      J. Barton, for plaintiff in error.

      M. C. Campbell, for defendant in error.
    The power of courts to make rules independent of any statute is inherent, provided such rules do not contravene the laws of the land: Snyder v. Bauchman, 8 S. & R. 336. And each is the most proper judge of the extent and application of its own rules, and is entrusted with a discretionary power to enforce them : Barry v. Randolph, 3 Binn. 277; Mylin’s Estate, 7 Watts 64; Groves v. Donaldson, 3 Harris 128. The refusal to open a judgment by the court below is not the subject of a writ of error: Henry v. Brothers, 12 Wright 71; Hill v. Irwin, 8 Casey 314.
   Mr. Justice Woodward

delivered the opinion of the court, January 6th 1876.

This judgment was entered under the provisions of the fifth of the rules adopted for the regulation of the practice of the court below. By the first section of this rule it is prescribed, that “ in all cases the plaintiff shall file with or before his declaration a specification of the items of his claim, and a statement of facts necessary to support it, verified by affidavit, to which the defendant shall, within the time hereinafter specified, file an answer, verified by affidavit; and such items of the claim and material averments of the facts as a.re not directly and specifically traversed and denied by the answer, shall be taken as admitted.” The second section provides that “if the specification and statement be filed with the prsecipe, they shall be treated also as an affidavit of claim, and the defendant shall, without further notice, file his answer thereto within the time required for filing an affidavit of defence, which answer shall be treated as an affidavit of defence. If the specification and statement he not filed with the praecipe, the plaintiff shall, within ten days after filing the same, notify the defendant thereof, and the defendant shall, within ten days after notice, file his answer thereto.” The third section, under the terms of which the plaintiff below asserted the right to a judgment, is in these words: “ This rule shall apply to a specification of set-off and statement of defence, filed by the defendants, who shall, within ten days after filing the same, notify the plaintiff thereof; and the plaintiff shall, within ten days after notice, file his reply thereto, verified by affidavit.” It is directed by the fourth section, that if the plaintiff fails to comply with any of the requirements of this rule, judgment of non pros, shall be entered against him by the prothonotary; and if the defendant fails to comply with any of the requirements thereof, the plaintiff shall be entitled to judgment against him as for default of a plea and affidavit of defence.

The material inquiry here is, whether this record shows such default on the part of the defendants as to subject them to the penalty imposed by the fourth section of the rule. It is admitted that the affidavit filed on their behalf was adequate, but it is admitted also, on the other hand, that notice of it was not given to the plaintiff. All the several provisions that have been quoted are to be considered in their connection with and their relation to each other. The first and second sections define a defendant’s duty in cases where the inquiry is confined to the validity and integrity of the plaintiff’s cause of action, in which items of claim and material averments of facts are to be “ directly and specifically traversed and denied.” In such cases the defendant is required to file his answer within the time limited in the alternative directions of the second section, and he is required to do nothing more. It is only when he presents such a defence as that to which the third section refers, that he is bound to give notice of his answer within ten days after filing it. The confusion apparently arising out of the words “ statement of defence,” is dissipated if this section is read in the light thrown upon it by the language of the first. To read the direction that the rule “ shall apply to a specification of set-off and statement of defence,” cannot be treated as requiring that notice of every defence in every action shall be given to a plaintiff. All necessary provisions relating to general actions, had been previously made. The object of this section was to regulate the practice when the defence of set-off should be interposed, and to provide for notice'to the plaintiff of the defendant’s “ specification of set-off,” and, in the language of the first section, of his statement of facts necessary to support it. This construction gives symmetry to the various requirements of the rule. The construction of the court below would distort them all.

In the present case no defence of the character of a set-off was alleged. The right of the plaintiff to a verdict was contested on grounds that affected the very instrument on which the suit was brought. There was nothing in the nature of a fresh or* independent demand, and nothing, consequently, to which the third section of the rule under discussion could apply. The judgment was improvidentlv entered by the prothonotary, and should have been opened by the court.

It is not designed to disturb in the slightest way the well-settled principles which recognise the inherent right of the courts of original jurisdiction to establish and enforce rules for the government of their practice. Upon the expediency of a provision that a judgment shall be the penalty for a failure to give notice to a plaintiff of a specification of set-off as a ground of defence, no opinion is expressed. In the ordinary ease, the question of expediency, in the language of Rogers, J., in Mylin’s Estate, 7 Watts 64, is not a question for this court, for it must be left to the sound discretion of every court to regulate its own practice.” In the ordinary ease, also, the construction of their own rules by the' courts of original jurisdiction is accepted as conclusive, for, as has been repeatedly said, they are their best exponents: Dailey v. Green, 3 Harris 118, 128. It is only where wrong is manifest that their discretion will be interfered with or invaded. The palpable error in this instance is undoubtedly attributable to inadvertence.

Judgment reversed, and procedendo awarded.


source: Caselaw Access Project

author: Mr. Justice Gordon

license: Public Domain

text:
    Myers and Murray versus Commonwealth.
    1. Assistant and associate law judges, before the adoption of the New Constitution, had power to hold courts of Oyer and Terminer in the absence of the president judge.
    2. Under sects. 8 and 9, Art. V. of the New Constitution and the Act of February 27th 1875, the several judges of the Court of Common Pleas of Allegheny county have power to hold courts of Oyer and Terminer.
    3. After a jury was empannelled on trial of a homicide, an amendment changing the time laid in the indictment, may be made under the Criminal Procedure Act of March 31st 1860.
    4. Challenges to jurors who had formed and expressed an opinion, properly allowed in this case.
    5. Application of the Judges, 14 P. P. Smith 33; Commonwealth v. Zephon, 8 W. & S. 382 ;• Kilpatrick v. Commonwealth, 7 Casey 198 : Ortwein v. Commonwealth, 26 P. P. Smith 414, followed.
    October 14th 1875.
    Before Agnew, O. J., Sharswood, Williams, Mercur, Gordon, Paxson and Woodward, JJ.
    Writs of error to the Court of Oyer and Terminer of the County of Alleqheny. Of October and November Term 1875. No. 128 and 129. _
    _ At the December sessions 1874 of the Court of Oyer and Terminer, William Murray and Frederick Myers were indicted for the murder of .Gotthold Wahl; the murder was charged in the indictment as having been committed in the perpetration of a robbery.
    There was no question in the Supreme Court arising from the facts in the case.
    The following order was made at the March Session 1875, of the Court of Common Pleas, No. 2, of Allegheny county :—
    “And now, February 27th 1875, it is ordered that the Hon. 'Thomas Ewing, one of the judges of this court, be and he is hereby detailed in accordance with the Act of Assembly, to hold the ensuing March Term of the courts of Oyer and Terminer and Quarter Sessions of the Peace, and that the Hon. John M. Kirkpatrick and J. W. F. White, the other judges of this court, are hereby detailed to assist in holding said term of said courts, when called on by the presiding judge, in the trial of cases requiring the presence of two judges, or in the absence or inability of the said judge.”
    On the 27th of February 1875, Pamph. L. 62, an Act of Assembly was passed, enacting:— .
    Sect. 1. That before the commencement of each term of the Courts of Oyer and Terminer and Quarter Sessions of the Peace, the judges of each of the Courts of Common Pleas of Allegheny county shall alternately detail one of its judges to hold, and if they see fit, one or more judges to assist in holding said Courts of Oyer and Terminer and Quarter Sessions of the Peace for the next ensuing term.
    Sect. 2.' Each of said judges so detailed may separately hold the said Courts of Oyer and Terminer and Quarter Sessions of the Peace during such term, * * * provided, that on -the trial of indictments for homicide, two of said judges shall sit jointly, except in case of sickness or inability to attend, and on the hearing of motions for a new trial and in all other cases, all the judges of said Courts of Common Pleas may sit jointly if they deem .o necessary.
    Sect. 4. The order of Courts of Common Pleas pf said county of Allegheny heretofore made, detailing the judges of the Court of Common Pleas, number one, to hold the residue of the December Term 1874, of the Courts of Oyer and Terminer and Quarter .Sessions of the Peace of said county, is hereby validated and confirmed as the first detail under the Constitution and laws of this state.
    The trial of the indictment commenced March 16th 1875. “ Present, Hon. Thomas Ewing, president judge of the court, specially detailed to hold the March Session 1875, of said court, and the Hon. J. W. F. White, associate judge, detailed to assist at the holding of said term, being present.”
    On the same day the prisoners pleaded to the jurisdiction of the court, and “say that this court is not legally constituted, the judges here sitting having no right or authority under the law to preside in this court, or to order, direct or control this cause, legally triable in the Court of Oyer and Terminer of Allegheny county.”
    The plea was overruled and the prisoners directed to plead to the indictment; they pleaded “Not guilty.”
    On application of Murray the court granted a severance of the prisoners in the trial.
    A juror, on being, asked whether he had formed and expressed an opinion, &c., said he had. He was then challenged by the prisoner for cause. In answer to another question, he said that if what he had read were true, he hád said he thought the prisoner guilty, but that his opinion would not hinder him from rendering a just verdict according to the evidence; he had read the testimony taken on the hearing before the coroner and formed his opinion from that; it would take contrary evidence to remove that from his mind.
    The challenge was overruled and exceptions sealed for the prisoner.
    Another juror said he formed* an opinion from reading of the occurrence at the time and supposed he had the opinion still. In answer to the question whether his opinion would prevent him from rendering a verdict in accordance with the testimony on the trial, and the law as laid down,without requiring the prejudice to be removed from his mind, he said he would try to do justice as far as he could, and thought he had formed no opinion that would prevent his trying the case according to the testimony.
    The prisoner challenged the juror for cause, the challenge was overruled and a bill of exceptions sealed for the prisoner.
    The jury having been sworn, the court made the following order:—
    “And now, March 16th 1875, it appearing to the court that the time laid in the indictment is the 11th day of October 1874, and that the date should be the 11th day of November 1874 ; on motion of the district attorney, it is ordered and directed that said indictment be amended so as to read the 11th day of November 1874, whenever and wherever in said indictment it now reads October 11th 1874.”
    A bill of exceptions was sealed for the prisoner.
    On the 18th of March 1875, the jury found the prisoner Murray “ Guilty of murder in the first degree.” Myers was also convicted under similar circumstances of trial; and both were sentenced to be hung.
    Each took a writ of error and assigned for error,
    1. Overruling the plea to the jurisdiction.
    3. Allowing the amendment as to the time laid in the indictment.
    Murray’s 4th assignment of error was overruling his challenges to the jurors.

      W. D. Moore, for Murray, and W. O. Moreland, for Myers, plaintiffs in error.

      P. A. Montooth, District Attorney, and T. M. Bayne, for Commonwealth, defendant in error.
   Mr. Justice Gordon

delivered the opinion of the court, November 4th 1875.

The argument, for the plaintiff in error,rests on the assumption that the assistant and associate judges of the Court of Common Pleas, learned in the law, in the county of Allegheny, had, before the adoption of the New Constitution, no power to hold Courts of Oyer and Terminer for the trial of homicide cases, in the absence of the president judge. This, however, is unfounded, as will be seen upon referring to the Acts of 26th March 1859, Pamph. L. 253, and 11th of April 1862, Pamph. L. 448, creating the offices of assistant and associate judges for this county, and the Act of 4th of May 1865, Pamph. L. 842, conferring certain powers upon them. Under the last act any two of the judges may sit in the Oyer and Terminer Court for the trial of homicide cases. Sects. 8 and 9 of the 5th Art. of the New Constitution in question, with the Act of 27th of February 1875, confer full power upon the several judges of the Courts of Common Pleas, Nos. 1 and 2, in Allegheny county, to hold Courts of Oyer and Terminer for the trial of cases. The cases of The Commonwealth v. Zephon, 8 W. & S. 382 ; Kilpatrick v. Commonwealth, 7 Casey 198 ; and In re Application of Judges of the Eighth and Tenth Districts, 14 P. F. Smith 33, vindicate fully the legislation enabling associate judges learned in the law to hold Courts of Oyer and Terminer for the trial of homicide cases in the absence of the president judge.

The amendment of the indictment from “ October” 1874 to “November” 1874, is justified by the 13th sect, of the Act of 31st of March 1860, relating to the criminal procedure, especially when read in connection with the powers of amendment set forth in the 11th and 12th sects. A clause in the 13th sect, reads thus : “ Or in the name or description of any matter or thing whatsoever therein named or described.” The month of October was named in the indictment, and the precise day described by the number eleven. The amendment fell clearly within this power, which is strengthened by the large powers of amendment intended to be conferred by the sections stated.

The fourth assignment of error is disposed of by the case of Ortwein v. The Commonwealth, 26 P. F. Smith 414, decided in this district a year ago. The other assignments of error were abandoned in the argument. We discover no error in this record. The judgment and sentence of the Court of Oyer and Terminer in each case, that is to say, in the Commonwealth v. William Murray, and the Same v. Frederick Myers, are affirmed, and it is ordered that the record be remitted in each case to the Oyer and Terminer, which tried the cause, for the execution of the sentence according to law.


author: Mr. Justice Paxson

text:
    Murray versus Commonwealth.
    1. In a case of homicide, if there be an antecedent threat and a present provocation, it is for the jury to find whether the killing was in pursuance of the previous threat or of the immediate provocation.
    2. On a trial for homicide, the court below affirmed the following point submitted by the Commonwealth: When a deliberate purpose to kill or do great bodily harm is ascertained, and there is a consequent unlawful killing, the provocation, whatever it may be, which immediately precedes the act, is to be thrown out of the case and goes for-nothing, unless it can be shown that this purpose was abandoned before the act was done." Held to be error.
    3. When it is sought to convict of murder in the first degree, the burden is upon the Commonwealth to show the circumstances necessary to raise the offence above murder in the second degree.
    4. A. man need not be in actual imminent peril of his life or of great bodily harm before he may slay his assailant; it is sufficient if in good faith he has a reasonable belief from •the facts as they appear to him at the time, that he is in such imminent peril, even if it afterwards appear that he was mistaken.
    5. It is not proper practice for the Commonwealth, in a capital case, to submit points to the court below.
    6. An obscure answer to a point may be cured by the general charge, but not one that is palpably erroneous.
    7. Commonwealth v. Drum, 8 P. F. Smith 9, adopted.
    October 1875.
    Before Agnew, C. J., Sharswood, Williams, Merodr, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Oyer and Terminer of Allegheny county: Of October and November Term 1875, No. 194.
    Philip Murray was indicted in the court of Oyer and Terminer of Allegheny county for the murder of James White, and tried April 13th 1875, before Ewing, P. J., and Kirkpatrick, J., of the Court of Common Pleas, No. 2, of the same county.
    Two jurors drawn were challenged by the Commonwealth for cause, and the challenge sustained; a hill of exceptions was sealed for the prisoner.
    The matters considered and decided by the Supreme Court do not require a statement of the evidence in the case, further than appears in the charge of. the court below.
    The District Attorney submitted the following points for the Commonwealth:—
    1. When, a deliberate purpose to kill or do great bodily harm is ascertained, and there is a consequent unlawful act of killing, the provocation, whatever it may be, which immediately precedes the act, is to be thrown out of the case and goes for nothing, unless it can be shown that this purpose was abandoned before the act was done.
    2. If the jury find from the evidence that before the killing the prisoner had formed the deliberate intent and purpose to take the life of James White, no subsequent provocation which deceased might have given, would either excuse the prisoner or reduce the grade of his offence, unless the jury are satisfied from the evidence that the said intent and purpose were abandoned by the prisoner before the killing.
    6. To make homicide excusable on the ground of self-defence, the danger must be actual and urgent. No contingent necessity will avail. And when the pretended necessity consists of the as yet unexecuted machinations of another, the defendant is not allowed to justify himself by reason of their existence. In cases of personal conflict, also in order to prove such defence, it must appear that the party killing had retreated, either as far as he could by reason of some wall, ditch, or other impediment, or as far as the fierceness of the assault would permit him. If it appears that the conflict was in any way premeditated by the defendant, the defence can no longer be set up. It must be proven that the assault was eminently perilous.
    The court, Ewing, P. J., said:—
    “ These points are all affirmed, subject to explanations of the general charge.” *
    The court charged: * * *

      “ All homicide is presumed to be malicious until the contrary appears by the evidence. That' is, all homicide, as a general rule, is malicious, unless when justified by the command or permission of the law — excused on account of accident or self-defence — or alleviated into manslaughter — by .being the involuntary consequence of some act not strictly lawful, or occasioned by some sudden and sufficiently violent provocation without time to cool. And when the killing by the defendant has been proven, all these circumstances of justification or excuse, or alleviation, it is incumbent on him to make out to the satisfaction of the jury. Just as when the Commonwealth, by proving the homicide, having raised a presumption of murder at common law or of the second degree, must prove in addition a specific intent to take life to entitle it to a verdict of murder in the first degree.

      “ To excuse a homicide on the ground of self-defence the defendant must satisfy you that the conflict was not of his own seeking ; that he was in danger of great bodily harm, or honestly believed that he was in such danger, and that either he retreated as far as he safely could under all the circumstances, place of conflict, situation and condition of the parties at the time, or could not safely retreat and that the danger was actual and urgent. If the killing was thus done, it is excusable. Put if not so done, it is not excusable. If the conflict was not premeditated on the part of defendant, but was accidental, and the shooting not in self-defence, but in the heat of passion the fatal shot was fired, without cooling time, it would be manslaughter. If the defendant, with a purpose to have a quarrel with White, went armed with his pistol to the mill where White was at work, and sought White, and met him intent on this purpose, and in the conflict he killed White, it was murder. And if he thus killed White wilfully and premeditatedly, that is with a specific intent to take life, it would be murder of the first degree.

      “ The intent of a man is to be inferred from his words, but perhaps more safely from acts; where the words and acts accompany each other and are consistent, they form satisfactory proof of intent. If a man uses a deadly weapon in such a manner as would ordinarily cause death, and especially where immediately preceded by declarations that he intends to take life — and death ensues — it is a fair inference that he intended to take life.

      “ Apply these principles to the evidence in this case.
    “ It does not seem to admit of much doubt that James White was shot at the time and place charged, and that he died on the 11th day of September 1874. And if you believe the testimony of the physician, there can be but little doubt that he died from the effects of the wound, and that it was necessarily fatal. Nor is it denied that defendant inflicted the fatal wound. It appears from the testimony on both sides, that on the 24th day of August the defendant and the deceased had a difficulty. The testimony of the Commonwealth is, that on the same evening the defendant made threats, in presence of Mrs. McGruigen, that he would have the life of White. And that a few days afterwards he, to his brother in their room, said he would have the life of White before he left Pittsburg. The brother positively denies that this last threat was made in his presence.
    “ It seems that the morning of the shooting, Michael Murray and White had a quarrel, at a part of which defendant was present. On the part of the Commonwealth it has been testified-that the defendant then made a threat against White. The brother says he heard no such threat. Michael Murray testifies that White had previously made threats against him and his brother Philip, and that he had told Philip of the threat; and you have evidence as to the relative physical power of the defendant and deceased. Next, the Commonwealth has produced testimony of a serious threat made by the defendant at the corner of Fourteenth and Pike streets, half a square from the place of shooting, and a short time before. Witnesses for the defendant testify that they were present at the time and heard no such threats. The witnesses testify that Philip Murray remained after the others left; and that he was there a short time before the shooting. The testimony on both sides shows that Philip Murray had not been employed at this mill for some time before, but was then employed at Shoenberger’s mill. So far as appears he had no business at this mill where White Avas employed. Philip Hurley testifies that a short time before the shooting he saAV the defendant walking back and forth past the gate leading into the mill. Soon after — he does not fix the length of time — he heard a shot, looked around and saw White Avith his hands to his face, and blood spurting from his mouth, and retreating, Murray following ten to twelve feet away, and that Murray fired three or four shots after that. Other witnesses testify to hearing the shot, looking around and seeing White and Murray in about the same position as testified to by Hurley. Michael Brown testifies that he saw Murray entering the gate, going along the track, and in a minute or two he heard a shot; immediately turned round and saw.Murray and White eight or ten yards apart, White, turning away, put up his hands and retreating, Murray, pursuing him, shot three or four times.

      “ On tbe part of the defendant, Thomas Ryan testifies that he was accidentally at the mill, and although not having spoken to any one in the mill, either before or after, he saw Philip Murray coming in on the track, and the first he saw of White was that he was close to Murray, and struck at him, missing him, then struck again, hit Murray in the breast. That Murray then backed, drew a revolver and shot White, and except as tó the distance of the parties apart, he describes the after shooting substantially as the other witnesses. This testimony of Ryan is very important; if this meeting of Murray and White was accidental and not premeditated, it would then become very important for you to determine as to whether or not Murray was excusable in the shooting in the honest belief that it was necessary to protect himself from great bodily injury. But if you find that Murray, in pursuance of a previously formed intention, came there armed with his loaded pistol to provoke a conflict with White, and in pursuit of this intent met White, and the conflict took place, and he then killed White, it is murder; and if he had a specific intent to take life, it is murder in the first degree.
    “Wbat conclusions do you draw from the evidence? What facts are proven ? If you have a reasonable doubt either as to the guilt or the degree of guilt, the defendant is entitled to the benefit of that doubt. A doubt, to work acquittal, or to reduce the grade of offence, must be serious and substantial, not the mere possibility of a doubt.” * * *
    The jury found the prisoner “ Guilty of murder in the first degree.”
    The prisoner took a writ of error, and assigned for error:—
    1, 2. Allowing the challenges of the jurors by the Commonwealth.
    3. Affirming the Commonwealth’s first point.
    4. Affirming the Commonwealth’s second point.
    5. Affirming the Commonwealth’s third point.

      W. Reardon and T. M. Marshall, for plaintiff in error.

      G-azzam Ooehran, for Commonwealth, defendant in error, as to the third assignment of error, cited:
    Wharton’s Am. Crim. Law 955; State v. Johnson, 3 Iredell 354; State v. Ferguson, 2 Hill (S. C.) 619; State v. Lane, 4 Iredell 113; State v. Tilley, 3 Id. 424; Stewart v. State, 1 Ohio St. R. 66; Commonwealth v. Mosler, 4 Barr 268; 1 Hale P. C. 457. As to the fifth assignment of error, they cited: 1 Wharton’s Crim. Law 1020; United States v. Vigol, 2 Dallas, 346; Lander v. State, 12 Texas 462; People v. McLeod, 1 Hill N. Y. 377; State v. Morgan, 3 Iredell 186.
   Mr. Justice Paxson

delivered the opinion of the court, November 15th 1875.

It is an unusual practice for the District Attorney to submit points to the court in a capital case. In my own experience I have never known it to be done, nor is it easy to see the object, as the Commonwealth is concluded by the verdict. In this case it has resulted disastrously. The only substantial errors assigned are to the answers of the court to the points submitted for the Commonwealth.

The first and second assignments of error are not sustained. They were not seriously pressed upon the argument, and I may pass them without further comment. But there was error in affirming the Commonwealth’s first point. In the case of an antecedent threat and a present provocation, it is for the jury to find whether the killing was in pursuance of the previous threat, or was the result of the immediate provocation. The effect of the affirmance of this point was to throw the burden of proof upon the prisoner. It required him to prove a negative ; that a previously formed purpose no longer existed. As there is no process by which the operation of the mind can be photographed, this was laying a heavy, if not impossible, burden upon the prisoner. Under our statute defining the degrees of murder, the presumption against the accused rises no higher than that the homicide is murder in the second degree: Commonwealth v. Drum, 8 P. F. Smith 9. Whenever it is sought to convict of murder in the first degree, the burden of proof is upon the Commonwealth to show the circumstances necessary to raise the offence above murder of the second degree. Nor can this burden be shifted from the Commonwealth upon the shoulders of the defendant. The learned judge was doubtless misled by the text in Wharton’s American Criminal Law, page 955, which is substantially in the language of the Commonwealth’s point. Many of the text-books, as well as authorities outside of the state, are not to be relied upon by reason of our peculiar division of homicide into murder of the first and second degree. In Commonwealth v. Drum, .before cited, the present chief justice, who tried the case, refers to these distinctions and the general law of homicide with great accuracy.

In the Commonwealth’s second point the same idea is repeated, though in a less objectionable form. It was not perhaps technical error to affirm it, yet unexplained it may not have been understood by the jury. Upon what evidence may the jury find that the prisoner had abandoned his previous purpose to take the life of the deceased? He cannot prove a negative. The purpose may have been formed years before and long since abandoned. It was therefore a question for the jury, upon all the evidence in the case, to determine whether the prisoner killed the deceased in pursuance of his previously formed design to take his life, or ■whether it was the result of a provocation occurring at the time of the killing.

The law of homicide excusable on the ground of self-defence was not correctly stated in the Commonwealth’s sixth point, and it was therefore error to affirm it. It is not necessary that a man shall be in actual imminent peril of life, or of great bodily harm, before'he may slay his assailant. It is sufficient if in good faith he has a reasonable belief, founded upon the facts as they appear to him at the time, that he is in such imminent peril, even though it should afterwards appear that he was mistaken. The law will not hold a man to absolute correctness of judgment under such trying circumstances.

We do not regard this error as cured by the general charge. An obscure answer may be aided in this manner, but not one that is palpably erroneous. Beside, the general charge upon this branch of the case is not consistent with itself, and may have left the jury in doubt as to what the law really was.

The judgment of the Oyer and Terminer is reversed; a venire facias de novo awarded, and the record remitted to said court for another trial.


author: Mr. Justice Gokdón

text:
    Pittsburg’s Appeal.
    1. The Act of May 10th 1871 authorized Pittsburg to admit into the city adjacent territory, on the petition of at least three-fifths of the taxable inhabitants of the district desiring to be admitted, accompanied by an affidavit of a citizen of the district, that the signers were taxable inhabitants in it, and were as he believed three-fifths of the taxable inhabitants, and on the presentation of the petition might adopt an. ordinance admitting such district. Held, that the jurisdiction of the councils attached only on the petition of three-fifths of the taxable inhabitants, and without this the action of councils annexing a district was void.
    2. An affidavit to a petition, in the form and stating the facts required by the act, is not conclusive of the facts stated in it.
    3. Ex parte affidavits are usually but the ground of preliminary or interlocutory action; but, unless provided by Act of Assembly or rule of court, are never the ground of a final judgment.
    4. A private citizen may maintain a bill to restrain the city from carrying into operation an ordinance to annex territory to the city.
    October 14th 1875.
    Before Agnew, C. J.. Sharswood, Williams, Mercur, Gordon, Paxson and Woodward, JJ.
    Appeal from the Court of Common Pleas, No. 2, of Allegheny county: In Equity: Of October and November Term 1875, No. 132.
    The bill in this case was filed November 29th 1873, by James Kelly against the city of Pittsburg and others, officers of the city, to restrain them from exercising municipal authority over any part of Wilkins township, in pursuance of an ordinance passed by the councils of the city for that purpose.
    By the first section of an Act of Assembly, passed May 10th 1871, Pamph. L. 718, it was provided “ that the city of Pittsburg shall be and is hereby authorized to admit into said city, any borough, townships or portion of townships in the county of Allegheny, adjacent to said city, upon the following conditions: In case of any township qr portion thereof, the application shall be made by a petition of at least three-fifths of the taxable inhabitants of the township or the portion thereof desiring admission ; and if only a portion of said township desires to be admitted, the petition shall set forth the boundaries of the district desiring admission; the said petition shall in either case be accompanied by an afiidavit of a reputable citizen of said district, that the persons signing the same are taxable inhabitants, and constitute, as he verily believes, three-fifths of all the taxable inhabitants of said district. And upon presentation of the petition as above provided, it shall be lawful for the councils of the said city of Pittsburg to pass and adopt, in manner provided by law, an ordinance admitting said township, or portion thereof, into said city.”
    On the 9th of December 1872, a petition purporting to be signed by 216 taxable inhabitants of Wilkins township was presented to the councils of Pittsburg; the petition was accompanied by the afiidavit of Henry Swift, “ a reputable citizen of the district desiring admission,” that the petitioners were taxable inhabitants, and as he believed constituted “ three-fifths of all the taxable inhabitants of the district.”
    The matter was referred to the city solicitor, who gave the councils his opinion in writing that the affidavit of Swift fully complied with the provisions of the Act of May 10th 1871; he further advised that if a remonstrance were filed denying the allegations of the petition, the councils should appoint a committee to ascertain the facts. A remonstrance having been filed, councils appointed a committee as advised. A majority of the committee reported in favor of granting the prayer of the petition; the minority reported adversely. A second committee was appointed who reported unanimously recommending the passage of the ordinance as prayed for.
    On the 12th of May 1873, an ordinance was passed incorporating as the Thirty-seventh ward of the city of Pittsburg, a portion of Wilkins township, whose boundaries were particularly set out in the ordinance.
    The plaintiff averred in the bill, the passage of the ordinance, the purpose of the city to exercise municipal authority over the district proposed to be annexed to it; that he was a citizen residing within that district and the owner of a large body of land in it; that of the territory included in the boundaries, a very large proportion was agricultural, used for farming purposes, and was sparsely populated ; he denied that three-fifths of the taxable inhabitants of the district had petitioned councils to admit the territory described as part of the city of Pittsburg, and averred that the ordinance was void. He also charged that the action of councils in the premises was collusive, false and fraudulent.
    The city in its answer, averred, amongst other things, that the "committees of councils to whom the matter was referred, after “ a very full and fair examination of the facts in the case, hearing parties in favor of and opposed to said annexation, and James Kelly, the plaintiff in the bill, appearing before them, with counsel, did, on February 17th 1875, report that the requisite three-fifths of the taxable inhabitants of said district had petitioned for annexation,” and that in pursuance of that report the ordinance was enacted by the councils.
    They denied all collusion and fraud.
    A replication was filed, and J. M. Stoner, Esq., was appointed examiner and master.
    He took a large amount of testimony, the most of which was taken with reference to the allegations of the bill that three-fifths of the taxable inhabitants of the district did not sign the petition, and that action of the councils was collusive and fraudulent.
    The master, after an elaborate discussion of the testimony, and the law bearing on the questions, reported : * * *
    “The fact that three-fifths of the taxable inhabitants of the district, on December 9th 1872, had not signed the petition for its admission, was admitted by the counsel for the respondents. They, however, contended that the complainant was not entitled to the relief sought, and that he had not pursued the appropriate remedy. It was said the writ of quo warranto was the form of remedy that should have been adopted. * * *
    “ Whilst admitting also that where the law requires an application by a given proportion of the taxable inhabitants of a district, to authorize certain measures with respect to such district by any tribunal, and particularly by a special tribunal, as the councils of a city, the fact that such proportion have petitioned is essential to give jurisdiction; and, unless that fact can be established, the whole proceedings are void from beginning to end, * * * and that the Act of May 10th 1871 made a petition by the prescribed number indispensable to give the councils jurisdiction; they alleged that the affidavit of Henry Swift, made in compliance with that act, was, by the terms of the act, a judicial finding that three-fifths of the taxable inhabitants of the district had signed the petition, and that the complainant was concluded by it. * * *
    “ The Act of May 10th 1871 contains no provision that the affidavit prescribed by it shall conclude any one as to the question whether three-fifths of the taxable inhabitants have petitioned. And, in the absence of an express provision to that effect, it would seem to be an unwarranted construction of that act, to hold that the mere affidavit of a reputable citizen that the required three-fifths had, as he believed, petitioned for the admission of the district, precludes all inquiry into the fact itself, or as to the accuracy of the affiant’s information. Certainly if that was contemplated by the legislature, it should have been clearly expressed. * * * It must be assumed that when the legislature provided that the application for admission into the city by any adjoining district should be made by a petition of at least three-fifths of the taxable inhabitants thereof, it intended to give parties interested the benefit of the restriction thereby implied, by denying the councils the power to incorporate such district with the city upon the application of a less number; and it is inconsistent with this intention to suppose that it has given to the ex parte affidavit of a single individual the effect of a judicial finding that the requisite number have applied. If this had been contemplated, it is fair to infer, not only that it would not have been left to inference, but that the act would have contained some provision for notice to parties interested. * * *
    “ The master, therefore, holds that the affidavit of Henry Swift, filed with the councils of the city of Pittsburg, is not to be treated in these proceedings as a judicial finding of the facts alleged in it; that the petition presented to said councils was not a compliance with the Act of May 10th 1871, and did not confer jurisdiction upon them; and that the ordinance passed by said councils, on the 12th day of May 1873, in pursuance of said petition, is null and void.”
    The following special findings of facts are submitted by request of counsel:—
    1. That on the 9th day of December 1872 a petition was presented to the councils of the city of Pittsburg for the admission of Wilkins township into the city of Pittsburg, accompanied by the affidavit of Henry Swift, a reputable citizen of the district; that the persons signing the same were'taxable inhabitants of said district, and constituted, ás he verily believed, three-fifths of all the taxable inhabitants of that district.
    2. That said affidavit was made by said Swift, after comparison of said petition with the tax duplicate of the township, and after consultation with certain persons whom he believed to be well-informed citizens of the district, and was made in good faith and in full belief that the facts set forth were true.
    3. That said petition was referred by councils to the city attorney, who advised that it was regular in form.
    4. That councils afterward referred it to a committee to ascertain the fact whether said petition was signed by three-fifths of the taxable inhabitants of the district, which committee heard the evidenee offered by petitioners and remonstrants, the complainant in this case being present at some of the meetings, and represented by counsel, and after several meetings^and a full consideration of the matter, reported to councils that said petition was signed by the requisite number of the taxable inhabitants of the district.
    5. That it was again referred to a second committee, by whom a similar report was made.
    6. That councils afterwards passed an ordinance admitting said districts.
    7. That the action of councils’ and its committees was had in good faith, and was not fraudulent or collusive.
    8. That on the 9th day of Hécember, A. D. 1872, the number of taxable inhabitants within the limits of said district was 428.
    9. That the required number of petitioners, as provided by the Act of May 10th 1871, is 257.
    10. That the whole number of petitioners, who are taxable inhabitants, is 205, showing a deficiency of fifty-two.
    11. That the complainant, and a considerable number of other taxable inhabitants of said district, presented remonstrances against the annexation of said district to the said councils of the city of Pittsburg, prior to the passage of said ordinance.
    12. That the committees of said councils had before them the petition for the admission of said district into the city, a list of taxable inhabitants made by Henry Swift, and another list of taxable inhabitants made by John Rice; and that there are on said petition thirty-three names not on Swift’s list, and there are on Rice’s list fifty-one names not on either said petition or said Swift’s list. ■ •
    13. That said councils did not order a poll of said district, but that the said list of John Rice was made with their permission and at their request.
    14. That there is no evidence before the master that any municipal improvements have been made in said district by the city of Pittsburg.
    15. That said district contains about 1500 acres of land, of which about 1000 acres are used and occupied as farm land; that .a portion of said farm lands lie between the villages of Wilkins-burg and Edgewood; and that the value thereof, as real estate, depends not so much upon their adaptation to the purposes of agriculture as upon their proximity to the city of Pittsburg.
    The master recommended the form of a decree directing an injunction against the city.
    Exceptions were filed to the master’s report, which were overruled by the court, who decreed :—
    “That the ordinance of the city of Pittsburg, entitled an ordinance to provide for the admission into the city of a portion of Wilkins township, passed by the councils thereof, on the 12th day of May, A. D. 1875, is null, void and of no effect; that "a writ of injunction issue against the defendant, the city of Pittsburg, perpetually restraining the said city from levying taxes upon the lands of the plaintiffs mentioned in the bill, and situated in that part of the township of Wilkins described in the bill, and from collecting any city taxes assessed thereon, and restraining the said city of Pittsburg from exercising corporate or municipal authority, in pursuance of the aforesaid ordinance, over any part of said Wilkins township described in the plaintiff’s bill; that the bill be dismissed as to all the defendants, other than the city of Pittsburg, and that the defendants, the city of Pittsburg, pay the costs of suit,” &c.
    The city of Pittsburg appealed to the Supreme Court, and assigned this decree for error.

      J. P. Slagle and (r. P. Hamilton, for appellants.
    The whole city of Pittsburg is interested in this question ; the relator has no interest except in common with other .citizens, and therefore has no standing in this proceeding: Heffner v. Commonwealth, 4 Casey 108; Commonwealth v. Allegheny Bridge Co., 8 Harris 185 ; Murphy v. Farmers’ Bank, Id. 415 ; Commonwealth v. Farmers’ Bank, 2 Grant 292; Commonwealth v. Cluley, 6 P. F. Smith 279 ; Smith v. McCarthy, Id. 359. The complaint is the usurpation of a municipal franchise and the remedy is by quo warranto: 2 Dillon on Mun. Corp., sects. 713, 716, 718. Under the act the power of the city to take in adjacent territory is full; the mode of exercising the power is in affirmative language; the directions of the act were strictly complied with, and when the petition was presented to councils their jurisdiction attached: Bladen v. Philadelphia, 10 P. F. Smith 464; Pittsburg v. Coursin, 24 Id. 401. When a statute provides a mode of proving a jurisdictional fact, none other can be resorted to : Slable v. Fairchild, 3 N. Y. 41.

      S. Sehoyer and M. W. Aeheson (with whom was T. M. Marshall), for appellee.
    Where there is an adequate remedy in equity, it is a sufficient objection to proceeding by quo warranto: High’s Extraordinary Legal Remedies, sects. 617-619; Commonwealth v. Allegheny Bridge Co., 8 Harris 189 ; Ewing v. Thompson, 7 Wright 373; Kerr v. Trego, 11 Id. 295; Devore’s Appeal, 6 P. F. Smith 164; 2 Dillon on Mun. Corp., sect. 75, et seq., and cases there cited. The plaintiff has an.interest co-extensive with his injury. The injury is against each of the taxable inhabitants of the district; that they and their property are to be subjected to the burdens of municipal control, and he avers that he is the .owner of property within that district; in this aspect the hill is sustainable: Washington Avenue, 19 P. F. Smith 352; Robb v. Barlow, 8 Id. 338.
   Mr. Justice Gokdón

'delivered the opinion of the court, January 6th 1876.

Under what authority does the city of Pittsburg assume to have acted in annexing the territories of an adjacent municipality to itself? This is an unusual and extraordinary assumption, and in order to justify it a warrant from the supreme power in the state must be shown. • *

No presumption can be invoked in favor of such a power, for it is strange and unique, and unless some legislative grant, containing it in terms, is produced, we must pronounce the exercise thereof, in the present oase, a mere usurpation.

For such warrant we are referred to the Act of May 10th 1871, by which it is provided, inter alia, “ That the city of Pittsburg shall be and is hereby authorized, to admit into said city, any borough, township, or portion of township, in the county of Allegheny, adjacent to said city, upon the following conditions: ‘ In case of any township, or portion thereof, the application shall be made by a petition of at least three-fifths of the taxable inhabitants of the township, >Éor portion thereof, desiring admission, and if only a portion of said township desires to be admitted, the petition shall set forth the boundaries,’ &c. The said petition shall, in either case, be accompanied by an affidavit of a reputable citizen of said district, that the persons signing the same are taxable inhabitants and constitute, as he verily believes, three-fifths of the taxable inhabitants of said district; and upon presentation of the ordinance or petition, as above provided, it shall be lawful for the councils of the said city of Pittsburg to pass and adopt, in manner- provided by law, an ordinance admitting' said borough, township, or portion of any township, into said city.” Now, by the provisions of this act, there is one condition under which the power of the city attaches, and only one ; that is, the petition of at least three-fifths of the taxable inhabitants of the territory intended to be annexed. Without this the action of the city couocils in the premises is ultra vires and void. But the auditor finds, nemine contradieente, that three-fifths of the taxablé inhabitants within the territory, in this case to be annexed to the city, did not petition for such annexation. This fact being ascertained, it is an end of the controversy, for the city councils, under such circumstances, had no power to do that which they attempted to do. A failure of the condition involved a failure of their jurisdiction. But it is argued that the affidavit required by the act is conclusive of the facts stated in it; among others, that -the petition did contain the names of three-fifths of the taxable inhabitants of the territory to be annexed. This .allegation would have force if the statute so provided, but it does not. Ex parte affidavits are, at best, but a very weak kind of evidence, and generally form but the ground of some preliminary or interlocutory action, but are never,, unless it be especially so provided by Act of Assembly or rule of court, the foundation for final judgment or decree. So in this case, the affidavit was primá, facie evidence that the petition was what it purported to he, an expression of the desire of not less than three-fifths of the taxable inhabitants of a portion of Wilkins township for annexation to the city of Pittsburg; and the councils might, under such warrant, proceed with «any preliminary action necessary to ascertain the main fact upon which the validity of their final action must depend. To give it a force beyond this, would be to raise, by implication from the act and a forced construction of it, evidence on which to rest a power such as can only be derived from the strict letter of the statute itself: Borough of West Philadelphia, 5 W. & S. 281; Borough of Little Meadows, 4 Casey 256; Devore’s Appeal, 6 P. F. Smith 163; Pittsburg v. Walters, 19 Id. 365; Olds v. City of Erie, postea p. 380.

. The other question — the right of a private citizen to maintain a bill such as that upon which this case is founded — is hardly open for argument. So many are the cases in which such hills have been sustained that one might suppose this matter to be no longer open for debate.. It was held, in Sharpless v. The Mayor, &c., 9 Harris 147; Moers v. Reading, Id. 188; Page v. Allen, 8 P. F. Smith 338; and more recently in Wells et al. v. Bain et al., 25 P. F. Smith 39, that the interest of a taxpayer, when money is to be raised by taxation, or expended from the treasury, is sufficient to entitle him to maintain a bill to test the validity of the law which proposes the assessment or expenditure. If, then, such an interest he sufficient to enable one to test the validity of an election law, which, at most, could increase his tax but to a trifling degree, a fortiori, shall one, like the plaintiff, who is threatened by most burdensome impositions, have the power thus to inquire into the right by which the councils of Pittsburg propose to act in subjecting his person and property to their jurisdiction for the purposes of municipal government and taxation.

Appeal dismissed, decree affirmed, and appellant ordered to pay costs.


author: Mr. Justice Sharswood

text:
    Scully versus Kirkpatrick, to use, &c.
    1. State remedies against fraudulent debtors are not suspended by the operation of the Bankrupt Act.
    2. A defendant was arrested as a fraudulent debtor on a warrant under 0p jujy p2th 1842, and brought before a judge, who after hearing directed him to enter into bond with surety for his appearance at an adjourned hearing June 18th. He did not appear at that day. The docket had this entry : “June 18th — defendant not appearing is called and surety called and bond forfeited.” Held, that the entry was not a record and not evidence.
    3. The judge was not acting as a court of record, and had no power to adjudge the bond forfeited.

      4. The proceedings under a warrant of arrest under the Act of 1842, are not part of the proceedings in the cause, they are merely incidental and collateral.
    5. The sheriff or constable is not required to make return into the office or to the court; he executes the warrant by arresting the defendant and bringing him before the judge or keeping him in custody till he is discharged.
    6. In a suit on the bond against the surety ; evidence that defendant had been stricken down by sickness at a distance from the place of hearing, &c., so as to be prevented from appearing at the time fixed, that he appeared there an soon as he was able, after his recovery: Held to be admissible.
    7. If the condition of a bond become impossible by the act of God, the obligation is discharged.
    8. When the act to be performed is of a purely personal character, which can be done only by the party himself, the act of God in producing sickness and insanity, as well as death will excuse performance.
    October 15th 1875.
    Before Agxew, O. J., Sharswood, Williams, Mercür, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1875, No. 175.
    This was an action of debt brought August 14th 1873, in the name of John M. Kirkpatrick to the use of Joseph S. Finch and John W. Painter, trading as Joseph S. Finch & Co., against John D. Scully.
    The action was on bond, dated May 31st 1873, executed by Abraham Gumberts, and the defendant, as his surety, in the sum of $10,000, conditioned for the appearance of Gumberts, who had been arrested under the Act of July 12th 1842, &c.
    The circumstances of the case are as follows :—
    On the 3d of March 1873, the -beneficial plaintiffs filed a petition in the District Court of the United States for the district of Indiana for an adjudication of bankruptcy against Gumberts. The petition set forth the petitioners’ demand to be on a promissory note from Gumberts to the petitioners, dated October 5th 1873, payable in four months, for $5177.58.
    The acts of bankruptcy alleged were, that being a merchant he had stopped payment and had not resumed in fourteen days, and that he had sold his goods with intent to defraud his creditors. On the 8th of March 1873, Gumberts, in pursuance of an order approved by counsel in the District Court, filed an answer denying the allegations of the petition and asking that the matter might be inquired of by a jury ; a trial of the issues was thereupon ordered.
    On the 14th of April 1873, Finch & Co. brought three suits in the District Court of Allegheny county against Gumberts; one on a draft by them on him, dated January 6th 1873, payable in ninety days, for $1877.89 ; another on the note mentioned in the petition in bankruptcy; the third on another draft of January 6th 1873, payable in sixty days, for $1364.12.
    On the same 14th of April, Finch & Co. presented a petition to Hon. John M. Kirkpatrick, one of the judges of the District Court of Allegheny county, setting out that Gumberts had fraudulently contracted the debt for which the note of $5177.58 had been given, and had obtained the goods for which it had been given, by false pretences; and by like fraud and false pretences, &c., had obtained other goods,' and that they had brought suits for the note and drafts which were then pending.
    They prayed for a warrant under the Act of July 12th 1842.
    Judge Kirkpatrick accordingly issued a warrant of arrest against Gumberts, and he was brought before the same judge on the 15th of April.
    Further proceedings were had before Judge Kirkpatrick. On the 1st of May, Gumberts filed his answer, admitting the purchase of the goods but denying the fraud and false pretences. He further set out the proceedings in bankruptcy; also, that being a citizen of the state of Indiana, the plaintiffs commenced a prosecution against him in the Court of Quarter Sessions of Allegheny county for obtaining the goods mentioned by plaintiffs’ petition by false pretences and had him brought to Allegheny county to answer that charge, for the purpose of serving civil process upon him within the jurisdiction of the District Court.
    Hearing proceeded, and after adjournments from time to time, the docket of the District Court shows the following entries :— '
    “ May 31st 1873, defendant appears, and.'on his motion, hearing adjourned until June 18th 1873, at 10 o’clock, A. M., at District Court room, No. 2. Defendant held in $10,000, with surety, for his appearance. Rond approved by the court.”
    The condition of the bond was:—
    “ The condition of this obligation is such, that, whereas, the above bounden A. Gumberts was brought before the said John M. Kirkpatrick, judge aforesaid, on a warrant of arrest upon the petition of Joseph S. Finch & Co., under the provisions of the Act of July 12th 1842 ; and, whereas, the hearing was by said judge continued until Wednesday, the 18th day of June 1873, at District Court room, No. 2, at 10 A. M. Therefore, if the said A. Gumberts do appear at the time and place aforesaid, then this obligation to be void and no effect, otherwise to be and remain in full force and virtue.”
    Then follow these docket entries:—
    “ June 18th 1873, plaintiffs appear, defendant not appearing is called and surety called and bond declared forfeited. JSo die rule ex parte defendant to show cause why the forfeiture should not be taken off.”
    On the 20th of June 1873, Gumberts appeared by his counsel in the District Court of the United States in Indiana, withdrew his answer and consented to be adjudged a bankrupt, and he was thereupon adjudged a bankrupt. The usual proceedings in bankruptcy followed the adjudication. Finch & Co. were not amongst the creditors who proved their debts before the register.

      On the 30th of June 1873, the rule in the District Court of Allegheny county to strike off the forfeiture of the bond was discharged. On the same day Finch & Co. obtained judgment by default against Gumberts in their three suits; the aggregate amount of the judgments, was $8091.47.
    On the trial, September 28th 1874, before Collier, J., the foregoing facts appeared by the evidence of both parties.
    The defendant offered to show : “ That prior to, and on the 18th day of June 1873, the time appointed in bond in suit for the appearance of A. Gumberts before the Hon. John M. Kirkpatrick, to answer the warrant of arrest in the bench warrant proceeding— he, the said Gumberts, was ill and unable to appear at the time and place required by the said bond ; that a few days before June 18th 1873, he had been stricken down by sickness at his home at Evansville, Indiana, and was thereby prevented appearing in the District Court at Pittsburg on June 18th 1873 ; to be followed by evidence that so soon as said Gumberts was able to leave home, to wit, on the 30th day of June 1873, he hastened to Pittsburg, and appeared in the District Court of Allegheny county, before the Hon. John M. Kirkpatrick (the said Joseph S. Finch & Co. and their counsel being then and there present), to answer the complaint of Joseph S. Finch & Co. in the bench warrant proceedings, the 30th of June being the earliest day he was able to appear at Pittsburg after his recovery from his illness; and that since then said Gumberts died. For the purpose of showing that by the act of God the said Gumberts was unable to appear before Judge Kirkpatrick on June 18th 1873, and the defendant, Scully, was unable to produce him; and also for the purpose of showing that there was no breach of condition of the bond in suit.”
    The plaintiff objected to the offer because: “It appears by the record of the District Court of Allegheny county, already in evidence, that on June 18th 1873, a decree of forfeiture was entered on the bond in suit; that same day rule to take off forfeiture was granted defendant, which, after argument on June 30th 1873, was discharged by the court. These judgments and decrees of the court, being a court of competent jurisdiction, cannot be attacked collaterally.”
    The offer was rejected and a bill of exceptions sealed for the defendants.
    The plaintiff’s first point, which was affirmed, was :—
    Under all the evidence in the case, the plaintiff is entitled to recover the amounts due Joseph S. Finch & Co., the equitable plaintiffs on the judgments in No. 853, 854 and 855, April Term 1873, already in evidence, with the costs in each.
    The defendant’s points, which were refused, were:—
    1. Upon the whole evidence in the case the verdict should be for the defendant.

      2. The bench warrant proceedings in the District Court of Allegheny county having been instituted by Joseph S. Finch & Co. subsequently to the institution by them of the proceedings in bankruptcy against said A. Gumberts in the United States District Court for the District of Indiana, the warrant of arrest and all subsequent proceedings, including the bond in suit, were illegal and null and void.
    3. The proceedings in the beneh warrant case before Hon. John M. Kirkpatrick, never having been determined finally, and the said Gumberts, having appeared therein.on June 30th 1873, the plaintiff is not entitled to recover on said bond.
    The jury found for the plaintiff for $10,000, the amount of the bond, to be released on payment of $8721.58, subject to the opinion of the court on question of law reserved, viz. :—
    “ Whether the District Court of Allegheny county had jurisdiction of the bench warrant proceedings instituted by Joseph S. Finch & Co. against A. Gumberts, after the said Joseph S. Finch & Co. had instituted the proceedings in bankruptcy against said Gumberts in the United States District Court for the District of Indiana, and during the pendency thereof, and whether the bond in suit taken pending the said bankrupt proceedings can be enforced against the said John D. Scully.”
    The court, Collier, J., on the 4th of June 1875, entered judgment on the verdict for the plaintiff on the reserved question.
    The defendant took a writ of error; he assigned for error:—

      1. Affirming the plaintiff’s point.
    2, 3, 7. Refusing the defendant’s points.
    4. Entering judgment for the plaintiff on the reserved question.
    6. Rejecting the defendant’s offer of evidence.
    . M. W. Aeheson and II. W. Weir, for plaintiff in error.
    Thé Bankrupt Act, ipso facto, suspended all action upon future eases under the insolvent laws of the state where the insolvent laws act upon the same subject-matter and the same person as the bankrupt act; and all proceedings upon such cases commenced under the state laws after that time are null and void: Commonwealth v. O'Hara, 6 Phil. R. 402; Van Nostrand v. Carr, 30 Md. 128; In re Reynolds, 8 Rhode Island R. 485; Martin v. Berry, 37 Cal. 208; Ex parte Eames, 2 Story 322; Griswold v. Pratt, 9 Met. 16; Nesbit v. Greaves, 6 W. & S. 120; Barber v. Rodgers, 21 P. F. Smith 362. The evidence should have been received on the principle, actus Dei nemini faeit injuriam. If the condition of a bond was possible at the time of making it, and afterwards becomes impossible by the act of God, the obligor shall be excused: Com. Dig. “ Condition” L. 12, D. I.; 2 Bl. Com. 340.
    The action of Judge Kirkpatrick, in making a record of the fact of non-compliance with the condition of the bond, &c., was not sucb final adjudication as precluded inquiry in an action against the bail.

      I). T. Watson (with whom was R. B. Carnahan), for defendant in error.
    The states in matters of bankruptcy have concurrent authority with the United States except in such cases as the laws of the United States reach: Sturges v. Crowninshield, 4 Wheaton 122; Van Nostrand v. Barr, 30 Md. 128; Ex parte Eames, 2 Story 326; Shepherdson’s Appeal, 36 Conn. 25. An adjudged bankrupt may be arrested and give bond to take the benefit of the state insolvent laws : Malthe v. Hotchkiss, 38 Conn. 80; Reed v. Taylor, 32 Iowa 209; Steelman v. Mattix, 36 N. Jersey 344 ; Shears v. Solbinger, 10 Abb. Pr. (N. S.) 287; Jordan v. Hall, 9 R. I. 218; In re Reynolds, 9 Bank. Reg. 50.
    Section 26 of the Bankrupt Act provides that: “ No bankrupt shall be liable to arrest during the pendency of the proceedings in bankruptcy in any civil action unless the same is founded on some debt or claim from which his discharge in bankruptcy would not release him.” Section 30 provides “ That no debt created by fraud ***** shall be discharged under this act.” The Bankrupt Act, therefore, is not only not in conflict with the Act of July 12th 1842, on this point, but authorizes such proceedings to be taken: In re James B. Devoe, 2 Bank. Reg. 11; In re J. H. Kimball, Id. 74; In re Ward E. Robinson, Id. 108.
    A discharge (in bankruptcy) is no bar to an action for a debt created by fraud, although the creditor proves his claim arid received a dividend thereon: Stokes v. Mason, 8 Am. L. J. 266 ; Stewart v. Emerson, 52 N. H. 301; Flannigan v. Cary, 37 Texas 67; Morse v. Hutchins, 102 Mass. 439; Jones v. Russell, 44 Georgia 460; Halliburton v. Carter, 55 Mo. 435; Heffren v. Jayne, 39 Indiana 463-471.
    The Common Pleas could not review collaterally, the decision of Judge Kirkpatrick in forfeiting the bond, or the propriety of his so doing: Railroad Co. v. City of Erie, 1 Grant 212; Warner v. Scott, 3 Wright 274; Mann v. Drexel, 2 Barr 202; Souter v. Baymore, 7 Id. 415.
   Mr. Justice Sharswood

delivered the opinion of the court January 6th 1876.

In regard to the question presented upon this record on the reserved point in the court below, as to the validity of the warrant of arrest and the proceedings thereon, under the Act of Assembly of July 12th 1842, entitled An Act to abolish imprisonment for debt, and to punish fraudulent debtors,” Pamph. L. 334, it was fully considered after two arguments and decided adversely to the plaintiff in error, in re W. C. Barr : opinion filed November 10th 1875. It was then held that the state remedies against fraudulent’ debtors are not suspended by the operation of the Bankrupt Act of Congress, inasmuch as it is expressly declared in that act, that “ no debt created by the fraud or embezzlement of the bankrupt or by his defalcation as a public officer, or while acting in any fiduciary character, shall be discharged by proceedings in bankruptcy Sect. 5117, Revised Statutes U. S. 993; and also, “no bankrupt shall be liable during the pendency of the proceedings in bankruptcy to arrest in any civil action, unless the same is founded on some debt or claim from which his discharge in bankruptcy would not release him.” Barber v. Rodgers, 21 P. F. Smith 362, was not the case of a debt fraudulently contracted.

As the 1st sect, of the Act of 1842, abolishing imprisonment for debt is unconditional, the creditor would be without remedy against a fraudulent debtor, under either the laws of the state or of the United States, unless he could pursue him under that act to compel the application of his acquisitions subsequent to the institution of the proceeding in bankruptcy to the payment of the debt.

The second question which arises relates to the evidence of the breach of the condition of the bond in suit. It appears that the proceedings upon the warrant of arrest issued in the original case by Judge Kirkpatrick, were entered upon the docket of the court, and there is this entry thereon: “June 18th 1873 — plaintiffs appear, defendant not appearing, is called and surety called and bond declared forfeited.” This was all the evidence of the breach of the condition. But this entry on the docket did not make a record, unless it was so in point of fact. We are of opinion that it was no part of the record, and the entry therefore not evidence; much less conclusive of the breach of the condition. The proceedings on a warrant of arrest under the Act of 1842, are no part of the proceedings in the cause, but merely incidental and collateral thereto. The jurisdiction and authority might just as well have been committed to any other officer as to a judge of the court in which the suit was commenced or the judgment obtained. The warrant does not issue from the office of the prothonotary, and is not under the seal of the court. It is issued by the judge himself to the sheriff or any constable, who is nowhere required to make return into the .office or to the court, but who executes the warrant by arresting the defendant and bringing him before the judge issuing the warrant, and keeping him in custody until he is duly discharged. There is no provision, from one end of the act to the other, that the proceedings or any part of them shall be filed of record. By sect. 7, “ The judge conducting such inquiry shall have the same powers to issue subpoenas to enforce the attendance of witnesses, and to punish witnesses refusing to testify, as is vested in the court of which he is a judge.” The final commitment by sect. 8, is under the hand of the judge reciting the facts of the case and directing the defendant to he committed to the jail of the county. How then could the proceedings he entered on the record — no act from their commencement to their termination being an act of the court? There was no proper evidence before the court below of the breach of the condition of the bond, and the first point of the defendant below should have been affirmed.

The only other question presented, arises upon the sixth assignment of error — the rejection of the offer of evidence by the defendant. The bond in suit was given under the provision of the 6th sect, of the Act of 1842, that “in case of an adjournment the judge may take a bond with or without surety for the appearance of the party arrested at the adjourned hearing.” The day named in the condition of the bond for the adjourned hearing was June 18th 1873. The rejected offer was to prove “that a.few days before June 18th 1873, the defendant, Humberts, had been stricken down by sickness, at his home at Evansville, Indiana, and was thereby prevented appearing at the day fixed, to be followed by evidence that so soon as said Humberts was able to leave home, to wit, on the 30th day of June 1873,- he hastened to Pittsburg and appeared before Judge Kirkpatrick to answer the complaint; the 30th of June being the earliest day he was able to appear at Pitts-burg after his recovery from his illness.” This evidence was objected to as irrelevant, and incompetent because contradicting the record. We have seen that there was no record to contradict, and that in his action in the premises, Judge Kirkpatrick was not acting as a court of record, and had no power to adjudge the bond to have been forfeited.

It remains to consider whether the facts presented in the offer were relevant to the issue; in other words, whether they would have constituted a good defence had the breach of the condition been proved — the offer in effect admitting that Humberts did not appear before Judge Kirkpatrick on the 18th June 1873, the day appointed for the adjourned hearing.

It is undoubted law that if the condition of a bond becomes impossible to be performed by the act of Hod, the obligation is discharged : Co. Litt. 206 a. But a condition was then only considered in the eye of the law as impossible if it could not by any means take effect: Id.; Butler’s note 98. Death of the party who is to perform the condition of course releases the bond — but that it could only be done with great danger to the life of the party is not sufficient. Some hard examples are to be found in cases of special bail, but there is a peculiarity in the alternative condition of the recognisance of special bail which is .to be remembered in reading these cases: Wynn v. Petty, 4 East 102; Grant v. Fagan, Id. 189 ; Bowerback v. Payne, 2 Wash. C. C. Rep. 464 ; Rathbone v. Warren, 4 Johns. 310; Olcott v. Lilly, Id. 407. Some relaxation of the rigidity of the rule occasionally appears: Thomas v. Buckley, 5 Cowen 25; Boardman v. Fowler, 1 Johns. Cas. 41. The power of a court in giving relief against their own orders, though of the most final and absolute kind, is illustrated in Doty v. Whittlesey, 1 Root 310. There a party on his way to pay money for the redemption of a mortgage under a final and absolute decree of foreclosure at a day certain, was taken sick and could not proceed; the court extended the time. See also Crane v. Hanks, Id. 468.

It is said, indeed, that in matters of positive contract and obligation created by the party (for it is different in obligations or duties created by law) it is no ground for the interference of equity, that the party has been prevented from fulfilling them by accident; or that he had been in no default. The reason is that he might have provided for such contingencies by his contract if he had so chosen: 1 Story’s Eq. Jur., § 101.

This reason, however, would not apply to the case before us : for this was a statutory bond and could only be given in the form prescribed, as was held by this court in McClelland v. Smith, 2 Jones 303.

The principle so broadly stated is not. supported by the later cases. Equity will often in the case of positive contract give relief, not perhaps on the ground of accident, but by an equitable interpretation of the terms of the contract. They will imply that the parties necessarily intended an exception. Pollard v. Shaaffer, 1 Dall. 210, an early case in this state was of that character. The later English cases very distinctly recognise this equitable doctrine. In Hall v. Wright, El., B. & E. 746, Crompton, J., said : “ When a contract depends upon personal skill, and the act of God renders it impossible, as for instance in the case of a painter employed to paint a picture, who is struck blind, it may be that the performance might be excused.” And see Taylor v. Caldwell, 3 Best & Smith 826.

In Boast v. Firth, Law Rep. 4 C. B. 1, to an action for breach of an apprenticeship deed, the defendant (the father) pleaded that the apprentice “ was and is prevented by the act of God, to wit, by permanent illness, happening and arising after the making of the indenture, from remaining with or serving the plaintiff during all the said term;” it was held on demurrer a good plea or excuse of performance. There are several American cases which sustain the position that when the act to be performed is of a purely personal character, which can only be done by the party himself, the act of God in producing sickness and insanity as well as death, will be an excuse for performance: Dickey v. Linecott, 7 Shepley 353; Knight v. Bean, 9 Id. 536; Fenton v. Clark, 11 Verm. 360 ; Hubbard v. Belwin, 1 Williams 645 ; Fuller v. Brown, 11 Metc. 440 ; Fraley v. North, 19 Barb. 342; Wolfe v. Howe, 24 Id. 174; Jarroll v. Farris, 6 Missouri 159. And there is a decision by the Supreme Court in New York which applies thé principle to a case precisely the same as that before us, and is therefore directly in point. In an action of debt on a recognisance conditioned that the sheriff arrested on an attachment should appear on a day named to answer for a contempt, the defendant, the surety in the recognisance, pleaded that the sheriff before the day was taken violently sick and could not he removed; after the day he died. On demurrer the plea was held to be sufficient: The People v. Manning, 8 Cowen 297.

And is it not a most reasonable and just doctrine? Had Gumberts died on the 17th of June 1873, the bond would have been discharged and the surety released. Would it not shock our sense of common justice in a court where equity is part of the law, to be told that if he was dying on that day, but did not expire until the 19th of June, we must hold his surety bound ? The impossibility of personal appearance would have been the same in both cases. If he had become a raving maniac, must he he brought before the judge in a strait jacket ? In either case his presence would have answered no purpose of the inquiry. He could have replied to no questions. Had he, however, put in no appearance before his death, there would have been some force in the contention that the plaintiff had lost all the benefit of his proceeding, and the surety must bear the consequences — that the plaintiff had the law on his side and equal equity, and there ought therefore to be no interposition in behalf of the surety. But the offer here was to show that Gumberts did appear as soon as he was able, and the plaintiff might have had all the advantage of the proceeding. If then his excuse for not appearing at the day named was a valid one in equity, his appearance at the subsequent term as soon as he was able saved the bond, and the error of the judge in not continuing the proceeding, ought not to prejudice his surety.

Judgment reversed, and venire facias de novo awarded.


author: Mr. Justice Williams

text:
    Robins et al. versus Quinliven.
    1. A devise was, “ Unto my daughter for her natural life and after her death to her issue and their heirs for ever, in the proportions to which they would he entitled under the intestate laws of Pennsylvania, respectively, and free, clear and discharged from any estate, claim or control of her present or any future husband.” Held that the daughter took an estate for life.
    2. “ Issue” in a will prima, facie njeans heirs of the body, and in the absence of explanatory words showing it was used in a restricted sense, is a word of limitation.
    3. If there be on the face of the will sufficient to show that “issue” was to be applied only to children or descendants of a particular class or at a partioulai’ time, it is to be construed, as a word of purchase to effectuate the intention of the testator.
    4. Where there is a devise to one for life, with remainder to his issue as tenants in common, with limitation to the heirs general of the issue, the issue take as purchasers in fee. .
    . 5. When a limitation is to heirs of the-body to take distributively, with superadded words of limitation, the words “heirs of the body’' will be converted into words of purchase.
    October 15th 1875.
    Before Agnew, C. J., Sharswood, Williams, Merour, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1875, No. 245.
    This was an action of ejectment brought May 1st 1875, by Blanche O. Robins and others, against John Quinliven, for a lot of land on Townsend street, Pittsburg.
    The parties filed a case stated, in which the following facts were agreed to:—
    John Marshall died in January 1857, seised of the lot in question, leaving a will which was proved January 19th 1857, and by which he devised as follows:—
    “ I give, devise and bequeath unto my daughter, Mary Robins, for and during her natural life, and after her death to her issue and their heirs for ever, in the proportions to which they would be entitled under the intestate laws of Pennsylvania respectively, and free, clear and discharged from any or any future husband, iny dwelling-house and lot, adjoining the house and lot willed by me to Anne Greenough, and said house and lot now willed to Mary Robins, being in the possession of Theodore Robins and family.”
    Theodore Robins was the husband of Mary IP. Robins the devisee; he died in 1865. Mary H. Robins died in November 1873, intestate, but leaving five children, the plaintiffs in this suit. On the 2d of February 1875, the administrator, &c., of Mrs. Robins, by virtue of an order of the Orphans’ Court, sold to the defendant the lot in question as her property, and the sale was duly confirmed by the court.
    The question for the consideration of the court was whether Mary H. Robins took a life-estate or a fee under the will of John Marshall.
    If the court should be of opinion that she took but a life-estate judgment to be entered for the plaintiffs; if a fee, judgment to be entered for the defendant.
    .The court below entered judgment for the defendant.
    The plaintiffs took a writ of error, and assigned for error, that the court entered judgment for the defendant.

      jB. O. Qhristy, O. O. Taylor and W. D. Moore, for plaintiffs in error.
    “ Issue” is generally a word of limitation, but is reduced to a word of purchase to give effect to the testator’s intention: Angle v. Brosius, 7 Wright 189; Guthrie’s Appeal, 1 Id. 12; Chew’s Appeal, Id. 23; Cote v. Von Bonnhorst, 5 Id. 251. When “issue” is used as synonymous with “children,” the rule in Shelly’s case does not operate: Gernet v. Lynn, 7 Casey 98; Greenwood v. Rothwell, 5 M. & G. 628.

      W. O. Friend and I). F. Patterson, for defendant in error,
    cited Angel v. Brosius, supra; Ogden’s Appeal, 20 P. F. Smith 501.
   Mr. Justice Williams

delivered the opinion of the court, January 6th 1875.

The question presented by the case stated is, what estate did Mary Robins take in the lot in controversy under the will of her father? Was it an estate for life, or an estate in fee simple?

The lot was devised to her for and during her natural life, free, clear and discharged from any estate, claim or control of her present or any future husband, and after her death to her issue and their heirs for ever in the proportions to which they would be entitled, under the intestate laws of Pennsylvania, respectively. It is clear that the testator did not intend to give his daughter an estate in fee simple, nor an estate of which her husband could be tenant by the curtesy. The gift to her was expressly for life. The remainder was given to her issue and their heirs for ever. Was her life estate enlarged and converted into an estate tail, oían estate in fee simple under the Act of 27th April 1855, by the gift of the remainder to her issue? This depends upon the objects of the gift and the character in which they were intended to take. If by “issue” the testator meant “heirs of the body ” of his daughter, and intended that they should take as such heirs, then, under the rule in Shelly’s case, the remainder vested in her as devisee for life, and she took the whole estate as tenant in tail. But if by “issue” he meant children, and intended that they should’ take by purchase, and not by descent as heirs of their mother, then she took only a life estate. It is well settled that the word “issue” in a will, primá facie means “heirs of the body,” and in the absence of explanatory words showing that it was used in a restricted sense, is to' be construed as a word of limitation. But if there be on the face of the will sufficient to show that the word was intended to have a less extended meaning, and to be applied only to children or to descendants of a particular class or at a particular time, it is to be construed as a word of purchase, and not of limitation in order to effectuate the intention of the testator: Slater v. Dangerfield, 15 Mees. & Wels. 263 ; Guthrie’s Appeal, 1 Wright 9 ; Kay v. Scates, Id. 31; Taylor v. Taylor, 13 P. F. Smith 481; Kleppner v. Laverty, 20 Id. 70.

Apart from the primá facie meaning of the word, there is nothing on the face of the will before us to show that by “ issue ” the testator meant “ heirs of the body,” and intended that they should take by descent; the gift to the issue is not immediate, but after the death of the devisee for life ; and there is no devise over in default of issue from which an estate tail can be implied. Besides, the gift of the remainder is not to the issue alone, but to the issue and their heirs for ever, in the proportions to which they would be entitled, under the intestate laws of Pennsylvania, respectively; that is to say, in equal shares as tenants in common. The limitation to the heirs general of the issue, with the super-added words of distributive modification, clearly shows that by “ issue,” the testator meant children and intended that they should take the remainder as purchasers and not as heirs by descent. The law is well settled that where there is a devise to one for life, with remainder to his issue as tenants in common, with a limitation to the heirs general of the issue, the issue take as purchasers in fee: Greenwood v. Rothwell, 5 Man. & G. 628; Slater v. Dangerfield, supra; and even when the limitation is to heirs of heirs of the body, to take distributively, with superadded words of limitation, such a direction is held to convert even the technical words “heirs of the body” into words of purchase: Smith on Exec. Int. 488 ; Frame on Rem. 154 ; Guthrie’s Appeal, supra. The court below was, therefore, in error in holding that Mary Robins took an estate in fee under the will-of her father, and entering judgment for the defendant on the case stated, the plaintiffs were entitled to recover as devisees of the remainder, and the judgment should have been in their favor.

Judgment reversed and judgment fo.r the plaintiffs on the case stated.