text:
    The Philadelphia, Wilmington and Baltimore Railroad Co. versus Woelpper.
    1. A railroad company under authority of law, mortgaged “ all their road, property, rights, liberties, privileges, corporate franchises, income, tolls and receipts then held or thereafter to be acquired” “ in trust for the use, benefit and security of the holders” of certain bonds therein described. Held, that the mortgage was a lien upon engines, rolling-stock, &c., in actual use by the company and required for the transaction of its business, whether owned at the date of the mortgage or afterwards acquired.
    2. The maxim, Qui non habet, ille non dot, applied.
    3. One may grant the future accretions of any subject he owns at the time of the grant.
    4. A mortgage will pass all structures or fixtures that may afterwards be erected on land by the mortgagor.
    5. Contingent estates and interests are assignable in equity.
    6. Contingent interests may be the subject of a contract which, if made for a valuable consideration, will be specifically enforced, when the event happens.
    7. Equity will treat a mortgage of property, real or personal, to be subsequently acquired, as a binding contract.
    8. Roberts and Pyne’s Appeal, 10 P. F. Smith 400, distinguished.
    March 3d 1870.
    Before Read, Asnew, Sharswood and Williams, JJ. Thompson, C. J., at Nisi Prius.
    Appeal from the decree of the Court of Common Pleas of Chester county: In Equity: No. 268, to January Term 1870.
    On the 7th of September 1869, David Woelpper filed a bill against The Philadelphia, Wilmington and Baltimore Railroad Company, De Witt Clinton Lewis, sheriff of Chester county, The Philadelphia and Baltimore Central Railroad Company, and Ezra Bowen and George S. Eox, trustees in a mortgage executed by the last-named company.
    The bill set out:—
    1. The incorporation of the Philadelphia and Baltimore Central Railroad Company by Pennsylvania and its union by authority of Pennsylvania with a corporation of Maryland and that the two corporations became one, under the name of The Philadelphia and Baltimore Central Railroad Company.
    2. By an Act of February 12th 1856, Sect. 1, For the purpose of constructing and equipping The Philadelphia and Baltimore Central Railroad, the said company was authorized to borrow $1,500,000, and to issue their bonds therefor, and to secure the payment of the said bonds and their interest, by executing and delivering to trustees a mortgage or mortgages of all or any part of their road, property, rights, liberties and franchises in the state of Pennsylvania. Sect. 2. The assent of this Commonwealth was given to any law enacted or to be enacted by the legislature of Maryland, authorizing the borrowing of money by the said Philadelphia and Baltimore Central Railroad Company to any amount not exceeding $1,500,000, for the construction and equipping of the said company’s road, and the issuing of bonds therefor, and the mortgaging of all or any part of the same, situate and being in the state of Maryland, to secure the payment of said bonds with their interest.
    3. The Philadelphia and Baltimore Central Railroad Company, in pursuance of the authority of the above-mentioned act, executed a mortgage to Bowen and Fox, of “all the road, property, rights, liberties, privileges, corporate franchises, incomes, tolls and receipts, now held or hereafter to be acquired in Pennsylvania,” in trust to secure the bonds issued in pursuance of the same act. The mortgage also provided a mode by which the whole mortgaged property might be sold together by the trustees, at the request of bondholders to the amount of $100,000, and purchased for all the bondholders, &c.
    4. The plaintiff was the holder of bonds amounting to $7200, secured by the mortgage.
    5 and 6. The Philadelphia, Wilmington and Baltimore Railroad Company, defendants, on the 16th of July 1869, recovered judgment for $122,942.11, against the Philadelphia and Baltimore Central Railroad, in a suit on bonds secured by said mortgage ; an execution was issued on the judgment under which Lewis, defendant, as sheriff levied on four locomotive engines, a number of cars, shop and quarry tools, cross-ties, iron rails, furniture at stations, &c. The sheriff’s inventory was made part of the bill as Schedule “B.”
    7. Averred that the mode provided for selling the whole mortgaged property was a contract between the holders of the bonds. The sale of part of the property by any of the bondholders under an execution was in violation of the contract, and contrary to equity.
    The prayers were:—
    3. That it may be declared that the property levied upon as aforesaid, is a part of the mortgaged premises, and is exempt from levy and sale under the execution on the judgment hereinbefore metitioned, or under any other execution that may hereafter be issued thereon.
    4. That the defendants, the Philadelphia, ‘.Wilmington and Baltimore Railroad Company and Lewis, may be restrained from selling the property levied on under the execution issued on the judgment against the Philadelphia and Baltimore Central Railroad Company, and from further proceeding on the said execution against the said property or any other property, real or personal, corporate rights and franchises, granted and conveyed by the said mortgage, and that the said Lewis be ordered to withdraw his levy from the property now levied on.
    5. Further relief.
    The Philadelphia, Wilmington and Baltimore Railroad Company, by their answer denied that the property levied on was covered by the mortgage, and averred that it was acquired after the delivery of the mortgage.
    Lewis, the sheriff, submitted himself to the court. There was no appearance for the other defendants.
    A replication having been filed, the case was referred to P. Erazer Smith, as examiner and master. He took testimony, and as master reported:—
    * * * “I find that the engines, ‘ Kennett’ and ‘ Brandy-wine,’ and two dirt-carts belonged to the company at the execution of the mortgage.
    “I find that the ‘ material,’ consisting of cross-ties and iron, are part of the real estate or road-bed, although obtained since the execution of the mortgage. Those articles, therefore, in any aspect, are covered by the mortgage.
    “ I find that the remaining articles contained in the inventory were obtained by the company since the execution of the mortgage, and that at the time of its execution the road was in a condition to be operated a distance not exceeding five miles, and that at the time of the levy it had been completed and equipped, and was in operation in Pennsylvania for a distance of at least thirty-seven miles.
    “ The pleading as well as the testimony, determines that all the property levied on was in actual use upon the railroad, and was required for the transaction of its business, and that the trains could not be run without it.
    “ It would seem conclusively to follow, then, that although many of the specific articles may have been acquired since the execution of the mortgage, they are of the kind of articles which the company had at that time, and are essential to the full exercise of the franchises, &c., granted to the company, which were for the benefit of the public as well as for that of the corporators.
    “ The money was borrowed for the purpose of constructing and equipping the road, and, in the absence of proof to the contrary, is presumed to have been so used. It cannot be, that when the bondholders loaned their money they supposed that there was no security for $800,000 but five miles of the road, to an unimportant point, and two locomotives, two dirt-carts and perhaps a passenger car. Both parties must have contracted with the intention that the security should be upon that which the money was expressly to be used to accomplish.
    “ It was, therefore, an agreement that it should be so held, which, if not enforceable at law, on the maxim qui non habet, ille non dat, yet is binding in equity as relating to things in possession of the mortgagor to which the other things can attach in future as part of the thing possessed, and are not in substitution of it: something in prcesenti with which the thing in futuro is to be connected as necessary for its use or as incident to it: Morrill v. Noyes, Supreme Court of Maine, 3 Amer. Law Reg. N. S. 18; Wilson v. Seibert, Louisville Chan., 8 Id. 608; Pierce v. Emery, 39 N. Hamp. 484. If it be conceded that the property levied on is personal chattels, yet the law contemplates that such property is always necessary to the company for the exercise of the perpetual franchises granted, and the performance of the obligations to the public, imposed for the same indefinite period; there is, therefore, given to the property a permanence which is one of the characteristics of real estate, having also the incident that such additions as may be made to it shall partake of the same character and become practically part of the same thing which was originally mortgaged: in the same manner as a house put on a mortgaged lot is covered by the mortgage. Aided by the counsel who represented The Philadelphia, Wilmington and Baltimore Railroad Company, I have not been able to find any authority which denies the right of any railroad company to mortgage all its property when empowered by the legislature to do so, or that which asserts such mortgage will not cover locomotives, cars and all other property necessary for the exercise of its franchises, whether the identical articles are in possession of the company at the execution of the mortgage, or afterwards added to what was then held.
    “ I am of opinion that all the articles levied on in this case were conveyed in trust by the mortgage, are protected by it, and cannot be sold under the execution of any judgment-creditor of the mortgagor.” * * *
    “With reference to the Philadelphia, Wilmington and Baltimore Railroad Company, the only defendant in interest, it is peculiarly proper that a principle which would restrain her should be brought into action. She has agreed with her co-obligees to take a common security, and quoad the property covered by the mortgage; it seems to me she is to be treated as a partner, not to be permitted to gain any advantage over her fellows, nor even to injure them, although that might work no advantage to herself. She has agreed too, as I think, that the corporate property and franchises shall be sold as an entire thing; because they would thus be sold as a whole and on credit, which a sheriff cannot give, and so would bring a larger price; and further still, because the specific covenant that all the bondholders may become purchasers, pay the purchase-money by their bonds, and continue to enjoy the privileges granted by the Commonwealth, may be fulfilled.
    “When parties bear such common relations to each other, a court of equity will protect the interests of all: J. C. Slemmer’s Appeal, 8 P. F. Smith 178; Williamson v. N. Albany and Salem Railway, U. S. C. C. Ohio, per McLean J. 9; American Railway Times, No. 37; Bowen v. Brecon Railway Co., 4 Law R. 3 Eq. Cases 541.” * * *
    March 10th 1870,
    The master reported that the 3d and 4th prayers he granted.
    The Philadelphia, Wilmington and Railway Company excepted to the report.
    The court (Butler, P. J.) confirmed the report, and decreed “that the property levied upon as set forth in the schedule ‘B,’ attached to the complainant’s bill and made part thereof, is a part of the mortgaged premises conveyed by the mortgage, &c., and is exempt from levy and sale under the execution on the judgment mentioned in said bill, or under any other execution that may hereafter be issued thereon; that the Philadelphia, Wilmington and Baltimore Railroad Company and D. W. C. Lewis, sheriff, are perpetually enjoined from selling the property levied upon under the execution issued on the judgment recovered as aforesaid, &e., and from further proceeding on the execution against the said property or any other property, real or personal, corporate rights and franchises granted and conveyed by the said mortgage, and that the said defendant, the said D. W. C. Lewis, sheriff, withdraw his levy from the property now levied on.” * * *
    The Philadelphia, Wilmington and Baltimore Railroad Company appealed to the Supreme Court, and assigned the decree of the Court of Common Pleas for error.

      J. J. Pirilcerton and J. 8. Futhey, for appellants.
    — One cannot mortgage property to which he has no title: Jones v. Richardson, 10 Metc. 481; Moody v. Wright, 13 Id. 17; 2 Hilliard on Mortgages 196. A corporation- can mortgage only under express authority: Howe v. Freeman, 14 Gray 566; Loudenslager v. Benson, 3 Grant 384. “ Property” in this mortgage is too indefinite to cover engines, rolling-stock, &c.: Mogg v. Baker, 3 M. & W. 195; Winslow v. Merchants’ Ins. Co., 4 Metc. 306. These articles are not covered by “ franchises:” Shamokin Valley Railroad v. Livermore, 11 Wright 465.

      W. MaeVeagh, for appellees,
    cited Peirce on Amer. Railroad Law 530, 531; Morris v. Noyes, 3 Amer. Law Reg. N. S. 18; Coe v. Hart, 6 Amer. Law Reg. 27; Phillips v. Winslow, 18 B. Monroe 521; 1 Redfield on Railways 235, note 21-24.
   The opinion of the court was delivered,

by Sharswood, J.

— By the Act of Assembly of February 12th 1856 (Pamph L. 42) it was provided “ that for the purpose of constructing and equipping the Philadelphia and Baltimore Central Railroad, chartered by the legislatures of Pennsylvania and Maryland, the said company is hereby authorized to borrow money to any amount not exceeding $1,500,000,” * * * “ and to issue their bonds therefor,” * * * “ and to secure the payment of the said bonds and their interest by executing and delivering to such trustee or trustees as they may select, a mortgage or mortgages of all or any part of their road, property, rights, liberties and franchises of the said company in the state of Pennsylvania.”

In pursuance of this power the said company, on February 15th 1859, did execute and deliver to Ezra Bowen and George S. Fox, trustees, a mortgage of “ all the road, property, rights, liberties, privileges, corporate franchises, incomes, tolls and receipts, now held or hereafter to be acquired in the state of Pennsylvania.”

The first question which arises is, whether this mortgage is effectual to give a valid lien on the locomotive engines, passenger and other cars, furniture of stations, tools and materials for support and repair of the road, levied on by the sheriff of Chester county under a fieri facias issued upon a judgment obtained by the appellants in the Court of Common Pleas. These articles, or by far the greater part of them, [were not in existence or acquired by the mortgagors at the date of the mortgage^ but it is clear, and is reported as a fact by the master in the court below, that they were in actual use upon the railroad, and were required for the transaction of its business, and that the trains could not be run without them, and that although acquired since the execution of the mortgage, they are of the kind of articles which the company had at that time, and are essential to the full exercise of the franchises granted to the company, which were for the benefit of the public as well as for that of the corporators. It is not denied that the words of grant in the mortgage are sufficiently ample to cover all this property. But it is objected that no person, natural or artificial, can grant what he does not possess or own at the time of the grant. Qui non habet, Ule non dot. Yet even at law this rule is not without some qualifications. A man may grant the future accretions or increase of any subject which he owns at the time of the grant, as all the wool which shall grow on his sheep for a term of years. Grantham v. Hawley, Hobart 132, was the case of a covenant by a lessor that a lessee of a term certain might take the corn that should be growing at the end of the term, and upon an issue whether it did of right belong to the lessee it was held to be a good grant. And though the lessor had it not actually in him, nor certain, yet he had it potentially; for the land is the mother and root of all fruits. Therefore he that hath it may grant all fruits that may arise upon it after, and the property shall pass as soon as the fruits are extant: Ass. 21 Henry 6. A parson may grant all the tithe wool that he shall have in such a year: 1 Plowd. 13 a. So, if a man grant vesturam terree, the grantee shall have the corn, grass, underwood, sweepage and the like: 1 Inst. 4 b. It is indubitable that a mortgage of ) land will pass all structures or fixtures that may afterwards be J erected upon it by the mortgagor. But it is not necessary to maintain that the rolling-stock and equipments of a railroad are j part of its accretions and fixtures, so as to make the transfer good 1 at law. It is unquestionably good in equity. Contingent estates and interests, though not assignable at law, are assignable in equity; and they may also be the subject of a contract, which, when made for valuable consideration, will be specifically enforced when the event happens: 2 Story’s Eq. 1040, 6. On the same principle equity originally took cognisance of assignments of choses in action, which were void at law, and when made for value carried them into execution by considering the assignment a declaration of trust by the assignor in favor of the assignee, compelling the assignor to allow his name to be used by the assignee in proceeding at law, and enjoining him from releasing or otherwise interfering with the equitable property vested by the assignment in the assignee: 2 Story 1039, 1040. It is a plain corollaryl from these principles that a court of equity will treat a mortgage of property to be subsequently acquired, whether it be real or personal, as a binding contract, which attaches to the thing when acquired. Equity considers that as actually done which a chan-i cellor would decree to be done. If then, upon every acquisition j of property within the description contained in the mortgage, a| chancellor would decree the mortgagor to execute a mortgage of ! such subject, it will be considered as though it had been done, \ and that of every article of property as acquired there was an j actual mortgage then executed. The authorities cited in the able j report of the master below fully sustain this view, to which may j be added Covey v. Pittsburg, Fort Wayne and Chicago Railroad Co., 3 Phila. Rep. 173, decided by our brother Agnew, when President Judge of the Court of Common Pleas of the 17th | Judicial District.

But the principal contention here has been that the mortgage by this corporation, so far as it included subsequent acquisitions, was ultra vires — beyond the power conferred upon them by the legislative grant. The act authorized them to mortgage all their property, a word of very large extent. Property (proprietas) is whatever is a man’s own (proprius). His future acquisitions, though subject to a contingency, are his own, and if, as we have seen, they can be granted or assigned, they are his present property, valuable now to him because they can be enjoyed or used j by anticipation. There is no refinement in this reasoning as f applied to the construction of this statute. The legislature evi-< dently intended it. Every law is to be interpreted according to j its subject-matter. This act relates to a railroad and its usual! necessary appertenances. The words are, “ road, property, rights, liberties and franchises,” including the road and all its adjuncts. The very objects of the loan, and of the mortgage to secure it, as expressed in the act, was “ for the purpose of constructing and equipping the road.” It evidently contemplated a condition of things in the future. The bare road, only then constructed in part, without any rolling-stock or equipments, would have been no security, or a very inadequate one. Had the road even been fully equipped at the date of the mortgage, can it be doubted that the legislature meant that it should comprise everything subsequently acquired to replace old and worn-out materials, and to maintain and keep up the equipment? No money would have been loaned on a security daily deteriorating, and which must eventually perish entirely. As was well said by our brother Agnew, in the case before referred to, “ To build a railroad requires a vast capital beyond ordinary means, and to borrow it to carry into effect the objects of the incorporation demands all the security within the possible power of the corporation to give. By necessity and practice, the money of the creditor capitalist finishes and equips the road; and slender indeed would his security be which extends not beyond worn-out rails and rolling-stock, and equipments first in use, and these indeed not often in being at the time of the execution of the mortgage. In giving the. power to borrow and pledge, it must be supposed the power was given to its fullest extent, in order to carry into effect the object of the incorporation.” This construction does not conflict with Roberts’s and Pyne’s Appeal, 10 P. F. Smith 400. That was under the Act of January 11th 1867 (Pamph. L. 1372), which enabled “ all iron and other manufacturing and mining corporations to borrow moneys and to secure the loans to be made to them by mortgage of their property.” No special purpose is specified, and the subject-matter was not such as to call for or require any other than a strict construction. It was held, therefore, not to include chattel mortgages. “It is true,” says the opinion, “railroad corporations have been allowed to do this, and other corporations in similar circumstances, when personal interests have been of such a permanent or fixed character, or so incapable of removal that no inconvenience would be felt in relaxing the general rule as to movables. But in this act the term property is so wholly unexplained by its content, that it may or may not refer to chattels, and leaves the mind to hesitate and doubt whether the legislature meant more than the property accustomed to be mortgaged under the laws of the state, and for which provision was made for notice by recording, and remedy by scire facias.”

These conclusions sustain the decree made in the court below, and dispense with the necessity of considering the other point made as to the right of the sheriff to levy upon the articles contained in the inventory independently of the mortgage.

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


source: Caselaw Access Project

author: by Sharswood, J.

license: Public Domain

text:
    Meginnis and Swartz versus Nunamaker.
    1. The Act of April 23d 1857 (Roads in Bucks County), is a supplement to the general road laws.
    2. In all points of the Act of 1857, in which special provision is not made by way of amendment, the general law must govern.
    3. The two laws compared as to road damages.
    4. Damages under the Act of 1857 are to be paid to the owner through whose land the road is opened.
    5. The pei'son to whom damages are awarded in the first instance, has no vested right to receive them until the final order to open.
    6. If before the final order he conveys the land, the right to receive the damages passes to the vendee.
    7. A vendee of land through which a road was opened after his purchase, may recover the damages from his vendor to whom they were assessed and who received them from the county treasurer.
    8. Dobbins v. Brown, 2 Jones 75.
    March 7th 1870.
    Before Thompson, C. J., Agnew and Sharswood, JJ. Read, J., at Nisi Prius.
    Error to the Court of Common Pleas of Buchs county: No. 311, to January Term 1870.
    This was an amicable action and case stated, in which Bower Nunamaker was plaintiff and James Meginnis and Thomas Schwartz, defendants, entered June 15th 1859.
    The facts stated in the case were : The defendants were owners of a farm in Plumstead township, Bucks county; at April sessions, 1865, viewers were appointed to lay out a road in that township ; at the September term the viewers reported that they had laid out a road through the defendants’ farm, and assessed damages to him at $40. Exceptions were filed to the report, and a petition for reviewers was presented.
    On the 30th of November 1865, the defendants sold their farm to the plaintiff. On the 16th of January 1866, the exceptions to the viewers’ report were dismissed, and reviewers were appointed. At February sessions the reviewers reported, laying out the road as before, and assessing the damages at $150. On the 11th of June 1866, this report on exceptions, was set aside. On the 4th of April 1867, the Court of Quarter Sessions granted a rule on the defendants to show cause why the damages assessed by the viewers should not be directed to be paid to the plaintiff. On the 8th of April an order was issued to open the road according to the report of the viewers. On the 10th of June the rule to show cause was discharged. The plaintiff demanded the payment of the damages from the county commissioners; they refused to pay him, and on the 10th of October paid them to the defendants.
    March 21st 1870,
    If the court should be of opinion that the plaintiff was entitled to the damages paid to the defendants, the judgment was to be entered in his favor for $40, with costs; but should the court be of - a contrary opinion, judgment to be entered in favor of the defendants for costs.
    The Court of Common Pleas (Chapman, P. J.) entered judgment for the plaintiff for $40, according to the case stated. This was assigned for error by the defendants on the removal of the record to the Supreme Court.
    6r. Lear, for plaintiffs in error.
    — The 3d and 4th sections of the Act of April 23d 1857, Pamph. L. 297, “ to amend the road laws of Bucks county,” direct that the viewers locating a road shall endeavor to procure “ from the owners of lands over which it shall pass, releases of damages arising from opening the same,” and that the damages assessed “ shall be paid as directed by law,” &c. This changed sections 7th and 8th of the General Hoad Law of June 13th 1836, Pamph. L. 556, Purd. 873, pl. 7, 8. The report having been confirmed the damages are to be paid to the person to whom they were assessed : Road v. Bensalem, 2 Wright 368; Neal v. Pitts. & Conn. Railroad, 2 Grant 137.

      It. Watson, for defendant in error, referred to the same Acts of Assembly.
   The opinion of the court was delivered,

by Sharswood, J.

— The Act of Assembly of April 23d 1857, Pamph. L. 297, although not so termed, is evidently a supplement to the General Road Law of June 13th 1836, Pamph. L. 551. Its title is “An Act to amend the Road Laws of Bucks county,” and it is clear that in all points in which special provision by way of amendment is not made, the general law must govern. By the 8th section of the Act of 1836, the amount of damages awarded to any landowner is to be paid to the party entitled thereto : and the party thus referred to is “ the owner of any land through which a public road shall be opened.” When, therefore, the 4th section of the Act of 1857 directs that the damages found and confirmed “ shall be paid as directed by law,” it means not merely that they shall be paid out of the county treasury, but to the owner through whose land the road is opened. Until the order is finally made to open the road the proceedings are in fieri, and may result in no road being opened at all. The party to whom the damages are awarded in the first instance has no vested right to receive them, until the final order; and if before that he sells and conveys tbe land, the right to receive them passes with the land to the vendee, unless prevented by some special agreement.

It is contended that because under the 3d section of the Act of 1857 the vendor might before the sale have released all claim for damages, and that his vendee would then have no right of action against him on his covenant of warranty, according to Dobbins v. Brown, 2 Jones 75, that this demand cannot be supported. The consideration of such a release is the prospective advantage of the road to the land, and this the vendee would have enjoyed. For the technical reason given in that case that the entry of the public under the right of eminent domain is no evidence within the terms of the covenant, he could not have maintained an action against his grantor. Here the vendor insisted that the damage was greater than the advantages, and his vendee is the one who has suffered that damage, by his land having been taken. In equity, then, he is entitled to the money and may well recover it as money had and received to his use.

Judgment affirmed.


author: by Agnew, J.

text:
    Scharff versus Keener and Mull.
    1. Land was devised to D. for life, and after her death to H. S., after the death of D., being in possession of the land, brought an action of trespass q. c. f. He and his predecessor in title had held possession fifteen years, and from shortly after the death of D. A deed of the premises, forty-two years old, reciting that the grantors were heirs of H., produced from the custody of S., was evidence both of execution and pedigree recited in it.
    2. Recitals in ancient deeds are evidence of pedigree.
    3. Paxton v. Price, 1 Yeates 500, Bowser v. Cravener, 6 P. P. Smith 132, remarked on.
    March 7th 1870.
    Before Thompson, C. J., Agnbw and Sharswood, JJ. Read, J., at Nisi Prius.
    Error to the Court of Common Pleas of Bevies county: Of January Term 1870, No. 340.
    This was an action of trespass q. c. f. brought May 13th 1865, by Anthony Scharff against John Keener and Greorge Mull. The defendants pleaded “ liberum tenementum.”

    On the trial, January 25th 1870, before Woodward, P. J., the plaintiff gave in evidence the will of John Hopp, proved March 4th, 1799, by which he devised ; “to my daughter, Dorothea Schneider, the land whereupon I have lived in my time, * * * after her death all shall come to the heirs of Johannes Hopp, Jr.” There was evidence that Dorothea occupied the locum in quo, as far back as the recollection of old witnesses would go, which was almost to the death of her father. She was taken to the poorhouse towards the close of her life. The directors of the poorhouse rented the property. She died at the poor-house about 1850 or 1851 at the age of about 105 years. The plaintiff gave in evidence a warrant to himself, dated January 20th 1868, for 187 acres, interest to commence January 20th 1804, survey January 23d, and patent February 12th.
    Peter Scholl testified that his father had purchased two shares of the property, and that he (witness) had got to be owner of the premises about 1852, and leased the property a year or two after-wards.
    The plaintiff then offered in evidence a deed dated April 30th 1827, from Philip Hopp of Virginia to Peter Scholl of Bucks county, Pennsylvania, for a tract of land “left to him (Hopp) by his grandfather Johannes Hopp, laying in Schuylkill county, Pennsylvania, now occupied by widow Schneider.” The deed further recited: “ It is understood the will which entitled said Philip Hopp to a share in the above estate was made by his grandfather, Johannes Hopp, the 24th day of March 1795, and proved on the 4th- day of March, at the Register’s office in Reading, A. D. 1799.”
    The evidence was rejected, the *bourt saying: — “There is no proof that the releasors in this deed were the heirs of John Hopp, Jr., and the proof already given shows that no possession was had under the deed for any period exceeding fifteen years before suit brought.”
    The plaintiff then offered to prove by Peter Scholl, son of the grantor in the deed, that his father was told before and at the time of his purchase, by the grantors and others that they were the heirs-of John Hopp, Jr., deceased. This offer was rejected.. Bills of exceptions were sealed. The plaintiffs gave in evidence conveyances vesting the title of Scholl in him. He also gave evidence of his possession and of the trespass by the defendants.
    The defendants gave evidence, warrant and survey in March 1830 to John Koebel, which it was agreed, covered the land in controversy, and traced the title of Koebel to themselves.
    The jury, under the instruction of the court, found for the defendants.
    The plaintiff took a writ of error. He assigned for error the rejection of his offers of evidence.

      J. 8. Livingood and J. Hoffman, for plaintiff in error.
    — The deed was over thirty years old, produced from the proper custody, free from imperfections on its face and was admissible: 1 Greenl. Ev. § 21, p. 144; McReynolds v. Longenberger, 7 P. F. Smith 13.

      J. Ralston, A. 8. 8assaman and H. H. Shearer, for defendants in error.
    — Antiquity of the instrument and possession are necessary to take it out of the rule requiring the production of the subscribing witnesses: Law v. Mumma, 7 Wright 274; McReynolds v. Longenberger, supra; Shaller v. Brand, 6 Binney 439; Bowser v. Cravener, 6 P. F. Smith 132; 1 Greenl. Ev. sect. 104. Scholl was a stranger in blood and affinity to Ilopp and his declarations were not evidence of pedigree: 13 Vesey 140.
    March 21st 1870,
   The opinion of the court was delivered,

by Agnew, J.

— The jearned'judge in the court below rejected the deed from Philip ilopp and wife to Peter Scholl on the ground that there was no proof that the grantors were the heirs of John Ilopp, Jr., and because there had been only fifteen years’ possession under the deed. We think this was an error. The deed was dated April 30th 1827 and was over forty-two years old at the time of trial. It recited that John Ilopp was the grandfather of Philip Ilopp, and that Philip was entitled to the estate under the will of his grandfather John, dated the 24th of March 1795, and proved the 4th of March 1799. This will has been given in evidence by which it appeared that John Ilopp had devised the land in controversy to his daughter Dorothea Schneider for life and after her death to the heirs of*his son John Ilopp, Jr. Dorothea lived far beyond the ordinary term of human life, and until the distinct evidence of pedigree must have ceased to exist, having died about the year 1850, at the great age of one hundred and five years. During all the time after her father’s death she continued to own and occupy the land by herself or tenants, and after her death, possession was taken by parties claiming under the deefl of 1827 referred to, and the plaintiff was in actual possession when this suit was brought against a trespasser, claiming by adverse title. Under these circumstances the deed was evidence, both of the execution of it, and the pedigree recited in it. It was over thirty years old and came from the proper custody; the life-tennancy possession was consistent with the estate in remainder, and in privity with it, the actual possession taken at the earliest moment after the expiration of the life estate, and held by the party entitled to the possession, while the defendants were strangers to the plaintiff’s line of title. It is therefore not easy to perceive why the usually accurate President Judge rejected the deed. His chief reason seems to be that he thought this was no evidence of pedigree. But in this the learned judge erred. That recitals in ancient deeds are evidence of pedigree is undoubtedly the law of this state. It was so held in Paxton v. Price, 1 Yeates 500, and Morris’s Lessee v. Vanderen, 1 Dallas 67. The question arose again in Murphy v. Lloyd, 3 Wharton 538, and the deed was excluded only on the ground that the grantor in it was not shown to have had any connection with the land, possession or otherwise, previous to ihe date of the deed. But Bowser v. Cravener, decided in 1867, 6 P. F. Smith 132, may be said to run on all fours with this case, and there the same doctrine was held. In citing Paxton v. Price, supra, it is not intended to assert the principles there decided, as applicable to every case, modern in its circumstances. In that case the deed was but nine years old when it was received in evidence and the recitals held to be evidence of pedigree. It may be that in matters of very recent occurrence, where the evidence of pedigeee is easily attainable, cases may arise where the recitals in such a recent deed would not be entitled to the weight given to them in Paxton v. Price. But the present case is one far removed from the border line of controversy. On the point of execution, Bowser v. Cravener may also be referred to, and to it we may add McReynolds v. Longenberger, 7 P. F. Smith 13, in which the admissibility of ancient documents in evidence, is discussed at length.

Judgment reversed, and a venire facias de novo awarded.


text:
    Keller versus Bricker.
    1. A defendant claiming exemption under the Act of April 9th 1849, must elect to retain such articles as he desires and notify the officer at the time.
    2. A constable levied on goods appraised at more than $300 in possession of a defendant, who alleged that enough of them belonged to others to reduce the amount below $300. The question as to legal fraud was between the alleged owners and the constable.
    3. If the goods which were actually the defendant’s, were less than $300 his claiming “ all that belonged” to him was a sufficient election.
    4-, There is no form for making an election; it is enough if made in such way that the officer ought not to misunderstand.
    March 7th 1870.
    Before Thompson, C. J., Agnew and Sharswood, JJ. Bead, J., at Nisi Prius.
    Error to the Court of Common Pleas of Berks county: No. 51, to January Term 1870.
    This was an action of trespass d. b. a., brought June 20th 1867, by Frederick S. Bricker against William C. Keller. The defendant pleaded “Not guilty, justification,” &c.
    The defendant was a constable, a-nd under an execution against the plaintiff, at the suit of John Grift, levied on and sold goods of the plaintiff, which he claimed to retain under the $300 exemption law. For this the action was brought.
    The evidence for the plaintiff was that the defendant made an appraisement of personal property in possession of the plaintiff, it included a wagon, posts and rails, cord wood, &c.; and amounted in the whole to $392.25. The plaintiff asked what was the appraised value of the wagon and other goods above mentioned; and being told $161; he said they did not belong to him: the balance did not amount to $300.
    The plaintiff testified that the defendant asked him, after the appraisement, what he claimed ; that he said nothing hut what belonged to him; that he had asked the benefit of the $300 law when the execution was served; that he warned the appraisers not to appraise the property which did not belong to him, and named Simpson Becker and Amos Becker as the persons to whom he said it belonged. Afterwards the defendant took a cow, calf and heifer, belonging to him, and sold them under the execution.
    Plaintiff gave evidence by other witnesses, that the wagon, &c., did not belong to him.
    The defendant testified that when he served the execution, the plaintiff said he claimed the $300. At the appraisement the plaintiff said, the wagon, &c., did not belong to him; “ I told him the whole appraisement; that it amounted to $392,25; told him to claim anything, just what he pleased, under the $300 ; he asked about the wagon, wood posts and rails ; he calculated the amount, said, taking out what he didn’t own, he wasn’t worth $300, and wouldn’t claim anything.” The defendant gave evidence also for the purpose of showing that the wagon, &c., were the property of the plaintiff.
    The court (Woodward, P. J.), after referring to the facts, charged: * * “It is alleged also that notice as to the ownership of the property was given to Keller, the constable, who is the present defendant, and to the appraisers, and that an appraisement of the property as to which ownership was disclaimed, was forbidden by the plaintiff. [It has been proved by both parties, that Brickcr declined to select any part of the property to be set out to him, but forbade any sale of any part of it on the ground that the articles included in the levy which belonged to himself amounted in value to less than $300.] Treating the entire property as Bricker’s, the constable seized the cow, calf and heifer, and sold them on the 13th of June 1867, for $74.50. The balance beyond the amount of the debt, interest and costs, was tendered to the plaintiff, who refused to accept it.” * * *
    “ On the part of the defendant, the ground is taken that the fact that the articles of which the plaintiff disclaimed ownership were in his possession, made them his property, so far as a creditor’s rights were concerned, for all the possible purposes of an execution. [Admitting the ownership to be as the plaintiff has contended, it is still insisted that as he had the articles in his control, with the apparent ownership in him, and, as a creditor would have been unquestionably justified in seizing these articles themselves, such a seizure of property otherwise exem.pt, was equally justifiable by the fact of his possession of articles the title to which -was in other persons. This point, for which the defendant contends, is one to which, so far as the court are aware, the doctrine of legal fraud in the sale of chattels has not been carried.]” The judge stated the law as to legal fraud, and proceeded: [“ The court do not regard the case as one to warrant a peremptory direction in favor of the defendant.]

      “ This view of the legal question presented, leaves the entire disposition of the cause for the jury. The question as to actual fraud is still open. Did Brieker, in truth and fact, hold no ownership in the property which it is now alleged belonged to Simpson and Amos Becker? Did he own no part of - it? Or, was he really the. owner, and were the alleged contracts between himself and his brother-in-law merely intended to cover the property, and to afford him the means of shielding it from seizure by his creditors ? These are questions on which the jury are required to pass under the evidence. Was there a contract existing in good faith between the plaintiff and Simpson Becker, by which-the title to the wagon remained in the latter, with the right to the former to become the owner when he should pay for it ? If so, that contract was not subject to be affected by any act of the defendant under Gift’s execution, otherwise than by levying on and selling it. He could not assume it to have been sufficient to vest the title in the plaintiff,.so as to make it part of his appraisement, and then turn to other property, which he might find it more convenient to take. But if the alleged contract was a sham, and the jury find the. existence of any fraudulent contrivance between the parties, which was designed to hinder creditors, and upon the evidence they believe the property to have belonged to the plaintiff, then, to the extent of the value of this article, the cause of action fails. * * * This question the jury are to investigate and settle by their verdict. If there was no actual sale, as the defendant alleges, — if the transaction between the parties was intended to put creditors at defiance, if, in one word, the ownership as well as the possession remained in the plaintiff, the constable was authorized to seize and sell any of the plaintiff’s property, and the verdict should be for the defendant. If, however, the sale had been made actually and in good faith, and the title had been transferred to Amos Becker, although a change of possession did not accompany the transfer, the seizing of the property which the jury should find to be included in the plaintiff’s exemption claim, would be a trespass, for which the plaintiff would be entitled to recover.”
    The verdict was for the plaintiff for $59.29.
    The defendant removed the record to the Supreme Court, and assigned for error the parts of the charge in brackets. He made other assignments, complaining of the manner in which the court charged as to legal and actual fraud.

      A. S. Sassaman and D. Ermentrout, for plaintiff,
    referred to Act of April 9th 1849, §§ 1, 2, Pamph L. 533, Purd. 432, 433, pl. 20, 21; Hammer v. Freese, 7 Harris 256; Knabb v. Drake, 11 Id. 490. As to fraud: Born v. Shaw, 5 Casey 288; Clow v. Woods, 5 S. & R. 279; Freeman v. Smith, 6 Casey 264; Huey’s Appeal, 5 Id. 219; Emerson v. Smith, 1 P. F. Smith 90.
    March 21st 1870,

      F. B. Landes and F. Shatter, for defendant in error.
    — As to the exemption: Commonwealth v. Boyd, 6 P. F. Smith 402; Gilliland v. Rhodes, 10 Casey 189; Diehl v. Holben, 3 Wright 217; Wilson v. McElroy, 8 Casey 83; Huey’s Appeal, supra. As to fraud: Emerson v. Smith, supra.

   The opinion of the court was delivered,

by Sharswood, J.

— The settled construction of the Act of Assembly of April 9th 1849 (Pamph. L. 533) undoubtedly is, that where a defendant claims the benefit of the exemption provided by that law he must elect to retain such articles as he desires, and such election must be notified to the officer at the time: Hammer v. Freese, 7 Harris 255. But the questions in this case are, whether there was not sufficient evidence that the plaintiff below did make such election, and whether it was not fairly submitted to the jury to decide.

The defendant himself, who was examined as a witness, testified that the plaintiff “ asked about the wagon, wood, posts and rails; he calculated the amount; said, taking out what he didn’t own, he wasn’t worth $300, and wouldn’t claim anything.” Wentzel, who was a witness for plaintiff, said that the defendant told him “Bricker counted up wagon, wood, posts, rails and logs, and subtracted from amount, and told Keller these articles did not belong to him, and the balance did not amount to $300and Bricker’s testimony was, “Keller asked me after the appraisement what I claimed — if I claimed anything? I said not, except that which belonged to me.” There is no discrepancy in any part of the testimony. The whole amount of the appraisement was $392.25. The articles, the ownership of which Bricker disclaimed, were appraised at $161, leaving the value of the goods which Bricker claimed as his own, $231.25. He claimed to retain the whole. What other election could he be required to make ? How would he more clearly indicate his determination to retain these goods which he said belonged to him, leaving it to the officer to sell the remainder, if he chose to incur the risk of so doing ? Had he done so, Bricker could not have set up any claim to these goods under the exemption law. If they were subject to the execution in consequence of their being in his possession through fraud upon creditors, that was a question between the claimants and the officer. It is strenuously contended that his disclaimer of ownership ought to have been accompanied with information to the officer as to the alleged claimants. Certainly the conduct of a defendant must not appear to have been intended to baffle the officer. But according to Keller’s own account he did give the name of one, and it is rather to be inferred from the evidence that it was well known who they both were. At all events, it does not appear that he was asked for their names. There is no prescribed form for an election to retain by the debtor. It is enough that it was made to the officer in a way in which he could not or ought not to misunderstand it. Men whose property is levied on are generally under some degree of mental excitement. It is not to be expected that their words should be calmly weighed. It is eminently a case in which the jury are to judge under all the circumstances. We think there was ample evidence from which they might infer, that the plaintiff below did elect to retain those of the appraised goods amounting to $231.25, which he asserted to be all that belonged to him.

This we think was fairly submitted to the jury for their determination by the learned judge below. He left the entire disposition of the cause to them. He went further — he left to them the question of actual fraud in Bricker in regard to the goods, the ownership of which he disclaimed. As it was open to the officer to seize and sell these goods — after Bricker’s disclaimer — at least so far as his demand of exemption was concerned, it may be questioned whether it was really involved in the issue. Certainly no mere legal fraud arising from retained possession was. The assignment of this is not secundum regulam, but if it were, it would not avail the plaintiff in error.

Judgment affirmed.


text:
    Deysher versus Triebel.
    1. In many cases where one has received goods wrongfully, a contract of purchase will be inferred, and the owner may waive the tort and recover for goods sold and delivered.
    2. If there be no fraud, a recovery cannot be had under a count for goods sold and delivered, for the specific articles in the possession of a defendant.
    3. Where a person tortiously in possession of another’s goods converts them into money or securities, assumpsit for money had and received may be maintained.
    4. The count for money had and received is governed by equitable principles, and lies only where the defendant ex cequo el bono ought to refund the money received.
    5. Where there has been no deceit or unfair practice and the defendant may with good conscience retain the money, he cannot, on a count for money had and received, be compelled to repay, although he could not have recovered it originally.
    6. T. sent shingles to J., which were delivered to D. In an action by T. against D. for goods sold and delivered, D. might show that he received the shingles by mistake, supposing they had been sent to him by K., with whom he had been dealing, and that he had settled with K. and paid him without knowledge of the mistake.

      March 7th 1870.
    Before Thompson, C. J., Agnew and Sharswood, JJ. Read, J., at Nisi Prius.
    Error to the Court of Common Pleas of Berks county: No. 97, to January Term 1870.
    On the 18th of November 1868, E. G. Triebel brought an action of assumpsit against Jacob S. Deysher.
    The plaintiff’s statement was for goods sold and delivered, to wit: “26,475 shingles (consigned to said defendant from Jersey Shore, Pa., on the 7th of July and received by him at Reading on the 13th of said month 1868) at the sum of $12.50 per M., amounting to $330.94, at 60 days after date.”
    The plaintiff testified that in the summer of 1868 he sold shingles, worth $12.50 a thousand, to Joshua Keely, a lumber merchant in Reading, and shipped them from Jersey Shore. Plaintiff called on the defendant and told him that he had ascertained that defendant had received a car of shingles shipped to Keely, and told him the number of the car in which they were shipped; the defendant denied having received such car; plaintiff called again and told defendant that he (plaintiff) had ascertained at the freight office that defendant had got the car and had paid the freight on it. Defendant said, “I paid for those shingles to Karstetter, and I am not going to pay for them again.” The plaintiff gave evidence that the shingles were shipped in a car at Jersey Shore and consigned to Keely, that they were transferred from that car to another (No. 2503) at Harrisburg, and consigned to the defendant at Reading on the 10th of July; and that the shingles came to the defendant’s yard.
    The defendant offered to prove that he had a contract with Thomas Karstetter & Co. for all the shingles he should need for 1868, that he received three car-loads of shingles, one being No. 2503, which was marked for the defendant as the others; it was entered on his books to the credit of Karstetter; he settled all his accounts with Karstetter, in which this car-load of shingles was included, and the balance appearing to be due to Karstetter had been paid on the 19th of September 1868; that defendant had no notice until October 1868, that any one but Karstetter claimed to own these shingles; that three car-loads of shingles had been shipped to him by Karstetter, one of which, shipped in July 1868, never reached him.
    The offer was objected to by the plaintiff as irrelevant, rejected by the court (Van Reed, J.), and a bill of exceptions sealed.
    The verdict was for the plaintiff for $351.22.
    The rejection of this offer was assigned for error by the plaintiff on the removal of the record to the Supreme Court.

      S. L. Young, for plaintiff in error.
    — A party who receives money paid under a mistake, cannot be compelled to refund it, although it be money which he could not recover at law, if he does not exercise any fraud or deceit in obtaining it, and if he may receive it with a good conscience: Bogart v. Nevins, 6 S. & R. 369; Espy v. Allison, 9 Watts 462; Mann’s Appeal, 1 Barr 24; Hinkle v. Eichelberger, 2 Id. 483; Carson v. McFarland, 2 Rawle 118; Mayer v. Foulkrod, 4 W. C. C. R. 503; Herring v. Adams, 5 W. & S. 459; Boas v. Updegrove, 5 Barr 516; Spiese v. McCoy, 6W. & S. 485.
    March 21st 1870,

      A. G. Green, for defendant in error,
    cited Pearsol v. Chapin, 8 Wright 9; Ege v. Koontz, 3 Barr 109; Thomas v. Brady, 10 Id. 164.
   The opinion of the court was delivered,

by Sharswood, J.

— This was an action of assumpsit, in which the plaintiff filed a statement for goods sold and delivered, to wit: “26,475 shingles (consigned to said defendant from Jersey Shore, Penna., on the 7th of July, and received by him at Reading on the 13th of said month, 1868), at the sum of $12.50 per M., amounting to $330.94 at 60 days after date.” The plea was non assumpsit. The only assignment of error is, that the court erred in the rejection of the offer of evidence by the defendant as set forth in the bill of exceptions.

There was evidence that a car-load of shingles had been shipped by Triebel not to Deysher but to Keely, to whom he was under a contract to furnish such goods. By some mistake, whose does not appear, the car was marked in chalk with the name of Deysher, and the shingles were received by him. There was certainly no express contract of sale shown or even pretended between Triebel and Deysher; yet, under these bare circumstances, without explanation, such a contract might perhaps have been implied. There would be some reason and authority for so holding. If a coal merchant, by the mistake of his driver, empties a ton at my door, and I take it in without inquiry or objection and consume it, knowing that it must have been sent to me by mistake, it may be that a recovery could be had in assumpsit under a count for goods sold and delivered upon an implied promise to pay the market price. “In many cases,” says Mr. Leigh, “ where the defendant has received goods wrongfully, a contract for the purchase will be inferred, and the plaintiff may waive the tort and recover the amount in an action for goods sold and delivered:” 1 Leigh’s Nisi Prius 91; 1 Stephen’s Nisi Prius 286. Thus in Biddle v. Levy, 1 Starkie 20, where goods were supplied to a minor upon a fraudulent representation by his father that he was about to relinquish his business in favor of his son, although the credit was given to the son, yet as the father dealt with the proceeds, he was held to be responsible in assumpsit for goods sold and delivered. In Hill v. Perrott, 3 Taunt. 274, it was decided that recovery could be had on such a count alone for goods which the defendant had by fraud procured the plaintiff to sell to an insolvent, and which he had gotten into his own possession. And in Studdy v. Sanders, 5 B. & C. 628, where the vendor of cider-juice to be made on his premises, lent casks to the vendee for the purpose, which were seized through the vendee’s fault for a breach of the excise laws, it was held that the vendor might recover the price of the casks as for goods sold. But on the other hand, it is well settled that where there has been no fraud or unfair dealing, or other circumstances from which an implication may arise under such a count, a recovery cannot be had of the value of specific articles in the possession of the defendant claimed by the plaintiff as his property: Willet v. Willet, 3 Watts 277; Gray v. Griffith, 10 Id. 431. In the case before put of the ton of coal, if in point of fact I had purchased and paid for such a load from a different coal merchant, and innocently received and consumed it under that mistake, I cannot be made to pay for it to a man from whom I had not ordered it, at least not under a count for goods sold and delivered. It is not necessary to inquire how such a case would stand in an action of replevin or trover. Where, indeed, a person tortiously in possession of the goods of another, converts them into money or securities equivalent to money, assumpsit for money had and received may be maintained against him for the amount so received. But it is to be remarked, that the count for money had and received has always been looked upon as governed by equitable principles, and it lies only where the defendant ought ex ceguo et bono, to refund the money which he has received; for where there has been no deceit or unfair practice, and he may with' a good conscience retain it, he cannot in this form of action be compelled to pay it back, even where he could not at law have recovered it originally: Morris v. Tarrin, 1 Dall. 148 ; Bogart v. Nevins, 6 S. & R. 369; Irvine v. Hanlon, 10 Id. 219; Espy v. Allison, 9 Watts 462; Mann’s Appeal, 1 Barr 24; Hinkle v. Eichelberger, 2 Id. 483.

The application of these principles to the question of the competency and relevancy of the evidence offered by the defendant and rejected, is plain. That offer was in substance to show that he had a contract with Karstetter & Co. to furnish him shingles, and that the car-load shipped by Triebel was received by him innocently, under the mistaken belief that- it had been consigned to him by Karstetter & Co., and that without any notice that the shingles were owned or claimed by any other person, he had settled with and paid Karstetter & Co. for them. Had the offer been sustained by corresponding proof, it would have established beyond all question that Triebel could not recover under a count for goods sold and delivered. It would have answered any possible pretence that Deysher was under an implied contract to pay Triebel the price of the goods. It is not necessary to say how it would have been if there had been a count for money had and received. No evidence was given that any money had been received for the shingles by Deysher. Nor is it material that no objection was made to the form of the pleadings. It did not devolve on the defendant to make any such point at the time he made the offer. What he was called on to meet was the plaintiffs claim in the statement filed. Had the evidence been received, and the case submitted to the jury on the merits, there would be some reason for holding that it would he too late to raise here any technical objection to the plaintiff’s recovery not taken in the court below, inasmuch as the pleadings might have been amended, and Deysher shown to have actually converted the shingles into money, or its equivalent. The rejection of the defendant’s offer left him before the jury upon evidence unexplained, from which they might have inferred that he had received the goods with no reason to think that he had any right to them, that he must have known that they had been sent to him by mistake, that he had not paid for them, and that there was raised thereby an implied promise to pay the plaintiff for them at the market price.

Judgment reversed, and venire facias de novo awarded.


author: by Thompson, C. J.

text:
    Spangler and Union Canal Company’s Appeal.
    1. The use of the canal of an incorporated company cannot be rendered contingent by injunctions to restrain it on allegations of injuries to private parties by its construction or use.
    2. Where there is a provision in an act incorporating a canal company, &c., for injuries for taking private property, the mode designated must be pursued.
    3. The Constitution does not require consequential injuries to be prepaid.
    4. A bill was filed to restrain defendants from diverting water from a mill; by the answer and evidence it was shown that the defendants were acting by order of a canal company. The court permitted the plaintiff to amend the bill by making the company a party, allowed a replication to be filed nunc pro tunc, and made a decree against the company without service on them. Meld, to be erroneous.
    March 7th 1870.
    Before Thompson, C. J., Agnew and Si-iarswood, JJ. Read, J., at Nisi Prius.
    Appeal from the decree of the Court of Common ■ Pleas of Berks county: In Equity : No. 220, to January Term 1870.
    This bill was filed, August 27th 1868, by Wayne J. Stump and Samuel Fisher against William Spangler, John Woomer and Samuel Hoover.
    It set out:
    2. That the plaintiffs owned a tract of land on which there was a mill, and that its sole power was furnished by the waters of Tulpehocken creek, and it was indispensable to the business of the mill that they should have the use of the water undiminished, as they had theretofore had it.
    3. That across the creek, on the land of John S. Reed, about 800 yards above the plaintiffs’ mill, a dam had been for a number of years and was then erected, the water from which furnished the motive power for the plaintiffs’ mill, from which dam a race conducted water from the creek into the Union Canal.
    4, 5 and 6. That the defendants, about August 1st 1868, enlarged and deepened the race, and raised the dam four inches, causing an additional flow of water from the dam into the canal; that this water was not returned into the creek above the mill, and they had lost the use of it; that therefore they could not run the mill as theretofore, and their business at the mill was irreparably injured.
    7. That upon finding the water thus diminished, on the 2d of August, with the consent of Reed, they reduced the dam to its former height and the water flowed as theretofore.
    8. On the 6th of August the defendants again raised the dam, producing the same effect in the flow of water and the same injury to the mill as before, and that the defendants declare their intention to maintain the dam at the same height for all time to come.
    The prayers were:—
    2. That the defendants be enjoined to remove the obstructions, so that the plaintiffs may have the full use of the stream as heretofore ; and also from causing any obstruction at any time hereafter in the flow of the creek, so as to interfere with the plaintiffs’ right to it.
    On the same day the defendants filed an answer which set out:
    1 and 2. They were the workmen and servants of the Union Canal Company, a corporation established by Act of April 2d 1811, which had constructed a canal connecting the waters of the Susquehanna at Middletown with the Schuylkill at Reading, and that the canal has been in operation more than thirty years, transporting produce and goods from Middletown to Reading: that by the above act they were authorized to adopt any mode “ or any improvement hitherto adopted, or such as may hereafter anywhere be invented in the system of internal navigation, and apply the same from time to time, and for such purposes to have power to purchase lands, mills, mill-ponds, waters, watercourses, or other real hereditaments as shall in their opinion be necessary, and in default of purchasing, the Court of Quarter Sessions shall award a venire at the instance of either party, directed to the sheriff of any adjoining county, who shall summon a jury of disinterested men in order to ascertain and report to the said court the damages sustained by the owner or owners thereof, by reason of the said canal or works; which report being confirmed by the court, judgment shall be entered thereon, and if not paid, execution may be awarded for the money and reasonable costs,” &e.
    3. They averred that by virtue of this law, the Union Canal Company is authorized and empowered to take and make use of the waters of said Tulpehocken creek for the uses and purposes of their said canal.
    4. They denied knowledge as to whether the plaintiffs are the owners of the tract of land and grist-mill, but admitted that there is a tract of land so situated on which there is a grist-mill; said premises having been formerly owned and occupied by a certain George Keiser..
    5. They averred that the power for running the mill is furnished by the Tulpehocken creek, at such times and seasons as the water of said creek is not all needed for the maintaining and keeping up of the said canal by means of a dam erected across the said Tulpehocken creek, and a race leading therefrom to the canal, constructed by the canal company, about the year 1827, and rebuilt by them in the summer of 1850 or 1851; that the surplus water of said dam not needed for canal purposes, which is permitted to flow over said dam, furnishes the motive power for said mill.
    6. They denied that the dam across the said Tulpehocken creek is on the land of Reed, but is on lands of the canal company, duly obtained by inquisition from Reed, for which they paid a valuable consideration.
    7. They denied that the dam furnished the watér-power of the mill, and averred that it was not erected for that purpose; but that it was erected by the canal company, of whose works it forms an integral part, for the purpose of supplying that portion of their canal adjacent thereto with water; and that without it said canal could not be operated or its navigation maintained.
    8. They denied that they enlarged or deepened the race by which the water of said dam is conveyed into the canal.
    9. They admitted that in July 1868, by order of the canal company, the dam having settled and sunk eight or ten inches, they raised the breast by timbers fastened thereon to the height of four inches only, and not to the height originally erected in the year 1850 or 1851, and did not thus increase the flow into the canal equal'to the flow after the erection of the said dam in 1850 or 1851.
    10. They averred that the water of said Tulpehocken creek being thus retained for supplying said Union Canal with water, the water could not bé returned into the creek for the use of the mill without destroying the navigation of the canal for a great distance and rendering useless the entire canal.
    11. They averred that the mill at no time since the rebuilding of the dam, &c., received any water of said creek or dam but such as was not necessary for the supply of said canal, &c.
    14. They averred that the tract of land and grist-mill, now claimed by the complainants, was formerly owned by George Reiser, that said canal company rebuilt said dam and race in 1850 or 1851, at which time Reiser was seised in fee of said tract of land, grist-mill and water-right, &c., and that Reiser did, on the 13th day of September 1851, petition the Court of Quarter Sessions of the county of Berks, asserting therein that the canal company had turned all the water of said Tulpehocken creek and taken the same into their said canal, &c.; that the court awarded a venire to the sheriff of Lancaster county, who summoned a jury, and said jury on the 28th day of October 1851, assessed and valued the damages done to Reiser at $2100; which sum was paid to Reiser by the canal company.
    15. They averred that during dry seasons all the water of Tulpehocken creek at said dam is needed and absolutely required for the purpose of supplying said canal with water, &c.
    16. They averred that at all stages of water it is imperatively necessary that said timber should remain upon the breast of said dam, and without it, that part of the canal company’s navigation could not be maintained.
    On the 24th of April 1869, the plaintiffs petitioned the court, representing that after an examiner had been appointed, without formal replication, and before the taking of testimony had been finally closed, it occurred to them, that owing to the alie gations in the answer, that the defendants were the servants of the canal company, it became necessary to amend the bill by averring that the canal company were, at the time of the grievances committed, an insolvent corporation ; that no compensation had been made or security given, as required by the Constitution, for the damage done by the acts charged in the bill, and they were not bound to submit to the uncertain remedy of the Act of 1811, and prayed that they might amend the bill according to the petition.
    The court allowed the plaintiffs to amend the bill within twenty days, and on,the 26th of April they filed an amended bill. On the 19th of May the defendants filed an answer to the amended bill, denying knowledge of the insolvency of the canal company, and averring that the plaintiffs had an adequate remedy at law under the provisions of the Act of 1811. On the 7th of September, the case, by agreement of counsel, was set down for argument. It was argued September 17th; on the 18th the plaintiffs applied to amend their bill again.
    The application set forth that the answer and testimony showed that the acts of the defendants were done as the servants of the Union Canal Company, and “in order to cure a formal defect and reach the merits of the said suit, the corporation should be made a defendant,” &c.
    The counsel for the defendants waived a formal proceeding to bring in the canal company, in answer to the petition. On the 1st of November the court fixed the 20th of the same month for hearing the application for amendment. On that day the argument for amendment was heard, and the defendants moved to dismiss the bill for want of jurisdiction. On the 4th of December, the court allowed the amendment, directed a replication to be filed, nunc fro tunc, and upon an opinion by Van Reed, J., made the following decree: — ■
    “Let a decree be entered enjoining the Union Canal Company of Pennsylvania, to remove the timber to the extent of three and a quarter inches from the breast of their dam, and from hereafter placing any obstruction to the flow of the water over the breast of said dam, until they shall first pay or give security for the' damages likely to result from such obstruction. And it is ordered that the defendants pay the costs.”
    The defendants, including the Union Canal Company, appealed to the Supreme Court.
    They assigned for error:—
    1. Allowing the amendment making the Union Canal Company co-defendants.
    2. Making a decree enjoining the Union Canal Company.
    3. Not dismissing the bill as to Spangler, Woomer and Hoover, with costs.
    4. Granting an injunction.

      W. M. Derr and F. L. Smith, for appellants.
    — As to the amendment: Proper notice was not given to the canal company: Act of May 4th 1864, § 2, Pamph. L. 775, Purd. 1334, pl. 2; Rules in Equity 10, 54, 71; Jackson v. Wilson, 7 W. & S. 250; Act of April 17th 1856, Pamph. L. 388, Purd. 199, pl. 32. An injunction cannot be granted until defendants have been served : Blair v. Boggs Township, 7 Casey 274. Testimony taken before service could not be used against the company.
    The plaintiffs did not establish a right to the water; their title not having been admitted by the pleadings: Adams’s Eq. 362, 363; Cox v. Gillingham, Jacobs’s Ch. R. 339. The company could not be restrained in the matter complained of. By Act of September 29th 1791, the Union Canal Company were authorized to use Tulpehocken creek, and a mode was provided for ascertaining damages ; by Act of April 2d 1811, other companies were incorporated with the Union Canal Company and they were authorized to take the waters of Tulpehocken creek, the damages to be assessed, if necessary, by a jury from an adjoining county. A charter to execute a public work is a contract: Monongahela Navigation Co. v. Coons, 6 W. & S. 114; Same v. Same, 6 Barr 382; McKinney v. Monongahela Navigation Co., 2 Id. 66. Consequential damages are not within the constitutional provision: Phila. & Trenton Railroad Co., 6 Wharton 25; Mifflin v. Railroad Co., 4 Harris 192; Henry v. Pittsburg & Allegheny Bridge Co., 8 W. & S. 85; Union Canal Co. v. O’Brien, 4 Rawle 358.
    The plaintiffs having a statutory remedy, must pursue it, and equity can give them no relief: Knorr v. The Germantown and Norristown Railroad Co., 5 Whart. 256; Commonwealth ex rel. Attorney-General v. Garrigues, 4 Casey 12; Spooner v. McConnell, 1 McLean 338; Cleaveland, Painsville and Ashtabula Railroad Co. v. Franklin Canal Co., 1 Pittsburg L. J. 24, Dec. 1853; Bonaparte v. Camden and Amboy Railroad Co., 1 Baldw. 205; Hamilton County v. Cincinnati and Worcester Turnpike Co., Wright’s Ohio Rep. 603; Barring v. Erdman, 14 Hazard’s Pa. Reg. 129; Moor v. Railroad, 3 Philada. R. 210.
    Injunctions on equitable grounds are grantable only where they are incidental to the relief prayed for, and that relief is within some other head of equitable jurisdiction, as fraud, accident, mistake or account: Riley v. Ellmaker, 6 Whart. 545; Hegner v. Heyberger, 7 W. & S. 106, 107; Commonwealth v. Rush, 2 Harris 193. An injunction will not lie to restrain the operations of an incorporated bank, because it continues after it is insolvent: Attorney-General v. Bank of Niagara, Hopk. Chan. R. 354; Heilman v. Union Can. Co., 1 Wright 104.

      A. E. Green and J. S. Richards.

    — By the amended constitution the compensation or security must he given beforehand. The legislature can modify a remedy: 2 Story on the Constitution, § 1385; Sedw. on Stat. and Const. Law 643; Stoddard v. Smith, 5 Binn. 355; Deichman’s Appeal, 2 Whart. 395; Chadwick v. Moore, 8 W. & S. 49; Commonwealth v. Easton Bank, 10 Barr 442.
    The company cannot demand an assessment of damages until they are in a position to take the water lawfully; prevention is now asked: Com. v. Pittsburg and Con. Railroad Co., 12 Harris 159; Bonaparte v. Camd. and Amboy Railroad Co., 1 Baldw. R. 205; Jordan v. Railroad Co., 3 Whart. 312, 313. The right to the use of water is a corporeal hereditament: 2 Black. Com. 14; Id. 18, 19, and 403, note, and is embraced in the constitutional provision: Bell v. Ohio and Penna. Railroad Co., 1 Grant 105.
    An injunction will lie whenever the damage is irreparable, in the legal sense of that term, which means wrongs of a repeated and continuing character, or which occasion damages estimable only by conjecture and not by any accurate standard: 2 Story’s Eq. Jur., §§ 925, 926; Com. v. Pittsb. and Con. Railroad Co., 12 Harris 159; 2 Story’s Eq. Jun. 927; Hilliard on Inj. 446 ; Unangst’s Appeal, 5 P. F. Smith 128; Jordan v. Philada. and W. Railroad Co., 3 Whart. 512; Com. v. Rush, 2 Harris 195, 196; Heilman v. Union Canal, supra.

    May 5th 1870,
   The opinion of the court was delivered,

by Thompson, C. J.

— The main question in this appeal is, whether, conceding the complainant’s right to compensation on account of a diminution of the flow of water from Tulpehocken creek over the canal company’s dam, on account of an increase of its height by the company to supply their canal, the latter is subject to be enjoined from the use of the water of the creek for such a pur- • pose until the plaintiffs are compensated therefor. If so, the consequence would be inevitable, that the public] right to use and pass over the company’s canal, a public highway, would be subordinate to private interests of the mill-owner, and to others similarly situated. This will not do.

The canal was built to accommodate the public as a public highway, and a remedy is provided in its acts of incorporation to compensate private parties for injuries received in its construction and use. It would never do to render its úse contingent; to allow parties by writs of injunction to deprive it of the necessary supply of water when most needed. To do so would destroy the highway altogether by rendering its navigation uncertain and eontingent.

The dam upon which the additional height complained of was added, was built by the company on its own property, or property obtained by the right of eminent domain granted to it by the Commonwealth, and is a half a mile above the plaintiff’s mill. No contract is alleged as existing between the company and complainants, by which the former engaged to permit any water to flow over its dam to their mill, nor is there any law requiring it to do so. How, then, can the company be restrained from raising their dam for the temporary supply of their works when it needs it ? By the • original act of incorporation of 29th September 1791, the company was authorized to take all the water of the Tulpehocken for the use of its canal; by the Consolidation Act of 1811, it was provided that the company might use the waters of any creek or stream on the route of the intended canal. There is a provision in the latter act, as there was in the former, for compensating parties injured by taking creeks, tenements, mills, mill-ponds, water and watercourses by the company for the construction and use of its canal. We have innumerable decisions to the effect that in all such cases the remedy must be pursued. So, indeed, have we an Act of Assembly to that effect, the Act of 1806. If, therefore, the complainants here sustained or are sustaining injury required to be compensated by the act of incorporation or its supplements, they must resort to that. They cannot stop the works of the company to coerce payment. The notion that consequential injuries are required by the Constitution to be prepaid is a mistake. • The Constitution only applies to talcing private property; that must be prepaid or secured to be paid before it can be taken. Not so consequential damages. If the act of incorporation requires such damages to be prepaid the law may be enforced, but if it ddes not, there is no authority to require their payment at all, or at any time other than that expressed when required to be compensated.

If these milbowners have a remedy under the statute they must pursue it; if they have none there, they are not entitled to anything: Monongahela Nav. Co. v. Coons, 6 W. & S. 114; McKenney v. Same, 4 Harris 192; Henry v. Pittsburg and Allegheny Bridge Co., 4 W. & S. 85; Watson v. Pittsburg and Con. Railroad Co., 1 Wright 479. Numerous other authorities might be cited to the same effect.

It rarely happens, even, when consequential damages are required to be paid, that they are applied for until the works of the company liable for them have developed their extent. Then the party injured applies. But it would be an intolerable evil if such a party were authorized to stop the works by injunction operating on the supply of water for instance, when it is a canal, until the damages are paid. It cannot be done, and no book or case shows that it can.

It is enough, however, to say that this company is authorized to take the waters of Tulpehocken creek for its canal, and it is not an act contrary to law or equity either that they do, and without this it cannot be enjoined, nor can its servants and agents engaged in aiding it to .do what the law allows the company to do. Besides, there is either an adequate remedy in the act for compensating the injury, or there is no allowable remedy of any kind.

The amendment allowed on motion of complainants, to add the company as defendants, and on the same day permitting a replication, nunc pro tunc, to be filed, and a decree to be entered against the company, was without authority in practice, and it seems by the record to have been equally unsupported by any agreement of the company, or any one authorized to consent to it. That Mr. Smith accepted notice of the proposed amendment, and argued against it, did not waive notice to the company, and service of the bill and amendment, as required by Rule 54 of equity practice, and we have no evidence of an express waiver by him, and it is expressly denied by him and the company both. This proceeding was too fast by half. It has no significance in this case, but it is noticed to prevent the recurrence of such an error on any similar occasion.

Decree of the court below against the company is reversed and appeal dismissed, and the bill as against the individual defendants is dismissed at the costs of the complainants.